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Billo vs State Nct Of Delhi on 5 December, 2018

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on :12.11.2018
Date of decision :05.12.2018
CRL.A 378/2017
BILLO ….. Appellant
Through: Ms. Aishwarya Rao, Advocate.
(DHCLSC).
versus
STATE NCT OF DELHI ….. Respondent
Through: Ms. Aashaa Tiwari, APP for
State.
CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT

ANU MALHOTRA, J.

1. The appellant/applicant Billo s/o Sh. Siya Ram Singh vide the
present Criminal Appeal No. 378/2017 assails the impugned judgment
dated 23.12.2016 and the impugned order on sentence dated
26.12.2016 of the Court of the learned Additional Sessions Judge-Fast
Track Court (East), Karkardooma Courts, Delhi in Sessions case
no.1508/16 in relation to FIR No.251/14, PS Jagatpuri which was
registered under Sections 376(2)(f)/376(2)(n)/506 of the Indian Penal
Code, 1860 in relation to which the appellant herein was convicted by
the learned Trial Court and sentenced to undergo Rigorous
Imprisonment for a period of 10 years and to pay a fine of Rs.3,000/-
and in default thereof to undergo Simple Imprisonment for a period of

CRL.A 378/17 Page 1 of 43
30 days for the offence punishable under
Section 376(2)(f) of the
Indian Penal Code, 1860; that the appellant having been sentenced to
undergo Rigorous Imprisonment for a period of 10 years and to pay a
fine of Rs.3,000/- and in default thereof to undergo Simple
Imprisonment for a period of 30 days for the offence punishable
under
Section 376(2)(n) of the Indian Penal Code, 1860; with the
appellant having also been sentenced to undergo Rigorous
Imprisonment for a period of one year for the offence punishable
under
Section 506 of the Indian Penal Code, 1860, with all sentences
having been directed to run concurrently with the benefit of
Section
428 Code of Criminal Procedure, 1973.

2. The learned Trial Court also directed the State Legal Services
Authority to determine an appropriate compensation to be paid to the
victim/prosecutrix in terms of
Section 357(A)(3) of the Cr.P.C., 1973
in terms of the notified Delhi Victim Compensation Scheme, 2011.
The appellant was produced pursuant to the production warrants on
27.08.2018 and as per the nominal roll received from the Deputy
Superintendent, Central Jail-03, Tihar, Delhi as on 16.08.2018, the
appellant is indicated to have undergone 4 years 3 months and 20 days
of incarceration with remission earned of 4 months and 26 days with
the fine indicated to have not been paid and the unexpired portion of
the sentence being 5 years 3 months and 14 days on the said date i.e.
16.08.2018.

3. The charge of allegations framed against the accused since
convicted i.e. the present appellant on 06.01.2015 was to the effect

CRL.A 378/17 Page 2 of 43
that on 17.04.2014 at about 12.00 pm and on 18.04.2014 at House
No.69, Gali No.29, South Anarkali, Gurudwara Gali, Delhi within the
jurisdiction of PS Jagatpuri, the accused since convicted being uncle
(Mausa) of the prosecutrix, repeatedly committed rape on the
prosecutrix aged about 18 ½ years against her will and consent and
also threatened to kill her if she reported the incident to anyone and
thus criminally intimidated her and committed offences punishable
under
Section 376(2)(f) and Section 376(2)(n) of the Indian Penal
Code, 1860 read with
Section 506 of the Indian Penal Code, 1860, to
which charge of allegations, the accused/appellant herein had pleaded
not guilty and claimed trial.

4. The charge-sheet in the instant case indicates that on
25.04.2014, the prosecutrix (P) aged 18 ½ years accompanied her
aunt(Y) i.e. her mausi to the police station and got her complaint
registered to the effect that she was a permanent resident of Jabalpur,
Madhya Pradesh and had come to her maternal aunt’s (Y) house a few
days before so that she could visit the city and that she also used to
accompany her aunt (Y) in doing the domestic work of cleaning in
houses.

5. As per the prosecution version set forth through the FIR, the
accused/appellant herein named Billo used to do the work of POP and
on 17.04.2014, her mausa i.e. the accused/appellant herein told her
not to go for the work or she would get into the bad habit of eating pan
supari and thus her aunt (Y) left for work and the son of her aunt (A)
had also gone for work and his sister (B) had gone to school and she

CRL.A 378/17 Page 3 of 43
the prosecutrix (P) and her uncle named Biloo were alone at home and
that she was cleaning utensils and thereafter went for a bath and at that
time her uncle i.e. the accused/ appellant herein entered the bath room
making an excuse that he wanted to take water and that she objected to
the same on which her uncle told her not to make any noise and that
he would give her Rs.l000/- and would give Rs.5000/- to her mother
and would get her new shoes and chappals and that she should do
whatever he asked her to do so and told her to do as he said and her
uncle came out of the bath room and after she bathed she wore her
clothes and came out of the bath room and her uncle i.e. the
accused/appellant herein asked her to come and lie down on a Chatai
(Mat) and when she refused to do so, he caught hold of her and made
her lie down on the floor and put her chunni into her mouth and with
his legs he pressed her hands and kept fondling her breasts with his
hands and then opened the Naada (string) of her salwar and took it off
and forcibly put his penis into her vagina and thereafter left her alone
in the house and went out of the house and before leaving the house he
also threatened her to keep her mouth shut or else he would kill her.

6. As per the FIR, the prosecutrix (P) is indicated to have stated
that her uncle i.e. the accused/appellant herein was a very cruel man
and also used to beat her maternal aunt (Y) and their children
mercilessly. As per the FIR, the prosecutrix (P) further reported that
because of the acts of her uncle i.e. the accused/ appellant herein she
was in a state of fear and on 18.04.2014 her uncle i.e. the
accused/appellant herein on finding an opportunity after her maternal

CRL.A 378/17 Page 4 of 43
aunt (Y) and her cousin brother and sister had left, again had sexual
intercourse with her and she being very afraid of the acts of her uncle
i.e. the accused/appellant herein did not tell anyone of the same but on
that day i.e. on 25.04.2014, she picked up the courage and told her
maternal aunt (Y) about everything and her aunt (Y) brought her to the
police station and then she told everything to the police in the presence
of her aunt (Y) and her statement was recorded. As per the charge-
sheet on the basis of the statement of the prosecutrix (P), the FIR was
registered under
Section 376(2)(f) and Section 506 of the Indian Penal
Code, 1860.

7. The medical examination of the prosecutrix (P) was got
conducted at LBS Hospital through ASI Sunita. The statement of the
maternal aunt (Y) of the prosecutrix (P) was also indicated to have
been recorded and as she had no documentary proof of age, the bone
age X-Ray of the prosecutrix was also got conducted. The
accused/appellant herein was taken into custody on 26.04.2014 and
samples collected during the medical examination of the prosecutrix
(P) and the accused/appellant herein were deposited in the Malkhana.

8. In support of the prosecution version, the State cited and
examined its 16 witnesses. It was held by the learned Trial Court vide
the impugned judgment that the charge of allegations levelled against
the accused/appellant herein (uncle of the prosecutrix) established that
the accused/appellant herein had committed acts of sexual intercourse
with the prosecutrix (P) on 17.04.2014 and 18.04.2014 by force and
without her consent and that the accused i.e. the appellant herein had

CRL.A 378/17 Page 5 of 43
also threatened to kill her after the acts of commission of rape upon
her.

