Chand Singh vs State Of Delhi
2015 Latest Caselaw 2435 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : 12th FEBRUARY, 2015
                            DECIDED ON : 23rd MARCH, 2015

+                       CRL.A. 176/2002

      CHAND SINGH                                     ..... Appellant

                        Through :   Mr.Rajeev Gaur Naseem,
                                    Advocate.


                        versus



      STATE OF DELHI                                  ..... Respondent

                        Through :   Ms.Kusum Dhalla, APP.


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

S.P.GARG, J.

1. Aggrieved by a judgment dated 05.03.2002 of learned Addl.

Sessions Judge in Sessions Case No. 90/01 arising out of FIR No.46/2000

PS Dwarka, by which he was held guilty for committing offence

punishable under Section 376 IPC, the instant appeal has been filed by

him. By an order dated 06.03.2002, he was awarded RI for five years

with fine ` 10,000/-.

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

sheet was that on 19.03.2001 at about 03.00 P.M., after wrongfully

confining 'X' (assumed name) aged about sixteen years in his shop

situated in House No.RZ G559, Raj Nagar-II, Palam Colony, the appellant

sexually assaulted her after putting her in fear. The police machinery

swung into action when intimation about the incident was conveyed vide

Daily Diary (DD) No.26A (Ex.PW-11/B) at 08.20 P.M. that day. The

investigation was entrusted to SI Rajiv Yadav who went to the spot and

met X's parents. After recording victim's statement (Ex.PW-1/A), he

lodged First Information Report. 'X' was medically examined. The

accused was arrested and medically examined. Statements of the

witnesses conversant with the facts were recorded. Exhibits were sent to

Forensic Science Laboratory for examination. After completion of

investigation, a charge-sheet was submitted against the appellant for

commission of offences under Sections 342/506/376 IPC. To establish

appellant's guilt, the prosecution examined twelve witnesses. In 313

Cr.P.C. denying his involvement, the appellant claimed false implication

and examined DW-1 (Harish Yadav) in defence. After considering rival

contentions of the parties and appreciating the evidence on record, the

Trial Court, by the impugned judgment, convicted the appellant under

Section 376 IPC. It is significant to note that he was acquitted of the

charges under Sections 342/506 IPC and the State did not challenge the

said acquittal. 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 conviction is primarily based upon the sole

testimony of 'X'. In her statement (Ex.PW-1/A) to the police, at first

instance, 'X' gave graphic detail as to how and under what circumstances,

she was sexually assaulted by the appellant after confining her inside his

shop. She was criminally intimidated and threatened not to disclose the

incident or to face dire consequences. When she returned to home, she

apprised her parents who made a telephone call to the police. In her Court

statement (PW-1), she proved the version given to the police initially

without much variation and implicated the appellant for forcible rape upon

her at the point of knife. PW-2 (Munaki Devi) and PW-3 (Palak Dhari

Verma), X's parents testified on similar lines.

4. The Trial Court did not adhere to X's version that she was

forcibly raped by the appellant. It came to the conclusion that the physical

relations with the appellant were with her consent. Since she was below

sixteen years of age on the day of occurrence, her consent was immaterial

or inconsequential. For that reason, the appellant was acquitted under

Sections 506/342 IPC. The findings of the Trial Court in this regard can't

be faulted. Indisputably, 'X' and the appellant were acquainted with each

other prior to the incident and lived in the same vicinity. The appellant has

brought on record photographs (Ex.PW-1/DA and Ex.PW-1/DB) showing

intimacy between the two before the occurrence. Number of letters were

placed on record by the appellant allegedly written by 'X'. 'X' did not

raise hue and cry or alarm at any stage. The shop, where the alleged

incident occurred was not situated in a secluded place and was surrounded

by number of other shops. Even 'X's house was opposite to the shop in

question. In her earlier version Ex.PW-1/A, 'X' did not reveal if she was

criminally intimidated at the point of 'knife', no such knife was recovered.

She was medically examined vide MLC (Ex.PW-9/A) and no physical

injuries on her body were found; there was no bleeding / discharge, no

fresh tears, hymen was not intact; vagina admitted one-finger easily. Had

there been forcible rape, there was every possibility of 'X' to sustain

struggle marks on her body which are lacking.

