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Mohd.Chand vs State (Govt. Of Nct Of Delhi) on 4 July, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: July 4, 2019

+ CRL.A. 87/2010

MOHD.CHAND ….. Appellant
Through: Ms. Sindhu Sinha, Advocate.

versus

STATE (GOVT. OF NCT OF DELHI) ….. Respondent
Through: Mr. G.M.Farooqui, APP for the
State.

CORAM:
HON’BLE MR. JUSTICE A.K.CHAWLA

JUDGMENT

A.K. CHAWLA, J.

By the instant regular appeal under Section 374 Cr.P.C., the
appellant, who is convicted of the offences under Section 376/Section506 IPC
and sentenced to undergo 7 years RI for the offence under Section 376
IPC besides fine of Rs.5,000/- in default to undergo 3 months SI for the
offence under Section 376 IPC, assails the impugned judgment of
conviction dated 08.12.2009 and order of sentence dated 19.12.2009
passed by the learned ASJ, District- South. Here itself, it may be noted
that though the appellant is also convicted of the offence under Section

CRL. A. 87/2010 Page 1 of 12
506 SectionIPC, no separate sentence for the commission of the said offence,
has been awarded by the Trial Court.

2. The Trial Court conducted the trial for the commission of the
offences under Section 376 and Section506 IPC by the appellant on the
allegations that on 27.09.2007, at about 7.15 P.M., at House No.303,
Gali No.5, Khatte Wali Gali, Subhash Camp, Dakshin Puri, New Delhi,
the appellant committed rape on the prosecutrix and thereafter
threatened to kill her, in the event, she disclosed about the incident to
anyone. As per the FIR, on the 7th day of Ramzan in the year 2007, on
27.09.2007, at about 7.15 P.M., the prosecutrix, aged about 14 years,
had gone to the house of her Nani (maternal grandmother), who used to
live in the house in the backside of their house and there, her Nani
informing her that she was to go for fetching vegetables and that she –
the prosecutrix should watch TV sitting there, went to the first floor of
the house with the cup of tea and in short time, the prosecutrix’s mamu
Chand – the appellant came in. On entering, he is said to have put on the
latch from inside and immediately closing the prosecutrix mouth, made
her lie on the bed and removing his own pants and underwear, proceeded
to untie the nara (cord) and removing her salwar, committed rape on her.
After the incident, the appellant is said to have threatened the
prosecutrix to kill her if she informed of the incident either to her
mother or anyone else. In the FIR, which came to be registered on the
statement of the prosecutrix on 31.10.2007, it was also stated that on
account of fear she returned back home at about 8 P.M. and on so
reaching the house, she narrated the entire incident to her mother. On

CRL. A. 87/2010 Page 2 of 12
this, as per the contents of the FIR, the mother of the prosecutrix is said
to have informed of the incident to the Nani of the prosecutrix and on
that, Nani having scolded the appellant, assured the mother of the
prosecutrix that they would now get the appellant married to the
prosecutrix, to which the mother of the prosecutrix consented. In that
direction, as per the FIR, three dates for marriage also came to be fixed
and on 22.10.2007, when Nani told them that they would not marry the
appellant with the prosecutrix, having discussed with the parents, the
prosecutrix came to the police station on 31.10.2007 and on her
statement, the FIR came to be registered the same day. On the
conclusion of the investigations, charge sheet came to be filed for the
trial of the offences under Section 376/Section506 IPC and charges came to be
framed to that effect. Prosecution in support of its case, examined PW1
Ms.Shama Parveen – the mother of the prosecutrix; PW2 Feroz Khan –
the father of the prosecutrix; PW3 – the prosecutrix; PW4 Dr.Rehan
Nabi Khan; PW5 Dr.Shilpa Singhla; PW6 Head Constable Rambir
Singh, PW7 Head Contable Hans Ras; PW8 Contable Komal; PW9
Constable Ombir Singh; PW10 Constable Devender; and; PW11
Inspector Sanghmitra and closed PE. Incriminating evidence was put to
the appellant under Section 313 Cr.P.C. In the statement so recorded,
the appellant stated that his mother had told the mother of the
prosecutrix to marry her, in case, the allegations were correct and in
view of the fact that the allegations were false, the mother of the
appellant declined his marriage with the prosecutrix. In his such
statement, the appellant also stated that the prosecutrix was the daughter
of his paternal aunt and thereby, his niece in relation and that he was

