Nadeem vs The State
2009 Latest Caselaw 4122 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Crl. A. No. 622/2006

                               Reserved on: October 8, 2009

                          Pronounced on: October 13, 2009

#       NADEEM                                 ..... Appellant

!                         Through:    Mr.    Ashish     Dhingra,
                          Advocate

                     Versus

$       THE STATE
        (GOVT. OF NCT OF DELHI)               .....Respondent

^                         Through: Mr. Amit Sharma, Addl.PP.

CORAM:

    HON'BLE MR. JUSTICE V.K. JAIN



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

        2. To be referred to the Reporter or not? Yes

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




V.K.Jain, J.

This is an appeal against the judgment dated

4.4.2006 and Order on Sentence dated 5.4.2006, whereby

the appellant was convicted under Section 376/506 and 292

I.P.C. and was sentenced to undergo R.I. for a period of eight

years and pay a fine of Rs.5,000/- or to undergo RI for one

year in default, u/s 376 of IPC, to undergo R.I. for a period of

two years under Section 506 I.P.C. and to undergo R.I. for

one year and pay a fine of Rs.1,000/- or undergo R.I. for three

months in default u/s 292 of IPC.

2. The case of the prosecution in nutshell is that the

prosecutrix was studying in Class V of ABC Mamta Nursery

School, in Welcome Colony of Delhi. On 11.3.2004, after the

prosecutrix had finished her examination, the appellant who

was the Principal/owner of the School, stopped her and asked

her to clean his office, which was on the first floor of a

nearby building. When she went to the office, the appellant

also reached there, bolted the door from inside, and started

teasing her. He showed obscene pictures in a book as well as

on the television, to her. Thereafter, he forcibly raped her,

threatening to kill her, in case she complained to her mother.

The matter was not reported to the police till 7.4.2004 when,

on receipt of information regarding a quarrel at D-69,

Kabutar Market, Welcome Colony, the Investigating Officer

reached there. He found no quarrel taking place at the spot.

When he came back to the police station, the prosecutrix and

her mother were present there. He recorded the statement

of prosecutrix in which she alleged rape by the appellant.

3. During trial, the prosecutrix came in the witness

box, as PW-I and stated that on 11.3.2004 when she was

going home after her paper was over, at about 11 A.M., the

appellant, who used to teach them in the school, asked her to

accompany him to the office. He asked her to sweep and

clean the office, which was situated in the Gali. Thereafter,

he did 'Gandi Harkat' with her. He also showed obscene

pictures in the book Ex. PW1/C as well as on television to her

and asked her to put off the clothes and dance with him. The

iron gates were also closed by him. He raped her and

threatened to kill her, in case she complained to her mother.

She informed her parents about the incident on 5.4.2004.

She proved her statement recorded under Section 164

Cr.P.C. and also identified the book Ex.PW-1/C.

4. PW-2 Mst. Kaniza, who is the mother of the

prosecutrix, stated that on 5.4.2004, when her daughter

refused to go to her school, she asked the reason for

declining to go to school. The prosecutrix stated that on

11.4.2004, the appellant had taken her to the office for the

purpose of cleaning it and there he had raped her and

thereafter threatened to kill her, in case she informed

anyone about his action. PW-3 Constable Anil Kumar has

stated that on 8.4.2004, he joined investigation with the I.O.

and the appellant got recovered one book having obscene

pictures, from the drawer of the table inside his office.

PW-7 Dr.Suchi is a radiologist who opined that the

age of the prosecutrix was between 16-18 years. PW-8

Dr.Asha Sharma, is a senior gynaecologist who has proved

the MLC of the prosecutrix and has stated that on medical

examination of the prosecutrix, her hymen was found to be

torn. PW-10 SI Gokal Chand of PS Anand Vihar, Delhi, is the

Investigating Officer of the case. He has stated that after

arresting the appellant, he recovered one obscene book at his

instance, besides carrying out other investigations. In cross-

examination, he stated that there was no tenant in the

building in which the rape was committed. He further stated

that since the prosecutrix had burnt the clothes which she

was wearing at the time of rape, the same could not be

seized.

