* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 18th February, 2013
DECIDED ON : 4th March, 2013
+ CRL.A. 301/2012
RAM SUNDER ....Appellant
Through : Mr.S.K.Sethi, Advocate.
versus
THE STATE (N.C.T. OF DELHI) ....Respondent
Through : Mr.M.N.Dudeja, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. The appellant- Ram Sunder impugns judgment dated
01.09.2010 and order on sentence dated 03.09.2010 in Sessions Case
No.105/2008 arising out of FIR No.201/2008 PS Aman Vihar by which he
was convicted for committing offences punishable under Sections 376/506
IPC and sentenced to undergo RI for ten years with fine ` 5,000/- under
Section 376 IPC and in default of payment of fine to further undergo SI
for five months. He was further sentenced to undergo RI for two years
with fine ` 1,000/- under Section 506 IPC and in default of payment of
fine to further undergo SI for one month. Both the sentences were directed
to operate concurrently.
CRL.A.301/2012 Page 1 of 11
2. Allegations against the accused were that on 01.04.2008 at
about 08.00 A.M., at House No.Q-75, Prem Nagar II, he committed rape
upon prosecutrix `X'(assumed name) against her will and without her
consent. He intimidated and threatened to kill her. During the course of
investigation, statement of the prosecutrix was recorded under Section 164
Cr.P.C. She was medically examined. The accused was arrested. The
exhibits were sent to Forensic Science Laboratory. Statements of the
witnesses conversant with the facts were recorded. On completion of the
investigation, a charge-sheet was submitted against the accused. He was
charged and brought to Trial. The prosecution examined eleven witnesses.
In his 313 Cr.P.C. statement, the accused pleaded innocence and stated
that due to dispute over arrears of rent, he was falsely implicated by the
prosecutrix's parents. DW-1 (Ram Anjor) and DW-2 (Satyadev Shukla)
stepped in his defence. On appreciating the evidence and considering the
rival contentions of the parties, the Trial Court by the impugned judgment,
held the appellant perpetrator of the crime and sentenced him accordingly.
Being aggrieved, he has preferred the appeal.
3. Learned counsel for the appellant urged that the Trial Court
did not appreciate the evidence in its true and proper perspective and fell
into grave error to base conviction on the sole testimony of prosecutrix
CRL.A.301/2012 Page 2 of 11
without corroboration. Inordinate delay of two months in lodging First
Information Report remained unexplained. The alibi plea of the appellant
was ignored without any valid reason. The appellant had gone at the
relevant time to see off his family members at the railway station.
Testimony of defence witnesses DW-1 and DW-2 is in consonance with
his defence. In the MLC, no injury was noticed on the prosecutrix's body.
Forensic Science Laboratory report did not establish the appellant's
involvement. Material discrepancies and contradictions in the statements
of prosecution witnesses were not considered by the Trial Court. The
prosecution witnesses gave divergent version as to the time, place and
manner of arrest of the appellant. The prosecutrix's version is inconsistent
with her 164 Cr.P.C. statement. In the alternative, counsel pleaded for
lenient view as the appellant has already suffered incarceration for more
than five years. Learned APP urged that `X' is a child victim and there is
no good reason to discard her cogent and reliable testimony. She had no
ulterior motive to falsely implicate the accused.
4. I have considered the submissions of the parties and have
examined the record. The police machinery came into motion when `X'
lodged statement (Ex.PW-1/A) on 17.06.2008 and informed that on
01.04.2008 when she was alone in the house, the accused committed rape
CRL.A.301/2012 Page 3 of 11
upon her, against her wishes and threatened to kill if she disclosed the
incident. She did not inform anyone due to fear. When the accused again
came on 17.06.2008 at her house, she cried on seeing him. When her
mother enquired as to why she had cried, she narrated the incident to her.
