Delhi High Court
Balram vs State Nct Of Delhi on 27 October, 2017
Author: Sangita Dhingra Sehgal
Bench: Sangita Dhingra Sehgal
$~R-12A
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 190/2014
Judgment reserved on: 29th August 2017
Judgment pronounced on: 27th October 2017
BALRAM .....Appellant
Through: Mr. Dhan Mohan, Mr. Tanu B.
Mishra, Advocates.
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Akshai Malik, APP for the
State.
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
1. The present appeal has been instituted under Section 374 of The
Code of Criminal Procedure, 1973, (hereinafter referred as
'Cr.P.C.') by the appellant assailing the impugned judgment dated
07.12.2013 and order on sentence dated 16.12.2013 passed by the
Court of Additional Session Judge, Dwarka Courts, New Delhi,
(FIR No. 99/2012, P.S. Dwarka North, New Delhi), whereby the
appellant was convicted under Section 376 of The Indian Penal
Code, 1860 (hereinafter referred to as 'IPC') and was awarded
rigorous imprisonment for ten years and a fine of Rs.30,000, and in
default, to further undergo one year simple imprisonment.
2. The case of the prosecution as observed by the Trial Court vide its
order dated 16.12.2013, is that: -
"As per the prosecution case, information was received
at the police station on 07.05.2012 at about 2:35 p.m.
regarding a quarrel at House No. A-489, near Mother
Dairy, Sector-15, Dwarka. Same was reduced into
CRL.A.190/2014 Page 1 of 30
writing as DD No. 15A and was marked to SI Umesh
Kumar for suitable action. Accordingly, SI Umesh
Kumar reached the aforesaid spot and met the
informant Arun Kumar, who told him that the victim
girl has gone to House No. E-202, Bharat Vihar. SI
Umesh Kumar reached the House No. E-202, where he
met the prosecutrix „S‟ (real name withheld in order to
conceal her identity), who told her that she along with
two other girls namely „SR‟ and „G (real names
withheld in order to conceal her identity) have been
raped.
He brought all the girls to police station and produced
them before the SHO. The SHO handed over them to SI
Nirmal Sharma for further inquiries. SI Nirmal Sharma
recorded the statement of prosecutrix „S‟ who stated
that she along with the prosecutrix „G‟ had come to
Delhi about ten days ago with a lady named Sunita in
search of a good job and on reaching Delhi, Sunita
took them to a house in Mahavir Enclave, where Kishan
and his wife Monika were staying.
On 03.05.2012 the landlord of the house evicted them
from the house. Monika took her along with the
prosecutrix „SR‟ as well as „G‟ to Shani Bazar and left
them on Shani Bazar road. After sometime, Kishan
reached there and called his friend Balram. Balram
reached there in his Maruti car and took three girls to a
house where he committed rape upon the prosecutrix
„S‟ and Kishan committed rape upon the prosecutrix
„SR‟ and „G‟. She further stated that Kishan and
Balram had threatened them not to narrate the incident
to anybody or otherwise they would be killed. They
became frightened as they did not know anybody in
Delhi.
In the morning, Kishan brought them to Sector-14,
Dwarka Metro Station, from where he took them to
Pooja‟s house in Sector-15, Dwarka, on foot. After
sometime, Kishan took „G‟ and „SR‟ to his room and
left the prosecutrix „S‟ at the house of Pooja. In the
house of Pooja, „S‟ was raped by a person on
04.05.2012 whom she did not know. She had refused to
CRL.A.190/2014 Page 2 of 30
permit that person to have intercourse with here but
was threatened by Pooja. Thereafter, „S‟ went to the
house of Monika. Meanwhile, Monika had come to
know that her husband Kishan had raped „G‟ and „SR‟
and upon this a quarrel took place between her and her
husband. „S‟ and „G‟ told Monica that they want to go
to their native village but she told them that they will
have to compensate her for the expenses of these days
by earning for her and confined them inside her house.
In the morning, „S‟ got an opportunity to come out of
the house and asked a person to make a call at
telephone no. 100, upon which the police reached that
house and recovered them."
3. In order to substantiate its case, the prosecution in all examined 23
witnesses and got exhibited certain documents. The statements
under Section 313 Cr.P.C were recorded wherein the appellant
denied all the incriminating circumstances appearing against him in
evidence and claimed his false implication in the case.
4. After considering the evidence on record and the contentions of the
parties, the Trial Court held the appellant guilty for the offence
under Sections 376 IPC. Hence the present appeal.
5. Mr. Dhan Mohan, learned Counsel for the appellant contended that
the impugned judgement is based on conjectures and surmises and
is not properly supported by the evidence/material on record; that
despite material contradictions in the statement of the prosecutrix
the Trial Court has relied upon the same which ultimately
culminated into conviction of the appellant; that there were
material contradictions in the testimonies of other prosecution
witnesses also, however the same had been ignored; that the case
of the prosecution was registered vide DD no. 15A at about 2:35
CRL.A.190/2014 Page 3 of 30
PM on 07.05.2012 with regard to a quarrel which took place at A-
Block, Sector-15, Dwarka and not in connection with the
commission of rape at House No. E-202, Bharat Vihar; that there
was a time gap between the lodging of the complaint on
07.05.2012 and the arrest of the appellant by the police officials on
13.05.2012; that the Trial Court had further erred in not taking note
of the fact that the MLC and FSL reports fail to support the case of
the prosecution; that the site plan prepared by the police officials
was false and fabricated; that PW-7 and PW-14 have turned
hostile; that no independent public witness was examined by the
prosecution; that the present case is wholly based on circumstantial
evidence and the prosecution had miserably failed in completing
the chain of events, to prove the guilt of the appellant.
