Ehsaan vs State on 1 November, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 1st November, 2017
7.
+ CRL.A. 683/2017
UMESH GIRI ….. Appellant
Through: Mr. Aditya Vikram, Adv.

versus

STATE ….. Respondent
Through: Mr. Radhika Kolluru, APP.
SI Amit Kumar, P.S. IP Estate.

8.
+ CRL.A. 814/2017
EHSAAN ….. Appellant
Through: Ms. Inderjeet Sidhu, Adv.

versus

STATE ….. Respondent
Through: Mr. Radhika Kolluru, APP.
SI Amit Kumar, P.S. IP Estate.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE I.S.MEHTA

I.S.Mehta, J (Oral)

1. Before us are the appeals, i.e. CRL.A. 683/2017 CRL.A.

814/2017, for setting aside the impugned judgment on conviction
dated 07.06.2017 and order on sentence dated 09.06.2017 passed by
the learned Additional Sessions Judge/SFTC-2, (Central), Tis Hazari

CRL.A. 683/2017 CRL.A. 814/2017 Page 1 of 9
Courts, Delhi in case No. 28971/2016 in FIR No.411/2016 under
Section 376-D IPC registered at police station I.P. Estate, New Delhi
wherein the appellants are convicted for the offence committed under
Section 376-D IPC.

2. The brief facts placed before us, are that, on the basis of the
information received vide DD. No. 5PPJPN, Ex-PW6/A, Sub-
Inspector Manoj along with Constable Satish reached the spot near
Mata Sundari College gate, and met the victim ‘S’ and the caller
(Benami) of the DD. No. 5PPJPN. Consequently, after making the
enquiry an FIR No. 411/2016 under Section 376-D IPC was registered
at Police Station I.P. Estate. The accused Umesh Giri who was caught
hold by the said caller, was handed over to SI Manoj at the spot and
the victim ‘S’ also identified one of the rapist at the spot, i.e. Umesh
Giri. A women Constable was called at the spot and the victim ‘S’
disclosed that two men committed rape on her person and one of them
is accused Umesh Giri. The victim ‘S’ was sent for medical
examination to the LNJP Hospital where the medical examination of
the victim ‘S’ was conducted vide MLC No. EDI 010954 and later her
statement was recorded.

3. The accused person Umesh Giri was interrogated and during
the interrogation he admitted his guilt and made disclosure statement
consequently, the co-accused Ehsaan too was interrogated and
arrested, he too admitted his guilt.

4. Thereafter, after completion of the investigation, charge-sheet
under Section 173 Cr.P.C. was filed before the Court below.
Subsequently, on 04.11.2016 charge under Section 376-D IPC was

CRL.A. 683/2017 CRL.A. 814/2017 Page 2 of 9
framed against the appellants/accused.

5. Both the appellants/accused persons did not prefer to lead
defence evidence. Consequently, the learned Additional Sessions
Judge/SFTC-2, (Central), Tis Hazari Courts, Delhi vide judgment on
conviction dated 07.06.2017 convicted the appellants for the offence
under Section 376-D IPC and vide order on sentence dated
09.06.2017 sentenced the appellants to undergo Rigorous
Imprisonment for life in case No. 28971/2016 in FIR No.411/2016
under Section 376-D IPC registered at police station I.P. Estate, New
Delhi.

6. The appellants aggrieved from the aforesaid judgment on
conviction dated 07.06.2017 and order on sentence dated 09.06.2017
preferred the present appeals on the following grounds:-
i. That the Court below went wrong in material facts placed on
record.

ii. That the PW8-Benami witness is an interested witness and his
statement could not be relied upon in absence of examination of
public witnesses.

iii. That PW2-Prosecutrix ‘S’ was planted under a conspiracy
hatched by the PW8 for extortion of money.

iv. That IO failed to prepare the site plan at the instance of the
victim ‘S’.

v. That there is no external injury found on the person of the
victim ‘S’.

vi. That the prosecution failed to discharge its case beyond
reasonable doubt and the prosecution case suffers from material

CRL.A. 683/2017 CRL.A. 814/2017 Page 3 of 9
contradiction.

