Puran Chand Sharma vs State (Govt. Of Nct Of Delhi)
2015 Latest Caselaw 7214 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment reserved on :16.9.2015
                                     Judgment delivered on :22.09.2015

+      CRL.A. 1150/2013

       PURAN CHAND SHARMA                             ..... Appellant

                            Through       Mr.Jivesh      Kumar          Tiwari,
                                          Advocate.

                            versus

       STATE (GOVT. OF NCT OF DELHI)                  ..... Respondent

                            Through       Ms.Meenakshi Dahiya, 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 01.5.2013 and 02.5.2015 respectively wherein the

appellant had been convicted 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.20,000/- in default of payment of fine to undergo SI for 2 years.

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

undergone incarceration of 3 years and 10 months which includes the

remissions earned by him.

3 This is an unfortunate case wherein the victim before this Court is

the daughter of the appellant. The case of the prosecution which was

unfolded in the version of the prosecutrix (N) examined as PW-11 is to

the effect that on the intervening night of 11.12.2005 at about 2.00 a.m.

her father had committed rape upon her. This was at their residence

D1/549, Gali No.13A, Ashok Nagar, Delhi. On earlier occasions also he

had committed rape upon her. The complaint was lodged before the

police station on 08.6.2012. Her statement was recorded under Section

164 Cr.P.C. FIR was registered and the criminal law was set into

motion. Apart from the statement of the prosecutrix the medical report

of the concerned doctor, Dr.Nitasha Gupta (PW-2) was to the effect that

the hymen was ruptured. There was also nothing to suggest that the

appellant was not capable to perform sexual act.

4 In his statement recorded under Section 313 Cr.P.C. the appellant

had stated that this is a false case which has been set up against him at

the behest of his wife who had strained relations with him. His daughter

had deposed falsely only on the ill advise of his wife.

5 In view of the aforenoted evidence led before the Trial Judge both

oral and documentary the accused was convicted and sentenced as

aforenoted.

6 On behalf of the appellant arguments have been addressed in

detail. Learned counsel for the appellant submits that this is a clear case

of false implication and the testimony of PW-1 which is wholly

unreliable and full of contradictions and which had formed the sole basis

of the conviction of the appellant cannot be relied upon. If this evidence

is rejected there is nothing to suggest that the appellant is guilty of the

crime for which he had been convicted. It is pointed out that the MLC

of the victim (ExPW-2/A) also shows that no injury had been suffered

by her. Had it been a case of continuous rape by the appellant upon her

as is the allegation; injuries could have been noted upon her person.

Attention has been drawn to her testimony to support these arguments.

7 Needless to state that these arguments have been refuted. It is

stated that by no stretch of imagination can it be inferred that a daughter

would make such false allegations against her father and it is clearly a

true version. Her testimony was rightly relied upon by the Trial Judge

to convict the appellant.

8 Arguments have been heard. Record has been perused.

9 There is no gain saying to the proposition of law that if the sole

testimony of the victim of rape is un-blemish and wholly truthful, it is

sufficient to form the basis of the conviction of an accused.

10 The relationship between the parties has been noted. The victim

is a 16 year old girl. In her testimony she had disclosed that they are

three brothers and one sister and she had been studying in 10th class on

the date of the incident. Her father and mother had strained relationship.

In the year 2007 because of continuous quarrels her mother had gone to

her maternal uncle's house in Mainpuri, U.P. Her father was a Trantrik

and he used to molest her. On 11.5.2011 while she was sleeping with

her mother on the first floor of their house at around 2.00 a.m. her father

picked her up and brought her down-stairs and took her to his bed where

he committed sexual intercourse upon her. Her mother came downstairs

and tried to raise a protest but the accused threatened both her and her

mother. Earlier also the accused had also molested her and had

indulged in similar act. On 08.06.2011 she lodged her complaint with

the police. Her statement was recorded. This was after a month. She

has been subjected to a lengthy cross-examination.