9. Through the present appeal and submissions made on behalf of
the appellant by the learned counsel from the Delhi High Court Legal
Services Committee, Ms. Aishwarya Rao, it was contended that the
charge of allegations framed against the accused/appellant herein were
not proved nor established even remotely. It was also submitted on
behalf of the appellant that there were contradictions and variations in
the testimonies of the prosecutrix (P) examined as PW-3 and PW-5
Ms. Y i.e. the maternal aunt of the prosecutrix as to the date when the
aunt (Y) of the prosecutrix was informed by the prosecutrix of the
alleged incidents of the dates 17.04.2014 and 18.04.2014 and whereas
the prosecutrix stated that she had informed her aunt i.e. PW-5 after
2/4 days of the incident of rape committed on her, her aunt (Y) had
stated in her cross-examination that the prosecutrix had told her about
the commission of rape on her person by the accused/appellant herein
in the evening of 17.04.2014 for the first time and that she, the aunt
(Y) of the prosecutrix (P) did not lodge any report to the police on
17.04.2017 nor did she so report about the same to the police by the
prosecutrix (P) and despite the alleged second rape on 18.04.2014 by
the accused/appellant herein on the prosecutrix (P) there was no
reporting of the FIR till date 25.04.2014. It was also contended on
behalf of the appellant that there was no medical evidence to prove
that the prosecutrix (P) had been subjected to any sexual assault by the
appellant nor was there any FSL report to show the involvement of the

CRL.A 378/17 Page 6 of 43
appellant with the offence in question or to prove that the prosecutrix
was subjected to rape by the appellant. Inter alia the appellant
contended that the facsimile of the seal used in sealing the seized
articles had not been taken on any of the documents e.g. Seizure
memos etc. nor was the seal handed over to any person through any
seizure memo and nor was the same deposited with the MHC(M) of
the police station. It was further contended on behalf of the appellant
that the learned Trial Court had failed to appreciate that the scientific
evidence does not corroborate the story of prosecution and that there
were no efforts made by the prosecution to ascertain the presence of
the Smegma on the glans penis of the accused/appellant herein and
reliance was placed on behalf of the appellant on the verdict of the
Hon’ble High Court of Orissa in “A. Kamartaju Patro Versus State
of Orissa (1991 Crl. L.J.) 2009” with specific observations therein to
the effect:-

“the Smegma Test of the accused is a sure and
infallible test to determine whether the male agent in
the offence of rape had actually committed sexual
intercourse or not and in absence of such test for the
want of medical examination of the Petitioner/Convict,
it is submitted that the Petitioner/Convict cannot be
said have committed the offence of rape.”

10. Inter alia it was submitted on behalf of the appellant that the
appellant had not received a fair trial and that his conviction could not
be sustained and that the extreme penalties imposed by the learned
Trial Court ought to be set aside. It was also submitted on behalf of
the appellant that no fair opportunity was given to the
accused/appellant herein to defend his case properly and even the

CRL.A 378/17 Page 7 of 43
Amicus Curiae provided to the appellant did not render proper
assistance in a manner to properly contest the case and most of the
relevant questions which ought to have been put to the witnesses, were
not asked to the witnesses during cross-examination. It was also
submitted on behalf of the appellant that there was no bleeding after
the alleged incident of rape on the prosecution and no injuries on her
person which also negate the commission of the offence of rape inter
alia the appellant contended that the testimony of a child witness has
to be guaged with caution and reliance was placed thus on the verdict
of the Hon’ble Supreme Court in “Nivrutti Pandurang Kokate
Ors. Vs. State of Maharashtra, AIR 2008 SC 1460”, wherein there
were observations to the effect:-

“The decision on the question whether the child witness
has sufficient intelligence primarily rests with the trial
Judge who notices his manners, his apparent
possession or lack of intelligence, and the said Judge
may resort to any examination which will tend to
disclose his capacity and intelligence as well as his
understanding of the obligation of an oath. The
decision of the trial court may, however, be disturbed
by the higher court if from what is preserved in the
records, it is clear that his conclusion was erroneous.
This precaution is necessary because child witnesses
are amenable to tutoring and often live in a world of
make-believe. Though it is an established principle that
child witnesses are dangerous witnesses as they are
pliable and liable to be influenced easily, shapes and
molded, but it is also an accepted norm that if after
careful scrutiny of their evidence the court comes to the
conclusion that there is an impress of truth in it, there is
no obstacle in the way of accepting the evidence of a
child witness.”

CRL.A 378/17 Page 8 of 43

11. Inter alia it was submitted on behalf of the appellant that the
learned Trial Court did not frame any opinion as to whether the child
witness has the requisite intelligence to depose and whether she was
tutored or not and that the appellant was convicted on the sole
testimony of the prosecutrix which itself does not inspire confidence
and appeared to be tutored. It was further contended on behalf of the
appellant that the prosecution story was thoroughly inconsistent and
illogical and that the learned Trial Court erred in granting benefit of
doubt to the appellant as the prosecution has not been able to
discharge its burden. It was thus submitted on behalf of the appellant
that the appellant was liable to be acquitted.

12. On behalf of the State, learned Additional Public Prosecutor for
State Ms. Aashaa Tiwari contended that the statement of the
prosecutrix stood corroborated through the statement of the aunt (Y)
of the prosecutrix i.e. PW-5 to the extent that the prosecutrix had
disclosed the incident to her aunt (Y) and that thereafter she, the aunt
(Y) of the prosecutrix along with the prosecutrix (P) had gone to the
Police Station Jagatpuri and got the FIR Ex. PW3/C registered against
the accused/appellant. It was also submitted on behalf of the State that
the accused/appellant herein was the husband of PW-5 and that the
parents of the prosecutrix would have sent the prosecutrix to Delhi
based on their trust but in view of the incident that took place, the
same would have placed PW-5 in a substantial dilemma and even
presuming that PW-5 came to know what incident on the date of the
incident, the delay of one week in the registration of the FIR was itself

CRL.A 378/17 Page 9 of 43
no ground to disbelieve the case of the prosecutrix.

13. Reliance was thus placed on behalf of the State on the verdict of
the Hon’ble Supreme Court in “State of Punjab Ors. Vs. Gurmeet
Singh” 1996 (2) SCC 4384, on the verdict of the Hon’ble High Court
of Himachal Pradesh in “State of Himachal Pradesh Vs. Sanjay
Kumar @ Jimmy” a judgment dated 15.12.2000 Crl A. 1231/16 in
which the delay of three years was condoned. Reliance was also
placed on behalf of the appellant on the verdict of the Hon’ble
Supreme Court in “Satpal Singh Vs. State of Haryana” 2010 (8)
SCC 719 in which the delay of four months in reporting the matter to
the police was not considered very significant. It has been submitted
on behalf of the State that pursuant to the incident of rape and the
medical examination of the prosecutrix (P) would have taken a bath
and attended to the calls of nature and the absence of semen in the
samples from the body of the prosecutrix (P) cannot be considered
very significant and that the absence of injuries on the body of the
prosecutrix (P) is also of no consequence. It has also been submitted
through the written submissions of the State that at the time of the
incident, the prosecutrix (P) was 18 ½ years of age and that she was
alone in the house of the accused which was far away from her native
place which itself indicated that she would not have been in a position
to offer resistance to the accused/appellant herein and furthermore, the
FIR itself indicated that the accused/appellant herein had been beating
his wife and his children.

14. The verdict of the Hon’ble Supreme Court in “Radhu Vs.

CRL.A 378/17 Page 10 of 43
State of M.P.” 2007 Crl. J. 4704 categorically lays down to the effect
that a finding of guilt in a case can be based on uncorroborated
evidence of the prosecutrix and the very nature of the offence made it
difficult to get direct corroborative evidence and that the evidence of
the prosecutrix ought not to be rejected on the basis of minor
discrepancies and contradictions and where a victim states on oath that
she was forcibly subjected to sexual intercourse, her statement would
ordinarily be accepted even if it is uncorroborated and it is was also
contended on behalf of the State that it is well settled that the absence
of injuries on the private parts of the victim do not ipso facto falsify a
case and that the same cannot be construed as evidence of consent and
that further the opinion of a doctor that there was no evidence of any
sexual intercourse or rape is also not sufficient to disbelieve the
accusation of rape on the victim.

