Bhure Khan @ Jakka vs State (Govt. Of Nct Of Delhi)
2009 Latest Caselaw 2242 Del

*                     HIGH COURT OF DELHI : NEW DELHI

                Judgment reserved on: May 06, 2009

             Judgment pronounced on: May 25, 2009

+                  Criminal Appeal No. 795 of 2006

%        Bhure Khan @ Jakka              ...  Appellant
                  Through: Ms. Anu Narula, Advocate

                                 versus

         State (Govt. of NCT of Delhi)      ...   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 the afternoon of 11th day of April, 1996, prosecutrix

(PW-7) a housewife and a neighbor of Appellant is said to

have been sexually assaulted by the Appellant in the

jhuggi of the prosecutrix (PW-7). Appellant-Bhure Khan

was tried for the commission of the aforesaid offence by

the trial court and he stands convicted vide impugned

judgment for raping the prosecutrix (PW-7).

Crl. Appeal. No. 795 of 2006 Page 1

2. As per the version of the prosecutrix (PW-7), on the

day of the incident, i.e., on 11th April, 1996 at about noon

time, prosecutrix (PW-7) was relaxing with her seven

months old baby, after finishing her household chores and

appellant/accused came inside her jhuggi and offered tea

to her but she refused and Appellant went back. Again at

about 2 PM, on that day, appellant/accused came inside

her jhuggi and offered to bring medicine for her as she

was not well but the prosecutrix (PW-7) again refused.

There and then, appellant/accused is said to have caught

hold of right hand of the prosecutrix (PW-7) who tried to

raise alarm but her mouth was gagged by the

appellant/accused with his hand. Prosecutrix (PW-7) claims

that appellant/accused had pressed both her hands with

his knees and had broke open the string of her salwar and

had raped her. Prosecutrix (PW-7) had also claimed that

thereafter, she had given a push to the Appellant with her

left feet and he fell aside and then, he ran away.

According to the prosecutrix (PW-7), after this incident,

she went to the shop of her husband and narrated this

incident to him and police was called and the statement of

the prosecutrix (Ex.PW-7/A) was recorded, which led to

registration of FIR No. 170/96 under section 376 of the

Crl. Appeal. No. 795 of 2006 Page 2 Indian Penal Code, registered at Police Station Timarpur,

Delhi.

3. During the investigation of this case, spot

proceedings were conducted and the bed sheet from the

jhuggi of the prosecutrix was seized, prosecutrix (PW-7)

was got medically examined. Arrest of the

appellant/accused was effected in this case and the

investigation stood completed by filing of charge sheet

against the appellant/accused for the offence of rape.

4. Trial in this case took place, as the charge of rape

was contested by the appellant/accused. Prosecution had

relied upon the evidence of fourteen witnesses to prove its

case against the appellant/accused before the trial court.

However, prosecution case rests upon the deposition of

the prosecutrix (PW-7), her husband (PW-6), the medical

evidence, i.e., MLC (Ex. PW-11/A) of the prosecutrix and

the MLC (Ex.PW-9/A) of the appellant/accused. The initial

investigation of this case was conducted by Sub-Inspector

Dharam Pal (PW-14).

5. Appellant/accused had denied the prosecution case

and had claimed before the trial court that he has been

falsely implicated in this case at the instance of Pradhan of

Crl. Appeal. No. 795 of 2006 Page 3 the Jhuggies, who had an ill will against him. The two

witnesses, who had deposed in favour of the

appellant/accused, before the trial court are his

neighbours, i.e., Sunita (DW-1) and Duley Jaan (DW-2) and

their version was that in the morning, on the day of this

incident, appellant/accused was demanding Rs. 10,000/-

from husband (PW-6) of the prosecutrix (PW-7), who was

refusing to pay the same and a quarrel took place

between them and husband of the prosecutrix had

threatened to falsely implicate the Appellant and in the

evening they came to know that Appellant has been

falsely implicated in this case.

6. Trial concluded with the conviction of the

appellant/accused for the offence of rape and vide

impugned order of 24th July, 2006, Appellant stood

sentenced to undergo rigorous imprisonment for a period

of seven years with fine of Rs.5,000/- for committing the

offence of rape. In default of payment of fine, trial court

has directed the appellant/accused to undergo rigorous

imprisonment for one year.

7. Aforesaid conviction and sentence is assailed by the

appellant/accused in this appeal.

Crl. Appeal. No. 795 of 2006 Page 4

8. Ms. Anu Narula, learned counsel for the Appellant as

well as Mr. Amit Sharma, learned Additional Public

Prosecutor for the Respondent-State, have addressed their

respective arguments in this appeal and have ably

assisted this court in appreciating the evidence on record.

