HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on: May 06, 2009
Judgment delivered on: May 20, 2009
+ Crl. Appeal No. 82 of 2000
% Mahesh ... Appellant
Through: Mr. K.B. Andley, Senior Advocate
with Mr. M.L. Yadav, Advocate.
versus
State ... Respondent
Through: Mr. Amit Sharma, Additional
Public Prosecutor for the State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local
papers may be allowed to see
the judgment?
2. To be referred to Reporter or
not?
3. Whether the judgment should be
reported in the Digest?
SUNIL GAUR, J.
*
1. In this appeal, conviction of the appellant for the offence of rape has been assailed. A decade ago, appellant was aged about eighteen years and had allegedly raped his cousin sister, aged about fifteen years. It is said that the marriage of a relative, was attended by the prosecutrix (PW-10) alongwith her sister (PW-11) and appellant was also present there. Birth certificate of prosecutrix is Ex.PW-15/A.
Crl. Appeal No. 82 of 2000 Page 1
2. In the night intervening 8th and 9th May 1998, marriage ceremonies were going on, while prosecutrix and her sister and some relations were present in the room where prosecutrix with her sister were sleeping on the double bed whereas appellant/accused with other children was sleeping on the floor. According to the Prosecutrix (PW-10), she was raped by the appellant/accused at the point of some pointed object and after this incident, she had told her mother (PW-4) about it.
3. Efforts to hush up this incident were made by the family members due to close relations between the family of the appellant/accused and that of the prosecutrix. However, Prosecutrix (PW-10) was taken to the hospital. Upon the statement of the Prosecutrix (PW-10), the law was set into motion in this case and the appellant/accused was arrested and he was also got medically examined and after completion of the investigation, appellant/accused was charge sheeted for commission of the offence of rape.
4. Since the appellant/accused had claimed trial in this case, therefore, the prosecution had got examined sixteen witnesses. However, the material evidence is of prosecutrix (PW-10), her mother (PW-4). The medical evidence is of the deposition of Dr. Sunita (PW-16), who has proved the MLC of the prosecutrix (PW-10) and of Dr. Crl. Appeal No. 82 of 2000 Page 2 Rajan (PW-3), who had deposed in respect of the MLC of the appellant/accused.
5. Vishakha, (PW-11) is the sister of the prosecutrix but her evidence is not of much help because the prosecutrix had not narrated this incident to her. All that what had stated by her, in her evidence, is that the prosecutrix as well as the appellant/accused and the other children were present at the place of the incident on the occasion of the marriage in the family.
6. The stand taken by the appellant/accused before the trial court was of bald denial. He had alleged false implication in this case. However, appellant/accused did not dispute his presence at the spot on the day and time of this incident. He has also not disputed that the prosecutrix was his first cousin, i.e., real cousin sister. The solitary witness, who had deposed in favour of the appellant/accused is Sant Ram (DW-1), who had stated in his evidence that eight or nine children were sleeping in the room and no such incident had taken place and if at all, some minor incident of touching of hands or feet might have happened, but the mother of the Prosecutrix (PW-10) did not agree for clearing the misunderstanding.
Crl. Appeal No. 82 of 2000 Page 3
7. The trial ended with the conviction of the appellant/ accused and vide impugned order of 22nd November, 1999, appellant/ accused stood sentenced to undergo rigorous imprisonment for a period of four years with fine, which is under challenge in this appeal.
8. Learned Counsel for the parties have been heard in this appeal and the evidence on record has been evaluated.
9. At the very outset, learned Senior Counsel for the appellant contends that the prosecution case of three or four children sleeping on the bed and of appellant raping the prosecutrix without the knowledge her sister (PW-11) is highly improbable and the same cannot be accepted on the face of it. It has been contended on behalf of the appellant that there was no injury on the person of the prosecutrix or the appellant/accused, which negates the prosecution story of prosecutrix being raped by the appellant/ accused. It was vehemently argued that there is no corroboration to the version of the prosecutrix and her mother and the evidence of defence witness casts a serious doubt about the veracity of the prosecution case. According to learned Senior Counsel for the appellant the conviction of the appellant is bad in law and it deserves to be set aside. In the end, alternatively, it has been Crl. Appeal No. 82 of 2000 Page 4 submitted on behalf of the appellant that at the time of this incident the appellant was aged about eighteen years and he has already remained behind bars in this case for about two years and the appellant has been mostly on bail during the trial and appeal proceedings and in the strange facts of this case, the substantive sentence imposed upon the appellant deserves to be reduced to the period already undergone by him. Reliance has been placed upon decision of the Apex Court reported in 1980 Crl. LJ 8, to urge that in a similar case, the sentence was reduced from four years to two years. Nothing else has been urged on behalf of the appellant.
10. On behalf of the respondent-State, it has been submitted by learned Additional Public Prosecutor for the State that the deposition of the prosecutrix and her mother is consistent and reliable and trial court has rightly convicted the appellant on the basis of their deposition and defence evidence is not at all plausible. It is also submitted that the decision relied upon by the appellant is on its own facts. Thus, it has been submitted that this appeal lacks merit.
11. What should be the approach of the Courts in appreciating the testimony of the victims in rape cases, has been succinctly spelt out by the Apex Court in the Crl. Appeal No. 82 of 2000 Page 5 case of "State of Punjab Vs. Gurmeet Singh and Ors." AIR 1996 SC 1393, in the following words:-
Of late, crime against women in general and rape in particular is on the increase. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.
