Tasleem @ Pappu vs State (Nct Govt. Of Delhi)
2011 Latest Caselaw 1341 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +    CRL.A. No. 69/2007

                                            Reserved on:     13.01.2011
                                            Date of Decision 08.03.2011

IN THE MATTER OF :
TASLEEM @ PAPPU                                              ..... Appellant
                           Through: Mr. Anurag Jain, Advocate

                   versus


STATE (NCT GOVT. OF DELHI)                           ..... Respondent
                    Through: Mr. Navin Sharma, APP for the State


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may           Yes
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?          Yes

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

HIMA KOHLI, J.

1. The present appeal arises out of the judgment of conviction

dated 29.04.2006 and order on sentence dated 01.05.2006, whereunder the

appellant was convicted under Sections 376 IPC in S.C.No. 168/05 arising

out of FIR No. 242/2003 registered with PS Subzi Mandi, Delhi and

sentenced to undergo rigorous imprisonment for a period of 10 years and

pay fine of `3,000/-, in default thereof, to undergo rigorous imprisonment

for a period of 3 months under section 376 IPC and undergo rigorous

imprisonment for a period of 4 years and pay fine of `2,000/-, in default

thereof, to undergo rigorous imprisonment for a period of 2 months under

section 506 part (II) IPC. Both the sentences were directed to run

concurrently and the benefit of Section 428 Cr.P.C. was given to the

appellant for the period already undergone by him during the trial.

2. The incident, subject matter of the impugned judgment,

occurred on 23.09.2003, when, as per the prosecutrix, the appellant, who

was a neighbour, entered her house at 11 am, when she was alone, on the

pretext of borrowing a screwdriver, and bolted the door to her room. He,

thereafter threatened her with a knife picked up from the room itself and

committed rape on her. On 24.09.2003, information of the incident was

given to the police and at 1.55 pm, FIR no. 242/03 under Sections 376/506

IPC was registered at PS Subzi Mandi against the appellant. The appellant

was arrested on the next day i.e. on 25.09.2003. Both the prosecutrix and

the appellant were medically examined and swab slides and clothes were

sent to the FSL for examination.

3. After the investigation was completed, a challan was filed before

the court of the learned MM, who committed the case to the court of

Sessions. Charges were framed against the appellant/accused who pleaded

not guilty and claimed trial. In the trial, 13 prosecution witnesses including

the prosecutrix and her husband, PW-2 were examined. Though an

opportunity was afforded to him, the appellant did not lead any defense

evidence. On an examination of the evidence which came on record, the trial

court arrived at the conclusion that the said evidence was sufficient to hold

the appellant/accused guilty of rape and criminal intimidation and convicted

him for the offences under Sections 376 and 506 (II) of the IPC.

4. Counsel for the appellant commenced his argument by pointing

out that the forensic evidence adduced was wrongly appreciated by the trial

court. He submitted that absence of smegma from the glan penis of the

accused as mentioned in EX. PW-10/B, the report of the doctor who

examined the appellant, was wrongly relied upon by the learned ASJ and the

said fact was not of any significance to show that the appellant had recent

sexual intercourse as it is settled law that any examination of smegma after

24 hours of the incident would be inconsequential. To support his contention,

he placed reliance on the following judgments:

(i) S.P. Kohli (Dr) v. High Court of P&H (1979) 1 SCC 212

(ii) Aman Kumar v. State of Haryana (2004) 4 SCC 379

5. The second argument of the counsel for the appellant qua the

forensic evidence was that even though human semen had been detected on

Ex. 1a and 1b, the vaginal swab slides of the prosecutrix and Ex.5, the

underwear of the appellant, there is still nothing in the FSL Report dated

17.02.2004, Ex. PW-12/D and Ex. PW-12/E, to connect the semen on these

exhibits to the appellant, to establish the crime.

6. It was argued that the learned ASJ had erroneously turned down

the contention of the appellant that he had been falsely implicated in the

rape case on account of a quarrel between him and the husband of the

prosecutrix. It was urged that the trial court overlooked the fact that the

medical evidence in the present case runs contrary to the ocular evidence of

the prosecutrix, to the extent that no injury was found on the body of the

prosecutrix, nor was the presence of semen found on her blouse, petticoat

and socks as per the FSL report (Ex. PW-12/D), even though in her

testimony, the prosecutrix had alleged that after the crime was committed,

the same socks were used by her and the accused for cleaning the semen.

