Shri Kishan Poddar vs The State (Govt. Of Nct Delhi)
2009 Latest Caselaw 844 Del

*                      HIGH COURT OF DELHI : NEW DELHI

              Judgment reserved on : March 03, 2009
              Judgment delivered on : March 17, 2009

+                          Crl. A. No. 452/2006

%      Shri Kishan Poddar                           ...  Appellant
                  Through:     Mr. Arun Shrivastava, Advocate

                                 versus

       The State (Govt. of NCT Delhi)                ...
       Respondent
                  Through: Mr. Amit Sharma, 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 has been convicted and sentenced

by the trial court for having forcible sexual intercourse with the

prosecutrix (PW-1) in the computer room of factory at B-22/3,

Okhla Phase II, New Delhi, on 5th August 2004, at 11.30 AM.

2. In nutshell the prosecution case, as unfolded by the

Respondent - State, is that the prosecutrix (PW-1) was working as

a 'checker' in the above said factory for the last three years and

in the morning of 5th August 2004, at about 11.30 AM, prosecutrix

had gone to the computer room of the said factory, which was on Crl. A. No. 452/2006 Page 1 the second floor to take her water bottle and Appellant/accused

who was on helper duty in the said factory, caught hold of her

inside the computer room and had forcible sexual intercourse

with her and thereafter, he fled away from there. Prosecutrix had

candidly stated in her initial statement Ex. PW-1/A, which is the

basis of the FIR, that she had not told about this incident to her

husband on the day of the incident and had not gone for a

medical examination and she had disclosed about this incident to

her husband after few days of this incident and this matter was

reported to the police, and she was got medically examined.

Action on her complaint was taken and the FIR of this case was

registered and Appellant/accused was arrested in this case and

he was also got medically examined and after completion of

investigation, charge sheet under Section 376 of the Indian Penal

Code was filed against the Appellant/accused.

3. Trial began as Appellant/accused did not plead guilty to the

charge under Section 376 of Indian Penal Code framed against

him in this case.

4. Out of the eight witnesses, examined at trial, the crucial

evidence is of prosecutrix (PW-1), and of Investigating Officers

(PW-6 and PW-8). The medical evidence is of Dr. Charu (PW-7)

and Dr. M.G. Jayan (PW-4). The stand of the Appellant/accused

before the trial court, in his statement under Section 313 Cr. P.C.,

was of false implication and of denial of any such incident taking

Crl. A. No. 452/2006 Page 2 place as alleged by the prosecution and of prosecutrix (PW-1)

wanting to extort money from the owner of the factory, where

Appellant/accused as well as the prosecutrix were working. The

solitary evidence led in defence by the Appellant/accused is of a

co-worker Kamal Singh (DW-1), who has for the first time, come

out with the story of the Appellant/accused rebuking the

prosecutrix (PW-1), about five or six days prior to the lodging of

the FIR in question, on the pretext of prosecutrix (PW-1), spoiling

a piece of garment. Although, the Appellant/accused has not

denied that he was not a helper in the factory, as stated by the

prosecutrix, (PW-1), but the defence witness claims for the first

time that the Appellant/accused was supervisor in the said

factory.

5. Upon conclusion of the trial, vide impugned judgment of 9th

May 2006, trial court has held the Appellant/accused guilty for

the commission of offence punishable under Section 376 Indian

Penal Code and vide its order on sentenced of 15th May 2006, has

sentence the Appellant to undergo rigorous imprisonment for a

period of seven years and to pay a fine of Rs.500/- for the offence

committed by him, which is punishable under Section 376 of

Indian Penal Code. Hence this appeal.

6. Learned counsel for both the sides have made their

submissions and have assisted this court in perusing the

evidence on record.

Crl. A. No. 452/2006 Page 3

7. Learned counsel for the Appellant contends that the alleged

incident is of 5th August 2004, whereas the FIR in this case has

been registered on 12th August 2004 and thus, there is a delay of

one week, which goes against the prosecution. It is submitted

that the initial case of the prosecutrix was that she was raped by

the Appellant/accused but in her evidence, she had improved

upon her version by stating that there were two co-accused of

the Appellant/accused, who had assisted him in committing the

offence in question. It is pointed out that in the First Information

Report, it is stated that she had gone to the computer room of

the factory to take her water bottle, whereas in her evidence, she

has stated she was called by the Appellant/accused for the ESI

card. It is also pointed out that the prosecutrix in her evidence, at

one place claims that she had informed her husband on the day

of occurrence itself but at another place, she had stated that she

had told her husband about her being raped by the

Appellant/accused after two days of this incident, when her

husband had come back from Faridabad, where he used to work.

It has been submitted on behalf of the Appellant/accused that the

husband of the prosecutrix has not been got examined in this

case and the MLC of the prosecutrix does not corroborate her

version of being subjected to rape. According to the

Appellant/accused, prosecutrix has falsely implicated him as she

wanted to extort money from the owner of the factory. Lastly, it

is submitted on behalf of the Appellant that the prosecution case

Crl. A. No. 452/2006 Page 4 is contradictory and unreliable and the conviction of the

Appellant/accused is illegal and it deserves to be set aside and

Appellant/accused ought to be acquitted. Nothing else has been

urged on behalf of the Appellant/accused.

