Sher Alam vs State
2015 Latest Caselaw 5389 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : JULY 20, 2015
                                  DECIDED ON : JULY 29, 2015

+      CRL.A.864 /2011 & Crl.M.B.937/2014

       SHER ALAM
                                                        ..... Appellant
                            Through :   Mr.Ashotosh Kaushik, Advocate.

                            versus

       STATE
                                                         ..... Respondent
                            Through :   Ms.Kusum Dhalla, APP.

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

S.P.GARG, J.

1. The present appeal is directed against the judgment dated

28.02.2011 of learned Additional Sessions Judge in Sessions Case

No.89/09 emanating from FIR 235/08 registered at Police Station Khajuri

Khas by which the appellant Sher Alam was held guilty for committing

offence under Section 452/376 IPC. By an order dated 04.03.2011, he

was sentenced to undergo RI for seven years with fine `5,000/- under

Section 376 IPC and RI for three years with fine `1,000/- under Section

452 IPC. Both the sentences were to run concurrently.

2. Prosecution case as projected in the charge-sheet was that on

19.08.2008 at about 9.30 a.m., the appellant committed rape upon 'X'

(assumed name) after committing house trespass at I-C2/141, Street No.3,

3rd Pushta, Sonia Vihar, Delhi. Soon after the incident, 'X' went to her

mother's place of work and apprised her about the occurrence. The police

was informed; 'X' was medically examined. The accused was

apprehended and medically examined. After recording victim's statement

(Ex.PW-4/A), the FIR was lodged. Statements of the witnesses

conversant with the facts were recorded. During investigation various

exhibits were collected and sent to Forensic Science Laboratory for

examination. Upon completion of investigation, a charge-sheet was filed

against the appellant in the Court. The prosecution examined twelve

witnesses to substantiate its case. In 313 statement, the accused denied his

involvement in the crime and pleaded false implication. Ajay Saklani

(DW-1) and Neeru Mourya (DW-2) appeared in defence. The trial

resulted in his conviction as aforesaid. Being aggrieved and dissatisfied,

the instant appeal has been preferred.

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

examined the file. Appellant's counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective. Vital

discrepancies and contradictions emerging in the statements of witnesses

were ignored without cogent reasons. 'X' in her cross-examination clearly

admitted that she did not allow the appellant to commit rape on her though

he had attempted to do so. Apparently, at the most it could be 'an attempt

to rape'. Learned counsel urged that no visible injuries were found on 'X'

body at the time of her medical examination; her hymen was intact. 'X's

statement has remained uncorroborated. She had lodged similar

complaint earlier also against one Mahender Bhati at the behest of Pushpa

Chameli, a social worker. Non-examination of the lady to whom the

prosecutrix had informed about the occurrence is fatal. No complaint was

ever lodged by 'X' or her mother any time against the appellant's conduct

and behaviour. The prosecutrix was unable to reveal and prove her exact

date of birth. Learned Additional Public Prosecutor urged that 'X', aged

around 16 years, has fully supported the prosecution and her testimony is

in consonance with medical evidence.

4. 'X' aged around 16 years had lost her father before her birth

and she used to stay along with her mother who used to earn her

livelihood by working as a maid and lived in a rented accommodation.

She used to go for her work at about 8.00 a.m. and return at 11.30 a.m.

The helpless child aged about 11 years was sexually assaulted by one

Mahender Bhati on 20.01.2007 and FIR No.37/07 was registered under

Sections 376 IPC at Police Station Khajuri Khas. The Trial Court

believed 'X's version and convicted Mahender Bhati by a judgment dated

17.01.2009. Mahinder Bhati challenged his conviction in appeal which

was dismissed by this Court. Apparently, the appellant cannot claim that

'X' is in the habit of lodging false complaints. She did not exonerate the

perpetrator of crime that time too. She is rather a victim and the appellant

who lived in her neighbourhood taking advantage of her loneliness in the

jhugi sexually assaulted her. 'X' has suffered sexual assault twice during

her childhood.