Counsel for the appellant pointed out that there existed several

improbabilities in the testimony of the prosecutrix such as the fact that she

raised no hue and cry on being raped, even though she resided in a thickly

populated building, or her contention that the appellant had held the knife in

one hand and disrobed her with the other hand.

7. It was the contention of the learned counsel for the appellant

that there exists settled law to show that the recovery of the knife Ex. P-1

from the house of the prosecutrix could not be used against the appellant

unless it could be established that there was some connection between the

knife and the appellant, especially when the knife did not bear his

fingerprints and the recovery of the knife was not supported by the recovery

witnesses i.e. PW-2 and PW-9. He argued that the prosecutrix, who

appeared as PW-1, was not examined under Section 164 of the CrPC and no

explanation was offered by the State for not doing so. He also urged that

the delay of one day in filing the FIR was a crucial factor which was

completely overlooked by the trial court. Lastly, counsel for the appellant

adverted to the statements of the prosecutrix (PW-1); husband of the

prosecutrix, Phool Chand (PW-2); neighbour of prosecutrix, Radhika (PW-9)

and, Raj Kumar (PW-13), a recovery witness, who was another neighbour of

prosecutrix and canvassed that the other prosecution witnesses examined by

the State to corroborate the testimony of the prosecutrix had resiled in Court

from their statements as given to the police, such as the neighbour, Raj

Kumar (PW-13) who had earlier made a statement that he had seen the

appellant run away from the scene of the crime, but later on, he had

changed his stand. In the light of the above submissions, it was urged that

the prosecution had not been able to prove the case against the appellant

beyond a shadow of reasonable doubt, and therefore, he was entitled to be

acquitted. It was further submitted that without prejudice to the above

arguments on merit, in case this Court is not inclined to set aside the

judgment of conviction, it may consider modifying the order on sentence by

releasing the appellant for the period already undergone by him, which as

per his nominal roll, was 4 years and 23 days as on 22.12.2009.

8. Learned APP appearing for the State refuted all the arguments

raised by the learned counsel of the appellant and supported the impugned

judgment. He placed reliance on the testimonies the prosecutrix (PW-1);

husband of the prosecutrix (PW-2); Ct. Sheoveer (PW-11); A.S.I Neena

Devi, Investigating Officer of this case (PW-12); and the statement of the

appellant under Section 313 Cr.P.C., to urge that the impugned judgment is

a well-reasoned decision, based on the evidence, including testimonies on

record, and should not be interfered with. He emphasized that there were

no material contradictions in the statement of the prosecutrix and the other

evidence brought on record, was sufficient to corroborate her testimony and

support the conviction of the appellant. On the point of sentencing, he

opposed the prayer of the appellant for reduction of the sentence imposed

on him to the period undergone and stated that in view of the gravity of the

offence, no leniency ought be shown to him.

9. This Court has heard counsels for the parties and perused the

evidence placed on record. There is merit in the first ground taken by the

learned counsel for the appellant to assail the impugned judgment that the

learned ASJ erred in holding that the commission of rape by the appellant on

the prosecutrix found corroboration from the FSL Report by placing reliance

on Ex.PW-10/B, a report prepared by Dr. Parvinder Singh, PW-10, which

indicated that the smegma was absent. In the decision of Aman Kumar

(supra), it was observed by the Supreme Court that examination of smegma

loses all importance after twenty-four hours of the performance of the

sexual intercourse. Hence, reliance of learned ASJ on the FSL report to

corroborate the finding that the sexual act was committed by the appellant,

cannot be validated. However, keeping aside the aforesaid evidence for the

present, the question which arises is whether there was other material

evidence brought on record to indict the appellant. When the remaining

evidence is scrutinized in conjunction with the testimony of the prosecutrix,

this Court finds that there exists sufficient evidence on the record to lead to

the conviction of the appellant. It has been held in a number of decisions

that it is not the law that in every case version of the prosecutrix must be

corroborated in material particulars by independent evidence on record. It is

the quality of the evidence of the prosecutrix, which is material and if the

said evidence is found to be free from blemish and implicitly reliable, then

the conviction can be recorded even on the sole testimony of the

prosecutrix. (Ref: State of Rajasthan Vs. Biram Lal AIR 2005 SC 2327).

