Subhash Chhabra vs State
2015 Latest Caselaw 9603 Del

$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          RESERVED ON : OCTOBER 01, 2015
                          DECIDED ON : DECEMBER 23, 2015

+                                  CRL.A. 97/2007

       SUBHASH CHHABRA
                                                             ..... Appellant
                          Through :     Mr.Vishal Sharma with Mr.Anish
                                        Shrestha, Advocates.

                          versus

       STATE
                                                          ..... Respondent
                          Through :     Mr.Sanjeev Sabharwal, APP.
                                        SI Vinod Kumar, PS Mehrauli.

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

S.P.GARG, J.

1. Aggrieved by a judgment dated 23.12.2006 of learned

Additional Sessions Judge in Sessions Case No.65/06 emanating from FIR

No.269/02 registered at Police Station Mehrauli by which he was

convicted under Sections 376/354/506 IPC, the appellant Subhash

Chhabra has filed the instant appeal. By an order dated 08.01.2007, he

was awarded RI for ten years with fine `25,000/- under Section 376 IPC;

RI for one year with fine `5,000/- under Section 354 IPC and RI for one

year with fine `2,000/- under Section 506 IPC. All the sentences were to

run concurrently.

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

sheet was that in January 2001 at about noon time at 886/B, Mehrauli, the

appellant outraged the modesty of her daughter 'Y' (assumed name). He

also committed rape on her other daughter 'X' (assumed name) several

times since the age of five years during the period from 1990 to 2000 in

the said house and criminally intimidated Manju Chhabra, 'X' and 'Y'.

FIR was lodged on 31.05.2002 on the basis of written complaint (Ex.PW-

1/A) given by 'X' on 24.05.2002 to the police. 'X' was medically

examined. Statements of the witnesses conversant with the facts were

recorded. The appellant could be arrested only on 11.03.03. Certain

documents executed amongst the parties were seized. Upon completion

of investigation, a charge-sheet was filed against the appellant for

commission of various offences mentioned previously. The prosecution

examined eleven witnesses and relied upon several documents to establish

the appellant's guilt. In 313 statement, the appellant denied his

involvement in the crime and pleaded false implication. DW-1(Usha

Chhabra), DW-2(Suresh Kumar Chhabra) and DW-3 (Pawan Arora)

appeared in his defence. After considering the rival contentions of the

parties and on appreciation of the evidence, the Trial Court by the

impugned judgment held the appellant guilty under Sections 376/354/506

IPC. Being aggrieved and dissatisfied, the appellant has preferred the

appeal in question.

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

examined the record. Learned counsel for the appellant strenuously urged

that the Trial Court did not appreciate the evidence in its true and proper

perspective. Counsel pointed out various contradictions, omissions and

inconsistencies emerging in the statements of the prosecution witnesses

which have seriously affected the prosecution case. He contended that

material improvements have been made by the prosecutrix ('X') and her

sister ('Y'). There is inordinate delay in lodging the FIR. The only motive

of the prosecutrix and her mother to implicate the appellant in the crime

was to grab his property. Documents (Ex.PW6/1, Ex.PW1/DX and

Ex.PW1/DY) were never read by the appellant before putting signatures

over them. 'X's mother had objectionable relations with one S.S.Chand

and lived separate in his company. The appellant was falsely implicated

so that he and his sons would not know about their activities. 'X' was

also in relationship with one Prakash and when the appellant objected to

that, in revenge, 'X' lodged the FIR in conspiracy with him. Medical

evidence does not support the prosecutrix's version; no injuries were

found on her body including private parts. The Trial Court ignored the

defence version without cogent reasons. Reliance has been placed on

State Vs. Ramesh 1998(1) JCC (Delhi) 130; Samay Singh Vs. State 1998

(1) JCC (Delhi) 217; Ronald Kiprono Ramkat Vs.State of Haryana 2001

(2) JCC (SC)181; Devender Singh & Ors.Vs.State of Himachal Pradesh

2003 (4) RCR (Crl.)(SC) 363; Ram Ratan Vs.State of Haryana 2005 (3)

