IN THE HIGH COURT OF DELHI AT NEW DELHI
Crl. A. No. 622/2006
For the reasons given above, I am of the considered
view that the appellant has rightly been convicted under
Sections 376 & 506 of Indian Penal Code. However, offence
under Section 292 of IPC is not made out from showing an
obscene book to the prosecutrix in the office of the appellant.
The possession of an obscene book is punishable u/s 292 of
IPC only if it is for the purpose of selling, hiring, distribution,
exhibition or circulation. If an obscene book is just kept in a
house and is not being used for selling, hiring, distribution,
exhibition or circulation, no offence under Section 292 of IPC
is made out.
Therefore, the appellant is not guilty of the
charges under Section 292 of IPC.
Pronounced on: October 13, 2009
NADEEM
Versus
THE STATE
(GOVT. OF NCT OF DELHI)
This is an appeal against the judgment dated
4.4.2006 and Order on Sentence dated 5.4.2006, whereby
the appellant was convicted under Section 376/506 and 292
Crl. A. No. 622/06
Page 1 of 28
I.P.C. and was sentenced to undergo R.I. for a period of eight
years and pay a fine of Rs.5,000/- or to undergo RI for one
year in default, u/s 376 of IPC, to undergo R.I. for a period of
two years under Section 506 I.P.C. and to undergo R.I. for
one year and pay a fine of Rs.1,000/- or undergo R.I. for three
months in default u/s 292 of IPC.
2.
The case of the prosecution in nutshell is that the
prosecutrix was studying in Class V of ABC Mamta Nursery
School, in Welcome Colony of Delhi. On 11.3.2004, after the
prosecutrix had finished her examination, the appellant who
was the Principal/owner of the School, stopped her and asked
her to clean his office, which was on the first floor of a
nearby building. When she went to the office, the appellant
also reached there, bolted the door from inside, and started
teasing her. He showed obscene pictures in a book as well as
on the television, to her. Thereafter, he forcibly raped her,
threatening to kill her, in case she complained to her mother.
The matter was not reported to the police till 7.4.2004 when,
on receipt of information regarding a quarrel at D-69,
Kabutar Market, Welcome Colony, the Investigating Officer
reached there. He found no quarrel taking place at the spot.
When he came back to the police station, the prosecutrix and
Crl. A. No. 622/06
Page 2 of 28
her mother were present there. He recorded the statement
of prosecutrix in which she alleged rape by the appellant.
3.
During trial, the prosecutrix came in the witness
box, as PW-I and stated that on 11.3.2004 when she was
going home after her paper was over, at about 11 A.M., the
appellant, who used to teach them in the school, asked her to
accompany him to the office.
He asked her to sweep and
clean the office, which was situated in the Gali. Thereafter,
he did ‘Gandi Harkat’ with her.
He also showed obscene
pictures in the book Ex. PW1/C as well as on television to her
and asked her to put off the clothes and dance with him. The
iron gates were also closed by him.
He raped her and
threatened to kill her, in case she complained to her mother.
She informed her parents about the incident on 5.4.2004.
She proved her statement recorded under Section 164
Cr.P.C. and also identified the book Ex.PW-1/C.
4.
PW-2 Mst. Kaniza, who is the mother of the
prosecutrix, stated that on 5.4.2004, when her daughter
refused to go to her school, she asked the reason for
declining to go to school.
The prosecutrix stated that on
11.4.2004, the appellant had taken her to the office for the
purpose of cleaning it and there he had raped her and
Crl. A. No. 622/06
Page 3 of 28
thereafter threatened
to kill her, in case she informed
anyone about his action.
PW-3 Constable Anil Kumar has
stated that on 8.4.2004, he joined investigation with the I.O.
and the appellant got recovered one book having obscene
pictures, from the drawer of the table inside his office.
PW-7 Dr.Suchi is a radiologist who opined that the
age of the prosecutrix was between 16-18 years. PW-8
Dr.Asha Sharma, is a senior gynaecologist who has proved
the MLC of the prosecutrix and has stated that on medical
examination of the prosecutrix, her hymen was found to be
torn. PW-10 SI Gokal Chand of PS Anand Vihar, Delhi, is the
Investigating Officer of the case.
