Delhi High Court
Maruti vs State Of Nct Of Delhi on 1 July, 2009
Author: G. S. Sistani
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. A. NO. 419/2001
Date of pronouncement 01 July, 2009
# MARUTI .... Appellant
Through : Mr.Aman Ahluwalia, Advocate.
Versus
STATE (NCT OF DELHI) .... Respondent
Through : Mr.M.P. Singh, APP for the State.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
1. Whether reporters of local papers may be allowed to see
the Judgment ? YES
2. To be referred to the Reporter or not? YES
3. Whether the Judgment should be reported in the Digest? YES
G.S. SISTANI, J.
1. The present appeal is directed against the judgment dated
19.09.2000 and order on sentence dated 23.09.2000, passed
by the learned Additional Sessions Judge, Delhi, in FIR No.
134/99, PS Kalyan Puri, under section 376, Indian Penal Code,
1860 (hereinafter referred to as, ―IPC‖), by virtue of which the
appellant was sentenced to undergo Rigorous Imprisonment
for five years with a fine of Rs.5,000/- and in default of which,
the said appellant was directed to undergo a further Simple
Imprisonment for a period of one year.
2. The facts of the case as noticed by the learned Trial Court,
briefly stated are.
3. On 27.05.1999, Smt. Bedo wife of Shri Satpal made a
statement before the police that at about 11 AM on
27.05.1999 she went to look for her mentally retarded girl,
(name withheld, hereinafter referred to as, ―the victim‖) at her
jhuggi in 18 block, Kalyanpuri Delhi but she did not find her
there. She went to the jhuggi of her neighbour, Sh. Maruti
(appellant herein) and saw that Salwar of her daughter victim
was put off and she was lying on the cot (palang) of Maruti,
who was lying naked on her and was doing the wrong act.
After seeing her, Maruti stood up and immediately covered
himself with the help of a towel. SI Puran Chand recorded the
statement of Smt. Bedo and made his endorsement thereon.
After completion of investigation, the police filed the challan
before the concerned Magistrate for trial of the appellant for
the offence under section 376, IPC. Post trial, the appellant
was found guilty of the said offence.
4. The prosecution in support of its case examined eleven (11)
witnesses. Five witnesses were examined by the defence.
Statement of the appellant was also recorded under section
313 of Cr.P.C. It would be useful to discuss the evidence of
some of the material witnesses in detail.
5. PW-1, Smt. Bedo, w/o Sh. Satpal, deposed in her examination-
in-chief that she is illiterate so she does not remember the
date and month of the incident but it was about five-six
months ago in this year. At about 10:30 AM she went to see
her daughter to provide her food as her daughter was mentally
upset. She had called her daughter in her neighbourhood but
she was not there. The jhuggi of the appellant is situated after
one jhuggi of her jhuggi. The jhuggi which was situated in front
of the other jhuggi was curtained. She entered in the said
jhuggi after pushing the curtain but her daughter was not
there. Thereafter she had pushed another curtain and she saw
her daughter (victim) was lying on a palang in the said jhuggi
and her legs were down from the palang and her salwar had
also been put off upto knees and Maruti (appellant) was not
having baniyan and kacha on his person and he was over her
daughter. After seeing her, he immediately separated from
her daughter and put a towel around him. She immediately
called three-five persons from the neighbourhood and told
them that appellant, Maruti was lying naked on her daughter.
Thereafter, she went to the police station to lodge a report.
From the police station two police constables accompanied her
and they all came to the jhuggi of Maruti and the appellant
was taken by them to the police station and her daughter was
also taken by the police. Thereafter police recorded her
statement in the police station, the same is Ex.PW1/A which
bears her signature at point A. Police took her daughter for the
medical examination and she remained sitting inside the
police station till her daughter came back from the hospital.
Thereafter she along with her daughter came back to her
jhuggi. Her daughter's age was about 23 or 24 years.
6. In her cross-examination by learned APP for the State, PW-1
deposed that it was correct that when she saw Maruti he was
laid down naked on her daughter and committing wrong act
with her daughter. (witness stated the wrong acts means
which is done by husband and wife).
7. In her cross-examination by learned counsel for the appellant,
PW-1 deposed that before putting her thumb impression on
her statement, the police read over and explained the
statement to her. PW-1 deposed that it was correct to say that
she had stated in her statement that the door was open but
there was curtain on the door. She was confronted with the
statement Ex. PW 1/A where it was not so recorded. As per
PW-1, in the jhuggi of Maruti, the appellant was residing with
his wife, son, daughter-in-law, and two children. She
voluntarily stated that at the time of the incident none was
present in the jhuggi. The wife of Maruti used to work in
different kothis and the wife of his son remained in the jhuggi
but at the time of the incident, the wife of his son had already
gone to her parental house. In front of the jhuggi of Maruti
there was a jhuggi of a Madrasi, but she deposed that she did
not know his name. On the left side was the jhuggi of Babu
Rao, and on the right side was that of Nanu. PW-1 deposed
that she went to the police station at about 10:30 a.m. and
returned back to the spot alongwith the police staff after about
50 minutes. PW-1 further deposed, "I do not know the names
of persons who remained in the jhuggi of the appellant when I
left the jhuggi for the p.s. When I called the neighbourers
some neighbourers came over there and I handed over the
accused in the custody of Gulshan and there was one lady
Sumitra present there. But I do not know the others name. I
have been residing there for last about 15 years." PW-1
deposed that it was incorrect to suggest that she was
deposing falsely or that she did not see anything with her own
eyes or that she did not enter in the jhuggi of Maruti,
appellant. She, however, admitted that her daughter had
been a victim in another case of the same nature.
8. PW-2, victim, d/o Satpal. The trial court observed that this
witness was suffering from mental retardation and a certificate
to this effect was attached in the file. Therefore the trial court
put some questions to the victim to reveal her competency.
"Q. Why did you come in the court today?
A. I came to court alongwith my mother to
depose against Uncle and witness pointed
towards the appellant."
Thereafter the trial court observed,
"In the above reply of the witness the court is
satisfy as the witness is competent to make her
statement in the court therefore her statement is
recorded."
PW-2 deposed, "accused/uncle [ ] had committed Galat kaam
with me. He has committed Galat Kaam for long back. My
statement was recorded in the court prior to this statement."
