Chander Shekhar vs State
2009 Latest Caselaw 4285 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL.A. 94/2006

                                          Reserved on: October 13, 2009

                                        Pronounced on: October 23, 2009

#       CHANDER SHEKHAR                                        ..... Appellant

!                                 Through: Ms. Rakhi Dubey, Advocate

                          Versus

$       STATE                                             .....Respondent

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

This is an appeal against the Judgment dated 21st January,

2006 and Order on Sentence dated 28th January, 2006, whereby

the appellant was convicted u/s 376 and 506 of Indian Penal Code

and was sentenced to undergo rigorous imprisonment for 10

years and pay fine of Rs.1,000/- or to undergo simple

imprisonment for one month in default u/s 376 of Indian Penal

Code and was further sentenced to undergo rigorous

imprisonment for one year u/s 506 of IPC.

2. In nutshell, the case of the prosecution is that the appellant

is the step father of the prosecutrix, aged about 9 years at that

time, who was residing with her grandfather in Ghaziabad,

whereas the appellant was residing in Loni along with his wife

and mother of the prosecutrix, Smt. Chanderwati. On 23rd March,

2004, the appellant took the prosecutrix with him on the pretext

of taking her to Vaishno Devi. He took her to his house in

Shahpur Jat and committed rape on her person. The prosecutrix

was left back at the house of her grand-father on 24th March,

2004. Since the prosecutrix had tooth bite and marks of injuries

on her body and was finding it difficult to walk, an inquiry was

made from her in this regard. She informed her grand-mother

that the appellant had raped her twice at Shahpur Jat on 23rd

March, 2004 and had also threatened to kill her, in case she

disclosed the incident to anyone. The grand-father of the

prosecutrix, namely, Sh. Om Prakash went to police station

Ghaziabad in the morning of 25th March, 2004. He was asked to

go to police station Hauz Khas as the crime had taken place in

the jurisdiction of that police station. He then went to police

station Hauz Khas and lodged FIR against the appellant.

3. During trial, the prosecutrix was examined as PW-6. She

stated that on 23rd March, 2004, the appellant, who is her father,

took her from Ghaziabad to Shahpur Jat, saying that they had to

go to Vaishno Devi. The house at Shahpur Jat belongs to her

father, Chander Shekhar. In the night, the appellant first

removed her clothes and then put his private part in her private

part, after removing his own clothes. He also asked her not to

disclose the incident to anyone and threatened to kill her if she

did so. She also stated that the appellant gave bites on her

cheeks and lips. She further stated that on 24th March, 2004

since she was not walking properly, her grand-mother noticing

the marks on her face, made inquiry from her. She narrated the

incident to her grand-mother. When her grand-father returned

home, the incident was narrated to him. Her grand-father first

took her to police station Ghaziabad and from there he brought

her to Delhi, where the police made inquiries from her and took

her to the hospital. She further stated that her statement was

recorded before the Magistrate and she had taken the police to

the house of her father where he had committed rape with her.

4. The grand-father of the prosecutrix was examined as PW7.

He stated that the first marriage of his daughter was solemnized

with one Bhagwati Prasad. Thereafter, he solemnized her

marriage with the appellant Chander Shekhar. The prosecutrix

was born from the wedlock of his daughter with Bhagwati Prasad

and was living with him at Ghaziabad, where as the appellant

Chander Shekhar was residing at Shahpur Jat, Delhi. He further

stated that the appellant came to his house and said that his

mother was going to Vaishno Devi and, therefore, they wanted to

take the prosecutrix along with them. He brought her to Delhi

and left her back on 24th March, 2004. In the evening of 24th

March, 2004, he noticed bite marks on the cheeks and lips of the

prosecutrix and found that she was not able to walk properly. On

inquiry, she informed him that the appellant had given bites on

her cheek and lips and had established physical relations with

her. In the morning of 25th March, 2004, he went to Ghaziabad

where he was asked to go to police station Hauz Khas. He then

came to police station Hauz Khas where her statement was

recorded. The prosecutrix was got medically examined and her

under-garments were handed over to police. Thereafter they

went to the house of the appellant and one Sari which was lying

on the bed was seized from there. The prosecutrix also took out

one socks lying under the coat. That socks was also seized by the

police.

5. PW-8 H.C. Rajesh and PW-10, ASI Vimla, who conducted

the investigation, have stated that when they went to the house of

the appellant, the prosecutrix took out a pair of socks from under

the coat and the same was seized. They have also deposed about

seizure of one Sari from the house of the appellant.

