Balwan Singh vs State
2009 Latest Caselaw 4083 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment Reserved on: 17.08.2009
                          Judgment delivered on: 09.10.2009

                        Crl. Appeal No. 9/2006


BALWAN SINGH                                     ..... Appellant

                                    Vs

STATE                                            ..... Respondent

Advocates who appeared in this case:

For the Appellant         : Mr K.K. Sharma, Advocate
For the Respondent        : Mr R.N. Vats, Addl. Public Prosecutor

CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER

1.      Whether the Reporters of local papers may
        be allowed to see the judgment ?               YES
2.      To be referred to Reporters or not ?           YES
3.      Whether the judgment should be reported
        in the Digest ?                                YES

RAJIV SHAKDHER, J

1. This is an appeal preferred against judgment dated 19.10.2005

and sentence dated 24.10.2005 passed by the learned Addl. Session

Judge (ASJ) in SC No. 26/2005. By virtue of the impugned judgment

the appellant has been convicted under Section 376 of the Indian

Penal Code, 1860 (hereinafter referred to in short as the „IPC‟). The

appellant has been accorded a sentence of rigorous imprisonment,

for a period of seven (7) years along with a fine of Rs 5,000/-. In

default of payment of fine, the appellant is to undergo a further

simple imprisonment for a period of six (6) months.

2. The prosecution‟s version is as follows: On 26.07.2003 the

prosecutrix (PW1), one Gudiya had, after sunset, visited a nearby

forest area adjoining her house for attending to a call of nature when,

she was accosted by the appellant, who subjected her to sexual

intercourse without her consent. In the meanwhile, since the

electricity of the area where the house of the prosecutrix (PW1) was

located was shut down; got the father (PW2) of the prosecutrix (PW1)

worried. The father (PW2) ventured out of the house looking for his

daughter, taking the direction that his daughter had taken as she

stepped out of the house. The father (PW2) knew the direction his

daughter had taken, since he had seen her step out while he was

sitting on the roof of his house. On reaching the spot he caught the

appellant red handed. Because of the ruckus several people

gathered. It transpires that someone in the public informed the

police control room. The police arrived at the spot and apprehended

the appellant.

2.1 In the background of this broad outline the prosecution, in

support of its version, cited 16 witnesses. The main witnesses cited

by the prosecution were: the prosecutrix (PW1); the father of the

prosecutrix Ghan Shyam (PW2); the mother of the prosecutrix Saroj

(PW8); one Gajinder (PW9) a public witness; Dr. Monika Jain (PW10)

who examined both the prosecutrix and the appellant; Dr. Rahul

(PW16) who proved the ossification report, prepared by Dr. Anil

Kheri; and SI Harjinder Rana (PW13), who was the Investigating

Officer (I.O.) in the case. The remaining witnesses were formal

witnesses who were examined with regard to various facets of the

investigation.

2.2 It would, therefore, be necessary to briefly notice as to what

each of the main witnesses have stated with regard to the offence,

with which the appellant is charged.

2.3 Prosecutrix (PW1) deposed in her examination-in-chief that she

was an illiterate, and that she did not remember the date of incident.

She deposed that on the date of incident, after sunset, she had left

her house to attend to a call of nature. Just about the time she had

untied the string of her salwar, the appellant caught hold of her hand

and took her behind a building. He made her lie on the grass and

thereafter, inserted his private part in the place of urination. She

stated that her father reached the spot and caught the appellant.

The appellant was beaten up by her father. The police arrived at the

spot and took down her statement. She identified her statement

(Ex.PW1/A) and her thumb impression at point „A‟. She also stated

that she was medically examined, and that, the doctors had taken

custody of her salwar.

2.4 At this stage, it would be important to note that her

examination-in-chief, which had commenced on 19.03.2004 was

deferred till 02.11.2004.