In the cross-examination by learned counsel for the appellant,
PW-2 deposed, "[m]y father did not tell me to tell in the court
about the Galat Kaam. I have deposed my self about this today
in the court. My mother did not tell me to say about Galat
kaam Voll. Said Papa. My marriage was solemnized but I was
deserted by my husband as my husband had got another
marriage. „Mere Pati ne Dusri Shadi Kar Lee‟. Police
interrogated me."
9. PW-3, Gulshan, r/o jhuggi no. 77, Kalyan Puri, Delhi deposed
that on 27.05.1999, he was present at his shop and on that
day at about 11 AM, Bedo came to him to accompany her to
the jhuggi of Maruti, appellant. There Bedo asked him to
detain the appellant as she was going to call the police. Police
reached over there and he handed the Maruti, appellant to the
police. Police conducted the personal search of Maruti,
appellant vide memo Ex.PW3/A which bears his signature at
point A.
10. In his cross-examination by learned counsel for the appellant,
PW-3 deposed that the Police reached at the spot at about 11
or 11:30 AM. When he reached the jhuggi of Maruti, daughter
of Smt. Bedo was already present there alongwith Maruti. As
per PW-3, his shop is situated at a distance of 4-5 jhuggis from
the jhuggi of Maruti. He stated to be familiar with Bedo and of
having visiting terms. Apart from him, 3-4 persons had also
reached the jhuggi of Maruti namely Chotu, Savitri and other
persons whose name he did not remember. PW-3 deposed
that he has been residing there since last about 12 years.
There are the jhuggis of Chotu, Babu, Gopal between his
jhuggi and the jhuggi of Maruti. PW-3 denied THE suggestion
that he was deposing falsely.
11. PW-5, Dr. Kalpana Kumar, SDN Hospital, deposed in her
examination-in-chief that on 27.05.1999 at 3:50 PM, patient,
victim d/o Satpal, aged 25 years (approximately) was brought
by lady constable Arti, P.S. Kalyanpuri and was referred to her
for gynae checkup and opinion. As per PW-5, she examined
the patient with the alleged history of rape by someone and
opined, "On local examination there was no fresh injury seen
on vulva or breast. Hymen seems ruptured, old tears present,
vagina admits two fingers. Uterus anteverted, normal size
mobile fornis clear. Patient was not telling menstrual history
properly. Vaginal swab taken....... Salwar was also sealed.
She was referred to IHBAS for mental status.‖ PW-5 further
deposed that the MLC No. 3502/99 dated 27.05.1999 is
Ex.PW5/A which is in her handwriting and bears her signatures
at point A.
12. PW-6, SI Puran Chand stated that on 27.05.1999, he was
posted at P.S. Kalyan Puri. On 27.5.1999 Smt. Bedo came in
the police station with her daughter-victim and made a
statement before him, which is Ex.PW1/A. After hearing the
statement he sent the victim for medical examination. In the
meantime PW Gulshan Kumar came to him alongwith the
appellant who made a statement before him that the appellant
Maruti had committed rape with the victim. Thereafter he sent
the appellant for his medical examination alongwith constable
Khem Chand to SDN Hospital. Thereafter he went to the place
of occurrence at jhuggi no. 55, Block no. 18, Kalyanpuri where
the offence of rape was committed and he prepared the site
plan Ex.PW6/B with the correct marginal notes at the pointing
out of complainant Bedo. Appellant Maruti was also
interrogated and he made a disclosure statement Ex.PW6/C.
13. PW-6, in his cross-examination by learned counsel for the
appellant submitted that the complainant herself came to the
police station for lodging a report. At that time prosecutrix
(victim) was with the complainant.
14. PW-7, Sh. S.K. Sharma, M.M. deposed that on 28.05.1999, he
was marked an application of I.O. Puran Singh for recording
the statement of the prosecutrix under section 164 Cr.P.C. On
the same day, prosecutrix (victim) was produced before him.
She was suffering from a mental disorder. However he
questioned her and observed that she was not in a fit state of
mind nor was she capable of giving rational answers to the
questions put to her. His observation is Ex.PW7/B. The
questions and answers made by the prosecutrix are Ex.PW7/C.
PW-7 also stated to have given a requisite certificate, which is
Ex. PW7/D and bears his signatures at point A.
15. PW-8, Constable Khem Chand deposed that on 27.05.1999 he
was posted in P.S. Kalyanpuri. As per PW-8, he alongwith the
I.O. of the case and the appellant went to the place of
occurrence where the appellant pointed out the place of
occurrence as well as made a disclosure statement that he
had committed rape on a mental girl. The disclosure statement
is Ex.PW6/C which bears his signatures at point A.
16. PW-10, Dr. A.K. Saini, SDN Hospital deposed that on
27.05.1999, Maruti, appellant was brought to him by constable
Khem Chand and that he had medically examined him. It was
stated by PW-10 that, "[t]here was no external injury on his
person. On local examination his gentalia secondary sexual
characters were well developed. ..... As per my opinion there
was nothing to suggest that the accused was not capable of
performing sexual act. He was advised to give his semen but
he had refused to give. His undergarments were sealed with
the seal of hospital and handed over to constable Khem
Chand." PW-10 deposed that he prepared the MLC No.
3448/99 dated 27.05.19899, the same is Ex.PW10/A and bears
his signature at point A.
17. DW-1, Smt. Manda w/o Babu Ram, aged 27 years, r/o B-18,
Kalyan Puri, Delhi, deposed that she knew Maruti, appellant as
he was her neighbour. DW-1 deposed that in the month of
May, 1999, five to six days prior to the day of the incident, a
quarrel took place between Maruti and Bedo on some money
transaction. In the month of May, 1999, Maruti was sprinkling
water on the freshly constructed floor in his jhuggi. At that
time, Bedo came to Maruti and stated that she had lodged a
report as the appellant had teased her daughter. Smt. Bedo
was the Pradhan of jhuggi locality. At that time she had raised
an alarm ‗MERI BETI KO CHHERA HAI', so she came outside,
but there was no such thing.
18. In the cross-examination by learned APP, DW-1 deposed that
she did not know the age of victim. It is correct that she was
not having a fit state of mind. When the quarrel took place
between Smt. Bedo and Maruti some locality people had
gathered there. She was also there but she did not ask the
cause of quarrel from Smt. Bedo or even from Maruti. Further
it was correct that after quarrel, Smt. Bedo went to the Police
station and lodged a report. It was correct that in the quarrel,
Smt. Bedo was saying that Maruti, appellant had committed
galat kaam. It was correct that when police came at the spot,
she and other people did not tell the police that quarrel took
place on other matter not on the galat kaam. DW-1 further
deposed that it was correct that when the quarrel took place
she was inside her jhuggi and she came outside from the
jhuggi after hearing the noise. Voluntarily stated that the
quarrel took place on freshly constructed floor by the appellant
in his jhuggi.
