Salim vs State (Govt.Of Nct Of Delhi)
2010 Latest Caselaw 1282 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL. APPEAL NO. 773/2006

%                                 Decided on: 8th March, 2010

       Salim                                        ..... Appellant
                              Through:   Mr. Rajesh Mahan and
                                         Mr. Ajay Raghav, Advs.
                     Versus


       State (Govt.of NCT of Delhi)                ..... Respondent
                             Through:    Mr. Manoj Ohri, APP for the
                                         State.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers
          may be allowed to see the judgment?             No

       2. To be referred to Reporter or not?              No

       3. Whether the judgment should be reported
          in the Digest?                                  No


A.K. PATHAK, J. (ORAL)

1. Appellant was convicted under Section 376 IPC by the

learned Additional Sessions Judge, Delhi and sentenced to undergo

rigorous imprisonment for ten years and to pay fine of Rs. 2,000/-;

in default of payment of fine, to undergo rigorous imprisonment

for two months.

2. As per the prosecution, on 25th February, 2004 at about

07:15 am, prosecutrix, aged about seven years was sent to

market by her father to buy tea leaves from a shop at Jagat Pur,

Delhi. Prosecutrix returned home at about 8 am and at that time

she was bleeding per vagina. On enquiry she confided in her

mother that one man had pushed her and raped near a vehicle

parked at Jagat Pur Mod near a water tap.

3. Father of the prosecutrix went to the Police Station Timarpur

along with his daughter and contacted ASI Sushma Ikka, who took

them to Aruna Asif Ali Hospital, where prosecutix was clinically

examined. Statement of the father of prosecutrix was recorded,

as victim was not in a position to make a statement, and pursuant

thereof, FIR No. 79/2004 under Section 376 IPC was registered.

Later, prosecutrix was treated at L.N.J.P. Hospital. As per the MLC,

hymen of the prosecutrix was found ruptured with fresh bleeding.

No external injury was found over the perineum or inner thigh.

Blood stained underwear of the prosecutrix was sealed in the

hospital by the doctor and handed over to the investigating officer.

4. Statement of prosecutrix was recorded on 1st March, 2004 by

the Investigating Officer wherein she stated that while she was

going to buy tea leaves, one man called her near the water tap

where a vehicle was parked; he pushed her; removed her

underwear; gagged her mouth and thereafter took out his penis

and laid upon her and as a consequence of this act, bleeding

started. Said man was not known to her. Thereafter, she went to

shop and purchased tea leaves and returned home.

5. During the investigation, Investigating Officer, came to know

that two buses used to remain parked near the water tap. On the

date of incident two buses were parked there out of which one

belonged to Police Training Institute and other was owned by one

Satish. Investigating Officer made enquiries from Satish and came

to know that the cleaner of bus namely Salim was in the bus that

day and was absconding. After about one month i.e. on 25th

March, 2004 Investigating Officer along with prosecutrix and her

parents reached near Jagat Pur in search of appellant, and found

him present in the market. On seeing the appellant, prosecutrix

got frightened and hugged her mother. On her identification

appellant was arrested. Later he was got medically examined in

the hospital. Doctor opined that he was capable of performing

sexual intercourse. Blood sample of appellant was taken and

sealed.

6. Subsequently, blood sample, under wears of prosecutrix and

appellant were sent to FSL and its report was obtained. Semen

was not detected on the under wears.

7. Learned Additional Sessions Judge framed charge under

Section 376 IPC against the appellant to which he pleaded not

guilty and claimed trial.

8. Prosecution examined eighteen witnesses to support its

story. Prosecutrix was examined as PW1, her parents Mamta

Sarkar and Rattan Sarkar were examined as PW2 and PW3,

respectively. All other witnesses are either doctors or Police

officials. Investigating Officer was examined as PW18.

9. In his statement under Section 313 Cr.P.C. appellant denied

having committed the offence and claimed himself to be innocent.

He further stated that he was falsely implicated in this case.

However, no evidence was lead by him in his defence.

10. Learned Additional Sessions Judge found the statement of

PW1 trustworthy and reliable, duly supported by medical

evidence, according to which, injuries were found on the private

parts of the prosecutrix and came to the conclusion that it was the

appellant, who had committed rape upon the prosecutrix.

Consequently appellant was convicted under Section 376 IPC.

11. Learned Amicus Curiae for the appellant vehemently

contended that no reliance can be placed on the testimony of

prosecutrix as the same was based on tutoring. In her cross

examination, prosecutrix categorically admitted that her father

had taken her to Police Station in the morning before bringing her

to the court, had instructed her about the statement to be made in

the court. This clearly shows that statement of the prosecutrix in

the court was tutored one. He has further contended that

prosecutrix, in her cross examination, categorically stated that she

sustained injuries herself in her house. Her this answer also falsify

the whole prosecution story that appellant had raped the

prosecutrix. He has further contended that the mother of the

prosecutrix admitted, in her cross-examination, that water tap was

situated in a park which was near a busy road. Lot of people used

to come to that park to bathe and fetch water; that several

vehicles also used to remain parked there. In this scenario, it was

improbable that appellant would have raped the prosecutrix near

the water tap in the open and in full public view. His another

contention is that the manner in which arrest of the appellant is

made, is also suspicious. As per PW18, she came to know from

Satish, immediately after the incident, that the appellant was

absconding. Despite this, no efforts were made to arrest the

appellant. It was highly improbable that appellant would have

been roaming in the same area knowing fully well that police was

after him. In nutshell, his contention is that the whole prosecution

case is shrouded with mystery and suspicion which makes the

appellant entitled to benefit of doubt and consequent acquittal.

