Arvind vs State (Gnct Of Delhi)
2016 Latest Caselaw 1335 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                            RESERVED ON : 4th FEBRUARY, 2016
                             DECIDED ON : 19th FEBRUARY, 2016

+                        CRL.A.634/2013
      ARVIND                                            ..... Appellant
                         Through :    Mr.Sitab Ali Chaudhary, Advocate.

                         versus

      STATE (GNCT OF DELHI)                           ..... Respondent
                    Through :         Mr.Vinod Diwakar, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Present appeal has been filed by the appellant - Arvind to

challenge the legality and correctness of a judgment dated 22.12.2012 of

learned Addl. Sessions Judge in Sessions Case No.19/2011 arising out of

FIR No.89/2011 PS Gazipur by which he was convicted for committing

offence under Section 376 IPC. By an order dated 22.12.2012, he was

sentenced to undergo RI for seven years with fine `10,000/-.

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

sheet was that on 20.03.2011 at about 01.00 a.m. at House No.51, Gazipur

village, Gali No.6, Delhi, the appellant committed rape upon the

prosecutrix 'X' (changed name), aged 55 years, against her will. The

incident was reported to the police on 20.03.2011 and Daily Diary (DD)

No.18A (Ex.PW-11/A) came into existence at the Police Control Room in

the early morning. After assignment of investigation, ASI Shankar Lal and

SI Harpal went to the spot. After recording victim's statement (Ex.PW-

7/A), Investigating Officer lodged First Information Report. Victim was

medically examined. Statements of the witnesses conversant with the facts

were recorded. Documents collected during investigation were sent to

Forensic Science Laboratory for examination. The accused was arrested

and medically examined. Upon completion of investigation, a charge-

sheet under Section 376 IPC was filed against the appellant in the Court.

To substantiate its case, the prosecution produced 12 witnesses and relied

on various documents. In 313 Cr.P.C. statement, the accused pleaded false

implication due to a quarrel that had taken place with the victim's son.

The trial resulted in conviction as mentioned previously. 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 occurrence took place on the night intervening

19/20.03.2011 at around 01.00 a.m. The incident was reported to the

police promptly on 20.03.2011 at around 09.00 a.m. vide Daily Diary

(DD) No.18A (Ex.PW-11/A). Initially, it was informed to the police that

a 'quarrel' had taken place with a 'lady'. When the Investigating Officer

arrived at the spot and reported back the occurrence, it was reported that

the two individuals Arvind and Raees, victim's neighbours had committed

rape upon her.

4. In her initial version (Ex.PW-7/A), the victim gave vivid

account of the incident and implicated the appellant by name for

committing rape upon her. In her Court statement as PW-7, identifying the

appellant to be the perpetrator of the crime, she deposed that when she

was sleeping on the night intervening 19/20.03.2011 near stairs outside

the tenanted room of her sons, the accused Arvind, who lived in the said

premises as tenant came and forcibly took her after gagging her mouth.

She resisted and attempted to escape from his clutches. The accused

forcibly committed sexual intercourse "Mere sath balatkar kiya". Due to

the fear from the accused and for the sake of her reputation, she

maintained silence and did not inform her sons during that night. It was

only when she felt pain, developed fever and became unconscious in the

morning, she apprised her son Krishan Singh about the incident. Krishan

Singh called the accused Arvind immediately and a quarrel took place

between the two. The police arrived at the spot and recorded her statement

(Ex.PW-7/A). She had handed over her Petticot (Ex.P1) seized by the

police vide seizure memo (Ex.PW-6/C). In the cross-examination, she

elaborated that due to paucity of tenanted accommodation consisting of

one room only, she used to sleep in the stairs. She denied that the accused

was falsely implicated as a quarrel had taken place about fifteen days prior

to the incident with her son.

