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Santosh vs State on 2 August, 2017

Judgment Reserved on: July 26, 2017
% Judgment Delivered on: August 02, 2017
+ CRL.A. No.111/2017
SANTOSH ….. Appellant
Through: Mr.M.L.Yadav, Advocate.


STATE ….. Respondent
Through: Ms.Kusum Dhalla, APP for the
State with SI Neeraj PS South



1. The appellant has filed this criminal appeal under Section 374
CrPC assailing the judgment and order on sentence dated 6 th
December, 2016 and 21st December, 2016 respectively whereby he
has been convicted for committing the offence punishable under
Section 376 IPC and sentenced to undergo RI for seven year with fine
of ₹30,000/- and in default of payment of fine, to undergo RI for one-
and-a-half year.

2. In brief, the case of prosecution is that on 16th September, 2013
at about 6.50 am, DD No.12-A was recorded at PS South Rohini about
a wireless message being received that the Contractor (thekedar) had
done ‘galat kaam’ during night time with the wife of the informant.
The DD was assigned to SI Ravi for necessary action. SI Ravi reached

CRL.A. No.111/2017 Page 1 of 18
the spot and inquired about the incident. Thereafter he apprised the
SHO who sent W/SI Khushboo alongwith W/Ct.Mukesh to the spot.
W/SI Khushboo recorded the statement of prosecutrix/complainant
‘G’ (name withheld to conceal her identity) and sent the rukka for
registration of FIR. Crime team was also called at the spot and
prosecutrix was sent to Baba Saheb Ambedkar hospital for medical

3. On the basis of the statement Ex.PW11/A made by the
prosecutrix ‘G’, case FIR No.269/2013 under Section 376 IPC was
registered at PS South Rohini. Appellant/convict was arrested on the
same day and also got medically examined at the same hospital.
Statement under Section 164 CrPC Ex.PW11/B was also recorded by
the learned Magistrate on the same day i.e. on 16th September, 2013
when the complainant was produced for getting her statement under
Section 164 CrPC.

4. The crime team inspected the spot and the bedding on which the
rape was committed was also seized. After completion of
investigation, the appellant was sent for facing trial for committing the
offence punishable under Section 376 IPC.

5. The appellant pleaded not guilty to the charge and claimed trial.
The prosecution has examined 18 witnesses in all to prove its case.
During examination under Section 313 CrPC, the appellant admitted
having physical relations with the complainant but pleaded that it was
with consent. He also stated about having dispute with the husband of
the prosecutrix over payment of wages to thirty labours engaged by
her husband who wanted their payment not through the husband of the

CRL.A. No.111/2017 Page 2 of 18
prosecutrix but directly from him. He has also examined one witness
namely Sh.Ballabh Prasad Yadav (DW-1) who was residing close to
the jhuggi, of the prosecutrix to prove the distance of the jhuggi of the
prosecutrix from the toilet and also from the place of occurrence
through photographs Ex.PW11/D1 to Ex.PW11/D11 so as to rule out
the possibility of she being forcibly taken by him from near the toilet.

6. On the basis of evidence adduced and material placed on record
by the prosecution, the learned Trial Court, vide impugned judgment
and order on sentence, convicted and sentenced the appellant for
committing the offence punishable under Section 376 IPC for the
following reasons:-

(i) The prosecutrix and her husband both have denied that she was
having any affair with the appellant. No evidence was led in defence
to prove the affair between the two.

(ii) The contradiction in the testimony of the prosecutrix and her
husband as to whether the husband reached the place of occurrence on
hearing her cries or she informed him about the incident after
returning to her jhuggi, does not change the core of the offence. In
both the cases unwillingness of the prosecutrix is evident as she
informed her husband immediately after the incident.

(iii) Failure of the prosecutrix to raise alarm immediately on coming
out cannot go against her in view of the social and cultural reality of
the stigma attached to the victim of rape.

(iv) Delay in reporting the matter was also not considered having
any adverse effect on the trustworthiness of the prosecutrix and her

CRL.A. No.111/2017 Page 3 of 18
husband as stigma attached to the victim and the range of emotions
including anger, shame and guilt may cause delay.

