Bijender vs The State (Nct Of Delhi) on 15 May, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON : 01st MAY, 2017
DECIDED ON : 15th MAY, 2017

+ CRL.A. 1223/2013
BIJENDER ….. Appellant
Through : Mr.Udai Raj Singh, Advocate.

versus

THE STATE (NCT OF DELHI) ….. Respondent
Through : Mr.Amit Gupta, APP.
CORAM:
HON’BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Challenge in this appeal is a judgment dated 01.08.2013 of
learned Addl. Sessions Judge in Sessions Case No. 107/11 arising out of FIR
No. 145/2011 registered at Police Station Badarpur by which the appellant –
Bijender was held guilty for committing offences under Section 363/376
IPC. By an order dated 27.08.2013, he was sentenced to undergo RI for
seven years with fine `5,000/- under Section 376 IPC and RI for four years
with fine `1,000/- under Section 363 IPC. Both the sentences were to
operate concurrently.

2. In nutshell, the prosecution case as set up in the charge- sheet
was that on the night intervening 27/28.05.2011 at about 01.00 / 01:30 A.M.,
the appellant after kidnapping the prosecutrix ‘X’ (assumed name) from the
lawful guardianship of her parents took her to his house after administering
stupefying substance and committed rape upon her. Investigating Officer

Crl.A. 1223/2013 Page 1 of 8
after recording victim’s complaint (Ex.PW-3/B) lodged First Information
Report. ‘X’ was medically examined; she recorded her 164 Cr.P.C.
statement. The appellant was arrested and medically examined. Statements
of witnesses conversant with the facts were recorded. Exhibits collected
during investigation were sent to Forensic Science Laboratory for
examination. Upon completion of investigation, a charge-sheet was filed
against the appellant for commission of offence under Sections 363/376 IPC.
In order to establish its case, the prosecution examined twelve witnesses in
all. In 313 Cr.P.C. statement, the appellant denied his involvement in the
crime and pleaded false implication without examining any witness in
defence. The trial resulted in conviction as aforesaid. 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. At the outset, it may be mentioned that the appellant’s
conviction is primarily based upon the sole testimony of the prosecutrix ‘X’.
It is settled position that the testimony of prosecutrix is sufficient to base
conviction and it needs no corroboration provided it is found credible and
inspires confidence. The Court may, however, if it is hesitant to place
implicit reliance on it, look into other evidence.

4. In the instant case, vital discrepancies and infirmities have
emerged in the statements of the prosecution witnesses making it unsafe to
base conviction on the solitary testimony of the prosecutrix without
independent corroboration. The burden to prove its case beyond reasonable
doubt remains upon the prosecution and it cannot take the benefit of the
weakness of the defence of the accused.

Crl.A. 1223/2013 Page 2 of 8

5. Admitted position is that the prosecutrix and the appellant were
acquainted with each other before the incident. The appellant used to live in
her neighbourhood. The Trial Court was of the view that X’s age was more
than 16 years on the day of occurrence; her date of birth being 07.05.1995 as
recorded in her birth certificate (Ex.PW-10/G). This date of birth has
remained unchallenged during trial.

6. In her complaint (Ex.PW-3/B), the complainant disclosed that
on the night intervening 27/28.05.2011 she was sleeping in her house. At
around 01.00 – 01.30 night, the appellant came inside her house; forced her
to inhale some stupefying substance and took her in his lap to his house; the
appellant committed rape upon her. She was kept under quilt to hide; as a
result of which, she became unconscious. On regaining senses, she found
herself present inside her house. She was taken for medical examination.

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7. In her 164 Cr.P.C. statement (Ex.PW-1/B) recorded on
10.06.2011, ‘X’ gave an entirely different and conflicting version before the
learned Metropolitan Magistrate. She informed that when she was sleeping
at night time in her house, the appellant sprinkled something on her face; as
a result of which, she became unconscious. When she came to senses, she
saw that her brother had taken her back to her house. She regained senses
after 3 or 4 days. She did not know as to what had happened with her.

8. In her Court statement as PW-3, ‘X’ deposed that on the night
intervening 27/28.05.2011 at around 02.00 a.m. when she was sleeping in
her house, the appellant came; pressed her mouth and made her to inhale
some intoxicant; due to which, she became little unconscious. The appellant
took her to his room by lifting her and committed rape upon her. Thereafter,
he put her under the heap of clothes / quilt. After some time, when she

Crl.A. 1223/2013 Page 3 of 8
regained consciousness, her family members brought her home. The police
was informed and her statement (Ex.PW-3/B) came to be recorded. In the
cross-examination, she disclosed that at the time of occurrence her mother,
elder brother and younger sister were sleeping along with her in the said
room on the ground. She did not know as to what was poured by the
appellant on her face. She further disclosed that her brother Dharmender
had returned from his job at around 12.00 midnight and her mother had
served food to him. Her father was sleeping on the road outside the room.
After inhaling intoxicant substance, she became totally unconscious and
regained it after about 3 – 4 days. She did not know what had happened
with her during these 3 – 4 days. She further admitted that at the appellant’s
house, his mother and brother used to live. She did not try to raise noise at
the time of commission of rape. She denied the suggestion that she wanted
to marry the appellant with whom she had love affairs.

