Rai Singh vs State
2009 Latest Caselaw 4797 Del

R-2
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.A. 1030/2006

       RAI SINGH                ..... Appellant
                        Through Mr.D.S.Rathore, Advocate.

                   versus


       STATE                ..... Respondent

Through Mr.Amit Sharma, APP for the State.

CORAM:

HON'BLE MR. JUSTICE V.K. JAIN

1. Whether Reporters of Local newspapers may be allowed to see the Judgment?

2. To be referred to the Reporter or not?

3. Whether the Judgment should be reported in the Digest?

V.K.JAIN,J (ORAL)

1. This is an appeal against the judgment dated 9.10.2006 and Order on

Sentence dated 12.10.2006 whereby the appellant was convicted under

Section 376 of IPC and was sentenced to undergo rigorous imprisonment

for seven years and to pay a fine of Rs.2,000/- or to undergo simple

imprisonment for two months in default.

2. On 21.1.2005, information was given to Police Control Room about

quarrel between landlord and tenant in House No.1094, Gali No.25, L-Ist

Block, Sangam Vihar, New Delhi. The information was recorded vide DD

No.10-B and was marked to ASI Attar Singh for enquiry. When he reached

the spot, the prosecutrix gave her statement, which was recorded by the

Crl.A.1030/06 Page 1 Investigating Officer. It was alleged by the prosecutrix that on 18.1.2005,

at about 7:30 pm, when she had gone to the toilet, Mohit, son of the

landlord, aged about 7/8 years informed her that his mother was calling her

upstairs. When she reached there, the appellant who was present there

covered her mouth from his hand and took her to a room where he

committed rape on her, after removing her clothes. While committing rape,

the appellant also threatened to kill her family in case she disclosed the

incident to her parents. In the meantime, the mother of the prosecutrix

came there and opened the door. The appellant pushed her and ran away.

The matter was disclosed to her father but was not reported to Police since

they were afraid of her defamation. On 21.1.2005, when her condition

deteriorated, the Police was informed.

3. The prosecutrix came in the witness box as PW-3 and stated that on

18.1.2005, they were residing in House No.1094, Gali No.25, L-Ist Block,

Sangam Vihar, New Delhi, as tenants of the brother-in-law of the appellant.

At about 7:30 p.m., when she went to toilet, the son of the landlord

informed her that she was called upstairs by his mother to collect woods.

When she went upstairs, the appellant covered her mouth and took her

inside the room. After bolting the door, the appellant made her lie down on

the floor and raped her after removing her clothes and opening the zipper

of his pant. He also threatened to kill her family in case she disclosed the

incident to her parents. At this point of time, her mother came there calling

her and opened the door. Thereupon the appellant pushed her mother and

Crl.A.1030/06 Page 2 ran away. She disclosed the incident firstly to her mother and then to her

father. Being afraid of her defamation in the society, they did not report the

matter to the Police. However, on 21.1.2005, her condition deteriorated

and, therefore, Police was informed, which recorded her statement as

Ex.PW-3/A.

4. PW-4 Meera Devi is the mother of the prosecutrix. She has stated

that on the incident, the prosecutrix was aged about 13 years. She has

further stated that they were residing as tenant in House No. 1094, Gali

No.25, L-Ist Block, Sangam Vihar, New Delhi. On that date, the prosecutrix

who had gone to toilet, did not return. She searched for her and also made

enquiry from her sister-in-law, who advised her to search for the prosecutrix

on the roof. The prosecutrix was not found on the roof but the room

constructed on the roof was found bolted from inside. She knocked on the

door, but, it did not open. She thereupon gave forcible push with her leg as

a result of which, the door of the room opened. She saw the appellant

having gagged the mouth of her daughter. Her daughter was naked at that

time whereas the chain of the pant of the appellant was open. The

appellant got up on seeing her, threatened her and fled away after pushing

her. She disclosed the incident to her husband. The efforts were made to

trace the accused. The landlord, however, threatened them that if they

informed the Police they would be defamed and won't be able to get some

other accommodation on rent.

Crl.A.1030/06                                                         Page 3
 5.     PW-5 is the father of the prosecutrix.      He has stated that on

18.1.2005, the prosecutrix had gone to the bathroom. She did not return

from the bathroom. After some time, his wife informed him about the

commission of rape with her daughter. When his wife intended to report to

the Police, she was threatened not to lodge the complaint to the Police. On

21.1.2005, when the condition of the daughter worsened, she was taken to

the Hospital and got medically examined. The Police also reached there

and recorded her statement.

