Sharwan vs State on 19 May, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 18th January, 2017
Decided on: 19th May, 2017

+ CRL.A. 73/2016

SHARWAN ….. Appellant
Represented by: Mr. Yogendra Verma, Adv.

Versus

STATE ….. Respondent
Represented by: Mr. Hirein Sharma, APP with
SI Santosh PS Tilak Nagar.

CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

1. Sharwan challenges the impugned judgment dated 21st December,
2015 convicting him for offences punishable under Section 363/366/376 IPC
and the order on sentence dated 22nd December, 2015 directing him to
undergo rigorous imprisonment for a period of three years and to pay a fine
of `1,000/- for offence punishable under Section 363 IPC, rigorous
imprisonment for a period of three years and to pay a fine of `2,000/- for
offence punishable under Section 366 IPC and rigorous imprisonment for a
period of seven years and to pay a fine of `5,000/- for the offence punishable
under Section 376 IPC.

2. Assailing the conviction, learned counsel for the appellant submits that
initially the complaint was of molestation only, however, later on,
allegations of rape were leveled which are clearly afterthought. He further
added that the prosecutrix had herself stated in her deposition in Court that

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she resided in a thickly populated area and if anyone raises alarm, it can be
easily heard. Thus, it is highly improbable that despite her shouting to save
nobody came to her rescue. Further, despite identifying the car and its driver,
she stated that she cannot give the number of the car as she was illiterate.
During her cross-examination, she could not state whether Sharwan or
someone else was driving the car. As per the MLC of the prosecutrix, her
version of forcefully taking her and committing rape upon her is not fortified
as there was no external injury. Lastly, it is contended that the appellant has
been falsely implicated in the present case due to dispute over the jhuggi.
Placing reliance on the decision reported as (2012) 7 SCC 171 Narender
Kumar v. State (NCT of Delhi
), it is submitted that it is not the duty of the
defence to explain how and why the accused has been falsely implicated,
rather the prosecution case has to stand on its own legs and cannot take
support from the weakness of the defence. Statement of the prosecutrix has
to be read with the other evidence in totality and when the story projected by
the prosecutrix is highly improbable, it should not be believed. Referring to
the decision reported as (2010) 4 SCC 115 Jai Krishna Mandal V. State of
Jharkhand
wherein the appellant was falsely implicated due to deep enmity
between the family of the prosecutrix and appellants and there was ample
opportunity for the prosecutrix to raise hue and cry but she did not attempt to
do so and there was no injury on the prosecutrix, learned counsel contends
that the appellant be acquitted.

3. Learned APP for the State on the other hand submits that as per the
testimony of PW-6 Devender Kaur, the car was used by Sharwan which was
further fortified by the fact that the keys of the car were given by PW-5
Munni Devi, mother of Sharwan. Age of the prosecutrix has been proved by

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the testimony of Dr. Akansha who opined the same to be between 15 to 17
years. Version of the prosecutrix is corroborated by the testimony of Dr.
Komila, who found that the hymen of the prosecutrix was freshly torn.
Lastly, with respect to the dispute over the jhuggis, no question was put to
the prosecutrix in her cross examination.

4. Process of law was set into motion on 30th July, 2011 around 12:56
A.M. on receipt of a PCR call stating that “Indira Colony, Tilak Nagar ek
ladke ladki ke saath cherkhani ki hai” which was recorded vide DD No. 6A
and assigned to PW- 11 HC Vijender Singh who along with Constable Sunil
went to the spot and met PW-1 the prosecutrix and her aunt PW-4 who
informed that Sharwan had raped the prosecutrix in Indica car. The case was
handed over to PW-20 W/SI Rishali Yadav for investigation. W/SI Rishali
Yadav recorded the statement of the prosecutrix wherein she stated that she
lived with her parents at WZ- 143/12 Indira Colony, Tilak Nagar, New
Delhi. Her parents were in Aligarh, Uttar Pradesh for the past four months.
On 29th July, 2011, around 9:00 P.M., when she was going to the shop to buy
to some article, Sharwan, who stayed in the neighbourhood and whom she
knew well, came in Indica car bearing number DL-3CAF-9038 and forcibly
pushed her into the car. He took her towards Chowkhandi and forcibly did
‘galat kaam’ with her in the car against her will by making physical relations
with her. Thereafter, he left her near the drain. After reaching home, she
narrated the entire incident to her aunt. She stated that they did not call at
100 number for some time due to their honour. However, after some time
they called up at 100 number around 1:00 A.M. Sharwan’s car, in which he
raped her, was parked outside his jhuggi.