9. On scrutinizing the statements of the prosecutrix recorded at
various stages of investigation / trial, it appears that she is not consistent
throughout. She has changed her version at different stages. She was found
present inside the appellant’s house at the time of occurrence. It is highly
unbelievable that in the presence of her so many family members in the
house, the appellant would make her to inhale some stupefying substance
and take her in his lap without any reaction whatsoever from her side. The
prosecutrix who was purportedly semi-conscious did not raise any alarm /
hue and cry to attract the attention of other family members sleeping nearby.
Even after reaching the appellant’s residence, she had no abnormal behavior
and did not raise any alarm. She did not complain to appellant’s family
members about her forcible abduction. In the morning when her family

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Crl.A. 1223/2013 Page 4 of 8
members came to know about her presence inside the appellant’s house, she
was brought back from there. The investigating agency did not associate
appellant’s family members during investigation. It is unclear if appellant’s
mother or brother were present inside the house at the time of occurrence.
Seemingly, it is a case of elopement with consent. The prosecutrix had gone
to the appellant’s house and was found present there. She maintained
complete silence during the entire episode. Her conduct is highly
unreasonable and unnatural. Nothing has come on record to show if at the
time of commission of rape, any resistance was offered by her. She was
medically examined promptly vide MLC (Ex.PW-3/A). No external injuries
whatsoever were found on her body to infer forcible rape. She was found
conscious and oriented. It belies her statement that she regained
consciousness after 3 – 4 days of the incident. There was no mark of
violence on her body including private parts.

10. Possibility of the prosecutrix to be a consenting party cannot be
ruled out. Since ‘X’ was above 16 years of age on the day of occurrence,
physical relationship (if any) with the appellant with consent did not
constitute offence under Section 376 IPC. Nothing has come on record to
show if any overt act was played by the appellant to ‘take’ or ‘entice’ her to
his house. Appellant’s defence under Section 313 Cr.P.C. is quite
reasonable and plausible. Since both the prosecutrix and the appellant
belonged to two different castes, there was resentment by X’s family
members to the marriage between them.

11. This Court is conscious that the statement of the prosecutrix
must be given prime consideration. At the same time, broad principle that
the prosecution has to prove its case beyond reasonable doubt applies

Crl.A. 1223/2013 Page 5 of 8
equally to a case of rape and there could be no presumption that a
prosecutrix would always tell the entire story truthfully. In the instant case,
the testimony of the prosecutrix is highly unreliable / wavering.

12. In ‘Rai Sandeep @ Deepu v. State of NCT of Delhi‘, (2012) 8
SCC 21, the Supreme Court commented about the quality of the sole
testimony of the prosecutrix which could be made basis to convict the
accused. It held :

“In our considered opinion, the ‘sterling
witness’ should be of a very high quality and
caliber whose version should, therefore, be
unassailable. The Court considering the
version of such witness should be in a
position to accept it for its face value
without any hesitation. To test the quality of
such a witness, the status of the witness
would be immaterial and what would be
relevant is the truthfulness of the statement
made by such a witness. What would be
more relevant would be the consistency of
the statement right from the starting point
till the end, namely, at the time when the
witness makes the initial statement and
ultimately before the Court. It should be
natural and consistent with the case of the
prosecution qua the accused. There should
not be any prevarication in the version of
such a witness. The witness should be in a
position to withstand the cross- examination
of any length and strenuous it may be and
under no circumstance should give room for
any doubt as to the factum of the
occurrence, the persons involved, as well as,
the sequence of it. Such a version should

Crl.A. 1223/2013 Page 6 of 8
have co-relation with each and everyone of
other supporting material such as the
recoveries made, the weapons used, the
manner of offence committed, the scientific
evidence and the expert opinion. The said
version should consistently match with the
version of every other witness. It can even
be stated that it should be akin to the test
applied in the case of circumstantial
evidence where there should not be any
missing link in the chain of circumstances to
hold the accused guilty of the offence
alleged against him. Only if the version of
such a witness qualifies the above test as
well as all other similar such tests to be
applied, it can be held that such a witness
can be called as a ‘sterling witness’ whose
version can be accepted by the Court
without any corroboration and based on
which the guilty can be punished. To be
more precise, the version of the said witness
on the core spectrum of the crime should
remain intact while all other attendant
materials, namely, oral, documentary and
material objects should match the said
version in material particulars in order to
enable the Court trying the offence to rely
on the core version to sieve the other
supporting materials for holding the
offender guilty of the charge alleged.”

13. In ‘Tameezuddin @ Tammu v. State (NCT of Delhi)’, (2009) 15
SCC 566, the Supreme Court held :

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“It is true that in a case of rape the evidence
of the prosecutrix must be given
predominant consideration, but to hold that

Crl.A. 1223/2013 Page 7 of 8
this evidence has to be accepted even if the
story is improbable and belies logic, would
be doing violence to the very principles
which govern the appreciation of evidence
in a criminal matter.”

14. In the present case, the testimony of the prosecutrix, the
associated circumstances and the medical evidence leave a mark of doubt to
treat the testimony of the prosecutrix as so natural and truthful to inspire
confidence. It can be stated with certitude that the evidence of the
prosecutrix is not of such quality which can be placed reliance upon. It
shows several lacunae. There are various serious contradictions in her
statement and actions, from which it can safely be concluded that she has not
presented the true facts.

15. In the light of above discussion, I am of the considered view
that the prosecution has failed to establish its case against the appellant
beyond reasonable doubt. The appellant deserves benefit of doubt. The
appeal is allowed; conviction and sentence awarded by the Trial Court are
set aside. The appellant shall be released forthwith if not required to be
detained in any other case.

16. 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
/ compliance.

(S.P.GARG)
JUDGE
MAY 15, 2017 / tr

Crl.A. 1223/2013 Page 8 of 8

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