Shanker Sahani vs The State (Government Of National ...
2010 Latest Caselaw 404 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Crl.A.No.101/2008
%                     Reserved on:        20th January, 2010
                      Date of Decision:   25th January, 2010

#     SHANKER SAHANI                    ..... APPELLANT
!                 Through: Mr. Madhu Mukul Tripathi, Adv

                      versus

$     THE STATE (GOVERNMENT OF NATIONAL CAPITAL
           TERRITORY 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?              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 16 th

January, 2008 and the Order on Sentence dated 21 st

January, 2008, whereby the appellant was convicted under

Sections 376 IPC read with Section 511 thereof and under

Section 506 of IPC. He was sentenced to RI for 4 years and to

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

default under Section 376/511 of IPC and was further

sentenced to undergo RI for one year under Section 506 of

IPC.

2. On 30th August, 2002, the prosecutrix, accompanied by

her mother Smt. Shashi Devi and one Jallaluddin, went to

the Police Post, Prem Nagar and lodged a report, alleging

therein that on 2nd June, 2002, at about 4.00 am, when she

went to the nearby temple for the purpose of cleaning it, the

appellant started loud speaker of the temple on a high

volume and took her to the open space behind the temple.

After removing his undergarment, the appellant stuffed a

cloth in the mouth of the prosecutrix and made her lie on the

ground. When the prosecutrix resisted and tried to run

away, the appellant slapped her, threatened her and raped

her. She thereafter became unconscious. Her mother came

there and took her home. When the appellant was called to

their house and was asked to explain the act done by him, he

threatened to kill them in case the matter was reported to the

police. Being afraid of the appellant, they did not report the

matter to the police. Gathering courage, her parents brought

the matter to the notice of a leader Shri Jallaluddin, who then

brought them to the Police Station.

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

stated that at the time of this incident, she was about 14

years old and that on the day of this incident, she had gone

to clean the nearby temple at about 4.00 am. The appellant

came there and started the loud speaker of the temple at full

volume, caught hold her and took her to the backside of the

temple. When she raised alarm, he gave beatings to her and

stuffed her chunni in her mouth. He then removed her salwar

and his own undergarment, lied on her and tried to put his

urinal portion into her vagina (lower portion). She became

unconscious. Her mother came there and brought her to

house. On gaining consciousness, she disclosed the incident

to her mother who then called the police to the house and

enquired from her. The appellant threatened to kill her

parents as well as her brother. On account of this threat,

they did not report the matter to the police. Thereafter, they

had a talk with Jallaluddin and with his help they went to

Police Post from where they were taken to Police Station,

Sultan Puri, where report was lodged by her. She also

disclosed that she had felt pain in her vaginal portion after

this incident happened with her. In cross-examination, she

stated that no one came to her rescue when she raised alarm,

as the volume of loud speaker was high and that her mother

had reached the templem about 10-15 minutes after this

incident happened with her.

4. PW-1, Smt. Shashi Devi, is the mother of the

prosecutrix. She has stated that on 2 nd June, 2002, her

daughter had gone to clean the temple at about 4.00 am.

When she did not return, she went to the temple in her

search and found her lying unconscious at the backside of

the temple, which is situated adjacent to her house. She took

her daughter to her house. When her daughter gained

consciousness, she told her that the appellant had committed

rape upon her. The appellant, who was residing just after two

houses from her house, was called and when they enquired

from him regarding rape with her daughter, he threatened to

kill her family, if they informed the police. The appellant kept

on threatening them for three months. On account of the

threat given to them, they did not lodge report with the

police. However, when they met Shri Jallaluddin, who is the

Congress leader of the area, the prosecutrix was taken to

Police Station and the matter was reported to the police.

5. PW-2, Lakhshmeshwar Paswan, is the father of the

prosecutrix and is a Gardner. He has stated that on 2 nd

June, 2002 when his daughter, who had gone to clean the

temple, did not return home, his wife went there in order to

search her. She was found lying unconscious on the

backside of the temple and was brought to the house. When

she gained consciousness, she disclosed that the appellant

had raped her in the temple. He called the appellant and

asked why he had raped his daughter. The appellant

thereupon threatened to kill him and his family, if he

informed the matter to the police. He, therefore, got

perplexed and did not lodge report with the police. However,

on 30th August, 2002, he reported the matter to the police,

with the help of Jallaluddin.

6. PW-5 Dr. Ritu Chaudhary examined the prosecutrix in

SJM Hospital on 30th August, 2002 and found that her

hymen was torn. PW-16 R.P. Yadav from Government Co-Ed.

Middle School, Village Nithari has stated that the prosecutrix

was studying in their school and that as per admission

register, her date of birth was 22nd March, 1990. The

photocopy of relevant extract of admission register is Ex.PW-

16/A, whereas her School Leaving Certificate is Ex.PW-16/B.