19. DW-2 Smt. Sumitra r/o jhuggi No. 55 Block No. 18, Kalyan Puri,
deposed that she knew the appellant as he is her neighbour.
On 27.05.1999, Maruti was sitting on the floor of his jhuggi.
Some altercation was already going on from the last 9/10 days
between Maruti and Smt. Bedo on some money transaction.
Again said Maruti had constructed a floor in his jhuggi one day
prior to 27.05.1999 and he was throwing water on that day.
Smt. Bedo was demanding money from Maruti, thereafter the
appellant was apprehended by the police and taken to police
station.
20. In the cross-examination by APP for the State, DW-2 deposed
that Maruti is not related to her. The difference between her
jhuggi and that of Maruti is of three jhuggis. At that time she
was sitting at the gate of her jhuggi and everything was visible
from there. It was correct that when quarrel was taking place
between Smt. Bedo and Maruti, she was inside her house and
that after hearing the noise she came out of her jhuggi. It was
correct that the name of daughter of Bedo is ‗victim' and she
is half mad. It was incorrect to suggest that Maruti had
committed galat kaam with the daughter of Smt. Bedo.
21. DW-3 Kamal Rao r/o B-18, Indra Camp Kalyan Puri deposed in
her examination-in-chief that on 27.05.1999, she was giving
tuitions to the children. She heard some noise of quarrel.
Then, she came out from Budh Vihar and saw that Smt. Bedo
was quarrelling with Maruti and she was demanding money as
the appellant had constructed a floor in his jhuggi. At that
time Smt. Bedo extended threat that if he will not give the
money she will call the police and thereafter Bedo went to P.S.
Police came at the spot and she again came out and saw that
Maruti was taken by the police. As per DW-3, Smt. Bedo is
Pradhan of the area and she used to harass the locality people
as such.
22. DW-3 was cross-examined by learned APP for the State and
DW-3 deposed that it was correct that at the time of quarrel,
daughter of Bedo was also present there. It is correct that at
that time Maruti was alone in the house. Again said his
mother-in-law was present in the jhuggi. She denied the
suggestion that mother-in-law of Maruti is residing in a
separate jhuggi. DW-3 stated to have not heard that Smt.
Bedo was saying that appellant had committed rape on her
daughter and she only heard the demand of money.
23. DW-4 Smt. Sushila, Kalyan Puri, Delhi deposed that on
27.05.1999, at about 11 AM she was sitting at the door of her
jhuggi and at that time Maruti was washing the newly
constructed floor in his jhuggi. In the meantime Pardhan Bedo
came in front of the door of Maruti. Mother-in-law of Maruti
was also inside his jhuggi. The daughter of Bedo was also
there. Smt. Bedo was talking with Maruti on some money
transactions but Maruti refused to give money to Bedo. Then
Bedo started speaking loudly. And Bedo went to the police
station. Maruti was apprehended by the police and was taken
to P.S. with them then. Maruti, appellant has been falsely
implicated in this case.
24. In the cross-examination by APP for the State, DW-4 deposed
that the name of mother-in-law of Maruti is Gangu and she
resides in a village in Maharashtra and she had come to the
house of Maruti eight days prior to the incident but she did not
know whether she came alone or with someone. Maruti has
five Jhuggis which are adjoining to each other. As per DW-4, it
was correct that Maruti and his mother-in-law were not sitting
in one jhuggi. She denied the suggestion that in the quarrel
Smt. Bedo was saying that Maruti had committed rape on her
daughter. I had stated to the police that Maruti had not done
anything and at that time police had assured me that they will
release Maruti. Further stated that it was incorrect to suggest
that she did not see any occurrence as alleged by her.
25. DW-5 Vishwas, Indira Camp, Kalyan Puri deposed that he
knows the appellant as he resides in his locality. DW-5 stated
to have heard noise of a quarrel from the house of Maruti and
that Pradhan Bedo was saying something about money which
Maruti refused to give to her. As per DW-5, he did not know as
to why Smt. Bedo was demanding money from Maruti. At that
time Pradhan Bedo also extended a threat to Maruti to falsely
implicate him in some case. She also said that she used to
take money from all and further stated that she will lodge a
report against Maruti.
26. In the cross-examination by APP for the State, DW-5 deposed
that it was correct that when he heard the noise then he was
attracted towards it, but he was not aware as to what
happened before that noise. When he reached the place of
noise he saw Smt. Bedo and her daughter were already
present there. DW-5 also denied the suggestion that he was
deposing falsely.
27. It is contended by learned counsel for the appellant that the
judgment is based on surmises and conjectures. There are
several discrepancies in the case of the prosecution and
further that the appellant has been falsely implicated.
28. Learned counsel for the appellant submitted that the story of
the prosecution is unbelievable. It is not apparent why - on
not finding her daughter in the neighbourhood, PW-1 would
walk straight into the curtained jhuggi of the appellant, which
was two jhuggis away. Secondly, the sequence of events as
narrated by PW-1 are extremely implausible. According to PW-
1, on seeing the purported incident, she ―immediately called
3-5 person from the neighbourhood‖ and told them that the
appellant was ―lying naked on her daughter‖. Thereafter, she
went to the police station. There is no reference to the
whereabouts of her daughter, victim (PW-2), at this stage.
Contrarily, PW-1 has stated that she ―tied the strings on her
daughter in the presence of police. In the cross-examination,
PW-1 admitted that it took her 50 minutes to go to the police
station and return with the constables. Thus, if her version is
to be believed, on seeing the appellant naked on top of her
daughter, she left her daughter (with an untied salwar) in the
same jhuggi with 4-6 other people (3-5 neighbours as well as
the appellant), and proceeded to the police station. This, it is
submitted is highly implausible.
