Delhi High Court
Mohd. Ishtar Alias Istak And Anr vs State on 25 October, 2017
Author: Sangita Dhingra Sehgal
Bench: Sangita Dhingra Sehgal
$~R-12
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 89/2014
Judgment reserved on:12thOctober,2017
Judgment pronounced on: 25thOctober,2017
MOHD. ISHTAR @ ISTAK & ANR ....Appellants
Through: Mr. Sitab Ali Chaudhary, Amicus Curiae,
(Advocate) for appellant No.1
Mr. Arvind Kumar, Advocate for appellant
No.2
versus
STATE ....Respondent
Through: Mr. Ashok Kumar Garg, APP for the State.
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
1. The present appeal has been instituted by the appellants under
Section 374 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as „Cr.P.C.‟) against the impugned judgment dated
13.11.2013 and order on sentence dated 18.11.2013 passed by the
Court of Additional Sessions Judge (hereinafter referred as „ASJ‟),
Special Fast Track Court (North West District), Rohini Courts,
Delhi in case FIR No. 187/2011 registered at Police Station -
Kanjhawala, New Delhi, whereby the appellants were convicted
under Section 376(2)(g) and 506 of the Indian Penal Code, 1860
(hereinafter referred to as „IPC‟) and sentenced to undergo rigorous
imprisonment of ten years and a fine of Rs.10,000 for the offence
punishable under Section 376(2)(g) IPC and in default of payment
of fine, to further undergo two years rigorous imprisonment. The
CRL.A. 89/2014 Page 1 of 28
appellants were further sentenced to undergo rigorous
imprisonment of five years with a fine of Rs.5000/- for the offence
punishable under Section 506 of IPC and in default of payment of
fine the appellants shall further undergo rigorous imprisonment for
one year.
2. The case of the prosecution as observed by the ASJ, vide its order
dated 13.11.2013 is : -
"That on 01/08/2011, SI Rajesh Kumar on receipt of
DD No.26A in the Police Station Kanjhawala met the
complainant/prosecutrix and made inquiries from her
who told about the committal of galat kaam with her,
on which she, accompanied by L/Constable Anita, was
taken to Sanjay Gandhi Hospital where her medical
examination was got conducted vide MLC No.
1073/11, on the MLC the doctor has endorsed,
"Brought for medical examination as victim in case of
sexual assault today". The sealed pullindas handed
over by doctor after her medical examination were
taken into police possession. Thereafter, prosecutrix
accompanied by L/Constable Anita came back to the
Police Station, where NGO Anuradha was also found
present. In the presence of NGO Anuradha,
prosecutrix (namely withheld being a case u/s 376
IPC) W/o Ram Milan R/o Umed Master Ka Makan
near Hira Lal School, Madan Pur Dabas, Delhi,
permanent address; Dev Raha, PS- Jatara, District
Teekamgarh (M.P.) made the statement which is to
the effect that, she along with her family lives on rent
and does the labour work (Mehnat Mazdoori Ka
Kaam) with her husband. Today on 01/08/2011 she
was at her house only as for the last 2-3 days she was
not getting any work and today at about 11:00-12:00
noon in the day time she was going to collect her
balance wages and was passing through 35 Foota
road and when on that road she reached near Masjid
CRL.A. 89/2014 Page 2 of 28
situated on that road, on the way, two persons namely
Mohd. Mustkim and Mohd. Ishtar who does the
masonery work, to whom she was knowing previously
met, who after alluring her, took her in that house
where they used to work (Aaj Dinank 01/08/2011 Ko
Main Ghar Par Thi Kyonki Pichle Do Teen Se Koi
Kaam Nahi Mil Raha Tha Main Aaj Waqt Kareeb
11:00-12:00 Baje Din Apni Pehle Ki Bakaya
Mazdoori Lene Ke Liye 35 Foota Road Par Ja Rahi
Thi Ki Jab Main Us Road Par Stith Masjid Ke Paas
Pahunchi To Mujhe Raste Mei Do Shakhs Jinke Naam
Mohd. Muskeen Va Mohd. Ishtar hain Jo Dono Raaj
Mistry Ka Kaam Karte Hain Va Jinko Mian Pehle Se
Jaanti Hu Mujhe Mile Aur Behla Fusla Kae Mujhe Us
Ghar Mei Le Gae Jahan Ye Dono Kaam Karte The)
and where firstly Mustkim and then, Mohd. Ishtar
committed galat kaam with her and when she tried to
save herself from them, on which Mustkim pressed her
mouth and threatened if she tried to scream then they
will kill her and thereafter, they turn by turn had
committed galat kaam with her, then Mohd. Ishtar
threatened her to go silently to her house if she tried
to disclose the incident to anyone, he will kill her
(Jahan Par Pehle Mustkim Ne Mere Muh Daba Diya
Aur Dhamki Di Ki Yadi Chilaane Ki Koshish Ki To
Jaan Se Maar Denge Iske Baad Jab In Dono Ne Bari
Bari Mere Sath Galat Kaam Kar Liya To Mohd.
