Manoj @ Monu vs State

Vimal Kumar Yadav, J

Appellant Manoj @ Monu was convicted under section 376(2)(g) and 506 Indian Penal Code (IPC) and was sentenced to undergo Rigorous Imprisonment  (RI)  for  a period  of  10  years  and  to  pay  a  fine  of  Rs.5,000/- under section 376(2)(g) IPC and to further undergo Simple Imprisonment (SI)  for  a period  of 3 months,  in  default  of  payment  of  fine.  Appellant  was further sentenced to under RI for a period of 01 year under section 506 IPC.

Aggrieved  by  the  aforesaid  judgment  dated  18.08.2011  and sentence dated 23.08.2011, the instant appeal has been preferred.

Before adverting into the details of the grounds taken to assail the judgment, the indispensable facts are required to be looked into.

The  Appellant  and  the  victim  both  are  residents  of  the  same  vicinity and knew each other, prior to the incident. According to the victim, the Appellant intended to marry her, but his proposal was rejected by the victim. 5. On 10.09.2007 at about 9:00 pm, while the victim was coming from Monday Bazar (Som Bazar), she found Appellant and two other persons Sonu and Golu, whose names were revealed later,  standing on her way and were talking,  mocking and  pointing  out  towards  the  victim.  Apprehending some mischief, the victim took another way to go to her home, but she was accosted by the Appellant and two of his associates, who took her to a park, near a ‘Peepal’ tree surrounded by the debris of demolished houses and raped her. She was threatened also by the trio.

The  victim  did  not  report  the  matter  to  anyone  out  of  fear  or  shame, without realising that she had become pregnant. After about 5-6 months, she felt severe pain in her abdomen and when it became unbearable, she reported  it  to  her  father  who  took  her  to  the  hospital  where  it was  revealed that she was carrying a child. The entire episode was, thus, disclosed by the victim  to  her  father  and  that  is  how  the  case  FIR  No.75/2008 Ex.  PW-4/A came to be registered by PS DBG Road on 02.03.2008.

The investigation culminated into a charge sheet, which ultimately, after recording of 13 witnesses, statement of accused and defence witnesses, resulted into the Impugned Judgment dated 18.08.2011 and order on sentence dated 23.08.2011.

Incidentally, the other two assailants / co-accused of the Appellant Manoj @ Monu, could not be identified or located albeit the Appellant gave their names in his disclosure statement. Thus, it was only the Appellant Manoj @ Monu who was chargesheeted, tried and punished.

Against the backdrop of all these facts and circumstances, the counsel for the Appellant has come up with following arguments, seeking reversal of the judgment of learned Trial Court.

It is submitted by learned counsel for the Appellant that the investigation  of  the  case  is  very  shoddy  and  defective. No  serious  attempt was made by the Investigating Agency to locate the other two assailants. It is thus, contended that in fact there was no such incident and that is why those two persons could not be located, arrested, chargesheeted or tried. The Appellant has been falsely  implicated in this case, on account of previous enmity as continuous  bickering  was  there between the  Appellant  and father of the victim.

It is asserted that father of victim is a very quarrelsome man and used to create ruckus after taking liquor, which was his daily routine. Not- withstanding the  fact that the disclosure statement  is  not  admissible  but the names of the co-accused i.e. Sonu and Golu figure in the same, giving some clue  to  the  Investigating  Officer  (IO)  about  the  co-accused.  Despite  having the names, the IO did not bother to either investigate qua them or arrest them.  In  fact,  it  is  submitted  that  there  was  no  such  incident  involving the Appellant or any other person and that is why in the initial complaint, name of the accused was not given and for that matter during the medical examination, the victim did not disclose that she was raped by two more persons and rather confined it to Appellant only but again did not name him as is evident in MLC Ex.PW.11/A.

The blood samples were taken and were sent to the FSL for DNA test, but it did not match with the Appellant, as reflected in the FSL Report Ex.PW.8/A. All this goes on to show that it is a false case, argued the learned counsel for the Appellant.

