Nand Kishore Mehto vs State
2010 Latest Caselaw 624 Del

              HIGH COURT OF DELHI: NEW DELHI
+              CRL. APPEAL No. 573/2009
%
                                          Decided on 4th February, 2010
NAND KISHORE MEHTO                    ......Appellant
               Through: Mr. Deepak Vohra, Adv.
                                Versus
STATE                                                     .....Respondent
                                Through: Mr. Manoj Ohri, APP for
                                         State.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers Not
          may be allowed to see the judgment?   necessary

       2. To be referred to Reporter or not?                   Not
                                                               necessary

       3. Whether the judgment should be                       Not
          reported in the Digest?                              necessary


A.K. PATHAK, J. (Oral)

1. Appellant has been convicted under Section 376 of the

Indian Penal Code (IPC) by the learned trial court and

sentenced to undergo rigorous imprisonment for seven years

with fine of Rs. 10,000/- and in default of payment of fine, to

undergo simple imprisonment for three months.

2. Appellant is brother-in-law (sala) of brother of

prosecutrix. Appellant was living in a jhuggi, which was

adjoining to the house of prosecutrix. Appellant had come to

Delhi from his village few months prior to the incident in

search of a job. In fact, he had paid a sum of Rs. 35,000/-

either to brother or father of the prosecutrix for arranging a

job for him. However, appellant could not get any

employment. On 25th September, 2006 prosecutrix was taken

to All India Institute of Medical Sciences (AIIMS) at about

11:02 pm with the history of bleeding per vagina. On

reaching hospital, mother of prosecutrix told the doctor that

prosecutrix had gone out and when she returned, she was

having massive bleeding per vagina. Accordingly, this fact

was recorded in the MLC. Prosecutrix was referred to Senior

Resident, Gynaecology. In the later part of the MLC it was

recorded that the patient was sexually assaulted at 7 pm on

25th September, 2006. Doctor found hymen ruptured and first

degree perennial tear with bleeding.

3. Duty constable, Vinay Kumar, who was posted at AIIMS,

forwarded information to Police Station Hajrat Nizamuddin

pursuant whereof D.D. No. 27A was recorded and handed

over to ASI Jit Singh for enquiry, who reached AIIMS and

obtained MLC of prosecutrix. However, prosecutrix was not

found in the hospital. Thereafter, he went to the house of

prosecutrix but the same was found locked. On enquiring,

neighbours informed that prosecutrix with her family

members had gone out of Delhi. ASI Jit Singh again visited

house of prosecutrix but neither the prosecutrix nor her

family members made any statement before him on the

pretext that prosecutrix was not well.

4. Later investigation was handed over to SI Saroj Bala,

who on 20th October, 2006, visited the house of prosecutrix

along with Ms. Garima, who working with a NGO Prayatn, and

recorded statement of prosecutrix wherein she stated that in

the evening of 25th September, 2006 she had gone to

bathroom for urinating and when she was returning, appellant

came there and pulled her inside a room, situated behind her

house and made her to lay down in a bed; removed her

salwar, when she tried to raise alarm he gagged her mouth

from one hand, and did galat kaam with her. In the

meanwhile, her mother came there and on seeing her,

appellant got up and ran away.

5. On the basis of this statement of prosecutrix, FIR No.

709/2006 under Section 376 IPC was registered at Police

Station Hazrat Nizamuddin. On 7th December, 2006.

Appellant was arrested and was medically examined. Doctor

opined that there was nothing to suggest that appellant was

incapable of performing sexual intercourse in normal

circumstances. Blood sample of appellant was taken, sealed.

Later on this was deposited in the Malkhana. Vaginal smear

in sealed condition with seal of CMO AIIMS, which was earlier

handed over to him in the hospital by the doctor, was

deposited by him in the Malkhana. Subsequently, Vaginal

smear of prosecutrix as well as blood sample of appellant was

sent to FSL, Delhi and its report was obtained. As per FSL

report, no semen was detected in the Vaginal smear and blood

on the gauze cloth piece of the appellant was opined that of

human.

6. After completion of investigation appellant was sent up

to face trial for having committed the offence under Section

376 IPC, by filing a charge-sheet in the court of learned

Metropolitan Magistrate who committed the case to Sessions

Court for trial.

