Luv Kush vs State (Nct) Of Delhi
2011 Latest Caselaw 541 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment reserved on: January 25, 2011
                         Judgment delivered on: January 31, 2011

+      CRIMINAL APPEAL NO.235/2008

       LUV KUSH                                   ....APPELLANT

              Through:   Mr. Sumeet Verma, Advocate

                         Versus

       STATE (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 dated

20th September, 2007 in Sessions Case No. 155/2006, FIR No.

214/2006, under Section 376 IPC P.S. Anand Vihar and the

consequent order on sentence dated 12th October, 2007 whereby

the learned Additional Sessions Judge has convicted the appellant on

the charge under Section 376 IPC and sentenced him to undergo RI

for the period of 10 years and also to pay fine of ` 500/- and in the

event of default of payment of fine, to undergo RI for further period

of 02 months.

2. Briefly stated, case of the prosecution is that the prosecutrix

"P" (name withheld) aged 09 years was sleeping on the roof of her

house on the night intervening 10th/11th April, 2006. Her brother,

who was unwell, was also sleeping on the roof. At around 9.30 p.m.,

the appellant Luv Kush is stated to have approached the

prosecutrix. He removed her clothes and indulged in sex with her.

When the prosecutrix started crying, he gagged her mouth with a

piece of cloth so that she could not raise alarm. After raping the

prosecutrix, the appellant is stated to have fled away and the

prosecutrix went downstairs and narrated the incident to her

mother.

3. Mother of the prosecutrix then approached Usha, the sister of the

appellant and complained to her about the conduct of the appellant.

Usha defended the appellant. Thereafter, mother of the prosecutrix

complained to the brother of the appellant, who tried to pacify her and

assured that he would bring the appellant before her. She waited till

11:00 am, but the appellant was not produced before her. Thus, she

went to the Police Station with the prosecutrix, where the statement of

prosecutrix Ex.PW3/A was recorded. The Investigating Officer obtained

signatures of the prosecutrix on her complaint, appended his

endorsement thereon and forwarded it to the duty officer for the

registration of the case. The prosecutrix was thereafter sent to SDN

Hospital for medical examination. She was medically examined by

PW5 Dr. Sakshi Arora, who did not find any external injury on the

person of the prosecutrix. She also did not find any sign of bleeding,

but the hymen of the prosecutrix was found ruptured. Dr. Sakshi Arora

prepared vaginal smear slides of the prosecutrix. She took blood

sample of the prosecutrix. Pyjama and shirt of the prosecutrix were

also seized and converted into a sealed packet and handed over to the

Investigating Officer, ASI Veera Sharma along with the packets of

vaginal smears slides and the blood sample. The appellant was

arrested during investigation and he was also sent for medical

examination. Ossification test was done to ascertain bone age of the

prosecutrix and as per the Radiologist, her age was between eight to

nine years. The record pertaining to the date of birth was collected

from the school. On completion of investigation, appellant was

challaned and sent for trial.

4. The learned Additional Sessions Judge charged the appellant for

committing rape of the prosecutrix punishable under Section 376 IPC.

Appellant pleaded not guilty to the charge and claimed to be tried.

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

examined nine witnesses. There is no eye witness to the occurrence,

except the prosecutrix. Before adverting to the submissions made by

rival parties, it would be useful to have a look upon the testimony of

the prosecutrix and some other important witnesses.

6. Prosecutrix in her testimony stated that on the fateful day, she

was sleeping on the roof of her house. Her brother Sanjay, who was

indisposed, was also sleeping on the roof. The appellant Luv Kush was

also sleeping there. Prosecutrix testified that during the night,

appellant came to her, he applied his saliva on his penis and started

indulging in the act with her. Before that, the appellant removed her

underwear and also gagged her mouth. She stated that in the process,

she felt pain in her private part and cried. Thereafter, the appellant

ran away. She further stated that her mother came there and she

insisted on production of the appellant Luv Kush, who did not return.