2.5 The prosecutrix (PW1) in her cross-examination has

contradicted herself, in as much as, she has said that she called the

police and, then also said that, she had become unconscious and did

not remember as to who called the police; and that when she

regained consciousness, she found herself in her own house. She has

further stated that she went to the police station alongwith her

mother. This statement was again contradicted when she said that

someone had called the police and the police came and took her to

the police station. She also testified that she was 30 years of age.

Importantly, while denying the suggestion that the appellant was

falsely implicated, in the very next sentence she said that the

appellant had not committed any wrong act with her. This was in

sharp contradiction to what she had said eight months back in her

examination-in-chief where she had not only stated that the appellant

had committed rape on her but had also identified the appellant who

was present in court at the relevant time.

2.6 PW2, Ghan Shyam, the father of the prosecutrix (PW1),

deposed that on the date of incident between 7.00 to 8.00 p.m., he

was sitting on the roof of his house. He further deposed that his

daughter had left the house to attend to a call of nature, and that he

could see his daughter from the roof. He deposed that since the

electricity of the area was shut down he came down from the roof of

the house to look for his daughter, when he saw the appellant

committing rape on his daughter. The appellant was caught by him

at the spot. Since many people had gathered at the spot, including

members of his community, the police was called. The police, on

reaching the spot, took away both the appellant and his daughter to

the police station. In his cross-examination he testified that the spot,

where the incident occurred, which was approximately 40 meters

from his house; was visible from his house. He denied that his

daughter was in love with the appellant. He asserted that neither he

nor his daughter knew the appellant and that they had been residing

in the locality for the last two years. PW2 stated that he had seen the

appellant only 15 to 20 days prior to the incident in the area, since

the appellant was working with different contractors. He denied that

there was any proposal of marriage between the appellant and his

daughter, that is, the prosecutrix (PW1).

2.7 PW3, H.C. Partap Singh, testified that S.I. Sudesh Dahiya

(PW15) had handed over the rukka to him at about 4.30 a.m. on the

basis of which he recorded a formal FIR bearing no. 263/03

(Ex.PW3/A).

2.8 PW4, Dr. Ravinder Kumar, testified that she had examined both

the appellant as well as the prosecutrix (PW1). She proved the MLC

(Ex.PW4/A) pertaining to the appellant and her signature on it at

point „A‟. Similarly, she also proved the MLC (Ex.PW4/B) pertaining

to the prosecutrix (PW1) and her signature at point „A‟ on the same.

2.9 PW5, H.C. Vijender Singh, who was the malkhana incharge,

proved the receipt of three pulandas alongwith sample seal handed

over to him by S.I. Sudesh Dahiya (PW15). He also deposed with

regard to the fact that an entry had been made by him in register no.

19 at serial no. 1098. Similarly, he also testified with regard to

receipt of another three pulandas along with sample seal; the entry

with respect to which had been made in register no. 19 against serial

no. 1099. He stated that on 30.09.2003, the said pulandas were sent

to the Forensic Science Laboratory (FSL), Rohini through Constable

Balender vide RC No. 96/21/03. PW5 testified that the said packets

were received back alongwith results.

2.10 PW6, Constable Kali Charan, proved the fact that he was

handed over by duty officer at police station Narela, the original

rukka and a copy of the FIR which he handed over to the I.O., A.S.I.

Sudesh Dahiya, at the Maharshi Balmiki Hospital (hereinafter

referred to as the „hospital‟). In his cross-examination he testified

that he reached the hospital between 6.00 to 6.15 a.m.

2.11 PW7, H.C. Jai Parkash, proved that he alongwith A.S.I. Mahavir

Singh were responsible for taking the appellant to the hospital for

medical examination. He also stated that at the hospital the doctors

handed over two sealed pulandas to him which he handed over to the

lady S.I. vide memo Ex.PW7/A. In his cross-examination he reiterated

that A.S.I. Mahavir Singh accompanied him to the hospital for

examination of the appellant.