7. Mr.M.L.Yadav, learned counsel for the appellant has submitted
that the prosecutrix was an adult married lady. Her MLC shows that
she has not suffered any injury on any part of the body. She did not
raise any alarm when she was allegedly dragged to the vacant room
where the offence was committed. From the photographs Ex.P1 to P5
placed on record by the prosecution and photographs Ex.PW11/D1 to
PW11/D11 placed on record by the defence, it is proved that the place
of occurrence was an under construction site and the room where the
offence was stated to have been committed, was also under
construction. It is also proved that the distance between the jhuggi of
the prosecutrix and the toilet is just a few paces. Learned counsel for
the appellant has further submitted that had she not being a consenting
party, the alarm raised by the prosecutrix would have been heard by
all the labourers residing in the jhuggi close to the place of occurrence.
DW-1 has proved that he was sleeping outside his jhuggi even on that
night. He has not heard any cries or alarm raised by the prosecutrix
which could have been only in case of consensual sex and not rape.
Learned counsel for the appellant has submitted that under pressure of
her husband, false allegation of rape was leveled against the appellant.

8. Ms.Kusum Dhalla, APP for the State has submitted that there is
ample material in the form of oral and documentary evidence against
the appellant. It has been submitted that minor contradictions in the
testimony of the prosecutrix and her husband is not fatal and that as
the police was informed at about 7.00 am i.e. after a few hours from

CRL.A. No.111/2017 Page 4 of 18
the time of occurrence, there is hardly any delay in reporting the
matter to the police as in a case of rape the honour of the family is
involved and there is always some kind of deliberations as to whether
the matter should be reported to the police. The evidence of the
prosecutrix (PW-11) is very clear and cogent who stated that appellant
had raped her and when her husband came on hearing her cries, the
appellant fled away from the spot by jumping through the window.
Learned APP has further submitted that sole testimony of the victim of
rape is sufficient to base conviction and in the instant case her
testimony is trustworthy. The appellant has admitted that he had
physical relations with the prosecutrix which is also supported by their
medical examination and FSL report. Hence, the appeal may be

9. I have considered the rival contentions and carefully gone
through the Trial Court Record.

10. Since the appellant is not disputing the factum of having
physical relations with the prosecutrix on the night of 16th September,
2013 at about 2.00/2.30 am, FSL report does not require any detailed
discussion. The only question that arises for consideration is whether
on the night of 16th September, 2013 at 2.00 or 2.30 am the physical
relation between the prosecutrix and the appellant was with her
consent or it was a forcible sexual intercourse.

11. There are material variations in the complaint Ex.PW11/A,
statement of the prosecutrix recorded under Section 164 CrPC
Ex.PW11/B and her deposition before the Court as PW-11 as regards
to whether she was dragged when she was going to the toilet or

CRL.A. No.111/2017 Page 5 of 18
returning from the toilet and whether her husband reached the place of
occurrence on hearing her cries or she informed him after returning
from the said room. It is relevant to refer to the three version given by
the prosecutrix i.e. in the complaint Ex.PW11/A, in the statement
Ex.PW11/B recorded under Section 164 CrPC and in the deposition
before the Court as PW-11 and also the statement of her husband
PW-12 Sh.Kedar.

Version of the prosecutrix as per complaint Ex.PW11/A made
before the police on 16th September, 2013.

12. In her complaint Ex.PW11/A dated 16th September, 2013
recorded by SI Khushboo Yadav, the prosecutrix ‘G’ has stated that
for the past 6-7 months she alongwith her husband was residing in
jhuggi meant for labourers at Barat Ghar, Mangolpur Kalan. The
Barat Ghar was under construction where her husband was working
and she joined him about two months prior to this incident. On 16th
September, 2013 at about 2.00/2.30 am she woke up to go to the toilet
which is behind the Barat Ghar. When she was going to the toilet, on
the way thekedar Santosh i.e. the appellant caught her hand and
dragged her towards a vacant room in the Barat Ghar where a bedding
(Bistra) was already laid. She started raising alarm by taking the
name of her child but before her husband could reach, the thekedar
forcibly put her on the bed and after lifting her saree upward,
committed rape on her. When she was raising alarm, he also put his
hand on her mouth. In the meantime, her husband reached there in
search of her and also to save her. On seeing him, thekedar jumped
out through the window. She narrated the incident to her husband but

CRL.A. No.111/2017 Page 6 of 18
due to fear they did not inform the police immediately. In the
morning, her husband called the PCR and thereafter she made the
complaint of being raped by the appellant during night time and
requested for legal action against him.

