Mahesh vs State
2009 Latest Caselaw 2171 Del

                    HIGH COURT OF DELHI : NEW DELHI

                  Judgment reserved on: May 06, 2009
                  Judgment delivered on: May 20, 2009

+                            Crl. Appeal No. 82 of 2000

%         Mahesh                                ...        Appellant
                             Through: Mr. K.B. Andley, Senior Advocate
                                      with Mr. M.L. Yadav, Advocate.

                                       versus

          State                                 ...        Respondent
                             Through: Mr. Amit Sharma, Additional
                                      Public Prosecutor for the 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, conviction of the appellant for the

offence of rape has been assailed. A decade ago,

appellant was aged about eighteen years and had

allegedly raped his cousin sister, aged about fifteen years.

It is said that the marriage of a relative, was attended by

the prosecutrix (PW-10) alongwith her sister (PW-11) and

appellant was also present there. Birth certificate of

prosecutrix is Ex.PW-15/A.

Crl. Appeal No. 82 of 2000 Page 1

2. In the night intervening 8th and 9th May 1998,

marriage ceremonies were going on, while prosecutrix and

her sister and some relations were present in the room

where prosecutrix with her sister were sleeping on the

double bed whereas appellant/accused with other children

was sleeping on the floor. According to the Prosecutrix

(PW-10), she was raped by the appellant/accused at the

point of some pointed object and after this incident, she

had told her mother (PW-4) about it.

3. Efforts to hush up this incident were made by the

family members due to close relations between the family

of the appellant/accused and that of the prosecutrix.

However, Prosecutrix (PW-10) was taken to the hospital.

Upon the statement of the Prosecutrix (PW-10), the law

was set into motion in this case and the appellant/accused

was arrested and he was also got medically examined and

after completion of the investigation, appellant/accused

was charge sheeted for commission of the offence of rape.

4. Since the appellant/accused had claimed trial in this

case, therefore, the prosecution had got examined sixteen

witnesses. However, the material evidence is of

prosecutrix (PW-10), her mother (PW-4). The medical

evidence is of the deposition of Dr. Sunita (PW-16), who

has proved the MLC of the prosecutrix (PW-10) and of Dr. Crl. Appeal No. 82 of 2000 Page 2 Rajan (PW-3), who had deposed in respect of the MLC of

the appellant/accused.

5. Vishakha, (PW-11) is the sister of the prosecutrix but

her evidence is not of much help because the prosecutrix

had not narrated this incident to her. All that what had

stated by her, in her evidence, is that the prosecutrix as

well as the appellant/accused and the other children were

present at the place of the incident on the occasion of the

marriage in the family.

6. The stand taken by the appellant/accused before the

trial court was of bald denial. He had alleged false

implication in this case. However, appellant/accused did

not dispute his presence at the spot on the day and time

of this incident. He has also not disputed that the

prosecutrix was his first cousin, i.e., real cousin sister. The

solitary witness, who had deposed in favour of the

appellant/accused is Sant Ram (DW-1), who had stated in

his evidence that eight or nine children were sleeping in

the room and no such incident had taken place and if at

all, some minor incident of touching of hands or feet might

have happened, but the mother of the Prosecutrix (PW-10)

did not agree for clearing the misunderstanding.

Crl. Appeal No. 82 of 2000 Page 3

7. The trial ended with the conviction of the appellant/

accused and vide impugned order of 22nd November,

1999, appellant/ accused stood sentenced to undergo

rigorous imprisonment for a period of four years with fine,

which is under challenge in this appeal.

8. Learned Counsel for the parties have been heard in

this appeal and the evidence on record has been

evaluated.

9. At the very outset, learned Senior Counsel for the

appellant contends that the prosecution case of three or

four children sleeping on the bed and of appellant raping

the prosecutrix without the knowledge her sister (PW-11)

is highly improbable and the same cannot be accepted on

the face of it. It has been contended on behalf of the

appellant that there was no injury on the person of the

prosecutrix or the appellant/accused, which negates the

prosecution story of prosecutrix being raped by the

appellant/ accused. It was vehemently argued that there is

no corroboration to the version of the prosecutrix and her

mother and the evidence of defence witness casts a

serious doubt about the veracity of the prosecution case.

