Delhi High Court
Virender Nanda @ Dimple vs State [Along With Crl. A. 723/2002] on 23 July, 2007
Equivalent citations: 2008 CRI. L. J. (NOC) 12 (DEL.), 2008 (1) AJHAR (NOC) 240 (DEL.)
Author: Manmohan Sarin
Bench: Manmohan Sarin, S.L. Bhayana
JUDGMENT Manmohan Sarin, J.
1. By this common judgment, the above two appeals filed by appellants Virender Nanda @ Dimple and Jupinder Singh are being decided. The learned Addl. Sessions Judge vide judgment dated 28th August, 2002 held the appellant Virender Nanda guilty under Section 354 IPC and under Section 376(2)(g) IPC and the appellant Jupinder Singh guilty under Section 376(2)(g) IPC. Vide order dated 29th August, 2007, he sentenced them both to life imprisonment along with fine of Rs. 10,000/- each and in default, simple imprisonment for two years. Rs. 10,000- out of the fine, if realised, was also directed to be be paid to the victim.
2. The facts as they unfold from the prosecution's case may be noticed. The complainant in this case is 'AN', mother of the prosecutrix, a minor girl of six years hereinafter referred to as 'N'. The father of the prosecutrix is referred to as 'SN'. He runs a cloth shop. On 18th June, 2001, 'N' went looking for Narender, her Mama/Maternal Uncle. While looking for Narender, she reached the office of his friend Satish where she saw that appellant Virender Nanda @ Dimple was present. Virender Nanda @ Dimple thereafter took her to his office which was fitted with an air conditioner where co-accused/appellant Jupinder Singh was also sitting there and having drinks. As per the prosecution case, Virender Nanda @ Dimple raped 'N' and also had oral sex with her. Jupinder Singh who was present told Virender Nanda @ Dimple "Kar le Kar le?. This was told to complainant by 'N'. As per AN's statement, thereupon, she went to Virender Nanda's office but found it locked. She went again and asked Virender Nanda @ Dimple but he did not tell anything. Thereupon, she abused him in presence of several persons but he did not say anything. Virender Nanda @ Dimple afterwards phoned her and threatened her that in case she revealed anything to police, he would eliminate the complainant and her daughter. Complainant 'AN' was alone as her husband had gone to Punjab and she waited for him to return. Her husband `SN' returned on 21st June, 2001 and thereupon they called PCR van. A case was registered and investigation followed.
3. The case of the prosecution in brief as noticed above is that appellants Virender Nanda @ Dimple and Jupinder Singh committed gang rape on 'N' in the evening of 18th June, 2001. Virender Nanda @ Dimple attempted to outrage her modesty by having oral sex with her and thereby having committed offence punishable under Section 354 IPC also. Virender Nanda @ Dimple is further alleged to have committed offence under Section 506 IPC by threatening and intimidating 'AN' against lodging any complaint or taking any action. Virender Nanda @ Dimple was arrested at the IGI Airport on 27th June, 2001 while Jupinder Singh surrendered at the police station on 7th September, 2001. Charges were framed. It may be noticed that prosecutrix was also examined on 23rd June, 2001. Her hymen was found intact. However, the Doctor found redness around Periurethral region. Virender Nanda @ Dimple was also examined by the Doctor who submitted her report which is exhibit PW 5/A and found him capable of performing sexual intercourse. The vaginal swab of the prosecutrix 'N' was also taken. Underwear of the prosecutrix produced by her father was taken possession of on 6th July, 2001. Underwear of the appellant-Virender Nanda @ Dimple was also taken possession of.
4. Before we consider and analyze the merits of the submissions, we may briefly notice the statements of the complainant and the prosecutrix. The learned Addl. Sessions Judge recorded the statement of 'N' on 15th February, 2002 after satisfying himself that she was capable of understanding the question and responding in a rational manner. 'N' deposed that she had gone to see her maternal uncle in the office of Satish where she met Virender Nanda @ Dimple. Dimple had taken her to his office where he took liquor and also some namkeen. She stated that he put his male organ inside her female organ and then he inserted his male organ inside her mouth and thereafter some dirty watery substance came out in her mouth. A sikh gentleman was also present but the appellant-Jupinder Singh present in person, was not that sikh gentleman. She did not know the other person who was present at the time of incident. She stated that it was correct that the other person told the accused Virender Nanda @ Dimple?Kar le Kar le. The A.P.P. for the State sought permission to cross-examine 'N' as she was not identifying the appellant-Jupinder Singh. The court allowed the A.P.P to cross-examine her. She stated that her mother had applied medicine on her private parts. However, she told her mother about the incident on the next day. On the A.P.P pointing out towards accused/appellant Jupinder Singh, she stated that he was the same person who had said "Kar le Kar le". However, on cross-examination by the counsel for the appellant-Jupinder Singh, prosecutrix 'N' stated that it was correct that Jupinder Singh was not the other person who was present in the office on that day.
