Delhi High Court

Manoj vs The State Of Nct Of Delhi on 22 February, 2013

Author: S. P. Garg

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 13th February, 2013
                               DECIDED ON : 22nd February, 2013

+                        CRL.A.458/2006

      MANOJ                                         ....Appellant
                   Through :   Mr.Bhupesh Narula, Advocate.

                               versus

      THE STATE OF NCT OF DELHI                 ....Respondent
               Through : Ms.Fizani Husain, APP.

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

S.P.GARG, J.

1. The appellant- Manoj impugns judgment dated 08.02.2006

and order on sentence dated 14.02.2006 of learned Additional Sessions

Judge in Sessions Case No.21/2005 arising out of FIR No.743/2004 PS

Sangam Vihar by which he was convicted for committing offence

punishable under Section 376 IPC and sentenced to undergo RI for ten

years with fine ` 2,000/- and in default of payment of fine to further

undergo RI for three months.

2. Allegations against the appellant were that on 12.10.2004 at

about 06.00 or 07.00 P.M. in his jhuggi near Jain Mandir, Suraj Kund road

he committed rape upon prosecutrix 'X' (assumed name) aged about 9

years. During investigation, the prosecutrix was medically examined. The

accused was arrested. The exhibits were sent to Forensic Science

Laboratory. The statements of the witnesses conversant with the facts

were recorded. After completion of the investigation, a charge-sheet was

submitted against the accused for committing offence punishable under

Section 376 IPC. The accused was duly charged and brought to trial. The

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

accused pleaded false implication. On appreciating the evidence and

considering the rival contentions of the parties, the Trial Court, by the

impugned judgment, held the appellant responsible for the crime. Being

aggrieved, the appellant has preferred the appeal.

3. Learned counsel for the appellant urged that the Trial Court

did not appreciate the evidence in its true and proper perspective and fell

into grave error in relying upon the testimony of the prosecutrix and her

parents without insisting independent corroboration. There was delay of

three days in lodging the report with the police and the Trial Court did not

give due weightage to it. The accused was implicated falsely as there was

property dispute with the complainant's parents in the village. Moreover,

the accused had threatened to expose the mother of the prosecutrix for

having illicit relations with one 'Sardar Ji'. In the MLC, no vital injuries

were found on the person of the prosecutrix. The FSL report does not

establish appellant's involvement. Learned APP while supporting the

judgment urged that it does not call for interference. It is based upon

cogent testimony of the prosecutrix and requires no corroboration. The

delay in lodging the First Information Report has been explained.

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

examined the record. Present case was registered on the statement of 'X'

(Ex.PW-4/A) on 15.10.2004. In her statement, 'X' revealed that on

12.10.2004 at about 06.00 or 07.00 P.M. she was spreading a cot outside

her jhuggi to study. The accused Manoj took her inside his jhuggi and

committed rape upon her. She went to her jhuggi after the rape and

narrated the occurrence to her mother- Kailash Devi. Efforts were made to

find out the whereabouts of the accused but he absconded. Statement of

the prosecutrix was recorded under Section 164 Cr.P.C. on 18.10.2004.

PW-11 (Sh.Sudesh Kumar, MM) put several questions to the child witness

to ascertain if she was capable to give rational answer to the questions put

to her. After recording satisfaction that 'X' was competent to answer the

questions, her statement (Ex.PW-11/A) was recorded. In her statement,

she reiterated the version given to the police at the first instance and

named the accused for committing rape upon her. She appeared in the

Court as PW-4. After satisfying that 'X' was a competent witness and was

able to give rationale answers, her statement was recorded. In her

statement, she deposed that the accused was his uncle (chacha) and lived

in the adjacent jhuggi. On the day of occurrence when she was sitting

outside her jhuggi, the accused took her to his room, removed her

underwear and committed rape upon her. She started bleeding from her

private parts. The accused ran away after leaving her there. She came to

her home and narrated the occurrence to her mother. The accused was not

traceable thereafter. Her statement (Ex.PW-4/A) was recorded by the

police. In the cross-examination, she denied that there was any dispute

between her father and the accused over any immovable property in the

village. She stated that they were on visiting terms with each other. The

accused was a married person but his wife did not live with him. One

elder brother and one younger brother used to live in the room. She

however, clarified that none of the brothers was present in the room at the

time of incident.

5. Scrutinising the testimony of the child victim, it reveals that

no material discrepancies have been elicited in her cross-examination to

disbelieve her. No ulterior motive was attributed to the child to make false

statement against the accused who was her uncle in relation. There was no

hostility with the accused who lived in the adjacent jhuggi. The

prosecutrix 'X' gave detailed account as to how and under what

circumstances the accused committed rape and absconded. Conduct of the

witness is reasonable and natural as soon after the incident she narrated

the occurrence to her mother. Her conduct in informing the mother

immediately is relevant under Section 6 of the Evidence Act. She was

medically examined on 15.10.2004. PW-2 (Dr.Meenakshi) proved her

MLC (Ex.PW-2/A). It was prepared on 15.10.2004 at about 01.30 A.M.