10. In the present case, after analyzing the evidence, the learned

ASJ came to the correct conclusion that the substantive part of the

deposition of the prosecutrix, who was examined as PW-1 and her husband,

who was examined as PW-2, could not be demolished in their cross-

examination and further, that the minor discrepancies in their cross-

examination and that of PW-9, which was brought on record, were usual and

natural and did not strike at the root of the matter. A perusal of the

testimony of the prosecutrix bears out the aforesaid position. The

improbabilities in the testimony of the prosecutrix sought to be emphasized

by the learned counsel for the appellant, as for example, failure on her part

to raise a hue and cry at the time of incident, are easily explainable. When

a lady is subjected to rape on a knife point, one is left wondering as to how

it is expected that she would gather the courage in such adverse and fear

inducing circumstances, to raise a hue and cry. In any case, each individual

reacts differently in the same set of circumstances and no uniform yardstick

of action and reaction can be prescribed, by which the prosecutrix's

reactions could be measured. Furthermore, the record reveals that the

incident took place at about 11 AM, when there was no one present on the

floor of the building, where the prosecutrix was residing. Hence, the version

of the appellant that the prosecutrix failed to raise a hue and cry could not

be substantiated due to the absence of independent witnesses. Reliance

may be placed on the Supreme Court judgment referred to by the learned

APP for the State in the case of State of H.P. v. Asha Ram reported as

(2005) 13 SCC 766, wherein it was held as follows:-

"5. ... It is now a well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.

It is also a well-settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given

circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case." (emphasis added)

A similar view has been propounded by the Supreme Court in the cases

Rajinder v. State of H.P. reported as (2009) 16 SCC 69, State of Rajasthan

v. Biram Lal reported as AIR 2005 SC 2327 and Vishnu v. State of

Maharashtra reported as (2006) 1 SCC 283. The case of Karnel Singh v.

State of M.P. reported as (1995) 5 SCC 518, had held that a woman who is

a victim of sexual assault is not an accomplice to the crime and therefore her

evidence need not be tested with the same amount of suspicion as that of an

accomplice and at the most the court should just look for some evidence

which lends assurance to her testimony.

11. Furthermore, there are numerous decisions of the Supreme

Court which lay down that minor discrepancies in the testimony of a witness

would not be so material as to affect the conviction based on such

testimony. In the case of Narotam Singh v. State of Punjab reported as

(1979) 4 SCC 505, in the words of Krishna Iyer, J. (as he then was), it was

held:-

"3. Discrepancies do not necessarily demolish testimony; delay does not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative shortfalls. The "sacred cows" of shadowy doubts and marginal mistakes, processual or other, cannot deter the Court from punishing crime where it has been sensibly and substantially brought home."

A similar view was expressed in the case of Leela Ram v. State of

Haryana reported as (1999) 9 SCC 525, wherein it was held:-

"9. ... There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety.

Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."

In the above context, reliance may also be placed on Sukhdev Yadav

v. State of Bihar reported as (2001) 8 SCC 86 and Shrishail Nageshi

Pare v. State of Maharashtra reported as (1985) 2 SCC 341.

12. As far as the argument of the learned counsel for the appellant

that it could not be established by the prosecution that there was any

connection between the knife and the appellant, is concerned, not much

would turn on this aspect for the reason that even if the knife was not

recovered, it would not have been of much significance as the present case

is one of rape and not of murder. The submission of the counsel for the

appellant that PW-2 had resiled from his statement as far as the recovery of

knife was concerned, is also irrelevant for the same reason and also for the

reason that the remaining evidence of PW-2 remained unchallenged by the

appellant and hence, the rest of his statement could certainly be treated as

reliable.