5. Let us at this stage, consider the submission made on behalf of learned Counsel for the appellant-Jupinder Singh. Mr. K.K. Manan, learned Counsel for the appellant submits that there was no evidence worth its name to implicate the appellant-Jupinder Singh or establish appellant's presence at the time of incident. Besides, even as per the prosecution's version, the only role attributed by the prosecution to the appellant-Jupinder Singh was telling co- accused Virender Nanda @ Dimple "Kar le Kar le."
6. We find considerable merit in the submission of the counsel. The statement of the prosecutrix 'N' is not consistent insofar as presence of appellant-Jupinder Singh is concerned. In her examination-in-chief she clearly stated that he was not the person who was sikh gentleman and present in the office. The A.P.P. had, therefore, sought permission to cross-examine her. During cross-examination by the A.P.P, she stated that he was the person who had told the co-accused Virender Nanda @ Dimple?Kar le Kar le?. Again on cross- examination by the counsel for the appellant Jupinder Singh, she stated that appellant-Jupinder Singh was not the person who was present in the office on the same day. While it is true that complainant 'AN' in the complaint/statement made to the police had mentioned Jupinder Singh but in the statement before the court, the complainant 'AN' denied the same. Moreover, the complainant 'AN' has stated on oath that she did not know Jupinder Singh or recognised him. In these circumstances, the very presence of appellant - Jupinder Singh at the scene of the crime is doubtful.
7. Reference may usefully be made to the judgment of the Supreme Court in Ashok Kumar v. State of Haryana 2003 (1) JCC 276. Here the Supreme Court while dealing with a case under Section 376(2)(g) IPC observed?This provision embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly; but, there must be meeting of minds. It is not enough to have the same intention independently of each of the offender. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence.
8. Considering the present case in the light of the principle enunciated in the judicial pronouncement above, it is apparent that there was hardly any criminal sharing or measure of jointness in the commission of alleged offence. In the present case, even the presence of appellant-Jupinder Singh is doubtful. The learned Addl. Sessions Judge has relied on the identification of the appellant on cross-examination by A.P.P as the person who said "Kar le Kar le" ignoring the examination-in-chief where the prosecutrix 'N' stated that appellant-Jupinder Singh was not the person and also the statement in cross-examination by the appellant's counsel Jupinder Singh, where the prosecutrix 'N' had admitted that he was not the person.
9. In these circumstances, prosecution has not been able to prove beyond reasonable doubt the presence of Appellant Jupinder Singh. Besides, the alleged subsequent conduct in evading arrest itself will not justify his conviction.
10. We, accordingly, hold that prosecution has failed to prove the case against appellant-Jupinder Singh beyond reasonable doubt. He is accordingly granted benefit of doubt and acquitted.
11. Let us now consider the case of the prosecution against appellant Virender Nanda @ Dimple. Learned Counsel for the appellant Ms. Neelam Grover and Mr. Sumit Verma submitted that ingredients of the offence of gang rape were not made out at all. In case, the court was to reach conclusion acquitting Jupinder Singh, the conviction of the appellant Virender Nanda @ Dimple under Section 376(2)(g) would not stand at all. The next plank of submission is that even the offence under Section 376 IPC of rape was not made out. Counsel submits that medical examination of the prosecutrix 'N' has confirmed that hymen was intact. There was no other injury marks on the body. Appellant Virender Nanda @ Dimple's medical examination has similarly confirmed that there was no teeth or bite marks on the penis or other injury marks on his body. The prosecutrix 'N' had also not suffered any injury to her sexual organ/private parts. The Doctor who had examined her and had noted that prosecutrix and her mother had described it as 'sexual assault by neighbour'. Doctor had further in his statement clarified that she had used the terms `sexual assault' in the sense of touching her private parts. The redness in periurethral region could be due to any local trauma i.e. rubbing, itching etc. In other words, in these circumstanes, it was submitted that offence of rape was not proved. Counsel further submitted that vaginal swab did not detect any blood or semen. Similar was the position with under garments. The attendant circumstances such as inordinate delay in lodging of FIR, discrepancies in the statements of the prosecutrix 'N' and her mother 'AN' with regard to lodging of report on the day of the incident or day after, all lend support to the hypothesis that this was not a case of rape. Penetration had not been proved. In these circumstances, counsel submitted that assuming but not admitting, it would, at best, be a case under Section 354 IPC.
12. The above submissions on the first flush appear to be convincing. However, on reflection and deeper consideration of the entire matter, it does not shake the categorical deposition of prosecutrix 'N'. It is now well settled that evidence of prosecutrix does not require corroboration. It stands at a higher pedestal than that of an accomplice or an injured witness. Further to constitute the offence of rape, full penetration was not necessary. It was also not necessary that hymen should get ruptured or there should be discharge of semen. Reference may usefully be made to Aman Kumar and Anr. v. State of Haryana where the court observed? To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC.