7. Charge under Section 376 IPC was framed against the

appellant by the learned Additional Sessions on 28th February,

2007 to which appellant pleaded not guilty and claimed trial.

8. Prosecution examined ten witnesses to prove its story.

After prosecution closed evidence, statement of appellant

under Section 313 Cr.P.C. was recorded on 13 th January, 2009

wherein entire incriminating material, which had come on

record, was put to him. Appellant denied the same to be

incorrect. He claimed himself to be innocent. He took a plea

that he was falsely implicated by the parents of the

prosecutrix in collusion with the prosecutrix in order to grab

his money. Appellant examined his sister in his defence as

DW1.

9. Learned trial Judge found testimony of prosecutrix PW2

trustworthy and reliable for concluding that appellant had

committed rape upon her on 25th September, 2006 at about

7:00 pm. Testimony of PW3 Nanki Devi was also accepted as

reliable and corroborative. As per the trial court, testimony of

prosecutrix and her mother was supported by medical

evidence. Consequently, appellant was convicted under

Section 376 IPC.

10. I have heard learned amicus curiae, learned counsel for

the State and perused the trial court record carefully.

Learned counsel for the appellant has vehemently contended

that there is an inordinate delay in lodging the FIR which is

fatal in the facts of this case more so, when it remained

unexplained. He further contended that immediately after the

incident PW8 ASI Jit Singh had reached the hospital but did

not find prosecutrix or her family members present there. He

even went to house of prosecutrix but no statement was made

before him either by the prosecutrix or her mother that

appellant had committed rape. PW5 Ms. Garima has also

deposed that despite her repeated advice, neither prosecutrix

nor her mother came forward to make a statement against the

appellant. As per PW3 herself, she did not make any

statement before the Police almost for a month. Even if it is

presumed that prosecutrix was under shock or was unwell,

even then it was always open for PW3 to make a statement

before the Police but she did not do so. Not only this, conduct

of the father of the prosecutrix PW1 Bhuneshwar Mehto, is

also suspicious. He had admitted, in his cross-examination,

that he was informed on phone regarding the incident by his

wife while he was in Bihar, in spite of this, he did not make

any effort to return to Delhi nor any steps were taken by him

to lodge the FIR immediately on his return from the village.

According to learned counsel, this unusual delay in lodging

the FIR had remained unexplained and the appellant was,

thus, entitled to benefit of doubt as false implication of

appellant cannot be ruled out in view of certain admitted

facts. Admittedly, appellant had paid a sum of Rs. 35,000/- to

the close relatives of the prosecutrix for getting a job for

himself. However, neither the job was arranged nor money

was returned. Not only this, PW2 categorically admitted, in

her cross-exanimation, that her father had asked appellant

either to marry her or to pay Rs. 1 lakh so as to marry the

prosecutrix with someone else. It has been further contended

that Vaginal smear of the prosecutrix was taken immediately

after the incident but no semen was detected as per FSL

report, which also rule out the rape.

11. As against this, learned counsel for the State vehemently

contended that there is no reason to disbelieve the

prosecutrix and her mother, who had categorically deposed

that it is the appellant, who had raped the prosecutrix on the

fateful day. He further contends that in cases of sexual

offences there is initial hesitation on part of the victim to

inform the Police, as the reputation of family remains at stake,

inasmuch as, marriage prospects of the victim also gets in

jeopardy. Delay in such cases of rape has to be ignored.

Father of the prosecutrix was not in Delhi which also resulted

in delay. Appellant was brother-in-law (sala) of prosecutrix's

brother, for this reason also family of the prosecutrix initially

might be hesitant to lodge FIR against him. Appellant was

asked to marry the prosecutirx or to pay Rs. 1 lakh so that

she could get married elsewhere only after the rape,

therefore, it cannot be said that he was falsely implicated in

this case on his refusal to marry the prosecutrix or that he

was blackmailed in any manner, whosoever.

