Delhi High Court

Badari Mehto vs State Of Nct Of Delhi on 19 November, 2015

Author: Indermeet Kaur

$~R-101

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment reserved on : 16.11.2015
                            Judgment delivered on : 19.11.2015

+      CRL.A. 1094/2013

       BADARI MEHTO                                 ..... Appellant

                            Through    Mr.Anwesh Madhukar, Advocate.

                            versus

       STATE OF NCT OF DELHI                        ..... Respondent

                            Through    Mr.Tarang Srivastava, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

on sentence dated 05.7.2013 and 06.7.2013 respectively wherein the

appellant stood convicted under Section 376 of the IPC. He has been

sentenced to undergo RI for a period of 7 years and to pay a fine of

Rs.20,000/-,in default of payment of fine to undergo SI for 15 days.

Benefit of Section 428 of the Cr.P.C. has been granted to the appellant.

2 Nominal roll of the appellant has been requisitioned. As on date

the appellant has undergone 5 years of incarceration which includes the

remissions earned by him. His jail conduct has been satisfactory.

3 The version of the prosecution was disclosed in the statement of

the prosecutrix recorded under Section 161 Cr.P.C. which had formed

the basis of the FIR and which was to the effect that at about 4.00 p.m.

in the afternoon on 26.4.2011 while she was playing outside her house

the accused who was known to her had taken her to a poultry farm

where, in a room he had committed rape upon her. She informed her

father pursuant to which the present FIR had been registered. The

victim was medically examined and her MLC was proved as

Ex.PW-1/A. Statement of the victim was recorded under Section

164 Cr.P.C. by the learned M.M. and was proved as Ex.PW-7/A. Her

father Dinesh was examined as PW-4. The appellant was also

medically examined and his MLC Ex.PW-11/A suggested that there was

nothing which indicated that he could not have performed the sexual act.

Exhibits which were seized included the clothes of the victim as also her

blood sample and vaginal swab were sent to the FSL for examination

and the FSL has submitted its report (Ex.10/G).

4 At the outset learned Amicus Curiae on behalf of the appellant

submits that this case rests upon the sole testimony of the victim; there

are three versions recorded of the victim i.e. her statement under Section

161 Cr.P.C. which had formed the basis of the FIR; her statement under

Section 164 Cr.P.C. as also her statement on oath in Court. There are

inherent contractions in these versions. Such material contradictions

cannot be ignored; they go to the root of the matter; the witness is not

credible. It is pointed out that whereas in one version the victim had

stated that she was enticed by the appellant to go to the poultry farm

where the act had been committed whereas in her version under Section

164 Cr.P.C. she had stated that she had been dragged, forced and

coerced to go there. In her statement under Section 164 Cr.P.C. for the

first time she had introduced in her version that Rs.50/- had been given

to her by the appellant. This did not find any mention in the FIR. Her

statement that blood was oozing out from her private parts was not

supported by the medical evidence and not only her hymen was found

intact but there was also no blood detected on her private parts or upon

her clothes. The defence sought to be set up by the appellant was not

examined in the correct perspective; this was a case of false implication

as there was a money dispute between the father of the victim and the

appellant. A sum of Rs.4000/- had been owed by PW-4 (father of the

victim) to the appellant and when the appellant asked for the money this

false case has been planted upon him. There is also no explanation for

the inordinate delay in the registration of the FIR. Learned counsel for

the appellant has placed reliance upon the judgment of the Supreme

Court reported as (2011) 7 SCC 130 Krishan Kumar Malik Vs. State of

Haryana to support his submission that inconsistencies and

contradictions in the version of the prosecutrix cannot form the basis of

a conviction and such a dicey witness cannot be relied upon.

5 Needless to state that these arguments have been refuted.

6 Record shows that the witness was examined in Court as PW-3.

Her statement under Section 161 Cr.P.C. which had formed the basis of

the FIR has been perused. It was stated that at 4.00 p.m. on 26.4.2011

while she was playing outside her house, the accused who was known to

her and was their neighbour had enticed her to go to the poultry farm

where he had bolted the door from inside and committed rape upon her.

He had threatened her not to disclose the incident to any person.

Record shows that this incident was finally disclosed at 10.54 p.m. The

first DD to this effect was recorded at this time and this is clear from the

version of SI Dinesh Chandra (PW-9). He had recorded DD No.66A at

10.54 p.m. on the night of 26.4.2011 wherein the police were informed

that rape had been committed upon a girl aged 12 years by one Badari

Mehto and this information had been transmitted to them by her father.

