Brijesh vs State
2013 Latest Caselaw 3849 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Reserved on: 24th July, 2013
%                                Date of Decision: 2nd September, 2013

+                      CRIMINAL APPEAL NO.1198/2012

BRIJESH                                                     ..... Appellant
                        Through:     Mr.Sudhir Nandrajog, Sr. Adv. with
                                     Ms.Jagriti Ahuja, Mr.Virender Rawat
                                     & Mr.Y.S. Chauhan, Advocates.

                        Versus
STATE                                                     ..... Respondent

                        Through:     Mr.Sanjay Lao, APP for State.

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

VED PRAKASH VAISH, J:

1. The appellant Brijesh has assailed the judgment dated

03.09.2012 passed by learned Additional Sessions Judge (Outer) in

FIR No.1341/07, P.S. Sultan Puri whereby the appellant was convicted

under Section 376 and 506 of Indian Penal Code („IPC‟ for short) and

the order on sentence dated 03.09.2013 whereby the appellant was

sentenced to undergo life imprisonment for the offence under Section

376 IPC along with a fine of Rs.1 lakh and in default of payment of

fine, S.I. for a period of two years and rigorous imprisonment for a

period of five years and a fine of Rs.10,000/- and in default of payment

of fine, he was to undergo S.I. for a period of one month under Section

506 IPC. Out of the said amount of Rs.1 lakh, a sum of Rs.75,000/-

was ordered to be paid to the prosecutrix towards the compensation,

after the expiry of period of appeal, revision etc.

2. Briefly stated, the case of the prosecution is that on 22nd August,

2007, complainant/prosecutrix „P‟ (assumed name) in the presence of

her husband got a complaint registered and upon the said statement, a

rukka was prepared and FIR No.1341/2007 under Sections 341/354

IPC was consequently registered. As per the statement, the prosecutrix

stated that she had been living at the present address along with her

three children and husband. The landlord Brijesh used to come to the

said premises on one pretext or another and kept a bad eye on her and

she had asked him not to come to her room behind her husband‟s back.

On 22nd August, 2007, said landlord came to her room at about 11.15

a.m. on the pretext of checking the electric metre. He caught hold of

her and blocked her way and started rubbing her breasts on which she

raised an alarm as a result of which he ran away. Thereafter she told

about the incident to her husband and the information to the police was

given. On that day, the prosecutrix was sent for medical examination,

however, she refused to undergo internal medical examination which

she later on explained was due to the threat given to her husband that if

she did go for medical examination, it would lead to dire consequences

for her son. On that day, an FIR under Sections 341/354 IPC was

registered through Constable Mahesh. The investigation was entrusted

to ASI Rakesh (Retired) (PW-12) who prepared the site plan, recorded

the statement of witnesses and on pointing out of the prosecutrix, the

accused/appellant was arrested in this case and was later on released on

bail. On 23rd August, 2007, the prosecutrix along with her husband

again went to Police Post Budh Vihar and informed that the appellant

had committed rape upon her and also due to threat extended to her,

she had not reported regarding the same earlier but since the appellant

was again threatening her, she had come to report of the incident now.

On that day, the prosecutrix alleged that the appellant had committed

rape on her after having come to her house. The appellant after

entering the tenanted premises, close the door, caught hold of her from

behind, shut her mouth and thereafter raped her against her will. While

leaving, the appellant threatened the prosecutrix that he would kill her,

her husband and the children. Initially under the influence of threat,

the prosecutrix did not report about the incident of rape, however, on

an encouragement by her husband, she got her second statement

recorded wherein charges under Sections 376, 506 IPC were added to

the initial FIR. On this day, the prosecutrix was again got medically

examined and her statement under Section 164 Cr.P.C. was recorded

by learned Metropolitan Magistrate, Delhi. The exhibits were sent to

FSL and after completion of the investigation, chargesheet was filed.

The trial was conducted, statement of witnesses were recorded.

Leading finally to the passing of the impugned judgment and order on

sentence.

3. Learned Senior counsel for the appellant contended that the

prosecutrix did not make any allegation of rape in the first statement

made by her on 22nd August, 2007 and even as per medical

examination conducted on that day, no external injury was observed.