9. The basic contention put forth on behalf of the

appellant/accused is that it is not just possible to commit

the offence as has been alleged by the prosecutrix (PW-7)

in this case. It has been pointed out by learned counsel for

the Appellant that the prosecutrix (PW-7) has admitted in

her evidence that on earlier occasions, there used to be

quarrel between the family member of the accused and

her family. Thus, it has been contended on behalf of the

Appellant that in such a situation, it is highly improbable

that the appellant/accused would come on the day of the

incident in the morning to offer tea to the prosecutrix (PW-

7) and would again come in the afternoon, to offer to

bring medicine for the prosecutrix (PW-7).

10. Learned counsel for the Appellant has vehemently

argued that the MLC (Ex. PW-11/A) of the prosecutrix (PW-

7) is not admissible in evidence as the same has been

proved by the record clerk and not by the doctor

concerned. Much emphasis was laid by Appellant's Crl. Appeal. No. 795 of 2006 Page 5 counsel on the submission that the medical evidence does

not corroborate the prosecution story. It has been pointed

out by learned counsel for the Appellant that the

prosecutrix (PW-7) had claimed that prior to this, she had

called Noorjahan Didi but she had not come to her help.

Thus, it is stated that non-examination of Noorjahan goes

against the prosecution. In the end, much stress has been

laid by counsel for the Appellant on the fact that the

defence witnesses are to be treated at par with the

prosecution witnesses and the evidence of the defence

witnesses has been illegally brushed aside by the trial

court. According to learned counsel for the Appellant, false

implication of the appellant/accused is on account of

money dispute and because of the quarrel of the

appellant/accused with the Pradhan of the area, who had

got him falsely implicated in this case through the

prosecutrix (PW-7). It is emphatically asserted by learned

counsel for the Appellant that the prosecution story is

improbable and the defence version is plausible, which

entitles the appellant/accused to acquittal, which has been

illegally denied to the Appellant by the trial court. Nothing

else is urged on behalf of the Appellant.

11. The stand of the Respondent-State projected by Mr.

Crl. Appeal. No. 795 of 2006 Page 6 Amit Sharma, Additional Public Prosecutor for the State is

that prosecution version is consistent and reliable,

whereas defence story is not at all plausible and that the

impugned judgment does not suffer from any illegality and

this appeal is bereft of merit.

12. Before proceeding to appreciate the evidence of the

star witness, i.e., prosecutrix (PW-7), I am reminded 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 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"

13. In the above background, the testimony of the

prosecutrix (PW-7) has to be considered. There is a serious

challenge to the prosecution case regarding the

happening of the actual incident. Defence claims that this

Crl. Appeal. No. 795 of 2006 Page 7 incident could not have taken place in the manner

narrated by the prosecutrix (PW-7) in her evidence. To

make such a tall claim, the cross-examination of the

prosecutrix by the defence has to be pointed one and not

blunt, as is found to be in the instant case. For instance, it

has not been brought out in the cross-examination of the

prosecutrix (PW-7) by the defence that in what position,

the prosecutrix (PW-7) was lying when the appellant/

accused allegedly pressed both her hands with his knee

and as to whether they were pressed with one knee or

with both knees. Prosecutrix (PW-7) has not been

questioned by the defence in her cross-examination as to

whether gagging of her mouth was with right hand or left

hand. It cannot be presumed that all throughout this

incident, appellant/accused had kept on holding the right

hand of the prosecutrix (PW-7). When the prosecutrix (PW-

7) had categorically claimed in her deposition that the

appellant/accused had broke open the string of her salwar,

then, it was not put to the prosecutrix (PW-7) by the

defence as to how and with which hand the appellant had

broke open the string of the salwar. In any case, there is

no cross-examination of the prosecutrix (PW-7) by the

defence regarding the crucial part of this incident, i.e., of

Crl. Appeal. No. 795 of 2006 Page 8 appellant inserting his male organ into her private part.

