Harish vs State
2009 Latest Caselaw 4422 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Reserved on: October 21, 2009

                                  Pronounced on: October 30, 2009

+      (1) CRL.A. 746/2006


#      SITA RAM @ SONU                                   ..... Appellant

!                            Through: Mr. R.S. Malik, Advocate.

                     Versus

$      STATE                                   .....Respondent

^                            Through: Mr. Amit Sharma, Addl. PP for the
                             State.

+      (2) CRL.A. 941/2006


#      HARISH                                      ..... Appellant

!                            Through: Mr. V.K. Raina, 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? Yes

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

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

Crl.A.No.746/2006 and 941/2006                                       Page 1 of 17
 V.K.Jain, J.

These are two appeals from the judgment dated 3 rd August,

2006 and order on sentence dated 5th August, 2006 whereby the

appellants were convicted under Section 376(2) (g) of Indian Penal

Code and were sentenced to undergo rigorous imprisonment for ten

years each and to pay fine of Rs.5,000/- each or to undergo simple

imprisonment for six months each in default.

2. The case of the prosecution, as disclosed in the FIR is that on

1st September, 2001, at about 10.30 AM the prosecutrix was sitting

outside her house when complainant Sita Ram @ Sonu, who was

previously known to her, came there and took her towards forest

side on the pretext of taking her for a walk. In the forest, the

appellant Sita Ram @ Sonu raped her. Thereafter appellant Harish

came there and raped her. She returned home weeping and

narrated the incident to her sister Rita. On the parents returning

home, the matter was brought to their knowledge and the

prosecutrix was got medically examined.

3. The prosecutrix come in the witness box as PW-5 and stated

that about 6-7 months ago, when she was sitting outside her house,

the appellants came there, threatened to kill her, and took her to a

jungle on foot. In jungle she was raped by both of them, firstly,

Sonu and then by Harish. She came back to her house and

narrated the incident to her elder sister Rita. In the evening when

her parents returned home, she told them about the incident and

then she, along with her parents, went to the Police Station where

her statement was recorded.

4. PW-7 Jaswant Singh has stated that about 7-8 months ago

when he was present at a tailoring shop at R-1019 Mangol Puri, he

found the prosecutrix standing near House No.997. Both the

appellants were talking to her at that time. The appellant Sonu was

known to him. Both of them took the prosecutrix with them from

the street. In the evening he came to know about the rape.

5. PW-8 Rita is the sister of the prosecutrix. She has stated that

on 3rd September, 2001 at about 11.30 AM the prosecutrix, who is

her younger sister, and is residing in the neighbourhood, came to

her and told her that she was taken by Harish and another boy,

whose name was not known to her, to jungle and was raped by

them. She being on bed at that time, could not go anywhere and

when her parents came back in the evening, she narrated the

matter to her, whereupon the prosecutrix was taken to Police

Station by her parents.

6. PW-3 Jamni is the mother of the prosecutrix. She has stated

that on the day of this incident when she came home at about 6.00

pm her daughter Anju told her that Sonu, who used to reside in

their neighbourhood, had taken her to jungle where Harish also

joined him. There, she was first raped by Sonu and then by Harish.

She narrated the incident to her husband and then they took the

prosecutrix to the Police Station where her statement was recorded

and she was got medically examined.

7. PW-12 Ramesh is an official from the school of the

prosecutrix. He has stated that School Leaving Certificate Ex.

PW12/A has beenissued by the Vice Principal of the school and as

per school certificate her date of birth is 12th March, 1988. PW-13

Sh. Rajender Kumar, Metropolitan Magistrate has stated that on 3 rd

September, 2001 appellant Harish was produced before him but he

refused to join TIP vide his statement Ex. PW13/B.

8. In their statement under Section 313 Cr. P.C., both the

appellants denied the allegations against them and stated that no

such incident had taken place. The appellant Harish also stated

that he was not produced before any Magistrate nor any application

for Test Identification Parade was moved. Both the appellants have

also stated that they were not previously known to the prosecutrix.

9. There is discrepancy in the testimony of the prosecutrix as

regards the manner in which she was taken from her house towards

the forest. In the FIR, she alleged that the appellants Sonu had

taken her towards forest on the pretext of taking her for a walk,

but, when she came in the witness box she stated that both the

appellants had come to the place where she was sitting outside her

house and taken her to jungle after threatening to kill her. No

doubt, this is a material contradiction. Even otherwise, it is

difficult to accept that the prosecutrix was taken to forest in the

manner stated by her. As admitted by her in her cross examination

there are other residential houses near her house and the street in

which she was sitting is used by public at large for coming and

going. She has also admitted that residential houses adjoining her

house are occupied by other persons. This is not the case of the

prosecutrix that the appellants were armed with any weapon. It is

difficult to accept that the appellants threatened the prosecutrix

and she meekly accompanied them, without making any attempt to

raise alarm. If a girl who is present outside her own house, is

threatened, her natural reaction would be to raise alarm when the

culprits are not armed and the place where she is present is a

public street, having a number of houses occupied by people.