8. Learned Additional Public Prosecutor for the State supports

the impugned judgment and sentence, imposed upon the

Appellant/accused and submits that the delay in lodging of the

FIR stands explained from the fact that the prosecutrix was

misled by ASI Pritam from PCR, who had come at the spot after

prosecutrix had made a phone call at Phone No.100 and ASI

Pritam threatened the prosecutrix not to tell about this incident

to anyone, otherwise, her husband would turn her out of his

house. It is pointed out that it has come in the evidence of

prosecutrix that after this incident, she had fallen ill and when her

husband had come from outstation, she had informed him and

thereafter, this matter was reported to the local police and thus

the delay stands explained. It is submitted that the prosecutrix

had no reason to falsely implicate the Appellant/accused and the

plea of consent now taken by him cannot be made out from the

evidence of the prosecutrix, nor it has been suggested to her by

the defence in her cross-examination. Thus, it is submitted that

the conviction and the sentence imposed upon the

Appellant/accused is just and proper and this appeal lacks merit

and deserves dismissal.

Crl. A. No. 452/2006 Page 5

9. Prosecutrix (PW-1) is a married woman and her evidence

has to be appreciated in the light of the pertinent observations

made by the Apex Court in the case of 'Om Prakash V State of

Uttar Pradesh', AIR 2006 SC 2214, which are as follows:-

"The Indian women has tendency to conceal such offence (of rape) because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after staking her own prestige and honour."

10. The delay aspect has to be considered in the light of the

aforesaid observations made by the Apex Court. When the

prosecutrix (PW-1) asserts that she was misled by ASI Pritam

PCR, and that after this incident, she had remained ill for six-

seven days, there has to be some plausible reason to disbelieve

her as she would not readily come forward to stake her honour to

falsely implicate the Appellant/accused who was working as a

helper in the factory where the prosecutrix was working as a

checker. Prosecutrix is an illiterate lady. She has stated in her in

evidence that she had disclosed about this incident to her

husband in the evening but she does not state that the said

evening was of the day of incident. In the next line, she had

Crl. A. No. 452/2006 Page 6 stated that for medical examination, she was taken by her

husband but she had clarified that she was taken to hospital on

Monday and she had disclosed about this incident to her husband

on Saturday. It has not been brought out from the cross-

examination of prosecutrix clearly, as to the day of the incident

was Saturday or some other day. In any case, the delay in

lodging of the FIR stands explained by the fact that the

prosecutrix was not well for about five or six days after this

incident. Apart from this, she was under threat from one ASI

Pritam from PCR. Whether she had disclosed about this incident

to her husband on the day of incident itself or after two days of

this incident would not matter much because the plea of the

Appellant/accused before the trial court as well as before this

court is of prosecutrix being a consenting party to the sexual

intercourse with her by the Appellant/accused. In this

background, non-examination of the husband of the prosecutrix

also loses its significance. Likewise, the purpose for which the

prosecutrix came to the computer room of the factory in question

is also not of much importance.

11. Since this court has found that the delay in lodging in FIR is

not fatal to the prosecution case, therefore, now the plea of

consent put forward by the Appellant/accused has to be tested.

The medical evidence in this case would not be of much avail as

the medical examination of the prosecutrix was conducted after a

Crl. A. No. 452/2006 Page 7 week of this incident. However, the MLC, Ex. PW-7/A, of the

prosecutrix corroborates the version of the prosecutrix as the

alleged history contained therein reveals that the prosecutrix had

disclosed to the doctor that she was raped by the

Appellant/accused, whose name has been specifically given and

is noted in the alleged history in MLC, Ex. PW-7/A.

12. Although the plea of consent has not been specifically taken

by the Appellant/accused in his statement under Section 313 Cr.

P.C. nor it has been so suggested to the prosecutrix in cross-

examination by the defence, still the evidence of the prosecutrix

(PW-1) has been carefully scanned, to find out if from her

narration, it could be made out that she was a consenting party

to the sexual intercourse with the Appellant/accused.

13. I am of the considered view that the testimony of the

prosecutrix (PW-1) does not in any way reflect that she had

consented to the sexual intercourse with the Appellant/accused.

She has categorically stated in her evidence that she was forcibly

raped by Appellant/accused and this had been her initial version

as contained in her statement Ex. PW-1/A which is the basis of

the FIR in question.

14. The plea of consent is not borne out from the evidence of

the prosecutrix (PW-1). Rather, the plea of Appellant/accused in

his statement under Section 313 Cr. P.C. was of prosecutrix

wanting to extort money from the owner of the factory. This is Crl. A. No. 452/2006 Page 8 hardly the reason for prosecutrix (PW-1) to falsely implicate the

Appellant/accused. Rather, the defence led is that a week prior to

the lodging of the FIR, Appellant/accused had rebuked the

prosecutrix as she had spoiled some piece of garment. However,

there is nothing on record to support the aforesaid plea and to

show that the Appellant/accused was a supervisor in the factory

and was in a position to rebuke the prosecutrix. In fact, the case

of the prosecutrix is that the Appellant/accused was a helper in

the said factory. The defence evidence does not advance the

case of the Appellant/accused in any manner whatsoever.

15. In the face of the evidence on record, I find that the

conviction of the Appellant/accused in this case is well merited

and the sentence of rigorous imprisonment for a period of seven

years imposed upon him is the minimum sentence, as provided,

and there are no special or adequate reasons to award lesser

than the minimum sentence, as provided under the law.

This appeal is bereft of merit and is dismissed as such.

Sunil Gaur, J.

March 17, 2009
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Crl. A. No. 452/2006                                             Page 9