5. The occurrence took place at 9.30 a.m. on 19.08.2008. Soon

thereafter, 'X' apprised a lady present in the street but she preferred to

remain mum after accepting `500/- from the appellant. 'X' went to her

mother's place of work and informed her about the ghastly crime

committed upon her. Without any delay, she recorded statement

(Ex.PW-4/A) and the Investigating Officer lodged First Information report

by making endorsement (Ex.PW-4/C) at 5.30 p.m. over it. Prior to that,

she was available at Guru Teg Bahadur hospital for medical examination

at 3.15 p.m. In her Statement (Ex.PW-4/A), 'X' described her age 15

years and implicated the appellant by name for committing rape upon her.

She gave detailed account as to how and under what circumstances, the

appellant arrived at the jhugi in the absence of her mother and sexually

assaulted her. Since the FIR was lodged promptly and appellant was

named to be the author of the crime, there was least possibility of the

prosecutrix and her mother to fabricate a false story in such a short period.

MLC (Ex.PW-5/A) records alleged history of sexual assault by a

neighbour at 9.30 a.m. 'X' further revealed that earlier about two years

back she was sexually assaulted by some other individual. In her Court

statement 'X' proved the version given to the police without any variation.

While appearing as PW-7, she deposed that her mother had left the home

at 8.00 a.m. and she was alone in the room. After half an hour, the

appellant, her neighbour, came inside through the roof by jumping and

committed rape upon her. She narrated the occurrence to one of the ladies

who resided adjacent to her house. The accused gave `500/- to her and

despite narrating the facts to her, she kept mum and did not say anything.

She went to her mother and narrated all the facts to her. She identified

salwar (Ex.P-2) which she was wearing at the time of rape. In the

searching lengthy cross-examination, all sorts of questions relevant or

irrelevant were put to her. However, she was able to answer all the

queries intelligently. The appellant was unable to extract any material

infirmity to suspect her version and she stood the test of cross-

examination on all relevant and material facts. She admitted to have

lodged earlier FIR against Mahender Bhati at Police Station Khajuri Khas.

She also admitted her acquaintance with Pushpa Chameli. About the

appellant, she informed that he used to tease her since her childhood; he

even used to offer small gifts which she because of her immature age used

to accept. She elaborated that after her mother scolded her, she returned

the articles to him. She further informed that after attaining the age of

understanding, she declined to accept any article offered by the appellant.

She further deposed that the appellant was in the habit of peeping at the

time of her taking bath. Her mother was helpless to check the appellant

despite being informed. She denied that her motive was to extort money

from the appellant.

6. On scrutinizing the testimony of the prosecutrix, it stands

established that the appellant established physical relations with her

against her wishes. It is not appellant's case that 'X' was a willing and

consenting party to the physical relations. Had it been so, there was no

occasion for her to rush to her mother's place of work. No ulterior motive

was assigned to 'X', aged 16 years, to falsely implicate the appellant who

lived in her neighbourhood. No valid reasons exist to disbelieve the

prosecutrix. Why an unmarried girl of tender age would tarnish her

reputation by falsifying her claim. Her mother would obviously be chary

to such an incident gaining publicity to impact marriage prospects of her

unmarried daughter.

7. PW-9 (Sudha), 'X's mother has corroborated her version in

its entirety. She deposed that at around 9.00-9.30 a.m. when she was

present at her place of work, 'X' came and told that the appellant who

lived in the nearby vicinity had committed rape upon her after committing

house trespass through the roof. She along with her daughter 'X' went to

the Police Station and informed the police. In the cross-examination, she

declined if any money was demanded from the appellant to settle the

dispute. Nothing has surfaced to show if any demand of money was ever

made by 'X' or her mother to settle the dispute. 'X' in her cross-

examination was fair enough to admit that `1.5 lacs offered by Mahender

Bhati to settle his case was declined to be accepted by her. She denied that

her mother had demanded four lacs from Mahender Bhati. She further

denied that the appellant had offered some money to them at the Police

Station. Nothing was, however, explained as to why the appellant would

offer any amount to 'X' or her mother in the Police Station in case he was

innocent and was not the perpetrator of the crime. PW-9 (Sudha) used to

earn her livelihood by working as maid at various houses and it is

unbelievable that she would 'use' her minor daughter to extract any

money from the appellant. Unless such an incident has really been

happened, no mother would like to level such serious allegations of rape

against an innocent to have reflection on the chastity of her own

unmarried daughter. She does not have a strong motive to falsely involve

the appellant.

