Full Text
CRL. A. 970/2012
JUDGMENT
DEEPAK @ DEEPU •Appellant
Through:.3,s«MfoAjax.y®^^ (DHCLSC)
'And MsrKlanjeetaKumari, Adv. STATE #' STATE i J'^rsus - '/v. r:'^rx, ^
••••^^spondent jli^^^^^%paaTiwafeifpJ^ for the State l^^^j^^pectorAja^umar, P.S.- rPuri. I
I . I CRL. AIIII8/2OI2 &CRIM.(BAIL) 604/2016 |
RAJEEV i
«*, , •> ^
Versps^*'----'^''^ 44^^,s«^espondent
Through: Ms. Aashaa Tiwari, APP for the State with InspectorAjay Kumar, P.S.-
Jahangir Puri.
PRABHANS YADAV @RAMJANE Appellant
Through: Mr. Kanhaiya Singhal Vani, Adv. (DHCLSC)
2016:DHC:8500-DB STATE Respondent
Through: Ms. Aashaa Tiwari, APP for the State with Inspector Ajay Kumar, P.S.-
Jahangir Puri.
MUKESH KUMAR@ BITTOO Appellant
Through: Mr. M. L. Yadav, Adv. (DHCLSC)
|rou|HV' •Ms. Aashfe Tiwari, APP for the State
- {-with Inspect(aE%3ay Kumar, P.S.-
✓
CRL. A. 1301(72012 u RAVINEJERKUMAR @ RAJU " Apfellant
I Through: ' Mr,^Ravi Chaturvedi, A(|^. f STATE
•%
.Versus , . i . Respondent M&rfa^aa^fiwari, APP-for the State
' witfiffilpectorXjay Kumar, P.S.- Jahingii^Piiri
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL G. S. SISTANI, J.
1. All the present appeals are set down for final hearing and disposal. The aforesaid five appeals were heard together, as they arise out of a Crl.Appeals.970/2012, 1119/2012, 1118/2012,1303/2012 & 1304/2012 Page 2 of30 common judgment and hence, are being disposed of by a common judgment.
2. Present appeals have been filed under Section 374 (2) of the Code of Criminal Procedure and are directed against the judgment dated 13.01.2012 and order on sentence dated 28.01.2012 passed by the Additional Sessions Judge in Sessions Case No. 62/2011, by virtue of which all the appellants have been convicted under Section 363 read with Section 366 and Section 342/376 (2) (g) ofthe Indian Penal Code and sentencedto undergo rigorQus-impris"onment for a period of seven vear and to pay^lfmil^'Ms! 2,000/- an#ih default:pfpayment offine to further undersoCimplri^ri^Sflfen^for aperiod offifteen days for to further underg§^simpkdm|j:i.sonttLint^^ a period offifteen days the offence puffishable uri'dfer'^Section 363 readwitnlSection 366of the Indian Penal Code. The ap|ellants')were further sentenced to undergo rigorous imprisonment for ine|y^4K|fo'' the offence punishable under Section i^2 of the IndiaMenaltjGode. The appell^ts were also %, / sentenced tlxundergo rigorous1mpp|'nrrient foMjfe and to pay afine I of Rs. 25,0007-arid in dfefaijlt of|3pm€rit of further undergo simple imprisormfeni for tSre^monlSl- for the offence punishable under Section 376 (2) (g) of theindian Penal Code. Ail the sentences were ordered to run concurrently.
3. The facts ofthe case are as under: >s. "On 20.3.2011 one Shakeel Ahmed who is a resident of Tilak Bazar, Karkhane Wali Gali, Delhi had made a complaint that his daughter 'R' aged about I6V[2] years who had come to Jahangir Puri to the house ofher mama (maternal uncle) on 14.3.2011along with her mother, was missing since 19.3.2011. On the basis of the complaint 1118/2012,1303/2012 & 1304/2012 Page[3] of30 iy\ made by Shakeel Ahmed, initially a case under Section 363 Indian Penal Code was registered. On 21.3.2011 an information was received in the Police Station Jahangir Puri vide DD No. 89B that the girl who was kidnapped on 19.3.2011 had been recovered. Pursuant to the said information ASl Ved Prakash reached at main road K Block, near Mother Dairy Booth, Jahangir Puri where the prosecutrix 'R' was present along with her relatives. Thereafter on 22.3.2011 she was produced before the Ld. Metropolitan Magistrate for recording her statement under-Section 164 Cr.P.C. Inher standing inJM gali^ pmr-^the 'hoi0^^^^r maami (matema^cm^),ftj^^^oys cm^^fbota^f^ible took her tith^hnggi ^^tbp whos^ame sl^\came to know later all thefiv^hysJoSkfturns in committed rape upon her. She hacf^rtlwri irifhrmed the Ld. MM that during this period all^the'said boys were addressing each otlier by their names^ i}e. ^ittoq, Ramdesh, Bunti Raju they comniftedrdpe'%pon'three-fdu^^^ had also f statedin>jiM<sidtement underSection'464/t^.C. that on the evening of^21.3.2OlfBitt0o^eft her near the toilet and when she was standing 'theinf^fwj Khala (Mausi) Naeem came there and took hefbad^^'" On the basis of the same, the provisions ofSections 376 \ (2) (g), 342/34 IPC were added On 22.3.2011 the accused Mukesh @ Bittoo was arrested and the other accused namely Prabhans Yadav @ Ramjane, Deepak @ Deepu and Ravinder Kumar @ Raju were also arrested whereas the accused Rajeev @ Bunti had himself surrendered on 2.4.2011. After completion of investigations charge sheet was filed against all the accused." 1118/2012,1303/2012 & 1304/2012 Page4of30
4. After completion of investigation, charge sheet for the offences punishable under Section 363/366/342/376(2)(g)/34 of the Indian Penal Code was filed. The prosecution relied on the testimonies of 18 witnesses, besides the exhibits produced during the trial. The statements under Section 313 of the Code of Criminal Procedure were recorded wherein the appellants denied all the incriminating circumstances appearing in evidence against them and claimed to be falsely implicated. Common Ar2ummisio£^)mhW%favvellants f ^ \.,f j «•