According to learned Senior Counsel for the appellant the

conviction of the appellant is bad in law and it deserves to

be set aside. In the end, alternatively, it has been Crl. Appeal No. 82 of 2000 Page 4 submitted on behalf of the appellant that at the time of

this incident the appellant was aged about eighteen years

and he has already remained behind bars in this case for

about two years and the appellant has been mostly on bail

during the trial and appeal proceedings and in the strange

facts of this case, the substantive sentence imposed upon

the appellant deserves to be reduced to the period already

undergone by him. Reliance has been placed upon

decision of the Apex Court reported in 1980 Crl. LJ 8, to

urge that in a similar case, the sentence was reduced from

four years to two years. Nothing else has been urged on

behalf of the appellant.

10. On behalf of the respondent-State, it has been

submitted by learned Additional Public Prosecutor for the

State that the deposition of the prosecutrix and her

mother is consistent and reliable and trial court has rightly

convicted the appellant on the basis of their deposition

and defence evidence is not at all plausible. It is also

submitted that the decision relied upon by the appellant is

on its own facts. Thus, it has been submitted that this

appeal lacks merit.

11. What should be the approach of the Courts in

appreciating the testimony of the victims in rape cases,

has been succinctly spelt out by the Apex Court in the Crl. Appeal No. 82 of 2000 Page 5 case of "State of Punjab Vs. Gurmeet Singh and Ors." AIR

1996 SC 1393, in the following words:-

Of late, crime against women in general and rape in particular is on the increase. 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, a 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.

12. The testimony of the Prosecutrix (PW-10) has been

scrutinized on the touch stone of probability factor. It has

come in her evidence that at night she was sleeping on

the double bed, along with her sister and brother and the

other children were sleeping on the floor in the room and Crl. Appeal No. 82 of 2000 Page 6 appellant was one of them. According to the prosecutrix

(PW-10), she felt pressure on her body and she woke up

and found that appellant/accused was in a mounting

position on her and that he had raped her and she could

not raise an alarm for help because he had put some

pointed object on her throat.

13. Aforesaid version of the Prosecutrix (PW-10), is

sought to be discarded by the defence by contending that

it is just not possible that Prosecutrix (PW-10) is raped by

the appellant/ accused and her sister, who is sleeping on

the same bed, would not know about it. There is no

grilling of the Prosecutrix (PW-10) by the defence

regarding the size of the double bed and as to whether the

other occupants on the double bed had woken up when

Prosecutrix (PW-10) had known that she was raped by the

appellant/ accused. What was needed was searching

cross-examination of the victim, Prosecutrix (PW-10), to

show that this heinous offence could not have been

committed by the appellant/accused. But no such cross

examination has been done by the defence. It differs from

person to person. Some persons sleep very soundly

whereas others sleep very lightly. There can be no hard

and fast rule about it. The aforesaid contention of defence

remains half-baked, as the Prosecutrix (PW-10) has not

Crl. Appeal No. 82 of 2000 Page 7 been questioned at all on this vital aspect in the cross-

examination by the defence.

14. Simply because Vishakha (PW-11), sister of the

prosecutrix, does not state in her evidence anything about

this incident, it would not mean that no such incident had

taken place. It is pertinent to note that the evidence of the

sister (PW-11) of the prosecutrix, does not cause any dent

in the prosecution case because it is not the case of the

Prosecutrix (PW-10) that she had raised any alarm or that

she had informed her sister (PW-11) about this incident.

Prosecutrix (PW-10) is categoric in asserting that she had

immediately informed her mother about this incident.

Therefore, prosecution case cannot be doubted by relying

upon the testimony of sister (PW-11) of the prosecutrix.