However, prosecutrix later on changed her stand completely and in the

statement dated 23rd August, 2007, alleged that the appellant had

committed rape on her. The statement of prosecutrix under Section

164 Cr.P.C. is full of contradictions and inconsistent with her earlier

two statements recorded on 22nd August, 2007 and 23rd August, 2007.

Initially, when she was produced for her medical examination, she

refused to undergo internal medical examination which was

subsequently got done on the next day. Further, the prosecutrix had

stated that on the date of incident, her three children aged between 7-10

years were present in her house. She also stated that she asked her son

to call for help, however, none of the children were produced as

witness before the trial Court. The prosecutrix also claimed that she

raised an alarm. The house in which she was residing is a small house

and located in a crowded area. In such a situation, it is highly

improbable that no one in the neighbourhood had seen the occurrence

or had come for her help. Learned senior counsel for the appellant also

urged that there are contradictions in the testimonies of prosecutrix

(PW-4) and Shailender Singh (PW-9) with regard to the time of

incident, alleged offence, telephonic communication between them, the

alleged time and call made to the police for reporting the incident and

even thereafter.

4. Learned senior counsel for the appellant lastly contended that

the complainant/prosecutrix is a habitual complainant and she and her

husband were involved in various other criminal cases.

5. Per contra, learned APP for the State contended that the

conviction in rape cases can be based on the sole testimony of the

prosecutrix without any corroboration if it inspires confidence.

Although the prosecutrix had initially got the FIR registered under

Sections 341, 354 IPC and she had refused to get her internal medical

examination done on the first day when she was taken to the hospital,

however, she and her husband have explained the reason for the same

being the fear of constant threat from the appellant and his brother.

Both in her testimonies before the trial Court and in her statement

under Section 164 Cr.P.C., she had mentioned about the appellant

committing rape on her. Merely, the factum of absence of injury or

any injuries on the private parts of the victim would not by itself falsify

the case of rape nor be construed as evidence of consent. Even

otherwise also, in the case of a grown up family and especially when

she is married having kids, the absence of symptoms and features on

the private part of the body would not be itself sufficient to rule out the

occurrence of rape. He further contended that the prosecutrix had

come to the locality only 10 to 12 days prior to the incident and did not

know anyone there. In such a situation, it is quite likely that her call

for help was left unheard and unattended. She also stated in her

testimony that the appellant had gagged her. The discrepancies in the

statements of the prosecutrix (PW-4) and Shailender Singh (PW-9) are

not material in nature so as to vitiate the case of the prosecutrix.

6. Learned APP for the State also contended that the absence of

examination of independent witness in the present case would not be

sufficient to rule out the occurrence of offence even when the

testimony of the prosecutrix is cogent and sufficient.

7. We have heard learned senior counsel for the appellant and

learned APP for the State and perused the material on record.

8. At this stage, it would be relevant to produce the testimonies of

the prosecutrix „P‟ (PW-4) and her husband Shailender Singh (PW-9)

respectively before the trial Court. The prosecutrix (PW-4) in her

statement before the trial Court deposed that about three years back,

she along with her husband and children were residing at Budh Vihar,

Phase-II, as tenant in the house of the appellant which house was taken

on rent eight days prior to the date of incident i.e. on 22nd August,

2007. On the said date at about 11.30 a.m. when she was cooking food

in the kitchen and her children were playing in the room and her

husband had gone to his duty, the appellant came in the house on the

pretext of taking tap lying in the room of other tenant. Two days prior

also, he had come to her room on the pretext of fixing the electricity

metre and on that day, he had enquired from her the duty hours of her

husband. Immediately after coming in the house, the appellant closed

the main gate of the room where her children were playing, her son

called her as to why the appellant was closing the room. When she

turned, she saw that the appellant was closing the main gate of the

house as well. On inquiry, the appellant replied that he was closing the

main gate as he wanted to fix the gate of latrine upstairs. She asked

him to open the main gate. The appellant pretended to go upstairs and

she went inside the kitchen. However, the appellant followed her in

the kitchen and hugged her. She cried for help and asked her son to

call someone from the window for help. When she tried to raise an

alarm, he put his handkerchief on her mouth and made her lie on the

floor near the kitchen. She tried to give a kick from her leg to the

appellant, but he overpowered her in such a manner as she could not

escape. Thereafter, the appellant committed rape on her, forcibly and

without her consent. The appellant threatened her that he would kill

her husband and children in case she disclosed this fact to anyone.