5. Challenging |he findings gfthe trial court, lelarnefCounsel appearmg on behalf ofthe appelll%|ponUn1de^|tfiat the'jU^i^^nt ofthe trial court is contrary to the faltsianjl'lawfand same is^'^sed on surmises and conjectures. They havetfurther"contended that the pi^osecution has >V {5'' ' ' f ^ I failed to grove its case b^j^qnd reaspnable doubt and (iverlooked the basic nrinclDles ofcrirnintl jurispiiidence..^ # • 6. It is contended, blC'the c,q^nsel for the appellants;that the real identity of the accused pefe^hs isTrtqtjestablished.and the-prosecution hasfailed to prove its case against«all the.appellants beyond any shadow of doubt. ^ 7. The counsel appearing on behalfofall the appellants strongly opposed the inspection of the spot carried out by the learned judge within the ambit of Section 310 ofthe Code of Criminal Procedure and submitted that such inspection cannot be done which would have benefitted the prosecutrix. Counsel for the appellants fiirther submitted that such an inspection cannot take the place of evidence orproof but is meant for CrI. Appeals. 970/2012, 1119/2012, 1118/2012, 1303/2012 &1304/2012 Page 5of30 appreciating the evidence on record. Therefore, the above mentioned inspection has no evidentiary value and can not be relied upon. It is also contended that the learned judge neither afforded an opportunity to the appellants to represent their case on this aspect nor the same was carried out in presence of the appellants. To substantiate their arguments counsel have relied upon Keisam Kumar vs. State of Manipur reported mAIR 1985SC1664.
8. The counsel for the appellants fervently urged that there are serious contradictions, inconsistencies and='imprdvements m the testimony oi the prosecutriXj,arid d^s'^not in,§p^ire confide^e and^creates agenume doubt aboutAr-^eTsion.iIt^wis'fijkhi&submi^^i t%t her testimony "cy. has to be, appreciated on, the princ^b of probabilities just as the testimony"of any other witness-and the court may lookanto the other T n' i Ihich may lend assAance to her 1,1. evidencedirect or substan^| ^ testimony!:Counsel furth|^^^^^^ards.the contr^ictions inthe testimony o|theJnvestiglt|on'^,Officefwho def)Osedjiiat the place of occurrence was> first flooft^.
9. On the aspect of niedical 'eyidenGe,"-the^coun|erappearing on behalf of the appellants urged that injury is' a"sine qua non for deciding whether gang rape has been committed. In the present case, even ifthe story of the prosecutrix is believed to be true, there would have been some injuries or bruises on the body of the prosecutrix, absence of which belies the case ofthe prosecution thatthe prosecutrix was held captive for three days and was raped multiple times by five persons. To substantiate their arguments learned counsel for the appellants have relied on the judgment of the Apex Court titled as Pratap Mishra vs. 1118/2012, 1303/2012 & 1304/2012 Page 6 of30 State of Orissa reported in (1977) 3 SCC 41, Lalliram and Another vs. State ofMadhya Pradesh reportedin (2008) 10 SCC 69.
10. Learned counsel further contended that the area from where the prosecturix was kidnapped was densely populated and it is hard to believe that nobody witnessed the kidnapping of the prosecutrix. Learned counsel further argued that it is not humanly possible to carry a person forcefully on the staircase in question and further the staircase was not wide and strong enough to sustain the weight of two persons at one time.^ %
11. Counsel for the-appellants cl)ntended tliat\he\present case belongs to theyear201i-rth|Srose9uli^§^^p^ablyfaffedto^omplywiththe circular dated'ii March71pJ|^;l|afmMes DNA p^flling mandatory for rape |ases. The coun^'.fu^rther'stressed that there were serious lapses ini^he investigation whicfemakes the story oftlfe prosecution unbelievable The counseLvfiiilHer Mleged that in order t^ implicate all the appellants, a false and ^mendacious-story wa# made by the « prosecution.
12. Ms. Pooja Srivastava leameS^^couiisel^'appearing on behalf of the appellant Rajeev @ Bunti has relied upon Radhu Fs. State ofMadhya Pradesh reported in 2007 Crl. L.J. 4704, Abbas Ahmed Choudhury v. kJi, State ofAssam reported in (2010) 12 SCC 115, Raju v. State of Madhya Pradesh (2008) 15 SCC 133 and Md. Ali @ Guddu vs. State ofU.P. (Crl. Appeal No. 2238/2010)
13. Per contra, Ms. Aashaa Tiwari learned APP for the State submits that the evidence produced on record establishes the guilt of the appellants beyond any shadow of doubt and the trial court has rightly convicted 1118/2012, 1303/2012 & 1304/2012 Page 7 of30 the appellant for the offences punishable under Section 363 read with Section 366 and Section 342/376(2)(g)/34 of the Indian Penal Code and hence the findings warrant no interference, accordingly the appeal is liable to be dismissed.
14. The counsel for the State, in support ofthe view expressed by the trial court, contends that the prosecution has succeeded in proving the guilt of the appellant beyond reasonable doubt and the scanning of the evidence by the learned trial Judge does not remotely indicate any contradiction or diserepancy.j=It is proponed by her that all the witnesses have-#em£ined absolutely urisliaken m, their version and nothing substantial has 'beeri^elicited-'^from them during the cross- // ^ r N examination which could'create;\a dent in their'^iestimony. Learned Counsel would further contendthatMf the ocular and'.,.documentary \ evidence is appreciated infits Iptotoer perspective, there remains no scintilla of doubt that the-fa^en^tj|had committed the brutal and heinous crime and'in sucli* a||i£ctoJtiance/when,Xhe/sbciety cries for justice, the Couftk"shouldfe^npt show,-any leniericy'in acquitting the appellants. " ' ^ /
15. The counsel for the State vehemently urged that the commissionof the alleged offence is supported by the MLC of the prosecutrix and the FSL report available on record.