6. Per contra, Mr Akshai Malik, learned Additional Public Prosecutor
for the State contended that even though PW-7 and PW-14 have
turned hostile, their statements under Section 164 Cr.P.C. have
fully corroborated with the statement of the prosecutrix (PW-6);
that except minor discrepancies, the statement of the prosecutrix
was consistent and also withstood the test of cross-examination;
that the prosecution had proved its case on all counts and hence no
interference is called for by this Court.
7. I have heard learned counsel for the parties and have also perused
the material available on record.
8. At this juncture, the appreciation of evidence brought on record
requires to be appositely scrutinized to adjudge the fact whether the
appellant is guilty of his culpability.
CRL.A.190/2014 Page 4 of 30
9. First it would be relevant to rummage through the statements of the
prosecutrix/PW-6/'S' recorded at various stages.
PW-6 in her statement recorded under Section 164 Cr.P.C stated
that she was brought to Delhi on 02.05.2012 and on 03.05.2012 she
along with Sonu and Gudia was taken to Shani Bazaar by Monika.
Thereafter, Monika left them in the market and went back to her
house. After sometime, Kishan came to the market and called
Balram, who took them to his house. He committed sexual assault
on her throughout the night and even threatened her. Next day,
Kishan took them to Pooja‟s place where he left all three of them in
her house and went away. Kishan shifted to a new house in sector-
14, Dwarka. Pooja brought them to Kishan‟s new house and left
Sonu and Gudia there. On being asked by Pooja to come back
along with her, Suman went back to Pooja‟s house where a man
was already present, who thereafter committed sexual assault upon
Suman. Pooja even took money from that person and shared the
same with Kishan.
During Examination-In-Chief, PW-6 deposed as under:-
"In 1.05.2012, a lady named Sunita who resides in the
same village in which I reside, met me and asked me to
accompany her to Delhi as she would get me some
work/ job there. We boarded the train for Delhi on the
same day and reached Delhi on 25.05.2012. Another
girl namely Guria of the same village Bahari, was also
with us.
On reaching Delhi, she took us to a house in Prahlad
Market, Sector-1, Dwarka, New Delhi. A person named
Kishan and his wife Monika were staying in that house.
Sunita told us that Kishan is her brother and Monika is
her Bhabhi.
CRL.A.190/2014 Page 5 of 30
We remained there for about four/five days and
thereafter, the said house was to be vacated and we
shifted to another accommodation in Sector-14,
Dwarka. In the night, I, Monika and Guria, went to
Shani Chowk. From there Monika returned to her
residence. Her husband Kishan met myself and Guria
there and he took us to some other place i.e. the house
of his friend. One person Balram was present in the
house and he committed intercourse with me against my
consent. Next morning, Kishan brought myself and
Guria back to his place of residence. Thereafter a fight
ensued between Kishan and his wife Monika as both
held each other responsible for bringing us girls to
Delhi. I told Monika that I want to go back to my native
village. She said that she would drop me there but I
insisted that I wanted to leave that day itself. She kept
me confined for five or six days more and did not
permit me to go to my native village. I asked a boy
residing in the neighbourhood to call police and on my
requests, he called police. Police came to that house
and took myself, Guria, Sunita and Monika to police
station. Kishan was not present in the house at that time
as he had gone somewhere.
In the police station inquiries were made from me and I
narrated the whole story to the police officials. The
police official recorded my statement which Ex. PW6/A
bearing my signatures at point A&B.
From the police station I and Guria, were taken to
Hospital, where we were medically examined. From the
hospital we were brought back to the police station
where we were kept for the night. The next day we were
brought to the court and produced before a Magistrate
who recorded our statement.
I have seen my statement recorded u/s 164 CrPC. Same
bears my signatures and thumb impression at point A.
Same is already exhibited as ExPW3/A........
I along with Police officials had gone to the house of
Balram where Balram was arrested in my presence vide
arrest memo which is Ex. PW6/B bearing my signatures
CRL.A.190/2014 Page 6 of 30
at point A. His personal search was taken vide memo
Ex. PW6/C bearing my signatures at point A.
I can identify accused Balram, if shown to me. He is
present in court today. (witness has correctly identified
accused Balram present in court today.)"
During Cross Examination by the learned APP for the State, the
prosecutrix stated as under: -
" It is wrong to suggest that Kishan had met me at my
native village.(Confronted with the statement ex.
PW6/A, wherein it is so mentioned).
It is correct that Sonu Rawat was also with us when I,
Guria and Monika went to Shani Market.
It is incorrect that Kishan had made a telephonic call to
accused Balram and that accused had come to the
Shani Market in his car and I along with Guria and
sonu were taken to the residence of Balram in his car.
(Confronted with the statement Ex. PW6/A, wherein it is
so mentioned).
I did not mention in my statement to the police that
Kishan had committed sexual intercourse with Guria
and Sonu Rawat. (confronted with the statement
Ex.PW6/A, wherein it is so mentioned).
I also did not mention in my statement to the police
Kishan had committed sexual intercourse with Guria
and Sonu Rawat. (confronted with the statement
Ex.PW6/A, wherein it is so mentioned).
I also did not mention in my statement to the police that
after committing intercourse with me, accused Balram
had threatened me not to disclose it to anybody or
otherwise he would kill me. (confronted with the
statement Ex.PW6/A, wherein it is so mentioned).
