Raju vs State
2014 Latest Caselaw 1467 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment reserved on:13.3.2014
                                  Judgment delivered on:20.3.2014

+      CRL.A. 828/2001
       RAJU                                        ..... Appellant
                         Through       Appellant with his counsel
                                       Mr.A.K.Singh, Mr. Jai Singh
                                       Kanwar, Mr. Anurag Gohil, Mr.
                                       Pramod K. Tiwary and Mr. Arun
                                       K. Panwar, Advs.
                         versus
       STATE                                       ..... Respondent
                         Through       Mr. Varun Goswami, APP along
                                       with SI Shashi Kant.
       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 Present appeal has impugned the judgment and order of sentence

both dated 06.8.2001 wherein appellant Raju has been convicted under

Section 376 IPC and has been sentenced to undergo RI for a period of 7

years and to pay a fine of Rs.1000/- in default of payment of fine to

undergo SI for 1 month. Benefit of Section 428 Cr.P.C. had been

granted to him.

2 Record shows that the present FIR has been registered on the

statement of the mother of the prosecutrix Omwati (PW-6). The

complaint was registered on 04.12.1999 wherein it was disclosed by her

that while she was sleeping along with her husband on the ground floor

of their house she heard cries from the roof and on reaching there she

saw that her daughter's clothes were blood-stained; she was crying; she

told her that she had been raped by their neighbour Raju; complaint

Ex.PW-5/A was lodged.

3 The prosecutrix 'R'(PW-1) was taken to the Guru Teg Bahadur

Hospital, Shahdara accompanied by lady constable Neelam (PW-2).

This was on 04.12.1999. Her MLC was proved by Dr.Seema Sinha

(PW-12) as Ex.PW-12/A. No injury marks had been noted. The vaginal

intertis noted admission of one finger; two vaginal smears were taken on

slides and the under-clothes worn by the prosecutrix at the time of the

examination were changed.

4 Statement of PW-1 was recorded under Section 164 Cr.P.C.

before the learned M.M. Mrs.Mamta Tayal, who has been examined as

PW-13 and had proved this statement as Ex.PW-13/A.

5 The father of the prosecutrix Mohan Lal was examined as PW-5.

He has reiterated the version of his wife (PW-6).

6 The Investigating Officer Avtar Singh (PW-14) had prepared the

site plan Ex.14/A; during the course of investigation underwear of the

accused had also been seized which was recovered pursuant to his

disclosure statement. This recovery memo has been proved as

Ex.PW-4/C. The other witnesses of the prosecution included the Sub-

Registrar of Births and Death (PW-9) who had produced the birth record

of the prosecutrix evidencing her date of birth as 14.5.1982; Ram

Vakeel the teacher of the school where the prosecutrix was studying has

been examined as PW-11; ossification report of the prosecutrix and her

X-ray plates have been proved through Dr. Raj Pal (PW-8) and the

boney age report of the victim has been proved as Ex.PW-8/A. The fact

that the victim was physically and mentally unstable was proved through

the version of Dr.Anil Dhal (PW-7). He has issued a disability

certificate in favour of the victim; she had 40% physical disability.

Prosecution has also established that her mental faculties were impaired

by 25%. The CFSL report proved through Dr.Dhruv Sharma (PW-16)

had noted human blood of 'AB' origin on the salwar of the prosecutrix

and the underwear of the accused; although at one point in the report

salwar has been mentioned whereas at another point petticoat has been

mentioned. PW-16 has come into witness box and explained that this

was a typographical error and what he had examined was a salwar and

not a petticoat.

7 On the basis of the aforenoted evidence collected by the

prosecution the accused was convicted and sentenced as afaoresaid.

8 In the statement of the accused recorded under Section 313

Cr.P.C. he had pleaded innocence. His submission was that he has been

falsely implicated in the present case because the parents of the

prosecutrix wished him to marry the prosecutrix whom he did not want

to marry and this false case thus has been planted upon him.

9 One witness Mr.Mahesh Kumar Maurya has been examined in

defence, he knew both the parties i.e. the family of the prosecutrix as

also the accused. He had corroborated the defence sought to be set up

by the accused in his statement recorded under Section 313 Cr.P.C.

10 On behalf of the appellant arguments have been addressed in

detail. It is pointed out that the statement of the prosecutrix suffers from

inherent improbabilities; it is impossible to believe that on a cold winter

morning at 3.00 a.m. the prosecutrix who was physically and mentally

challenged was washing clothes and taking a bath on the roof of her

house and even when she had tried to shout no one heard her cries in the

nearby houses. To support this submission attention has been drawn to

the site plan. It is pointed out that the version set up by the prosecution

is false and in fact malafide and the accused has been falsely implicated

only for the reason that the appellant had refused to marry the

prosecutrix which arrangement was being harped upon by her parents.