2.12 PW8, Saroj, who is the mother of the prosecutrix (PW1), in her

examination-in-chief, while affirming that somebody had committed a

wrong act on her daughter denied that the appellant was responsible

for it. She testified that the appellant had been mistakenly

apprehended by the public. Since she had turned hostile, the

prosecution sought permission to cross-examine her, which was

granted by the court. In her cross-examination by the prosecution,

she testified that she, alongwith her husband, had seen the appellant

committing rape on her daughter. However, in her cross-

examination, by the counsel for the appellant, she stated that the

appellant had not committed any wrong act and that he had been

mistakenly apprehended.

2.12 PW9, Gajinder Singh, who is the public witness, turned hostile

and retracted from the statement that he had made to the police. He

denied having been witness to the events of 26.03.2003. He testified

that he was in his house when he came to know that some persons

had gone to the police station; which is when, he also visited the

police station. In his cross-examination, by the prosecution, he

denied that he had reached the spot of the incident and that there

they found the prosecutrix (PW1) crying and the appellant attempting

to run away. He also denied that the appellant had been

apprehended by PW2.

2.13 PW10, Dr. Monika Jain, Sr. Resident of the hospital, testified to

the effect that she had examined the prosecutrix (PW1), who had

been brought to her with alleged history of sexual assault by a

neighbour. She stated that her examination revealed that the

prosecutrix (PW1) was approximately 15 years of age, that even

though there were no marks of external injury on the body of the

prosecutrix (PW1), the prosecutrix‟s (PW1) local examination

revealed that there was slight laceration on the inner side of labia

minora with slight bleeding and a ruptured hymen. She also stated

that slides prepared from prosecutrix‟s (PW1) vaginal swab were

sealed and handed over to the H.C. Sarla. She testified that her

findings were given on Ex. PW4/B in portion „X to X‟, which bore her

signature at point „B‟. In her cross-examination, she specifically

asserted that she had carried out gyanaecological examination of the

prosecutrix (PW1).

2.14 PW11, A.S.I. Mahavir Singh, deposed that he was on

emergency duty on the date of the incident, and on receiving

intimation vide DD No. 24/A, he reached the police station. He stated

that the duty officer at the police station produced before him; the

prosecutrix (PW1), her parents and the appellant. After making

inquiries, he narrated the facts to the Station House Officer (SHO),

who then called S.I. Sudesh. S.I. Sudesh (PW15) recorded the

statement of the prosecutrix (PW1), based on which the FIR was

registered. He further stated that he, alongwith the prosecutrix

(PW1), the appellant, a lady Constable Sarla, Constable Jai Prakash

drove to the hospital in a government vehicle. The lady Constable

Sarla facilitated the medical examination of the prosecutrix (PW1),

while Constable Jai Prakash got the appellant medically examined.

After the examination, the exhibits, which were sealed, were seized

by the I.O. after preparation of memos (Ex. PW11/A and Ex. PW7/A)

on which he had signed at point „A‟. He stated that the appellant was

arrested before he was taken to the hospital. He also proved the

arrest memo (Ex. PW7/B), and the personal search memo (Ex.

PW7/C) of the appellant and his signature at point „B‟ on the said

memos. He further testified that the appellant accompanied them to

the site of the incident i.e., Smriti Van, whereupon the I.O. prepared

the site plan (Ex. PW15/B). In his cross-examination he denied the

suggestion that the appellant had not led the police party to the spot

of the incident. He volunteered that the prosecutrix (PW1) had also

pointed out the place of the incident.

2.15 PW12, H.C. Sarla, testified that she had accompanied the

victim to the hospital to facilitate her medical examination. She also

testified that she had collected two sealed parcels from the hospital

alongwith sample seals. She proved the seizure memo (Ex.PW11/A).

2.16 PW13, S.I. Harjinder Rana, proved that on 05.08.2003, when he

was posted in Sub-division Narela, the investigation of the case was

assigned to him. He proved that he had collected the bone x-ray of

the prosecutrix (PW1) which opined that the age of the prosecutrix

(PW1) was between 14 to 16 years. He also testified that the

exhibits, which were deposited in the malkhana, were sent by him

through Constable Balwinder (PW14) to the FSL. He stated that on

completion of the investigation he submitted the file for preparation

of challan. He testified that the FSL report, though collected by

another officer of the police station, was filed in court through him.

