Delhi High Court
Phool Singh vs State (Nct Of Delhi) on 7 October, 2009
Author: Mool Chand Garg
Bench: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.App. 402/2007
Date of Reserve : 24.09.2009.
Date of Decision: 07.10.2009
PHOOL SINGH ..... Appellant
Through: Ms. Saahila Lamba, Amicus Curiae
Versus
STATE (NCT of DELHI) ..... Respondent
Through: Mr. Navin Sharma, APP for State
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
MOOL CHAND GARG,J
1. This order shall dispose of the aforesaid appeal filed by the
appellant under Section 374(2) Cr.P.C. against the judgment of
conviction dated 30.03.2007 and order of sentence dated 10.04.2007
passed by the Additional Sessions Judge, New Delhi in Sessions Case
No. 133/2004 arising out of FIR No. 472/2004 registered under Section
376 IPC at P.S. Najafgarh, whereby the Ld. ASJ held the appellant guilty
for the offence under Section 376 IPC and sentenced him to undergo 7
years R.I. and also to pay a fine of Rs.2000/- and in default of payment
of fine to further undergo S.I. for 2 months. Benefit of Section 428 of
Cr.P.C. has also been extended to the appellant.
2. This case was registered on the basis of the statement made by
the complainant Ram Kumari, mother of the prosecutrix. In her
complaint Ex-PW5/A it has been stated by her that, "on 28.07.04 at
Crl.App. 402/2007 Page 1 of 13
about 8.00 PM her daughter X (correct name not given) had gone
along with the children from the colony to watch a show. However, she
did not return till 11.00 PM. She searched her daughter X at the
residence of her sister-in-law residing nearby. She further stated that
X had not come back to her. She along with her sister-in-law then
searched for X here and there but could not find her. When she went
to a nearby plot having a boundary wall she found „X‟ lying naked
there. Her mouth was gazed with her salwar, she was lying in an
unconscious condition and the blood was oozing out from her private
parts. She brought X at her house and narrated the incident to her
husband. Her husband then made a telephone call to the police on
which the PCR reached there and removed „X‟ to RTRM hostpial." On
that basis FIR was registered at P.S. Najafgarh under Section 376 IPC
against the appellant. On 29.08.04, the Police party along with the
prosecutrix and her mother went towards Tyagi Farm House. They
found many persons gathered there. Among the crowd, the
prosecutrix identified accused Phool Singh to be the person who had
committed rape on her person. Accused was apprehended and his
personal search was also conducted.
3. During the course of investigation, the statement of prosecutrix X
u/s 164 Cr.P.C. was also recorded on 31.08.04 by the MM, which is
Ex.PW7/A. In her statement she had stated:
Meri Mummy ka naam Ram Kumari Hein. Papa ka naam
Matdin Hein. Mein Panchavi Class mein padhti hoon.
Meri do behan aur ek bhai hein. Mein ghar se khelne ke
liye gayi thee. Mein ghar par khana khane ko aa rahi
thee. To ek aadmi ne meira muh band kar diya aur kaha
vahan par chal. Vahan par tamasha ho raha Hein.
Vahan par Bulb jal raha tha. Usne meri Kachchi uttar di.
Usne apna pant kachcha uttara tha. Voh meire uppar let
gaya. Meire ko do chante mare. Meiri Chahti ke uppar
kaat liya. Mein Mummy-mummy boli. Usne mera naam
Crl.App. 402/2007 Page 2 of 13
puchcha. Meine apna naam Anita bataya. Mein usko
nahin janti thi. Us aadmi ne Peshab karne vali Chiiz ko
meri peshab karne vali jagah par dala thaa. Khoon nikla
thaa. Meri Kachchi bheeg gayi. Voh mujhe neeche laya.
Usne kaha ki voh ghar chale jayega to mein bhi apne
ghar chali jaon. Mein apni Mummy ke paas chali gayi.
Meri Mummy ne poocha kya huan, to meine sari baat
mummy ko batayi. Mummy ne mujhe davai dilai thi.
Mein usko pehchan sakti hoon. Jagah bhi dikha dee thi.
