Crl.A. No. 121/2008. Case: Virender Vs The State of NCT of Delhi. High Court of Delhi (India)

Case NumberCrl.A. No. 121/2008
CounselFor the Appellant: S.B. Dandapani, Adv. and For the Respondents: Manoj Ohri, APP
JudgesGita Mittal, J.
IssueCriminal Law (Amendment) Act, 1883; Evidence Act, 1872 - Sections 114, 118, 121 to 131, 148, 149 and 165; Terrorist and Disruptive Activities (Prevention) Act, 1987; Indian Penal Code - Sections 302, 304, 304B, 354, 375, 376, 377 and 396; Criminal Procedure Code (CrPC) - Sections 161, 164, 164A, 273 to 277, 280, 311, 313, 327(2), 327(3), 428, 5...
Judgement DateSeptember 29, 2009
CourtHigh Court of Delhi (India)

Judgment:

Gita Mittal, J.

1. The present appeal lays a challenge to a judgment dated 17th August, 2007 passed by the learned Additional Sessions Judge returning a finding of guilt against the appellant for commission of an offence under the provisions of Section 376 of the IPC in the case arising out of FIR No. 234/04 registered by the police station Gokul Puri on 29th April 2005. The appellant also assails the order dated 21st August, 2007 sentencing him to undergo rigorous imprisonment for the period of seven years and imposing fine of Rs. 1,000. In default of payment of the fine, he was sentenced to undergo simple imprisonment of 10 days. The court further directed benefit under Section 428 of the CrPC to be given to the appellant.

2. Briefly stated, the case of the prosecution against the appellant was that on 28th April, 2005 at 10.30 a.m., in a house in front of the house of one Bhule Ram Choudhary, Gali No. 2, Sadat Pur, Delhi, he had committed rape upon the prosecutrix by committing sexual intercourse with her without her consent. The appellant pleaded not guilty and had claimed trial. A total of 13 witnesses were examined by the prosecution in support of its case. The conviction rests primarily o the evidence of the prosecutrix who was examined as PW1; PW-7 her father Raju Austin; PW10 Dr. Manisha who proved her MLC and PW 11 Ms. Poonam Chaudhary, the Metropolitan Magistrate who recorded the statement under Section 164 of the CrPC of the prosecutrix.

3. Mr. S.B. Dandapnai, learned Counsel for the appellant has strongly contested the finding of guilt returned by the learned trial court contending that there are contradictions in all material particulars in the three statements given by the prosecutrix; the first being the statement recorded under Section 161 of the CrPC; the second, being the statement recorded by the learned Metropolitan Magistrate under Section 164 of the CrPC and the third, being her deposition in court. The first plank of challenge is based on the plea that even if the contradictions in matters of detail were ignored, however the prosecutrix has contradicted herself in her statements with regard to the very place of occurrence. Learned Counsel has submitted at some length that this is a major contradiction. The second major contradiction relied upon by learned Counsel for the appellant relates to the manner in which she was allegedly saved from the clutches of the appellant. The submission is that in view thereof the prosecution has failed to establish the case laid against the appellant.

4. It is also contended on behalf of the appellant that the prosecution deserves to be disbelieved for its failure to produce a material witness named in the statement of the prosecutrix and that the same nails the falsity in the case set up against the appellant. The further submission is that PW 4 Neelam who was set up by the prosecution as being the person who arrived at the scene of occurrence and saved the prosecutrix, has turned completely hostile and has denied any such occurrence.

5. Mr. Dandapani has painstakingly urged that even if the allegations made by the prosecutrix are taken as true, still they are insufficient to bring home the charge of rape against the appellant. The submission is that the medical evidence led by the prosecution also does not support any finding or conclusion of rape. Learned Counsel further urges that the learned trial court has erred in completely ignoring the explanation given by the accused in his statement recorded under Section 313 of the CrPC as to the motive for his implication in the false case set up against him.

6. PW 9 Dr. Gopesh, the Radiologist who conducted the examination of the prosecutrix on 29th April, 2005 and proved his report on record as Exh. PW9/A. According to PW 9, the prosecutrix was aged between 12-13 years. The MLC (Exh. PW 10/A) recorded on 28th April, 2005 mentions her age at 11 years.