The accused was apprehended by the public and was beaten. Apparently,
in Ex.PW-1/A, `X' gave vivid details as to how and under what
circumstances, the accused committed rape upon her when she was alone
in the house and her parents had gone to deliver invitation cards for the
marriage of her brother. She also offered reasons for delay in lodging the
report as she was under threat. Her statement under Section 164 Cr.P.C.
was recorded on 26.06.2008. Learned Metropolitan Magistrate put
number of questions to her to ascertain if she was able to give rationale
answers to the questions. The Metropolitan Magistrate was satisfied that
`X' was a competent witness and understood the questions put to her and
was able to give rationale answers. She in her 164 Cr.P.C. statement
named the accused to be the perpetrator of the crime and disclosed that on
01.04.2008 when she was alone, the accused who was the tenant on the
first floor committed rape upon her at 08.00 A.M. In her statement as PW-
1 in the Court, she proved the version given by her to the police and the
Metropolitan Magistrate without any variation. She deposed that on
CRL.A.301/2012 Page 4 of 11
01.04.2008, she was studying in 5th class in Raj Laxmi Convent School,
Nangloi, Delhi. She was alone in the house as her parents had gone to
deliver marriage invitation cards. At about 08.00 A.M., the accused
entered in her room and tied dupatta on her mouth. He forcibly removed
her clothes. The accused was wearing underwear and baniyan at that time.
He removed his underwear and raped her. Thereafter, he threatened to kill
her if she disclosed the incident to anyone. Due to threat of the accused,
she did not disclose the incidence to her parents. After the incident, the
accused vacated the rented room and started residing somewhere else.
After about two months, when he again came to her house, she cried on
seeing her. When her mother enquired as to why she had cried, she
narrated the incident of rape to her. The accused attempted to flee the spot
but was apprehended. She with her mother went to the police post, where
her statement (Ex.PW-1/A) was recorded. In the cross-examination, she
admitted that the accused lived in the rented room with his family. She
reiterated that she was alone in the house during the night prior to the
occurrence. She informed her mother same day in the evening. She denied
that on the day of incident, the accused had gone to see off his family
members at the railway station.
CRL.A.301/2012 Page 5 of 11
5. On scrutinizing the testimony of the prosecutrix, it reveals
that no material discrepancies have emerged to disbelieve her version. The
accused did not attribute ulterior motive to the child witness to falsely
implicate him in the incident. The accused lived as a tenant, on the first
floor, was aware that the prosecutrix was alone in the house and her
family members were away to deliver invitation cards. He exploited the
situation and established physical relation with the prosecutrix. There are
no good reasons to disbelieve the prosecutrix. Her statement is in
consonance with medical evidence. MLC (Ex.PW-6/A) was prepared by
Dr.Lakhvinder Kaur who referred her for gynae opinion. It records the
alleged history of sexual assault. She admitted that no fresh external visual
injury was noticed on her body. PW-8 (Dr.Renu Manchanda) deposed that
as per MLC (Ex.PW-6/A), hymen was found torn. There was evidence of
candidial infection. There is thus no conflict between ocular and medical
evidence.
6. PW-7 (Harpal Singh), Principal, Raj Laxmi Convent School,
Nangloi, appeared and deposed that in 2008, `X' was studying in class 6th
and her recorded date of birth was 02.07.1996 vide certificate Ex.PW-
7/A. It reveals that the prosecutrix was below sixteen years on the day of
CRL.A.301/2012 Page 6 of 11
incident. Even if there was consent of the prosecutrix to have physical
relation with the accused it was of no consequence.
7. PW-3 (Chaman Devi), X's mother testified the circumstances
in which the accused was apprehended and given beatings. PW-10
(Dr.Sameer Pandit) medically examined the accused vide MLC (Ex.PW-
10/A) and noticed that there were multiple linear bruises on chest and
back. It corroborated PW-3's versions that after the accused were
apprehended, he was beaten.
8. The discrepancies and contradictions highlighted by the
counsel for the appellant are not glaring to discredit the cogent and
reliable testimony of the prosecutrix. It is true that there was delay of two
months in lodging the First Information Report with the police. However,
the delay has been duly explained. The prosecutrix was unable to disclose
the incident to her parents due to fear. She kept mum for two months.
When the accused attempted to approach her again, she become afraid and
cried. This prompted her mother to enquire as to why she had cried and
she revealed the truth.
