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Jasbir Singh & Ors. vs State Of Delhi on 18 May, 2018

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 420/2002
Reserved on: 10th May, 2018
Pronounced on: 18th May, 2018

JASBIR SINGH ORS. ….. Appellants
Through: Mr. Pramod Kumar Dubey, Advocate
(Amicus Curiae) with Mr.Saurabh
Kumar, Advocate for Appellant No.1
Mr.Azhar Qayum, Advocate for
Appellant No. 2.
versus

STATE OF DELHI ….. Respondent
Through: Mr. Hirein Sharma, APP for State.

CORAM: JUSTICE S.MURALIDHAR
JUSTICE I.S.MEHTA

JUDGMENT

Dr. S. Muralidhar, J.:

1. This appeal is directed against the judgment dated 30 th April 2002 passed
by the learned Additional Sessions Judge („ASJ‟), Karkardooma Courts,
Delhi in Sessions Case No.82/2001 arising out of FIR No.122/1996
registered at Police Station („PS‟) Kalyanpuri convicting the Appellants,
Jasbir Singh (Appellant/Accused No.1: A-1), Manjeet Singh
(Appellant/Accused No.2: A-2) and Chander Kiran (Appellant/Accused
No.3: A-3) (since deceased) for the offences under Sections
342/365/366/376(2)(g)/506(ii) read with Section 34 of the Indian Penal
Code („IPC‟). A-3 was additionally convicted for the offence under Section

Crl.A.420/2002 Page 1 of 15
25/54/59 of the Arms Act.

2. The appeal is also directed against the order on sentence dated 1st May
2002 whereby each of the Appellants was sentenced:

(i) to life imprisonment with a fine of Rs.10,000/-, and in default of payment
to undergo simple imprisonment („SI‟) for one year for the offence
punishable under Section 376(2)(g) read with Section 34 IPC;

(ii) to rigorous imprisonment (RI) for one year with a fine of Rs.1,000/-, and
in default of payment to undergo SI for three months for the offence under
Section 342 read with Section 34 IPC;

(iii) RI for seven years with a fine of Rs.2,000/- and in default of payment to
undergo SI for six months with an identical sentence for the offence under
Section 366 read with Section 34 IPC; SI for six months with a fine of
Rs.1,000/-, and in default to undergo SI for three months for the offence
under Section 506(ii) read with Section 34 IPC.

3. For the offence under Section 25/54/59 of the Arms Act, A-3 was
sentenced to RI for one year with a fine of Rs.1,000/-, and in default of
payment of fine to undergo SI for three months. The sentences were directed
to run concurrently.

4. During the pendency of the present appeal, A-3 expired and, therefore, the
appeal, as far as A-3 is concerned, stands abated.

Crl.A.420/2002 Page 2 of 15

Charge

5. The charge against the Appellants was that in furtherance of their
common intention, they wrongfully confined the prosecutrix (PW-5) at the
urinal and at the wall of Block No.15 Park, Kalyanpuri on 24 th March 1996
at around 1 am, abducted her with the intent to commit illicit intercourse and
in furtherance committed gang rape. They were also charged with having
criminally intimidated PW-5 and her husband Ashok Kumar (PW-6) with
death or grievous hurt thereby committing offence under Section 506(ii)
read with Section 34 IPC.

Version of the victim

6. The case of the prosecution was based on the statement first made by PW-
5 to the police. Her husband used to ply a three wheeler scooter rickshaw
(TSR) and on 24th March 1996 at around 10.30 pm, he returned home and
informed PW-5 that the petrol of his TSR had got run out. He had parked the
TSR at Kalyanpuri Bus Stand. He had returned home to take some petrol
and bring back the TSR after restarting it. PW-6 used to store petrol at his
house for exigencies.

