Satinder Singh And Smt. Usha vs State (Govt. Of Nct Of Delhi)
2006 Latest Caselaw 2277 Del

JUDGMENT

J.M. Malik, J.

1. The trial court handed down the verdict of guilty and convicted and sentenced the appellant Satinder Singh to undergo minimum sentence of Rigorous Imprisonment for a period of 10 years and to pay a fine in the sum of Rs. 5,000/-, in default of which he was to further undergo Simple Imprisonment for 6 months for the offence under Section 376 IPC. He was further awarded sentence of 3 years R.I. and to pay a fine in the sum of Rs. 2,000/-, failing which he was to further undergo Simple Imprisonment for 4 months under Section 506(ii) of IPC. His co-accused and sister-in-law i.e. wife of his elder brother was sentenced to undergo Rigorous Imprisonment for a period of 2- 1/2 years and to pay a fine in the sum of Rs. 500/-, failing which she was to further undergo Simple Imprisonment for a period of 2 months under Section 363 IPC. She was further ordered to undergo Rigorous Imprisonment for a period of 6 months and to pay a fine in the sum of Rs. 200/-, failing which she was to further undergo Simple Imprisonment for a period of 1 month for the offence under Section 342 IPC. Sentences awarded to the appellants were to run concurrently.

2. The report filed by the prosecution indicts the appellants as follows. On 11.04.1995, Smt. Shanti Devi, mother of the prosecutrix, PW3, was to deliver a child and, therefore, she was got admitted in J.P. Hospital by her husband Gajraj Singh. On 11.04.1995 at about 2.30 PM, the prosecutrix was present at the roof of her house. Appellant, Usha, a neighbour, called her and asked her to bring eyes' medicine lying in her room. When she went there, accused Satinder Singh, who was already present there, pounced upon her, gagged her mouth, bolted the door and threw her on the bed. Usha bolted the door from outside and informed Satinder that she had bolted the room from outside. The accused ravished her and intimidated her that if she disclosed anything to anybody, he would kill her parents. The bed-sheet got imbued with blood stains due to above said sexual act. It was washed by accused Usha. On 13.04.1995, Usha again called her in order to know the position of her mother, who was still in hospital. Satender came there, Usha left the room and the prosecutrix was again sexually assaulted. The prosecutrix is stated to be 12 years old at the time of the above said incident. On 07.06.1995, Smt. Sheela, a neighbour informed her mother about the above said incident. The report with the police was lodged on 08.06.1995. Ultimately, the accused were caught in the meshes of law.

3. I have heard the learned Counsel for the parties. The key argument urged by the learned Counsel for the appellants was that there is an inordinate delay in lodging the FIR. This is an indisputable fact that the FIR was lodged after a lag of about two months. In order to bring his point home, the learned Counsel for the appellants has cited few authorities. In Ram Dittu v. State of H.P. 1990 (1) C.C. Cases 245 (HC), where some PWs were found inimical to the accused, there was absence of marks of violence on body of prosecutrix, there was unexplained delay in lodging F.I.R, prosecution version was found to be untrustworthy, the accused was acquitted. In Balwan Singh v. State of Haryana (P&H) 1994(2) C.C. Cases 322 (HC), the court held that there was inordinate delay of five hours in registration of FIR. Medical report stated that there were no mark of injury or struggle. The accused was acquitted on these grounds as well as on other grounds. In Ram Badal v. The State 1987 C.C. Cases 383 (HC), the FIR was delayed by 24 hours. Prosecutrix was a married lady. She did not disclose the matter immediately to her close neighbours. Her husband when returned in the evening also did not lodge the FIR in the evening. Delay was not satisfactory explained, therefore the accused was acquitted.

4. The argument urged by the learned Counsel for the appellants is vulnerable to refutation. It must be borne in mind that a female in this country aged about 12 years can be easily imposed upon. She is an easy victim, raw, tender minor girl, who, is not physically or mentally developed. The victim in the instant case was unaware of catastrophe which had befallen to her. Kids do make mistakes and blunder. What protest one can expect from a weak and meek kid like the prosecutrix? Secondly, the sexual assault and the threat extended by the appellant made her timorous and pusillanimous. The prosecutrix being a child of 12 years in this case, had apparently timid approach to this knotty problem. The child tried to suppress this problem for two months. After the expiry of two months, her parents, however, got the wind about the same through neighbours. Thereafter, they lost no time and lodged the report with the police immediately. To my mind, the delay in this case is well explained. It is not out of place to mention here that sometime children are so frightened that nobody comes to know about their sexual indulgences till they attain pregnancy.

