Tek Bahdur @ Tekender Nath vs State (Govt. Of Nct) Of Delhi
2013 Latest Caselaw 4610 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Reserved on: 27th September, 2013
%                               Date of Decision: 4th October, 2013

+                     CRIMINAL APPEAL No.777/2012

TEK BAHDUR @ TEKENDER NATH                ..... Appellant
             Through: Mr.Ajay Verma, Advocate with
                      Mr.Udayan Tondon, Advocate.

                       versus


STATE (GOVT. OF NCT) OF DELHI               ..... Respondent

Through: Mr.Sanjay Lao, APP for the State.

CORAM:

HON'BLE MR. JUSTICE P.K. BHASIN HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J:

1. The appellant-Tek Bahdur @ Tekender Nath has filed the

present appeal against judgment dated 13th January, 2012, whereby the

appellant has been convicted for the offence under Sections 376 and

506-II of the Indian Penal Code (hereinafter referred to as „IPC‟) for

having committed rape on his daughter (hereinafter referred to as

„prosecutrix‟). Vide order on sentence dated 20th January, 2012, the

appellant has been convicted to undergo rigorous imprisonment for life

and fine of Rs.25,000/- for the offence under Section 376 IPC, in

default of payment of fine, to undergo simple imprisonment for three

months. He has also been sentenced to undergo rigorous imprisonment

for five years and fine of Rs.5,000/- under Section 506-II IPC and in

default of payment of fine, to undergo simple imprisonment for one

month. Both the sentences to run concurrently.

2. The prosecution version as unfolded during trial is as follows:-

On 21st March, 2011, the prosecutrix (PW-2) lodged a complaint

which is Ex.PW2/A wherein she stated that she was residing with her

father (appellant), sister Usha and brother Ganesh. Her elder brother

Ajay was residing at Paschim Vihar with his wife. Her mother had

died about 7/8 years ago. The appellant had been forcibly committing

rape upon her from the last 2/3 years. The appellant used to rape her

by establishing physical relations against her wishes. He also used to

beat her and threaten her not to disclose the fact of physical relations to

anyone. The last occasion when appellant raped her was on

12/13.02.2011 at about 2-3 p.m. About 4-5 days before lodging the

complaint, she decided to disclose the facts to someone as her elder

sister was also raped by her father due to which she left home. She

disclosed the factum of rape to her paternal aunt (Tai), who then gave

her Rs.20/- and asked her to visit her brother‟s place and disclose the

above mentioned facts to him. Prosecutrix along with her sister then

went to her brother‟s place and disclosed all the facts to the wife of her

brother. Her sister-in-law (bhabhi) took her to Police Station Sarai

Rohilla to lodge a complaint. Thereafter, they went to the hospital for

medical examination. On the basis of the said complaint, the present

FIR was registered.

3. The statement of prosecutrix was recorded under Section 164 of

the Code of Criminal Procedure (hereinafter referred to as „Cr. P.C.‟)

before Metropolitan Magistrate (PW-9) on 23rd March, 2011. The said

statement has been exhibited as Ex.PW2/B. The application for

recording of the statement under Section 164 Cr.P.C. was made on 22nd

March, 2011. The statement of prosecutrix under Section 164 Cr.P.C.,

Ex.PW2/B, is similar and identical to the statement made by the

prosecutrix in the complaint lodged by her.

4. We have given our anxious thought to the rival submissions

made by learned counsel for the appellant and learned Additional

Public Prosecutor for the State and have carefully gone through the

material on record.

5. The prosecutrix while appearing as PW-2 on 19.10.2011

deposed on the same lines as she had stated in her complaint. She

stated that the appellant under the influence of liquor used to rape her.

She used to cry a lot but the appellant never cared and kept on raping

her. Due to the threats extended by the appellant, prosecutrix did not

disclose the fact of immoral act of her father to anyone. Once Aarti,

her cousin noticed marks on her breast and asked the reason for the

same, but she did not disclose anything to her. However, Aarti told her

mother and when prosecutrix visited their house, on asking of mother

of Aarti, prosecutrix disclosed her about the dirty acts of her father.

The prosecutrix along with her sister then went to her brother‟s place

and disclosed the facts to wife of her brother. The appellant then came

there and forced them to leave the house to which prosecutrix refused.