It is correct that a boy had committed intercourse with
me in the house of Pooja also. Again also that boy did
not do anything to me.
xxxx
I had shown the place of incident where accused
Balram had committed rape upon me, to the police and
the police had made a rough site plan of the same in my
CRL.A.190/2014 Page 7 of 30
presence which is Ex.PW6/D bearing my signatures at
point A.
I did not point out the vehicle in which we were taken to
the house of Balram, to the police and the said vehicle
was not seized in my presence."
During Cross Examination by Mr. Aseem Bhardwaj, the learned
counsel for Monika, the prosecutrix stated as under: -
"I have studied upto 5th class. I can read Hindi
language.....
xxxx
I had mentioned in my statement to the police that after
vacating the initial house, we were taken by Monika
and her husband Kishan to another house at Sector-14,
Dwarka.
xxxx
It is correct that I had come to Delhi for the first time
with Sunita as stated by me herein above and before
that I had not visited Delhi. It is correct that I was not
aware about the topography of Delhi. It is correct that
when I came to Delhi, I was having a mobile phone.
xxxx
It is correct that Shani Bazar was at a walking distance
at about five to seven minutes from that house. It is
correct that Monika had told me to see Shani Market
and she had gone to guard her house hold articles. I
was aware about the mobile phone number of Monika
at that point of time but I have not saved the same in my
mobile phone. It is correct that even Guria was having
a mobile phone at that time. It is also correct that Guria
was also aware about the mobile number of Monika.
While leaving the Shani Market, we had not made any
call to Monika informing her regarding the same.
xxxx
I had stated to the police in my statement that I told
Monika that I wanted to go to my native village but
Monika told me that she would drop me herself after
some days and she did not permit me to leave for my
CRL.A.190/2014 Page 8 of 30
native village and she kept me confined for about five to
six days."
During Cross Examination by Mr. Aseem Bhardwaj, the learned
counsel for Kishan, the prosecutrix stated as under:-
"It is correct that I had gone along with Kishan to the
house of Monika‟s Bhabhi. Sonu Rawat and Gudia
were also with us. It is correct that in the house of
Monika‟s Bhabhi, I along with Sonu Rawat and Gudia
had slept in one room and it was bolted from inside by
Gudia. It is correct that Kishan had slept in the
drawing room along with the parents-in-law of
Monika‟s Bhabhi. It is also correct that the door was
opened in the morning by Gudia only. It is also correct
that after taking breakfast in that house in the morning,
we returned along with Kishan to the house where
Monika was present."
10. In order to further determine whether the statement of prosecutrix
(PW-6) corroborates with that of other prosecutrix(s) i.e. PW-7 &
PW-14, perusal of their testimonies becomes imperative.
11. PW-7/ 'SR' in her statement recorded under Section 164 Cr.P.C.
stated that Kishan took them to Balram‟s house from Shani
Market. Kishan had committed sexual assault with all the girls. He
had committed assault with Gudia, then he committed the same act
upon her. Balram took 'S' to another room. Next morning, he took
them to Pooja's house via metro.
PW-7 during her Examination-in-Chief deposed as under:-
"About one year ago, I was brought to Delhi by a lady
who resides in our neighbourhood in my native village.
She had brought me to Delhi for doing the job of maid
servant. She kept me for two days in her room. I do not
know the locality in which her room was situated.
Thereafter I was shifted to the room of Monika. I stayed
CRL.A.190/2014 Page 9 of 30
in her room for two days. Thereafter, three girls Gudia,
Suman and Sunita also came to that room.
After two days a quarrel took place between Monika
and her landlord and the landlord threw out the goods
of Monika. We remained outside the house till evening.
Then Monika gave 100/- to each of us and asked us to
go and eat something in the market.
We returned from the market at about 11PM and found
that accused Kishan was sitting along with Monika. On
the asking of Monika, Kishan took us to the room of
Monika‟s Bhabhi and we stayed in that room for the
night. We slept in the room and Kishan slept outside.
In the morning of the next day we returned to Monika.
She had spent the night outside the house along with
her goods. The landlord again started quarrelling with
Monika and he called police. Police came and took all
of us including Monika to the police station.
I do not know when and why Kishan, Monika, Pooja
and Balram were arrested by the police. Neither Kishan
nor Balram had done anything illegal act with me
during the period I stayed in Delhi. xxxxxx"
The prosecutrix (PW-7) was declared hostile by the learned APP
for the State. During cross examination she denied that Kishan and
Balram had committed sexual assault with her. She further stated
that she had given false statement to the Magistrate at the instance
of police officials which is exhibited as Ex.PW3/C. During her
cross examination she admitted that she along with „S‟ and „G‟ had
slept in one room at the house of Monika Bhabhi which was bolted
from inside whereas Kishan slept outside the room. Thereafter,
next morning the room was opened.
CRL.A.190/2014 Page 10 of 30
12. PW-14/'G' under Section 164 Cr.P.C. stated that on 03.05.2012,
Monika took her along with 'SR' and 'S' to Shani Bazaar as her
house was locked by the landlord. She left them at the market
where they kept sitting till 12:00 a.m. After sometime, Kishan
reached the place (market) and called Balram who thereafter took
them to some other place. On reaching that place, Kishan
committed sexual assault with her and „SR‟ and Balram took „S‟ to
another room. Next morning, he took them to Pooja‟s house via
metro.