16. We have heard learned counsel for both the parties and considered their rival submissions. The counsel also took us through the record of the trial court and the testimonies of the witnesses. CrI. Appeals. 970/2012, 1119/2012, 1118/2012, 1303/2012 & 1304/2012 Page8of 30 7^
17. Before proceeding with the evaluation of the aforementioned five appeals on merits, it wouldbe necessary to noticethe ambitof Section 310 of the Code of Criminal Procedure: Section 310: Local inspection
1. Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspectanyplace in which an offence is alleged to have beencommitted, or any otherplace which it is in his opinion necessary to view for the purpose of ' properly appreciatingJiieseyid^^ie given at such inquiry or trial, and,shall with00fmm^ record a memorandum 0%0y^^e^an§^^i^s gBs^iyed at such inspectpn.^^ % any^^^othir party tohhe^ds^,fSo desires, dicbpy^ cf the mefhorandum shall Be^furriished'to himfree ofcosi fi. ' I fi fi, ii ' f
18. To put the controversy at rest relating.to the spot where the victimwas held captive for three, days^fertrial ju.dge-xisited and'inspected the spot in view,of.the abovesaiiSfirbvisibn.'The relevant'observations of >C,.... ^ the trial court are^|xtracted hereundef^ ""House No. K-655-,where~the pf^secutrix was taken and kept for two to three days and allegedly raped was inspected and it was observed that the house/jhuggi was constructed upto thefirstfloor. This Court inspected both the ground andfirstfloor. The way to the firstfloor was observed to be from the gali on the backside which was hardly about 30-35 steps away from the spotfrom where the prosecutrix was dragged and it took about one minute to reach the same from the place where the prosecutrix was dragged. The ground floor was divided into two portions. The room on the back portion was bearing no. K-655 whereas the room on thefrontportion was bearing 1118/2012, 1303/2012 & 1304/2012 Page 9 of30 >0 no. K-647. The first floor had two rooms and both were found to be having the No. K-655. The gali on the front side was about 4-5feet wide whereas thegalifrom where the approach to the first floor room was possible was about threefeet and at the same time the roofs were not very high and there was aflxed wooden ladderfor going to thefirstfloor and it wasobserved thatone couldeasily move up the ladder without any difficulty as there was support of adjoining wall. It was also observed by the Court that keeping in view the low height of the roof it was not difficult to lift or even drag a young girl up the ladder when more thanjm&ipm§<^ isinvolved. The groundflgpr roomsft^^ff also insp^ed with the due permission'r1$^gthjeyeMdm&. inside the Jhuggi.ifwas'^dind thatmkere was a^kU^s^p^ating the two rooms^with an ojyeningin the^form -opa dq^r which appearedyh be a%heh1^construcfion. Thhld^y.residing them infgrmed thatksfi'e'Was^s^aying therefor" l^ more thafji seven to eighf'^^ears.filpitfally she was residing in -only thefront room bfidripgjio. K-647 but receMy the tenant residing in thejbdckportion bearing no. K-$55 had vacMed and therefq^^'sfm^ had, taken the saidportion also on S^ord dve. xpoms^'fiad now beenj%j.ned^by:creatin§fdWf^openin^^ ^ the Coi$t>$li'Qt'thero,ofri^ wi'thJH^/owner ofthe backportionMnd^hBflce'tpe t^um&er.of'ro3ms on theflrst floor was also" K-655 ' (not •'6'47). 'This Court further observed a water outlet in the 'room on the backside (i.e. K-655) in the corner which was perhaps being used by the occupantsfor washing purposes. It was also observed —f that the entire groundfloor andfirstfloor structure was pucca construction. The rooms on the groundfloor were slightly below the road level with not very high doors (but one could enter easily without bending/ stooping. It was also observed that the roofofthe adjoiningjhuggi which was only constructed till groundfloor was much lower to the roof to the Jhuggi No.K-655 and therefore, in case if any person is held captive on thefirstfloor, it would not 11 18/2012,1303/2012 & 1304/2012 Page 10of 30 Xabe possible to either call out or catch the attention of person residing there. Further, the jhuggi infront of the jhuggiwhere the incident reportedly tookplace belonged to the accused Prabhans Yadav and perhaps it was for this reason that the prosecutrix could not catch the attention of any other person in the vicinity and none came to her rescue. Further, the public toilet where the prosecutrix was recovered was also inspectedand it wasfound to be at a distance of hardly three tofive minutes from the jhuggi where she had been held captive. This Court also observed that there^j^er^est\m,Z^u^^s to reach the said public toilet, ^gjni^f^Qugh tjhe jpain-gqli via main road andanother^fgrn^/^idli's ihsid&HjkfJhuggiduster. This Cq^^j^rt^ obse^^^that the4niirf\ea was an unautlSr^^^huhd^^ds\pf people residing^ere, of§^'krainage[ahd many^ff'the galis whi^h'^re hardly ^ke to one^dnd ahalffeef^vide. Some of^e galis were eve^ith)y^e,otifivefeet wide (as r'^flected in %e rough plan dr'^n byi^tlfe Court at the sp(^. The jhilggi's were mostly a^ca^omtruction andpopulation density M'as extrem^M^0ghl^iih a low and. suppressed voice/, sound qiiality^^on^fxcco^nt: Ma^y oj the house^ere.below the level-ofthe gdli and in,case if two or more, persons surrouride^a young'girlthey could easily drag4ier dv'ayiMnfhou^mybqdy no'ticing the same in view ofthe ndtuie~~pfeongestidn^ Many ofthe Jhuggies were found with single'door"and no ventilation. The Jhuggi No. 655 (first floor) rooms were found to be having water outlets inside the rooms which waterflowed into the open drains outside through pipes. In one ofthe rooms on thefirstfloor there also existed a water tap and a temporarypartition in the corner which was being used as a washroom though it cannot be stated whether it was an old feature or a recent addition. The windows (as indicated in the rough site plan prepared by the Court) were small with iron grills affixed on it. Distance between House No. 655 to main road was hardly observed to be 1118/2012,1303/2012& 13,04/2012 300-350steps. This Courtalsoprepareda roughsiteplan on the spots so visited which was made a part of the memorandum ofrelevantfacts which nowforms a part of the Judicial Record (in terms ofthe provisions ofSection 310 Code ofCriminal Procedure). "
19. PW18 SI Vineeta Prasad who was the Investigating Officer in the present caseinher cross examination stated as under;
\~j leadkig^tQ'ifie door on thefirstfloor4s'^aBg0t 1/1.25ft.
