Dinesh Chand Yadav vs State on 16 August, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: August 03, 2017
% Judgment Delivered on: August 16, 2017
+ CRL.A. No.451/2017
DINESH CHAND YADAV ….. Appellant
Through: Mr.Sitab Ali Chaudhary,
Advocate.

versus

STATE ….. Respondent
Through: Ms.Kusum Dhalla, APP for the
State with W/SI Gunjan, PS
Pandav Nagar.

CORAM:
HON’BLE MS. JUSTICE PRATIBHA RANI

JUDGMENT

1. The appellant Dinesh Chand Yadav has preferred this appeal
against the judgment dated 21st November, 2016 and order on
sentence dated 9th December, 2016 whereby he has been convicted for
committing the offence punishable under Section 328/376/392/411
IPC and sentenced as under:

(i) U/S 328 IPC : to undergo RI for one year and
to pay a fine of ₹1000/- and in
default of payment of fine to
undergo SI for 15 days.

(ii) U/S 376 IPC : to undergo RI for ten years and

CRL.A. No.451/2017 Page 1 of 13
to pay a fine of ₹5000/- and in
default of payment of fine to
undergo SI for three months.

(iii) U/S 392 IPC : to undergo RI for two years and
to pay a fine of ₹1000/- and in
default of payment of fine to
undergo SI for 15 days.

(iv) U/S 411 IPC : to undergo RI for two years.

All the sentences were ordered to run concurrently with benefit
of Section 428 Cr.P.C.

2. Law was set in motion on a Police Control Room on
29th December, 2013 at about 2:10 am being informed by the PCR van
as under:-

“AKSHARDHAM PULL KE UPPAR EK LADY JO ROO
RAHI HAI PARESHAN HAI YAHAN PAR BAITHI HUI
HAI”

3. The information was received vide DD No.3A at PS Pandav
Nagar, SI Sachin Tomar (PW-10) alongwith W/Ct.Geeta reached the
spot in ERV-12 (gypsy) and found the complainant ‘A’ (name
withheld to conceal her identity) sitting there in drowsy condition.
She was taken to LBS Hospital where her MLC No.21328 was
prepared and at that time she was ‘Unfit for statement’. At about 8.00
am, she was declared ‘Fit for statement’. Her statement was recorded
wherein she stated that she was forced to consume alcohol by the
appellant/convict and thereafter she was raped by him and his friend
namely Dharmender @ Parvesh and also robbed of her jewellery, cash

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and mobile. On the basis of statement made by the complainant, FIR
No.629/2013 under Section 328/392/411/376 IPC was registered at PS
Pandav Nagar.

4. During investigation, Dharmender @ Parvesh friend of the
appellant could not be traced, hence chargesheet was filed only against
the appellant.

5. The appellant was charged for committing the offence
punishable under Sections 328/392/411/376-D IPC to which he
pleaded not guilty and claimed trial.

6. To bring home the charge, the prosecution has examined 30
witnesses. Although initially, the appellant suggested to the
complainant (PW-2) that he had physical relation with the
complainant (PW-2) with her consent but during his examination
under Section 313 Cr.PC, it was a case of total denial.

7. Learned Trial Court held the appellant guilty for the offences
punishable under Section 328/392/376/411 IPC and sentenced in the
manner stated above.

8. The appellant is challenging his conviction inter-alia on the
following grounds:-

(i) All the witnesses in this case are police officials or the doctors
and there is no eye witness to the occurrence.

(ii) The wife of the appellant was not examined by the prosecution
to ascertain where he was on that night.

(iii) There is discrepancy in the statement of complainant as to
whether the liquor was purchased by the appellant or was brought by
his friend namely Dharmender @ Parvesh.

CRL.A. No.451/2017 Page 3 of 13

(iv) The solitary statement of the complainant was not sufficient to
convict him especially when she has admitted that she was having
friendly relations with the appellant and they used to talk frequently
on phone and she had met him earlier also.

(v) The learned Trial Court failed to consider the material
contradictions in her deposition that initially the complainant stated
that she consumed alcohol willingly thinking it to be a cold drink but
subsequently, she stated that she was forced to consume alcohol by the
appellant.