9. In `Satpal Singh Vs.State of Haryana', 2011 (2) ACR1387
(SC), the Supreme Court held as under :
CRL.A.301/2012 Page 7 of 11
"In a rape case the prosecutrix remains worried about
her future. She remains in traumatic state of mind. The
family of the victim generally shows reluctance to go to
the police station because of society's attitude towards
such a woman. It casts doubts and shame upon her rather
than comfort and sympathise with her. Family remains
concern about its honour and reputation of the
prosecutrix. After only having a cool thought it is possible
for the family to lodge a complaint in sexual offences."
XXX XXX XXX XXX
"So far as the delay in lodging the FIR is concerned, the
delay in a case of sexual assault, cannot be equated with
the case involving other offences. There are several
factors which weigh in the mind of the prosecutrix and
her family members before coming to the police station to
lodge a complaint. In a tradition bound society prevalent
in India, more particularly, rural areas, it would be quite
unsafe to throw out the prosecution case merely on the
ground that there is some delay in lodging the FIR."
10. The defence put by the accused deserves outright rejection.
He did not elaborate as to on what account, there was dispute with X's
parents. He did not produce any rent receipt. He did not elaborate the
months for which he had not paid the rent. The premises were vacated by
the accused before his arrest. Moreover, for a trivial dispute the parents of
the prosecutrix would not level serious allegations of rape with their own
daughter to malign her.
CRL.A.301/2012 Page 8 of 11
11. Statement of the prosecutrix needs no corroboration. No
ulterior motive was assigned to the witness to make false statement. The
Court has no reasons to discard the innocent version given by the child
victim.
12. In the case of `Wahid Khan vs. State of Madhya Pradesh',
(2010) 2 SCC 9, the Supreme Court held :
"It is also a matter of common law that in Indian society
any girl or woman would not make such allegations
against a person as she is fully aware of the
repercussions flowing therefrom. If she is found to be
false, she would be looked by the society with contempt
throughout her life. For an unmarried girl, it will be
difficult to find a suitable groom. Therefore, unless an
offence has really been committed, a girl or a woman
would be extremely reluctant even to admit that any such
incident had taken place which is likely to reflect on her
chastity. She would also be conscious of the danger of
being ostracized by the society. It would indeed be
difficult for her to survive in Indian society which is, of
course, not as forward looking as the western countries
are."
13. Again in `Bhupinder Sharma Vs.State of Himachal Pradesh',
AIR 2003 SC 4684, the Supreme Court observed :
"To insist on corroboration except in the rarest of rare
cases is to equate one who is a victim of the lust of
another with an accomplice to a crime and thereby insult
CRL.A.301/2012 Page 9 of 11
womanhood. It would be adding insult to injury to tell a
woman that her chain of rape will not be believed unless
it is corroborated in material particulars as in the case of
an accomplice to a crime. ( See State of Maharashtra v.
Chandra Prakash, 1990 ACR 212 (SC) : AIR 1990 SC
658) Why should be the evidence of the girl or the woman
who complains of rape or sexual molestation be viewed
with the aid of spectacles fitted with lenses tinged with
doubt, disbelief or suspicion? The plea about lack of
corroboration has no substance."
14. In the present case, the victim was a child and had no
apparent reason to falsely implicate the accused to spoil her own prestige
and honour. Conviction of the appellant is based upon fair appraisal of the
evidence and requires no interference.
15. Regarding order on sentence, it transpires that the appellant
was sentenced to undergo RI for ten years with total fine ` 6,000/-. He has
already undergone more than five years incarceration. Nominal roll dated
14.02.2013 reveals that he had already undergone four years, seven
months and twenty nine days as on 16.02.2013. He had also earned
remission for nine months and eleven days. His jail conduct is
satisfactory. He is not involved in any other criminal case. He has suffered
injuries when given beatings by the public. He is the only earning member
of his family and is to support his wife and four children. Taking into
CRL.A.301/2012 Page 10 of 11
consideration all the facts and the mitigating circumstances, order on
sentence is modified and the substantive sentence of the appellant is
reduced to seven years. Other sentences are left undisturbed.
16. The appeal stands disposed of in the above terms.
(S.P.GARG)
JUDGE
MARCH 04, 2013
tr
CRL.A.301/2012 Page 11 of 11
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