At this, appellant got furious and lodged a complaint against her

paternal aunt and brother. She also stated that the appellant has been

raping her since she was only 8 years old. In her cross-examination

she stated that the appellant used to rape her only under the influence

of liquor and sometimes it was on 2-3 occasions in a month and

sometimes more than that. She stated that she had spoken and narrated

the truth and had not made the statement at the instance of her elder

brother and paternal aunt.

6. Kamla (PW-3) deposed that the appellant is her brother-in-law

(Devar). The appellant was residing at Jhuggi No.502, Phase-II,

Shahzada Bagh, Inderlok, Delhi with his minor daughter (prosecutrix)

and Usha and minor son. About 4-5 days prior to registration of the

case, prosecutrix came to her house and told her that her father

(appellant) was committing rape on her for the last two years. She

gave Rs.20/- to the prosecutrix and asked to tell her bhabhi, Sapna, at

Paschim Vihar about the factum of rape. Then, prosecutrix left for

Paschim Vihar with her sister. On 22.03.2011, prosecutrix came back

with her bhabhi Sapna and thereafter she and Sapna took the

prosecutrix to the police station and stated the entire facts of rape and

then case was got registered. In her cross-examination, she stated that

she was not on visiting terms with the appellant although the children

of the appellant used to visit them. She love prosecutrix and her sister

in the same way as she love her children. She denied the suggestion

that she has given false statement at the instance of prosecutrix.

7. The sister-in-law of the prosecutrix, Sapna had appeared as

PW-8. In her statement, she had indicted the appellant inter alia,

stating that she along with her husband had been living separately and

her sister-in-law (prosecutrix) and other sister-in-law and her younger

brother-in-law used to live separately with the appellant. On 20th

March, 2011, her both sisters-in-law came to her house and stayed with

them. On 21st March, 2011, the appellant came to their house and

asked her sister-in-law to come home with him, however, her sisters-

in-law refused to go with him. When she asked them about the reason

as to why they were not willing to go, they told her that the appellant

used to commit rape on the prosecutrix and the prosecutrix also told

her that the appellant has been doing the immoral act with her for the

last two years. Then the matter was reported to the police and the

paternal aunt also accompanied them to police station. Her sister-in-

law (prosecutrix), was medically examined. On 22nd March, 2011, the

appellant was arrested from Inderlok Metro Station and his personal

search was conducted. In her cross-examination, she has stated that

she had got married in November 2009 and her mother-in-law was

alive at the time of her marriage. She had been living separately since

her marriage as relations between her husband and appellant were not

cordial and neither she was on visiting terms to the house of the

appellant nor her sisters-in-law or any other family members used to

visit them. Her sister-in-law (prosecutrix) came to her for the first time

on 20th March, 2011. She denied that she in collusion with her sisters-

in-law falsely implicated the appellant.

8. There are no material contradictions in the statements of

prsoecutrix made to the police, statement under Section 164 Cr. P.C.

and the statement made in Court, while appearing as PW-2. Further,

statement of the prosecutrix is corroborated in material terms by the

testimonies of PW-3 and PW-8.

9. The prosecutrix was medically examined by Dr.Meetu, Sr.

Gynae, Hindu Rao Hospital, Delhi (PW-11) on 31st March, 2011, at

about 7.50 p.m. The MLC of the prosecutrix has been exhibited as

Ex.PW11/C. As per MLC, there were no signs of any external injuries

on the body of the prosecutrix, hymen ruptured was old and one finger

can be easily inserted. Therefore, MLC clearly shows that prosecutrix

was being sexually assaulted since long.

10. According to learned counsel for the appellant, the factors which

render the prosecution version vulnerable are firstly, there was

unexplained delay in lodging the FIR. Secondly, the medical evidence

indicated that there were no external injuries and therefore, her version

that she was raped by the appellant is not believable. Thirdly, the

prosecutrix has deposed falsely at the instance of her paternal aunt

(PW-3) and her brother as there were bitter relations between the

appellant and PW-3.