Version of the prosecutrix in her statement recorded under
Section 164 CrPC Ex.PW11/B before the Magistrate on 16th
September, 2013.

13. In her statement under Section 164 CrPC Ex.PW11/B, the
prosecutrix has stated that she is 7th Pass. She got married about three
years back (from the date of recording her statement) and has a child
aged about 1 year. About 1-2 months ago she came to Delhi with her
husband to work as labourer. They were residing in the jhuggis near
Police Line Mangol Puri where a Barat Ghar was under constructions.
On that date (16th September, 2013) at about 2.00/2.30 am, she left for
going to the toilet and the child was left by her with her husband. A
temporary toilet has been constructed at some distance. There the
appellant Santosh caught her and took her to an under construction
room and did ‘jabardasti’ with her. She raised alarm but by the time
her husband reached, the appellant had already done ‘galat kaam’. On
seeing her husband, he fled from there. One old labourer also reached
there. Santosh also resides there near the jhuggis. In the morning,
when he came he was caught and her husband informed the police

Version of the prosecutrix when examined as PW-11 before the

CRL.A. No.111/2017 Page 7 of 18

14. PW-11 ‘G’ – the prosecutrix has stated that she alongwith her
husband and one year old son as well her brother was residing in a
jhuggi at the site of a Barat Ghar which is under construction. The
appellant was the Contractor and her husband was a Mistry there. She
stated that she is illiterate and it was second day of the month of the
year 2013 but she did not remember which month it was. At about
2.00/2.30 am, she got up to ease herself and went to bathroom situated
behind the Barat Ghar. When she came out of the bathroom, the
Contractor came at that place and took her to a room at the back
potion of the Barat Ghar where a bedding was already laid. There he
did ‘jabardasti’ by which she meant that physical relations made
between husband and wife. She screamed and on hearing the same,
her husband came. On seeing her husband, the Contractor Santosh
away by jumping out through the window. She informed about the
conduct of Santosh to her husband but did not disclose to any other
person. In the morning, her husband informed PCR and thereafter she
made her statement Ex.PW11/A. she was sent for medical
examination and thereafter the bedding was seized by the police. She
was also produced before the Magistrate on the same day and her
statement under Section 164 CrPC Ex.PW11/B was recorded. She has
identified the clothes Ex.P1 to P4 which she was wearing on the date
of occurrence as well the bedding and the dari Ex.P5 and P6.

15. During her cross examination, the prosecutrix has admitted that
the incident was in summer. The make shift toilet was constructed on
the extreme corner on the left side if one enters the under construction
Barat Ghar. She has also admitted that at a little distance of about 15

CRL.A. No.111/2017 Page 8 of 18
paces away from the toilet, there are jhuggis of labourers. The
prosecutrix was shown eleven photographs Ex.PW11/D1 to D11 of
the site which she admitted to be correct as per the construction site
and that in the jhuggis shown in the photographs, her jhuggi is at the
fifth place. She has stated that jhuggi of appellant was across the
gallery away from the jhuggis of the labourers. She has also been
confronted with her two different versions as to whether she was
going to the toilet or returning from the toilet when she was allegedly
dragged by the convict to the vacant under construction room. When
she was questioned as to how she resisted the attempt by the appellant,
she stated that she caught his hand and in the process his shirt was also
torn. She also stated that she called her husband when she was being
dragged by the appellant. In her cross examination, she has stated that
from the time she was dragged by the appellant till her husband
reached on hearing her screams, it must have taken about 10-15
minutes to half-an-hour. She stated that the appellant left the spot
after wearing his clothes and that except her husband, no other
labourer reached the place of occurrence. She denied that she was
having extra marital relations with the appellant and on that day also
she had established physical relations with her consent. She has
admitted that the distance from the place she was dragged till the room
i.e. the place of occurrence, is about 10-12 steps.