Submission being that the versions of the parents of the prosecutrix

PW-5 and PW-6 are contradictory wherein in their statements recorded

under Section 161 Cr.P.C. they had stated that they were sleeping on the

ground floor when they heard the cries of their daughter who was on the

roof yet in their deposition on oath they had reversed these stands. This

is clearly for the reason that they are not truthful witnesses. It is

pointed out that the medical evidence also does not support the version

of the prosecution; for the offence of rape there must be a complete

penetration but in this case part from the fact that there are no injury

marks or bleeding noted in the MLC, there is also a report to the effect

that only one finger could be inserted inside her vagina which clearly

shows that the hymen of the victim was intact and no rape was

committed upon her. It is pointed out that the CFSL report also does not

support the case of the prosecution as apart from the fact that no semen

was detected on the exhibits; the blood group of 'AB' origin detected on

the salwar and the so-called underwear of the accused is not a

connecting piece of evidence as the prosecution has not been able to

show that the accused or the prosecutrix had a blood group of 'AB'

origin. The seizure memo Ex.PW-4/C is liable to be disbelieved as

PW-5 has categorically stated that no underwear of the accused was

recovered in his presence. This demolishes the recovery. Submission

being reiterated that this is a clear case of false implication. To support

his submission learned counsel for the appellant has placed reliance

upon 2013 VIII AD9SC) 273 State of Rajasthan Vs. Babu Meena, AIR

2002 SC 2281 Narender Kumar Vs. State (NCT of Delhi), 2013(6) ALJ

85 Ram Sagar & Ors. Vs. State of UP, 2007 CRI. L.J. 3304 State of

Orrisa Vs. Daman Mahanta and Criminal Appeal No.399-SB of 1985

titled Charan Singh and Anr. Vs. State of Haryana decided on

19.4.1988. It is pointed out that where to views are possible the settled

rule of criminal jurisprudence is that the view favouring the accused

must be adopted.

11 Arguments have been refuted by learned public prosecutor. It is

stated that on no count does the impugned order call for any

intereference. The testimony of the prosecutrix (PW-4) is clear, cogent

and coherent. Even presuming that there are certain contradictions in

the version of her parents (PW-5 and PW-6) these being minor

necessarily have to be ignored. Moreover the testimony of a victim of

rape if credible can be relied upon and it does not even require

corroboration. It is pointed out that to complete the offence of rape a

minor penetration is also sufficient and there also do not necessarily

have to be any injury marks. To support this submission learned public

prosecutor has placed reliance upon a judgment of the Apex Court

reported as JT 2012(12) SC 616 Radhakrishna Nagesh Vs. State of A.P.

Submission being that in this case also where the hymen of the victim

was intact and no injury marks had been found upon her body yet the

court relying upon the version of the prosecutrix had convicted the

accused under Section 376 IPC.

12 Arguments have been heard and record has been perused.

13 Present FIR has been registered on the statement of the mother of

the victim. In her complaint she had stated that the accused who was

their neighbour had committed rape upon her daughter in the early

morning hours of 04.12.1999; she had heard cries of her daughter when

she along with her husband were on the ground floor; these cries were

emanating from their roof; on reaching there they found that salwar of

her daughter was smeared with blood and was lying on the cot after

having been removed. On oath in court she had toed the version of the

prosecution but has deviated to the extent wherein she has stated that she

along with her husband were sleeping on the first floor of the house

when they heard the cries of their daughter. This contradiction has been

brought to the notice of the court. She has otherwise supported the stand

of the prosecution.

14 PW-5 is the father of the victim. He has also supported the stand

of his wife. He has also deviated to the extent wherein in his statement

recorded under Section 161 Cr.P.C. he has stated that he along with his

wife were sleeping on the ground floor when they heard the cries of

their daughter but on oath he has stated that he was on the first floor and

on hearing the cries of his daughter he had gone to the ground floor.

15 Presuming for the sake of argument that these contradictions has

noted supra do not really go to the gist of offence and if the testimony of

PW-1 is credible, inspiring and coherent, the law also being settled on

this point that the sole testimony of a rape victim may be sufficient to

nail the accused, these contradictions in the version of the parents of the

victim may not be relevant.

16 Let us know examine the version of PW-1. She was admittedly

17½ years of age on the date of incident. There is no dispute to this.

This has also been established by evidence both oral and documentary.

In the first part of her deposition in court PW-1 had stated incident had

occurred at about 3.00 a.m. on 02.12.1999 when she had gone to the

roof to have a bath and wash clothes as water did not come freely in

their area during day time and that is why she has chosen the night time

to have a bath and wash her clothes. In a later part of her version she

has stated that the incident had taken place in the intervening night of 3-

4.12.1999 and date of 02.12.1999 has been given by mistake. Further

part of her deposition is that when she was washing clothes the accused

came on the roof; he was naked; he committed rape upon her. She tried

to cry but her mouth was gagged. After committing rape the accused

fled away; she reported the matter to her mother. In her cross-

examination she has largely stuck to her stand reiterating that this act of

rape has been committed upon her by the accused. She denied the

suggestion that her parents wanted her to marry the accused; she also

denied the suggestion that this case has been falsely planted upon him or

that she has been tutored by her parents to depose against the accused.