12. I have considered the rival contentions of both the

parties in the light of ocular as well as documentary evidence

available on record. It is well settled that in a case of rape,

mere delay in lodging the FIR, by itself would not be fatal to

the prosecution case. However, the fact that report was

lodged belatedly is a relevant fact of which, the court is under

obligation to take note of this fact and the same has to be

considered in the light of other facts and circumstances of the

case. In a given case, court may be satisfied that the delay in

lodging the report has been sufficiently explained, In the

light of the totality of the evidence, the court, as a matter of

fact, has to consider whether the delay in lodging report

adversely affects the case of the prosecution. That is a matter

of appreciation of evidence.

13. In this case, delay in lodging the FIR, coupled with other

adverting circumstances, create suspicion about the veracity

of prosecution story and makes the appellant entitled to

benefit of doubt. None of the witnesses had disposed that

statement was not made by the prosecutrix or her mother,

immediately after the incident, due to shame or with the fear

of inviting disrepute or stigma on the prosecutrix for rest of

her life or due to fear of ostracization in the society. The only

plea taken was that the prosecutrix was not keeping well.

This plea taken by the victim's family does not, inspire

confidence and does not appear to be convincing. As per

PW3, i.e. prosecutrix's mother, she had herself witnessed the

incident. In such an eventuality, even if prosecutrix had not

been keeping well, PW3 could have come forward to make a

statement before the Police. MLC also does not indicates that

prosecutrix was unwell, in fact, when SI Jit Singh reached the

hospital, he did not find the prosecutrix there as she had

already left for home. PW8 ASI Jit Singh even visited the

house of the prosecutrix but found it locked. During his

subsequent visits also, no statement was made before him.

Not only this, PW3 even did not inform that she had witnessed

the incident. PW5 Garima has categorically deposed that she

visited the house of the prosecutrix on 26th September, 2006

and advised the family of prosecutrix to lodge a police report.

According to the mother, prosecutrix narrated the incident of

rape to her, this also shows that a plea taken that FIR was not

recorded as prosecutrix was unwell, is not convincing. In the

facts of this case it cannot be said that prosecutrix and her

family did not make statement promptly as they were hesitant

due to variety of reasons including the fear of ostracization

and to avoid disrepute to the family.

14. Prosecutrix was taken to AIIMS by her brother and

mother. However, name of the appellant was not disclosed to

the doctor. At the first instance, even incident of sexual

assault was not disclosed. PW3 had told the doctor that

prosecutrix had gone out and when she returned she was

bleeding per vagina. Had PW3 witnessed the appellant raping

her daughter, she would not have kept silent on this aspect

and would have disclosed the name of the appellant to the

doctor. In view of this, statement of PW3 that she had

witnessed the appellant committing rape upon her daughter,

looses its credit worthiness.

15. PW2 admitted in her cross-examination that her father

had asked the appellant either to marry her or to pay Rs. 1

lakh so that she could be married elsewhere. Her this

statement creates a doubt about the whole episode and also

creates suspicion about the whole prosecution story.

Contention of the appellant that he had been falsely

implicated by her parents on his refusal to marry the

prosecutrix and to pay Rs. 1 lakh cannot be ruled out. Not

only this, it has also been admitted by PW1 to PW3 that

appellant had come to Delhi in search of a suitable job.

Moreover brother of the prosecutrix had admitted, that his

father had taken Rs. 35,000/- in order to secure a job for the

appellant. Neither the job was arranged nor money was

returned. In view of this, false charge of rape against the

appellant cannot be ruled out.

16. It is no doubt true that the conviction, in a rape case,

can be based solely on the testimony of the prosecutrix, but

that can be done in a case where the court is convinced about

the truthfulness of the prosecutrix and there exist no

circumstances which cast shadow of doubt over her veracity.

If the evidence of the prosecutrix is of such a quality that may

be sufficient to sustain an order of conviction solely on the

basis of her testimony, then in that case it can be relied upon.

In the instant case, I do not find her evidence to be of such

quality.

17. Cumulative effect of the adverse circumstances as

detailed above coupled with the fact that FIR was lodged after

about a month which delay remained unexplained, appellant is

entitled to the benefit of doubt.

18. Accordingly, impugned order is set aside and appellant

is acquitted of the charge under Section 376 IPC.

19. Appellant is in judicial custody. He be set free forthwith

if not wanted in any other case.

20. Appeal is disposed of in the above terms.

A.K. PATHAK, J

February 04, 2010 ga