Pradeep @ Balli vs State Nct Of Delhi
2015 Latest Caselaw 8921 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                        RESERVED ON : 1st SEPTEMBER, 2015
                         DECIDED ON : 1st DECEMBER, 2015

+                  CRL.A. 859/2013
      PRADEEP @ BALLI                                      ..... Appellant
                          Through :    Mr.Joginder Tuli, Advocate with
                                       Mr.Ashu Kr. Sharma & Ms.Pooja
                                       Arora, Advocates.
                          versus

      STATE, NCT OF DELHI                                  ..... Respondent

                          Through :    Mr.Amit Gupta, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 15.05.2013 of learned Addl.

Sessions Judge in Sessions Case No.06/13 arising out of FIR No. 80/09

PS Mangol Puri by which the appellant - Pradeep @ Balli was convicted

for committing offences punishable under Sections 458/376/328/506-II

IPC and Section 25 Arms Act, the instant appeal has been preferred by

him. By an order dated 16.05.2013, he was awarded various prison terms

with fine. All the substantive sentences were to operate concurrently.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that in February, 2009 and on 06.03.2009 at House No.A-9A,

Awantika Enclave, Mangol Puri, Delhi, the appellant after committing

house tress-pass and putting the prosecutrix 'X' (assumed name) aged

around 16 years in fear committed rape upon her. On 11.04.2009, a

country-made pistol loaded with a live cartridge lying in a car bearing No.

DL-6CG-0079 parked in front of his flat No.607, pocket-A, Sector-6,

Narela was recovered at his instance. On receipt of intimation of the

incident on 09.03.2009, Daily Diary (DD) No. 14A (Ex.PW-16/A) came

into existence at 10.10 a.m. at PS Mangol Puri. The Investigating Officer,

after recording victim's statement (Ex.PW-1/A) lodged First Information

Report. 'X' was medically examined; she recorded her 164 Cr.P.C.

statement. Statements of the witnesses conversant with the facts were

recorded. Exhibits collected during investigation were sent for

examination to Forensic Science Laboratory. Efforts were made to

apprehend the perpetrator of the crime. The appellant could be arrested on

09.04.2009. Pursuant to his disclosure statement, a country-made pistol

was recovered from the car bearing No. DL-6CG-0079. Arvind Kumar

(since acquitted) was also implicated for harbouring the appellant. Upon

completion of investigation, a charge-sheet was filed against both - the

appellant and Arvind Kumar for committing various offences. The

prosecution examined thirty-three witnesses to establish its case. In 313

Cr.P.C. statement, the accused persons denied their involvement in the

crime and pleaded false implication. DW-1 (Vishal Gaurav) was

examined in defence. After hearing the rival contentions of the parties and

on appreciation of the evidence, the Trial Court, by the impugned

judgment, acquitted Arvind Kumar of the charges. It is relevant to

mention that State did not challenge the said acquittal. Being aggrieved by

conviction, the appellant has filed the instant appeal.

3. I have heard the learned counsel for the parties and have

examined the file. Undisputably, the appellant and the prosecutrix 'X'

were acquainted with each other before the incident; the appellant lived in

her neighbourhood and carried out business of property-dealing nearby.

The appellant had visiting terms at the prosecutrix's residence and had

assisted them in solemnisation of Priyanka's marriage with her mother's

step brother in December, 2008. There was no previous animosity

between the parties. It has emerged that about four years prior to the

occurrence a quarrel had taken place between the appellant and X's

mother over a trivial issue which was settled later on. The parties had

maintained their cordial relations thereafter.

4. At the outset, it may also be mentioned that X's date of birth

relied upon by the prosecution is 02.08.1992. PW-24 (Anil Kumar), Sub-

Registrar (MCD) brought relevant register and proved entry at Sl.No.837

whereby birth of the prosecutrix was recorded. The registration was made

in the record on 04.08.1992 vide Ex.PW-24/A. PW-20 Ms.Nirmal Bankar,

Vice Principal, Govt. Co-ed School, P-Block, Sultanpuri, Delhi, also

testified that as per school record, X's date of birth was 02.08.1992. She

proved the relevant documents (Ex.PW-20/A and Ex.PW-20/B). The Trial

Court after discussing all the relevant material came to the conclusion that

X's age was 16 years, 7 months and 4 days on the date of alleged incident

i.e. 06.03.2009. The appellant has not produced any document to its

contrary. This date of birth recorded much prior to the occurrence when

X's parents had not anticipated such an occurrence to happen can't be

disbelieved.

5. Appellant's conviction is primarily based upon the solitary

statement of the prosecutrix 'X' which has not been corroborated by any

other independent source. Needless to say, conviction can be based on the

sole testimony of the prosecutrix provided it lends assurance of her

testimony. In case, the Court has reasons not to accept the version of the

prosecutrix on its face value, it may look for corroboration.