Thus, she was taken to Police Station where she gave her statement

Ex.PW3/A to the police and signed the same. She also stated that she

was taken to some place where medicines are given to the patient.

Her suit was seized, but she had left her underwear at her house.

7. PW2 Meena is the mother of the prosecutrix and she is witness to

the conduct of the prosecutrix after the incident. She testified that on

the relevant night, she was sleeping in the room and prosecutrix and

her son Sanjay had gone to sleep on the roof. She claimed that at

around 2:30 am, prosecutrix came down stairs and knocked on her

door. The prosecutrix complained to her that the appellant had

removed her underwear and when she said that she would complain

against him to her mother, the appellant gagged her mouth and fled

away after jumping from the roof. She also stated that prosecutrix told

her that the appellant had tried to rape her and in the process applied

his saliva over her private part and started having coitus with her.

Prosecutrix also told that when she went to urinate, she felt pain.

8. PW5 Dr. Sakshi Arora is another important witness, who medically

examined the prosecutrix. She stated that on 11.04.2006 at about

6:10 pm, prosecutrix was brought to the hospital for medical

examination with alleged history of rape and on medical examination,

no external injury was seen and there was no bleeding present.

Hymen was ruptured. Public hairs were absent. She took vaginal

smears slides and collected the blood sample of the prosecutrix. She

further claimed that prosecutrix was not wearing undergarment and

she seized the shirt and pyjama of the prosecutrix, converted it into a

sealed packet and handed it over to ASI Veera Sharma along with

vaginal smears slides. She has proved the MLC prepared by her as

Ex.PW5/A. In the cross-examination, Dr. Arora stated that sometimes,

because of physical exercise like cycling, jumping etc., hymen of a girl

may get ruptured.

9. The appellant, when examined under Section 313 Cr.P.C. denied

the prosecution version and he stated that he has been falsely

implicated by the mother of the prosecutrix because he had some

altercation with her in respect of some dispute.

10. In defence, the appellant examined his sisters Tulsa and Chander

Kali to prove that there had been an altercation between the appellant

and mother of the prosecutrix and the mother of the prosecutrix had

threatened the appellant with false implication in some case and

thereafter, she had lodged a false report.

11. The learned Additional Sessions Judge, relying upon the

testimony of the prosecutrix (PW3), which in his opinion was

corroborated from the medical evidence provided by PW5 Dr. Sakshi

Arora and the testimony of her mother PW2 Meena, found the

appellant guilty of rape of the prosecutrix and convicted and sentenced

him accordingly.

12. Learned Shri Sumeet Verma, Advocate appearing for the

appellant submitted that the impugned judgment is the result of wrong

appreciation of the evidence. Learned Additional Sessions Judge failed

to appreciate that the case of the prosecution is based upon sole

testimony of the prosecutrix, which does not inspire confidence for

various reasons.

13. Dilating on the argument, learned counsel for the appellant

contended, as per version of the prosecution at the time of occurrence

her brother Sanjay was also sleeping on the roof. If this version is true,

then in all probabilities, Sanjay would have woken up on hearing the

noise of resistance given by and the alarm raised by the prosecutrix.

This, however, is not the case of the prosecution. Therefore, it is not

safe to rely upon the testimony of the prosecutrix.

14. I do not find merit in the above contention for the reason that as

per the testimony of the prosecutrix, Sanjay was suffering from fever

and he had gone to sleep after taking medicine. It is possible that as a

result of having taken medicine, he was sound asleep at the relevant

time. Otherwise also, the prosecutrix has testified that when the

appellant removed her underwear, she uttered that she would

complain against him to her mother and on this the appellant forced a

cloth in her mouth and gagged her. From this, it is evident that the

appellant had gagged and disabled the prosecutrix to raise alarm, as

such, there is nothing surprising in the brother of the prosecutrix not

getting up and witnessing the occurrence.

