Raghu Nath vs The State (Nct Of Delhi)
2010 Latest Caselaw 699 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     Crl.A.No.837/2005

%                     Reserved on:      4th February, 2010
                      Date of Decision: 8th February, 2010


#     RAGHU NATH                          ..... Appellant
!                     Through:    Mr.S.P.Kaushal, Advocate,


                                  with Mr.Jagjit Nandal &
                                  Mr.Brijesh Singh, Advs.
                      versus

$     THE STATE (NCT OF DELHI)      ..... Respondent
^                  Through: Mr.Jaideep Malik, APP

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN

      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?

      2.    To be referred to the Reporter or not?

      3.    Whether the judgment should be
            reported in the Digest?



: V.K. JAIN, J.

1. This is an appeal against the judgment and Order on

Sentence dated 24.8.2005, whereby the appellant was

convicted under Section 506 and 376 of IPC and was

sentenced to undergo rigorous imprisonment for ten years

and to pay a fine of Rs.5,000/- or to undergo Simple

Imprisonment for six months in default under Section 376 of

IPC and was further sentenced to undergo Simple

Imprisonment for two years under Section 506 of IPC. Both

sentences were to run concurrently.

2. On 13.8.2004, the prosecutrix, accompanied by her

parents came to Police Station Nangloi and lodged an FIR

alleging therein that the appellant, who was related to her

and who had been called by her parents to perform puja

(Hawan) in the night intervening 25/26 th April, 2004, advised

her parents that unmarried girl should perform puja in

darkness or at cremation ground or at bank of river Yamuna.

At about 2:30 a.m., he sent her parents out of the house.

She was left alone with the appellant, who first got his head

massaged from her and then raped her and threatened that

in case she disclosed the matter to her parents, he, using the

super natural power possessed by him, would kill them even

before they came inside. Being scared, she did not disclose

the incident to her parents. In this manner, he raped her at

her residence a number of times. She did not disclose the

incident to her parents, but, when, she came to know that

her cousin had also been raped by the appellant on the

pretext of performing puja and was in jail, she narrated the

incidents to her parents who brought her to the Police

Station.

3. The prosecution examined fourteen witnesses in support

of his case. The prosecutrix came in the witness box as PW-1

and stated that the appellant who was related to her, came to

their house in the night of 25.4.2004 at about 11:00 p.m. and

told her father that he would perform Hawan, as a result of

which the business of her father would flourish. Her father

agreed to the proposal of the appellant who then started

Hawan and completed it in about two hours. In the night,

the appellant told her parents that he wanted to teach

"Mantras" to her in private and, therefore, they would have to

go out of the room. Her parents then went outside the room.

The appellant laid her on the bed and after removing her

clothes as well as his own clothes tried to do wrongfully acts

with her. When she tried to raise alarm, the appellant put a

knife at her neck, as a result of which, she could not raise

alarm. She further stated that the accused had then

penetrated for about half an hour. He also threatened to kill

her parents with the help of "Ginn" (a super natural power),

which was under his control, in case the incident was

disclosed by her to anyone. She did not inform her parents

in this regard. After 4-5 days, the appellant again came to

their house, sent her parents outside on the pretext of

teaching "Mantras" to her and again raped her. She was thus

raped 5-6 times. She did not disclose the incident to her

parents being afraid of him. According to her, she told her

mother after she had been raped 5-6 times and one month

thereafter, her parents lodged report with the Police.

4. PW-2, the mother of the prosecutrix, has stated that the

appellant, who is a Tantrik, had come to their house in the

night on 26.4.2004. They got Hawan performed by him so

that their furniture business could flourish. At his instance,

she and her husband sat outside the room, as the accused

was to teach Mantras to their daughter. When she and her

husband later entered in the said room, the prosecutrix and

the appellant were seated separately. After several months,

the prosecutrix informed her that the appellant had raped her

5-6 times, as and when he performed Hawan at their house

which had taken place past midnight on all occasions.

5. PW-3 is the father of the prosecutrix, has stated that the

appellant was known to him, being related to him and was on

visiting terms with him. On 25.4.2004, at about 8:00/9:00

pm, the appellant came to their house and the Hawan was

performed at his instance, so that his furniture business

could flourish. The appellant told him that it was necessary

to teach Mantras to his daughter and to get puja done by her

which could be done either on the bank of river Ganga or

Yamuna or at his house in privacy. He agreed to the

suggestion of the appellant to get it done in privacy. At about

2 or 2:30 a.m., he along with his wife went outside the room.