5. In a recent authority reported in Dildar Singh v. State of Punjab , it was held:

In normal course of human conduct an unmarried girl who is victim of sexual offence would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate such incident. Overpowered, as she may be by a feeling of shame her natural inclination would be to avoid talking to anyone, lest the family name and honour is brought into controversy. Thus, delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report.

It was further held:

In the instant case, the girl was a minor below the age of 16 years. She was studying in Class VIII and the accused was the drawing teacher of that class. It is no doubt true that the prosecutrix did not report the incident to anyone either on the first occasion or on the second. Ultimately a stage was reached when she could not keep it a secret since her mother discovered that she was pregnant. In these circumstances, she was compelled to disclose the true facts. Having regard to the facts and circumstances of the case, delay could not be treated as fatal to prosecution case.

6. In State of Himachal Pradesh v. Sri Kant Shekari 2004 IX AD (SC) 5, the prosecution explained the reasons for delay. It was held that delay per se is not a mitigating circumstance for accused.

7. In State of Punjab v. Ramdev Singh 2004 II AD (SC) 83, there was a delay in lodging the FIR by 17 to 18 days. The same could not be lodged due to serious illness of a member of the family. It was held that delay was explained to the satisfaction of the court.

8. In State of Chhattisgarh v. Derha AIR 2004 SC 2636, it was observed:

We have noticed the fact that there has been some delay in filing the complaint which according to us has been explained by PW-1 mother. The fact that their father was out of station on the date of occurrence is not disputed. In such circumstances since it is a minor who has violated the possibility of there being hesitation on the part of mother to lodge a complaint cannot be over ruled. Even otherwise the mere factum of delay in filing complaint in regard to an offence of this nature by itself would not be fatal so as to vitiate the prosecution case. The fact that the accused did not suffer any injury on his private part also will not be of much help to him because he was medically examined 4 days after the incident in question. For the reasons stated above we are satisfied that the High Court was in error in taking a view different from that of the trial court and acquitting the accused.

9. In State of Rajasthan v. N.K. AIR 2000 SC 1812, it was held:

A mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court it cannot be counted against the prosecution.

10. In Sri Narayan Saha and Anr. v. State of Tripura 2004 IX AD (SC) 323, there was delay of five days in lodging the report, it was held that mere delay in lodging the FIR is of no consequence, if reason explained.

11. To my mind, the delay in this case has well been explained and consequently, the argument urged by the learned Counsel for the appellants must be left out of consideration.

12. The second submission made by the learned Counsel for the appellant was that the prosecution does not find any support from the medical evidence. In this context, the attention of the Court was drawn towards the statement of Dr. Usha Pipli, PW14. In her examination-in-chief, she stated that old hymen was torn at 7 'O' Clock position. The vagina admitted two fingers with difficulty. She deposed that hymen torn at 7 'O' Clock position is possible by sexual intercourse as well as by trauma. She deposed that by trauma, "I mean injury since the hymen was torn (old hymen tears), so, she might have been subjected to sexual intercourse". In her cross-examination she deposed that she was unable to tell what was the time gap between hymen tear and medical examination. She stated that the minor hymen tear takes one week to heal and if it is large one, it may require some more time. She explained that in this case the tear was small. She could not specifically say whether the prosecutrix had sexual intercourse. She pointed out that there is no distinguishing mark/ factor to differentiate between injury by sexual intercourse or injury by trauma. Learned Counsel for the appellants vehemently argued that the medical evidence does not support the prosecution story.

13. Now, I turn to the statement of the prosecutrix. She was examined as PW1. She stated that she spilled the beans before her friend Anita, her neighbour. She further deposed that she requested Anita not to tell her parents as she was frightened, for her parents would beat her. She explained that Sheela, an aunt, residing in the neighborhood, was also aware of this incident and she ultimately informed her mother about this incident. She explained that accused Usha also started telling about this incident to the people. She explained that initially she did not tell her mother but when she insisted to tell the truth, she did the needful.