12. As against this, learned counsel for the respondent has

vehemently contended that prosecutrix was a minor child. There

is no reason to disbelieve her. Right from the beginning,

prosecutrix had maintained her stand that one man had called her

near the water tap, pushed her and raped her. Keeping in mind

the tender age of the prosecutrix, minor variations in her cross

examination have to be ignored. There is no reason as to why

prosecutrix and her parents would implicate appellant in such a

the serious offence of rape, more so, when there was no past

enmity between them. He has further contended that appellant

was arrested on the pointing of prosecutrix, therefore,

identification of appellant was not in dispute. According to learned

counsel, impugned order is in consonance with the evidence led

before the learned trial court and requires no interference.

13. I have considered the rival contentions of both the parties

and carefully perused the trial court record. In her examination-in-

chief, PW1 stated that while she was going to buy tea leaves,

appellant met her on the way and pushed her and thereafter

inserted his organ in her private part as a consequence of which,

blood started oozing out. She returned home and narrated the

incident to her father. Thereafter, she was taken to Police Station.

However, in her cross-examination, she deposed that she

sustained injuries in her house. Her this version in cross-

examination creates a serious doubt about her version that she

was raped near the water tap that too by the appellant.

Prosecutrix further deposed that before tendering her statement

before the court, in the morning, she was taken to Police Station

by her father and was briefed about the statement to be made

before the court. This shows that on the date when her statement

was to be recorded in the court, she was first taken to the Police

Station and was tutored to narrate the story in the manner in

which she later on narrated in the court. Her answers in cross

examination shattered her testimony completely and makes her

an untrustworthy and unreliable witness.

14. It is well settled that conviction can be based upon sole

testimony

of the prosecutrix if her statement inspires confidence and is

believable. In such an eventuality court is not required to

look upon the corroboration regarding version of prosecutrix

through the medical, scientific or any other independent

evidence. Though the evidence of a victim of alleged rape

deserves due consideration and can be accepted without any

corroboration, still such evidence has to be assessed as the

evidence of any other witness and all that she says cannot be

accepted on the face value. The same has to be tested on the

touchstone of probabilities and her conduct. In this case, as

described above, prosecutrix's statement suffers from

infirmities and indicates tutoring making it unsafe to base

conviction of the accused on such sole testimony.

15. In Prahlad Singh Vs. State of Madhya Pradesh reported in

AIR 1997 SC 3442, in view of the statement of prosecutrix, in

her cross-examination, that the policewala uncle had tutored

her statement outside the court, held that substantive

evidence of the prosecutrix in court identifying the accused

was of no relevance and no conviction could be based on the

same.

16. That apart, version of the prosecution that prosecutrix

was raped near the water tap appears to be improbable. PW2

in her cross-examination deposed that immediately after her girl

arrived at home, she along with her husband and neighbours went

to the place of incident but did not find any blood stains near the

water tap. She also admitted that lot of persons were present

near the water tap and she made enquiries from them but nothing

could be discovered. She further admitted that in the morning

several people take bath at the water tap. According to her, road

adjoining to the park was also very busy and crowded and even

vehicles used to remain parked there. Her this answer also

creates doubts about the authenticity of the prosecution story.

From the answers given by PW2, it is clear that place of

occurrence was not a secluded or isolated place. It was near a

busy road. Water tap was in the park where several people used

to take a stroll in the morning and also used to take bath. Incident

took place at about 7:30/8:00 AM and at that time there must have

been lot of people in the vicinity. As per the site plan also bus was

parked in the open area and not adjoining to any wall. The area

around the bus was open to public view. There was a school near

the park. Therefore, it appears to be highly improbable that

appellant could have committed rape of the prosecutrix in full

public view. Place of occurrence is also doubtful keeping in mind

the answers given by the prosecutrix in her cross-examination that

she had sustained injuries herself in her house. Accordingly,

benefit of doubt would obviously lean towards the appellant.

17. In the light of the above discussions, I am of the view that

appellant is entitled to benefit of doubt resulting in his acquittal.

18. Accordingly, impugned order dated 9th May, 2006 is set aside

and appellant is acquitted of the charges leveled against him. He

be released forthwith if not wanted in any other case.

19. Appeal is disposed of in the above terms.

20. Copy of the order be sent to Superintendent Jail for serving

on the appellant and also for compliance.

A.K. PATHAK, J

March 08, 2010 ga