Hari Om vs State (N.C.T)
2010 Latest Caselaw 390 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Crl.A.No.605/2007
%                     Reserved on:        14th January, 2010
                      Date of Decision:   25th January, 2010

#     HARI OM                             ..... Appellant
!                           Through: Ms. Saahila Lamba, Adv.

                      versus

$     STATE (N.C.T)                        ..... 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?                 No

      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.

1. This is an appeal against the Judgment dated 25th July,

2007 and the Order on Sentence dated 1st August, 2007,

whereby the appellant was convicted under Sections 363/376

IPC and was sentenced to undergo RI for five years and to pay

fine of Rs. 5,000/- or to undergo SI for six months in default

under Section 363 of IPC. He was further sentenced to

undergo RI for 12 years and to pay a fine of Rs.20,000/- or to

undergo SI for two years in default, under Section 376(2)(f) of

IPC. Out of fine, Rs.15,000/- was directed to be paid to the

prosecutrix, as compensation.

2. The case of the prosecution, as set out in the FIR lodged

by Smt. Bimla, mother of the prosecutrix on 3rd July, 2004, is

that on 2nd July, 2004, at about 10.30 pm, when the

complainant was present in her house and her husband was

taking bath on the hand pump in front of her jhuggi, her

daughter, aged about 8 years, came weeping. On being asked

as to why she was weeping, she informed her mother that the

appellant had taken her to a school on the pretext of giving

toffee and had done bad act with her. On checking the

prosecutrix, the complainant found blood on her vagina.

Since telephone booths had closed at that time, they could

not inform the police at night. In the morning, her husband

went to the house of the appellant and brought him from

there with him. They then brought the prosecutrix as well as

the appellant to the Police Station and presented them to the

police.

3. The prosecutrix came in the witness box as PW-1 and

was examined after certain preliminary question had been

put to her and the learned Trial Judge was satisfied that the

child was able to understand the proceedings and could be

examined as a child witness. The prosecutrix stated that

when she was playing outside her house, her mother was

sleeping and her father was taking meals inside, the

appellant came there and took her to the school with tin-shed

on the pretext of giving her toffees. He removed his

underwear as well as her underwear and had sexual

intercourse with her, as a result of which blood came out of

her private part. On reaching home, she told her parents

about the incident. Thereupon, her parents called the

appellant from his house. The police also came to the spot.

She was taken to hospital where she was medically examined

and her undergarments were seized. She was also produced

before the Magistrate where she gave statement, as Ex.PW-

1/A. She identified her underwear, which was shown to her

in the Court.

4. PW-2, Smt. Bimla, is the mother of the prosecutrix. She

stated that on 2nd July, 2004, when her husband was taking

bath on the hand pump and she was busy in household

work, her daughter, aged about 8 years at that time, came

weeping and on being asked, informed that she was taken to

school with tin-shed, by the appellant, on the pretext of giving

toffee to her. On checking her daughter, she noticed blood

oozing out from her private part. Her husband, on being

informed by her, went to the house of the appellant and

brought him to their jhuggi. They tried to search the mobile

to inform the police, but due to odd hours, her husband

decided to take the prosecutrix to the Police Station in the

morning. She further stated that they had taken prosecutrix

to the Police Station, from where she was taken to hospital

and was medically examined there.

5. PW-3, Hukum Chand, is the father of the prosecutrix.

He has stated that on 2nd July, 2004, when his daughter was

standing near him and was insisting on taking bath, the

appellant came there and asked her to accompany him to

take something, but, he refused and told the appellant that

his daughter used to sleep early in the night. When he again

came back to the hand pump, he found his daughter missing.

The wife and brother-in-law of the appellant also reached

there and they tried to trace her in the locality. In the

meantime, his daughter returned. She was perplexed at that

time. On being asked two-three times, she told him that the

appellant had taken her to the school with tin-shed where he

had committed rape on her. On checking his daughter, he

found that she was having bloodstains. The appellant, who

had accompanied his daughter up to in front of his house

and had gone upstairs, was chased by him and was brought

down stairs. The police, which were on patrol, also reached

there and took him to Police Station alongwith his daughter.