He has stated that after
arresting the appellant, he recovered one obscene book at his
instance, besides carrying out other investigations. In cross-
examination, he stated that there was no tenant in the
building in which the rape was committed. He further stated
that since the prosecutrix had burnt the clothes which she
was wearing at the time of rape, the same could not be
seized.
5.
In his statement under Section 313 of Code of Criminal
Procedure, the appellant denied that the prosecutrix was
studying in ABC Nursery School in V standard in March,
2004. He denied being a teacher in that school and stated
that he was the owner of the school and was just supervising
the work of the other people.
He denied the accusation
against him and stated that he was implicated because of
inimical relations with Nadeem Pradhan and Baba Zahoor,
members of the Madarasa Committee, who had asked him to
settle the matter regarding the quarrel with a teacher
namely
Rakesh
Kumar.
He
further
stated
that
the
prosecutrix was studying with him for the last five years and
a fee of Rs.2000-3000/- was due from her. Since the fee was
not paid, there was a quarrel and he turned her out of the
class. She was, however, allowed to take all the exams, on
the request of her father, who assured payment of the fee at
the time of the examination. According to him, on 5.4.2009,
he demanded the fee again but her mother insisted on
payment at a later date and misbehaved with a teacher. He
told them that he would not release the result until fee was
paid. On 6.4.2004, brothers of the prosecutrix came to him
with a request to admit the prosecutrix in the school, but, he
refused whereupon he was beaten upon by them and some
other gunda people brought by them.
His gold chain and
Rs.20,000/- were also snatched by them.
He was taken to
police station by Shalu Madam. He has further stated that all
the 4 rooms including the room where the rape is alleged to
have been committed had been let out by him.
6.
The appellant produced seven witnesses in his defence
and also came himself in the witness box as DW-8.
DW-1
claims to be the owner of House No.A-56 and A-59, Welcome
Colony and has stated that the appellant used to run a school
in the said premises. He further stated that on 7.4.2004, five
or six persons gave beating to the appellant and ran away.
DW-2, Smt. Shalu was working under the appellant at the
relevant time. She has stated that on 7.4.2004, 2-4 persons
came to the school and gave beating to the appellant, who
was taken by her to the hospital. DW-3, Mrs. Neeru was also
working under the appellant during the relevant time and she
had stated that on 7.4.2004, when the prosecutrix was sent
back to bring fee, she came accompanied with her mother,
who had exchange of
hot words
with the appellant.
Thereafter, brothers of the prosecutrix came there and gave
a beating to the appellant. They also snatched his chain and
removed some money from his pocket.
DW-4, Azimuddin,
DW-5 Mohd. Usman and DW-6 Shah Nawaz stated that they
were tenants in respect of one room each under the
appellant, in respect of House No. E-11, Welcome Colony and
there was no office in that house. DW-7 Smt. Shakeela is the
mother of the appellant.
She has stated that on 7.4.2004,
brothers of the prosecutrix, accompanied by 3-4 boys came
there and asked the appellant as to how he dared demand fee
from their sister. When the appellant protested, they gave
beating to him. They also snatched his chain and removed
Rs.20,000/- from his pocket.
In his statement on oath, the
appellant stated that the prosecutrix was the student of class
IV in his school. Sometimes, the fees used to be due from
her. On 7.4.2004, he sent her to her house to bring her fee.
She came back accompanied by her mother. The brothers of
the prosecutrix also came there along with 4-5 persons and
gave beating to him. They also snatched his gold chain and
money.
According to him, Baba Zahoor had an old enmity
with him. He denied raping the prosecutrix and stated that
all the four rooms in E-11, Welcome Colony had been rented.
7.
Learned Counsel for the appellant has pointed out
certain discrepancies in the evidence produced by the
prosecution. It was pointed out that though the case of the
prosecution is that the prosecutrix was raped on 11th March,
2004, in her statement under Section 164 of the Code of
Criminal Procedure, she stated that the incident took place
on 10th April, 2004. In my view, this discrepancy, as regards
date of the incident, is of no consequence, since it is an
admitted case that the FIR was registered and the appellant
was arrested on 7th April, 2004.
Therefore, the incident in
question could not have happened on 10th April, 2004 and
there is an obvious mistake as regards the date of the
incident, given in the statement of the prosecutrix recorded
under Section 164 of the Code of Criminal procedure.
8.