6. PW1, Dr. Shalini examined the prosecutrix at AIIMS on 25th

March, 2004 and found bite marks over her body. PW4 Dr.

Meenakshi also examined the prosecutrix at AIIMS on 25th

March, 2004 and found injuries on her face and elbow. No injury

was found by her on the genital area of the prosecutrix. The

hymen of the prosecutrix was found to have an old tear.

7. In his statement u/s 313 of Cr.P.C., the appellant admitted

his relationship with the prosecutrix but denied having taken her

from the house of her grand-father on 23rd March, 2004. The

stand taken by him was that his father-in-law had made false case

against him as he was demanding money from him for his

purpose. He further stated that earlier also, he was got arrested

by his father-in-law on the false allegations that his wife was

killed by him, though she is still alive. According to him, the

prosecutrix made a statement at the instance of his father-in-law

because he had a quarrel with him about 15 days ago and at that

time his father-in-law, Sh. Om Prakash had threatened to

implicate him in a false case. He has also claimed that during the

alleged incident, his wife used to live with his father, along with

the prosecutrix.

8. The appellant produced two witnesses in his defence. PW-1

Chanderwati is the mother of the prosecutrix and wife of the

appellant. She stated that on 23rd March, 2004 she had come to

the house of her father as they were planning to go to Vaishno

Devi. The plan was, however, cancelled due to sudden ill-health

of her father-in-law. Next day, she came to Loni along with her

husband. She further stated that on 24th March, 2004, the police

came to Loni and took her husband who then was arrested in this

case. She has further stated that her father had demanded

Rs.50,000/- for the Marriage of the prosecutrix.

PW-2, Kamla Wati is the mother of the appellant. She has

stated that father-in-law of her son was demanding Rs.50,000/-

from him for the marriage of the prosecutrix. She further stated

that on 23rd March, 2004, they were planning to go to Vaishno

Devi but the programme was cancelled as her husband fell ill

and, therefore, her daughter-in-law came back on 24th March,

2004. She further stated that on that day, the appellant was

taken by the police from his house.

9. The learned Additional Sessions Judge has believed the

prosecutrix and I see no reason to take a contrary view. Though

the prosecutrix is a child who was aged about nine years at the

time of her deposition in the court, the preliminary questions put

to her by the court leave no doubt that she was capable of

understanding the questions put to her and of giving a rationale

answers to them. She was asked as to how many brothers she

had. The reply given by her is correct. She was asked in which

school she was studying and she replied that she was studying in

a government school. She was asked as to whether speaking

truth is good or telling a lie is good. She gave a right answer by

saying that speaking truth is good. She did not fumble on any

questions and gave precise and correct answers. The testimony

of the prosecutrix was assailed by the learned defence counsel

relying upon her cross-examination in which she stated that her

grand-father had told her what she had to say and she had stated

accordingly. In my view, the evidence of the prosecutrix cannot

be appreciated in piecemeal and has to be examined as a whole.

What the court has to see is as to whether the testimony of the

witness, if read as a whole, appears to have a ring of truth in it or

not. Once this is done and the court feels that the testimony of

the witness appears to be truthful, the deficiencies and

contradictions pointed out in her examination have then to be

considered to take a view as to whether the initial impression

formed by the court about truthfulness of the witness stands

changed on account of those deficiencies or not. The prosecutrix

has given a vivid description of the incident which took place with

her on 23rd March, 2004. She also disclosed the utterances made

by the appellant at the time of committing rape on her person.

She told the court that the appellant had said to her that he

would be her husband when she got married. A child of 9 years

could not have concocted and attributed such statements to her

own father, unless the same were true. As regards alleged

tutoring by her grand-father, she specifically stated that though

her grand-father had told her about the dirty things done with

her, that was actually done by her father ("gandaa karne ki baat

nana ne batai thee papa ne kiya thaa"). If the incident as

narrated by the prosecutrix had actually happened with her, it is

immaterial if her grand-father had, before she came to the court,

asked her to narrate that incident during her examination in the

court. A witness who narrates the incident which actually took

place with him/her cannot be said to be a tutored witness even if

some family members asked her to narrate her the incident in the

court. In fact, during cross-examination, she denied that her

grand-father had asked her to state in the court about her father

coming to Ghaziabad to take her to Vaishno Devi. She voluntarily

stated that the day her father came to Ghaziabad, her grand-

father had told her that her father had come to take her to

Vaishno Devi. She specifically denied the suggestion that on the

day of the incident, she was in Ghaziabad and that the appellant

had not done anything wrong with her. She also denied the

suggestion that tooth biting was given to her by some child in the

school.