16. PW-12 Sh.Kedar is the husband of the prosecutrix and his
statement is of lot of significance for the reason that as per the
complaint, on hearing her screams, her husband reached the spot and
on seeing her husband, the appellant jumped through the window and

CRL.A. No.111/2017 Page 9 of 18
fled. PW-12 Sh.Kedar has has stated that he was working at the
construction site of Barat Ghar and was living alongwith his wife and
son of tender age. The appellant was the Contractor at the site. He
stated that the date was 16th and year 2013 but he did not remember
the month, he was sleeping during the night. At about 2.00/2.30 am
his wife i.e. the prosecutrix went out to ease herself in the bathroom
situated at a distance of about 25-30 steps from the jhuggi where he
was sleeping. He could not hear the screams of his wife due to
distance. When his wife returned to the jhuggi, she informed him that
the Contractor Santosh had taken her to his room/jhuggi situated in the
same Barat Ghar and after pressing her mouth, committed ‘galat
kaam’ with her. In the morning, he informed the PCR and his wife
reported the incident. His wife was taken to the hospital by the police
and the appellant Santosh was also arrested from the Barat Ghar.

17. Since PW-12 Sh.Kedar failed to fully support the prosecution’s
case, he was cross examined at length by learned Addl. PP for the
State and again he denied the suggestion that he reached the place of
occurrence on hearing the screams of his wife or that he had seen
appellant committing rape on his wife. He had also denied that on
seeing him, appellant Santosh ran away by jumping through the
window. He denied having made any statement to the above effect
before the police.

18. The MLC of the prosecutrix Ex.PW4/A prepared at Dr.Baba
Saheb Ambedkar Hospital on 16.09.2013 at 10.30 am records her
medical condition as under:-

P/A soft, No tenderness

CRL.A. No.111/2017 Page 10 of 18
L/E : NAD No c/o injury marks
P/V : Ut normal size ANP, No tenderness

No visible sign of external injury on body
B/L Breast soft, no sign of injury
L/E NAD, No c/o bleeding’

19. The appellant was also medically examined at Dr.Baba Sahed
Ambedkar Hospital on the same day i.e. on 16.09.2013 at 1.50 pm.
As per his MLC Ex.PW2/A, no sign of any fresh external injury was
seen at the time of his examination.

20. The prosecutrix in this case is a married woman, mother of a
child and living in a nearby jhuggi alongwith her husband. The place
of occurrence is at a short distance from her jhuggi. The season was
summer and the occupants/labourers were sleeping outside their
jhuggis as deposed by DW-1 Sh.Ballabh Prasad. The jhuggi of the
appellant is also on the other side of the construction site of Barat
Ghar. The prosecutrix has stated the distance of the toilet from her
jhuggi to be 15 paces from where she was dragged to the under
construction room where a bedding was already laid on the platform
of bricks and wooden planks. The appellant would not have come to
know about the time when the prosecutrix would get up to go to the
toilet during night time so as to wait for her near the toilet and drag
her. The time of 2.00/2.30 am in the night is when almost everybody
is fast asleep after whole day of labour. As per statement of
prosecutrix, she handed over her child aged about one year to her
husband before going to the toilet at 2.00/2.30 am. The photographs
filed by the prosecution Ex.P1 to P5 and filed by the defence

CRL.A. No.111/2017 Page 11 of 18
Ex.PW11/D1 to Ex.PW11/D11 show that the construction side is full
of building materials lying scattered everywhere and even for walking
there is no smooth surface or footpath. On such a site, if any attempt
is made to drag a fully grown up married lady with intention to
commit rape on her, not only she is likely to suffer bruises and injury
in the process of resisting the attempt of the appellant to drag her
raising alarm by her was bound to wake up not only her husband but
also other labourers sleeping inside/outside their jhuggis which were
just a few paces away from the toilet.

21. As per the version of prosecutrix, she remained in the room
where rape was committed upto half-an-hour. Only in a case of
consent, a lady could have remained present for such a long time in
the room without putting any resistance. The place where prosecutrix
was assaulted was an under construction room without any door
thereby accessible to everyone in case an alarm is raised. The
complaint Ex.PW11/A shows that the prosecutrix raised alarm and by
the time her husband could reach, ‘galat kaam’ had already been done.
When the place of occurrence is just a few paces away, her cries for
help when she was being dragged from near the toilet could not have
remained unheeded by her husband or other labourers.