4. The prosecutrix was also medically examined and MLC Ex.PW3/A
was prepared. It has been proved by Dr. Aparna Nath, who examined
her and deposed in court as PW3. In her deposition she has stated;
I have seen MLC No. 974 dated 28.08.2004 pertaining to
Anita d/o Mata Din age 8 years female. On that day I
was called by the casualty medical officer to casualty for
examining Anita. I examined her and gave my noting at
point A to A of the MLC Ex.PW3/A. The notings are in my
handwriting and bears my signatures. On examination I
found abrasion and bruises present on back also
presence of nail scratches on back. Presence of bruises
around right breast. On local examination I found slight
bleeding from vagina, first degree perineal tear is
present which is bleeding, hymen is ruptured. Vagina
swab was collected, sealed and handed over to IO. The
undergarments of prosecutrix was collected, sealed and
handed over to IO.
5. After the completion of investigation, challan was filed by the
police in the court of Ld. MM. Learned MM after complying with the
provisions of Section 207/208 Cr.P.C. committed the case to Court of
Sessions. Thereafter, vide order dated 25.11.2004 charge was framed
under Section 376 against the appellant, who pleaded not guilty and
claimed trial.
6. The prosecution in order to prove its case has examined 12
witnesses. PW1 proxecutrix "X", PW2 Dr. Rajeev Solanki, PW3 Dr.
Aparna Nath, PW4 ASI Chinta Ram, PW5 Ram Kumari, PW6 Ct. Ved
Prakash, PW7 Shri Sanjeev Jain, PW8 Dr. Sanjay Kumar, PW9 Rajpal,
PW10 HC Hansraj, PW11 SI Nirmal Sharma and PW12 ASI Prabhu Dyal
Meena. In his statement under Section 313 Cr.P.C., the appellant
Crl.App. 402/2007 Page 3 of 13
denied his involvement in the commission of the offence as alleged.
He raised a plea that he has been falsely implicated in this case but
has not led any defence evidence. The Ld. ASJ vide judgment dated
30.03.2007 convicted him under Section 376 IPC and has sentenced
him as aforesaid. Thus, this appeal.
7. By this appeal the appellant has assailed the judgment of
conviction as bad in law and liable to be set aside on various grounds.
He has stated that the Court below failed to appreciate the vital fact
that the statement given by the prosecutrix under Section 164 Cr.P.C.
was a tutored statement and further her deposition had not been
corroborated by any independent evidence. It is further submitted that
the MLC Ex.PW-3/A of the prosecutrix records that the prosecutrix was
conscious at the time of her admission to the hospital. It has also been
submitted that the identification of the appellant by the prosecutrix in
crowd in company of the Police on 29.08.04 i.e. after 2 days of the
incident and recording of the statement under Section 164 Cr.P.C. on
31.08.04 also creates a doubt in the story of the prosecution. It is
submitted that the entire episode is based upon false evidence at the
instance of the mother of the prosecutrix. It has also been submitted
that the public witnesses were not at all associated with the
investigation of the case despite availability of a large crowd at the
place from where the appellant has been arrested despite a crowd
being there as alleged. It is further submitted that no Test
Identification Parade of the appellant was conducted by the police.
8. Ld. APP has supported the impugned judgment by relying upon
the statement of the prosecutrix under Section 164 Cr.P.C. which it has
Crl.App. 402/2007 Page 4 of 13
been stated, clearly makes out a case against the appellant under
Section 376 IPC. This statement has been reiterated in her deposition
in Court. It is stated that the grounds raised by the appellant are not
helpful to the case of appellant as the prosecution has established its
case beyond reasonable doubt. The prosecutrix X and her mother
have fully supported the case of the prosecution and there is nothing
to disbelieve their testimonies. It is also stated that the conviction in
such cases can always be based upon the sole testimony of prosecutrix
where there is no other independent evidence is available to
corroborate the incident. Reliance in this regard has been placed upon
the judgment delivered by the Apex Court in the case of State of
Maharashtra Vs. Chanderprakash Kewal Chand Jain, 1990 Cri.L.J. 889.
On the point of sentence, it is submitted that the punishment awarded
to the appellant is adequate for his ghastly act of committing rape
upon a minor girl who has supported her version before the
prosecution.
9. I have considered the submissions made by learned amicus
curiae for the appellant and the learned APP for the State and have
also scrutinized the evidence available on record. I fully agree with the
opinion formed by the Additional Sessions Judge that „X‟ was subjected
to rape by the appellant. In this regard, the Additional Sessions Judge
has observed that the testimony of the prosecutrix X under Section
164 Cr.P.C. is wholly reliable and minor discrepancies are of no
consequence and thus, convicted the appellant under Section 376 IPC.