However, the initial contention of learned counsel for the Appellant is incorrect, inasmuch as name of the Appellant is there in the rukka Ex.PW3/B, itself which is the statement of victim recorded by police. However, latter submission is correct that she did not name the Appellant in the MLC Ex.PW11/A, nor she says about two other assailants.

Investigation is not in the hand of the victim and if something which ought  to  have  been  done  by  the Investigating Agency,  has  not  been  done, then the victim cannot be blamed and for that matter, the case of the prosecution should not be allowed to suffer, provided that lapse in the investigation is not such, which knocks the bottom of the case out. Evidently,  the  lapse  is  there,  but  it  is  not  fatal  to  the  extent  that the  entire case of the prosecution can be thrown out.

While considering the aspect of defective investigation it has been observed in various pronouncements that the cause of justice cannot be permitted to suffer on account of the defects in the investigation and the  IO cannot be given such a liberty to dictate the outcome of the legal proceedings. In this context reference can be made to the judgment:

In C. Muniappan Vs. State of T.N. (2010) 9 SCC 567, the Supreme Court held that it was a case of highly defective investigation but this was not the end of the matter, for if primacy was given to omissions and lapses by perfunctory investigation, faith and confidence of the people in criminal justice administration would erode. In such case, there is  a legal obligation on  the part  of  the Courts  to examine prosecution evidence de hors such lapses, to find out whether evidence is reliable or not, and to what extent it is reliable and whether the lapses had affected the object of finding the truth. Reference was made to several decisions in support of said ratio.

In Ganga Singh Vs. State of M.P. (2013) 7 SCC 278, it was held that Courts cannot acquit an accused on the ground that there were some defects in the investigation, unless such defects cast reasonable doubt on the prosecution case.

Similar findings were recorded in Sunil Kundu Vs. State of Jharkhand (2013) 4 SCC, 422, holding that lapses or irregularities in investigation would not be material if the evidence produced on record, despite the said lapses or irregularities, does not go to the root of the matter and dislodges the substratum of the prosecution case.

In Surjit Sarkar Vs. State of West Bengal, (2013) 2 SCC 146, after referring to several earlier decisions, it has been held that deficiencies in investigation by  way  of omission and lapses by  the investigating agency  cannot themselves justify  total rejection of the prosecution case and where prosecution evidence  de  hors  such  lapses,  when  carefully scrutinised  and  evaluated,  does  not affect the object of finding of truth.

As such, no adverse inference can be drawn against the victim or case of the prosecution, unless the Appellant can show something very drastic having potential to render the case totally unbelievable.

In  view  of  the  result  of  the  FSL  Report,  it  is  submitted  on  behalf  of the Appellant that he cannot be held responsible either for the pregnancy or for the rape.

Learned  APP  for  the State,  on  the other hand,  came  up  with the  plea that mere non-matching of the DNA does not necessarily indicate that no rape was committed or falsify the version of the victim. It is further submitted  that  the  FSL  result  is  meant  to  corroborate  the  version  of  victim and  the  case  of  prosecution.  It  cannot  be  made  the  sole  basis  to  decide  the case either way.

The statement made by the victim that she was assaulted by all three of them including the Appellant. As such, there may be a possibility that she was impregnated by one of the other two assailants. This does not, however, take  away  the  act  of  the  Appellant  nor  does  it  mitigate  his  misdeed  which, according to victim was her rape.

The  contention  on  behalf  of  prosecution  is  correct  to  the  extent  that scientific evidence is there to corroborate and supplement the substantive evidence. But then it definitely dents the case of the prosecution unless cogent answer is there to explain this anomalous situation as referred above. The accused / appellant certainly gets an edge over the prosecution.