20. In Keisam Kumar vs. SiatetMf Manipur reported in AIR 1985 SC 1664, the Hon'ble Supreme Court dealt with the similar issue and held as under: "13. The learned Sessions Judge relied on the local inspection made by him. Here, the High Court rightly pointed out that the learned Sessions Judge had committed a serious error oflaw. Normally, a court is not entitled to make a local inspection and even if such an inspection is made, it can never take the place ofevidence orproofbut is legally meantfor appreciating theposition 1118/2012, 1303/2012& 1304/2012 Page 12of 30 \ ->/
21. at the spot The Sessions Judge, seems to have converted himselfinto a witness inorder to drawfull support to the defence case by whathe may haveseen.
14. This Court in Pritam Singh and Am. vs. State of Punjab 1956CriLJ 805 observed thus: A Magistrate is certainly not entitled to allow his view or observation to take the place of evidence because such view or observation of his cannot be tested by cross-examination and the accused would certainly not be in a position to furnish any explanation inreggiddoJiie^^ame. Court of fbllowin^observations: w. "15 It is argued b^t^^^i^Isi^ride' that inffirkah v. Namdks^ (^Ri^927'^'~-35l)lfit^wo^ if a Magistrate ^akes use^^^^hdge deriye^rfrom a local inspection without-^affoPdh^igrtk^ opportunity to cross-examine,or'^to explain-the^points against him, he acts with material irregularity sufficient to vitiate the trial. It was also held that a local inspection of the Magistrate is permitted for the purpose of properly appreciating the evidence inthis case and cannot take the place ofevidence itself In Sheikh Badas AH v. Emperor (40 Cri.Law Journal (1939) 624) the Magistrate visited the spot on the evening and came to the conclusion that there was sufficient light to enable anybody to mark closely the features of a stranger. The High Court held that the learned Magistrate assumedthat the condition of the lightand atmosphere were the same on the night that
15. We ar^m^fd th^^ifithiJ^f^d^ the learned Session^ud^lhs exceeded^hisjuris^twiWn making a local iisp^ion." In Re: Sr. ^bhaya's case'rep|)rt^d4ri 2006 Cri LJ 3843, the High " Kerala while de^aiing ^with the similar issue made the 1 ^ 1118/2012, 1303/2012 & 1304/2012 Page 13 of30 he went to the spot as they were at the time of the occurrence. It was held that the Magistrate had gone beyond the scope of section 539(b) and result of such inspection could not be made the basis of conviction. In Dwaraka Prasad v. Ram Nath Modi & others AIR 1951 Vindhyapradesh 1, it was held that the only purpose of local inspection is to properly appreciate the evidence given at the trial. It was held asfollows: The only purpose of local inspection being to properly appreciate the evidence given at the trial and it is only reasonable that the local inspection should, as a rule, come after all the evidm^ed^xMcorded. Even that ^ should be resorted to^ve^^^paringly^^^he Court taking specialpr^auUo^^^prh'^ntktself be^dming a witness unconsgpuslySbn some'"-occasions%Jt^§%prfictically impossfble^fpr the-Court to make a loc^^sj^tion, and not impo^ff-new materials collected by it. The moment the Court egllects new matendlsji becomes a wiiness,\and as jj j V| it cannot cross-examineHtselj, ntbannot try the cas'e. k. v i ! j "r y[1] 1 Pritam Singhivl^State,''O^Punjab (AIR lp[6] SC 415%^ three Judge-Bench'of^the^Supreme Court l^eldthat a Aiqgistrqte p. ndt>-:i^ptitlek06 dllow hi or observations to take 'ihi^place 'of eyjdence^^b^tiuse such view or observation^ cann/ot^ve"^esw^ by crossexamination:. '
17. In Deva Setty vT'^Se^'l^ysore: AIR 1959 Mys 1701 it was held asfollows: A local inspection may be made for the purpose of properly appreciating the evidence given during the trial. The magistrate shouldnot, in making the local inspection, do any thing which would reduce him to the position ofa witness. ADivision Bench of this Court had occasion to consider the scope ofsection 539 in State ofKerala v. Chandran (1974 Crl. Law Journal 52). It was heldasfollows: Crl.Appeals. 970/2012, 1119/2012, 1118/2012, 1303/2012 &1304/2012 Page 14 of30 But the Code provides for the Judge making a local inspectionhimself That inspection can be used by himfor properly appreciating the evidence in the case andfor no other purpose. It cannot be usedfor preparation of the backgroundfor appreciating the evidence ofthe witnesses because preparation ofthe background has to be made by the parties themselves by letting in evidence for that purpose and the Judge is not expected to supply that lacuna in evidence. Preparation of the background to appreciate the evidence ofwitnesses is not the same as "properly, appreciating the evidence' contempla^S bythe Section... fT % >> U u ^,,,,'W '•) xjs It was fufther ff&ld as foimWS^ \ "AX If the impressions'.gained by Judge on;controversial matterss, arejdllowed to getHn lwithout being tested by.cross-exhmination there.is the likelihood ofmiscarriage ofjustice resulting mom it. I ' -'i'l "'1^ I In S^e of Uttar ]frhde;sh'*v\\'0let Ram and oth^s, AIR 19T^kSC21T4^it',was-fi^jd^^^ -^ m}iat'/'i^^Section'539-B&'6htkmplate£;^ is/^^he local ins^^ctii0i^ff^the[^ topography ofithmjMce in which the offe^&e^^ds^'aii^ed tpmdve-bee^committed or its locarp^mliqhiiek-for the purpose ofproperly appreciating the" evidence which was already on record. XXX So, it is settledposition oflaw that though the Magistrate has power to conduct a local inspection that can only be for the purpose of appreciating the evidence on record and that all shall not be done in a manner so as to reduce the Magistrate as a witness. " 1118/2012, 1303/2012 & 1304/2012 Page 15 of30