15. Ex.PW1/A, the MLC of the prosecutrix prepared at LBS
Hospital, Delhi reports the history to the effect:-

“brought by police for medical examination.
Alleged H/o sexual assault by mausa (Billu 8 days back twice.

Billu threatened her that if she tells it to anyone he will kill
her. H/O physical sexual assault”,
it was also indicated through the same that there were no
external marks of injuries.

16. The prosecutrix PW-3 was examined in the Vulnerable
Deposition Room no.78 at Karkardooma Courts, Complex, Delhi on
08.10.2015 and the prosecutrix identified the accused/appellant herein

CRL.A 378/17 Page 11 of 43
as being the person who raped her forcibly against her will and
consent and threatened to kill her if she disclosed the incident to her
aunt (Y) and told her that he would give Rs.5,000/- to her mother and
Rs.1,000/- to her. She inter alia stated that it was the summer season
of the year 2014 when she had come to Delhi to the house of her aunt
(Y) though she did not remember the date and month and one day
she, the prosecutrix was cleaning utensils in the bath room of her aunt
(Y) and at that time she and the accused/appellant herein were alone in
the house and her aunt and their children were not present in the house
and the accused/appellant asked her to serve the food and when she
was about to serve the food to him, he told her that he did not want to
have the food and then the accused asked her to go inside the room
and lie down on a mat but she refused and then the accused/appellant
herein slapped her and dragged her inside the room by holding her
hand and the accused made her lie on the bed and asked her not to
raise an alarm and the prosecutrix whilst her testimony was being
recorded by the learned Trial Court started weeping at the stage. She
further stated that the accused/appellant herein gagged her mouth with
a chunni “Mere muh me chunni thoos di” and that the accused i.e. the
appellant herein opened the string of her salwar and then put his
urinating organ into her urinating organ and raped her by force against
her will and consent and after committing rape on her threatened to
kill her if she disclosed the incident to her aunt (Y) and also told her
that he would give Rs.5,000/- to her mother and Rs.1,000/- to her and
also told her that he would give her new clothes and chappals. She
inter alia stated that she identified her signatures on her statement

CRL.A 378/17 Page 12 of 43
under
Section 164 of the Cr.P.C., 1973.

17. Through her statement under Section 164 of the Cr.P.C. i.e.
Ex.PW3/B, the prosecutrix (P) corroborated the factum of forcible
sexual intercourse committed on her by the accused/appellant herein,
though there are variations in the series of stated occurrences from
what had been stated in the FIR. This is so, inasmuch as the
prosecutrix through her statement under
Section 164 of the Cr.P.C.
stated that she had been staying for the last 15 days prior to the
recording of her statement under
Section 164 of the Cr.P.C. on
26.04.2014 with her maternal aunt (Y) (Mausi) and she used to
accompany her maternal aunt (Y) for doing domestic work of cleaning
and one day her uncle (Mausa) i.e. the accused/appellant herein said
that her aunt (Y) used to make her eat gutka and thus told her aunt (Y)
not to take the prosecutrix (P) with her, as a consequence of which the
prosecutrix stayed at home and one day after the maternal aunt (Y)
had gone, the uncle (Mausa) i.e. the accused/appellant herein came
home after consuming liquor and at that time she, the prosecutrix (P)
was cleaning utensils and her uncle asked her for food and thus she
gave him food and at that time, she the prosecutrix was alone at home
and thereafter her uncle i.e. the accused/appellant herein told her that
she should have her meals with him and thus she ate one roti and
thereafter her uncle i.e. the accused/appellant herein asked her to lie
down on a mat and she went and lay down and her uncle also came
behind her and lay down with her and he opened the (naada) string of
her salwar and before that he tied her mouth with the chunni and after

CRL.A 378/17 Page 13 of 43
opening the string of her salwar he climbed up onto her and pressed
her knees with his knees and started forcibly assaulting her and he
again also had forcible sexual intercourse with her and also threatened
to kill her if she informed anyone of the matter. She has further stated
that on the next day again when her aunt (Y) and her cousin brother
and sister were not at home, the accused/appellant herein again raped
her by force against her will and consent and that she was scared due
to rape committed on her by the accused/appellant herein and that he
also threatened her and after 2/4 days she narrated the incident to her
aunt (Y). She further stated that she had not immediately narrated the
incident of rape to her aunt (Y) due to fear of the accused/appellant
and stated thereafter 7 days of the incident she along with her aunt (Y)
went to the police station and met with the Investigation Officer, SI
Pooja and she narrated the whole incident to the IO. She further stated
that one lady also came there and she also narrated the said incident to
the said lady and her statement Ex.PW3/A was recorded by the IO on
which she identified her signatures at point A and testified to her
medical examination having been conducted at the LBS Hospital,
Delhi where her clothes were taken by the doctor which clothes i.e.
her salwar Ex.P1, ladies kurta Ex.P2, chunni Ex.P3, underwear Ex.P4
were identified by the prosecutrix as being those clothes which she
was wearing at the time of her medical examination. She further stated
that after the incident of rape, she had washed her clothes which she
was wearing at the time of commission of rape on her by the accused.
She admitted on being cross examined by the learned APP for the
State that the dates of incidents were 17.04.2014 18.04.2014 and

CRL.A 378/17 Page 14 of 43
that the place of the incidents was House no.69, Gali No. 29, South
Anarkali, Gurudwara Gali, Delhi. Inter alia through her cross-
examination recorded on 08.10.2015 and 20.11.2015, the prosecutrix
stated that she had come to Delhi four times before the incident and
stayed at her aunt’s (Y) house and inter alia stated that the 4th time
when she came to Delhi, she had come to Delhi along with the
accused by bus. She further stated that she had stayed at the house of
the accused/appellant for a month and that during that period the
behavior of the accused/appellant was good and he had provided food
to her. She also stated that whenever she came to Delhi, she along
with her Mausi i.e. Y used to go to the others houses for domestic
work as a maid. Inter alia the prosecutrix stated that sometimes the
accused/appellant here came to his house in a drunken condition and
stated that the accused/appellant and her aunt (Y) used to quarrel with
each other. She further admitted that her aunt (Y) used to ask the
accused/appellant not to drink liquor and due to this reason she used to
quarrel with the accused/appellant herein. She further stated that her
aunt (Y) and her children were not happy with the accused/appellant
herein and admitted also that her aunt (Y) used to tell her personal
problems to a lady in whose house her aunt (Y) was working as a
maid and that her aunt (Y) also used to weep before that lady and that
lady used to ask her aunt (Y) to get the accused sent to Jail. Inter alia
the prosecutrix (P) stated that the accused also used to beat her and
after seeing the quarrel between the accused/appellant herein and her
aunt (Y), she had become scared. She further stated that when the
accused used to quarrel with her aunt (Y) at that time her aunt (Y)