6. PW-7 Ct. Ishwar Singh, had stated that on 26.1.2005, the appellant

was arrested near the Asthal Mandir pursuant to a secret information

received by them. PW-11 S.I. K.P.Shah has corroborated the deposition of

PW-7 regarding arrest of the appellant.

7. In his statement under Section 313 Cr.P.C., the appellant denied the

allegations against him and stated that there was dispute between his

brother-in-law and the parents of the prosecutrix regarding arrears of rent

and vacation of house. There was a hot exchange of words on the day of

this incident and he being brother-in-law of the landlord intervened in the

dispute. Thereupon the parents of the prosecutrix reported the matter to

the Police.

8. DW-1 Parshadi Singh is the brother-in-law of the appellant and is the

owner of House No.1094, Gali No.25, L-First, Sangam Vihar, New Delhi. He

has stated that his house has two rooms on the ground floor and two rooms,

Crl.A.1030/06 Page 4 one bathroom and kitchen on the first floor. On second floor, there is small

store. There were two tenants on the first floor, one of them being the

father of the prosecutrix. He has further stated that Hem Narayan Thakur,

father of the prosecutrix was not paying the rent for the last 5-6 months

prior to this incident and on this issue, there was hot exchange of words

between them. On 21.1.2005, he again asked the father of the prosecutrix

to pay the arrears of rent or vacate the house, whereupon the parents of the

prosecutrix started quarreling with him. The appellant came there, in the

meanwhile, and intervened. The father of the prosecutrix did not pay his

arrears and informed the Police. On seeing the Police, the appellant ran

away from the House.

9. It is an admitted case that the family of the prosecutrix was residing

as a tenant on the first floor of House No.1094, Gali No.25, L-First, Sangam

Vihar, New Delhi, which was owned by DW-1 Parshadi Singh, brother-in-law

of the appellant. It is also an admitted case that there is a small room/store

on the second floor of that house. It is also an admitted case that the

appellant who is brother-in-law of DW-1 was present in the house of DW-1

on the date of this incident.

10. The defence taken by the appellant is that since father of the

prosecutrix had not paid rent for 5 to 6 months, DW-1 asked him either to

pay the arrears of rent or to vacate the house, which led to exchange of hot

words between them, inviting intervention from the appellant and for this

Crl.A.1030/06 Page 5 reason, he has been falsely implicated in this case. There is no convincing

evidence of the father of the prosecutrix being in arrears of rent. No notice

has ever been given by DW-1 to father of the prosecutrix demanding arrears

of rent. No documentary evidence has been produced by him to prove that

the father of the prosecutrix was in arrears of rent. Thus there is no

reliable evidence of the father of the prosecutrix being in arrears of rent.

Even otherwise, it is highly improbable that the parents of the prosecutrix

would allege rape with their daughter merely for the purpose of implicating

the brother-in-law of the landlord, on account of their inability to pay the

rent for 5 to 6 months. Assuming that the father of the prosecutrix was in

arrears of rent for 5 to 6 months, no legal proceedings were pending

against him for recovery of arrears of rent or for eviction of the premises

occupied by him, when this incident took place. Therefore, there was no

such compulsion upon him as would motivate him to go to the extent of

implicating the brother-in-law of the landlord in a false case of rape and in

that too at the cost of bringing their own daughter into disrepute. In a

tradition bound society like ours, no father is likely to use his own daughter

merely for the purpose of implicating a relative of the landlord on account

of his inability to pay arrears of rent for a few months. In any case, even if

there was any dispute as regards arrears of rent, that being between the

landlord and the father of the prosecutrix, If he had to implicate anyone in

a false case, he would have implicated the landlord himself and not his

brother-in-law. More importantly, if the prosecutrix or her parents were to

Crl.A.1030/06 Page 6 implicate the appellant in a false case, they would have alleged an incident

of the same date and would not have stated that the rape was committed 3

days ago. A person making a false allegation of rape, would not claim it to

be a 3 days old incident, as he/she would know that he/she will have to

explain the delay in reporting the matter, to avoid this, he would claim it to

be a fresh incident. Therefore, in my view, the defence taken by the

appellant is highly improbable.