7. PW-5 and PW-6 then took the petrol and headed for the Kalyanpuri Bus
Stop. At around 11 pm, as they reached near School No.1 of the Kalyanpuri
Main Market before Jalebi Chowk in between Blocks No.11 and 12, three
persons surrounded them. Two of them pointed a knife at her whilst the third
dragged her to the backside of the market into the park where there was a
urinal. One of them committed forcible intercourse with her and thereafter
the two others also did so in turns. She stated that the three accused were

Crl.A.420/2002 Page 3 of 15
calling each other by their respective names and that is how she knew that
A-2 raped her first and then A-1 removed her clothes while A-3 raped her.
After that she was almost unconscious. The fourth accused, Anil had taken
away her husband, PW-6, to one side by pointing a knife on him. According
to her, the accused kept him accosted turn by turn while subjecting her to
rape. While two accused would hold her, the third would commit the act and
the fourth would hold the knife to her husband. First, it was committed by
pushing her against the wall and thereafter they dragged her to a small
temporary bathroom which was surrounded by boundary/walls. PW-5
became unconscious after this.

8. When she came to her senses, PW-5 found herself at her house. The next
morning at around 7.00 am, PW-5 and PW-6 went to the P.S. and her
statement was recorded (Ex.PW-5/A) and an FIR was registered.

Investigation

9. Sub-Inspector (SI) Khushal Singh (PW-15) recorded the statement of PW-
6 and went to the house where PW-5 handed over to him her petticoat (Ex.P-

1), blouse (Ex.P-2) and Sari (Ex.P-3) which she was wearing at the time of
occurrence. Those clothes where converted into a sealed pullanda. PW-15
then came to the spot of occurrence along with PW-4 and PW-5 and
prepared a rough site plan (Ex.PW-15/A).

10. PW-15 sent PW-5 to SDN Hospital for her medical examination along
with a lady Constable where her MLC (Ex.PW-4/A) was prepared. The
MLC showed that she was brought there at 2.35 pm. While there were no

Crl.A.420/2002 Page 4 of 15
external marks of injuries, there were some graze abrasions on the back,
below the left armpit and lumbar region. The vaginal smear was taken on
two slides, where were kept in a pullanda.

11 On the identification of PW-5, A-1 was arrested by PW-15. His under
clothes were seized. He is also supposed to have made a disclosure
statement (Ex.PW-5/B). He was then sent for medical examination.

12. On the following day, that is, 26 th March, 1996, the statement of PW-5
under Section 164 Cr PC (Ex.PW5/G) was recorded by the learned
Metropolitan Magistrate („MM‟). She more or less stuck to her earlier
version as given by her to PW-15. She named the accused in this statement
as well.

13. Inspector Samar Pal Singh (PW-13) was entrusted with the investigation
of this case on 6th April 1996. On the same day, on the identification of
PWs-5 and 6, he arrested A-2 from his house and got him medically
examined. His blood sample was also taken. No recovery could be made at
his instance. The other accused Anil subsequently surrendered in the Court
and was placed under formal arrest. The test identification parade („TIP‟) of
the said accused was also conducted.

Trial

14. At the end of the investigation, a charge sheet was filed and by an order
dated 1st March 1997, the trial Court framed charges against A-1 and A-2 in
the manner indicated hereinbefore. The co-accused Kiran Singh @ Kaka

Crl.A.420/2002 Page 5 of 15
was declared a proclaimed offender („PO‟) at that stage. As far as accused
Anil was concerned, he was charged with abetting the aforementioned
offences.

15. Later when A-3 was apprehended, separate charges were framed against
him by the trial Court by an order dated 29th May, 1997.

16. On behalf of the prosecution, 20 witnesses were examined. In the present
case, since we are concerned only with A-1 and A-2, only their respective
statements under Section 313 Cr PC need be referred to.

17. Both A-1 and A-2 denied the incriminating circumstances put to them
and claimed innocence. As far as A-2 is concerned, he claimed not to know
the other co-accused. He claimed that he had been falsely implicated by PW-
15 as well as PW-13 in connivance with PWs 5 and 6. He claimed to have
surrendered before the police on 5th April 1996 as he knew they were after
him. Later when the report of FSL was received, that evidence was put to
him and he denied that as well.

18. As far as A-1 is concerned, he too denied the circumstances and claimed
not to know any of the co-accused. He too claimed to have been falsely
implicated by the police.

