Pardesi vs State Of Delhi
2013 Latest Caselaw 761 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 29th January, 2013
                               DECIDED ON : 15th February, 2013

+                        CRL.A.683/1999

      PARDESI                                        ....Appellant
                   Through :    Mr.K.B.Andley, Sr.Advocate with
                                Mr.M.Shamikh, Advocate.

                                versus

      STATE OF DELHI                                  ....Respondent
               Through :        Mr.M.N.Dudeja, APP.

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

S.P.GARG, J.

1. The present appeal is directed against the judgment dated

29.11.1999 and order on sentence dated 30.11.1999 in Sessions Case

No.63/1996 arising out of FIR No.175/88, PS Gandhi Nagar by which the

appellant- Pardesi was convicted under Section 376 IPC and sentenced to

undergo RI for seven years with fine ` 4,000/-.

2. Allegations against the accused were that on 21.07.1988 at

about11.00 P.M. at House No.213, Ghas Mandi, Gandhi Nagar, he

committed rape upon „X‟ (assumed name), aged about 11 years. The

prosecution examined eight witnesses. In his 313 Cr.P.C. statement, the

accused pleaded false implication. He examined DW-1 (Munna Lal) in

defence. On appreciating the evidence and considering the rival

contentions of the parties, the Trial Court, by the impugned judgment

convicted the accused and sentenced him. Being aggrieved, the appellant

has preferred the appeal.

3. Contention of the learned Senior Counsel for the appellant is

that the Trial Court did not appreciate the evidence in its true and proper

perspective and fell into grave error in relying upon the testimonies of the

prosecutrix and her mother without corroboration. The accused was

falsely implicated in this case as he had objected sale of liquor by the

prosecutrix‟ mother in the house. Counsel pointed out that the accused

was arrested vide Daily Diary (DD) No.6A dated 22.07.1988 and a

„Kalandra‟ under Sections 91/93/97 Delhi Police Act was prepared on

22.07.1998. He was produced before the Court of Metropolitan

Magistrate, and was directed to deposit a fine ` 100 each under the said

Sections. Subsequently, in connivance with the police, a false case was

registered under Section 376 IPC. He further pointed out that in the MLC,

no fresh injuries were noticed on the body of the prosecutrix. There was

no fresh tear in the hymen. Learned APP urged that the statement of the

prosecutrix „X‟ needs no corroboration. In the MLC of the prosecutrix,

hymen was found torn.

4. I have considered the submissions of the parties and have

examined the record. The First Information Report (Ex.PW-1/A) was

recorded on the statement of the prosecutrix by PW-2 (ASI Ishwar Singh),

Duty Officer. He deposed that he recorded formal FIR 175/1988 vide

Daily Diary (DD) No.13A at about 07.00 P.M. on 22.07.1988 when the

prosecutrix „X‟ along with her mother came to the Police Station.

Thereafter, the prosecutrix was sent for medical examination. The

investigation was assigned to SI Devi Dayal. In her statement, the

prosecutrix gave detailed account as to how and under what

circumstances, the accused committed rape upon her at 11.30 P.M. on

21.07.1988 when she was alone and her mother and sisters had gone to

watch a movie. The incident took place on 21.07.1988 and it was reported

to the police next day at about 07.00 P.M. There was no inordinate delay

in lodging the First Information Report with the police.

5. Testimony of PW-1 „X‟ is very crucial. She was a child

victim aged 11 years. In her deposition before the Court, she stated that on

the day of incident, her mother and sisters had gone to mandi for selling

grass. At about 11.00 P.M. when she was sleeping in the courtyard of her

house, the accused came to her bed, took her inside the room, made her lie

on the cot, put off her clothes and raped her forcibly. The accused

threatened her to kill. After some time, her mother came and she narrated

the incident to her. Thereafter, she went to the Police Station and lodged

the report. In the cross-examination, she denied that she was a tutored

witness and was aged 36 years on the date of her examination on

23.07.1999. She denied that the accused was arrested for beatings her. She

rather stated that after committing rape, the accused had given beatings to

her. She denied that the accused used to object her mother selling liquor

and was falsely implicated in this case.

6. On scrutinizing the testimony of the prosecutrix, it reveals

that she has proved the version given at the first instance to the police

without any variation. The material facts deposed by her remained

unchallenged and uncontroverted in the cross-examination. The accused

did not put any suggestion to her that he was not present at the place of

incident or that had not committed rape upon her. He did not attribute any

ulterior motive to the child witness to make a false statement against him.

No material discrepancies or contradictions emerged in her cross-

examination to discard her innocent version. She claimed that she was

10/11 years on the day of incident. Her ossification test was conducted

and her age was ascertained between 11 to 13 years. There is no substance

that „X‟ was aged 36 years in 1999. Her conduct is natural and reasonable

as she narrated the incident to her mother soon on her arrival in the house

and is relevant under Section 6 of the Evidence Act.