10. The legal proposition is that since a child is prone to

tutoring by her parents, the court may, in appropriate cases, look

for corroboration of his/her deposition. In the present case, there

is ample corroboration of the deposition of the prosecutrix. The

statement made by her to her grand-father soon after this

incident being a previous statement can be used for

corroboration of her deposition in the court, as provided in

Section 157 of Evidence Act. A perusal of the MLC of the

prosecutrix shows that when she was examined by the Doctor,

she gave history of the sexual assault on 23rd March, 2004 by her

step-father. She was also examined by the learned Metropolitan

Magistrate u/s 164 of Code of Criminal Procedure. In her

statement before the Magistrate, she specifically stated that her

father had brought her to his house in Delhi and in the night had

done „bad act‟ with her, besides biting of her face and neck and

had also said that he would become her husband when she got

married. Therefore, the statements of the prosecutrix made to

her grand-father, to the doctor who examined her in the hospital

and to the Magistrate u/s 164 of the Code of Criminal Procedure

fully corroborate her deposition during trial.

11. A perusal of the report of forensic science laboratory

Exhibit PX shows that blood was detected on the Sari, which was

recovered from the house of the appellant in Shahpur Jat. Blood

as well as human semen was detected on a pair of socks which

was lying under the cot at the house of the appellant in Shahpur

Jat, which the prosecutrix had taken out in the presence of the

police officers. There is not an iota of explanation by the

appellant for blood being found on the Sari which was lying on

the cot and was obviously used as a bed-sheet and blood as well

as human semen being found on the socks lying under the coat.

12. It is by now a settled principle of law that there is no

rule of law which requires corroboration of the testimony of the

prosecutrix, before it can be relied upon. If the evidence of the

prosecutrix is found to be cogent and reliable and does not suffer

from any basic infirmity or inherent improbability, this should as

a general rule be accepted without seeking corroboration, except

from medical evidence wherever having regard to the

circumstances of the case such evidence should necessarily be

forthcoming.

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 the 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 social stigma on the family name and

family honour. What applies to the parents of the prosecutrix,

equally applies to her grand-father with whom she is staying and

residing. He would be conscious of the consequence of reporting

such a matter to the police, producing the child before the

Investigating Officer for recording her statement, and then

producing her not only before the Magistrate but also during

trial. He would be conscious of the fact that there may be

hurdles even in the marriage of the prosecutrix on account of

reporting such an incident as not many persons may be willing to

marry a victim of rape. In fact, some of her own friends and

neighbours may go to the extent of holding her at least partly

responsible for such an incident. He would in fact be reluctant

even to produce her firstly before police and then in the court, for

inquiry and trial, since a child of tender age is bound to feel quite

embarrassed and even scared, when subject to intense

questioning and sustained cross examination. Therefore, it is not

at all likely that he would set up a false case when it may result in

a social stigma being attached to the child and her future being in

jeopardy. He would gather courage to take such a step only after

he is absolutely sure of the dishonour inflicted on the child.

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

that no marks of injury were found on the genital area of the

prosecutrix. The contention was that had she been subjected to

rape, she being a child, marks of injury would have been present

on her private part. In the facts and circumstances of this case,

absence of marks of injury on the person of the prosecutrix is

immaterial. It has to be kept in mind that the appellant was not a

stranger to the prosecutrix, he being none other than her step-

father. A child of 8-9 years was not expected to resist such an act

when done by a person who is so close to her. In fact she may

not even be capable of understanding the import and intent of

what she had been subjected to. Moreover, as stated by the

prosecutrix, to the doctor as well as her statement u/s 164

Cr.P.C., this was not for the first time that she was subjected to

physical relations by the appellant. She specifically told the

doctor that earlier also there was sexual assault on her about 1/

½ months ago. In her statement u/s 164 of Cr.P.C., she stated

that earlier also the appellant had done dirty things with her,

implying that she had been subjected to rape earlier as well.

Since the prosecutrix did not offer any resistance at the time the

appellant raped her and this was not for the first time that she

was subjected to such an act by the appellant, there would

obviously be no marks of injury on the vaginal area of the

prosecutrix. Therefore, absence of marks of injury on her vaginal

area is not incompatible with her having been subjected to sexual

assault. It was pointed out by the learned Defence counsel that

the doctor did not notice the prosecutrix that the doctor did not

notice the prosecutrix facing any difficulty in walking. This, to

my mind is of no consequence, as the difficulty which the

prosecutrix was facing in waling on 24th March, may have gone

with the passage of time.