The statement of the victim under Section 164 Cr.P.C. which was

recorded by the M.M. has also been perused. In this statement the

victim had detailed the incident in the manner in which it had occurred

describing the fact that the appellant who was known to her and their

neighbor had taken her in a room at a poultry farm where he had after

gagging her mouth committed rape upon her. He had given her Rs.50/-

and threatened her not to disclose this incident to anyone.

7 This Court notes that there is no inconsistency in the version

recorded under Section 164 Cr.P.C. qua the statement of the victim

recorded under Section 161 Cr.P.C. Although in her statement recorded

under Section 164 Cr.P.C. she has stated that the appellant had gagged

her mouth and taken her to the poultry farm and in the FIR she had

stated that she had been enticed by the accused to go to the room but this

is no material contradiction/improvement as it is a playing of words

which have been used by the prosecutrix; the meaning and intent

however being the same. The meaning and intent being that the

appellant had forcefully enticed her and taken her to a room at a poultry

farm where he had committed rape upon her. The manner in which the

rape had been committed has been described in detail both in her version

under Section 161 Cr.P.C. as also in her version under Section 164

Cr.P.C. and again reiterated on oath. The victim has stuck to her stand.

She had been subjected to a lengthy cross-examination. She had been

given a suggestion that she had falsely implicated the accused as a sum

of Rs.4000/- was owed by her father to the appellant which was the bone

of contention for this false implication. She had denied this suggestion.

She had admitted that the accused had come to their house once in a

drunken condition and he was their neighbor but had categorically stated

that this was not a case of false implication.

8 The father of the victim was examined as PW-4. He had also

disclosed the incident in the manner in which it was described to him by

his daughter. He had reported the matter to the police. He had on oath

stated that after he had come back from his work (being a rickshaw

puller) the incident had been told to him by his daughter. The accused

was co-labourer working with him. They were not on friendly terms.

Learned defence counsel suggested that it was due to the dispute of

Rs.4000/- that PW-3 has falsely implicated the appellant but this

suggestion had been categorically denied.

9 This Court notes the factum that the incident had occurred at 4.00

p.m. The first DD entry was recorded in the police station at 10.54 p.m.

This Court also notes that the victim was a 12 year old girl. She had

disclosed this incident to her father when he had returned home. Being

a rickshaw puller he might have returned at late hours; he reported the

matter to the police by calling 100 number; this was at 10.54 p.m. In

this background there appears to be no delay in lodging the FIR.

Testimony of PW-3 is also clear, cogent and consistent. On oath in

Court she stated that after the forceful incident of rape had been

committed upon her blood oozed out from her private parts; her clothes

were also seized by the doctor. These clothes had been sent for an FSL

examination and no blood has been detected on these clothes. Medical

record also suggests that the hymen of the victim was also intact and

when the forceful act was committed upon the victim blood might have

oozed out from her private parts but may not have been sufficient to

dirty her underclothes. This factum has been well noted by the trial

judge. This by itself is not sufficient to discard the testimony of the

victim.

10 PW-9 was the first person who had reached the spot. He has on

oath stated that he had gone to the poultry farm i.e. the spot of the

incident and had noted soil marks of struggle.

11 Rape, prior to the Criminal Law (Amendment) Act 2013, had

been defined as:

"375. Rape- A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following stood as under:

........................... ........................... ...........................

Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."

12 The manner in which the incident has been described by the

victim clearly falls within this unamended definition of rape. The Apex

Court has time and again reiterated that the conviction under Section

376 of the IPC can be founded on the sole testimony of a prosecutrix;

the rider being that the testimony has to be clear, cogent and

unblemished; it should be trustworthy and should wholly inspire

confidence. This Court is of the view that the testimony of PW-3 does

fall within these parameters. There was nothing which could dent her

version.

13 The Supreme Court in (2003) 8 SCC 551 Bhupinder Sharma Vs.

State of Himachal Pradesh in this context had noted as under:

"In the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non- permissive society of India would be extremely reluctant even to admit that any incident, which is likely to reflect on her chastity, had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors, the crime is brought to the light, there is inbuilt assurance that the charger is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case."

14 Although a defence has been projected by the accused that this

was a case of false implication because of a dispute of Rs.4000/-

between the father of the victim and the appellant but this Court finds it

difficult to believe that a sum of Rs.4000/- would be the cost of young

girl putting her honour at stake and this being corroborated by her father

and especially when both the daughter (PW-3) and the father (PW-4)

were consistent on all other scores. Moreover, the parties i.e. the

appellant and the victim who were admittedly neighbors and living in

the same neighbourhood and if this was a truly projected defence

nothing could have prevented the appellant to produce a neighbor in

defence to highlight this issue but no evidence has been led in defence.

15 Even on the point of sentence, the appellant has been given the