22. In view of the above settled position of law and in light of the given facts and circumstances of the present case, we find that the Sessions Judge relied upon the local inspection conducted by her and the appellants were not afforded an opportunity to cross examine or to explain the incriminating circumstances against them. In our view, perhaps the local inspection was conducted bythetrial court to have a clearview and understanding of the spotwherethe offence tookplace. Undoubtedly, the object of such local inspection is to appreciate the evidence available onrfecord.andfcannot take the place of evidence itself On the ba'sis aboye,,it would be highly unsafe to rely --"nbtS-b'e'f -- --' ContradiciionMn the testhnonv of^thWmosecutrix^^^, upon suchinspectionand|j5|mQt'be''r^^|thebis|s'ofconviction. ft' ^ ' 1.,
23. Before deciding the case inliahd,It,Ay0uld be necessary f| examine the testimony of relevant witnesses;'(The prosecutrix in her statement EX.PW9/A recorded befor|j']Viagistrate^ deposed that on ®.03.2011 she was standing in frorit^of-lhe^'house'-of her mami.when five accused persons lifted%er^forcefiflly„m took her to the jhug^i ofBitto, where she was kept in their, custody iill 6]00-PM of 21.03.2011 and during that period they had done •Galafkadm " three four times.
24. The prosecutrix i.e. PW[9] inher testimony before the court deposed as under: "0« 19.03.2011,1had gone to the house ofmy mami at K Block, Jahangir Puri. On 19th March of this year at about 5pm I was standing in the gali near the house of my mami. 5 boys who were coming onfoot came in the gali outofwhich one ofthem caught hold ofme andtook me to a room situated in thenext gali. All these 5 boysdid galat kaam with me. These boys were addressing each Crl.Appeals.970/2012, 1119/2012, 1118/2012,1303/2012 &1304/2012 Page 16 of30 Other with names and that is how I came to know about their names i.e. Bittoo, Raju, Ramjane, Deepu andBunti. I was held by these boys and they have kept me captivating for about 3 days and on 21.03.2011 I had escapedfrom their clutches. During this period, all these boys did galat kaam with me on 2-3 occasions (sab ladko ne 2-3 baar mere saath galat kaam kiya tha). Court Ques: Galat Kaam se kya matlab hai? Ans. Theyhad removed my clothes and touched me on my private parts and after removing their clothes they committed rape (balgti^gar^rdipon^me. •J- Court Obsendtion rThew vicjm^^ds feeling very apprehensible qnd'shytMd'^after^gr^fpersuasionsshe has come oiitf & Cou^ Ques: Who%Ufc0mrnitted^fape on ^po'il kisne rapfUyatha) M0Z}:S ' ^ Ans. Sabhi ne 2-3 bdar'klva 'tha. I Ant Sabhi ne 2-3 | I cm identify all the dccMse^ipersons. I •."k I Coti^ Ques: fFTzo ^^s^lfh^j^dyjwho has lifted^ou and takek^youtoA^'roomt^i^^%'i i ^ i Ans. Bittoo.-C \ • ' ^ The police \hadficome to the house iater aiid 1 showed them roonfhyhet^e T'rw^s^ept^capUvatirig and where the incident had taken"placerand-'thereafter I was medically examined. Next day my'^^dtement was recorded by the police. I had also come to the Court. My statement is Ex. PW9/A, the arrest memo ofaccusedMukesh is Ex. PW9/B bearing my signatures at point A, the arrest memo of accused Prabhans Yadav @ Ramjane is already Ex. PW4/D bearing my signatures at point D, the arrest memo of accused Deepak is already Ex.PW4/E bearing my signatures at point C, the arrest memo of accused Ravinder @ Raju is already Ex.PW4/F bearing my signatures at point B. I was studying in 7th class at that time. 3^ ••V I had also gone to the Jail and I identified one of the accused as Bunti who was the person who had caught hold of me and dragged me to the room and committed rape upon mefirst:
25. PW[9] in her cross examination stated as under: " It is correct that the place where I was taken is situated in a thickly populated area. It is wrong to suggest that the room whereI was taken has a small door and only person can enter at a time and that too by bending the neck or by stooping over. The place where the said room is.0MdB'd is smgks^st^rey and is only on groundfloor Tlie^toiJejt'^s&ua^^^isi^the room. It is correct that noJgj^^in%frodm. wrong to sugge^hc^there }yas^•n6JJpurce ofwater.')^^., there was p mWca insidejthel foom^ Qn couft^(^e's^on, the witr^ss-h'as statedthat the rbo'm^was locke3^0ik\outside so I did'not go out "of %etrodm to attend the'\call of nature. ^ Zk 8 ' !. I • H I if I. Itis•krongjoxs^^gest-'that tl^^ropm^kerejwas kept had adjoikingjhugg^ with^common w^lis^¥plnl,.'there is no room/j'hussi-^aifoining<-MhereJ was Mken. There was no khidkiAvindm^^n$k^^id0mggi/rvom.""^ '
26. PW[4] Shakeel Ahmad (father"of the prosecutrix/complainant) in his testimony deposed as under: "It is correct that my daughter had gone to the house of her mama at Jhuggi no. 333, behind ITI on 14.03.11 and got missing on 19.03.11. It is also correct that I had stated to the police in my statement Ex. PW4/A that my daughter was taken away by some unknown person by alluring her. I had given the birth certificate of my daughter Rukhsar to the 10 which was taken by him into possession vide seizure memo Ex. PW4/B bearing my / signatures at point A. My daughter Rukhsar was recovered on 21.03.11 near Shauchalaya by one public person namely Rizwan who took one lady Naem who was wife of my borther in law, Israel. Naem and Rizwan brought my daughter from there. I was called in the PoliceStation and my statement was recordedby the 10. The memo of recovery of my daughter was prepared by the10 videEx. PW4/C bearing my signatures at point A. Two accused persons who were brothers were arrested from their jhuggi. Another accused was apprehended later on. I do not remember the name of either accused butI can identify thernJfsshQWMjQrne."