11. The deposition of the prosecutrix and her parents shows that the

appellant fled away from the house in which he was residing, after

committing this incident. The deposition of PW-7 Constable Ishwar Singh

and PW-11 SI K.P.Shah shows that the appellant was arrested from near

Asthal Mandir near Sangam Vihar on 26.1.2005. This is not the case of the

appellant that he was not arrested from near Asthal Mandir on 26.1.2005.

This is also not his case that he was very much present in that house

between 18.1.2005 to 26.1.2005. There is no explanation from the

appellant as to why he was absconding from his house after 28.1.2005. The

very fact that the appellant was found absconding from his house and has

not been able to render any satisfactory explanation is yet another

circumstance which corroborate the fact attributed to the appellant and

indicates that he was absconding because he was not seen by the mother of

the prosecutrix while he was raping her.

Crl.A.1030/06 Page 7

12. I see no reason to disbelieve the testimony of the prosecutrix and her

mother. The prosecutrix being a young girl stated to be aged about 13

years at the time of this incident, it is highly unlikely that she or her parents

would implicate anyone in a false case of rape at her cost. As observed by

Hon'ble Supreme Court in Bhogin Bhai Hirji Bhai v. State of Gujarat, AIR

1983 SC 753, a girl or a woman in the tradition bound society of India

would be extremely reluctant to even admit that an incident, which is likely

to reflect on her chastity, had ever occurred. She would be conscious of

danger of being looked down not only by relatives, friends and neighbours,

but, also by her own family members. In our tradition bound society, a loss

of reputation is involved in reporting such incidents to the Police. Barring

an extreme case no parent would go to the extent of involving anyone in a

false case of rape with their daughter as they would be conscious of the fact

that making such allegations would require taking their daughter firstly to

the Police then to the Hospital and then in the Court. Unless, they are

genuinely aggrieved, they are not likely to adopt such a course of action.

13. It was pointed out by learned counsel for the appellant that no injury

was found on the person of the prosecutrix when she was examined in the

Hospital on 21.1.2005. It has come in the deposition of the prosecutrix that

the appellant had forcibly covered her mouth with his right hand. It has

come in evidence that the prosecutrix was called upstairs, on a false

pretext. Obviously, the appellant had pre-planned to commit rape with her.

That is why he covered her mouth, as soon as she came upstairs.              The


Crl.A.1030/06                                                           Page 8

prosecutrix being a young girl aged about 13 years and the appellant being

an able bodied young man, it was not physically possible for her to release

herself from the clutches of the appellant. This is more so, when it was

already dark at that time and no one else was present on the roof. The

prosecutrix was all along with the appellant in the room where she was

subjected to rape and the door had been bolted by the appellant. Therefore,

it would be unrealistic to expect her to put up a tough resistance to the

advances made by the appellant. Moreover, the incident having taken place

on 18.1.2005 and the prosecutrix having been examined on 21.1.2005, the

marks of external injury unless they were of serious nature, would not be

visible on that day.

14. It is true that there was delay in lodging the report to the Police. But

it has to be kept in mind that reporting such a matter to the Police is always

preceded by a lot of thoughtful consideration, since honor and prestige of

the family is involved. As stated by the parents of the prosecutrix, they

were apprehensive that if the matter was reported to the Police, it would

bring disrepute to the family and they might not be able to get another

accommodation on rent in the same locality, if the family was defamed on

account of this incident. That explains the reason behind their reluctance to

report the matter to the Police. In fact, had the prosecutrix had not bled on

21.01.2005, her parents might not have reported the matter at all to the

Police. Obviously, when they found the prosecutrix bleeding on 21.12.005,

they got scared and reported to the Police. It was pointed out by learned

Crl.A.1030/06 Page 9 counsel for the appellant that vide DD No.10-B, Ex.PW-8A, the information

given to the Police was not of rape but of a quarrel between the landlord

and the tenant. This, in my view, does not indicate that no incident of rape

took place on 18.1.2005. Obviously, when the parents of the prosecutrix

saw her bleeding on 21.1.2005, they took up the matter with the landlord

who was none other than brother-in-law of the culprit and that would

naturally have led to some kind of quarrel between the parents of the

prosecutrix on the one hand and brother-in-law of the appellant and on the

other hand, leading to reporting of the matter to the Police.

