Lal Babu Sahni vs State (Govt. Of Nct) Of Delhi
2013 Latest Caselaw 427 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : 3rd January, 2013.
                              DECIDED ON : 30th January, 2013.

+                       CRL.A. 1149/2012

      LAL BABU SAHNI                              ....Appellant
               Through :      Mr.A.J.Bhambhani, Advocate with
                              Ms.Nisha Bhambhani & Ms.Bhavita
                              Modi, Advocates.

                              versus

      STATE (GOVT. OF NCT) 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 by the appellant- Lal Babu

Sahni against the judgment dated 18.04.2012 and order on sentence dated

30.04.2012 in Sessions Case No.47/2011, FIR No.79/2011 registered at

PS Chhawla by which he was convicted for committing offence under

Section 366/376 IPC and sentenced to undergo RI for five years with fine

` 2,000/- under Section 366 and RI for seven years with fine ` 5,000/-

under Section 376 IPC. Allegations against the accused were that on

21.04.2011 at about 09.30 A.M. on a vacant plot, after kidnapping minor

girl 'X' (assumed name) aged 11 years with an intention to force to have

illicit intercourse, he committed rape upon her. The prosecution examined

fifteen witnesses. In his statement recorded under Section 313 Cr.P.C., the

accused pleaded false implication.

2. 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 testimonies of PW-9 and PW-10 who

were interested witnesses. The prosecution witnesses gave inconsistent

version and made vital improvements in the Court. The prosecutrix was

major. No injuries were found on her body in the MLC. Her statement in

the Court regarding identification of the accused is wavering. Independent

public witnesses PW-6 (Chetan Kumar) and PW-12 (Satish) did not

support the prosecution and turned hostile. Mother of the prosecutrix

resiled from her statement under Section 161 Cr.P.C. and denied if any

such occurrence had taken place.

3. Learned APP urged that the prosecutrix, a minor child, fully

supported the prosecution and categorically identified the accused to be

the perpetrator of the crime. There was no delay in lodging the First

Information Report. In the MLC of the prosecutrix, hymen was found

ruptured.

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

examined the Trial Court record. The appellant was arrested at the spot

and was medically examined at Rao Tula Ram Memorial Hospital on

21.04.2011 at 02.22 P.M. Daily Diary (DD) No.14A was recorded at

10.25 A.M. on getting information that a boy had committed rape with a

girl and was apprehended. SI Prakash Chand with Const.Ramesh reached

the spot and took the custody of the accused.

5. Testimony of prosecutrix 'X' (PW-9) is very crucial. She is a

child witness aged about 12 years and is a victim. She had no prior

acquaintance with the accused. Learned Presiding Officer put number of

questions before recording her statement to ascertain if she was competent

witness and understood the questions and give rational answers to them.

After recording satisfaction that the witness had sufficient maturity and

understanding, her statement was recorded. In the statement, she

categorically deposed that at about 09.00 A.M. she was playing outside

her house. The accused came on a cycle and took her in jungle and

committed rape on her. In the mean time, her mother came there and the

accused tried to run away but was apprehended by public. Someone called

the police. The police came and took her and the accused to the police

station and her statement Ex.PW-9/A was recorded. To a leading question

put to her, she stated that before taking, the accused had offered ` 100 to

her and thereafter, he took her from there. In the cross-examination, she

stated that the Investigating Officer had told him to identify the accused as

the person who committed rape on her person. The Court was

vigilant/active to get required clarification by putting the following

questions :

"Court Question : Did you indentify the accused as the person who raped you only on basis of direction of IO or he had actually raped you?

Ans. The accused is the same person who had actually committed rape with me on that day and he was pointed out to me by the IO also today.

Court Question : Why did you state earlier that he is not the person who had raped you?

Ans. I was confused."

6. The prosecutrix was categorical in identification of the

accused in the Court. She denied that statement made by her was tutored

or that no such occurrence took place.