14. Learned Counsel for the appellants raised two-three arguments in this respect. Firstly, he argued that Anita and Sheela were not examined by the Investigating Agency. He explained that prosecution case would have got a shot in the arm with the evidence of the above said two witnesses. Secondly, in her cross-examination, the prosecutrix admitted that she was tutored by Mool Chand, Investigating Officer of this case. This is interested to note that PW1 was examined on three occasions in the Court. Her statements were recorded on 27.11.2006, 15.04.1997 and 06.05.1997. In her statement recorded on 15.04.1997, she stated that she did not tell this incident to anybody except her mother, two months after this incident, but in her later statement recorded on 06.05.1997, she stated that she did not tell this fact to her mother. She deposed that she confided this incident to Sheela, first of all.

15. The learned Counsel for the appellants argued that as many as 18 tenants reside in the same vicinity. The prosecutrix stated that Satinder did not bolt the door but it was bolted from outside by Usha. He vehemently argued that it was not possible to commit the rape at 2.00-3.00 PM. in the midst so many people residing there.

16. In order to buttress his argument, the learned Counsel for the appellants cited an authority reported in Dilip v. State of M.P. , wherein it was held:

In the instant case the gang rape is alleged to have been committed at about 2.00 PM in house of prosecutrix situated in a populated village by the side of the main road where people were moving on account of Holi festival. The prosecutrix alleged to have raised hue and cry to the extent she could and yet none was attracted to the place of the incident. The prosecutrix is said to have sustained injuries, also bleeded from her private parts staining her body as also the clothes which she was wearing. This part of the story, is not only not corroborated by the medical evidence, is rather belied thereby. The presence of blood-stains is not confirmed by forensic science laboratory or by the doctors who examined the prosecutrix. Her own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix gives a version which does not tally with the version of the prosecutrix as given in the court. In the circumstances the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her cannot be accepted in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of forensic science laboratory. Since the testimony of the prosecutrix cannot be relied upon, the accused in the circumstances would entitled to acquittal.

17. He also drew my attention towards another authority reported in Jamil v. The State 1982 C.C. Cases 490 (Delhi) where there was no injury inside the vagina except perineum torn, vagina admitted two fingers, no question was put to the doctor about the age of tear, no swelling was found on female private organ, no injury was there on male organ, blood stained cloth of the girl was not produced, medical evidence was found extremely sketchy. The accused was thus, acquitted.

18. Lastly, he cited another case reported in Alagiri v. State of Punjab 1987 CC Cases 594 (HC), where no injury mark was present on the person of the prosecutrix. No independent witness was produced. defense version was found to be probable and the accused was acquitted.

19. The learned Counsel for the appellants also pointed out one more minor flaw in the prosecution story. Smt. Shanti in her cross-examination stated that Sheela informed her about the above said incident on 7th day of 7th month of last year. She appears to be an illiterate person and it is natural that she will commit such type of mistakes.

20. I am unable to cotton with these arguments. The Doctor has failed to explain as to what is meant by trauma. The word 'Trauma' means physical wound. She has failed to explain that hymen was found torn by a physical wound other than the sexual act. If that was so, what kind of physical wound it can be. She has tried to evade the question by a quibble. Ultimately she admitted in her cross-examination that trauma means that she might have been subjected to sexual intercourse. She has no other explanation to make. There is no inkling on the record, whatsoever, that her hymen was torn due to other reasons. Any other physical wound is not possible. Her hesitation to call a spade a spade is unfathomable. The Court is not bound by her statement or opinion. The following observations made by their lordships in the celebrated case reported in Madan Gopal Kakkad v. Naval Dubey and Anr. aptly apply to the facts of this case, It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.

21. In Sri Narain Saha and Anr. v. State of Tripura AIR 2005 SC 1452, it was held:

Coming to the Doctor's evidence, it was categorically stated by him that there was profuse bleeding which rendered any definite opinion difficult. That really is of no consequence in view of the un-impeached evidence of the victim-PW3.

It was further held:

There was no reason as to why a women, more particularly a married women would falsely implicate the two accused persons. Minor discrepancies in the testimony of PWs 3 and 4 were sought to be highlighted. Taking into account the fact that the evidence was recorded in Court after about seven years of the occurrence, these have been rightly held to be of no consequence by both the Trial Court and the High Court.

