Pardeep @ Sonu vs State (Govt. Of Nct Of Delhi)
2011 Latest Caselaw 1692 Del

*                    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               Crl.A. No.928/2008

%                           Date of Decision: 25.03.2011

Pardeep @ Sonu                                              .... Appellant

                         Through Mr.Ravi Gupta, Sr.Advocate with
                                 Ms.Priyanka Gupta, Advocate

                                   Versus

State (Govt. of NCT of Delhi)                              .... Respondent

                         Through Mr. Lovkesh Sawhney, APP

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE S.L.BHAYANA

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?


ANIL KUMAR, J.

*

1. The appellant has challenged his conviction in Sessions Case

No.123 of 2006, titled as „State v. Pradeep @ Sonu‟, arising from the FIR

No.737 of 2005, under Sections 376/506 Indian Penal Code, PS Okhla

Industrial Area convicting the appellant under Section 376 of the Indian

Penal Code and Section 506 of the Indian Penal Code and sentencing

the appellant to undergo rigorous life imprisonment under Section 376

(2)(f) of the Indian Penal Code and a fine of Rs.5,000/- and in default to

undergo simple imprisonment for two months and simple imprisonment

for two years for offence under Section 506 of the Indian Penal Code.

2. The brief facts to comprehend the case are that on 16th August,

2005 an FIR was registered on the basis of statement made by a minor

girl aged about 8 years, namely Khushbu @ Diksha. She had disclosed

that she lives along with her parents and other siblings in one room in a

rented house bearing No. RZ 57 K, Ist Floor, Gali No.7, Tuglaqabad

Extension.

3. Khusbu @ Diksha was a student of 3rd Class. About 20-22 days

prior to 16th August, 2005 her mother had gone to the village and she

was living along with her father and brother. It was disclosed that she

was sleeping in her room along with her brother on an iron cot

measuring about 4 Ft. x 6 Ft.. Her father was sleeping on the roof. In

the night she felt pain in her private part and she found that the

appellant was lying next to her, between her and her brother, and he

had inserted his figure inside her vagina. When she tried to cry, she was

gagged by the accused by putting his palm on her mouth and thereafter

the accused raped her. When she raised noise, her brother who was

sleeping next to her woke up and switched on the light. When the

brother of Khushbu @ Diksha, namely Pankaj, got up and switched on

the light, the accused asked him to switch off the light and also

threatened them that if they will disclose anything to anyone, he would

kill their father and thereafter, he ran away from there. According to

Khushbu @ Diksha, when her mother came back from the village 20-22

days after the incident , she disclosed the incident to her mother. The

mother of Khushbu @ Diksha disclosed it to father of Khushbu @

Diksha and they went to the Police Station and an FIR No.737 of 2005

dated 16th August, 2005 under Sections 376/506 of the Indian Penal

Code was registered. The appellant was arrested on 16th August, 2005

in presence of the mother and father, namely Smt.Sridevi & Sh.Om

Prakash of the prosecutrix Khushbu @ Diksha. The complainant,

Khushbu @ Diksha was medically examined and slide samples were

also taken and undergarment of the prosecutrix was also taken and the

seizure memo was proved as Ex. PW-1/D during trial after the accused

had not pleaded guilty and the charge was framed against him on 30th

January, 2006.

4. The charge framed against the accused/appellant is as under:-

"That 20-22 days prior to 16th August, 2005 in the night time (time unknown) on the second floor of house No.57 K, Gali No.7, Tuglaqabad Extension, New Delhi you committed rape upon the person baby Khusbu aged about 8 years a minor and thereby you are guilty of an offence punishable under Sections 376 of the Indian Penal Code and within my cognizance.

Secondly that on the above said date, time and place you had criminally intimidated baby Khushbu @ Diksha threatening to kill her father and thereby you are guilty of offence punishable under Section 506 of the Indian Penal Code and within my cognizance."

5. During the trial, prosecution examined 15 witnesses including

the mother of the prosecutrix, Smt.Sridevi PW-1, brother Sh.Pankaj

PW-3, father Sh.Om Prakash PW-4 and other witnesses. The statement

of the appellant was also recorded under Section 313 of the Criminal

Procedure Code.

6. According to the trial court, the testimony of Khushbu @ Diksha,

PW-2 was corroborated by her mother Smt.Sridevi PW-1 and the

statement of Khushbu @ Diksha was also corroborated by her father

Sh.Om Prakash PW-3 and brother Sh.Pankaj PW-4, and by the

statement of Dr.Anupama Bahadur PW-6. The medico legal report

revealed that hymen of the prosecutrix was ruptured and the doctor

opined that it could be a case of sexual assault as the hymen was found

ruptured and uterus was mobile.

7. According to the learned Sessions Judge, the case of rape and

intimidation was conclusively made out against the appellant and

therefore, he convicted the appellant under Sections 376 and 506 of the

Indian Penal Code and sentenced him to undergo rigorous

imprisonment for life for offence under Section 376 and simple

imprisonment for 2 years for offence under Section 506 of the Indian

Penal Code.