The room was closed. After about one and a half hour, the

appellant called them and said that Hawan and Jap was to be

repeated after 8-10 days. In the same manner, the appellant

got puja and Jap done from his daughter in privacy. His

furniture business did not flourish even thereafter. His

daughter started remaining extraordinary silent. After four

months, his daughter told him that the appellant had

threatened to kill her parents, using super natural powers

and had also raped her on all occasions when Hawan Jap

was performed by him in the house. On the next day, he

went to the Police Station accompanied by his wife, his

brother and a few neighbourers. In cross-examination, he

stated that before registration of the case against the

appellant, they had come to know about the rape case

against the appellant at Faridabad which was registered on

the complaint of his niece and that the allegations in that

case were also identical to the allegations in their case.

6. PW-4, Dr.Sweety Bansal, Gynaecologist, examined the

prosecutrix in Sanjay Gandhi Smarak Hospital on 13.8.2004.

The hymen of the prosecutrix was found torn, though, signs

of fresh injury or inflammation region were not present. PW-

5 Dr.Ashish Jain, examined the appellant in Hospital on

20.8.2004 and he was of the view that no definitive opinion

regarding the appellant performing sexual act could be given.

7. PW-12 Smt.Kanta Rani is the Vice Principal of the

Government Girls Senior Secondary School, JJ Colony No.II,

Nangloi, Delhi. She has stated that as per the record of the

School, date of birth of the prosecutrix was 16.12.1989.

Copy of the admission register maintained by the school is

exhibit PW-12/B whereas the certificate of the date of birth

issued by the School is Ex.PW12/A.

8. In his statement, under Section 313 of Cr.P.C., the

appellant admitted that he was related to the prosecutrix and

her family. He also admitted that he had been visiting the

house of the prosecutrix, though he denied that he was a

Tantrik. He denied having gone to the house of the

prosecutrix on 25.45.2004 and having raped her on that date

and on subsequent dates. He stated that he was to recover a

sum of Rs.3,42,000/- on account of sale of buffaloes from the

father of the prosecutrix and his brother and that is why he

has been implicated in this case.

9. DW-1 Jai Narain, had stated that he knew the appellant

as well as the father of the prosecutrix. According to him,

whenever he went to the house of the appellant, he found

that the conversation between him and the father of the

prosecutrix was on money, which the appellant had been

demanding from the father of the prosecutrix, towards sale of

buffaloes to him.

10. The first contention raised by the learned counsel for

the appellant is that there is delay in lodging FIR, which has

not been explained by the prosecution. It was pointed out

that the prosecutrix alleges to have been raped, for the first

time, in the night intervening 25/26th April, 2004, whereas

the incident was reported to the police only on 13 th of August,

2004.

11. As regards delay in reporting the matter to the police,

the Hon'ble Supreme Court noted in Ravinder Kumar vs.

State of Punjab, 2001 (VII) AD (SC) 2009, that the law has

not fixed any time limit for lodging FIR and delayed FIR is not

illegal. Though prompt lodging of FIR is ideal, that by itself

does not guarantee the genuineness of the version given in it.

Whenever there is delay in lodging FIR, the Court ought to

look for reasons, if any. But, delay by itself cannot be the

sole ground to doubt and discard the entire case of the

prosecution though it does put the Court, on guard, to look

for explanation, if any.

12. In Karnel Singh Vs. State AIR 1995 SC 2472, there was

considerable delay in lodging FIR and the contention made

before the Hon'ble Supreme Court was that there was

sufficient time for tutoring the prosecutrix who in that case

was a married lady and therefore her evidence could not be

believed. Repelling the contention the Hon'ble Supreme Court

held as under:

"The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false."

13. In State vs. Gurmeet Singh, AIR 1996 SC 1393,

the Hon'ble Supreme Court, inter alia observed as

under:

"The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged."

14. The courts need to keep in mind that the cases of rape,

particularly with unmarried girls, involve not only the honour

and reputation of the family but the very future of the girl,

who has been subjected to this heinous crime. The family of

a minor girl, who has been subjected to rape, therefore, needs

time to think over and deliberate whether to report the matter

to the police and thereby take the risk of jeopardising the

future of the girl, particularly her marriage prospects, or not.

In fact, a number of incidents of rape of minor girls are not

reported due to apprehension of the parents that if it

becomes public that their daughter has been subjected to

rape, they may find it extremely difficult to get a suitable

matrimonial alliance for her. Therefore, they need to examine

all the pros and cons before taking an appropriate decision in

a matter of this nature. The dilemma of the family members

become more acute when the person committing rape

happens to be a relative or a friend.

