Dinesh Yadav vs State (Nct Of Delhi)
2015 Latest Caselaw 5216 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on : 16.07.2015.
                                   Judgment delivered on : 21.07.2015.
+      CRL.A. 677/2011

       DINESH YADAV                                  ..... Appellant

                          Through        Ms.Anu Narula, Advocate.



                          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

of sentence dated 21.04.2011 and 30.04.2011 respectively wherein the

appellant stood convicted under Sections 376 (2)(f)/506-II read with

Section 109/34 of the IPC. He had been sentenced to undergo RI for a

period of 10 years and to pay a fine of Rs.25,000/- for the offence under

Section 376 (2)(f) read with Section 506-II of the IPC and in default of

payment of fine to undergo SI for a period of three months. For the

offence under Section 354 of the IPC, he had been sentenced to undergo

RI for a period of two years. The sentences were to run concurrently.

Benefit of Section 428 of the Cr.PC had been granted to the appellant.

2 The version of the prosecution is that the victim Kumari Á'(PW-

6) was raped by her step father i.e. the appellant Dinesh Yadav. This

was on the intervening night of 12-13/06/2009. Prior to this incident

also, her father had on 2-3 occasions committed rape upon her. She had

complained abou the same to her mother Bhagwati Devi. When

Bhagwati Devi accosted her husband, he beat her and threatened to kill

her other siblings. On the fateful night, when the mother of the

prosecutrix was away, the appellant again committed this dastardly act

upon her. FIR was registered on the complaint made by the complainant.

3 The prosecution in support of its case has examined 15 witnesses

of whom the victim was examined as PW-6. Her neighbor Harish

Chander was examined as PW-13. The medical evidence evidencing that

the hymen of the victim was torn was on the basis of the MLC of the

victim conducted by Dr. Meenu Vashisht (PW-7). It was proved as

Ex.PW-4/B. The seized exhibits which included the vaginal smear of the

victim had been sent for an analysis. The CFSL report Ex PW-8/A was

proved through Dr. Rajendra Kumar, Assistant Director of the CFSL

(PW-8). The age of the victim was proved through the Principal of

Government Girls Senior Secondary School Dr. Anita Vats (PW-5) who

had brought the relevant record evidencing that the victim was born on

02.02.1994 meaning thereby that on the date of the offence, she was

approximately 15 years and 10 months old. The Investigating Officer

WSI Susheela was examined as PW-12. The second Investigating

Officer SI Daya Nand through whom the challan was filed was

examined as PW-15.

4 Apart from the appellant, the mother of the victim Bhagwati Devi

was also made an accused.

5 In the statement of the appellant recorded under Section 313 of

the Cr.PC, he had pleaded innocence. He stated that the prosecutrix was

in love with Harish (PW-13) and on the fateful night, he had seen both

of them together and this was the reason for his false implication.

6 The second accused namely Bhagwati Devi has since been

acquitted.

 7      No evidence was led in defence.

8      On behalf of the appellant, arguments have been addressed in

detail by Ms. Anu Narula, the learned amicus-curiae. It is pointed out

that the rule of criminal jurisprudence is clear. The prosecution has to

stand on its own legs to prove its case to the hilt. It must be proved

beyond reasonable doubt. On the other hand, the accused to get the

benefit of doubt from the Court has to merely create a dent in the

version of the prosecution. He does not have to follow the strict rule of

proof beyond reasonable doubt. If the appellant is able to show that the

version of the prosecution is suspicious and suffers from infirmities, that

by itself would be sufficient to entitle the accused to a benefit of doubt.

9 This proposition of law is undisputed. We shall test the version of

the witnesses of the prosecution and the arguments propounded by the

respective parties on the anvil of this proposition.

10 The star witness of the prosecution was the prosecutrix herself.

She was examined as PW-6. She has deposed that she was born on

02.02.1994. At the time of incident, she was studying in the 10th class in

the MCD school, K-Block, Jahangir Puri. The appellant is her step

father. Bhagwati Devi is her real mother. Her father had expired when

she was 4-5 years old and her mother got remarried to Dinesh Yadav.