CRL. A. 87/2010 Page 3 of 12
falsely implicated at the instance of his Khala (Mausi) Ms.Jahan Ara,
with whom, they were not having good relations. No evidence however
came to be led by the appellant in his defence. The Trial Court returned
the findings of commission of both the offences by the appellant and
passed the impugned order on sentence. Aggrieved thereof, the appellant
has preferred the appeal in hand.

3. The appellant assails the impugned judgment of conviction and
the order on sentence on the grounds viz. delay of more than one month
in registration of FIR; depositions of PW1-the mother of the prosecutrix;
PW2-the father of the prosecutrix and the prosecutrix PW3 being full of
discrepancies, contradictions and not reliable; depositions of PW1 to
PW3 being uncorroborated; and, the Trial Court failed to appreciate the
evidence in the right perspective.

4. In the submissions of Ms. Sinha, ld. counsel for the appellant, the
story put forth by the prosecution was improbable and the evidence led
in any case was not sufficient to prove the charge levied against the
appellant. It was contended that the evidence led by the prosecution was
not at all reliable on account of inconsistencies and contradictions in the
depositions of the material prosecution witnesses besides being
uncorroborated by independent and scientific evidence. It was also
contended that the appellant by himself, as per the conclusions drawn by
this Court vide its order dated 21.02.2013 on the issue agitated as
regards his juvenility, as on the date of the subject incident, was aged
about 18 years only and it was improbable that he would have forced
himself on the prosecutrix. In her submissions, a concocted story was

CRL. A. 87/2010 Page 4 of 12
created to falsely implicate the appellant at the instance of a close
relation with whom the appellant and his family members were not
having good relations. In support of such submissions reliance was
placed upon SectionRadhu vs. State of Madhya Pradesh, (2007) 12 SCC 57,
SectionTameezuddin Alias Tammu vs. State (NCT of Delhi), (2009) 15 SCC
566 and SectionMunna vs. State of Madhya Pradesh, (2014) 10 SCC 254.

5. Mr. Farooqui, ld. APP for the State on his part however contended
that the depositions of the prosecutrix and her parents were unshaken
and squarely connect the appellant to the commission of the offence of
which he has been found guilty by the Trial Court. In his submissions,
the prosecutrix and her parents were illiterate and the discrepancies or
the inconsistencies in their depositions are not such which would have
the effect of belying their depositions. It was also contended that there
were catena of judgments which would go to show that even the sole
deposition of the victim of rape was sufficient, without the necessity of
any corroborative evidence, to return a finding of conviction. In his
submissions therefore the impugned judgment and the order on sentence
did not call for any interference.

6. The observations of the Trial Court in returning findings of
conviction appear in para 20 of the impugned judgment, which are as
under:

“20. In the present case, the victim was a minor as
per the deposition of both PW1 and PW2, her parents,
though without any other proof. As regards the
ossification test carried out, same has not been placed

CRL. A. 87/2010 Page 5 of 12
on record, though as per the prosecution case bone x-
ray was taken, report thereof has not been placed on
record. There is sufficient evidence in the form of
testimony of both the parents of the victim, as well as the
victim herself, that she was a minor as on the date of the
incident, was in the house of the accused and so
probably not in a position to give any resistance to the
accused, after about one month of the incident as she
was medically examined on 31.10.2007 and hence it was
not expected that injury marks, if any, on the body of the
victim, could have been observed in the medical
examination of the victim, after so much time gap. As
per medical examination of the victim vide MLC Ex.
PW5/A, rape as such is not ruled out and PW5 Dr.Shilpa
Singla had stated in cross examination that it is not
possible to tell exactly when the last intercourse
happened. Victim while deposing as PW3 deposed that
she was threatened by the accused that in case she
disclosed the incident to her parents, she will be killed
by him. Accused in his statement u/s 313 SectionCr.P.C. stated
that mother of the victim, following him, had gone to the
house of her sister Imrana, where he was having dinner
and made allegations of victim having been raped by
him. Accused also stated that his mother also followed
the mother of the victim at the house of Imrana. Thus,
the incident as such cannot be stated to be false and the
delay in making the FIR is reasonably explained since
both the accused and victim were the close relatives and
mother of the accused had promised to marry the
accused with the victim and that is not fatal to the case
of the prosecution.”

