Raj Kumar @ Petal vs The State (Govt. Of Nct Of Delhi)
2010 Latest Caselaw 1392 Del

                HIGH COURT OF DELHI : NEW DELHI
               Judgment Reserved on: March 3, 2010
               Judgment Pronounced on: March 12, 2010


+              Criminal Appeal No. 489 of 2008


%      Raj Kumar @ Petal                     ...        Appellant
                 Through:         Mr. Baldev raj & Ms. Swati Shukla,
                                  Advocates

                                    versus

       The State (Govt. of NCT of Delhi)      ...  Respondent
                  Through: Mr. Amit Sharma, Additional Public
                             Prosecutor for 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?                        No

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

SUNIL GAUR, J.

1. To repel the charge of rape of a married woman, the plea of

consent is being put forth on behalf of the appellant/accused in

Criminal Appeal No. 489 of 2008 Page 1 this appeal. The incident is of night intervening 17 th and 18th

March, 2004.

2. The version of the prosecutrix (PW-1), aged about twenty

two years, is that her husband was not present in the house at

the time of this incident and appellant/accused along with co-

accused came there and enquired about the owner of the house

and had told the prosecutrix (PW-1) to call the owner of the said

house, who was said to be residing in a nearby area. The

prosecutrix (PW-1) innocently did so and thereafter, appellant

expressed desire to have some food and his co-accused went

away to fetch the food and during the intervening period,

appellant/accused had misbehaved with the prosecutrix (PW-1)

and when she resisted, he had torn her clothes and had forcibly

raped her. Attempt by the prosecutrix (PW-1) to raise voice was

stalled by the appellant/accused by closing her mouth. On the

pretext of urinating, prosecutrix (PW-1) had managed to escape

from the spot while locking the appellant/accused in the house

and she had informed the neighbours and this matter was

reported to the police, which led to registration of FIR No. 221 of

Criminal Appeal No. 489 of 2008 Page 2 2004, under Section 376/34 of the IPC, at Police Station Nangloi,

Delhi.

3. The law was set into motion on the statement of the

prosecutrix (PW-1). During the investigation, medical examination

of the prosecutrix (PW-1) was got done. Since the arrest of the

appellant/accused was from the spot, his medical examination

was also got done and he was arrested in this case. The exhibits

of this case were sent for analysis. Investigation in this case came

to a close with the filing of the charge-sheet against the

appellant/ accused and his co-accused for the offence under

Section 376 (g)/34 of the IPC. The trial had commenced, as the

appellant/accused and his co-accused chose to contest the

charges framed against them in this case. Out of the deposition

of thirteen witnesses, the deposition of the prosecutrix (PW-1)

was the one which was referred to, during the hearing of this

appeal.

4. The plea taken by the appellant/accused before the trial

court was of false implication because of a loan dispute. The

evidence led by the appellant/accused and his co-accused before

the trial court was of three witnesses. The first defence witness Criminal Appeal No. 489 of 2008 Page 3 had deposed regarding the plea of alibi taken by the co-accused

Deepak and the second witness was a jail official who had said

before the trial court that the prosecutrix (PW-1) had come to

meet the co-accused and the third witness was a neighbour who

had purportedly informed the police about this incident. The trial

of this case ended with the conviction of the appellant/accused

for the offence of rape simplicitor and impugned order on

sentence of 5th February, 2008, orders for imprisonment of the

appellant/accused to rigorous imprisonment for seven years with

fine.

5. Arguments advanced by both sides have been duly

considered and with the active assistance of the Counsel for the

parties, the evidence on record has been looked into.

6. To probablise the plea of consent, the contention advanced

on behalf of the appellant/accused was that the prosecutrix (PW-

1) did not raise any alarm and she had not suffered any injury on

her person nor purportedly torn clothes were seized and

ultimately, the FSL Report on record does not connect the

appellant with the offence in question. According to learned

Counsel for the appellant, prosecutrix (PW-1) has deposed Criminal Appeal No. 489 of 2008 Page 4 against the appellant/accused in order to save herself and

aforesaid circumstances clearly show that the prosecutrix (PW-1)

was a consenting party and therefore, the conviction of the

appellant is bad in law. Attention of this Court has been drawn to

the decisions reported in "Dilip vs. State of M.P. (SC)" 2001 (4)

RCR (Criminal) 383; "State of Rajasthan vs. Kishanlal" 2002

(2) RCR (Criminal) 853; "Pardeep Kumar vs. Union

Administration, Chandigarh" 2006 (4) RCR 35; "Kuldeep K.