7. The learned counsel for the appellants has submitted that the
appellants have not committed rape on the person of the victim. The
MLC of the victim, i.e. Ex.PW2/A, gives a different story.

8. The learned counsel for the appellants has further submitted
that there is a material contradiction between the statement of the
victim-PW2 made under Section 164 Cr.P.C. and the statement of
PW8. The benefit of the material contradiction between the statement
of the victim-PW2 under section 164 Cr.P.C. and statement of PW8
goes in the favour of the appellants and since the appellants are
innocent persons they be acquitted.

9. On the contrary the learned Additional Public Prosecutor for
the State has vehemently opposed the contention of the learned
counsel for the appellants and submitted that the judgment on
conviction dated 07.06.2017 and order on sentence dated 09.06.2017
has rightly been passed by the Court below after adducing the
documents/material placed on record, therefore, the present appeals be
dismissed.

10. The prosecution in support of its case, i.e. Ex.PW2/C, of
committing gang rape on the person of the victim ‘S’ on the
intervening night of 06.09.2016-07.09.2016 has examined the victim
‘S’/PW2 who has stated before the Court as under:-

“I am illiterate. I am housewife. I am residing with my
mother in Bhopura, Ghaziabad, U.P. My family consist
of my mother, father and brother Sonu. I am already
married and having two sons. My husband resides in the
village with my children. I go to village to meet my

CRL.A. 683/2017 CRL.A. 814/2017 Page 4 of 9
husband and children and sometimes he accompanied me
to Bhopura. On the day of incident my brother Sonu had
quarreled me and had also given me beating and on that
account I left the house and forgot the way and somehow
I reached Delhi. Two Chhora met me. They opened the
string of my Salwar and did “galat kaam”. They also give
me beating. Galat kaam means forcible sexual
intercourse with me. I can identify both the accused
persons if they are produced before me.

At this stage, both the accused persons produced
before the witness. On seeing them witness identified to
be the same person who had committed forcible sexual
intercourse with her..”

11. The prosecution in order to prove its case conducted the
medical examination of the victim ‘S’ at LNJP Hospital, Delhi on
07.09.2016 at 8 am vide MLC Ex.PW2/A. In the said MLC the
narration given by the victim ‘S’ is reproduced as under:-

“…According to patient she has lost her way to her home
and found by 2 people near Mata Sundari College who
sexually assaulted her and then left the place after giving
her Rs. 10/-…”

12. During the medical examination the details of injuries found on
the person of the victim and exhibits as shown in the MLC Ex.PW2/A
was preserved, sealed and were sent to FSL, Rohini.

13. The appellants/accused who were arrested were also medically
examined and their blood samples, clothes which they were wearing
at the time of the incident, etc. were also sent to the FSL, Rohini.

14. The contention of the learned counsel for the appellants that the
appellants did not committed rape on the person of the victim ‘S’ on
the intervening night of 06.09.2016-07.09.2016 at the bus stand near

CRL.A. 683/2017 CRL.A. 814/2017 Page 5 of 9
Mata Sundari College does not seems to be correct in presence of the
statement of PW2.

The statement of PW2 is natural, consistent and inspires
confidence on the following material points.

15. It is in the statement of PW2 that on the date of the incident she
had a quarrel with her brother on account of which she ran away from
her home and reached Delhi where she met two unknown
persons/appellants herein who took her to an isolated place and
committed sexual assault on her person.

16. The incident was witnessed by PW8 Benami witness who made
a call to the police and then the accused-Umesh Giri was handed over
to SI Manoj by him.

17. The victim ‘S’ was taken to the LNJP Hospital, Delhi where she
was medically examined and she herself has given the history of the
incident to the medical doctor examining her.

18. The doctor who examined the victim ‘S’ at the LNJP Hospital,
Delhi preserved and sealed the swab, cubic hair, clothes, etc. as
shown in the MLC Ex.PW2/A and prepared a ‘sexual assault kit’ and
sent the same to FSL, Rohini.

19. The appellants were also medically examined after their arrest
and their blood samples, clothes, etc. too were preserved and sealed
and sent to the FSL, Rohini.