Defence evidence

19. On behalf of the defence, three witnesses were examined. Anoop Singh
(DW-1) was a building contractor at Kalyanpuri who was living just

Crl.A.420/2002 Page 6 of 15
opposite the DDA Park. He stated that the locality used to remain busy as
there was a market with STD booths running late into the night, a police post
near Jalebi chowk, and as most residents would stay out of their houses on
the road side till late in the night. He claimed that he normally used to sleep
at around 12 or 12.30 am and did not notice any incident on the night of 24th
March 1996 outside his house.

20. According to DW-1, the police did not make inquiries from him or in the
area. He stated that there was no toilet in or around the DDA Park. DW-1
was cross-examined by the learned APP. In his cross-examination, he
admitted that he was engaged only in private construction and was not a
registered contractor. He confirmed the site plan in the first instance as
shown to him by the APP but after objections raised by the counsel for the
accused, he claimed that he was unable to follow the site plan as it was
explained to him. He stated that he knew the parents of the accused present
in Court who were his neighbours.

21. Satpal (DW-2) was known to A-2. He claimed to have got A-2 to
surrender on 5th April 1996. He knew the father of A-2 since 1978.
According to him, A-2 was not arrested by the police.

22. Parsa Singh (DW-3) is the father of A-2. He too claimed to have got A-2
to surrender in the P.S. on 5th April 1996 along with DW-2.

Impugned judgment of the trial court

23. In the impugned judgment dated 30 th April 2002, the trial Court came to

Crl.A.420/2002 Page 7 of 15
the following conclusions:

(i) The testimony of PW-5 and her husband (PW-6) was supported by the
medical evidence. The timing of the arrest of the accused and other
discrepancies in gathering of evidence were immaterial and not sufficient to
discard the testimony of PWs-5 and 6. The

(ii) The defence witnesses were neither trustworthy nor truthful. It was
noticed in respect of DW-1 that he first denied the suggestion that there was
no petrol pump near the DDA Park but immediately stated voluntarily that it
was near the corner of the park. DWs-2 and 3 were clearly interested
witnesses and, therefore, unreliable.

(iii) The evidence on record proved beyond reasonable doubt that the three
accused had forcibly abducted PW-5, confined her in the park as well as in
the toilet area and gang raped on knife point her one after the other.

24. By a separate order on sentence, the trial Court sentenced each of the
accused in the manner indicated hereinbefore.

25. This Court has heard the submissions of Mr. Pramod Kumar Dubey, the
learned counsel appearing for A-1 and Mr. Azhar Qayum, the learned
counsel appearing for A-2. On behalf of the State, submissions of Mr. Hirein
Sharma, the learned APP were heard.

Analysis and reasons

26. The substantive charge against the two Appellants is their having

Crl.A.420/2002 Page 8 of 15
committed the offence of gang rape of PW-5 punishable under Section 376

(g) IPC. The case of the prosecution rests on the version of the events as
spoken to by the victim, PW-5. She made three distinct statements, first to
the police on the basis of which rukka was drawn up, next before the learned
MM under Section 164 Cr PC and finally before the Court.

27. The law in relation to appreciation of the evidence of a victim of sexual
assault is very well settled. In Ugar Ahir v. State of Bihar AIR 1965 SC
277, the Supreme Court held as under:

“The maxim falsus in uno, falsus in omnibus (false in one thing,
false in everything) is neither a sound rule of law nor a rule of
practice. Hardly one comes across a witness whose evidence
does not contain a grain of untruth or at any rate exaggerations,
embroideries or embellishments. It is, therefore, the duty of the
court to scrutinise the evidence carefully and, in terms of the
felicitous metaphor, separate the grain from the chaff. But, it
cannot obviously disbelieve the substratum of the prosecution
case or the material parts of the evidence and reconstruct a story
of its own out of the rest.”