In her deposition before the Ld. ASJ on 30.03.2005 the prosecutrix, who
appeared as PW1, has stated that :
Crl.App. 402/2007 Page 5 of 13
"PW1, Anita D/o Mata Ben, aged 8 years, student of 1 st
Class, Pipal wala School, R/o New Roshanpura,
Najafgarh, 40 Ft. Road.
Q. Kitne Bhai behen Hein?
A. Hum do Behen do bhai hein.
Q. Tumhare pitaji kya kaam karte hein?
A. Papa chunnai ka kaam karte hein. Maa kuch kaam
nahin karti.
Q. Sach bolna achcha hein yaa jhoot?
A. Sach bolna.
After going through the above answers, I am satisfied
that witness is able to depose in Court. Let her
statement be recorded without oath (being recorded
under camera)
Mahine ka mujhe pata nahein lekin 2004 kaa vakya hein.
Meikn khel dekhne ke liye cycle kaa hamare ghar ke pas
gayein thi. Mein khel dekh kar jab ghar aa rahein thi,
tab light chali gayi, tab ek aadmi ne mera muhn
bheench liya aur pas ke khet mein le gaya. Phir us
aadmi ne khet mein meri salwar uttar di. Khet mein hi
salwar se mera muhn bandh diya. Jo aadmi mujhe utha
kar le gaya tha, phir usne meri kachchi uttar di aur mere
sath galat kaam kiya. Galat kaam ka matlab hein usne
apni peshab karne vali jagah meri peshab karne vali
jagah mein daal di, jisse mujhe khoon nikla. Phir agle
din meine accused ko pehchana tha aurk phir police ne
accused present in court correctly identified by witness
by pointing the finger, ko pakad liya tha jisne mere sath
galat kaam kiya tha. MM ke samne mera bayan huan
tha, mera medical bhi uan tha.
RO&AC
ANITA
ASJ/30.03.05
10. It is well settled that sole testimony of „Prosecutrix‟ in a rape
case can be relied without any corroboration. Reference can be made
to some of the judgments delivered by the Apex Court which are
applicable to the facts of the present case also. In the case of Rajoo
and Ors. Vs. State of M.P. 2008(15) SCALE 375, it has been held:
8. The courts must, while evaluating evidence, remain
alive to the fact that in a case of rape, no self-respecting
woman would come forward in a court just to make a
humiliating statement against her honour such as is
involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations
which have no material effect on the veracity of the
prosecution case or even discrepancies in the statement
of the prosecutrix should not, unless the discrepancies
Crl.App. 402/2007 Page 6 of 13
are such which are of fatal nature, be allowed to throw
out an otherwise reliable prosecution case. The inherent
bashfulness of the females and the tendency to conceal
outrage of sexual aggression are factors which the
courts should not overlook. The testimony of the victim
in such cases is vital and unless there are compelling
reasons which necessitate looking for corroboration of
her statement, the courts should find no difficulty to act
on the testimony of a victim of sexual assault alone to
convict an accused where her testimony inspires
confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the
same, as a rule, in such cases amounts to adding insult
to injury. Why should the evidence of a girl or a woman
who complains of rape or sexual molestation be viewed
with doubt, disbelief or suspicion? The court while
appreciating the evidence of a prosecutrix may look for
some assurance of her statement to satisfy its judicial
conscience, since she is a witness who is interested in
the outcome of the charge leveled by her, but there is no
requirement of law to insist upon corroboration of her
statement to base conviction of an accused. The
evidence of a victim of sexual assault stands almost on a
par with the evidence of an injured witness and to an
extent is even more reliable. Just as a witness who has
sustained some injury in the occurrence, which is not
found to be self-inflicted, is considered to be a good
witness in the sense that he is least likely to shield the
real culprit, the evidence of a victim of a sexual offence
is entitled to great weight, absence of corroboration
notwithstanding. Corroborative evidence is not an
imperative component of judicial credence in every case
of rape. Corroboration as a condition for judicial reliance
on the testimony of the prosecutrix is not a requirement
of law but a guidance of prudence under given
circumstances. It must not be overlooked that a woman
or a girl subjected to sexual assault is not an accomplice
to the crime but is a victim of another person's lust and
it is improper and undesirable to test her evidence with
a certain amount of suspicion, treating her as if she were
an accomplice. Inferences have to be drawn from a
given set of facts and circumstances with realistic
diversity and not dead uniformity lest that type of
rigidity in the shape of rule of law is introduced through
a new form of testimonial tyranny making justice a
casualty. Courts cannot cling to a fossil formula and
insist upon corroboration even if, taken as a whole, the
case spoken of by the victim of sex crime strikes the
judicial mind as probable.