READ  Shivala Bhikhamsar vs Bablir Kumar Jatti And Ors on 8 May, 2017

5. On the aforesaid statement of the prosecutrix Ex. PW-1/A, FIR No.

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245/2011 was registered at PS Tilak Nagar under Section 376 IPC. The
prosecutrix was taken to DDU Hospital for her medical examination.
Thereafter, W/SI Rishali Yadav along with the prosecutrix and her aunt went
to the spot and found the Indica car parked outside the jhuggi of Sharwan
and on pointing out by the prosecutrix, it was seized vide seizure memo Ex.
PW-1/B. She also prepared the site plan Ex. PW-20/C at the instance of the
prosecutrix. The prosecutrix was produced before the learned Metropolitan
Magistrate for recording of her statement under Section 164 Cr.P.C. On 31st
July, 2011, Sharwan was arrested from Subhash Nagar Metro Station vide
arrest memo Ex. PW-1/D. He was also taken to DDU Hospital for his
medical examination. On 6th August, 2011, Smt. Munni Devi, mother of
Sharwan, produced the keys of the Indica car which were seized vide memo
Ex. PW-5/A. Car was inspected, photographs were taken and chance finger
prints were lifted. After filing of the charge sheet, charge for offences
punishable under Sections 363/366/376 IPC was framed against Sharwan
vide order dated 2nd February, 2012.

6. Prosecutrix deposed before the Court in sync with her statement made
to the police. She further added that her parents had gone to Aligarh 4-5
days prior to the incident. She shouted in loud voice to save herself when
Sharwan had pushed her inside the car, however, nobody listened to her
voice as the glasses of the doors of car were closed at that time. During her
cross examination, she could not tell the number of the car in which she was
raped. She was confronted with her statement Ex.PW-1/A wherein it was not
so recorded that she was living in the house with her two brothers and sister
at the time of incident. She was also confronted with her statement Ex.PW-
1/A wherein it was not so recorded that her three aunts (mausis) were also

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living in the same house on the day of incident. She was further confronted
with her statement Ex.PW-1/A wherein it was not so recorded that a long
shining car passed through her and Sharwan was sitting on the back seat of
the car. She was confronted with her statement PW-1/A wherein it was not
so recorded that she shouted in loud voice to save herself but nobody
listened to her. She admitted that her residence was situated in a thickly
populated area and that if somebody raises his or her voice then it would be
heard by the persons in the neighbouring jhuggis. She added that she cannot
say whether Sharwan was driving the vehicle or not. Someone was driving
the vehicle and she cannot identify him. She admitted that she was not aware
of the contents of her statement recorded by the police officials as she is
illiterate and the same was also not read over to her.

READ  Deepak Dave vs State & Anr on 6 March, 2017

7. PW-4, aunt of the prosecutrix, deposed that on 29 th July, 2011 around
9:00 P.M., the prosecutrix went out of the house for recharging her mobile
phone and returned back at about 12:30 A.M. When the prosecutrix came
back, she stated that she was taken by Sharwan in the car and raped. The
clothes of prosecutrix were stained with blood. During her cross
examination, she denied the suggestion that she made a call at 100 number
by saying that one girl has been molested by one boy. She had stated to
police at 100 number that the prosecutrix had been lifted and raped. She
denied the suggestion that there was a dispute between family members of
prosecutrix and Sharwan for the jhuggi. She denied the suggestion that she
was intending to grab the jhuggi of Sharwan and for that reason, she had
falsely implicated him in connivance with the prosecutrix.

8. Smt Munni Devi, mother of Sharwan, stated that she had handed over
the keys of the car to the police, The car and the keys had been left at the

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jhuggi by Sharwan. During her cross examination, she stated that aunt of
prosecutrix wanted to grab her jhuggi and had falsely implicated Sharwan in
the present case in order to grab her jhuggi.

9. PW-6 Devender Kaur stated that she owned vehicle no. DL-3C-AF-
9038 Indica car. On 27th July, 2011, Sharwan, who is the friend of her son
Deepak, had taken the car. Sharwan did not turn up to return the car. When
she made enquiry from his house, she came to know that Sharwan had been
arrested in a rape case and the incident took place in the aforesaid car.

10. PW-10 Dr. Kumar Narender Mohan, Medical Officer, DDU Hospital,
deposed that on 30th July, 2011, the prosecutrix was examined by Dr. Deep
Shikha under his supervision. Dr. Deep Shikha was on maternity leave and
he had seen her signing and writing during the ordinary course of her duties.
As per the MLC Ex.PW10/A, on local examination of the prosecutrix, mild
swelling with mild tenderness was found over right knee. Sharwan was
examined by Dr. Alok who had left the services of the hospital. As per the
MLC of Sharwan Ex. PW-10/B, there was no visible fresh external injury
and on local examination, smegma was found absent and there was nothing
to suggest that Sharwan could not perform sexual act.

