Delhi High Court
Devu Samal vs The State on 3 January, 2012
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No. 412/2000
% Reserved on: 19th December, 2011
Decided on: 3rd January, 2012
DEVU SAMAL ..... Appellant
Through: Dr. R.S. Sasan, Amicus Curiae.
versus
THE STATE ..... Respondent
Through: Mr. Mukesh Gupta, APP with ASI Suraj Mal, PS Tuglak Road.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By this appeal the Appellant challenges the judgment dated 20 th May, 2000 passed by the learned Additional Sessions Judge convicting him for offence under Section 376 IPC and the order on sentence dated 22nd June, 2000 directing him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo simple imprisonment for a period of six months.
2. Learned counsel for the Appellant contends that primarily two witnesses have been examined against the Appellant. The testimony of the Prosecutrix PW1 does not inspire confidence and is not trustworthy. In her examination-in-chief she states that the Appellant raped her at his house, however, in her cross-examination she states that she was at her residence.
According to her the Appellant came to the premises where she was working and the landlady opened the house thereafter the Appellant took her to Sujan Singh Park. Though the clothes were stated to be seized however, no Crl. A. No. 412 of 2000 Page 1 of 4 statement of the Prosecutrix has been recorded identifying the seized clothes. The PCR call received by the police was regarding a quarrel between the parties. Further the Prosecutrix stated that when rape was committed her feet were tied by the Appellant. Further the FSL report does not fortify the claim of the Prosecutrix. Though semen was found on the bed cover and the underwear of the prosecutrix, however, the same did not match with that of the Appellant. Further the vaginal smear gave AB group positive whereas on the bed sheet group B was found. Even as per the MLC there is no external injury on the prosecutrix except a cut on the lip though she has alleged that her legs and feet were tied. In view of the contradictory uninspiring evidence of the prosecutrix the Appellant is liable to be acquitted.
3. Learned APP for the State on the other hand contends that the Prosecutrix who appeared in the witness box has clearly deposed about the rape committed on her. Though there are certain contradictions in the cross- examination however, she has stated that during the mid night the Appellant raped her by force at his quarter without her consent. The Appellant further gave her slap and threatened that he would tie her feet with her chin. The Prosecutrix was medically examined after the incident and as per the MLC there was cut mark on the lip which corroborates the version of the prosecutrix. Hence the appeal is liable to be dismissed.
4. I have heard learned counsel for the parties and perused the record.
5. PW1 the Prosecutrix in her testimony has stated that in the year 1998 she was working at Chitranjan Park with one Mr. Verma. The Appellant is a relation of her husband. The Appellant asked her to leave that job and arranged another job for her. The Appellant also arranged a job for her Crl. A. No. 412 of 2000 Page 2 of 4 husband at some distant place. When the Prosecutrix contacted the Appellant to know the address of her husband, the Appellant assured that he will take her to the place where her husband was working. Thus the Appellant took her to his quarter on the evening of 8 th April, 1998. During the night the Appellant raped her by using force at his quarter without her consent. The Appellant gave her a slap and threatened that he would tie her feet with a chain. Thereafter the Appellant took her to a taxi stand and asked the taxi driver to drop her to her husband's place. When the Prosecutrix told the taxi driver that the Appellant had committed rape with her the taxi driver called the police on telephone. Thereafter her statement was recorded vide Ex.PW1/A. The Prosecutrix was also examined medically. However, in her cross-examination the Prosecutrix has stated that she and her husband left the job from the house of Mr. Verma at the instance of the Appellant when he told that a relation of her husband had died and they had to go to their village. The Appellant came to her residence in the night when he committed rape on her but she did not remember the date and the day. The Appellant came at night and gave the bell. The door was opened by the landlady. Thereafter the Appellant took the Prosecutrix to his room in Sujan Singh Park in an auto. According to her the room of the accused was on the third floor and when the Appellant raped her none was present in that room. The Appellant tied both her feet and her legs while hands were free. Thereafter the Appellant brought her downstairs and took her to the taxi stand. At the taxi stand she wept and thereafter she was made to sit in the taxi and that the Appellant told the taxi driver to drop her at her husband's house. A perusal of the testimony of the Prosecutrix shows that as per her examination the offence of rape was committed on her when she went to the Crl. A. No. 412 of 2000 Page 3 of 4 house of the Appellant however, in the cross-examination she stated that it was committed both at her residence and thereafter when she went with the Appellant where he committed rape on her. Further when the rape was committed her feet were tied up. Moreover, as per the FSL report the vaginal swab of the Prosecutrix and the pajama, underwear and bed sheet of the prosecutrix gave positive of human semen. However, the underwear of the Prosecutrix gave AB group whereas on the bed sheet it was B group. Thus in view of the contradictory testimony of the prosecutrix which is not supported by the FSL report I think it is a fit case of grant of benefit of doubt to the Petitioner. Accordingly the impugned judgment of conviction and the order on sentence are set aside and the Appellant is acquitted of the charges framed.
6. The appeal is disposed of.
7. The Superintendent, Tihar Jail, is directed to release the Appellant forthwith, if not required in any other case.
(MUKTA GUPTA) JUDGE JANUARY 03, 2012 'vn' Crl. A. No. 412 of 2000 Page 4 of 4