She has four step sisters and one step brother from the marriage of her

mother with her step father. PW-6 has further deposed that ever since

she was 10-12 years old, her father used to forcibly make physical

relations with her despite her opposition and against her consent. He had

made physical relations with her on 2-3 occasions prior to this incident.

PW-6 had informed her mother about the same. When her mother

accosted her father, her step father beat her mother and threatened to kill

her other siblings. On one occasion, the appellant had broken the hand

of her mother. The appellant had committed rape upon the victim in

June, 2009. She told her mother about this. Her mother was beaten and

threatened. Her mother left for her mama's house in the village. Her

father also went to the village. After one week, when her father returned

on the intervening night of 12-13.06.2009 at about 12:00-12:30 PM, the

victim prepared food for her father and when she was going to sleep, her

father pulled her chunni and 'zabardasti' committed rape upon her. She

raised alarm. Her brother and sisters who were sleeping in the same

room woke up. Neighbours also woke up. She called one of her

neighbours whom she called Harish bhai (PW-13). She narrated the

incident to him. She was advised to go to the police station. In the

evening, an aunty by the name of Sangeeta and Harish bhai took her to

the police station where the present case was registered. Her statement

under Section 161 of the Cr.PC was recorded. She was medically

examined. In her cross-examination, she admitted that whenever she

told her mother about the acts of her father, her mother used to object;

her father used to beat her mother; her father used to do the business of

thekedari; her father often used to take alcohol. Her mother had opened

a tea stall and she was running the household from the earning of the tea

stall. She did not know how much money her father has deposited in her

account or how many Indira Vikas Patras, he had taken in her name. She

admitted that Harish bhai was living in the same vicinity and her father

was working in vegetable mandi. The house of Harish is in the gali next

to her gali. On the fateful night, Harish was present at his house. On

hearing her cries, several persons came out and collected. There are

eight rooms in the same building which are occupied by the different

tenants and everybody had come out. She does not remember the name

of the persons who had collected but aunty Sangeeta was there. She

admitted that her father had come to the room, her brother and sisters

were also present there. She admitted that Harish used to come to the

house even in the absence of her parents; he was her muhn bola bhai.

She denied the suggestion that she was having physical relations with

Harish which was objected by him and on the date of the incident, her

father had seen her with Harish and had objected pursuant to which this

false case has been registered.

11 No other public witness (except one) has been examined. Aunty

Sangeeta was not a witness of the prosecution. The mother of the victim

was arrayed as an accused.

12 The other public witness who was examined was Harish Chander.

He was examined as PW-13. He has deposed that he knew the victim

and that she used to reside in the neighbourhood with her parents since

the last three years. She used to tie rakhi to him and he regarded her as

his sister. He recognized Dinesh Yadav but he did not know that he was

the step father of the victim. He admitted that on the fateful day, he was

present at his house and in the late night, he had seen 2-3 persons were

passing. He met the victim (PW-6) who told her that a quarrel had taken

place with the neighbours. She was advised to sleep. Next evening, he

took PW-6 to the police station. Since his mother was ill in the village,

after leaving the victim in the police station, he returned back. He was

permitted to be cross-examined by the learned public prosecutor as he

was not spelling out his version correctly. In his cross-examination, he

admitted that on the fateful day at about 12:00-12:30 pm, when she saw

the crowd outside the house of PW-6, he went there; he found PW-6

present there and she told him that her step father had reached home at

late night and had committed rape upon her. PW-13 had tried to console

PW-6. PW-6 told him that even 10-15 days prior to the date of incident,

the accused had committed rape upon her. She had told her mother but

her mother was threatened by the accused and fed up with this situation,

she had gone to the village. He admitted that the appellant had also left

and was not available in the area and it was only in the intervening night

of 12-13.06.2009 that he had returned.