8. 'X' was medically examined promptly at GTB hospital vide

MLC Ex.PW-5/A where she informed the examining doctor about sexual

assault committed by her neighbour. It is true that as per MLC

(Ex.PW5/A), hymen was found 'intact' and there was no tear and

abrasion. Merely because the hymen of the prosecutrix was found

'intact' and there was no actual wound on her private parts, is not

conclusive of the fact that she was not subjected to rape. The Trial Court

has dealt with this aspect elaborately citing judgments to conclude that the

absence of injuries or mark of violence on the person of the prosecutrix

does not lead to any inference that she consented for sexual intercourse

with the accused. In Madan Gopal Kakkad vs.Naval Dubey and Another

(1192) 3 SCC 204, a minor girl aged about eight years was raped. It was

held that even slight penetration of the penis into the vagina without

rupture would constitute rape. In Radha Krishna Nagesh vs.State of

Andhra Pradesh 2012 (12) SCALE 506, the Supreme Court held that

being so it is quite possible to commit legally the offence of rape even

without causing any injury to the genitals or leaving any seminal stains.

MLC (Ex.PW-5/A) does not state in so many words that it was not a case

of sexual assault. PW-5 (Dr.Kanika Agarwal) was not cross-examined on

this aspect and nothing was suggested to her if it was a case of 'attempt to

rape'. The prosecutrix in her examination-in-chief categorically claimed

that she was sexually assaulted. In the cross-examination, she informed

that the accused could not succeed to commit rape as she was able to

prevent him from doing so. The statement of the prosecutrix is to be read

in its entirety and not in isolation. Penetration, however, small is enough

to constitute an offence of rape. By saying that she was able to prevent

rape, she meant that she did not allow the appellant to have complete

penetration. A girl aged 16 years and that too from a rustic background

could hardly be aware of such technicalities of law in relation to an

offence of sexual assault. She was categorical and certain to state that the

appellant, after the rape had wiped out semen with a piece of cloth and

had thrown it. FSL report (Ex.PW-10/A) demonstrates that 'human

semen' was detected on exhibits 1 (Frock) and 3a (microslides having

faint smear). This lends credence to 'X' version about sexual assault.

In 313 statement, the appellant did not offer plausible

explanation to the incriminating circumstances proved against him. He

did not lay any foundation for false implication. It is not explained as to

why 'X', the victim of sexual assault would blame him sparing the real

culprit. While appreciating the evidence of the prosecutrix, the Courts

always keep in mind that no self-respecting woman would put her honour

at stake by falsely pressing commission of rape upon her. Statement of the

prosecutrix if found to be worthy of credence and reliable requires no

corroboration. The court may convict the accused on her sole testimony.

Minor discrepancies and contradictions highlighted by the appellant's

counsel are irrelevant and inconsequential as they do not go to the root of

the case. Mere fact that the prosecutrix was unable to prove her exact date

of birth makes no difference as it was not a case of sexual assault with

consent.

9. The impugned judgment is based upon fair appreciation of

evidence and all the relevant contentions raised by the appellant's counsel

have been dealt with minutely. Order on conviction with reasons does not

warrant intervention.

10. The victim a child aged around 16 years was sexually

assaulted against her wishes. Minimum sentence of seven years

prescribed under Section 376 IPC cannot be modified or reduced.

Sentence order is modified to the extent that default sentence for non-

payment of fine under both the heads would be two months in total. Other

terms and conditions of the sentence order are left undisturbed.

11. The appeal stands disposed of in the above terms. Trial Court

record (if any) along with a copy of this order be sent back forthwith. A

copy of the order be sent to Jail Superintendent, Tihar Jail for intimation.

(S.P.GARG) JUDGE JULY 29, 2015 sa