Feroz vs State (Govt. Of Nct Of Delhi)
2011 Latest Caselaw 1538 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment delivered on: March 17, 2011

+      CRIMINAL APPEAL NO. 82/2008

       FEROZ                                       ....APPELLANT
                  Through:   Mr. Zafar Sadique, Advocate.

                       Versus

       STATE (GOVT. OF NCT OF DELHI)          ....RESPONDENT

Through: Mr.Sunil Sharma, 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.(ORAL)

1. This appeal is directed against the impugned judgment of

learned Additional Sessions Judge dated 04.10.2007 in Sessions

Case No.93/2006 FIR No.743/05 P.S. Patel Nagar under Sections

376/342/506/34 IPC as also consequent order on sentence dated

10.10.2007 whereby the appellant Feroz, for the offence under

Section 376 IPC, has been sentenced to undergo RI for the period of

07 years, besides fine of `20,000/-, in default to undergo SI for

further period of two years and for the offence under Section 342

IPC to undergo RI for the period of one year as also for the offence

under Section 506 IPC to undergo RI for the period of one year. It is

ordered that the substantive sentences shall run concurrently.

2. Briefly stated, case of the prosecution is that on 20.12.2005 at

about 3:00 pm when the prosecutrix was coming to home after

attending her stitching classes, she met accused Sonu, resident of

WZ 68, Shadi Pur, Ranjeet Nagar. Sonu took her to her house and

made her sit there and left on the pretext of fetching medicine.

While going out of the house, Sonu bolted the door from outside.

Appellant Feroz was already present in the rear room. He came to

the room where the prosecutrix was sitting and closed her mouth.

Thereafter, he forcibly committed rape on the prosecutrix. On

hearing the alarm of the prosecutrix, her uncle Net Ram reached at

the place of occurrence and rescued her. The matter was reported

to the police. The police recorded the statement of the prosecutrix

Ex.PW2/A, which formed basis for registration of the case. During

investigation, prosecutrix as well as the appellant were got

medically examined. Clothes of the prosecutrix were seized and

subsequently sent to FSL for chemical examination. Statement of

the prosecutrix under Section 164 Cr.P.C. was also recorded. Her

bone ossification test was done for verification of age. Her school

leaving certificate was also seized. On completion of investigation,

the appellant as well as his co-accused Sonu were challaned and

sent for trial.

3. The appellant was charged for the offences under Sections

342, 376 and 506 IPC, whereas his co-accused Sonu was charged for

the offences under Section 342 and 376 read with Section 109 IPC.

Both the appellant and his co-accused pleaded not guilty and

claimed to be tried.

4. In order to bring home the guilt of the appellant and his co-

accused, prosecution examined 18 witnesses including the

prosecutrix.

5. Prosecutrix was examined as PW1. She, in her evidence, has

supported the case of prosecution by stating that on 20.12.2005 at

about 3.00 p.m., while she was returning from stitching classes, she

met Ms.Sonu, co-accused of the appellant, who took her to her

house and made her sit there. After some time, she left the house

on the pretext of fetching medicine and while leaving, she bolted the

door from outside. Two minutes later, the appellant Feroz came

from the rear room and tried to molest her. She screamed but Feroz

committed rape on her after removing her clothes. She further

stated that her `chacha' (uncle) came there on hearing the alarm

and rescued her. But, by that time the accused had already raped

her. She stated that matter was reported to the police. Police

recorded her statement Ex.PW1/A and also sent her for medical

examination.

6. PW2 Shakuntala is the mother of the prosecutrix. She has

stated that on 20.12.2005, she heard a noise in the gali and she was

informed by her brother-in-law Net Ram that the prosecutrix had

been confined by Pushpa @ Sonu. On this, she rushed to the spot

and her daughter i.e. the prosecutrix told her that she was taken by

Pushpa to her room where she was raped by the appellant Feroz.

Appellant Feroz was also present at the spot at that time.

7. PW3 Netram is the uncle of the prosecutrix. He has also

supported the prosecution story by saying that on 20.12.2005 at

about 3.00 p.m., he found the crowd outside House No.WZ-68. He

was told that some child was confined inside. He peeped inside the

window and found the prosecutrix there who was crying and

screaming. On this, he opened the door which was bolted from

outside and the prosecutrix clinched to him and started crying.

8. Statement of the appellant under Section 313 Cr.P.C. was

recorded. He claimed that he has been falsely implicated because

of a dispute between his father and Net Ram, uncle of the

prosecutrix who used to threaten his father for vacating the house.