CRL.A 378/17 Page 15 of 43
wanted that the accused should be sent to the Jail. She further stated
that her aunt (Y) used to call the police at her house whenever her
mausa i.e. the accused /appellant herein used to quarrel with her aunt
(Y) and the police officials came to the house but they did not arrest
the accused saying that it was a family matter and that they should
settle the matter of their own. Inter alia the prosecutrix (P) stated that
despite best efforts of her aunt (Y), the accused/appellant herein was
not arrested by the police officials and inter alia she admitted that the
accused used to beat his children on small issues. She further stated
that she did not tell her parents about the quarrel between the accused
and her aunt (Y) but denied that the lady had advised her aunt (Y) to
use her i.e. the prosecutrix (P) as a tool to send the accused to Jail. She
admitted that the accused had asked her aunt (Y) not to send her for
domestic work in others houses as she had started eating gutka and her
aunt (Y) also used to eat gutka. She further stated that the said lady
told her i.e. the prosecutrix (P) that the accused would be in jail if she
wished. Inter alia the prosecutrix stated that there were two rooms in
the house of her aunt situated at the second floor though she did not
remember the number of rooms at the first floor and third floor and
stated that she did not remember the names of the tenants who were
residing at the first floor and the third floor and stated that there was a
latrine and bathroom at the house of her mausi and that there were
houses near the house of her mausi i.e. her aunt (Y). Inter alia the
prosecutrix stated that her aunt (Y) used to tell her that the police
officials were not arresting the accused and that she was frustrated.
The prosecutrix however denied that the accused had been falsely

CRL.A 378/17 Page 16 of 43
implicated by her at the instance of her aunt (Y) and denied that the
accused had not asked her to go to the room and lie on a mat and also
denied that the accused had not slapped her and had not dragged her
inside the room by holding her hand and had also denied that the
accused had not gagged her mouth with her chunni. The prosecutrix
categorically denied that the accused had not opened the string of her
salwar and denied that he had not inserted her urinating organ into her
urinating organ and denied that he had not raped her forcibly against
her will and consent and denied that the accused/appellant herein had
not threatened to kill her if she disclosed the incidents to her aunt (Y)
and denied that the accused had not told her that he would give
Rs.5,000/- to her mother and Rs.1,000/- to her. She further stated that
prior to the incident the accused had given her Rs.20/- and she had
handed over the same to her aunt (Y). She stated that she used to
reside in one room in the house of her aunt (Y) and categorically
denied that the accused had not committed rape on her and further
denied that she had washed her clothes as the accused had not
committed rape on her. The prosecutrix also stated that she did not
make any call at number 100. She however admitted that the
Investigation Officer obtained her signatures on blank papers but she
denied however that she had deposed falsely.

18. The prosecutrix however in her first sentence in her testimony
recorded on 08.10.2015 stated that “I am illiterate. I can only sign. I
cannot read and write any language including Hindi……”

19. PW-5, the aunt (Y) of the prosecutrix (P) in her cross-

CRL.A 378/17 Page 17 of 43

examination admitted that the accused/appellant used to harass and
beat her and used to drink liquor and then harass her. She stated
categorically that she had never thought of filing of any complaint
against the accused. She denied categorically that on 18.04.2014 her
children were at home on account of Good Friday and stated that her
daughter accompanied her to the place of her work and her son had
also gone for his job and stated that her younger daughter was at home
but the accused had sent her somewhere.

20. Inter alia PW-5 stated that the prosecutrix was at home when
she was raped by the accused. She further stated that the prosecutrix
told her about the commission of rape in the evening of 17.04.2014 for
the first time and did not disclose about the time of the commission of
rape to her and she PW-5 did not file any complaint to the police
against the accused on 17.04.2014. PW-5 stated on 18.04.2014 that the
accused again raped the prosecutrix and on that day she i.e. the
prosecutrix came to the house of the Malhotra Aunty at about 4.00
p.m. where PW-5 was working and informed her about the
commission of rape by the accused. Inter alia PW-5 denied that the
accused never raped the prosecutrix. She stated that on 18.04.2014
also, she did not file any complaint against the accused. She admitted
that she went to Tihar Jail to meet the accused for two / three times.
She voluntarily stated that she had gone to Tihar jail at the request of
her mother in law and father in law and stated she that had deposited
some money at Tihar Jail for use of the accused. She further stated that
her mother in law and father in law had stayed with her for about two

CRL.A 378/17 Page 18 of 43
months in the recent past and they are very nice to her and denied that
she was deposing falsely.

21. PW-11 Ms. Geetanjali, Metropolitan Magistrate (Mahila Court),
East is also indicated to have been examined on 15.09.2016 and her
testimony remained unchallenged, she having not been cross
examined on behalf of the accused. The testimony of the Ms.
Geetanjali, Metropolitan Magistrate (Mahila Court), East is
categorical to the effect that after putting some rational questions to
the victim i.e. the prosecutrix, it was answered by the victim that she
was going to make her statement under
Section 164 of the Code of
Criminal Procedure, 1973 voluntarily and thus Ms. Geetanjali,
Metropolitan Magistrate (Mahila Court), East recorded the statement
of the prosecutrix under
Section 164 of the Code of Criminal
Procedure, 1973 in the manner as stated by the witness and proved and
exhibited the same as Ex.PW3/B and the certificate of correctness of
statement was appended, which is Ex.PW11/D of which PW-11 had
signed at point-X.

22. Ex.PW12/A was recorded by PW-12 Ms. Pearl Massey,
Counsellor from the NGO, which also indicates that the prosecutrix
had stated of the forcible sexual intercourse committed on her by the
accused and of the threats meted out to her also if she told anyone
about the same.

23. The impugned judgment of the learned Trial Court indicates
that other witnesses examined by the State, their testimonies are as
follows : –

CRL.A 378/17 Page 19 of 43

“13. PW1-Dr. Astha Aggarwal deposed that on
26.04.2014 she had examined the prosecutrix. On
examination the hymen of the prosecutrix was found
torn. Her sexual assault evidence kit was prepared and
her clothes were collected and the same were handed
over the police alongwith the samples. This witness
proved the MLC of the prosecutrix as Ex.PW1/A.

14. PW2-Constable Nagesh deposed that on 25.04.2014 at
about 9:25 PM, the Duty Officer handed over a copy of
the FIR and the original rukka to him for handing over
the same to SI Pooja Saraswat who was present at LBS
Hospital. Thus this witness went to LBS Hospital and
handed over the copy of the FIR and the original rukka
to SI Pooja Saraswat.

15. PW4- Dr. Manoj Teotia deposed that on 26.04.2014
he had medically examined the accused vide MLC
Ex.PW4/A. On the basis of that medical examination he
had opined that there was nothing to suggest that
accused Billo was incapable of performing /sexual
intercourse. The blood sample of the accused was
collected, sealed and handed over to the police.

16. PW6-Constable Pushpender Kumar is the witness of
arrest of the accused. He deposed that on 26.04.2014 he
alongwith SI Pooja and Ct. Arvind went to the house of
the accused and the accused was taken in custody vide
arrest memo EX.PW6/A. His personal search was
conducted vide memo EX.PW6/B. Thereafter, the
accused was got medically examined at LBS Hospital.
After medical examination, the doctor handed over the
MLC and one sealed pullanda (packet) alongwith the
sample seal to this witness who further handed over the
same to the Investigating Officer vide seizure memo
Ex.PW6/C.

CRL.A 378/17 Page 20 of 43

17. PW7-Constable Arvind is another witness to the
arrest of the accused on 26.04.2014 from his house.

18. PW8-ASI Sunita deposed that in the intervening
night 25/26.04.2014 on the instructions of SI Pooja
Saraswat, the prosecutrix was taken to LBS Hospital
where she was got medically examined. After medical
examination, the doctor handed over two sealed
pullandas alongwith a sample seal to her which she
handed over to SI Pooja Saraswat vide seizure memo
EX.PW8/A.

19. PW9-HC Mahipal Singh deposed that on 25.04.2014
(he was working as the Duty Officer at police station
Jagat Puri. This witness got the FIR Ex.PV,^3/C
registered through a computer operator. He proved the
kayami recorded vide DD no. 45A and his endorsement
on the rukka as Ex.PW9/A. He proved the copy of
certificate under section 65 B of Indian Evidence Act as
Ex.PW9/B.

