Mohd. Imran Khan vs State (Govt. of NCT of Delhi)

Mohd. Imran Khan ...Appellant

Versus

State (Govt. of NCT of Delhi) ...Respondent

With

CRIMINAL APPEAL NO. 1517 of 2010

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Both these criminal appeals have been preferred against the

common impugned judgment and order dated 8.12.2009 of the High

Court of Delhi passed in Criminal Appeal Nos.311 of 1999 and 312

of 1999, by which the High Court has affirmed the conviction of the

appellants under Section 376 of the Indian Penal Code, 1860

(hereinafter called `IPC'), however, set aside their conviction under

Sections 366/34 IPC and further reduced the sentence from 7 years

RI to 5 years RI with a fine of Rs.10,000/- each and in default to

undergo further punishment for 3 months.

2. Facts and circumstances giving rise to these appeals are

unfolded by the statement of Shri Prabhu Dass (father of prosecutrix

Monika) dated 28.11.1989 made before the Police Station, Vinay

Nagar, New Delhi to the effect that his daughter Monika, aged about

15 years, studying in standard 9th in Green Field School, Safdarjung

Enclave, New Delhi had left her house on 24.11.1989 for going to

school. She informed through telephone that she would stay in the

house of her friend Amita for the night. On 25.11.1989 at about

8.30 a.m. Monika telephoned her cousin Satish Anand that she was

going to Pragati Maidan along with her school friends and asked him

to reach there so that she would come back with him. Monika asked

Satish Anand to meet her at Ahmed Food Restaurant, U.P. Pavilion,

where Mohd. Imran Khan and Jamal Ahmed (appellants) used to

work. Satish Anand went to Pragati Maidan at the pointed place, but

he could neither meet Monika nor either of the appellants, but he

came to know that Monika was roaming inside Pragati Maidan along

with the appellants. As she did not come back till evening, the

complainant Prabhu Dass went to Pragati Maidan on 26.11.1989 and

on enquiry he came to know that Monika was seen roaming with the

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appellants. The appellants were known to Monika as Prabhu Dass,

complainant was having a stall of readymade garments at shop no.11

in Anarkali Bazar, Pragati Maidan in front of the food stall where the

appellants were working. Complainant's wife Devki and daughter

Monika used to come to work there also. Complainant searched for

his daughter at many places but could not find.

3. On the basis of his statement, a case under Section 363 IPC

was registered and investigation ensued. It was during the

investigation Monika, prosecutrix was recovered. The appellants-

accused Mohd. Imran Khan and Jamal Ahmed were also arrested.

Offences under Sections 366 and 376 IPC were added. Monika was

examined under Section 164 of Code of Criminal Procedure, 1973

(hereinafter called `Cr.P.C.') on the basis of which the appellants-

accused were arrested. After having further investigation, offences

punishable under Sections 342/506 IPC were also added.

4. Monika, prosecutrix was medically examined to determine

her age and to find out the possibility of commission of rape. The

appellants were also examined medically. After conclusion of the

investigation, the matter was committed to Sessions Court and trial

commenced. Prosecution examined as many as 16 witnesses in

support of its case. The defence examined 4 witnesses. Mohd.

3 Imran Khan, first appellant also examined himself under Section 315

Cr.P.C. After conclusion of the trial, the Trial Court vide judgment

and orders dated 29.5.1999 and 31.5.1999 convicted the appellants

under Section 366 IPC read with Section 34 and sentenced them to

undergo RI for 4 years and a fine of Rs.2,000/- each. In default of

payment of fine, they would undergo SI for two months. Both the

appellants were further sentenced under Section 376 IPC to RI for 7

years and a fine of Rs.3,000/- each. In default of payment of fine,

they would undergo SI for 3 months. However, both the sentences

were directed to run concurrently.

5. Being aggrieved, both the appellants preferred separate

Criminal Appeal Nos.311 of 1999 and 312 of 1999 which have been

disposed of by the common impugned judgment and order dated

8.12.2009, by which the High Court acquitted both the appellants of

the charges under Sections 366/34 IPC, but maintained their

conviction under Section 376 IPC. However, the sentence under

Section 376 IPC was reduced from 7 years to 5 years each and to pay

a fine of Rs.10,000/- each failing which to undergo SI for 3 months.

Hence, these appeals.