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

appellant denied the allegations against him and stated that

he has been falsely implicated in this case.

8. DW-1, Hari Om, is the neighbour of the appellant. He

stated that on 15th May, 2002, an altercation had taken place

between the appellant, prosecutrix and the mother of the

prosecutrix on the question of filling water and then in the

evening, altercation had taken place between the appellant

and the father of the prosecutrix. He further stated that on

9th June, 2002, he and others sat with the prosecutrix for

attempting a settlement. The complainant did not agree with

the settlement and thereafter he came to know that the

appellant had been implicated in a criminal case. He also

stated that the prosecutrix was aged about 23 years on the

date he was examined in the Court. DW-2 Hari has stated

that the temple opens at around 6.00 am and was looked

after by a committee constituted for its upkeep. He further

stated that the appellant and the father of the prosecutrix

used to quarrel with each other on distribution of water

received from tanker. He further stated that on 15 th May,

2002, the appellant had quarreled with the father of the

prosecutrix and on 9th June, 2002, both of them entered into

a compromise. DW-3, is the teacher from the MCD School

and has stated that as per record, date of birth of the

prosecutrix was 22nd March, 1990.

9. The first contention raised by the learned counsel for

the appellant is that there was considerable delay in lodging

FIR as the incident of rape is alleged to have taken place on

2nd June 2002 whereas the FIR was lodged only on 30 th

August, 2002, after delay of almost three months. 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. As regards delay in lodging of FIR in

rape cases, the Court cannot be oblivious to the fact that

such cases involve honour of the family and reputation of the

prosecutrix and, therefore, a cool thought may precede

lodging of FIR in such cases. 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."

10. 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."

11. In Gian Chand Vs. State AIR 2001 SC 2075, the

Hon'ble Supreme Court felt that mere delay in filing FIR is no

ground to doubt the case of the prosecution and not believing

the testimony given by the prosecutrix in the Court. It was

held that delay in lodging FIR cannot be used as a ritualistic

formula for doubting the prosecution case and discarding the

same solely on that ground.

12. As far as the present case is concerned, though

according to the prosecutrix and her parents, they were

threatened by the appellant and that is why they did not

report the matter to the police, the true reason appears to be

pressure that was brought by the appellant upon the family

of the prosecutrix. It has come in the testimony of PW-1 as

well as PW-2, who are the parents of the prosecutrix that a

panchayat was held in the locality soon after this incident

took place. The prosecutrix has also admitted that a

panchayat was called in the gali, where she had narrated the

incident that took place with her and that the panchayat also

made inquiry from the appellant and took a decision, though

without consent of her father. The appellant himself has

relied upon and filed the compromise Ex.PW-2/D1. Vide this

document, the appellant admitted misconduct with the

prosecutrix and also gave in writing that he was admitting his

guilt. He assured not to repeat such an act in future and

apologized for the mistake committed by him. This document

also shows that a token penalty was imposed upon the

appellant by the panchayat which then forgave him. The

appellant himself having filed this document, he cannot get

out of it and it can definitely be read in evidence against him.

Though according to DW-2, Hari, the appellant and father of

the prosecutrix had quarreled with each other over water,

thereby trying to say that the compromise dated 9 th June,

2002 pertained to the dispute over distribution/filling of

water, this part of his deposition is not borne out from the

document. Had this document pertained to any dispute

between the appellant and the father of the prosecutrix with

respect to filling/distribution of water, there would have been

no occasion for him to name the prosecutrix and say that he

has misbehaved with her. There would have in that case

been no occasion for him to admit any guilt, apologize and

assure that he would not repeat such an act and that if he

repeated such an act, he could be taken to the Court at his

cost and expenses. The expressions used in this document

clearly indicate that he had either raped or attempted to rape

the prosecutrix, as stated by her, and it was that act which

he admitted as a misconduct with the prosecutrix and which

he undertook not to repeat in future.

13. It is thus quite clear that the appellant had been putting

pressure on the parents of the prosecutrix not to report the

matter to the police, though they were not really willing to

forgive him. DW-1, who is a witness produced by the

appellant, specifically stated that the complainant party did

not agree for settlement and threatened to implicate the

appellant in a criminal case. To the same effect is the

statement of the prosecutrix. This is yet another indicator

which shows that there was pressure put on the parents of

the prosecutrix, by the residents of the locality, not to report

the matter to the police. This, to my mind, was the true

reason for the parents of the prosecutrix not going to the

police immediately after this incident had taken place. In

fact, the appellant himself has filed yet another document

which is mark-A and which purports to be written by the

prosecutrix as well as her parents to the concerned SHO,

referring to the FIR lodged earlier on that day and informing

him that the matter had been settled in the society without

any pressure and, therefore, they did not want any legal

action in the matter. This document shows that the pressure

of the appellant on the parents of the prosecutrix as well as

on the prosecutrix continued even after the FIR had been

lodged against him. In these circumstances, when there is

sufficient explanation for the delay in lodging FIR, no adverse

view of the prosecution case can be taken on account of delay

in reporting the matter to the police.