He denied the prosecution evidence in toto and claimed that he has

been falsely implicated after picking him up from his house.

9. Learned Additional Sessions Judge, on consideration of the

evidence on record, believing the version of the prosecutrix found

the appellant as well as his co-accused Sonu guilty of charges. The

appellant was convicted for the offence punishable under Section

342/376 and 506 IPC vide impugned judgment and sentenced vide

order dated 10.10.2007.

10. Learned Sh. Zafar Sadique, Advocate appearing for the

appellant contended that appellant has been falsely implicated in

this case at the behest of Net Ram, uncle of the prosecutrix, who

had a property dispute with the father of the appellant. Learned

counsel argued that case of the prosecution rests solely on the

testimony of the prosecutrix, which is not worthy of reliance.

Elaborating on the argument, learned counsel for the appellant

submitted that the prosecutrix in her testimony claims that after co-

accused of the appellant Sonu left the house, appellant Feroz came

from the rear room and tried to put his hand on her mouth. On this,

she started screaming but Feroz committed rape on her against her

consent after removing her clothes as well as his clothes. Learned

counsel urged that this version of the prosecutrix is highly improbable

for the reason that if the prosecutrix was resisting rape and shouting,

the appellant would not have wasted time in removing the clothes of

the prosecutrix. Learned counsel further argued that in the cross-

examination, the prosecutrix stated that her clothes were torn. This

version, according to the learned counsel for the appellant, runs

counter to the earlier version of the prosecutrix and makes her

testimony unreliable. It is also contended that if at all, the prosecutrix

resisted the rape, there should have been some tell tale signs of

struggle on the person of the prosecutrix or the appellant but the MLC

of the appellant as well as the prosecutrix tells a different story.

Learned counsel has referred to the MLC of the appellant (Ex.PW10/A)

as well as MLC of the prosecutrix (Ex.PW4/A/Ex.PW12/A) in support of

his contention. Thus, learned counsel summed up that in view of the

aforesaid contradictions in the testimony of the prosecutrix, which is

not corroborated by the medical evidence, the Trial Court ought not

have relied upon her testimony and he should have at least given

benefit of doubt to the appellant. In support of his contention,

learned counsel for the appellant has relied upon the judgment of

Supreme Court in Radhu Vs. State of Madhya Pradesh, 2007 (II)

SCALE 96 and judgment of this court in Virender Vs. The State of

NCT of Delhi, 2009 (4) JCC 2721.

11. Before adverting to the submission of learned counsel for the

appellant on merits, it would be useful to have a look on the judgments

relied upon by the appellant.

12. In Radhu Vs. State of Madhya Pradesh (supra), the Supreme

Court while dealing with the testimony of the prosecutrix in a rape case

inter alia observed thus:

"5. It is now well settled that a finding of guilt in case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroboration evidence. The evidence of the prosecturix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a „rape‟, if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts, should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case".

In the matter of Virender Vs. The State of NCT of Delhi (supra),

learned Single Judge of this Court has reiterated and followed the

above referred judgment.

13. On reading of the above judgments, it is clear that in a rape case,

there is no legal bar to return a finding of guilt on the basis of

uncorroborated evidence of the prosecutrix. This, however does not

mean that the court is bound to rely upon the testimony of the

prosecutrix. Before returning a finding of guilt, the court is under

obligation to carefully scrutinise the testimony of the prosecutrix and if

it is found reliable, then only, a finding of guilt can be returned without

seeking corroboration from extraneous factors.

14. Thus, main question for determination is whether the testimony

of the prosecutrix inspires confidence. In the instant case, prosecutrix

has supported the case of prosecution on material aspects. In her

testimony in the court, the prosecutrix stated that co-accused Sonu

had locked her inside her (Sonu) house by bolting the door from

outside while leaving. She and the appellant were alone in the

house, therefore, if she succumbed to the overtures of the appellant

without giving much resistance, it will not absolve the appellant of

rape if he had actually committed the rape. Perusal of the MLC

Ex.PW4/A of the prosecutrix reveals that prosecutrix was sent for

medical examination on the same night at 08.00 p.m. and on

medical examination, the doctor concerned found a linear abrasion

3 c.m. long present on volar aspect of forearms. Besides this, the

Gynaecologist also found that hymen of the prosecutrix was torn.

Torn hymen as well as abrasion on forearms indicates a possibility of

rape on the prosecutrix, particular when, the prosecutrix, as per her

Birth Certificate (Ex.PW13/A) was only 16 years & 3½ months old.