During her Examination-in-Chief PW-14 deposed as under:-
"In the summer season of last year, I had come to Delhi
along with my maternal aunt (Mausi). While I was
staying with my Mausi, one girl named Suman had also
come there and requested my Mausi to arrange for her
the job of a maid. I also requested my Mausi to get me a
job of maid. My Mausi told me that she knows a lady by
the name Monika, who will get me a job. She took me to
the house of Monika to arrange a job for me. She asked
her to keep me with him for one or two days so that he
can try for a job. Thereafter my Mausi returned home
and I remained in the house of Monika. Two other girls
namely Suman and Sonu were also residing there along
with Monika. Meanwhile, the landlord of Monika
fought with her and threw away her goods from the
house and locked her room.
When we were outside the house, I told Monika that I
am feeling hungry. She gave myself, Suman and Sonu
Rs. 100/- each and said to go to the market and eat
something. We went to Shani Bazar. We consumed
some food there and recharged our mobile phones. We
talked to our parents. We also brought food for Monika
and her daughter. Monika‟s husband Kishan was also
present there at that time. Monika asked Kishan to take
CRL.A.190/2014 Page 11 of 30
us to the house of her Bhabhi, living nearby, so that we
can stay there for the night. Kishan took us to that
house. The door was opened by a lady. Kishan told her
that we are the guest of Monika and requested het to
arrange us to spend the night in one room. She agreed
and we entered the house. I, Sonu and Suman slept in a
room and I bolted the door of the room from inside,
Kishan slept outside the room near an old man. We
woke up at 7:00 AM in the morning, took our bath and
took breakfast prepared by the Bhabhi of Monika.
Thereafter Kishan brought us back to the spot where
Monika was present along with her household goods.
At that time, Monika was again quarrelling with her
landlord. The landlord made a call to telephone no. 100
and called police. Police officials came there, abused
all of us and took us to the police station. In the police
station, we were kept in a room and beaten by police
officials.
Police officials did not make any inquiry from me. They
also did not record my statement.
The statement u/s 161 CrPC dated 07.05.2012
attributed to me has been read over to me. I did not
make such statement to the police. Accused Kishan had
not committed rape upon me and Sonu. I do not know
any person by the name Balram. No such person had
stayed with us during the night in the house of Monika‟s
Bhabhi."
PW-14 was declared hostile by the learned APP for the State. Her
statement under Section 164 Cr.P.C was shown to her but she
denied the same on account of being illiterate. She also stated that
she could not say whether thumb impression present on the
statement under Section 164 Cr.P.C. was given by her and deposed
that due to the threat extended by the police officials, she had made
such statements before the Magistrate. She further identified the
CRL.A.190/2014 Page 12 of 30
accused Monika and Kishan in the Court and was not cross
examined on behalf of appellant at all.
13. Now the first issue that arises for adjudication before this Court
is, whether the testimony of the prosecutrix/PW-6, deserves
acceptance and whether a conviction, recorded solely on her
testimonies in the absence of any independent public witness, can
be upheld? It is also to be determined whether contradictions, if
any, present in the testimony of prosecutrix are of material
nature or are normal discrepancies which can be overlooked.
14. From an analysis of the statements of the prosecutrix 'S' recorded
at different stages, it is quite apparent that the prosecutrix remained
consistent, unfettered and even on the aspect of sexual assault
being committed upon her by the appellant. Perusal of the
testimony/statements of prosecutrix „S‟ also reveals that she has
not been cross examined on her clear and unequivocal statements
to the fact that the appellant had committed sexual assault upon
her. There appears to be no lacunae in the entire process of
recording of evidence of the prosecutrix which would specifically
point out to any material discrepancies or contradictions in her
deposition. Taking into account other prosecution evidence, it is
seen that a clear and categorical corroboration of deposition of
prosecutrix 'S' with that of other prosecution witnesses is
established.
15. It is emphatically stated by PW-7 and PW-14 in their statements
under Section 164 Cr.P.C. that they came to Delhi to look for a
job. They went to Monika‟s house where they met the prosecutrix.
Monika had a quarrel with her landlord due to which the landlord
CRL.A.190/2014 Page 13 of 30
threw out the goods of Monika from her house. They went to Shani
Bazaar with „S‟ and thereafter they went to appellant's house with
Kishan where they were raped by Kishan and the prosecutrix was
taken to another room by the appellant.
16. As per record, PW7 and PW-14 have turned hostile during their
Examination-in-Chief and further during cross-examination with
regard to the fact that they were never been sexually assaulted by
Kishan and that they were not aware of who Balram/ appellant is.
However, even in their deposition and cross examination(s), they
have nowhere denied that prosecutrix 'S' was sexually assaulted by
the appellant. It is also to be noted and taken into account that their
statements before the police officials/personnel, statement under
Section 164 Cr.P.C. before the Court and the statement before the
doctor (PW-5) during their medical examination, find
corroboration with that of the prosecutrix. Even the prosecutrix „S‟
turned hostile during her cross examination on behalf of accused
Kishan, yet her stand in respect of the appellant remained
consistent throughout. .
17. It is a settled legal proposition that statement of a hostile witness
can also be examined to the extent that it supports the case of the
prosecution. To prevent the witnesses from turning hostile, it is to
be ensured that the witnesses are examined in such a manner that
their statement are recorded at the earliest, and they should be
assured full protection. In the present case there is nothing on
record, not even a suggestion by the appellant to the effect that the
victim had any motive or previous enmity with him, to involve
them in this case.
