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Amar Kumar Pandey vs State on 6 May, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 10th July, 2018
% Decided on: 6th May, 2019

+ CRL.A. 230/2016

AMAR KUMAR PANDEY ….. Appellant
Represented by: Mr. Gautam Khazanchi with
Mr. Udit Arora, Advocates

versus
STATE ….. Respondent
Represented by: Ms. Rajni Gupta, APP for the
State

CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J.

1. Amar Kumar Pandey challenges the impugned judgment dated 27th
August, 2015 convicting him for the offences punishable under Section
376/Section307 IPC and the order on sentence dated 11th September, 2015 directing
him to undergo rigorous imprisonment for a period of seven years and to
pay a fine of Rs.15,000/- and in default of payment of fine to undergo
simple imprisonment for a period of one year for the offence punishable
under Section 376 IPC and rigorous imprisonment for a period of eight
years and to pay a fine of Rs.20,000/- and in default of payment of fine to
undergo simple imprisonment for a period of one year for the offence
punishable under Section 307 IPC.

2. Learned counsel for the appellant submits that the testimony of the
prosecutrix (PW-13) by itself shows that the offence under Section 376 IPC

CRL.A. 230/2016 Page 1 of 9
is not made out as she herself stated that the appellant never refused to
marry her. Promise to marry was only incidental. With respect to recovery
of phone, the location of the phone has not been mentioned. Phone was not
identified by the prosecutrix and CDRs of the phone were also not
exhibited. The CDRs available on record are for the period from 17 th
August, 2013 to 20th August, 2013 which belie the version of the
prosecutrix. No independent witness was associated with the recovery of
knife and the knife in question has not been put to the prosecutrix, thus, it
cannot be said that it relates to the offence. Knife was not recovered
from/near the spot. No fingerprints were taken. When Ct. Monu (PW-9)
and SI Satish Kumar (PW-11) went to the spot, nothing was found. Neither
the crime team visited the spot nor were the photographs taken. As per the
MLC, only injury no. 4 was caused by a sharp weapon, rest all were caused
by a blunt weapon.

3. Learned APP for the State on the other hand contends that the
prosecution case stands proved not only on the basis of testimony of the
prosecutrix but also by the statement of the appellant recorded under
Section 313 Cr.P.C. Since nothing was visible on the spot, the crime team
could not recover anything from the spot. Appellant has been rightly
convicted by the Learned Trial Court on the basis of the evidence on record
and the appeal be dismissed.

4. Process of law was set into motion on 15th September, 2013 around
8:23 P.M. when information was received regarding one handicapped lady
lying in a pool of blood near the T point, main road, Nav Jeevan Camp,
Govindpuri. Aforesaid information was recorded vide DD No. 43A and was
assigned to SI Satish (PW-11). He went to the spot along with Ct. Monu

CRL.A. 230/2016 Page 2 of 9
(PW-9). He made enquiries at the spot and came to know that the injured
had been taken to AIIMS Trauma Centre by the PCR van. No witness could
be found at spot. He then went to the Trauma Centre and collected MLC
(Ex.PW-13/A). The victim was declared not fit for statement by the doctor.
FIR No. 649/2013 (Ex.PW-5/A) was registered at PS Govindpuri for the
offence punishable under Section 307 IPC. Exhibits were seized vide
seizure meme Ex.PW-4/A. He then returned to the place of incident,
however, no further information could be gathered from the spot.

5. On 17th September, 2013 SI Satish (PW-11) again went to the hospital
when the victim was fit for statement. On enquiries from the victim, it was
revealed to be a case of sexual harassment. Consequently, W/SI Seema
(PW-17) came to the hospital who recorded the statement of the
injured/prosecutrix. On the basis of her statement, Section 376 IPC was also
added.

6. Pursuant to the statement of the victim search for the appellant was
conducted however, he was not traceable. On an information received, the
appellant was apprehended near petrol pump and was arrested vide memo
Ex.PW-1/A Disclosure statement of appellant vide Ex.PW-1/C was also
recorded, whereafter he was medically examined and brought to the police
station.

7. On 18th September, 2013, the appellant led the police to the place of
incident. A pointing out memo Ex. PW-11/B was prepared. Appellant also
got the knife recovered. Sketch of the knife Ex.PW-11/C was prepared and
the knife was seized vide memo Ex.PW-11/D. At the appellant’s instance,
the mobile phone of prosecutrix was also recovered which was seized vide
seizure memo Ex.PW-2/C.

