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2019 Supreme(Del) 1615
IN THE HIGH COURT OF DELHI
MANOJ KUMAR OHRI, J.
In the Matter of : Durgesh Pandey – Petitioner
Versus
State – Respondent
CRL.A. No. 1208 of 2015
Decided On : 29-07-2019
For the Appellant :Aditya Vikram, Avinash, Advocates.
For the Respondent: Sanjeev Sabharwal, APP.
The main legal point established in the judgment is the requirement of penetration for a charge of rape under Section 375 IPC and the distinction between preparation, attempt, and commission of the offense under Section 376/511 IPC.
Headnote:
RAPE - Criminal Law - Sections 376(2)(j) and 376(2)(l) IPC - The judgment discusses the interpretation and application of Sections 375, 376, and 376/511 IPC. The court analyzed the evidence, including witness testimonies, medical reports, and forensic evidence, to determine the presence of the appellant at the scene, the mental condition of the prosecutrix, and the intention and attempt to commit the offense. The court concluded that the prosecution failed to prove the charge under Section 376 IPC but found the appellant guilty under Section 376/511 IPC.
Fact of the Case:
The case involved the appellant challenging the judgment of conviction for offenses under Sections 376(2)(j) and 376(2)(l) IPC. The incident was reported by a witness who found the appellant lying on top of the prosecutrix in a naked condition. The prosecutrix was found to be mentally unstable and unable to provide a statement.
Finding of the Court:
The court found that the prosecution failed to prove the charge under Section 376 IPC due to lack of evidence of penetration and conclusive proof of rape. However, the court found the appellant guilty under Section 376/511 IPC based on the evidence of the appellant's presence at the scene, the mental condition of the prosecutrix, and the attempt to commit the offense.
Issues: The key issues included the presence of the appellant at the scene, the mental condition of the prosecutrix, the intention and attempt to commit the offense, and the interpretation of the legal provisions under Sections 375, 376, and 376/511 IPC.
Ratio Decidendi: The court emphasized the requirement of penetration for a charge of rape under Section 375 IPC and the distinction between preparation, attempt, and commission of the offense. The court relied on witness testimonies, medical reports, and forensic evidence to determine the guilt of the appellant under Section 376/511 IPC.
Final Decision: The appellant's conviction under Section 376 IPC was set aside, and the conviction was altered and modified to one under Section 376/511 IPC. The appellant's sentence was modified to rigorous imprisonment for 5 years.
JUDGMENT :
1. By way of the present proceedings, the appellant has challenged the judgment of conviction dated 22nd July, 2015 and order on sentence dated 28th July, 2015 passed by ASJ, Special FTC-2 (Central) in Sessions Case No.05/2015 arising out of FIR No.787/2014 registered under Sections 376/511/354 IPC at PS Timarpur. Vide above judgment, the appellant was convicted for the offences punishable under Sections 376(2)(j) and Section 376(2)(l) IPC and was awarded rigorous imprisonment for 10 years along with fine of Rs. 5,000/- in default whereof he was directed to undergo simple imprisonment for two years.
2. The following facts were noted by the Trial Court in the impugned judgment: -
“1. The case in hand was registered on a complaint (Ex. PW 2/A) of one Sh. Sudesh Rathi. The complainant is working as a driver in DTC. On 14.11.2014 at about 12:30 AM while he was returning to his house at Gopalpur on his motorcycle, on turning to main Outer Ring Road, he saw one boy lying on top of the girl near a footpath near Gopalpur and also found that girl was in nude condition while the pant of the boy was lowered below his knees.
2. Complainant, Sudesh Rathi made a call to his ‘Chacha’ Sh. Raj Singh Bhati and asked him to come at the spot. When his Chacha reached at the spot, they tried to remove boy, but he did not move from over top of the girl. Thereafter, Sudesh Rathi made a call at 100 number from mobile of his Chacha bearing No. 8800994522. PCR van reached at the spot and separated the boy, who was lying on top of that girl. On enquiry his name was revealed as Durgesh Pandey. The girl was, however, unable to state her name. PCR officials gave the clothes to the girl and took both of them along with them in the PCR van.
3. The victim was taken for medical examination at Aruna Asaf Ali Hospital where W. SI Saroj Devi reached upon receipt of DD No. 5A Ex. PW 1/B where ASI Narender Singh met her. W. SI Saroj Devi obtained MLC of the victim. The doctor opined that victim was unable to tell anything about the incident. After the registration of FIR, on the basis of complaint of Sudesh Rathi Ex. PW-2/A, the Investigating Officer prepared the site plan of place of incident, got the spot inspected by the Crime Team, also took photographs and got the victim counselled from one NGO official. Accused was arrested and taken for medical examination. The exhibits of the accused as well as victim which were taken by the respective examining doctors, were also taken into police possession and victim was referred to IHBAS for treatment, after obtaining necessary orders in this regard from the court of concerned MM.
4. Information regarding the said missing girl was conveyed to nearby Police Stations through ‘Zipnet’, but no clue regarding victim was received.
5. However, on 20.11.2014 one boy namely ‘BB’ resident of Gujarat lodged the report regarding missing of his sister, at PS Timparpur vide DD No. 32A on 20.11.2014. On the next day, he brought photograph of his missing sister to the PS. He was taken to IHBAS where he identified the aforesaid victim as his sister. The victim was produced before concerned MM for recording of her statement under Section 164 Cr.P.C. However, Ld. MM was of the view that the victim appeared to be suffering from mental instability and her statement could not be recorded under Section 164 Cr.P.C.”
3. After completing the investigation, a charge sheet was filed. The Trial Court vide order dated 9th April, 2015 framed the charges under Sections 376 (2) (j) IPC and 376 (2) (l) IPC against the appellant.
4. During the trial, the prosecution examined a total of 16 witnesses. Sudesh Rathi and Raj Singh, the two independent witnesses, were examined as PW-2 and PW-4 respectively. Dr Valvi Kuldeep Tapsingh and Dr. Shaili were examined as PW-6 and PW-5 to prove the MLC of the prosecutrix. The prosecutrix was examined without oath as it had come on record that the prosecutrix was differently abled and not capable of understanding the