28. Specific to the testimony of a victim of sexual assault, the Supreme
Court in State of Punjab v. Gurmit Singh AIR 1996 SC 1393, explained:

“We must remember that a rapist not only violates the victim’s
privacy and personal integrity, but inevitably causes serious
psychological as well as physical harm in the process. Rape is
not merely a physical assault – it is often destructive of the
whole personality of the victim. A murderer destroys the
physical body of his victim; a rapist degrades the very soul of
the helpless female. The Courts, therefore, shoulder a great
responsibility while trying an accused on charges of rape. They
must deal with such cases with utmost sensitivity. The Courts
should examine the broader probabilities of a case and not get
swayed by minor contradictions or insignificant discrepancies

Crl.A.420/2002 Page 9 of 15
in the statement of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable prosecution case. If
evidence of the prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of her statement in
material particulars. If for some reason the Court finds it
difficult to place implicit reliance on her testimony, it may look
for evidence which may lend assurance to her testimony, short
of corroboration required in the case of an accomplice. The
testimony of the prosecutrix must be appreciated in the
background of the entire case and the trial court must be alive to
its responsibility and be sensitive while dealing with cases
involving sexual molestations.”

29. Again, in Om Prakash v. State of U.P. AIR 2006 SC 2214, it was
observed:

“13. A prosecutrix of a sex-offence cannot be put on par with
an accomplice. She is in fact a victim of the crime. The
Evidence Act nowhere says that her evidence cannot be
accepted unless it is corroborated in material particulars. She is
undoubtedly a competent witness under Section 118 and her
evidence must receive the same weight as is attached to an
injured in cases of physical violence. The same degree of care
and caution must attach in the evaluation of her evidence as in
the case of an injured complainant or witness and no more.
What is necessary is that the Court must be conscious of the
fact that it is dealing with the evidence of a person who is
interested in the outcome of the charge levelled by her. If the
Court keeps this in mind and feels satisfied that it can act on the
evidence of the prosecutrix. There is no rule of law or practice
incorporated in the Indian Evidence Act, 1872 (in short
‘Evidence Act’) similar to illustration (b) to Section 114 which
requires it to look for corroboration. If for some reason the
Court is hesitant to place implicit reliance on the testimony of
the prosecutrix it may look for evidence which may lend
assurance to her testimony short of corroboration required in
the case of an accomplice. The nature of evidence required to
lend assurance to the testimony of the prosecutrix must

Crl.A.420/2002 Page 10 of 15
necessarily depend on the facts and circumstances of each
case.”

30. In the present case, on the core part of the testimony of PW-5 is
consistent and cogent. This core element includes the three accused along
with accused Anil surrounding her; two of them pointing knives at her and
the third one dragging her to the rear of the market into the park where there
is a urinal; each of them in turns committing gang rape upon her while the
fourth accused kept her husband confined elsewhere; her being rendered
unconscious and her finding herself later at home. Since she was unclean,
she washed her clothes but not enough to remove the traces of semen which
were later confirmed by the FSL.

31. PW-5 was able to identify the accused who kept calling each other by
their names. She was able to also identify the under-pants of A-1 which
were seized in her presence by the police.

32. PW-6 more or less corroborated the version of PW-5. He too confirmed
that the boys who dragged away PW-5 were having knives with them. A boy
wearing a turban and having beard tried to beat PW-6 when he tried to save
his wife (PW-5) while being dragged towards Block No.15 behind the
market by the other two boys. When PW-6 tried to raise an alarm, the said
turbaned boy started throwing bricks bats in order to deter him from saving
PW-5.

33. Thereafter when PW-6 reached the market, one of the boys tried to
mislead him by saying “idhar nahin udhar jao”. It was around 12 midnight

Crl.A.420/2002 Page 11 of 15
when he went to the urinal near Block No.15, Kalyanpuri behind the market
where he found PW-5 in an unconscious state, undressed/naked and having
no clothes on her body. He took her clothes which were lying nearby, put
them on PW-5 and with his arm around her shoulder took her home. When
he sprinkled some water on her, she regained consciousness and disclosed
the facts to him.

34. Just like PW-5, PW-6 was also subjected to extensive cross-examination
on behalf of the accused. On the core aspect of the testimony, this witness
was also unshaken. PW-6 also identified A-3 and accused Anil in jail in the
TIP.

35. The recovery of the knife at the instance of A-3 from under the pipe of
the DDA Park also took place in the presence of PW-6. He was also present
when A-3 disclosed that the knife had been handed over to him by A-2 at the
time of commission of the offence and it was A-3 who had hidden the knife
there.