5. In his statement under Section 313 of Code of Criminal

Procedure, the appellant denied that the prosecutrix was

studying in ABC Nursery School in V standard in March,

2004. He denied being a teacher in that school and stated

that he was the owner of the school and was just supervising

the work of the other people. He denied the accusation

against him and stated that he was implicated because of

inimical relations with Nadeem Pradhan and Baba Zahoor,

members of the Madarasa Committee, who had asked him to

settle the matter regarding the quarrel with a teacher

namely Rakesh Kumar. He further stated that the

prosecutrix was studying with him for the last five years and

a fee of Rs.2000-3000/- was due from her. Since the fee was

not paid, there was a quarrel and he turned her out of the

class. She was, however, allowed to take all the exams, on

the request of her father, who assured payment of the fee at

the time of the examination. According to him, on 5.4.2009,

he demanded the fee again but her mother insisted on

payment at a later date and misbehaved with a teacher. He

told them that he would not release the result until fee was

paid. On 6.4.2004, brothers of the prosecutrix came to him

with a request to admit the prosecutrix in the school, but, he

refused whereupon he was beaten upon by them and some

other gunda people brought by them. His gold chain and

Rs.20,000/- were also snatched by them. He was taken to

police station by Shalu Madam. He has further stated that all

the 4 rooms including the room where the rape is alleged to

have been committed had been let out by him.

6. The appellant produced seven witnesses in his defence

and also came himself in the witness box as DW-8. DW-1

claims to be the owner of House No.A-56 and A-59, Welcome

Colony and has stated that the appellant used to run a school

in the said premises. He further stated that on 7.4.2004, five

or six persons gave beating to the appellant and ran away.

DW-2, Smt. Shalu was working under the appellant at the

relevant time. She has stated that on 7.4.2004, 2-4 persons

came to the school and gave beating to the appellant, who

was taken by her to the hospital. DW-3, Mrs. Neeru was also

working under the appellant during the relevant time and she

had stated that on 7.4.2004, when the prosecutrix was sent

back to bring fee, she came accompanied with her mother,

who had exchange of hot words with the appellant.

Thereafter, brothers of the prosecutrix came there and gave

a beating to the appellant. They also snatched his chain and

removed some money from his pocket. DW-4, Azimuddin,

DW-5 Mohd. Usman and DW-6 Shah Nawaz stated that they

were tenants in respect of one room each under the

appellant, in respect of House No. E-11, Welcome Colony and

there was no office in that house. DW-7 Smt. Shakeela is the

mother of the appellant. She has stated that on 7.4.2004,

brothers of the prosecutrix, accompanied by 3-4 boys came

there and asked the appellant as to how he dared demand fee

from their sister. When the appellant protested, they gave

beating to him. They also snatched his chain and removed

Rs.20,000/- from his pocket. In his statement on oath, the

appellant stated that the prosecutrix was the student of class

IV in his school. Sometimes, the fees used to be due from

her. On 7.4.2004, he sent her to her house to bring her fee.

She came back accompanied by her mother. The brothers of

the prosecutrix also came there along with 4-5 persons and

gave beating to him. They also snatched his gold chain and

money. According to him, Baba Zahoor had an old enmity

with him. He denied raping the prosecutrix and stated that

all the four rooms in E-11, Welcome Colony had been rented.

7. Learned Counsel for the appellant has pointed out

certain discrepancies in the evidence produced by the

prosecution. It was pointed out that though the case of the

prosecution is that the prosecutrix was raped on 11th March,

2004, in her statement under Section 164 of the Code of

Criminal Procedure, she stated that the incident took place

on 10th April, 2004. In my view, this discrepancy, as regards

date of the incident, is of no consequence, since it is an

admitted case that the FIR was registered and the appellant

was arrested on 7th April, 2004. Therefore, the incident in

question could not have happened on 10th April, 2004 and

there is an obvious mistake as regards the date of the

incident, given in the statement of the prosecutrix recorded

under Section 164 of the Code of Criminal procedure.

8. It was next pointed out by learned defence counsel that

according to Radiologist, the age of the prosecutrix was

between 16 to 18 years, whereas in her deposition in the

court as well as in her statement under Section 164 of Code

of Criminal Procedure, she has given her age as 12 years.