Thereafter, he went away and she did not tell this fact to anyone. She

made a call to her husband after one or one and a half hour later from

the STD booth who came to the house after 10-15 minutes and she

narrated the incident to him asking him to shift to the native village

from there. Her husband called the police and the police officials of

Police Station Sultan Puri came at her residence and recorded her

statement on 22nd August, 2007 which is exhibited as Ex.PW4/A. She

had narrated the incident of rape to the police official of Budh Vihar

in P.S. Sultan Puri on that day but the brother of the appellant was a

local political leader and under his influence the true facts as narrated

by her with regards to rape by the appellant were not recorded by the

police in her said statement.

9. Thereafter on 23rd August, 2007, she had gone to P.S. Sultan

Puri along with the media persons and then only her statement was

recorded truly by the police which is Ex.PW4/B. The police took her

for medical examination to the hospital. Her statement was recorded

before the Magistrate which is Ex.PW4/C. She further stated that the

wife and other family members of the appellant came to her room and

gave her beating with chappals when she lodged the complaint against

the appellant.

10. In her first cross-examination conducted on 29th March, 2011,

she stated that she does not know the exact date of her marriage

however, it was performed about 13 or 14 years back. She stated that

the age of her eldest child to be 10 years and second child as 9 years

and the third child as 7 years. At the time of incident, none of her

children were studying in any school. Before coming to Delhi, all of

them were residing in the village and had come to Delhi for the first

time when the incident took place. She also stated that her husband

used to go for work at 9.00 a.m. and return at 7.00 p.m. and he used to

come back to home for lunch and used to leave and come back as per

availability of the work. At the time of incident, she was the only

tenant in the said house as the other tenant had gone to his native

village. She denied the suggestion that the house was surrounded by

many other houses and stated that on one side of her house, there was a

vacant land and on the side of the tenanted premises, there is one other

house where people were residing. She admitted that in front of her

tenanted premises across the gali there were residential houses

however, she does not know that people were residing in those houses

or not. She further stated that the said gali was frequented by the

public persons and in the tenanted room, there was only one window

which opened towards the said gali. The door of the kitchen opened

towards the main gate of the said house towards gali and the door used

to be closed by her when her husband was away for work, but

sometimes it remained open when her children used to play outside.

At the back side of the tenanted premises, there was no window and it

was a closed wall. She further stated that her husband never asked the

appellant to get a door fixed at the toilet and also that neither her

family and nor the appellant ever came and went to each other‟s house.

She admitted of having informed the police that on the date of incident

her children were playing inside the tenanted room and also that the

appellant had come and closed the door of this room and the main gate

of the premises. She denied the suggestion that she told to the police

that her son asked her as to why the appellant had closed the door. She

also admitted of having told the police that she asked the appellant as

to why he had closed the main door and asked him to open it, the

appellant entered in the kitchen, she having cried for help and asking

her son to call someone for help. In reply to a question put to her on

behalf of the appellant as to whether the appellant had some

equipment/implement at the time when he came inside the said

premises, she replied that the appellant was having a knife in his hand.

She also stated that the appellant had come to her house to check the

electric metre and lastly, stated that her saree and blouse were in the

same position which she was wearing till the time the appellant had

stayed and the appellant, wearing pant and shirt intact, went away after

checking the metre.

11. In her further cross-examination recorded on 26th April, 2011,

the prosecutrix stated that she did not meet any neighbour after the

appellant had left the house nor did she disclose about the incident to

anyone in the neighbourhood. She called her husband from a PCO on

the main road near her house after about 10/15 minutes of the incident.