2.17 PW14, Constable Balwinder, testified that on 30.09.2003, on

the instruction of the I.O., he had collected the exhibits from police

station Narela and deposited them at FSL, Malviya Nagar. He

testified that till the exhibits remained with him the samples were

intact and had not been tampered with.

2.18 PW15, W.S.I. Sudesh, testified that she was posted at Rohini

sub-division, when in the early hours in the morning, on 27.07.2003,

that is, at about 3.00 a.m., she received instructions from her

superior officers to reach police station Narela. On reaching the

police station, she met S.I. Mahavir alongwith the prosecutrix (PW1),

her parents and the appellant. She stated that the statement

(Ex.PW1/A) of the prosecutrix (PW1) was recorded by her which

contains her endorsement at Ex. PW15/A. She further stated that the

prosecutrix (PW1) and the appellant were taken for medical

examination, and for this purpose, she was accompanied by A.S.I.

Mahavir, lady H.C. Sarla and Constable Jai Parkash. She stated that

when she was in the hospital Constable Kali Charan (PW6) had

brought a rukka alongwith the copy of the FIR based on which she

had recorded the FIR number on various other documents. She also

deposed having collected the MLC of the prosecutrix (PW1), and the

appellant (Exs. PW4/A and PW4/B respectively). She further stated

that two sealed parcels, brought by lady Constable Sarla alongwith

the hospital seal, were seized by her vide memo (Ex.PW11/A), and

similarly, the two sealed parcels, which Constable Jai Parkash had

brought, were collected by her vide Ex. PW7/A. She testified having

deposited the same at the malkhana, after that all of them, including

the prosecutrix (PW1), had returned to the police station. It is

thereafter that she had arrested the appellant. She also stated that

all of them had thereafter proceeded to the site of the incident, which

was a vacant plot near DDA Flats close to the cremation ground,

Rehabilitation Colony, Smriti Van, Narela. She stated that a site plan

was prepared at the instance of the prosecutrix (PW1) being Ex.

(PW15/B). On their return to the police station, from the visit to the

site of the incident, she had recorded the statement of the

prosecutrix (PW1). She also proved her application (Ex. PW15/C) for

recording the statement of the prosecutrix (PW1) under Section 164

of the Code of Criminal Procedure, 1973 (hereinafter referred to in

short as the „Cr.P.C.‟). She stated that the prosecutrix (PW1) was

sent for an ossification test on 28.07.2003. To be noted, she got

transferred and it seems the investigation thereafter was handled by

S.I. Harjinder Rana (PW13). In her cross-examination, she stated

that even though the prosecutrix (PW1) was a bit weak but mentally

she was able to narrate the incident to her. She denied the

suggestion that the statement of the prosecutrix (PW1), recorded by

her, did not contain correct facts. She asserted in her cross-

examination that the time recorded in the said statement was

indicated to her by the prosecutrix (PW1). She denied the suggestion

that the appellant was falsely implicated in the case.

2.19 PW16, Dr. Rahul, who at the relevant point in time was a junior

specialist at the hospital, deposed with respect to the MLC No.

380/03 pertaining to the prosecutrix (PW1). He was examined in

view of the fact that Dr. Anil Kheri, who at the relevant point in time

was the radiologist in the hospital and had conducted the ossification

test of the prosecutrix (PW1), had been absent from his duty since

February, 2005. PW16 testified that he knew Dr. Anil Kheri, and

that, he was in a position to identify his hand writing and signature,

as he had seen him writing and signing documents in the normal

course of duty. PW16 testified that as per the ossification report (Ex.

PW16/A) the age of the prosecutrix (PW1) was assessed at 16 years

on the date of the incident.

3. On the other hand, the appellant did not cite any witness.

However, the appellant‟s statement under Section 313 of the Cr.P.C.

was recorded by the trial court. In his statement under Section 313

of the Cr.P.C. the appellant except for saying that he was falsely

implicated did not explain the circumstances in which he was

apprehended at the spot of the incident.