27. PW 4 in his cross/ei "I hadtmai^a lQffpumb^r^,call as sdhn as i came to know'that-riny dai^^ii]is^is:SingPThe PCR officials had come to the house ^^^y in-ldws. Vol. The locdl^ police had also come. I didlnpthqnH'over the photograph ofmy dail^hter to them. My Hdugliter has never gone alpne to m-fim-laws' house and,always accompanied by somebody eve| in the past. It^wi^ng'tq suggest that my (^ughter ofteh.,travel.dlomBndMent^'tp\myJpzlaws' hoMse. It is i corretlthdtI;h^dgiven^ihei^descri0ionldfclo/hes worn by my haughte^M^er^ descriptiorfgiyen 'By the members ofmy in-ta$^Pis;^w^^^o su^^t'that my daughter hadgone to my in-laws' house iri%y absence Vol. I had myselflefther there^...: -
28. After reading the above mentioned testimonies itis apparent that there are improvements and contradictions in the testimony of the prosecutrix as to where she was held captive, how she was kept for three days, and how and why did she not avail an opportunity to inform the public that she had been kidnapped or that she had been raped by the appellants and found her unworthy ofreliance. Crl.Appeals.970/2012,1119/2012, 1118/2012,1303/2012 &1304/2012 Page 19 of30
29. In Radhu Vs. State of Madhya Pradesh reported in 2007 Crl L.J. 4704, wherein the Hon'ble Supreme Court observed that the courts should bear in mind that false charges of rape are not uncommon and held as under: "5.... The courts should, at the same time, bear in mind thatfalse charges ofrape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge ofa rape either to take revenge or extort money or to get rid of financial liabilit)^^;;Mhetkm^here was rape or not would depend.Mfimately=^pnftheS0dtsmnd circumstances
15. The evidence o^^^s_ecu^whemiie^dtigawhole, isfu^ ofdiscrepci^0^rid''dpes^'hot inspir^e^corifidence. Thei^aps in the evidence',Hhe several discrepancies in the evidence and other,'^circumstances make it%highly improbable that such anfinhident ever took place. The learned Counsel for^ 'ihe;\respondent submittq^ that de^me had faile^takprbve^Hlyit Mangilal, father of should%e rejected. Attention ^m^^mvited^t^^ denial by the mothermdfathen<^it]^prpse^^^^ suggestion made on behalfj)fjhe-defence, [tlmt-^^^^ father Mangilal was indebied~fo^^ father Nathu and because Nathu was demanding money, they had made the false charge ofrape, toavoidrepayment. Thefact that the defence hadfailed toprove the indebtedness ofMangilal or any motive for false implication, does not have much relevance, as the prosecution miserably failed to prove the charges. We are satisfied that the evidence does not warrant a finding ofguilt at all, and the Trial Court and High Court erred in returning afinding ofguilt " 1118/2012,1303/2012 & 1304/2012 Page 20of30
30. In Raju v. State ofMadhya Pradesh (2008) 15 SCC133, the Hon'ble Supreme Court stated that the testimony of a victim of rape has to be tested as if she is an injured witness but cannot be presumed to be gospel truth. Para 11 ofthe judgment is extracted hereunder:
31. In the case ofAbbas Ahmed Choudhury v. State ofAssam (2010) 12 SCC 115, while observing that a case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no 1118/2012, 1303/2012 & 1304/2012 J presumption that a prosecutrix would always tell the entire story truthfully, the Hon'ble Supreme Courtobserved as under: "11. We are conscious ofthefactthat in a matter ofrape, the statement ofthe prosecutrix must be given primary consideration, but, at the same time, the broadprinciple that the prosecution has to prove its case beyond reasonable doubt applies equally to a case ofrape and there can be no presumption that a prosecutrix would always tell the entire story truthfully. " V.' 32. InRatSandeep @Deepu v£ State 6fNGT^ofDe (2012) 8SCC21, ^. V I.ps ^ ' the Hon'bk Supreme'Courf^commenteMBout the quality ofthe sole testimony otth^pfisecutri^^tc^tild be mtll^tlgis to convict the. accused. T|e,Hon'ble Supremfe^'eq^Jeld as undeq^ I? ^ 1 m "Imour considered opiniomih^ 'sterling witness'hhouJd M 1^ ' I, I^ ^J be p/' a very high quality land caliber whose ^ersion • shdMd, therefore, befu^^ssailable The Court con$dering the '^rsion of'-sucH{\vitm^ apetition to accep%itfoi' To test the witness, tl:ie'^status^€hme witness would is the truthfulness oftM^statement-Wad^ a witness. Whatwould be m^of^ relevant w&W be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version ofsuch a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co- 1118/2012, 1303/2012& 1304/2012 j