13 In his cross-examination, he stated that when he had seen PW-6,

she was not perturbed or scared. She appeared to be normal. He

admitted that prior to this incident, the victim had never told about any

objectionable act by her step father. PW-6 had no problem with her

mother. He admitted that there was a distance of about 300 square yards

from his house to that of the victim. He heard the alarm raised from the

house of the victim which was visible from his house. He denied the

suggestion that he was having an affair with PW-6 and when the

appellant had seen him with the prosecutrix, these false allegations have

been made.

14 A scrutiny and perusal of the testimonies of these two witnesses

i.e. PW-6 & PW-13 shows that there are clear contradictions between

them. PW-13 was vacillating. He was blowing hot and cold. He did not

even know that the appellant was the step father of the victim when

admittedly he was living in the house just 300 square yards from the

house of the victim since the last three years. In one part of his

deposition, he stated that the victim had told him that 10-15 days prior

to the date of the incident, the appellant committed rape upon her but in

the later part of his deposition, he had stated that prior to this incident,

the victim had never told to him about any objectionable act on the part

of her father. She had no problem with her mother. PW-13 also admitted

that the mother of the victim was not in the house at that time; she had

gone to the village. The appellant had also gone to the village and it was

only on the fateful night that he had returned. He had denied the

suggestion that he was having a love affair with PW-6 and when the

appellant had seen them on the fateful day together, because of this he

has been falsely implicated.

15 Testimony of PW-6 has also been perused. As per her version, her

mother had got married to the appellant sometime in the year 1999. This

incident is of 2009 meaning thereby that the appellant was married to

the mother of the victim since the last 10 years. She had four step sisters

and one step father. They were all sleeping in the same room when the

incident had occurred. This has been categorically admitted by PW-6

who had stated that when the offence of rape was committed upon her,

her brother and sisters were sleeping in the same room. It would be

difficult to imagine that five other children sleeping in the room and the

appellant was trying to commit an untoward act in such a scenario. That

apart, the victim in one part of her version had stated that prior to this

incident, on 2-3 occasions earlier also, the appellant had committed rape

upon her. She had not spelt out those dates. She had however

complained to her mother and her mother was beaten by her father when

she accosted him of the same. Her further version is that there are eight

rooms in the same building and on hearing her cries, all the neighbours

had gathered there. Harish had also come there on hearing her cries.

Matter was thereafter reported to the police. The incident had occurred

at 12:00-12:30 midnight. Incident had been reported on the following

day at 04:45 pm. Harish had accompanied her to the police station for

making a complaint. Her mother was not in the house at the time when

complaint was made. Harish was admittedly a person who used to

frequent visit the house of PW-6. He even used to come to her room in

the absence of her parents.

16 This Court notes that the victim is at the age of puberty i.e. almost

16 years on the date of the incident. Harish was about 18 years on the

date of the incident. Admittedly both, the victim and Harish were known

to each other. The fact that they were on friendly term is fortified by the

admission of PW-6 who admits that Harish who was her immediate

neighbor used to come to her house frequently and sometime in the

absence of her parents, he used to visit her room.

17 The defence of the appellant all along has been that he has been

falsely implicated because he had seen his daughter and Harish in an

intimate position on the fateful night, he has been falsely embroiled for

this reason and this is at the behest of Harish. This line of defence has

been adopted by the accused right from its inception. It is not an

afterthought. The learned defence counsel has given suggestions to both

PW-6 and PW-13 on this count. Even in the statement of the appellant

recorded under Section 313 of the Cr.PC, this is the same line of

defence.

18 The mother of the victim was arrayed as an accused. She was

Bhagwati Devi. In her statement recorded under Section 313 of the

Cr.PC, on one point, she had stated that her daughter used to tell her

about the illegal acts of her husband and when she accosted him she was

beaten. However in the last question put to Bhagwati Devi, she had

stated that the victim had never told her about any untoward act

committed upon her by her father. Bhagwati Devi was in the village at

the time of the incident. She had left her house around one week ago.

The incident had occurred at the intervening night of 12-13.06.2009 and

as per the prosecution, Bhagwati Devi had gone to her village sometime

in the first week of June. Her husband had also followed her to the

village. This is also an admitted fact. It is also an admitted fact that the

appellant had returned to the house only on the fateful day.