However, she did not know the name of the PCO booth owner nor did

she discuss the incident with him. She admitted that she did not inform

the police and only after she narrated the incident to her husband, he

informed the police and discussed the incident with some neighbourer

of whose names, she was not aware. She denied the suggestion that

she knew that all the relatives of the appellant were residing in the

same locality in the neighbourhood and that her husband did not talk

with any of the relatives of the appellant before calling the police. She

has stated that the police made inquiries from her after reaching at the

spot, recorded her statement and that she was taken in a separate

vehicle than one in which her husband and children were taken to the

police station. Statement of her husband was not recorded in her

presence at her home and was recorded at the police station although

the inquiry was made from her elder son, his statement was not

recorded. She was not got medically examined initially and was got

examined later on. After returning from police station, she, her

husband and children did not stay in the rented premises at night and

stayed at a house in a gali nearby called Malik Wali Gali and on the

next day, she was taken by the members of Women Commission to the

police Station and was, thereafter, got medically examined. Her

statement was also recorded by the Magistrate. She lastly has stated

that the tenanted premises was on rent of Rs.1,000/- per month and

denied that at the time of negotiation for taking the premises, it was

agreed that the security of Rs.20,000/- would be paid after the supply

of electricity to the tenanted premises and also that they did not pay the

security and rent or that the appellant had asked them to vacate the

premises.

12. In her statement under Section 164 Cr.P.C. before the

Magistrate, the prosecutrix „P‟ reiterated the factum of appellant

having come to her home on the date of incident and committing rape

on her and also that he threatened her of dire consequences if so

revealed about it to anyone. She further stated that initially she refused

to tell about the incident to her husband also, however, later on, on his

insisting , she revealed about the occurrence to him who informed the

police and the brother of the appellant, that the appellant had

committed rape on her. When she was taken to the police station and

asked for medical examination, she was refused, however, when she

insisted, she was taken to the hospital. When she reached there, her

husband and children mere made to wait there in the police van along

with gundas who threatened her husband that she should not get herself

examined, otherwise they will kill him and their children, on which she

refused to undergo her examination that day. Thereafter she was taken

to the police station where she was forced to write that nothing had

happened with her and was further threatened that if she took any

further proceedings, she would not be spared. However, on the next

day, on her informing, some women from Women‟s Commission were

accompanied by her to the police station who got further proceedings

done. She lastly stated that she was beaten up by gundas, her husband

was kept in jail and she was under constant threat to her life.

13. Shailender Singh (PW-9) has stated that he was working as a

plumber. The prosecutrix „P‟ is his wife and he has three children. He

leaves for work at about 8.30 or 9.00 a.m. On 22 nd August, 2007, he

had gone for his work at about 9.00 a.m. when he received a call from

his wife at about 11/11.30 a.m. who called him immediately at home as

the appellant had misbehaved with her. He came back to his wife

where his wife narrated the entire incident on which he called the

police at number 100. Thereafter the police took them to the police

post and they were made to sit in Kothari type room. At the police

post, brother of the appellant who was a BJP leader of the area had

reached along with many other persons and started talking with the

police. He refused to accept the offer given by them for closing the

case and not to take his wife for medical examination. When he

insisted, the police took his wife to the hospital in a separate vehicle

and he and his three children were taken to the hospital by the brother

of the appellant along with other persons. On the way to the hospital,

he was threatened by those people that they would kill his only son in

case he insisted on getting the medical examination of his wife and

getting the case registered. Thereupon he asked his wife not to go to

the hospital as his son was made to sit by those persons in the same

vehicle. Resultantly, they came back without her medical got done.

He insisted the police officials and the people who were threatening

him that he would leave Budh Vihar forever and go to his village.

Next day, he decided to go to higher authorities for getting the case

registered with the intervention of DCP and Women‟s Commission on

which the police recorded the statement of his wife and medical

examination of his wife was got conducted. Police went to the

appellant‟s house which was found locked but he was apprehended

later on from his house and arrested vide arrest memo Ex.PW9/A and

his statement was recorded by the police. In his cross-examination, he

has stated that the premises were taken on rent 12 days prior to the date

of incident i.e. 23rd August, 2007 and the rent of the house was

Rs.600/- per month. He denied that the rent was Rs.1,000/- per month

besides the security amount of Rs.20,000/- and further stated that he

had met with the appellant for the first time on the day of incident as

earlier he used to go to work in the morning and come late in the night.