8. Learned counsel for the appellant, Mr.Ravi Gupta, Senior Counsel

has very emphatically contended that perusal of the statement of the

prosecutrix recorded under Section 161 of the Criminal Procedure

Code, Ex. PW-2/A recorded on 16th August, 2005; statement recorded

under Section 164 of the Criminal Procedure Code on 18th August,

2005, Ex. PW2/B and the statement recorded before the court as PW-2

unequivocally reflected that the evidence of the prosecutrix is full of

discrepancies and does not inspire confidence. The evidence of the

mother Smt.Sridevi as PW-1 and the father Sh.Om Prakash PW-4 also

did not corroborate the statement of the prosecutrix as their testimonies

are based on whatsoever was allegedly disclosed by the prosecutrix

first to her mother, Smt.Sridevi who had disclosed the same facts to her

husband, Sh.Om Prakash, father of the prosecutrix and therefore, on

the basis of their testimonies, it is rather established that her testimony

is unreliable and discrepancies of the prosecutrix‟s testimony are

further highlighted rather than corroborated. The learned counsel has

also asserted that the testimony of the brother Sh.Pankaj PW-3 is also

unreliable and cannot be believed. The learned counsel has pointed out

various discrepancies in the statement of the prosecutrix and her

brother Sh.Pankaj which according to him in the present facts and

circumstances cannot be termed minor or inconsequential and thus

make their testimonies unreliable.

9. On behalf of the appellant, it is contended that he has been

falsely implicated by the prosecutrix and her brother who were tutored

by their father on account of their father‟s disputes with his father

regarding demand of increase of rent of the room and about the

payment of electricity charges. Learned counsel has pointed out that in

his statement under Section 313 of the Criminal Procedure Code, the

appellant had categorically deposed that prosecutrix and her parents

were tenant of his father for last 10-11 years and the allegation of rape

has been concocted, as there is a dispute between his father and

parents of the prosecutrix in respect of increase of rent of the room and

about the payment of electricity charges. The appellant had deposed

that he never committed any of the acts alleged against him and the

incident as alleged had never happened and is concocted. The appellant

had also disclosed that he had gone out of Delhi on the alleged date to

take `Kanwar from Neelkanth Haridwar' along with the priest Sh. Komal

Pandit of a local mandir of his area and his friends, namely Raj Kamal

Gautam and Sanjay Giri. He deposed that he started from Haridwar on

25th July, 2005 and reached Delhi on 1st August, 2005 and came home

on 3rd August, 2005 after pouring holy water in Mandir on 2nd August,

2005. Learned counsel also relied on an application on behalf of the

appellant under Section 391 of the Criminal Procedure Code for

recording additional evidence being Criminal M.P. No.12605 of 2009

where it was alleged on behalf of the appellant that though he had gone

to Haridwar along with priest Sh. Komal Pandit and his friends, namely

Raj Kamal Gautam and Sanjay Giri, however, those persons could not

be examined as defence witnesses. In the circumstances, it was

contended to permit the appellant to lead the defence evidence of these

persons.

10. Learned counsel for the appellant refuted the CFSL report, Ex.

PW-15/E revealing that underwear of the prosecutrix and cover of Dari

though had spots of semen but group test was inconclusive. It was

contended that the semen sample of the appellant was taken by Ex.

10/A, however, it has not been compared with the semen which was

detected on the underwear of the prosecutrix and on the Dari. Learned

counsel also emphasized that the underwear which was seized from the

accused did not have the semen and even the glass slides of the vaginal

swab of the prosecutrix did not reveal any semen. According to CFSL

report Ex. PW-15/E, test on stained gauze piece remained inconclusive

and in the circumstances, it is contended that it could not be

established conclusively that the semen on the underwear of the

prosecutrix and Dari was of the appellant.

11. On behalf of the appellant, it is also asserted that according to

the testimony of the prosecutrix, she had two underwears which were

used by her alternatively and she used to wash them. According to her

testimony, she had also bleeded on account of alleged rape. In the

circumstances, it is unbelieveable that underwear of the prosecutrix did

not get the blood stain and the alleged semen stain survived even after

about 10-12 wash as she was washing the underwear alternatively and

the alleged incident had taken place 20-22 days prior to the seizure. It

was also pleaded that it is unbelieveable that if the prosecutrix had

bleeded to such an extent that there was blood even in the toilet which

was noticed by an aunty, yet there was no blood either on bed sheet or

on the Dari where allegedly semen was detected. In the circumstances,

it is contended that testimonies of the prosecutrix and her brother are

full of glaring contradictions and the whole incident has been concocted

by parents of the prosecutrix to implicate the appellant who is son of

the landlord with whom they have disputes regarding rent and payment

of electricity charges.

12. Mr.Gupta, learned Senior Counsel for the appellant emphasized

that false charges of rape are not uncommon and the present case is an

instance where the parents of the prosecutrix who is a young girl of 8

years and who is gullible and obedient have made a false charge of rape

in order to get rid of their financial liability.

13. Learned Senior Counsel has also emphasized that even if the

application of the appellant for additional evidence is not allowed and

the defence to prove the motive for false implication is not established it

will be inconsequential, since the prosecution has failed measurably to

prove the charges and in the circumstances, the appellant shall be

entitled for acquittal.

14. On behalf of the appellant, it is also asserted that on an iron

bed which was of the dimension 4 Ft. x 6 Ft., it was not possible for the

appellant to lie between the prosecutrix and her brother without waking

up the brother and even the prosecutrix. Even if, it is believed that he

had inserted his figure in the vagina of the prosecutrix on a bed where

the brother was lying, it was impossible to insert his penis by the

appellant in the vagina of the prosecutrix so as to commit rape on her

without disturbing the brother and waking him. On the basis of the

medical evidence, it is contended that though it reveals that the hymen

was ruptured but there was no bleeding on 16th August, 2005 when the

prosecutrix was medically examined. The learned counsel has

contended that there is no evidence as to when the hymen was

ruptured as the alleged incident is of 20-22 days before 16th August,

2005. In the circumstances, it is contended that the fact that hymen of

prosecutrix was found ruptured, does not establish in any manner that

this must be on account of inserting the finger or finger and penis both

by the accused as other evidence is unreliable and the testimony of the

prosecutrix is unreliable and full of contradictions.