7. PW-3 (Smt.Ram Dulari), X‟s mother has corroborated her

version in its entirety. She deposed that her daughter „X‟ aged 11 years

was present alone in the house on 21.07.1988 when she had gone with her

two daughters to see a movie. At about 01.00 P.M. when she returned, she

found „X‟ shrinking and told her that the accused had committed rape

upon her. She took „X‟ to the Police Station and lodged report Ex.PW-

1/A. In the cross-examination, she explained that she returned to house at

12.30 midnight, on the day of incident. On the next day, she went to

Police Station. She denied that the accused was arrested for beating her

daughter. She volunteered to add that he committed rape upon „X‟. She

also fairly admitted that she took assistance of a politician in lodging

report with the police. She denied that she used to sell liquor. She denied

that she was 70 years old. Again the counsel could not elicit any material

discrepancies in cross-examination to disbelieve her.

8. The prosecutrix was examined at Jai Prakash Narain Hospital

on 22.07.1988 at 09.15 P.M. It is mentioned in the MLC that she was

raped by a man named Pardesi on 21.07.1988. The doctor noticed that the

hymen was torn (old tears). The exhibits were sent to Central Forensic

Science Laboratory (CFSL). As per CFSL report (Ex.PW-5/A), human

semen was detected on Ex.1 (printed underwear) and Ex.2 (dirty

underwear). As per Serological Report (Ex.PW-5/B), semen in Ex.1 and 2

was of „B‟ group. As per vaginal smear report (Ex.PW-4/B), it showed

vaginal cells with bacterial debris. Few intact sperms with few heads only

of sperms were seen. It appears that there is no conflict between the ocular

and medical evidence.

9. It is true that the accused was arrested and a „Kalandra‟ vide

DD No.6A dated 22.07.1988, Police Station Gandhi Nagar was prepared

by SI Devi Dayal. Photocopy of the „Kalandra‟ is on record. It is stated in

the „Kalandra‟ that the accused had attempted to outrage the modesty of

the child „X‟ aged 11 years when she was alone in the house. When the

people from the locality restrained the accused not to do so, he picked up

a quarrel and was arrested under Sections 91/93/97 of Delhi Police Act.

He was also produced before the Court where he pleaded guilty and the

concerned Metropolitan Magistrate imposed fine of `100 for each offence.

It appears that the Investigating Officer attempted to hush up the matter

and instead of lodging First Information Report for committing rape, he

too favour the accused and booked him for committing lighter offences

punishable under Sections 91/93/97 Delhi Police Act. He did not record

statement of any witness including the prosecutrix or her mother before

preparation of „Kalandras‟. PW-3 (Smt.Ram Dulari) fairly admitted that

she had to seek assistance of a politician to get her case registered. The

Investigating Officer has not appeared as a witness to explain as to how

and under what circumstances, he prepared „Kalandra‟. He has since

expired. For the remissness of the Investigating Officer and lapses on his

part, the cogent and reliable testimony of PW-1 and PW-3 cannot be

discredited. The said Investigating Officer subsequently arrested the

accused for committing offence punishable under Sections 376 IPC.

10. In „Dhanaj Singh @ Shera & Ors. Vs. State of Punjab‟,

(2004) 3 SCC 654, the Supreme Court observed :

"Even if the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."

11. I have no good reasons to disbelieve the prosecutrix who had

no ulterior motive to implicate the accused. The accused did not produce

any cogent evidence to substantiate his defence that PW-3 (Smt.Ram

Dulari) used to sell liquor. He did not lodge any complaint with the police

any time against the alleged sale of liquor by her. She was not arrested

any time selling liquor. Moreover, just because the accused used to object

her selling liquor, she was not imagined to level serious allegations of

rape to involve her own daughter aged 11 years who was yet to be married

and to malign her. In „Wahid Khan vs. State of Madhya Pradesh‟, (2010)

2 SCC 9, the Supreme Court observed :

"21. It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."

12. Statement of the prosecutrix if reliable needs no

corroboration. In „Bhupinder Sharma vs. State of Himachal Pradesh‟, AIR

2003 SC 4684, the Supreme Court held :

"12. To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her chain of rape will not be believed unless it is corroborated in material particulars as in" the case of an accomplice to a crime. (See State of Maharashtra v. Chandra Prakash Kewalchand Jain : 1990CriLJ889 ). Why should be the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance."

13. Contention of the counsel for the appellant that the

prosecutrix did not sustain injuries on her body has no substance. In

„B.C.Deva @ Dyava vs. State of Karnatka‟, (2007) 12 SCC 122, the

Supreme Court held :

"The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though, the report of the Gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."

14. The conviction of the appellant is based upon cogent and fair

appraisal of the evidence and is upheld.

15. In the light of above discussion, the appeal lacks merits and

is dismissed. The conviction and sentence of the appellant are maintained.

16. The appellant is directed to surrender and serve the remainder

of his sentence. For this purpose, he shall appear before the Trial Court

on 22nd February, 2013. The Registry shall transmit the Trial Court

records forthwith to ensure compliance with the judgment.

(S.P.GARG) JUDGE FEBRUARY 15, 2013 tr