Ashok Kumar vs The State (Nct Of Delhi)
2010 Latest Caselaw 5566 Del

          IN THE HIGH COURT OF DELHI: NEW DELHI

+              CRL. A. No. 316/2009

%              Judgment decided on: 7th December, 2010

ASHOK KUMAR                              ..... APPELLANT
                         Through:   Mr. S.B. Dandapani, Adv.

                         Versus

THE STATE (NCT OF DELHI)                .....RESPONDENT

                         Through:   Mr. M.P. Singh, APP

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers            No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?               No

       3. Whether the judgment should be                   No
       reported in the Digest?


A.K. PATHAK, J. (Oral)

1. This Appeal is directed against the judgment of Trial

Court, whereby Appellant has been convicted under Section

376 IPC; sentenced to undergo rigorous imprisonment for 7

years and pay fine of Rs.5,000/-; in default of payment of fine

to undergo simple imprisonment for six months.

2. Prosecution case as unfolded is that the Appellant,

neighbour of prosecutrix „X‟ aged about 13 years, took her

with him in his jhuggi after enticing her while she was playing

outside her jhuggi on 7th July, 2007 at about 9.30 AM,

thereafter, he bolted the door from inside. He forcibly tore her

salwar. He also removed his pant. Thereafter, he raped her.

Prosecutrix raised alarm at which her parents along with

some persons of the locality arrived there. They found

prosecutrix and the Appellant inside the jhuggi. Appellant

was apprehended. Later on, he was handed over to the police

officials.

3. At about 3:30 PM on 7th July, 2007, Ashok Kumar,

father of the prosecutrix, went to Police Station Vasant Kunj

and informed that his daughter aged about 14 years had been

taken by the Appellant in his jhuggi forcibly and was raped.

This information was recorded as DD No. 19-A and handed

over to Woman Assistant Sub Inspector Saroj (Investigating

Officer) for enquiry, who recorded statement of prosecutrix

(PW1), wherein incident was narrated by her in the manner it

has been described in para 2 hereinabove. On the basis of

her statement, FIR No. 484/2007 (Ex. PW6/B) under Sections

376/506 IPC was registered.

4. Prosecutrix was taken to Safdarjang Hospital where she

was clinically examined by Dr. Smita. Before the doctor

prosecutrix stated that she had been forcibly raped by Ashok

(Appellant). This fact has been recorded by the doctor in the

MLC. Doctor found marks of injuries on her face near left

eye. Hymen was also found torn. No bleeding or other marks

of injuries were noticed. Cervical swab, vaginal swab and

salwar of the prosecutrix were sealed by the doctor separately

and handed over to the Investigating Officer.

5. Appellant was arrested. He was medically examined at

Safdarjang Hospital on 7th July, 2007 itself. Doctor opined

that there was nothing to suggest that the appellant was

incapable of performing sexual intercourse. Baniyan and

underwear of the Appellant were sealed by the doctor and

handed over to the Investigating Officer. Age of the

prosecutrix through radiological examination was got

determined at Safadarjang Hospital on 23 rd July, 2007. After

conducting radiological examination and going through x-ray

reports of shoulder joint, wrist joint, elbow joint and pelvis

with hip joint of the prosecutrix, doctor opined the age of

prosecutrix between 14 to 16 years.

6. Statement of the prosecutrix under Section 164 Cr.P.C.

was recorded by the Metropolitan Magistrate on 10th July,

2007, wherein she had narrated the incident in the same

manner in which it had been described by her in the FIR

except that she added that Appellant had inserted his male

organ inside her against her wishes and when she cried he

scratched her face and threatened to kill her.

7. Cervical swab, vaginal swab, pubic hair and salwar of

the prosecutrix as well as underwear, baniyan and blood

sample of Appellant were sent to Central Forensic Science

Laboratory (CFSL) Kolkata and its report was obtained. No

semen was detected on the cervical swab, vaginal swab and

salwar of the prosecutrix as well as on her pubic hair.

However, semen was detected on the underwear of Appellant.

8. Appellant was sent up to face trial for having committed

offences under Sections 376/506 IPC by filing a charge-sheet

in the court of Metropolitan Magistrate, who took cognizance

of the offence and committed the case to Sessions Court,

since offence under Section 376 IPC is exclusively triable by

the Sessions Court.

9. Charges under Sections 376/506 IPC were framed

against the appellant on 16th November, 2007 by Trial Court

to which he pleaded not guilty and claimed trial.

10. Prosecution examined 14 witnesses in support of its

story. Prosecutrix was examined as PW1; her parents Ashok

Kumar and Shanta were examined as PW2 and PW3

respectively. These are the material witnesses to prove the

incident of rape. Dr. Smita, who had clinically examined the

prosecutrix, had been examined as PW4. Shri Vikas Dhull,

Metropolitan Magistrate, who had recorded the statement of

prosecutrix under Section 164 Cr.P.C., had been examined as

PW7, ASI Saroj, Investigating Officer, had been examined as

PW12. Doctor Yogesh tyagi, who had medically examined the

Appellant, has been examined as PW 11. He has deposed

that on medical examination of Appellant he did not find

anything to suggest that Appellant was incapable of

performing sexual intercourse. All other witnesses are formal

in nature, having been joined with the investigation at one or

the other stage.

