Delhi High Court: In an appeal filed under Section 374 of Criminal Procedure Code, 1974 (‘CrPC’) on behalf of the appellant (‘convict’) to set aside the judgment dated 10-5-2024 (‘impugned judgment’) wherein the Trial Court held the convict guilty for the offence of kidnapping and gang-rape, the Division Bench of Pratibha M. Singh and Rajneesh Kumar Gupta*, JJ, upheld the impugned order and stated even one offender could be convicted and punished for the offence of gang-rape if the other offender had managed to escape.
Background
The prosecutrix was kidnapped by the convict from the lawful guardianship of her parents. After kidnapping, the convict, along with the co-accused, had taken the prosecutrix to a jungle and committed gang-rape and carnal intercourse with her.
The statement of the prosecutrix was recorded under Section 164 of the CrPC wherein she detailed how she had been kidnapped by the convict and the co-accused and was taken on the convict’s bike to a jungle. There she had been raped and sodomised, first by the convict and then by the co-accused. After the convict and co-accused left, she had managed to reach a dilapidated house where she had been found lying the next morning by Prosecution Witness 6 who called the police. The convict was arrested and test identification parade was conducted where the prosecutrix had identified the convict. The co-accused had not been arrested since he had initially absconded and then passed away.
The Trial Court had convicted and sentenced the convict for offences punishable under Sections 363, 366, 376DA, 377 and 37 of the Indian Penal Code, 1860 (‘IPC’) along with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POSCO’).
The Trial Court had surmised that the age of the prosecutrix was under 14 years and was thus a ‘child’ under Section 2(d) of the POCSO Act. Further, the argument of the convict that no male DNA profile had been exhibited from the prosecutrix was held not maintainable since the samples were collected in 2018 but were sent for testing in 2019, after a delay of over 10 months, post which degeneration of samples for purpose of DNA testing was highly plausible. Additionally, the Trial Court had noted that the testimony of the prosecutrix had remained unshaken through all stages of the trial and minor inconsistencies would not vitiate it.
Analysis, Law and Decision
The Court noted that the material facts as deposed by the prosecutrix had remained consistent and un-challenged. There was no material to suggest that she had any enmity with the convict to falsely implicate him. The discrepancies in testimony, as claimed before the Court, were regarding the reason for her leaving her sister’s home or the nature of food that she ate which the Court opined were minor discrepancies and did not discredit the evidence of the prosecutrix which was reliable, cogent and trustworthy.
The Court also noted that since injury is not sine qua non for deciding whether rape had been committed or not, the argument that no external injury was found on the prosecutrix was held unsustainable.
The Court also noted that the convict had argued that since the co-accused had not been convicted of the alleged offences, the charge of gang-rape must be dropped since the offence of gang-rape required sexual assault on the prosecutrix by more than one person. The Court referred to the case of Kailash Lal Singh Khangar v. State of Madhya Pradesh, 1996 SCC OnLine MP 34, and held that even though the co-accused had managed to escape and could not be apprehended, the convict alone would be held guilty of the offence of gang-rape.
Thus, the Court held that, there was clear and unimpeaching evidence of the prosecutrix which was sufficient to hold the convict guilty. The evidence of the prosecutrix was reliable and trustworthy, inspired confidence, and was also corroborated by her medical evidence. Thus, it was proved beyond reasonable doubt that she was kidnapped and sexually assaulted by the convict.
Hence, the conviction and sentencing of the Trial Court did not warrant interference and was upheld by the Court.
[Praveen v. State NCT of Delhi, 2025 SCC OnLine Del 5583, decided on 20-8-2025]
Judgment authored by- Justice Rajneesh Kumar Gupta
Advocates who appeared in this case:
For the Appellant: Kanhaiya Singhal, Rahul Bhaskar, Advocates.
For the Respondent: Ritesh Kumar Bahri, APP, Insp. Harish Kumar, Divya Yadav, Lalit Luthra, Zishaan Iskandari, Madhur Mittal, Advocates.
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