29. It is also contended by counsel for the appellant that the
evidence of the victim as well as her mother is unreliable
besides the deposition of PW-1, even if accepted at face value,
only alleges that when she walked into the jhuggi of the
appellant, she saw him lying naked on top of the victim, doing
―Galat Kaam‖. ―Galat Kaam‖ was further explained as that
which is done by a husband and a wife and this at best would
show that the appellant had attempted to rape the alleged
victim. Learned counsel submits that the evidence of PW-1, by
itself, even if accepted, does not conclusively show that there
was penetration in the present case, and a husband and wife
are capable of indulging in many activities where one lies
naked on the other. The sine qua non of the offence of
rape is penetration and not ejaculation. Ejaculation
without penetration constitutes an attempt to commit
rape and not actual rape. In support of his contention,
learned counsel for the appellant relies upon Koppule
Venkatarao Vs. State of Andhra Pradesh, reported at
2004 Crl. Law Journal 1804.
30. It is further submitted by learned counsel for the appellant that
although both PW-1 and PW-3 admit that there were 3-4 other
neighbours present in the jhuggi, none of these have been
examined as prosecution witnesses. Sumitra, whose presence
has been admitted by both PW1 and PW3, was examined as
DW-2, and her version supports the appellant. Further the
deposition of PW-3 cannot be relied on in asmuch as, PW-3
suggests that he handed over the appellant to the police when
PW-1 returned to the jhuggi with the police constable.
However, PW-6 (SI Puran Chand) states that PW-3 brought the
appellant to him in the police station.
31. It is further contended that the MLC of the prosecutrix
(Ex.PW5/A and PW5/B) contains notings of the Gynecologist
which conclude that there was ―no fresh injury seen on vulva
or breast‖. Thus, there is no medical evidence of recent
sexual intercourse. Counsel submits that the MLC fails to note
the presence of any traces of semen near the vulva or
otherwise. This casts a doubt on the later FSL reports finding
semen on the seized articles (salwar, underwear and vaginal
swabs).
32. It is next contended that there are serious irregularities in the
recording of the FIR (Ex.PW4/A). The incident is alleged to
have taken place at 10.30./11 a.m. The FIR is formally
recorded at 6.20 PM, as stated by PW4. PW4 states that he
received the ruqqa at 6.20 PM. The reason given by PW6 for
waiting so long before forwarding the ruqqa, is that the
prosecutrix was not medically fit and he wanted to wait for the
medical examination report before registering the FIR. This
explanation is extremely tenuous, and even if accepted, there
is nothing in the MLC that should have caused PW-6 to register
a case. The case should have been registered at the time PW1
made her original statement. Further, there is some doubt
about whether the FIR was registered even at 6:20 PM on
27.5.1999. The FIR on the file of the lower court record does
not bear any endorsement of the Magistrate showing the date
and time on which the FIR was forwarded to the Magistrate. In
addition, the FSL reports refer to the FIR as dated 28.5.1999,
which is the day following the date of the incident.
33. Learned counsel for the appellant submits that reliance ought
not to be placed on the FSL reports for the following reasons:
a) PW11 (to whom the case file was entrusted for
investigation) has deposed that the samples were not sent for
forensic testing by him. Even as of the date of his first
deposition, the samples had not been sent for testing. The PP
sought an adjournment on the ground that the CFSL result had
not been placed on file - but actually, the samples had not
even been sent to FSL as on that date (the date of deposition
is 1.2.2000, whereas the FSL Report notes that the samples
were sent vide letter dated 21.2.2000). This delay is a gross
abuse of the investigative process, and raises serious
suspicion of tampering. Delay in sending samples has been
viewed as fatal to the case of the prosecution in the case of
Prabhas Sarkar Vs. The State reported at (2003) 2 CALLT
235 (HC) b) there is nothing to match the semen found in the
samples with the appellant. The refusal of the appellant to
give a semen sample at the stage of medical examination
cannot be held against him as the appellant has a
fundamental right not to incriminate himself. c) no attempt
was made to seize the towel which was allegedly wrapped
around by the appellant.
34. Learned counsel for the appellant submits that the case of the
prosecution is fraught with improbable and implausible facts,
and is an outright fabrication. The correct facts have been put
forward by the defense witnesses, who clearly state that the
quarrel between the appellant and PW-1 was around a money
transaction, and PW 1 has falsely implicated the appellant in
the present case. Besides, the investigative process stands
marred by serious lapses. There is no evidence to suggest that
the appellant committed the alleged acts resulting in an
offence punishable under Section 376 of the IPC.
35. Per contra, it is stated by learned APP for the State that not
only the evidence of the victim, but also the evidence of the
mother of the victim, who is the eye witness are trustworthy
and reliable. He further submitted that the testimony of the
victim as well as her mother is fully corroborated by the
medical and scientific evidence, thus there is no shadow of
doubt that the appellant had committed the offence.
36. I have heard learned counsel for the parties and minutely
scrutinized the evidence on record. Learned counsel for the
appellant has assailed the judgment and order on sentence
primarily on the ground that the surrounding circumstances
would show that rape on the mentally retarded daughter of
the neighbour of the appellant was highly improbable.
Evidence of the victim and her mother is unreliable, besides
the evidence would at best show that the appellant had
attempted to commit rape. Learned counsel has strenuously
argued that the appellant has been falsely implicated in this
case, on account of the fact that the mother of the victim was
the Pradhan of the Jhuggis and the appellant had added
another floor on his Jhuggi for which she was demanding
money. In the testimony of the defence witnesses, they have
deposed that the dispute between the appellant and the
mother of the victim was relating to some money matter and
not on account of rape on her daughter. Learned counsel for
the appellant has strongly urged before this Court that there
has been delay in sending the articles to the Forensic Science
Laboratory and thus tampering cannot be ruled out.