It was next pointed out by learned defence counsel that
according to Radiologist, the age of the prosecutrix was
between 16 to 18 years, whereas in her deposition in the
court as well as in her statement under Section 164 of Code
of Criminal Procedure, she has given her age as 12 years.
Since this is not the case of the appellant that he had sexual
intercourse with the prosecutrix with her consent, her age
becomes immaterial and consequently the discrepancy in the
age given by the prosecutrix and the age determined by the
Radiologist becomes irrelevant.
9.
It was next pointed out that in her statement under
Section 164 of the Code of Civil Procedure, the prosecutrix
stated that after 3-4 days of the incident, when she declined
to go to school, her mother asked her as to why she was not
going to the school and thereupon she told her about the
incident with her, whereas, in their deposition in the court,
the prosecutrix as well as her mother have stated that the
incident was reported by the prosecutrix to her mother only
on 5th April, 2004.
The prosecurtrix comes from an under privileged
section of the society and was a student only of class V at the
relevant time. Her statement under Section 164 of the Code
of Criminal Procedure was recorded about 2 months after the
incident had taken place. Taking the literacy level of the
prosecutrix and her social background into consideration,
such contradiction cannot be said to be so material as would
persuade the court to altogether discard the testimony of the
prosecutrix which otherwise has very well stood the test of
cross examination. Such minor contradiction does not to the
root of the prosecutrix case if it is otherwise found to be
reliable and convincing. While appreciating the evidence of a
witness, the approach of the court should be to see whether
the evidence of the witness, if read as a whole, appears to
have a ring of truth or not. Once the court forms an opinion
that the witness appears to be speaking truth, it should
evaluate his/her evidence in the light of the discrepancy and
infirmity pointed out in her deposition and then decide
whether its earlier impression about the evidence of the
witness stands shaken on account of such deficiencies and
infirmities so as to render it unworthiness of reliance. Minor
discrepancies on matters which do not touch the core of the
case should not be given undue importance and would not
ordinarily warrant rejection of the testimony of the witness
as a whole. In the absence of strong and convincing reason,
it would not be appropriate for the court to reject the
testimony of a witness on ground of minor contradictions
here or there on matters which are not really significant to
the case. It was held in a decision reported in AIR 1988 SC
696 that while appreciating evidence, the courts must not
attach undue importance to minor discrepancies which do
not shake the basic version of the prosecution case and those
discrepancies may be discarded.
Not everyone has equal capacity of observation,
retention and reproduction of matters to which he is a
witness and therefore it would not be fair and reasonable to
accept every witness to give an exact and meticulous version
of the matter at a later date. This is more so when the
witness is of a rather tender age and has a weak social
background.
With regard to time or duration of an
occurrence, people normally tend to make estimate by way of
some guess work, at the time of their examination and
therefore they cannot be expected to always make a precise
estimate in
such
matters,
particularly
when they
are
examined at different times and before different forums. The
court cannot he oblivious to the fact that when the
prosecutrix was produced before the learned Magistrate for
recording her statement under Section 164 of Cr. P.C., she
may still not have fully come out of the trauma faced by her
at the hands of the rapist and therefore must be under
immense pressure not only on account of the incident that
happened with her but also on account of the fact that for the
first time in her life, she was facing Police Station and
Courts.
In such an environment, if she has made a wrong
estimate about the number of days after which she narrated
the incident to her mother, they by itself would not be
enough to impeach her credibility as a witness.
Some
discrepancy her and there are bound to occur in the
deposition of such a witness, attributable to normal errors of
memory and mental disposition on account of the shock and
horror to which she was subjected to on account such an
incident.
In fact, it is a traumatic for the victim of rape,
when in totally unfamiliar surroundings, she is asked to
narrate all that which took place with her. She would
normally be too nervous or confused at that point of time and
some discrepancies in the statement of the witness who has
been subjected to such a gruesome act are only natural and
expected.
10.
It was pointed out by learned counsel for the appellant
that in the Rukka sent by him the Investigating Officer
recorded that the place of occurrence as ABC Mamta
Nursery School, Kabootar Market, Welcome, Delhi D-69,
Kabootar
Market,
Welcome,
whereas
the
case
of
the
prosecution is that the prosecutrix was raped in property No.
E-11, Welcome. In fact, D-69, Kabootar Market, Welcome is
the residential address of the prosecutrix.
