Narender Kumar vs The State (Nct Of Delhi)
2009 Latest Caselaw 979 Del

*                    HIGH COURT OF DELHI : NEW DELHI

           Judgment reserved on : March 19, 2009
           Judgment delivered on : March 25, 2009


+                        Crl. A. No.53/2000 &
                      Crl. M.A. No. 6749/2008

        Narender Kumar                             ...  Appellant
                               Through: Mr. R.P. Khatana,
                                        Advocate

                                     versus

        The State (NCT of Delhi)            ... Respondent
                            Through: Mr. Amit Sharma,
                             Additional 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 7th

December, 1999, and the sentence of rigorous imprisonment of

seven years with fine of Rs.2,000/- imposed upon him for the offence

under Section 376 of the IPC, vide impugned order of 8th December,

1999.

Crl. A.No. 53/2000 Page 1

2. The factual backdrop of this case is that on 16th September

1998, at about 8 PM, prosecutrix (PW-1) was going via Press

Enclave Road, towards Chirag Delhi, where her husband used to

work and on the way, near 'ganda nala', Appellant/accused followed

her and dragged her towards nearby bushes and told her that she

complains against him to the police and today, he would teach her a

lesson and, thereafter, despite resistance by the prosecutrix, he

forcibly had sexual intercourse with her and in the process, her

salwar was torn and out of fear, she did not raise an alarm but she

had abused the Appellant. After this incident, prosecutrix went to her

husband who took her to the police, where on her Complaint Ex. PW-

1/A, FIR of this case was registered. Prosecutrix was got medically

examined and during the course of the investigation of this case,

Appellant/accused was arrested and was got medically examined and

after completion of the investigation, appellant was charge sheeted

for committing the offence of rape upon the prosecutrix of this case.

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

the charge of rape framed against him by the trial court. Out of the

eleven witnesses examined at trial, the important witnesses are

prosecutrix (PW-1) and her husband (PW-3). Apart from the medical

evidence of the doctors (PW-7) and (PW-9), there is evidence of SI

Lekh Raj (PW-6) and SI R.N. Chaudhary (PW-11), who had

conducted the investigation in this case.

Crl. A.No. 53/2000 Page 2

4. Appellant/accused in his statement under Section 313 Cr. P.C.

recorded by the trial court, has denied the prosecution case and had

stated as under:-

"I was having good relations with the family of the prosecutrix and we were staying in the same village. The prosecutrix desired to keep me in her house, to which I refused and for that reason, this false case has been planted on me. I am innocent and I have been falsely implicated in this case by police at the instance of the prosecutrix and her husband as I did not accept the proposal of the prosecutrix to live in her house and her husband has also given severe beatings to the prosecutrix on that account."

5. The two witnesses who were got examined by the Appellant in

his defence have supported the aforesaid version of the

Appellant/accused.

6. Upon conclusion of the trial, Appellant was convicted for raping

the prosecutrix and was sentenced to Rigorous imprisonment for

seven years and to fine of Rs.2,000/-, which is under challenge in this

appeal.

7. Both the sides have advanced their respective submissions and

have referred to the evidence on record.

8. Appellant alleges false implication in this case and it has been

submitted on behalf of the Appellant that the prosecution case of Crl. A.No. 53/2000 Page 3 Appellant, having forcible sexual intercourse with the prosecutrix, is

altogether improbable, as the Appellant was then aged eighteen

years and prosecutrix was a married lady of 32 years, having three

grown up children. Learned counsel for appellant points out that the

medical evidence does not support the prosecution version and

although the sample blood of the Appellant was taken, but it was not

sent to the FSL for determination of the blood group and had it been

done, then it would have conclusively proved the innocence of the

Appellant, as the blood found on the clothes of the prosecutrix is of

AB group, whereas the blood group of the Appellant is 'O+'.

Belatedly, an application has been filed in this appeal to get the blood

group of the Appellant determined. Lastly, it is urged on behalf of the

Appellant that there is evidence of two defence witnesses to show

that the prosecutrix was a lady of loose character and she used to

seduce young boys for sexual intercourse and thereafter, used to

take money from them and the Appellant being a neighbour used to

visit the prosecutrix and this was not liked by her husband and

therefore, Appellant has been falsely implicated in this case. Thus, it

is submitted that the conviction of the Appellant is bad in law and

therefore, it deserves to be set aside.

9. On behalf of the State, it is pointed out that to teach a lesson to

the prosecutrix for making complaint to the police against the

Appellant, she was raped by the Appellant in the bushes near the Crl. A.No. 53/2000 Page 4 'ganda nala'. It is submitted that the evidence of the prosecutrix has

been rightly relied upon by the trial court to convict the appellant and

the defence plea is an afterthought, which has been rightly discarded

by the trial court. Thus, it was asserted by learned Additional Public

Prosecutor for the State that there is no merit in this appeal.