6. Shri Amrendra Sharan, learned Senior counsel for the

appellant Jamal Ahmed in Criminal Appeal No.1517 of 2010 has

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submitted that the prosecutrix Monika was over and above 16 years

of age. The Investigating Officer deposed in the court that the Birth

Certificate produced in the court did not relate to her. The

prosecution did not cross-examine him after declaring hostile. In

such an eventuality the appellant is entitled for the benefit of his

statement. The appellant Jamal Ahmed had no physical connection

with the prosecutrix. She had an affair with Mohd. Imran Khan and

had gone with him voluntarily. She had been taken from Delhi to

Meerut by bus. She met with an Advocate for planning her marriage

with Mohd. Imran Khan. She stayed in the hotel. Thus, she had

ample opportunity to raise hue and cry or inform some body at some

place that she had been subjected to some threat or coercion. The

courts below erred in placing reliance on her statement.

7. Shri Anis Ahmed, learned counsel appearing for another

appellant in Criminal Appeal No.1516 of 2010 has also assailed the

impugned judgment on similar grounds.

8. Per contra, Shri P.P. Malhotra, learned ASG appearing for

the State of Delhi has opposed the appeals contending that Monika,

prosecutrix was below 16 years of age on the date of incident. She

remained under persistent threats from the appellants. Therefore,

she could not raise hue and cry. The concurrent finding of facts

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regarding rape by both the appellants does not warrant any

interference. The appeals lack merit and are liable to be dismissed.

9. We have considered the rival submissions made by the

learned counsel for the parties and perused the record.

10. The Trial Court has meticulously scrutinised and appreciated

the evidence of the prosecution as well as of defence. Shri Prabhu

Dass, father of the prosecutrix died on 10.11.1995 during trial before

his statement could be recorded. Som Wati, Lady Constable (PW.1)

deposed that she was in the team which recovered the prosecutrix on

29.11.1989 and taken her for medical examination. She has also

recovered the underwear of the prosecutrix and was handed over to

I.O. Dr. Reeta Rastogi (PW.2) proved the M.L.C., Ext.PW2/A of the

prosecutrix and deposed that the same was prepared by her

according to which there was no sign of external injury. The hymen

of the prosecutrix was inflame and there was slight bleeding. Her

vagina admitted two fingers tightly. Prosecutrix was not habitual of

intercourse but there was evidence of intercourse. Its witness was

not cross-examined by the defence as to whether the evidence of

intercourse was recent one or not. Monika, the prosecutrix (PW.3)

had given full version of the incident as to how she had been picked

up by the appellants from Pragati Maidan. She knew both the

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accused as they had been working in the stall near the stall of her

father. When prosecutrix was waiting for her cousin, the accused

persons showed her a knife and told her in case she tried to run away

or raise noise, they would kill her. Both the accused persons forcibly

took her to ISBT in a three wheeler and from there to Meerut by bus.

The accused kept their respective knives on the back of the

prosecutrix in such a manner that neither the passengers nor the bus

conductor could notice of their activity. She was taken to Hotel

Ajanta in Meerut where the appellant Jamal Ahmed made the entry

in the Hotel register and took her to room no.101. At the time of

making entry in the Hotel register by accused Jamal Ahmed, accused

Mohd. Imran Khan stayed with the prosecutrix throughout. Both the

accused persons committed rape upon her in that room. Next day in

the morning she was taken by the accused persons to the house of

the sister of one of them and from there she was brought to Delhi to

the house of elder brother of appellant Jamal Ahmed. Both the

accused persons committed rape upon her in that house. They had

put their knives on her back in such a manner that other persons

could not notice them. She could not raise hue and cry while coming

from Meerut to Delhi as she was totally in a position of shock and

the accused appellants threatened to kill her in case she raises voice

or tries to run away. On 27.11.1989 she had been locked inside the

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house as the appellants had gone away and after coming back in the

evening she was raped by both of them. On 28.11.1989 both the

appellants left the house and returned in the evening along with elder

brother and brother-in-law of accused Imran. These two persons had

taken the prosecutrix to a flat behind G.B. Pant Hospital where she

found both the appellants present. After sometime, police recovered

her from that place and she was sent for medical examination. Her

statement was recorded under Section 164 Cr.P.C. on 29.11.1989.