Since this is not the case of the appellant that he had sexual

intercourse with the prosecutrix with her consent, her age

becomes immaterial and consequently the discrepancy in the

age given by the prosecutrix and the age determined by the

Radiologist becomes irrelevant.

9. It was next pointed out that in her statement under

Section 164 of the Code of Civil Procedure, the prosecutrix

stated that after 3-4 days of the incident, when she declined

to go to school, her mother asked her as to why she was not

going to the school and thereupon she told her about the

incident with her, whereas, in their deposition in the court,

the prosecutrix as well as her mother have stated that the

incident was reported by the prosecutrix to her mother only

on 5th April, 2004.

The prosecurtrix comes from an under privileged

section of the society and was a student only of class V at the

relevant time. Her statement under Section 164 of the Code

of Criminal Procedure was recorded about 2 months after the

incident had taken place. Taking the literacy level of the

prosecutrix and her social background into consideration,

such contradiction cannot be said to be so material as would

persuade the court to altogether discard the testimony of the

prosecutrix which otherwise has very well stood the test of

cross examination. Such minor contradiction does not to the

root of the prosecutrix case if it is otherwise found to be

reliable and convincing. While appreciating the evidence of a

witness, the approach of the court should be to see whether

the evidence of the witness, if read as a whole, appears to

have a ring of truth or not. Once the court forms an opinion

that the witness appears to be speaking truth, it should

evaluate his/her evidence in the light of the discrepancy and

infirmity pointed out in her deposition and then decide

whether its earlier impression about the evidence of the

witness stands shaken on account of such deficiencies and

infirmities so as to render it unworthiness of reliance. Minor

discrepancies on matters which do not touch the core of the

case should not be given undue importance and would not

ordinarily warrant rejection of the testimony of the witness

as a whole. In the absence of strong and convincing reason,

it would not be appropriate for the court to reject the

testimony of a witness on ground of minor contradictions

here or there on matters which are not really significant to

the case. It was held in a decision reported in AIR 1988 SC

696 that while appreciating evidence, the courts must not

attach undue importance to minor discrepancies which do

not shake the basic version of the prosecution case and those

discrepancies may be discarded.

Not everyone has equal capacity of observation,

retention and reproduction of matters to which he is a

witness and therefore it would not be fair and reasonable to

accept every witness to give an exact and meticulous version

of the matter at a later date. This is more so when the

witness is of a rather tender age and has a weak social

background. With regard to time or duration of an

occurrence, people normally tend to make estimate by way of

some guess work, at the time of their examination and

therefore they cannot be expected to always make a precise

estimate in such matters, particularly when they are

examined at different times and before different forums. The

court cannot he oblivious to the fact that when the

prosecutrix was produced before the learned Magistrate for

recording her statement under Section 164 of Cr. P.C., she

may still not have fully come out of the trauma faced by her

at the hands of the rapist and therefore must be under

immense pressure not only on account of the incident that

happened with her but also on account of the fact that for the

first time in her life, she was facing Police Station and

Courts. In such an environment, if she has made a wrong

estimate about the number of days after which she narrated

the incident to her mother, they by itself would not be

enough to impeach her credibility as a witness. Some

discrepancy her and there are bound to occur in the

deposition of such a witness, attributable to normal errors of

memory and mental disposition on account of the shock and

horror to which she was subjected to on account such an

incident. In fact, it is a traumatic for the victim of rape,

when in totally unfamiliar surroundings, she is asked to

narrate all that which took place with her. She would

normally be too nervous or confused at that point of time and

some discrepancies in the statement of the witness who has

been subjected to such a gruesome act are only natural and

expected.

10. It was pointed out by learned counsel for the appellant

that in the Rukka sent by him the Investigating Officer

recorded that the place of occurrence as ABC Mamta

Nursery School, Kabootar Market, Welcome, Delhi D-69,

Kabootar Market, Welcome, whereas the case of the

prosecution is that the prosecutrix was raped in property No.

E-11, Welcome. In fact, D-69, Kabootar Market, Welcome is

the residential address of the prosecutrix. This is not the

case of anyone that ABC Mamta Nursery School was being

run in property No. D-69, Kabootar Market, Welcome, Delhi.