5. On scanning the testimony of the aged lady in its entirety, it

reveals that despite searching cross-examination, no infirmity could be

elicited to disbelieve or suspect her version. 'X' who hailed from a village

Begum Sarai Dhava District, Nalanda, Bihar used to visit Delhi

occasionally to see her sons at village Gazipur. The accused lived in the

said premises on a rented accommodation and there was no familiarity

between the two. The victim was aged around 55 years and was mother of

two adult children. In the absence of prior animosity or ill-will, she was

not expected to falsely implicate the accused for the heinous crime. Due to

fear and shame, she was even unable to disclose the incident to her sons

soon after the occurrence. Only when she became unconscious due to pain

and fever, the incident was disclosed by her. Statement of the prosecutrix

is consistent throughout. No suggestions were put to her in the cross-

examination if the accused was not present at the spot at the time of

occurrence. The victim had no oblique motive to make a false statement

against the appellant. Accused did not produce any cogent and worthwhile

evidence on record to show if any quarrel had taken place between him

and the prosecutrix or her sons any time. He also did not elaborate as to on

what account the quarrel had taken place. No report about the said alleged

quarrel was made to the police. Moreover, for a petty quarrel (if any)

between the appellant and victim's son, the victim is not expected to level

so serious allegations to put her honour at stake. She was not going to be

benefitted by implicating the appellant aged around 24 years who was like

her 'son'.

6. X's statement has been corroborated by PW-6 (Krishan

Singh), her son in all particulars. In his testimony, he informed that her

mother used to remain alone during night in the house as he and his

brother Bhim Singh used to go at their places of work. On 20.03.2011

when he returned back to home from his duty, 'X' told her that when she

was sleeping in the night at around 01.00 a.m. the accused Arvind had

committed rape upon her. In the cross-examination, he explained that due

to shortage of accommodation, her mother used to sleep in stairs; she also

used to feel hot inside the room. The police machinery was set in motion

by him by making call from his mobile No.9654643924. Material facts

deposed by the witness remained unchallenged and uncontroverted in the

cross-examination.

7. The prosecutrix was medically examined vide MLC (Ex.PW-

9/A) on 20.03.2011 at around 02.00 p.m. Alleged history mentioned

therein specifically records 'sexual assault on 20.03.2011 at around 01.00

a.m. by a neighbour'. Multiple small abrasions over external vaginal

orifice were noticed on her body. FSL reports dated 23.12.2011 on record

lend credence to her version. As per FSL reports, human semen was

detected on exhibits '1b' (body fluid collection), '1j1' (vaginal secretion),

'1j2' (vaginal secretion), '1j3' (vaginal secretion), '1k' (cervical mucus

collection), '1l' (culture), '1m' (washing from vagina), '2' (one dirty

petticoat) & '5' (one dirty underwear).

8. The accused did not furnish plausible explanation to the

incriminating circumstances appearing against him in 313 Cr.P.C.

statement. Contradictions and improvements as pointed out by the

appellant's counsel are trivial in nature and do not affect the core of the

prosecution case. The defence in fact, was one of complete denial of the

prosecution allegations. It is no gains-saying that the evidence of a victim

of sexual assault stands almost on par with the evidence of an injured

witness and to an extent is even more reliable. The evidence of a victim of

sexual offence is entitled to great weight, absence of corroboration

notwithstanding. It must not be over-looked that a woman or a girl

subjected to sexual assault is not an accomplice to the crime, but is a

victim of another person's lust.

9. The Trial Court has dealt with all the aspects minutely and

the judgment premised on fair appreciation of the evidence warrants no

intervention; the conviction is upheld. No sufficient and adequate reasons

exist to modify the Sentence Order as minimum sentence of seven years

prescribed under Section 376 IPC has been awarded by the Trial Court to

the appellant. Moreover, the victim in this case was akin to appellant's

mother.

10. The appeal lacks merit and is dismissed. Trial Court record

be sent back forthwith with the copy of the order. A copy of the order be

sent to the Superintendent Jail for information.

                                                   (S.P.GARG)
                                                     JUDGE
FEBRUARY          19, 2016 / tr