20. PW10-HC Satpal Singh was working as MHC (M) at
police station Jagat Puri and he proved the relevant
entries in Register No.l9 regarding deposit of samples
and case property of the prosecutrix and the accused at
police station malkhana as Ex.PWlO/A and Ex.PWlO/B.
He deposed that on 29.04.2014 he sent two sealed
pullandas alongwith two sample seals to FSL Rohini
through Ct. Ram Sagar vide RC no. 36/21/14
(Ex.PWlO/C) and the copy of the acknowledgement of
the FSL authorities in that regard is Ex.PW10/D.

24. PW13-Constable Ram Sagar deposed that on
29.04.2014 the MHC (M) handed over two sealed
pullandas alongwith the sample seal to him for
depositing the same at the FSL at Rohini. This witness
went to FSL, Rohini and deposited the same and
obtained the acknowledgement receipt from the FSL

CRL.A 378/17 Page 21 of 43
authorities which he further handed over to the
MHC(M).

25. PW14-Dr. Natasha Gupta deposed that X-ray report
no. 2975 dated 05.05.2014 regarding bone age of the
prosecutrix is in the handwriting of Dr. Priyanka who
was working as a Senior Resident, Radiology at GTB
Hospital but has now left the services of the hospital.
This witness further deposed that she had seen Dr.
Priyanka signing and writing during the course of her
official course of duties. This witness deposed that as per
the report, bone age of the prosecutrix was more than 18
years as on 05.05.2014.

26. PW15-Dr. P. K. Phukan, Casualty Medical officer,
GTB Hospital proved the Emergency Registration Card
dated 05.05.2014 regarding examination of the
prosecutrix as EX.PW15/A. He deposed that as per the
said Emergency Registration Card, the prosecutrix was
referred to the Radiological Department for opinion
regarding her bone age. The Emergency Registration
Card was in the handwriting of Dr. Fahad Khan and he
had seen him signing and writing during the official
course of his duties.

27. PW16-SI Pooja Saraswat is the Investigating Officer
of this case. She deposed that on 25.04.2014 she had
recorded the statement of the prosecutrix. The
prosecutrix was counseled by a representative of NGO
who had also recorded the statement EX.PW12/A of the
prosecutrix. She got the present FIR registered. The
prosecutrix was got medically examined at LBS Hospital.
The statement of the prosecutrix under
section 164
Cr.P.C. was got so No.1508/2016 State vs. Billo page 13
of 30 recorded. The accused was taken in custody vide
arrest memo EX.PW6/A and his personal search vide
Ex.PW6/B was conducted. The disclosure statement of
the accused Ex.PW16/B was recorded. Samples collected

CRL.A 378/17 Page 22 of 43
from the person of the prosecutrix and the accused
alongwith the clothes of the prosecutrix were sent to
FSL, Rohihi for examination. Site plan Ex.PW16/C of
the place of occurrence was got prepared on 30.04.2014.
On 05.05.2014 the bone age test of the prosecutrix was
got conducted. After completion of investigation, she filed
the chargesheet before the court. This witness has also
filed the FSL report Ex.PW16/D in the court.”

24. Through his statement recorded under Section 313 of the Code
of Criminal Procedure, 1973, the accused, i.e., the appellant stated that
he never asked PW-5 as to whether or not to take the prosecutrix with
her to the houses of others for domestic work and denied the
allegations of rape committed by him on the prosecutrix and also
denied that he had threatened to kill her and rather stated that he was
not present in the house on 17.04.2014 and 18.04.2014 during the day
time as he comes back to the house during late night hours as he had
gone out for his work of POP at Amrapali Zordic, Sector-119,
NOIDA. The accused inter alia through his statement under
Section
313 Code of Criminal Procedure, 1973 apart from denying the
incriminating evidence led against him stated that the witnesses cited
are interested witnesses and he was having a matrimonial dispute with
his wife and stated that he did not have any relation with his elder
daughter as she had run away with a boy without information and
stated that the prosecutrix had falsely implicated him at the instance of
his wife and his daughter and his wife wanted to send him to jail but
could not succeed. Though an opportunity was sought by the accused
i.e. the appellant herein to lead defence evidence but no such defence
evidence was led by him.

CRL.A 378/17 Page 23 of 43

25. On a consideration of the entire available record and the
submissions that have been made on behalf of either side, it is
essential to observe that the testimonies of PW3 and PW11, the
statement under
Section 164 of the Code of Criminal Procedure, 1973
of the prosecutrix and the testimony recorded of the prosecutrix in
Court and the averments made in the FIR in question bring forth that
there is a categorical consistency in relation to the commission of rape
of the prosecutrix by the accused on 17.04.2014 and 18.04.2014.
Undoubtedly as observed elsewhere hereinabove, the allegations in
relation to the mode of occurrence however, the statement which
forms the basis of the FIR and the testimony and witnesses are both
identical in relation to the material particulars that the prosecutrix
washed her clothes after the incident and thus the same brings forth
that there could be no semen stains on the clothes of the prosecutrix.

26. Though, no injuries were found on the person of the prosecutrix
as per the MLC Ex.PW1/A and there was no discharge or bleeding
and no fresh tear, nevertheless the hymen was shown to be torn.
Significantly, the prosecutrix had stated at the time of the conducting
of the MLC that she wanted her medical test conducted and had also
stated to the doctor that the accused had committed sexual assault
upon her twice and had threatened that he would kill her if she told
about the same to anyone.

27. As per the FSL report dated 29.06.2015 Ex.PW16/D, two
sealed parcels qua FIR No. 251/14, PS Jagatpuri were received on
29.04.2014 for DNA fingerprinting and indicated that there was no

CRL.A 378/17 Page 24 of 43
semen found on any of the exhibits and thus there was no DNA
analysis conducted. It has thus been contended on behalf of the
appellant as already adverted to hereinabove that with the available
record through the variations in the testimony of the prosecutrix from
her testimony under
Section 164 of the Code of Criminal Procedure,
1973 in relation to the sequences of events and also the variations in
the testimony of PW-5 i.e. Aunt of the prosecutrix and the prosecutrix
coupled with the factum that PW-5 despite having learnt about the
stated rape committed on the prosecutrix by the accused on
17.04.2014 and 18.04.2014 also did not lodge the complaint to the
police till the date 25.04.2014 and it was thus submitted on behalf of
the accused i.e. the appellant herein that the said delay in the
registration of the FIR is thus fatal to the prosecution version. It was
also submitted on behalf of the appellant that the factum that there
were matrimonial disputes between the accused and PW-5 i.e. the
Aunt of the prosecutrix coupled with the factum that PW-5 i.e. the
Aunt of the prosecutrix had called the police several times on the
complaints made by her but as stated by the prosecutrix that the police
had never arrested the accused, coupled with the statement of the
prosecutrix that the lady with whom the Aunt of the prosecutrix
worked, had told her that she could get the accused/appellant herein
jailed whenever she wanted, and that she used to tell to PW-5 that she
should get the accused/appellant arrested because of the domestic
maltreatment meted out to her, it has been submitted on behalf of the
accused/appellant that the appellant had clearly been falsely
implicated in the instant case and ought to be acquitted.