CRL.A.190/2014 Page 14 of 30
18. In Ramesh Harijan vs. State of U.P. [(21.05.2012 - SC) Crl.
Appeal No. 1340 of 2007], it was held as under: -
"18. It is a settled legal proposition that the evidence of
a prosecution witness cannot be rejected in toto merely
because the prosecution chose to treat him as hostile
and cross examine him. The evidence of such witnesses
cannot be treated as effaced or washed off the record
altogether but the same can be accepted to the extent
that their version is found to be dependable on a careful
scrutiny thereof
19. In State of U.P. v. Ramesh Prasad Misra and Anr.
AIR 1996 SC 2766, this Court held that evidence of a
hostile witness would not be totally rejected if spoken in
favour of the prosecution or the accused but required to
be subjected to close scrutiny and that portion of the
evidence which is consistent with the case of the
prosecution or defence can be relied upon.
Thus, the law can be summarised to the effect that the
evidence of a hostile witness cannot be discarded as a
whole, and relevant parts thereof which are admissible
in law, can be used by the prosecution or the defence."
19. To further adjudge the credibility of the version of the prosecutrix
it is also necessary to peruse the testimonies of other prosecution
witnesses so as to establish a complete chain of events beginning
from the lodging of complaint and continuing upto the conviction
of the appellant and so also to corroborate the same with the
deposition made by the prosecutrix on the facts of alleged time of
occurrence, place of incidence, reporting of the incident to the
police officials and subsequent investigation process.
CRL.A.190/2014 Page 15 of 30
20. PW-2/WHC Usha Rani during her Examination-In-Chief, deposed
as under: -
"On 07.05.2012 I was posted as DO in PS Dwarka
North and my duty hours were from 8:00AM to
4:00PM. On that day I received a call from PCR
Control Room, G-50 S/W regarding quarrel at house
No. A-489, Near Mother Dairy, Sector-15, Dwarka.
xxxx
On 08.05.2012, I was associated in the investigation of
this case along with SI Nirmal Sharma. I along with
WSI Nirmal Sharma and prosecutrix Suman reached E-
202, Bharat Vihar. Accused Monika was present in the
house at that time. Prosecutrix Suman identified her.
Accused Monika was arrested by WSI Nirmal Sharma
vide arrest memo Ex. PW2/B bearing my signatures at
point A."
21. PW-3/Sh. Ajay Singh Shekhawat/MM, Dwarka Court proved the
statements of „S‟, „G‟ and „SR‟ recorded under Section 164 Cr.P.C.
and their respective thumb impression on the said statements made
in his presence were correctly identified by him.
22. PW-4/Lady Constable Sumitra during Examination-In-Chief,
deposed as under: -
"On 07.05.2012 I was posted as Constable in P.S.
Dwarka North. On that dayu, I alongwith SI Umesh had
reached E-202, JJ Colony, Bharat Vihar, Sector-15,
Dwarka. We recovered three girls namely Suman, Sonu
and Gudia from that house. Thereafter, SI Nirmal also
reached the spot. We brought these girls to the police
station. From the police station, I along with Const.
Raju, lady Const. Sangeeta took these girls to DDU
Hospital for medical examination. From the hospital,
we returned to the police station.
The girls had also taken us to E-193, JJ Colony, Bharat
Vihar, where they had been raped."
CRL.A.190/2014 Page 16 of 30
23. PW-8/Sh. Arun Kumar Tiwari (Independent witness) during
Examination-in-Chief deposed as under: -
"On 07.05.2012, at about 2:30PM, I saw a girl was
sitting at a distance from my shop in the side gali and
was weeping. About ten to twenty persons were present
at the spot. The girl told us that she was kept confined
by one Monika in her room near Shani Bazar and
intended to force her into the prostitution. She
requested us to send her to her native village in
Madhya Pradesh as she did not want to go to Monika‟s
place. She had disclosed her name to be Suman. I made
a telephone no. 100. Police reached the spot and took
that girl along with them."
24. PW-13/HC Bijender during his Examination-in-Chief deposed as
under: -
"On 13.05.2012 I was posted as Head Constable in PS
Dwarka North. On that day, I along with IO WSI
Nirmal Sharma and Const. Zafar reached Bharat
Vihar, Metro station, Dwarka, in search of accused
Balram in this case. Meanwhile ASI Renu brought the
three girls Suman, Gudia and Sonu to Metro Sattion,
Dwarka, from Nari Niketan. The three girls led us to a
house near Ram mandir in a gali in Mohan Garden. A
Maruti Alto car bearing registration no. DL-9CS-3199
was parked in fromt of the house. The girl identified the
car to be the same in which accused Balram and Kiran
@ Kishan had brought them. Thereafter, accused
Balram was found present in his room in the house. He
was interrogated by the IO and arrested vide arrest
memo already Ex.PW6/B bearing my signature at point
B."
25. PW-19/WSI Nirmal Sharma during Examination-in-Chief deposed
as under: -
"On 07.05.2012 I was posted as SI in PS Dwarka
North. On that day at about 3.30PM, SI Umesh, PSI
CRL.A.190/2014 Page 17 of 30
Mahesh & lady Const, Sumitra brought the prosecutrix
Gudia, Sonu Rawat and Suman to the police station.
They produced these three ladies before the SHO in my
presence and the SHO directed me to take over the case
and make inquiries from these ladies. I made inquiries
from the three ladies. Suman told me that she had made
the call. I recorded the statement of Suman, which is
already Ex. PW6/A bearing my signatures at point B.
On the basis of her statement, I prepared rukka which
is ExPW19/A bearing my signatures at point X and got
the FIR registered.