In the morning, his daughter was taken to hospital where she

was got medically examined.

6. PW-10 is an official of M.C. Model School, Rohini

Extension and he has stated that as per the record of the

school, the date of birth of the prosecutrix was 10th October,

1995. The copy of the relevant extract from the school

registration is Ex.P-10/A, whereas photocopy of Admission

Form is Ex.P-10/B.

7. PW-15 WSI Sujata has stated that on 3rd July, 2004, the

complainant, Bimla alongwith her husband, the prosecutrix

and the appellant Hari Om came to Police Station Sultan

Puri. Bimla told her that the appellant had raped her

daughter in the night of 2nd July, 2005. She thereupon got

the prosecutrix medically examined and conducted

investigation.

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

appellant denied the allegations of rape against him and

stated that false allegations have been made against him, on

account of enmity which he had with the mother of the

prosecutrix, on vegetable cart. He further stated that in fact

the complainant had come to him in the morning and

informed that her daughter had been raped by someone and

requested him to accompany him to Police Station. According

to him, he only accompanied her to the Police Station on the

request of the mother of the prosecutrix. He further stated

that he had a quarrel with the parents of the prosecutrix on

account of vegetable cart and that matter was got

compromised by the neighbours. He further stated that the

parents of the prosecutrix had thrown his vegetable cart, but

he did not report the matter to the police on account of

intervention of neighbours, though the parents of the

prosecutrix had threatened to teach him a lesson.

9. DW-1 Smt. Dropdi is the wife of the appellant. She has

stated that the mother of the prosecutrix also used to place

the cart on which she was selling vegetables next to the cart

on which her husband used to sell vegetables. She further

stated that one month prior to this occurrence, there was a

quarrel between her husband and mother of the prosecutrix.

The mother of the prosecutrix threw away their vegetables

and gave a beating to her husband. No report was however,

made to the police, as the neighbours had worked out a

settlement, though the mother of the prosecutrix had

threatened that in case her husband again places his cart at

that place, he would be implicated in a false case. She

further stated that on the date of this incident, her husband

was sleeping with her and her children. The mother of the

prosecutrix came to her house at about 7.30 am, informed

them that her daughter had been raped by someone, touched

the feet to her husband and requested him to accompany her

to Police Station. DW-2 Ram Singh has stated that he was

living in a house opposite to that of Bimla and the appellant

Hari Om. He further stated that Bimla and Hari Om had

quarreled with each other and at that time Bimla had toppled

the cart of Hari Om and had given beating to him. Since then,

they were not in speaking terms with each other and Bimla

had threatened the appellant to implicate him in a big case.

10. The learned counsel for the appellant has pointed out

certain discrepancies in the the testimony of the prosecutrix,

who has been examined as PW-1, her mother, who has been

examined as PW-2, and her father, who has been examined

as PW-3. It was pointed out that according to the

prosecutrix the police had come to the spot and she had

narrated the entire incident to the police. Her father also

stated that the police which was on patrol, had reached and

the appellant was taken to police station. On the other hand,

the mother of the prosecutrix, Smt.Bimla has stated that they

could not inform the police on the same day as they did not

have a mobile. In the FIR lodged by her, also Smt.Bimla had

stated that she could not inform the police in the night as

telephone booths had closed by that time.

11. It was also pointed out by the learned counsel that

according to PW-3, Hukam Chand the appellant had come in

his presence when he was taking water for the cooler and

asked his daughter to accompany him but he(the witness)

had refused saying that his daughter used to sleep earlier in

night and when he came back again to the handpump after

filling water in the cooler, he had found his daughter missing.

On the other hand, the prosecutrix has stated that her

mother was sleeping and her father was inside the house and

taking meal when the complainant came there and took her

to the school on the pretext of giving toffee to her.

