Muzaffar Ali @ Mulla vs State
2015 Latest Caselaw 4763 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of Judgment: 07.7.2015

                           Crl. Appeal No. 197/2013

MUZAFFAR ALI @ MULLA              ......Appellant
             Through: Mr.Sitab Ali Chaudhary, Advocate.

                      Versus


STATE                                              .......Respondent

                      Through:     Mr.Pramod Saxena, APP for the State.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (oral)

1. This appeal is directed against the impugned judgment and order

of sentence dated 31.10.2012 and 07.11.2012 respectively wherein the

appellant had been convicted under Sections 376/506 of the IPC. He

has been sentenced to undergo RI for 7 years and to pay a fine of

Rs.1000/- for the offence under Section 376 of the IPC. For his second

conviction he had been sentenced to undergo RI for 1 month. The

sentences were to run concurrently.

2. The version of the prosecution unfolded in the testimony of

prosecutrix (PW-7) is that on the fateful day i.e. on 01.12.2010 at about

5.00 p.m. when her parents had gone for work and she alone and

watching T.V. in the house, the appellant Muzaffar @ Mulla living in

the neighbourhood had committed rape upon her; he threatened her not

to disclose this incident to anyone. She started crying. When her brother

Shivam returned home, she did not disclose the incident to him. She

disclosed the incident to her father (PW-1) who in turn informed her

mother (PW-8). Police complaint was lodged.

3. In view of the version of PW-7 coupled with the version of her

mother (PW-8) and her father (PW-1) the accused was convicted. The

medical evidence admittedly had not supported the version of the

prosecution.

4. On behalf of the appellant, it has been argued that this is a clear

case of false implication and the wife of the appellant who was also

working as a maid servant in the neighbourhood used to fight with the

mother of the prosecutrix which was the bone of contention between the

two families and this had led to the false implication of the appellant.

Learned counsel for the appellant on this score has drawn attention of

this Court to the testimony of PW-7, PW-8 as also PW-1 and

suggestions given to each of these witnesses on this score. It is pointed

out that this defence of the appellant has been consistent from the

inception and this has also been his stand in his statement under Section

313 Cr.P.C. The second submission of the learned counsel for the

appellant is his argument that the clothes of the victim were deliberately

not handed over by the victim and her mother for examination and this

has come both in the version of PW-7 and PW-8 as also the doctor who

has been examined as PW-6. The MLC of the victim Ex.PW-5/A also

shows that there were no injuries noted upon the body of the victim; her

hymen was also intact.

5. Arguments have been refuted by the learned APP for the State.

6. Record has been perused.

7. Star witness of the prosecution is PW-7. Although in her

examination-in-chief, she had stated her aged to be 13 years but since

the prosecution was not able to collect any evidence on her age the

doctor had opined that ossification test be carried out. Ossification test

report dated 07.12.2010 of the victim has opined the age of the victim to

be 15-16 years and giving the benefit of two years she was not

considered as a minor.