15. It is, by now, well settled by a catena of decisions of the Hon'ble

Supreme Court including Rafiq vs. State of Uttar Pradesh, 1980 Crl. J. 1344

and in the case of Bhogin Bhai Hirji Bhai vs. State of Gujarat, (supra) that

there is no rule of law or practice that the evidence of the prosecutrix

cannot be relied upon without corroboration. If the testimony of the victim

does not suffer from any basic infirmity and is not inherently improbable,

there can be no justification for discarding the same. Having regard to the

increase in the number of sex violence cases in the recent past, it would be

adding insult to injury to tell a woman that her story cannot be believed

unless it is corroborated in material particulars as in the case of an

accomplice of a crime. The standard of proof to be accepted by a court in

such cases must take into account the fact that such crimes are generally

committed on the sly and very rarely direct evidence of a person other than

prosecutrix can be available.

Crl.A.1030/06 Page 10 When the prosecutrix was examined in the Hospital, she informed the

Doctor that on 18.1.2005, that she was called by Mohit at about 7 p.m. to

collect woods from a room in the House and on entering the room, she

found it to be pitch dark and a relative aged about 25 years had covered her

mouth with one hand and successfully assaulted her after removing her

clothes. She further informed the Doctor that he had also bitten her on the

cheeks. The mother of the prosecutrix who herself found her being raped

by the appellant has also stated that she found bite marks on the cheeks of

the prosecutrix. The statement made by the prosecutrix to the Doctor on

21.1.2005 corroborates her statement given during trial. The deposition of

the prosecutrix also finds corroboration from the deposition of her own

mother, who stated that the appellant was lying on her and that she had

found her daughter naked at that time. These previous statements of the

prosecutrix are admissible in evidence under Section 157 of Evidence Act.

In Madan Lal vs. State of Jammu and Kashmir, AIR 1998 sc 386, the

statement made by the prosecutrix to her mother immediately after the

incident was accepted to be a corroborative piece of evidence.

As regards delay in reporting the matter to the police, as noted by

Hon'ble Supreme Court in the decision reported in Ravinder Kumar vs.

State of Punjab, 2001 (VII) AD (SC) 209, the law has not fixed any time limit

for lodging FIR and delayed FIR is not illegal. If there is delay, the court

has to look for the reasons which could be many. But the FIR is not vitiated

on account of delay alone. As regards delay in lodging of FIR in rape cases

Crl.A.1030/06 Page 11 one cannot be oblivious to the fact that such cases involve honour of family

and therefore a cool thought may precede lodging of FIR in such cases.

16. It was pointed out by learned counsel for the appellant that as per

ossification test, the age of the prosecutrix was between 14.5 years to 15.8

years as stated by PW-8 Dr.Puja and since there could be a variation upto

two years, in the age determined by ossification test, the prosecutrix could

be more than 16 years of age at the time of this incident. In my view, in the

facts and circumstances of this case, the age of the prosecutrix would not

be material. This is not the case of the appellant that he had sexual

intercourse with the prosecutrix with her consent. The plea taken by him is

that he did not at all have any physical intercourse with the proseuctrix and

has been falsely implicated on account of quarrel between his brother-in-

law and the father of the prosecutrix on account of non-payment of arrears

of rent and vacation of premises. Therefore, I need not to go into her age

though she has stated that she was aged about 13 years and according to

the mother of the prosecutrix, she got married in the year 1987 and the

prosecutrix was born after two or two and a half years of marriage.

17. For the reasons given in the preceding paragraphs, I find no ground

to interfere with the conviction of the appellant under Section 376 of IPC.

The appellant has been given minimum prescribed sentence of seven years.

There are no special circumstances which would warrant giving less than

the minimum prescribed sentence to the appellant, who has destroyed the

Crl.A.1030/06 Page 12 life of a young girl stated to be aged about 13 years at the time of this

incident. Any sympathy with such a person, in the absence of any

extenuating circumstances, would be totally misplaced. I, therefore, see no

valid reason to reduce the sentence awarded to the appellant. The appeal

has no merit and is, hereby dismissed.

                                                               V.K. JAIN,J

NOVEMBER 24, 2009
'sn'




Crl.A.1030/06                                                     Page 13