Jaipal vs State
2011 Latest Caselaw 1094 Del

            * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of Reserve: 10th February, 2011
                                          Date of Order: 23rd February, 2011

+ CRL.A. 241/2005
%                                                         23.02.2011

JAIPAL                                                   ..... Appellant
                               Through Mr. P. Narula and Ms Geeta,
                               Advocates

                      versus


STATE                                                    ..... Respondent
                               Through Mr. Sunil Sharma, Addl. PP with SI
                               Devender Balhara, P.S. Alipur


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

1. This appeal has been preferred by the appellant against his

conviction under Section 376 IPC. The appellant was sentenced to RI for

10 years and a fine of Rs. 10,000/- by the trial court.

2. The case of prosecution is about rape committed by the appellant

on his own daughter.

3. The arguments of the counsel for the appellant are that there was a

great delay in lodging of FIR, there were no signs of violence on the body

of daughter and daughter alleged that she was aborted but no proof of

abortion was produced before the trial court. It was further argued that

maternal uncle as well as Pradhan of the village allegedly had come to

know of the rape, but, no FIR was lodged at that time. FIR was ultimately

lodged after about 9 months of the incident and this created grave doubt

on the story of prosecution that the appellant had raped his daughter.

4. Prosecutrix in this case appeared as PW-3 and narrated her tale of

woes before the court. She stated that in January, 1999, her marriage

had been fixed and she was soon to get married. On 27 th January, 1999

she was present at her house while her mother was not present at the

house as she had gone to Haiderpur. At about 12.00 midnight her father,

under the influence of liquor, slept with her and committed rape on her.

Her younger brother and sister though in the house were sleeping. Due

to fear and in order to avoid insult to herself and her family she did not tell

anyone about the shameful act of her father. When she did not get

menstrual cycle next month, she disclosed this fact to her mother. She

also told about this to her father who took her to a nearby doctor where

her urine was tested and her pregnancy was confirmed. The doctor

advised abortion. They went to Indrawati Nursing Home where doctors

demanded Rs. 2500/- for abortion. Since her father was not having this

much money, he did not get her aborted. She then threatened her father

to arrange money otherwise she would have to disclose about her

pregnancy to her in-laws. Her father assured her that he would arrange

money and get her aborted. However, nothing was done for the next two

months and ultimately her marriage was solemnized on 24th April, 1999

with Hari Singh. Even at the time of marriage her father assured that after

marriage he would bring her back on 30th April, 1999 for a month and

would get her aborted. After marriage a pain developed in her stomach.

She told her husband about the pain, who brought her some medicine.

However, she felt no relief with the medicine. She was then taken to a

doctor who advised ultrasound. She refused to undergo ultrasound

fearing that her husband would come to know about her pregnancy.

However, seeing that her father was not doing anything about termination

of her pregnancy, she disclosed everything to her husband. Her husband

asked her to tell this fact in front of her father. On 10th May, 1999, in the

presence of her father, she told her husband about her being pregnant

from her father. Thus, everybody in her in-laws house came to know

about her this pregnancy. On 19th May, 1999, her brother came to take

her and she accompanied her brother to her parental home. On 20th May,

1999 her husband also came to her parents' home. On that day she

again had a pain in her stomach and her husband asked her father to get

her aborted. Her father told that he would get her aborted after 2-3 days.

On 23rd May, 1999, her aunt (chachi) expired and on the same day in the

evening she was taken to Indrawati Nursing Home for abortion and her

abortion was done on 23rd May, 1999. After abortion, she was brought

back to her parental home. Neighbours kept on asking as to what had

gone wrong with her and her mother replied that she was having fever.