9. Ms.Kusum Dhalla, learned APP for the State has submitted that
in a case of rape and that too of a married lady, no lady would put her
married life to risk by making such type of statement and her solitary
statement is sufficient to base the conviction. Learned APP for the
State has submitted that on 29th December, 2013 at 2.10 am she was
seen sitting on the flyover in the cold winter night. When she was
taken to the hospital she was ‘unfit for statement’ which is sufficient
to prove that the complainant was not a consenting party and that the
appellant has rightly been convicted for the aforesaid offences.

10. I have considered the rival contentions and carefully perused the
Trial Court Record.

11. During the course of hearing of this appeal, learned counsel for
the appellant has contended that the physical relation with the
prosecutrix (PW-2) was a consensual relationship which is established
from their Call Detail Records as well her admission that she had
earlier also met the appellant/convict and had accompanied him on the
date of occurrence on her own sweet will. Therefore, it is necessary to

CRL.A. No.451/2017 Page 4 of 13
refer to the documentary evidence as well the testimony of PW-2 the
prosecutrix at different stages i.e. while getting the FIR registered,
making statement under Section 164 Cr.PC and her deposition in the
Court. It is not in dispute that the prosecutrix herein is a married lady
having two grown-up children and that on the night intervening
28th/29th December, 2013 she was present with the appellant in his
vehicle and accompanied him on her own sweet will. The entire
controversy revolves around the issue as to whether the appellant had
physical relations with the prosecutrix with her consent or she was
subjected to forcible sexual intercourse.

12. DD No.3A at 2:10 am was recorded at PS Pandav Nagar on the
basis of the information received from the Police Control Room
reporting about the lady present on the flyover on 29th December,
2013 and her condition, W/Ct. Geeta had to accompany him to render
necessary assistance to the lady victim. As per MLC Ex.PW7/A,
prepared at 3.10 am by PW-2 Dr.Virender Kumar who found the
complainant to be in a drowsy state with alcohol smell positive and
slurring speech. She was ‘Unfit for statement’ at that time. It is also
recorded on the MLC that at 8.00 am she was declared ‘Fit for
statement’ by the doctor at LBS Hospital. Thereafter her statement
Ex.PW2/A was recorded which formed basis for registration of FIR
No.629/2013, PS Pandav Nagar wherein she narrated the following
facts:-

(i) She was aged about 31 years and got married 12 years ago. Her
daughter was aged 11 years and son was aged 7 years at that time. Her
husband was running a garments factory.

CRL.A. No.451/2017 Page 5 of 13

(ii) About one month prior to this occurrence, she received a call on
her mobile No.88xxxxx642 (number withheld) from mobile
No.9654193234 which was a wrong number. But thereafter she
started receiving calls frequently from the same number and the caller
disclosed his name as Dinesh Yadav employed as Cab Driver with a
Call Centre.

(iii) The caller used to insist for meeting for which initially she
declined.

(iv) A day before 29th December, 2013, he again called on her
mobile to meet him as he was in Kamla Nagar near her house. She left
home to meet him and accompanied him in his vehicle which was of
white colour.

(v) They continued roaming here and there for about two hours and
thereafter he called one of his friend asking him to bring two bottles as
there was someone with him.

(vi) Dharmender (friend of convict) was made to sit into the vehicle
who was carrying two bottles of alcohol and glasses and she was
forcibly made to drink alcohol saying that it was cold drink.

(vii) When she was under the influence of alcohol and was losing her
consciousness, she was raped by the appellant as well his friend in the
moving vehicle and thereafter she was dropped near the flyover.

(viii) Before dropping her they also took the golden chain weighing
2.5 tolas, ear kundals, diamond nose pin, purse containing ₹20,000/-
and mobile phone. (Ex.PW-2/A).