He denied that it was agreed at the time of creation of tenancy that the

rent would be paid when the electric metre would be installed besides

the said security amount deposited and admitted that there was another

tenant in the said premises who was relative of the appellant. The

premises consisted of one room and kitchen at the ground floor and

there was no window or door at the back side of the said premises.

There was only one window in the room which opened towards the

gali. He denied that he and his wife insisted the appellant for getting

the door fixed at the latrine and also that there were houses in front of

and by the left side of the tenanted premises. He further stated that he

did not know any neighbour during his 10/12 days stay in the premises

and also that the appellant never visited his house prior to the date of

incident and he did not know him during the said period. The gali in

front of the premises was hardly frequented by the people. At the time

of incident, only 10 or 12 houses were situated in the entire gali. On

the date of incident, he was working at a house near the bus terminal

when he got a call from his wife. On reaching, he was advised by the

neighbours who had gathered near the house to make a call at phone

No.100 to the police regarding the incident. He gave a call to the

police at about 12.30 p.m., within 15 minutes of his reaching the house.

Police arrived at the spot within five minutes of his call. The

neighbours were present in the gali when the police had come. No

inquiry was made by the police at that time as the wife of the appellant

and his other relatives had come there to attack and beat her.

Subsequently, they were taken to police post and thereafter their

statements were recorded at the said tenanted premises also, inquires

were made from his wife and they went to the hospital from the police

post. On the intervening night of 22/23 August, 2007, they remained at

the tenanted premises and on 23rd August, 2007, they met with lady

officials of Women Commission to whom they orally explained the

incident. The said lady officials reported the matter to DCP and

regarding the threat extended, he sent a fax /registry to the authorities.

He denied the suggestion of having not made any complaint to the

DCP or to the other authorities and affirmed that his statement was

recorded and one neighbour was put behind the bars for threatening

him. His wife was taken to the hospital where her medical was got

done. He denied that his wife had gone with him to make purchases in

the market from the time of incident till 23 rd August, 2007. He also

denied the suggestion that he has falsely implicated the appellant to

build a pressure for not to get the tenanted premises vacated.

14. Now we shall deal with the incriminating circumstances one by one:-

I Conviction on the sole testimony of the prosecutrix

15. The Supreme Court in State of Punjab vs. Gurmit Singh and

Ors., (1996) 2 SCC 384 has held that

"8. ................................The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding.

Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.............

9. We are in respectful agreement with the above exposition of law. In the instant case our careful analysis of the statement of the prosecutrix has created an impression on our minds that she is a reliable and truthful witness. Her testimony suffers from no infirmity or blemish whatsoever. We have no hesitation in acting upon her testimony alone without looking for any „corroboration‟. However, in this case there is ample corroboration available on the record to lend further credence to the testimony of the prosecutrix."

16. Also in Narender Kumar vs. State (NCT of Delhi), (2012) 7

SCC 171, the Supreme Court has observed as under:-

"20. It is a settled legal proposition that once the statement of the 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.

21. 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 (sic circumstantial), which may lend assurance to her testimony. (Vide Vimal Suresh Kamble v. Chaluverapinake Apal S.P. and Vishnu v. State of Maharashtra.)"

17. The law on conviction in cases of rape on the basis of sole

testimony of prosecutrix is no longer res integra. It is a well settled

law that the conviction can be based on the sole testimony of the

prosecutrix if it inspires confidence and corroboration is to be looked at

only if the Court finds that it is difficult to accept her testimony on its

face value. The Court is to act with utmost sensitivity and the

prosecutrix version is to be rejected only if in the circumstances of a

case Court finds it impossible and devoid of merit. There is a balance

need to be drawn so that none of the sides in a prosecution is

prejudiced and the Court has to scrutinize facts of each and every case

in its own terms. Same view was taken by Supreme Court in Gurmit

Singh's case (supra) and Narender Kumar's case (supra).

