Nannu Gupta @ Bablu vs The State
2010 Latest Caselaw 228 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+                     Crl.A.No.529/2009
#    NANNU GUPTA @ BABLU                  ..... Appellant
!                     Through: Mr. A.K. Bhamhani, Adv.
                 versus
$    THE STATE                               ..... 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?               Yes

     2.    To be referred to the Reporter or not?            Yes

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


: V.K. JAIN, J. (ORAL)

1. This is an appeal against the Judgment dated 5th August,

2008 and Order on Sentence dated 6th August, 2008, whereby

the appellant was convicted under Section 452, 506 Part-II, 324

and 376/511 of IPC and was awarded the following sentences

(i) RI for 2 years and fine of Rs.1,000/- and in default of

payment of fine, RI for one month under Section 324 IPC; (ii) RI

for three years and fine of Rs.1,000/- and in default of payment

of fine, RI for one month under Section 452 of IPC; (iii) RI for

three years and fine of Rs.1,000/- and in default of payment of

fine, RI for one month under Section 506 Part-II IPC; (iv) RI for

five years and fine of Rs.2,000/- and in default of payment of

fine, RI for two months under Section 376/511 IPC.

2. On 13th March, 2007, on receipt of copy of DD No. 19-A,

SI Ram Kumar of Police Station Sarai Rohilla went to House

No. 211, Gali No.5, Padam Nagar, Delhi where he came to

know that the complainant/prosecutrix had been taken to

hospital. On reaching the hospital, he met the prosecutrix and

recorded her statement. It was alleged by the prosecutrix that

on 13th March, 2007, at about 11.30 am, she was watching T.V.

in her room and was alone at that time. The appellant, who was

her neighbour, entered her room, bolted the door from inside,

threatened to kill her with a knife which he was carrying with

him and made her forcibly lie down on the bed. The appellant

then sat on her chest, as a result of which her shirt-suit got

torn. The appellant gave tooth bites at both her cheeks and also

gave to knife blows on her neck. When the prosecutrix resisted,

the appellant gave a cut on a finger of her left hand, using his

teeth for this purpose. Thereafter, the appellant stuffed a cloth

in the mouth of the prosecutrix and tried to rape her. The

prosecutrix pushed him, as a result of which, he fell down and

after some time opened the door and ran away. After about 1

½ hour, the prosecutrix informed her husband on telephone,

who reached home in about an hour and called the police,

which brought her to Hindu Rao Hospital and got her medically

examined.

3. The prosecutrix came in the witness box as PW-4 and

supported the case set up in the FIR. She stated that on 13 th

March, 2007, at about 11.30 am, when she was watching T.V. in

a room on the first floor of their house, the appellant Nannu

Gupta @ Bablu, who was residing in the adjacent room, came

inside and bolted the door. She thought that he might have

come to pay rent. Showing a knife to her, the appellant insisted

on her lying on the bed. When she declined, he threatened to

kill her. When she acted in the protest, the appellant forcibly

made her lie on the bed and sat on her chest. Her shirt got torn

in this process. The appellant then gave knife blows on her

neck and tooth bites on both her cheeks. He put a piece of cloth

on her mouth and tried to commit rape on her. The appellant

also bitten three fingers of her left hand. When she pushed the

appellant to save herself, he ran out of the room. She,

thereafter, went to a public booth and informed her husband,

who reached there after about an hour. She narrated the

incident to her husband, who then called the police. She was

taken to hospital, where her statement was recorded. She

further stated that one vegetable cutting knife belonging to the

appellant, and one woolen sweater having semen stain of the

appellant alongwith her partly torn salwar shirt and a bed sheet

were seized by the police. It is also stated that after two-three

days, she was produced before a Magistrate where she gave

statement Ex.PW-4/G.

4. PW-3 Shri Ashok Kumar Chauhan is the husband of the

prosecutrix. He has stated that on 13th March, 2007, at about

12.00 noon, he received a telephone call from his wife,

regarding the occurrence with her. He reached home at about

1.00-1.30 pm. His wife was present in the house and narrated

the incident to him. He then informed the Police Control Room

and when the police officials came there, they took him as well

as his wife to the hospital.