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

prosecutrix neither informed the police, nor took her to the

police station in the night of 2nd July, 2004, when this

incident took place. The prosecutrix as well as her father

have corroborated the testimony of each other in saying that

the appellant had come to the spot on the very same day on

which this incident took place. The truth of the matter

appears to be that the police did not register the FIR in the

night of 2nd July, 2004, presumably in order to avoid the

inconvenience of taking the prosecutrix to the hospital, at odd

hours of night, when only few police men are present in the

police station and that is why they were able to persuade the

mother of the prosecutrix to say in the FIR that since the

telephone booths had closed, they took the appellant and the

prosecutrix to the police station next day in the morning. It

also appears that when she was examined in the court during

trial PW-2, Smt.Bimla chose to stick to the version given by

her in the FIR, so as to avoid criticism of having contradicted

the version given by her in the FIR. Considering the way

parents of a young girl would react, on happening of such an

incident, the parents of the prosecutrix were not likely to

postpone the complaining of the matter to the police and even

if no telephone was available to them, they would have

immediately gone to the police station, which in a place like

Delhi cannot be far off from the place where they were

residing. In fact in her cross-examination, PW-2, Smt.Bimla,

also stated that her husband had brought the appellant from

his house on the same night. This part of her deposition, in

cross-examination, also corroborates the testimony of

prosecutrix and her father and shows that the sequence of

events disclosed by them is correct.

13. It has come in the deposition of the prosecutrix that

when she narrated the incident to her parents, they called the

appellant from his house. PW-3, Hukam Chand, father of the

prosecutrix, has also stated that he had followed the

appellant who had gone upstairs and had slapped him after

bringing him downstairs. In the natural course of event and

considering the way a father would react when the rapist is

not only a known person but is also a neighbour, it is

unlikely that the father of the prosecutrix would have waited

till next day morning, to summon the appellant from his

residence. The natural course for a father, in such a

situation, would be to immediately go to the culprit, thrash

him and take him to the police. This precisely is the version

given by the father of the prosecutrix and stands

corroborated from her own deposition in the court. Taking

into consideration the facts and circumstances of the case

and considering that PW-1, the prosecutrix, and PW-3, the

father of the prosecutrix, have corroborated the testimony of

each other, as regards the time when the appellant was called

to their place and the police was informed, it appears to me

that the appellant was brought from his residence on the

same night and the police was also informed, though the

prosecutrix was taken to the hospital only on the next day.

Therefore, this minor variance in the testimony of prosecutrix

and her father on the one hand, and the mother of the

prosecutrix on the other hand, cannot be said to be so

material as to persuade the court to altogether discard the

testimony of the prosecutrix, which has otherwise very well

stood the test of cross-examination.

14. As regards the discrepancies as to whether the father of

the prosecutrix was taking meal inside the house, as stated

by the prosecutrix, or was filling water in the cooler, I do not

see this as a contradiction. According to both of them, the

prsecutrix was outside the house and her father was not

present at the time the appellant took her with him. It is

quite possible that the prosecutrix thought that her father

was taking meal inside the house, whereas, in fact, he was

filling water in the cooler, which was not noticed by the

prosecutrix and that is why she presumed that her father was

taking food at that time. It was pointed out by the learned

counsel for the appellant that according to PW-2, Smt.Bimla,

her husband was taking bath on the handpump and she was

busy in doing household work, at the time the appellant is

alleged to have taken the prosecutrix with him. In my view,

the submission is not correct based as it is on a misreading

of the testimony of PW-2 in this regard. What she has stated

is that at the time the prosecutrix came weeping, her

husband was taking bath on the handpump whereas she was

busy in doing household work. She did not say that her

husband was taking bath on the handpump at the time when

the appellant took the prosecutrix with him.