11. After the prosecution closed its evidence, statement

under Section 313 Cr.P.C. of the Appellant was recorded,

wherein entire incriminating material, which had come on

record, was put to him. Appellant denied having taken the

prosecutrix with him in his jhuggi and committing rape upon

her. However, he admitted that he was neighbour of

prosecutrix. He claimed himself to be innocent. He stated

that parents of prosecutrix had demanded money from him

on 5th July, 2007 which he had promised to pay. However,

unfortunately his uncle died on 5th July, 2007, therefore, he

had to go to his village. He returned on 6th July, 2007. For

that reason he could not arrange money. In the evening when

parents of the prosecutrix demanded money from him, he told

them that he was not able to arrange money. At this, they

quarreled with him in the morning of 7th July, 2007.

Thereafter, father of the prosecutrix, along with 4/5 persons,

gave beatings to him. He ran away from there and reached at

a dhaba on the main road where he was again caught hold by

some boys and given beatings. He fell unconscious and was

saved by two police officials. Thereafter he was taken to the

police station and later on implicated in this case, since he

refused to pay Rs.50,000/- to ASI Saroj. The fact remains

that the appellant has not led any evidence in his defense, in

absence whereof, defense taken by him has remained

unsubstantiated. Even otherwise, it is highly improbable that

parents of the prosecutrix had implicated the appellant on the

false charges of rape of their daughter, which had brought

them to disrepute, inasmuch as jeopardized her marriage

prospects.

12. Learned counsel for the Appellant has vehemently

contended that prosecutrix is not a trustworthy and reliable

witness. She had taken shifting stand at different stages. In

the FIR, she had stated that Appellant took her with him to

his jhuggi after enticing her, after tearing her salwar he did

"galat kam" with her. As against this, in her statement

recorded under Section 164 Cr.P.C. she has stated that

Appellant inserted his male organ inside her against her

wishes and when she raised alarm he scratched her face and

threatened that he would kill her. It is contended that in the

FIR she had not stated that Appellant had penetrated his

male organ inside her nor had she stated that when she

raised alarm, he scratched her face and threatened her with

dire consequences. It is further contended that while

deposing in court prosecutrix had stated that Appellant had

taken her with him in his jhuggi on the pretext of giving toffee

to her, whereas in her cross-examination, she had stated that

accused had pulled her hand. She had not stated that

Appellant scratched her face and threatened that he would

kill her. Thus, her testimony has to be rejected. I do not find

much force in the above contentions of learned counsel for

the Appellant. The discrepancies, as pointed out, are minor

in nature and would not make much difference as regard to

the main incident of rape. These minor discrepancies are not

sufficient enough to discredit the statement of prosecutrix as

a whole which otherwise is consistent on material points. A

witness is not supposed to give a parrot-like version every

time when he/she is asked to narrate an incident. Minor

variations, are bound to arise and in fact, such variations

make a witness natural and trustworthy and rule out

tutoring. In the FIR, prosecutrix had stated that Appellant

did "galat kam" with her. Investigating Officer has recorded

the word "rape" next to the word "galat kam". This shows

that even at that initial stage prosecutrix had made it clear to

the Investigating Officer that Appellant had raped her and for

this reason the word "galat kam" was clarified. Before the

Metropolitan Magistrate, prosecutrix had categorically stated

that Appellant had inserted his male organ inside her. While

deposing in the court she has repeated the same thing. The

import of her statements given at three different stages is the

same that the Appellant had forcibly taken her inside his

jhuggi, tore her salwar, inserted his penis in her vagina.

13. Learned counsel for the appellant has next contended

that no semen was found on the Salwar, cervical swab,

vaginal swab and pubic hair of the prosecutrix, which fact,

belies the allegations of rape. This contention of learned

counsel needs to be rejected straightway. Ejaculation is not

necessary for constituting an offence of rape. Penetration is

sufficient to constitute offence of rape within the meaning of

Section 375 IPC. Bare perusal of explanation to Section 375

IPC makes it clear that penetration is sufficient to constitute

the sexual intercourse necessary to the offence of rape.