14. Now, I examine the defence taken by the appellant. As

noted earlier, in his statement recorded u/s 313 Cr.P.C., the plea

taken by the appellant is that his father-in-law demanded

Rs.50,000/- from him „for his purpose‟ and since he did not meet

the demand, he was implicated in a false case. On the other

hand, DW-1, who is the wife of the appellant and is a witness

produced by him, has stated that Rs.50,000/- were demanded by

her father, Sh. Om Prakash for the marriage of her daughter.

Similar statement has been made by DW-2 Kamlawati, who is

mother of the appellant. Thus, there is contradiction in the

defence taken by the appellant in his statement u/s 313 Cr.P.C.

and the defence as disclosed in the statement of DW-1 and DW-2.

According to the appellant, his father-in-law had demanded

Rs.50,000/- for his own purpose whereas according to DW-1 and

DW-2, the money was demanded for the marriage of the

prosecutrix. During cross-examination of PW-7, Om Prakash, the

suggestion given to him was that he had asked the appellant to

transfer Rs.25,000/- and a plot of 25 yards in the name of the

prosecutrix. Admittedly, the prosecutrix was aged about 8-9

years when this incident took place. There could have been no

occasion for her grand-father to demand any money from the

appellant for her marriage at that stage. The prosecutrix would

have been of marriageable age after at least 10 years. Therefore,

if her grandfather was to demand any amount from the appellant

for her marriage, he would have done so at that time and not 10

years in advance.

15. Though in his statement u/s 313 Cr.P.C., the appellant has

claimed that his father-in-law had got him arrested on the

allegation of killing his wife, no evidence has been led by him to

substantiate this allegation. He further stated that he had a

quarrel with her father-in-law about 15 days ago and during that

quarrel her father-in-law had threatened to implicate him in a

false case. Admittedly, no report was lodged by the appellant

against his father-in-law. Had any threat been extended to him

by his father-in-law, he would definitely have reported the matter

to the police.

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

that in her cross-examination, the prosecutrix has admitted that

there was a quarrel between her step father and her grand-father

about 15 days before this incident. I find that according to PW-7,

Om Prakash, the quarrel with the appellant had taken place 4

years ago when he had snatched the son of his daughter and had

turned her away, but later on there was a compromise and a

second son was thereafter born to his daughter. He has

specifically denied the suggestion that he had quarrel with the

appellant about 15 days before this incident. As noted earlier, no

report was lodged by the appellant against his grand-father about

the threat alleged to have been given to him. Keeping in view the

specific deposition of PW-7, Om Prakash and absence of any

report regarding the threat alleged to have been given to the

appellant about 15 days before this incident, the statement of the

prosecutrix who is a child of about 8-9 years cannot be given

much weightage. It is quite possible that the child was referring

to the incident which took place about 4 years ago.

17. It was contended by the learned counsel for the appellant

that on the date of this incident, the mother of the prosecutrix

was at the house of her father in Ghaziabad as is evident from the

cross-examination of the prosecutrix where she admitted that it

was her mother who had served food to her on 23rd March, 2004.

A careful examination of the statement of the prosecutrix would

show that on 23rd March, 2004, her mother was not present in the

house of her father in Ghaziabad. The prosecutrix has

specifically stated in her cross-examination that on 23rd March,

2004, her mother did not accompany her father to Ghaziabad. In

fact, she was not aware where her mother was on that day. In

the later part of the cross-examination she again stated that when

her father came, her mother was in Loni. She further said that

her father had come alone and from Ghaziabad he did not take

her to Loni but had taken her to Delhi where her mother was not

present. Therefore, if the testimony of the prosecutrix is read as

a whole, her deposition is that on 23rd March, 2004, the appellant

had come alone to Ghaziabad and at that time he was not

accompanied by her mother. Her statement that on 23rd March,

2004 when she came back from the school, food was served to

her by her mother is either a discrepancy on account of passage

of time and fading of memory which is not unexpected from a

child of her age or possibly she was referring to her grand

mother, who had given food to her on her return from the school.

It would be pertinent to note here that according to DW-1, on 24th

March, 2004, she had returned to Loni with her husband whereas

DW-2 does not say that when she returned to Loni, she was

accompanied by her husband.

