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High Court of Delhi
G.P. MITTAL, J.
Sajid @ Salman
Versus
State
CRL.A. 371 of 2012
Decided on : 05-03-2013
Rape - Indian Penal Code - Sections 376, 506(II)
Fact of the Case:
The case involved the conviction of the Appellant for the offences of rape and criminal intimidation under Sections 376 and 506(II) of the Indian Penal Code. The prosecutrix, a 16-year-old girl, alleged that the accused, her neighbor, had raped her on multiple occasions in the absence of her mother and had threatened her to keep silent.
Finding of the Court:
The court found that the prosecution failed to establish that the sexual intercourse with the prosecutrix was against her will or without her consent. It concluded that the circumstances indicated that the prosecutrix was a consenting party and, since she was above 16 years of age, the Appellant was acquitted of the charges.
Issues: The main issue was whether the sexual intercourse was consensual or non-consensual, and whether the delay in lodging the report affected the credibility of the prosecutrix's testimony.
Ratio Decidendi: The court emphasized that delay in lodging the FIR cannot be a ground by itself for dismissing the prosecution case. It also highlighted that the testimony of a victim of sexual assault should not be compared with that of an accomplice in a crime and that corroboration is not always necessary, but in this case, corroboration was required due to the delay in reporting and the circumstances of the case.
Final Decision: The Appellant was acquitted of the charges under Sections 376 and 506(II) of the Indian Penal Code, and the impugned order was set aside.
G.P. Mittal, J.
1. This Appeal is directed against a judgment dated 03.11.2011 and an order on sentence dated 15.11.2011 passed by the learned Additional Sessions Judge (‘ASJ’) whereby the Appellant was held guilty for the offences punishable under Sections 376/506(II) of the Indian Penal Code (IPC) and was sentenced to undergo Rigorous Imprisonment for seven years with fine of Rs.2,500/- and in default of payment of fine to undergo Simple Imprisonment for six months under Section 376 IPC; and further to pay fine of Rs.500/- and in default of payment of fine to further undergo SI for one month under Section 506 Part II IPC.
2. The facts of the case can be extracted from Paras 1 and 2 of the impugned judgment hereunder:-
“1. Case of the prosecution is that FIR No.159/2008 was registered u/s 376/506 IPC on 16.4.2008 in PS Okhla Industrial Estate on the statement of the 16 year old prosecutrix (name withheld) that she is an illiterate girl. Sajid (accused) used to work as a Tailor in a factory in front of her house and he is her brother by a distant relationship. She became acquainted with him. About four months ago when her mother had gone to her village in Barrailly, She was alone in the house as her father and brother used to go out of house for work. Sajid, one day, came to her house when she was alone and despite her resistance, he committed rape upon her. On various other occasions, Sajid committed rape upon her in the absence of her mother and intimidated her that she and her father would be killed if she revealed this to anyone. The prosecutrix got frightened and did not tell anyone about it. When her health deteriorated, she was taken to a Doctor where it transpired that she was three months’ pregnant. She told about the incident to her parents and her father took her to the police station. Her statement was recorded in the police station and FIR was registered.
2. Next day, the prosecutrix was got medically examined in AIIMS where she was found to be 19-20 weeks pregnant. The accused was arrested on 3.6.2008. He was also medically examined in AIIMS where the attending doctor did not find anything suggestive of any incapacity of the accused to perform sexual intercourse in ordinary circumstances. Statement of the prosecutrix was also recorded u/s. 164 Cr.PC and after completion of investigation, charge sheet was filed against the accused and since the offence of ‘rape’ was exclusively triable by the Court of Session, the matter was committed to the Sessions Court for trial. The accused was charged u/s. 376 IPC, to which he pleaded not guilty and claimed trial.”
3. The only contention raised by the learned counsel for the Appellant is that the sexual intercourse with the prosecutrix was with her consent. When the factum of the prosecutrix becoming pregnant was discovered by the prosecutrix’s mother she (the prosecutrix) in collusion with her parents leveled false allegations of rape against the Appellant.
4. The learned counsel for the Appellant argues that the consensual sexual intercourse was converted into rape by the prosecutrix which is proved from the circumstances under which the act of rape was disclosed for the first time by the prosecutrix.
5. On the other hand, learned APP for the State argues that it is not believable that false allegations of rape would be leveled by a young unmarried girl. The fact that the prosecutrix got pregnant speaks volume about the sexual intercourse performed on the prosecutrix against her consent.
6. To appreciate the contention raised by the respective parties, it would be appropriate to extract the prosecutrix’s statement recorded by the learned Additional Sessions Judge (‘ASJ’ as under:-
“I know accused Sajid present in the court today as he used to reside in front of my house. About an year ago my mother was away to Bareily those days and I was alone at my home. My father also used to leave in morning for his work. One day accused Sajid came to my house when I was alone a
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