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Manoj vs State Nct Of Delhi on 7 May, 2018

$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 490/2013
MANOJ ….. Appellant
Through: Mr. Madhav Khurana,
Advocate (Amicus) with Mr.
Vignaraj Pasayat, Advocate.
versus

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

+ CRL.A. 561/2013

AMIT ….. Appellant
Through: Mr. Habibur Rahman,
Advocate

versus

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

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

JUDGMENT
% 07.05.2018

Dr. S. Muralidhar, J.:

1. These two appeals are directed against the judgment dated
11th February 2013 passed by the learned Additional Sessions Judge-II
(North-West), Rohini Courts in Sessions Case No.31/2012 arising out of

Crl.A.490/2013 and Crl.A.561/2013 Page 1 of 17
FIR No.23/2012 registered at Police Station („PS‟) Kanjhawla convicting the
Appellants for the offences under Sections 363, 366, 376 (2) (g) and 506
Indian Penal Code („IPC‟).

2. These appeals are also directed against the order on sentence dated
19th February 2013 whereby both the Appellants were sentenced as under:

(i) For the offence under Section 363 IPC: both Appellants have been
sentenced to rigorous imprisonment for 5 years and fine of Rs.5,000/-
and in default of payment of fine, to undergo simple imprisonment for
15 days.

(ii) For the offence under Section 366 IPC: both Appellants have been
sentenced to rigorous imprisonment for 7 years and fine of Rs.5,000/-
and in default of payment fine, to undergo simple imprisonment for
15 days.

(iii) For the offence under Section 376 (2) (g)/506 IPC: Manoj (A-1) has
been sentenced to rigorous imprisonment for life and fine of
Rs.50,000/- and in default of payment of fine, to undergo simple
imprisonment for 3 months; Amit (A-2) has been sentenced to
rigorous imprisonment for 10 years and fine of Rs.10,000/- and in
default of payment of fine, to undergo simple imprisonment for 1
month.

The case of the prosecution

3. A complaint was lodged at PS Kanjhawla by the prosecutrix (PW-10)

Crl.A.490/2013 and Crl.A.561/2013 Page 2 of 17
wherein she stated that on 6th February 2012 she had gone to fetch milk
when A-1, to whom she was known, came in a black coloured car. One other
boy, whom she subsequently learned to be A-2, was sitting beside him in the
passenger‟s seat. A-1 asked PW-10 where her sister (PW-18) was and PW-
10 informed A-1 that PW-18 was at home. According to PW-10, A-1 came
out of the car and at the same time A-2 opened the rear seat window. A-1
forcibly pushed her into the car and when she raised an alarm, A-1
threatened to kill her. Thereafter, both A-1 and A-2 took her in the car to an
isolated place where they raped her one after the other in the rear seat of the
car. They then dropped her there itself. She somehow managed to reach
home but did not mention anything to her family. The following morning,
she disclosed the incident to her mother (PW-19) and her sister (PW-18)
who then brought her to the PS.

Investigation

4. On the basis of the above statement, a rukka (Ex.PW-9/A) was prepared
on 7th February 2012 at around 3:30 pm and sent for registration of the FIR.
Sub-Inspector Rajesh Kumar (PW-22) stated that initially on
6th February 2012 itself, at around 11pm, information was received and
noted as DD No.82B at PS Kanjhawla that three boys had lifted the sister of
the informer in front of the Shilpa Gas Agency Police Chowki. Upon
receiving that information, PW-22 along with Constable Jagdish and
Constable Rajbir Singh (PW-1) met the complainant and other family
members. They informed PW-22 that PW-10 had left home for purchasing
milk at around 7 pm but had not returned. The father of the prosecutrix (PW-

20) informed them that his elder daughter, PW-18, had seen three boys

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talking to PW-10 a few days ago and therefore, they made a call to the PCR
regarding the three boys based on this suspicion. He, however, could not
provide the details.