33. In a relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case ofcircumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only ifthe version ofsuch a witness qualifies the above test as well as all other similar such tests to be applied, itcan^be held that such a witness can be called as a 'sterling yyitnessl whose version can be accepted by the Court without any corroboration and based on which the precise qn be punished'~^o be more did witness• ori Jhe core •^^fmain intact while all oral, documentary and the said version in |9 enable the Court\trying hyersion to sieve tHk other the< versii spectruni.of the \ other attendant mat^ material objects material particulars the offence to rely o^||e|a' supporting materiaBWrmo charge allegi m vs. State of U.R (CM. Appea: f^the offender gui^ ofthe upjieme#€l)iirt Md. AH@ Guddu '761^, wherein the Apex Court held that the testimony of the prosecutrix can be accepted without any corroboration, but if on careful examination if the court finds it difficult to accept the version of the prosecutrix, the court may look for such direct or circumstantial evidence which corroborates her testimony and held as under: "It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. True it is, the grammar oflaw permits the h'f testimony of a prosecutrix can be accepted without any corroboration without materialparticulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidencefinds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we, amss^mpelled to hold that the learned trial^^iidge.. Jjasyerrpriedusl^ convicted the accused-j^p'ell^rit^forJthe dllegedjoffejjce^and the High Court falkrfinto ep^MpiWithoiit 4^gppn§ciating the material on record/by giving the^s^tamp ^appi^al to the same. ^ ^ >v > ^ ^ U / H. ^ ^ \l
34. In the present case, the^^Mlttlrlfi^ in her statemelt before the Metropolitan Magistrate Ejf-^#-||^has deposed that ^hen she was standing 4itside the hous^fife^^^i she was fbrcefllly picked up by the five%ccused^pksoiis>^'JH[dw#er,-:myh'er-;statement before the court she maae improvement an^^^tated that^^she was dragged by accused Bunty. In her;ftestimony<£before |hf court the prosecutrix deposedthat the place of occurreric'e"was thicky populatedand she has raised alarm when she was dragged by the five accused persons in the presence of public person. It is highly improbable that in such a thickly populated area a girl was dragged by the accused persons in full public view. It is further astonishing that to prove this fact neither the prosecution has produced any public witness nor the prosecutrix named any person who has witnessed the incident. The prosecutrix further deposed before the court that when she was dragged by the 1118/2012,1303/2012 & 1304/2012 Page24of30 2016:DHC:8500-DB. I accused persons she raised alarm and her sister and mami were present in the house. It is again hard to believe that despite raising alarm none of them came out of the house to save the prosecutrix. The prosecutrix further deposed that the place where she was lifted to the room is just half km and there was no jhuggi adjoining the jhuggi where she was kept. However, the version of the prosecution is falsified by the fact that it was a thickly populated area and the site plan prepared by SI Vineeta Prasad Ex.PX goes on to prove that the jhuggi in question border^ by jhuggis. from both the sides. The prosecutrix has depos^"l;h'at"t^room\vhera?she'w^ held captive was locked fromroutsile due-'to'whicfili^'son sheCdid riot go out ofthe room to a^fendithe call of^^^^^icn does not appe^probable. In anattempito concealherc^^Sl^a'ndanswerto questiojnsrelatingto 9 II "l ifilI 'i her personal hygiene she im||r|#qmupon the earlier information given ft i',' to the doctor that she had h'#pken1ahy. bath by deposing in the Court 'V 7<-^ U thatsheha^taken a bath.'L^ltly; jprosecutioii has,made a case that she was raped on the first, floorjof the j^yggi' howevk',''in the staement of the prosecutrix it tsuibt JfSr^hfe^^^^ being raped was a ground floor or first floor.
35. To deal with the submission related to DNA profiling and the notification dated 07.03.2012 adduced by the counsel for the appellants, we find that as per Section 164A of the Code of Criminal Procedure, the examination of the prosecutrix by the Medical Officer is necessary in all the cases of sexual assault. Further Section 53A of the Code of Criminal Procedure also requires that the DNA test must be done in all the cases of sexual assault. It is to be noted that the 1118/2012,1303/2012 & 1304/2012 Page 25of30 impugned judgment was passed on 13.01.2012 and the notification relied upon by the counsel for the appellants was issued subsequently i.e. on 07.03.2012. Hence, it is therefore clear that it was not possible for the trial court to comply with the notification before it being notified. Moreover, it is worth while to mention that this aspect has been raised by the counsel for the appellant for the first time.
36. Having said so, it would be fruitful to mention the view ofthe Hon'ble Supreme Court in Krishan Kumar Malik Vs. State reported in (2011) 7 see 130, whereicis^it was- observed that after incorporation of Section 53-A, iffias become ne|^e|sary for th^prd^cution to conduct DNA test in all sueh cases.'^ The relevant para 44 is a^nder: < yty/^ ft #7^ 'I "'M'' -f' O \ • #7 44mNoi^ after the'mcprpojfi^ipn ofSectiom^3(^ in the Criminal Procedure Cpdef^lef 23.06.2006, brd^ght to oit^notice by learned Cotinsekfor the Respondent-State, it Was become necessgi^'^or^tj^e prosecution to gJ infor DNk test in suchj'^pS^^cases-, facilitating the prosecution to pro^e iti(^cgie^ accus^. Prior to 200.6, even'without me~af0ism^p00ifi^^ p^pvision in the Cocie ofCriminal Procedure^pfds0fypS'^icould have still resortedHg'this^procedure^bfjgetiing We'DNA test or analysis andmateHing[ofWemi^^,of'the^^ with that found on the undefgarmeijts ofthe prosecutrix to make it a fool proofcase, but they did not do so, thus they must face the consequences."
