Delhi High Court

Surender Krishan Seth vs The State on 14 March, 2013

Author: S. P. Garg

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : March 06, 2013
                                DECIDED ON : March 14, 2013

+                         CRL.A. 869/2011

       SURENDER KRISHAN SETH            ..... Appellant
                    Through : Ms.Anu Narula, Advocate.


                          versus
       THE STATE                                        ..... Respondent
                          Through :   Ms.Fizani Husain, APP.
                                      SI Deepak, PS Narela.


        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant-Surender Krishan Seth impugns judgment

dated 07.12.2010 and order on sentence dated 20.12.2010 in Sessions

Case No.270/2007 arising out of FIR No.451/2007 registered at Police

Station Narela by which he was held responsible for committing rape and

sentenced to undergo RI for seven years with fine `5,000/-.

2. Allegations against the appellant were that on 17.08.2007 in

between 01.00 to 02.00 P.M. at House No.A-159, Phase-1, Metro Vihar,

he committed rape upon 'X' (assumed name), aged 30 years. The

prosecution examined 11 witnesses. In his statement under Section 313

Cr.P.C. the accused alleged that the complainant wanted to grab his plot

of land and falsely implicated him. On appreciating the evidence and

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

impugned judgment, convicted the appellant for the offence under Section

376 IPC. Being aggrieved, the appellant has filed the appeal.

3. Counsel for the appellant urged that the Trial Court did not

appreciate the evidence in its proper perspective and fell into grave error

to base conviction upon the sole testimony of prosecutrix 'X' without

independent corroboration. Major discrepancies and improvements in the

testimony of the prosecution witnesses were ignored without valid

reasons. The prosecutrix alleged that she was dragged by the accused to

his house but no injuries were noticed on her body in the MLC. The

prosecutrix was a mentally challenged girl. No proper preliminary inquiry

was conducted by the Trial Court to ascertain if she was competent to give

evidence. She admitted to have given statement on the direction of her

mother. The prosecutrix was major and vagina admitted two fingers (as

noted in MLC) which indicated that the incident in question was not her

first encounter. The prosecutrix did not disclose name of the rapist to the

doctor. No injuries external or internal were found on her body. The

prosecution witnesses gave inconsistent version whether she was fit to

make statement; whether it was an attempt to commit rape or whether she

had menstrual period. The Forensic Science Laboratory report did not

establish appellant's involvement as no human semen on the clothes of the

prosecutrix was found. Learned Additional Public Prosecutor urged that

there was no delay in reporting the incident to the police. The prosecutrix

categorically indicted the accused for committing rape upon her. The

medical evidence corroborates her version. Her hymen was found

ruptured.

4. I have considered the submissions of the parties and

examined the record. Daily Diary (DD) No.21 (Ex.PW-2/A) was

recorded on 17.08.2007 at 02.20 P.M. at Police Station Narela, Police Post

Metro Vihar on getting information that an individual had committed rape

upon a girl. The investigation was assigned to SI Sanjay Nagpal (PW-10)

who with Constbale Jasmer went to the spot. The prosecutrix was taken

to Satyawadi Raja Harish Chander Hospital, Narela, and her MLC

(Ex.PW-6/A) was prepared at 03.45 P.M. MLC (Ex.PW-6/A) records

alleged history of sexual assault. She was not fully oriented. She was

declared unfit for statement by PW-8 (Dr.Neeraj Kumari). Statement of

X's mother was recorded. First Information Report was lodged vide

endorsement (Ex.PW11/A) on the statement of 'X's mother (Ex.PW-3/A).

In her statement (Ex.PW-3/A) Smt.Raj Rani, 'X's mother gave vivid

details as to how and under what circumstances her daughter 'X' was

raped by the accused. There was no delay in lodging the report to the

police. The accused was specifically named to be the perpetrator of the

crime. The prompt and early reporting of the occurrence with all its vivid

details gives an assurance regarding truth of the prosecution version. It

eliminates chances of embellishments. It inspires confidence that it was

not the outcome of any consultation or deliberation.

5. The prosecutrix appeared in the court for examination. She

was a partially mentally challenged girl. The Trial Judge conducted

preliminary examination to satisfy himself in regard to the competence

under Section 118 of the Evidence Act. He put number of questions to

ascertain her extent of intelligence, her capacity and understanding and

the way she was able to give the rational answers. The Trial Court was

satisfied that she had sufficient understanding to be qualified as a witness

and her statement was recorded thereafter. She was able to disclose her

name, father's name. She was also able to tell that she had appeared

before a judge and it was always good to speak truth. She further stated

that she had come with her 'mummy'. She, however, was unable to tell

her age. Counsel urged that since the witness was unable to tell her age,

she was not competent to give statement. I find no merit in the

submission. There is no good reason to doubt the 'satisfaction' of the

Trial Court. The decision rests with the Trial Judge who sees the

proposed witness, notices his/her manner, his/her apparent possession or

lack of intelligence. The manner 'X' faced searching cross-examination

reveals that she was competent to understand questions put to her and give

rational answers. It is an admitted position that 'X' was partially mentally

challenged girl. She was aged 30 years and was unmarried. PW-3

(Smt.Raj Rani) categorically stated that she was little bit mentally

retarded. She elaborated that she did not take medicines and understood

the nature of things. Intellectual weakness cannot be a ground to hold that

she was incompetent to give evidence. The sole test is whether the

witness has sufficient intelligence to depose or whether he/she can

appreciate the duty of speaking truth. In her deposition, she categorically

deposed that on the day of incident, the accused (Surender Kishan Seth)