15. The emphasis is also led on the fact that the prosecutrix had

other sibling namely Priyanka, however, all the witnesses are quiet as to

where she was on the said date as the prosecutrix and her family has

only one room in their possession. Since Priyanka is the sister, it is

unbelieveable that the prosecutrix would not reveal the alleged incident

to her. From the plan Ex. PW-15/B, it is contended that it does not

reveal the terrace where PW-4 father was sleeping and the

passage/staircase through which the accused had allegedly come from

the ground floor to the room of prosecutrix. According to the learned

counsel, the plan Ex. PW-15/B does not tally with the statement of the

prosecutrix and her brother Sh.Pankaj PW-3.

16. The appellant has also challenged the CFSL report Ex. PW-15/E

on the ground that author of the report has not been produced. In the

circumstances, the appellant has been deprived of effective cross-

examination of the author of the report and to impeach the report

conclusively.

17. Learned counsel for the appellant, Mr.Gupta, Senior Counsel has

also relied on (2007) 12 SCC 57, Radhu v. State of Madhya Pradesh to

contend that if the evidence of the prosecutrix is full of discrepancies

and does not inspire confidence and if the person who had been

informed about the incident had not been examined and therefore,

there was no corroboration, in such circumstances on the basis of the

uncorroborated evidence, the finding of the guilt cannot be arrived at

though finding of guilt in some cases of rape can be based on the

uncorroborated evidence of the prosecutrix.

18. The pleas and contentions raised on behalf of the appellant are

refuted by the learned Additional Public Prosecutor, Mr.Lovkesh

Sawhney contending inter-alia that the variation in the statement of the

prosecutrix PW-2 under Section 161 of the Criminal Procedure Code Ex.

PW-2/A dated 16th August, 2005, Ex. PW-2/B dated 18th August, 2005

recorded under Section 164 of the Criminal Procedure Code and the

statement recorded in the Court and in the statement of her brother are

minor discrepancies on the basis of which it cannot be held that her

testimony is unreliable. The learned Additional Public Prosecutor

contends that the CFSL report conclusively established semen on the

underwear and Dari in terms of Ex. PW-15/E. He emphasized that no

suggestion was given to the parents of the prosecutrix that he has been

falsely implicated on account of the dispute regarding increase of rent

and non-payment of electricity charges and consequently, the version

given by the appellant cannot be relied on.

19. Mr.Sawhney, learned Additional Public Prosecutor has also

contended that from the testimony of the father, Sh.Om Prakash, it is

apparent that 3rd child Priyanka was not at home and therefore, the

plea on behalf of the appellant that whereabouts of the third child will

cast doubt about the prosecutrix version cannot be accepted. Learned

counsel has relied on (2000) 5 SCC 30 State of Rajasthan v. N.K.- The

Accused, to contend that conviction in case of rape can be based solely

on the testimony of the prosecutrix. It is further contended that if the

Court finds it difficult to accept the testimony of the prosecutrix, it may

seek assurance of her testimony, which may be in the form of

corroboration from other evidence. Reliance was also placed on this

case to contend that the witnesses to whom the incident was narrated if

not produced will not be fatal.

20. Learned Additional Public Prosecutor has also relied on (2002) 5

SCC 745 State of Rajasthan v. Om Prakash holding that if the

testimony of prosecutrix and her relatives and the doctor who had

examined her are found to be trust worthy, convincing and reliable,

non-examination of other witnesses cannot be a ground to reject the

prosecution case. Reliance has also been placed by the prosecution on

AIR 2006 SC 2568 State of Tamil Nadu v. Ravi @ Nehru holding that

even slight penetration is sufficient to constitute rape and emission is

not necessary. It was urged that intercourse means slightest degree of

penetration of the vulva by the penis with or without emission of semen

and it is possible to commit offence of rape without any external injury

to the genital or leave any seminal stains.

21. This Court has heard the learned counsel for the parties in detail

and have also perused the entire trial court record including the

evidence on record. On account of an application of the appellant for

additional defence evidence, this Court has to first decide whether the

appellant is entitled and can be allowed to lead additional defence

evidence of priest Komal Pandit and his friends, namely Raj Kamal

Gautam and Sanjay Giri. Under Section 391 of the Criminal Procedure

Code discretion is vested with the appellate court to take further

evidence in an appeal is an exception to the general rule that an appeal

must be decided on the evidence which was before the trial court.

Therefore, the discretion conferred must always be exercised with

circumspection and for meeting the ends of justice. Additional evidence

should be permitted only when it is the requirement of the Court to

elucidate truth or when interest of justice demands such a course. The

discretion vested in shape of exception, therefore, has to be exercised

in the rarest of rare cases and such exercise must avoid arbitrariness

and must be according to recognized cannons of criminal justice

system. The additional evidence can be permitted at the instance of the

prosecution as well as the defence. It is a known celebrated principle of

law that discretion under this section should not be exercised for the

purpose of filling a gap in the prosecution case when the necessary

evidence was available to the prosecution at the hearing and ought to

have been produced then. Likewise, defence should not also be

permitted to tender such evidence when the evidence in defence was

available to the defence at the hearing of trial and ought to have been

produced then.

