Murti Devi vs State
2015 Latest Caselaw 5069 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : JULY 15, 2015
                                DECIDED ON : JULY 16, 2015

+      CRL.A. 777/2005 & Crl.M.A.9829/2005

       MURTI DEVI                                         ..... Appellant
                           Through : Mr.Arun Sharma, Advocate.


                           VERSUS

       STATE                                              ..... Respondent
                           Through : Mr.Amit Ahlawat, APP.
        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

Crl.M.A.9829/2005

For the reasons mentioned in the application, the delay is condoned.

Application is allowed and disposed of.

Crl.A.777/2005

1. Aggrieved by a judgment dated 31.03.2005 of learned

Additional Sessions Judge in Sessions Case No.246/96 emanating from

FIR No.122/92 registered at Police Station Mukherjee Nagar by which she

was convicted under Section 376 IPC read with Section 109 IPC, the

instant appeal has been preferred by the appellant-Murti Devi. By an

order dated 02.04.2005, she was sentenced to undergo RI for 18 months

with fine `200/-.

2. Briefly stated the prosecution case as set up in the charge-

sheet was that on 8.7.1992 at around 2.00 p.m., the appellant abetted co-

accused Rajinder @ Dhaduka to commit rape upon the prosecutrix 'X'

(assumed name), aged 15 years, at house No.230 Village Dhir Pur, Delhi.

The Investigating Officer lodged First Information Report after recording

victim's statement (Ex.PW-3/A) on 16.07.1992. 'X' was medically

examined and her statement under Section 164 Cr.P.C. was recorded.

Both Rajinder and Murti Devi were apprehended. Statements of

witnesses conversant with the facts were recorded. After completion of

investigation, a charge-sheet was filed against both of them. It is relevant

to note that the appellant was declared Proclaimed Offender during trial.

By a judgment dated 21.04.1994, Rajinder was held guilty under Section

376 IPC and was sentenced to undergo RI for four years with fine

`1,000/-. It is informed that Rajinder has not challenged the judgment and

has served out the sentence awarded to him.

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

examined the file. Allegations against the appellant are of assisting and

aiding her brother-in-law Rajinder in committing rape upon the

prosecutrix 'X'. It is not in dispute that 'X' and her mother PW-4

(Nafisa) lived as a tenant on the first floor of the house for the last one

year whereas the accused persons lived on the ground floor. The parties

had visiting terms.

4. Appellant's conviction is primarily based upon the sole

testimony of the prosecutrix 'X'. However, a number of inherent

infirmities are noticed in the prosecution case. The occurrence alleged

took place on 08.07.1992 and 'X' apprised her mother about it on the

same day when she returned to home at 10.00 p.m. However, no

complaint whatsoever was lodged with the police till 16.07.1992. It is

reasoned that after having consultations with the relatives decision was

taken to lodge the FIR. This explanation does not inspire confidence. 'X'

was aged around 15 years on the day of occurrence. It was not expected of

PW-4 (Nafisa) to remain silent for about seven days and not to report the

incident to the police. Even on that day, she did not go to the police

station and purportedly the FIR was lodged at the spot when police

officials met her on the way. Apparently, delay in lodging the FIR

promptly has not been explained with plausible reasons.

The instant incident took place at around 02.00 p.m. At no

stage, thereafter till PW-4 returned to home at 10.00 p.m. any hue and cry

was raised by 'X' about the incident. She did not bother to inform her

mother or neighbours. It is strange that after suffering rape, she continued

to stay alone in home without any reaction. The conduct of the

prosecutrix is unnatural/unreasonable.

5. Exact date of birth of prosecutrix has not come on record.

No birth certificate or school record showing her date of birth was

collected and produced though admitted position is that she had studied

upto Vth class in various schools. As per ossification report (Ex.PW-8/A)

given by PW-8 (Dr.C.P.Sharma), her age was ascertained between 14 and

16 years at the time of her examination on 23.07.1992. Prosecution

witnesses have given different dates at different stages of the

investigation/trial. In her statement given to the police (Ex.PW-3/A), 'X'

disclosed her age 15 years. MLC (Ex.PW-5/A) records her age as 13

years. In her Court statement 'X' claimed herself to be of 15 years. On

the date of her examination on 08.11.1993, her mother PW-4 (Nafisa)

disclosed that 'X' was aged 14 years. She categorically admitted that she

did not produce school certificate or birth certificate to the police.

Adverse inference is to be drawn against the prosecution for not collecting

the cogent and reliable documentary proof about the exact date of birth of

the proseuctrix. Possibility of 'X' to be above 16 years on the date of

incident cannot be ruled out.

6. The alleged occurrence had taken place at the residence of

the prosecutrix at around 2.00 p.m. when she was alone and her mother

was away to a hospital. At the time of commission of the crime, she did

not raise alarm. Even soon after the occurrence, after the departure of the

perpetrator of crime, 'X' did not come out of the room to protest. Only

when her mother returned at about 10.00 p.m. she narrated the incident to

her. She also remained mum for about seven days. On 16.07.1992 when

'X' was medically examined at Hindu Rao hospital, no external injuries

were found on her body. The alleged history did not record if the

appellant had aided or assisted her brother-in-law to commit rape upon

'X'. There was no scratch mark or struggle mark over 'X's body to infer

if at the time of incident she had put resistance.

7. 'X' has made vital improvements in her deposition before the

court to implicate the appellant who herself was aged around 20 years. In

her statement (Ex.PW-3/A), 'X' did not disclose if after the occurrence

appellant visited or assisted her to change her clothes or made her to take

bath. In her Court statement, she improved the version and for the first

time deposed that after Rajinder went away, the appellant made her to

take bath, washed her clothes and changed it with new ones. 'X' did not

explain as to why this vital aspect was omitted to be narrated in her initial

version to the police. It is unbelievable that 'X' would allow the appellant

any access to her room after the sexual assault or would seek her

assistance. On the day of incident 'X' on her own had gone on the ground

floor where she met the appellant. 'X' had not suspected any foul play.

Nothing is on record to show that on that day, the appellant had

anticipated the arrival of the prosecutrix to conspire with co-convict

Rajinder to commit rape upon her. Visit to the appellant at that time was

accidental and sudden. In such a short span of time, it is not believable

that both the appellant and her brother-in-law would hatch a conspiracy to

ravish 'X' inside her room. There was no hitch in that eventuality to

commit the crime on the ground floor in the appellant's house. The

prosecutrix did not explain in her statement (Ex.PW3/A) as to who opened

the bolted room and at what time after the crime. At the time of physical

relations, admittedly, the appellant was not physically present at the spot.

She did not assist, aided or facilitated Rajinder in committing the crime

upon 'X'. Allegedly, she had left the company of 'X' to bring her

daughter upstairs. At that time, 'X' did not attempt to accompany her and

opted to remain present with Rajinder. Possibility of 'X' to be a willing

or consenting party cannot be ruled out. 'X' had no complaint,

whatsoever, against appellant's behaviour and conduct any time. She did

not nurture any grievance against 'X' prompting her to aid and assist her

brother-in-law in committing the crime when she herself was mother of a

little child.

8. In the light of the above discussion, conviction of the

appellant on the sole testimony of the prosecutrix in the presence of vital

deficiencies in the prosecution case is unsustainable and is set aside.

9. The appeal is allowed. The conviction and sentence of the

appellant are set aside. Bail bond and surety bond (if any) stand

discharged. Trial Court record (if any) along with a copy of this order be

send back forthwith. A copy of the order be sent to Jail Superintendent,

Tihar Jail for intimation.

(S.P.GARG) JUDGE JULY 16, 2015 sa