Delhi High Court
Avdesh Kumar vs State Nct Of Delhi on 4 December, 2015
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 01.12.2015
Judgment delivered on : 04.12.2015
+ CRL.A. 864/2013
AVDESH KUMAR ..... Appellant
Through Mr.Rajender Chhabra, Adv.
Versus
STATE NCT OF DELHI ..... Respondent
Through Ms. Kusum Dhalla, APP for the
State.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 This appeal is directed against the impugned judgment and order
on sentence dated 21.01.2013 and 29.01.2013 respectively wherein the
appellant stands convicted under Section 376 of the IPC. He has been
sentenced to undergo RI for a period of 7 years and to pay a fine of
Rs.5000/- 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 Nominal roll of the appellant has been requisitioned. This reflects
that as on date he has undergone incarceration of about almost 5 years
which includes the remissions earned by him.
3 The version of the prosecution was unfolded in the testimony of
the prosecutrix examined as PW-2. She was a resident of Jharkhand and
she came to Delhi and working as a maid servant in the house of Ms.
Vidyut Gulati (PW-8). The appellant was also working as a cook in the
said house. On the fateful day i.e. on 20.08.2011, when the family of her
employer had gone out of station, the appellant had taken her in a room
and had forcibly committed rape upon her. She had pleaded with him
but he did not listen anything. She made a complaint to the father-in-law
of her employer who was in Delhi namely Yashvant Malhotra (PW-11).
The complaint was lodged at the police station and investigation was set
into motion. Apart from the aforenoted witnesses, the driver working in
the same family since the last 4 years Rajender Kumar was examined as
PW-6. He had deposed that after he had returned from taking bath, the
prosecutrix narrated to him that she had been raped by the appellant. He
corroborated the version of PW-2 that she and the appellant were
working in the same house and were alone at the time of the incident.
Her statement was recorded by the learned MM Ms.Monika Saroha
(PW-10) under Section 164 of the Cr.PC (Ex.PW2/B). The victim was
medically examined by Dr. Nivedita Raizada whose signatures were
identified by Dr. Nidhi Siddharth (PW-12). The exhibits which included
the vaginal swab and salwar of the victim (Ex.PW-13/E) had also been
sent for analysis but neither any semen and nor any blood could be
detected on the said exhibit.
4 In the statement of the accused recorded under Section 313 of the
Cr.PC, he pleaded innocence. No evidence was led in defence.
5 On the basis of the aforenoted evidence, both oral and
documentary, the appellant was convicted and sentenced as aforenoted.
6 On behalf of the appellant, the foremost submission of the learned
counsel for the appellant is that this was a clear case of consent. The
victim was adult on the date of the offence and she was working as maid
servant in the same house where the appellant was also employed. The
appellant was employed in the house since the last 4 years. He had gone
to his village and then had come back. The parties had a friendship and
it was on a consent that this relationship had been established. The
appellant has been falsely implicated in the present case. The scientific
evidence has not corroborated the version of the victim. Benefit of doubt
should have been given to the appellant.
7 Needless to state that these arguments have been refuted.
8 Arguments have been heard and record has been perused.
9 The star witness of the prosecution was the prosecutrix herself
examined as PW-2. She was an adult. She had disclosed that she had
come to Delhi in the year 2007 and was employed in the house of
Vidyut Gulati (PW-8). The appellant was also working in the same
house. On the fateful day, her employer had gone out of station. The
appellant caught hold of her hand and had taken her to the room of her
employer where he committed rape upon her inspite of pleadings by her
not to do so. She immediately after the incident called her lady
employer's father who had come into the witness box as PW-11.
Relevant would it be to note that this version of PW-2 was fully
corroborated by PW-11 who had stated that the narration given by
PW-2 was cogent. The police complaint was lodged and investigation
was set into motion.
10 The statement of the victim (Ex.PW-2/B) recorded under Section
164 of the Cr.PC is fully corroborative of her version on oath in Court.
She was subjected to a lengthy cross-examination. She admitted that she
knew the appellant. They used to work in the same house and both of
them were in fact from Jharkhand. She could not beat the accused as he
had caught hold of both her hands. She denied the suggestion that she
wanted to marry the appellant and as he refused to marry her, she had
implicated him in this false case. Relevant would it be to note that this
line of defence which has been adopted in the cross-examination of
PW-2 did not surface at the time when the statement of the accused
under Section 313 of the Cr.PC was recorded wherein he simplicitor
pleaded innocence. This line of defence was also not adopted at the time
of cross-examination of the other witnesses of the prosecution.
11 Testimony of PW-2 was clear, cogent and coherent. The victim
has passed the test of credibility. Her version recorded under Section
164 of the Cr.PC was also in conformity with her version on oath in
Court. It was her narration which had formed the basis of the FIR and
this version which was given at the inception was fully corroborative of
her later two versions. There also appears to be no reason for her to have
falsely implicated the appellant. The defence adopted by the appellant
that the victim wanted to marry him is also not noteworthy. In fact it has
been brought to notice of the Court that the appellant was a married man
and as such her seeking a promise from him to marry him would have
little relevance.
12 The statement of PW-11 who had reached the spot immediately
on phone call having been received from PW-8 also corroborates the
testimony of PW-2. PW-8, the employer of the victim had gone out of
station and when she returned home, the victim had narrated the incident
to her.
13 The MLC of the victim (Ex.PW-12/A) shows that her hymen was
torn and ragged. Injuries were not noted upon her person but as
explained by the victim herself that she could not retaliate to ward off
the appellant as he had caught hold of both her hands. The version of the
prosecutrix appears to be honest and coherent and cannot be washed
away merely because no injury was reflected upon her person which at
the cost of repetition has been explained by PW-2. The absence of
semen would also not be of much help to the appellant as it is not in all
cases that smega has to be detected. It is only a corroborative piece of
evidence.
14 The observations of the Hon'ble Apex Court in State of Himachal
Pradesh v. Raghubir Singh (1993) 2 SCC 622 in this context had held
as under:-
"There is no legal compulsion to look for any other evidence to corroborate the
evidence of the prosecutrix before recording an order of conviction. Evidence has to
be weighed and not counted. Conviction can be recorded on the sole testimony of the
prosecutrix, if her evidence inspires confidence and there is absence of
circumstances which militate against her veracity."
15 The conviction of the appellant in this background calls for no
interference. The appellant has already been granted the minimum
sentence i.e. sentence of 7 years which is the minimum for the offence
of rape. The conviction and the sentence call for no interference.
16 Appeal is without any merit. Dismissed.
INDERMEET KAUR, J
DECEMBER 04, 2015
A
