Avtar Singh vs State
2010 Latest Caselaw 5628 Del

                   IN THE HIGH COURT OF DELHI AT NEW DELHI
+                           Crl.A. 774 OF 2006
%                                    Date of Decision: 10th December, 2010


#      AVTAR SINGH                                            ....Appellant
!                                 Through: Ms. Neelam Grover, Advocate

                                  Versus

$      STATE                                                 ...Respondent

!                                 Through: Mr. Pawan Bahl, APP

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

1. Whether Reporters of local papers may be allowed to see
   the Judgment?(No)
2. To be referred to the Reporter or not?(No)
3. Whether the judgment should be reported in the digest?(No)

                                 JUDGMENT

P.K.BHASIN, J:

The appellant challenges his conviction for the offences punishable

under Sections 376 and 342 of the Indian Penal Code ('IPC' in short) by

the Additional Sessions Judge vide judgment dated 19th August, 2006 and

the sentence of 10 years imprisonment and fine of ` 1 lac under Section

376 IPC and sentence of imprisonment for one year and fine of ` 1,000

under Section 342 IPC awarded vide order dated 28th August, 2006.

2. The prosecution case was that on 7th January, 1997 at about 4 p.m.

the prosecutrix, a child of about 7 years of age, was playing on the roof of

her house and her father was also sitting on the roof and he gave her the

keys of the house and asked her to go downstairs. At that time her

mother was not present in the house. While the prosecutrix was opening

the door of her house the accused-appellant, who was her neighbour,

came there and closed her mouth forcibly and took her to his quarter and

bolted the door from inside. He then started playing his tape-recorder at

high pitch and thereafter stripped her naked and then raped her. When

she was still inside the accused's house his brother knocked at the door

and the accused made her hide behind the curtain but when the door

was opened the brother of the accused came inside and saw her and then

the accused sent her outside and she came back to her home. She

informed her parents about the said incident and also to their neighbour

(PW-9). On 8th January, 1997 the said incident was narrated to the police

by the prosecutrix herself when her mother and based on that statement

FIR No. 44/1997 under Sections 376/342 IPC was registered. The

prosecutrix was then got medically examined. No external injuries were

noticed on her body by the doctor. Her hymen was found intact. The

skirt which she was wearing at that time was sealed and sent to Forensic

Science Laboratory where on examination human semen was detected on

that skirt(Ex.P-1). Since the prosecutrix had named the accused -

appellant in her first information statement to the police as the person

who had committed rape on her, he was arrested on 10th January, 1997

and he was also got medically examined by the police. During

investigation, the statement of the prosecutrix under Section 164 of the

Code of Criminal Procedure was also got recorded on 9th January, 1997 in

which also she had categorically claimed that the accused-appellant

Bittoo had committed rape on her. In due course, the police submitted a

charge-sheet against the accused-appellant in Court and after committal

of the case to the Sessions Court he was charged and tried for the

offences punishable under Sections 376/342 IPC. The learned Additional

Sessions Judge relying upon the testimony of the prosecutrix(PW-1) and

her parents(PW-8 and PW-11) found the accused - appellant guilty for

the commission of the afore-said offences. Aggrieved thereby, the

accused filed the present appeal.

3. Learned counsel for the appellant had contended that the

conviction of the appellant is not sustainable at all since the prosecution

could not establish its case beyond reasonable doubt. Elaborating the

challenge, learned counsel submitted that the prosecution case was

highly doubtful since there were no external injuries of any kind found on

the person of the prosecutrix at the time of her medical examination and

even the hymen was found intact and, therefore, the statement of the

prosecutrix made in the Court was falsified. In support, one judgment of

Allahabad High Court in "Zahoor Ali vs. State of UP", 1989 Crl.L.J. 1177

was cited. Learned counsel further contended that this was in any case

not a case where the accused could be convicted on the totally

uncorroborated testimony of the prosecutrix as has been done by the

learned trial Judge. The prosecution case was also challenged by the

learned counsel on the ground that the incident was reported to the

police on 9th January, 1997 even though the incident was of 7th January,

1997 and the parents of the prosecutrix were told about the incident

same day by the prosecutrix and there was no explanation given by the

prosecution for that delay in getting the crime registered. Finally, it was

contended by the learned counsel that all the aforesaid infirmities in the

prosecution case when considered alongwith the fact that admittedly

there was prior enmity not only between the family of the accused and

the father of the prosecutrix but between the accused and other

neighbours also, including PW-9 Baljeet Kaur, as deposed by the

prosecutrix herself in cross-examination, the benefit of doubt should

have been extended to the accused. In any case, it can at least be a case

of attempted rape, counsel argued. Learned counsel also contended that

if at all this Court is not inclined to reverse the judgment of conviction the

accused is at least entitled to get some reduction in the sentence of

imprisonment awarded to him by the trial Court for the offence of rape

considering the fact that he was 19 years old at the time of commission of

the offence and subsequently he got married and has now two young

daughters, one of whom was born in April, 2010 and the other one is also

three years old only and for the sin of their father why those innocent

girls should be made to suffer and his mother is also suffering from

cancer.

