Sanjeev Kumar @ Kala v. State (NCT of Delhi)

1 There are two appellants before this court namely Sunil and Crl. AppealNos.962/2013 and 963/2013 Sanjeev Kumar @ Kala. Both of them are aggrieved by the impugned judgment and order on sentence dated 22.01.2013 and 28.01.2013 wherein each of them had been convicted for the offence under Section 376(2)(g) of the IPG. They have also been separately convicted under Sections 366/342 read with Section 34 of the IPG. The sentences awarded to each of them is RI 10 years for their conviction under Section 376(2)(g) of the IPG and to pay a fine of Rs.10,000/- in default ofpayment of fine to undergo RI for 2 years. For their conviction under Section 366 of the IPG they had been sentenced to undergo RI for a period of 7 years and to pay a fine of Rs.5000/- in default of payment of fine to undergo RI for 1 year. For their conviction under Section 342 of the IPG they had been sentenced to undergo RI for a period of 10 years and to pay a fine of Rs. 1000/- in default of payment of fine to undergo RI for a period of 3 months. Sentences were to run concurrently. Benefit of Section 428 Gr.P.G. had also been granted to the appellants.

2 Nominal roll of the appellant has been requisitioned. It reflects that as on date the appellants have undergone incarceration of 6 years including remissions earned by them.. Their jail conduct has been satisfactory. Crl. Appeal Nos.962/2013 and 963/2013 Page[2] of 11 3 The version ofthe prosecution has been unfolded in the testimony of the prosecutrix "SK" examined as PW-4. Her version was that she had come to live with her Tai in Delhi since last four months prior to the incident. She had come to Delhi for getting her handicap card prepared for the purpose of enabling her to obtain pension as a handicap person. While she was going to ease herselfout of the house of her Tai, a person who was residing in the neighbourhood came from the back side and gagged her mouth with the help of a cloth and took her in a room where he was rearing pigs. Another person Meenu bolted the door from outside. Appellant Sanjeev and Sunil who were inside the room committed rape upon her. First Sanjeev committed rape upon her and this was followed by Sunil. On hearing her shrieks her Bhabhi Rinki (PW-1) and Tai Raj Rani (PW-2) opened the latch from outside and came inside the room and rescued her. Police was informed. Investigation was set into motion. The accused persons who were named in the FIR had been arrested. The victim was medically examined by Dr.Palavi Singh, Sr. Gynecologist and her MLC was proved as Ex.PW-5/A. Her vaginal swabs and her clothes were seized and were sent to the FSL for an examination. FSL reports were proved CrI. Appeal Nos.962/2013 and 963/2013 through the Senior Scientific Officer Ms.Poonam Sharma (PW-9) as Ex.PW-9/A and Ex.PW-9/B respectively.

4 In the statement of the accused persons recorded under Section 313 Cr.P.C. they pleaded innocence stating that they had been falsely implicated.

5 No evidence was led in defense.

6 On behalf of the respective appellants arguments have been addressed by the respective Amicus Curiae. It has firstly been argued that the trial before the Trial Judge was not conducted in a fair manner as the witnesses particularly PW-1 and PW-2 were not effectively crossexamined. The defense of the appellants all along has been that they have been falsely implicated in the present case because of enmity. This defense has not been construed in the correct manner. No injury had been suffered by the victim which supports the stand of the accused persons that this is a false implication. Attention has been drawn to the charge which had been framed against the accused persons where reference to the place of occurrence at D-337, Gupta Colony, Prahlad Vihar was made. Submission being that the version of the prosecution is otherwise. On all counts the appellants are entitled to a benefit of Crl. Appeal Nos.962/2013 and963/2013 Page[4] of 11 doubt and consequent acquittal. Learned Amicus Curiae in support of his case has placed reliance upon 2008 CRI LJ. 2942 Suresh Govinda Nasdeve & Anr. Vs. State ofMaharashtra and AIR 2004 SC 771 Kuldiv Sinsh Vs. State ofDelhi. The first judgment is on the aspect that if no injury is suffered by the victim, the appellant is entitled to a benefit of doubt. The second judgment has been relied upon to support his submission that incriminating circumstances not put to the accused in his statement under Section 313 Cr.P.C. are Hable to be excluded from consideration.

