Mohd. Imran Khan Vs. State
(Govt. of NCT of Delhi)
J U D G M E N T
Dr. B.S. CHAUHAN, J.
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
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.
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.
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. 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
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.
Amrendra Sharan, learned Senior counsel for the appellant Jamal Ahmed in Criminal
Appeal No.1517 of 2010 has 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.
Anis Ahmed, learned counsel appearing for another appellant in Criminal Appeal
No.1516 of 2010 has also assailed the impugned judgment on similar grounds.
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 regarding
rape by both the appellants does not warrant any interference. The appeals lack
merit and are liable to be dismissed.
have considered the rival submissions made by the learned counsel for the
parties and perused the record.
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
6accused 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 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.
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, 8the 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.
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.
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 9prosecutrix 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 :
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, 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
These documents have thoroughly
been examined by 1the 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:
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 1that 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 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.
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).
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 1evaluating 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."
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."
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.
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 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
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
11260; and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254)
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.
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 case to reduce the sentence further in a proved case of
rape of a minor. The appeals lack merit and are, accordingly, dismissed.
(Dr. B.S. CHAUHAN)