Neeraj vs The State(Govt. Of Nct Of Delhi)
2011 Latest Caselaw 949 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment reserved on: February 09,2011
                                Judgment delivered on:February 17,2011


+      CRIMINAL APPEAL NO. 810/2008


       NEERAJ                                              ....APPELLANT
                                Through:     Ms. Dolly, Advocate

                           Versus


       THE STATE (GOVT. OF NCT OF DELHI) .....RESPONDENT
                        Through: Ms. Fizani Husain, APP



        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. This appeal is directed against the impugned judgment of

conviction dated 08.07.2008 in Sessions Case No.25/07 FIR

No.727/06 P.S. Sultan Puri and the consequent order on sentence

dated 11.07.2008 whereby the appellant has been convicted for the

offence under Section 376 IPC and sentenced to undergo RI for the

period of seven years and also to pay fine of ` 5,000/-, in default of

payment of fine to undergo SI for the further period of three months.

2. Briefly stated, case of the prosecution is that on 11.05.2006 at

about 12:15 pm, an information was received regarding a rape

committed at Mother Dairy Road. This information was recorded in

daily diary register maintained at P.S. Sultanpuri as DD No.38B

(Ex.PW10/A) and copy thereof was forwarded to SI Sanjita (PW11)

for verification. On receipt of DD report, SI Sanjita along with Head

Constable Kaushal reached at the place of occurrence where she

met the prosecutrix "P" (name withheld) and recorded her

statement.

3. The prosecutrix in her statement Ex.PW2/A stated that on

11.05.2006 at about 12.00 noon, she was alone in the house as her

mother had gone to hear "katha". The appellant Neeraj, who is a

fruit vendor who used to visit their house, came and he forcibly

removed her „salwar' and underwear and raped her after gagging

her mouth. While the appellant was trying to flee away after the

rape, her neighbour Munni (PW6) saw him. Munni asked her as to

what had happened and the prosecutrix told Munni about the rape.

Munni in turn, conveyed this information to the mother of the

prosecutrix, who caught hold of the appellant Neeraj on the way and

informed the police on telephone No.100. SI Sanjita obtained the

signatures of the prosecutrix on her statement and appended her

endorsement Ex.PW1/A thereon and sent it to the Police Station for

the registration of the case. On the basis of "rukka", formal FIR

No.727/06 under Section 342/376 IPC was registered against the

appellant on 11.05.2006 at 4:45 pm vide DD No.24A.

4. Inspector Sanjita (PW11) sent both the prosecutrix as well as

the appellant for medical examination and obtained their respective

MLCs. She also got the statement of the prosecutrix recorded under

Section 164 Cr.P.C. The concerned Doctor took the vaginal swab of

the prosecutrix and he also prepared a parcel of the undergarment

of the prosecutrix as well as the vaginal swab and handed it over to

the police. Similarly, undergarments as well as blood sample of the

appellant were also seized. The exhibits were sent to CFSL for

analysis, report of CFSL was obtained and after completion of other

formalities of investigation, the appellant was challaned and sent for

trial.

5. The learned Additional Sessions Judge charged the appellant

for the offence under Section 376 IPC. The appellant pleaded not

guilty and claimed to be tried.

6. In order to bring home the guilt of the appellant, prosecution

examined 12 witnesses. Material witnesses, however, are the

prosecutrix herself (PW2), her mother Veena (PW5) and a neighbour

Renu @ Munni (PW6).

7. Prosecutrix appeared as PW2. She proved her statement

Ex.PW2/A given to the Investigating Officer SI Sanjita. In her

statement, she reiterated the above noted facts in the complaint.

She also stated that she was produced before the Metropolitan

Magistrate who recorded her statement under Section 164 Cr.P.C.

Ex.PW2/B.

8. PW5 Veena is mother of the prosecutrix. She testified that

prosecutrix on the date of her examination was aged about 13

years. On 11.05.2006 at around 11 am, she had gone to "katha"

(satsang) in her neighbour along with her two children and she had

left her remaining three children including the prosecutrix at the

house. At around 12:00 noon, when she was returning to her house

she met PW Munni who told her that the appellant Neeraj had

entered her house in her presence and indulged in sexual

intercourse with her daughter and that her daughter i.e. prosecutrix

was under trauma. On this, she went towards the house of the

appellant Neeraj, who was present in the "gali". She caught hold of

him and brought him to her house. A large number of public

persons had already gathered near her house who gave beating to

Neeraj. Witness stated that in the meanwhile, one Satpal resident of

Krishna Vihar also came there and thereafter the matter was

reported to the police on telephone No.100. Police arrived at the

place of occurrence and apprehended the appellant. She stated that

they were first taken to the Police Station. From there, prosecutrix

was taken to Sanjay Gandhi Memorial Hospital for medical

examination. She claimed that appellant Neeraj was arrested in her

presence vide arrest memo Ex.PW5/A and his personal search was

conducted vide memo Ex.PW5/B. Her daughter, namely, the

prosecutrix told her about the incident. According to her, the

clothes of the prosecutrix i.e. her "salwar" and underwear were

taken into possession by the police.

