Amar Sarkar vs State
2009 Latest Caselaw 245 Del

*                HIGH COURT OF DELHI : NEW DELHI

                Judgment reserved on : January 16, 2009
                Judgment delivered on : January 23, 2009

+                           Crl. A. No. 1009/2006 &
                           Crl.M.(B).No. 1703/2007

%      Amar Sarkar                                 ...    Appellant
                  Through:        Mr. Asit Kumar Roy with Mr. Sandeep
                                  Sharma, Advocate

                                   versus

       State                                         ...   Respondent
                       Through:   Mr. Amit Sharma, learned 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. In this appeal, appellant assails his conviction for the offence of

rape awarded by the trial court vide impugned judgment of 10th October,

2006, and the sentence of rigorous imprisonment of seven years with

fine of Rs.10,000/- imposed upon him for the offence under Section 376

of the IPC, vide impugned order of 18th October, 2006.

2. The factual scenario emerging from the record of this case is, that

the appellant/accused was a astrologer by profession and he knew the

family of the prosecutrix (PW-1) and on 6th June, 2005, at about noon

Crl. A.No. 1009/2006 Page 1 time, prosecutrix (PW-1) aged about eighteen and a half years along

with her mother PW-3 came to the house of the accused for astrological

consultation and the appellant/accused purportedly told prosecutrix's

mother to bring tulsi leaves and had told her that he would first take

bath and thereafter, he would give a ring (of precious stone) to the

prosecutrix. It is the prosecution case that on that day at about 2.00

p.m. appellant/accused gave the aforesaid ring to the prosecutrix (PW-

1) and, thereafter, bolted the door of his room from inside and had

forcibly raped the prosecutrix (PW-1). After this incident, prosecutrix

went back to her house and had informed her mother about it and,

thereafter, a complaint Ex.PW-1/A was lodged with the police and

thereafter, the prosecutrix was got medically examined and the

appellant/accused was arrested and he was also got medically

examined. After completion of investigation, charge-sheet was filed for

the offence under Section 376 of the IPC against the appellant/accused,

who had pleaded not guilty to the aforesaid charge, before the trial court

and thus, he was put on trial.

3. In all, eight witnesses had deposed at trial. The star witnesses of

this cases are the prosecutrix (PW-1), her mother (PW-3), Dr. Swati,

(PW-6), who has proved the MLC Ex.PW-6 of the prosecutrix and the

Investigating Officer (PW-8).

4. The stand taken by the Appellant/ accused before the trial court

was of denial. However, Appellant/accused had admitted in his

statement under Section 313 of Cr.P.C. that on the date of incident, he

Crl. A.No. 1009/2006 Page 2 had told the prosecutrix that the astrological remedy was to wear 'Ruby',

a precious stone and he had told the mother of the prosecutrix to bring

'tulsi' leaves but he did not tell her to leave the prosecutrix at his house

and the mother of the prosecutrix had brought 'tulsi' leaves and had

given Rs.500/- to him as advance, i.e., for the aforesaid precious stone

and had left the house of the Appellant/accused on the pretext of

arranging the balance amount of Rs.18,000/- of the stone by the

evening time. Appellant/accused has also admitted that he had given

the aforesaid precious stone 'Ruby' to the prosecutrix. Rest of the

prosecution case stands denied by the Appellant/accused. The reason

for false implication given by the Appellant/accused in his aforesaid

statement, reads as under:-

"Parents of the prosecutrix were not ready to pay my balance amount of the consideration amount of Ruby i.e. Rs.18,000/-. It was 3 Ratis @ Rs.6,000/- alongwith manufacturing cost of Rs.500/-. One maternal uncle of the prosecutrix are known person to Head Const. Varinder. Hence they in collusion with Head Const. Varinder falsely implicated me in this case in a pre-planned way. I know the family of prosecutrix for the last seven years. Prosecutrix was just like my daughter in my faith. Parents of the prosecutrix do not want to return my money and that is why they falsely implicated me in this case with the help of police. No such incident had taken place as alleged. Mr. Biplab Dey and Monika Bhattacharya were present on that day at my home and in the time of alleged occurrence. I am innocent and falsely implicated in this case."

