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40. In the present case the accused took an initial plea of false implication to show his innocence. The prosecutrix, however, stood by her version, which came out to be true in the scientific evidence also. A witness is normally to be considered independent unless he or she springs from sources FIR No.58/13,PS. Nihal Vihar Page 29 of 55 State v. Rahul Tomar U/s. 376/506 IPC which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism. However, there can be no sweeping generalization. Each case must be judged on its own facts. Accused of the instant case has not taken a serious plea of enmity. There is no suggestion given to prosecutrix regarding consensual relationship. The paternity of the child was admitted after the report of DNA filed on record. Nothing therefore, is coming on record suggesting that the prosecutrix had any reason to implicate the accused falsely , even though he was willing to take the responsibility of her and her child. On the contrary the conduct of the accused suggest that he was not willing to take the responsibility of the girl and the child, which as per him was a product of consensual relationship though denied by the prosecutrix.

Defence of the accused:

41. The prosecutrix through out the trial claimed that she was FIR No.58/13,PS. Nihal Vihar Page 30 of 55 State v. Rahul Tomar U/s. 376/506 IPC bearing the child of the accused. Not once during the entire trial did the accused admit that he had physical relations with the prosecutrix or that there was any consensual relation between the two of them. On the contrary he denied having had any relation with the prosecutrix. He suggested that the prosecutrix had wrongly implicated her in the false case to avoid some payments, which were to be made to him by some NGO, and she did this at the instance of her sister and brother in law. It was suggested to the prosecutrix that accused used to take people from the NGO (with which the cousin of the prosecutrix and her husband were associated) by auto and that the said NGO did not make payment to the accused because of which differences arose and he was falsely implicated in collusion with the NGO. It was suggested to the prosecutrix that the accused never entered her house or committed rape upon her. The prosecutrix did deny the suggestions so given. The accused thus did not take the defence of consensual relationship during the trial. The prosecutrix was not given suggestion that she was going around with him consenting to physical relations or that she wanted to marry the accused or that the pregnancy was in fact a result of consensual relation that she had with him. The accused did not own up to the FIR No.58/13,PS. Nihal Vihar Page 31 of 55 State v. Rahul Tomar U/s. 376/506 IPC pregnancy of the deceased at all till the result of the DNA mapping was filed in the court. The prosecution witnesses were not afforded an opportunity to meet out the case of the accused on his plea of consensual relationship. It is settled law that to become admissible, the defence, which is based on facts, has to be put to the prosecution witnesses in their cross examination. The prosecution can not be caught unaware of something that springs up suddenly at the stage of defence, when the witnesses of prosecution are already gone. In 2011 (1) CC Cases (SC) 312, Sher Singh and Anr. Vs. State of Haryana, the Hon'ble Supreme Court held that the defence of the accused was an afterthought as there was no suggestion (given) to the prosecution witnesses. In the present case also the accused denied his relationship with the prosecutrix throughout the prosecution evidence, not giving any suggestion to any prosecution witness in the trial regarding his defence and, therefore, his defence will have to be discarded as an afterthought having been taken after he acquired the knowledge of he having been scientifically found to be the father of the child of the prosecutrix.

43. Though the defence of the accused taken at highly belated stage is not believable per se; even if it is considered for the sake of argument that there was any consensual relationship between the accused and the prosecutrix, the accused remains responsible for rape, as he did not own up the relationship and left the pregnant prosecutrix to bear the consequences of their alleged consensual relationship. PW­3 in her evidence said that when she confronted accused regarding the pregnancy of the prosecutrix he asked her to get the same terminated. This fact was not disputed by the accused in the cross examination of the witness. No suggestion was given to the witness that she had not questioned the accused about the pregnancy of the prosecutrix or that he had not even asked her to get the same terminated. Yet he did not admit his relationship with the prosecutrix. In his statement under section 313 Cr.P.C., for the first time he said that he was willing to take the responsibility of his daughter. But his verbal intentions did not culminate in an action. He apparently did not approach or offered to marry or offered to maintain the daughter. There is no such thing FIR No.58/13,PS. Nihal Vihar Page 34 of 55 State v. Rahul Tomar U/s. 376/506 IPC atleast in evidence. The owning up thus appears to be an attempt only to avoid the conviction, with no honest intention attached to it.

47. It was argued by Ld counsel that the accused admitted in his disclosure that he loved the prosecutrix but the IO did not investigate this fact. Firstly the disclosure is not admissible evidence. Secondly the disclosure is not saying that there was a consensual relationship. Over and above the accused himself did not own up during trial that he loved prosecutrix or that she was also in love with him and there was consensual relationship. He himself disowned his disclosure. The accused in fact is coming out as an opportunist. He FIR No.58/13,PS. Nihal Vihar Page 37 of 55 State v. Rahul Tomar U/s. 376/506 IPC changes his version at every step to suit his case. His defence of consensual relationship has been discarded hereinabove otherwise.