$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON : DECEMBER21 2016 DECIDED ON : FEBRUARY02 2017 + CRL.A. 175/2016 & Crl.M.B.353/2016 SHIV PUJAN @ SHUBH KARAN ..... Appellant Through : Mr.S.K.Rai, Advocate. VERSUS STATE OF NCT OF DELHI ..... Respondent Through : Mr.Amit Gupta, APP. CORAM: HON'BLE MR. JUSTICE S.P.GARG S.P.GARG, J.
1. Present appeal has been preferred by the appellant Shiv Pujan Verma @Subh Karan to challenge the legality and correctness of a judgment dated 23.01.2016 of learned Sessions Judge in Sessions Case No.1
(Original No.27/11) arising out of FIR No.2
registered at Police Station Fatehpur Beri by which he was held guilty for committing offences under Section
IPC. By an order dated 30.01.2016, he was awarded Rigorous Imprisonment for seven years with fine `50,000/- under Section 376 IPC and Rigorous Imprisonment for three years with fine `10,000/- under Section 363 IPC. Both the sentences were to operate concurrently. Crl.A.175/2016 Page 1 of 10 2. In nutshell, the prosecution case as set up in the charge- sheet was that on 22.11.2010 at about 12.00 noon, the appellant kidnapped the prosecutrix ‘X’ (assumed name), aged 17 years, from the lawful guardianship of her parents and committed rape upon her. On 23.11.2010, victim’s father Ram Sukh (PW1) lodged a complaint (Ex.PW-1/A) informing that his daughter 'X' aged about 17 years was missing since 22.11.2010 at around 12.00 (noon). The Investigating Officer lodged First Information Report under Section 363 IPC. The prosecutrix was recovered after about three days. She was medically examined; her statement under Section 164 Cr.P.C. was recorded. Accused was arrested and medically examined. Statements of the witnesses conversant with facts were recorded. Upon completion of investigation, a charge-sheet was filed against the appellant for commission of offences under Sections
IPC. In order to establish its case, the prosecution examined fifteen witnesses. In 313 Cr.P.C. statement, the appellant denied his involvement in the crime and blamed one Brijesh to have kidnapped the prosecutrix; he did not examine any witness in defence. The trial resulted in conviction as aforesaid. Feeling aggrieved and dissatisfied, he has preferred the instant appeal.
3. I have heard the learned counsel for the parties and have examined the file. At the outset, it may be mentioned that the appellant’s conviction is primarily based upon the sole testimony of the prosecutrix ‘X’. It is settled law that the testimony of prosecutrix is sufficient to base conviction and no corroboration to the same is required. The nature of evidence required to lend assurance of the testimony of the prosecutrix necessarily depends on the facts and circumstances of each case. In a case involving charge of rape, evidence of the prosecutrix is most vital. If it is Crl.A.175/2016 Page 2 of 10 found credible and inspires confidence, it can be relied upon even sans corroboration. The court may, however, if it is hesitant to place implicit reliance on it, look into other evidence to lend assurance to it.
4. In the instant case, vital discrepancies and infirmities have emerged in the statement of the prosecution witnesses making it unsafe to base conviction on the sole testimony of the prosecutrix without independent corroboration. Burden to prove its case beyond reasonable doubt is upon the prosecution and it cannot take benefit of the weakness of defence of the accused.
5. While lodging complaint (Ex.PW1/A) on 23.11.2010 informing that his daughter was missing since 22.11.2010 at around 12.00 (noon), the victim’s father did not suspect appellant’s involvement in the crime. Subsequently, after about three days, the prosecutrix was recovered from the residence of one Brijesh at Sangam Vihar. In her 164 Cr.P.C. statement (Ex.PW-2/A), recorded on 27.11.2010, the prosecutrix revealed that on 22.11.2010 the appellant had enticed her to take her on his scooter to Lado Saria on the pretext that she would enjoy good eatables and life. She accompanied the appellant and he took her to his sister’s residence. She remained there for about two or three days. Thereafter, her family members brought her back. She further deposed that on 22.11.2010, the appellant had called her at his residence and none else was there at that time. He established physical relations with her against her wishes. Subsequently, he took her to his sister’s residence. She further informed that physical relations took place on 21.11.2010 and in the evening she had gone to her aunt’s residence; on 22.11.2010, the appellant brought her to his sister’s house. Crl.A.175/2016 Page 3 of 10 6. In her Court statement as PW-2, she disclosed that the appellant who lived in her neighbourhood called her on 22.11.2010 to his house and there he committed rape upon her. She further deposed that the accused had induced her to accompany him on the pretext that she would stay happy with him. He took her to the residence of a lady where she stayed for three days. Her uncle and her friend’s father brought her back after about three days. She recorded her statement (Ex.PW-2/A). In the cross-examination, she disclosed that the appellant was known to her for the last about two years. She started visiting him after two or three months after the construction of his house. She fairly admitted that the accused did not commit any ‘wrong’ act after 21.11.2010. She did not know the date when she was taken to Sangam Vihar. She further admitted that she did not disclose to sister of appellant’s friend about the commission of rape by him; she did not raise any alarm or noise on the way to Sangam Vihar. She further disclosed that the accused had also taken her to Gurgaon where he handed over her custody to his friend Brijesh. Brijesh brought her to Sangam Vihar at his sister’s residence. She further disclosed that on 21.11.2010 after the incident of rape, she had gone to her Chachi’s house. She did not disclose anything to her ‘Chachi’ and her family members. She further revealed that she had put on the clothes of Brijesh’s sister during her stay there. She denied if the accused Brijesh had taken her.