After about a week she went back to her matrimonial home with her

husband. Her father did not give her the papers of abortion in Indrawati

Nursing Home. Her father even did not give her medicines prescribed by

the doctor at Indrawati Nursing Home. On 15th June, 1999, she

developed some infection but she did not visit doctor. However, on 27 th

June, 1999, she visited Doctor Vijay Singh who told her that she would

have to be treated for about two weeks. After about two days her

maternal uncle came to take her but her husband refused to send her with

him. After about three days her elder brother came and took her with him

on the pretext that her mother was sick. However, when she reached her

parental home, she found that her mother was okay and going to the

house of her maternal uncle. Her husband had also come with her. Her

father in the presence of her husband asked her as to how much her

husband used to beat her. On this her husband got angry and an

altercation took place between her husband, her father and herself. Her

husband slapped her. Her bother Mahender caught hold of her husband

from his neck and her father picked up a lathi in order to give beatings to

her husband. Thereafter, she and her husband both were turned out from

the house and her father took them quarrelling towards bus stand where

about 50 persons were assembled. Her father and brother both abused

them. At that moment, her husband asked her to tell all people gathered

there about the act of her father. However, she did not do so and

husband and wife went to their house. On 19th July, 1999 her husband

had gone to the house of one Kuldeep who lived in the neighbourhood of

her parental home for getting cassette of their marriage. At that time her

mother called her husband and told her that she was raped with her own

consent. When her husband told her this, she told her husband that her

father had earlier told her that in case anybody asked about her

pregnancy she should reply that the same was of her elder brother

Mahender. After all these humiliation and mental torture at the hands of

her father the prosecutrix started thinking of taking action against her

father. On 26th September, 1999 she and her husband returned all dowry

articles at her parental home. When husband and wife went to return

dowry articles, her parents were not at home and they met one Lal

Chand, Panch of the area and they told him about all facts but he took no

action against her father. When her parents came back in the mean time

and came to know that she had disclosed everything to the Panch, her

father picked up a Kulhari and threatened to kill her and her husband.

She reported the matter to her grand-father who also showed his

helplessness. So, after leaving dowry articles at her parental home she

and her husband came back and a complaint was lodged about the

misdeeds of her father on 7th October, 1999. She was thereafter taken to

Hindu Rao Hospital by police for medical examination. She proved her

complaint in the court.

5. She was cross-examined at length. During cross-examination she

gave cogent and rational answers to all queries. She denied the

suggestion that her father and husband were having dispute over some

plot. She denied the suggestions that her father had not committed rape.

6. There is no doubt that in this case Dr. Narpat Singh, PW-1, who

was summoned as prosecution witness had turned hostile and did not

support the prosecution case. No record of abortion was recovered from

Indrawati Nursing Home. It seems, the hospital clandestinely did not keep

record of abortion. Moreover, the petitioner had categorically stated that

her father had brought papers of abortion and had kept the same with

him. During cross-examination, no suggestion was put to her that she

was not pregnant from her father or that she was not taken to Dr. Narpat

Singh or that her urine test for ascertaining pregnancy was not conducted,

rather, in cross-examination she re-affirmed that she came to know about

her pregnancy only after Doctor Narpat Singh conducted tests. It was not

suggested to her that she was not pregnant when she was married. Her

entire statement remain unchallenged during her cross-examination. It is

apparent from the testimony of this witness that she had given a truthful

account of what had happened to her. The witness belonged to poor

strata of society and she had given reasons in detail why she did not

lodge FIR of the episode in the very beginning.

7. It is settled law that if testimony of prosecutrix inspires confidence

and appears to be truthful/ trustworthy, the sole testimony of prosecutrix is

quite enough to convict a person for rape. The prosecutrix in this case, is

none else but the daughter of the Appellant. The Appellant has given no

reason why her own daughter would depose against him. The daughter

had categorically stated that she was afraid of her father and was also

worried about her own reputation and reputation of the family which

compelled her not to lodge a report and not to disclose about the rape to

anybody immediately. Mere non-disclosure of the rape immediately after

the prosecutrix was raped by her own father, cannot throw doubt on her

testimony. I consider that the trial court rightly convicted the Appellant.

There is no force in this Appeal. The Appeal is hereby dismissed.

FEBRUARY 23,         2011                 SHIV NARAYAN DHINGRA, J.
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