13. In her statement (Ex.PW2/K) under Section 164 CrPC, the
prosecutrix ‘A’ has stated that she was married to Mohd. Sharif about

CRL.A. No.451/2017 Page 6 of 13
12 years ago and had two children. She started knowing the convict
one month prior to this incident when she received a call from
unknown number informing that company was selling affordable
phone for which she refused. Same day she received a call from the
convict informing her that the person who called from the company
had given him her mobile number and he started insisting her for
which she refused. When he repeatedly insisted for meeting and
asking about her problem, as she was passing through a disturbed
matrimonial life, she went to meet him on 4 th December, 2013 at ISBT
treating him as his brother. When she was going on rickshaw he
called on her mobile and projected himself to be her friend and
requested her to give him some money as he was in need. She helped
him as a friend by giving him ₹1500. She treated the appellant as her
friend. But the appellant was insisting her to marry him at all costs
despite being informed that she was already married. He wanted her to
elope with him with ornaments and money and also to give him some
money to arrange their Court marriage for which once he had taken
₹12,000/- from her purse. She again received a call about 6-7 days
prior to her making the statement (statement under Section 164 Cr.PC
was recorded on 6th January, 2014) and she again went to meet the
convict who was alone in the vehicle. The appellant purchased liquor
from a theka and forced her to consume the same. She started feeling
giddy. He also called one of his friend Dharmender @ Parvesh. Both
of them committed rape on her after removing her salwar and she was
also given beating. The convict Dinesh also removed her chain,
kundal, pendal, nose pin as well as her mobile.

CRL.A. No.451/2017 Page 7 of 13

14. When the prosecutrix was examined during trial as PW-2, she
stated that though she was married and having two children, she was
having some dispute with her husband. The appellant started calling
her frequently and insisted on marrying him despite knowing her
marital status. He also projected himself to be unmarried. She
admitted having met the appellant first time in December, 2013 near
ISBT. She also stated that on the intervening night of 28/29 th
December, 2013, she was called by the appellant at Ghanta Ghar,
Subzi Mandi and then she was taken by him in his white car and on
the way, he purchased liquor and forced her to consume. He also
called his friend. She was raped by them and the ornaments which she
was wearing at that time and her other articles were robbed.

15. During her cross examination, she denied the suggestion that
she was deposing against the appellant under pressure of her husband.
She also denied the suggestion that she made physical relations
with the appellant of her free will and consent.

16. The appellant has tried to establish the plea of consent in having
physical relationship with PW-2 mainly on the basis of the following
admissions by PW-2:-

(i) She was frequently in contact with the appellant as is
established from the Call Detail Records of their mobile.

(ii) She herself left the some on the evening of 28 th December,
2013, to join the appellant in his car.

(iii) Prior to that date also she had been frequently talking to the
appellant and had been meeting him.

CRL.A. No.451/2017 Page 8 of 13

(iv) On the date of occurrence also she left her home voluntarily to
join the company of the appellant and the appellant had no reason to
have forcible sexual intercourse with the prosecutrix who was a
married lady with two grown-up children and was providing the
money to the appellant to arrange for their Court marriage.

17. Consent for the purpose of Section 375 IPC has been dealt with
by the Supreme Court in the case Roop Singh vs. State of Madhya
Pradesh (2013) 7 SCC 89, it was held as under:-

“9. In State of U.P.vs. Chhotey Lal
MANU/SC/0053/2011 : (2011) 2 SCC 550, the following
passage from the judgment of a three-Judge Bench of this
Court in State of H.P. v. Mango Ram on the meaning of
“consent” for the purpose of the offence of rape as
defined in Section 375 IPC, is quoted: (Chhotey Lal
MANU/SC/0053/2011 : (2011) 2 SCC 550, SCC p. 560,
para 20)

“20…… ’13……Consent for the
purpose of Section 375 requires voluntary
participation not only after the exercise of
intelligence based on the knowledge of the
significance and moral quality of the act but
after having fully exercise the choice
between resistance and assent. Whether
there was consent or not, is to be
ascertained only on a careful study of all
relevant circumstances. (Mango Ram case
MANU/SC/0527/2000 2000) 7 SCC 224,
SCC 230-31, para 13)”

18. It is a case where the complainant does not dispute that she used
to talk very frequently on the mobile with the appellant and had even

CRL.A. No.451/2017 Page 9 of 13
paid money to him to arrange for the Court marriage. Thus, the
contention raised on behalf of the appellant to the extent that the
complainant had accompanied the appellant from her house
voluntarily is not in dispute. Their frequent talks, meetings, feelings
for each other are admitted facts. The fact which the prosecution was
required to prove to base the conviction of the appellant was that the
physical relation by the appellant with her on the night intervening
28/29th December, 2013 was without her consent. While noting that
during his examination under Section 313 Cr.PC the appellant has
totally denied the incident despite suggestion to PW-2 during her
cross-examination that he had physical relations with her only with her
consent, the plea of consent even at this stage fails for the following
reasons:-

(i) Had the complainant been a consenting party to the physical
relation, she would not have been left on Akshardham Flyover by the
appellant past midnight and that too after depriving her of her
woollens. Her cap and shawl were recovered from his car and seized
vide seizure memo Ex.PW2/D.