15. In the present case, according to the parents of the

prosecutrix, the incidents of rape were not reported by her to

them soon after they took place with her. According to

PW-2, mother of the prosecutrix, when they entered the room

in the night of 25/26 th April, 2004, they found the appellant

and the prosecutrix sitting separately and it was only after

several months that their daughter informed her that the

appellant had raped her 5-6 times, at the time he performed

HAWAN in their house. According to PW-3. Father of the

prosecutrix, she took them into confidence only after about

four months and on the very next day he took her to the

police station. As far as the prosecutrix is concerned, in her

examination-in-chief, she specifically stated that she did not

inform her parent in the night of 25/26th April, 2004 as she

had been threatened by the appellant. She further stated

that on subsequent occasions also, being afraid of the

appellant, she did not disclose the incident to her parents. In

the later part of her deposition she said that two months after

she had been raped for the first time, she disclosed this fact

to her mother and they informed the police one month

thereafter. In her cross-examination, however, she stated

that on the day she was raped for the first time, she had

handed over her bloodstained clothes to her parents and had

told them that she had been raped by him.

16. It is difficult to accept that the parents of the

prosecutrix, despite having come to know of the appellant

raping their daughter would not have reported the matter to

the police and would also have allowed the appellant to keep

on visiting their house, and remain all alone in the company

of their daughter, without even trying to keep a check on him.

This is not the way the parent of a minor girl would behave

on coming to know of rape with their daughter. Even if they

decide not to report the first incident of rape to the police, in

order to avoid adverse publicity and embarrassment to their

family and their daughter, they would certainly not allow the

rapist to come again and again to their house and then to

remain all alone in the company of their daughter unless

their daughter has been subjected to rape with their tacit

approval. The true fact seems to be that the prosecutrix, who

was a minor girl less than 15 years old when she was

subjected to rape, was scared on account of the super natural

powers claimed by the appellant and genuinely believed that

if the incident was reported by her to her parents, the

appellant, possessed since he has a super natural powers

such as controlling a gin, he would definitely kill her parents

using the super natural powers wielded by him. The

prosecutrix came from a rather lower strata of the society and

was a school going child when she was subjected to rape.

The appellant was not a stranger to her. He was a relative

who had represented to her parents that if he performed

HAWAN in their house and also a Puja by an unmarried girl

was performed by him either in darkness or at the bank of a

river, that would result in the flourishing of the business of

her father. An educated and aware family would not have

believed a claim of this nature but we cannot deny that in our

country there are many people who still believe that the

persons claiming to be TANTRIK possessing super natural

powers are capable of giving desired results to them, if they

scrupulously follow the instructions given by such a person.

In the present case, the parents of the prosecutrix allowed

him to remain in the company of their daughter in darkness,

believing the false claim made by him. In fact, there have

been instances where people have just killed their child under

the influence of persons such as the appellant who claim to

be TANTRIK possessing super natural powers. Therefore,

there was nothing unusual in the prosecutrix, who came from

a weaker section of the society and did not possess necessary

awareness, to believe that the appellant was capable of

harming her parents, in case she complained against him to

her parents. It has come in evidence that the appellant had

committed similar act of rape with the cousin of the

prosecutrix and he was arrested when those incidents of rape

were reported to the police. Obviously, when the appellant

was arrested for committing rape with the cousin of the

prosecutrix, she realized that he, in fact, was a monster, who

had abused not only her but also her cousin sister. Finding

that the appellant despite his claiming to possess enormous

super natural powers was not able to save himself from being

arrested for rape of her cousin, the prosecutrix was able to

overcome her fear of the appellant and the super natural

powers claimed by him and decided to disclose the matter to

her parents. The claim in the cross-examination that she

had disclosed the incident to her mother and had also

handed over the clothes to her, may be an attempt to

overcome the embarrassment which she felt in the court, on

account of her failure to disclose incidents of this nature to

her mother. Once the matter was brought to the knowledge

of the parents, there was no delay in reporting it to the police.

Thus, there is adequate explanation for the delay which took

place in reporting the incidents of rape to the police.