C.C.cases (HC) 171; Suresh Vs.State of Maharashtra 2004 (1) PCR

(Crl.)910; Hukkar @ Ismile & Ors.Vs.State of Haryana 2003 (3) PCR

(Crl.) 794; State of Rrajasthan Vs.Kishan Lal 2002 (2) RCR (Crl.) (SC)

852; Ajit Kumar Vs.State 1998 (1) JCC 36 (Delhi); Dilip & Anr.Vs.State

of MP 2001 (2) JCC (SC) 236; Kanhai Mishra @ Kanhaiya Mishra

Vs.State of Bihar, 2001 (2) JCC (SC) 5; Ram Rai Vs.State of Rajasthan

2002 (2) Criminal Code cases 238; Ota Ram Vs.State of Rajasthan 2002

(1) Crimes 771; State of Punjab Vs.Gurdeep Singh 199(2) JCC (SC) 485;

Subhakar & Anr. Vs.State of Maharashtra 2002 (6) SCC 671; Mania @

Manoj Kumar Behera Vs.State 2001 (1) Crimes 554; Subhash Chand

Vs.State of Rajasthan 2001 (2) JCC (SC) 332; Bhup Singh Vs.State of

Haryana 2005 (3) CC Cases (HC) 76; P.Mani Vs.State of Tamilnadu

2006(1) JCC (SC) 447 and Nasir Sikandar Sheikh Vs.State of

Maharashtra 2005 Crl.LJ(SC)2621.

4. Refuting the contentions, learned APP for the State urged

that there are no valid reasons to disbelieve the prosecutrix and her sister.

The appellant had confessed the crime before the 'Panchayat' and this

finds reflection in the documents executed amongst the parties. The

learned APP further submitted that the accused has taken a sham ground

that 'X' was of promiscuous character and was having an affair with one

Prakash. These are mere allegations, not proved by any evidence.

5. Undisputedly, marriage between the appellant and Manju

Chhabra took place on 19.07.1983. Four children including two daughters

'X' and 'Y' were born to them out of this wedlock. It appears that

subsequently relations between the parties became strained. 'Y' lodged

complaint at 100 for an incident that had taken place on 17.03.2002.

However, the said complaint was withdrawn by Manju Chhabra due to

intervention of their family members. Ex.DW-2/A is the application given

by Manju Chhabra to the police for not taking any action on the complaint

lodged at 100 as the matter was settled due to intervention of the relatives.

It also bears signatures of Suresh Kumar Chhabra-appellant's brother.

6. Since there was no change in the appellant's behaviour and

mental and physical torture/harassment continued, Manju Chhabra lodged

a written complaint (Ex.PW-6/2) in CAW Cell on 25.04.2002. She also

disclosed that the appellant had sexually assaulted her daughter when she

was around five years and continued to ravish her after extending threats.

She further disclosed that subsequently, he attempted to outrage the

modesty of her younger daughter. When this complaint was pending

before CAW Cell, 'X' lodged written complaint (Ex.PW-1/A) on

24.05.2002. In this complaint, she gave detailed account as to how and

under what circumstances, the appellant-her father used to sexually abuse

her since the age of five. She further informed the police that the

appellant had also attempted to rape her younger sister 'Y'.