It  was next contended  on behalf of the  Appellant  that  the  timeline of the alleged incident and the abortion, do not match. The alleged incident took  place  on  10.09.2007  about  which  the  prosecutrix  is  very  sure and  the abortion took place on 02.03.2008 which roughly comes to about 6 months. However, while  pointing out to the testimony of Dr.  Laqa Sultan examined as PW-11, attention is drawn to the fact that at the time of abortion, the age of  foetus  was  ‘five  months’.  It  is  thus  argued  that  the  Appellant  cannot  be the person responsible for causing the pregnancy even if the case is taken on its face value and certainly not responsible for committing the rape as well. If the victim is hiding true facts or stating incorrect facts at one point of time, then there is no reason why she would not stick to incorrect facts, even otherwise. This in any case cast a doubt on the version of the victim. In this context the relevant extract of the Examination-in-Chief of PW-11 is reproduced below:

“On  2.3.2008  I  was  working  as  CMO  in  the  said  Hospital  and  at about 8.05 am I examined Km. Sushma D/o Sh. Suresh Chand, aged  about  19  years  who  was  produced  for  her  examination  with the  alleged  history  of  rape  by  a  boy  on  10.9.2007  in  a  park,  Dev Nagar. At the time of examination she was five months pregnant and in the process of expulsion of fetus. MLC Ex.PW11 /A is in my handwriting and bears my signature at point A.”

The contention raised by learned counsel for the Appellant has substance in it, inasmuch as the victim is pretty sure about the date of incident and the evidence is scientific, therefore, cannot be doubted, so far as the age of the foetus is concerned. There is a difference of about one month, which remains unexplained and makes the case of the prosecution vulnerable to doubt and suspicion.

Additionally, testimony of PW-11 Dr. Laqa Sultan points out towards the age of victim as 19 years. Meaning thereby  that victim  was above 18 years at the time of the incident.

It is further contended that the alleged incident took place in a thickly populated and crowded area where shops, temple and rickshaw stand all were there. In such circumstances, it is highly improbable rather nearly impossible that such an incident could take place. It is asserted that learned Trial Court has imported its own knowledge which is beyond evidence to conclude that the area was deserted where the incident took place.

The  anomaly  may  be  on  account  of  misreading  the  evidence  either by  learned  Trial  Court  or  by  learned  Counsel  for  the Appellant.  The  shops are  there  on  the  main  road  but  in  the  back  lanes,  no  such  shops  were  there and  nor  were  they  pointed  out.  The  existence  of  a rickshaw  stand  does  not necessarily means that rickshaw pullers would also be there. Incidentally nothing  of  that  sort  has  been  put  forth  either. Rickshaw  stands  are  usually manned by one or two persons or at times, nobody is there when the rickshaws are parked in such a manner that they are chained with one another and locked. Therefore, it cannot be presumed that it was a crowded area where the incident took place. Incidentally, the place of the incident was in the process  of demolition and as such it was  likely to be deserted  at that hour as can be inferred from presence of debris. Thus, the inference by learned Trial Court is correct that it was a deserted area where such incident can easily  take place especially  when the victim  has been threatened with the knife and surrounded and subdued by three young persons.

It is argued vehemently that there is considerable delay in lodging the FIR. The alleged incident took place on 10.09.2007 and the FIR came to be recorded on 02.03.2008. It is contended that such a long gap between the incident  and  the  registration  of  FIR  is  more  than  enough  to  manipulate  the facts and things. If the victim was so aggrieved at the hands of the Appellant, then  what prevented her from lodging the FIR on that very day? What prompted her to name the Appellant after about six months of the alleged incident?

Answer to this has been put across by learned APP by saying that the victim was under the threat extended to her by Appellant and his associates. If  not  all  three,  then  the  Appellant  at  least  was  living  in  the  same  vicinity, thus, she was under constant pressure which, in all probability, forced her to keep quiet. But then the pregnancy and the pain in a way  compelled her to disclose the facts, which she had buried deep down in her heart,  apparently due  to the threat given by the  Appellant  and the  fear of social ostracization etc.

The victim / prosecutrix was about 19 years of age. It is unbelievable that she may not be acquainted with the changes in the body resulting out of the pregnancy and if that is with regard to an unmarried girl, then fear, shock and social stigma were the facts which had some role to keep her quiet. Therefore, in these circumstances, delay in the FIR to some extent stood explained. No adverse inference can apparently be drawn against the case of the prosecution, unless, of course, the  Appellant can point out the prejudice caused to him.