18. In the instant case, on the complaint of the prosecutrix initially

the FIR was lodged under Sections 354/341 IPC and later on Section

376/506 IPC were added. The prosecutrix and her husband both stated

the reason for this was a threat given to them by the appellant and his

relatives. Initially on 22nd August, 2007 she also refused to undergo

medical examination which was confirmed by Dr.Renu Gupta (PW-6)

in her statement, the reason for the same was again stated by the

prosecutrix to be the threat given by the appellant. Even that being so,

neither has she or her husband produced any evidence to show that

they took steps against the said threat or made any representation about

the same to the higher authorities. In such a case, where the

prosecutrix has changed her stand, in the absence of corroboration,

placing reliance solely upon her testimony would not be proper.

II Absence of Medical examination

19. Initially when the prosecutrix „P‟ was examined on the date of

incident i.e. 22nd August, 2007, she refused to undergo internal medical

examination. Hence the MLC (Ex.PW5/A) recorded on that day

mentions that there were no marks of any external injury on her body

and also that she was not willing for internal examination. On the

subsequent date i.e. 23rd August, 2007, the prosecutrix „P‟ got herself

internally medically examined and as per the MLC, no injuries were

found, hymen ruptured was described as old and her uterus size could

not be assessed. On that day, the doctor seized her petticoat, vaginal

swab, pubic hair which were sealed and handed over to WHC Nirmala

(PW-1).

20. As per the FSL report of the said sealed pullanda, human semen

were detected on exhibits 1, „2a‟, „2b‟ and 4 which are petticoat having

few whitish stains, small cotton wool swab on a wooden stick kept in a

plastic tube, small cotton swab on a wooden stick kept in a plastic tube

and one underwear respectively. Further as per the said FSL report

(Ex.PY), blood group „O‟ was found on Ex.1 whereas Ex.„2a‟ and

„2b‟ showed no reaction and inconclusive result was found on Ex.4.

However, no further examination was conducted in this regard. There

is no indication in the said report so as to link the semen found on the

said samples to the appellant. Even with regard to Ex.1 showing „O‟

blood group, no indication was given as to link the same to the

appellant in the present case.

III Non-examination of son of the prosecutrix and neighbours

21. The prosecutrix had, both in her statement under Section 164

Cr.P.C. and the testimony before the trial Court stated that the

appellant on entering the premises closed the main gate of the room

where her children were playing and her son asked her as to why the

appellant had closed the door. She has further stated that when the

appellant entered the kitchen, hugged her, she cried for help and asked

her son to call someone for help from the window. The prosecutrix „P‟

has further admitted in her cross-examination that her eldest child is 10

years of age, second child is 9 years of age and third child is 7 years

old and all her children were not studying in school at the time of

incident. However, none of the said children were produced as

witnesses before the trial Court. Nor has the veracity of her statement

that she asked her son to call out for help has been so made out in the

absence of such an examination.

22. Shailender Singh (PW-9), the husband of the prosecutrix has

stated that when he came back to his house, neighbours had collected

outside the house but, he was advised by his neighbours who had

gathered there to make a call at phone No.100 regarding the incident.

But statement of none of the neighbours was recorded by the

Investigating Officer nor any neighbourer has been produced in the

Court.

IV Conduct of the prosecutrix

23. As we have already observed that the prosecutrix „P‟ in the

testimony before the Court had stated that on 22 nd August, 2007, she

had informed the police about the factum of rape, however, under the

influence of appellant‟s brother, true facts were not recorded on that

day which were done subsequently on 23rd August, 2007 when she had

gone to the police station with media persons. In her statement under

Section 164 Cr.P.C. before the Magistrate, she has also stated that

initially on the date of incident she, under the threat refused to undergo

her medical examination which was subsequently done on 23 rd August,

2007, when she went with the women of Women‟s Commission.

Shailender Singh (PW-9) has reiterated the stand in his testimony that

under the threat to life, he asked his wife to refuse to undergo medical

examination on 22nd August, 2007 which was done only on the next

day.

24. It is pertinent to note that the prosecutrix „P‟ has although

alleged the existence of threat, however, no complaint regarding this

was made to the higher authorities. Also Shailender Singh (PW-9) in

his cross-examination stated that he sent fax/registry to the authorities

about the threat extended to his child and to them however, he has not

produced the said documents before the Court. PW-4 and PW-9 have

also stated that they were accompanied to the police by some women

from Women‟s Commission however, the said witnesses were neither

produced before the Court nor they were ever examined.