5. Since PW-10 had a mobile phone, PW-22 along with the family members
of PW-10 tried to contact PW-10 on it. After sometime, PW-22 managed to
talk to PW-10 and she informed him that she was returning home.
Thereafter, Constable Sudhir along with PW-18 brought PW-10 from Budh
Vihar. Initially, the father of PW-10, i.e. PW-20, stated that his daughter was
safe and that there was no mishap. Accordingly, PW-22 left PW-10 at home
and returned to the PS.

6. The following day, i.e. 7th February 2012, PW-22 was called by the Duty
Officer (DO) to his room in the PS where PW-10, her mother (PW-19) and
her elder sister (PW-18) were present. The DO told PW-22 that PW-10 and
her relatives had told him about rape having been committed on PW-10 the
previous day in the night hours. After making inquiries from PW-10, PW-22
called an NGO represented by Anuradha (PW-9). Thereafter, PW-9
counselled PW-10 and the statement of PW-10 (Ex.PW-9/A) was recorded
by PW-22 in the presence of PW-9.

7. PW-10 was then taken to the SGM Hospital along with Lady Constable
Kanta (PW-16) and PW-18. The MLC of PW-10 (Ex.PW-11/A) reveals that
she was brought there at 10.20 am on 7th February 2012. It noted that PW-10
informed the doctor that she had been sexually assaulted by two men of
whom one was known to her. It was noted “no internal injury. No hymen

Crl.A.490/2013 and Crl.A.561/2013 Page 4 of 17
integrity maintained. The vaginal swabs were taken.” The samples were
handed over to the IO.

8. PW-22 along with Constable Sudhir, PW-10 and PW-18 went to the place
of occurrence from where PW-10 had been lifted. He prepared a site plan
(Ex.PW-10/A) at the instance of PW-10.

9. The address of A-1 was furnished to PW-22 by the brother-in-law of
PW-10. PW-22 reached that address where the father of A-1 met them. A-1
was also present and PW-10 identified him. He was arrested and a personal
search was conducted. He also made a disclosure statement where he named
the co-accused, A-2. They reached the house of A-2 and found it locked.
A-1 was taken to the SGM Hospital and his medical examination was got
conducted. He was then kept in the police lock-up and was produced in
Court on the following day.

Victim’s statement under Section 164 Cr PC

10. On 8th February 2012, the statement of PW-10 was recorded by the
learned Metropolitan Magistrate („MM‟) under Section 164 Cr PC. In this
statement, she more or less deposed along the lines of her initial statement to
the police. However, she did not state that she received any phone call from
A-1 before she went to buy milk. She did not specifically state that A-1
spoke to her when he came in the car and before he pushed her into the car.
She also did not mention any door or window of the car. As far as A-2 was
concerned, she stated that he had gone to get something and she was left
alone with A-1 whereas she had not stated this in her previous statement.

Crl.A.490/2013 and Crl.A.561/2013 Page 5 of 17

She also mentioned about A-1 going away after raping her. However, even
in the statement under Section 164 Cr PC, she clearly mentioned that she
was raped by A-1 and A-2 one after the other.

Arrests and recoveries

11. On 8th February 2012 itself PW-22 handed over the file for further
investigation to Sub-Inspector Naresh Kumar (PW-21). A-1 was again
interrogated by PW-21 as regards the details of A-2. He stated that he knew
the whereabouts of A-2 and could get him apprehended. A raiding party was
prepared and they went along with A-1 to Mangolpuri. A-1 took them to a
public park and pointed out towards three boys who were smoking
cigarettes, one of whom was A-2. A-2 was then apprehended and
interrogated. He also gave a disclosure statement.

12. Further inquiries were made with A-2 about the vehicle in which the
offence was committed. He disclosed that the vehicle belonged to his
paternal uncle/son of the paternal uncle. The vehicle was then seized after
A-1 took them to the I-Block road where the car was parked. On
9th February 2012, PW-10 came to the PS and identified the car as the same
one in which she was raped.

13. Upon completion of the investigation, the charge sheet was filed.
Charges were framed against both the accused by the trial Court on
10th May 2012.

Trial

14. On behalf of the prosecution, twenty-two witnesses were examined.

Crl.A.490/2013 and Crl.A.561/2013 Page 6 of 17

Incriminating circumstances were put to the accused, both of whom denied
them. According to A-2, he was falsely implicated and had nothing to do
with the incident.