37. The Supreme Court has observed that in rape cases a
conviction can be based on the sole testimony of the
prosecutrix if the same is reliable and trustworthy. In the case
of Madho Ram and Anr. Vs. The State of UP reported at
AIR 1973 SC 469, the Apex Court observed that:
―The only rule of law is the rule of prudence, namely, the
advisability of corroboration should be present in the
mind of the judge or the jury, as the case may be. There
is no rule of practice that there must, in every case, be
corroboration before the conviction can be allowed to
stand.‖
38. In the case of State of Rajasthan V. N.K., reported at
(2000) 5 SCC 30 the Supreme Court has observed:
―A plethora of decisions by this Court as referred to
above would show that once the statement of the
prosecutrix inspires confidence and is accepted by the
Courts as such, conviction can be based 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. It is also noticed that minor
contradictions or insignificant discrepancies should not
be a ground for throwing out an otherwise reliable
prosecution case. Non-examination of doctor and non-
production of doctor's report would not be fatal to the
prosecution case, if the statements of the prosecutrix
and other prosecution witnesses inspire confidence.‖
39. Similarly, in State of Rajasthan Vs. Biram Lal, reported at
(2005) 10 SCC 714, the Supreme Court held that if the sole
testimony of the prosecutrix is free from blemish and implicitly
reliable, then a conviction can be recorded on that basis. It
was observed as follows:
―It is not the law that in every case version of the
prosecutrix must be corroborated in material particulars
by independent evidence on record. It all depends on the
quality of the evidence of the prosecutrix. If the Court is
satisfied that the evidence of the prosecutrix is free from
blemish and is implicitly reliable, then on the sole
testimony of the prosecutrix, the conviction can be
recorded. In appropriate cases, the Court may look for
corroboration from independent source or from the
circumstances of the case before recording an order of
conviction.‖
40. It would also be useful to reproduce the observations of the
Supreme Court in the case of State of Punjab v. Gurmit
Singh reported at (1996) 2 SCC 384. Regarding a rape
victim the Apex Court held:
―8. .........The courts must, while evaluating
evidence, remain alive to the fact that in a case of
rape, no self-respecting woman would come
forward in a court just to make a humiliating
statement against her honour such as is involved
in the commission of rape on her. In cases
involving sexual molestation, supposed
considerations which have no material effect on
the veracity of the prosecution case or even
discrepancies in the statement of the prosecutrix
should not, unless the discrepancies are such
which are of fatal nature, be allowed to throw out
an otherwise reliable prosecution case. 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. Why should the
evidence of a girl or a woman who complains of
rape or sexual molestation, be viewed with doubt,
disbelief or suspicion? The court while appreciating
the evidence of a prosecutrix may look for some
assurance of her statement to satisfy its judicial
conscience, since she is a witness who is
interested in the outcome of the charge levelled by
her, but there is no requirement of law to insist
upon corroboration of her statement to base
conviction of an accused. The evidence of a victim
of sexual assault stands almost on a par with the
evidence of an injured witness and to an extent is
even more reliable........‖
―21. ......It is a sad reflection on the attitude of
indifference of the society towards the violation of
human dignity of the victims of sex crimes. We
must remember that a rapist not only violates the
victim‟s privacy and personal integrity, but
inevitably causes serious psychological as well as
physical harm in the process. 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, 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.‖
[Emphasis supplied]
―22. ......The provisions of Evidence Act regarding
relevancy of facts notwithstanding, some defence
counsel adopt the strategy of continual
questioning of the prosecutrix as to the details of
the rape. The victim is required to repeat again
and again the details of the rape incident not so
much as to bring out the facts on record or to test
her credibility but to test her story for
inconsistencies with a view to attempt to twist the
interpretation of events given by her so as to make
them appear inconsistent with her allegations. The
court, therefore, should not sit as a silent spectator
while the victim of crime is being cross-examined
by the defence. It must effectively control the
recording of evidence in the court. While every
latitude should be given to the accused to test the
veracity of the prosecutrix and the credibility of
her version through cross-examination, the court
must also ensure that cross-examination is not
made a means of harassment or causing
humiliation to the victim of crime. A victim of rape,
it must be remembered, has already undergone a
traumatic experience and if she is made to repeat
again and again, in unfamiliar surroundings what
she had been subjected to, she may be too
ashamed and even nervous or confused to speak
and her silence or a confused stray sentence may
be wrongly interpreted as ―discrepancies and
contradictions‖ in her evidence.‖
41. Thus in the case of State of Punjab (supra), the Apex Court
has observed that the court should be sensitive while dealing
with a case involving sexual molestation. Rape is not merely a
physical assault, it is often destructive of the whole personality
of the victim. A word of caution has come to ensure that
during cross-examination when the victim is required to repeat
again and again the details of the rape incident, the Court
should not sit as a silent spectator, to allow the victim to be
harassed, humiliated, while she is asked to repeat her
traumatic experience. In the same vein the Apex Court has
also held that every latitude should be given to the accused to
test the veracity of the prosecutrix and the credibility of her
version through cross-examination.
42. Applying the settled position of law to the facts herein, it is
seen that the SDM before whom the statement of the victim
was recorded, had observed that the victim was not in a fit
state of mind nor was she capable of giving rational answers
to the questions put to her. The observation of the SDM is
contained in Ex.PW7/B.
43. It would be relevant herein to reproduce Section 118 of the
Evidence Act. The same reads as under:
―All persons shall be competent to testify unless
the Court considers that they are prevented from
understanding the questions put to them, or from
giving rational answers to those questions, by
tender years, extreme old age, disease, whether of
body or mind, or any other cause of the same kind.
Explanation- A lunatic is not incompetent to testify,
unless he is prevented by his lunacy from
understanding the questions put to him and giving
rational answers to them.
44. Section 118 of the Evidence Act envisages that all persons
shall be competent to testify, unless the Court considers that
they are prevented from understanding the questions put to
them or from giving rational answers to these questions,
because of tender years, extreme old age, disease - whether
of mind, or any other cause of the same kind. It has been held
in the case of Siddhapal Kamala Yadav Vs. State of
Maharashtra reported at (2009) 1 SCC 124 that, ―there
are four kinds of persons who may be said to be non compos
mentis (not of sound mind), i.e., (1) an idiot; (2) one made non
compos by illness (3) a lunatic or a mad man and (4) one who
is drunk. An idiot is one who is of non-sane memory from his
birth, by a perpetual infirmity, without lucid intervals; and
those are said to be idiots who cannot count twenty, or tell the
days of the week, or who do not know their fathers or mothers,
or the like, (Archbold's Criminal Pleadings, Evidence and
Practice, 35th Edn. pp. 31-32; Russell on Crimes and
Misdemeanors, 12th Edn. Vol., p. 105; 1 Hala's Pleas of the
Grown 34). A person made non compos mentis by illness is
excused in criminal cases from such acts as are - committed
while under the influence of his disorder, (1 Hale PC 30). A
lunatic is one who is afflicted by mental disorder only at
certain periods and vicissitudes, having intervals of reason,
(Russell, 12 Edn. Vol. 1, p. 103; Hale PC 31). Madness is
permanent. Lunacy and madness are spoken of as acquired
insanity, and idiocy as natural insanity.‖
45. In the present case, the Institute of Human Behaviour and
Allied Sciences has stated that patient (victim) D/o Shri Sat Pal
was examined in the hospital and found to be suffering from
Mental Retardation which is probably present since birth and is
untreatable. To satisfy its conscience, the trial Court had put
some questions to the victim to verify whether the victim was
competent to give rational answers or not, and after finding
that the victim was competent to understand the nature of
questions put to her and the rational answers given thereto,
the trial Court went on to record the evidence of the victim.