I made inquiries from the other two girls Sonu Rawat
and Gudia and recorded their statements. After
obtaining the copy of FIR, I along with the three girls
and lady Const. Sumitra and PSI Mahesh reached the
place where the three girls had been confined. It was a
room on the first floor in house no. E-202, Bharat
Vihar, Dwarka, New Delhi. I prepared the site plan of
the spot at the instance of girl Suman which is already
Ex. PW19/A1 bearing my signatures at point A. From
there, I sent the three girls along with lady Const.
Sumita to DDU Hospital for medical examination. I met
Arun Tiwari, who had made call at the instance of
Suman, and inquiries from him and recorded his
statement. I also made inquiries from various persons
in the neighbourhood. Therefore, I returned to the
police station.....
xxxx
Gudia and Sonu Rawat had refused to undergo
gynaecological examination. Suman had given consent
for gynaecological examination. However, since she
had stated to the doctor that the person who sexually
assaulted her had used condom, no samples were
collected by the doctor.....
xxxx
At about 9:30 AM on 08.05.2012 I along with lady
Head Const. Usha and the three victim girls reached
the house no. E-202, Bharat Vihar, again in search of
the accused. Accused Monika was found present there.
xxxx
CRL.A.190/2014 Page 18 of 30
On the same day i.e. 08.05.2012 I along with lady
Const. Mukesh brought the three victim girls to court.
Meanwhile, lady Const. Usha also reached the court
along with accused Monika after her medical
examination. I produced accused Monika before the
concerned Magistrate and she was sent to JC.
Thereafter, I produced the three victim girls before the
concerned Ld. Magistrate and their statement u/s 164
CrPC was recorded......
xxxx
On 13.05.2012 I got the information that the accused
Balram is residing near Dwarka Metro Station.
Accordingly I brought the three victim girls from Nari
Niketan and reached Dwarka Metro Station. HC
Vijender, ASI Renu and one more lady Const. were with
me. I asked the victim girls to show us the way from
Dwarka Metro Station through which they were taken
by the accused. They led us to house no. C-2/10,
Bhagwati Garden, Uttam Nagar, and pointed out the
said house saying that they had been brought to that
house. We climbed upto the first floor and found a
person present in the drawing room, who was identified
by the victim girl as accused Balram. He was
interrogated and arrested by me vide memo already Ex.
PW6/B bearing my signature at point C. His personal
search was taken vide memo already Ex. PW6/C
bearing my signature at point C. Thereafter, I prepared
the site plan of that spot at the instance of the victim
girls, which is already Ex. PW6/D bearing my signature
at point B.
xxxx
A Maruti Alto car bearing registration no. DL-9CS-
31989 was parked in front of the house. The victim girls
pointed out to the said car saying that they had been
brought there in the car. I seized the said car vide
memo already Ex. PW13/A bearing my signatures at
point B."
CRL.A.190/2014 Page 19 of 30
26. PW-22/Constable Ved Prakash during his Examination-in-Chief
deposed as under: -
"....... SI Monika, after obtaining permission from the
Ld. Magistrate, formally arrested accused Kiran @
Kishan in this case vide arrest memo Ex. PW22/A
bearing my signatures at point A. He was again
produced before the Ld. Magistrate and was remanded
to one day PC. From there he was taken to DDU
Hospital for medical examination. From there he was
taken to C-2/10, Bhagwati Garden, Uttam Nagar. There
he pointed out a room on the first floor where he had
committed rape upon prosecutrix. The pointing out
memo is Ex.PW22/B bearing my signature at point A."
27. PW-23/SI Monika during her Examination in Chief deposed
as under:-
"On 27.12.2012, I was posted as SI in PS Dwarka
North. On that day information was received from PS
Dwarka South that accused Kiran @ Kishan wanted in
the present case and who had been declared PO had
been arrested.......
xxxx
Accordingly, I along with SI Nanag Ram and Const.
Ved prakash reached Dwarka Court.....
xxxx
He was again produced before the duty MM and was
remanded to one day‟s PC. From the court, the accused
led us to the spot of incidence i.e. C-2/110, Bhagwati
garden, Uttam nagar and pointed out the same vide
memo already Ex. PW22/B bearing my signature at
point A....."
28. It is settled proposition of law that the circumstances forming a
chain of events should be proved and they should cumulatively
point towards guilt of accused. On an analysis of the facts of the
present case it is observed that a complete chain of events
CRL.A.190/2014 Page 20 of 30
regarding the commission of offence by the accused/appellant
Balram stands established.
29. It is evident from a scrutiny of the testimony of prosecutrix ‟S‟ and
testimonies of other prosecution witnesses, that the story of the
prosecutrix „S‟ corroborates with that of other prosecution
witnesses. It is also true that there are minor discrepancies in the
statements of the prosecutrix and the other witnesses but it is also
to be considered that there is a settled proposition of law that minor
contradictions, inconsistencies, embellishments or improvement on
trivial matters without affecting the case of the prosecution, should
not be made a ground to reject the evidence in its entirety. The
contradictions pointed out by learned counsel for the appellant in
the present case, are not of such magnitude that they may
materially affect the final outcome of trial. Therefore the testimony
of the prosecutrix has turned out to be wholly reliable and
trustworthy.
30. In State Of Rajasthan vs Smt. Kalki & Anr reported in
1981 SCC (2) 752, it was held as under: -
"In the depositions of witnesses there are always some
normal discrepancies however honest and truthful they
may be. These discrepancies are due to normal errors
of observation, normal errors of memory due to lapse of
time, due to mental disposition such as shock and
horror at the time of the occurrence, and the like.
