Delhi High Court

Jai Narain vs The State on 6 April, 2009

Author: Sunil Gaur

*              HIGH COURT OF DELHI : NEW DELHI


              Judgment reserved on : March 25, 2009
               Judgment delivered on : April 06, 2009

+                      (1) Crl. Appeal No. 328 of 2006
          Jai Narain                           ... Appellant
                                Through: Mr. R.K. Sonkiya,
                                         Advocate

                                    versus

          The State                       ...        Respondent
                                Through: Mr. R.N. Vats, Additional
                                         Public Prosecutor for
                                         State

                       (2) Crl. Appeal No. 541 of 2006


          Jamshed                         ...        Appellant
                                Through: Mr. R.K. Sonkiya,
                                         Advocate

                                    versus

          The State                       ...        Respondent
                                Through: Mr. R.N. Vats, Additional
                                         Public Prosecutor for
                                         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. The two appellants i.e. Jai Narain S/o Sh. Janak

Pawan and Jamshed S/o Shri Mehtab in the above titled two Page 1 appeals assail their conviction for the offence of rape

recorded by the learned Additional Sessions Judge, New

Delhi, in the impugned judgment of 30th March, 2006.

2. Since these two appeals arise out of one common

impugned judgment based on one FIR, therefore, these two

appeals have been heard and are being decided together by

this common judgment.

3. The background of this case, in brief, is that:-

On 10th February, 2004, Smt. Lilawati (PW-6), mother of the prosecutrix (PW-1), lodged a complaint that her daughter-Suresh, a minor had gone to purchase washing soap from the market on the previous day and had not returned and she suspected that both the appellants/accused had kidnapped her. While pursing the complaint, police investigated and recovered the prosecutrix, recorded her statement under Section 164 of the Cr.P.C., got her medically examined, sent the samples to CFSL, collected the CFSL Report and after completion of the investigation, Challan under Sections 363/376/34 of the Indian Penal Code, against both the appellants/accused was filed in the court of Metropolitan Magistrate, who committed the case to the court of Sessions and the trial court, after hearing the arguments of Counsel for both the appellants/accused and Additional Public Prosecutor for the State, framed charges under Sections 363/34, 366/34 and 376(2) (g) of the IPC against both appellants/ accused.

4. Trial in this case commenced because accused/

Page 2 appellants did not plead guilty to the charges framed against

them under the aforesaid provisions of law.

5. Twelve prosecution witnesses had deposed at trial.

The prosecution evidence mainly consists of the testimony

of prosecutrix (PW-1) and of her mother (PW-6). Kailash

Chand Yadav ( PW-9) has proved School Leaving Certificate

of the prosecutrix, giving her age about 12 years. ASI Brahm

Prakash (PW-12) is the Investigating Officer of this case.

6. These two appellants in their statements under

Section 313 Cr.PC before the trial court have alleged false

implication and have stated that they have been falsely

implicated in this case. However, they did not lead any

evidence in their defence.

7. After the trial, these two appellants/accused stood

convicted under Sections 363/376/34 of the IPC vide

impugned order dated 30th March, 2006, and the trial court

sentenced them to RI for seven years with fine of Rs.500/-

each and in default of payment of fine, to undergo SI for 15

days for the commission of offence of rape under Section

376 of the IPC. Both the appellants/accused were further

sentenced to undergo RI for one year with fine of Rs.500/-

each and in default of payment of fine, to further undergo SI

for 15 days for the commission of offence punishable under

Section 363 of the IPC. Both the substantive sentences were

ordered to run concurrently.

Page 3

8. Submissions have been advanced by both the sides

and learned counsel for the parties have assisted this court

in evaluating the evidence on record.

9. In the afternoon of 9th February, 2004, Prosecutrix (PW-

1) aged twelve years was sent by her mother - Lilawati,

(PW-6) to the market for buying soap for washing clothes

and she did not return and so mother of the Prosecutrix

(PW-1) lodged a missing report with the police, wherein she

had expressed suspicion upon the two Appellants/accused

herein being instrumental in missing of her

daughter/Prosecutrix (PW-1), as these two accused were

often visiting her house. On 11th February, 2004, the

Prosecutrix (PW-1) was recovered from a house and these

two Appellants/accused were apprehended from there and

the statements of the Prosecutrix (PW-1) under section 164

of the Cr. P.C. was recorded, wherein she had stated that

she was kidnapped and raped.

10. Learned counsel for the Appellants contends that no

description of the Appellants/accused was given by the

Prosecutrix (PW-1) in her statement under section 164 of Cr.

P.C. and nor she had named Appellants/accused as the

culprits.

11. To appreciate this contention, evidence of the

Prosecutrix (PW-1) has been scrutinised and it is found that

she has stated in her evidence before the court that these

Page 4 two Appellants/accused present in the court alongwith their

co-accused had kidnapped her and had raped her.

Prosecutrix (PW-1) has stated in her evidence that she had

not taken any name of culprits under section 164 Cr. P.C.

but it has not been elicited from her as to whether she knew

their names and therefore, the evidence of the Prosecutrix

(PW-1) cannot be faulted with because she has identified

the Appellants/accused present in the court as the culprits.

In the cases like present one, identification by face is good

enough, until and unless it is shown as to why the

Prosecutrix (PW-1) and that too a child of twelve years

would falsely implicate the accused and would spare the

real culprits.

12. The testimony of the prosecutrix is sought to be

discredited by the defence by pointing out that after this

incident, she was raped by one Kesu Dili and a rape case is

pending against him. It may be so, but it does not show that

the Prosecutrix (PW-1) was having a loose character.

Moreover, it has not been so suggested to her by the

defence in cross-examination.

13. The testimony of the Prosecutrix (PW-1) is

consistent and reliable and it receives corroboration from

the CFSL Report, Ex. PX, which indicates that semen was

detected on the vaginal swabs of the prosecutrix. The

apprehension of the Appellants/accused from the place of

Page 5 recovery of the prosecutrix clearly incriminates the

Appellants/accused whose stand is a bald denial of the

prosecution case and they have not taken any plea of any

alibi.

14. The testimony of the prosecutrix (PW-1) has been

evaluated in the light of the pertinent observations made by

the Apex Court in the case of "State of Himachal Pradesh

Vs. Asha Ram" AIR 2006 SC 381, which reads as under:-

"It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be worthy of reliance. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."

15. After meticulous examination of the testimony of

Prosecutrix (PW-1), I find that her evidence inspires

confidence and the same has been rightly relied upon by

the trial court. It is pertinent to note that the suggestion

given to her by the defence is of someone else raping her

and of Appellants/accused being falsely implicated by her.

No reason is forthcoming as to why the prosecutrix or her

Page 6 mother (PW-6) would falsely implicate the

Appellants/accused for commission of the heinous offence

like the present one.

16. The two decisions reported in 2009 (1) Crimes

110 and 123 relied upon by the Appellants/accused are of