4. In the background of the evidence produced by the prosecution

the learned counsel for the appellant submitted that the prosecution

had not been able to establish its case beyond a reasonable doubt as

it ought to have for the following reasons:

(i) There was a contradiction between the statement made by the

prosecutrix (PW1) to the police in the first instance which is Ex.

PW1/A and her deposition in the court. The learned counsel

submitted that in her statement (Ex.PW1/A) the prosecutrix (PW1)

had stated that when the appellant accosted her, he had gagged her

mouth, whereas in her deposition in the court the prosecutrix (PW1)

had stated that; the appellant had caught hold of her hand, and taken

her behind a building, and then, laid her on the grass before

committing rape on her.

(ii) The main witnesses for the prosecution had not identified the

appellant as the perpetrator of the crime. In this regard, the learned

counsel referred to the testimony of PW8, mother of the prosecutrix

(PW1), cross-examination of the prosecutrix (PW1) herself and the

testimony of PW9, Gajinder, who was a public witness.

(iii) The ossification report had not been proved.

(iv) The statement of the prosecutrix (PW1) under Section 164 of

the Cr.P.C. had not been recorded.

(v) In the MLC (Ex.PW4/B), pertaining to the prosecutrix (PW1),

the gynaecologist Dr. Monika Jain (PW10), while recording the

alleged history of sexual assault, had referred to the fact that the

assault had been carried out by a „neighbour‟. The submission made

on behalf of the appellant was that he was a resident of Village

Kheda, Distt. Sonepat, Haryana, and hence could not have been the

neighbour, referred to in the MLC, as the incident occurred in

Narela.

5. As against this, Mr Vats, learned APP submitted that the

contradiction between the statement (Ex PW1/A) made by the

prosecutrix (PW1) and her deposition in examination-in-chief was not

significant. He submitted that the core of the prosecutrix‟s (PW1)

testimony was consistent, which is that the appellant had accosted

her and committed rape on her in the Smriti Van near Cremation

Ground, behind DDA Flats, Narela. The fact that both the

prosecutrix (PW1) and PW8, the mother of the prosecutrix (PW1), did

not identify the appellant as the perpetrator of the crime ought to be

discarded for the reason that cross-examination of the prosecutrix

(PW1) and the examination of her mother took place after a gap of

eight months when they seem to have been won over by the defence.

Notwithstanding, this, he submitted that the testimony of the

prosecutrix (PW1) in examination-in-chief when read with the

testimony of PW2, the father, as also the cross-examination of PW2

clearly establish that the appellant had committed rape on the

prosecutrix (PW1). The learned APP submitted that the fact that the

appellant was apprehended from the spot is clearly brought out in

the testimony of PW2, that is, the father of the prosecutrix (PW1). He

further contended that for the appellant to be held guilty of rape it

would be sufficient if there was penetration. For this purpose, he

relied upon the explanation provided in Section 375 of the IPC.

5.1. The learned APP further submitted that the MLC (Ex. PW4/B)

of the prosecutrix (PW1) shows that the labia minora was lacerated

and that there was fresh bleeding with a ruptured hymen. This,

according to him, was enough to prove the offence with which the

appellant had been charged.

Reasons:

6. Having heard the learned counsel for the appellant, as well as

the learned APP, I am of the view that the prosecution has been able

to establish its case against the appellant beyond a reasonable doubt.