13. Coming to the argument urged on behalf of the appellant that

there was a delay in lodging of the FIR, the said delay can be satisfactorily

explained in the light of the facts, which have emerged on the record. It

was the case of the prosecutrix that she and her husband had gone to the

Police Station to make a complaint on the date of incident. However, the

police refused to lodge the FIR and they had to return and it was only on the

next day that the FIR was got registered. Hence no blame can be attributed

to the prosecutrix for the delay in registering the FIR. Even otherwise, the

delay of one day in filing the FIR would not materially prejudice the case of

the prosecution. This view is fortified by the observation of the Supreme

Court in the case of Karnel Singh(supra), as follows:-

"7. ... The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false." (emphasis added)

14. The contention of the learned counsel for the appellant that the

case of the prosecution was weakened on account of non-recording of the

statement of the prosecutrix under Section 164 of the Cr.PC, is also devoid

of merits. Non-recording of the statement of the prosecutrix cannot prove

fatal to her case inasmuch as recording of such a statement is the

prerogative of the prosecution and this Court is inclined to agree with the

submission of the learned APP for the State that as a matter of practice,

such statements are usually recorded in cases of the nature, where the

witnesses are very young or likely to turn hostile. Hence, no benefit of non-

recording the statement of the prosecutrix under Section 164 Cr.PC can go

to the appellant. Similarly, absence of any injury on the body of the

prosecutrix is also not of much importance, as it is a settled principal of law

that in cases of rape, injuries to the prosecutrix need not necessarily be

shown.

15. It was further canvassed by the learned counsel for the appellant

that conviction of the appellant could not be based on the serological

evidence produced before the Court. Serological evidence is just one one

piece of evidence, which is brought on the record but expert medical

evidence cannot be treated as binding on the ocular evidence. In the case

of Vishnu v. State of Maharashtra reported as AIR 2006 SC 508, the

Supreme Court held that "......the opinion of the Medical Officer is to assist

the court as he is not a witness of fact and the evidence given by the Medical

Officer is really of an advisory character and not binding on the witness of

fact" (para 21). Similarly in the case of Madan Gopal Kakkad v. Naval

Dubey reported as (1992) 3 SCC 204, the Supreme Court held as follows: -

"34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court." (emphasis added)

In the instant case, the medical evidence adduced may not directly point to

the culpability of the appellant, but is sufficient to corroborate the testimony

of the prosecutrix and the other prosecution witnesses. Furthermore, the

learned ASJ has also placed reliance on the medical evidence only as

corroboratory of the other evidence on record. Even dehors the said

evidence, there is sufficient material on the record to point towards the

culpability of the appellant. Hence, no fault can be found in the approach of

the learned ASJ in this regard.

16. The argument of the learned counsel for the appellant that there

was a previous quarrel between the appellant and the husband of the

prosecutrix due to which, the appellant was sought to be framed by them,

has to be examined in the light of the evidence placed on the record. In the

first instance, the husband of the prosecutrix(PW-2) categorically denied in

his cross-examination the allegation that there was any quarrel between

them, thus corroborating the prosecutrix's statement on this point. This

denial has remained unchallenged by the appellant because the record

reveals that he did not lead any defence evidence on this point. In fact, he

did not enter the witness box to support his case on this point. The

statement of the appellant recorded under Section 313 Cr.PC reveals that he

was specifically asked by the trial court if he would like to lead any defence

evidence but he refused to do so. Further, Ct. Sheoveer(PW-11), who was

a witness to the seizure of the underwear of the appellant, was also not

cross-examined by him. Similarly, WASI Neena Devi(PW-12), who deposed

that the appellant got recovered his underwear which he was wearing at the

time of incident and the same was taken and sealed as Ex.PW-11/B, was

not cross-examined despite an opportunity given to the appellant for the

said purpose. The testimony of the aforesaid witnesses remained unrefuted

and clearly corroborated the testimony of the prosecutrix. In such

circumstances, it is very difficult to accept the contention of the counsel for

the appellant that the appellant had been falsely implicated in the case by

the prosecutrix on account of a quarrel with her husband, relating to a

demand of `200/- for repairing the spectacles of the appellant.

17. There is merit in the submission of the learned APP for the State

that there was no time to create a false case against the appellant for the

reason that on the very next day of the incident, i.e., on 24.09.2003,

IO/WASI Neena Devi, on being informed of the offence, immediately sent a

rukka Ex.PW6/A at 1:53 PM and the FIR, Ex.PW6/B was registered at 1:56

PM. Further, nothing has been brought on the record to indicate that the

police officers investigating the case, were hand in glove with the prosecutrix

only to falsely implicate the appellant as alleged.