14. Counsel for the Appellant has next contended that there

is material discrepancy with regard to the apprehension of the

Appellant after the incident. PW1, though in her

examination-in-chief, had deposed that on hearing her cries

people of neighbourhood and her father reached there and

saved her and apprehended the appellant. However, in her

cross-examination she stated that Appellant had run away

when her parents and neighbours came there. Later on,

Appellant was caught while he was sitting in a hotel and was

given beatings by her parents and neighbours. Police

officials, who were present in the hotel, caught hold of

Appellant in the morning and thereafter they went to the

police station. Against this, parents of the prosecutrix, PW2

and PW3, had stated that that on hearing cries of their

daughter they went to the jhuggi of Leelu Ram, where

Appellant was present along with their daughter. Their

daughter was crying and was having some scratches on her

face. Her salwar was torn. Their daughter informed that

Appellant had committed rape upon her. Appellant was

apprehended by them and taken to the police station. It is

contended that this statement is suspicious in view of the

answer elicited from PW1, in her cross-examination that after

the incident appellant had run away and later on he was

found sitting in a hotel in the morning and was apprehended

from there. According to the learned counsel for the

Appellant, inconsistent stand taken by the witnesses in this

regard makes whole story of the prosecution doubtful. I do

not find any force in this contention of learned counsel either.

PW1, PW2 and PW3 are consistent in saying that PW2 and

PW3 had reached the spot immediately after the incident on

hearing cries of prosecutrix and apprehended the appellant.

It may be possible that Appellant may have tried to run away

and had been chased and apprehended and thereafter

handed over to the police. Admittedly, statement of the

prosecutrix in court was recorded after about seven months

and for this reason also there is possibility of her faltering in

giving exact miniscule details post incident, more so, when

she might have been traumatized by the incident of rape. Be

that as it may, some variations regarding post incident events

with regard to the apprehension of the appellant by itself

would not be sufficient to discredit the unblemished

testimony of PW1, to the effect that Appellant had taken her

to his jhuggi after enticing her and had committed rape upon

her. Arguments of learned counsel on this point, thus, are

rejected.

15. From perusal of statement of PW 1 it is clear that the

appellant had taken the prosecutrix with him in his jhuggi

forcibly, tore her salwar and raped her; when she raised

alarm, he scratched her face and threatened that he would

kill her. In her medical examination bruises were noticed on

her face. This medical evidence corroborates her statement

that when she raised alarm appellant had scratched her face.

In fact, prosecutrix did raise alarm upon which her parents

PW 2 and PW 3 reached there and found appellant and the

prosecutrix in the jhuggi. PW 2 and PW 3 have corroborated

this fact. From the testimony of prosecutrix PW 1 it has been

conclusively proved that appellant had committed rape upon

her.

16. Learned counsel has next contended that prosecutrix

was habitual of sexual intercourse. She has, in her cross-

examination, had admitted that prior to the incident also she

had sexual intercourse with one Mahesh, who was her

brother‟s brother-in-law. She did not inform about this to her

parents. Thus, it is contended that prosecutrix cannot be

believed being habitual of having sexual intercourse with

strangers. Hymen tear was old. In the absence of

corroboration from medical evidence, no credence can be

placed on the sole testimony of prosecutrix. I do not find any

force in these contentions of the learned counsel. Merely

because prosecutrix had admitted having been violated once

by one Mahesh, prior to the incident, would not imply that

she was habitual of having coitus with strangers. There is

no law that the statement of a victim of rape needs

corroboration from medical, scientific or any other

independent evidence. In fact, if the statement of victim of

rape is trustworthy and reliable, same alone can be made the

basis of conviction. Court is not to look for corroboration in

rape cases if the prosecutrix is found trustworthy and reliable

witness. The testimony of the victim in such cases is vital

and unless there are compelling reasons which necessitate

looking for corroboration of her statement, the court should

find no difficulty to act on the testimony of a victim of sexual

assault alone to convict an accused where her testimony

inspires confidence and is found reliable. In this case I find

statement of PW 1 to be trustworthy and reliable and

sufficient enough to conclude beyond shadow of reasonable

doubt that it is the appellant who had committed rape upon

her.

17. No other argument has been advanced nor any other

point pressed.

18. For the foregoing reasons, conviction of the Appellant

under Section 376 IPC is maintained.

19. Learned counsel has next contended that

Appellant is a poor person; he is young man of 22 years of

age; he was not involved in any other offence; he is in

incarceration for about 3 years, therefore, he may be handed

down sentence already undergone by him. Section 376 IPC

envisages that an accused of rape shall be punished with

imprisonment, which shall not be less than seven years.

However, proviso to this section empowers a court to reduce

the sentence less than minimum prescribed for adequate and

special reasons to be mentioned in the judgment. In this

case, learned counsel has failed to disclose any special reason

for reducing the sentence less than the minimum prescribed

under the statute. In a case of rape, a woman not only

suffers physical assault but the scars of incident remain

imprinted on her mind for a long time. Accordingly, I am not

inclined to order for release of appellant on the sentence

already undergone by him.

20. Appeal is dismissed.

21. A copy of the order be sent to Superintendent Jail for

serving it on the appellant.

A.K. PATHAK, J.

DECEMBER 07, 2010 rb