18. It was also pointed out by the learned defence counsel that

Sh. Om Prakash, grandfather of the prosecutrix filed an

application before the trial court on 28th January, 2006 stating

therein that whatever was spoken by the prosecutrix was not true

and that she was tutored. The trial court has rightly not taken

any note of this application, which indicates nothing except that

the appellant made fences with his father-in-law at the fag end of

the trial and consequently an attempt was made by the father-in-

law to help the son-in-law by filing such an application. The trial

court has rightly decided the case on the basis of the deposition

of the witnesses during trial and without taking into

consideration the application filed by the father-in-law of the

appellant.

19. A perusal of the MLC of the prosecutrix would show that

bite/injury marks were found on her cheeks and lips. The

prosecutrix has specifically denied the suggestion that bite mark

was given to her by some child in the school. The presence of

bite/injury marks on her person is a corroboration of the

deposition of the prosecutrix. In fact during cross-examination of

PW-7, it was suggested to him that on 23rd March, 2004 at about

9 p.m., the appellant had taken the prosecutrix from his house

saying that they were going to Vaishno Devi and would take her

with them. Giving such a suggestion implies an admission on the

part of the appellant that he had taken the prosecutrix with him

on 23rd March, 2005 on the pretext of taking her to Vaishno Devi

with him.

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

that there is contradiction in the testimony of PW-8 and PW-11 on

one hand and PW-7 Om Prakash on the other hand as regards

obtaining the key of the house from where the Sari and socks

were seized by the police. According to PW-7, room was opened

after taking key from the tenant whereas according to ASI Vimla,

the key was taken from the appellant, who was apprehended from

a park. In my view, this contradiction is immaterial since there is

no dispute that the house at Shah Pur Jat is owned by none other

than mother of the appellant and, therefore, was available to him

on 23rd March, 2004. DW-2, Smt. Kamlawati who is mother of the

appellant has admitted in her cross-examination that she has a

house bearing No.21, Shahpur Jat at New Delhi. DW-1 has stated

in her cross-examination that nobody was staying on 23rd March,

2004 at Shahpur Jat, New Delhi. Since the house where the

crime was committed belongs to the mother of the appellant and

at least a portion of that house was available to the appellant, it

would be immaterial whether that portion was opened after

taking key from the appellant or from a tenant in that house.

Therefore, nothing really turns on this contradiction in the

testimony of prosecution witnesses.

21. For the reasons given in the preceding paragraphs, I hold

that the appellant has rightly been convicted u/s 376 of IPC for

committing rape on the person of his step daughter. Since he

had also threatened to kill the prosecutrix in case she disclosed

the incident to anyone, he has also rightly been convicted u/s 506

IPC. The conviction of the appellant is, therefore, maintained.

22. Section 376 (2) of IPC provides that whoever commits rape

on a woman when she is under 12 years of age shall be

punishable with rigorous imprisonment for a term which shall not

be less than 10 years. The court may award a lesser sentence

only for adequate and special reasons required to be recorded in

the judgment.

In State of Karnataka Vs. Krishanappa 2000 (1) SCC 372,

the Hon‟ble Supreme Court held that the punishment in a rape

case must depend upon the conduct of the accused, and age of

the sexually assaulted female. In Kamal Kishore Vs. State 2000

(2) SCC 706, which again was a case of rape, the Hon‟ble

Supreme Court observed that normally the court has no

discretion to award a sentence less than the prescribed sentence

and a lesser sentence can be awarded only in extreme rare

contingencies. The court has to be cautious of the fact that a

rapist not only violates victim‟s personal integrity but also leaves

an indelible mark on the soul of a helpless female. The legislative

mandate is loud and clear, that no person, who commits rape

should escape adequate punishment. The appellant in this case

took undue advantage of his close relationship with a child aged

about 8-9 years. Being her father, though a step father, he was

expected to protect the child and take her due care. He,

however, chose to act otherwise. The child would never forget

the trauma experienced by her at the hands of the appellant and

the act committed by him will keep haunting her throughout her

life. No leniency should, therefore, be shown when the victim of

the rape is a girl of such a tender age. Therefore, there is no

valid ground for reducing the sentence awarded to the appellant.

The appeal is hereby dismissed. One copy of this order be

sent to the trial court and the other be sent to the Jail

Superintendent, Tihar for information of the appellant and for

record.

(V.K. JAIN) JUDGE October 23, 2009/sk