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2018 Supreme(Del) 1286
IN THE HIGH COURT OF DELHI AT NEW DELHI
S. MURALIDHAR, I.S. MEHTA, JJ.
HARISH @ HUNNY & ORS. - Appellant
Versus
THE STATE GOVT. OF NCT OF DELHI & ORS. - Respondent
CRL.A.20, 125 of 2018 & Crl.M.(B)No.27, 234 of 2018
Decided On : 22-05-2018
For the Appellant :Mr. A.K. Padhy and Mr G.P. Thareja, Advocates.
For the Respondent: Mr.Kewal Singh Ahuja, APP.
Headnote:
Penal Code, 1860 - Sections 363, 342, 323, 376(2) (g) R/w 34 - Rape - Report of the FSL - Presence of semen - Insufficiency of evidence - Scope of - Human semen was detected on the underwear of the accused - Non-examination of Doctor - Medical evidence does not support PW-1's version about being hit on the head with a lock - Held, trial court rightly held that there was insufficient evidence to find that the Respondent had committed the offence of rape and convicted the accused for the offence of indecent assault punishable under Section 354 IPC.
Penal Code, 1860 - Sections 363, 342, 323, 376(2) (g) R/w 34 - Rape - Evidence - Discrepancy - Acquittal - Public witnesses not supported the prosecution case - Evidence of police witnesses is riddled with inconsistencies - Neither the medical evidence nor the FSL report connects the accused with the crime - Appellants pursuant to their common intention kidnapped PW-1 voluntarily caused her hurt, confined her in a room and repeatedly raped has not been proved beyond reasonable doubt - Lapses in investigation - Unexplained inordinate delays at every stage of the investigation - Prosecution has not been able to prove the guilt of either A-1 or A-2 - Order on sentence of the trial Court are set aside - Appellants are acquitted - Two Appellants were directed to pay fine amounts and also compensation of Rs. 10 lakhs to the victim - Appeals are allowed.
S. MURALIDHAR, J.
1. These appeals are directed against judgment dated 14th November 2017 passed by the learned Additional Sessions Judge-1, Shahdara in Sessions Case No.240/17 arising out of FIR No.44/12 registered at PS Jyoti Nagar convicting the Appellants for the offences under Sections 363/342/323/376(2) (g) read with Section 34 Indian Penal Code (“IPC”) and the order on sentence dated 27th November 2017 whereby:
(i) For the offence under Section 376(2) (g) read with Section 34 IPC: Gaurav (A-2) was sentenced to rigorous imprisonment for life with fine of Rs.50,000/- and in default of payment of fine, to undergo simple imprisonment for 6 months; and Harish (A-1) was sentenced to rigorous imprisonment for 10 years with fine of Rs.50,000/- and in default of payment of fine, to undergo simple imprisonment for 6 months.
(ii) For the offence under Section 363 read with Section 34 IPC: both A-1 and A-2 were sentenced to rigorous imprisonment for 5 years with fine of Rs.20,000/- and in default of payment of fine, to undergo simple imprisonment for 6 months.
(iii) For the offence under Section 342 read with Section 34 IPC: both A-1 and A-2 were sentenced to rigorous imprisonment for 6 months with fine of Rs.1,000/- and in default of payment of fine, to undergo simple imprisonment for 10 days.
(iv) For the offence under Section 323 read with Section 34 IPC: both A-1 and A-2 were sentenced to rigorous imprisonment for 6 months with fine of Rs.1,000/- and in default of payment of fine, to undergo simple imprisonment for 10 days.
Charges
2. The charges framed against A-1 and A-2 were that at around 2:15 pm to 3:45 pm on 9th February 2012, both of them along with Deepak (juvenile in conflict with law-“JCL”) formed a common intention to kidnap the minor girl (PW-1), aged about 13 years, and in furtherance of their common intention,
(i) took her from the lawful guardianship of her parents without their consent thereby committing an offence under Section 363 read with Section 34 IPC;
(ii) secondly, that both the accused along with the JCL wrongly confined PW-1 in a room and thereby committed an offence punishable under Section 342 read with Section 34 IPC;
(iii) thirdly, both the accused along with the JCL voluntarily caused hurt to PW-1 at the aforementioned time place and date thereby committing an offence under Section 323 read with Section 34 IPC; and
(iv) fourthly, in furtherance of their common intention, both the accused along with JCL committed gang rape upon PW-1 thereby committing the offence punishable under Section 376 (2) (g) IPC.
The FIR
3. The case of the prosecution is based on the evidence of PW-1. In her first statement to the police on 9th February 2012 as stated in the First Information Report (FIR) she stated that she was studying in a school in the 8th grade. She stated that on 9th February 2012, at around 2:15 pm, she was walking to the house of a friend in connection with some school work. As she was passing by a water tank, a silver coloured Santro car came and stopped to the right of where she was. A tall boy got down from the driver’s seat and asked her to sit in the car. She got frightened. He then threatened her to sit in the car or else he would kill her. He then pulled her by her hand and pushed her into the car. In the car, there was another boy who was sitting who pulled her inside. When she screamed for help, the tall boy told the other boy whom he called Hunny to beat her. The boy, who was then sitting inside the car, hit her on the head with an iron lock and she lost consciousness. When she came to her senses, she realized that she was on the rear seat of the car. The car then suddenly stopped. Both the boys then caught hold of her and took her inside the house and into a room therein where another boy was already present. A bed sheet was put on the mattress which was already on the floor. The tall boy then asked his associates to wait outside the room.
4. The car was parked alongside the door of the room