Moreover, the deposition of PW-7 Jaswant Singh also contradicts

the version given by the prosecutrix as regards the manner in

which she was taken to the forest. PW-7 found the appellants

talking to the prosecutrix and taking her along with them The

presence of PW-7 on his shop at that time also shows that the street

was not deserted at that time. Even otherwise at 10.30 or 11.30

am, a public street in a colony like Mangolpuri cannot be deserted

on and people are bound to be present in the street at that hour of

the day. Therefore, it is difficult to accept that any threat was

extended to the prosecutrix before taking her to the forest.

10. I, however, do not see any reason to believe the prosecutrix as

regards rape alleged to have been committed on her person. No

particular motive has been attributed by the appellants to the

prosecutrix to concoct a false story of rape with her. Though the

father of the prosecutrix PW-4 Ram Kishore has admitted in his

cross examination that the mental status of the prosecutrix is not

well and sometimes, on account of her mental status, they do not

reply upon her, I find that the prosecutrix has stood the test of

cross examination and has given logical answers to the questions

put to her. The prosecutrix being a young girl of about 13-14 years

at the time of this incident, neither she nor her parents would have

put her future into jeopardy by making false allegations of rape.

They would be fully conscious of the fact that in our tradition bound

society, a sort of social sigma comes to be attached with the victim

of rape. Therefore, they would not like to go the police and subject

the prosecutrix to examination first by the police officers and then

in the court unless she has actually been subjected to physical

abuse and assault.

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

that the medical examination of the prosecutrix did not reveal any

marks of injury on her private part nor her hymen was found torn.

I find that when the prosecutrix was examined by PW-6 Dr. Vineeta

Aggarwal, she found that one finger could be easily introduced in

her vagina and her vagina was found to be tender. She opined that

sexual assault could not be ruled out. The medical examination of

the prosecutrix, coupled with her positive statement in the court,

leaves no reasonable doubt about her having been subjected to

rape. As noted earlier, it is difficult to believe that the prosecutrix

was subjected to any threat before she accompanied the appellants

to the forest. The facts and circumstances of the case suggests that

either the prosecutrix was lured on some pretext or she was a

consenting party to accompany the appellants to the forest. In case

she was a consenting party, there was hardly any likelihood of mark

of injury or violence being found on the private part of her body.

12. The appellants have not attributed any motive to the

prosecutrix or her family members to implicate them in a false case

of rape. This is not their case that they had any previous enmity or

ill will with the prosecutrix or her family members. Therefore,

there could have been no reason, either for the prosecutrix or for

her family members to implicate the appellants in a false case of

rape. They had nothing to do again but a lot to lose by reporting an

incident of rape with a minor girl to the police.

13. The prosecutrix is an unmarried girl. The parents of an

unmarried girl would be the last persons to give publicity to an

incident of rape of their daughter on account of fear of social

stigma that come to be attached to the victims of such crimes.

When they took the prosecutrix to the police station and lodged

report of commission of rape on her person, they must be conscious

of the fact that when they report the matter to the police they will

have to produce their daughter first before a Magistrate and

thereafter before the trial court. They were at all likely to fabricate

and set up a false case of rape as they would be the last persons to

put the future of their daughter into jeopardy by making public the

dishonor inflicted on her. They would be aware of the possibility of

difficulties which they may face in finding a suitable match for a

girl who has been subjected to such a heinous crime. Therefore,

unless they were fully satisfied with the version given by the

prosecutrix, they would not have taken her to the police station, to

report this incident.

14. A perusal of the report of Forensic Science Laboratory shows

that semen was found on the underwear of both of them and shorts

of one of them which the appellants were wearing when they were

arrested and were seized by the police. There is absolutely no

explanation by either of the appellants as to why semen was found

on their underwears at the time of their arrest. In the absence of

any explanation, presence of semen on their undergarments points

towards them as the persons who were responsible for committing

rape on the person of the prosecutrix.

15. As regards identity of the appellants, the allegation in the FIR

is that the appellants Sita Ram @ Sonu was previously known to the

prosecutrix, whereas the other culprit Harish was not known to her.