CRL.A. 230/2016 Page 3 of 9

8. On 24th September, 2013, the statement of the prosecutrix was
recorded under Section 164 Cr.P.C. vide Ex.PW-7/A and after completion
of investigation, charge sheet was filed.

9. Prosecutrix (PW-13) deposed that she hailed from District
Aurangabad, Bihar. Two years ago while she was at her native place, she
received a call from an unknown number. The caller introduced himself as
Amar. He asked if she was married. She replied that she was unmarried and
would marry only with the consent of his parents, he told her that he would
marry her. She informed him that she was handicapped to which he replied
that he had no problem with that. He asked for her address and told her to
meet her at her house. After about two months, he came to her house and
stayed overnight. Thereafter, he remained in contact with her over phone.
Since she was not able to pick up the phone as she was handicapped, he
asked her to accompany him to Delhi. On 25th May, 2013, he brought her to
Delhi where they stayed in a rented jhuggi at Govindpuri for about 15 days.
They had physical relations during the aforesaid period and those physical
relations were with her consent. She gave her consent as the appellant used
to promise her that he would marry her. After 15 days, the appellant left her
at her native place. She had not sought the permission of her parents when
she left her native village for the first time with the appellant on his promise
of marrying her. While returning to her native place, she had left her jewelry
articles, that is, earrings, rings, gold chain, gold locket and silver pajeb etc.
with the appellant at his instance. After leaving her at her house, appellant
left for his parental house at Bihar with a promise that he would come and
bring her back to Delhi. Subsequently, she returned to Delhi with the
appellant on 8th July, 2013. Physical relation between the two continued.

CRL.A. 230/2016 Page 4 of 9

She stated that as there was no toilet in the accommodation where she was
staying with the appellant, so the appellant used to take her to public toilet.
On 15th September, 2013, during afternoon she told the appellant to take
her to toilet. The appellant told that he will take her to toilet in the evening.
Thereafter, he left for the market and returned after almost half an hour. On
the pretext of taking her to the toilet, the appellant took her to the jungle
behind the public toilet. There he took out a knife and started stabbing her
on her face, neck, waist and arms. She cried, raised alarm and requested the
appellant not to kill her and send her back to her native village if he did not
want to marry her. Nobody heard her loud cries for help and therefore
nobody came to her rescue. The appellant then ran away, leaving her at the
spot to die. She then managed to push herself near the road where she was
noticed by the public. Somebody called the police and she was taken to the
hospital by the police officials. The knife with which she was stabbed was a
kitchen knife having green colour plastic handle. In her cross examination
she stated that her parents opposed the marriage. She also stated that the
appellant had never explicitly refused to marry her. She voluntarily stated
that if he had refused, she would not have accompanied him to Delhi.

10. Rajesh (PW-6) stated that on 15th September, 2013 at about 8:00
P.M., while he was in his shop near Nehru Camp, Govindpuri, he saw 5-6
boys standing near the nala in the forest behind his shop. He went there to
find out what had happened. He saw a girl whose face was drenched in
blood and mud lying near the wall. The girl was brought near the main road.
Thereafter, he called on 100 number and informed the police from his
mobile No. 9718994642.

11. Uvesh Khan (PW-8) stated that he is the owner of jhuggi No. C-226,

CRL.A. 230/2016 Page 5 of 9
Nehru Camp, Govindpuri. He had given his jhuggi on rent to the appellant
in the first week of September 2013. He was staying with a girl whom he
claimed to be his wife. They stayed there for a week and then left the
jhuggi. He stated that the girl was having some problem in her leg.

12. Dr. Kusum (PW-12), SR, Gyane-1, AIIMS stated that on 15th
September 2013, at about 11:15 P.M. a young girl of around 20 years of age
was brought with multiple stab wounds on her arm, face and back. She had
stitches on her injuries. Her hymen was not intact and she was suffering
from polio. The notes prepared by her were proved vide Ex.PW-12/A.