Material discrepancies are those which are not normal,
and not expected of a normal person."
CRL.A.190/2014 Page 21 of 30
31. In Narayan Chetanram Chaudhary & Anr vs State Of
Maharashtra (Crl.A 25-26/2000) the Apex Court held as under:
"Only such omissions which amount to
contradiction in material particulars can be used to
discredit the testimony of the witness. The omission
in the police statement by itself would not
necessarily render the testimony of witness
unreliable. When the version given by the witness in
the Court is different in material particulars from
that disclosed in his earlier statements, the case of
the prosecution become doubtful and not otherwise.
Minor contradictions are bound to appear in the
statements of truthful witnesses as memory
sometimes plays false and the sense of observation
differ from person to person. The omissions in the
earlier statement if found to be of trivial details, as
in the present case, the same would not cause any
dent in the testimony of PW. 2. Even if there is
contradiction of statement of a witness on any
material point, that is no ground to reject the whole
of the testimony of such witness.
xxxx
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."
32. Contradicting the view taken by the Trial Court, learned counsel
for the appellant has also urged that no independent public witness,
present at the time when the incident took place, was examined by
CRL.A.190/2014 Page 22 of 30
the prosecution.
33. To answer the above, reference is made to the judgment of the
Supreme Court in State of Himachal Pradesh vs. Gian Chand
reported in AIR 2001 SC 2075 , wherein it was inter alia
observed as under:-
"14. Non-examination of a material witness is again
not a mathematical formula for discarding the
weight of the testimony available on record
howsoever natural, trustworthy and convincing it
may be.............If the court finds the evidence
adduced worthy of being relied on then the testimony
has to be accepted and acted on though there may be
other witnesses available who could also have been
examined but were not examined."
34. It must be added here that, the Investigating Officer had no
opportunity in that eventuality to associate any independent
witness. But, 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. Hence keeping in view the
well settled principles of law as aforestated, and in light of the facts
and circumstances of the present case, this Court finds no reason to
view the testimony of the prosecutrix/PW-6 with doubt, disbelief
or suspicion.
35. Therefore it is evident from the observations so far made that the
testimony put forward by the prosecutrix can be totally relied upon
as she remained categorically clear that rape was committed upon
her by the appellant.
CRL.A.190/2014 Page 23 of 30
36. The next issue which necessitates determination by this Court is
with respect to the credibility of medical and scientific evidences
adduced in support of the case of the prosecution as the same has
been challenged by the learned counsel for the appellant for not
being in support of the prosecution narrative.
37. For the said purpose, testimonies of the medical officers and the
MLC Reports needs to be examined.
38. The appellant was medically examined by Dr. Uday Kumar Singh/
PW-11 who prepared the MLC (Ex.PW11/A). In the said report,
PW-11 has affirmed the absence of any indication of incapability
of the appellant in engaging in sexual intercourse.
39. The prosecutrix was medically examined by Dr. Soma Mitra/PW-
5, Gynaecologist SR, who deposed as under: -
"On 08.05.2012, I was posted as Senior Resident in
Gynaecology Department, DDU Hospital, New Delhi.
On that day, one girl namely Suman was brought to the
hospital at about 1:00AM in the night by W/Ct. Sumitra
for medical examination. She was initially examined by
Dr. Rajesh Kohli, the CMO and then was referred to me
for detail internal examination. I examined her and did
not find any external injury on her body. She had
changed her clothes after the occurrence and also
stated that the person had used condom. Her pubic
hairs had been shaved. For this reason, I did not
preserve the public hairs and the clothes of the girl. The
endorsement from point X to X on the MLC is in my
handwriting and the same is Ex.PW5/A bearing my
signature at point A."
40. PW-5 has stated that "I examined her and did not find any external
injury on her body. She had changed her clothes after the
occurrence and also stated that the person had used condom."
CRL.A.190/2014 Page 24 of 30
However, absence of any injury on the body of the prosecutrix „S‟
would not be of much consequence if the other evidence on record
supports the case of the prosecution. The absence of any injury on
the body may not by itself discredit the statement of the
prosecutrix. The prosecutrix cannot be disbelieved merely because
she was a helpless victim who by force was prevented from
offering serious physical resistance. Judgements quoted below
show that the absence of injury, violence or stiff resistance, as in
the present case, well suggests helpless surrender to the inevitable
due to sheer timidity.
41. In this regard, observations made by the Apex Court in State of
U.P. v. Babul Nath reported in (1994) 6 SCC 29 are reproduced as
under:-
"To constitute the offence of rape neither Section
375 of IPC nor the Explanation attached thereto
requires that there should necessarily be complete
penetration of the penis into the private part of the
victim/prosecutrix. In other words to constitute the
offence of rape it is not at all necessary that there
should be complete penetration of the male organ with
emission of semen and rupture of hymen. Even partial
or slightest penetration of the male organ within the
labia majora or the vulva or pudenda with or without
any emission of semen or even an attempt at
penetration into the private part of the victim would
be quite enough for the purpose of Sections
375 and 376 of IPC. That being so it is quite possible
to commit legally the offence of rape even without
causing any injury to the genitals or leaving any
seminal stains. But in the present case before us as
noticed above there is more than enough evidence
positively showing that there was sexual activity on
the victim and she was subjected to sexual assault
CRL.A.190/2014 Page 25 of 30
without which she would not have sustained injuries of
the nature found on her private part by the doctor who
examined her."