CRL.A 378/17 Page 25 of 43

28. On behalf of the State, the learned Additional Public Prosecutor
for the State vehemently refuted the contentions raised on behalf of
the appellant and contended that the testimony of the prosecutrix was
consistent in relation to the material particulars in relation to the rape
committed on her twice forcibly by the accused and of the threats
meted out to her in the event of her making any complaint to anyone
of the incidents of rape committed upon her by the accused. It is also
contended on behalf of the State that the medical examination of the
prosecutrix was conducted only on 25.04.2014 in relation to the
incident of rape on 17.04.2014 and 18.04.2014 and thus as the
prosecutrix had stated that she had washed her clothes after the
incident, thus there was no possibility of any semen and thus the
absence of any semen found in the report of the FSL did not in any
manner suffice to detract from the veracity of the allegations leveled
against the accused.

29. It was also submitted on behalf of the State that the delay in the
registration of the FIR in the instant case was clearly understandable,
taking into account the factum that the accused was the spouse of
PW-5 i.e. Aunt (Y) of the prosecutrix and thus there was delay in the
registration of the FIR.

30. Another contention raised on behalf of the appellant was that
the uncorroborated testimony of the prosecutrix in the facts and
circumstances of the instant case did not suffice to bring forth the
allegations levelled against the appellant herein beyond a reasonable
doubt qua the charge of allegations in the instant case against the

CRL.A 378/17 Page 26 of 43
accused/appellant herein qua the commission of the offence
punishable under
Section 376(2)(f) Section 376(2)(n) of the Indian
Penal Code, 1860 apart from charge of allegations qua the offence
punishable under
Section 506 of the Indian Penal Code, 1860.

31. On a consideration of the entire available record and rival
submissions made on behalf of either side it is held that there is no
infirmity in the impugned judgment of the learned Trial Court
inasmuch as, as already observed hereinabove there is an inherent
natural consistency in the testimony of the prosecutrix (P) in relation
to the occurrences of rape having been committed upon her by the
accused/appellant on 17.04.2014 and 18.04.2014. The factum that
there was a delay in the registration of the FIR which was registered
on 25.04.2014 as observed hereinabove, was rightly held to be
understandable by the learned Trial Court, taking into account the
factum that the accused/appellant herein is the husband of the
maternal aunt (Y) of the prosecutrix (P) and the prosecutrix (P) in fact
stayed at the house of the maternal aunt (Y) and that of the
accused/appellant when the offence of rape was committed upon her
by the accused/appellant herein when there was no one else at home
apart from the prosecutrix(P) and the accused/appellant herein. That
the accused was the husband of the maternal aunt (Y) of the
prosecutrix coupled with the factum that the prosecutrix was under a
threat that she would be killed if she told anyone of the commission of
rape on her by the accused/appellant, all make it apparent that the
delay in the registration of the FIR in the instant case is not fatal.

CRL.A 378/17 Page 27 of 43

32. The verdict of the Hon’ble Supreme Court in “State of Punjab
Vs. Gurmit Singh” AIR 1996 SC 1393 lays down categorically that
the Courts cannot overlook the fact that in sexual offences delay in the
lodging of the FIR can be due to variety of reasons particularly the
reluctance of the prosecutrix or her family members to go to the police
and complain about the incident which concerns the reputation of the
prosecutrix and the honour of her family and it is only after giving it a
cool thought that a complaint of sexual offence is generally lodged. To
similar effect are the observations of the Hon’ble Supreme Court in
“State of Himachal Pradesh Vs. Sanjay Kumar @ Sunny” 2016
(12) SCALE 831 wherein, it has been observed to the effect:-

24. When the matter is examined in the aforesaid
perspective, which in the opinion of this Court is
the right perspective, reluctance on the part of the
prosecutrix in not narrating the incident to
anybody for a period of three years and not sharing
the same event with her mother, is clearly
understandable. We would like to extract the
following passage from the judgment of this Court
in
Tulshidas Kanolkar v. State of Goa:
“5. We shall first deal with the question of delay.
The unusual circumstances satisfactorily explained
the delay in lodging of the first information report.
In any event, delay per se is not a mitigating
circumstance for the accused when accusations of
rape are involved. Delay in lodging the first
information report cannot be used as a ritualistic
formula for discarding the prosecution case and
doubting its authenticity. It only puts the court on
guard to search for and consider if any
explanation has been offered for the delay. Once it
is offered, the court is to only see whether it is

CRL.A 378/17 Page 28 of 43
satisfactory or not. In case if the prosecution fails
to satisfactorily explain the delay and there is
possibility of embellishment or exaggeration in the
prosecution version on account of such delay, it is
a relevant factor. On the other hand, satisfactory
explanation of the delay is weighty enough to reject
the plea of false implication or vulnerability of the
prosecution case. As the factual scenario shows,
the victim was totally unaware of the catastrophe
which had befallen her. That being so, the mere
delay in lodging of the first information report does
not in any way render the prosecution version
brittle.”

25. In Karnel Singh v. State of Madhya
Pradesh[2], this Court observed that:
“7…The submission overlooks the fact that in India
women are slow and hesitant to complain of such
assaults and if the prosecutrix happens to be a
married person she will not do anything without
informing her husband. Merely because the
complaint was lodged less than promptly does not
raise the inference that the complaint was false.
The reluctance to go to the police is because of
society’s attitude towards such women; it casts
doubt and shame upon her rather than comfort
and sympathise with her. Therefore, delay in
lodging complaints in such cases does not
necessarily indicate that her version is false…”

26. Likewise, inState of Punjab v. Gurmit Singh
Ors.[3], it was observed:

“8…The courts cannot overlook the fact that in
sexual offences delay in the lodging of the FIR can
be due to variety of reasons particularly the
reluctance of the prosecutrix or her family
members to go to the police and complain about
the incident which concerns the reputation of the

CRL.A 378/17 Page 29 of 43
prosecutrix and the honour of her family. It is only
after giving it a cool thought that a complaint of
sexual offence is generally lodged…”

27. Notwithstanding the fact that the trial court
accepted the explanation for delay as satisfactory
by giving detailed reasons, we are dismayed to find
that the High Court has been swayed by this delay
in reporting the matter with omnibus statement
that it is not satisfactorily explained without even
an iota of discussion on the explanation that was
offered by the prosecution in the form of
testimonies of PW-1 and PW-2.”

To similar effect is also the verdict of the Hon’ble Supreme in
“Satpal Singh Vs. State of Haryana” 2010 (7) SCALE 322 wherein,
it has been observed to the effect:-

13. 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.
(Vide Karnel Singh Vs. State of M.P. AIR 1995 SC
2472; and State of Punjab Vs. Gurmeet Singh
Ors. AIR 1996 SC 1393).

14. This Court has consistently highlighted the
reasons, objects and means of prompt lodging of
FIR. Delay in lodging FIR more often than not,
results in embellishment and exaggeration, which
is a creature of an afterthought. A delayed report
not only gets bereft of the advantage of
spontaneity, the danger of the introduction of a

CRL.A 378/17 Page 30 of 43
coloured version, an exaggerated account of the
incident or a concocted story as a result of
deliberations and consultations, also creeps in,
casting a serious doubt on its veracity. Thus, FIR is
to be filed more promptly and if there is any delay,
the prosecution must furnish a satisfactory
explanation for the same for the reason that in
case the substratum of the evidence given by the
complainant/informant is found to be unreliable,
the prosecution case has to be rejected in its
entirety. [vide State of Andhra Pradesh Vs. M.
Madhusudhan Rao (2008) 15 SCC 582].

15. However, no straight jacket formula can be laid
down in this regard. In case of sexual offences, the
criteria may be different altogether. As honour of
the family is involved, its members have to decide
whether to take the matter to the court or not. In
such a fact-situation, near relations of the
prosecutrix may take time as to what course of
action should be adopted. Thus, delay is bound to
occur. This Court has always taken judicial notice
of the fact that “ordinarily the family of the victim
would not intend to get a stigma attached to the
victim. Delay in lodging the First Information
Report in a case of this nature is a normal
phenomenon” [vide Satyapal Vs. State of Haryana
AIR 2009 SC 2190].