Relevant portion of the evidence of the victim is reproduced
hereunder:
―Q. Why did you come in the court today?
A. I came to Court alongwith my mother to
depose against Uncle and witness pointed
towards the accused.
In the above reply to the witness the court is
satisfied as the witness is competent to make her
statement in the court therefore her statement is
recorded.
Accused/ Uncle present in court today had
committed Galat Kaam with me. He has committed
Galat Kaam for long back.
xxxxxxxxxxxx by Sh.N.K. Tyagi, advocate for
accused Maruti.
My father did not tell me to tell the court about
the Galat Kaam I have deposed myself about this
today in the court. My mother did not tell me to say
about Galat Kaam Vll. Said Papa. My marriage was
solemnized but I deserted by my husband, as my
husband had got another marriage. ‗Mere Pati Ne
Dusri Shadi Kar Lee'. Police interrogated me.‖
46. Reading of the evidence of the victim would show that she was
not prevented by her illness from understanding the questions
put to her, as she has stated that the appellant had committed
―Galat Kaam‖. The assertion made by the victim is categorical
that the appellant did wrongful act with her. She has withstood
the cross-examination and in fact has rightly narrated that her
mother or father did not coach her to depose in court. She
correctly narrated that she was married but was deserted by
her husband who had re-married. Reading of her evidence
would show that she was not prevented by her illness from
stating that, the appellant had committed ‗Galat Kaam'. In the
case of Tulshidas Kanolkar Vs. State of Goa reported at
(2003) 8 SCC 590, involving ravishment of a mentally
challenged girl, the Apex Court took into consideration the fact
that the victim had in her testimony clearly mentioned the
appellant as the culprit and had withstood the cross-
examination, though she was mentally challenged. It was
observed that:
―The case in hand is a classic example when the
baser instincts of the appellant overtook his moral
values and human sensitivity and he ravished the
unsuspecting victim incapable of comprehending
the vicissitudes of the dastardly act, not once, but
several times. So innocent was the victim that she
was not even aware of the dreadful consequences.
The mental faculties of the victim were
undeveloped and her Intelligence Quotient (in
short ―IQ‖) was not even 1/3rd of what a normal
person has. Tragedy struck on the victim
sometime in 1999, when the parents of the victim
noticed that her legs were swollen and there were
signs of advanced stage of pregnancy. They were
shocked beyond limits. They asked the victim as to
who was responsible for her pregnancy. She in her
own way pointed out accusing fingers at the
appellant and said that on some pretext or the
other, he ravished her.
6. Non-examination of some persons per se does
not corrode the vitality of the prosecution version,
particularly when the prosecutrix has,
notwithstanding her mental deficiencies, withstood
incisive cross- examination and pointed to the
appellant as the perpetrator of the crime.‖
47. The evidence of the victim is reliable and is also corroborated
by the evidence of her mother. The complainant (mother of
the victim) who is the eye witness to the occurrence, has in
clear terms narrated in her evidence as to what she saw when
she entered the Jhuggi of the appellant in search of her
daughter. The mother of the victim has unerringly identified the
appellant and stated that while searching for her daughter,
when she pushed open the curtain of the jhuggi of Maruti,
appellant, she saw her daughter (victim) was lying on a palang
in the said jhuggi and her legs were down from the palang and
her salwar had also been put off upto knees. Maruti (appellant)
was not having baniyan and kacha on his person and he was
over her daughter. After seeing her, he immediately separated
from her daughter and put a towel around him. She then called
three-five persons from the neighbourhood and told them that
appellant, Maruti was lying naked on her daughter. Thereafter,
she went to the police station to lodge a report. The
complainant has been consistent in her testimony given at the
time of lodging the FIR and before the Court. This witness has
also withstood the cross-examination and pointed to the
appellant as the person responsible for raping her
daughter. It is trite law that merely because the evidence has
been given by a close relative of the victim, it does not
automatically imply that their version is to be discarded.
Evidence of partisan and interested witnesses can be the sole
basis of conviction, however, a duty is cast upon the Court to
carefully scrutinize the evidence and satisfy itself that such
evidence is reliable and trustworthy. This Court in
Crl.A.No.470/2003, Harish Vs. The State, has set out the law
laid down by the Apex Court while dealing with the evidence of
an interested witness.
"41. It has been consistently held by the Apex
Court that Courts must be cautious and careful while
weighing such evidence given by witnesses who are
partisan or interested, but such evidence should not
be mechanically discarded. It will be useful to refer to
the judgment of Masalti Vs. State of Uttar
Pradesh, reported at AIR 1965 Supreme Court 202,
relevant portion of which is reproduced below:-
"14. Mr.Sawhney has then argued that
where witnesses giving evidence in a
murder trial like the present are shown
to belong to the faction of victims, their
evidence should not be accepted,
because they are prone to involve
falsely members of the rival faction out
of enmity and partisan feeling. There is
no doubt that when a criminal court has
to appreciate evidence given by
witnesses who are partisan or
interested, it has to be very careful in
weighing such evidence. Whether or not
there are discrepancies in the evidence;
whether or not evidence strikes the
court as genuine whether or not the
story disclosed by the evidence is
probable, are all matters which must be
taken into account. But it would, we
think, be unreasonable to contend that
evidence given by witnesses should be
discarded only on the ground that it is
evidence of partisan or interested
witnesses; Often enough, where factions
prevail in villages and murders are
committed as a result of enmity
between such factions, criminal courts
have to deal with evidence of a partisan
type. The mechanical rejection of such
evidence on the sole ground that it is
partisan would invariably lead to, failure
of justice. No hard and fast rule can be
laid down as to how much evidence
should be appreciated. Judicial approach
has to be cautious in dealing with such
evidence; but the plea that such
evidence should be rejected because it
is partisan cannot be accepted as
correct."
42. Similar view has also been expressed in the
case of State of Punjab Vs. Karnail Singh,
reported at AIR 2003 (90) Supreme Court
3613.
8. We may also observe that the ground
that the witnesses being close relatives and
consequently being partisan witnesses,
should not be relied upon, has no substance.