4. On the other hand, learned additional public prosecutor supported

the judgment of the trial Court and contended that there was no infirmity

whatsoever in the trial Court's findings. It was submitted that the

prosecutrix had categorically narrated the incident of rape as she had

narrated before the police in her first information statement as well as in

her statement under Section 164 Cr. P.C. and she withstood the cross-

examination on behalf of the accused and nothing could be elicited from

her which could discredit her. It was further contended that even though

the testimony of the prosecutrix alone was sufficient to hold the accused-

appellant guilty and no corroborative evidence was required to be

considered but in any case her statement stood duly corroborated by the

evidence of her parents as well as her neighbour PW-9 Baljeet Kaur was

also told about the incident on the day of the incident itself and further

corroboration is lent to her statement by her statement under Section

164 Cr.P.C. also. It was also contended that absence of any injuries on the

body of the prosecutrix is not a ground to reject her testimony which was

wholly reliable and trustworthy and without any blemish. Regarding the

delay in the lodging of the complaint to the police the learned prosecutor

submitted that the mother of the prosecutrix had stated in her evidence

that after she had come to know about the incident she had taken her

daughter to Irwin Hospital but there she was not examined and they were

told that since it was a rape case the matter should be first reported to

the police and since on that night her husband, her daughter and she

herself were very nervous the matter was reported to the police next day.

In reply to the argument of the counsel for the appellant that since

admittedly the relations between the family of the prosecutrix and the

accused were not cordial the learned prosecutor submitted that despite

the fact that the prosecutrix had admitted this fact in her cross-

examination that was no ground to reject her testimony and also that of

her parents since it cannot be accepted that they would have levelled

such kind of false allegations against the accused putting the honour of

their own family and their daughter specially at stake to take revenge

from the accused.

5. I have examined and analysed the evidence of the prosecutrix

independently with caution in order to appreciate the respective

contentions of the learned counsel for the appellant and the State

keeping in mind the fact that she had admitted that the relations

between her family and that of the accused - appellant were strained for

some years. The prosecutrix in this case was examined as PW-1 and she

being the star prosecution witness her testimony is being reproduced

before considering the grounds of challenge to the reliability of her

evidence put forth by the learned counsel for the accused-appellant. This

is what the prosecutrix (PW-1) deposed in her examination in chief after

the trial Court had satisfied itself about her competence to depose since

she was below the age of 12 years by generally questioning her:-

"........ In January 1997 I was residing along with my parents at Gurdawara Shish Ganj in quarters. Accused Avtar Singh @ Bittoo was also residing in one of the quarters in front of my house. As he is residing in room No. 3 and I am residing in room No. 9

On 7.1.97 I was present with my father on terrace. My mother had gone to the market. My father had given me key of the room at about 4 p.m. and told me to open the door of the room. I came down and in the process of opening door of my quarter, accused came there. He forcibly picked me and took me in his room and he started taperecorder. Accused removed his clothes and also removed my underwear and skirt which I was wearing at that time. Thereafter accused applied coconut oil on his private part. He made me lie on the bed and inserted his male organ in my urinal place and started pushing me. Brother of accused came there who used to be called as sonu. He knocked the door. Accused made me hide behind the curtain and opened the door for his brother. His brother and accused sent me outside the room. Then accused took me inside his room I had cried but accused put his hand on my mouth. I narrated entire incident to my father. My father told the facts to my mother when she came back from market. She enquired everything from me in separate room and I told my mother the entire facts. Next day, in the morning my parents took me to police station where my statement was recorded. I identify my signature at point A on Ex. PW1/A. I was taken to hospital for medical examination and my skirt was taken by the police. I was also produced before MM for my statement u/s 164 Cr.P.C. sealed with seal of SK is allowed to

open containing statement. Statement is Ex. PW1/B which bears my signature at point B. I narrated entire incident to MM..............."

6. In her cross-examination on behalf of the accused she categorically

claimed that nobody had tutored her before recording of her statement

at the police station but her mother had made her understand before she

made the statement to the police. She admitted that her parents and the

parents of the accused were not having cordial relations and further that

the accused was also not having good relations with Surinder Kaur (PW-5)

and Baljeet (PW-9). She also stated that she had tried to raise alarm when

the accused had lifted her but the accused had gagged her mouth by

putting his hand. She further deposed that when the accused had

removed his clothes she had raised alarm but none had come. She further

stated that when she had come out of the house of the accused she was

not crying and she had also not raised any alarm or hue and cry at that

time as she was confused. She also stated that when the accused raped

her she had severe pain and at that time she had raised hue and cry and

had also slapped the accused. She denied the suggestion that she was

deposing at the instance of her parents and she had been tutored by

them.

