Surender Kumar Alias Shivender vs The State Nct Of Delhi
2015 Latest Caselaw 8147 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : 15th SEPTEMBER, 2015
                           DECIDED ON : 29th October, 2015

+                          CRL.A. 650/2005

       SURENDER KUMAR ALIAS SHIVENDER                      ..... Appellant

                           Through :     Mr.Jai Singh Yadav with
                                         Mr.Vikash Yadav, Advocates along
                                         with appellant present in judicial
                                         custody.

                                versus

       THE STATE NCT OF DELHI                              ..... Respondent

                           Through :     Mr.Amit Ahlawat, APP.
                                         Mr.Deepak Kr., PS Uttam Nagar.
        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. This appeal has been preferred against the impugned

judgment dated 27.05.2005 of learned Additional Sessions Judgment in

Sessions Case No.46/02 arising out of FIR No.36/02 registered at Police

Station Uttam Nagar by which the appellant Surender Kumar @

Shivender was held guilty for committing offence under Section 376 IPC.

By an order dated 03.06.2005, he was awarded Rigorous Imprisonment

for six and a half years with fine `20,000/- under Section 376 IPC.

2. Briefly stated the prosecution case, as projected in the

charge-sheet, was that on 17.01.2002 at about 1:00 p.m. in the upper room

situated on the first floor of House No.144, Village Nawada, the appellant

committed rape upon the prosecutrix 'X' (assumed name), aged around 30

years and criminally intimidated her. First Information Report was lodged

after recording victim's statement (Ex.PW-1/A). 'X' was medically

examined. The accused was arrested; exhibits collected during

investigation were sent for examination to Forensic Science Laboratory.

Statements of the witnesses conversant with facts were recorded. Upon

completion of investigation, a charge-sheet was filed against the appellant

in the Court. The prosecution examined nine witnesses to establish its

case. In 313 statement, the appellant pleaded false implication and denied

his involvement in the crime. The trial resulted in his conviction as

aforesaid under Section 376 IPC. It is relevant to note that the petitioner

was acquitted of charge under charge 506 IPC and the State did not

challenge it.

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

examined the file. Appellant's conviction is solely based upon the

testimony of the prosecutrix 'X'. Her statement has not corroborated from

any other independent source. Settled position is that conviction can be

based on sole testimony of the prosecutrix provided it lends assurance of

her testimony. However, in case the court has reasons not to accept the

version of the prosecutrix on its face value, it may look for corroboration.

In case, the evidence is read in its totality and the story projected by the

prosecutrix is found to be improbable, the prosecutrix case becomes liable

to be rejected.

4. In the instant case, nothing has surfaced as to at what time

exactly, the prosecutrix was sexually assaulted. Police machinery was set

in motion when information was conveyed about the commission of rape

and quarrel recorded vide Daily Dairy (DD) No.40-B (Ex.PW-7/A) at

06.10 p.m. on 17.01.2002. In her complaint (Ex.PW-1/A), the victim

disclosed that she had gone to the appellant's house at around 1:00 p.m. to

play with his daughters. After some time, when the girls were busy in

their work, the appellant called her in the upper room of the house. She

was pushed on the cot and threatened of dire consequences. The accused

committed rape upon her as a result of which she became unconscious. On

regaining consciousness, she returned to her house wearing her clothes

and narrated the occurrence to her sister-in-law (Meena).

5. In her Court statement as PW-1 'X' made vital improvements

and stated that she had gone to appellant's house at around 10:00 a.m. to

play with the girls. When she reached there, the accused asked other

children to go out and pulled her inside the room. She again stated that

the accused called her in a room on the upper portion of the house. When

she went there, the accused bolted it from inside and made her lie on the

cot. She could not resist as she was handicap; her left arm and leg were

thin and weak. She got frightened and could not make noise. The

accused, thereafter, committed rape upon her. After the rape incident, she

went to her house and narrated her ordeal to her Bhabhi Meena. In the

cross-examination, she was unable to remember the exact date of

occurrence. She disclosed that five children were playing in the

appellant's house that time. She denied that she on her own had gone to

the appellant's room. She admitted that no threats were extended by the

accused at the time of occurrence and she did not raise alarm. It was noon

time (at about 12:00 o' clock) when the occurrence took place. She was

kept in the room for about an hour. She denied that she was a consenting

party. She further disclosed that after reaching her house at around 1:00

p.m., she narrated the incident to her bhabhi.