36. The embellishments made about petrol being stored in the house of PWs
5 and 6 to meet the exigency and failure of the IO to seize any such bottle of
petrol were really not material in the face of the clear, cogent and consistent
evidence of PW-5 corroborated by the testimony of PW-6.

37. Just as was done in the trial Court, even before this Court submissions
were made by counsel for the accused about the site plan which did not
correctly show the place of occurrence. It is further submitted that there was

Crl.A.420/2002 Page 12 of 15
no toilet in the DDA Park and, therefore, the incident really did not take
place at the place described by the victim.

38. The above submission too is of no significance since the evidence of the
victim herself is clear, cogent and consistent and has not been able to be
discredited in her cross-examination.

39. The presence of the semen stains on the clothes of the victim as reflected
in the report of the FSL (Ex.PW-20/A to 20/D) constitutes another important
piece of evidence in the prosecution. Her petticoat did contain semen stains
of the „AB‟ group and the under wear contained semen stains of „B‟ group.
Human semen was detected, apart from on the petticoat, on the vaginal
smear. Only on the sari and blouse of the victim, semen stains were not
detected. PW-20 was examined to prove the above report. Nothing much
emerged in his cross-examination to discredit this evidence.

40. It was noted that while the petticoat was having „AB‟ group, the
underwear contained semen belonging to the „B‟ blood group. The FSL
report proved that „B‟ Group found was that of A-2. This is clinching
evidence as far as the involvement of A-2 is concerned.

41. As far as A-1 is concerned, the deposition of the victim herself more
than adequately proves his role in committing the gang rape along with A-2.
In the present case, it is safe to return a finding of guilt qua A-1 and A-2 on
the basis of the unimpeachable evidence of PWs-5 and 6 which have been
corroborated by the medical and forensic evidence. The Court, therefore,

Crl.A.420/2002 Page 13 of 15
concurs with the trial Court that the discrepancies pointed out as regards the
time of arrest and the recoveries or even the defective site plan will not
shake the unimpeachable testimonies of PWs-5 and 6.

42. As rightly pointed out, the defence evidence was far from truthful or
reliable or even impartial and was, therefore, rightly rejected by the trial
Court. The Court concurs with the trial Court that the prosecution has been
able to prove the guilt of both A-1 and A-2 beyond reasonable doubt for the
offences with which they were charged. The trial Court judgment does not,
therefore, call for any interference.

43. As far as the sentence awarded to the two accused is concerned, the
Court is satisfied that the ends of justice would be met if the sentence for the
offence under Section 376(2)(g) IPC is reduced from imprisonment for life
to RI for 10 years with the fine amount and default sentence remaining
unaltered. The sentences and fines awarded to each of the Appellants for the
other offences do not call for interference.

Conclusion and directions

44. Consequently, while confirming the judgment of the trial Court
convicting the two Appellants for the offences with which they were
charged and the order on sentence for the offences other than the offence
under Section 376(2)(g) together with fines and default sentences, the Court
modifies the sentence awarded to each of the Appellants for the offence
under Section 376(2)(g) IPC from imprisonment for life to RI for 10 years
with the fine amount and default sentence remaining unchanged.

Crl.A.420/2002 Page 14 of 15

45. The bail bond and the surety bond furnished by A-1 in terms of the order
dated 15th March 2018 are cancelled. A-2 is already in custody in Andhra
Pradesh in some other case.

46. A-1 is directed to surrender forthwith and in any event not later than 31st
May, 2018. In other words, if the Appellant fails to surrender on or before
31st May 2018, the SHO concerned will take immediate steps to have him
arrested and sent to prison to serve out the remaining period of the sentence.
As far as A-2 is concerned, the SHO will coordinate with the concerned Jail
Authorities in Andhra Pradesh so that as and when A-2 is released from that
Jail, he will be brought in custody to the Tihar Jail to serve out the
remainder of his sentence as far as the present case is concerned.

47. The appeal is disposed of in the above terms. The trial Court record be
returned forthwith along with a certified copy of this judgment.

S.MURALIDHAR, J.

I.S.MEHTA, J.

MAY 18, 2018
„anb‟

Crl.A.420/2002 Page 15 of 15

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