17 Evidence of PW-1 is been faulty and sketchy on various scores.

Starting from giving a wrong date i.e. the date of 02.12.1999 which was

later on clarified as the intervening night of 3-4.12.1999; it would also

be extremely difficult to perceive that a 40% physically disabled girl and

25% mentally unstable girl and being a victim of polio would in the

middle of a cold winter night go to the roof to have a bath and wash

clothes. It was month of December; the peak of the cold season; PW-1

had also admitted that it was chilly winter morning; PW-1 had also

stated that it was pitch dark at that time. For the sake of arguments even

believing the version of the prosecution that tap water was not coming

regularly, normal course of conduct would be to store the tap water and

use it for whenever any errands were required to be run. In the middle

of the night in a screen of darkness PW-1 not even wearing a sweater (as

is her version) had gone to the roof to have a bath and to wash clothes;

such a version as set up by the prosecution appears to be highly

improbable.

18 In this background the contrast in the versions of PW-5 and PW-6

on oath qua their earlier statements gains relevance. These

contradictions may not have been relevant by themselves but this court

has to examine their versions in this background which has been built up

to conclude as to whether they are truthful witness or not. The incident

as per the prosecution had occurred on the terrace and as per the

complainant PW-5 and PW-6 were sleeping on the ground floor when

they heard the cries of their daughter. On oath they reversed this stand

stating that they were on the first floor and came down when they heard

the cries of their daughter. Meaning thereby that the scene of incident

had also changed. On oath in court neither PW-5 nor PW-6 have stated

that the incident had occurred on the roof top which is the version of

PW-1. Neither of them have also stated that as to for what purpose their

daughter had gone to the roof top in the middle of the night. Thus the

contrast in their versions on oath qua their earlier statements has now

gained relevance and being contrary and in conflict with the version of

PW-1 have to be disbelieved.

19 PW-6 has stated that her daughter was bleeding from her private

parts. PW-1 the prosecutrix has not deposed any such fact. PW-6 has

also stated her daughter had become unconscious and regained

consciousness in the evening; but later stated that she regained

consciousness before going to the police station; the matter was

admittedly reported in the police station before noon. MLC of the

victim was conducted at 12.30 p.m. on 04.12.1999; thus the statement of

PW-6 in a later part that PW-1 had regained consciousness before

evening clearly shows that she has improved her version. PW-6 has also

deposed that the under-clothes of her daughter had been taken by the IO.

PW-1 has not deposed this fact.

20 Medical evidence i.e.the MLC shows that there were no injury

marks. No bleeding was also noted. This examination has taken place

on 04.12.1999 at about 12.30 p.m. Incident as per PW-1 had occurred

in the early morning at about 3.00 p.m. Injuries or bleeding if any

suffered by the victim if present would have been noted. The non-

noting of the injuries or any bleeding on the body of the victim by the

doctor (PW-12) as well was for the obvious reason that there was no

injury or bleeding.

21 The MLC has also not recorded any history of rape. In the history

given by the patient it was noted by the doctor that she was forcefully

taken away by the accused at about 3.00 O'Clock in the early morning

hours. Apart from the fact that there was no injury or no bleeding on her

person her medical examination also revealed that her vagina admits one

finger; no semen was also detected on any clothes either of the victim or

of the accused. Blood of 'AB' group was noted upon the salwar of the

victim but there was no evidence with the prosecution to hold that either

the prosecutrix or the accused was having this blood group.

22 Further version of the prosecution is that the undergarments of the

prosecutrix were seized and sealed. This has been noted in the MLC

and is also the version of PW-12 which is to the effect that the

undergarments brought by the mother of the victim were sealed.

Even as per the seizure memo (Ex.PW-2/A) as also from the deposition

of PW-2 the undergarments of the prosecutrix were seized. However,

what had been examined by the CFSL upon which blood group 'AB'

had been noted was not an undergarment but a salwar. There is no

evidence with the prosecution to show that the salwar of the victim had

ever been seized. A salwar does not qualify as an undergarment. The

CFSL report on all counts also has to be ignored.

23 The recovery memo Ex.PW-4/C vide which the underwear of the

accused was recovered has also to be to be ignored. This document has

been attested by PW-5 Mohan Lal the father of the victim. PW-5 has

however stated that no such underwear of the accused was got recovered

in his presence; he stated that the underwear was seen by him for the

first time in the police station when he had appended his signatures on

the Ex.PW-4/C.

24 In this scenario the factual situation which has been built up and

which has been borne out from the evidence brought on record both oral

and documentary it does not permit the conscience of this Court to place

reliance upon it.

25 Defence built up by the accused which emanates from the cross-

examination of the witnesses of the prosecution; the statement under

Section 313 Cr.P.C. and thereafter the version of DW-1 who is a

neighbour and known to both the parties was that the parents of the

victim wanted her to marry the accused. Since he did not accept this

proposal this false case has been planted upon him. The defence

appears to be probable. This defence has created a dent in the version of

the prosecution which even otherwise has not been established. On

all counts, benefit of doubt must accrue to the appellant.

26 Appeal is allowed. Appellant is acquitted; his bail bond

cancelled. Surety discharged.

INDERMEET KAUR, J MARCH 20, 2014 ndn