Babu Lal vs State Of Delhi
2010 Latest Caselaw 226 Del

*                    HIGH COURT OF DELHI : NEW DELHI

           Judgment reserved on: January 14, 2010
         Judgment pronounced on: January 18, 2010

+                             Crl. Appeal No.753 of 2005

%        Babu Lal                                   ...    Appellant
                              Through: Mr. B.K. Kapur and Mr. Rajesh
                                       Kumar Passey, Advocates

                                        versus

         State of Delhi                    ...   Respondent
                   Through: Mr. Amit Sharma, Additional
                            Public Prosecutor for the State

CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

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

2.       To be referred to Reporter or not?

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

SUNIL GAUR, J.

1. Appellant had faced trial for the offences under

Sections 376/ 392/457/506/ 34 of the IPC, as he along with

his co-accused had committed armed robbery after house

breaking in Doctor Roshan Lal Farm House, near Village

Chawla at Kanjanhari Mor in Delhi, in the night intervening

Crl. Appeal No. 753 of 2005 Page 1 16th and 17th August, 2002. Not only this, the accused had

also raped the two ladies of this house. The trial of this

case in FIR No. 455of 2002 registered at Police Station

Najafgarh, Delhi, ended in conviction of the appellant for

the aforesaid offences and sentence of RI for ten years

was imposed upon the appellant for the offence of rape

and robbery by the trial Court.

2. Impugned judgment has been assailed by learned

Counsel for the appellant by contending that the

conviction of the appellant solely rests upon the testimony

of the prosecutrix (PW-1), whereas the testimony of the

other prosecutrix (PW-7) as well as of Satya Narain (PW-2)

and Chander (PW-5) does not incriminate the appellant in

any manner whatsoever. The contention advanced on

behalf of the appellant is that as per the deposition of the

Investigating Officer (PW-11), appellant was not produced

before the prosecutrix (PW-1) in the police station because

he had admitted his guilt and his co-accused were

produced before the prosecutrix (PW-1), and they were

not identified by her. According to learned Counsel for the

appellant, this patent illegality by itself vitiates the trial Crl. Appeal No. 753 of 2005 Page 2 and benefit of doubt accrues to the appellant because out

of four material witnesses, testimony of three of them

does not incriminate the appellant and the solitary

deposition of prosecutrix (PW-1) is contradictory and

unreliable. It is pointed out that in her chief examination,

prosecutrix (PW-1) has deposed that she was raped by the

appellant while laying her on the floor whereas in her

cross examination, she has stated that she was raped on

a cot.

3. The prosecution version is sought to be discredited

by learned counsel for the appellant by contending that as

per the deposition of the other prosecutrix (PW-7), the

offence of rape was committed by two assailants whereas

according to her husband (PW-5), all the four assailants

had committed the offence of rape. Much emphasis has

been laid by learned Counsel for the appellant on the

aspect of public witness- Manjeet being not examined in

this case, especially when it is the prosecution case that

he had informed the police about this incident. According

to learned Counsel for the appellant, there was a remote

possibility of prosecutrix (PW-1) alone seeing the appellant Crl. Appeal No. 753 of 2005 Page 3 un-muffled, because as per the testimony of the remaining

three material witnesses, the faces of the assailants were

muffled during this incident. All said and done, according

to learned counsel for the appellant, the prosecution

version is unreliable and has been illegally accepted by

the trial Court and therefore, the impugned judgment

deserve to be set aside and the appellant needs to be

acquitted.

4. Mr. Amit Sharma, learned Additional Public

Prosecutor for the state, vehemently defends the

impugned judgment and counters the submissions

advanced on behalf of the appellant, by pointing out that

the testimony of the prosecutrix (PW-1) alone is sufficient

to nail down the appellant in this case and there is no

material contradiction in her version and there is no merit

in this appeal.

5. After having heard both sides and upon perusal of

the evidence on record, I find that happening of this

incident is not in dispute and therefore, factual details

need not be spelt out here again as they stand noted in

Crl. Appeal No. 753 of 2005 Page 4 the impugned judgment. The controversy herein centres

around the deposition of public witnesses and

Investigating Officer of this case. On the fateful day of this

incident, prosecutrix (PW-1) with her husband (PW-2) and

the other prosecutrix (PW-7) with her husband (PW-5)

were present in the farm house where armed robbery was

committed by house breaking and the two ladies i.e.

prosecutrix (PW-1) and prosecutrix (PW-7) were raped by

the intruders who had fled away after this incident. It is

true that after the investigation of this case, no recovery

of the robbed articles/ amount has been effected but Test

Identification Parade was arranged in which prosecutrix

(PW-1) had identified the appellant as the accused who

had raped her on the day of this incident and this incident

of rape had taken place outside the room while the

remaining three witness were inside the room.