22. In State of M.P. v. Dayal Sahu , it was held:

Once the statement of prosecutrix inspires confidence and accepted by the courts as such, conviction can be passed only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Non-examination of doctor and non-production of doctor's report would not be fatal to the prosecution case, if the statement of the prosecutrix and other prosecution witnesses inspire confidence.

23. In State of Rajasthan v. Om Parkash reported in 2002 (V) AD (SC) 58, a child of eight years was raped and its evidence relied upon. It was observed:

The conviction for offence under Section 376 IPC can be based on the sole testimony of a rape victim is well settled proposition. In State of Punjab v. Gurmit Singh and Ors. , referring to State of Maharashtra v. Chandraprakash Kewal Chand Jain , this Court held that it must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. It has also been observed in the said decision by Dr. Justice A.S. Anand (as His Lordship then was), speaking for the court, that the inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.

24. It is well settled that her testimony is to be read as a whole and not in piece meals. The shortcomings or infirmities are not to be read in vacua but as a part of the whole composite deposition. PW1 stated that her statement was recorded in the Police Station only once. She stated that she had made a statement before the Magistrate and nobody had tutored her to make a statement before the Magistrate. In her cross-examination, she informed the defense counsel that "Balatkar means Galat Kam and by Galat Kam, Jis se bacha hota hai." The revelations made by the prosecutrix is sterling testimony of a competent, and guileless witness. After having faced a fussillade of questions during her cross-examination, she still remained unwavared and unflickered. Prosecutrix is this case's rock. I see no reason to discard her testimony. There should be strong motive in falsely implicating the two persons in such like case.

25. Absence of injuries after the lapse of two months does not in any way whittle down the value of her evidence. In a case reported in Santosh Kumar v. State of M.P. 2006(3) Crimes 339 (SC), it was held that absence of injuries on private parts of victim of rape specially a married lady ipso facto could not lead to an inference that no rape has been committed.

26. This Court in an authority reported as Satbeer Singh v. State , was pleased to observe:

Absence of injuries on the person of a rape victim is no ground to disbelieve her. Every female reacts differently when sexually assaulted, some just freeze, some get hysterical, some fight it, and some submit meekly. The court is not to infer anything adverse from any or absence of these factors.

27. In Karnel Singh v. State of M.P. , it was laid down:

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.

28. Relying upon State of U.P. v. Ashok Dixit and Anr. , in State of Rajasthan v. Om Prakash , it was held:

There is no force in the contention that if there was any forcible sexual intercourse, it would have resulted in some injuries upon the prosecutrix. Presence of injuries are not always a sine qua non to prove a charge of rape. It has to be kept in mind that the case under consideration is one of rape on a girl child aged eight years and not on a grown-up woman.

29. I find no force in these arguments. If in case the female girl does not raise any protest or she is a consenting party or if she is led to the garden path by the accused the other people will never come to know what is happening in a closed room. Moreover, both the accused chose this moment and found that the parents of the prosecutrix were not available and this was the fittest time to commit such like offences.

30. In this country, wherever village like atmosphere exists, it is very difficult to procure the evidence of independent evidence. See the position of Vijay Pal, DW2. The appellants attempted to muster the courage to call him in the dock. He did not support either of the parties. The Court is bound to take a down-to-earth view. In such a situation, it was not proper to array Anita and Sheela in the array of prosecution witnesses. Again they are not the eye witnesses. A woman raped is a woman scarred for life. There is no law that can obliterate the trauma with which she must live. This is the evidence of prosecutrix and nobody else which is crucial, the heart of the matter and foundation on which the prosecution case rests.

31. Now I turn to the defense story. It appears that the appellants are tinkering with useless defenses. In their statements recorded under Section 313 Cr.PC, both the accused stated that PW Gajraj Singh, father of the prosecutrix had promised to arrange an employment for accused Satinder in Delhi Police, for which he demanded Rs. 20,000/- from accused Satinder. Satinder paid him Rs. 5,000/- as advance payment. Since Gajraj Singh failed to fulfilll his promise, therefore, he falsely implicated the accused in this case.