10. The prosecution case rests upon the testimony of the

prosecutrix (PW-1) who is a married lady and her testimony

has to be appreciated in the light of the observations made

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

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

"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".

11. As per the version of the prosecutrix (PW-1), she was a

domestic servant, who, after finishing her work, was going to her

husband and on the way, Appellant/accused is said to have raped her

Crl. A.No. 53/2000 Page 5 in the bushes nearby 'ganda nala', to teach her a lesson for

complaining against him to the police.

12. To test the case of the Appellant, cross-examination of the

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

the motive put forth by the prosecutrix (PW-1) for the Appellant to

have raped her, of teaching her a lesson to have complained against

the Appellant to police, remains unchallenged. The suggestion put by

the defence to the prosecutrix (PW-1), was of false implication due to

previous enmity, as Appellant was living in her house one year prior

to this incident.

13. Defence wants this court to believe that the prosecutrix (PW-1)

was a person of loose character. Whatever has been stated by the

defence witnesses is obviously an afterthought as the same has not

been suggested to prosecutrix (PW-1) in her cross-examination by

the defence.

14. In the grounds of appeal, it has been stated that the Appellant

and prosecutrix were close neighbours and were intimate with each

other and the prosecutrix had been calling the Appellant/accused to

her house on several occasions prior to this incident. What is being

stated is that the prosecutrix was the consenting party.

15. On the one hand, the Appellant/accused claims that it was a

case of consent, whereas on the other hand, he alleges false Crl. A.No. 53/2000 Page 6 implication. After having carefully gone through the evidence of the

prosecutrix (PW-1), I find that her version of being raped in the

bushes near the 'ganda nala' at 8 PM at night to teach her a lesson

for making complaint against the Appellant/accused to the police,

inspires confidence and the plea of the Appellant/accused of consent

or false implication, does not appeal to reason and it is found that the

defence plea is highly improbable and the same has been rightly

rejected by the trial court.

16. The position in law is quite well settled regarding there being no

requirement of corroboration to the testimony of the prosecutrix, if it is

found to be reliable. Since, I have already concluded above that there

are no good reasons to discard the testimony of the prosecutrix (PW-

1), medical evidence need not be insisted upon. Still, I have noticed

that as per the evidence of Dr. Nisha (PW-9), who had medically

examined the prosecutrix, that she (PW-9) had found the clothes of

the prosecutrix were torn and there were nail marks on her breast. It

is difficult to say, whether those nail marks could be self inflicted. Dr.

Nisha may not have ruled out the possibility, but it cannot be so

inferred because it is not so suggested to the prosecutrix by the

defence. As per FSL report, Ex. PW-11/D blood mixed with semen

stains were found on the clothes of the prosecutrix. Appellant cannot

get away by now belatedly claiming that his blood group is 'O+'. As

Crl. A.No. 53/2000 Page 7 per the aforesaid FSL report, human semen was not only detected on

the clothes of the prosecutrix, but also in the vaginal slides of the

prosecutrix. A half hearted attempt has been made on behalf of the

Appellant/accused to contend that the said human semen found in

the vaginal slides of the prosecutrix could be of her husband.

Unfortunately, no such suggestion has been given to the prosecutrix

(PW-1) by the defence in her cross-examination, nor it has been

brought out in the cross-examination of the prosecutrix (PW-1) and

her husband by the defence. Furthermore, 'AB' grouping of the blood

found on the clothes of the prosecutrix, would not per se indicate that

the aforesaid blood was of the culprit. Possibly, it being of the

prosecutrix (PW-1), cannot be ruled out. It is factually incorrect that

the sample blood of the appellant was not sent for analysis. In fact,

appellant's blood sample had putrefied and so its grouping could not

be determined. In any case, this aspect loses its significance, for the

reason that before this court, the plea of consent has not been put

across, which cannot be accepted in the face of the evidence of the

prosecutrix (PW-1).

17. In the ultimate analysis, I find the prosecution case to be

consistent and reliable and the conviction of the Appellant/accused to

be just and proper and there is no illegality or infirmity in the

impugned judgment and order of conviction.

Crl. A.No. 53/2000 Page 8

18. This appeal lacks merits and deserves to be dismissed. It is

accordingly dismissed. The pending application also stands

dismissed.

19. Appellant/accused is on bail. His bail bonds are cancelled and

he is directed to surrender forthwith to serve out remainder of the

sentence. Trial court is directed to ensure that the Appellant/accused

is taken back in custody to serve out the remainder of the sentence

as awarded to him.

20. With aforesaid directions, this appeal is disposed of.

SUNIL GAUR, J.

March 25, 2009
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Crl. A.No. 53/2000                                                      Page 9