Ishtar Ne Kaha Ki Ja Chup Chap Ghar Chali Ja Yadi
Tune Kisi Se Batane Ki Koshish Ki to Jaan Se Maar
Dunga) and she from there came to her house and
when she had reached at her house, her husband had
also come to house for eating the food and she told all
about the incident to her husband (Main Wahan se
Chup Chap Apne Kamre Par Aa Gai Jab Mai Ghar
Aai To Mera Gharwala Bhi Khane K Liye Kamre Par
Aaya Hua Tha Maine Apni Aap Beeti Apne Gharwale
Ko Batai). After too much thinking over the matter
thereafter her husband brought her to the Police
CRL.A. 89/2014 Page 3 of 28
Station at about 5:45 p.m. where she told all about the
incident (Jo Kaafi Vichar Karne Ke Baad Mera Pati
Mujhe Waqt Kareeb 05:45 Baje Sham Thana Le Kar
Aaya Jahan Bhi Maine Aaj Beeti Batai). From there
she along with Lady Constable was sent to Sanjay
Gandhi Hospital and her medical examination was
got conducted and after her medical examination she
has come back to the Police Station at about 11.15
p.m. where her statement has been recorded. She has
heard her statement and is correct. On the basis of the
statement, from the inspection of MLC and the
circumstances on finding that offences u/s 376/506/34
IPC appeared to have been committed, the case was
got registered and the investigation was proceeded
with. During the course of investigation the site plan
of the place of incident was prepared at the instance
of prosecutrix. On the pointing out of the prosecutrix
both the accused Mohd. Ishtar @ Ishtak and Mohd.
Mustkin @ Mustkim were arrested. Their medical
examinations were got conducted and the sealed
pullinda handed over by the doctor after their medical
examination were taken into Police Possession and
were deposited in the Malkhana. Section376(2)(g)
IPC was added in the case. The sealed exhibits were
sent to FSL.
Upon completion of necessary further investigation
challan for the offence u/s 376(2)(g)/506 IPC was
prepared against the accused Mohd. Ishtar @ ishtak
and Mohd. Mustkin @ Mustkim and was sent to the
court for trial."
3. Charge for offences under Section 376(2)(g) and 506 of IPC was
framed against the appellants on 19.12.2011 to which they pleaded
not guilty and claimed trial.
4. In order to substantiate its case, prosecution examined 14
witnesses and proved certain documents. The statements of both
CRL.A. 89/2014 Page 4 of 28
the appellants were recorded under Section 313 of the Cr.P.C,
wherein they denied all the charges against them and pleaded false
implication. In support of their case, they examined 3 witnesses.
5. Learned counsel for the appellants contended that the Trial Court
had erred in holding the appellants guilty for the charged offences
and the judgement rendered by the Trial Court is perverse; that
there are glaring contradictions in the statements of the prosecutrix
recorded at different stages; that the prosecutrix and the appellants
were well acquainted with each other as they worked together as
daily wagers in a construction company; that there was an ongoing
dispute between the prosecutrix and the appellants with regard to
payment of wages for which she falsely implicated the appellants
in the present case; that the alleged place of incident is situated
near a Masjid having a huge gathering of people where the
commission of the alleged offence was impossible; that the
prosecution even failed to examine independent witnesses i.e. local
people around the alleged place of incident; that though the
distance between the police station from the residence of the
prosecutrix was about 3Kms., the prosecutrix took 1½ hours to
reach the police station which casts serious doubt on her
allegations; that there was no material on record in order to
ascertain that the sexual intercourse was committed by the
appellants; that the prosecution case was neither supported by
medical evidence nor by scientific evidence; that the testimonies of
defence witnesses have not been dealt with in a right prospect.
CRL.A. 89/2014 Page 5 of 28
6. Rebutting the contentions of the learned counsel for the appellants,
learned Additional Public Prosecutor for the State, submitted that
the impugned judgement does not call for any interference; that
there were no inherent contradictions in the testimony of the
prosecutrix nor did the same suffer from material discrepancies;
that abrasions were found on the right leg of the prosecutrix during
her medical examination; that the prosecutrix did not protest under
the threat of the appellants and hence mere absence of injury on the
internal and external parts of her body is not conclusive of the fact
that she has not been subjected to rape; that the prosecution was
able to prove its case beyond any reasonable doubt. Under the
circumstances, it was submitted that there is no merit in the appeal
and hence the same be dismissed.
7. I have heard learned Counsel for the parties and have also perused
the material available on record.
8. At this juncture, it is necessary to scrutinise the evidence(s) which
have emerged on record.
9. The law is well settled that conviction can be based on the sole
testimony of the prosecutrix, if the same is found to be worthy of
credence and can be relied upon in the absence of further
corroboration.