7. In her court statement as PW-1, the prosecutrix 'X' proved

the version given in her complaint (Ex.PW1/A) without any major

variations. She divulged that when she was aged around five years, the

appellant attempted to develop sexual relations with her by putting his

finger. After two years, he established physical relations with her. It

continued till the age of 13 years. She further revealed that after the first

intercourse at the age of seven, she had become unconscious. She further

deposed that one day, finding her father doing similar act with her sister

'Y', she informed her mother. Thereafter, she, 'Y' and her mother were

threatened by her father and she lodged complaint (Ex.PW-1/A). In the

cross-examination, she disclosed that there were no fixed timings of her

father to return to the house and he used to establish physical relations

with her in the absence of her mother. She reiterated that she was seven

years old and was in 1st standard when for the first time the accused

established physical relations with her. Court observation was recorded to

the effect that witness had replied the said question while 'weeping'. She

admitted that the incident was not reported to her mother as the

atmosphere in the house was bad and there used to be quarrels all the time

with her mother. The accused used to beat her mother and threaten to kill

her and her mother. She admitted that no police complaint was lodged

during the period of seven years. She reasoned that the complaint was not

lodged by her as she thought that it would not help anyone and also to

protect the dignity of the family. She volunteered to add that the

complaint was lodged as an ultimate resort to save themselves as the

accused used to give them severe beatings. She further stated that the

matter was revealed to the elder brothers of the accused and they

requested to sit together and arrive at a settlement. She denied if her

mother had any objectionable relations with S.S.Chand and he used to

come to meet her in her father's absence. She elaborated that when her

mother came to know about the incident, the appellant started giving lot of

beatings to her and even tried to kill her. She further disclosed that the

matter came to the knowledge of appellant's elder brothers and he

confessed about the crime in their presence. All the four brothers of the

accused namely Suresh Chhabra, Deepak Chhabra, Satish Chhabra, Anil

Chhabra, mother of accused, husband of accused's sister, one Mr.Pawan

Arora, friend of Suresh Chhabra and her grandfather were present in the

said meeting. It was arranged by Suresh Chhabra, accused's brother. An

agreement (Ex.PW1/DX) was arrived at in the said meeting. Signatures

of other family members also appear over it. It was in the hand writing of

a security guard provided to Pawan Arora. She denied that signatures of

the accused on (Ex.PW-1/DX) were obtained on the pretext that all the

disputes would be finished for ever. She denied to have any illicit

relations with Prakash. She further informed that prior to the agreement

(Ex.PW-1/DX), another compromise (Ex.PW1/DY) had taken place on

26.01.2002. That compromise was made at the house of her maternal

grandfather where her Mausi, S.S. Chand, maternal grandfather and

mother, her mother and sister and the appellant were present. She denied

that the contents of the said settlement were not revealed to the appellant.

She denied if a false complaint was lodged against the appellant at her

mother's behest to strengthen her case lodged in CAW Cell or that the

appellant was not the perpetrator of the crime any time.

8. On scrutinizing the whole statement of the prosecutrix, it

reveals that no material infirmity or discrepancy could be extracted in

cross-examination to suspect her version. No ulterior motive was

assigned to the minor witness to level serious allegations of sexual abuse

against her own father. Nothing has come on record to show if 'X' had

illicit relationship with Prakash or the appellant had objected to that. It

was not elaborated as to when 'X' was seen in illicit relationship with

Prakash or what action was taken by the appellant against him. No

complaint, whatsoever, was lodged to implicate Prakash whose detailed

particulars have not surfaced on record. The allegations being vague and

uncertain cannot be believed. Again, nothing emerged on record to infer

if Manju Chhabra had any objectionable relations with S.S.Chand or he

had prompted 'X' and 'Y' to implicate their father. No complaint was

ever lodged against S.S.Chand. 'X' and 'Y' categorically stated that

S.S.Chand was appellant's friend and he used to bring him to their house

many times. Apart from this, mere assistance (if any) rendered by

S.S.Chand to the appellant's wife in setting up a play school is

inconsequential. Minor inconsistencies highlighted by the appellant's

counsel do not affect the core of the prosecution case. 'X' was sexually

abused since the age of five. She did not bring it to the notice of her

mother and other family members to protect the honour of the family. She

was threatened repeatedly by the appellant. It also deterred her to inform

her mother. In large number of cases, children are abused by persons

known to them or who have influence over them. Victims/witnesses of

many such crimes often keep mum due to social stigma, community,

pressure, total dependency on perpetrator emotionally and economically

etc. If the tormenter is the father, the victim needs to gather courage to

expose him. Thus delay in lodging the FIR is not fatal.

9. Another crucial witness is PW-5('Y'), appellant's other

younger daughter. She testified that in January, 2001 she was sleeping in

the room on the first floor after returning from school. At about 4.00 p.m.

the appellant arrived there and started misbehaving with her. He pressed

her breast and tried to pull her by holding her hands as a result of which

she woke up from her sleep. She pushed the appellant and ran out of the

room. She started 'weeping' on seeing the appellant's conduct as it was

unbecoming of a father. She narrated the incident to her elder sister 'X'.