Crl. A.No. 1009/2006 Page 3

5. In his defence, Appellant/accused had got examined Ms. Monika,

DW-1, to show that she was present at the spot from 1 PM to 3 PM, to

rule out the alleged offence of rape, with which the Appellant/accused

has been charged. After trial, Appellant/accused stands convicted and

sentenced, as already noticed above.

6. Learned counsel for appellant contends that it has come in the

evidence that the window of the room of the Appellant/accused was

open and was thus, visible from outside, which negates the allegation of

rape against the Appellant/accused. It is pointed out that the prosecutrix

did not raise any alarm and in the FIR, she has stated that she was

wearing a salwar on the day of incident, whereas in her evidence, she

has stated that she was wearing a pant. According to learned counsel

for the Appellant/accused, he was known to the family of the prosecutrix

and had treated the prosecutrix as his daughter and he has been falsely

implicated in this case as the parents of the prosecutrix did not want to

pay the balance amount, i.e., Rs.18,000/- of the precious stone which

was given by him to the prosecutrix on the date of the incident. Lastly, it

is submitted that the medical evidence does not support the prosecution

case as no semen was detected on the exhibits sent for chemical

analysis and the presence of Ms. Monika, DW-1, at the spot during the

time of alleged incident, demolishes the prosecution case and the

Appellant/accused has been illegally convicted by the trial court and he

deserves to be acquitted. Nothing else is urged on behalf of the

Appellant/accused.

Crl. A.No. 1009/2006 Page 4

7. Learned Additional Public Prosecutor for the State submits that

the testimony of the prosecutrix (PW-1) is reliable and it needs no

corroboration from the medical evidence. However, it is stated that the

evidence of mother of the prosecutrix sufficiently corroborates the

prosecution version and the evidence of Ms. Monika, DW-1 has been

procured later on and is after thought as it has not been suggested to

the prosecution witnesses that DW-1 was present at the spot and at the

time of incident. It has also been submitted that there is no illegality in

the impugned judgment and the conviction and the sentence awarded

to the Appellant/accused is just and proper.

8. Prosecutrix (PW-1) was aged about eighteen and half years on

the day of this incident. It has come in her evidence that Appellant was

known to the family of the prosecutrix and she used to call the Appellant

as 'dadaji' as the relations between the Appellant and family of the

prosecutrix were cordial one. In this background, it is quite natural for

the mother of the prosecutrix to have left the prosecutrix at the house of

the Appellant as he was to give a ring of 'mukta', (a precious stone) to

the prosecutrix, by telling that "Mukta Pehnane SeTheek Ho Jaiya Ga,

to Mukta Pehnene Gaye The." Appellant had told the mother of the

prosecutrix to bring 'tulsi' leaves for this purpose and accordingly, she

brought it and thereafter, Appellant told mother of the prosecutrix that

he would take bath and would then put the ring of 'mukta' on the finger

of the prosecutrix and had told her that she can leave the prosecutrix

there and since the family of the prosecutrix was living nearby,

therefore, it was quite natural for mother of the prosecutrix, to have left Crl. A.No. 1009/2006 Page 5 the prosecutrix at the house of Appellant, in the background of cordial

relations being there between the families.

9. It emerges from the testimony of the prosecutrix (PW-1) that the

Appellant had put the 'mukta' ring on the finger of the prosecutrix and

thereafter had caught hold of her hand and took her in the inner room

and bolted it from inside and threw her on the floor and had removed

her salwar and when she objected, he rebuked her and switched off the

light and when the prosecutrix tried to raise alarm, he closed her mouth

with his hand and had raped her. Thereafter, Appellant had warned the

prosecutrix not to disclose about this incident to anyone. However,

prosecutrix came back to her house and narrated this incident to her

mother and this matter was reported to the police.