11. PW-8 Dr. Komila stated that on 30th July, 2011, she was posted as
Senior Resident Gynae in DDU Hospital and had examined prosecutrix who
was referred by Casualty Medical Officer Dr. Deep Shikha. Her salwar and
undergarments were soiled with blood and were handed to police. On local
examination, fresh hymen tear was present but no active bleeding was noted
at that time nor any external injury marks were seen. On per vaginal
examination, one finger was easily admitted. Vaginal smear and high
vaginal swab were taken, the cervix was forwards and uterus was

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retroverted, size not made out as the prosecutrix was keeping very tight,
bilateral fornices were free and non tender. She exhibited the MLC prepared
by her as Ex. PW-8/A. During her cross examination, she stated that fresh
hymen tear was possible by way of any injury and added that one of the
major causes of hymen tear was sexual act.

12. PW-12 Dr. Akansha, SR, DDU Hospital, stated that on 9th August,
2011, prosecutrix was brought to the hospital for her assessment of age. She
had examined her X-ray plates and found as per X-ray plates that she was of
age between 15 to 17 years. She exhibited the report as Ex. PW-12/A. Final
opinion as to the age of the prosecutrix was given by Dr. Sunil Kakkar,
Chairman of the Board, who vide report Ex. PW-12/B opined that
prosecutrix was above 15 years and below 17 years.

13. DW-1 Amit stated that on 29th July, 2011, around 5:00 P.M., Sharwan
had gone along with him to his house for attending ‘Kheer Puri Ceremony at
Kanwar’ and Sharwan remained with him till 4:00 A.M. and thereafter he
returned. Though DW-1 has set up a plea of alibi of Sharwan stating that he
was with him at the relevant time, no such plea was taken in the statement
under Section 313 Cr.P.C. nor was the same put to the witnesses. Not being
put to the prosecution witnesses, the plea of alibi is thus clearly an
afterthought.

READ  Harshadgiri Mansukhgiri Goswami vs State Of Gujarat on 28 June, 2017

14. Sharwan in his statement under Section 313 Cr.P.C. stated that he had
been falsely implicated in the present case by the prosecutrix as there was a
dispute regarding his jhuggi where the prosecutrix was residing with her
mother as a tenant. They were not paying rent for the jhuggi and when the
mother of Sharwan demanded the arrears of rent, the prosecutrix and her
mother threatened to falsely implicate him. Prosecutrix along with her

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parents was still residing in his jhuggi and not paying any rent.

15. As noted above, Devender Kaur stated that the car was with Sharwan.
In his statement under Section 313 Cr.P.C. Sharwan admitted that he was
working as a driver on the car of Devender Kaur, thus, fortifying the version
of the prosecution that car was in possession of Sharwan at the relevant time
further corroborated by the fact that the mother of Sharwan handed over the
keys of car to the investigating officer. From the evidence of Devender Kaur
and the fact that the keys of the car were handed over later to the police
officer by the mother of Sharwan, the non-availability of chance print/finger
print of Sharwan on the vehicle do not absolve him of the offence.

16. Though the plea of the appellant is of false implication as family of
the prosecutrix intended to grab the jhuggi. This suggestion was given to
PW-4 aunt of the prosecutrix who denied the same. The appellant led no
evidence to show that his mother was the owner of the jhuggi in which the
prosecutrix and her aunt were residing. Thus, Sharwan has not even
probabilized his case of false implication, Mother of Sharwan appeared in
the witness box as PW-5 in respect of handing over the keys of the car to the
police which was seized vide seizure memo Ex.PW-5/A. Even this witness
in her examination-in-chief did not state that the family of the prosecutrix
wanted to grab the jhuggi which was sought to be elicited by learned counsel
for the appellant in the cross-examination.

17. Learned counsel for the appellant has strenuously argued that despite
the fact that the prosecutrix had occasion to shout which would have been
heard by the neighbouring people as it was a thickly populated area. This
contention is negated by the cross-examination of prosecutrix wherein she
stated that though she shouted however in view of the glasses of the vehicle

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rolled up nobody could hear her voice. The prosecutrix was a minor at the
time of the commission of offence as proved by the depositon of Dr.
Akansha and the opinion Ex.PW12/B. Her testimony is duly corroborated
by her medical evidence which shows mild swelling with mild tenderness
over right knee thereby showing that she was dragged, injury on the private
part which is more likely by forceful sexual intercourse and the blood stained
clothes of the prosecutrix recovered by the police officer which blood was of
human origin as opined vide Ex.PW20/E.

18. Considering the evidence led by the prosecution, it can be safely held
that the prosecution has proved beyond reason doubt commission of offences
punishable under Sections 363/366/376 IPC against the appellant. The
impugned judgment of conviction and order on sentence are upheld.

19. The appeal is dismissed.

20. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.

21. TCR be returned.

(MUKTA GUPTA)
JUDGE
MAY 19, 2017
‘v mittal’

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