22. The word 'necessary' employed in the section does not import that

it is impossible to pronounce judgment without the additional evidence

(AIR 1965 SC 1987). Broadly, the principle to allow fresh evidence in

Appeal can be summarized as under:

i. The evidence sought to be called must be evidence which was not available at the trial;

ii. the evidence must be relevant to the issues;

iii. it must be credible evidence in the sense of being well capable of belief;

iv. the Court will after considering that the evidence to go on to consider whether there might have been reasonable doubt as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial.

The Supreme Court has observed that the provisions of Section

391 of Criminal Procedure Code are akin to provisions contained in

Order 41, Rule 27 of Civil Procedure Code. Rule 27 in fact starts with

the words "no party shall be entitled to produce additional evidence".

Ordinarily, therefore, there is a clear bar for admitting additional

evidence in appeal. Rule, however, in certain cases allows such party to

produce the evidence on the grounds:

i. The first ground is when the trial Court has refused to admit that evidence and

ii. Second is in spite of exercise of due diligence, it was not within knowledge and could not be within the knowledge and could not be produced. The case at hand does not fall in either of the above two categories.

iii. The third ground is when the Court itself finds such evidence and document necessary to pronounce the judgment.

However, if the purpose of the prosecution or the accused is only

to adduce evidence at the appeal stage for the purpose of filling in

lacunae, then such an application must be rejected. This view has been

upheld and followed in these decisions enumerated hereinafter: 2003(2)

ALD (Cri)21,Yogendra Bhagatram Sachdev Vs. The State of

Maharashtra and Shri Shambu Prasad Mishra; 2008 Cri.L.J 970,

Mamatadevi W/o Prafullakumar Bhansli Vs. Vijaykumar Mamraj

Agrawal; (2008) 3 GLR 2566 = MANU/GJ/0407/2008, State of Gujarat

Vs. Maheshbhai Ranchodbhai and Ors., in these cases the accused

persons had made applications under Section 391, requiring the Courts

to take additional evidence by way of examining certain witness or

producing documents, which was not done at the trial stage. The

Courts however, rejected their applications as it was felt that the

application was solely with the intention of improving on the defence.

Since the accused did not prefer to lead the evidence sought to be

produced at appellate stage, during trial though it was available and

could be produced, the accused were not permitted to lead the same by

way of additional evidence under Section 391 of the Code of Criminal

Procedure.

23. In the application for additional defence evidence, being

M.P.No.12605/2009, the only ground disclosed is that the appellant

was unable to defend himself before the trial court and it will be in the

interest of justice to permit the appellant to lead the additional

evidence. Perusal of the trial court record reveals that the appellant was

duly represented by a counsel. If a counsel had represented the

appellant, it has not been explained satisfactorily as to how he was

unable to defend himself before the trial court. This is also not the case

of the appellant that though he had a counsel but counsel had not

appeared or had conducted the trial contrary to his instructions. It is

also not being divulged by the appellant that despite his insistence or

opinion that priest Komal Pandit and his friends, namely Raj Kamal

Gautam and Sanjay Giri be examined, the counsel did not examine

them or made any effort to examine them. The application for additional

evidence is also silent about the availability of these witnesses. No case

has been made out during the trial after conclusion of the statement of

the appellant under Section 313 of the Criminal Procedure Code that

these witnesses which the appellant now seeks to examine, were not

available or not agreeable to come and depose in favour of the

appellant.

24. As considered hereinbefore, section 391 of the Criminal Procedure

Code contemplates that while dealing with an appeal, the Court may

take additional evidence if it thinks the additional evidence is necessary

either by recording itself or directing the Magistrate or Court of Session

to record the additional evidence. In the present facts and

circumstances, this Court is of the opinion that the appellant has not

been able to make out a sufficient cause to allow the appellant to lead

additional evidence. No cogent reasons have been disclosed as to why

these witnesses who are sought to be examined now could not be

examined earlier. In some cases in the interest of justice, the Court on

the basis of the relevancy of the evidence may allow the additional

evidence however, in the present facts and circumstances, this Court is

not inclined to allow the appellant to examine priest Komal Pandit and

his friends, namely Raj Kamal Gautam and Sanjay Giri to depose that

the appellant was not present on the date of incident and had gone with

them to Haridwar to bring holy water as Kanwanria. The application is

therefore, declined.

25. The statement of the prosecutrix recorded under Section 161 of

the Criminal Procedure Code on 16th August, 2005 could be used for

confronting her with the statement made before the Court. Before the

Court the prosecutrix namely Khushbu @ Diksha had deposed that in

2005 one day she was sleeping in the room along with her brother

namely Pankaj and her father was sleeping on the roof. She got up due

to pain at her private part and found that the appellant was lying there

and had entered his finger inside her vagina. When she tried to cry, the

appellant gagged her mouth with his palm and thereafter committed

rape upon her. She also deposed that when she tried to raise noise her

brother woke up and switched on the light. After her brother woke up,

the appellant threatened them that if they will tell anything to anyone

he would kill their father. The relevant examination of the prosecutrix

recorded on 19th July, 2006 is as under:-

"I got up due to pain at my private part and I found that accused Sonu @ Pradeep present in the court today was lying there and he had entered his finger inside my vagina when I tried to cry, accused gagged my mouth from

his palm and thereafter he committed rape upon me. I tried to raise noise. My brother Pankaj woke up and switch on the light. The accused threatened us in case we will tell this fact to anyone he would kill my father and run away."