19 The defence of the accused that he had seen Harish (PW-13) and

his daughter (PW-6) together on the fateful night which had sparked out

of this incident cannot wholly be ruled out. Had it been true that the

appellant had committed such act upon the victim on the earlier

occasions also, the victim would have made a complaint. On this score,

the mother is also vacillating. In one part of her statement recorded

under Section 313 of the Cr.PC, she had stated that her daughter had not

disclosed to her at any point of time prior to this incident about

untoward act by her father whereas in another part of her statement, she

had stated that her daughter had disclosed her and when she accosted,

her husband had beaten her. Testimony of PW-13 on this score has also

been discussed supra. At one point of time, PW-6 had disclosed to him

that prior also, her father used to commit untoward act upon her but in

the later part of his deposition, no such narration had been given by PW-

6 to him.

20 It is also difficult to believe that PW-6 who had remained in the

same house for the last 10 years and if rape was being committed upon

her, three years prior to the date of the incident (which is her version in

her statement recorded under Section 164 of the Cr.PC and which is not

in her deposition on oath in Court) in June, 2009 even in the absence of

her mother, on her own, she reported the incident to the police. If she

had courage to do so in June, 2009, even when these incidents were

continuous for three years prior in time, she could have reported the

matter earlier also. Moreover, the version of PW-6 in her statement

under Section 161 of the Cr.PC that three years ago also, her father had

committed rape upon her was not a part of her version on oath in Court.

PW-6 was making vital improvements. It is again difficult to believe

that this act of rape was committed by her father upon her while her four

other siblings were sleeping in the same room. On her raising alarm,

several neighbours who had come there on hearing her cries but none of

them have been examined. Only Harish (PW-13) was examined. He was

wholly confused in the beginning and only after he was cross-examined

by the public prosecutor, he had come out with truth. However his

version in his examination-in-chief was contrary to his version in his

cross. There was conflicting statements as to whether the prosecutrix

had told him about the earlier incident of rape having been committed

upon her by her father or not.

21 The accumulation of this evidence creates a suspicion in the mind

of the Court.

22 On this score, the medical evidence is also relevant. PW-6's MLC

has disclosed no injury. Hymen was torn. In the history chart, the patient

had disclosed that there was sexual assault upon her since the last four

years by her step father. As discussed supra, in her statement recorded

under Section 164 of the Cr.PC, she had stated that this was going on

since the last three years. On oath, this was not the version. It was that

on earlier dates also, 2-3 times the appellant had committed wrong act

upon her. She had disclosed it to her mother and also to Harish. In

another part of her evidence, PW-6 has stated that she had not disclosed

these facts to her mother. The mother who was arrayed as an accused

had also given different versions in her explanation under Section 313 of

the Cr.PC.

23 Testimony of PW-6 does not inspire confidence. It would be

difficult for the conscience of this Court to endorse the conviction of the

accused on this version of the prosecutrix which is wholly contrary to

the testimony of PW-13 and the explanation tendered by her mother.

24 It is no doubt true that in such heinous offences, the evidence of

the prosecutrix has to be predominantly considered and if cogent and

credible without any other evidence, it may be sufficient to convict an

accused. However, each case has to be dealt with in its own factual

matrix.

25 The Apex Court in (2009) 15 SCC 566 Tameesuddin @ Tammu

Vs. State of NCT of Delhi, in this context had observed as under:-

"It is true that in a case of rape the 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. We are of the opinion that story is indeed improbable"

26 The prosecution in this case has failed to prove its case to the hilt.

Defence has been able to dent the version of the prosecution and the

possibility that the appellant having found his step daughter in an

uncomfortable position with Harish had led her to implicate him is a

large probability which cannot be ruled out.

27 Accused is entitled to a benefit of doubt. He is accordingly

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

28     Appeal is allowed.

                                               INDERMEET KAUR, J

JULY 21, 2015

A