9. PW6 Renu @ Munni is a neighbour. She failed to support the

prosecution case and denied having knowledge about any incident

of rape.

10. PW3 Dr. V.K. Jha, Medical Officer Sanjay Gandhi Hospital stated

that MLC Ex.PW3/A of the prosecutrix is prepared in the hand of Dr.

Jitender Behl who had since left the service of the hospital. He

proved the MLC of the prosecutrix Ex.PW3/A by way of secondary

evidence by identifying the hand writing and the signatures of Dr.

Behl on the same.

11. PW8 Dr. Manoj Dhingra, Medical Officer, Sanjay Gandhi

Hospital has stated that MLC Ex.PW8/A of the prosecutrix bears the

signatures of Dr. Vandhana at point A, who has since left the

services of hospital and whereabouts are not given. Remaining

witnesses are the formal witnesses, including the Investigating

Officer.

12. The appellant in his statement under Section 313 Cr.P.C. has

denied the prosecution evidence in its entirety. He claimed that

father of the prosecutrix used to sell fruit on a "Rehri". He also used

to sell fruit on "Rehri" in competition with the father of the

prosecutrix and for that reason, he nursed a grudge against him and

in view of the aforesaid grudge, he has been falsely implicated in

this case.

13. In defence, the appellant examined Kuwar Pal (DW1) in his

defence. He stated that on 11.05.2006, he was present in his house

and busy in "katha". There were 20/25 persons present in "katha".

The police reached at his house at about 11:30 am, called the

appellant from there and took him to the house of the prosecutrix.

Thereafter the appellant was falsely implicated in this case. The

witness claimed that there was some dispute between father of the

prosecutrix and the appellant Neeraj in respect of place of parking

fruit "Rehri" for sale.

14. Learned Additional Sessions Judge on consideration of the

evidence relied upon the testimony of the prosecutrix and the

supporting witnesses and held the appellant guilty of offence of rape

punishable under Section 376 IPC and convicted and sentenced him

accordingly.

15. Learned counsel for the appellant has submitted that the

appellant is innocent and his conviction is based upon erroneous

appreciation of facts. Dilating on the argument, learned counsel for

the appellant submitted that the case of the prosecution is

essentially based upon the testimony of the prosecutrix, which is not

reliable for the reason that the only independent witness examined

by the prosecution has not supported her version. Learned counsel

argued that it is the case of the prosecution that PW6 Renu @ Munni

had seen the appellant running away from the house of the

prosecutrix and when she entered the house of the prosecutrix,

prosecutrix told her that she had been raped by the appellant. PW6

Munni, however, has not supported the aforesaid version, which

circumstance casts a doubt on the correctness of the prosecution

case.

16. It is true that PW6 Munni, who as per the case of prosecution

was the first person to reach at the spot of occurrence immediately

thereafter and who saw the appellant fleeing away, has not

supported the case of the prosecution. This, however, does not

mean that the prosecutrix is not telling the truth. It is well settled

that conviction in a rape case can be based on the sole testimony of

the prosecutrix if her version is found to be reliable. In my aforesaid

view, I seek support from the judgment of the Supreme Court in the

matter of State of H.P. Vs. Asha Ram, (2005) 13 SCC 766.

17. Now the question arises whether the testimony of the

prosecutrix is worthy of credence. In the instant case, the

prosecutrix appeared as PW2. She has categorically stated that on

11.05.2006 while she was alone in the house, the appellant entered

the house and raped her under the threat to kill her parents. While

he was indulging in sexual intercourse, PW6 Munni saw him from the

door and on this, the appellant ran away. Thereafter, Munni came

inside and she narrated the entire incident to her. There is no

reason to disbelieve the aforesaid testimony of the prosecutrix

(PW2) for the reason that she has withstood the test of cross

examination. Otherwise also, her version finds corroboration from

the scientific evidence i.e. her MLC Ex.PW3/A as well as CFSL report

Ex.PW11/D. PW3 Dr. V.K.Jha, Medical Officer, Sanjay Gandhi

Memorial Hospital, who is conversant with the handwriting and

signatures of Dr. Jitender Behl, who had medically examined the

prosecutrix, has proved the MLC Ex.PW3/A prepared by Dr. Behl by

way of secondary evidence. PW8 Dr. Manoj Dhingra has identified

the handwriting and signatures of Dr. Vandhana on the said MLC.