This is not the
case of anyone that ABC Mamta Nursery School was being
run in property No. D-69, Kabootar Market, Welcome, Delhi.
Obviously there was an error on the part of Investigating
Officer in recording the place of incident.
When the
Investigating Officer was cross examined, he was not asked
as to why had had given place of incident as D-69, Kabootar
Market, Welcome, in the rukka prepared by him. Since no
opportunity was given to the Investigating Officer to explain
this aspect of the matter, no adverse view against the
prosecution can be taken on account of such a mistake. In
any case, the case of the prosecution cannot be rejected only
on account of an error made by the Investigating Officer
while writing the rukka when it has absolutely no implication
on the merits of the case. As held by the Hon’ble Supreme
Court in a decision reported in JT 1995 (6) SC 437, it is not
proper to acquit the person due to defective investigation if
the case otherwise stand established as being so would be
falling into the hands of erring IO.
11.
It was also pointed out by the learned counsel for the
appellant that the medical examination of the prosecutrix
does not show any injury on her person.
A perusal of the
MLC would show that hymen of the prosecutrix was found
torn at 7 O’clock and 5 O’clock position.
Moreover, the
medical examination was conducted about four weeks after
the incident of rape. No visible mark of injury was likely to
be present on her body at that time.
Moreover, the
prosecutrix being of tender age at that time, she being alone
in the room which had been locked, the appellant being none
other than the owner/Principal of her school and she being
under threat from the appellant, it would be unreasonable to
expect her to have put a tough resistance to the advances of
the appellant.
In fact this is not at all the case of the
prosecutrix that she had put a tough resistance to the act of
the accused. Moreover, the visible injury on the person of
the prosecutrix would be material when either she says that
she had actually put up a tough resistance or the accused
alleges that this was a case of sex by consent. Neither is the
case here.
Therefore, absence of marks of injury on the
private part of the prosecutrix at the time of her examination
on
7.4.04
would
not
be
material
in
the
facts
and
circumstances of the case.
12.
In a leading case Bhogin Bhai Vs. Hirji Bhai AIR 1983
SC 753,
the Hon’ble Supreme Court gave a number of
reasons to accept the testimony of prosecutrix in a rape case.
One of the reasons given by the Hon’ble Supreme Court was
that “the parents of an unmarried girl would also want to
avoid publicity of such incident on account of fear of social
stigma on the family name and family honour. The parents of
the prosecutrix in this case must be conscious of the
consequences when they reported the matter to the police,
produced their daughter before the Investigating Officer for
recording her statement and then produced her in the court
for deposition.
Therefore, it is not at all likely that they
would set up a false case when it may result in social stigma
being attached to their family and the entire future of their
child being in jeopardy. They would gather courage to take
these steps only after they are absolutely sure of the
dishonor inflicted on their daughter.
13.
Ordinarily, an young girl of the age of the prosecutrix
would not level false allegations of rape.
Her family
members also would not like to jeopardize her future by
using their young family member as a tool for settling a
vendetta, even if they are inimical to a person.
The only
reason given by the appellant for the prosecutrix to make
false allegation of rape against him is that one Baba Zahoor
and one Hasin Pradhan, who were members of Madarsa
Committee wanted him to intervene in a quarrel involving a
teacher namely Rakesh Kumar. There is no evidence other
than a bald assertion of the appellant to show that Hasin
Pradhan and Baba Zahoor had asked him to intervene in a
quarrel which had taken place between a teacher namely
Rakesh Kumar and the sons of Hasin Pradhan or that in fact
there was such a quarrel.
Rakesh Kumar has not been
produced in the witness box, though, this is not the case of
the appellant that Rakesh Kumar was also inimical to him.
Neither in the cross examination of the prosecutrix nor in the
cross examination of her mother it was suggested to them
that Baba Zahoor and Hasin Pradhan had asked the appellant
to intervene in a quarrel between Rakesh Kumar, on the one
hand, and sons of Hasin Pradhan, on the other hand and
since he declined to do so, he has been implicated by them in
this case. It appears difficult even to conceive that merely
because the appellant declined to intervene in a dispute
between the sons of Hasin Pradhan and a teacher namely
Rakesh Kumar, Hasin Pradhan and Baba Zahoor went to the
extent of getting the appellant implicated in a false case of
rape.