26. During her cross-examination, she denied the suggestion that on

the bed since her brother was also there, there was no space for anyone

else. She also admitted that there is no door in the staircase which goes

from the ground floor to first floor. She categorically stated that she had

two underwears and she used to change her underwear daily and she

had given one of the underwear after about 20 to 22 days of the

incident, as was demanded by the police official. She also admitted that

switch of the light was towards her side of the bed. She also

categorically deposed that the appellant was lying straight between her

and her brother when she woke up. She also admitted that the

appellant was wearing a knicker and baniyan at that time. She also

deposed that the accused had penetrated her vagina when her brother

woke up and had switched on the light.

27. The prosecutrix in her statement under Section 164 of the

Criminal Procedure Code before the Magistrate, being Ex. PW-2/B

deposed, the English Translation of which is as under:-

"I am 8 years old. I study in 3rd Class. 20-22 days before at night I and my brother Sh.Pankaj were sleeping in the room. Because of pain my eyes opened. Lota son of our landlord was lying next to me. My underwear had been pulled down. That boy Lota had also pulled down his underwear. He put his finger at my place of urination. When I cried , he muffled my mouth with his palm and put

his penis in place of my urination. Because of noise my brother switched on the light. Thereafter, Lota asked to switch off the light. Thereafter, he wore his underwear and paint and went away and while going, he said that if either I or my brother will tell anything to anyone, he will kill my father. I did not tell anything to anyone on account of fear, nor my brother told anything. Later on, the aunty who lives across our room asked me whether I had gone to bathroom. I admitted to her having gone to bathroom. In latrine with my urine I have passed the blood which has been seen by the aunty. The aunty had told my father. My father had told it to my mother. When my mother asked I told her everything. My statement is correct and I have heard it."

28. This is no more res integra that conviction for offence under

Section 376 of IPC can be based on the sole testimony of a victim as

was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in

State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1

SCC 550. However, the testimony of the victim in such cases is very

vital and should be without inconsistencies and should not be

improbable, unless there are compelling reasons which necessitate

looking for corroboration of her statement and the Court finds it

difficult to act on the sole testimony of victim of sexual assault to

convict an accused. In the State of Himachal Pradesh Vs. Gian Chand

(2001) 6 SCC 71, it was held that if the Court finds the evidence

adduced worthy of being relied on, then the testimony has to be

accepted and acted upon though there may be other witnesses available

who could have been examined but were not examined.

29. In Om Prakash (supra) relied on by the learned additional public

prosecutor, the prosecutrix aged eight years had gone to the house of

one S to take buttermilk. When she did not return for a long time, her

mother went to the house and when she opened the door, which was

closed, she found the accused aged 18 years committing rape on her

daughter, who was totally unconscious. On seeing the mother of the

prosecutrix, the accused ran away and the mother lifted her daughter

and brought her back home. As the husband and brother-in-law had

gone to another village, next day a report was lodged with the Police.

The deposition of the prosecutrix was supported by the deposition of

her mother, who had seen the accused raping her daughter. The doctor

who had been examined, however, had found no injury on her body but

on the inner parts of both thighs and at the outer part of the left foot he

had found signs of blood. He had opined that the intercourse was done

with the girl. The doctor had also deposed that according to the opinion

of the lady doctor and the opinion of pathologist and his opinion based

on his own examination of the victim, something had penetrated in her

vagina. In the cross-examination the only thing put to him was that

main examination report of the lady doctor and the other pathologist

was not before him and that the seminal stains were not present on the

clothes and that after the sexual contact, the vagina remained intact.

The High Court had reversed the conviction on the ground of non-

examination of other independent witnesses and had rejected medical

evidence on the ground that since the incident had taken place in the

environment of village, where there were other residential houses, it was

unnatural that the prosecutrix and her mother would not have shouted

and others might not have gathered at the place of incident and that

except the family members, no other witness had come forward to

support the case of the prosecution. The Supreme Court had, however,

set aside the acquittal by the High Court holding that the explanation

for the delay that the father of the prosecutrix and brother-in-law were

not in the village was not unnatural and also the fact that the

girl/prosecutrix was unconscious during the day and the police station

was at a distance of 15 km. In the circumstances, it was held that the

delay in reporting the matter to the police had been fully explained. The

testimony of the doctor was also found to be clear and specific as he

was the author of the report and no grounds were found to discard the

report of the doctor. The Supreme Court also held that conviction of

the offence under Section 376 of IPC can be based on the sole testimony

of a raped victim. However, the sole testimony has to be seen and

scrutinized with the evidence of the parents of the prosecutrix, her

brother and if it is found to be reliable, can be acted upon. In these

circumstances, it was held that there was nothing unnatural for other

villagers not to visit the house of the prosecutrix and conviction could

be sustained on the basis of testimonies of relatives.

30. The Supreme Court, however, cautioned that the evidence of a

child witness is required to be evaluated carefully as the child may be

swayed by what others may tell him or her as the child is an easy prey

to tutoring. Wisdom requires that the evidence of a child witness must

find adequate corroboration before it is relied upon and placed reliance

on State of UP Vs. Ashok Dixit & Anr.(2000) 3 SCC 70. The Supreme

Court in this case had set aside the acquittal by the High Court as the

High Court had not even noticed the testimony of the prosecutrix in the

judgment under appeal.