Obviously there was an error on the part of Investigating

Officer in recording the place of incident. When the

Investigating Officer was cross examined, he was not asked

as to why had had given place of incident as D-69, Kabootar

Market, Welcome, in the rukka prepared by him. Since no

opportunity was given to the Investigating Officer to explain

this aspect of the matter, no adverse view against the

prosecution can be taken on account of such a mistake. In

any case, the case of the prosecution cannot be rejected only

on account of an error made by the Investigating Officer

while writing the rukka when it has absolutely no implication

on the merits of the case. As held by the Hon'ble Supreme

Court in a decision reported in JT 1995 (6) SC 437, it is not

proper to acquit the person due to defective investigation if

the case otherwise stand established as being so would be

falling into the hands of erring IO.

11. It was also pointed out by the learned counsel for the

appellant that the medical examination of the prosecutrix

does not show any injury on her person. A perusal of the

MLC would show that hymen of the prosecutrix was found

torn at 7 O'clock and 5 O'clock position. Moreover, the

medical examination was conducted about four weeks after

the incident of rape. No visible mark of injury was likely to

be present on her body at that time. Moreover, the

prosecutrix being of tender age at that time, she being alone

in the room which had been locked, the appellant being none

other than the owner/Principal of her school and she being

under threat from the appellant, it would be unreasonable to

expect her to have put a tough resistance to the advances of

the appellant. In fact this is not at all the case of the

prosecutrix that she had put a tough resistance to the act of

the accused. Moreover, the visible injury on the person of

the prosecutrix would be material when either she says that

she had actually put up a tough resistance or the accused

alleges that this was a case of sex by consent. Neither is the

case here. Therefore, absence of marks of injury on the

private part of the prosecutrix at the time of her examination

on 7.4.04 would not be material in the facts and

circumstances of the case.

12. In a leading case Bhogin Bhai Vs. Hirji Bhai AIR 1983

SC 753, the Hon'ble Supreme Court gave a number of

reasons to accept the testimony of prosecutrix in a rape case.

One of the reasons given by the Hon'ble Supreme Court was

that "the parents of an unmarried girl would also want to

avoid publicity of such incident on account of fear of social

stigma on the family name and family honour. The parents of

the prosecutrix in this case must be conscious of the

consequences when they reported the matter to the police,

produced their daughter before the Investigating Officer for

recording her statement and then produced her in the court

for deposition. Therefore, it is not at all likely that they

would set up a false case when it may result in social stigma

being attached to their family and the entire future of their

child being in jeopardy. They would gather courage to take

these steps only after they are absolutely sure of the

dishonor inflicted on their daughter.

13. Ordinarily, an young girl of the age of the prosecutrix

would not level false allegations of rape. Her family

members also would not like to jeopardize her future by

using their young family member as a tool for settling a

vendetta, even if they are inimical to a person. The only

reason given by the appellant for the prosecutrix to make

false allegation of rape against him is that one Baba Zahoor

and one Hasin Pradhan, who were members of Madarsa

Committee wanted him to intervene in a quarrel involving a

teacher namely Rakesh Kumar. There is no evidence other

than a bald assertion of the appellant to show that Hasin

Pradhan and Baba Zahoor had asked him to intervene in a

quarrel which had taken place between a teacher namely

Rakesh Kumar and the sons of Hasin Pradhan or that in fact

there was such a quarrel. Rakesh Kumar has not been

produced in the witness box, though, this is not the case of

the appellant that Rakesh Kumar was also inimical to him.

Neither in the cross examination of the prosecutrix nor in the

cross examination of her mother it was suggested to them

that Baba Zahoor and Hasin Pradhan had asked the appellant

to intervene in a quarrel between Rakesh Kumar, on the one

hand, and sons of Hasin Pradhan, on the other hand and

since he declined to do so, he has been implicated by them in

this case. It appears difficult even to conceive that merely

because the appellant declined to intervene in a dispute

between the sons of Hasin Pradhan and a teacher namely

Rakesh Kumar, Hasin Pradhan and Baba Zahoor went to the

extent of getting the appellant implicated in a false case of

rape. Moreover, it cannot be accepted that merely at the

instance of a person known to them, the prosecutrix and her

family members would go to the extent of implicating the

appellant in a rape case involving their young daughter. The

defence taken by the appellant in this regard is patently

unbelievable and in fact does not even deserve a serious

consideration.