When her mother came back from school, the incident was reported to

her. She talked to the appellant and his elder brothers. 'X' also narrated

her ordeal to them. The family members advised them that since it was a

family matter and related to the future of the girl, they should all keep

quite. However, thereafter, there used to be quarrel in the family.

Everyday her father used to give beatings to her, her sister and mother.

Thereafter, her mother lodged a complaint. In the cross-examination, she

elaborated that the accused had tried to touch her private parts. She fairly

admitted that they were living separate from the appellant for about three

or four months before lodging the complaint. She denied that S.S.Chand

and her mother were fast friends. She denied that they had separated from

the appellant as the appellant and his brothers used to object close

friendship of her mother with S.S.Chand.

10. Again, testimony of the prosecutrix could not be shattered in

the cross-examination. There was no occasion for the prosecutrix to make

serious allegations against her father to bring herself in disrepute. She has

corroborated 'X's version on material facts. No material discrepancy

could be elicited in the cross-examination to discard her statement.

11. PW-6 (Manju Chhabra), appellant's wife, has corroborated

the statements of 'X' and 'Y'. She talked about physical and mental

harassment to her at the appellant's hand. She further revealed that in

January, 2001, she came to know that her husband had sexually assaulted

her elder daughter 'X' since the age of five. She came to know about it

when the appellant started outraging the modesty of her younger daughter

'Y'. After coming to know about the appellant's behaviour with her

daughters, she informed her brother-in-law Suresh Chhabra who did not

pay much attention and told that he would talk to the accused and she

should not talk to anyone as the matter related to her daughters and no one

would marry them. Thereafter, the appellant's behaviour completely

changed and he started threatening and giving beatings to them. On

17.03.2002, the appellant attempted to make forcible entry in the house by

breaking open the gate. Her daughter had made telephone call at 100.

The said complaint was withdrawn by her under the pressure and

assurance of the family members that the appellant would not misbehave

in future and would maintain the family and pay maintenance regularly.

The settlement was made in the 'Biradari' and the appellant gave an

undertaking in writing (Ex.PW-1/DX) along with affidavit (Ex.PW-6/1).

The accused, however, continued to misbehave. On 24.04.2002, the

accused again picked up a quarrel with her daughter 'Y' and threatened to

kill her. She went to her in-laws to lodge complaint. The accused was

also there. She had handed over the compromise documents to the police

which were seized vide seizure memo Ex.PW-6/3.

12. In the searching cross-examination, she reiterated that

compromise was executed on 26.01.2002. She volunteered to add that she

was a participant in that compromise. The accused had called one of his

friends and had executed the document (Ex.PW1/DY). This document

was signed by her and other family members besides the accused and his

friend S.S.Chand, representing him. She denied that S.S.Chand had

represented her. She further disclosed that compromise deed dated

01.04.2002 was written by Pawan Arora's security guard. She admitted

that she was living separate since January, 2002 along with her daughters.

Her sons were not living with her as the accused had got their custody.

She denied that the appellant was intentionally implicated in the case to

keep him in custody to enjoy S.S.Chand's company without hindrance.

13. PW-6 (Manju Chhabra) has corroborated the statements

given by her daughters without major variations. PW-7 (Arjun Arora)

deposed that on 01.04.2002, he had gone to the house of Tulsi Ram,

appellant's father-in-law. Tulsi Ram, Suresh, Jawahar, Madanlal and

Pawan were present there. Appellant's wife Manju was also present there.

There he came to know that Subhash (the appellant) had committed rape

on his daughter. The appellant confessed his guilt before the 'Panchayat'

and assured that he would remain absent from the house for about one

year and this was written on a stamp paper (Ex.PW-6/1) which bears his

signatures at point -A. It was also signed by the accused at point-B.

Similar is the testimony of PW-8 (Tulsi Ram) in this regard.