11 In her cross-examination, she admitted that on the date of the

incident she was sleeping on the first floor where her mother and her

two brothers were also sleeping. Her grandmother was living separately

from them for the last 10 years as her father was not in good terms with

her. There was no tenant in the house at that point of time. The house

comprised of ground floor and first floor. At present there is a tenant in

the first floor but there was no tenant at the time of the incident. Her

father had slapped her on one occasion. This was for the reason that she

refused to fulfill his demand of physical relation. She admitted that in

the year 2008 her father suffered a leg injury. She denied the suggestion

that her mother and her maternal uncle attempted to throw her father

from the roof pursuant to which he sustained this injury. Vol. this injury

was because of his own fall. There is a rod implanted in his leg. She

denied the suggestion that her father cannot climb stairs. She admitted

that on the date of the incident (at 2.00 a.m.) she did not raise any

protest or alarm when her father attempted to take her away from the

room as she did not imagine her father would commit foul act with her

again. She had attempted to escape from the clutches of her father but

she remained unsuccessful. Before her mother came downstairs, she

(PW-1) had put on her clothes. She did not call the police at that point

of time. Her mother informed her maternal uncle on the following

morning. They admittedly did not lodge the complaint with the police

till 08.06.2011. She denied the suggestion that this case has been

falsely planted upon the accused only to grab his property by her mother

in connivance with her maternal uncle and it was on her maternal

uncle's request that she deposed falsely against her father. She

admitted that there was an occasion when her father intended to sell his

property and in order to protect the property certain documents were got

executed by her mother and father. She admitted that a civil suit had

been filed by her father but she is not sure as to whether injunction had

been obtained in the suit or not. She admitted that when her father

appeared in Judicial Custody her mother had a word with her father and

he agreed to part with half portion of the said property in favour of her

mother but she denied that her mother wanted the entire property to be

transferred in her name. She denied the suggestion that the whole case

had been set up in order that her mother could grab the property of her

father. She admitted that she knew one Gurmeet Singh who used to

visit her mother. She never met Gurmeet Singh personally. She did not

know about any personal meetings between Gurmeet Singh and her

mother. He was a property broker. She denied the suggestion that in

connivance with Gurmeet Singh her mother got this case registered.

12 Version of PW-1 as narrated above discloses that the incident

dated 11.5.2011 had occurred at 2.00 a.m. in the morning when she was

sleeping on the first floor with her mother and two brothers. Version of

the prosecutrix is that even on earlier occasions her father had molested

her and committed rape upon her. She did not raise alarm when her

father took her downstairs at 2.00 a.m. in the morning. This conduct of

the victim does not appear to be natural. If her father had done these

unbecoming acts on earlier occasions as well it would have been most

natural for the victim to have protested when her father came to take her

away from the first floor of the house at such an odd hour i.e. 2.00 a.m..

She could have well raised protest when her mother and her brothers

were also sleeping in the same room. It is surprising that her mother and

her both brothers did not hear any noise when her father came into their

room and tried to wake her up. The most spontaneous reaction of the

victim would have been not to go with her father as admittedly her

father on earlier occasions had also committed rape upon her. It has

come on record that these acts were committed upon the victim some

time prior to the 11.5.2011 (frequently once in a week). At that point of

time it would have been her natural reaction to raise a hue and cry but

she admittedly did not do so. She admitted that this room was on the

first floor and her father has a rod in his leg but she denied the

suggestion that he could not climb the stairs. Be that as it may, even

after the incident was over and her mother had come downstairs to the

room of her father neither of them thought it fit to report the matter to

the police. They waited up till next morning to call her maternal uncle.

The police report was lodged almost one month later i.e. 08.6.2011.