12. The testimony of the Prosecutrix (PW-10) has been scrutinized on the touch stone of probability factor. It has come in her evidence that at night she was sleeping on the double bed, along with her sister and brother and the other children were sleeping on the floor in the room and Crl. Appeal No. 82 of 2000 Page 6 appellant was one of them. According to the prosecutrix (PW-10), she felt pressure on her body and she woke up and found that appellant/accused was in a mounting position on her and that he had raped her and she could not raise an alarm for help because he had put some pointed object on her throat.
13. Aforesaid version of the Prosecutrix (PW-10), is sought to be discarded by the defence by contending that it is just not possible that Prosecutrix (PW-10) is raped by the appellant/ accused and her sister, who is sleeping on the same bed, would not know about it. There is no grilling of the Prosecutrix (PW-10) by the defence regarding the size of the double bed and as to whether the other occupants on the double bed had woken up when Prosecutrix (PW-10) had known that she was raped by the appellant/ accused. What was needed was searching cross-examination of the victim, Prosecutrix (PW-10), to show that this heinous offence could not have been committed by the appellant/accused. But no such cross examination has been done by the defence. It differs from person to person. Some persons sleep very soundly whereas others sleep very lightly. There can be no hard and fast rule about it. The aforesaid contention of defence remains half-baked, as the Prosecutrix (PW-10) has not Crl. Appeal No. 82 of 2000 Page 7 been questioned at all on this vital aspect in the cross- examination by the defence.
14. Simply because Vishakha (PW-11), sister of the prosecutrix, does not state in her evidence anything about this incident, it would not mean that no such incident had taken place. It is pertinent to note that the evidence of the sister (PW-11) of the prosecutrix, does not cause any dent in the prosecution case because it is not the case of the Prosecutrix (PW-10) that she had raised any alarm or that she had informed her sister (PW-11) about this incident. Prosecutrix (PW-10) is categoric in asserting that she had immediately informed her mother about this incident. Therefore, prosecution case cannot be doubted by relying upon the testimony of sister (PW-11) of the prosecutrix.
15. The cross-examination of the Prosecutrix (PW-10) by the defence, does not in any way dilute the version of the Prosecutrix (PW-10), nor it renders her version to be improbable on the face of it. It is true that Prosecutrix (PW-10) in her cross-examination by the defence has stated that she had compounded this matter with the accused and she did not want to proceed with the trial. But this by itself would not absolve the appellant/ accused of the offence committed by him. Prosecutrix (PW-10) has no where stated in her evidence that she had consented Crl. Appeal No. 82 of 2000 Page 8 to the sexual intercourse by the appellant/ accused. Even on the age aspect, Prosecutrix (PW-10) had consistently maintained that she was aged fifteen years on the day of this incident. She has specifically denied the suggestion of the defence that she was aged more than sixteen years on the day of this incident.
16. This incident is of mid night and the FIR in this case has been registered on the succeeding day in the evening at about 6:40 p.m. The delay aspect stands explained by the fact that since it was a family matter, therefore, time was consumed in trying to hush up this matter. In any case, the Prosecutrix (PW-10) was first taken to the hospital and then to the police station and thereafter, FIR was registered on her statement. Therefore, the delay in lodging of the FIR is not of any consequence.
17. It is evident from the testimony of the Prosecutrix (PW-10) that she was asleep when she was raped by the appellant/ accused and therefore, there was no effective resistance. Furthermore, appellant is said to have put some pointed object on her throat, which compelled Prosecutrix (PW-10) to remain silent. This explains the absence of any injury on the person of the Prosecutrix (PW-10). Infact, there is sufficient corroboration to the prosecution case by way of FSL Report (EX. PW13/H) which Crl. Appeal No. 82 of 2000 Page 9 shows that there were blood stains on the salwar and under wear of the Prosecutrix (PW-10) and there was presence of semen in the vaginal smear of Prosecutrix and on the salwar, under-wear and dupatta of the Prosecutrix. Semen was also detected on the underwear of the accused and the blood group had also matched. Thus, there is clinching corroborative evidence on record, which is unassailable.
18. In the ultimate analysis, no fault can be found with the impugned conviction of the appellant in this case. On the sentence aspect, it has been urged on behalf of the appellant/ accused that at the time of this incident he was aged about eighteen years and that he has already suffered imprisonment in this case for about two years and has faced the agony of the trial and appeal proceedings for the last about eleven years, therefore, the sentence imposed upon the appellant deserves to be reduced to the period already undergone by him. In the decision reported in 1980 Criminal Law Journal 8 the sentence was reduced to RI for two years as the Prosecutrix in the aforesaid case was also the first cousin and she had forgiven the accused.
19. The facts of the present case are also quite similar to the facts of the above cited case. Here also the Crl. Appeal No. 82 of 2000 Page 10 Prosecutrix has stated in her evidence that she has compounded/settled this matter with the appellant/ accused. As per the Nominal Roll of the appellant, he was aged about eighteen years and he has already undergone substantive sentence of more than two years, with remissions and his conduct in the jail has been found to be satisfactory. Appellant has remained on bail in this case for most of the time and his antecedents are said to be clean. In these circumstances, it would be too harsh to now send the appellant behind bars. The substantive sentence already undergone by the appellant would meet the ends of justice.
20. Resultantly, appellant is sentenced to the period already undergone by him. However, the sentence of fine is enhanced to Rupees ten thousand and appellant is granted two weeks time to deposit the enhanced fine, with the trial court/successor court, failing which he shall have to undergo SI for six months.
21. Trial court be apprised of this order to ensure its compliance.
22. This appeal stands partly allowed in the terms, as aforesaid.
Sunil Gaur, J.
May 20, 2009 pkb/rs Crl. Appeal No. 82 of 2000 Page 11