7. There are no good reasons to discard the testimony of the

prosecutrix. Law relating to the testimony of prosecutrix is discussed in

the case of „Wahid Khan Vs. State of Jharkhand‟ (2010) 2 SCC 9 :

"19. The law on the point is now too well settled. No doubt, it is true that Dr.B.Biswas, who had initially conducted the medical examination of the prosecutrix, has not appeared on behalf of the prosecution to depose. But,

that alone is not sufficient to discard the prosecution story. Corroboration is not the sine qua non for conviction in a rape case.

20. In this regards, the most celebrated observations of Justice Vivian Bose in the case of „Rameshwar vs. State of Rajasthan‟ AIR 1952 SC 54 may be quoted :

The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge...

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.

22. Thus, in a case of rape, testimony of a prosecutrix stands at par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible."

8. In the case of 'Bhupinder Sharma vs. State of Himachal

Pradesh' AIR 2003 SC 4684, it was 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 Vs. Chandra Prakash Kewalchand Jain, AIR 1990 SC 658). Why should 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."

9. PW-9 'X' was medically examined and her MLC (Ex.PW-

14/B) was prepared on 21.04.2011 at 02.21 P.M. It is mentioned that the

girl 'X' was brought by IO and her mother with the complaint of sexual

assault at around 09.30 A.M. by an unknown person. Hymen of the

prosecutrix was found ruptured. Ocular testimony of PW-9 is in

consonance with the medical evidence.

10. Statement of the prosecutrix was also recorded under Section

164 Cr.P.C. on 22.04.2011, soon after the incident. In the statement

Ex.PW-9/B, she had given detailed account of the incident as to how she

was allured after giving ` 100 by a cyclist when she was playing in the

street and thereafter, rape was committed on her person. She also stated

that two motorcyclists apprehended the culprit. There is no conflict in the

statement recorded under Section 164 Cr.P.C. and the one recorded in the

Court.

11. PW-6 (Chetan Kumar) though turned hostile, nevertheless

deposed that when he reached the spot at about 09.30 A.M. on his

motorcycle, he heard a noise and the people were saying 'galat kam ho

gaya'. It lends corroboration to the testimony of the prosecutrix that the

motorcyclists had reached the spot and the occurrence took place at about

09.00 A.M. PW-12 (Satish) also admitted his presence at the spot when he

stopped his motorcycle. In the cross-examination by APP, he admitted

that the arrest memo (Ex.PW-1/C) and personal search memo (Ex.PW-

1/D) contained his signatures.

12. It is true that PW-10 (Meera Devi), prosecutrix's mother did

not support the prosecution on material facts. Nevertheless, she was

certain that on 21.04.2011 at about 09.30 A.M. when she returned from

her work her daughter 'X' raised alarm that someone was taking her

forcibly. She further admitted that public persons apprehended one person

and the police was called. Police took her and her daughter to the police

station where the statement of her daughter was recorded. She was

medically examined. She further stated that the police took her daughter to

the Court to record her statement. She however, denied the contents of the

statement marked as P-10/1 recorded under Section 161 Cr.P.C. It appears

that the witness has not presented true facts. She has completely denied

occurrence of any such incident which is falsified by the documents on

record including the MLC where her presence has been recorded and it is

mentioned that 'X' was sexually assaulted. It is unclear why she opted to

resile from her statement. For that reason, the innocent version given by

the child witness cannot be discredited or faulted.

13. Minor discrepancies, variations and improvements

highlighted by the counsel for the appellant are not fatal. The prosecutrix

has not deviated from the core issue that the accused committed rape upon

her. There was no inordinate delay in lodging the First Information

Report. Conviction can be based upon the sole testimony of the

prosecutrix. There is no conflict between the oral and medical evidence.

14. In the light of above discussion, the appeal lacks merit and is

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

The Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE JANUARY 30, 2013 tr