(mid night). It records that the prosecutrix aged 9 years was brought with

the alleged history of sexual assault three days back at about 06.00 or

07.00 P.M. at home. While she was studying, she was forcibly taken to

the room where she was sexually assaulted by the accused. There was

history of bleeding from the vagina. On local examination, hymen was

torn and it easily accommodated one finger. In the cross-examination, she

was of the opinion that at the age of 9 years if hymen is torn and easily

accommodates one finger, there is possibility of sexual assault. There is

thus no conflict / inconsistency between the ocular and medical evidence.

6. PW-5 (Kailash Devi) is the mother of the prosecutrix and has

corroborated X's version in its entirety. She also deposed that on

12.10.2004 at about 06.00 P.M. 'X' informed her that the accused had

taken her to his room and sexually assaulted her after removing her

underwear. She was bleeding. The accused fled the spot. After two days,

he came to the jhuggi and was apprehended. PW-1 (Bhageshwar Yadav),

X's father has corroborated the statement of the prosecutrix. He deposed

that PW-5 (Kailash Devi) narrated the incident as revealed to her by his

daughter. The underwear of her daughter and skirt were blood stained.

She was bleeding. There were blood spots on her legs also. The accused

ran away from the jhuggi. He searched the accused but in vain. On

14.10.2004, when the accused came to the jhuggi to take his clothes and

utensils at 10.00 P.M., he with the help of his brother and other relatives

caught hold of him and handed over to the police. In the cross-

examination, he disclosed that his father and accused's father were real

brothers.

7. The version given by the prosecutrix in her statement under

Sections 161 Cr.P.C, 164 Cr.P.C. and in the Court is without any

variation. In the absence of any material discrepancies or inconsistencies/

infirmities there are no good reasons to disbelieve her. In 'Mohd.Imran

Khan vs. State (Govt. of NCT of Delhi)', 2012 Crl.L.J. 693, the Supreme

Court observed :

"The courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her."

8. Similarly, in 'Wahid Khan v. State of Madhya Pradesh',

(2010) 2 SCC 9, the Supreme Court observed :

"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 at 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 ostracised 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."

9. Statement of the prosecutrix requires no corroboration and

conviction can be based on the uncorroborated evidence of the

prosecutrix.

10. Again in 'Wahid Khan v. State of Madhya Pradesh (supra)',

the Supreme Court held that it is well settled that a finding of guilt in a

case of rape, can be based on the uncorroborated evidence of the

prosecutrix. The very nature of offence makes it difficult to get direct

corroborating evidence. The evidence of the prosecutrix 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.

11. It is true that there is delay in lodging the First Information

Report. The occurrence took place on 12.10.2004 and the First

Information Report lodged on 15.10.2004. However, the prosecution

witnesses have fairly explained the reasons for the delay in lodging the

FIR. They deposed that efforts were made to find out the accused but he

could not be traced. When on 14.10.2004 at about 10.00 P.M. the accused

went to the jhuggi to take his utensils and clothes, he was apprehended.

Thereafter, the matter was reported to the police. It appears that anxiety of

the family members of the prosecutrix was to first apprehend the accused

and then lodge report with the police. For delay in lodging the report, the

credible and reliable testimony of the prosecutrix cannot be discredited.

The accused was a close relation of the victim and before implicating him

it was necessary to confront him about the facts disclosed by the

prosecutrix 'X'. In 'State of Himachal Pradesh vs. Gian Chand' , (2001) 6

SCC 71, the Supreme Court observed :

"It is common knowledge and also judicially noted fact that incidents like rape, more so when the perpetrator of the crime happens to be a member of the family or related therewith, involve the honour of the family and, therefore, there is a reluctance on the part of the family of the victim to report the matter to the police and carry the same to the Court. A cool thought may precede lodging of the F.I.R."

12. The accused did not explain as to why he absconded after the

occurrence. Abscondance from the spot without any reason & hiding

thereafter are incriminating circumstance against the accused to connect

him with the crime. As per FSL report (Ex.PW-10/D) human semen was

detected on Ex.4 (underwear of the prosecutrix). The accused did not give

plausible explanation to the incriminating circumstances proved against

him. In his 313 Cr.P.C. statement, his defence was that due to dispute over

immovable property in the village, he was falsely implicated. In his 313

Cr.P.C. statement, he changed the defence and introduced a new story that

X's mother had illicit relations with one 'Sardar Ji' and when he

threatened to expose her to her husband, she falsely implicated him in this

case. The accused did not elaborate as to with whom X's mother had illicit