20. The FSL report Ex.PW16/H is reproduced as under:-

“RESULT OF EXAMINATION
The alleles from the source of exhibit ‘3’ (Blood
sample of Umesh Giri) exhibit ‘4’ (Blood sample of
Eshaan) are accounted in the alleles as from the source

CRL.A. 683/2017 CRL.A. 814/2017 Page 6 of 9
of exhibits ‘lk1’, ‘lk2’ (microslides of victim) exhibit ‘7’
(Underwear of victim). However female DNA profile was
generated from the source of exhibit ‘lp1’ (Blood sample
of victim).

CONCLUSION
The DNA profiling STAR Analysis performed on
the exhibits ‘lk1’, ‘lk2’ (microslides of victim), exhibit ‘3’
(Blood sample of Umesh Giri), exhibit ‘4’ (Blood sample
of Eshaan) exhibit ‘7’ (Underwear of victim) provided
is sufficient to conclude that the seminal stains present on
the exhibits ‘lk1’, ‘lk2’ (microslides of victim) exhibit ‘7’
(Underwear of victim) are similar with the source of
exhibit ‘3’ (Blood sample of Umesh Giri) exhibit ‘4’
(Blood sample of Eshaan).”

(Underlining supplied)

21. The FSL report Ex.PW16/H indicates that the seminal stains
found on the underwear of the victim ‘S’ and the blood samples of the
appellants/accused are of the same source which connects both
appellants/accused person’s involvement in committing gang rape on
the person of the victim ‘S’.

22. The contention of the learned counsel for the appellants that the
appellants are falsely implicated on the ground of enmity is ruled out
as the statement of PW2 is natural, consistent and inspires confidence
and the statement of Benami witness PW8 is also natural and
consistent on the material points and the minor material contradiction
if any does not goes to the root of the present appeals as the statement
of the victim ‘S’ itself inspires confidence to bring home the
conviction of the appellants. Moreover, the statement of PW2,
supported with medical history of the victim ‘S’, i.e. MLC Ex.PW2/A,

CRL.A. 683/2017 CRL.A. 814/2017 Page 7 of 9
and further supported by the FSL report, i.e. Ex.PW16/H, which are
independent corroboration, completely rules out the false implication
of the appellants on the basis of enmity.

23. So far the contention of the learned counsel for the appellants
that the site plan was not prepared at the instance of the victim ‘S’ is
concerned the same loses its significance as the site plan Ex.PW16/A
is prepared at the instance of the Benami witness PW8 at the spot.

24. So far non examination of the public witnesses is concerned the
incident took place at deep night and during the cross-examination
nothing has come out about the availability of the public witnesses; or
PW8 was a beneficiary of false implication of the appellants in the
present case; or hatching a conspiracy by the PW8 qua the appellants
for extortion of money. However, PW8 who is a rikshaw puller, who
was the witness to the incident and he made call to the police and
there is nothing coming on record that PW8 was related with PW2 or
he was known to PW2 prior to the incident. Therefore, non
examination of the public witnesses loses its significance in the
present facts and circumstances of the case.

25. Since both the appellants are involved in commission of sexual
assault under Section 367-D IPC on the person of the victim ‘S’, the
possibility of consent is also ruled out on the part of the victim ‘S’
under Section 114-A of the Indian Evidence Act, 1872. Reliance is
placed on the judgment of the Apex Court in Md. Iqbal Anr. State
of Jharkhand; Crl. Appeal Nos. 109-110 of 2011 decided on
22.07.2013.

26. As discussed above we find no merit in the present appeals.

CRL.A. 683/2017 CRL.A. 814/2017 Page 8 of 9

Consequently, the instant appeals, i.e. CRL.A. 683/2017 CRL.A.
814/2017, are dismissed accordingly.

27. LCR file be sent back forthwith along with a copy of this
judgment.

28. No order as to costs.

I.S.MEHTA, J
(JUDGE)

S.MURALIDHAR, J
(JUDGE)

NOVEMBER 01, 2017

CRL.A. 683/2017 CRL.A. 814/2017 Page 9 of 9

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