22. It is also not out of place to mention here that there is material
discrepancies in the version given by the prosecutrix and that of her
husband. As already noted, as per PW-11 – the prosecutrix ‘G’, her
husband reached the spot on hearing her cries to save her but on
seeing her husband, the appellant jumped from the window after
wearing clothes. However, the version of PW-12 Sh.Kedar –

CRL.A. No.111/2017 Page 12 of 18

husband of the prosecutrix, is that it was the prosecutrix who informed
him about the rape being committed after she returned to the jhuggi.
PW-12 Sh.Kedar – husband of the prosecutrix though cited as an eye
witness, has not supported the prosecution case to that extent.

23. The above discrepancy cannot be treated as insignificant or
minor contradiction not touching the material aspect of the case.

24. The statement of husband of the prosecutrix is also
contradictory to the version given by the prosecutrix vide her
statement Ex.PW11/A which formed basis of registration of the case.
The police was informed by the husband of the prosecutrix and the
version recorded by the police about the manner in which the offence
was committed and at what time, the husband came to know about she
being raped were mentioned by her immediately after the occurrence.
The statement of the prosecutrix does not find any support from even
her husband.

25. In the case Tameezuddin @ Tammu v. State (NCT of Delhi)
(2009) 15 SCC 566, the Supreme Court held as 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

26. No doubt, the statement of the prosecutrix is sufficient to base
the conviction if it is creditworthy. At the same time, there is no
presumption that in all rape cases her testimony should be considered
as gospel truth. If judgment is needed, reliance can be placed on

CRL.A. No.111/2017 Page 13 of 18
Pratap Misra Ors. Vs. State of Orissa (1977) 3 SCC 41, in para 8 it
was held as under :-

“8. In the first place, the admitted position is that the
prosecutrix is a fully grown up lady and habituated to
sexual intercourse and was pregnant. She was
experienced inasmuch as she had acted as a midwife. It
is true that the learned Sessions Judge was impressed
with the demeanour of this witness, but that itself is not
sufficient to prove the case if the opinions of medical
experts show that it is very difficult for any person to
rape single-handed a grown up and an experienced
woman without meeting stiffest possible resistance from
her. In the instant case, according to the evidence given
by PW-1, A-1 entered the room and committed sexual
intercourse with very great force and violence against
her consent. Indeed if this was so, we should have
expected the stiffest possible resistance from her
resulting in injury over the penis or scrotum of the
accused or abrasions over other parts of the body caused
by the nails of the prosecutrix. The accused were
examined by PW-9 who did not find any injury over the
penis or scrotum and he does not say that he found any
injury on any part of the body. This is rather an
important circumstance which negatives the allegation of
rape. The prosecutrix knew fully well that the appellant
had entered the room with evil intention from the fact
that her husband was dragged away to the verandah and
the door was bolted by A-1. In these circumstances, we
fail to see why the prosecutrix should have silently
abided to have the intercourse with the appellant without
putting up any resistance, except shouting, particularly
when the prosecutrix was a fully grown up lady and
experienced not only in sexual intercourse but also in the
art of midwifery. She knew that she was pregnant and if
any violence was caused to her it may lead to abortion.
This circumstance would naturally impel her to put up
the stiffest possible resistance against A-1 who was

CRL.A. No.111/2017 Page 14 of 18
single-handed and was not armed with any weapon
which may have silenced the prosecutrix. The theory
pronounced by the learned Sessions Judge was that as
the appellants were N.C.C. students and sturdy persons
the prosecutrix may have fount it futile to put up any
resistance and may have decided to submit to the
onslaught on her. Such a course of conduct is wholly
improbable, particularly in the case of grown up and an
experience lady like PW-1. Taylor, in the Principles and
Practice of Medical Jurisprudence, Vol. II, dealing with
the cases of rape on a grown up woman observes as
follows :

Unless under the influence of drink and
drugs or asleep or ill, a fully grown girl or
adult woman should be able to resist a sex
assault. We should expect to find evidence
of a struggle to avoid sexual contact or
penetration, and may well fell uncertainty
about the real nature of an alleged assault
in its absence.

A false accusation of rape may sometimes be
exposed by marks of violence being wholly
inadequate or absent.