15. It was also submitted by the learned counsel for the

appellant that according to the prosecutrix, she narrated this

incident to her mother in the morning whereas according to

PW-2, Smt.Bimla, the prosecutrix has disclosed the incident

to her in that very night when she returned home. A careful

examination of the deposition of the prosecutrix would show

that in the examination-in-chief itself she specifically stated

that she had told her parents about the incident after some

time of her reaching back home on the same day. She also

stated that thereafter her parents called the appellant from

his house. Therefore, the prosecutrix does not say that she

had disclosed the incident to her parents only next day in the

morning. It is quite possible that the prosecutrix repeated

the incident to her mother next day in the morning whe she

noticed blood still coming out of her private part.

16. The contradiction, if any, on the question as to what

the father of the prosecutrix was doing in the house, cannot

at all be said to be material considering the fact that reply to

such questions related to peripheral aspects of the case are

given only by whatever one is able to recollect at the time

when he is examined in court. Everyone cannot recollect

minor details of a past incident with complete accuracy and

he, while replying to such questions, gives an answer based

upon his recollection of the event at that point of time.

Therefore, minor contractions on such peripheral issues

which do not constitute the core of the matter, cannot be said

to be material and not much importance can be attached to

these minor discrepancies which are otherwise bound to

come in the case of truthful witnesses. Since everyone does

not have equal power of observation, retention and

reproduction, which varies from individual to individual,

there is bound to be some difference while giving details un-

related to the main incident. The approach of the court while

evaluating the testimony of a witness should be to see

whether his/her evidence, when examined as a whole,

appears to be true, or not. If the impression formed by the

court is that the witness appears to be truthful and

trustworthy, his/her evidence needs to be scrutinized taking

into consideration the discrepancies and infirmities pointed

out in his /her evidence and the court should then evaluate

the testimony of the witness, to decide whether the evidence

given by him/his in the court stands impeached or shaken,

rendering him/her unworthy of reliance, in the light of the

discrepancies or infirmities pointed out in his/her testimony.

This is more so, when the witness comes from a lower strata

of the society and, therefore, does not have the temperament

or the capacity to match the skills and training of an

experienced lawyer who cross-examined him/her in the

court. Minor discrepancies in the testimony of such witness,

which are not related to the core issue involved in the case,

need not be given much importance and the testimony of

such witnesses should not be discarded on account of such

minor discrepancies or infirmities.

17. The testimony of the prosecutrix could not be shaken

during cross-examination. The prosecutrix being a young

girled aged 8-9 years at the time of the incident, it is

extremely unlikely that she would make false allegation of

rape against the appellant, who was residing in the same

locality and was otherwise well-known to her family.

According to the prosecutrix, she was taken to a school which

had a tin shed on its roof. This is not the case of the

appellant that no such school was there in the locality at that

time. The prosecutrix stated in her cross-examination that

the gate of the school is always open and there is no

chowkidar. There is no material on record to show that this

part of her deposition is incorrect. The prosecutrix also

denied the suggestion that she had implicated the appellant

on account of a dispute between him and her father for the

place of work. Therefore, the testimony of the prosecutrix

remains totally unimpeached during examination and that by

itself is sufficient to prove the guilt attributed to the

appellant.

18. The prosecutrix being a young girl aged at about 8-9

years at the time of this incident, it is not likely that her

parents would have implicated the appellant in a false case of

rape of their daughter, conscious as they would be that

reporting of such a matter to the police, particularly when the

parents of the prosecutrix as well as the appellant were living

in the jhuggies situated in the same locality, was bound to

expose their daughter to scrutiny and questions not only by

the police and courts but also by their neighbours and

relatives. They could not have been ignorant of the fact that

they may even have difficulty in finding a suitable match for

their daughter once it is known that she had been subjected

to rape in her childhood. Therefore, if they, despite realizing

these consequences do report the matter to the police, it

would be only if what they were reporting was absolutely true

and correct. In fact, some of the parents even refrain from

reporting such incident lest their child not face embrassment

on account of the incident becoming public and her marriage

being jeopardised on account of the prospective in-laws

becoming aware of the incident, at the time of her marriage.