15. A-1 stated that he was known to PW-10 and her family and they had no
objection to PW-18 and PW-10 going out with him. He stated that on the
date of the alleged incident, he in fact helped the family of PW-10 search for
her. He stated that he had been falsely implicated with mala fide intention.

16. Three witnesses were examined for the defence. Rajesh Kumar (DW-1)
claimed to have known A-1 since his childhood. He claimed that at around
7:30-7:40 pm, he along with A-1 and another boy, Mohan, were standing on
the road and a Santro car reached there in which one Sukhbir from PS
Begumpur and two girls, one of whom was PW-18, were present. Sukhbir
and the other girl came out from the car and Sukhbir took A-1 away from
there. In his cross-examination, DW-1 admitted that he did not personally
know either PW-18 or the other girl and volunteered that he was informed
by A-1 as to who they are.

17. The other defence witness was Ram Pyarey (DW-2), a neighbour of A-1
and his father. According to him, at around 2:30 am on 7th February 2012, he
noticed two police officials in the neighbouring house and he came to know
that the police had taken away A-1. In his cross-examination, he stated that
he knew A-1 since his childhood and that he did not make any complaint
regarding the lifting of A-1 by the police. He admitted that he had come to
the Court on the asking of the family of A-1.

Crl.A.490/2013 and Crl.A.561/2013 Page 7 of 17

18. Head Constable Sukhbir attached to PS Begumpur was examined as
DW-3. He knew A-1 to be a secret informer of the police. He claimed that
PW-18 had come to the police along with A-1 to report about PW-10 having
gone missing. Since he was on leave, he called up the SHO and conveyed to
him the complaint of PW-18. He then took Constable Ram Avtar from the
PS and went along with PW-18 to search for her sister along with another
girl. The other girl expressed her suspicion against A-1. DW-3 then
contacted A-1 who stated that he was at SGM Hospital. They then picked
him up from there. PW-18 then expressed her suspicion against A-1 and said
that A-1 had passed on her sister to some other boy, namely, Amit (A-2)
and, in order to create an alibi, had come to SGM Hospital. According to
DW-3, A-1 remained with them till PW-10 was recovered from Budh Vihar
Ganda Nala. In his cross-examination by the APP, DW-3 stated that A-1
was residing with the other girl and had helped him only in one case. He did
not make any entry in the PS while leaving for the search of PW-10.
According to him, there was some previous dispute between A-1 and the
other girl with whom he was staying and that girl would come to the PS with
PW-18.

Impugned judgment of the trial Court

19. By the impugned judgment dated 11th February 2013, the trial Court
concluded that the evidence of PW-10 was consistent and truthful. The
medical evidence also corroborated her evidence. Further, the DNA Finger
Printing report established that the profile generated from the vaginal swabs
matched the DNA finger printing profile generated from the blood sample of

Crl.A.490/2013 and Crl.A.561/2013 Page 8 of 17
A-1 and this conclusively connected A-1 to the offence.

20. Further, PW-10 had named both A-1 and A-2 in all her statements.
There being no previous enmity between PW-10 and A-2, there was no
reason why she would falsely implicate A-2. Accordingly, the evidence
against both the accused were held to be proved. The accused were
sentenced in the manner indicated hereinbefore.

Contradictions in victim’s statement not material

21. On behalf of A-1, Mr. Madhav Khurana, and on behalf of A-2 Mr.
Habibur Rahman, the learned counsel, pointed to the discrepancies in the
statements made by PW-10 first before the police (Ex.PW-9/A), then before
the learned MM (PW-12/A) and finally her deposition in Court. The
contradictions pointed were in the matter of:

(i) PW-10 receiving the phone call from A-1 before she went to buy milk
in her first statement whereas she makes no mention of the phone call
in her subsequent statements.

(ii) About A-1 coming in a black car which she mentioned in her
statement to the police and in her statement before the MM whereas in
Court, she deposed that A-1 first came to her and A-2 later came in
the car.