14. If the prosecutrix or her parents were to implicate the

appellant in a false case of rape, they would not have said

that the incident had taken place on 2nd June, 2002. They

knew it very well that if they report an incident of 2 nd June on

30th August, the first thing they would be asked is as to why

they did not report the matter to the police immediately after

the incident had taken place. Therefore, if they were to lodge

a false FIR against the appellant, they could easily have said

that the incident had taken place on or about a very same

day on which they had gone to the Police Station. The fact

that they did not do so and said that the incident had taken

place on 2nd June, 2002 is a strong indicator to show that

this was not a case of false implication.

15. The prosecutrix in this case was a young girl aged about

12 years when this incident took place. Ordinarily, a young

girl of this age is not likely to make false accusation of rape

since she knows it very well that by reporting such an

incident, she would be sacrificing what is most dear and

precious to her. In fact, in a society like ours, a young girl

would be quite reluctant even to admit that an incident, likely

to reflect on her chastity, had even taken place, conscious as

she would be of the danger of being looked down not only be

relative, friends and neighbours, but also by her own family

members. The fear of her being considered to be at least

partly responsible for the incident would always be on the

back of her mind, even when she reports such an incident to

her parents and family members. The parents of an

unmarried girl, while reporting such a matter to the police,

would be very much conscious that if the incident becomes

public, they may have even difficulty in finding a suitable

match for their daughter since not everyone in our society is

likely to welcome a victim of rape as his life partner. The

parents of the victim as well as the victim herself know that

in order to report the incident, they would have to go to the

police station and narrate the incident, to the police, to the

much embarrassment to the girl. They also know that

thereafter the girl will have to repeat the incident firstly before

the doctor and then in the Courts in the presence of a

number of outsiders, including Presiding Judge, advocates

and court staff. It is, therefore, extremely unlikely that they

would take the risk of going to the police with allegations of

rape unless they are absolutely sure of what they are doing.

They know it very well that in case it is found that the girl

had not been subjected to rape, she would face a lot of

embarrassment and humiliation in the society and it would

thereafter be difficult for them to find a life partner for her.

Therefore, I see absolutely no reason to disbelieve the

testimony of the prosecutrix, which otherwise could not be

impeached at all during her cross-examination.

16. 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 no rule of law or of

practice which requires corroboration before her testimony

can be expected and acted upon. The standard of proof to be

accepted by a Court in such cases must recognized the fact

that ordinarily no direct evidence other than the statement of

the prosecutrix can be available in crimes of this nature. In

the case of Gurmeet Singh (supra), the Hon'ble Supreme

Court observed as under:

"The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be

self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight."

17. In the present case, the prosecutrix was raped in early

hours of the morning in the backyard of a temple where she

had gone for cleaning the temple. No one expected to be

present at that place, early in the morning. In fact,

improbability of anyone coming to the backyard of the temple

in the early hours of the morning, seems to be the precise

reason for the appellant choosing the time and place of the

crime committed by him. He was claver enough to start the

loudspeaker and that too on full volume so that no one comes

to the rescue of the prosecutrix, even if she raised an alarm.

18. Even if the Court looks for corroboration of the

testimony of the prosecutrix, it is available in the form of

medical evidence as her hymen was found to be torn, when

she was examined in the hospital. Her testimony also finds

corroboration from the statements which she made to her

parents soon after this incident took place with her. These

previous statements of the prosecutrix, made soon after the

incident, are admissible in evidence under Section 157 of

Evidence Act.

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

have no hesitation in confirming the conviction of the

appellant under Section 376 of IPC read with Section 511

thereof. In fact, considering the evidence available on record,

it would also be at least an equally probable view that this

was not a case of attempt to rape but was a case of rape as

stated by the prosecutrix. As stated earlier, according to the

prosecutrix she was raped by the appellant and she had felt

pain at that time. The hymen of the prosecutrix was found

torn when she was examined in the hospital. The complaint

made by her to her parents was of rape and not of attempt to

rape. However, I need not go further into this aspect as no

appeal has been filed by the prosecution seeking conviction of

the appellant under Section 376 IPC, as against his

conviction by the Trial Court for attempt to rape the

prosecutrix. Since the appellant had also threatened to kill

the prosecutrix, at the time of committing or attempting to

commit rape, he has rightly been convicted under Section

506 of IPC. The conviction of the appellant is therefore

maintained on both the counts. In the matter of sentence

also, there is no scope for reduction of sentence, considering

the fact that the appellant has been convicted only for

attempt to rape.

20. For the reasons stated above, the appeal is hereby

dismissed. One copy of this order be sent to the appellant

through Jail Superintendent. The record of the Trial Court be

sent back, alongwith a copy of the judgment.

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