The parents of the prosecutrix knew that if they report the

matter to the police, they will have to take their child first to

the police station then to the hospital and, thereafter, in the

court and the child will be made to repeat the horrible

incident at every place, at the cost of considerable discomfort

and embrassment to her. Therefore, unless an incident of

this nature has actually happened with their child, they

would not take such a step.

19. The learned counsel for the appellant has referred to the

decision of the Hon'ble Supreme Court in "Radhu Vs. State

of Madhya Pradesh", (2007) 12 SCC 57, where the Supreme

Court, inter alia, observed:

"It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a "rape", if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, wrists, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare

instances where parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."

20. The Hon'ble Supreme Court itself observed, in the above

referred case, the cases of the parents persuading a daughter

to make a false charge of rape either to take revenge or to

extract money or to get rid of financial liability, are only rare

and whether there was rape or not would depend ultimately

on the facts and circumstances of each case. The court

cannot lose sight of the fact that the prosecutrix in this case

was not a grown-up girl but was a girl aged about 8-9 years

at the time of this incident. It is unlikely that a child of this

age can even be tutored to to make allegations of rape by a

person otherwise well-known to her and then repeat those

allegations before police, magistrate and then doctor during

trial.

21. According to the appellant, he has been implicated in

this case because he had a quarrel with the mother of the

prosecutrix over parking of carts at the place on which they

used to sell vegetables and that the mother of the prosecutrix

at that time had toppled the carts in which they used to sell

vegetables. Presuming that such an incident had taken

place, though there is no credible evidence to prove it, it is

inconceivable that a mother would implicate the person with

whom she had a minor dispute on parking of vegetable cart,

in a case of this nature and that too at the cost of staking the

future and welfare of her own daughter. If the mother of the

prosecutrix were to implicate the appellant in a false case of

rape, she would have alleged rape with her and not with her

daughter, who was an unmarried girl of 8/9 years at that

time.

22. According to the appellant, the parents of the

prosecutrix had toppled his vegetable cart and thrown away

his vegetables on account of the quarrel which he had with

them. If that be so, it was the appellant who would be

aggrieved against the parents of the prosecutrix on account of

their having toppled his vegetable cart and throwing his

vegetables and it would not be other way round

23. According to DW-1, the wife of the appellant, the mother

of the prosecutrix has threatened to implicate her husband in

a false case, in case he against placed his cart at that very

place. No one gives a threat of the nature attributed by DW-1.

In a quarrel, one may give threat of beating or even killing but

no one ordinarily gives threat of implicating other person in a

false case. This is not the way human beings behave in

quarrels. In any case, there is no convincing proof of the

alleged quarrel. No report was lodged with the police

complaining against the mother of the prosecutrix throwing

away the vegetables of the appellant or threatening to

implicate him in a false case. Therefore, the plea taken by

the appellant in this regard is not convincing at all.

24. According to the DW-1, one the next day of this

incident, the mother of the prosecutrix came to her husband

at about 2.30 a.m, said that her daughter had been raped by

someone, touched the feet of her husband and requested him

to accompany her to the police station. Similar statement

has been made by the appellant, when he was examined

under Section 313 of Cr.P.C. According to DW-2, Ram Singh,

who is a witness produced by the appellant, the mother of the

prosecutrix and the appellant were not on speaking terms

with each other as she had threatened to implicate the

appellant in a big case. I fail to appreciate why the parents or

mother of the prosecutrix would go to the appellant and

touch his feet in order to accompany them to the police

station, when they were not even on speaking terms with

each other. The appellant was not a police offer or an

influential person. There is no way he could have helped the

parents of the prosecutrix in the police station. Therefore, it

is most unlikely that they would have gone to his house and

touched his feet in order to persuade him to accompany them

to the police station.