7. Having carefully gone through the evidence of the prosecutrix, I

find no plausible and justifiable reasons to disbelieve and discard her

testimony. She is a wholly trustworthy witness and her evidence cannot

be brushed aside for the reasons urged by the learned counsel for the

appellant. The prosecutrix has given graphic narration of the incident as

was given by her before the police as well as in her statement(Ex. PW-

7/D) before the Magistrate(PW-7) under Section 164 Cr.P.C. No

inconsistencies or contradictions could be brought on record during her

cross-examination on behalf of the accused. The evidence of the

prosecutrix being cogent, wholly reliable and trustworthy alone is

sufficient to sustain the conviction of the accused - appellant, despite the

fact that neither any external injuries were found on her body nor her

hymen was found to be ruptured. Presence of injuries on the body of a

rape victim is not the sine qua non for the offence of rape particularly in

the case of rape of a girl of tender age by a fully grown up boy. Medical

evidence in any case is corroborative piece of evidence. Its absence is of

no effect if the testimony of the victim of rape is found to be trustworthy.

For this view I find full support from the judgments of the Hon'ble

Supreme Court reported as (2007) 12 SCC 122, "B.C. Deva vs. State of

Karnatka; (2007) 12 SCC 57, "Radhu vs. State of Madhya Pradesh; 2006

)8) SCC 560, "Tarkeshwar Saha vs. State of Bihar and (1998) 8 SCC 635,

"Ranjit Hazarika vs. State of Assam". In Radhu's case(supra) the

Supreme Court had also observed that even when the opinion of the

doctor was that there was no evidence of any sexual intercourse or rape

that opinion may not be sufficient to disbelieve the accusation of rape by

the victim. In all these judgments the offence was found to be of rape

and not of attempted rape even though no injuries were found on the

body of the victim. These judgments were noticed by a Division Bench of

the High Court of Bombay also while deciding an appeal against acquittal

of the accused for the offence of rape(being Crl. A. No. 192/1990)

decided on 7-5-09 - "The State of Maharashtra vs. Suresh Shankar

Jadhav" (MANU/MH/0356/2009). In that case also there were no

injuries found on the body of the victim and her hymen was also found

intact at the time of her medical examination after the incident. The

victim girl was found to be between 8 to 11 years of age and because of

that medical evidence the Sessions Court had convicted the accused only

for the offence of attempted rape but the High Court in appeal convicted

the accused under Section 376 IPC. Since I have found the testimony of

the prosecutrix in the present case to be wholly trustworthy and there

are no compelling reasons necessitating the search for corroborative

evidence to back the evidence of prosecutrix, absence of injuries on her

body will not be sufficient to reject her testimony.

8. And, just because the relations between the families of the accused

and the complainant were not cordial, as was admitted by PW-1 though

her parents have denied the suggestions to that effect, it cannot be

accepted that the child of tender age would have been tutored by her

parents to speak from her mouth such obnoxious words which she used

in her testimony. PW-1 claimed that the parents of the accused used to

abuse her mother. That even otherwise is not such a serious matter so

as to put the small girl in the forefront by her parents to say that she had

been raped. The accused - appellant himself during his statement under

Section 313 Cr.P.C. had not given the nature of disputes between his

father and the father of the prosecutrix who was a Raagi in a gurudwara

where the accused - appellant was employed as a driver.

9. Learned counsel for the appellant had also sought to discredit the

testimony of the prosecutrix by referring to some parts of the statements

of the parents of the prosecutrix(PWs 8 and 11), who had also been

examined by the prosecution to corroborate the statement of the

prosecutrix that immediately after the incident she had informed them

about what had been done to her by the accused - appellant. I have

already observed that this Court need not look for any kind of

corroboration for the testimony of the prosecutrix but in any case since

learned counsel for the appellant as well as the learned prosecutor for

the State had referred to the evidence of the parents of the prosecutrix

and one of their neighbours(PW-9 Baljeet Kaur), who had also been

examined to lend strength to the prosecution case that she had also been

told about the incident of rape on the day of incident itself, I will examine

this submission also of the learned counsel for the accused - appellant.