My reasons for coming to this conclusion are as follows:

6.1. The testimony of the prosecutrix (PW1), read with that of her

father (PW2), is a clear pointer to the fact that on 26.07.2003 when

she had left her house to attend to a call of nature she was accosted

by the appellant. The appellant forced himself on her, and subjected

her to sexual intercourse. The father of the prosecutrix (PW2),

arrived at the scene, since the electricity in the area was shut down

and in these circumstances, it was not uncommon for a parent to look

for his daughter. He caught the appellant red handed. The

appellant was handed over to the police. The submission of the

learned counsel for the appellant that there was a contradiction

between the statement (Ex.PW1/A) of the prosecutrix (PW1) when

compared with her deposition in court, is according to me not

significant. The core of her testimony would not get impacted by

virtue of the fact as to whether the appellant had, in the first

instance, gagged the prosecutrix (PW1) and the forced himself on

her, or as testified by her in court that the appellant had caught hold

of her hand and then forced her to the ground. The variation on this

aspect could have also occurred on account of the fact that the

statement of the prosecutrix (PW1) was recorded by the police on

27.07.2003, whereas she testified in court after a gap of nearly eight

months, i.e., on 19.03.2004.

9. A perusal of the MLC (Ex.PW4/B) of prosecutrix (PW1) would

show that her gynaecological examination had revealed that the

inner side of the labia minora had slight laceration, there was slight

bleeding and the hymen was ruptured. Similarly, the MLC

(Ex.PW4/A) of the appellant showed bruise marks over the upper

chest region and all over the back; as also significantly, absence of

smegma. In the MLC, the doctor had clearly opined that there was

nothing to suggest that appellant was not capable of performing

sexual acts. Reading the two MLCs together, I have no doubt in my

mind that the appellant had subjected the prosecutrix (PW1) to

sexual intercourse. The learned APP is right that for the purposes of

conviction under Section 376 of the IPC it would be sufficient to

establish that there had been penetration (see explanation to Section

375 of the IPC). The injuries on the person of the prosecutrix (PW1)

and the appellant clearly establish this fact. As a matter of fact even

ejaculation is not a necessary ingredient. The observations in the

Encyclopedia of Crime and Justice, Second Edition, Volume 3

at page 1307 being apposite are extracted hereinbelow :-

"Penetration. The act of rape, described by Blackstone as "carnal knowledge", has always required sexual intercourse, in the sense of some penetration (however slight) of the penis into the vagina. Ejaculation is not required, but in some jurisdictions, penetration by objects other than the penis was insufficient, as was penetration of other parts of the body (e.g., the mouth or anus)..........."

9.1 The above coupled with the fact that the appellant was

apprehended from the site of the incident only fortifies this

conclusion. The deposition of PW1 in cross-examination, and that of

PW8 clearly shows that over a period of time between March, 2004

when PW8 was first examined in court and in November, 2004 when

her cross-examination was carried out, both had been won over by

the defence. The examination-in-chief of PW1 had commenced on

09.03.2004. Since the examination-in-chief was not complete it was

deferred till November, 2004. Both the examination-in-chief as also

her cross-examination was concluded on 02.11.2004. PW8 was also

examined on 02.11.2004. It is quite obvious that their subsequent

testimonies were influenced.

10. Notwithstanding, the testimonies of the prosecutrix (PW1) and

PW8, it is the testimony of PW2, which was recorded on 19.03.2004,

which lends support and credibility to the deposition of prosecutrix

(PW1) made before court on 19.03.2004. Therefore, I have no

hesitation in discarding that part of the testimony of PW8 and PW1,

whereby they stated before the court that the appellant was not the

one who had committed rape on the prosecutrix (PW1). The

important thing to note is that, while PW8 deposed that a rape was

committed on the prosecutrix (PW1), she did not identify the

appellant as the one who had committed rape. In the circumstances,

as discussed above, I am of the view that the later part of her

testimony, i.e., where she refused to identify the appellant as the

perpetrator of the crime should be discarded.

11. Similarly, in so far as PW9 is concerned, his testimony was also

recorded on 02.11.2004. The testimony of PW9 lacks credibility.

12. The submission of the learned counsel for the appellant that the

ossification report (Ex.PW16/A) has not been proved is incorrect.

PW16 has in his deposition has clearly proved the report. Dr. Rahul

(PW16), who at the relevant point in time was a Jr. Specialist, has

clearly stated in his deposition that he had seen Dr. Anil Kheri, who

had prepared the report, writing and signing documents in the

normal course of his duty, and consequently, was in a position to

identify his hand writing and signatures on the report. As per the

ossification report (Ex. PW16/A) the age of the prosecutrix (PW1) was

less than 16 years. Therefore, the submission of the learned counsel

of the appellant on this aspect of the matter is also without merit.