1.

7. But for the foregoing lackadaisical observations, the impugned
judgment of conviction does not reflect any serious advertence to the
prosecution case and the evidence that came to be led to prove the
charge of commission of rape by the appellant. It is a matter of record

CRL. A. 87/2010 Page 6 of 12
that but for the prosecutrix and her parents, no independent witness
came to be examined. It is also a matter of record that no scientific
evidence of any kind, which could connect or indicate involvement of
the appellant in the commission of the offence, has come to be led by the
prosecution. Though, the prosecution seeks to explain the delay in
lodging the complaint after more than a month of the alleged incident on
the premise of assurance extended by Nani of the prosecutrix to get the
appellant married, failure of the Investigating Officer to seize any of the
clothes of either the victim or the assailant and/or the bed-sheet, where
the crime is said to have been committed, more so in the absence of any
explanation, cannot be ignored lightly in the given facts and
circumstances. The only deposition of Doctor PW5, who medically
examined the prosecutrix after more than a month of the alleged incident
having found the hymen ruptured, during cross, explained that she could
not tell, if, the hymen was fresh or old torn, could be of some
corroborative value, if, the other evidence on record was found to be
trustworthy and believable. It thus follows that in the given case, the
Trial Court was required to consider and ponder upon the prosecution’s
story with which it came to the Court and the evidence it adduced, but
that does not surface from the impugned judgment.

8. FIR came to be registered on the statement of the prosecutrix,
who, as per the complaint Ex. PW11/A was of 14 years of age. Was she
actually of 14 years or thereabout, a bare perusal of the observation
made by the Trial Court would show that no cogent evidence was
adduced to prove or even effectively indicate that the prosecutrix was of

CRL. A. 87/2010 Page 7 of 12
14 years or thereabout at the time of the alleged incident. Prosecutrix,
who appeared as PW3, by herself did not utter even a word as regards
her age, either at the time of entering into the witness box or in her
deposition. It is only in the oral depositions of her mother PW1 and
father PW2, her age come to be stated to be about 15 years without
disclosing any basis thereof. In the given case, the age of the prosecutrix
gets relevant in view of the fact that on inquiry conducted as regards the
juvenility of the appellant, he was found to be aged about 18 years only
and the prosecution case but for the allegations of rape does not state for
any injury having been sustained by the prosecutrix or any of her clothes
having been torn, to even reflect any resistance put forth by her against
the alleged forceful act committed upon her against her wishes much
less any attempt made by her to even run away. Suffice to say, there is
also no evidence on record to show that the appellant was of such
physique that the prosecutrix by his appearance or other conduct got
under any fear to submit to his desire. The substantive depositions of the
prosecutrix and her parents, who appeared as PW1 to PW3, when gone
into, are found to be contradictory on material aspects besides being
improbable. The allegation of alleged threat for which the charge was
framed for the offence under Section 506 IPC is only after the alleged
commission of the offence under Section 376 IPC inasmuch as her
deposition is also to the said effect, as follows:

“Mai Apane nani ke ghar gahi thi bahut din pahli, phir
Chand aya, ushane muh dabaya aaur mere satha galat
kam kiya. Ushke bad usa nai kaha agar apane mammi-
papa sai kaha to jaan se mar doonga.”