13. Dr. Rupesh Kumar Kejriwal (PW-14), Sr. JPN Apex Trauma Centre,
AIIMS stated that on 15th September 2013 he examined the prosecutrix
vide MLC Ex.PW-13/A. He opined all the injuries to be grievous in nature.
All the injuries mentioned below were caused by blunt object except the
injures described in the second part of the injuries no. 4 which was likely to
be caused by sharp object. Following visible injuries were found:

Wound 1: Laceration 7 cm X 3 Cm X 3 cm on posterolateral
aspect of left arm
Wound 2: Laceration 5 cm X 1 cm X 1 cm over right cheek, 7
cm X 0.5 cm X 0.5 cm on left side of face
Wound 3: Laceration multiple superficial lacerations on left
side of neck and occipital region
Wound 4: Laceration 8 cm X 3 cm muscle deep over right arm,
multiple skin superficial cut wound in lower back
Wound 5: Laceration small superficial laceration over right
hand (palmer aspect)
Wound 6: Laceration 5 cm X 1 cm lacerated wound over right

CRL.A. 230/2016 Page 6 of 9
side of back in lumbar region

14. Dr. Mahesh Kumar (PW-15), SR, FMT, AIIMS stated that he had
examined the external injuries on the person of prosecutrix and prepared a
note of examination which was proved vide Ex.PW-15/A. He also examined
the weapon of offence and opined that the all injuries could be possible
from the weapon shown to him. His opinion was proved vide Ex.PW-15/B.

15. Appellant in his statement recorded under Section 313 Cr.P.C.
admitted that he had contacted the prosecutrix while she was in her native
village and had subsequently brought her to Delhi on the promise of
marriage. He denied that she had not sought the permission of her parents
for the marriage and that she had returned to her native village to get
permission from her parents. He denied that he used to take her to the public
toilet to answer the call of nature. He also stated that he has been falsely
implicated in the present case. Uncle of the prosecutrix had come to the
jhuggi and beaten him severely on account of which he received injuries.

16. Contention of learned counsel for the appellant that offence under
Section 376 IPC is not made out as the appellant never refused to marry the
prosecutrix and promise to marry was only incidental is liable to be rejected.
Prosecutrix in her statement clearly stated that the appellant represented that
he would marry her despite her being handicapped and on that pretext, he
got her to Delhi where he established physical relations and after having
established physical relations with her, the appellant injured her and left her
in that condition and ran away. Further, as noted above the appellant
admitted that he used to promise to marry the prosecutrix.

17. Even though Dr.Rupesh Kumar Kejriwal stated that out of the six

CRL.A. 230/2016 Page 7 of 9
injuries, only second part of injury No.4 was caused by a sharp object,
Dr.Mahesh Kumar who examined the external injuries on the person of
prosecutrix and prepared his note of examination clearly opined that all the
injuries were possible from the weapon shown to him. Weapon of offence
was recovered from the jungle at the instance of the appellant. The
appellant having thrown the weapon of offence in jungle thus non-recovery
from near the spot does not belie the version of the prosecutrix who was
found in a badly injured condition and bleeding by independent persons.
The recovery of weapon of offence has been duly testified by SI Satish.
Further, the fact that the appellant was residing with the prosecutrix as his
wife is also deposed by Uvesh Khan, the owner of the Jhuggi. Though it is
contended that the CDRs available from the period 17th August, 2013 to 20th
August, 2013 belie the version of the prosecutrix, however, nothing has
been shown as to how the version of the prosecutrix has been belied from
the said CDRs.

18. Contention of learned counsel for the appellant that the knife in
question has not been put to the prosecutrix and thus cannot be said to be
related to the offence deserves to be rejected for the reason the prosecutrix
has testified that she was stabbed by a green colour kitchen knife which
matches the description of the knife recovered at the instance of the
appellant and PW-15 has duly opined that the injuries were possible with
the knife recovered and thus the same is duly corroborated by the medical
examination and the testimony of the independent witnesses.

19. Hence, this Court finds no merit in the appeal. The impugned
judgment of conviction and order on sentence are upheld. Appeal is
dismissed.

CRL.A. 230/2016 Page 8 of 9

20. Copy of this order be sent to Superintendent Central Jail, Mandoli for
updation of the Jail record and intimation to the appellant.

21. TCR be returned.

(MUKTA GUPTA)
MAY 06, 2019 JUDGE
‘vj/rk’

CRL.A. 230/2016 Page 9 of 9

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