14. The learned counsel for the appellant has referred to

the decision of Hon'ble Supreme Court in Lalliram & Anr v.

State of M.P. ; 2008 (4) JCC 2813. In that case, the case of

the prosecution was that when the prosecutrix along with her

husband was passing from fields, the appellant abused the

prosecutrix, gave beatings to her husband and took her near

a well, where they raped her repeatedly in the night. At the

time of medical examination on 25.9.85, no external injuries

were found on her body. The trial court found various

inconsistencies in the deposition of the prosecution witnesses

and a defence witness also probablised the defence taken by

the appellants. During the course of the judgment, the

Hon'ble Supreme Court noted that though injury is not sine

quo non for deciding whether the rape was committed,

whether allegation is of rape by many persons and several

times but no injury is notice that certainly is an important

factor and if the version of the prosecutrix is not credible,

then there would be need for cooperation. In taking this

view, the Hon'ble Supreme Court referred to the case of

Aman Kumar & Ors. V. State of Haryana 2004 (1) JCC 409.

However, the present case is not a case of rape by several

persons and there are no allegations of the prosecutrix

having been raped several times. She was medically

examined after about 4 weeks of the incident. Therefore,

absence of injury on her person would be of no consequence,

particularly when her hymen has been found to be torn at 7

O'clock and 5 O'clock position. In Aman Kumar & Ors. V.

State of Haryana (Supra), the Hon'ble Supreme Court had

observed that a prosecutrix complaining of having been

victim of rape is not an accomplice and there is no rule of law

that her testimony cannot be acted upon without

corroboration in material particulars. It was further observed

that such a person stands on a higher pedestal than the

injured person, she having been injured physically as well as

psychologically and emotionally. Only if the court finds it

difficult to accept the version of the prosecution on the face

value, it may search for evidence direct or circumstantial. In

the case of Lalliram & Anr. (Supra), there were allegations of

injuries on her cheeks, legs and back, but no such injury was

found in her first medical examination. There were a number

of other discrepancies in her deposition which were noted by

the Trial Court as well as the Hon'ble Suprme Court.

Therefore, this judgment is of no help to the appellant.

15. The learned counsel for the appellant has next referred

to the decision of a Division Bench of this court in Chander

Dev Rai v. The State (NCT of Delhi); 2009 (1) JCC 67. In

that case a girl of two years was found missing by her family

members. On hearing the cries of the child, coming from the

house of the appellant, her father reached there and found

the child wrapped there in a blanket. The child at that time

was bleeding from the vagina. There was no direct evidence

of rape upon the appellant and there was no incriminating

evidence against him except that she was found in the room

of the appellant, wrapped in a blanket and bleeding at that

time. No stain of semen was found either on the garment or

the under garment of the prosecutrix or on her private parts.

No forensic evidence was found to connect the appellant with

the injuries found on the abdomen of the prosecutrix despite

taking the nail clippings of the appellant and analyzing them

for any skin tissues and / or blood of the prosecutrix. The

prosecution had failed to prove that the appellant was alone

in the house at that time and his wife and daughter were not

present. There was no conclusive evidence to show that the

girl was with the appellant from 7 pm when she was

allegedly lost till 9.45 pm when she was recovered from the

room of the appellant. The case of the appellant was that he

had found the child crying on the road and that since he

could not trace her parents, he brought her home. There was

no reason to doubt the case of the appellant that his wife and

one child were present at the place of incident around that

time when the offence purported to have been committed.

The blanket in which the child was found wrapped was not

seized by the prosecution. The Division Bench also found

that the prosecution had failed to prove, with whom the child

was before she was picked up by the appellant. She has nail

marks which were not of the appellant and her vaginal swab

did not have the semen of the appellant. There were a

number of other circumstances which cast serious doubt on

the truthfulness of the case of the prosecution. In the facts

and circumstances of the case, it was held that the chain of

circumstantial evidence alleged against the appellant was not

complete. The facts of the case before this court are

altogether different. Here, the prosecutrix has come in the

witness box and has supported the case of the prosecution

and her testimony could not be impeached during cross

examination. Therefore, the judgment relied upon by learned

counsel for the appellant has no application to the facts of

the present case.