Bruises upon the arms and the neck may be
considered to constitute some evidence of a
struggle; and impressions of finder nails are
also significant. Bruises or scratches about
the inner side of the thighs and knees may be
inflicted during attempts to abduct the legs
forcibly, and care must also be taken to
examine the back, for the victim may have
been pinned against the wall or floor. It is
important to record these in detail, and to
say, if possible, how fresh they are. The
ageing of bruises is, as was indicated in
Volume-1, a matter of some uncertainty in
the absence of microscopy.

CRL.A. No.111/2017 Page 15 of 18

Strong corroborative evidence of a struggle
might be obtained from an examination of
the accused for similar marks of bruises or
scratches about the arms or face, and
possibly even about his penis, though this is
less likely.

Though injury is most unlikely to the penis,
a man may have had his face scratched or
have been bitten during a sex assault. The
clothing may bear some contact traces of the
woman – hairs, vaginal secretion or blood,
and, though of less significance, seminal

The medical evidence, therefore, clearly discloses that
the prosecutrix does not appear to have put up any
resistance to the alleged onslaught committed on her by
the appellants. From this the only irresistible inference
can be that the prosecutrix was a consenting party which
would be reinforced by other circumstances to which we
shall refer hereafter.

27. No doubt, there is no legal impediment in basing the conviction
of an offender on the basis of solitary statement of the prosecutrix
provided it inspires confidence of the Court but at the same time the
judicial forums have been insisting on some corroboration to the
statement of the prosecutrix in cases where despite being well built
and not under influence of any intoxicant she had not suffered any
injury during the act of being subjected to rape.

28. The question that arises for consideration in this case is whether
the prosecutrix was a willing party or she was forcibly subjected to
sexual intercourse. In this regard, it is noteworthy that as per MLC of

CRL.A. No.111/2017 Page 16 of 18
the prosecutrix as well as MLC of the appellant, none of them have
suffered any injury either on private part or on any other part of the
body. The prosecutrix was medically examined a few hours after the
offence was stated to have been committed.

29. Accordingly to Modi’s Medical Jurisprudence and Toxicology
(Twentieth Edition) Page 206 the abrasions are red at first, but during
the next three days they appear blue, bluish black, brown or livid red,
and become greenish from the fifth to the sixth day, and yellow from
the seventh to the twelfth day. The yellow colour slowly fades in tint
till the fourteenth or fifteenth day when the skin regains its normal

30. In the instant case, despite the prosecutrix being dragged on a
rough surface littered with building material, being raped on wooden
planks placed on bricks, she does not have even a scratch on her body
or caused any scratch by nail or otherwise on the body of the appellant
in her attempt to resist the forcible sexual intercourse. Thus, the
version of the prosecutrix that she put resistance is not supported by
the medical evidence.

31. The prosecutrix was a married lady from rural background and
mother of a child. She remained with the appellant in that under
construction room for about half-an-hour without any resistance and it
appears to be a case of consent.

32. The trend of the testimony of PW-11 ‘G’ – the prosecutrix and
that of her husband PW-12 Sh.Kedar and the variations, infirmities
and inconsistencies noted herein prove that it was a case of the
prosecutrix being consenting party. The learned Trial Court while

CRL.A. No.111/2017 Page 17 of 18
ignoring inherent infirmities in the testimony of the prosecutrix which
was not even corroborated on vital points by her own husband or by
medical evidence, erroneously came to the conclusion that her
testimony was reliable to base the conviction of the appellant for
committing the offence punishable under Section 376 IPC. Therefore,
the finding of the learned ASJ holding the appellant guilty for the
offence punishable under Section 376 IPC is liable to be set aside.

33. Accordingly, the impugned judgment and order on sentence are
hereby set side.

34. The appeal is allowed. The appellant is acquitted of the charges

35. The appellant be released forthwith if not wanted in any other

36. TCR be sent back alongwith copy of this order.

37. A copy of this order be sent to the concerned Jail
Superintendent for information and necessary compliance.

38. As prayed, a copy of the order be also given dasti to learned
counsel for the appellant under the signature of Court Master.

AUGUST 02, 2017

CRL.A. No.111/2017 Page 18 of 18

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