16. In State of Himachal Pradesh Vs. Prem Singh
AIR 2009 SC 1010, this Court considered the issue
at length and observed as under :-

“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

CRL.A 378/17 Page 31 of 43
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.”

17. Thus, in view of the above, the delay in lodging
FIR in sexual offences has to be considered with a
different yardstick.

18. If the instant case is examined in the light of
the aforesaid settled legal proposition, we are of the
considered opinion that the delay in lodging the
FIR has been satisfactorily explained.”

33. Thus, in the instant case the delay in registration of the FIR has
been satisfactorily explained even if the aunt (Y) of the prosecutrix (P)
learnt of the commission of rape on both dates i.e. 17.04.2014
18.04.2014, taking into account the factum that she is the wife of the
accused/appellant herein, the delay of marginal number of days i.e. the
delay of 8 days approximately till the date 25.04.2014 is clearly
explained.

34. As regards the contention raised on behalf of the appellant that
there are no injuries on the person of the prosecutrix (P), which itself
negated the factum of any commission of rape on the prosecutrix (P)
by the accused/appellant herein coupled with the factum that there was
no semen detected in the exhibits i.e. the clothes of the prosecutrix (P),
it is essential to observe that the medical examination of the
prosecutrix (P) was conducted only on 25.04.2014 with the
commission of rape on the prosecutrix (P) on 17.04.2014
18.04.2014. The MLC Ex.PW1/A indicates the existence of the

CRL.A 378/17 Page 32 of 43
hymen being torn and indicates that the prosecutrix (P) did state to the
doctor who had examined her that she had been sexually assaulted by
the accused/appellant twice and that he had threatened to kill her if she
told anyone of the same and the MLC also indicates that despite the
same the prosecutrix wanted to get herself examined, and it cannot
also be overlooked that the prosecutrix (P) in her testimony stated that
after the incidents of rape she had bathed, coupled with the factum that
in view of the FIR having been registered on 25.04.2014, the medical
examination of the prosecutrix on 25.04.2014 could thus not bring
forth the fresh injuries on her person and could have thus also not
assisted in bringing forth the existence of any semen on any of the
clothes that were worn by the prosecutrix (P) at the time of the
medical examination. Thus, the absence of any injury and the absence
of semen on the clothes of the prosecutrix (P) does not in any manner
suffice to detract the veracity of the testimony of the prosecutrix (P)
which in the facts and circumstances of the instant case does not
require any corroboration whatsoever. The verdict of the Hon’ble
Supreme Court in “Radhu Vs. State of Madhya Pradesh”2007
CRL. L.J. 4704 categorically lays down to the effect:-

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,

CRL.A 378/17 Page 33 of 43
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 absence of
injuries on the private parts of the victim will not by
itself falsify the case of rape, nor construed as
evidence of consent. Similarly, the opinion of a doctor
that there was no evidence of any sexual intercourse
or rape, may not be sufficient to disbelieve the
accusation of rape by the victim. Bruises, abrasions
and scratches on the victim especially on the
forearms, writs, face, breast, thighs and back are
indicative of struggle and will support the allegation
of sexual assault. The courts should, at the same time,
bear in mind that false charges of rape are not
uncommon. There have also been rare instances
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.”

35. Undoubtedly, the testimony of the prosecutrix which is the sole
testimony to be considered has to be one which inspires confidence
and as observed hereinabove in the instant case, the available record
brings forth a consistency in relation to all material particulars qua the
commission of the offence. It has been laid down by the Hon’ble
Supreme Court in “
Narinder Kumar V. State (NCT of Delhi) in
Crl. Appeal Nos. 2066-67 of 2009 which observed to the effect:-

“16. It is a settled legal proposition that once the
statement of prosecutrix inspires confidence and is
accepted by the court as such, conviction can be
based only on the solitary evidence of the

CRL.A 378/17 Page 34 of 43
prosecutrix and no corroboration would be
required unless there are compelling reasons
which necessitate the court for corroboration of
her statement. Corroboration of testimony of the
prosecutrix as a condition for judicial reliance is
not a requirement of law but a guidance of
prudence under the given facts and circumstances.
Minor contradictions or insignificant discrepancies
should not be a ground for throwing out an
otherwise reliable prosecution case. A prosecutrix
complaining of having been a victim of the offence
of rape is not an accomplice after the crime. Her
testimony has to be appreciated on the principle of
probabilities just as the testimony of any other
witness; a high degree of probability having been
shown to exist in view of the subject matter being a
criminal charge. However, if the court finds it
difficult to accept the version of the prosecutrix on
its face value, it may search for evidence, direct or
substantial, which may lend assurance to her
testimony. (Vide:
Vimal Suresh Kamble v.
Chaluverapinake Apal S.P. Anr., AIR 2003 SC
818; and
Vishnu v. State of Maharashtra, AIR
2006 SC 508).

20. In Tameezuddin @ Tammu v. State (NCT of
Delhi), (2009) 15 SCC 566, this Court held has
under:

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

36. The verdict of the Hon’ble Supreme Court in “Ranjit Hazarika

CRL.A 378/17 Page 35 of 43
Vs. State of Assam (1998) 8 SCC 635, wherein it has been observed
to the effect:-

8. The observations in Gurmit Singh’s case were
reiterated in
Ranjit Hazarika vs. State of Assam(1998)
8 SCC 635 in the following terms: “The courts must,
while evaluating evidence, remain alive to the fact that
in a case of rape, no self-respecting woman would
come forward in a court just to make a humiliating
statement against her honour such as is involved in
the commission of rape on her. In cases involving
sexual molestation, supposed considerations which
have no material effect on the veracity of the
prosecution case or even discrepancies in the
statement of the prosecutrix should not, unless the
discrepancies are such which are of fatal nature, be
allowed to throw out an otherwise reliable prosecution
case. The inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are
factors which the courts should not overlook. The
testimony of the victim in such cases is vital and
unless there are compelling reasons which necessitate
looking for corroboration of her statement, the courts
should find no difficulty to act on the testimony of a
victim of sexual assault alone to convict an accused
where her testimony inspires confidence and is found
to be reliable. Seeking corroboration of her statement
before relying upon the same, as a rule, in such cases
amounts to adding insult to injury. Why should the
evidence of a girl or a woman who complains of rape
or sexual molestation be viewed with doubt, disbelief
or suspicion? The court while appreciating the
evidence of a prosecutrix may look for some
assurance of her statement to satisfy its judicial
conscience, since she is a witness who is interested in
the outcome of the charge leveled by her, but there is
no requirement of law to insist upon corroboration of
her statement to base conviction of an accused. The

CRL.A 378/17 Page 36 of 43
evidence of a victim of sexual assault stands almost on
a par with the evidence of an injured witness and to
an extent is even more reliable. Just as a witness who
has sustained some injury in the occurrence, which is
not found to be selfinflicted, is considered to be a good
witness in the sense that he is least likely to shield the
real culprit, the evidence of a victim of a sexual
offence is entitled to great weight, absence of
corroboration notwithstanding. Corroborative
evidence is not an imperative component of judicial
credence in every case of rape. Corroboration as a
condition for judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a guidance
of prudence under given circumstances. It must not be
overlooked 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 and it is improper and
undesirable to test her evidence with a certain amount
of suspicion, treating her as if she were an
accomplice. Inferences have to be drawn from a given
set of facts and circumstances with realistic diversity
and not dead uniformity lest that type of rigidity in the
shape of rule of law is introduced through a new form
of testimonial tyranny making justice a casualty.
Courts cannot cling to a fossil formula and insist
upon corroboration even if, taken as a whole, the case
spoken of by the victim of sex crime strikes the judicial
mind as probable.”