8. PW-7 had on oath deposed that on the fateful day while her

parents had gone for their work she was alone in her house and was

watching T.V.; her mother was working in a factory; her father used to

do ironing of clothes; her brother had gone to the house of her Bua in

the neighbourhood. The appellant entered her room. He forcibly

removed her clothes and after clamping her mouth he committed rape

upon her. He had thrown a white discharge upon her. She did not

disclose this incident to her brother when he came back. She reported

the incident to her father when he returned back to the house. Her father

informed her mother (PW-8) about the incident. In her cross-

examination PW-7 stated that her father normally used to return home

from his work at 9.00 p.m. She has two brothers including Shivam. Her

mother works in a factory and she normally returns home at about 7.00

p.m. The accused also has a daughter aged about 7 years. PW-7 could

not raise an alarm as her mouth had been pressed by the accused. She

denied the suggestion that she had not been raped. She also denied the

suggestion that the accused had been falsely implicated at the instance

of her parents. She admitted that the wife of the accused was also

working as a maid servant. She also denied the suggestion that the

accused was not present in his house on the day of the incident as he had

gone to attend his work. Testimony of the mother of the prosecutrix

(PW-8) has also been perused. She deposed that on the fateful day

while she was at her work she was informed that her daughter was

crying as the accused had committed rape upon her. She reiterated the

incident and disclosed that the accused had made her daughter clean the

floor on which he had thrown a white discharge. She admitted that she

had not handed over the cloth of the victim to the police. Her statement

was that the victim had no other clothes. In her cross-examination, she

was confronted with her earlier statement (Ex.PW-8/DA) to point out

certain improvements which were largely to the effect that she was

informed by her husband on telephone that the act of rape had been

committed upon her daughter by Muzaffar. There was also an

improvement to the effect that Rakhi has been threatened by Muzaffar

not to disclose this incident to any person or he had made her to clean

the floor. She was also confronted with her version that she did not had

hand over the clothes of her daughter as her daughter was not having

other clothes. All these facts had not found mention in Ex.PW-8/DA.

She denied the suggestion that she had a quarrel with the wife of the

accused and for this reason the accused had been falsely implicated.

9. PW-1 the father of the victim disclosed that he had two sons and

two daughters of whom, the prosecutrix was his eldest child. On the

fateful day when he returned home at 6.00 p.m. he was informed by the

prosecutrix that the accused has committed rape upon her. Police

complaint was lodged. In his cross-examination, he admitted that he

did not have any proof regarding the age of his daughter. Police had

lifted nothing from the room where the incident had taken place. The

room had been cleaned by the prosecutrix under threat. He informed the

police after his wife had returned home. He denied the suggestion that

his wife and the wife of the accused used to have quarrel over filling up

water; this was the reason for the false implication of the appellant. In

the statement of the accused recorded under Section 313 Cr.P.C. he

stated that he has been falsely implicated because of the strained

relationship of his wife with the mother of the prosecutrix.

10. There is no doubt to the settled legal position that a conviction

can be based on the sole testimony of a victim of rape; the rider attached

being that such a testimony should be credible, cogent, clear and

umambiguous. In all cases, it may not be necessary to obtain other

corroborative which would include the medical and scientific evidence.

However, each case has to be viewed in its own factual matrix.

11. Admittedly in the present case the MLC of the victim (PW-5/B)

shows that her hymen was intact. PW-7 was examined at 10.45 p.m. by

the concerned doctor. No pallor was noted on her face. Her parameters

were normal. No sign of external injuries or any other kind of injury

was also noted. Ex.PW-5/B categorically records that the patient and

her mother were not willing to hand over her clothes for an examination.

This is a material lacuna which has also been noted by the trial judge.

Although in one part of her deposition PW-8 stated that she did not hand

over the clothes of her daughter for the purpose of investigation as the

victim had no other clothes but this does not find mention in

Ex.PW-5/B. It is also difficult to believe and imagine a situation that

the victim had no other alternate clothing when both her parents were

working. They were four siblings; they all were going to school; both

parents also had mobile phone. They were not living in such a state of

depravity that the victim had no other clothes to change other than those

which were worn by her at the time of the incident. PW-6 Dr.Ruchi

Mathur, Senior Gynecologist had also categorically on oath stated that

the patient and her mother had refused to give the clothing of the patient

for examination. Had it been a case where the victim had no other

alternate clothes this would have also found mention in Ex.PW-5/B or in

the version of the concerned doctor. As rightly pointed out by the

learned counsel for the appellant it could only be reason that there was

no evidence of the alleged crime on the clothing of the victim and that is

why intentionally the clothes of the victim were not handed over for

investigation. The scene of crime could also not be investigated any

further as the version of PW-7 was that the white fluid which had been

thrown upon her by the accused was wiped away by her under threat.

In this background the factum of the investigation of the clothing of the

victim would have assumed still greater importance. An adverse

inference has to be drawn up against the victim and her family for

deliberately not cooperating in this important aspect of the investigation.

The scientific evidence also does not support the case of the prosecution.

Semen was detected on the underwear of the accused but that by itself

cannot in any manner connect the accused with the offence for which he

has been charged.

