Delhi High Court

Aditya @ Vicky vs State on 17 September, 2015

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                       Date of Judgment: 17.9.2015

+      CRL.A. 1272/2012
       ADITYA @ VICKY                               ..... Appellant
                            Through   Mr. B.S.Mathur and Mr.Rajat
                                      Mathur, Advocates.
                            versus

       STATE                                  ..... Respondent
                            Through   Ms.Meenkashi Dahiya, APP.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 This appeal is directed against the impugned judgment and order

on sentence dated 13.9.2012 and 24.9.2012 respectively wherein the

appellant had been convicted under Section 376 of the IPC read with

Section 506 of the IPC. For his conviction under Section 376 of the IPC

he had been sentenced to undergo RI for a period of 10 years and to pay

a fine of Rs.50,000/- which was to be paid to the victim as compensation

in default of payment of fine to undergo SI for 6 months. For his

conviction under Section 509 of the IPC he had been sentenced to

undergo RI for a period of 2 years and to pay a fine of Rs.2000/- in

default of payment of fine to undergo SI for period of 15 days. Both the

sentences were to run concurrently and benefit of Section 428 of the

Cr.P.C. had also been granted to the appellant.

2 Nominal roll of the appellant reflects that as on date he has

undergone incarceration of 3 years.

3 The version of the prosecution was unfolded in the testimony of

prosecutrix who has been examined as PW-8. She was admittedly a

minor as on the date of the offence. She was aged 14 years and 9

months. The fact that she was a minor has not been disputed. Her

version is that on 20.10.2011 at about 1.30 p.m. when she was returning

home from her school the appellant who was known to her had taken her

inside a factory where 2-3 other persons were also present. Those boys

were sent out of the factory. The appellant locked the door of the

factory and committed rape upon her. She was threatened not to

disclose the incident to anyone or he would electrocute her. Apart from

the statement of PW-1 her paternal aunt (Chachi) was examined. She

entered into the witness box as PW-6. The statement of the victim

under Section 164 Cr.P.C. was recorded. She was medically examined

vide MLC Ex.PW-7/A. Learned counsel for the appellant submits that

no external injury has been noted upon her person. This clearly show

that no forceful act of rape was committed upon her as is her

submission. The site plan has been proved as Ex. PW-13/B. Attention

has been drawn to point A where the alleged offence has been

committed. It is pointed out that this is a busy junction and if the

offence was committed in the afternoon at 1.30 p.m. it is impossible to

believe that when prosecutrix had raised alarm no one came to save her.

The version is concocted. Additional argument of the learned counsel

for the appellant is that there is no explanation for the inordinate delay

in lodging the FIR which was lodged after almost 12 hours of the

incident.

4 Needless to state that these arguments have been refuted.

5 The version of the prosecution was hinged on the testimony of 14

witnesses of the prosecution. As already noted supra the star witness of

the prosecution is the prosecutrix (PW-8). There is also no gain saying

to the settled proposition of law that if the testimony of the prosecutrix

is cogent and coherent it can alone be the basis of conviction. Tested on

this anvil the version of PW-8 qualifies the test. She had corroborated

her statement made under Section 164 Cr.P.C. qua the statement made

by her on oath in Court. She had deposed that on 20.10.2011 the

appellant who was known to her had committed rape upon her by

pulling her inside the factory and this was at about 1.30 p.m. when she

was returning home from her school. She screamed and tried to save

herself but nobody was there. This act was committed in a room on

ground floor of the factory. At that time 2-3 boys were also there. They

were asked to leave the premises. She had described the incident in

detail. The police was informed by her cousin i.e. the son of her Tau. In

her lengthy cross-examination she admitted that her father was an

alcoholic. She admitted that the appellant was known to her. He used

to come to their shop to buy cigarettes on credit. She used to speak to

the appellant. She denied the suggestion that even on the fateful day she

had rang up the appellant asking him to pay his credit balance. She also

denied the suggestion that because of a fight between her grandmother

and the appellant the appellant had been falsely implicated by her.

6 Version of PW-6 (Chachi of the victim) is also relevant. She had

deposed that on the fateful day the victim had told her that she had a

quarrel with the appellant. She informed her Jeth only in the evening

about the incident. This witness was declared hostile. She admitted that

she had no good relationship with the family of the victim. There is a

partition wall between her house and the house of the victim.

7 The delay in the lodging of the FIR is explained in the testimony

of PW-6 and though the victim had related the incident to her Chachi on

the same day (in the afternoon) who had a strained relation with the

family of the victim did not take care of the incident. She informed her

jeth about the incident in the evening. First PCR call was received by

PW-11 in the PCR at 23.16 p.m. which had been recorded in Ex.PW-

11/A. This information was conveyed to the local police station

pursuant to which the FIR had been registered on 21.10.2011 at about

3.45 -4.00 a.m. The delay in lodging of the FIR is wholly explained in

view of these testimonies.

8 The factory owner i.e. the place where the offence was committed

was also examined. He was examined as PW-14. He deposed that two

boys namely Ram Sewak and Shiv Shanker used to work in his factory

and used to reside in the factory premises. The appellant who was

known to them residing in the same neighbourhood had brought one girl

in the factory where untoward incident had taken place. The MLC of

the victim was conducted by Dr. Ajay Dalal (PW-7). Although

admittedly no external injury was seen upon the victim but the

gynecological examination of the victim (evident from Ex.PW-9/A) and

the version of Dr.Roma Gupta (PW-9) clearly shows that blood stains

were found over the labia majora and the hymen was found ruptured.

This evidence of blood on the private parts of the victim and her hymen

having been found torn is fully corroborative of the version of the

prosecutrix who had on oath deposed that when rape had been

committed upon her she felt pain in her private parts and there was

bleeding. The submission of the learned defense counsel that there were

no external injury visible on the victim would be nullified and the same

is an argument noted to be rejected. In 2005 (13) SCC 766 State of

Himachal Pradesh Vs. Asha Ram the Supreme Court had followed the

ratio of the judgment laid down in the case of Ranjit Hazarika v. State of

Assam, (1998) 8 SCC 635; which reads as under:

"This Court held that non-rupture of hymen or absence of injury on victim's private parts does not belie her testimony. This Court further held that the opinion of doctor that no rape was committed cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. This Court held that the evidence of the prosecutrix was amply corroborated by her mother and father whom she immediately informed about the occurrence.

9 The Investigating Officer had been examined as PW-16. The

defense of the appellant was that he has been falsely roped in because of

the fights which the appellant used to have with the dadi of the victim.

Apart from the fact that is a wholly unjustifiable explanation, even

presuming that the appellant used to have fights with the dadi of the

victim, it would be no special reason for the victim to disown herself

and put her own reputation at stake by leveling false allegations of rape

against the appellant. This argument appears to be un-understandable.

The version of PW-8 which is cogent and coherent has been fully

supported by the medical evidence. The FSL had also noted blood on

the salwar and the vaginal swab of the victim. This piece of the

scientific evidence also advances the case of the prosecution. The