The father of the prosecutrix was examined by the prosecution as PW-11

and her mother was examined as PW-8. PW-11 had in his examination-in-

chief supported the version of his daughter that on returning back from

the house of the accused she had informed her father about the incident

of rape since at that time her mother was not present in the house. He

also stated that when his wife came back to house she was also told

about the incident. In fact, he had also deposed that the accused was

brought to his house by his father and some neighbours and the accused

had sought pardon at the instance of his father and the neighbours. That

statement of PW-11 was not challenged in his cross-examination and the

same, therefore, also lends full support to the prosecution case. He

denied the suggestion that he had falsely implicated the accused because

of prior inimical relations with the parents of the accused. Learned

counsel for the appellant had submitted that PW-11 had claimed that he

and his daughter had narrated the incident to his wife(PW-8) while the

prosecutrix herself had deposed that it was her father who had told the

facts to her mother when she had come back from the market and

thereafter her mother had enquired everything from her in a separate

room and she had told the entire facts to her mother. I, however, do not

find these statements of the prosecutrix and her father to be in any way

harmful for the prosecution and the statement of the prosecutrix cannot

be viewed with suspicion on this ground. PW-8 Paramjeet Kaur, mother

of the prosecutrix, had also claimed that when she had come back to her

house at about 6 p.m. her husband had told her that the accused had

raped their daughter. She also claimed that the parents of the accused

had also come to their house to apologize for the act of the accused.

Thus, both PWs 8 and 11 have corroborated each other's version also

besides the testimony of the prosecutrix to the effect that she had

narrated about the incident to her parents.

10. Learned counsel for the appellant had also submitted that if

actually the prosecutrix had informed her father about the incident

immediately thereafter, as was deposed by her, her father would not

have waited for his wife to come back home and would have immediately

rushed to the police station to lodge a complaint which he did not do and

that circumstance also renders the entire prosecution case highly

doubtful. However, I am not persuaded to accept this submission also

for rejecting the wholly reliable testimony of the prosecutrix. There was

nothing abnormal in the conduct of the father of the prosecutrix in not

rushing to the police station immediately without waiting for his wife to

come back home. The mother of the prosecutrix had deposed that they

had taken their daughter to the hospital same night where they were not

entertained by the hospital staff since it was a case of rape and then they

had come back around midnight when all of them were very nervous and

so the matter was reported to the police next day. In my view, this

statement of the mother of the prosecutrix is a sufficient explanation for

the delay in lodging of the complaint with the police and the prosecution

case cannot be rejected on the ground of delay in the registration of the

FIR.

11. PW9 Baljeet Kaur is the neighbor of the family of the prosecutrix.

She had deposed that on 7-1-97 she had gone to the market along with

PW-8 Paramjeet Kaur and when they had come back at about 6 p.m. the

husband of Paramjeet Kaur had met them and told them that the accused

had raped his daughter and thereafter she and Paramjeet Kaur had

enquired from PW-1 regarding the incident and she repeated the same

facts which had been told to them by her father. In cross-examination,

this witness stated that she was informed about the incident by the

prosecutrix herself for the first time which was after 15 minutes of their

returning from the market. However, this discrepancy in her statement

in the examination-in-chief and in cross-examination, pointed out by the

learned counsel for the appellant, is not sufficient to reject the testimony

of the prosecutrix. These type of discrepancies and inconsistencies are

bound to occur when the witnesses are examined after a long period

from the date of some incident. In the present case the incident was of

7th January, 1997 while examination-in-chief of PW-9 in Court was

recorded on 24th August, 2000 and cross-examination was recorded

about five years thereafter. Therefore, the accused - appellant cannot

derive any benefit from this kind of discrepancy and inconsistency in the

examination-in-chief of PW-9 and her cross-examination.

12. The learned prosecutor had also argued that presence of human

semen on the skirt of the prosecutrix also lends support to the testimony

of the prosecutrix . In this regard he drew my attention to the FSL report

Ex. PX. I am in full agreement with this submission also of the learned

prosecutor regarding which no submissions were made from the side of

the appellant.

13. I am, therefore, of the view that there is no infirmity whatsoever in

the impugned judgment of the learned Additional Sessions Judge holding

the accused - appellant guilty for the offences under Sections 376 and

342 IPC and no interference is called for by this Court in this appeal. It

certainly is not a case of attempted rape.

14. Coming now to the last submission made on behalf of the accused

- appellant by his counsel that a lenient view should be taken in respect

of the sentence of imprisonment to be awarded to him taking into

consideration the mitigating circumstances, which have been noticed

already. The circumstances highlighted by the learned counsel for the

appellant have definitely made an impact in my mind and the same

persuade me to take a lenient view in the matter. However, the leniency

which can be shown to the appellant is that no notice of enhancement in

sentence is being given to him which I was inclined to issue considering

the fact that he had committed such a heinous crime of raping a girl of a

tender age. I do not find any reason to award sentence of imprisonment

to the appellant less than the minimum prescribed in the Indian Penal

Code for the offence of rape of a girl of less than 12 years of age which

the trial Court has awarded.

15. This appeal is consequently dismissed.

December 10, 2010/sh                             P.K. BHASIN,J