Moreover, it cannot be accepted that merely at the
instance of a person known to them, the prosecutrix and her
family members would go to the extent of implicating the
appellant in a rape case involving their young daughter. The
defence taken by the appellant in this regard is patently
unbelievable and in fact does not even deserve a serious
consideration.
14.
The learned counsel for the appellant has referred to
the decision of Hon’ble Supreme Court in Lalliram & Anr v.
State of M.P. ; 2008 (4) JCC 2813. In that case, the case of
the prosecution was that when the prosecutrix along with her
husband was passing from fields, the appellant abused the
prosecutrix, gave beatings to her husband and took her near
a well, where they raped her repeatedly in the night. At the
time of medical examination on 25.9.85, no external injuries
were found on her body. The trial court found various
inconsistencies in the deposition of the prosecution witnesses
and a defence witness also probablised the defence taken by
the appellants.
During the course of the judgment, the
Hon’ble Supreme Court noted that though injury is not sine
quo non for deciding whether the rape was committed,
whether allegation is of rape by many persons and several
times but no injury is notice that certainly is an important
factor and if the version of the prosecutrix is not credible,
then there would be need for cooperation. In taking this
view, the Hon’ble Supreme Court referred to the case of
Aman Kumar & Ors. V. State of Haryana 2004 (1) JCC 409.
However, the present case is not a case of rape by several
persons and there are no allegations of the prosecutrix
having been raped several times.
She was medically
examined after about 4 weeks of the incident.
Therefore,
absence of injury on her person would be of no consequence,
particularly when her hymen has been found to be torn at 7
O’clock and 5 O’clock position.
In Aman Kumar & Ors. V.
State of Haryana (Supra), the Hon’ble Supreme Court had
observed that a prosecutrix complaining of having been
victim of rape is not an accomplice and there is no rule of law
that
her
testimony
cannot
be
acted
upon
without
corroboration in material particulars. It was further observed
that such a person stands on a higher pedestal than the
injured person, she having been injured physically as well as
psychologically and emotionally.
Only if the court finds it
difficult to accept the version of the prosecution on the face
value, it may search for evidence direct or circumstantial. In
the case of Lalliram & Anr. (Supra), there were allegations of
injuries on her cheeks, legs and back, but no such injury was
found in her first medical examination. There were a number
of other discrepancies in her deposition which were noted by
the Trial Court as well as the Hon’ble Suprme Court.
Therefore, this judgment is of no help to the appellant.
15.
The learned counsel for the appellant has next referred
to the decision of a Division Bench of this court in Chander
Dev Rai v. The State (NCT of Delhi); 2009 (1) JCC 67. In
that case a girl of two years was found missing by her family
members. On hearing the cries of the child, coming from the
house of the appellant, her father reached there and found
the child wrapped there in a blanket. The child at that time
was bleeding from the vagina. There was no direct evidence
of rape upon the appellant and there was no incriminating
evidence against him except that she was found in the room
of the appellant, wrapped in a blanket and bleeding at that
time. No stain of semen was found either on the garment or
the under garment of the prosecutrix or on her private parts.
No forensic evidence was found to connect the appellant with
the injuries found on the abdomen of the prosecutrix despite
taking the nail clippings of the appellant and analyzing them
for any skin tissues and / or blood of the prosecutrix. The
prosecution had failed to prove that the appellant was alone
in the house at that time and his wife and daughter were not
present. There was no conclusive evidence to show that the
girl was with the appellant from 7 pm when she was
allegedly lost till 9.45 pm when she was recovered from the
room of the appellant. The case of the appellant was that he
had found the child crying on the road and that since he
could not trace her parents, he brought her home. There was
no reason to doubt the case of the appellant that his wife and
one child were present at the place of incident around that
time when the offence purported to have been committed.
The blanket in which the child was found wrapped was not
seized by the prosecution.
The Division Bench also found
that the prosecution had failed to prove, with whom the child
was before she was picked up by the appellant. She has nail
marks which were not of the appellant and her vaginal swab
did not have the semen of the appellant. There were a
number of other circumstances which cast serious doubt on
the truthfulness of the case of the prosecution. In the facts
and circumstances of the case, it was held that the chain of
circumstantial evidence alleged against the appellant was not
complete.