13. As regards the submission that the statement of the prosecutrix

(PW1) under Section 164 of the Cr.P.C. was not recorded and,

therefore, the prosecution‟s case is not free from doubt, is once again

a submission without merit. The Court vide order dated 27.07.2003

has clearly recorded that on the day the prosecutrix (PW1) was

produced before it, for recording her statement under Section 164 of

the Cr.P.C.; even though she answered the preliminary questions put

to her correctly, she was not mentally strong enough, to make a

coherent statement. This aspect is quite understandable as the

prosecutrix (PW1) had undergone horrific experience only a day

before. Given the prosecutrix‟s tender age, and the social strata, to

which she belonged, she was perhaps nervous being placed in

unfamiliar surroundings and hence was not in a position to make a

statement before the learned Magistrate. According to me nothing

much would turn on, the absence of the prosecutrix‟s (PW1)

statement under Section 164 of the Cr.P.C., if otherwise, the court is

able to come to a conclusion that her deposition made in court can be

relied upon. In the instant case, I have no doubt as regards the

veracity of the deposition of the prosecutrix (PW1) made in her

examination-in-chief, in court.

13.1 See observations of the Supreme Court in the case of Khujji vs

State of MP; 1991 Cri.L.J. 2653 in paragraph 7 at pages 2659-

2660. Briefly, in this case the prosecution witness had identified all

the assailants in his examination-in-chief; however, in the cross-

examination he turned hostile to the extent he resiled in respect of

his testimony in-chief with respect to, two out of the six assailants.

The Supreme Court agreed with the High Court that it was an

attempt to wriggle out his testimony in-chief, which was recorded

only a month back, in order to help the accused. Thus, the testimony

in-chief was accepted, even while, his cross-examination was

discarded.

13.2 Also see observations in the case of Ganpat Mahadeo Mane

vs State of Maharashtra; 1993 Supp. (2) SCC 242 , wherein the

mother of the deceased in cross-examination resiled from her

testimony in-chief wherein she had stated that the accused used to

beat the deceased and had also poured kerosene and set the

deceased on fire. The court discarded the testimony of the mother in

cross-examination and accepted the testimony in examination in-chief

and sustained the conviction of the accused taking into account,

amongst others, the evidence received in examination-in-chief of the

mother of the deceased.

14. The submission of the learned counsel for the appellant that the

fact that in the MLC, Dr. Monika Jain (PW10), while recording the

history of assault committed on the prosecutrix (PW1), had made

note of the fact that the assault was carried out by a neighbour,

should be a factor which ought to support the case of the defence, as

the appellant was a resident of Village Kheda, Distt. Sonepat,

Haryana, which was, nowhere near the site of the incident; is also

without merit. Firstly, it is according to me, a minor aberration to

which much significance need not be attached when seen in the light

of the entirety of events. Secondly, and more importantly, PW2 in his

testimony has clearly stated that the appellant worked in the nearby

vicinity with various contractors, and since the family of the

prosecutrix (PW1) was not acquainted with the appellant it is quite

possible for them to have assumed that the appellant also resided in

the same vicinity.

15. The last submission of the learned counsel for the appellant

that no opinion of the gynaecologist is sought is factually incorrect.

Both the deposition of Dr. Monika Jain (PW10) as well as a perusal of

the MLC (Ex.PW4/B) of the prosecutrix (PW1) would show that her

opinion is recorded on the MLC in the portion marked „X to X‟.

16. Having regard to the discussion hereinabove, I am of the

opinion that the prosecution has been able to prove its case against

the appellant beyond a reasonable doubt. Therefore, I have no

difficulty in sustaining the impugned judgment of the trial court.

Consequently, the appeal is dismissed.

RAJIV SHAKDHER, J OCTOBER 09, 2009 kk