V History of past complaints filed by and against the prosecutrix and her husband

25. Learned senior counsel for the appellant pointed out that an

application bearing Crl.M.A. No.17978/2012 for taking on record

additional evidence was filed by the appellant and the said application

was allowed on 11th February 2013 by this court and the matter was

remanded back to the trial Court for taking additional evidence of the

prosecutrix „P‟ (PW-4) and her husband, Shailender Singh (PW-9).

Learned senior counsel for the appellant also pointed out that certified

copies of previous FIRs lodged by the prosecutrix were tendered by the

counsel for the appellant before the trial Court on 27 th April, 2013

which were exhibited as Ex.DZ-1 to Ex.DZ-9. When the prosecutrix

„P‟ (PW-4) and Shailender Singh (PW-9) were recalled for further

examination before the trial Court, their statements were recorded on

10.4.2013 and 15.4.2013 respectively and they admitted various FIRs,

the details of which are reproduced as under:-

List of FIRs other than the present Prosecutrix (PW4) and Husband (PW9)

FIR NO. (in P.S. (under Complainant Accused Status year) section)

FIR No.178/07 Kotwali Nagar, Shailender Gulbir Singh + Person is Case Bulendsehehar, Singh one other name acquitted No.277/07- UP, u/s (husband of & address registerd on 452/376/506 IPC prosecutrix) unknown 27.3.2007 pg No.20

FIR Kotwali, „P‟ Guddu Pandit Pending trial No.623/2011 CS dated Bulendshehar, UP, (Prosecutrix) No.445...

14.8.2011          u/s 420/506/406
(status report)    IPC

FIR No.50/08,       Katghar,           Shailender      Yashpal Singh           Pending,
dated 2.2.2008     Muradabad u/s       Singh           Sharma                  cancellation
pg 98              376/506 IPC         (Husband of                             report vide
                                                                               no.28/08
                                       prosecutrix)
                                                                               dt. 27.2.08
                                                                               forwarded

Case Crime         Kotwali Nagar       „P‟             Deepak                  Acquitted
No.753/2008        under Section                       Chaudhary
(FIR               452/376/323/506     (Prosecutrix)
No.535/2008        IPC

Complaint on       Kotwali Nagar, UP   „P‟             Naresh Raghav           Settled
13.10.2006         u/s 376/506 IPC
                                       (Prosecutrix)
Pg. No.80-81

Complaint in       Ram Ghat, UP u/s    „P‟             Vipin
year 2006          376/506 IPC
                                       (Prosecutrix)

FIRs against Prosecutrix (PW4) and Husband (PW9)

FIR No.701/2012 Against husband & u/s 366/376/120-B IPC, PS Ramghat, Prosecutrix, Bulendshehar, UP Both on bail FIR No.184/2000 Against husband u/s 110G Cr. P.C., PS Ramghat, Bulendshehar, UP

26. As per the aforesaid table and the statement of prosecutrix

(PW-4) and Shailender Singh (PW-9) recorded by the trial Court as

per the order of this Court in Crl. M.A. No.17978/2012 dated 11th

February 2013, it can be seen that the prosecutrix had admitted of

having got two FIRs registered i.e. FIR No.178/07 against one Gulbir

Singh and FIR No.623/2011 against Guddu Pandit. She had admitted

of compromising the matter with Gulbir Singh whereas her husband

had admitted the factum of registration of four FIRs i.e. FIR

Nos.178/07, 623/2011, 50/08 and Case Crime No.753/2008, out of

which he admitted of having settled three matters i.e., FIR 178/07, FIR

50/08 and Case Crime No.753/2008. Further proceedings under

Sections 366, 376, 120B IPC and under Section 110G Cr.P.C. are

pending against both of them.

27. Learned APP for the State has filed status report dated 5th

February, 2013 in which the verification report with regard to the

various FIRs have been recorded.

