State vs Babloo
2009 Latest Caselaw 3126 Del

i.1
* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision: 12th August, 2009

+                          CRL.L.P. 144/2009

       STATE                           ..... Petitioner
                       Through:   Mr. Amit Sharma, Advocate

                                  versus

       BABLOO                         ..... Respondent
                       Through:   Nemo

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE INDERMEET KAUR

          1. Whether the Reporters of local papers may be
             allowed to see the judgment?

          2. To be referred to the Reporter or not?           Yes

          3. Whether the judgment should be reported in the
           Digest?                                     Yes

PRADEEP NANDRAJOG, J. (ORAL)

Crl.M.A.No.9300/2009

There is a delay of 16 days in filing Crl.L.P.144/2009.

For the reasons stated in the application we condone

the delay.

Crl.L.P.No.144/2009

1. The respondent has been acquitted of the charge of

having committed rape on the prosecutrix Kumari "M".

2. As per the prosecutrix she was raped sometimes in

the month of September 2005 and thereafter on 20.12.2005 and

12.1.2006.

3. Medical evidence in the form of MLC Ex.PW-6/A of the

prosecutrix showed that hymen was ruptured; there was no

evidence of the same being recently ruptured.

4. It is thus apparent that the prosecutrix had been

subjected to sexual intercourse in the past and in all probability

on more than one occasion.

5. Proceeding on the aforenoted basis, the learned Trial

Judge has considered the evidentiary value of the testimony of

the prosecutrix who alleged that the respondent was the rapist.

6. The learned Trial Judge has noted the following:-

A. The prosecutrix could not tell the day in the month of

September 2005 when she was allegedly raped for the first time.

In her cross-examination she disclosed that the time was 2:00

AM i.e. the middle of the night. She stated that her younger

brother was in the house. She claimed to have been raped on

the roof of the house.

B. The second and the third time when the prosecutrix

claimed to be raped it was in the night and the dates were

20.12.2005 and 12.1.2006. She disclosed the place of rape to

be the bathroom of her house.

C. The site plan Ex.PW-4/A prepared by the investigating

officer pertaining to the residential house of the prosecutrix

does not show the location of the bathroom.

7. The conclusions drawn by the learned Trial Judge are

that it is unbelievable that the prosecutrix could be raped in her

house in the night when all family members are expected to be

present. The argument of learned counsel for the State that the

prosecutrix is a minor and hence her consent is immaterial has

been deal with by the learned Trial Judge who has held that

issue was not of consent or otherwise. The issue was, whether

the prosecutrix was raped in the manner she alleged.

8. Seeking leave to appeal the grounds urged are as

under:-

"a) That the impugned judgment is bad in Law and against the fact of the case. The opinion formed by the Ld trial Court is unreasonable and hence the impugned judgment is liable to be set aside.

b) That the Ld. Trial Court has ignored the fact that the prosecutrix has fully supported the case who is admittedly minor and hence there is no contradiction or improvement in her evidence.

c) That the Ld. Trial Court ignored the finding that there is corroboration in the M.L.C. as doctor has opined the hymen ruptured.

d) That the ld. Trial Court further erred in acquitting the accused on ground of defective investigation. It is submitted that it is well settled that defective investigation cannot be a ground to let go an accused when there is otherwise direct and sufficient evidence to bring home his guilt.

e) That the Ld. Trial Court erred in acquitting the accused on the ground that the testimony of prosecutrix was not reliable and unbelievable. However, the Ld. Trial Court completely ignored the fact that the accused could not bring anything on record to show that the prosecutrix, a minor had any reason to falsely implacable the accused and for that reason to face the risk of ostracism in society.

          f)        That the Ld. Trial Court erred in
         considering delay of 8 days as crucial.       It is

submitted that in rape cases delay cannot be the ground to acquit the accused. Moreover in the present case the victim was a minor and explanation has been shown by the prosecutrix in her cross- examination.

g) That the Ld. Trial Court has gravely erred and ignored the cross examination of PW-6 doctor in Gyne Departments of AIIMS. It is further submitted that the PW-6 on examination of prosecutrix found her hymen ruptured and in the history of MLC it was clearly recorded that the prosecutrix had been subjected to sexual assault three times.

h) That the Ld. Trial Court failed to appreciate that the evidence on record leads to only one conclusion i.e. the Accused is guilty of the committing the offence of rape."

9. The grounds are as vague as vagueness can be.

10. It is unfortunate, that there is no application of mind

while drafting the petition seeking leave to appeal. The

evidence discussed by the learned Trial Judge and the

conclusions arrived at have not even been attempted to be

touched upon.

11. We expect some application of mind when petitions

seeking leave to appeal are filed.

12. Be that as it may, we have perused the testimony of

the prosecutrix.

13. Apart from the infirmities/deficiencies noted by the

learned Trial Judge we may note that the prosecutrix, when

questioned about the dimensions of the toilet in which she was

allegedly raped has stated as under:-

"Q: Is it correct that bathroom is of the size of 3 feet x 3 feet?

A. It is correct. "

14. We note that the aforenoted question and answer is

followed by a note by the learned Trial Judge that the witness is

not able to say exactly what 3 feet is but approximately refers to

the distance.

15. Unfortunately, the learned Trial Judge has not

brought out clearly as to what was the error in the approximate

size deposed to by the prosecutrix.

16. The prosecutrix was aged 15 years when she

deposed. She was not a child of tender age to not understand

what 3 feet meant.

17. It is apparent that the prosecutrix is a shaky witness.

18. Learned counsel for the appellant can hardly dispute

the premise, that based on common course of events and

human conduct, that family members are presumed to be

present in their house in night time.

19. If this be so, it is highly doubtful that somebody could

have forcibly raped the prosecutrix in her house when her family

members were present.

20. Pertaining to the prosecutrix being raped in the

bathroom, we find no infirmity with the view taken by the

learned Trial Judge that in the absence of the site plan showing

the exact location of the bathroom it would be difficult for a

Court to critically evaluate the evidence and indeed the

investigating officer has done a sloppy job. How did the outsider

access, un-noticed the bathroom?

21. Even otherwise, it would be difficult to accept that a

girl in her teens can be raped in a bathroom size whereof is 3

feet x 3 feet. Even if the prosecutrix was wrong in her

approximations, taking the size of the toilet to be 4 feet x 4 feet,

it would be difficult to commit rape in such a small area.

22. As noted above, the prosecutrix claimed to have

been raped on the aforesaid dates in the nights. Her family

members were present in the house; so are they expected to be.

Assuming she was overcome by fear and did not yell, it is

unbelievable that her family members would not have noticed

her mental and physical condition when she came out of the

toilet after being raped.

23. The theory of being raped in the roof in the middle of

the night of September 2005 appears most unnatural for the

reason other family members would certainly have been

distracted if a daughter of the family was molested in the roof of

the house as claimed by the prosecutrix.

24. It appears to be a case where the prosecutrix has

been having sex by consent with somebody and has falsely

implicated the respondent.

25. We note that the respondent has taken a consistent

defence of false implication due to prior financial dealings

between his father and the father of the prosecutrix.

26. The view taken by the learned Trial Judge cannot be

called as a perverse view. It cannot be said that the view is not

a probable view.

27. It is settled law that if on the evidence before it, view

taken by the learned Trial Judge is a probable view, the

appellate Court would not interfere in the finding returned.

28. No case is made out to grant leave to appeal.

29. The petition is dismissed.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

AUGUST 12, 2009 mm