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1992 Supreme(Del) 346
High Court Of Delhi
CHIDDA RAM - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL A-359 of 1976
Decided On : 07/14/1992
S.P.Kaira
Headnote:Indian Penal Code, 1860 - Section 366/376 - Indian Evidence Act, 1872. S. 118 - Conviction for kidnapping and rape - Based on evidence of prosecutrix - She was found changing her version from stage to stage - Medical evidence showing that she was used to habitual sexual intercourse. No corroboration - Testimony not inspiring confidence - Age of prosecutrix found above 16 - Consenting party Whether offence of rape and that of a minor made out? (No).
Held: If she could point out the petitioner in the market what prevented her from telling the police in the Police Post Shadipura that the petitioner had committed rape on her. These facts are un-reconcilable and therefore her testimony does not inspire confidence. (para 5)
Therefore, the present story set up by her is an after thought and cannot be relied upon. Moreover, she admits that she had been having this sort of affair with the petitioner for the last five years. She did not tell her parents that she was agreeable to the suggestion of the petitioner and now at the instance of her parents she implicated the petitioner. Having an affair gets proved from the medical report which says that the petitioner was habitual of sexual intercourse. For all those reasons, I find that the testimony of the prosecutrix that the petitioner committed rape on her is belied from the facts which have come on record. (para 5)
Further held: The school certificate or the admission form is not a conclusive evidence of the age because it is based on no evidence at all. This in fact remained unproved and therefore cannot be treated as conclusive evidence. The birth certificate has not been produced therefore the conviction based on the age on the basis of doctor's opinion cannot be sustainable. In fact there is a conflict regarding the date of birth of the prosecutrix as given by her parents and that opined by the doctor. As per the mother's version the prosecutrix cannot be said to be below the age of 16 years whereas the ossification test shows that she was below the age of 16 years. If the two years margin is taken then it cannot be said that she was below the age of 16 years at the date of the incident. In view of the two ages of the prosecutrix having come on record the accused can claim to choose one which shows the age of the prosecutrix above 16 years. Therefore, to my mind the learned Additional Sessions Judge was not justified in coming to the conclusion that the prosecutrix was below the age of 16 years at the time the offence was committed. (para 8)
The learned Addl. Sessions Judge's basis for conviction was the age of the prosecutrix. On the basis of the evidence adduced before him he came to the conclusion that the prosecutrix was a consenting party in eloping from her house but convicted the petitioner on the account because prosecutrix being minor her consent had no meaning. But since I have held that she was not minor her consent assumes importance. If she was a consenting party in elopping from her house with the petitioner then it cannot be called a case of kidnapping. Therefore this offence against the petitioner, to my mind, is not established. Similarly as regards the rape, there is not an iota of evidence to establish that the petitioner committed rape on her on the night of 28th May and 29th May, 1975. On the contrary from the testimony of Dr. N. Trigunayat, P.W. 6 it has come on record that the prosecutrix was used to sexual intercourse. In the absence of the medical report of vagina and cervical swabs it cannot be said that the petitioner committed sexual intercourse with the prosecutrix on the night of 28th May, 1975. Even otherwise the story given by the prosecutrix after being handed over by the police to her mother does not inspire confidence nor any credence can be attached to the same. Her version vary from stage to stage and from point to point. Therefore, no much reliance can be placed on the testimony of me prosecutrix particularly when there is no corroboration for the same. (Para 8)
Finally held: For the above reasons, I accept the appeal. The conviction and sentence are accordingly set aside. (para 9)
( 1 ) CHIDDA Ram son of Shri Bitbal had been convicted under Section 366/376 Indian Penal Code. and was sentenced to undergo rigrous imprisonment for two years on each count. It was further ordered that the sentences were to run concurrently. Against this order of conviction and sentence, Chidda Ram has come up in appeal inter alia on the grounds that the prosecution failed to produce the report of the analyist with regard to the vaginal swab of the prosecutrix. In the absence of the medical report of the prosecutrix, the petitioner could not have been convicted. Trial court has also ignored the report of the prosecutrix lodged with the police post Shadipura which circumstance establishes that subsequent story given by the prosecutrix is after thought and built up. The learned Sessions Judge has also ignored the testimony of Prem Prakash, Police Officer of police post, Shadipura. Further he has also ignored the evidence regarding the age of the prosecutrix. In fact the trial court has completely given a go bye to the evidence adduced and has sentenced the accused on surmises and conjuctures.
( 2 ) IN order to appreciate the contention of the petitioner, in nutshell the case of the prosecution as set up is that Indra Wati, the prosecutrix who bad been residing with her parents at Yusuf Sarai was entised by the Chidda Ram, the present petitioner. Chidda Ram is the brother-in-law of her sister. He was having evil eye on the prosecutrix. He ultimately succeeded in eloping her by offering to provide her good clothes and food. She was minor in the age group of 14 and 16 years and she came under his elorements. On 28th May, 1975, on the asking of the petitioner/accused, Indra Wati went to the prosecution and from there he took her to his house known as DCM quarter. He kept her for the night in the said quarter and committed rape on her. Next day, he took her to another quarter which belonged to his brother-in-law. On 29th May, 1975, he along with two associates brought the prosecutrix to the police post Shadi Pura and pressurised her to make a statement that she left her home of her own accord. This statement according to the prosecution the prosecutrix made at the asking of the petitioner. Since the prosecutrix was missing, her mother Surjeet Kaur lodged the report with the police. On 29th May, 1975, the mother of the prosecutrix went to the quarter of the petitioner but could not trace the prosecutrix and the petitioner showed his ignorance. However, the police official handed over the prosecutrix to her mother. On being medically examined it was found that her age was between 14 and 16 years. It was in this background that the petitioner was challaned. The prosecution examined as many as 12 witnesses. Similarly, the petitioner besides giving his own statement examined two witnesses. In our society respect for the dignity of the woman is on the decline, mobilisation and rapes are on the increase, though these offences are committed by sick minds but since it deals with the decency and morality in the public life and touches the honour of womanhood hence the offenders are to be dealt with strictly. It is also a well settled principal of law that prosecutrix is a victim of crime. Her evidence can be accepted without being corroborated in material particulars. She is a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in case of physical violence. But at the same time Courts have to strike balance while evaluating the evidence of the prosecutrix, her testimony has to be evaluated like that of a witness or a complainant with care and caution. If her testimony inspire confidence and is trusworthy then there is no need of any corroboration. But this all depends on the facts and circumstances of each case. With this view of the law we have to see whether in this case Indra Wati s testimony regarding petitioner s committing sexual assuit or rape on her inspires con