6. The first incident of alleged rape took place in February,

2009. In her complaint (Ex.PW-1/A), 'X' did not reveal the exact or

approximate date when she was sexually assaulted for the first time in

February, 2009. She also did not reveal if that time, the appellant was

armed with any weapon or he had brought any stupefying substance or

had sprayed it in the room where her parents and siblings were sleeping to

make them unconscious. She did not claim if the appellant was in

possession of any revolver or she was criminally intimidated on

06.03.2009 when she was ravished twice at 03.30 a.m. She did not inform

if on both the occasions, her parents were administered any poisonous

substance. She also omitted to disclose if the appellant had injured her

hand or she was forced to write letters with her blood.

7. In 164 Cr.P.C. statement (Ex.PW-1/B) recorded on

16.03.2009, 'X' made vital improvements and disclosed that since

December, 2008, the appellant had an evil eye upon her and used to tease

and harass her. In February, 2009, he forced her to open the door of her

room at the point of revolver. Thereafter, he sprinkled some substance on

her parents as a result of which they became unconscious. She was

criminally intimidated and forced to write letters after injuring her hand.

She did not specifically state if on that night, the appellant committed rape

upon her. Regarding the incident dated 06.03.2009, she revealed that the

appellant came around 03.30 a.m. (night) and forced her to consume

liquor. He applied liquor on her vagina and committed rape upon her. She

further disclosed that the accused used to administer her a 'pill' to avoid

pregnancy. She blamed the Investigating Officer Prem Lata for not

recording her earlier statement correctly.

8. In her Court statement as PW-1, 'X' implicated the accused

for committing rape upon her in February, 2009 and on 06.03.2009. She

deposed that in February, 2009 at around 03.30 a.m. someone knocked at

the door of her room. When she opened it, the appellant kept the revolver

on her shoulder and gained entry in the room. From that room, he entered

in her parents' room and sprayed something contained in a bottle on them

and told her that they won't be able to wake up. Thereafter, he committed

rape upon her against her wishes. He also injured her hand, licked the

blood and got some letters written from her forcibly. Again on 06.03.2009

at around 03.30 a.m. when she was sleeping in her room, the accused

gained entry after removing the cooler installed in the window. He woke

her up by hitting her with a 'danda'. She opened the door due to fear.

Again, the accused sprayed some material in her parents' room, consumed

liquor and forcibly committed rape upon her. She was raped twice or

thrice in a very cruel manner that night. The appellant also forcibly

administered her a tablet to avoid pregnancy.

In the cross-examination, she was duly confronted on various

facts stated in her examination-in-chief which did not find mention in her

initial complaint (Ex.PW-1/A). She admitted that letters (Ex.PW-1/DD,

Ex.PW-1/DE and Ex.PW-1/DF) were written by her. It had taken about 5

or 10 minutes to write letter (Ex.PW-1/DD). She denied that she was in

love with the accused. She admitted that she had not told the incident to

her parents immediately. The accused had injured her hand on both the

occasions. Her parents did not come to know about it as she used to wear

full sleeve sweater. She further admitted that on both the occasions at the

time of alleged incident, neither she nor the appellant had switched 'on'

the lights in the room.

9. On scanning the above referred statements, it reveals that 'X'

has given contradictory and conflicting versions at different stages of the

investigation / trial. She is not consistent. Vital improvements have been

made by her in her statement under Section 164 Cr.P.C. and in her Court

deposition and she has been duly confronted on that. The story presented

by the prosecutrix is quite improbable seemingly difficult to be accepted

on its face value. The first rape incident allegedly took place in the second

week of February, 2009 as disclosed in the cross-examination at around

03.00 a.m. (night). Appellant's entry in the room where the prosecutrix

was sleeping alone was friendly. 'X' did not raise any alarm or protest.

She did not inform her parents even after appellant's departure from the

crime spot. There was no occasion / compulsion for the prosecutrix to

open the door for a man to whom she considered to be a man of bad

character, at odd hours without taking her parents into confidence. Natural

reaction of the prosecutrix would have been to immediately rush to her

parents' room and inform them about the appellant's unusual presence

outside the room. She did not prevent the appellant to enter inside the

room and rather opened the door to provide easy access to him. The

appellant thereafter allegedly sprinkled some intoxicating substance to

make her parents and other family members sleep. Even that time, 'X' did

not raise any alarm or try to escape. She did not get herself medically

examined. She did not bother if her parents had suffered any harm due to

administration of intoxicating substance. She did not even show injury

suffered by her on her hand. She continued to go to her school in routine.