7. So far as the occurrence is concerned, in the statement recorded by the police under Section 161 of the CrPC on 28th April, 2005 which was proved on record as Ex PW1/A, the prosecutrix had stated that she was a student of class 3; that at about 10.30 a.m. on 28th April, 2005, she was standing outside her house; that the appellant who resides in front of her house had called her and handed over a twenty rupee note to purchase a bottle of a cold drink for him; that she went to the nearby shop and brought the cold drink. When she went with the cold drink and the balance money to his house, the appellant grabbed her and put her on the ground. The prosecutrix wanted to raise a hue and cry when the accused covered her mouth with his hand and forcibly removed her clothes. He removed his own clothes as well and thereafter did 'galat kaam' with her. He threatened the prosecutrix not to disclose the same to anybody and left her. The prosecutrix has stated that thereafter she returned to her house and when her father returned after few hours, she disclosed the entire incident to him. Her father brought her to the police who sent her to the GTB Hospital for the medical check up.

8. The prosecutrix was produced before the learned 3rd Metropolitan Magistrate on May, 2005 when her statement was recorded without an oath by the learned judge under Section 164 of the Criminal Procedure Code which has been exhibited on record as Ex PW1/B. In this deposition, the appellant stated that on 28th April, 2005, the appellant herein had come to her house and told her to get a cold drink for which he had given her the money. She had got the cold drink. The prosecutrix stated before the magistrate that at that time, other than the prosecutrix there was no one in her house and that Virender had forced her to lie on the bed; forcibly removed their clothes and then he did 'gandi harkatein'. She stated that hearing her screams, one of her aunts arrived whereupon Virender left her. It is noteworthy that when questioned by the learned magistrate, the prosecutrix had stated that she does not understand the meaning of the oath.

9. In the deposition in court as PW 1, the prosecutrix stated that she knows the appellant very well for the reason that he was residing at the same place for 3-4 years. She made a statement similar to the one given by her under Section 161 of the CrPC so far as the place of occurrence was concerned. In her statement, at one place she stated that the appellant had misbehaved with her and that he did 'galat kaam' with her. The witness explained galat kaam to mean as to what 'a husband does with his wife in the night'. Certain additions in this statement so far as what happened there after are pointed out. For the first time the prosecutrix states that when she had shouted for help, one aunty (who she now named as Neelam) asked another lady who was passing by to ascertain as to where the cries were coming from on which that lady, whose name she did not know, opened the door on which the appellant left the house while she then put on her clothes and returned to her house. In the evening, when her father returned, she narrated the incident to him. She was taken by her father to the police station and her statement was recorded thereupon. She identified the underwear which had been seized by the police as the one worn by her at the time of incident. The statement given by her to the police and the one under Section 164 of the CrPC before the Metropolitan Magistrate were proved on record as Exh PW 1/A and Exh PW 1/B respectively.

10. The prosecutrix had denied the suggestion put on behalf of the appellant to the effect that her father had taken a loan of Rs. 4,000/-from the appellant three months prior to the registration of the case with the promise to return the amount within one month. It was further suggested to the prosecutrix that her father had only returned Rs. 1,000/-in three months and that the appellant had come to her house at about 7 a.m. on 28th April, 2005 to seek the balance money from her father for the reason that he was leaving for his native village and needed the same. The prosecutrix also denied the suggestion that when the accused again demanded the money in the evening, her father refused to return the money and for this reason the prosecutrix had been tutored to make the statement against the accused person and he has been falsely implicated. These very suggestions were also put to Shri Raju Austin father of the prosecutrix, who testified as PW 7. He too denied the same.

11. The entire foundation to bring home the charge of rape on the appellant rests on the attribution of 'galat kaam' to him by the prosecutrix in Exh PW 1/A (statement under Section 161 of the CrPC) as well as the statement made in court. The prosecutrix has referred to his acts as 'gandi harkatein' in Exh. PW1/B recorded by the learned magistrate.

12. It needs no elaboration that a conviction can be based on the uncorroborated evidence of a prosecutrix if the same inspires complete confidence.

13. It would be useful to refer to certain observations of the Apex Court in the pronouncement reported at 2007 Crl.L.J. 4704 Radhu v. State of Madhya Pradesh which succinctly laid down the applicable principles thus:

5. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that...

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