15. It is further contended by learned counsel for the appellant that it

is not safe to rely upon the uncorroborated testimony of the

prosecutrix, particularly when it is not even supported by the medical

evidence. Dilating on the argument, learned counsel for the appellant

referred to the MLC of the prosecutrix Ex.PW5/A and the statement of

Dr. Sakshi Arora(PW5), who medically examined her on 11.04.2006 and

pointed out that the Doctor did not find any external injury on the

person of the prosecutrix nor there was any bleeding present. Though

hymen was ruptured, it could be the result of physical exercise like

cycling, jumping or climbing bamboo stairs. Learned counsel also

referred to the CFSL report Ex.PW8/C and submitted that even as per

the CFSL report, no blood or semen was found on the clothes of the

prosecutrix, which evidence negates the theory of rape committed on

the prosecutrix. Thus, he urged that under the circumstances, it is not

safe to rely upon uncorroborated testimony of the prosecutrix.

16. I am not convinced with the argument. There is no rule of law

that the testimony of a rape victim cannot be acted upon without

corroborating any material particulars. Prosecutrix in a rape case is a

victim and she is not comparable with an accomplice to the crime. Her

status is that of a victim of crime and her testimony is to be

appreciated on the principle of probabilities, just like the testimony of

any other witnesses. Her testimony can be acted upon by the court

without corroboration unless there are compelling reasons which

necessitate looking for corroboration of version of the prosecutrix. The

court should not find any difficulty in acting on the testimony of a

victim of sexual assault to convict the accused when her testimony

inspires confidence. Admittedly, the prosecutrix was a young girl aged

about 09 years at the time of occurrence and the appellant, as per the

case of the prosecution, was an adult. Therefore, it is natural that she

could not have physically resisted him. As such, absence of physical

injuries on her person cannot be taken as a circumstance to negate the

theory of rape. As regards the FSL report Ex.PW8/C, the salwar and

Kamiz of the prosecutrix were sent for analysis and no traces of blood

and semen were found on the same. The absence of traces of blood

and semen on the clothes of the prosecutrix by itself is no reason to

assume that no rape was committed. Section 375 of the Indian Penal

Code defines rape and the Explanation to the said Section provides

that even a slightest penetration constitutes the sexual intercourse

necessary to the offence of rape. From this, it is apparent that to

constitute an offence of rape, it is not necessary for the accused to

have full-blown sexual intercourse resulting in substantial penetration

in the vagina and ejaculation of semen. Therefore, absence of blood or

semen on the clothes of the prosecutrix or the vaginal swab does not

rule out the theory of rape. The prosecutrix has categorically stated in

her examination-in-chief that at the time of occurrence, appellant Luv

Kush came to her. He applied his saliva on his penis and started doing

act with her. She also stated that the appellant had removed her

underwear and she had felt pain in her private part. This version, if

read as a whole, clearly indicates that the appellant had penetrated his

penis in the vagina of the prosecutrix. Further, the version of the

prosecutrix finds corroboration from the testimony of her mother PW2

Meena, who has stated that about 2:30 am, the prosecutrix came

downstairs and knocked at her door and told her that the appellant had

removed her underwear and tried to rape her after applying saliva on

her private part and indulging in the act of coitus. Aforesaid evidence

of PW2 Meena is relevant under Section 8 of the Evidence Act, being

the evidence of the conduct of the prosecutrix immediately after the

occurrence. Thus, it cannot be said that there is no corroboration to

the testimony of the prosecutrix. Under these circumstances, I find no

reason to disbelieve the prosecutrix, who has withstood the test of

cross-examination. Otherwise also, it is highly improbable that the

prosecutrix or her mother would falsely implicate the appellant at the

risk of stigma to the honour of the family and the girl.

17. It is further contended by the learned counsel for the appellant

that the prosecutrix in her complaint Ex.PW3/A and in her statement

under Section 164 Cr.P.C. Ex.PW3/B has stated that the appellant Luv

Kush indulged in "galat kam" with her without elaborating what she

meant by "galat kam." He further contended that even in her

testimony in the court she has stated that the appellant, after

removing her underwear, started doing "an act" with her without

elaborating what she meant by "an act". He argued that she has

nowhere stated in so many words that the appellant penetrated his

penis in her vagina, which is an essential ingredient of rape. Therefore,

it is doubtful whether or not the rape was committed. As such, learned

Additional Sessions Judge ought to have given benefit of doubt to the

appellant.