16. The learned counsel for the appellant has lastly

referred to the decision of a Division Bench of this court in

Criminal L.P. No. 144 of 2009 decided on 12th August, 2009.

In that case, the prosecutrix claimed to have been raped

firstly in September, 2005 then in December, 2005 and lastly

in January, 2006. There was no evidence to show that her

hymen was raptured. She stated that her younger brother

was present in the house when she was raped in the night in

September, 2005, on the roof of her house. The Trial Judge

did not believe that the prosecutrix could be raped in her

house in the night when all the family members were

expected to be present. The prosecutrix had claimed that it

was in the bath room of the house that she was raped in

December, 2005 and January, 2006. However, in the cross

examination, she stated that size of the Bath Room was 3 feet

x 3 feet. In these circumstances it was felt that prosecutrix

was shaky witness. The Division Bench found it difficult to

accept that a girl in her teens could be raped in a bath room

of 3 ft. x 3 ft. In these circumstances, leave to appeal was

refused to the State. The facts of the present case, however,

are altogether different, and the Trial Court also has believed

the version given by the prosecutrix.

17. It was lastly pointed by learned counsel for the

appellant that there was delay of about 27 days in lodging

the FIR. As deposted by the prosecutrix herself as well as by

her mother, the incident that took place with the prosecutrix

was disclosed by her to her mother only on 7.4.04. The FIR

was lodged on the same day. Thus, there was no delay in

lodging the FIR, once the matter came to the knowledge of

the family of the prosecutirx. As regards delay on the part of

the prosecutrix in disclosing the incident to her mother, it is

to be borne in mind that she was a rather immature girl and

the appellant was not an unknown person but the Principal/

Owner/Teacher of her school. There is a natural feminine

tendency to conceal the outrage of masculine sexual

aggression. This is more so when the factum comes from a

weaker section of the society, is not well educated and the

aggressor is not only very well known to her but also

occupies a rather high pedestal in the society, he being her

teacher/principal. There would be a natural tendency on the

part of a school going girl, to conceal an incident of this

nature even from her family members. She would be

apprehensive that seeing the status of the appellant, she may

not be believed. The very fact that she declined to go to the

School on 7.4.04 is yet another corroboration of the

aggression committed by the appellant. It was only because

of the incident that had taken place wither her that the

prosecutrix declined to go to the school on that day. She had

no option but to disclose the incident to her mother when she

persisted in asking her to tell why she was not willing to go

to the school. A girl of tender age, coming from a rather

conservative society like ours would be extremely reluctant

to disclose such an incident lest it reflects on her chastity,

conscious as she would be of the danger of being shunned by

her neighbours, relatives and even her own family members

who may eventually find one or the other fault on her part.

In these circumstances, the delay in disclosing the incident to

the mother of the prosecution cannot be said to be abnormal

and is not a sufficient ground for discarding the case of the

prosecution on this ground alone.

18. It was submitted by learned counsel for the appellant

that all the four rooms in house No. E-1, owned by the

appellant had been let out to the tenants and none of them

was being used by him, as stated by DW-4 to DW-6. I find

that the IO has specifically stated in his cross examination

that there was no tenant in the building in which the rape

was committed. Despite his specific deposition in this

regard, no suggestion was given to him in his cross

examination that all the four rooms in his house No. E-11,

Welcome, were let out to the tenant. There is no

documentary proof of DW-4 and DW-5 or DW-6 of being a

tenant in house No. E-11, Welcome. No rent receipt, rent

deed or proof of a payment of rent has been produced by any

of them in the court. In these circumstances, the deposition

of DW-4 to DW-6 does not inspire confidence and cannot be

believed.

19. As regards clothes of the prosecutrix not being seized,

it has come in the deposition of the IO that prosecutrix had

burnt the clothes which she was wearing at the time of rape

and therefore the same could not be seized. Since the

prosecutrix did not disclose this incident to her mother soon

after it was committed, it is quite probable that she had

destroyed the cloth so that her mother does not come to

know of the incident. Even otherwise, the clothes could not

have remained unwashed for so many days and no blood

stain or semen stain would have been found on them after 4

weeks even if the prosecutrix had not destroyed them.