(iii) That A-1 spoke to her before pushing her into the car which she
maintained in Court whereas in the statement to the learned MM, she
stated that A-1 came in the car, stopped and pushed her in. There was
no mention of A-1 speaking to her before pushing her into the car.

Crl.A.490/2013 and Crl.A.561/2013 Page 9 of 17

(iv) In her statement to the police and in her deposition in Court, she
mentioned that she was pushed into the car through the window and
the door respectively whereas in her statement before the learned MM
she made no mention of the door or window of the car.

(v) Whereas in her statement under Section 164 CrPC, she stated that
while A-1 raped her, A-2 had gone to fetch something leaving her
alone with A-1, in her statement to the police and her deposition in the
Court, she did not mention this.

(vi) Lastly, while in her statement before the learned MM and the
deposition in Court, she stated that A-1 had gone away after
committing rape, in her statement to police, she stated that both A-1
and A-2 dropped her and went away after raping her.

22. The Court does not consider the above contradictions to be material
enough to doubt the credibility of this witness. In this regard, the law
regarding appreciation of the evidence of a victim of rape requires
re-capitulation. 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.”

23. Specific to the testimony of a victim of sexual assault, the Supreme

Crl.A.490/2013 and Crl.A.561/2013 Page 10 of 17
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
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.”

24. 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

Crl.A.490/2013 and Crl.A.561/2013 Page 11 of 17
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
necessarily depend on the facts and circumstances of each
case.”

Age of the victim

25. Mr. Khurana then made elaborate arguments with respect to the age of
the prosecutrix. He referred to the decision in State v. Charan Singh (2017)
SCC Online Del 8186 where, in the absence of any clear evidence through
the school register, the Court was not prepared to interfere with the
judgment of the trial Court which held that the prosecution had failed to
prove that the victim was a minor.

26. In the present case, however, as noted by the trial Court, the age of the
prosecutrix has been proved. Ms. Sharadha, a teacher of Sarvodya Kanya
Vidyalaya, Karala, had brought the admission record of the prosecutrix
which showed that the date of birth as per the school record was
5th January 1999. This was made on the basis of the transfer certificate of the
primary school where PW-10 had previously studied. In the cross-
examination, she admitted that no date of birth certificated issued by MCD
was filed in the school at the time of admission.

Crl.A.490/2013 and Crl.A.561/2013 Page 12 of 17

27. The trial Court noted correctly that the accused had not been able to
controvert the above evidence in the form of school record and, therefore,
there was no reason to disbelieve it. The prosecutrix was just 13 years old at
that point in time. There was no occasion, therefore, for the trial Court to
order any ossification test when the school record was sufficient for proving
that PW-10 was below 15 years of age.

28. In the facts of the decision cited, the trial Court had noted that the
prosecutrix therein was around 17 ½ years old. The witness who brought the
register had no knowledge of who had filled the particulars. No witness from
the primary school had been examined. As far as the present case is
concerned, there is nothing to suggest that PW-10 was anywhere close to the
age of 16 years, i.e. age at which she could have consented to any sexual
intercourse. The Court, therefore, concurs with the trial Court that the
accused had been unable to create any doubt as regards the age of PW-10.

Corroboration of the victim’s evidence

29. It was next contended on behalf of A-2 that since there were material
contradictions in the statements of PW-10, there can be no presumption that
she spoke the truth and her evidence required corroboration by other
evidence. Reliance is placed on the decision in Abbas Ahmad Choudhary v.
State of Assam (2010) 12 SCC 115.

30. In the present case, the Court is not persuaded that PW-10 is an
unreliable witness. The contradictions pointed out by learned counsel for the

Crl.A.490/2013 and Crl.A.561/2013 Page 13 of 17
accused are not substantial and do not, in any way, affect the credibility of
her testimony. On the material aspects, PW-10 has remained consistent
throughout.

31. Moreover, the testimony of PW-10 has received full corroboration by the
medical evidence. She was examined by Dr. Rashmi Verma (PW-11) who
clearly deposed that although no external injuries were found, on examining
the vagina she found the “hymen ruptured”. There was no cross-examination
of this witness by the counsel for the accused. The further corroboration was
in the form of the DNA finger printing report which was proved by Ms.
Shashi Bala Pahuja, Sr. Scientific Officer, FSL Rohini (PW-14). It
completely confirmed the involvement of A-1.