18. Above contention of learned counsel for the appellant is

misconceived. While appreciating the evidence, court cannot be

oblivious to the social context. In our society, which is not permissive,

"sex" is a taboo and females generally do not talk freely about sex and

sexual intercourse in presence of others. Therefore, the words "galat

kam" used by the prosecutrix with reference to the act committed by

the appellant have been rightly recorded by the learned trial Judge as

rape. Otherwise also, while analysing the version of the prosecutrix, it

has to be read as a whole to infer as to what the prosecutrix meant to

convey by the words that the appellant started doing "an act with her".

Prosecutrix, while narrating the sequence of occurrence, inter alia,

testified as under:

"Lovekush came to me. He applied spit over his penis and started doing an act with me. Lovekush had removed my underwear before doing that act with me. I uttered that I narrate the facts before my mother. At that juncture, Lovekush put cloth in my mouth. Thereafter, Lovekush ran away from there. I felt pain in my private part."

If aforesaid version is read as a whole, it is clear that the appellant, as

per the prosecutrix, applied saliva on his penis for lubrication and then

indulged in an act which caused pain in the private part of the

prosecutrix. From this, it can be safely inferred that the appellant had

actually indulged in penile penetration in the vagina of the prosecutrix,

which is sufficient to constitute the offence of rape.

19. Lastly, it is contended that prosecution story is not reliable for the

reason that the complaint in this case is motivated. In this regard,

learned counsel for the appellant has referred to the statement of the

appellant under Section 313 Cr.P.C. and the testimony of defence

witnesses and contended that actually the mother of the prosecutrix

had an altercation with the appellant in respect of some dispute and

she had threatened him with false implication. Learned counsel

submitted that the FIR in this case is the result of aforesaid altercation

and this inference finds support from the cross-examination of the

prosecutrix wherein she admitted the suggestion that before going to

the Police Station, her mother told her as to what was to be stated

before the police.

20. I do not find merit in this contention. The appellant in his defence

has not clarified the nature of dispute which resulted in aforesaid

altercation. The defence set up by the appellant in his statement

under Section 313 Cr.P.C. is that two days prior to the alleged

occurrence, he had an altercation with the mother of the prosecutrix

and she had threatened him with false implication in some case. As

per the case of prosecution, the occurrence took place on the night

intervening 10th and 11th April, 2006. Thus, if the defence of the

appellant is true, the altercation took place on 8th April, 2006. This

version is not corroborated by the defence witnesses Tulsa and

Chander Kali, who are sisters of the appellant. Both of them are

categoric that the altercation between the appellant and mother of the

prosecutrix took place on 10th day of English Calender month, which is

the night of the occurrence. PW2 Meena has categorically stated that

when the prosecutrix complained to her about rape, she approached

Usha, sister of the accused and complained against the appellant and

on this, Usha tried to defend the accused. The version of DW1 and

DW2 tends to corroborate aforesaid testimony of PW2 Meena because

there is a possibility that when PW2 Meena protested against the

conduct of the appellant, some altercation might have taken place.

Thus, I find no substance in the contention of learned counsel for the

appellant. As regards the plea that the complaint is the result of the

tutoring by the mother of the prosecutrix, it is suffice to say that the

prosecutrix was a young girl of 09 years and if her mother had told her

to narrate the incident to the police at the Police Station, it cannot be

taken as a reason to disbelieve the otherwise reliable version of the

prosecutrix.

21. In view of the discussion above, I find no infirmity in the

impugned judgment and order on sentence which may call for

interference by this Court.

22. The appeal is devoid of merit, accordingly dismissed.

(AJIT BHARIHOKE) JUDGE

JANUARY 31, 2011 pst