Delhi High Court

Vishamber vs State on 28 May, 2015

Author: S. P. Garg

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : MAY 07, 2015
                              DECIDED ON : MAY 28, 2015

+             CRL.A. 1230/2011 & Crl.M.B. No. 3051//2015
       VISHAMBER                                       ..... Appellant
                         Through: Mr. M.L. Yadav, Advocate.
                         versus
       STATE                                           ..... Respondent
                         Through: Ms. Kusum Dhalla, APP for State.
        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 15.04.2011 of learned

Additional Sessions Judge in Sessions Case No.123/10 emanating from

FIR No.390/08 registered at Police Station Sangam Vihar by which the

appellant Vishamber Singh was held guilty under Sections 354/376/506

IPC, the instant appeal has been preferred by him. By an order dated

20.04.2011, the appellant was awarded RI for ten years with fine

`25,000/- under Section 376 IPC; RI for two years under Section 506 IPC;

and, RI for one year under Section 354 IPC. The sentences were to

operate concurrently.

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

sheet was that the appellant, father of the prosecutrix „X‟ (assumed name),

aged 22 years sexually assaulted her after putting her in fear. „X‟ lodged

complaint (Ex.PW-1/A) on 21.07.2008 and gave detailed account as to

how and under what circumstances, the appellant outraged her modesty

and subsequently committed rape upon her. „X‟ was medically examined.

Statements of witnesses conversant with facts were recorded. The

accused was arrested and taken for medical examination. After completion

of investigation, a charge-sheet was filed against him for the commission

of aforesaid offences in the court. The prosecution examined 13 witnesses

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

involvement and claimed false implication. The appellant examined his

son Vishal as DW-1 in defence. The trial resulted in 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. The prosecutrix, in the instant case, is the daughter of

the appellant. In her statement (Ex.PW1/A) given to the police, she gave

vivid description of the incident and specifically named the appellant for

committing rape upon her. In her Court statement, she proved the police

version without major variation. She testified that the accused used to

outrage her modesty since the time she was studying in class VIII. The

accused used to touch her private parts, put off her clothes and used to

force her to have physical relations with her. She brought the incident to

the notice of her maternal grandmother-Kusum Devi (PW-2). She in turn

conveyed it to her mother-Smt.Shashi Devi. However, there was no

change in the behaviour of the accused and he continued to act in the same

manner. She gave specific instances when on 20.04.2008 and 01.07.2008

the accused established physical relations with her against her wishes.

The accused used to threaten to kill her and her brother/sisters. She

informed that on 21.07.2008 she went to police station and lodged

complaint (Ex.PW-1/A). In the cross-examination, she elaborated that

earlier she used to stay at the residence of her maternal grand mother who

lived nearby. She studied in a private school upto Vth standard while

staying there. She admitted that her father had purchased three RTVs and

one blue-line bus. She expressed her ignorance as to who was

managing/controlling the said RTVs/bus. She admitted that her younger

sister Pooja had left the house after the appellant‟s arrest and she was not

aware about her whereabouts. She declined that the appellant was falsely

implicated to grab his property. She denied to have any acquaintance with

Karan and Sidhartha.

4. „X‟ has attributed specific role to the accused in committing

crime. Despite searching cross-examination, no material infirmities could

be extracted to disbelieve her statement. She had no strong reasons to

falsely implicate her own father who was a source of support/income to

her and her siblings particularly after her mother committed suicide in

2008. The accused has given different conflicting reasons for his false

implication. Undoubtedly, „X‟ and Karan used to meet each other and had

intimacy. PW-2 (Kusum Devi) admitted in the cross-examination that „X‟

was married to Karan in November 2009 and she is living at Palwal,

Haryana. She clarified that it was an arranged marriage and the expenses

were incurred by them. She also admitted that some expenses were

incurred from the sale of plot in the name of „X‟. DW-1, „X‟s brother also

disclosed that Karan used to frequently visit „X‟ in the absence of his

father. The appellant did not like the said relationship and one day when

„X‟ did not come back to the house over night, he found a mobile in „X‟s

possession and scolded her. She left the home without informing anyone

and lodged the report. He also disclosed that in November, 2009, during

the pendency of the case „X‟ married Karan. This circumstance of

having affair with Karan cannot be a reason to falsely implicate the

accused. The prosecutrix had attained the age of majority and there was

no hitch for her to marry Karan with her free consent. Nothing has come

on record to show that before marriage „X‟ was seen in objectionable

relationship with Karan in the house to the disliking of the appellant. No

complaint was ever lodged against Karan. Moreover, the said love affairs

ripened into an arranged marriage subsequently. There is no substance

that the other reason for false implication was to grab appellant‟s property.