11. Some observations made in the case of Om Prakash Vs. State of
U.P. AIR 2006 SC 2214 are reproduced hereunder:
13. A prosecutrix of a sex-offence cannot be put on par
with an accomplice. She is in fact a victim of the crime.
The Evidence Act nowhere says that her evidence
cannot be accepted unless it is corroborated in material
particulars. She is undoubtedly a competent witness
under Section 118 and her evidence must receive the
same weight as is attached to an injured in cases of
Crl.App. 402/2007 Page 7 of 13
physical violence. The same degree of care and caution
must attach in the evaluation of her evidence as in the
case of an injured complainant or witness and no more.
What is necessary is that the Court must be conscious of
the fact that it is dealing with the evidence of a person
who is interested in the outcome of the charge leveled
by her. If the Court keeps this in mind and feels satisfied
that it can act on the evidence of the prosecutrix. There
is no rule of law or practice incorporated in the Indian
Evidence Act, 1872 (in short 'Evidence Act') similar to
illustration (b) to Section 114 which requires it to look for
corroboration. If for some reason the Court is hesitant to
place implicit reliance on the testimony of the
prosecutrix it may look for evidence which may lend
assurance to her testimony short of corroboration
required in the case of an accomplice. The nature of
evidence required to lend assurance to the testimony of
the prosecutrix must necessarily depend on the facts
and circumstances of each case. But if a prosecutrix is
an adult and of full understanding the Court is entitled to
base a conviction on her evidence unless the same is
own to be infirm and not trustworthy. If the totality of
the circumstances appearing on the record of the case
discloses that the prosecutrix does not have a strong
motive to falsely involve the person charged, the Court
should ordinarily have no hesitation in accepting her
evidence. This position was highlighted in State of
Maharashtra vs Kewalchand Jain AIR 1990 SC 658.
12. In the case of State of Maharashtra Vs. Chanderprakash Kewal
Chand Jain (supra), it was held:
16. A prosecutrix of a sex-offence cannot be put on par
with an accomplice. She is in fact a victim of the crime.
The Evidence Act nowhere says that her evidence
cannot be accepted unless it is corroborated in material
particulars. She is undoubtedly a competent witness
under Section 118 and her evidence must received the
same weight as is attached to an injured in cases of
physical violence. The same degree of care and caution
must attach in the evaluation of her evidence as in the
case of an injured complainant or witness and no more.
What is necessary is that the Court must be alive to and
conscious of the fact that it is dealing with the evidence
of a person who is interested in the outcome of the
charge leveled by her. If the court keeps this in mind and
feels satisfied that it can act on the evidence of the
prosecutrix, there is no rule of law or practice
incorporated in the Evidence Act similar to illustration (b)
to Section 114 which requires it to look for corroboration.
If for some reason the Court is hesitant to place implicit
reliance on the testimony of the prosecutrix it may look
for evidence which may lend assurance to her testimony
short of corroboration required in the case of an
accomplice. The nature of evidence required to lend
assurance to the testimony of the prosecutrix must
Crl.App. 402/2007 Page 8 of 13
necessarily depend on the facts and circumstances of
each case. But if a prosecutrix is an adult and of full
understanding the Court is entitled to base a conviction
on her evidence unless the same is shown to be infirm
and not trustworthy. If the totality of the circumstances
appearing on the record of the case discloses that the
prosecutrix does not have a strong motive to falsely
involve the person charged, the Court should ordinarily
have no hesitation in accepting her evidence. We have,
therefore, no doubt in our minds that ordinarily the
evidence of a prosecutrix who does not lack
understanding must be accepted. The degree of proof
required must not be higher than is expected of an
injured witness.
13. As far as the grounds raised by the appellant in this appeal are
concerned, the Ld. ASJ has already dealt with each ground specifically
in following manner:
14. Commision of rape on the person of the
prosecutrix, as such, has not been disputed by the Ld.
