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2011 Supreme(UK) 542
2011 (2) N.C.C. 762
SUPREME COURT OF INDIA
P. Sathasivam and Hon’ble Dr. Justice B.S. Chauhan
Criminal Appeal No. 1516 of 2010 With Criminal Appeal No. 1517 of 2010
MOHD. IMRAN KHAN – Appellant
Versus
STATE (GOVT. OF NCT OF DELHI) – Respondent
Decided on : 10.10.2011
Headnote:(A) Age — Determination — Medical report and deposition of 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. (Para 14)
(B) Indian Penal Code, 1860, Sec. 376 and Evidence Act, 1872, Secs. 118 and Illustration (b) to Sec. 114 — Rape — Evidence of prosecutrix — Appreciation — Prosecutrix stands at a higher pedestal than an injured person as she sufers from emotional injury — Indian Evidence nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars — Rape is not merely a physical assault — Rather it often distracts the whole personality of the victim — Rapist degrades the very soul of the helpless female — Therefore, testimony of prosecutrix must be appreciated in the background of the entire case — In rape case, non-examination of other witnesses not a serious infirmity in prosecution case. (Paras 15 to 18)
(C) Criminal Offence — Investigation into — 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. (Para 21)
(D) Indian Penal Code, 1860, Sec. 376 — Rape — Sentence and conviction for — In the present case, where High Court had reduced the sentence to 5 years imprisonment from 7 years — Which is less than the minimum sentence prescribed for the offence recording special reasons — Further reduction, not tenable. (Para 23)
¼v½ vk;q dh x.kuk & fpfdRlh; fjiksVZ vkSj jsfM;ksyksftLV }kjk fn;s x;s 'kiFk i= ds vk/kkj ij okLrfod tUe frfFk ?kksf"kr ugha dh tk ldrh blls ijs nksuksa vksj 1 ;k 2 o"kZ ds vUrj ds lkFk ;g vk;q dk ,d vuqeku nsrh gSA ¼izLrj 14½
¼c½ Hkkjrh; n.M lafagrk] 1860] /kkjk 376 vkSj lk{; vf/kfu;e] 1872] /kkjk 118 vkSj mnkgj.k (b) /kkjk 114 & cykRdkj & ihfM+rk ds lk{; dk vf/kewY;kadu & ihfM+rk ,d pksfVy O;fDr dh rqyuk esa Å¡ps ik;nku ij [kM+h gksrh gS pw¡fd og HkkoukRed vk?kkr ls ihfM+r gksrh gS & Hkkjrh; lk{; vf/kfu;e] dgha ij Hkh ,slk ugha dgrk gS fd mldks lk{; dh tc rd laiqf"V u gks tk, og Lohdkj ugha fd;k tk ldrk & cykRdkj ,d 'kkjhfjd geyk gh ugha gS cfYd bl ls vDlj ihfM+rk ds lEiw.kZ O;fDrRo dk fo{ksi gks tkrk gS & cykRdkjh] cspkjh efgyk dh vkRek dks gh >d>ksj nsrk gS & blfy, ihfM+rk ds lk{; dh lEiw.kZ dsl dh i`"BHkwfe esa Lohdkj fd;k tkuk visf{kr gS & cykRdkj ds dsl esa vU; lkf{k;ksa dh ijh{kk dk u fd;k tkuk vfHk;kstu ds dsl esa dksbZ xaHkhj =qfV ugha gSA ¼izLrj 15 ls 18½
¼l½ QkStnkjh vijk/k ds lEcU/k esa foospuk ds nkSjku foospuk vf/kdkjh dks vfHk;kstu ds dsl dks dsoy ,sls lk{; ds vk/kkj ij iq"V gh ugha djuk gksrk gS ftl ds vk/kkj ij U;k;ky; nks"kflf) dk vkns'k ns ns cfYd fNih gqbZ okLrfodrk dks Hkh izdV djuk gksrk gSA ¼izLrj 21½
¼n½ Hkkjrh; n.M lafgrk] 1860] /kkjk 376 & cykRdkj ds dsl esa dkjkokl dh ltk vkSj nks"kflf) & izLrqr dsl esa tgk¡ mPp U;k;ky; }kjk dkjkokl dh ltk 7 o"kZ ls ?kVk dj 5 o"kZ dh xbZ gS tks fd U;wure fu/kkZfjr dkjkokl dh ltk] mDr vijkèk esa fo'ks"k dkj.k ntZ djrs gq,] ls Hkh de gS & bl esa vkSj vf/kd dVkSrh iqf"V;qDr ugha gSA ¼izLrj 23½
Dr. B.S. Chauhan, J. — 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 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. lmran 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 or Rs. 2,000/- each. In default of payment of fine, they would undergo SI Ior 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 w
