Dalip Chaudhary @ Lambu vs State (Nct) Of Delhi
2013 Latest Caselaw 572 Del

$~R-6
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    DECIDED ON : 6th February, 2013

+                        CRL.A.1045/2006

       DALIP CHAUDHARY @ LAMBU           ....Appellant
                Through: Mr.Deepak Vohra, Amicus Curiae.

                               versus


       STAE (NCT) OF DELHI                          ...Respondent

                      Through :         Ms.Fizani Husain, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Open Court)

1. The present appeal is directed against the impugned judgment dated 28.02.2006 and order on sentence dated 01.03.2006 in Sessions Case No.56/2005 arising out of FIR No.78/2005 registered under Section 376 IPC PS Shakarpur by which appellant- Dalip Chaudhary @ Lambu was convicted and sentenced for committing offence punishable under Section 376 IPC.

2. Allegations against the accused were that on the night intervening 29/30.01.2005 at about 01.00 A.M. he committed rape upon the prosecutrix 'X' (assumed name) against her wishes and threatened to kill her. When her husband confronted the accused next day, he caused injuries to him and the prosecutrix 'X' and fled the spot. The prosecution examined as many as nine witnesses in support of its case. In the

statement under Section 313 Cr.P.C., the accused pleaded false implication and stated that he had advanced a loan of ` 3,500/- to the prosecutrix and her husband. When he demanded the amount, they falsely implicated him in this case. On appreciating the evidence and considering the rival contentions of the parties, the Trial Court by the impugned judgment convicted and sentenced the accused. Being aggrieved, the appellant has challenged the conviction.

3. Counsel for the appellant urged that the Trial Court fell into grave error in relying upon the testimony of PW-1 (X) and PW-2 (Rajesh) who were interested witnesses. There is delay in lodging the First Information Report. The prosecutrix did not raise alarm at any stage. She was a consenting party and when her husband came to know about it, the prosecutrix falsely implicated the accused.

4. Learned APP has argued that there is no reason to disbelieve the prosecutrix who reported the incident to her husband soon after the occurrence.

5. I have considered the submissions and have examined the record. It is not disputed that the appellant resided in vicinity of the prosecutrix. In her statement Ex.PW-1/A lodged by her to police at the first instance, 'X' gave a detailed account as to how and under what circumstances the accused had committed rape upon her on the night intervening 29/30.01.2005 at 01.11 A.M. She further disclosed that when her husband confronted the accused in the morning, he fled the spot causing injuries to them. In her statement recorded under Section 164 Cr.P.C. (Ex.PW-1/B) on 04.02.2005, she reiterated her version and named the assailant to be the perpetrator of the crime. In her deposition before the

Court, she stated that on the night intervening 29/30.01.2005 at 01.00 A.M. she was present in her jhuggi. The accused came there and took her to his jhuggi and committed rape on her person against her will and consent. The accused had threatened that he would kill her husband if she did not accompany him. When she tried to raise alarm, the accused closed her mouth by placing his hand upon it. In the cross-examination, she denied that the accused was falsely implicated as he had given money to her husband. The accused has not denied the sexual intercourse with the prosecutrix. His contention is that it was with her free consent and when her husband came to know about it, he was falsely implicated in this case. This defence of the accused does not inspire confidence as no such plea was taken by the accused during the course of the trial. Contrary to that, he alleged that he was falsely implicated when he demanded ` 3,500/- advanced by him as loan. The prosecutrix, a married lady, having two kids can't be imagined to level false allegations to avoid payment of ` 3,500/- only and to bring herself in disrepute in the society. PW-2 (Rajesh) corroborated her testimony and deposed that on 30.01.2005 when he returned from his duty, her wife disclosed the incident to him. In the absence of any material inconsistency or discrepancy, there are no good reasons to discard the testimony of the prosecutrix which needs no corroboration. The accused put contradictory version to the witnesses about the money advanced by him. In the cross-examination of PW-1 (X), he did not put that he had advanced a loan of ` 3,500/- to her husband. Rather he stated that he was falsely implicated when he refused to give money to her husband. In the cross-examination PW-2 (Rajesh) denied if he had borrowed any money from the accused. No suggestion was put to

him if ` 3,500/- were advanced to him as loan and if so, when and by what mode. In his 313 Cr.P.C. statement, the accused alleged that he had given a loan of ` 3,500/- but did not elaborate as to when it was given. He did not examine any witness in defence to support his defence. Conviction under Section 376 IPC is based upon fair appraisal of the evidence.

6. Regarding order on sentence, the appellant was sentenced to undergo RI for 7 years. It is minimum sentence. It reveals that he has already undergone the sentence awarded to him by the Trial Court. Report has been received from jail informing that the appellant has since been released on 12.01.2011 on completion of the sentence and the fine has been paid by him. The appellant had filed present appeal in December, 2006 but it could not be taken for hearing. Though the appellant was having an amicus curiae appointed by the Legal Aid Cell none appeared for most of the dates. It was not brought to the notice of the Court that the appellant was released in 2011. Order on sentence requires no modification.

7. The appeal filed by the appellant stands disposed of in the above terms.

8. Trial court record be sent back forthwith.

(S.P.GARG) JUDGE

FEBRUARY 06, 2013 tr