11. Shri Babu Lal (PW.11), the then Metropolitan Magistrate

proved the statement of the prosecutrix recorded under Section 164

Cr.P.C. Other witnesses also supported the case of the prosecution.

Both the appellants denied their involvement while their statements

under Section 313 Cr.P.C. were recorded. Some defence witnesses

were examined, however, relevant witness had been appellant Imran

Khan who has examined himself as DW.5 under Section 315 Cr.P.C.

According to him Monika, prosecutrix met him on 25.11.1989 at 3

p.m. at his restaurant and told him that her mother had turned her out

so she would not go to her house and if he refused to keep her she

would die. It was on the insistence of the prosecutrix that he along

with another appellant and prosecutrix went to Meerut to consult

Shri Mustafa, Advocate who was known to other appellant, however,

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the lawyer told her to bring the Birth Certificate etc. as it was to be

produced in the court for getting married and court would issue one

month's notice.

12. All the prosecution witnesses have faced grilling cross-

examination but nothing could be elicited to discredit any part of

their evidence. This part of the prosecution has been accepted by

both the courts and we do not see any cogent reason to interfere with

the same.

13. Learned counsel for both the parties have emphasised on the

question as to whether the conduct of the prosecutrix had been such

that the appellants could not be held responsible as she had

voluntarily gone with them to Meerut and, in spite of the fact, that

she had ample opportunity to raise hue and cry or inform any person,

she did not do so. It is submitted on behalf of the appellants that it

was a case of consent as the prosecutrix had voluntarily

accompanied the appellants to Meerut. In order to buttress his

argument, Shri Amrendra Sharan, learned senior counsel, placed

reliance upon the judgments of this Court in Mussauddin Ahmed v.

State of Assam, (2009) 14 SCC 541; and Alamelu & Anr. v. State

represented by Inspector of Police, (2011) 2 SCC 385, wherein after

appreciating the evidence on record, the Court held that the

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prosecutrix had been a willing partner in the entire episode. The

conviction accorded under Section 376 IPC by the courts below has

been set aside by this Court in similar circumstances.

In our considered opinion, such arguments may be relevant in

case we reach the conclusion that the findings of fact recorded by the

courts below on the issue of age of the prosecutrix and commission

of rape could not be factually correct and were liable to be set aside.

In view of the fact that the High Court has acquitted the

appellants for the offences under Sections 366/34 IPC the issue of

kidnapping is not required to be considered further.

AGE :

14. Both the courts below have laboured hard to find out the age

of the prosecutrix for the reason that defence produced certificate

from Safdarjung Hospital, New Delhi to create confusion and the

I.O. in order to help the appellants had made a statement that the

certificate on record did not belong to the prosecutrix. The medical

report of the Radiologist issued by Ram Manohar Lohia Hospital,

New Delhi revealed that age of the prosecutrix was between 16 and

17 years. The Birth Certificate issued under Section 17 of the

Registration of Birth & Death Act, 1969 reveals that a female child

was born on 2.9.1974 by the wedlock of Prabhu Dass and Devki,

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residents of Sector 12/69, R.K. Puram, New Delhi and its

registration number had been 4840. It also reveals that number of

live children including this child had been two. However, this

certificate has been duly proved by Vijay Kumar Harnal, Medical

Record Officer, Safdarjung Hospital, New Delhi (PW.9), who

explained that one female child was born in Safdarjung Hospital at

7.15 a.m. on 2.9.1974. Her mother's name was Devki, wife of

Prabhu Dass and her address was R.K. Puram, New Delhi. He also

explained that the other Birth Certificate produced by the defence

according to which a female child was born on 12.9.1971 was of a

different female child who was born to one Devi Rani, wife of

Prabhu Dayal, residents of Kotla Mubarakpur and thus, it did not

belong to Monika, prosecutrix. Similar evidence had been given by

Dr. R.K. Sharma, C.M.O., N.D.M.C., Delhi (PW.7). According to

him, the female child was born with Registration No.4840 on

2.9.1974 and he further explained that the name of the parents and

address of another female child born on 27.9.1971 bearing different

registration no.4502 had been totally different, i.e. Prabhu Dayal and

Devi Rani, residents of Kotla Mubarakpur . The number of living

children with that family is also different from that of the

prosecutrix. These documents have thoroughly been examined by

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the courts below and we do not see any cogent reason to examine the

issue further.