17. In case I believe the deposition of the prosecutrix in her

cross-examination, to the effect that on the very day she was

subjected to rape, she had not only disclosed the incident to

her mother, the inevitable inference is that the parents of the

prosecutrix were not party to her being subjected to rape by

the appellant, since they believed that he being a TANTRIK,

their business of furniture will flourish in case the appellant

is allowed to have his say, even at the cost of sacrificing the

honour and dignity of their own daughter. Since they

continued to believe in the TANTRIK powers claimed by the

appellant, they, in that case, would have allowed him to

continue to have his say, under a belief that it would result in

their business getting flourished. Later, when they found

that their business had not flourished and that the appellant

was, in fact, did not wield any super natural power and was

only a crooked, who had also spoiled the life of their niece in

a similar manner, they decided to report the matter to the

police. Either way, the appellant would be guilty of rape

since consent on the part of the prosecutrix and/or parents

would be absolutely immaterial when the prosecutrix was

less than 16 years of age at the time of commission of rape on

her.

18. It was pointed out by the learned counsel for the

appellant that as per the opinion of PW-5, Dr.Ashish Jain,

who examined the appellant, no definite opinion regarding

the capacity of the appellant to perform sex could be given.

This, in my view, does not help the appellant in the facts and

circumstances of this case. The medical opinion does not say

that the appellant was incapable of performing sexual act.

There is no reason to disbelieve the positive assertion of the

prosecutrix that the appellant had raped her a number of

times. The prosecutrix has fully described the act committed

by the appellant with her and has specifically stated that the

penetration by the appellant lasted about half an hour. The

hymen of the prosecutrix was found torn when she was

examined in hospital. Had the appellant not been capable of

performing sexual act, he would not have been able to

penetrate and the hymen of the prosecutrix would not have

been found ruptured. Admittedly, the appellant not only

been convicted for raping the cousin of the prosecutrix the

appeal filed by him against his conviction in that case also

been dismissed by the Punjab and Haryana High Court.

Therefore, the conviction in the other case for the very same

offence is yet another proof that the appellant was capable of

performing sexual act.

19. The learned counsel for the appellant has pointed out a

few discrepancies in the case of the prosecution. He has

pointed out that when the prosecutrix was examined in

hospital she told the doctor that the last incident of rape had

happened 15 days before her examination in the hospital,

whereas, in fact, the appellant was in custody since 15 days

before the date the prosecutrix was examined in hospital. I

find that there has been no cross-examination of the

prosecutrix on this aspect of the case. Her attention was not

drawn to this endorsement made on her MLC and she was

not asked as to whether such a statement was made by her

in the hospital. Moreover, either the prosecutrix or someone

accompanying her may have made such a statement in the

hospital by estimation. Nothing, therefore, really turns on

this endorsement in the MLC of the prosecutrix, I see no

reason to disbelieve the deposition of the prosecutrix.

20. It was also pointed out by the learned counsel for the

appellant that according to PW-1, the prosecutrix, and PW-3,

the father of the prosecutrix, the appellant had come to their

hosuse on 25th April, 2004, whereas according to PW-2, the

mother of the prosecutrix, he had come on 26th April, 2004.

Since the incident in question took place in the night

intervening 25/26th April, 2004. It is hardly material whether

the appellant had come to their house on 25 th or 26th April,

2004. In fact, the appellant himself has admitted that he had

been visiting the house of the prosecutrix in the year 2004,

though he denied having visited the house in the night of 25th

April, 2004. Therefore, the discrepancy as regards the exact

date on which the appellant visited the house of the

prosecutrix is not material at all.

21. The defence taken by the appellant is that he had sold

certain buffalos to the father of the prosecutrix and that

instead of paying for the buffalos he implicated him in this

case, so as to avoid paying the money, which he owed to the

appellant. In my view, the defence taken by the appellant is

not at all believable. There is no documentary proof of the

appellant having sold buffalos to the father of the prosecutrix.

The appellant does not even say how many buffalos were sold

by him and what exactly was the consideration for which

buffalos were sold by him to the father of the prosecutrix. In

case the father of the prosecutrix wanted to implicate the

appellant only in a false case of rape, he would have preferred

to allege rape with his wife, instead of bringing her daughter

into picture and thereby jeopardising the very future,

including marriage prospects of his young daughter. The

appellant being a relative and a frequent visitor to their

house, it would have been more convenient for the father of

the prosecutrix to allege rape with his wife, instead of alleging

rape with his daughter. If the parents of the prosecutrix were

to implicate the appellant in a false case of rape, they would

not have said that the incidents of rape had taken place a few

months before they were reporting the matter to the police.