This theory was repelled by this Court as
early as in Dalip Singh and others v. The
State of Punjab (AIR 1953 SC 364) in which
surprise was expressed over the impression
which prevailed in the minds of the Members
of the Bar that relatives were not
independent witnesses. Speaking through
Vivian Bose, J. it was observed:-
"We are unable to agree with the
learned Judges of the High Court that
the testimony of the two eye-witnesses
requires corroboration. If the
foundation for such an observation is
based on the fact that the witnesses
are women and that the fate of seven
men hangs on their testimony, we
know of no such rule. If it is grounded
on the reason that they are closely
related to the deceased we are unable
to concur. This is a fallacy common to
many criminal cases and one which
another Bench of this Court
endeavoured to dispel in - Rajasthan',
(AIR 1952 SC 54 at p.59). We find,
however, that it unfortunately still
persists, if not in the judgments of the
Courts, at any rate in the arguments of
counsel."
9. Again in Masalte and others v. The
State of U.P. (AIR 1965 SC 202) this Court
observed : (pp. 209-210 para 14):
"But it would, we think, be
unreasonable to contend that evidence
given by witnesses should be
discarded only on the ground that it is
evidence of partisan or interested
witnesses......... The mechanical
rejection of such evidence on the sole
ground that it is partisan would
invariably lead to failure of justice. No
hard and fast rule can be laid down as
to how much evidence should be
appreciated. Judicial approach has to
be cautious in dealing with such
evidence; but the plea that such
evidence should be rejected because it
is partisan cannot be accepted as
correct."
10. To the same effect is the decision in
State of Punjab v. Jagbir Singh, (AIR 1973 SC
2407) and Lehna v. State of Haryana, (2002
(3) SCC 76). As observed by this Court in
State of Rajasthan V. Smt. Kalki and another,
(AIR 1981 SC 1390), normal discrepancies in
evidence are those who are due to normal
errors of observation, normal errors of
memory due to lapse of time, due to mental
disposition such as shock and horror at the
time of occurrence and those are always
there, however, honest and truthful a
witness may be. Material discrepancies are
those who are not normal, and not expected
of a normal person. Courts have to lable the
category to which a discrepancy may be
categorized. While normal discrepancies do
so. These aspects were highlighted in
Krishna Mochi and others v. State of Bihar
etc. (JT 2002 (4) SC 186)."
43. This view has again been reiterated recently
in the case of State of NCT of Delhi Vs. Rani
Kant Sharma & Ors., reported at 2007 (3) JT
501, relevant portion is reproduced below:
11. In some cases persons may not like to
come and depose as witnesses and in some
other cases the prosecution may carry the
impression that their evidence would not
help it as there is likelihood of partisan
approach so far as one of the parties is
concerned. In such a case mere non-
examination would not affect the
prosecution version. But at the same time if
the relatives or interested witnesses are
examined, the court has a duty to analyse
the evidence with deeper scrutiny and then
come to a conclusion as to whether it has a
ring of truth or there is reason for holding
that the evidence was biased. Whenever a
plea is taken that the witness is partisan or
had any hostility towards the accused,
foundation for the same has to be laid. If the
materials show that there is partisan
approach, as indicated above, the court has
to analyse the evidence with care and
caution. Additionally, the accused persons
always have the option of examining the left
out persons as defence witnesses.
44. Again in the case of Manoj Vs. State of
Tamil Nadu, reported at 2007(5) JT 145.
9. In regard to the interestedness of the
witnesses for furthering the prosecution
version, relationship is not a factor to affect
the credibility of a witness. It is more often
than not that a relation would not conceal
the actual culprit and make allegations
against an innocent person. Foundation has
to be laid if a plea of false implication is
made. In such cases, the court has to adopt
a careful approach and analyse evidence to
find out whether it is cogent and credible.
10. In Dalip Singh and Ors. v. The
State of Punjab it has been laid down as
under:-
"A witness is normally to be a
considered independent unless he or
she springs from sources which are
likely to be tainted and that usually
means unless the witness has cause,
such as enmity against the accused, to
wish to implicate him falsely.
Ordinarily a close relation would be the
last to screen the real culprit and
falsely implicate an innocent person. It
is true, when feelings run high and
there is personal cause for enmity,
that there is a tendency to drag in an
innocent person against whom a
witness has a grudge along with the
guilty, but foundation must be laid for
such a criticism and the mere fact of
relationship far from being a
foundation is often a sure guarantee of
truth. However, we are not attempting
any sweeping generalization. Each
case must be judged on its own facts.
Our observations are only made to
combat what is so often put forward in
cases before us as a general rule of
prudence. There is no such general
rue. Each case must be limited to and
be governed by its own facts."
11. The above decision has since been
followed in Guli Chand and Ors. v.State
of Rajasthan in which Vadivelu Thevar v.
State of Madras was also relied upon."
48. Applying the principles laid down by the Apex Court and upon
careful scrutiny of the evidence of the mother of the victim, I
find her evidence to be trustworthy and reliable. I also find no
force in the submission of counsel for the appellant that at
best the evidence of the mother of the victim only suggests an
attempt to rape. In the case of Koppule Venkatarao (Supra),
relied upon by counsel for the appellant the Apex Court has
noticed that the trial court convicted the accused holding that
the victim was subjected to rape by the accused, which
conclusions were upheld by the High Court. Both the Courts
had held that since ejaculation was there, it amounted to rape
and whether actual intercourse was there is immaterial,
ejaculation being the ultimate act of sexual intercourse. While
there is no quarrel with the proposition that the sine qua non
of the offence of rape is penetration but the aforesaid
judgment is not applicable to the facts of the present case, as
the statement made by the prosecutrix as well as the mother
of the victim who had seen the appellant lying naked on the
top of the prosecutrix and had described his act as a ―Galat
Kaam‖. The statement of the mother of the victim is fully
corroborated by the scientific evidence, according to which
human semen was detected on the microslides of the vaginal
swab as well as the salwar of the victim and underwear of the
appellant. Thus it cannot be said that there was no
penetration in this case.
49. Although the victim and her mother have clearly stated that
the appellant was responsible for the disparaging act of raping
the victim and a bare reading of the evidence of the defence
witnesses clearly establishes that the appellant was present in
his Jhuggi at the time of the incident, so much so that DW-1
has stated that she heard Bedo say that the appellant had
committed Galat Kaam, it has been contended before me that
the prosecution did not examine all the persons at the spot of
the incident. This argument is without force, in asmuch as, if
the defence could examine five persons, it was open for them
to have got examined others present at the spot of the
incident as well. Further I have also considered the medical
and scientific evidence placed on record. Though the MLC of
the victim shows that there was no fresh injury on her body or
even on her vulva or breast and the hymen which was
ruptured had old tears, the same does not imply that no rape
was committed. In fact, the scientific evidence in this case
convincingly points against the appellant. It is of significance
in this case, that the underwear of the appellant, salwar of the
victim, and two micro slides of vaginal swabs of the victim
were sent for chemical examination to the Forensic Science
Laboratory (FSL). The analysis of the FSL is reproduced
hereunder:
―DESCRIPTION OF ARTICLES CONTAINED IN PARCEL
Parcel ‗1' : One cloth parcel sealed with the seal of
―CMO SDN HOSPITAL AT SHAHDARA‖
containing Exhibits ‗1a' and ‗1b'.
