* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 21st March, 2017
Decided on: 17th April, 2017

+ CRL.A. 1283/2014
MAHENDER ….. Appellant
Represented by: Mr. M.L. Yadav, Adv.

versus

STATE ….. Respondent
Represented by: Mr. Hirein Sharma, APP with
SI Karamvir, PS Narela.
CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

1. Convicted for offence punishable under Section 376 IPC, Mahender
challenges the impugned judgment dated 26th March, 2014 and the order on
sentence dated 28th March, 2014 directing him to undergo rigorous
imprisonment for a period of ten years and to pay a fine of `20,000/-.

2. Assailing the conviction, learned counsel for Mahender contends that
there was delay in lodging the FIR as the alleged the incident took place on
12th February, 2011 and the FIR was lodged on 15 th February, 2011. There
was no allegation of rape in the FIR. The allegation surfaced for the first
time in the statement of the prosecutrix recorded under Section 164 Cr.P.C.
on 5th March, 2011. Thus, the allegation of rape is an afterthought. There
are contradictions with respect to the date of incident as PW-5, father of the
prosecutrix, initially stated that the alleged incident took place on 26 th
January, 2011 and later on he stated that it took place on 5 th March, 2011.
The CFSL report does not support the prosecution case as it does not link

Crl.A. 1283/2014 Page 1 of 6
Mahender with the alleged offence. As per the medical examination, no
fresh injury was found on the prosecutrix. Thus, the medical evidence also
does not support the prosecution case. It is admitted by the prosecutrix and
her family members in the cross-examination that there was previous enmity
between her father and Mahender. The defense witnesses have deposed that
the relations between the appellant and father of the prosecutrix were
inimical, fortifying that the appellant has been falsely implicated.

3. Per contra learned APP for the State submits that the testimony of
PW-1 prosecutrix coupled with the testimony of PW-2 Dr. Arti proves the
prosecution case. As per the MLC, the hymen was found to be ruptured,
thus, fortifying the factum of rape. Further from the testimony of PW-10, Dr.
P. Arioli, the age of prosecutrix stands proved and she was minor at the time
of incident. Mahender has been rightly convicted for offence punishable
under Section 376 IPC on the basis of oral evidence and the circumstantial
evidence on record and there is no infirmity in the impugned judgment of
conviction or order on sentence.

4. FIR No. 69/2011 was registered under Section 354 IPC at PS Narela
on the complaint of PW-5, father of the prosecutrix who alleged that
Mahender touched private part of PW-1, the prosecutrix, his daughter. The
prosecutrix was taken to SRHC Hospital for the medical examination.
Mahender was apprehended at the instance of father of the prosecutrix.
Statement of the prosecutrix was recorded by PW-11 Sh. Sunil Gupta,
learned Metropolitan Magistrate under Section 164 Cr.P.C. wherein she
leveled allegation of rape. Thus charge sheet was filed against Mahender for
commission of offence punishable under Section 376 IPC.

Crl.A. 1283/2014 Page 2 of 6

5. The prosecutrix who was examined as PW-1 deposed in Court that
Mahender had called her to his house and requested her to bring cigarette
and match box from the market. She brought the same and gave it to
Mahender. Thereafter, he opened her salwar by opening the nada, laid her on
the bed and forcefully did wrong act with her. By wrong act, she meant
sexual intercourse which husband generally does with his wife. Mahender
had also put his hand into her vagina. When he committed the wrong act
with her, she cried and blood was also coming out of her vagina. She further
stated that after committing rape, Mahender himself left the prosecutrix at
her house. He gave her a five rupee note. Thereafter, she narrated the
incident to her mother who in turn informed it to her father.

6. During her cross examination, the prosecutrix stated that the date of
incident was 15th February, 2011. When Mahender was committing rape
upon her, she had raised alarm. She did not sustain any injury. Blood was
oozing from her private part and her clothes were torn. When she raised
alarm, her mother and father reached there. She admitted that a quarrel had
taken place between her father and Mahender as her father used to tie cattle
outside the house of Mahender. She also admitted that the waste of cattle
was thrown in front of the house of Mahender which was objected by him.
She also admitted that her father had threatened Mahender to send him to
jail.

7. PW-5, father of the prosecutrix corroborated the version of the
prosecutrix. He stated that on 26th January, 2011, Mahender had committed
rape upon the prosecutrix. He further stated that the prosecutrix was slightly
insane from her mental capabilities. Though the learned APP got clarified
from this witness by putting leading question that the incident took place on

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12th February, 2011 but in cross-examination again he stated that the incident
occurred on 5th March, 2011 which was certainly incorrect as FIR had been
registered on 15th February, 2011. He admitted that a quarrel between
Mahender and him took place because Mahender used to tie his buffalo in
front of their house and the buffalos used to excrete dung.