42. This issue has been further dealt with by the Supreme Court in
State of Tamil Nadu v Ravi @ Nehru reported in (2006)10 SCC
534 wherein the Apex Court has quoted the opinion expressed by
Modi in Medical Jurisprudence and Toxicology which reads as
follows:-
"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 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 that there is evidence of recent sexual activity.
Whether the rape has occurred or not is a legal
conclusion, not a medical one."
43. In light of the above settled principles of law, this Court is of the
view that the defence taken by the appellant does not inspire any
confidence and is thus devoid of merit. Mere absence of vaginal
injury would not absolve the appellant from his liability for offence
under Section 376 IPC. On the other hand, testimony of the
prosecution witnesses cannot be brushed aside on the flimsy plea
raised by the appellant.
CRL.A.190/2014 Page 26 of 30
44. Another issue pressed before this Court is regarding the time
gap between the lodging of the complaint on 07.05.2012 and the
arrest of the appellant by the police officials on 13.05.2012.
45. It has to be understood here that, as per records, on 07.05.2012
when the three girls i.e. PW-6, PW-7 and PW-14 were recovered
from House No. E-202, Sector-15, Dwarka, the appellant/Balram
was not present there with them. It was only on 13.05.2012, that
the information regarding the appellant was received by PW-
13/HC Bijender and PW-19/WSI Nirmal Sharma. As per the
testimony of PW-19, it is clear that it was only on 13.05.2012 that
the information regarding appellant was received by her that he
was residing near Dwarka Metro Station. Thereafter, PW-19, PW-
13 , ASI Vijender , ASI Renu and one more lady constable went to
the Dwarka Metro Station in search of the appellant along from
where the girls led them to House No. C-2/10, Bhagwati garden,
Uttam Nagar and pointed out to the house of appellant and also
identified the car parked at the house which was previously used
by appellant at the night of commission of crime. Thereafter, they
went to the first floor of the building and found the appellant in the
drawing room. The site plan of the spot was prepared at the
instance of the victim girls. Hence it is clear that it was only on
13.05.2012 the appellant was arrested at their instance. Therefore,
the contention of the counsel for the appellant/accused in this
regard cannot be upheld, as before 13.05.2012 accused/appellant
was not traceable by the police officials and it was only on
13.05.2012 that the information regarding him was received. It has
been stated by PW-19 that the site plan of the spot was prepared at
CRL.A.190/2014 Page 27 of 30
the instance of the girls. Therefore the ground raised by the counsel
for the appellant/accused that the site plan prepared by the police
official/personnel was false and fabricated, also fails as it cannot
be considered as a leading factor to rule out the entire case of the
prosecution when the other material factors regarding the
commission of the crime otherwise corroborate with each other to
establish guilt of the appellant.
46. The fact that the DD No.15A was recorded for a quarrel which had
taken place in House No. House no.489, near Mother Dairy, Sector-
15, Dwarka and not for the alleged rape, has also been challenged
by the learned counsel for the appellant.
47. At this stage, it is relevant to see the statement of PW-8 (Arun
Tiwari), an independent witness, who deposed that he saw the girl
weeping at a distance from his shop (Mother Dairy shop, Vikas
Vihar) and on her request to him, he called at telephone no.100, on
account of which police officials recorded his statement under DD
No.15A and then reached the spot and recovered the girls. This
statement is further corroborated by PW-2 and PW-15. PW-2 who
had stated that on that day a call was received in the police control
room regarding the quarrel at House no.489, near Mother Dairy,
Sector-15, Dwarka and the same was recorded as DD No.15A.
Further, it is manifest from the testimony of PW-15 that he along
with PSI Mahesh reached the spot after the receipt of DD No.15A,
but did not find either the complainant or assailant. Thereafter, they
met PW-8, who told them that the girl on whose behalf he had
made the call was present in House No. E-202, Bharat Vihar, New
Delhi. They reached the address given in the DD No. 15A and
CRL.A.190/2014 Page 28 of 30
recovered the three girls (PW-6, PW-7, PW-14). Hence the facts are
duly established and so the ground raised by the counsel for the
appellant is immaterial and for this reason cannot make the case of
the prosecution doubtful.
CONCLUSION
48. For the foregoing reasons, this Court finds no merit in the
submissions made on behalf of the appellant, to the findings on
facts returned by the Trial Court in the impugned judgment. As per
the facts and circumstances of the present case, there is a direct link
of the appellant/accused with the commission of the crime. Such
conclusion can well be established by the statement of the witnesses
and other evidence placed on record. Therefore, conviction based
upon fair appreciation of entire evidence deserves no intervention.
From the material placed on record, it stands established by the
prosecution that the appellant is guilty of having committed the
offence charged for. Overturning of a well considered and well
analyzed judgment of the Trial Court, when the case against the
appellant otherwise stood established beyond reasonable doubt, is
not called for.
49. Therefore, 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
said to be erroneous or perverse. Since the punishment is in accord
with the punishment prescribed for the offence under Section 376
IPC this Court does not see any reason to interfere with the order
on sentence passed by the Trial Court. Therefore, the appellant
CRL.A.190/2014 Page 29 of 30
deserves to undergo the remaining part of the sentence as awarded
by the Additional Sessions Judge.
50. Under the circumstances, the appeal being bereft of merit is
dismissed.
51. Records of the Court below be sent back forthwith along with the
copy of the order.
52. Copy of this order be sent to the concerned Jail Superintendent for
information.
SANGITA DHINGRA SEHGAL, J.
OCTOBER 27, 2017 gr// CRL.A.190/2014 Page 30 of 30