Hence, it is relevant to rummage through the testimonies of the
Prosecutrix (PW-1), who during her examination-in-chief deposed
as under:
"In the year, 2011 at the time of incident I was
residing in the house of Umed Master near School
CRL.A. 89/2014 Page 6 of 28
in village Madanpur Dabas, Delhi. My husband
does maisnary work and I also work as a labour. It
was an incident of first day of month, month and
the year I do not remember. For 2/3 days I was on
rest and had not gone to my work and on that day I
was going from 35 feeta road in the Madanpur
village to take my due wages of the labour from the
contractor where I had worked whose name I do
not remember at about 12:00 noon or 1:00 pm. In
the gali of the 35 feeta road when I was passing
where accused Mushatkin and Mohd. Ishtar were
doing maisenary work known to me both of them
caught hold of me and took me inside the room
where they were working. Accused Mushatkin
pressed my mouth and accused Ishtar threatened
me if I raised my alarm I would be killed. Both
accused Mushtakin and Mohd. Ishtar committed
„galat kaam‟ upon me. Galat kaam i mean what is
being done by husband to his wife. Firstly, Mohd.
Ishtar committed the galat kaam upon me and
thereafter accused Mushtkin committed galat kaam
upon me and thereafter both the accused persons
threatened and intimidated me and asked me to go
silently to my house. At about 1:00 or 1:30 pm my
husband came to the house and then I narrated the
whole incident to him. Thereafter, I along with my
husband had gone to the police station at about
5:00 or 6:00 pm. My statement was recorded at the
police station, the same is Ex.PW1/A which is right
thumb impressed by me at point A Then i was
medically examined by the police in SGM Hospital
in the same night. My clothes which I was wearing
at the time of the incident were seized by the
doctor My statement u/s 164 CrPC was also got
recorded by the police.
CRL.A. 89/2014 Page 7 of 28
XXXX The statement u/s 164 CrPC shown to the
witness who identifies the same to have been made
by her and the same is EXPW1/B and right thumb
impressed by her at point A & B. XXXX
Accused Mushtkin and Ishtar are present in the
court (correctly identified).
On the same night I joined investigation and
pointed out the place of incident and police
prepared the site plan at my instance and arrested
both the accused Mushtkin and Mohd. Ishtar who
were found sleeping there. The arrest memos of
accused Mushtkin and Ishtar are ExPW1/C and
PW1/D respectively which have been right thumb
impressed by me at point A...."
During her Cross Examination, the prosecutrix deposed as under: -
"XXXX It is wrong to suggest that I have deposed
falsely as no such incident could have taken place
in the 12:00 to 1:00 hours. It is wrong to suggest
that I was previously knowing the accused persons.
It is wrong to suggest that I was previously
knowing both accused very well or that my dues/
wages were pending payable by the accused
persons and for taking the same, I had gone to the
accused persons. It is wrong to suggest that there
was a money dispute between me and the accused
persons and for this reason, I have falsely
implicated the accused persons. It is wrong to
suggest that no incident could have taken place in
the house as the labourers must have been working
here. Vol. In the said house, only the two accused
persons are working at that time. It is wrong to
suggest that no incidence of rape took place with
me.XXXX
CRL.A. 89/2014 Page 8 of 28
I did not know the name of both the accused
persons prior to the incident. Vol. after the date of
incident I came to know the name of the accused
persons as Mustkin and Ishtiyar. I along with my
husband had gone to the police station at about 5
pm for lodging the report. The police station is
situated a far place from my house. It is wrong to
suggest that it had taken 19 minutes time only from
my house to reach at the police station. It is
correct that accused were arrested at my instance
in the night time by the police.XXXX"
10. The primary contention of the learned counsel for the appellants is
that there are several contradictions in the statements of the
prosecutrix recorded at different stages. Therefore, the first issue
which calls for determination by this Court is whether there
exists any contradiction in the statements of the prosecutrix and
if so whether the contradictions are material enough to cast
doubt on the veracity of the prosecution narrative.
11. The first contradiction as pointed out by the learned counsel for the
appellants is with regard to the fact as to how the prosecutrix was
taken to the alleged place of crime.
12. As perused from the records, the prosecutrix in her statement
recorded under Section 164 Cr.PC, she had mentioned that at
around 12 p.m., when she was going to collect her due wages from
Mir Vihar, she met the accused persons on her way, whom she
knew from before and had a conversation with them. On asking by
the accused persons, she informed them that she was going to
collect her remaining wages from Mir Vihar. Accused Mushtakim
CRL.A. 89/2014 Page 9 of 28
asked her to come along with them and on refusal, accused
Mustakim forcefully kept his hand on her mouth and asked her to
accompany and also threatened to kill her if she refuses.
Thereafter, they took her away.
13. Further, when the prosecutrix appeared as PW-1, she deposed that
"In the gali of the 35 Foota Road when I was passing where
accused Mushtakim and Mohd. Ishtar were doing maisenary work
know to me both of them caught hold of me and took me inside the
room where they were working."
14. On bare reading of the above statements made by the prosecutrix
during the course of recording of the evidence, it is seen that the
prosecutrix has named the appellants and assigned them a specific
and definite role in the incident. Further, the fact that she was
threatened by the appellants while she was crossing 35 foota road
and was thereafter forcibly taken away to the place of commission
of crime, has remained consistent. The contradictions seen herein
are minor contradictions that are not material enough to affect the
case of the prosecution.