5. From the inception, appellant's case was that he and 'X' were

in love and had some intimacy. However, subsequently, he distanced

himself from her and married someone else. In 313 statement, he put up a

specific defence that he was falsely implicated as 'X' had become

revengeful after he distanced from her and married someone else. During

the course of arguments, it was vehemently urged that the appellant was

not the perpetrator of the crime and no such physical relations were

established with 'X' at the given date and time inside the shop. To

substantiate his plea, calculated risk was taken by him while moving

Crl.M.A.No.7026/10 under Section 391 Cr.P.C. to produce additional

evidence. It was contended that as per CFSL report dated 30.11.2001,

human semen detected on Ex.1 (underwear) was of 'AB' group; whereas

his blood group was O+ and as such the semen / blood grouping detected

on X's underwear did not match his blood group. The said application was

allowed by an order dated 28.02.2014; its report was received on

25.08.2014. Admitted position is that exhibits collected during

investigation were sent to Forensic Science Laboratory for examination.

Underwear of the prosecutrix was seized at the time of her medical

examination on 19.03.2001. FSL reports Ex.PW-12/C and 12/D reveal

that human semen was detected on Ex.1 (underwear), 2a and 2b (two

micro slides having faint smear); semen could not be detected on Ex.3

(one underwear). Human semen detected on Ex.1 was of 'AB' group.

Prosecution case was that the appellant had committed rape upon the

prosecutrix and soon thereafter, she was taken for medical examination.

'X' never claimed that semen on her underwear was not the result of the

reported incident. Report dated 06.03.2014 given by Dr.Sanjev Lalwani,

Addl. Professor, Department of Forensic Medicine states that there is no

difference in blood group of the blood in circulation and semen of the

same individual. If blood grouping is to be done, blood sample would be

appropriate for the same and semen examination would not give different

result. Report dated 18.03.2014 from Medical Superintendent, AIIMS

reveals that the blood group of the appellant was O+. Apparently, the

human semen detected on X's underwear was not that of the appellant. No

reasonable explanation has been offered by the Investigating Agency as

to, to whom the said 'semen' belonged; how and when it appeared on X's

underwear. This report obtained pursuant to seeking additional evidence

negated X's version that it was only the appellant who had sexually

assaulted her that day. Scientific evidence, thus, is in conflict with ocular

testimony.

6. Besides above, there are other inherent deficiencies in the

prosecution case which lend-credence to the appellant's contention that he

was not the author of the crime. The alleged incident took place when X

had left her house to take tuition at 03.15 P.M. Indisputably, the shop

where the alleged occurrence took place was opposite to X's house. She

returned to her house at around 05.00 P.M. Nothing has been explained by

'X' as to where she was for two long hours. The incident was reported to

the police at around 08.20 P.M. vide DD No.26A (Ex.PW-11/B); the

rukka was sent at 09.10 P.M. The prosecutrix was medically examined at

11.50 P.M. None of the prosecution witnesses has given plausible

explanation for the inordinate delay in lodging the report. In her statement

(Ex.PW-1/A), 'X' did not reveal if she was threatened by a 'knife'.

However, in her Court statement, she improved her version and alleged

that 'knife' was used to put fear in her mind. PW-1 (X) deposed that on

return to her house, she narrated the incident to her mother. In the cross-

examination, she was certain that her father was not present at home that

time. PW-2 (Munaki Devi) deposed that 'X' returned at 06.30 P.M. and

her husband was not present that time. She called Sachin, her husband's

friend. Some neighbourers arrived there and police was informed. No such

neighbourer or Sachin was examined by the prosecution. PW-3 (Palak

Dhari Verma) claimed that he was present in the house when the

prosecutrix returned at 05.15 P.M. The alleged incident had taken place

inside the shop of the appellant during day time when other shops in the

vicinity were open. The appellant examined DW-1 (Harish Yadav)

running shop in the name of Pooja Paints and Hardware in the

neighbourhood. He expressed ignorance if any such incident had

happened there at that time. He came to know about the occurrence the

next day on 20.03.2001. 'X' did not raise hue and cry or alarm when she

came out of the shop. 'X' was a child witness and there was every

possibility of her putting blame upon the appellant with whom she was in

love at one stage.

7. In view of the above referred serious infirmities and

deficiencies on material points, conviction of the appellant, on the sole

testimony of the prosecutrix, cannot be sustained. Settled position is that

the testimony of the prosecutrix must be of unimpeachable, credibility and

sterling nature to base conviction without any corroboration.

8. In the light of above discussion, the appeal is allowed.

Conviction and sentence awarded by the Trial Court are set aside. Trial

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

the order be sent to the Superintendent Jail for information.

(S.P.GARG) JUDGE MARCH 23, 2015 / tr