7 Needless to state that these arguments have been refuted.

8 A large part of the version of the 4)rosecution is based upon the version of PW-4. She is a cogent and coherent witness and had clearly stated that she is a handicapped person. She had come to Delhi to get her handicapped card prepared. She was living with her Tai in Delhi for about 3-4 months. On the fateful day when she had gone to ease herself at the bathroom located outside, one person in the neighbourhood came from the back and gagged her mouth; he took her to a room where he was rearing pigs. Another person namely Meenu bolted the door from outside. Sanjeev and Sunil who were inside the room committed rape Crl. Appeal Nos.962/2013 and 963/2013 upon her one by one. 9 PW-4 was subjected to a lengthy cross-examination. She stated that there was no toilet/latrine in the house of herTai and she had to go outside. She admitted thatthere was no light onthe way. She had seen the accused persons as she was living in the neighbourhood since the last four-months. She specifically named the assailants. She had raised alarm and her Tai (PW-2) and Bhabhi (PW-1) reached the spot. Relevant would it be to note that a suggestion has been given to PW-4 that the appellants had been falsely implicated because of the enmity between the family of PW-1, PW-2 andthe appellants.

10 Version of PW-1 who is the Bhabhi of the victim has also been noted. She has fully corroborated the version of PW-4 stating that on the fateful day i.e. on 25.01.2010 her sister-in-law had gone to ease herself at the latrine neartheirhouse at about 10.00 p.m. On hearingthe cries she went outside and her mother-in-law also joined her. The victim was lying on the floor and the appellant were also present in the room. The victim informed PW-1 that rape had been committed upon her by Sanjeev and Sunil. This witness was cross-examined but no suggestion has been given to her on the lines ofthe defense sought to be raised through the cross-examination ofPW-4. 11 PW-2 (Tai of the victim) has also been examined. She had corroborated theversion ofPW-4. She stated that onhearing the shrieks of the victim she along with her daughter-in-law (PW-1) went to the spot. PW-4 was lying naked on the floor of the room. The victim had named the accused persons as her assailants. This witness was also subjected to a cross-examination but no defense on the lines now proposed inthecross-examination ofPW-4 was putto hereither.

12 The defense sought to be emanated through the cross-examination ofPW-4 appears to be a dishonest defense because it firstly did not fmd mention in the cross-examination of PW-1 and PW-2 and secondly for the reason that even in the statement of the accused persons recorded under Section 313 Cr.P.C. this defense did not emanate. Had it been an •honest defense it would have been consistent.

13 The testimony of PW-4 is fully coherent and cogent. Her statement was not recorded under Section 164 Cr.P.C. but it was her version which had become the basis of the FIR and which had set the investigation into motion and it was fully corroborated by PW-4 on oath in Court.

14 Thelawonthe aspect of a rape victim is thatif such a statement is ^credible it can become the sole basis ofconviction and this is no longer res integra. If such a version is convincing and inspires credibility there is no reason as to why the Court should not rely upon it. It does not require corroboration.

15 In the instant case, the testimony ofPW-4 is also corroborated by her medical evidence which had surfaced through her MLC.(Ex.PW-5/A). The medical record of the victim revealed that she was medically examined in the midnight at 12.55 a.m. Lacerations were seen on both sides of her labia mejora and her hymen was ruptured. The history of sexual assault had also been noted in the MLC. This MLC further reflects that the victim had been brought to the Maharshi Balmiki Hospital by the PCR and the statement ofH.C.Jaiveer (PW-11) evidences that at about 11.20 p.m. wireless message had been received in the local police station that a girl had been raped which was reduced into DD No.45A (Ex.PW-11/A). This medical evidence advances the version ofthe prosecution.

16 The scientific evidence which is the report of the FSL has been proved as Ex.PW-9/A. It evidenced human semen on the vaginal swabs Crl. Appeal Nos.962/2013 and 963/2013 Page 8 of11 f Of cr ofthe victim taken from the posterior vaginal area as also her vaginal washings. Human semen was also detected on the salwar of the victim. This piece ofevidence also advances the version ofthe prosecution.

17 The defense of the appellants as already noted supra not being consistentcould not be termed as an honest defense. The submission of the learned defense counsel that PW-1 and PW-2 were not effectively cross-examined is also negatived as both PW-1 and PW-2 were crossexamined and the victim in fact was put to a lengthy cross-examination. She was examined as PW-4. The judgment ofSuresh Givinda Na^deve &Am\ (supra) relied upon by the learned counsel for the appellants in this background would not be applicable to the factual matrix of this case. The second judgment relied upon by the learned counsel for the appellant is also inapplicable for the reason that what incriminating circumstance has not been putto the appellant in his statement recorded under Section 313 Cr.P.C. has neither been stated norargued.

18 The last submission of the learned counsel for the appellants is based on their conviction under Section 366 of the IPG. Submission being that the ingredients of aforenoted section are not fulfilled as even as per the version of the prosecution she had been taken to the room Cii. Appeal Nos.962/2013 and 963/2013 Page 9 of11 where rape had been committed upon her by another person (Meenu) and thereafter the alleged unholy act had been committed by the appellants.