6. On scrutinizing the testimony of the prosecutrix in its

entirety, it reveals that she was unable to state the exact time when she

went to the appellant's house. She has given contradictory version about

her going to the appellant's house at around 10:00 a.m. though in the FIR

time mentioned is 1:00 p.m. Admitted position is that the prosecutrix was

aged around 30 years. She had voluntarily and willingly gone to the

appellant's house in the absence of her sister-in-law Meena. The accused

lived in the back side of the house of the prosecutrix and both were

acquainted with each other. It appears that the prosecutrix has not

divulged true reason to go to the appellant's house when he was alone at

noon time. She did not give names of the 'girls' with whom she had gone

to play. It is amazing that a girl aged around 30 years would go to the

appellant's house only to play with 'girls'. No such 'girl' has been

examined during investigation. There was no occasion for the prosecutrix

to go upstairs when she had come to know that the appellant was alone

and had directed the other children to go outside. At no stage, she raised

alarm or protest. Even after the rape incident, she silently came to her

house after wearing her clothes. On the way, she did not protest and

complain about the appellant's conduct. There is no indication if any

resistance was offered by the proseuctrix at the time of commission of

rape. True, the prosecutrix was handicap but she was capable to raise

alarm. Appellant's acquittal under Section 506 IPC reveals that the

prosecutrix was under no fear or threat. She remained in the appellant's

company for sufficient period when her sister-in-law had gone to her

place of work and the children were away to school. The children who

were expected to arrive at 1:30 p.m. were not informed about the incident.

Possibility of the prosecutrix to be a consenting party cannot be ruled out.

7. PW-2 (Meena), 'X's sister-in-law, was away at her work

place at the time of alleged commission of rape. She informed that at

about 2:00 p.m. when she returned from her place of work, she found 'X'

crying. On enquiry, 'X' disclosed that the appellant had sexually assaulted

her. She, thereafter, called elder members of the family and discussed

with them to report the incident to the police. In the cross-examination,

she disclosed that she had three children, two sons and one daughter and

her elder son was aged around 13 years. Her children had returned from

school at around 1:30 p.m. She discussed the matter with her husband's

'chachi' who informed the police. She further revealed that before the

arrival of the police at her house, they had already locked the accused to

prevent his escape. He was locked by the individuals from the locality.

She further revealed that the accused had consumed liquor that day.

8. The witness was conspicuously silent to inform if 'X' had

gone at the appellant's house to play with children. She also did not

reveal the name of any such child who was present at the appellant's

house and with whom the prosecutrix was friendly to play. Age and other

description of the children present at the appellant's house have not come

on record. As per prosecutrix, she returned to her home at around 1:00

p.m. She did not state if her sister-in-law had inquired about the incident

and had found her crying. Relatives to whom the witness had informed

about the incident have not been examined. The elder son of the witness,

aged around 13 years, was also not examined to disclose if the prosecutrix

had informed about the incident to him. The individuals who had

allegedly locked the appellant in the room to prevent his escape were not

examined or produced.

9. Soon after the occurrence, the prosecurtrix was medically

examined vide MLC (Ex.PW-4/A) on 17.01.2002 at around 10:00 p.m.

As per MLC proved by Dr.Aruna Singh (PW-4), no fresh external injuries

were noticed on her body. Medical evidence did not corroborate 'X's

version that she was forcibly raped as there were no injuries/struggle

marks on her body. As per FSL report (Ex.PW-9/C), human semen was

detected on Ex.1a and 1b (Two microslides having thin whitish smear).

However, nothing has come on record that it was that of the appellant.

10. Delay in lodging the FIR has not been explained. The matter

was discussed with the elders and only at 6:10 p.m., information was

conveyed to the police about the commission of rape and quarrel vide DD

No.40B (Ex.PW-7/A). Again 'X' was medically examined at about 10:00

p.m. PW-9 (Ajay Kumar Singh), the Investigating Officer, did not

corroborate PW-2's version that the accused was arrested from the room

where he was already locked.

11. Considering the basic infirmities in the statement of the

proseuctrix, it would not be safe to base conviction on her sole testimony

without independent corroboration. The appellant deserves benefit of

doubt.

12. The appeal is allowed. Sentence and conviction of the

appellant are set aside. The appellant be released forthwith if not required

to be detained in any other case.

13. Trial Court record be sent forthwith along with the copy of

the order. Copy of the order be also sent to the Superintendent Jail for

information.

(S.P.GARG) JUDGE OCTOBER 29, 2015/sa