18. In view of all the above facts and circumstances, this Court is of

the opinion that the trial court rightly arrived at the conclusion that the

deposition of the prosecutrix itself was sufficient to convict the appellant as

the same was found trustworthy and reliable. Not much would turn on PW-9

and PW-13 having turned hostile, as the depositions of the prosecutrix and

her husband, PW-2 are clearly corroborated from other circumstantial

evidence on the record. In these circumstances, this Court has no hesitation

in holding that the impugned judgment of conviction dated 29.04.2006 does

not deserve to be interfered with as it does not suffer from any illegality,

perversity or miscarriage of justice.

19. As far as the impugned order on sentence dated 01.05.2006 is

concerned, it was argued by the learned counsel for the appellant that if this

Court is not inclined to interfere in the order of conviction, it may consider

releasing the appellant for the period of sentence already undergone by him,

which is less than six years. It was submitted by him that the mitigating

circumstances in his favour are that on the date of the offence, the

prosecutrix was 20 years of age and it is not a case of rape of a minor; that

there was also a remote possibility of consent having been given by the

prosecutrix for the sexual act in the absence of any hue and cry raised by

her. Further, he urged that the background of the appellant, who is a scrap

dealer, may be taken into consideration apart from the fact that the

appellant himself was 20 years of age on the date of incident and was not

mature enough to understand the gravity of the offence, whereas today he

is married and has a wife and family to support. Lastly, it is submitted that

the conduct of the appellant in jail may also be taken into consideration for

showing leniency towards him. In support of his aforesaid submissions, he

relied on the following judgments:-

       (i)        Subrata Roy v. State 93 (2001) DLT 149

       (ii)       Rabu v. State of NCT of Delhi 2005 [1] JCC 330

       (iii)      Ram Milan v. State 2005 [2] JCC 904

      (iv)        Ravinder v. State of MP (2006) 9 SCC 590

       (v)        Jaswinder Singh v. State Crl. App. 36/2007 [DHC]

      (vi)        Zindar Ali Sheikh v. State of W.B. (2009) 3 SCC 761

20. Section 376 IPC has envisaged punishment with rigorous

imprisonment for a term of not less than ten years but which may extend to

life for the offence of rape with a proviso that for adequate and special

reasons to be mentioned in the judgment, sentence of imprisonment may be

imposed of either description for a term of less than ten years. There are

hardly any mitigating circumstances indicated for the appellant to claim

reduction of sentence to less than ten years as imposed under the order on

sentence. The hard facts of the case are that the appellant gained entry into

the house of the prosecutrix, who was a neighbour, residing in the same

building, under a false pretext and thereafter, betrayed her by sexually

assaulting her at the point of a knife. Merely because the appellant has

entered into matrimony during the pendency of the present appeal can

hardly be a ground for him to seek leniency.

21. The court must be mindful of the fact that relaxation of sentence

without keeping in view its impact on the society is likely to have an adverse

effect. Crimes such as sexual assault, kidnapping, dacoity, misappropriation

of public funds and those related to moral turpitude have a serious negative

impact on the society. While imposing appropriate punishment, the Court is

required to keep in view not only the rights of the accused but also the

rights of the victim of the crime and the effect it has on the social order.

Taking a sympathetic view in favour of the appellant by imposing a minor

sentence on him or reducing the sentence to the period already undergone,

in a case like the one at hand, goes against the grain of societal interest. In

the present case, the punishment imposed on the appellant befits the crime.

Merely because the victim is not before the Court to narrate her tale of woe

and anguish, while the appellant seeks to take the plea of mitigating

circumstances which hardly exist, is no ground to show any leniency to the

appellant. There is no such adequate or special reason, shown by the

appellant to seek reduction of sentence. This Court is therefore not

inclined to accede to the alternate prayer of reduction of sentence of the

appellant.

22. In the aforesaid facts and circumstances, the impugned

judgment of conviction and the order on sentence are upheld. The appeal is

dismissed as being devoid of merits.

                                                                    (HIMA KOHLI)
MARCH        8, 2011                                                    JUDGE
pm/rkb