The medical report and the deposition of the Radiologist

cannot predict the exact date of birth, rather it gives an idea with a

long margin of 1 to 2 years on either side. In Jaya Mala v. Home

Secretary, Government of J & K & Ors., AIR 1982 SC 1297, this

Court held:

"However, it is notorious and one can take

judicial notice that the margin of error in age

ascertained by radiological examination is two

years on either side."

(See also: Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh &

Anr., (2009) 6 SCC 681; and State of Uttar Pradesh v. Chhotey

Lal, (2011) 2 SCC 550)

In view of the above as we have seen the original record

produced before us, we are of the considered opinion that the

prosecutrix was less than 16 years of age on the date of incident.

EVIDENCE OF PROSECUTRIX:

15. It is a trite law that a woman, who is the victim of sexual

assault, is not an accomplice to the crime but is a victim of another

person's lust. The prosecutrix stands at a higher pedestal than an

injured witness as she suffers from emotional injury. Therefore, her

evidence need not be tested with the same amount of suspicion as

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that of an accomplice. The Indian Evidence Act, 1872 (hereinafter

called `Evidence Act'), nowhere says that her evidence cannot be

accepted unless it is corroborated in material particulars. She is

undoubtedly a competent witness under Section 118 of Evidence Act

and her evidence must receive the same weight as is attached to an

injured in cases of physical violence. The same degree of care and

caution must attach in the evaluation of her evidence as in the case

of an injured complainant or witness and no more. If the court keeps

this in mind and feels satisfied that it can act on the evidence of the

prosecutrix, there is no rule of law or practice incorporated in the

Evidence Act similar to illustration (b) to Section 114 which requires

it to look for corroboration. If for some reason the court is hesitant to

place implicit reliance on the testimony of the prosecutrix it may

look for evidence which may lend assurance to her testimony short

of corroboration required in the case of an accomplice. If the totality

of the circumstances appearing on the record of the case disclose that

the prosecutrix does not have a strong motive to falsely involve the

person charged, the court should ordinarily have no hesitation in

accepting her evidence. The court must be alive to its responsibility

and be sensitive while dealing with cases involving sexual

molestations. Rape is not merely a physical assault, rather it often

distracts the whole personality of the victim. The rapist degrades the

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very soul of the helpless female and, therefore, the testimony of the

prosecutrix must be appreciated in the background of the entire case

and in such cases, non-examination even of other witnesses may not

be a serious infirmity in the prosecution case, particularly where the

witnesses had not seen the commission of the offence. (Vide: State

of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990

SC 658; State of U.P. v. Pappu @Yunus & Anr. AIR 2005 SC

1248; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191).

Thus, the law that emerges on the issue is to the effect that

statement of prosecutrix, if found to be worthy of credence and

reliable, requires no corroboration. The court may convict the

accused on the sole testimony of the prosecutrix.

16. The Trial Court came to the conclusion that there was no

reason to disbelieve the prosecutrix, as no self-respecting girl would

level a false charge of rape against anyone by staking her own

honour. The evidence of rape stood fully corroborated by the

medical evidence. The MLC of the prosecutrix Ext.PW2/A was duly

supported by Dr. Reeta Rastogi (PW.2).

17. This view of the Trial Court stands fortified by the judgment

of this Court in State of Punjab v. Gurmit Singh & Ors. AIR 1996

SC 1393, wherein this Court observed that "the courts must, while

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evaluating evidence remain alive to the fact that in a case of rape, no

self-respecting woman would come forward in a court just to make a

humiliating statement against her honour such as is involved in the

commission of rape on her."

Similarly, in Wahid Khan v. State of Madhya Pradesh,

(2010) 2 SCC 9, it has been observed as under:

"It is also a matter of common law that in Indian

society any girl or woman would not make such

allegations against a person as she is fully aware of

the repercussions flowing therefrom. If she is found

to be false, she would be looked at by the society

with contempt throughout her life. For an

unmarried girl, it will be difficult to find a suitable

groom. Therefore, unless an offence has really been

committed, a girl or a woman would be extremely

reluctant even to admit that any such incident had

taken place which is likely to reflect on her chastity.

She would also be conscious of the danger of being

ostracised by the society. It would indeed be difficult

for her to survive in Indian society which is, of

course, not as forward-looking as the western

countries are."