5. PW-6, Const. Kul Avtar, had accompanied the IO SI Ram

Kumar on the spot on 13th March, 2007. He later on joined

investigation with the IO. According to him, the appellant was

arrested from the house of the prosecutrix and was taken to

hospital where his underwear and shirt were handed over to

him in sealed condition by the doctor and the same were then

seized by the IO vide PW-6/A.

6. PW-7, Dr. Jitender Bali, of Hindu Rao Hospital has

deposed that on 14th March, 2007, the appellant was brought to

him by the police and he was requested to take the blood

sample of the appellant for analysis. The appellant, however,

refused vide endorsement vide Ex.PW-7/A. He also recorded his

refusal on the back of the MLC and the same is Ex.PW-7/B.

7. PW-8, Dr. Vandana Jain, examined the prosecutrix in

Hindu Rao Hospital on 13th March, 2007. According to her, the

prosecutrix given her history of being assaulted by a man on

the point of a knife and an attempt to sexual assault.

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

admitted that he was residing as a tenant in a room on the first

floor of the house of PW-3, Ashok Kumar Chauhan, alongwith

his cousin Santosh Kumar. He, however, denied having entered

the room of the prosecutrix, having injured her and having

attempted to rape her. He stated that he was apprehended by

the police from the residence of his uncle at Nangloi and had

been falsely implicated in this case.

9. I see absolutely no reason to disbelieve the testimony of

the prosecutrix. There existed no good reason for the

prosecutrix to implicate the appellant in a false case of

trespass, causing injuries and attempted rape.

10. In his statement under Section 313 Cr.P.C., the appellant

has not claimed any particular reason for the prosecutrix and/or

her husband to implicate him in a false case of this nature. He

simply stated that he had been falsely implicated in this case,

but, did not attribute any motive to PW-3 and PW-4 to involve

him in a false case. However, during cross-examination of the

prosecutrix, it was suggested to her that she had implicated the

appellant in a false case, at the instance of her husband, in

order to get the room vacated from the appellant. In my view,

the defence suggested in the form of the suggestion given to

the prosecutrix is not tenable at all. As stated by PW-3, Ashok

Kumar Chauhan, in his cross-examination, the appellant was

residing with his cousin Santosh Kumar, who was the tenant

under him. Therefore, if the prosecutrix and/or her husband

were to put any pressure to the get the room vacated, they

would have put pressure on Santosh Kumar and not upon the

appellant, who happened to be only residing with him and was

not the tenant in the room in which he was residing with

Santosh Kumar. There is no way PW-3 could have got the room

vacated from Santosh Kumar by implicating the appellant in a

false case. Moreover, it cannot be believed that the husband of

the prosecutrix would have gone to the extent of implicating the

appellant in a false case, involving the honour of his own wife,

merely for the purpose of getting the room vacated from the

tenant. In fact, no reason at all has been assigned by the

appellant for PW-3 being keen to get the room vacated from

him or from Santosh Kumar.

11. No husband is ordinarily likely to consent to his wife

making a complaint of this nature, without his being convicted

of her being a victim of the crime. PWs first called the PCR and

then took his wife to Police Station alongwith police officials.

The prosecutrix was then taken to hospital and after three days,

she was taken to a Magistrate everywhere, the prosecutrix had

to repeat the horrible incident that took place with her, at the

cost of considerable embarrassment to her, which is always

implicit in narrating incidents of this nature to outsiders. She

then came in the witness box to depose during trial. In the

absence of a really strong motive, she was extremely unlikely to

undergo this ordeal unless she was absolutely true and

innocent.

12. Had the prosecutrix and/or her husband to implicate the

appellant in a false case, they could have done so merely by

making allegations of trespass, threat and causing injuries with

a knife and there was no need for them to make the false

accusation of attempted rape when their purpose could have

duly served by leveling other allegations against the appellant.

