Dharampal S/O Shiv Lal Singh vs State Of Nct Of Delhi
2010 Latest Caselaw 560 Del

*                      HIGH COURT OF DELHI : NEW DELHI

            Judgment reserved on: January 28, 2010
          Judgment pronounced on: February 02, 2010

+                         Crl. A. No. 567/2008

%        Dharampal
         S/o Shiv Lal Singh                      ...    Appellant
                    Through:       Mr. Ajay Verma, Delhi High Court
                                   Legal Services Counsel with Mr.
                                   Gaurav Bhattacharya, Advocate for
                                   Appellant.

                                    versus

         State of NCT of Delhi                  ... Respondent
                    Through: Mr. R.N. Vats, Additional Public
                               Prosecutor for State

CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

1.       Whether the Reporters of local                No.
         papers 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?

SUNIL GAUR, J.

1. A minimum sentence of rigorous imprisonment for

ten years with fine of Rupees ten thousand has been

awarded to the Appellant by the trial court, after recording

conviction for the offence of rape of graver nature

punishable under Section 376(2)(d) of Indian Penal Code.

2. On the fateful day of this incident, i.e., at about 11.00

pm on 18th October, 2004, appellant as a Sweeper of

Crl. A. No. 567/2008 Page 1 VIMHANS, a government Hospital, in Nehru Nagar, New

Delhi, while taking advantage of his official position, had

raped the prosecutrix (PW-2), aged 19 years, in the

bathroom of the general ward of the above-said hospital.

Prosecutrix (PW-2) was the attendant of a patient in the

General Ward of this hospital and when this incident had

happened, brother (PW-4) of the prosecutrix (PW-2) was

incidentally present outside the general ward of this

hospital. This incident of appellant/accused forcibly taking

away the prosecutrix (PW-2) from the General Ward of the

hospital to its bathroom and of raping her in the bathroom

and thereafter, running away was promptly reported by

the prosecutrix (PW-2) to her brother (PW-4) and

thereafter, local police was contacted. FIR No. 438/04

under Section 342/376-D of Indian Penal Code was

registered at Police Station S.N. Puri, New Delhi, regarding

this incident.

3. Investigation proceedings of this case stood

completed with the recording of the statement of the

prosecutrix (PW-2), her medical examination and that of

the accused. Filing of the charge sheet, led appellant/

accused claiming trial for the offence of rape punishable

under Section 376(2)(d) of Indian Penal Code. The

Crl. A. No. 567/2008 Page 2 evidence led at trial, consisted of the depositions of the

prosecutrix (PW-2), her brother (PW-4), and of witnesses

regarding the arrest of the accused and of official

witnesses regarding the official status of the accused in

the government hospital. Apart from this, there is medical

evidence and deposition of the Investigating Officer

recorded during the trial of this case.

4. The stand of the Appellant before the trial court was

of admission of his official status but of denial of this

incident and all that, appellant/accused had stated before

the trial court needs to be highlighted and is as under:-

"The prosecutrix asked me to go with her when I did not go with her then she falsely implicated me in this case."

5. No evidence in defence was led by the

appellant/accused before the trial court. After the trial,

Appellant stood convicted and sentenced, as herein noted

above.

6. In this appeal, the conviction and the sentence

imposed upon the Appellant is questioned by learned

counsel for the Appellant, while contending that the

prosecution version is totally unreliable. It is pointed out

that the prosecutrix (PW-2) does not raise any alarm when Crl. A. No. 567/2008 Page 3 she is allegedly forcibly taken away from the hospital ward

to the bathroom and she does not resist, nor suffers any

injury and all this, renders her version unreliable. Learned

counsel for the Appellant further contends that it is highly

and unlikely that the brother of the prosecutrix (PW-2) is

outside the room and still the prosecutrix (PW-2) could not

raise any alarm to draw his attention to avert the alleged

incident.

7. During the course of arguments, learned counsel for

the Appellant drew attention of this court to the deposition

of the Investigating Officer (PW-17) to point out that there

was no latch inside the bathroom in question, which rules

out the alleged happening of this incident. It was also

emphasized by Appellant's counsel that the deposition of

brother (PW-4) of the prosecutrix (PW-2) has been illegally

taken into consideration while convicting the Appellant as

his evidence is hearsay and thus, inadmissible.

8. Much reliance has been placed by Appellant's

counsel upon the FSL Report (Ex.Pw-18/A) to contend that

no semen was found in the vaginal swab of the prosecutrix

(PW-2), which rules out the offence of rape. Thus, the

ultimate contention advanced on behalf of the

appellant/accused is that there is a reasonable doubt Crl. A. No. 567/2008 Page 4 about the veracity of the prosecution version which

renders the conviction of the Appellant illegal and

unsustainable.