Counsel for the accused. I am also of the view that there
is over-whelming evidence on record to prove the
commission of rape on the person of the prosecutrix. DD
No. 3A dated 28.8.04 was recorded at the first instance
wherein it was mentioned that rape was committed on
the person of the prosecutrix "X". The prosecutrix was
got medically examined. Her MLC Ex.PW3/A was
prepared. As per this MLC, the prosecutrix was brought
at RTRM Hospital, Jaffarpur by PCR at about 1.30 AM. In
the alleged history, there was specific mention of sexual
assault on the person of the prosecutrix, aged about
eight years. Abrasions and bruises were found present
on the back of the prosecutrix. Nail scratches were also
found present back on the back of the prosecutrix.
There were bruises around right breast of the victim. It
was also found that there was slight bleeding from
vagina. Hymen was ruptured. PW4 Dr. Aparna who
medically examined the prosecutrix proved the MLC
Ex.PW3/A. Prosecutrix herself in her testimony before
the Court categorically deposed that rape was
committed on her person. She is not expected to fake
the incident of rape to bring herself in disrepute.
15. Regarding involvement of the accused in the
commission of offence, testimony of prosecutrix/victim
"X" is material. In her statement before the Court as
PW1, the prosecutrix was put number of questions by
my Ld. Predecessor to ascertain if she was a competent
witness and was able to give rational answers. The Ld.
Predecessor found the child "X" competent to depose
and recorded her testimony without oath.
16. In her deposition, the prosecutrix categorically
deposed that on the day of incident, she had gone to
watch a show of cycle near her house. When she was
returning after watching the show, the light went off. At
that time, one person gagged her mouth and took her to
Crl.App. 402/2007 Page 9 of 13
a field. There the said person put off her salwar and tied
her mouth with that. The said person also put off her
underwear and thereafter committed rape on her
person. She started bleeding. The prosecutrix further
stated that on the next day, she identified the accused
present before the Court. In her deposition, the accused
was identified by the prosecutrix by pointing out her
finger towards him. The witness stated that accused
was the person who had committed rape on her person.
Her statement was also got recorded before the Ld. MM.
17. This witness was cross examined by the Ld.
Defence counsel. In the cross examination, the witness
stated that she had told the police the color of the
accused. Accused was not having any beard on the day
of incident. She had never seen the accused prior to the
incident. The witness denied the suggestion that
accused had not committed rape on her person or that
she identified the accused at the instance of the police.
The witness denied the suggestion that she was making
false statement.
18. Overal testimony of this witness reveals that the
factum of rape committed on the person of this witness
has not been challenged in the cross-examination. The
prosecutrix categorically identified the accused to be the
person who had committed rape on her person. No
material contradictions or discrepancies have come in
her testimony to disbelieve her. No motive was imputed
to this witness in the cross examination to falsely
identify the accused to be the offender. Prosecutrix
herself is a victim in the incident. She must be
interested to bring the real culprit to book. She is not
imagined to falsely rope in the accused with whom she
was having no previous enmity or ill-will. In the cross
examination, the accused did not categorically deny his
presence with the prosecutrix at the time of incident.
Material facts asserted by the prosecutrix in her
testimony have remained unchallenged and
uncontroverted in the cross examination. Accused did
not suggest to this witness if he was present at any
other particular place at the time of incident.
19. PW5 Ram Kumari, mother of the prosecutrix has
also supported the case of the prosecution and has
corroborated the version given by the prosecutrix. In
her deposition before the Court also she deposed as to
how and under what circumstances her daughter "X"
happened to go to see a cycle show and how she did not
return till 11 PM. She also stated that on search, the
prosecutrix was found lying naked in a plot having
boundary wall and she was bleeding from her private
parts and was unconscious. This witness stated that on
29.08.04, accused was identified by her daughter. When
she along with her daughter and husband had gone with
the police towards Tyagi Farm House and many public
persons had gathered there and among the crowd, the
prosecutrix informed the police that the person wearing
white color shirt and black pant was the person who had
committed rape on her person. On that, the accused
present before the court, was apprehended and he
confessed his guilt among the public persons present
there. Personal search of the accused was conducted
but nothing was recovered therein.
Crl.App. 402/2007 Page 10 of 13
20. This witness was also tested in cross
examination. In the cross examination, she stated that
she had made efforts for about 2-2 ½ hours to search
the prosecutrix. The plot from where her daughter was
recovered was at a distance of 8/10 plots from her
house. The witness denied the suggestion that the
accused was falsely implicated in this case at the
instance of the police.