7. On perusal of the statement of the prosecutrix, it can be inferred that she was a consenting party throughout. Both the appellant and the prosecutrix were familiar with each other and she had visiting terms at appellant’s residence. Allegedly, the appellant committed rape upon her on 21.11.2010 but she did not reveal it either to her ‘Chachi’ or to any other Crl.A.175/2016 Page 4 of 10 family member. She maintained complete silence. On 22.11.2010, she accompanied the appellant to Gurgaon from where she went to Brijesh’s sister house at Sangam Vihar with him. At no stage, she raised any alarm or hue and cry for alleged abduction. She remained at the residence of Brijesh’s sister for three days. During this period, she did not complain about her alleged forcible detention or commission of rape to anyone. Subsequently, she was recovered from the said residence. She did not exhibit any abnormal conduct. Soon after her recovery, she was medically examined by MLC (Ex.PW-13/A). No external injuries, whatsoever, on her body were noticed to infer forcible rape. The alleged history given by the victim to the concerned doctor records that there was no history of sexual assault.
8. It is highly unbelievable that the victim would not inform any of her family members about the commission of rape on 21.11.2010 and would accompany the appellant to Gurgaon without raising any objection, whatsoever. During her stay for about three days away from her house, she did not bother to contact her parents.
9. Major discrepancies have also emerged as to how the prosecutrix was taken to Brijesh’s sister’s residence. PW-1 (Ram Shukh) in his examination-in-chief disclosed that on 22.11.2010 night, he had seen the accused present at his house. He further disclosed that his friend Rajbir and brother Ram Sahai had gone to the residence of Brijesh’s sister and had brought the prosecutrix from there. He did not specifically mention if the appellant had committed rape upon the prosecutrix on 21.11.2010 and the victim had disclosed about it to him any time. There is nothing on record to show if the prosecutrix was in forcible detention at Sangam Vihar. PW-5 Crl.A.175/2016 Page 5 of 10 (Seema) Brijesh’s cousin sister informed that during victim’s stay for three days, she did not tell anything to her. No other independent witness was examined by the prosecution.’ 10. Certain discrepancies have surfaced regarding the exact age of the prosecutrix. Victim’s father claimed that she was aged about 17 years, however, he did not divulge the date of birth of the prosecutrix. PW-3 (Ram Sahay) in his examination-in-chief produced original birth certificate (Ex.B-1). PW-14 Tarsem Kumar brought the relevant record and proved copy of birth certificate (Ex.PW-14/A). As per him, victim’s date of birth was 24.01.1994. In the cross-examination, the witness was unable to tell as to on what basis the said date of birth was recorded. He merely disclosed that no document was furnished by the victim’s father at the time of recording entry in the Register regarding victim’s birth. He admitted that only on the basis of verbal information, the entry in the Register was made. During investigation, ossification test of the prosecutrix was conducted and as per ossification report proved by PW-12 (Dr.Ritu Verma), her approximate age was ascertained as between 16.4 to 19 years. Apparently, the prosecutrix was above 16 years of age and her consent for physical relations did not establish commission of offence under Section 376 IPC. There is no credible evidence on record to show if the prosecutrix, aged around 17 years was enticed by the appellant to take her away from the lawful guardianship of her parents. The victim was a consenting party and had accompanied the petitioner on her own.
11. In Abbas Ahmed Choudhury v. State of Assam (2010) 12 SCC115 observing that a case of sexual assault has to be proved beyond reasonable doubt as any other case and that there is no presumption that a Crl.A.175/2016 Page 6 of 10 prosecutrix would always tell the entire story truthfully, the Hon'ble Supreme Court held:-- "Though the statement of prosecutrix must be given prime consideration, at the same time, broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there could be no presumption that a prosecutrix would always tell the entire story truthfully. In the instant case, not only the testimony of the victim woman is highly disputed and unreliable, her testimony has been thoroughly demolished by the deposition of DW-1."
12. In another case Raju v. State of Madhya Pradesh (2008) 15 SCC133 the 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 a gospel truth. "It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
13. In Rai Sandeep @ Deepu v. State of NCT of Delhi, (2012) 8 SCC21 the Supreme Court commented about the quality of the sole Crl.A.175/2016 Page 7 of 10 testimony of the prosecutrix which could be made basis to convict the accused. It held:-- "In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would 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 of such 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-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 of circumstantial 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 if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain Crl.A.175/2016 Page 8 of 10 14. intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC566 the Supreme Court held:-- "It is true that in a case of rape the evidence of the Prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."
15. In view of the wavering testimony of the prosecutrix, conviction under Section 376 cannot be sustained in the absence of any independent corroboration.
16. In the instant case, the testimony of the prosecutrix, the associated circumstances and the medical evidence leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. It shows several lacunae. There are various serious contradictions in her statement and actions, from which it can safely be concluded that she was not telling the truth.
17. In the light of above discussion, I am of the considered view that the prosecution has failed to establish its case against the appellant Crl.A.175/2016 Page 9 of 10 beyond reasonable doubt. The appellant deserves benefit of doubt. The appeal is allowed; conviction and sentence awarded by the Trial Court are set aside. The appellant shall be released forthwith if not required to be detained in any other case. Pending application(s) stand disposed of.
18. Trial Court record be sent back forthwith with the copy of the order. A copy of the order be sent to the Superintendent Jail for compliance. (S.P.GARG) JUDGE FEBRUARY02 2017/sa Crl.A.175/2016 Page 10 of 10