9. Aforesaid contentions are strongly refuted by Mr.R.N.

Vats, Additional Public Prosecutor for the State, who not

only staunchly supports the impugned judgment but

asserts that it cannot be reasonably said that the version

of the prosecutrix is improbable. It is pointed out that it

has come in the testimony of the prosecutrix (PW-2) that

there was no other person in the ward at that time and the

brother of the prosecutrix was outside the ward and the

appellant/accused has closed the door of the ward. It is

also pointed out by learned Additional Public Prosecutor

for the State that the prosecutrix (PW-2) had resisted.

According to learned Additional Public Prosecutor for the

State, simply because doctor is not able to say whether

the rape has been committed or not, clean chit to the

appellant/accused cannot be given because the evidence

of the prosecutrix (PW-2) has to be preferred over and

above the other evidence, especially so, when there is no

reason as to why she would falsely implicate the

appellant/accused. Thus, it is urged that there is no

illegality or infirmity in the impugned judgment.

Crl. A. No. 567/2008 Page 5

10. Contentions advanced and the evidence on record

have been meticulously scrutinized and I proceed to

evaluate the testimony of the prosecutrix (PW-2) in the

light of the apt observations made by the Apex Court in

Dildar Singh vs. State of Punjab, AIR 2006 SC 3084,

which are as under:-

"In the normal course of human conduct an unmarried girl who is victim of sexual offence would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate such incident. Overpowered, as she may be, by a feeling of shame her natural inclination would be to avoid talking to anyone, lest the family name and honour is brought into controversy. Thus delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report."

11. Criminal trial has to be fair one. No one ought to be

taken by surprise. What is being now urged to discard the

testimony of prosecutrix (PW-2), in all fairness, ought to

have been put to her in cross-examination and in all

probability, she would have given a plausible answer as to

why she did not raise any alarm or as to how she had not

suffered any visible injury while she was being forcibly

Crl. A. No. 567/2008 Page 6 subjected to sexual intercourse. There is no cross-

examination of the prosecutrix (PW-2) on these lines.

Therefore, in my considered view, it is neither fair nor

proper to give benefit of doubt to the appellant/accused

on this account.

12. Although, Investigating Officer (PW-17) has obliged

the appellant/accused by stating in cross-examination by

the defence that there was no latch inside the door of the

bathroom, but it is pertinent to note that the Investigating

Officer has stated so in his deposition after his retirement

from service. In any case, nothing material turns on it for

the reason that the prosecutrix (PW-2) has not been cross-

examined about it.

13. It is a fallacious that absence of semen in the vaginal

swab of the prosecutrix, would rule out the commission of

the offence of rape. It is so said because Apex Court has

recently in Arjun Singh vs. State of H.P., (2009) 4 SCC

18, has reiterated that to constitute an offence of rape,

even slight penetration is sufficient and emission of semen

is unnecessary.

14. It is worthwhile to note that the present case is not

the one where medical evidence completely rules out the

Crl. A. No. 567/2008 Page 7 commission of the offence in question. FSL Report (Ex.PW-

18/A) reveals that the human semen was detected on the

salwar of the prosecutrix (PW-2) and also on the

underwear of the appellant/accused. Since the prosecutrix

(PW-2) was menstruating, when this incident took place,

therefore, medical evidence is hardly of any relevance. In

all probability, it is in this context, that the doctor (PW-14)

was not in a position to categorically state as to whether

rape upon the prosecutrix was committed or not. In any

case, medical witness is not required to opine so.

Therefore, the opinion of the doctor (PW-14) is neither

here nor there, especially so, when she erroneously it

proceeds to rule out rape because of absence of semen in

the vaginal swab of the prosecutrix (PW-2). Thus, on this

account, no benefit accrues to the appellant/accused.

15. In cases of sexual offences, it is a consistent view of

the Courts across the country that truthful and reliable

testimony of the prosecutrix does not require any

corroboration. I am of the considered opinion that the

referred scientific evidence provides material

corroboration to prosecutrix's version of this incident,

which is consistent and reliable. There is no plausible

reason as to why the testimony of the prosecutrix (PW-2)

Crl. A. No. 567/2008 Page 8 ought to be discarded. The plea of the appellant/accused

taken before the trial court, militates against all human

probability. It is not elaborated by the appellant/accused,

as to why the prosecutrix (PW-2) would ask him to go with

her and why she would stake her honour to falsely

implicate the appellant/accused in this case. Apparently,

the aforesaid plea is half baked and has rightly been

repelled by the trial court.

16. In the light of the aforesaid narration, I do not find

any illegality or infirmity in the impugned judgment and

sentence. This appeal lacks substance and is hereby

dismissed.

17. During the pendency of this appeal, the sentence

imposed upon the appellant/accused was suspended. Bail

bond furnished stand forfeited. Trial court is directed to

take the Appellant into custody to serve out the sentence

as awarded by it.

18. This appeal is dismissed with directions as aforesaid.

Sunil Gaur, J.

February 02, 2010
pkb/rs




Crl. A. No. 567/2008                                     Page 9