The facts of the case before this court are
altogether different. Here, the prosecutrix has come in the
witness box and has supported the case of the prosecution
and her testimony could not be impeached during cross
examination. Therefore, the judgment relied upon by learned
counsel for the appellant has no application to the facts of
the present case.
16.
The learned counsel for the appellant has lastly
referred to the decision of a Division Bench of this court in
Criminal L.P. No. 144 of 2009 decided on 12th August, 2009.
In that case, the prosecutrix claimed to have been raped
firstly in September, 2005 then in December, 2005 and lastly
in January, 2006. There was no evidence to show that her
hymen was raptured.
She stated that her younger brother
was present in the house when she was raped in the night in
September, 2005, on the roof of her house. The Trial Judge
did not believe that the prosecutrix could be raped in her
house in the night when all the family members were
expected to be present. The prosecutrix had claimed that it
was in the bath room of the house that she was raped in
December, 2005 and January, 2006. However, in the cross
examination, she stated that size of the Bath Room was 3 feet
x 3 feet. In these circumstances it was felt that prosecutrix
was shaky witness. The Division Bench found it difficult to
accept that a girl in her teens could be raped in a bath room
of 3 ft. x 3 ft. In these circumstances, leave to appeal was
refused to the State. The facts of the present case, however,
are altogether different, and the Trial Court also has believed
the version given by the prosecutrix.
17.
It was lastly pointed by learned counsel for the
appellant that there was delay of about 27 days in lodging
the FIR. As deposted by the prosecutrix herself as well as by
her mother, the incident that took place with the prosecutrix
was disclosed by her to her mother only on 7.4.04. The FIR
was lodged on the same day. Thus, there was no delay in
lodging the FIR, once the matter came to the knowledge of
the family of the prosecutirx. As regards delay on the part of
the prosecutrix in disclosing the incident to her mother, it is
to be borne in mind that she was a rather immature girl and
the appellant was not an unknown person but the Principal/
Owner/Teacher of her school.
tendency
to conceal
the
There is a natural feminine
outrage
of masculine
sexual
aggression. This is more so when the factum comes from a
weaker section of the society, is not well educated and the
aggressor is not only very well known to her but also
occupies a rather high pedestal in the society, he being her
teacher/principal. There would be a natural tendency on the
part of a school going girl, to conceal an incident of this
nature even from her family members.
She would be
apprehensive that seeing the status of the appellant, she may
not be believed. The very fact that she declined to go to the
School on 7.4.04 is yet another corroboration of the
aggression committed by the appellant. It was only because
of the incident that had taken place wither her that the
prosecutrix declined to go to the school on that day. She had
no option but to disclose the incident to her mother when she
persisted in asking her to tell why she was not willing to go
to the school.
A girl of tender age, coming from a rather
conservative society like ours would be extremely reluctant
to disclose such an incident lest it reflects on her chastity,
conscious as she would be of the danger of being shunned by
her neighbours, relatives and even her own family members
who may eventually find one or the other fault on her part.
In these circumstances, the delay in disclosing the incident to
the mother of the prosecution cannot be said to be abnormal
and is not a sufficient ground for discarding the case of the
prosecution on this ground alone.
18.
It was submitted by learned counsel for the appellant
that all the four rooms in house No. E-1, owned by the
appellant had been let out to the tenants and none of them
was being used by him, as stated by DW-4 to DW-6. I find
that the IO has specifically stated in his cross examination
that there was no tenant in the building in which the rape
was committed.
Despite his specific deposition in this
regard, no suggestion was given to him in his cross
examination that all the four rooms in his house No. E-11,
Welcome, were let out to the tenant.
There is no
documentary proof of DW-4 and DW-5 or DW-6 of being a
tenant in house No. E-11, Welcome.
No rent receipt, rent
deed or proof of a payment of rent has been produced by any
of them in the court. In these circumstances, the deposition
of DW-4 to DW-6 does not inspire confidence and cannot be
believed.
19.
As regards clothes of the prosecutrix not being seized,
it has come in the deposition of the IO that prosecutrix had
burnt the clothes which she was wearing at the time of rape
and therefore the same could not be seized.
Since the
prosecutrix did not disclose this incident to her mother soon
after it was committed, it is quite probable that she had
destroyed the cloth so that her mother does not come to
know of the incident. Even otherwise, the clothes could not
have remained unwashed for so many days and no blood
stain or semen stain would have been found on them after 4
weeks even if the prosecutrix had not destroyed them.