15. The second contradiction highlighted by the counsel for the
appellants is that the prosecutrix and the appellants knew each
other much prior to the alleged incident as they previously worked
together as daily wagers in a construction company and were
involved in a dispute with regard to wages.
CRL.A. 89/2014 Page 10 of 28
16. PW-1 in her statement under Section 161 Cr.P.C. has stated that
"Main in dono ko Mohd. Mushtkim or Ishtar ko kuch mahine se
janti thi. In sardiyon mein maine 10-12 din in dono ke sath
thekedar ke liyen kaam kiya tha."
Further, during her examination in chief she stated that "For 2/3
days I was on rest and had not gone to my work and on that day I
was going from 35 feeta road in the Madanpur village to take my
due wages of the labour from the contractor where I had worked
whose name I do not remember at about 12:00 noon or 1:00 pm. In
the gali of the 35 feeta road when I was passing where accused
Mushatkin and Mohd. Ishtar were doing maisenary work known to
me both of them caught hold of me and took me inside the room
where they were working."
In Cross-Examination she stated as "It is wrong to suggest that I
was previously knowing both accused very well or that my dues/
wages were pending payable by the accused persons and for taking
the same, I had gone to the accused persons...........It is wrong to
suggest that there was a money dispute between me and the
accused persons........ I did not know the name of both the accused
persons prior to the incident. Vol. after the date of incident I came
to know the name of the accused persons as Mustkin and
Ishtiyar..."
CRL.A. 89/2014 Page 11 of 28
17. As such, the testimony of the prosecutrix finds substantial
corroboration from the testimony of the prosecution witness
PW-2 Ram Milan (Husband of the Prosecutrix). who deposed on
similar lines as under: -
"I was working as a mason. On 01.08.201 as usual I
went to my work place and in the lunch time when I
returned to my house my wife was weeping. I asked the
reason of weeping and she has stated that accused
Mushtakin and Mohd. Ishtar had committed galat kaam
with her. Galat kaam I mean rape. I was astonished to
listen this and set in the house lonely. My children also
started weeping. At about 5:00 or 5:45pm I took my
wife to the police station. Police had lodged the report
on the basis of the statement of my wife. My wife was
also got medically examined by the police from Sanjay
Gandhi Hospital and we returned at our house and I
joined the investigation and accompanied the police
officials to the place where my wife was raped and both
accused Mushtakin and Mohd. Ishtar were
apprehended as were found sleeping, at the instance of
my wife.I had also accompanied my wife to the court
where her statement was recorded by the Magistrate. I
can identify both the accused if shown to me. Accused
persons present in court today (correctly identified)."
During cross examination, PW-2 Ram Milan (Husband of the
Prosecutrix), stated as under: -
"The incidence is of dated 01/08/2011. I had returned
to the house on the date of incident in the lunch time at
about 1:30pm.
Q: What your wife had told to you at that time when
you had returned to the house in the lunch time, on the
date of incident?
CRL.A. 89/2014 Page 12 of 28
A. She was weeping and I asked her as to what has
happened, on which she has stated that Ishtaq and
Mushtakin had commiteed galat kaam with her. I took
her to PS Khanjhawala at about 5:00pm and met the
police officials and told them all about the incident.
The police station was at a distance of 3-4 kilometers
from our house. We went to the PS by bus. It took about
1-1/2 hours to reach at the PS from our house by bus.
My wife was not working with Ishtaq and Mushtakin.
No wages were lying balance of my wife with Ishtaq
and Mushtakin. Vol. She had gone to collect her wages
from the other side where she had worked earlier and
when she was passing through a gali, she was caught
by Ishtaq and Mushtakin. It is wrong to suggest that
both Ishtaq and Mushtakin are the masons (raj mistri)
and it is they, who had got the work to my wife at the
site, of which she had gone to collect her wages. It is
wrong to suggest that accused ishtaq and Mushtakin
have been falsely implicated in this case as there was
some altercation (noke jhoke) on the issue of giving the
wages. It is wrong to suggest that no galat kaam had
ever been committed by the accused persons with my
wife. It is further wrong to suggest that of the
happening of the altercation (noke jhoke) after three
hours thereof, in a planned manner, both the accused
have been falsely implicated in the case. It is wrong to
suggest that I am deposing falsely."
18. Also the husband of the prosecutrix/PW-2 has stated in his
cross-examination that "My wife was not working with Mohd.
Ishtar and Mustkim and no wages lying balances of my wife with
accused persons.......... She had gone to collect her wages from the
CRL.A. 89/2014 Page 13 of 28
other side where she had worked earlier and when she was passing
through a gali, she was caught by Ishtaq and Mushtakin." It is
clear that both the prosecutrix and her husband have stated that
there was neither any dispute regarding wages between the
prosecutrix and the appellants nor the prosecutrix knew the
appellants prior to the incident. Even on scrutiny of the statements
made by the defence witnesses it is set out that the present
contention holds no ground.
19. Further, the statements of other prosecution witnesses corroborate
with that of the prosecutrix and PW-2 with respect to the fact of
time and place of the alleged incident, reporting of the said
incident in the police station, joining of investigation with the
police officials, arrest of the appellants at the instance of the
prosecutrix and medical and scientific examination.