But, when the prosecutrix came in the witness box, she stated that

she knew both of them. As far as appellants Sita Ram @ Sonu,

there is consistency inthe testimony of prosecutrix regarding his

identity. She has maintained in the FIR as well as during her

depositin in the court that Sita Ram @ Sonu was known to her. As

regards Harish, the testimony of PW-13 Sh. Rajender Kumar,

Metropolitan Magistrate shows that he had refused to join TIP. The

proceedings conducted by the learned Magistrate show that a

warning was given to him that refusal to participate in the TIP may

lead to adverse inference being drawn against him during trial. But

he declined to join TIP on the ground that he was shown to a

number of persons in a Police Station. In his statement under

Section 313 Cr. P.C., the appellant Harish took the stand that he

never refused to join TIP. He did not say that he was shown to the

witnesses in the police station and that is why he refused to join

TIP. Therefore, I have no hesitation in holding that the appellant

Harish refused to join TIP without any justified reason and,

therefore, an adverse inference can be drawn against him that had

he participated in the Test Identification Parade, he would have

been identified by the prosecutrix. In any case both the appellants

have been identified by PW-7 Jaswant Singh and the appellant Sonu

was previously known to him. This is not the case of appellant

Sonu that he was not known to Jaswant Singh. No such suggestion

was given to him in the cross examination. The suggestion given to

him was that he had not seen the accused taking away the girl.

Therefore, the deposition of the prosecutrix in the court coupled

with the appellant Sita Ram @ Sonu being previously known to her,

refusal of the appellant Harish to join TIP witout any justification

corroborated by the testimony of PW-7 Jaswant Singh established

the identity of the appellants beyond reasonable doubt. If the

accused of his own volition declines to join test identification

parade, without reasonable cause, he does so at his own risk and

cannot say that in the absence of test identification parade,

identification was not proper.

16. In any case, the prosecutrix could not have committed mistake

in identifying the persons who committed rape on her person. No

girl is likely to ever forget in his life the face of a person who

ravishes her and subjects her to such an indignity. In State of M.P.

Vs. Sunder Lal (1992) 2 SCC 578, the accused forcibly took the

prosecutrix during night and committed rape on her. The

prosecutrix in that case was a 13 year old girl. The Hon'ble

Supreme Court observed that she could not have forgotton the face

of the man, who committed such ghastly crime upon her. The rape

in that case was committed in the light of lamp. The Hon'ble Court

noted that it was not a case where the prosecutrix had a mere

glimpse of the accused and, therefore, his identity has been amply

established by the evidence of the prosecutrix and the servant who

was also forcibly taken alongwith her. In Arasappa Vs. State 1997

Cr.L.J. 1456, the appellant and another person forcibly took the

prosecutrix with them in an auto-rickshaw, to a remote house,

where she was repeatedly raped. Thereafter they ran away from

the place where the crime was committed. During trial, the

prosecutrix stated that she did not know the appellant and his co-

accused and at the time when she was forced into auto-rickshaw, it

was dark. No identification parade of the appellant was held in that

case. It was, therefore, contended that the prosecution had failed

to establish his identity. It was noted by the High Court that the

prosecutrix had sufficient time at her disposal to observe the

appellant as well as his friend and the appellant being a resident of

the same area was not a total stranger to her, though she did not

know him personally. It was, therefore, held that non-holding of

test-identification-parade was not fatal to the case of the

prosecution.

17. In the present case, the prosecutrix was taken in day time and

admittedly both the appellants were residing in t5he same locality

where the prosecutrix was residing. Moreover, they were seen by

PW-7 Jaswant Singh. Identification by the prosecutrix coupled with

corroboration from the testimony of Jaswant Singh is sufficient to

establish the identity of the appellants beyond reasonable doubt.

18. Learned counsel for the appellant, Sita Ram has referred to

the decision of the Hon'ble Supreme Court in Mohan Lal Vs. State

of Maharashtra AIR 1980 SC 839. That was a case of offence u/s

326/323/34 of IPC. The accused in the case was not previously

known to the appellant. In his statement to the Doctor, he named

one person while in subsequent statement, he named another

person as the assailant. He was also shown by the police to the

witnesses before he was identified in the court. In these

circumstances, he was held entitled to acquittal. In the present

case, there is no inconsistency in the names given by the

prosecutrix. Both the appellants have been identified not only by

the prosecutrix but also by PW7. The appellant Harish has also

refused to join test-identification parade without any justification.

Both the appellants were living in the same locality in which the

prosecutrix was living. The very fact that the prosecutrix

accompanied them either on account of allurement or of her own

consent is also a strong indicator that the appellants were known to

her and that is why she accompanied them without raising any

alarm. Therefore, this judgment does not apply to the facts of the

present case.

19. The learned counsel has referred to Canon & Ors. Vs. State of

Kerala, AIR 1979 SC 1127. That was also a case where the accused

was not previously known and no test identification parade was

held. Therefore, it was held that it would not be safe to rely on

identification for the first time in the court. For the reasons

discussed earlier, this judgment does not apply to the facts of the

present case.