31. The learned additional public prosecutor has also relied on Ravi @

Nehru (supra) in which case the prosecutrix aged about 5 years while

going to her aunt‟s house along with other children was taken by the

accused to his bed room where prosecutrix‟s underwear was removed

and the accused also removed his pants and placed the prosecutrix on

his lap and pressed his male organ on her female organ. The

prosecutrix cried in pain and on hearing her cry, two persons who were

watching television in the front room of the house, came there and

scolded the accused. When the mother of the victim girl came, she

removed all the clothes, which according to her had contained blood

stains. She also washed her clothes and gave bath to her daughter. In

this case, the High Court had acquitted the accused holding that the

statement of the prosecutrix was not corroborated by the evidence of

the doctor, who examined her as there were no external injuries and

there were no blood stains on her dress nor there was any injury on her

female organ though hymen was ruptured and there was no fresh

bleeding from the private parts. In these circumstances, it was held

that non presence of blood stains on the victim‟s vaginal part and on

her wearing apparel will not make much difference as there was

categorical testimony of her mother and two other witnesses that the

prosecutrix was given bath and her vagina and wearing apparel were

washed before taking her to the doctor. In this case, High Court had

also overlooked the testimony of the doctor who examined the accused

and found a cut/wound at the bottom portion of penis of accused and

who had further opined that such cut/wound was possible only when

the penis was forced into the vagina. The Supreme Court had set aside

the acquittal also on the ground that such stark testimony had not

been considered by the High Court and in the circumstances, evidence

of the prosecutrix was found to be un- impeached and well corroborated

by evidence of other prosecution witnesses. In this case, there was not

even an iota of evidence or even a suggestion that the accused has been

falsely implicated because of animosity or for some other reason.

32. It must be remembered that a decision is only an authority for

what it actually decides. What is of the essence in a decision is its ratio

and not every observation found therein nor what logically follows from

the various observations made in it. The ratio of any decision must be

understood in the background of the facts of that case. It has been said

long time ago that a case is only an authority for what it actually

decides, and not what logically follows from it. It is well settled that a

little difference in facts or additional facts may make a lot of difference

in the precedential value of a decision. Considering the present facts

and circumstances, it may not be necessary to deal with precedents in

detail relied on by the parties in the facts and circumstances of the

present case as the present case is apparently distinguishable from the

fact situation of most of the precedents relied on by the parties. In

Ambica Quarry Works v. State of Gujarat and Ors. and Ambalal

Manibhai Patel & Ors. v State of Gujarat & Ors MANU/SC/0049/1986

the Supreme Court observed:-

"The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."

Similarly in Bhavnagar University v. Palitana Sugar Mills Pvt Ltd

(2003) 2 SC 111 (vide para 59), the Supreme had observed:-

"It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

The Supreme Court in Bharat Petroleum Corporation Ltd. and

Anr. v. N.R.Vairamani and Anr. (2004) 8 SCC 579 had also held that a

decision cannot be relied on without considering the factual situation.

In the same judgment the Supreme Court also observed:-

"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be

read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes."

In Padmasundara.Rao Vs State of Tamil Nadu & Ors, JT 2002 (3)

SC 1, the Supreme Court had held as under:

"There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases."

In Rafiq Vs State of U.P, 1980 4 SCC 262 it was observed as

under:

"The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases."

Circumstantial flexibility, one additional or different fact may

make a world of difference between conclusions in two cases and

disposing of a case by blindly placing reliance on a decision is not

proper.

33. In contradiction to the cases relied on by the learned APP, in the

present case, the testimony of the prosecutrix before Court has major

contradictions and is unreliable and improbable. In her statement

before the Magistrate under Section 164 of Criminal Procedure Code

she was categorical that she had bled to such an extent that when she

went to toilet later on, she had passed blood which was found in the

toilet even by another woman who had been referred to as aunty who

was, however, not examined. If the prosecutrix had bled so profusely,

how there were no blood stains either on her underwear or on the bed

sheet as the alleged act was done on an iron cot of 4ft. x 6ft. where her

brother was also lying and the accused had allegedly also come and lied

in between the prosecutrix and her brother, has not been explained. If

the prosecutrix had only two underwears and she was using them

alternatively and washing them and the underwear was seized by the

police after 20-22 days of the incident, it must have been washed a

number of times before it was given to the police. If there were blood

stains, they must have been washed, if that be so, it is unimaginable as

to how semen stains on the underwear of the victim will remain intact

so as to be detected in the examination by CFSL but no stains of blood

would be found. If the bleeding was so profuse then no stains on the

underwear of the accused, on dari or on the bed sheet creates doubt

about the version of the prosecutrix. The facts of the present case are

quite distinguishable from the facts and circumstances of the cases

relied on by the respondent. In the facts and circumstances and on the

basis of the ratio of Ravi @ Nehru (supra), it cannot be held that the

testimony of the prosecutrix is reliable. In the case relied on by the

respondent, a cut was found on the bottom portion of the penis of the

accused and the hymen of the victim was also found to be ruptured,

though, there was no fresh bleeding from the private parts. In this

case, there was cogent evidence that the accused had taken the victim

to his house and had removed her undergarments and his own

undergarments and had placed the victim in his lap. However, in the

present case, the testimony of the victim is that she was lying on the

bed which was four ft.wide with her brother and it was dark. In a bed

which is four ft. wide where the prosecutrix was lying with her brother,

there would hardly be any space in between the prosecutrix and her

brother for another adult to come and lie down, who is 22 years old,

without disturbing the brother and even prosecutrix, as the testimony

of the prosecutrix is that she woke up, not when the appellant came

and lied in between them but when she felt pain in her private part. On

a bed which is only four feet wide if the accused was lying in between

the victim and her brother and the legs of the victim were closed and

not stretched, it would be difficult for the appellant even to insert his

finger without making such commotion which will wake up not only the

victim but her brother also, who was alleged to be on the same cot.

