GIRISH Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) Pooran Chand, Girish and Titu @ George were arrested and sent for trial in case FIR No.607/1992 registered at Police Station Ambedkar Nagar on the allegations that on 28.11.1992 at about 07.00 P.M. near Madangir market, they abducted X (assumed name) aged twenty years, put her in a car and wrongfully confined her in it. She was taken to a deserted place near Pushp Vihar and at about 11.30 P.M. Pooran Chand committed rape upon her. All the three accused persons were charge-sheeted under Sections 342/354/376(2)(g)/120-B IPC. Vide order dated 30.07.1996, they all were charged for committing offences under Sections 366/342/34 IPC. Pooran Chand was charged additionally under Section 354 IPC also. The prosecutrix X appeared to testify. After her examination, vide order dated 22.11.2001, charge was amended and Pooran Chand was charged for committing offence under Section 376 IPC. It is relevant to note that Titu @ George expired during trial. The proceedings stood abated qua him. The prosecution examined 13 witnesses to substantiate the charges. In their 313 statements Pooran Chand and Girish pleaded false implication. On appreciating the evidence and considering the rival contentions of the parties, the Trial Court, by the impugned judgment held Pooran Chand guilty under Sections 342/366/376 IPC. Girish was convicted under Section 366/342 IPC. Pooran was sentenced to undergo RI for seven years with fine '2,000/- under Section 376 IPC; RI for three years with fine '1,000/- under Section 366 IPC and RI for six months under Section 342 IPC. Girish was sentenced to undergo RI for three years with fine '1,000/- under Section 366 IPC and RI for six months under Section 342 IPC. The sentences were to operate concurrently.

(2.) PW-12 Sh.J.P.S. Malik recorded X s statement (Ex.PW- 12/A) under Section 164 Cr.P.C. In the said statement, X did not implicate any accused for committing rape upon her. She assigned specific role to the assailants and alleged that Pooran Chand, Girish and their 4-5 associates abducted her in a car. Thereafter, she was taken to a deserted place. There Pooran Chand teased her. Taking into consideration this version of the prosecutrix before the ACMM, the learned Additional Sessions Judge opted to frame charge under Section 354 IPC. State did not challenge order on charge. When the prosecutrix appeared in the Court, in her statement, she categorically implicated Pooran Chand for committing rape upon her in the bushes at the deserted place. It led to amendment of the charge. She was recalled for examination. She reiterated that after her abduction in a car, Pooran Chand committed rape upon her in the bushes. A TSR driver happened to cross that place. When he confronted the assailants, she got an opportunity to flee the spot. She spent night in a nearby Jhuggi. The Trial Court relied upon the X s version and convicted Pooran Chand for rape.

(3.) It is true that conviction in a case of rape can be based solely on the testimony of the prosecutrix but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exists no circumstances which casts a shadow of doubt over her veracity. In the instant case, evidence of the prosecutrix appears to be not of that quality. In her statement under Section 164 Cr.P.C. before the Magistrate, she did not at all reveal that Pooran Chand established physical relations forcibly with her. She did not assign any role to Girish, Titu @ George or any other associate assisting Pooran Chand to rape her. For the first time in her deposition in the Court she introduced a new version and implicated Pooran Chand for committing rape upon her. She also deposed that his associates caught hold of her hand and feet that time. She did not offer explanation for vital improvements made by her in her court statement. She did not assign any reason as to why these facts were not disclosed in her 164 Cr.P.C. statement before the Magistrate. X and her parents remained mum on this aspect till she appeared in the court. Ex.PW-12/A was recorded under Section 164 Cr.P.C. on 01.12.1992 soon after the incident. For the first time in her deposition recorded on 28.08.2000, she introduced a new version. Charge was amended on 22.11.2001. During the intervening period, the prosecutrix or her family members did not challenge the contents of her statement under Section 164 Cr.P.C. Facts which were not found in her original statement under Section 164 Cr.P.C. were revealed by her for the first time before the Court. In Raj Sandeep @ Deepu Vs.State of NCT of Delhi, 2012 AIR(SC) 3157 the Supreme Court held as under:-