18. Much reliance has been placed by learned counsel for the

appellants on the judgment of this Court in Javed Masood & Anr.

v. State of Rajasthan, (2010) 3 SCC 538, wherein it had been held

that in case the prosecution witness makes a statement and is not

declared hostile, he is supposed to speak the truth and his statement

is to be believed.

1 It is in view of this fact in the instant case that Puran Singh,

I.O. (PW.15) has deposed in the court that the "birth certificate of

the prosecutrix did not relate to the prosecutrix. I did not verify

about the birth certificate from the NDMC. I do not remember if at

the time of bail application I had submitted that the birth certificate

is genuine but does not relate to prosecutrix."

19. Thus, the question does arise as to what extent the court is

under an obligation to accept the statement of Puran Singh, I.O.

(PW.15) particularly in view of the birth certificate available on the

record. In view of our finding in respect of the date of birth we are of

the view that Puran Singh, I.O. (PW.15) unfortunately made an

attempt to help the accused/appellants, though in the examination-in-

chief the witness has deposed that the Birth Certificate providing the

date of birth as 2.9.1974 was genuine.

Be that as it may, by now Puran Singh (PW.15) might have

retired as the incident itself occurred 22 years ago. Therefore, we do

not want to say anything further in respect of his conduct.

20. In State of Karnataka v. K. Yarappa Reddy, AIR 2000

SC 185, this Court while dealing with a similar issue held:

"It is well-nigh settled that even if the

investigation is illegal or even suspicious the rest

of the evidence must be scrutinized independently

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of the impact of it. Otherwise the criminal trial

will plummet to the level of the investigating

officers ruling the roost. The court must have

predominance and pre-eminence in criminal trials

over the action taken by investigating officers.

Criminal justice should not be made a casualty for

the wrongs committed by the investigating officers

in the case. In other words, if the court is

convinced that the testimony of a witness to the

occurrence is true the court is free to act on it

albeit the investigating officer's suspicious role in

the case."

21. The investigation into a criminal offence must be free from

all objectionable features or infirmities which may legitimately lead

to a grievance to either of the parties that the investigation was unfair

or had been carried out with an ulterior motive which had an adverse

impact on the case of either of the parties. Investigating Officer is

supposed to investigate an offence avoiding any kind of mischief or

harassment to either of the party. He has to be fair and conscious so

as to rule out any possibility of bias or impartial conduct so that any

kind of suspicion to his conduct may be dispelled and the ethical

conduct is absolutely essential for investigative professionalism. The

investigating officer "is not merely to bolster up a prosecution case

with such evidence as may enable the court to record a conviction

but to bring out the real unvarnished truth." (Vide: Jamuna

Chaudhary & Ors. v. State of Bihar, AIR 1974 SC 1822; State of

Bihar & Anr. etc. etc. v. P.P. Sharma & Anr., AIR 1991 SC

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1260; and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC

254)

22. Shri Amrendra Sharan, learned senior counsel has placed

reliance on the judgment of this Court in Baldev Singh & Ors. v.

State of Punjab, AIR 2011 SC 1231, wherein the convicts of gang

rape had been sentenced to 10 years RI and a fine of Rs.1000/- each

had been imposed and served about more than 3 years imprisonment

and incident had been very old, this Court in the facts and

circumstances of the case reduced the sentence as undergone,

directing the appellants therein to pay a sum of Rs.50,000/- of fine to

be paid to the victim and prayed for some relief.

23. The High Court after taking into consideration all the

circumstances including that the incident took place in 1989; the

appeal before it was pending for more than 10 years; the prosecutrix

had willingly accompanied the appellants to Meerut and stayed with

them in the hotel; and she was more than 15 years of age when she

eloped with the appellants and the appellants were young boys,

reduced the sentence to 5 years which was less than the minimum

prescribed sentence for the offence. As the High Court itself has

awarded the sentence less than the minimum sentence prescribed for

the offence recording special reasons, we do not think it to be a fit

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case to reduce the sentence further in a proved case of rape of a

minor.

The appeals lack merit and are, accordingly, dismissed.

..................................J.

(P. SATHASIVAM)

....................................J.

New Delhi, (Dr. B.S. CHAUHAN)

October 10, 2011

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