According to the testimony of the victim the appellant raped her after

inserting his finger and during this time, the brother remained asleep,

cannot be believed in the facts and circumstances. The other factor

which impels us to disbelieve the statement of the victim about her rape

is that on a cot which was 4 feet wide, it would not be possible for the

accused to penetrate her unless the legs of the victims were stretched.

Had the legs of the victim been stretched, there was no way that the

legs of the girl will not hit her brother sleeping on the same cot. The

accused would not have had so much time to stretch her legs and to

mount her and to penetrate her without waking her brother. The

version of the prosecutrix is highly improbable and is full of

contradictions.

34. There are contradictions in the testimony of the brother PW-3

Pankaj and the prosecutrix PW-2 as to what was worn by the appellant

at the time he allegedly inserted the finger in the vagina of the

prosecutrix and thereafter raped her with his male organ. The

prosecutrix, in her statement before the Court had stated that the

appellant was wearing a underwear and a baniyan, when he was lying

down between them. He had already removed his underwear and had

also pulled down the underwear of the victim. After her brother

switched on the light, which light switch was towards the victim, the

appellant wore his knicker and after threatening them left the place.

The brother, however, in his testimony as PW-3, deposed that the

appellant was wearing trousers and he was standing in the room with

his trousers pulled down. He categorically deposed later on that when

he switched on the light, the appellant asked him to switch off the light

and at that time he was standing and he had worn his trousers where

after he threatened them. The Police had rather seized the underwear

of the appellant as Ex. 1 and as per CFSL report, neither any semen nor

any blood was detected on the same. In her statement under Section

161 of Criminal Procedure Code, Ex. PW 2/A, the fact that she had bled

and one aunty had seen some blood in the toilet were not disclosed. The

victim was confronted with the said statement without any plausible

explanation.

35. Even in the site plan, which was exhibited as Ex. PW-15/B,

placement of the room where the alleged incident had taken place and

in the room the position of the iron cot and the switch has not been

shown nor it has been shown as to how the appellant could have come

from the ground floor to the room without opening the door of the room.

This is not disputed that the room where the alleged incident took place

is under tenancy of the family of the victim.

36. The MLC of the victim Ex. PW-6/A also reveals only about the

ruptured hymen and that there was no bleeding. This MLC was done

on 16th August, 2005, almost after 20-22 days and consequently, there

could not be bleeding at that time. In that context, the testimony of the

aunty, who had seen the blood which was passed by the victim as per

her testimony, becomes very material, however who was that aunty has

neither been explained by the victim and her family nor by the

prosecution. Non-examination of that aunty breaks the essential link in

the chain of events as the version of the victim is that on account of the

threat by the appellant to her and her brother that he will kill their

father, they did not disclose anything till the mother of the victim came

back after 20-22 days and then the victim had revealed the incident to

her. The other version is that the victim had told about bleeding to the

aunty after it was observed by her in toilet and the aunty had disclosed

this to her father. If the aunty who had not been examined and whose

particulars have also not been disclosed had divulged it to the father,

why did he not immediately take any action to find out as to how his

younger daughter had bled or tried rendering some medical assistance

to her, makes the entire version of the prosecution extremely doubtful.

37. The father Om Prakash, PW-4, rather in his testimony, admitted

that the lady had told him about the blood in the latrine but he did not

pay any heed to this on the premise that the blood in the latrine may be

of any person who had come to the latrine. Meaning thereby that he

was not told by the lady that the blood was of his daughter but that

there was blood in the latrine, which is contrary to the testimony of the

victim who categorically stated in her statement under Section 164,

Criminal Procedure Code that on seeing the blood in the latrine, aunty

had asked the victim about her bleeding and she had told it to Om

Prakash, father of the victim. According to PW-1 Smt. Sridevi, the

incident was told by the daughter to her, whereas according to the

victim after the aunty had disclosed about the bleeding of the victim to

the father Om Prakash, he had told to his wife PW-1 Sridevi when she

came back from her mother‟s house where after the mother asked the

details from the victim, PW 2 Diksha. This inherent contradiction

makes the version of the prosecution unreliable and does not prove the

guilt of the appellant conclusively.

38. Though the learned counsel for the state, Mr. Sawhney, has

contended that the third sibling, sister of the prosecutrix Diksha,

namely, Priyanka, was out according to the statement of PW-4,

however, no such fact had been deposed by Sh. Om Prakash in his

statement recorded on 10th April, 2007 or in his cross-examination.

This is not the case of the prosecution that the sister Priyanka of the

victim had gone with the mother to her grandmother‟s house nor it is a

case of the father that she was sleeping with him on the roof. In the

facts and circumstances, no explanation as to where Priyanka was

sleeping or where she was at that time, as the family of the victim has

only one room under their tenancy, also casts doubt about the version

of prosecution.