No evidence has surfaced to infer if „X‟ or her family members ever

disposed of any property belonging to the appellant to cause wrongful loss

to him. Apparently, „X‟ and other siblings were entitled to the property

belonging to the appellant even without his implication and they were

enjoying it before the lodging of the report. It has come on record that

income from appellant‟s RTVs/bus is being enjoyed by his family

members. Nothing has come on record if maternal grand

father/mother/brothers ever enjoyed any benefit from the appellant‟s

property. PW-2 (Kusum Devi) disclosed that after appellant‟s arrest they

were taking care of the children and used to pay their expenses. She fairly

admitted that gold ornaments of „X‟s mother were lying with them in safe

custody. She volunteered to add that whenever asked, she would produce

the jewellery "Ladki ka dhan hai usko sambhal ke rakha hai". She also

corroborated „X‟s version about outraging her modesty and sexual assault.

Since „X‟ had stayed for sufficient period at her residence, she reposed

trust in her and took her into confidence while reporting the conduct and

attitude of the appellant after the commission of crime. No ulterior

motive was assigned to PW-2 for falsely implicating the appellant. PW-13

(Pooja), appellant‟s other daughter, aged around 19 years stepped into the

witness box and corroborated „X‟s version in its entirety. She also

pointed out an accusing finger against her father in outraging „X‟s

modesty and to have physical relations with her. She went to disclose that

once her father had attempted to outrage her modesty (chati pe hath rakha

tha), she warned her father that he should not understand her „X‟ who

would not protest. After that the appellant never attempted to repeat the

act. She admitted that on 05.08.2008 she left the house. She reasoned

that Vishal, her brother, had created a bad atmosphere in the house and he

used to bring his friends which forced her to leave the house.

5. „X‟s mother committed suicide by pouring kerosene oil on

her in 2008. Suggestion was put to PW-1 in the cross-examination that

appellant had visiting terms with one lady from Garhwal which was not

liked by her and her maternal grandmother. She denied that due to illicit

relations of her father with the said lady, she and her grandmother falsely

implicated him in this case. No cogent evidence had come on record if

the appellant had illicit relations with any lady from Garhwal. The said

lady has not been examined in defence. DW-1 (Vishal) though supported

the appellant did not utter a word if the said lady had stayed in their house

and both appellant and she had illicit relationship to the disliking of „X‟

and other family members. It rather has reflection on appellant‟s character

when he allegedly established illicit relation with that lady after the death

of his wife. Apparently, her grown up children were not expected to like

that relationship. „X‟ had instituted civil proceedings against the appellant

and she was awarded `5,00,000/- as compensation. Nominal roll dated

29.01.2015 reveals that CA No.129/2010 filed by the appellant against a

judgment dated 17.01.2009 of learned Metropolitan Magistrate in case

titled „X‟ vs.Vishamber Singh in which the court had ordered to pay

`5,00,000/- as lump sum compensation and `10,000/- p.m. till her

marriage was dismissed by order dated 14.02.2014. It shows that „X‟ had

resorted to legal means to assert her claim. No sound reasons exist to

infer that false allegations of rape levelled by „X‟ to extract money from

her own father. The Trial Court has discussed in detail various judgments

whereby conviction can be based upon the sole uncorroborated testimony

of the prosecutrix. In the case of State of Punjab vs.Gurmit Singh [1996

Cri LJ 1728], Supreme Court pointed out at SCC P.403:-

"Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."

6. Since the perpetrator of the crime is „X‟s father, delay in

lodging the report is not fatal. Minor contradictions, inconsistencies and

improvements pointed out by the learned counsel in the testimony of the

prosecution witnesses are inconsequential as they do not affect the core of

the prosecution case. The impugned judgment based upon fair appraisal

of the evidence requires no intervention on conviction.

7. The appellant was sentenced to undergo RI for ten years with

fine `25,000/- and default sentence for non-payment of fine is six months.

He has already undergone six years, six months and six days incarceration

besides remission for eleven months and six days as on 27.01.2015. Since

the victim is appellant‟s own daughter, the sentence awarded cannot be

termed excessive. Sentence order requires modification to the extent that