11. Here with regard to delay in lodging the FIR, we would like to

observe that the delay in lodging the FIR cannot be used as a ritualistic

formula for doubting the prosecution case and discarding the same

solely on ground of delay in lodging the First Information Report. The

delay has the effect of putting the Court on its guard to search, if any

explanation has been offered for delay, and if offered, whether it is

satisfactory or not. If the prosecution fails to satisfactorily explain the

delay and embellishment in the prosecution version on account of such

delay, the same would be fatal to the prosecution. However, if the

delay is explained to the satisfaction of the Court, the same cannot by

itself, be a ground for disbelieving and discarding the entire

prosecution version.

12. The evidence of Kamla (PW-3), Sapna (PW-8) read with that of

the victim (prosecutrix) clearly explain as to why the FIR was lodged

after such a delay. The evidence of the aforesaid three witnesses

clearly show that due to the threat extended by the father (appellant),

prosecutrix was under fear and, therefore, she did not disclose this fact

to anyone. Moreover, the prosecutrix was a motherless child and it is

obvious that at such a tender age of about 8 years approximately, she

would not have been able to disclose the shameful act of her own

father when the father himself happens to be the assailant in the

commission of such beastly crime, one can visualize the pathetic

situation in which the girl would have been placed.

13. Rape is immorality of the highest order but would be extremely

difficult for anyone to lightly brush aside such a conduct by stating that

either it was committed in a fit of anger or rage or such other similar

situation. If such grotesque offence of rape has been committed by

anyone, other than the father himself, the victim would have had every

opportunity to cry for solace in her father or mother. In this context,

we are only reminded of the proverb when the „fence eats the crops‟.

14. Further, Supreme Court in Ramdas & Ors. vs. State of

Maharashtra, (2007) 2 SCC 170, observed that:-

"24. ........... In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. State of Hyderabad [(1955) 1 SCR 1083 : AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact."

15. As regards the absence of injuries, it is well settled that absence

of injuries on the person of the prosecutrix is not always fatal to the

prosecution case. We have already noticed that the delay in medical

examination of the prosecutrix was occasioned by the factum of

lodging of the FIR having been delayed for the reasons which we have

already discussed. The prosecutrix was in her teens. The perpetrator

of the crime was an able-bodied youth bustling with energy and

determined to fulfill his lust having succeeded in forcefully committing

rape upon the victim where there was none around to help the

prosecutrix in her defence. The injuries which the prosecutrix suffered

or might have suffered in defending herself and offering resistance to

the appellant were abrasions or bruises which would heal up in the

ordinary course of nature within two to three days of incident.

Absence of visible marks of injuries on the person of the prosecutrix

on the date of her medical examination would not necessarily mean

that she had not suffered any injuries or that she had offered no

resistance at the time of commission of the crime. Absence of injuries

on the person of the prosecutrix is not necessarily an evidence of

falsity of the allegation or an evidence of consent on the part of the

prosecutrix. It will all depend on the facts and circumstances of each

case.

16. Lastly, contention of learned counsel for the appellant that the

prosecutrix has deposed falsely at the instance of her paternal aunt due

to inimical relations between the appellant and sister-in-law of the

appellant is devoid of any merit. The appellant in his statement under

Section 313 Cr.P.C. has stated that there were bitter relations between

him and his sister-in-law since long, as her brother had fled away with

his wife in the year 1999. The said explanation or justification does

not merit acceptance. There is no material or evidence adduced to

prove this factum. Kamla (PW-3) was not cross-examined on the said

aspect. No question with respect to the appellant was put to her.

Further, it is relevant to note that it was put to the prosecutrix (PW-2)

as a suggestion in her cross-examination that the appellant was falsely

implicated at the instance of elder brother and paternal aunt of the

prosecutrix whereas it was put to paternal aunt Kamla (PW-3) that she

has deposed falsely at the instance of the prosecutrix. The same shows

lack of clarity and hollowness in the case of the appellant. We do not

see any reason to disbelieve the prosecutrix/child witness, paternal aunt

Kamla (PW-3) and sister-in-law (PW-8) as well as the MLC which is

Ex.PW11/C.