39. Though, the learned counsel for the State has relied on N.K.- The

Accused (supra), in support of the contention that failure of the

prosecution to produce the witness to whom the victim had narrated

her story after rape is not fatal, however, the facts and circumstances of

that case are completely distinguishable. In the case relied on by the

learned public prosecutor, the victim after the rape, when blood was

oozing from her private part and accused having left her alone, the

victim while weeping had narrated the incident to a woman and to her

father in quick succession. The statement of the father to whom the

facts were narrated in succession along with other lady, was recorded

which had corroborated the version of the prosecutrix and the other

person to whom the incident was narrated in quick succession, the

another lady was not examined and it was held that non-examination of

the another lady is not fatal. However, in the case of the present

appellant, the prosecution version is not that the fact of bleeding was

either disclosed by the victim to her father PW-4 or the father had been

told about it by the victim. Rather there are two versions that on the

date of incident, an aunty had told it to father who had told about it to

his wife, mother of the victim when she came back from the village and

the other version is that the victim had told her mother about the

incident when she came back after 20-22 days from her mother‟s

house.

40. The version of the mother PW-1 Smt.Sridevi is that when she

came back after 20-22 days, the prosecutrix Khushbu @ Diksha

disclosed to her and she disclosed to the father of the prosecutrix

whereas the prosecutrix version in her statement before the Magistrate

under Section 164 of Criminal Procedure Code is that the aunty who

had not been examined, had noticed the blood in the toilet and had

confronted the victim with it and she had admitted and disclosed to the

aunty that in latrine with urine she had passed the blood which fact

was disclosed and told by the aunty to the father and thereafter, the

father told this to his wife, mother of the victim who after 20-22 days

found out further details on returning back from her mother‟s house.

Though, the father had tried to say that he thought that the blood

would be of some other person, however, his statement cannot be

believed in view of the categorical statement of the victim that the

aunty, who had not been examined, had told her father that it was the

victim, who bled, which blood was found by her in the toilet. If the

father had been told about bleeding of his daughter, why did he not

take steps or any action or found out from the victim or his son the

reason for it, makes the version of the prosecution improbable and not

reliable. Why the father Om Prakash, PW 4 waited for 20-22 days for his

wife to return has not been satisfactorily explained. Had Sh. Om

Prakash talked to his daughter and son and had they not divulged

anything to him on account of threat given to them by the accused, it

would have been different. But the prosecution version that he did not

even talk to his daughter and son, makes the whole version highly

suspicious. In the circumstances, it will not be safe to convict the

appellant on the basis of the testimonies of the victim and her father

which have major contradictions. Though, the sole testimony of the

victim can be sufficient in some cases, for inculpating an accused,

however, if there are inherent contradictions in the testimony of the

victim and her parents and a very relevant witness is not examined, sole

testimony cannot be made the basis for establishing the case of the

prosecution beyond reasonable doubt.

41. In the case of Radhu(supra), the Supreme Court had held that the

false charges of rape are not uncommon and in some cases parents do

persuade gullible or obedient daughter to make false charge of rape

either to take revenge or extort money or to get rid of financial liability.

The Supreme Court had cautioned against false cases. In this case the

evidence of the prosecutrix is full of discrepancies and improbalities and

does not inspire confidence. There are clear discrepancies in the

evidence of mother and the father and the brother of the victim. The

aunty who has disclosed about bleeding by the victim on account of the

incident had not been examined. In the facts and circumstances the

sole testimony of the victim is not sufficient to convict the appellant.

Taking the statement of the victim PW-2 Diksha, her mother, her

brother and her father, it is apparent that there are major discrepancies

and in the opinion of this Court, their testimonies do not inspire

confidence. The aunty who had noticed the blood in the toilet had

confronted the victim PW-2 Diksha and had come to know that it was

she, who had bled leading to blood in the bathroom, she had even

intimated the father Sh. Om Prakash, yet the father has given an

entirely different version. An iron cot of 4ft. x 6ft., on which the alleged

incident of inserting the finger in the vagina of the minor girl and

thereafter raping her on the same cot was highly improbable without

the brother even getting disturbed. In the facts and circumstances on

the basis of testimony adduced by the prosecution the appellant cannot

be inculpated. Since the version of the victim is disbelieved, it also

cannot be believed that the appellant had threatened the victim and her

brother so as to commit the offence under section 506 of Indian Penal

Code.

42. Though, the appellant had stated in his statement under Section-

313 of the Criminal Procedure Code about the motive for false

implication, i.e., to dissuade his father from claiming enhancement of

rent and also to avoid the liability for electricity charges, it has not been

established. However, failure of defence to prove motive for false

implication will be inconsequential as the prosecution has failed to

prove the charges as was also held by the Supreme Court in the case of

Radhu (supra).

43. The inevitable conclusion in the facts and circumstances is that

the respondent has failed to make out charges against the appellant

beyond reasonable doubt. On the basis of evidence on record the

appellant cannot be convicted under Section 376 and 506 of the Indian

Penal Code. In the circumstances the appeal is allowed and conviction

and sentence imposed upon the appellant by the session Court in

Sessions Case No.123 of 2006, titled as „State v. Pradeep @ Sonu‟,

arising from the FIR No.737 of 2005, under Sections 376/506 Indian

Penal Code, P.S. Okhla Industrial Area convicting the appellant under

Section 376 of the Indian Penal Code and Section 506 of the Indian

Penal Code and sentencing the appellant to undergo rigorous life

imprisonment under Section 376 (2)(f) of the Indian Penal Code and a

fine of Rs.5,000/- and in default to undergo simple imprisonment for

two months and simple imprisonment for two years for offence under

Section 506 of the Indian Penal Code are set aside. The appellant shall

be set free forthwith if not required in any other case. Copy of this

order be also sent to the concerned detaining authorities forthwith.

ANIL KUMAR, J.

S.L.BHAYANA, J.

March 25, 2011.

vk/rs