20. PW-4 ASI Ashok Kumar deposed as under :-
"On 01.08.2011 I was posted as duty officer in
police station Kanjhwala and was on duty from
5:00pm and 9:00am. On that day at about 5:50 pm
one Munni Devi w/o Ram Milan along with her
husband Ram Milan came in the police station and
got registered DD No. 26A. Thereafter, copy of the
same was handed over SI Rajesh Kumar who
proceeded for SGM Hospital along with Constable
Anita and complainant Munni Devi. Information
was also given to NGO. Today I brought the
original DD register. The copy of the DD no. 26A
is Ex.PW4/A(OSR).
On the same day at about 11:45pm I received a
rukka from SI Rajesh Kumar himself and on the
basis of which and on my instruction FIR No.
187/11 under Section 376/506/34 IPC was
CRL.A. 89/2014 Page 14 of 28
registered. After registration of the FIR I handed
over copy of FIR and original rukka to Constable
Rohtash for handling over to SI Rajesh. Today I
have brought the original FIR register. The copy
of the FIR is Ex. PW4/B bearing my signature at
point A(OSR) I also made endorsement on the
rukka which is Ex, PW4/C bearing my signature at
point A."
21. PW-6 Constable Dheeraj (Police Station Alipur) deposed as under: -
"On 01.08.2011 I was posted as constable in
police station Kanjhwala. On that day in the night
at about 11:45pm, I along with SI Rajesh,
constable Harinder, complainant Munni Devi and
her husband remained in the investigation of the
present case and reached at the spot i.e. 35 foota
road near Bali Masjid, Madanpur Dabas, Meer
Vihar, Delhi where complainant had pointed out
the place of occurrence. IO prepared the site plan.
The two accused persons namely Mohd. Mushtkin
nad Mohd. Ishtar were apprehended at the
instance of the complainant, they were
interrogated and arrested. Accused were taken to
SGM Hospital, Mangolpuri where they were
medically examined. After medical examination,
doctor handed over the exhibits of both the
accused and I handed over the same to the IO.
Same were seized vide memo Ex.PW6/A and
EX.PW6/B respectively. Thereafter, accused were
sent to police lock up. Both the accused are
present in the court today."
22. PW-8 Manshur Ansari (Owner of the house) deposed as under:-
"I am the owner of the house where the alleged
incident had taken place. At that time the house C-
129 Mir Vihar, Madan Pur Dabas, Delhi was
under construction and the construction was going
CRL.A. 89/2014 Page 15 of 28
on under the supervision of contractor (thekedar)
Manjoor. He is now not available."
23. PW-9 Ct. Rotash deposed as under:-
"On the intervening night of 01/02.08.2011 I was
posted at PS Kanjhawla. On that day I was on
emergency Duty from 8:00pm to 8:00am. On that
day at about 12:45am (night) DO has given me
copy of FIR and original Tehrir to handed over the
same to IO SI Rajesh Kumar who was present at
35 foora road near Masjid Madan Pur Dabas. I
went there and found that two persons were
apprehended by Ct. Harender and Ct. Dheeraj
along with SI Rajesh Kumar. I handed Over copy
of FIR and original Tehrir to SI Rajesh Kumar to
whom further inestigation was marked. My
statement was also recorded by IO."
24. PW-10 Investigating Officer SI Rajesh Kumar deposed that: -
"On 01.08.2011 I was posted as sub inspector in
PS Kanjhawla. On that day DD No. 26A, a copy of
which is already exhibited as ExPW4/A was
handed over to me. Complainant Munni Devi met
in the PS along with her husband. On inquiry,
Munni Devi told me that rape has been committed
upon her so I along with lady Ct. Anita took Munni
Devi to SGM Hospital for medical examination.
She was medically examined and after her medical
examination, doctor handed over the pullindas
containing the exhibits which were seized by me
vide memo Ex. PW10/A, bearing my signature at
point A. We came back in the PS. NGO Anuradha
was called and she did the counselling of the
complainant Munni. I recorded her statement
already Ex. PW/A and attested her thumb
impression at point A, bearing my signature at
point B. I prepared the rukka Ex. PW10/B, bearing
CRL.A. 89/2014 Page 16 of 28
my signature at point A. Rukka was handed over to
Duty Officer for registration of FIR. Thereafter, I
along with Munni, her husband, Ct. Dhiraj and Ct.
Harender reached at the spot i.e. newly
constructed house 35 foota roas near Balli Masjid,
Madanpur Dabas, Mir Vihar, Delhi and there at
the instance of the complainant. I prepared the site
plan Ex. PW1/F, bearing my signature at point B.
The two accused Md. Mushtkin and Md. Ishtar
were apprehended at the instance of the
complainant. They were interrogated and arrested
vide arrest memo already Ex. PW1/C and
ExPW1/D, their personal search were conducted
vide memo Ex.PW10/C and EXPW10/D, bearing
my signature at point A. Accused were taken to
SGM Hospital for medical examination.