When the evidence on record other than the testimony of the prosecutrix is juxtaposed to her testimony then there are certain unanswered questions and circumstances. There is indeed a considerable delay in lodging the  FIR.  A  very  strong  corroborative  piece  of  evidence,  which  could  have clinched the issue is amiss inasmuch as the foetus, according to the narration of  the  prosecutrix,  should  have  been  about  six  months  whereas  it  was  only five months. The DNA examination did not connect the foetus with the Appellant. The silence of the prosecutrix for months together puts a question mark as to why it was not revealed to anyone. Then apparent bodily changes are to be there if a female is pregnant, even if the woman is malnutritioned. The  pregnancy  of  six  months  cannot  go  unnoticed. The  event  come  to  the light  of  the  day  due  to  the  acute  pain  in  the  stomach  being suffered  by  the prosecutrix. However, certain other indicators are there of pregnancy i.e. discontinuation of the menstrual cycle which any female is aware of and cannot  ignore.  In  the  Indian  Society,  the  stigma  attached  to  such  offence  is so strong that a lot of cases go unreported. The silence of the prosecutrix could  be  the  outcome  of  such  social  pressure,  apart  from  the  fear  of  harm from the Appellant. But where the pregnancy occurred then the silence was meaningless,  tall-tale  signs  and  evidence  was  there.  It  could  not  have  been silenced,  and  ultimately  the  prosecutrix  had  to  reveal.  This  she  could  have done after a month or so, if not immediately after the offence.

Thus it is evident that the prosecutrix was aware of her pregnancy but did  not  disclose  it  to  anyone.  It  is  the  case  of  the  prosecutrix  that  she  was raped by three persons including the Appellant but she, either, could not muster the courage or acquiesced to the act and for that matter other probabilities may also be there.

The silence of the prosecutrix in such circumstances becomes questionable and put her own testimony under cloud. The circumstances warrant  that sole  testimony of  the prosecutrix  should not  be  relied upon,  in view  of  the  fact  that  there  is  a  considerable  delay  in  the  registration  of  the FIR, the other two co-accused are not traceable and the DNA test result fails to connect the Appellant with the foetus. The delay in lodging the FIR would not have mattered, had the FSL Result connected the  Appellant with the foetus and that there would not have been a difference in the age of foetus and the date of incident. The age of the foetus as opined by the doctor,  was  5  months,  whereas,  if  the  date  of  incident, as  disclosed  by  the prosecutrix, was 6 months prior to her medical examination.

The overall circumstances reflect that there were reasons with the prosecutrix and her family to notice the changes in the body and to probe it if she was not forthcoming. The prosecutrix waited till her pain became unbearable inasmuch as she at least knew about her pregnancy and according  to  the  prosecutrix  it  was  on  account  of  the  gang  rape  committed by the  Appellant  and his two  associates  Sonu  and  Golu.  In such  a situation why  she would keep quiet. Whether, she wanted to save the Appellant or some other reason was there. All this remains a riddle. Additionally the circumstances in which the incident took  place, as deposed by  the victim, the same also become a bit doubtful since the place where the incident took place is surrounded by a populated area. According to the version of the prosecution herself a weekly bazaar (Som Bazar) was a regular feature and it was that ‘Som  Bazar’  day  when the  incident  took  place. It  is  a matter  of common knowledge that weekly bazaars in Delhi are a common phenomenon and that a lot of people throng such markets to make purchases. In these circumstances, the prosecutrix could have chosen a path to go home where people were there. What made her to choose a way where from  she was in a way  taken forcefully  under threat.  It was possible only when she was away from crowd or not visible to people who could have otherwise noticed the acts of the trio.

Taking into account the entire gamut of facts and circumstances, specially the testimony of the victim being not credible enough to allow finding against the Appellant to continue when there is no corroborative evidence and what is there in the shape of DNA report, incidentally stands in favour of the Appellant.

Consequently, the judgment of conviction dated 18.08.2011 and the order  on  sentence  dated  23.08.2011 are  set  aside  and  the  Appellant  stands acquitted of the said charge.

Bail bond (if any) stands cancelled and surety stands discharged. Documents / FDR (if any) on record be released, upon acknowledgment. Pending applications if any, stands disposed of.

Copy of this judgment be transmitted to the court concerned and Prison Authorities, for necessary compliance.