15. The cross-examination of the Prosecutrix (PW-10) by

the defence, does not in any way dilute the version of the

Prosecutrix (PW-10), nor it renders her version to be

improbable on the face of it. It is true that Prosecutrix

(PW-10) in her cross-examination by the defence has

stated that she had compounded this matter with the

accused and she did not want to proceed with the trial.

But this by itself would not absolve the appellant/ accused

of the offence committed by him. Prosecutrix (PW-10) has

no where stated in her evidence that she had consented Crl. Appeal No. 82 of 2000 Page 8 to the sexual intercourse by the appellant/ accused. Even

on the age aspect, Prosecutrix (PW-10) had consistently

maintained that she was aged fifteen years on the day of

this incident. She has specifically denied the suggestion of

the defence that she was aged more than sixteen years on

the day of this incident.

16. This incident is of mid night and the FIR in this case

has been registered on the succeeding day in the evening

at about 6:40 p.m. The delay aspect stands explained by

the fact that since it was a family matter, therefore, time

was consumed in trying to hush up this matter. In any

case, the Prosecutrix (PW-10) was first taken to the

hospital and then to the police station and thereafter, FIR

was registered on her statement. Therefore, the delay in

lodging of the FIR is not of any consequence.

17. It is evident from the testimony of the Prosecutrix

(PW-10) that she was asleep when she was raped by the

appellant/ accused and therefore, there was no effective

resistance. Furthermore, appellant is said to have put

some pointed object on her throat, which compelled

Prosecutrix (PW-10) to remain silent. This explains the

absence of any injury on the person of the Prosecutrix

(PW-10). Infact, there is sufficient corroboration to the

prosecution case by way of FSL Report (EX. PW13/H) which Crl. Appeal No. 82 of 2000 Page 9 shows that there were blood stains on the salwar and

under wear of the Prosecutrix (PW-10) and there was

presence of semen in the vaginal smear of Prosecutrix

and on the salwar, under-wear and dupatta of the

Prosecutrix. Semen was also detected on the underwear of

the accused and the blood group had also matched. Thus,

there is clinching corroborative evidence on record, which

is unassailable.

18. In the ultimate analysis, no fault can be found with

the impugned conviction of the appellant in this case. On

the sentence aspect, it has been urged on behalf of the

appellant/ accused that at the time of this incident he was

aged about eighteen years and that he has already

suffered imprisonment in this case for about two years

and has faced the agony of the trial and appeal

proceedings for the last about eleven years, therefore,

the sentence imposed upon the appellant deserves to be

reduced to the period already undergone by him. In the

decision reported in 1980 Criminal Law Journal 8 the

sentence was reduced to RI for two years as the

Prosecutrix in the aforesaid case was also the first cousin

and she had forgiven the accused.

19. The facts of the present case are also quite similar to

the facts of the above cited case. Here also the Crl. Appeal No. 82 of 2000 Page 10 Prosecutrix has stated in her evidence that she has

compounded/settled this matter with the appellant/

accused. As per the Nominal Roll of the appellant, he was

aged about eighteen years and he has already undergone

substantive sentence of more than two years, with

remissions and his conduct in the jail has been found to be

satisfactory. Appellant has remained on bail in this case

for most of the time and his antecedents are said to be

clean. In these circumstances, it would be too harsh to

now send the appellant behind bars. The substantive

sentence already undergone by the appellant would meet

the ends of justice.

20. Resultantly, appellant is sentenced to the period

already undergone by him. However, the sentence of fine

is enhanced to Rupees ten thousand and appellant is

granted two weeks time to deposit the enhanced fine, with

the trial court/successor court, failing which he shall have

to undergo SI for six months.

21. Trial court be apprised of this order to ensure its

compliance.

22. This appeal stands partly allowed in the terms, as

aforesaid.

Sunil Gaur, J.

May 20, 2009
pkb/rs

Crl. Appeal No. 82 of 2000                                      Page 11