13. It is, by now, well settled by a catena of decisions of the

Hon'ble Supreme Court including Rafiq vs. State of Uttar

Pradesh, 1980 Crl. J. 1344 and in the case of Bhogin Bhai Hirji

Bhai vs. State of Gujarat, (supra) that there is no rule of law or

practice that the evidence of the prosecutrix cannot be relied

upon without corroboration. If the testimony of the victim does

not suffer from any basic infirmity and is not inherently

improbable, there can be no justification for discarding the

same. The prosecutrix in a rape case is not an accomplice in a

crime and no infirmity is attached to her deposition in the

Court. It would therefore be adding insult to the injury if the

Court, insists on corroboration of her testimony, unless the

facts and circumstances of a given case call for such a

corroboration. No such circumstances, however, exist in the

case.

14. Even if I look for corroboration of the testimony of the

prosecutrix, the same is available in abundance in this case.

The testimony of the prosecutrix finds full corroboration not

only from the injuries sustained by her, but also from the

statements made by her soon after this occurrence took place.

A perusal of the MLC of the prosecutrix would show that she

had a number of injuries on her person when she was examined

in the hospital. The appellant has not given any explanation for

the injuries that were found on the person of the prosecutrix

when she was examined in hospital on 13th March, 2007.

Therefore, the injuries found on the person of the prosecutrix

are a strong corroboration of her testimony in the Court.

15. According to PW-3, who is the husband of the prosecutrix,

when he reached home at about 1.00 or 1.30 pm, the

prosecutrix narrated the incident to her. Ordinarily, a wife is

not likely to make false complaint of attempt to rape to her

husband, apprehensive as she would be that her husband may

not trust her and may even go to the extent of her being a

consenting party to the act complained of. Therefore, unless

she is absolutely true and honest, she would not report a matter

of this nature to her husband, with whom she has to spend the

rest of her life. She would be quite conscious that if she is not

found to be true, her husband may suspect her throughout her

life and may even go to the extent of deserting her, suspecting

her loyalty. Therefore, the statement made by the prosecutrix

to her husband immediately after this incident is one more

corroboration of the statement given by her in the Court.

16. When the prosecutrix was examined in hospital, she gave

history of assault and attempt to sexual assault to the doctor,

who examined her in the hospital. This also is a corroboration

of the testimony of the prosecutrix.

17. In her statement recorded under Section 164 of Cr.P.C.,

the prosecutrix stated that the appellant, who entered her

room, closed the door of the room, threatened her with a knife,

made her lie down on the bed and thereafter, sat on her chest,

tried to rape her and cause injuries to her. This is yet another

corroboration of the testimony of the prosecutrix in the Court.

These previous statements of the prosecutrix are admissible in

evidence under Section 157 of Evidence Act. In Madan Lal vs.

State of Jammu and Kashmir, AIR 1998 sc 386, the statement

made by the prosecutrix to her mother immediately after the

incident was accepted to be a corroborative piece of evidence.

18. A perusal of the MLC of the appellant would show that he

had nail injuries below left eye besides bite on right thumb and

left finger. The nail injuries and bites show the attempt made

by the prosecutrix to save her from rape by giving the nail

blows and biting the thumb and finger of the appellant.

Therefore, the injuries found on the body of the appellant are

also a corroborative evidence against him as he has not given

any explanation for the injuries that were found on his body,

when he was examined in the hospital on 13 th March, 2007.

19. A perusal of the deposition of PW-6 would show that the

underwear of the appellant was given to him by the doctor in a

sealed cover and was thereafter, seized by the IO. A perusal of

the FSL report would show that semen was found on the

underwear which was sent to the laboratory. It thus stands

proved that semen was found on the underwear of the

appellant. There is no explanation from the appellant as to

who semen came on his underwear. Therefore, the inference is

that the semen came on his underwear in his attempt to commit

rape with the prosecutrix. Thus, presence of semen on the

underwear of the appellant is one more evidence which

corroborates the version given by the prosecutrix.

20. It was submitted by the learned counsel for the appellant

that according to the prosecutrix when the appellant entered

the room, she thought that he might have come to give rent

though according to her husband, it was the cousin of the

appellant and not the appellant, who was the tenant in the

room, and therefore, there could have been no occasion for the

appellant to come to her room to give rent. In my view, the

contention is misconceived. Since the appellant was residing

with the tenant and was none other than his cousin, the

prosecutrix was justified in presuming that he might have come

to pay rent for the room which both the appellant as well as his

cousin was occupying. In fact, during cross-examination of the

prosecutrix, it was suggested to her that the appellant was

wearing pant and shirt at the time when he came to the room.

