Ganga Sharan @ Chotu & Anr. vs State Of Delhi
2013 Latest Caselaw 939 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 18th February, 2013
                               DECIDED ON : 26th February, 2013

+                        CRL.A.464/2001

      GANGA SHARAN @ CHOTU & ANR.            ....Appellants
              Through : Mr.K.B.Andley, Sr.Advocate with
                        Mr.M.L.Yadav, Advocate.
                                versus

      STATE OF DELHI                                  ....Respondent
               Through :        Ms.Fizani Husain, APP.
       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellants- Ganga Sharan @ Chotu (A-1) and Surender

Kumar (A-2) impugn judgment dated 16.05.2001 and order on sentence

dated 26.05.2001 in Sessions Case No.152/2000 arising out of FIR No.

37/2000 PS Kapashera by which A-1 was held guilty under Section 506

IPC and sentenced to period already undergone by him and A-2 was held

guilty for committing offences punishable under Sections 376/506 IPC

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

2. The present case was registered on 18.02.2000 on the

statement (Ex.PW-1/A) of the prosecutrix 'X' (assumed name). She

disclosed that on 05.01.2000 when she was alone in the house, at about

01.00 P.M. A-2, her brother-in-law (jeth), committed rape and threatened

to kill her. During investigation, both A-1 and A-2 were arrested.

Statements of witnesses conversant with the facts were recorded. After

completion of the investigation, a charge-sheet was submitted against

them for committing offences punishable under Sections 376/506/202/201

IPC. The prosecution examined ten witnesses. In their 313 Cr.P.C.

statements, the accused pleaded false implication. On appreciating the

evidence and considering the rival contentions of the parties, the Trial

Court, by the impugned judgment, convicted A-2 under Sections 376/506

IPC and acquitted A-1 of all the charges except Section 506 IPC. Being

aggrieved, the appellants have preferred the appeal.

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

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

into grave error to base conviction on the sole testimony of the prosecutrix

without independent corroboration. The prosecutrix did not explain the

inordinate delay in lodging First Information Report. The Forensic

Science Laboratory report did not establish the appellants' involvement.

No independent public witness was associated at any stage of the

investigation. Learned APP urged that the conviction of the appellants is

based upon the reliable and cogent statement of the prosecutrix which

needs no corroboration.

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

examined the record. It is not in dispute that A-2 is the brother-in-law

(jeth) of the prosecutrix. Undoubtedly, relations between the prosecutrix

and her husband A-1 were strained. The prosecutrix was married to A-1

on 11.07.1993. She lodged complaint in Crime against Women Cell, East

Delhi against her husband and in-laws for harassing her. The said

complaint was settled/ compromised subsequently. In her statement in the

Court, she further disclosed that her husband deserted her and rejoined her

company after three years. Thereafter, he filed a case against her for

misappropriating articles worth ` 50,000/-. The matter was settled due to

the intervention of her mother-in-law in 1998. It is also not disputed that

the A-2 never lived with the prosecutrix and had come to Delhi from

village in search of a job on 03.01.2000. The alleged occurrence happened

on 05.01.2000. However, the prosecutrix did not lodge First Information

Report that day or soon thereafter. The present case was registered on her

statement, after a delay of 42 days. The prosecutrix did not give plausible

explanation for not lodging the report with the police promptly. She had

attended the marriage of her sister with her husband at her parents' house

on 08.01.2000. Even that time or soon thereafter, she did not lodge any

complaint with her parents or the police. Complaint (Ex.PW-5/C) made to

CAW Cell is dated 19.01.2000 where there is overwriting on date

05.01.2000. She suspected A-1's involvement and accused him that A-2

committed rape upon her with his consent. Consequently, A-1,

prosecutrix's husband was also arrested in this case. However, in her

deposition in the Court, she did not attribute any role to Ganga Sharan (A-

1). In the cross-examination, she specifically admitted that she was unable

to say whether consent of her husband was or was not there in the

incident. In her statement (Ex.PW-1/A) also she did not suspect her

husband's complicity in the incident. She did not depose if any threat was

extended by A-1 and if so when and where. A-1, prosecutrix's husband is

not imagined to allow her brother to rape his wife when they were living

together with their child in the rented accommodation. A-2 had come from

village in search of job on 03.01.2000. The complainant even alleged that

on an earlier occasion, he had caught hold her hand. However, she did not

elaborate when any such occurrence took place or whether she reported

the incident to her husband or her family members. In that eventuality, she

must not have permitted him to visit the house in the absence of her

husband.

5. During investigation, letter (Ex.PW-5/H) purportedly written

by X's husband was produced in which it was mentioned that his brother

(accused Surender) had done 'wrong act'. However, the handwriting

expert was unable to give specific opinion in report (Ex.PW-5/A) if the

questioned handwriting was similar to the specimen handwriting of X's

husband. Letter (Ex.PW-5/H) is silent as to what 'wrong act' was done by

the accused or if he committed 'rape'. This letter rules out of her

husband's connivance in the incident.