6. This is a case where the identity of the appellant as

an accused cannot be doubted for the reason that he has

been duly identified by the prosecutrix (PW-1) not only in

the Test Identification Parade but also before the court at

the time when she had deposed in this case. During the Crl. Appeal No. 753 of 2005 Page 5 course of the hearing of this appeal, appellant's Counsel

had tried to pick up loopholes in the prosecution version

by pointing out that the string of the peticot of prosecutrix

(PW-1) was missing and he had wondered that how could

the prosecutrix (PW-1) be wearing the peticot without a

string. To say the least, this kind of argument is not at all

acceptable and it is noticed just to be rejected for the

reason that there is no pointed cross examination of the

prosecutrix (PW-1) on this conjectural aspect. It is really

inconsequential as to whether the prosecutrix (PW-1) was

raped on the floor or on the cot. Such like innocuous

variations in the testimony of the witnesses are likely to

occur when the deposition of witnesses are recorded on

different dates and after a long interval, like in the present

case. Anyhow, nothing hinges on it.

7. The deposition of the Investigating Officer (PW-11)

cannot be read out of context as defence Counsel chooses

to do. Infact, it has to be read as a whole and the tenor of

the cross-examination of the Investigating Officer (PW-11)

reveals that in the disclosure statement, the appellant had

admitted his guilt and had named his co-accused but had Crl. Appeal No. 753 of 2005 Page 6 not given the description of his co-accused or their

parentage. However, strangely the persons named by the

appellant were produced in the police station before the

prosecutrix (PW-1), who had failed to identify them. No

doubt this is an irregularity but in the facts of this case, it

is not of such a grave nature which would vitiate the entire

trial. So far as the case against the appellant is concerned,

it is consistent regarding the identity of the appellant.

Prosecutrix (PW-1) has not been cross-examined by the

appellant as to how she had identified the appellant as the

accused. Therefore, no reasonable doubt can be

entertained about the identity of the appellant. Appellant

cannot get away by simply asserting that the owner of the

farm house had enmity with him or that he had given

money to the prosecutrix (PW-1) to falsely implicate the

appellant. This is too far-fetched, as appellant in his

statement under Section 313 of the Cr.P.C. does not state

so. Whether two accused or four of them had committed

the offence of rape is neither here nor there as prosecutrix

(PW-1) is consistent in her deposition that she had been

raped by the appellant as well as by another muffled

Crl. Appeal No. 753 of 2005 Page 7 intruder also. Non-examination of Manjeet who had

informed the police is not a material omission and does

not give any advantage to the appellant because there is

no cross examination of Investigating Officer (PW-11) on

this aspect.

8. After having scrutinized the testimony of prosecutrix

(PW-1), I have no hesitation to conclude that the

submissions advanced on behalf of the appellant are

conjectural and are purely based on surmises and do not

go to the root of the matter and are totally insufficient to

cause any dent in the prosecution version, as spelt out by

the prosecutrix (PW-1). I am of the considered view that

the testimony of the prosecutrix (PW-1) inspires the

confidence of the Court and has been rightly relied upon

by the trial court. I have evaluated the testimony of the

prosecutrix (PW-1) in the light of the parameters laid down

by the Apex Court in 'State of Himachal Pradesh v. Asha

Ram' AIR 2006 SC 381, which are as under:-

"It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for

Crl. Appeal No. 753 of 2005 Page 8 seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliance. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case." (emphasis supplied)

9. Since the appellant fails to disclose as to what was

the enmity between the owner of the farm house and the

appellant, and as to why the prosecutrix (PW-1) would

oblige the owner of the farm house to falsely depose

against the appellant, there is no plausible reason to reject

the version of the prosecutrix (PW-1).

10. In cases of this nature, no advantage accrues to the Crl. Appeal No. 753 of 2005 Page 9 defence, on account of bad investigation, where the

prosecution version is found to be truthful. This stands

reinforced by the Apex Court in rape cases, in its decisions

reported in 'Karnel Singh vs. State of M.P'. (1995) 5 SCC

518 & in 'Zindar Ali Sheikh v. State of West Bengal'

(2009) 3 SCC 761.

11. If the totality of the circumstances appearing on

record of the case discloses that the prosecutrix does not

have a strong motive to falsely involve the person

charged, the Court should ordinarily have no hesitation in

accepting her evidence. It has been so reiterated by the

Apex Court in its recent decision in 'S. Ramakrishna v.

State' (2009) 1 SCC 133. In the instant case, the version

of the prosecutrix (PW-1) is crystal clear, truthful and

reliable and she has no good reason to falsely implicate

the appellant in this case.

12. In the final analysis, it is found that there is no

illegality or infirmity in the impugned judgment. The

conviction of the appellant is well deserved and calls for

no interference by this Court. So far as sentence imposed

Crl. Appeal No. 753 of 2005 Page 10 upon the appellant is concerned, the Nominal Roll reveals

that out of the sentence of RI for ten years, the appellant

has already undergone sentence of eight years and three

months as in July, 2009. Appellant is in custody. He has

already undergone substantial part of the sentence

already awarded to him. The Nominal Roll also reveals

that no other case is pending against him. The 'Order on

Sentence' indicates that he has a family to support. In the

circumstances of this case, the substantive sentence

imposed upon the appellant is reduced to the period

already undergone by him. To this extent, this appeal is

allowed. Appellant is in custody. He be informed of this

order through the concerned Jail Superintendent.

13. This appeal stands accordingly disposed of.

Sunil Gaur, J.

January 18, 2010
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Crl. Appeal No. 753 of 2005                             Page 11