Complainant was instructed to reach in PS in the
noon. Both the accused were medically examined
and after their medical examination, doctor
handed over the pullindas containing their exhibits
which were seized vide memo Ex. PW6/A and
Ex.PW6/B, bearing my signature at points B.
Thereafter, we came back to PS and the case
property was deposited in the malkhana and the
accused persons were sent to police lockup.
...XXX I moved an application for recording
statement of complainat/prosecutrix u/s 164 CrPC
which is Ex. PW10/A/G, bearing my signature at
point A. Her statement got recorded and thereafter
I obtained the copy of the same vide application
Ex. PW10/H, bearing my signature at point A. I
recorded the statement of witnesses...XXXX
...XXX Both the accused are present in the court
today (correctly identified)...XXX"
CRL.A. 89/2014 Page 17 of 28
During Cross Examination, PW-10/ SI Rajesh Kumar stated as
under: -
"DD No. 26A was handed over to me at about
5:50pm. There is a distance about 4/5 km between
the police station and place of occurrence. The
rape was committed upon prosecutrix between
11:00am to 12:00 noon. It took five minutes to
reach from PS to the place of occurrence by
vehicle. Complainant reached at PS at about 5:40-
5:45 pm. Complainant told that after the arrival of
her husband she has come to the PS to lodge the
report. It is wrong to suggest that there was a
dispute between the complainant and accused
regarding the wages and later on a false case has
been registered against the accused persons. It is
wrong to suggest that I did not visit the spot or that
all the proceedings were done in the PS. On the
one side of the place of occurrence there are
houses and on the other side there is vacant plots.
No other person were present at the spot which
was a under construction building except accused
persons. When I visited the spot no construction
work was going on at that time. I do not remember
the complete name of Tehkedar today. I cannot say
as to whether two masons and three labourers
were working at that time in that house. It is wrong
to suggest that all the proceedings had conducted
in the PS without visiting the spot as deposed or
that no incident as alleged ever took place or that
a false case has been foisted upon the accused
persons...XXX"
25. PW-12 W.Ct Anita deposed as under: -
"On 01.08.2011 I was posted as constable in PS
Kanjhawla. On that day at about 5:50 pm IO SI
Rajesh handed over to me complainant Munni w/o
Ram Milan for her medical examination. I took her
CRL.A. 89/2014 Page 18 of 28
in SGM Hospital where she was medically
examined and after medical examination, doctor
handed over the pullinda containing the exhibits.
We came back to police station and I handed over
pullinda to IO which were seized vide memo
Ex.PW10/A, bearing my signature at point B. IO
recorded the statement of complainant in the
present of NGO Anuradha and got the FIR
registered."
26. The statement of the prosecutrix narrates the entire incidence as to
how she was sexually assaulted by the appellants and she has
remained consistent, unfettered and invariable during recording of
her statements. On perusal of the above statements, it can be seen
that there are no material contradictions in the statements of the
prosecutrix and the facts regarding the commission of the crime
upon her has remained constant and intact. Moreover, it is also to
be taken in account that even if there were some minor
contradictions, the same were never questioned to her by the
counsel for the appellants during is also corroborated with that of
other prosecution witnesses. Keeping in view the above, it is a well
settled proposition of law that contradictions in the statement of the
witness is fatal for the case, however, minor discrepancy or
variance in evidence will not make the prosecution case doubtful.
In the present case, the testimony of the prosecutrix inspires
confidence and can be totally relied upon despite minor
contradictions.
CRL.A. 89/2014 Page 19 of 28
27. In Narayan Chetanram Chaudhary & Anr. vs State Of
Maharashtra (CRL.A.25-26/2017), the Apex Court inter-alia
observed as under: -
"There is bound to be some discrepancies between the
narrations of different witnesses when they speak on
details, and unless the contradictions are of a material
dimension, the same should not be used to jettison the
evidence in its entirety. Incidentally, corroboration of
evidence with mathematical niceties cannot be expected
in criminal cases. Minor embellishment, there may be,
but variations by reason therefore should not render the
evidence of eye-witnesses unbelievable. Trivial
discrepancies ought not to obliterate an otherwise
acceptable evidence.
The Court shall have to bear in mind that different
witnesses react differently under different
situations: whereas some become speechless, some
start wailing while some others run away from the
scene and yet there are some who may come
forward with courage, conviction and belief that
the wrong should be remedied. As a matter of fact
it depends upon individuals and individuals. There
cannot be any set pattern or uniform rule of human
reaction and to discard a piece of evidence on the
ground of his reaction not failing within a set
pattern is unproductive and a pedantic exercise."
28. The next issue which requires determination is whether the
medical and the scientific evidences support the case of the
prosecution.
29. In the MLC of the prosecutrix, the examining doctors PW-3
Dr.Brijesh Singh, and PW-7, Dr. Aditi (the gynaecologists), have
stated that there was "no external injury/ mark on the vital parts of
CRL.A. 89/2014 Page 20 of 28
the prosecutrix , however, an Abrasion 4 X 1 cm on right leg
antreolateral aspect."