Exhibits ‗1a'
and ‗1b' : Two microslides having faint whitish
smear.
Parcel ‗2' : One cloth parcel sealed with the seal of
―CMO SDN HOSPITAL SHAHDARA‖
containing Exhibit ‗2'.
Exhibit ‗2' : One salwar having dirty stains.
Parcel ‗3' : One cloth parcel sealed with the seal of
―CMO SDN HOSPITAL SHAHDARA‖
containing Exhibit ‗3'.
Parcel ‗3' : One underwear having dirty stains.
RESULTS OF ANALYSIS
1. Blood was detected on exhibit ‗3'
2. Human semen was detected on exhibits ‗1a', ‗1b', ‗2'
and ‗3'.
3. Blood could not be detected on exhibit ‗2'.
4. Report of serological analysis in original is attached
herewith.
Note: Remnants of the exhibits have been sealed with the
seal of AKS FSL DELHI.
Sd/-‖
50. It has been contended before me that there was delay in
sending the samples to FSL and that the same goes to
discredit the case of the prosecution. While there was delay in
sending the seized articles to the laboratory, which should
have been sent to the Laboratory at the earliest, however, in
my considered opinion, the delay is not fatal to the facts of
this case. As per PW-5, Dr. Kalpana, the vaginal swabs of the
victim were taken, slides made were sealed with the seal of
the hospital and handed over to the lady police Constable.
The salwar was also sealed and the sealed parcels were taken
vide Memo Exhibit PW-6/E and P. As per the evidence of PW-
10, Dr. A.K. Saini, the undergarments of the appellant were
sealed with the seal of the hospital and handed over to
Constable Khem Chand. PW-6, SI Puran Chand, has deposed
that lady Constable Arti and Constable Khem Chand came to
the police station along with MLC of the victim as well as the
appellant. He further deposed that Ct. Khen Chand also
produced a sealed parcel duly sealed with the seal of the
hospital and that Ct. Arti also produced before him a sealed
pulanda duly sealed with the seal of the hospital. No question
was put to this witness (PW-6) during cross-examination with
regard to when the sealed parcels were sent to the laboratory.
Evidence of PW-8, Constable Khem Chand and PW-9,
Constable Arti Gupta have also been corroborated by the
evidence of PW-6, SI Puran Chand who deposed that one
pullanda along with sample seal of the hospital were handed
over. Furthermore, PW-11, SI Suraj Pal, has deposed that he
had prepared the final report under Section 173 of the Cr.P.C.,
however, at that time the exhibits of the case were not sent to
the CFSL as the required letter from the DCP's office had not
been received. His further examination was adjourned as the
CFSL results had not been placed on the file. This witness was
examined subsequently and he deposed that the exhibits of
the case were sent to the FSL and reports were later received,
which are Exhibit P-X and P-Y. This witness was not cross-
examined by the counsel for the appellant. Reading of
evidence of the Doctors (PW-5 and PW-10) would show that
the vaginal swab and the undergarments were duly sealed by
them with the seal of the hospital and handed over to the
police Constable. Ct. Khem Chand and Ct. Arti Gupta have
deposed that they received the sealed pulandas which were
handed over by them to the I.O. SI Puran Chand has deposed
that he has received the sealed pulandas. I find that the
learned counsel for the appellant has not cross-examined any
of these witnesses on the aspect of tampering of the seized
articles. No doubt once the articles were sealed the same
should have been sent to the FSL as expeditiously as possible.
It has been established on record that the articles were duly
sealed by the Doctor and handed over to the Constables who
in turn handed them over to the I.O. Mere delay cannot lead
to the conclusion of tampering. But considering the evidence
on record there is nothing to suggest that the seized articles
were tampered with. The FSL report beyond doubt establishes
the dastardly act committed by the appellant. As per the FSL
report, semen was found on the salwar of the victim as well as
on the underwear of the appellant, so much so that semen
found on both the exhibits (salwar and underwear) was of
Group A. Even the microslides (vaginal swabs of the victim)
were found to have contained semen.
51. In view of the statement made by the victim, who despite her
ill-developed mental faculties has pointed out against the
appellant as the person who raped her; the evidence led by
the mother of the victim, who was an eye witness to the
incident, and caught the appellant red-handed; and the
medical and scientific evidence which establishes the
presence of semen on the salwar of the victim, vaginal swabs
of the victim and the underwear of the appellant and thus
convincingly corroborate the case of the prosecution. The
Court cannot lose track of the fact that in the Indian social
system no woman much less a mother would implicate her
daughter at the cost of sacrificing the future prospects of her
daughter by making a false allegation of rape. The Supreme
Court has observed as under in the case of Vishnu V. State
of Maharashtra, reported at (2006) 1 SCC 283 and given an
indication of the conditions prevailing in our society, which we
need to keep in the back of our mind when examining the
correctness or otherwise of the testimony of a prosecutrix in a
rape case. This is what the Supreme Court has said:
―In the traditional non-permissive bounds of society of
India, no girl or woman of self-respect and dignity would
depose falsely, implicating somebody of ravishing her
chastity by sacrificing and jeopardizing future prospects
of getting married with a suitable match. Not only would
she be sacrificing her future prospect of getting married
and having family life, but also would invite the wrath of
being ostracised and cast out from the society she
belongs to and also from her family circle."
52. Accordingly, I find no infirmity in the judgment dated 19.09.2000
and order on sentence dated 23.09.2000, passed by the learned
ASJ, Delhi, in case FIR No. 134/99, PS Kalyan Puri, under section
376, IPC.
53. Sh. Aman Ahluwalia, who was appointed as an amicus curiae has
laboured hard and has rendered effective assistance to the
court. The hard work and effort put in are highly appreciated.
His fee is fixed at Rs.11,000/-.
54. The present appeal is dismissed. In case the appellant is on bail,
he is directed to surrender forthwith and he be taken into
custody to undergo the remaining term of his sentence.
(G.S. SISTANI)
JUDGE
July 01 , 2009
‗ssn'