12. The sole testimony of the prosecutrix is thus not sufficient to

convict the accused. Version of PW-7 does not inspire confidence. The

incident is reported to have occurred at 5.00 p.m. Although PW-7 had

disclosed that her parents had gone for work and her brother Shivam had

gone to the house of their Bua, but she did not say anything about her

other siblings i.e. her other sister and other brother. In her cross-

examination PW-7 stated that her father used to return home normally

by 9.00 p.m. On the day of the incident he had in fact left the house at

3.00 p.m. and returned by 6.00 p.m. The day of the incident was

Wednesday. It was admittedly a working day. PW-7 also admitted that

accused used to go for work in the morning and come back in the night.

Monday was his holiday. The day of the incident was thus admittedly a

working day for the appellant.

13. The parrot like recitation of PW-7 was reiterated in the version of

PW-8 and dents have been created. Testimony of PW-8 was largely

hearsay because the incident had been revealed to her by PW-7. Her

categorical version was that her daughter has no other alternate clothing

that is why her clothes were not handed over for investigation. This is

contrary to the version of PW-7 who has stated that although she has

another set of clothing but they were wet at that time and that is why her

clothes were not handed over to the police. As noted supra this fact was

not recorded in her MLC (Ex.PW-5/B) and the doctor (PW-6) had

categorically stated that PW-8 and PW-7 had refused to hand over the

clothes for investigation. This creates a serious doubt in the mind of the

Court that the clothes of the victim had not been given for investigation

and this was for the reason that they would not support the stand of the

prosecutrix.

14. Further, PW-1 stated that on the fateful day he had come back at

3.00 p.m. and after lunch he had gone for work and returned back at

6.00 p.m. Version of PW-7 is contrary. She stated that her father had

gone for work on the fateful day after taking lunch at 3.00 p.m. PW-1

was also confronted with his earlier statement (Ex.PW-1/DA) and

improvements were noted. On oath he had improved his statement

stating that his daughter was threatened by the accused that is why the

room was cleaned by his daughter. His daughter was threatened by the

accused by pressing her throat and closing her mouth.

15. The testimony of the investigating officer (PW-9) is also relevant.

She had prepared the site plan Ex.PW-9/D. This discloses that the place

of incident is a house occupied by the victim and her family on the

second floor in a building. There are adjoining houses in the same

building. The submission of the learned counsel for the appellant that

the incident occurred at 5.00 p.m. and none of the neighbours learning

about it till the time father of the victim was informed is also an

argument which cannot be brushed away lightly.

16. The medical evidence is also not supportive of the version of the

prosecutrix. There was no injury on the person of the victim either

external or otherwise; her hymen was intact; all her vital parameters

were normal and no pallor was noted on her external features. This also

corroborates the defence set up by the accused that this could well be a

case of false implication.

17. The law on criminal jurisprudence is clear. The prosecution to

stand on its own legs must prove its case to the hilt. The accused is

entitled to benefit of doubt, if he is able to create a dent in the version of

the prosecution; the parrot like recitation of PW-7 does not inspire

confidence. There is no reason as to why PW-7 had not given her

clothing for investigation. The statement of PW-8 that PW-7 that she

had no other alternate clothing was a white lie. The defence of the

accused right from the inception was that the mother of the victim and

his wife used to quarrel and this was the reason for the false implication

of the accused. This was also the stand of the appellant in his statement

under Section 313 Cr.P.C. The MLC of the victim also show no injury

on her person. Since the credibility of PW-7 is itself suspect, the medical

evidence also not supporting the version of the victim, it is clear case

where the appellant is entitled to a benefit of doubt as he has been able

to dent the version of the prosecution.

18. The submission of the learned P.P. that no parents would bring

disrespect to their daughter and falsely implicate her, is answered by the

observations of the Apex Court in Radhu Vs. State of Madya Pradesh

reported in 2007 Cri LJ 4704. This was also a case where an obedient

daughter on the persuasion of her parents had false charge of rape. The

relevant paragraph is quoted herein below and read as under:

"The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rate instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or to extort money or to get rid of financial liability. Where there was rape or not would depend ultimately on the facts of circumstances of each case."

19. The appellant is accordingly to an acquittal. He is acquitted. He

be released forthwith, if not required in any other case.

20. A copy of this order be sent to the Jail Superintendent for

intimation and compliance.

INDERMEET KAUR, J

JULY 07th 2015 ndn/m