30. The appellants were also taken to the hospital for medical
examination and their MLC were prepared according to which
there was nothing to suggest that they were incapable of
performing the act of the sexual intercourse.
31. It is to be recalled here that the prosecutrix had mentioned in her
statements that she was threatened by the appellants that if she tried
to raise an alarm she would be killed by them. Therefore, in these
circumstances there is every possibility that the prosecutrix out of
fear of death might have not resisted to the extent so as to
withstand any injury on her body. Therefore, mere absence of
injuries either as a mark of resistance to the advances allegedly
made by the appellants or as internal injuries, would not by itself
discard the testimony of prosecutrix. Each case requires to be
examined on its own facts and circumstances. It is a settled
proposition that injury is not sine qua non to prove the offence of
sexual act, provided the evidence of the victim does not suffer from
any basic infirmity and the probability factor does not render it
unworthy of credence.
32. In Ranjit Hazarika v. State of Assam, reported in (1998) 8 SCC
635, it was stated that:
"Neither the non-rupture of the hymen nor the
absence of injuries on her private parts, therefore,
belies the testimony of the prosecutrix particularly
when we find that in the cross-examination of the
prosecutrix, nothing has been brought out to doubt
CRL.A. 89/2014 Page 21 of 28
her veracity or to suggest as to why she would
falsely implicate the appellant and put her own
reputation at stake. The opinion of the doctor that
no rape appeared to have been committed was
based only on the absence of rupture of the hymen
and injuries on the private parts of the prosecutrix.
This opinion cannot throw out an otherwise cogent
and trustworthy evidence of the prosecutrix.
Besides, the opinion of the doctor appears to be
based on "no reasons"."
33. In Wahid Khan vs. State of M.P. reported in (2010) 2 SCC 9, it
was held as: -
"It has been a consistent view of this Court that
even a slightest penetration is sufficient to make
out an offence of rape and depth of penetration is
immaterial.
XXXX
It is appropriate in this context to reproduce the
opinion expressed by Modi in Medical
Jurisprudence and Toxicology (Twenty Second
Edition) at page 495 which reads thus :
"Thus, to constitute the offence of rape, it is not
necessary that there should be complete
penetration of penis with emission of semen and
rupture of hymen. Partial penetration of the penis
within the Labia majora or the vulva or pudenda
with or without emission of semen or even an
attempt at penetration is quite sufficient for the
purpose of the law. It is therefore quite possible to
commit legally, the offence of rape without
producing any injury to the genitals or leaving any
seminal stains. In such a case, the medical officer
should mention the negative facts in his report, but
should not give his opinion that no rape had been
CRL.A. 89/2014 Page 22 of 28
committed. Rape is crime and not a medical
condition. Rape is a legal term and not a diagnosis
to be made by the medical officer treating the
victim. The only statement that can be made by the
medical officer is to the effect whether there is
evidence of recent sexual activity. Whether the
rape has occurred or not is a legal conclusion, not
a medical one."
XXXXX
Similarly in Parikh's Textbook of Medical
Jurisprudence and Toxicology, 'sexual intercourse'
has been defined as under:
"Sexual intercourse.- In law, this term is held to
mean the slightest degree of penetration of the
vulva by the penis with or without emission of
semen. It is therefore quite possible to commit
legally the offence of rape without producing any
injury to the genitals or leaving any seminal
stains."
28.If the aforesaid facts are kept in mind, it cannot
be disputed that the act of the appellant would
certainly constitute an offence of rape and leaves
no amount of doubt in our mind."
34. Let us now examine another significant piece of evidence which is
the CFSL Report exhibited as Ex. PX, which states that there was
presence of human semen on exhibit „S-1(a)(ii)‟(Petticoat of the
prosecutrix seized vide seizure memo Ex. PW10/A), exhibit „S-1(d)‟
(Cotton wool swab on a wooden stick of the prosecutrix, seizure
memo ExPW10/A), and exhibit „S-2‟(underwear of accused Mohd.
CRL.A. 89/2014 Page 23 of 28
Ishtak, seizure memo Ex. PW6/A). On analysis of this report, it is
seen that there was presence of human semen on the petticoat of
the prosecutrix and in the undergarment of the accused Mohd.
Ishtar@Istak.
35. After the perusal of the above facts, it is to be seen that similar
views were taken in the case of Nannu Gupta @ Bablu v State
reported in 2010 II AD (Delhi) 117, semen was found on the
underwear of the accused. There was no explanation from the
accused as to how the semen came on his underwear, therefore, it
was held that the inference is that semen came on his underwear
when he attempted to commit rape with the prosecutrix. In the
instance case, semen was detected not only on the underwear of the
appellant/ Mohd. Ishtar@Istak but also on prosecutrix and no
explanation has been given by the appellant for presence of semen
on his and victim‟s clothes. Therefore, it is another strong
corroborative piece of evidence against the appellants.
36. In the facts and circumstances of the present case, it is clear that
alleged incident had taken place. Merely because the prosecutrix
was a helpless victim who was by force prevented from offering
serious physical resistance, cannot be disbelieved. Therefore, on
the combined reading of medical and ocular evidences in the light
of present facts and circumstances of the case, it can be said that
the evidences adduced herein are fully established.