17. Further, it is well settled law that the prosecutrix complaining of

having been a victim of the offence of rape is not an accomplice after

the crime. There is no rule of law that her testimony cannot be acted

without corroboration in material particulars. She stands at a higher

pedestal than an injured witness. In the latter case, there is injury on

the physical form, while in the former it is both physical as well as

psychological and emotional. However, if the court of facts finds it

difficult to accept the version of the prosecutrix on its face value, it

may search for evidence, direct or circumstantial, which would lend

assurance to her testimony. Assurance, short of corroboration as

understood in the context of an accomplice would do.

18. At the conclusion of the arguments, learned counsel for the

appellant then pleaded for reduction of sentence of life imprisonment

awarded to the appellant by learned trial Court. Learned counsel for

the appellant, however, could not highlight any mitigating

circumstance.

19. The Supreme Court in State of H.P. vs. Asha Ram, (2005) 13

SCC 766 observed:-

"22. This leads us to consider as to the quantum of punishment. The trial court on conviction sentenced the respondent to 5 years' rigorous imprisonment and a fine of Rs 1000 and in default rigorous imprisonment for 3 months. Here is a case where the crime committed by the respondent not only delicts the law but it has a deleterious effect on civilised society. Gravity of the crime has to be necessarily assessed from the nature of

the crime. A crime may be grave but the nature of the crime may not be so grave. Similarly, a crime may not be so grave but the nature of the crime may be very grave. Ordinarily, the offence of rape is grave by its nature. More so, when the perpetrator of the crime is the father against his own daughter it is more graver and the rarest of rare, which warrants a strong deterrent judicial hand. Even in ordinary criminal terminology a rape is a crime more heinous than murder as it destroys the very soul of a hapless woman. This is more so when the perpetrator of the grave crime is the father of the victim girl. A father is the fortress, refuge and the trustee of his daughter. By betraying the trust and taking undue advantage of trust reposed in him by the daughter. Serving food at odd hours at 12.30 a.m. he ravished the chastity of his daughter. He jeopardised her future prospect of getting married, enjoying marital and conjugal life, has been totally devastated. Not only that, she carries an indelible social stigma on her head and deathless shame as long as she lives.

23. Having said so, regarding the sentence we are tempted to quote the observation of Justice Pandian in Madan Gopal Kakkad [(1992) 3 SCC 204 : 1992 SCC (Cri) 598] where it has been observed that: (SCC p. 226, para 57) "Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand."

20. Also in Prabhunath vs. State, Crl. Appeal No.335/2005

decided on 23.03.2009, a Division Bench of this Court observed that

the penal code prescribes the maximum punishment for rape as

imprisonment for life. Thus, the legislative intent is that in extreme

case of rape sentence to be imposed should be of imprisonment for

life. Obviously, in cases less than the extreme, the sentence has to be

less. What would be the instances of extreme cases of rape? First and

foremost would be the acts of brutality which may accompany a rape.

The second would be the trauma inflicted, other than the trauma of

rape, for example, where the rape victim is beaten or threatened with

death, is battered etc. The third would be where the offender is in a

dominating position and breaches the confidence of a victim for

example, in near relation of the victim being the offender.

21. The case at hand shows to what bottomless pit speed of

depravation and lust a person can go down. As indicated at the

threshold, the custodian of the trust has betrayed the same. The father

is supposed to protect the dignity and honour of his daughter. This is a

fundamental facet of human life. If the protector becomes the violator,

the offence assumes a great degree of vulnerability. The sanctity of

father and daughter relationship gets polluted. It becomes an

unpardonable act. It is not only a loathsome sin, but also abhorrent.

The case at hand is a sad reflection on the present day society where a

most platonic relationship has been soiled by the pervert and degrading

act of the father. The evidence on records clinchingly nails the

appellant as the offender.

22. In this case, the appellant‟s lustful acts have indelible scar not

only physically but also emotionally on the victim. No sympathy or

leniency is called for.

23. In the light of the aforesaid discussion, we affirm the judgment

dated 13th January 2012. We also maintain the order on sentence dated

20th January, 2012 passed by the learned trial Court.

24. Ex consequenti, the appeal, being sans merit, stands dismissed.

25. The appellant is in judicial custody, a copy of this judgment be

delivered to him through concerned Superintendent Jail.

(VED PRAKASH VAISH) JUDGE

(P.K. BHASIN) JUDGE October 04, 2013 gm