32. As far as A-2 is concerned, as rightly pointed out by the trial Court, he
has been named by PW-10 in her initial statement to the police and then in
her statement before the learned MM as well as in her deposition in the
Court.

33. Learned counsel for A-1 and A-2 both referred to the decision in Pratap
Mishra v. State of Orissa (1977) 3 SCC 41 to contend that the absence of
the injuries on the body of the victim would give rise to doubts about her
version. However, the said decision has to be seen in the context of the facts
of that case. That is not a case where the prosecutrix was of as young an age
as PW-10 was at the time of this incident. In the present case, both A-1 and
A-2 were in their early 20s and would have had no difficulty in
overpowering PW-10. The mere absence of injury marks would not give rise
to any inference about the rape not having happened. This is particularly so

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when the fear of life must have been put into the victim‟s mind when the
assault happened all too suddenly and therefore, disoriented her. It is not
hard to imagine her plight in those circumstances.

34. With the evidence of PW-10 being corroborated by medical and forensic
evidence, the trial court rightly based the conviction of both accused on her
evidence.

Other discrepancies

35. Learned counsel for the accused sought to point out the discrepancies in
the evidence of the other witnesses, particularly, PWs- 18, 19 and 20. With
the evidence of PW-10 itself lending assurance to the Court, the above
discrepancies would not really matter. The non-examination of the milk
vendor from whom PW-10 had gone to buy milk or the passers-by in the
busy area from where PW-10 was picked up by the two accused would not
weaken the case of the prosecution. None of the defence witnesses actually
helped the case of the accused.

36. Some arguments were made regarding the tampering of the case
material. It was sought to be contended that as per the storeroom register, the
brassiere which was deposited was red and black in colour whereas the one
sent to the FSL was red and white in colour. Nothing really turned on the
brassiere at all. For that matter, nothing really turned on the delay in
recovery of the bloodstained baniyan from the car. The vaginal swab
collected during the medical examination of PW-10 matched the DNA
finger print of the blood samples of A-1. Therefore, the above discrepancies
hardly created a dent in the case of the prosecution. The non-collection by

Crl.A.490/2013 and Crl.A.561/2013 Page 15 of 17
the police of the CDRs of the mobile phone of PW-10 or of A-1 and A-2
again was not material enough to derail the prosecution‟s case. This is a case
based on the eye-witness testimony of the prosecutrix which otherwise
stands corroborated by both medical and forensic evidence.

37. For the aforementioned reasons, the Court is satisfied that the
prosecution has been able to prove the guilt of the two Appellants for the
offences with which they were charged, namely Sections 363, 366 and
376 (2) (g)/506 IPC.

Sentence

38. Turning now to the question of sentence, the Court finds no reason to
interfere with the sentence awarded to each of the Appellants for the
offences under Sections 363 and 366 IPC as well as the fine amount and
default sentences.

39. As far as the offence under Section 376 (2) (g) IPC is concerned, the
Court finds nothing much to differentiate between the two accused. While
maintaining the sentence on account of default fine awarded to A-2 for the
offence under Section 376 (2) (g)/506 IPC, the Court modifies the sentence
awarded to A-1 for the aforementioned offence from rigorous imprisonment
for life to rigorous imprisonment for 10 years with the fine amount of
Rs.50,000/- and the default sentence being maintained as awarded by the
trial Court.

40. Consequently, the impugned judgment of the trial Court convicting the
two accused is upheld and the order on sentence is modified to the slight

Crl.A.490/2013 and Crl.A.561/2013 Page 16 of 17
extent qua the sentence awarded to A-1 for the offence under Section
376 (2) (g) IPC as indicated hereinabove.

41. The appeals are disposed of and the applications are dismissed. The trial
Court record be sent forthwith along with a certified copy of this judgment.

S. MURALIDHAR, J.

I.S. MEHTA, J.

MAY 07 2018
‘anb’

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