10. To test the veracity of the testimony of the prosecutrix, her

evidence has been scanned and it has been found that although it has

come in her evidence that the window of the room was open and house

of other tenants were visible from the said window, but it would not

mean that from outside the window person lying on the floor would be

visible from the outside. Since the electric light was switched off by the

Appellant, therefore, it can be safely said that there was not enough

natural light at the spot. It has come in the evidence of the prosecutrix

that she had cried loudly at the time of incident but nobody came. She

has also stated in her evidence that there was nobody in the adjoining

house. It cannot be lost sight of, that prosecutrix (PW-1) surely must

have been taken aback at the happening of this incident.

Crl. A.No. 1009/2006 Page 6

11. This incident is of June, 2005 and the evidence of the prosecutrix

has been recorded in January, 2006 and so, even if it is said by the

prosecutrix in cross-examination by the defence that the zip of her pant

was broken while the Appellant was forcibly removing her clothes, it will

not make any difference, because she has stated in her examination in

chief that she was wearing salwar on the day of incident and the said

salwar, Ex.P-2 was seized in this case and the prosecutrix in her

evidence has duly identified it to be the one, which she was wearing on

the day of the incident.

12. The so-called infirmities pointed out by the defence in the

evidence of the prosecutrix are not at all sufficient to discard her

testimony, which has been found by the trial court to be reliable and

even this court, after going through her testimony, finds no reason to

take a different view than the one taken by the trial court.

13. The evidence of the prosecutrix (PW-1) cannot be demolished by

relying upon the evidence of Monika, DW-1, as the version of Monika,

DW-1 is an afterthought, because it has not been suggested to the

prosecutrix (PW-1) in her cross-examination. The version of Monika,

DW-1, is otherwise also, not worthy of consideration because she did

not make a complaint to anyone, when she came to know that the

Appellant/accused has been arrested in this case. It appears from the

evidence of Monika, DW-1, that she was the friend of the son of

appellant/accused and she was in constant touch with the son of the

Appellant and it appears that just to save the Appellant, she has

Crl. A.No. 1009/2006 Page 7 deposed about her presence at the spot, which cannot be cross-

checked. In any case, when the evidence of the prosecutrix (PW-1) vis-

à-vis, the evidence of Monika, DW-1, is tested on the touchstone of

probability factor, testimony of the prosecutrix (PW-1) inspires utmost

confidence and that of Monika, DW-1, fails the test as it does not sound

to be probable one.

14. In the case of "Ranjit Hazarika vs. State of Assam", (1998) 8 SCC

635, Apex Court had upheld the conviction of accused for the offence of

rape by relying upon the evidence of the prosecutrix as medical

evidence did not belie testimony of prosecutrix and her parents and it

was held that lack of corroboration does not vitiate such a conviction.

15. Trial court has rightly relied upon the two decisions of the Apex

Court reported in (1998) 8 SCC 635 and AIR 2004 SC 2884, to hold

that no woman would stake her honour and reputation to falsely

implicate any person by levelling the charge of rape and absence of

injuries on the person of the prosecutrix, or lack of corroboration from

medical evidence, would not be sufficient to discard the prosecution

case.

16. Appellant wants this court to believe that the prosecutrix (PW-1),

who is a young girl of just eighteen and half years, and her parents

would falsely implicate him in a rape case by staking the reputation of

the family, to avoid payment of Rs.18,000/- towards the precious stone

given by the Appellant in a ring to the prosecutrix on the day of the

incident.

Crl. A.No. 1009/2006 Page 8

17. Aforesaid plea of the Appellant lacks plausibility and is highly

incredible and has been rightly discarded by the trial court, as the same

is unacceptable on the face of it. The testimony of prosecutrix (PW-1)

has been found to be of sterling character and is sufficient to incriminate

the appellant and it needs no corroboration from medical evidence.

However, evidence of mother of prosecutrix provides ample

corroboration to her version which has a ring of truth in it.

18. Viewed from any angle, I find that the conviction and the sentence

imposed upon the Appellant are very well justified, in the face of the

evidence on record. There is no illegality in the impugned judgment or

the order on sentence. There is no merit in this appeal and it alongwith

pending application stands dismissed accordingly.

                                                    SUNIL GAUR, J
January 23, 2009
pkb




Crl. A.No. 1009/2006                                                 Page 9