CRL. A. 87/2010 Page 8 of 12

From her such deposition also, it is equally clear that the
incident of commission of rape was not under any threat and from the
facts and the circumstances, it cannot be deduced that the appellant put
the prosecutrix either under any fear and committed the alleged sexual
intercourse against her wish. As per the prosecution case and as per the
deposition of the prosecutrix PW3, on her return back home, she had
narrated the incident to her mother and on that, her mother had gone to
the house of her Nani, when Nani assured to get the appellant married to
the prosecutrix and on the assurance so given, they had returned back
home. During cross, PW2-the mother of the prosecutrix has deposed that
it was on the next date of the incident, they went to the house of the
mother of the appellant, who happened to be her aunt and she stated for
arranging the marriage of the accused with the prosecutrix and on that,
they came back, and, after two days thereof, they again went to their
house and ultimately after 2-3 days of the mother of the appellant telling
that they could do whatever they want, they have gone to the police and
lodged the FIR. During her cross, she has also deposed that the house of
the appellant was situated in the street behind their house. As per her
such deposition, even such promise of marriage after the incident, stood
broken within a week or so of the incident, though, as per the complaint
and the FIR, the promise or assurance of marriage was given by Nani
and not the mother of the appellant. FIR however came to be lodged
more than a month of the incident. Delay in lodging the FIR thus
remains unexplained.

CRL. A. 87/2010 Page 9 of 12

9. As for the deposition of PW2-the father of the prosecutrix, in his
examination-in-chief, he deposed that on 7th day of Ramzan in the year
2007, he was informed by his wife and the daughter that his daughter-the
prosecutrix had been raped by the appellant. During cross, he has
however deposed for having come to know of the incident after about 10
days while admitting that he used to come back to his house daily from
his work. His such deposition is highly improbable and difficult to be
believed. Not only that, in his examination-in-chief, he did not depose
for any talk or promise made by the Nani of the prosecutrix for arranging
the marriage of the appellant with the prosecutrix at any point of time.
Suffice to say, as per the complaint Ex. PW11/A, on which the FIR
Ex.PW6/A was registered, the assurance to that effect was extended by
the Nani of the prosecutrix and none else. The contradictions and
improvements in the depositions of the prosecution witnesses PW1 to
PW3, who are the victim and her parents only, in the absence of any
independent witness, when there is delay in registration of the FIR on the
purported promise of marriage, would certainly show that PW1 to PW3
were interested witnesses and their testimonies required stricter scrutiny
for being believed. Why, Nani of the prosecutrix, who, as per the
complaint Ex.PW2/A, making the prosecutrix sit in a room and watch
TV, went away to the first floor with a cup of tea telling that she was to
fetch vegetables and shortly whereafter, the alleged incident of rape took
place, though, a very material witness, having been not joined and
examined for her role, equally casts serious doubt on the veracity of the
prosecution case, with which it came before the Court.

CRL. A. 87/2010 Page 10 of 12

10. In Radhu’s case (supra) the Supreme Court reiterating the law that
a finding of guilt in a case of rape can be based on the uncorroborated
evidence of the prosecutrix and that absence of injuries on the private
part of the victim will not by itself falsify the case of rape, has equally
cautioned that the Courts, at the same time, should bear in mind that
false cases of rape are not uncommon and that there are some rare
instances where a parent has persuaded a gullible or obedient daughter to
make a false charge of rape either to take revenge or extort money or to
get rid of financial liability. Observations to the similar effect have also
come to be made by the Supreme Court in Munna’s case (supra)
wherein it is observed that if the statement of the prosecutrix had
inherent infirmities creating doubts about its veracity, the same may not
be acted upon.

11. Contradictions in the depositions of the material prosecution
witnesses i.e. PW1 to PW3; unexplained failure to examine Nani-a very
material witness, who was present at the spot before and after the
incident and was allegedly involved in talks of marriage immediately
after the incident; absence of any cogent evidence for appellant having
committed an assault of sexual intercourse against the wish of the
prosecutrix-a case, with which the prosecution came to the Court;
failure to prove the age of the prosecutrix; and, the other mitigating facts
and circumstances taken note of earlier, convince the Court to set aside
the impugned judgment and the consequent impugned order on sentence,
giving a benefit of doubt.

CRL. A. 87/2010 Page 11 of 12

12. For the foregoing reasons, the impugned judgment and the order
on sentence is set aside. Consequentially, the appellant is acquitted of
the charges. Appeal stands disposed off accordingly.

A.K. CHAWLA, J.

JULY 4, 2019
nn

CRL. A. 87/2010 Page 12 of 12

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