They knew that if they report incidents which took place a

few months ago, the first reaction of the police or courts

would be to ask them as to why they did not report the

matter to the police on the very first day their daughter was

subjected to rape in their house. Therefore, they would have

preferred to lodge a recent incident of rape instead of saying

that the incident took place a few months ago. In any case,

admittedly the appellant was already in custody when the FIR

in this case was lodged. The appellant having already

arrested for raping the cousin of the prosecutrix, no motive

could thereafter have subsisted for the father of the

prosecutrix to implicate him in a similar case, as he would

have felt satisfied on the appellant being arrested for the rape

of his niece and, therefore, there would have been no

necessity for him to concocted for these incidents of rape

against the appellant. The prosecutrix was a young girl aged

about 15 years when she was subjected to rape. She knew it

very well that by reporting incidents of this nature, she would

be jeopardising her reputation and matrimonial prospects.

The false accusation of rape are more difficult to make when

the person involved is either related to the family or is

otherwise well-known to them. While disclosing these

incidents to her parents, the prosecutrix would be conscious

that she may be looked down and even disbelieved by her

own family members who may hold her to be at least partly

responsible for causing embarrassment to the family and

bringing it into disrepute. When the parents of an unmarried

girl report incident of this nature to the police, they are very

much conscious that if the incident becomes public, it may

not be possible for them to find a suitable match for their

daughter since not many persons would be willing to marry a

girl who has been subjected to rape, and that too in her own

house and by a relative of the family. The parents know it

very well that if they report the matter to the police, they

would have to take their daughter first to the police station

for giving the statement, then to the hospital for her medical

examination, then before a magistrate for recording her

statement and, thereafter, bring her to the trial court to

narrate the incident, in the presence of a number of outsider,

including Presiding Judge, Prosecutor and Defence Counsel

thereby bringing causing acute embarrassment to the girl.

They would, therefore, be extremely unwilling to take

recourse of going to the police with allegations of rape unless

they are absolutely sure that the truth is on their side and

there is no likelihood of their daughter being disbelieved and

that they would not face embarrassment and humiliation on

account of being disbelieved by the court.

22. It is by now settled proposition of law that the testimony

of the prosecutrix, if believed, can be the sole basis of

conviction in a rape case and there is neither a rule of law,

nor of prudence, which requires corroboration of the

testimony of a prosecutrix, before it can be acted upon The

courts need to recognise the fact that ordinarily there would

be no direct evidence of such a crime, other than the

statement of the prosecutrix. In any case, even if the court

does look for corroboration, it is available in the form of

statement made by the prosecutrix to her mother, then to the

doctor who examined her in the hospital and then in her

statement to the Magistrate. Her testimony also finds

corroboration from her medical examination wherein her

hymen was found to be torn.

23. Though, this is not the case of the appellant that he had

sexual intercourse with the prosecutrix with her consent,

even if that had been the case, the consent would have been

absolutely immaterial as the prosecutrix was less than 16

years of age when she was subjected to rape. A perusal of the

school certificate of the proxecutrix, Ex.PW-12/A, and the

copy of the school register, Ex.PW-12/B, shows that the date

of birth of the prosecutrix is 16th December, 1989. There is

no evidence to rebut the documentary evidence regarding the

age of the prosecutrix and even the appellant does not claim

that the prosecutrix was not less than 16 years of age in

April, 2004.

24. For the reasons given in the preceding paragraphs, I

hold that the appellant has rightly been convicted under

Section 376 IPC.

25. Coming to the sentence, though the crime committed by

the appellant is very heinous and he deserves no leniency in

the matter of sentence, considering the fact that he is already

undergoing sentence of rigorous imprisonment for seven

years for committing rape with the cousin of the prosecutrix, I

am of the view that the ends of justice will be met if the

substantive sentence awarded to him is reduced to seven

years, provided that the sentence awarded to him in this case

starts running only after he has already undergone the

sentence awarded to him for committing rape with the cousin

of the prosecutrix. Hence, while maintaining the sentence of

fine as well as the sentence of simple imprisionment for six

months in default of payment of fine, the substantive

sentence awarded to the appellant under Section 376 IPC is

reduced to seven years. The sentence awarded to the

appellant under Section 506 IPC does not call for any

interference. The sentences awarded to the appellant in this

case shall start running only after he has served the sentence

awarded to him for raping the cousin of the prosecutrix.

26. One copy of this order be sent to the appellant through

concerned Jail Superintendent. The trial court record be sent

back, along with a copy of this order.

(V.K.JAIN) JUDGE FEBRFUARY 8, 2010 RS/'sn'