32. The following holes appear in this story. Firstly, the defense story was not put during the cross-examination of either prosecutrix or her mother i.e. at the first available opportunity. There is no evidence that this matter was brought to the notice of police or higher authorities including the area Magistrate. No complaint appears to have been lodged.

33. Secondly, the defense story saw the light of the day during the cross-examination of Gajraj Singh recorded on 06.05.1997. However, a different story was put to Gajraj Singh. It was suggested to him that he had taken advance of Rs. 5,000/- from Virender, the brother of the accused. Virender asked Gajraj Singh to return the money and thereafter, he falsely implicated the accused in this case. Surprisingly, Virender was not produced in the witness box.

34. Thirdly, the names of all three DWs i.e. Guddi DW1, Vijay Pal DW2, and Satish Chand Jatav DW3 were introduced when they appeared in the dock. Guddi stated that Satinder used to demand Rs. 20,000/- from Gajraj but he had given him Rs. 5,000/- only. Vijay Pal DW2 is the landlord but he did not support the case of the defense. He stated that a quarrel had taken place between the above said parties but he did not know what was the cause. DW3 stated that he gave a loan of Rs. 2,000/- to the brother of Satinder after obtaining loan from his contractor vide a card. He took time to produce the card but could not produce the same on the adjourned date.

35. Last but not the least, it appears that the defense version is made out of whole cloth. The appellants have failed to furnish the necessary details. It is not stated for which post appellant Satinder had applied, nor he had referred to any form which he might have filled in. The explanation put forward by the appellants does not justify the shrill charge of personal vendetta levelled by the appellants against the father of the prosecutrix. The appellants have got imaginary grievances against the prosecutrix and her father, divorced from reality.

36. The last submission made by the learned Counsel for the appellants was that the appellants have suffered the agony of this case for the last more than a decade. Smt. Usha is a female. The learned Counsel for the appellants prayed that accused be released on the sentences already undergone by them. He has drawn my attention towards the authority reported in Satbir @ Chand v. State of Haryana 1995 (1) CC Cases 409 (HC), wherein the sentence was reduced from seven years to five years four months in a case under Section 376 read with Section 511 IPC. In Naresh Kumar v. State of Punjab 1995 (3) CC Cases 212 (HC), the accused persons were of tender age at the time of occurrence and the sentence was reduced to five years. In State of Haryana v. Prem Chand and Anr. 1990 (1) CC Cases 42 SC, the Apex Court held that having regard to the peculiar facts and circumstances of the case coupled with the conduct of the prosecutrix for not disclosing the sexual assault perpetrated on her for five days to anyone, accused was entitled to sub-minimum sentence of five years.

37. I see no merit in these arguments. In the following cases, the Apex Court found that reduction of sentence by the High Court in rape cases was not proper. These cases are reported as State of M.P. v. Makhmal Khan 2005 VIII AD SC 369; State of M.P. v. Paras Ram 2005 VIII AD SC 371; State of M.P. v. Bala @ Bala Ram 2005 VIII AD SC 379; State of M.P. v. Veerenora Singh and Anr. 2005 IX AD SC 3; State of M.P. v. Mulli 2005 IX AD SC 30; State of M.P. v. Rajesh 2005 IX AD SC 28; State of M.P. v. Gori Shankar 2005 IX AD SC 367; State of M.P. v. Govind 2005 IX AD SC 33; State of M.P. v. Killu @ Kailash 2005 VIII AD SC 560; State of M.P. v. Rajesh 2005 VIII AD SC 663; State of M.P. v. Sheshroa 2005 VI AD SC 666.

38. Knowing well that the prosecutrix is a jailbait i.e. A girl with whom sexual intercourse is punishable as statutory rape due to under the age of consent, the accused should not have bitten the bait. It stands established that both the accused worked cheek by jowl. Without the active connivance of Usha, it was not possible for Satinder to perpetrate the offence of rape. The evidence manifests the quilt of the appellants. I see no reason to reduce the minimum sentence awarded by the trial court. Appeal is meritless and therefore, dismissed.

39. Both the appellants are present. They be taken into custody to serve out the remaining sentence, under the Court Master's signatures. Copies of the judgment be furnished to both the appellants separately forthwith. LCR with copy of this judgment be sent back forthwith.