37. Now proceeding further, the next issue involved in the present
case is whether reliance can be placed on the case of the
prosecution in the absence of any independent witnesses.
CRL.A. 89/2014 Page 24 of 28
38. Counsel for the appellants contended that the alleged incident is
stated to have taken place in broad day light near a Masjid having
huge gathering of people, however the prosecutrix did not raise any
hue and cry to gather the people present around the place of
incident. Also the prosecution has not examined any independent
witness(es) i.e. the local people on or around place of incident and
the working labourers, in support of their allegations. The said
contention cannot be accepted on the basis of the judgement given
by this court on similar lines which categorically states that non
examination of the independent witness is not fatal to the case of
the prosecution. In Ram Dev v State of NCT of Delhi(Crl. Appeal
No.61/13) it was stated that
"The next contention of Learned Counsel for the
Appellant is that the evidence of the prosecution is
not worthy of credence for the reason that the
incident allegedly took place in a thickly populated
area at the rooftop. Despite that, there is no
independent witness to hear the cries of the
prosecutrix. The absence of independent witness,
in my opinion, is not a reason to discard the
testimony of the prosecutix which is corroborated
by the medical evidence as well as forensic
evidence, i.e., report of CFSL."
13 Further, In the case of Jawahar v. State reported in (2007) ILR 2
Delhi 146, it was observed as under: -
"As far as non association of public witnesses at
the time of recovery is concerned, I consider that
this is not an infirmity sufficient to throw out the
case of the prosecution. It is very hard these days
CRL.A. 89/2014 Page 25 of 28
to get association of public witnesses in criminal
cinvestigation. Investigation itself is a tedious
process and a public witness, who is associated,
has to spend hours at the spot. Normally, nobody
from public is prepared to suffer any
inconvenience for the sake of society. The other
reason for the public witness not readily agreeing
to associate with investigation is harassment of
public witness that takes place in the courts.
Normally a public witness should be called once to
depose in the court and his testimony should be
recorded and he should be discharged. But
experience shows that adjournments are given
even in criminal cases on all excuses and if
adjournments are not given, it is considered as a
breach of the right of hearing of the accused.
These adjournments are specifically taken by
counsels for accused persons, when witnesses are
present, just to see that witnesses get harassed by
calling them time and again. The excuses normally
given in the courts are : the counsel having urgent
personal work, left the court; death of some near
relatives etc; the counsel being busy in arguing
other matter in other court or cross examining
other witness in some other court. This attitude of
the courts of sending witness back is a major cause
of harassment which discourages public from
associating in the investigation of any case. Since
the police is faced with this handicap, the police
cannot be blamed for not associating public
witness. There is no presumption that the police
witnesses are not credible witnesses. The testimony
of every witness, whether from public or police,
has to be judged at its own merits and the court
can believe or disbelieve a police witness
considering the intrinsic value of his testimony.
Police witnesses are equally good witnesses and
equally bad witnesses as any other witness and the
CRL.A. 89/2014 Page 26 of 28
testimony of police witness cannot be rejected on
the ground that they are official witnesses."
Therefore, it is a well settled principle of law that mere non
association of the independent witness itself is no ground to throw
out the entire case of the prosecution.
39. In light of the facts and circumstances of the present case, this
Court finds no reason to view the testimony of the prosecutrix with
doubt, disbelief or suspicion. The evidence adduced so far, by the
prosecution, does persuade this court to uphold the guilt of the
appellants. The medical and scientific evidence on record also
lends assurance to her statement and is sufficient to satisfy the
judicial conscience. This Court is therefore satisfied that, implicit
reliance can be placed upon the testimony of prosecutrix. Thereby,
the circumstances stand conclusively proved by the unimpeachable
testimonies of the prosecution witnesses. In view of the settled
legal principle, testimony of the prosecutrix herself is sufficient to
bring home the guilt of the appellants which, in the instant case,
finds corroboration from the narration of the entire incident to her
husband, medical as well as scientific evidence, as such the Trial
Court rightly convicted the appellants by holding that the
prosecution has succeeded in establishing the case beyond
reasonable doubt.
40. Hence, on no count does the impugned judgment call for any
interference. The Trial Court has fully appreciated the evidence
placed on record by the parties. Findings of conviction cannot be
CRL.A. 89/2014 Page 27 of 28
said to be erroneous or perverse. Moreover the appellants, have
committed the heinous offence of rape for which they deserve no
leniency and shall undergo the remaining part of the sentence as
awarded by the Additional Sessions Judge.
41. The conviction of the appellant under Section 376(2) (g) and
506(2) of IPC and sentence awarded thereunder is upheld.
42. Under the circumstances, the appeal being bereft of merit is
dismissed.
43. Records of the Court below be sent back forthwith along with the
copy of the order.
44. Copy of this order be sent to the concerned Tihar Jail
Superintendent for information.
SANGITA DHINGRA SEHGAL, J.
OCTOBER 25, 2017 gr// CRL.A. 89/2014 Page 28 of 28