Further PW2 Shakuntla has corroborated the version of the

prosecutrix by stating that on 20th December, 2005, she heard a

noise in the „gali' and she was informed by her brother-in-law

(devar) Netram that her daughter was confined by Pushpa @ Sonu.

On this, she rushed to the house of Pushpa and found the

prosecutrix there, who told her that she was called by Pushpa to her

room and thereafter in the said room, appellant Feroz forcibly raped

her. This version of the prosecutrix given to her mother is evidence

relating to her conduct after the occurrence, which is relevant under

Section 8 of the Evidence Act and gives an assurance that the

prosecutrix is telling the truth.

15. Further, the stand taken by the appellant is that he has been

falsely implicated by the prosecutrix at the instance of her uncle

Netram because there was a property dispute between Netram and

the father of the appellant. It is highly improbable that a young lady

would put her honour as well as honour of her family at risk by

making allegation of rape against someone to settle a minor score.

Thus, under the circumstances, I find no reason to disbelieve the

testimony of the prosecutrix and I am of the considered view that

learned Additional Sessions Judge has rightly relied upon the

testimony of the prosecutrix, which is corroborated not only by her

mother but also by the medical evidence. It may not be out of place

to mention that as per the noting in the MLC of the prosecutrix, her

underwear was seized by the police. It was sent during investigation

for CFSL examination and as per the report of CFSL, the underwear

gave positive test for presence of human semen. This circumstance

also corroborates the testimony of the prosecutrix regarding rape.

16. Learned counsel for the appellant has further referred to the

judgment of Supreme Court in the matter of Aman Kumar &

Another Vs. State of Haryana, 2004 SCC (Cri) 1226 and

submitted that in order to bring home the guilt of the appellant and

the charge of rape under Section 376 IPC, there ought to have been

a clear evidence of penile penetration in the vagina of the

prosecutrix. Learned counsel submits this is missing in the FIR as

well as the statement of the prosecutrix under Section 161 CrPC and

even in her testimony in the court, prosecutrix has vaguely stated

that she was raped by the appellant but she is not specific whether

or not, there was penile penetration. Even the MLC does not

specifically record that there was any evidence of rape or recent

sexual activity.

17. I am not convinced with this argument. Perusal of the FIR

would show that prosecutrix has categorically stated "Iske baad

Feroz ne mera marzi ke bagair mera muh dabakar zabardasti mere

saath sharirik sambandh banaye". In my considered view, this

version itself is sufficient to mean that Feroz actually had sexual

intercourse with the prosecutrix. Even in the statement under

Section 164 Cr.P.C., prosecutrix stated before the Magistrate that

the appellant tried to kiss her. He tore her clothes and placed

himself upon her despite her resistance. No doubt, in the aforesaid

statement, she has not mentioned about penile penetration in so

many words but the words used by her convey the meaning that she

was actually raped. In her testimony on oath, prosecutrix has

categorically stated that she was raped by Feroz, therefore, there is

no doubt in my mind that it is a case of penile penetration,

particularly when, semen traces were found in the underwear of the

prosecutrix and her hymen was found torn.

18. Learned counsel for the appellant has lastly submitted that

sentence of seven years awarded to the appellant in the given facts

and circumstances of the case is too harsh. Learned counsel

submitted that at the time of the incident, the appellant was aged

between 18 to 19 years. He has his whole life ahead of him and he

deserves at least a chance to correct himself and prove to be a

useful member of the society.

19. Section 376 provides that whosoever commits rape shall be

punished with imprisonment for a term which shall not be less than

seven years but which may extend to life or for a term which may

extend to ten years. Proviso to this section provides for an

exception that court may, for adequate and special reasons in the

judgment, impose sentence of imprisonment for a period of less

than seven years.

20. The prosecution has been able to establish that prosecutrix

was induced by the co-convict Ms.Sonu to visit her house and

thereafter she was confined in the house of Sonu, who bolted the

main door of the house from outside while leaving on the pretext of

fetching medicine. Thereafter, the appellant came from the rear

room and raped the prosecutrix. From this, it is evident that

prosecutrix was raped pursuant to a pre-conceived plan between the

appellant and his co-accused Ms.Sonu. In view of the above factual

matrix, this is not a fit case for showing indulgence to the appellant

by awarding him sentence of imprisonment for a term of less than

seven years with the aid of proviso to Section 376 IPC. The plea for

reduction of sentence is, therefore dismissed.

21. In view of the discussion above, I do not find any infirmity in

the impugned judgment of conviction, which may call for

interference in appeal.

22. Appeal is accordingly dismissed.

(AJIT BHARIHOKE) JUDGE MARCH 17, 2011 akb