This suggestion contains an admission that the appellant had

come to the room of the prosecutrix on 13 th March, 2009 at the

time, stated by her though he, at that time, was not wearing

underwear and vest, as was stated by the prosecutrix. But,

when the appellant was examined under Section 313 Cr.P.C.,

he did not say that he had gone to the room of the prosecutrix

and was fully clothed at that time. He altogether denied having

gone to her room. This is not the case of the appellant that

though he had caused injuries to the prosecutrix, he had not

attempted to commit rape on her person. The plea taken by

him, is totally of denial. Therefore, it cannot be said that

though the appellant had caused injuries to the prosecutrix, he

had not tried to rape her.

21. The facts and circumstances of the case clearly show that

the appellant attempted to rape the prosecutrix, finding her

alone in the house. There can be no other explanation for the

appellant coming to her house, armed with a knife wearing only

underwear and vest and bolting the door immediately on

entering the room. Though the prosecutrix did not elaborate

how the appellant had attempted to rape her, I find that there

has been no cross-examination of the prosecutrix on this aspect

despite her stating twice that the appellant had attempted to

rape her. The appellant sat on the chest of the prosecutrix

whose clothes had got torn when she attempted to save her

from the clutches of the appellant. A number of knife blows

were given to the prosecutrix besides the appellant having

bitten on both her cheeks and also having cut her fingers from

his teeth. The presence of semen stains on the underwear of

the appellant also shows that he had attempted to rape to the

prosecutrix and that is how stains of semen came on his

underwear at that time.

22. For the reasons given in the preceding paragraphs, I am

satisfied that the appellant committed criminal trespass in the

room of the prosecutrix having made preparations to cause

injuries to her and to commit rape on her person. He,

therefore, has rightly been convicted under Section 452 of IPC.

The appellant threatened to kill the prosecutrix in case she

resisted his attempts to rape her. The appellant was carrying a

knife at that time of extending the threat, and therefore, was in

a position to execute the threat given by him. The prosecutrix

was all alone in the house at that time and the door of the room

was bolted by the appellant from inside. It was, therefore,

extremely difficult and in fact, required a lot of courage on the

part of the prosecutrix to save her from the appellant. Hence,

the appellant has rightly been convicted under Section 506

Part-II of IPC. Using a knife, the appellant gave a number of

blows to the prosecutrix for no rhyme and reason. He has,

therefore, rightly been convicted under Section 324 of IPC.

Since he tried to commit rape on the person of the prosecutrix,

he has rightly been convicted under Section 376 of IPC read

with 511 thereof.

23. Coming to the sentence, it was contended by the learned

counsel for the appellant that the maximum sentence

prescribed under Section 376 of IPC is 10 years and the Trial

Court has given maximum permissible sentence of five years to

the appellant for attempt to commit rape. He further stated

that the appellant comes from a rather lower strata of society

and has not even been able to engage a counsel of his choice,

the counsel appearing on his behalf having been provided to

him by Delhi High Court Legal Services Committee. Taking

into consideration the age of the appellant and all other facts

and circumstances of the case, the substantive sentence,

awarded to the appellant under Section 376 of IPC read with

Section 511 thereof is reduced to 4 years from 5 years. The

sentence of fine, awarded to him under Section 376 of IPC read

with Section 511 thereof, is maintained, but in default of

payment of fine, the appellant would undergo SI for one month.

While maintaining, the substantive sentences awarded to the

appellant under Section 452, 324 and 506 Part-II of IPC, I

direct that in default of payment of fine under the above

referred Sections, he shall undergo SI for 15 days each in

default as against the sentence in default awarded by the Trial

Court.

The appeal stands disposed of with these modifications in

the quantum of sentence. One copy of this order be sent to

the appellant through concerned Jail Superintendent. Trial

Court Record be sent back alongwith the copy of the Judgment.

(V.K.JAIN) JUDGE JANUARY 18, 2010 bg