14. Execution of documents (Ex.PW6/1, Ex.PW1/DX and

Ex.PW1/DY) has been admitted by the accused. These documents were

executed in the presence of many family members of the appellant

including his brothers. In these documents, there is a categorical

confession/admission by the appellant whereby he sexually abused his

daughter 'X' since the age of five. He further admitted to have outraged

the modesty of her other daughter 'Y'. The admission/confession recorded

in the presence of 'Panchayat' lends credence to the version given by the

prosecutrix, her sister and their mother. The appellant never challenged

validity and genuineness of those documents or putting signature thereon

without going through their contents. In 313 statement also there is no

categorical denial about the execution of these documents. He admitted

that the documents were signed by him at the instance of his wife who had

threatened him that in case of refusal to sign the documents, she would

implicate him in a false case. He admitted that at the time when he signed

the documents, some members of his family were also present. DW-2

(Suresh Kumar Chhabra), appellant's brother also admitted his signatures

over Ex.PW-1/DX and Ex.PW6/1. Contents of these documents speak

volume about the crime committed by the appellant.

15. The appellant did not bring on record any plausible evidence

of his false implication. He rather attempted to level allegations against

her daughter to have objectionable relations with one Prakash and his wife

Manju to have relations with one S.S.Chand. These allegations are

without any foundation and seem to have been levelled to wriggle out the

confession made by him in the documents executed in the presence of his

family members.

16. The Prosecutrix's statement is in consonance with the

medical evidence. She was medically examined by PW-2

(Dr.P.V.Suneetha) vide MLC Ex.PW-2/A; her hymen was found ruptured.

In the alleged history, there is mention that she was raped by her father

repeatedly since the age of seven upto the age of fifteen.

17. Minor contradictions, improvements and inconsistencies

highlighted by the appellant's counsel are not fatal to the prosecution case

as these do not go to the root of the case. There are no valid reasons to

disbelieve the affirmative deposition of the prosecutrix 'X' and her sister

'Y' coupled with medical evidence.

18. In State of Himachal Pradesh vs. Asha Ram 2005(9) SCALE

371, the Supreme Court held that it is now well-settled principle of law

that conviction can be founded on the testimony of the prosecutrix alone

unless there are compelling reasons for seeking corroboration. The

evidence of a prosecutrix is more reliable than that of an injured witness.

The testimony of the victim of sexual assault is vital unless there are

compelling reasons which necessitate looking for corroboration of her

statement, the Courts should find no difficulty in acting 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. It is also well-

settled principle of law that 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. Even minor

contradictions or insignificant discrepancies in the statement of the

prosecutrix should not be a ground for throwing out an otherwise reliable

prosecution case.

From the evidence, it is clearly established that P.Ws. 1 and

2, despite strained relationship between their mother and father, were

happily staying with the accused and there is no rhyme or reason as to

why the daughter should depose falsely so as to expose her honour and

dignity and also expose the whole family to the society risking the

outcasting or ostracization and condemnation by the family circle as well

as by the society. No girl of self respect and dignity who is conscious of

her chastity having expectations of married life and livelihood would

accuse falsely against any other person of rape, much less against her

father, sacrificing thereby her chastity and also expose the entire family to

shame and at the risk of condemnation and ostracization by the society. It

is unthinkable to suggest that the mother would go to the extent of

inventing a story of sexual assault of her own daughter and tutor her to

narrate a story of sexual assault against a person who is no other than her

husband and father of the girl, at the risk of bringing down their social

status and spoil their reputation in the society as well as family circle to

which they belong to.

19. The impugned judgment based upon fair appraisal of

evidence needs no intervention. The conviction is upheld.

20. The perpetrator of the crime is none else but the father of the

prosecutrix. 'X' was sexually abused since the age of five when she was a

little kid, unaware of the consequences of the act. Instead of providing

safe environment, the appellant betrayed the trust of the family and

indulged in physical relationship with his own daughter. The father is the

fortress and refuse of his daughter in whom the daughter trusts. In the

instant case, the accused's lustful acts have indelible scar not only

physically but also emotionally on the victims. He deserves no leniency

or sympathy.

21. In the light of the above discussion, I find no merit in the

appeal and it is dismissed. The appellant shall surrender before the Trial

Court on 11.01.2016 to serve out the remaining period of sentence. Trial

Court record be sent back forthwith along with the copy of the order.

Superintendent Jail be also informed.

S.P.GARG) JUDGE DECEMBER 23, 2015 sa