8. PW-6, mother of the prosecutrix, also corroborated the version of the
prosecutrix and father of the prosecutrix. She further added that after the
prosecutrix narrated the incident to her, she narrated the same to PW-5, after
which, they had gone to the house of Mahender to inquire from him.
Mahender quarreled with them and she had sustained injuries on head and
hand and he had threatened them to burn their house. She further stated that
the prosecutrix was mentally weak. During her cross examination, she stated
that she was deposing whatever her advocate had tutored her and whatever
happened with the prosecutrix.

9. PW-2 Dr. Arti, SR Gynae SRHC Hospital, stated that on 15th
February, 2011, she had examined the prosecutrix and on local examination,
the hymen was found ruptured. However, in cross-examination, the witness
stated that the hymen ruptured was not fresh.

10. PW-7 Dr. Abhilasha, SR Gynae, BSA Hospital, stated that she had
examined the prosecutrix on 19th February, 2011. On local examination, she
found that the hymen was torn but there was no evidence of any external
injury visible over genitalia or other body parts. No scratch marks were
visible over genitalia or other body parts were visible. The MLC of the
prosecutrix was exhibited as Ex. PW-7/A.

11. PW-10 Dr. P. Arioli, CAS, Dental, SRHC Hospital, stated that she had
seen the bone age estimation report of the prosecutrix which was prepared by

Crl.A. 1283/2014 Page 4 of 6
Dr. Sahaj Chopra, Radiologist and who had left the services of the hospital.
As per the bone estimation report Ex. PW-10/A, the age of the prosecutrix
was opined to be ‘not less than 14 years and not more than 16 years.

12. The defence of Mahender is his statement under Section 313 Cr.P.C.
and evidence led is that he was falsely implicated due to enmity. DW-1 Smt.
Mukesh, daughter-in-law of Mahender, stated that it was a false case due to
previous enmities/grudges between father of the prosecutrix and Mahender.
On 12th February, 2011, she along with her husband, three children, mother-
in-law, grand mother-in-law and Mahender stayed at her house throughout
the day and nobody had gone out. She also stated that PW-5, father of the
prosecutrix, used to tie goats in front of their house and quarrel used to take
place between him and Mahender. DW-2 Sunil, son of Mahender,
corroborated the version of DW-1, Smt. Mukesh.

13. In the FIR registered by the father of the prosecutrix after 3 days of the
alleged offence, the father of the prosecutrix admitted that he discussed with
his friends and then registered FIR. Still the allegation in the FIR was of
touching the private part and not rape. In the statement of the prosecutrix
under Section 164 Cr.P.C. recorded on 5th March, 2011 i.e. after 24 days of
the alleged incident, offence of rape was alleged. In the statement under
Section 164 Cr.P.C., the prosecutrix stated that the incident was witnessed
by her brother who told it to her mother. However, the brother has neither
been cited as a witness nor deposed to by the parents. Even as per the
parents of the prosecutrix, she had low IQ. As per the defence witnesses, the
prosecutrix repeated whatever was stated by anyone else. Thus, as a rule of
prudence it would be appropriate to look for corroboration. Learned Trial
Court has used the presence of blood on the salwar of the prosecutrix as

Crl.A. 1283/2014 Page 5 of 6
corroboration. Learned Trial Court failed to notice that the salwar was
seized on 15th February, 2011 though alleged offence took place on 12th
February. There is no evidence on record to show that the salwar of the
prosecutrix seized on 15th February, 2011 was the same which she was
wearing at the time of the alleged offence. Further as per the FSL report the
blood on the salwar was not connected to Mahender.

14. As noted above, the prosecution witnesses have admitted enmity and
tutoring. Further there are material improvements from the FIR which was
also registered after deliberation. There is no corroboration to the version of
the prosecutrix either from medical evidence as the hymen was old ruptured
and as per the FSL report the blood on the salwar was not connected to the
appellant. In view of the evidence on record, it can be safely held that the
prosecution has not proved beyond reasonable doubt that Mahender
committed the offence punishable under Section 376 IPC.

15. The impugned judgment of conviction and order on sentence are set
aside. Mahender is acquitted of the charge for offence punishable under
Section 376 IPC. Superintendent, Tihar Jail is directed to release the
appellant forthwith, if not required in any other case.

16. Appeal is disposed of. Trial Court record be sent back.

17. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.

(MUKTA GUPTA)
JUDGE
APRIL 17, 2017
‘v mittal’

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