37. The verdict of the Hon’ble Supreme Court in “Mohammad Ali
@ Guddu Vs. State of U.P.”2015 Cr;.L.J. 1967 also lays down to
the effect:-

“that the sole testimony of the prosecutrix if it is
umimpeachable and beyond reproach can certainly
result into a conviction and that the grammar of law
permits the testimony of the prosecutrix to be accepted

CRL.A 378/17 Page 37 of 43
without any corroboration without material
particulars, for she has to be placed on a higher
pedestal than an injured witness, but, a pregnant one,
when a Court on studied scrutiny of the evidence finds
it difficult to accept the version of the prosecutrix,
because it is not unreproachable, there is requirement
for search of such direct or circumstantial evidence
which would lend assurance to her testimony and
where the testimony of the prosecutrix does not
inspire confidence and the circumstantial evidence
remotely do not lend support to the same, the
conviction of the accused on the basis of the same will
be erroneous.”

38. As observed hereinabove, there is no inconsistency in the
testimony of the prosecutrix in relation to all material particulars of
the commission of rape on her both on 17.04.20014 18.04.2014 by
the accused/appellant herein. The accused/appellant being a relative of
the prosecutrix (P) with the prosecutrix (P) having been living at his
house, coupled with the factum of repeated rape having been
committed on her by the accused/appellant herein inasmuch as she
was raped twice, the presumption under
Section 114 (A) of the Indian
Evidence Act, 1872 squarely applies to the facts and circumstances of
the instant case, wherein it has been provided as follows:-

“114A. Presumption as to absence of consent in
certain prosecutions for rape.–In a prosecution
for rape under clause

(a) or clause (b) or clause (c) or clause (d) or
clause (e) or clause (g) of sub-section (2) of
section 376 of the Indian Penal Code, (45 of
1860), where sexual intercourse by the accused is

CRL.A 378/17 Page 38 of 43
proved and the question is whether it was without
the consent of the woman alleged to have been
raped and she states in her evidence before the
Court that she did not consent, the Court shall
presume that she did not consent.

39. This is so inasmuch as Section 376(2)(f) of the Indian Penal
Code, 1860, which provides as follows:-

“Whoever being a relative, guardian or teacher, of, or
a person in a position of trust or authority towards the
woman, commits rape on such woman shall be
punished with rigorous imprisonment for a term
which shall not be less than ten years, but which may
extend to imprisonment for life, which shall mean
imprisonment for the remainder of that persons’
natural life, and shall also be liable to fine.”

and Section 376(2)(n) of the Indian Penal Code, 1860, which provides
as follows:-

“Whoever commits rape repeatedly on the same
woman shall be punished with rigorous imprisonment
for a term which shall not be less than ten years, but
which may extend to imprisonment for life, which
shall mean imprisonment for the remainder of that
person’s natural life, and shall also be liable to fine.”,
both wholly apply to the facts and circumstances of the instant case.

40. The testimony of the prosecutrix is categorical that she was
threatened by the accused/appellant herein that she would be killed if
she made any complaint to anyone or told anyone about the
commission of the rape on her by the accused/appellant.

41. Thus, as observed hereinabove, there is no infirmity in the

CRL.A 378/17 Page 39 of 43
impugned judgment of the learned Trial Court dated 23.12.2016
whereby the appellant was convicted for the commission of offences
punishable under
Section 376(2)(f) Section 376(2)(n) of the Indian
Penal Code, 1860 and
Section 506 of the Indian Penal Code, 1860. In
the facts and circumstances of the instant case, taking into account the
factum that the prosecutrix is a relative of the wife of the
accused/appellant herein and the prosecutrix was thus living in the
house of the accused on the basis of trust of the relationship between
the prosecutrix (P), her maternal aunt (Y) and the accused/appellant
herein, the appellant herein merits no leniency of any kind whatsoever.

42. The impugned order on sentence indicates that a
recommendation had been made vide the impugned order on sentence
dated 26.12.2016 to the Delhi Legal Services Authority to determine
and award appropriate compensation to the victim/prosecutrix herein
in accordance with the provisions of
Section 357A of the Cr.P.C. and
the scheme, in relation to which the report is called for from the
Member Secretary, Delhi Legal Services Authority for the date
30.01.2019.

43. The impugned order on sentence dated 26.12.2016 which has
sentenced the convict i.e. the appellant herein to undergo Rigorous
Imprisonment for a period of 10 years both qua the offences
punishable under
Section 376(2)(f) Section 376(2)(n) of the Indian
Penal Code, 1860 with the payment of a fine of Rs.3,000/- qua each of
the offences and in default of the payment of the said fine to undergo
Simple Imprisonment for a period of 30 days with Rigorous

CRL.A 378/17 Page 40 of 43
Imprisonment sentenced for a period of one year qua the offence
punishable under
Section 506 of the Indian Penal Code, 1860 which
have all been directed to run concurrently with the benefit of
Section
428 of the Cr.P.C., also is thus upheld and calls for no variation or
reduction.

44. However, in terms of the verdict of Supreme Court in Phul
Singh Vs. State of Haryana in Criminal Appeal No. 506/1979
decided on 10.09.1979 and directions laid down by us in
Sanjay vs.
State 2017 III AD (Delhi) 24¸ dated 20.02.2017 so that the “carceral
period reforms the convict” and in Randhir
@ Malang vs. State Crl. A. No. 456/2017, Chattu Lal vs. State Crl.A.
No.524/
2017, Afzal vs. State (Govt. of NCT of Delhi) Crl.A.
No.996/2016 it is essential that the following directives detailed
hereunder are given so that the sentence acts as a deterrent and is
simultaneously reformative with a prospect of rehabilitation.

45. The concerned Superintendent at the Tihar Jail, New Delhi
where the appellant shall be incarcerated for the remainder of the term
of imprisonment as hereinabove directed shall consider an appropriate
programme for the appellant ensuring, if feasible:

 appropriate correctional courses through
meditational therapy;

 educational opportunity, vocational training and skill
development programme to enable a livelihood option
and an occupational status;

CRL.A 378/17 Page 41 of 43

 shaping of post release rehabilitation programme for
the appellant well in advance before the date of his
release to make him self-dependent,

 ensuring in terms of Chapter 22 clause 22.22 (II)
Model Prison Manual 2016, protection of the appellant
from getting associated with anti – social groups,
agencies of moral hazards (like gambling dens, drinking
places and brothels) and with demoralised and deprived
persons;

 adequate counselling being provided to the appellant
to be sensitized to understand why he is in prison;

 conducting of Psychometric tests to measure the
reformation taking place and;

 that the appellant may be allowed to keep contact
with his family members as per the Jail rules and in
accordance with the Model Prison Manual.

46. Furthermore, it is directed that a Bi-annual report is submitted
by the Superintendent, Tihar Jail, New Delhi to this Court till the date
of release, of the measures being adopted for reformation and
rehabilitation of the appellant.

47. The present appeal is thus dismissed.

48. Copy of this judgment be also sent to the Principal Secretary,
Delhi State Legal Services Authority, through a Special Messenger for
the said compliance and be also sent to the Superintendent, Central
Jail, Tihar, for being handed over and explained to the appellant, the
Director General, Prisons, Delhi and to the Secretary, Law, Justice and

CRL.A 378/17 Page 42 of 43
Legislative Affairs, GNCTD, Delhi to ensure compliance of the above
directions.

49. The Trial Court Record be returned with the certified copy of
this judgment.

ANU MALHOTRA, J

DECEMBER 05, 2018
NC

CRL.A 378/17 Page 43 of 43

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