13 The submission of the learned counsel for the appellant that the

delay in lodging of the FIR is wholly unjustified does have force. It is

true that every delay in lodging of an FIR may not be fatal to the version

of the prosecution but on the basis of the facts and circumstances of the

present case (as noted supra) where the victim was being subjected to

the lustful acts of her father since the last so many months and her

mother having learnt about it on the same day but waited for almost a

month (i.e. up to 08.6.2011) to lodge a report to the police does create a

doubt in the mind of this Court that this was an improved story and

whether the incident as narrated by the victim happened or not becomes

wholly questionable.

14 In this context, the observations of the Apex Court in Rajeevan

and Anr. vs. State of Kerla 2003(3) SCC 355 are relevant and quoted

herein as under:

"13. Another doubtful factor is the delayed lodging of FIR. The learned counsel for the appellants highlights this factor. Here it is worthwhile to refer Thulika Kali v. State of Tamilnadu. 1972CriLJ 1296 wherein the delayed filing of FIR and its consequences are discussed. At Para 12 this Court says -

"...First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed the names of the actual culprits and the part played by them as well as the names of eye-witness present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after- thought. On account of delay, the report not only gets benefit of the advantage of spontaneity danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging the first information report should be satisfactorily explained."

15 The testimony of PW-1 becomes suspicious also for the reason

admitted that her mother and her father were sharing an acrimonious

relationship since 2007 and so much so that the mother of the victim

since 2007 had gone to live with her brother. However, on the fateful

day she was admittedly in the house of the appellant. It has come on

record that there was a dispute pending between them regarding the

house in question which was in the name of the appellant and a civil suit

had been filed by the appellant against his wife seeking an injunction. It

has also come on record that at the time when the appellant was in

judicial custody he had offered to transfer half of the house in favour of

the mother. There were talks between her mother and father wherein

her father agreed to transfer half share in the house in favour of her

mother. Her mother probably wanted the whole house. The possibility

that the mother of the prosecutrix driven by a feeling of revenge had

instigated her daughter to make this false complaint cannot be ruled out.

Had it been true, there is nothing which could have prevented them from

reporting the matter earlier to the police and especially when these acts

as per the prosecutrix were going on since the last so many months prior

to 11.5.2011. Even after her mother learnt about the incident on

11.5.2011 the mother and the daughter did not think it fit to report the

matter to the police. It was finally on 08.6.2011 that the complaint was

lodged with the police. There is no answer to this delay.

16 A deep scrutiny of the evidence of PW-1 persuades this Court to

hold that the testimony of PW-1 is neither cogent and nor coherent. It

casts great shadows of doubt upon her version. In the context of a false

implication by a daughter qua her parent at the behest of her mother the

Apex Court in the judgment of Radhu vs. State of Madhya Pradesh 2007

Cri LJ 4704 wherein also the daughter had leveled false allegations of

rape had noted that such charges may be rare but at the same time the

possibility of a false implication cannot be ruled out. The relevant

extract of the observations of the Apex Court in that judgment reads as

under:

"The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instance where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case." 17 No doubt it is true that each factual case rests upon its own matrix

and no one situation can be a precedent for another but as discussed

supra this Court is of the view that this is a case where the prosecutrix at

the behest of her mother had leveled these false charges against her

father. At the cost of repetition it is difficult to imagine that an adult

daughter (aged 15-16 years) who had been subjected to rape and lustful

acts of her father for the last several months did not raise any protest

when her father attempted to take her away from the room at an old hour

in the night and where her mother and her two brothers were also

sleeping in the same room. Her natural conduct would have been to raise

a protest especially when on earlier occasions also her father had

committed these undesirable acts upon her; yet she did not do so. Her

conduct appears to be colourable and un-natural.

18 This Court is of the view that the appellant is entitled to a benefit

of doubt and consequent acquittal. Appellant is accordingly acquitted.

He be released forthwith if not required in any other case.

19     Appeal disposed of in the above terms.




                                         INDERMEET KAUR, J
SEPTEMBER 22, 2015
ndn