20. It was pointed out by learned counsel for the appellant

that as per the Date Sheet Ex. PW1/DA, the test of drawing

was scheduled to be held on 22.3.04 whereas the case of the

prosecution is that prosecutrix had appeared in the test of

drawing on 11.3.04. In this regard, I find that the date sheet

Ex. PW1/DA does not show that it pertains to examination for

standard 5th in which the prosecutrix was studying at that

time. Moreover, in her cross examination, no suggestion was

given to the prosecutrix that her drawing test was schedule

on 20.3.04 and that she had appeared in drawing test on that

day. In the absence of any suggestion to the prosecutrix in

this regard, no advantage can be taken by the appellant on

account of this contradiction as regards the subject of the

test in which the prosecutrix appeared on 11th March, 2004.

In fact it was also not suggested to her in the cross

examination that she had appeared in any test on 20.3.04.

Therefore, the testimony of the prosecutrix cannot be

discarded on this ground also.

21. The deposition of the prosecutrix finds corroboration

from the recovery of obscene book Ex. PW1/C from the office

of the appellant. The book has been identified by the

prosecutrix and the appellant has not given any explanation

for such a book being found in his office.

22. The plea taken by the appellant is that he was given

beatings by the brothers of the prosecutrix when he refused

to admit her on account of non payment of fee. No

documentary evidence has been produced by the appellant to

prove that any fee was due from the prosecutrix. Though,

the appellant chose to come in the witness box as DW, he did

not produce record of the school to prove the alleged dues of

fee from the prosecutrix. Therefore, the plea taken by him in

this regard cannot be believed as he has not produced the

best evidence which was available to him and was very much

in his possession to prove the alleged dues of fee payable by

the prosecutrix.

23. The MLC of the appellant shows that he was given a

beating on 7.4.2004. The case of the appellant is that the

brothers of the prosecutrix and their friends gave him

beatings when he refused to admit the prosecutrix in the

school without payment of arrears of fees. In my view, the

factum of beatings given to the appellant proves the case of

the prosecutrix in stead the proving the defence set up by the

appellant. If a family is not in a position to pay the fees of

their child, they would go and make a request to the school

administration for further time and no sensible person would

give beatings to the owner / Principal of the school merely

because he insists on payment of arrears of fees due from the

student. Such a course of action would be against normal

course of human conduct and is not likely to be resorted to.

On the other hand, if the brothers are told about the rape

with their sister, it would be in natural reaction on their part

to go and thrash the person who committed such a heinous

act. Therefore, the act of the brothers of the prosecutrix in

giving beating to the appellant on 7.4.04 is yet another

circumstance which corroborates the case of the prosecution.

24. For the reasons given above, I am of the considered

view that the appellant has rightly been convicted under

Sections 376 & 506 of Indian Penal Code. However, offence

under Section 292 of IPC is not made out from showing an

obscene book to the prosecutrix in the office of the appellant.

The possession of an obscene book is punishable u/s 292 of

IPC only if it is for the purpose of selling, hiring, distribution,

exhibition or circulation. If an obscene book is just kept in a

house and is not being used for selling, hiring, distribution,

exhibition or circulation, no offence under Section 292 of IPC

is made out. Therefore, the appellant is not guilty of the

charges under Section 292 of IPC.

25. For the reasons given the preceding paragraphs, while

acquitting the appellant of the charge under Section 292 of

IPC, his conviction under Sections 376 and 506 of IPC is

maintained.

26. Keeping in view all the facts and circumstances of the

case including that the appellant has been in custody for

more than five years, he is sentenced to undergo Rigorous

Imprisonment for 7 years and to pay fine of Rs. 5,000/- or to

undergo Simple Imprisonment for 3 months in default under

Sec. 376 IPC. The sentence awarded to him by the learned

Trial Court under Section 506 of IPC is maintained. The

sentences will run concurrently. One copy of this order be

sent to the concerned court, whereas another copy be sent to

the concerned Jail Superintendent for record and for

information of the appellant.

(V.K. JAIN) JUDGE October 13, 2009/acm