On perusal of the MLC, it transpires that on local examination, the

concerned doctor found redness and inflammation as well as semen

stains at the introitus of the prosecutrix. Even her hymen was found

torn. This evidence leads to an inference that the prosecutrix

actually was raped and corroborates her version. Further, it is

recorded in the MLC that vaginal swab of the prosecutrix was taken

and her garments were handed over to the police. As per the

Investigating Officer Inspector Sanjita (PW11), the vaginal swab as

well as the garments of the prosecutrix was sent to CFSL for

chemical analysis and as per CFSL report, vaginal swab of the

prosecutrix as well as her underwear and "salwar" tested positive

for presence of semen. This circumstance leaves me with no doubt

that the prosecutrix is telling the truth that she was actually raped

by the appellant. Thus, in my view, Trial Court has rightly relied

upon the testimony of the prosecutrix.

18. Learned counsel for the appellant further contended that the

learned Trial Judge has committed a grave error in failing to

appreciate that the prosecutrix had a reason to falsely implicate the

appellant because he used to run a fruit "Rehri" in competition with

the father of the prosecutrix, which provides a strong motive for

false implication.

19. I am not convinced with the argument. Running of fruit "Rehri"

in competition with the father of the prosecutrix is not such a strong

motive which would have motivated the prosecutrix to falsely

implicate the appellant for her rape. As per the testimony of the

prosecutrix, she was raped on 11th May, 2006 at about 12.00 noon.

The DD report in respect of the rape, being DD No. 38B (Ex.PW10/A),

was registered at the police station on 11.05.2006 at 12.15 p.m.

within a short duration of fifteen minutes. The prompt reporting of

the occurrence to the police by itself rules out any possibility of

deliberation or false implication of the appellant, who has been

named in the complaint Ex.PW2/A of the prosecutrix, which was

recorded without much delay on the arrival of the Investigating

officer at the place of occurrence. Otherwise also, it is highly

improbable that the prosecutrix, with a view to settle score with the

appellant, would have put the honour of herself as well as her family

on line to make a false allegation of rape against the appellant.

20. Learned counsel for the appellant also argued that the

prosecution story is unnatural for the reason that there is

contradiction in the testimony of the prosecutrix and her mother

about the time of occurrence. On perusal of record, it transpires

that the prosecutrix in her testimony, has given the time of

occurrence as 12.00 noon and her mother PW5 Veena has also

stated that when she returned back to her house at around 12.00

noon, she was told by Munni (PW6) that the appellant Neeraj had

entered her house in her absence and had sexual intercourse with

the prosecutrix, who was under trauma and was crying. From this, it

is apparent that there is no contradiction in the testimony of the

prosecutrix as well as her mother PW5 Veena regarding time of

occurrence. Otherwise also, if there is any contradiction regarding

time in the statements made under Section 161 Cr.P.C., that can be

attributed to the lapse of memory due to efflux of time and cannot

be taken as a circumstance to disbelieve the testimony of the

prosecutrix, which is corroborated by the scientific evidence.

21. Lastly, it is contended on behalf of the appellant that as per

the prosecution story, two siblings of the prosecutrix were playing

outside the house at the time of occurrence. Despite that, neither of

them have been cited as witnesses by the prosecution and this

circumstance casts a strong doubt against the correctness of

prosecution case.

22. There is no merit in the above submission for the reason that it

is not necessary that the children playing outside the house could

have seen the appellant entering the house or committing rape on

the prosecutrix. Prosecutrix, in her testimony, has categorically

stated that she was threatened and raped by the appellant, which

imply that because of fear, she did not raise alarm, as such, it is not

surprising that her siblings did not hear noise of resistance or alarm.

23. In view of the discussion above, I do not find any merit in this

appeal. I find no infirmity in the impugned judgment of conviction

which may call for interference in appeal.

24. Appeal is accordingly dismissed.

(AJIT BHARIHOKE) JUDGE

FEBRUARY 17, 2011 akb