Mahato vs. State of Bihar" 1998 (3) RCR (Criminal) 799 and

"Bal Kishan v. State of H.P." 2008 (4) JCC 2887 to support the

aforesaid plea of consent.

7. Mr. Amit Sharma, learned Additional Public Prosecutor for

respondent-State, with his usual vehemence not only defends the

impugned judgment but asserts that the plea of consent is not at

all evident from the evidence appearing on record of this case.

According to the learned Additional Public Prosecutor for State,

decisions cited are clearly distinguishable on facts and the plea of

consent remains unsubstantiated and the impugned judgment is

well reasoned and deserves to be upheld.

Criminal Appeal No. 489 of 2008 Page 5

8. The Apex Court in the case of Om Prakash V State of Uttar

Pradesh, AIR 2006 SC 2214, has pertinently observed as

under:-

"The Indian women has tendency to conceal such offence (of rape) because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after staking her own prestige and honour".

9. The fate of this case depends upon the testimony of the

prosecutrix (PW-1), which is to be appreciated in the light of the

plea of consent taken by the appellant/accused in this case.

Before doing so, it is noticed that the plea which was put-forth

before the trial court was of false implication due to some loan

transaction and there was no whisper about the plea of consent.

It is not the case of the appellant's Counsel that the plea of

consent was taken before the trial court. Be that as it may. The

evidence of the prosecutrix (PW-1) has to be independently and

Criminal Appeal No. 489 of 2008 Page 6 objectively appraised by this Court and upon doing so, this Court

finds that except in the suggestion to the prosecutrix (PW-1) of

being a consenting party, the tenor of the cross-examination of

the prosecutrix (PW-1) does not substantiate the plea of consent.

For instance, the seized torn clothes of the prosecutrix (PW-1)

have been duly identified by her at the time of her deposition and

there is no cross-examination regarding the said clothes being

not torn. Infact, they were torn, as per the deposition of Dr.

Chetna (PW-2), which remains unchallenged by the defence.

Therefore, it cannot be said that there was no resistance from the

prosecutrix (PW-1). It has come in the evidence of the prosecutrix

(PW-1) that she had not raised alarm after the incident to seek

help of neighbours because none was available and as she was

not on talking terms with anyone in the neighbourhood.

10. The categoric stand of the appellant/accused is of his

having sexual intercourse with the prosecutrix (PW-1), therefore,

the limited question is as to whether it was with consent or

without consent of the prosecutrix (PW-1). Probability factor

militates against the plea of consent for the reason that it is

highly unlikely that the prosecutrix (PW-1) would consent to have

Criminal Appeal No. 489 of 2008 Page 7 a sexual intercourse with anyone, in the presence of a third

person.

11. There can be no precedent in criminal cases, as the facts of

one case are different from the facts of another case. The

decisions cited have been perused and it is found that the plea of

consent in these decisions have been accepted by the Court in

the facts of those cases. Absence of injury on the person of the

prosecutrix (PW-1) is one of the circumstance but cannot be the

sole circumstance to infer the plea of consent.

12. In the face of the evidence of the prosecutrix (PW-1) on

record, it cannot be reasonably inferred that the prosecutrix (PW-

1) was a consenting party. Consequentially, this Court finds that

the conviction of the appellant for the offence of rape is well

borne out from the evidence on record and merits no interference

by this Court in this appeal. The sentence imposed upon the

appellant/accused is minimum, as provided under the law. No

adequate or special reason has been shown to reduce the

sentence to a period less than the minimum provided for the

offence in question.

Criminal Appeal No. 489 of 2008 Page 8

13. Resultantly, the impugned judgment and order of the trial

court are upheld and this appeal is dismissed. Appellant is in

custody. He be apprised of this order through the concerned Jail

Superintendent.

14. This appeal and pending application, if any, is accordingly

disposed of.

Sunil Gaur, J.

March 12, 2010
rs




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