known as 'Punjabi' had called her inside his house during day time. She

did not wish to go. He dragged her inside the house, bolted the door and

removed her clothes. He also shut her mouth with hand. He removed his

clothes and had sexual intercourse with her. Blood started oozing out

from her vagina and thereafter, he left her and ran away. She put on

clothes, came back to her house and apprised her mother about the

incident of rape. The police was informed. She identified blood stained

clothes including salwar (Ex.P-1) which she was wearing at the time of

incident. In the cross-examination, she stated that none else was present

in the house when she was dragged by the accused. She denied that she

was tutored by her mother to depose against the accused. She reiterated

that the accused forcibly removed her clothes. She fairly admitted that

she was having menstrual period. During the incident the blood of

menstruation also stained her clothes.

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

that material facts deposed by her remained unchallenged and

uncontroverted in the cross-examination. The accused did not deny that

he was not known as 'Punjabi'. He did not claim if at the time of

occurrence any of his family members was present inside the house and

there was no possibility of committing rape upon the prosecutrix. He did

not deny his presence in the house that time. There are no good and

sufficient reasons to discard the statement of the prosecutrix. Her conduct

is reasonable and natural. If a statement or disclosure is made by the

ravished girl, either to the members of her family or others, it is an

evidence of conduct as admissible as the corroboration by Section 8,

illustration (i). She narrated the entire occurrence to her mother after

returning from the place of occurrence at the first reasonable opportunity.

The accused was apprehended and was beaten. PW-3 (Raj Rani) acted

promptly and took her daughter to police station Metro Vihar. She proved

the version given to the police at the first instance without any variation.

In the cross-examination, she elaborated that 'X' was in the house till

01.00 P.M. At 02.00 P.M. She returned with her clothes soaked with

blood. When she inquired as to where she was, she told her that the

accused had committed rape upon her. No material discrepancy emerged

in her cross-examination to doubt her version. Her statement to the effect

that the prosecution narrated the entire episode immediately when she

arrived at home can be held to be a corroborated piece of evidence.

7. MLC (Ex.PW-6/A) was prepared by Dr.Neeraj Kumari

Aggarwal (PW-6) and 'X' was referred to gynae department. PW-8

(Dr.Neeraj Kumari) noted in the MLC that hymen was ruptured and

vagina admitted two fingers. In the cross-examination, she stated that

patient had not told her the name of the rapist. She clarified that she did

not ask her any question about sexual assault.

8. From the statement of the prosecutrix corroborated with

medical evidence, it stands established that she was sexually assaulted.

Minor discrepancies highlighted by the counsel are not sufficient to

discredit her otherwise cogent and reliable testimony. Neither the

prosecutrix nor her mother had any prior animosity with the accused to

falsely implicate him in the incident. They were acquainted with each

other for the last eight or ten years and were workers of the same political

party. The accused came up with the plea that the complainant wanted to

grab his plot and was falsely implicated. He, however, did not explain as

to how and in what manner the complainant attempted to grab his plot.

He did not produce any document showing ownership of any specific plot

with him. He did not lodge any complaint against the complainant for

alleged attempt to grab his plot. No such suggestion was put to the

complainant in her cross-examination. The defence deserves outright

rejection. A mother is not expected to tender false evidence against an

innocent in her attempt to grab the plot and spoil the reputation of her

unmarried young daughter. She was not aware as to where the

prosecutrix had gone after 01.00 P.M. She searched her. When she

returned at 02.00 P.M. her clothes were smeared in the blood and she

informed the incident to her. No ulterior motive was assigned to the

witness to make false statement. The Court has no reasons to discard the

innocent version given by the victim.

9. In the case of 'Wahid Khan vs. State of Madhya Pradesh',

(2010) 2 SCC 9 the Supreme Court held:

"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."

10. Again in 'Bhupinder Sharma Vs.State of Himachal Pradesh',

AIR 2003 SC 4684 the Supreme Court observed :

"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, 1990 ACR 212 (SC) : AIR 1990 SC

658) 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."

11. The victim partially mentally retarded girl made a positive

statement that she was sexually assaulted by the accused against her

wishes and it is corroborated by the medical evidence and the evidence of

her mother, her evidence inspires confidence. Mere statement that

according to doctor, the victim's vagina admitted two fingers and she

could on earlier occasion have had sexual intercourse, rules out rape by

accused once, as argued, in no way casts doubt on victim's evidence.

Even if it is hypothetically accepted that the victim had lost her virginity

earlier, it did not and cannot in law give licence to the accused to rape her.

It is the accused who was on trial and not the victim.

12. In State vs.Ramdev Singh AIR 2004 SC 1290, the Supreme

Court observed that even if the victim in a given case has been