20. The testimony of PW-12, Ramesh who is an official of the

school in which the prosecutrix was studying, coupled with the

certificate Exhibit PW-12/A shows the date of birth of the

prosecutrix as 10th March, 1988. Computed accordingly, the

prosecutrix was less than 14 years of age at the time she was

subjected to rape by the appellants. It has come in the cross-

examination of PW-3 Jamna, mother of the prosecutrix, that she was

born in the year 1987. Documentary evidence in the nature of

school certificate has to be given precedence over the oral

evidence, but, even if benefit as regards the age of the prosecutrix,

given orally by her mother and the age shown in her school records

is given to the appellants, and it is presumed that the prosecutrix

was born on the last date of the year 1987, she was less than 15

years of age on the date she was subjected to rape.

21. It was pointed out by the learned counsel for the appellants

that municipal record of the birth of the prosecutrix has not been

produced by the prosecution. The father of the prosecutrix has

specifically stated in his cross-examination that he had not obtained

birth certification of the prosecutrix from MCD. If the parents, on

account of ignorance or illiteracy do not obtain birth record from

the municipal committee, that by itself would not be a good ground

to reject the documentary evidence available in the form of school

certification wherein a specific date of birth is recorded. At the

time when father of the prosecutrix disclosed date of her birth to

the school authorities, he could not have known that one day he will

have to prove her date of birth in a court of law. Therefore, there

could have been no reason for him to give a wrong date of birth of

the prosecutrix in the school record. I, therefore, have no

hesitation in confirming the finding that the prosecutrix was less

than 16 years of age at the time she was subjected to rape.

22. The learned counsel for the appellant Harish has referred to

the decision of the Hon'ble Supreme Court in State of Himachal

Pradesh Vs. Suresh Kumar 2008 (10) SCC 104. In that case, the

prosecutrix was found to be more than 16 years old. The High

Court found that she had voluntarily accompanied the accused and

was a consenting party to sexual intercourse. In the present case,

the evidence produced by the prosecutrix shows that the

prosecutrix was less than 16 years of age at the time of commission

of offence and, therefore, her consent being immaterial, this

judgment is of no help to the appellant.

23. The learned counsel has next referred to Emperor Vs.

Mahadev AIR 1942 Bombay 121 where it was observed that in rape

cases, the evidence of the complainant must be corroborated.

Much water has flown down the Ganges, since this judgment was

delivered. There has since then been a marked change in the view

being taken by courts, as regards testimony of a woman, who is

victim of a sexual crime. She cannot be treated at par with

accomplice in a criminal case, whose testimony requires

corroboration before it can be accepted. No reliance can be placed

upon this judgment in view of a catena of judgments of Hon'ble

Supreme Court including its judgment in the case of Bhogin Bhai

Vs. Hirji Bhai AIR 1983 SC 753 holding therein that the testimony

of the prosecution does not require any corroboration before it can

be acted upon. In any case, even if one must look for

corroboration, it is available in the form of the statement made by

the prosecutrix to her sister immediately after this incident had

taken place and then to her mother in the evening when she

returned home.

24. The testimony of the sister of the prosecutrix could not be

assailed during cross examination. She being confined to bed on

account of delivery could not have done anything immediately as

both her parents were not present in the house at that time. As

soon as the parents came home, the incident was narrated to them

by both the sisters. As noted earlier the testimony of PW-3 Smt.

Jamni and PW-4 Sh. Ram Kishore, parents of the prosecutrix shows

that the incident of rape was narrated to them by the prosecutrix

when they returned home in the evening. The statement of the

prosecutrix to both her parents is yet another corroboration of her

testimony.

25. Presuming that the prosecutrix accompanied the appellants of

her own without any inducement or coercion, the appellants would

nevertheless be guilty of commission of rape as the age of the

prosecutrix was less than 16 years at the time of commission of the

offence and in view of the provisions of Section 375 (Sixthly) of the

Indian Penal Code, sexual intercourse with a girl of less than 16

years of age, even with her consent renders the accused liable to

punishment u/s 376 of the Act.

For the reasons given in the preceding paragraphs, I hold that

both the appellants have been rightly convicted u/s 376 of IPC.

Their conviction is accordingly maintained. However, keeping in

view the age of the appellants, both of whom were about 19 years

old at the time of commission of this offence and their social and

economic background including the fact that they have not been

able to engage an Advocate on their own and were provided legal

assistance by Delhi High Court Legal Services Committee, the

sentence of the appellants is reduced from rigorous imprisonment

of 10 years each to rigorous imprisonment of 7 years each. The

amount of fine is, however, maintained.

One copy of this order be sent to trial court and the other

copy be sent to Jail Superintendent for information of the

appellants and for record.

(V.K. JAIN) JUDGE October 30, 2009/acm-sk