6. The appellants' conviction is based upon the sole testimony

of the prosecutrix. She in her statement deposed that on 04.01.2000, her

husband made a telephone call at her parents' house and asked her to

come at Brijwasan as his elder brother Surender had come from village.

On the evening of 04.01.2000, she came to Brijwasan. She prepared food

and they took dinner. Her jeth Surender went to the room of landlord and

slept there. On 05.01.2000, her husband told that during lunch hour, his

brother would come and directed her to serve him lunch. When A-2

reached at noon time, she served him lunch. A-2 called her to talk about

family matter. When she went to him, A-2 raped her against her will and

threatened if she raised alarm, he would stab and kill her. A-2 was having

a knife. He locked the room from outside and went. This statement of the

prosecutrix has not been corroborated at all. She did not raise hue and cry

at that time. She did not lodge any report to the police. Nothing is on

record to show if she offered any resistance or caused any injuries to the

accused. She herself did not go for her medical examination to ascertain if

any injuries were sustained by her. In the evening, when her husband

returned, she did not take him to the police station to register complaint.

She kept mum and attended the marriage of her sister on 08.01.2000 at her

parents' house. She did not inform the incident to her parents and they in

turn also did not register any case or took up the matter with A-1 and his

family members. PW-2 (Kamla), X's mother has given inconsistent

version. She deposed that when she had gone to the house of her sister-in-

law to deliver invitation card for the marriage of her daughter, 'X' made a

telephone call at her neighbour's house and informed that her jeth

Surender had committed rape upon her. When she went to the house of

her daughter, she informed her about the incident. She introduced a new

version that A-2 had told her that he had done the 'act' under the influence

of liquor and had felt sorry. No such fact was revealed by the prosecutrix

in her statement.

7. The prosecutrix was medically examined after 42 days of the

incident on 18.02.2000 by PW-9 (Dr.Shalu Aggarwal) who proved the

MLC (Ex.PW-9/A). No injury on the body or breast was noticed. There

were no sign of any perineal injury. She admitted in the cross-examination

that if a rape victim is produced for medical examination after 42 days, it

cannot be ascertained whether she was raped or not. The prosecutrix did

not hand-over her clothes soon after the incident to enable the

Investigating Officer to detect semen or blood. In the cross-examination,

she admitted that she was having seven months' pregnancy. The delivery

was, however, normal.

8. I am conscious that conviction can be based upon the sole

testimony of the prosecutrix and it needs no corroboration. However, in

'Sadashiv Ramrao Hadbe vs. State of Maharashtra and Anr.', 2006 (10)

SCC 92, the Supreme Court observed :

"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring of confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen"

9. Similarly, in 'Narender Kumar vs. State (NCT of Delhi)',

AIR 2012 SC 2281, the Supreme Court observed :

"16. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony.

17. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence."

10. In the present case, the story projected by the prosecutrix is

so improbable that it cannot be believed. It is true that rape causes the

greatest distress and humiliation to the victim but at the same time a false

allegation of rape can cause equal distress, humiliation and damage to the

accused as well. The accused must also be protected against the possibility

of false implication. There is no presumption or any basis for assuming

that the statement of such a witness is always correct or without any

embellishment or exaggeration.

11. In the instant case, relations between the prosecutrix and her

husband and in-laws were strained. A-2 had visited Delhi on 03.01.2000,

when the prosecutrix was present at her parents' house. She suspected

connivance of her husband A-1 with A-2 in committing rape upon her and

it led to their arrest. The prosecutrix did not lodge report with the police

for 42 days. Her statement was recorded after a gap of 42 days. She did

not offer any plausible explanation for the inordinate delay in lodging the

report with the police. She did not get herself medically examined. She

did not handover her clothes which she was wearing at the time of alleged

occurrence. She attended the marriage of her sister with her husband on

08.01.2000 and did not report the incident to her parents when there was

no threat. Knife allegedly used by A-2 in the incident was not recovered.

After the occurrence, the prosecutrix and her husband are living separate.

PW-4 (Prem Singh) did not support the prosecution and categorically

stated that he had not seen any incident. The prosecutrix never lodged any

complaint against A-2 for outraging her modesty on an earlier occasion.

Delay in lodging the report is fatal. There was no reason for filing a

complaint after inordinate delay. She was under no threat not to report the

incident to the police. She was aware of the legal proceedings and had

earlier approached Crime against Women Cell for her harassment by her

husband and in-laws. Conduct of the prosecutrix was unnatural and

unreasonable.

12. Considering the facts and circumstances of the case, I am of

the considered view that the prosecution was unable to prove the guilt of

the appellants beyond reasonable doubt. The appellants deserve benefit of

doubt. Conviction and sentence of the appellants are set aside. The appeal

is allowed and the appellants are acquitted. Bail bond and surety bond of

A-2 are discharged.

13. Trial court record be sent back forthwith.

(S.P.GARG) JUDGE FEBRUARY 26, 2013/tr