13. In the present case, there is clear and categorical statement of the prosecutrix 'N' that accused had put his male organ into her female organ. It is evident that the above is not the language of a six year old girl but it is the translated version of the statement as recorded by the learned Judge in his own language. The prosecutrix did not even flinch once in her statement regarding the identification of the appellant Virender Nanda @ Dimple. She had been subjected to cross-examination but her statement as regards these material portions remains unshaken. It has to be remembered that we are dealing with a six years old minor on one hand and a grown up adult on the other. In the events that unfolded and as expressed by the girl in her innocence, the appellant after the act of putting his penis into the vagina, decided or opted for fellatio and accordingly proceeded to put his penis in child's mouth. According to the prosecutrix "a watery substance came out in her mouth" meaning thereby that appellant had his discharge in her mouth. Why the appellant did not go for complete or full penetration and opted for fellatio, is not for us to analyze or dwell upon. There are varied sexual preferences and fetishes of individuals. It is sufficient for our purpose that prosecutrix's statement remained unshaken. Some discrepancies with regard to timing of the various events, whether the prosecutrix revealed the incident to her mother on that very day or the next day etc. have been urged. These, to our mind, are hardly of any material consequence. As regards, the delay in lodging of FIR, respondent-State has duly explained the same. Complainant 'AN' is a house wife and a mother whose daughter had reported incident of rape to her. She immediately protested on which she received intimidations and threats. It was but natural for her to wait for her husband who was away to Punjab. Immediately on his return, a report was lodged. There was sufficient explanation for the delay in lodging the FIR.
14. There is yet another strong circumstance which supports the prosecution's version. The prosecutrix's parents belong to a middle class family having a shop and come from a conservative background. It would be totally inconceivable for them in the absence of other factors to use their daughter for foisting a false case against the appellant. A family with this middle class background would not like to prosecute someone falsely for the rape of their six years old daughter. Appellant-Virender Nanda @ Dimple in his statement recorded under Section 313 Cr.P.C was specifically asked "Why the PWs deposed against you" Answer : They are interested witnesses and they have deposed against me because of their personal reasonings. Why this case is against you? Answer : It is a false case. In fact I have nothing to do with the alleged offence and I have been framed in this case just to meet out the old enmity."
15. From the above it is seen that there is an element of inconsistency. To the question "Why the PW deposed against you", appellant had deposed that because of their personal reasonings against him. To the second question why a case has been foisted against you, he claims to have been framed out of old enmity. Yet, appellant chose not to examine himself or lead evidence in defense. Regarding alleged enmity, no suggestion has been made to complainant 'AN' and her husband 'SN' during their examination with regard to any such enmity. Complainant and her husband have rather candidly stated that they knew the appellant through their friend Satish. He had visited them two-three times. Further, there was no familiarity with him inasmuch they did not even know what his vocation was. There had never been any commercial or other dealings. Appellant did not give any suggestion to the contrary or to show any reason for the complainant or her husband to nurture any grudge against the appellant. In these circumstances, there was no reason whatsoever for the complainant or her husband and their daughter to have falsely implicated the appellant at the cost of causing trauma to their six years old daughter.
16. In view of the foregoing discussion, we hold that prosecution has failed to prove the case against appellant-Jupinder Singh beyond reasonable doubts under Section 376(2)(g) IPC. Appellant Jupinder Singh is accordingly entitled to the benefit of doubt and is acquitted. His bail bond is discharged.
17. As regards appellant Virender Nanda @ Dimple, he was charged for the offences under Section 376(2)(g) IPC, 354 IPC for outraging the modesty and having oral sex and under Section 506 IPC for criminal intimidation of the parents of the prosecutrix. The learned Addl. Sessions Judge vide his judgment has held the charge to be proved under Section 376(2)(g) IPC and under Section 354 IPC without returning a finding with regard to Section 506 IPC. By the order of sentence passed on 29th August, 2002, he sentenced him for the offence punishable under Section 376(2)(g) IPC to imprisonment for life along with a fine of Rs. 10,000/- and in default, SI for two years. The learned Addl. Sessions Judge did not pass a separate order of sentence with regard to the offence under Section 354 IPC.
18. In view of acquittal of appellant Jupinder Singh, the offence under Section 376(2)(g) IPC would not be established against the appellant Virender Nanda @ Dimple. However, the offence under Section 376(2)(f) IPC stands duly established against him. On a question of appropriate sentence, it may be noticed that offence was not committed with any violence or injury or wounds being inflicted on the prosecutrix. It was not a case of pre planning since as per the prosecution's own case, it was the prosecutrix who happened to go to the premises of the appellant looking for her uncle. The appellant is not a previous convict and in the circumstances the offence has taken place, it cannot be said that it would be a case of recidivism. In view of the factors as noted above, interest of justice would be met by sentencing the appellant Virender Nanda @ Dimple to 10 years RI under Section 376(2)(f) IPC along with a fine of Rs. 10,000/- and in default, to undergo simple imprisonment for two years, as ordered by the learned Addl. Sessions Judge. Fine, if recovered, be paid to the victim. As the appellant-Virender Nanda @ Dimple has been convicted for a graver offence under Section 376(2)(f) IPC, no separate sentence under Section 354 IPC is necessary especially when the sentences are to run concurrently.
The aforesaid appeals stand disposed of in the above terms.