25. When the prosecutrix was examined in hospital on 3 rd

July, 2004, her hymen was found torn and mucosal tear

seen on post veginal wall. The prosecutrix being a girl aged

about 8-9 years at that time, her hymen having been found

torn when she was examined in hospital is drawing

expression of the fact that she had been subjected to rape.

The defence taken by the appellant is that the parents of the

prosecutrix had got her raped her by some other person, in

order to implicate him in a false case. The defence taken by

the appellant to say the least is preposterous. No parents

would go to the extent of getting their own daughter aged

about 8-9 years raped by some one only with a view to

implicate a neighbour in a false case of rape and that too

merely because they had a tiff with him on parking of the

carts at a place on which they used to sell vegetables. In fact,

the defence taken by the appellant does not even deserve a

serious consideration by this court, in the facts and

circumstances of this case.

26. It is by now settled proposition of law by a catena of

decisions of the Hon'ble Supreme Court, including "Rafiq Vs.

State of UP", 1980 Crl.L.J. 1344 and "Bhoginbhai Hirjibhai

Vs. State of Gujarat" AIR 1983 SC 753, "State Vs.

Chandra Prakash", AIR 1990 SC 658, and also the

decision in the case of Radhu (supra) relied upon by the

learned counsel for the appellant herself that conviction in a

case of rape can be based solely upon the uncorroborated

evidence of the prosecutrix, which should not be rejected on

the basis of minor discrepancies and contradictions, unless

there are such facts and circumstances present in a

particular case which would persuade the court to look for

corroboration for her testimony. In the present case, there

are no such circumstances as would justify looking for the

corroboration of the testimony of the prosecutrix. The court

cannot treat the testimony of the prosecutrix in a rape at par

with that of an accomplice in a crime which requires

corroboration and no infirmity is attached to the testimony of

a victim of such a heinous crime. In fact, it would only be

adding insult to the injury if the court insists on

corroboration of her testimony, even in the absence of

circumstances which would warrant adoption of such a

course of action.

27. In any case, even if the court does look for corroboration

of the testimony of the prosecutrix, the same is available in

abundance in the present case. The testimony of the

prosecutrix finds full corroboration not only from the injuries,

including torn vigina found on her person when she was

examined in the hospital but also from the statement made

by her first to her parents and then to the doctor soon after

this incident took place. The previous statements of the

prosecutrix are admissible in evidence under Section 157 of

the Evidence Act and this proposition of law was recognized

by the Hon'ble Supreme Court in "Madan Lal Vs. State of

J&K", 1988 SC 386, where the statement made by the

prosecutrix to her mother soon after the incident was

accepted as a corroboration of her testimony in the court.

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

have no hesitation in holding that the appellant had raped

the prosecutrix on 2nd July, 2004, taking advantage of her

tender age and taking her to a secluded school which had no

watchman and, therefore, he has rightly been convicted

under Section 376(f) of Indian Penal Code the age of the

prosecutrix at the time of commission of offence being less

than 12 years. The trial court has awarded substantive

sentence of 12 years to the appellant under Section 376(f) of

the IPC. Considering the appellant has been in custody for

last more than 5-1/2 years and that he belongs to a lower

strata of the society who could not even afford a counsel of

his choice and was provided a counsel by Delhi High Court

Legal Services Committee to present his case, it is directed

that the appellant will undergo RI for three years under

Section 363 IPC and will pay a fine of Rs.5,000/- or undergo

SI for three months in default. He will undergo RI for ten

years and pay fine of Rs.15,000/- or undergo SI for six

months in default under Section 376(f) of IPC. Out of the

fine, if recovered from the appellant, a sum of Rs.15,000/-

shall be paid to the prosecutrix as compensation. In terms of

the directions given by the trial court. The appellant will get

the benefit of Section 428 of Cr.P.C. Both the sentence will

run concurrently.

29. The appeal stands disposed of. One copy of this order

be sent to the appellant through jail superintendent. Trial

Court record be sent back with a copy of this judgment.

(V.K.JAIN) JUDGE JANUARY 25, 2010 bg