21. Entire testimony of this witness also reveals that
no major contradictions have been elicited in her cross
examination to discard her testimony. Again this
witness being mother of the prosecutrix has no axe to
grind to falsely implicate the accused with whom there
was no previous enmity. Again no suggestion was put to
this witness in the cross examination that the
prosecutrix had not identified the accused to be the
person who had committed rape on her person among
the crowd present there. The accused did not deny his
presence among the crowd at the time of his
identification by the prosecutrix. The accused also did
not suggest to this witness his availability at some other
place on the day of incident or at the time of his arrest.
22. Testimony of PW6 Ct. Ved Prakash is also
material regarding apprehension of the accused. He in
his deposition before the court stated that on 09.08.04
he had joined the investigation. He along with IO and
other police officials had gone to Tyagi Farm House
where many persons were present. Prosecutrix "X"
pointed out towards accused Phool Singh and told the IO
that he was the person who had raped her. Accused was
arrested and brought to PS. Thereafter he took the
accused to RTRM hospital for medical examination.
Again this witness has no ulterior motive to falsely
depose about the apprehension of the accused at the
pointing out of the prosecutrix.
23. PW10 HC Hansraj has supported the version
given by PW6 Ct. Ved Prakash. He has also stated in his
testimony before the court that on 29.08.04 he had
joined investigation near Tyagi Farm House. Many
persons were present there. Prosecutrix and her parents
were also present there. The prosecutrix pointed out
towards a person standing in the gathering and told that
"is admi ne galat kaam kiya tha mere saath our ise ne
mera muh dabaya tha". The accused was apprehended
and on inquiry he disclosed his name as Phool Singh.
28. In the statement recorded under Section 164
Cr.P.C. the prosecutrix categorically stated to the Ld. MM
that she could identify the rapist. This statement of the
prosecutrix was recorded on 30.08.04 after the
apprehension of the accused on 29.08.04.
30. The prosecutrix "X" aged about 8 years, a child
witness has no axe to grind to falsely identify the
accused and to accuse him of committing rape on her
person. She had suffered injuries on her person.
Nothing has come on record to show that the statement
made by the witness before the Ld. MM or before the
Court was tutored to her. Again parents of the
prosecutrix were not going to be benefited by tutoring
the statement to the prosecutrix to let the real culprit go
Crl.App. 402/2007 Page 11 of 13
scot free. The accused was arrested soon on the next
day after the incident and identify of the rapist was fresh
in the mind of the prosecutrix at that time.
31. In the statement recorded under Section 313
Cr.P.C., the accused has merely stated that due to
enmity, someone falsely gave his name to be the rapist.
However, he did not explain as to who was his enemy to
name him falsely in this case. He did not allege any
enmity with the family members of the prosecutrix. The
accused was arrested on 29.08.04 itself. He or his
family members did not lodge any complaint against any
police official or public witnesses for falsely
apprehending him in this case.
32. Shirt of the accused as seized in this case by the
doctor who medically examined him. This shirt was also
sent to FSL during investigation. As per the FSL report
Ex.PX, human blood was detected on it. Accused has
failed to explain how the blood happened to be there on
his shirt. This also lends credence to the prosecution
case.
33. Minor contradictions, improvements and
exaggerations which do not go to the root of the case
are not fatal to the case of the prosecution.
14. Having gone through the record of the case and the settled law
on the subject and the judgment delivered by the Trial Court who has
dealt with the issues and has also considered the statement made by
the prosecutrix X under Section 164 Cr.P.C., it is clear that she was
subjected to inhuman act of rape by the appellant. In fact, the plea of
innocence taken by the accused/appellant has not been substantiated
by him either from the cross-examination of the witnesses or by
leading any defence in this regard. There is no reason to believe that
it is a case of false implication when the prosecutrix had very
categorically stated about the role of the appellant in the commission
of rape upon her. Therefore, taking into consideration the facts and
circumstances of the case, I uphold the conviction of the appellant. I
also do not find any reason to interfere in the order of sentence
awarded to the appellant in view of the age of the prosecutrix.
Accordingly the appeal is dismissed. Copy of the order be sent to the
Crl.App. 402/2007 Page 12 of 13
appellant through Jail Superintendent and to the trial court with TCR.
The fee of the amicus curiae is fixed as Rs. 4000/-.
Crl.M.B.987/2007
In view of the orders passed above, the application stands
dismissed.
MOOL CHAND GARG, J.
OCTOBER 07, 2009 ag Crl.App. 402/2007 Page 13 of 13