(ii) During the last week of December in Delhi, the winter is at its
peak. The physical and mental condition of the complainant when she
was found sitting at the flyover was such that her speech was slurring
and she was crying. She had neither the woollen clothes over her
body to protect herself from the cold nor the mobile phone to seek any
help by calling the police or friends/relations. Had she been a
consenting party, she could not have been left there in a chilly winter
night in that condition.

CRL.A. No.451/2017 Page 10 of 13

(iii) Had there been a consent by the complainant to have physical
relations with the appellant, he would not have taken away her
jewellery, mobile and cash and leave her far away from her house to
suffer in that winter night in drowsing condition.

(iv) The recovery of mobile phone and ornaments of the
complainant from the possession of the appellant and seized vide
seizure memo Ex.PW2/H and Ex.PW2/J respectively further prove
beyond any doubt that it was not a case of having physical relations on
the consent. She accompanied the appellant in his car voluntarily and
thereafter she was made to consume alcohol. While she was under the
influence of alcohol, not only she was raped but was also deprived of
all her belongings including mobile and left at the flyover where there
was no help in sight for her at/after midnight on 28/29 th December,
2013. But for the intimation given by Police Control Room to the
concerned Police Station informing about her location and condition
she would have remained there throughout the night. All these facts
negate the plea of consent.

19. It has already been noted that during cross examination of PW-2
‘A’ – the complainant, the appellant has specifically taken a plea of
having the physical relations with her on that night with consent but
during his statement under Section 313 Cr.PC, it was a case of total
denial.

20. In the case Munna Kumar Upadhyay vs. State of Andhra
Pradesh (2012) 6 SCC 174 it was held as under:-

CRL.A. No.451/2017 Page 11 of 13

‘It is settled law that the statement under Section 313
Code of Criminal Procedure is to serve a dual purpose,
firstly, to afford to the Accused an opportunity to explain
his conduct and secondly to use denials of established
facts as incriminating evidence against him.’

21. The contention of the appellant that his wife was not questioned
by the police as to where he was during that night is of no relevance
when the entire recovery has been effected from his car/house at his
behest. The appellant has filed to explain how the belongings of the
prosecutrix (PW-2) came into his possession and recovered from him.

22. Since the plea of the consent taken by the appellant during cross
examination of PW-2 fails, the learned Trial Court has rightly
appreciated her testimony to hold the appellant guilty for committing
the offence punishable under Section 376 IPC which calls for no
interference by this Court.

23. Taking into consideration the totality of the circumstances and
on appreciation of entire evidence supported by the doctor’s opinion, I
am of the considered view that there is nothing to disbelieve the
version of the prosecutrix. The appeal seeking acquittal on the plea of
consent fails and is accordingly dismissed.

24. As no argument has been advanced on behalf of the appellant in
respect of the conviction under Section 328/392 IPC, the conviction of
the appellant for the offence punishable under Sections 328/392 IPC is
also maintained.

25. Considering that the appellant has been convicted for
committing the offence punishable under Section 392 IPC, he could
not have been convicted for committing the offence punishable under

CRL.A. No.451/2017 Page 12 of 13
Section 411 IPC in respect of the same property. Hence the
conviction of the appellant under Section 411 IPC cannot be sustained
and the same is hereby set aside.

26. In view of the above discussion the appeal is dismissed except
to the extent that his conviction for the offence punishable under
Section 411 IPC is set aside for the reason recorded in para 24 above.

27. TCR be sent back alongwith copy of this order.

28. Copy of the order be also sent to the appellant through
concerned Jail Superintendent.

PRATIBHA RANI
(JUDGE)
AUGUST 16, 2017
‘st’

CRL.A. No.451/2017 Page 13 of 13

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