14. After commission of this offence, prosecutrix (PW-7)

had pushed away the appellant/accused with her left feet

and thereupon appellant is said to have fallen aside. It is

so claimed by the prosecutrix (PW-7) in her evidence. If

the defence found anything unusual about it, then there

should have been specific cross-examination on this

aspect, which is not there. In any case, there is nothing

unusual about the aforesaid post incident conduct of the

prosecutrix (PW-7). It is purely conjectural that the

prosecutrix (PW-7) could not have done it because she

was not well on the day of the incident. The act of

prosecutrix (PW-7) pushing the appellant/accused with her

leg after the sexual assault by the Appellant upon her, is

an expression of her resistance or in any case, of her

disgust. Simply because there used to be quarrel between

the family members of the prosecutrix (PW-7) and the

family members of the appellant/accused, it would not be

a ground for false implication of the appellant/accused by

the prosecutrix (PW-7) because it has not been brought

out in the cross-examination of the prosecutrix as to what

was the nature of the said quarrels. From the evidence of

the prosecutrix (PW-7), it emerges that both the families

Crl. Appeal. No. 795 of 2006 Page 9 i.e. of the prosecutrix (PW-7) and that of

appellant/accused were not on visiting terms and on the

day of the incident, wife of the appellant/accused was not

present at the house of the appellant/accused. Even if it is

taken that there used to be quarrel between the two

families on petty matters, still a married housewife would

be the last person to stake her honour and of her family,

to falsely implicate the appellant/accused.

15. In my considered view, the happening of this

incident, as narrated by the prosecutrix (PW-7), does not

sound to be improbable. However, prosecutrix's version is

required to be tested, viz-a-viz the defence version. The

two defence witnesses, who are the neighbours of the

appellant/accused, have deposed that appellant/ accused

was demanding Rupees ten thousand from the husband of

the prosecutrix (PW-7) and what is alleged by these two

defence witnesses, is that husband of the prosecutrix had

declared in the morning on the day of the incident that he

would not return the demanded money and would falsely

implicate the appellant/accused in a false case. According

to these two defence witnesses, this matter was pacified

with their intervention. All that has come in the evidence

of the prosecutrix (PW-7) is that when she had reported

Crl. Appeal. No. 795 of 2006 Page 10 this matter to her husband, he took her with him to the

Pradhan of the area where Dule (DW-2) was also present

and thereafter, this matter was reported to the police. The

suggestion given by the defence to the prosecutrix (PW-7)

regarding the aforesaid defence plea deserves to be noted

and it reads as under:-

"It is incorrect to suggest that as we had borrowed money from accused and that there was quarrel on return of money".

16. Nothing more has been suggested to the prosecutrix

(PW-7) in respect to the aforesaid defence version. In my

considered view, the above referred defence version is

neither probable nor plausible.

17. It is going too far, to claim that Noorjahan should

have been got examined because the prosecutrix (PW-7)

has stated in her evidence that she had called out for

Noorjahan. It is nobody's case that Noorjahan had come to

the spot. In fact, prosecutrix (PW-7) has clearly stated that

Noorjahan had not come to her help. No doubt, prosecutrix

(PW-7) had promptly narrated this incident to her neighbor

Noorjahan, but non-examination of the neighbor would not

go against the prosecution because corroboration in such

like cases, is not generally insisted upon. In any case,

there is no inconsistency or improbability in the version of Crl. Appeal. No. 795 of 2006 Page 11 the prosecutrix (PW-7) requiring corroboration.

18. The medical evidence, i.e. MLC (EX. PW-11/A) of the

prosecutrix (PW-7) may not have been formally proved in

evidence but it would not make much difference for the

reason that what is incriminating, is not the MLC (EX. PW-

11/A) of the prosecutrix but is the FSL Report (EX. PX)

which indicates that the vaginal slides of the prosecutrix

(PW-7) and the bed sheet recovered from the spot, were

having human semen. To get over the FSL Report (EX.

PX), a half hearted suggestion given by the defence to the

prosecutrix (PW-7) was that her husband had come back

to his house at 1:30 p.m. This suggestion was denied by

the prosecutrix (PW-7). In any case, absence of injuries on

the person of the prosecutrix (PW-7) or lack of medical

evidence to corroborate the version of the prosecutrix

(PW-7) are really not of much consequence because the

absence of injuries on the private parts of a victim,

especially a married lady, cannot ipso facto lead to an

inference that no rape has been committed. It has been so

reiterated by the Apex Court in the case of "Santosh

Kumar vs. State of M.P." AIR 2006 SC 3098.

19. Upon over all analysis of the evidence on record, I

hold that the conviction and the sentence imposed upon Crl. Appeal. No. 795 of 2006 Page 12 the appellant/accused, does not suffer from any illegality

or infirmity. As a necessary corollary thereof, this appeal

is dismissed being devoid of merit. Appellant is in custody.

He be apprised of the fate of his appeal through the

concerned Jail Superintendent and its compliance be

reported to this court, within two weeks.

20. This appeal stands disposed of, with aforesaid

directions.

Sunil Gaur, J.

May 25, 2009
pkb/rs




Crl. Appeal. No. 795 of 2006                             Page 13