20.
It was pointed out by learned counsel for the appellant
that as per the Date Sheet Ex. PW1/DA, the test of drawing
was scheduled to be held on 22.3.04 whereas the case of the
prosecution is that prosecutrix had appeared in the test of
drawing on 11.3.04. In this regard, I find that the date sheet
Ex. PW1/DA does not show that it pertains to examination for
standard 5th in which the prosecutrix was studying at that
time. Moreover, in her cross examination, no suggestion was
given to the prosecutrix that her drawing test was schedule
on 20.3.04 and that she had appeared in drawing test on that
day. In the absence of any suggestion to the prosecutrix in
this regard, no advantage can be taken by the appellant on
account of this contradiction as regards the subject of the
test in which the prosecutrix appeared on 11th March, 2004.
In fact it was also not suggested to her in the cross
examination that she had appeared in any test on 20.3.04.
Therefore, the testimony of the prosecutrix cannot be
discarded on this ground also.
21.
The deposition of the prosecutrix finds corroboration
from the recovery of obscene book Ex. PW1/C from the office
of the appellant.
The book has been identified by the
prosecutrix and the appellant has not given any explanation
for such a book being found in his office.
22.
The plea taken by the appellant is that he was given
beatings by the brothers of the prosecutrix when he refused
to admit her on account of non payment of fee.
No
documentary evidence has been produced by the appellant to
prove that any fee was due from the prosecutrix.
Though,
the appellant chose to come in the witness box as DW, he did
not produce record of the school to prove the alleged dues of
fee from the prosecutrix. Therefore, the plea taken by him in
this regard cannot be believed as he has not produced the
best evidence which was available to him and was very much
in his possession to prove the alleged dues of fee payable by
the prosecutrix.
23.
The MLC of the appellant shows that he was given a
beating on 7.4.2004.
The case of the appellant is that the
brothers of the prosecutrix and their friends gave him
beatings when he refused to admit the prosecutrix in the
school without payment of arrears of fees. In my view, the
factum of beatings given to the appellant proves the case of
the prosecutrix in stead the proving the defence set up by the
appellant. If a family is not in a position to pay the fees of
their child, they would go and make a request to the school
administration for further time and no sensible person would
give beatings to the owner / Principal of the school merely
because he insists on payment of arrears of fees due from the
student.
Such a course of action would be against normal
course of human conduct and is not likely to be resorted to.
On the other hand, if the brothers are told about the rape
with their sister, it would be in natural reaction on their part
to go and thrash the person who committed such a heinous
act. Therefore, the act of the brothers of the prosecutrix in
giving beating to the appellant on 7.4.04 is yet another
circumstance which corroborates the case of the prosecution.
24.
For the reasons given above, I am of the considered
view that the appellant has rightly been convicted under
Sections 376 & 506 of Indian Penal Code. However, offence
under Section 292 of IPC is not made out from showing an
obscene book to the prosecutrix in the office of the appellant.
The possession of an obscene book is punishable u/s 292 of
IPC only if it is for the purpose of selling, hiring, distribution,
exhibition or circulation. If an obscene book is just kept in a
house and is not being used for selling, hiring, distribution,
exhibition or circulation, no offence under Section 292 of IPC
is made out.
Therefore, the appellant is not guilty of the
charges under Section 292 of IPC.
25.
For the reasons given the preceding paragraphs, while
acquitting the appellant of the charge under Section 292 of
IPC, his conviction under Sections 376 and 506 of IPC is
maintained.
Crl. A. No. 622/06
Page 27 of 28
26.
Keeping in view all the facts and circumstances of the
case including that the appellant has been in custody for
more than five years, he is sentenced to undergo Rigorous
Imprisonment for 7 years and to pay fine of Rs. 5,000/- or to
undergo Simple Imprisonment for 3 months in default under
Sec. 376 IPC. The sentence awarded to him by the learned
Trial Court under Section 506 of IPC is maintained.
The
sentences will run concurrently. One copy of this order be
sent to the concerned court, whereas another copy be sent to
the concerned Jail Superintendent for record and for
information of the appellant.
(V.K. JAIN)
JUDGE
October 13, 2009/acm
Crl. A. No. 622/06
Page 28 of 28
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