She concealed her injuries by wearing full sleeve sweater. She was quite

normal after the first incident on February, 2009. She did not consider it

fit to shift to her parents' room to sleep thereafter. She continued to sleep

alone in the room after the alleged horrible incident. Again, on 06.03.2009

the appellant was able to gain entry at around 03.00 or 03.30 a.m. when

X's parents were sleeping in the adjoining room. Again, the prosecutrix

did not raise any hue and cry. She was ravished twice or thrice during that

night. Nothing is on record to show if any resistance was offered by the

prosecutrix to avoid the crime. It has rather come on record that letters

(Ex.PW-1/DD, Ex.PW-1/DE and Ex.PW-1/DF) were written by her. The

plea that she was forced to write these letters lacks credibility. Letter

(Ex.PW-1/DD) is quite in detail and is in a natural flow. A person under

fear or threat possibly can't have the handwriting as reflected in the letter

(Ex.PW-1/DD). Contents of the letter show that 'X' was in love with the

appellant and had invited him to reach there. Letters (Ex.PW-1/DD,

Ex.PW-1/DE and Ex.PW-1/DF) show that 'X' was annoyed with her

mother's conduct who had got inkling of their relationship. All these

circumstances tend to show that the physical relations (if any) between the

two were 'consensual'. The appellant had no reasons to injure X's hand or

force her to write letters in blood. Apparently, it was done so to express

his love for the prosecutrix. The prosecutrix even did not inform her

parents immediately after suffering brutal rape on 06.03.2009. Only on

08.03.2009, she divulged the occurrence to them. It appears that after her

parents sensed something foul, 'X' was forced to reveal the affairs and the

complaint (Ex.PW-1/A) came to be lodged.

10. 'X' was medically examined vide MLC (Ex.PW-13/A). PW-

15 (Dr.Surekha) found that on local examination labia majora and labia

minora were normal; hymen was absent; fresh abrasion was seen on the

fourchette; no bleeding was found. Apparently, the prosecutrix had not

sustained any serious injuries on her body including private parts to infer

forcible rape. A girl aged around 16 / 17 years having been ravished

forcibly / brutally twice during the night intervening 06/07.03.2009

against her wishes is expected to sustain violent marks on her body.

Nothing is on record to show if any resistance was offered to prevent the

assault. No such struggle marks were found on her body. Absence of

injuries on X's body give rise to an inference that she was a consenting

party to coitus.

11. Various exhibits collected during investigation were sent to

Forensic Science Laboratory for examination. FSL reports (Ex.PW-11/X1

and Ex.PW-11/X2) are of no benefit to the prosecution. As per these

reports, no blood could be detected on Ex.1a (one white pyjami), Ex.1b

(one white top / T-shirt), Ex.2 (underwear), Ex.3 (vaginal swab) and Ex.4

(bedsheet). Semen could not be detected on Ex.1a, Ex.1b, Ex.2, Ex.3 and

Ex.4 also.

12. 'X' was aware that she was being administered I-pill for

prevention of pregnancy. She did not complain about it to her parents.

This circumstance lends credence to the appellant's plea that the

prosecutrix was a consenting party. X's parents never complained before

lodging of the FIR on 09.03.2009 if any poisonous / stupefying substance

was administered to them as a result of which they had become

unconscious. They never got themselves medically examined. No

independent public witness was associated at any stage of investigation.

The security guards posted in the locality; X's brother and sister were not

examined. Even after the lodging of the FIR, no tell-tale of the crime were

found at the spot.

13. There is unexplained delay in lodging the report. The rape

incident took place for the first time in February, 2009. However, it was

not reported by the prosecutrix to her family members or any other

authority. Even when alleged rape incident occurred second time on

06.03.2009, the incident was not conveyed to the police promptly. Undue

delay in lodging the complaint without acceptable evidence contributes to

the doubts in the prosecution case when it has failed to establish it

otherwise. X's post-event conduct is unnatural and unacceptable. Till

08/09.03.2009, she maintained complete silence and did not implicate the

appellant. At the time of incidents admittedly X's parents and brothers

were present in the adjoining room. 'X' being a matured sixteen years old

girl sleeping in between the comfort and safety of her parents in her house

did not alert them on both the occasions. Even if she had voiced a single

word or even whispered, her father-mother sleeping next to her would

have woken up. Even after the appellant's departure from the crime spot,

she remained mum and even did not bother to enquire about her parents'

well-being.

14. Recovery of country-made pistol on 11.04.2009 after two

days of his arrest in the presence of co-accused - Arvind Kumar is suspect.

It was not found in appellant's possession at the time of his arrest.

Allegedly, it was recovered from car bearing No. DL-6CG-0079 at his

instance. The Investigating Officer did not collect any evidence as to

whom the said car belonged. Nothing has surfaced as to from where the

revolver was procured. In her initial statement, the prosecutrix did not

disclose if the appellant was armed with any such weapon. Key of the car

was not provided by the appellant. It was alleged with Arvind Kumar who

has already been acquitted by the Trial Court.

15. In view of vital infirmities, inconsistencies and

improvements in the statement of the prosecutrix coupled with her

unnatural conduct, X's testimony cannot be accepted on its face value. It

is true that in case of rape, evidence of the prosecutrix must be given

predominant consideration, but to hold that this evidence has to be

accepted even if the story is improbable and belies logic, would be doing

violence to the very principles which govern the appreciation of evidence

in a criminal matter.

16. For the above reasons, I am of the considered view that the

prosecution has failed to bring home any of the charges against the

appellant beyond reasonable doubt. Accordingly, judgment dated

15.05.2013 and Order on Sentence dated 16.05.2013 are set aside and the

appeal filed by the appellant is allowed.

17. The appellant, who is already on interim bail till the disposal

of the appeal, need not to surrender in jail. Trial Court record be sent back

forthwith with the copy of the order. A copy of the order be sent to the

Superintendent Jail for information.

(S.P.GARG) JUDGE DECEMBER, 01, 2015 / tr