37. Therefore, after a conjoint reading of the statute and the view of the Hon'ble Supreme Court, we conclude that in view of the false rape cases filed in the present scenario, it becomes mandatory for the prosecution to conduct the same and to prove the allegations against the accused beyond all reasonable doubt. \7 Medical Examination:
38. Dr. Mamta, Senior Gynae examined the prosecutrix and opined in MLC Ex. PW5/A that hymen was torn, no external injury over abdomen or breast were found, no bleeding, admitting 2 fmger test easily.
39. As per the case ofthe prosecution the prosecutrix was raped three four times by the accused persons. In her cross examination, in response to the court question, the prosecutrix testified as under: Court Ques: WhosiKommittedfrapem (kis kisne rape kivatha) ^ kiya tha) Q' Ans.: Sabhi^ne^S-3 baanfJ^^tha. 4canidenti^.'alljhejiccusedpersd^sf The fact of" this answer to^4lie^couft,tiuestion w^Md mean that five persons rapedthe prosecuir;lxi2-3' timers, but, the medical; examination s I ^' does not|show any external'injury on the body of the prosecutrix which prdves that she waf^^ang/rapifiiby the accused%)ersons three four times for three dam
40. In the case ofPratap^Mishf^jys. St0e ofOf/|id^^eported in (1977) 3 see41, the Hon'ble5|Bp||!Wd%6uffMiie^^^^ observartions in this regard: ' "The medical evidence, therefore, clearly discloses that the prosecutrix does not appear to have put up any resistance to the alleged onslaught committed on her by the appellants. From this the only irresistible inference can be that the prosecutrix was a consentingparty which would be reinforced by other circumstances to which we shall refer hereafter." 1118/2012,1303/2012 & 1304/2012 Page27of30 \^K V
41. In Lalliram & Anr. Vs. State ofMadhya Pradesh reported in (2008) 10 see 69, wherein the Hon'ble Supreme Court took the similar view as taken in the case ofPratap Mishra (supra). The relevant para is as under: "It is true that injury is not a sine qua nan for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in Pratap Misra and Ors. v. State ofOrissa 1977 Cri LJ 817 where allegation is ofrape by many persons and se:ve^al=tim^~^t no injury is noticed that certainlyjs an inj^^tcfnt^^cfof^^ the prosecutrix's version is crediblyAh nS cc^rJbp^rqtionJs necessary. But ifthfprf>;^utrix's§m^siQn is not4^k^l^then there
42. Keeping in view the obsei^atidn niade by the Hon'ble Supreme Court !} I If we are of the opinion that ^her^(there has been any real resistance I f there is bound to be locaf^:ii|^and rnarks ofviolen^ on the body and the linibs of,the^victim!^^|may also'note.that^ilsuming out of fear, the victim di'd^not put^any_^resis1ence'even'then the medical evidence does notWppoii;Si'^^^se prosecution in view of the number of people and th^nufiiiBer of times, the victim was raped during the period between 19"^ - 21®* March, 2011. The medical evidence, therefore, clearly discloses that the prosecutrix does not appear to have put up any resistance to the alleged onslaught committed on her by the appellants. From this the only irresistible inference can be that the prosecutrix was a consenting party. If the story of the prosecutrix was true, then there would be injuries or atleast bmise-mai'k on the breasts or chest or on the thighs or other 1118/2012, 1303/2012 & 1304/2012 Page28of30 hi V part of the body. The learned Sessions Judge seems to have brushed aside this important circumstance on the ground that the prosecutrix was suffering from Eplilepsy.
43. From the above above discussion, it has emerged on record that there are several discrepancies and gaps in the evidence and also other circumstances make it highly improbable that such an incident ever took place. It is also inevidence that onthedate ofexamination ofthe prosecutrix no physical injury was found on her person or on her private parts which suggested %at|;there was no element offorce upon her. The prose cutnx^jfiad ^givei^a most improbable and unacceptable version of|^ent^Jtlat the.qijpellants^c^^^ her for about three day^f Irp^m the abbyeliiotedfcontradicti^^^ we are of the considerel view that the'testimony of the prosecutrixr^suffers from material liscrepancies on vaiAra&pects and not wortl^ ofcredence and does hot inspire confid^nce'jv s?;, - ' % j.
44. "Summun ius summa iniuHa" is an ancient 'legal maxim cited by Cicero, which mQms^Extremejustice is extreme injustice. It implies that to apply the law ot the-^litter williout takmg into account the extenuating circumstances''caff 'otten eclipse the gospel truth. It becomes the largest form of injustice.
45. For these reasons, therefore, we are satisfied that the prosecution has failed to bring home any of the charges against the appellants. The appeals are accordingly allowed, the convictions and sentences passed on the appellants are set aside and the appellants are acquitted of all the charges framed against them. The appellants are now directed to be released forthwith. 1118/2012, 1303/2012 & 1304/2012 Page29of30
46. Trial Court Record be returned.
47. Copy ofthis decision be sent to the Superintendent- Central Jail, Tihar for updating the jail record. CRL.M. (BAIL) 604/2016 and CRL.M. (BAIL) 530/2016
48. In view ofthe judgment passed in the appeals, the present applications are rendered infructous. MAY,1^^6^ gr// Crl. Appeals. 970/2012,1119/2012, ^ilRT i. \ -V
G. S. SISTANI, J.