28. We are conscious of the fact that in case of additional evidence,

the matter should be remanded back to the trial court for considering

the same but since the matter is pending since 2007, remanding the

matter back to the trial court would cause nothing but delay, therefore,

in the interest of justice, we are considering the factum of previous

litigation by and against the prosecutrix `P‟ in light of her admission

recorded by the Trial Court as per the order of this court, at this

appellate stage.

29. Rape is a sensitive issue which should be dealt with utmost care,

caution and sensitivity. As we have observed above, the conviction

can be based on the sole testimony of the prosecutrix. However, this

can be done only in the cases where her statement inspires confidence.

No doubt some judgments had indicated that in charges of rape etc. the

Court should avoid embarking on detailed consideration of probative

value of materials. However, in our opinion, these do not detract from

the basic time tested norm that the Court has to form a reasonable

doubt about the existence of grave suspicion regarding the commission

of offence. Equally if two views are possible, the one supporting the

accused/appellant has to be preferred. Strict laws such as that dealing

with rape have inherent in themselves a tendency of being misused as

well. The duty of the Court, thus, becomes important to separate the

grain from the chaff. In the present case, besides the informant, there

is no one speaking about the incident as alleged by her. It becomes

important in the present, in contradiction to the judgment of the

Supreme Court in Gurmit Singh's case (supra) and Narender

Kumar's case (supra) to look for the corroboration as the history of

past numerous complaints filed by the prosecutrix and her husband

raise suspicion in the mind of the Court and makes it impossible for us

to rely solely on her testimony. In these circumstances, after careful

consideration, we are of the opinion that there is a reasonable version

which supports the appellant. The material on record also does not

point towards a grave suspicion to warrant the conviction of the

appellant for the offence under Section 376 IPC. As per the above

discussion, in the absence of complaint or any concrete evidence to

prove the allegation under Section 506 IPC, the offence under the said

Section is also not made out.

30. Even though, in the present case, as we have observed above, in

the absence of corroboration the case of the prosecutrix cannot be

„beyond reasonable doubt‟ covered under Section 376 IPC. However,

the fact of the matter remains to be that the prosecutrix had initially

stated in her testimony before the police that the appellant had

forcefully entered her house and caught hold of her and rubbed her

breast. Thereafter he had run away. In such a case while dismissing

her statement in the absence of corroboration looking at the history of

complaints made by her and her husband, one cannot dismiss the case

completely so as to bring it out of the ambit of Section 354 IPC also.

Thus, it is important to discuss the elements of Section 354 IPC at this

stage.

31. In order to constitute the offence under Section 354 IPC mere

knowledge that modesty of a woman is likely to be outraged is

sufficient without any deliberate intention to commit the said offence.

There is no abstract conception of modesty that can apply to all cases.

A careful approach has to be adopted by the Court while dealing with a

case alleging outrage of modesty. The essential ingredients of the

offence under Section 354 IPC are as under:-

i) That the person assaulted must be a woman;

ii) That the accused must have used criminal force on her;

iii) That the criminal force must have been used on the woman intending thereby to outrage her modesty.

32. Intention is not the still criteria of the offence under Section 354

IPC and it can be committed by a person assaulting or using criminal

force to any woman if he knows that by such act the modesty of the

woman is likely to be affected. Knowledge and intention are essential

things of the mind and cannot be demonstrated like physical objects.

The existence of intention or knowledge has to be culled out from

various circumstances in which and upon whom the alleged offences

alleged to have been committed. The factum of molestation and

indignation is in the same position as an injured witness and her

testimony should receive the same weightage.

33. In the instant case, therefore, we alter the conviction of the

appellant from Section 376 IPC to Section 354 IPC. The appellant is

sentenced to undergo rigorous imprisonment of one year and to pay

fine of Rs.25,000/- (Rupees Twenty Five Thousand Only), out of

which a sum of Rs.20,000/- be paid to the victim. In default of

payment of fine, he is further sentenced to undergo simple

imprisonment for a period of one month. Benefit of Section 428

Cr.P.C. be given.

34. The appeal stands disposed of in above terms.

(VED PRAKASH VAISH) JUDGE

(P.K. BHASIN) JUDGE September 02, 2013 gm