Judgment:
Shiv Narayan Dhingra, J.
1. This appeal has been preferred against the judgment of Additional Sessions Judge dated 17th December, 1998 whereby the learned Trial Court convicted the appellant of offence under Section 376 IPC as well as against the order of sentence dated 19th December, 1998 whereby the appellant was sentenced to imprisonment for seven years and a fine of Rs. 1,000/-.
2. Briefly the facts are that the appellant known as Father Shepherd used to take tuitions/teach children at his home. The prosecutrix aged around 19 years, seemed to be poor in study and was studying in 7th standard. She had started taking tuition from him only a week before this incident. On 3rd May, 1995 she went to the house of accused at 7/25 Nehru Nagar, New Delhi. Three young children, one aged three years, another five years and the third one a girl aged seven years, were already there in the house apart from the accused. On her reaching at the house of the accused for tuition, the accused told the eldest girl, out of the three children present, to call another girl Rajni for tuition. After she went out. the accused became naked and also took off the clothes of the Prosecutrix, made her lie on a sofa and forcibly committed sexual intercourse with her. In the meantime, Rajni came back and the accused hurriedly put on clothes and asked to do the same to Prosecutrix and started shouting at Prosecutrix that she had stolen money from Gullak (money saving box) and she should get out and should not show her face again. The Prosecutrix went along with Rajni to her elder sister and narrated the incident to her, who in turn advised the Prosecutrix to go and tell everything to her mother. On her advising, the Prosecutrix went to her home and narrated the incident to her mother, who took her to the Police Station and lodged an FIR No. 328/95 at P.S. Sriniwaspuri. The girl was sent for medical examination to AIIMS and the accused was arrested on the same night, later on. He was also sent for medical examination. The medical examination of the Prosecutrix showed that there was slight bleeding from the vagina and there was suspected hymen tear. After completing the investigation, challan was filed against the accused.
The Prosecutrix in her testimony before the Trial Court gave the same account of the incident as was given by her in her complaint to the police. She was cross-examined at length. She stated in her cross-examination that she had started taking tuition only a week before the incident. She had not paid any tuition fee till then. There was no another woman present in the house at the time of the alleged rape. Two small children remained present in the room during the incident. She reconfirmed that she had bleeded from her private part but did not suffer any other injury. In the incident her salwar was got torn.
3. The mother of Prosecutrix had appeared as PW-1. She testified that her daughter went for tuition to the accused around 4.30 p.m. on that day and she returned at 6.30 p.m. She came weeping and disclosed that the accused had committed intercourse with her. She also narrated about her daughter's going to Rajni's house and narrating the incident to her elder sister and on the advice of Rajni's elder sister, the Prosecutrix came home and narrated the incident to her. She then took her to the Police Station and got an FIR registered. The only suggestion given to her was that no such incident had taken place and accused was falsely implicated at the instance of Mr. Joyce, the Secretary of SPG Mission
4. The doctor, who prepared MLC of the Prosecutrix proved MLC as Ex. PW-5/A and testified that the Prosecutrix was examined by her and a slight bleeding was present in the vagina. There was suspected hymen tear and in view of bleeding from vagina, possibility of intercourse could not be ruled out. Similarly, PW-6, had examined the accused and gave opinion in MLC PW-6/A that there was nothing to suggest that the accused was incapable of performing sexual intercourse. PW-7 is Investigating Officer, PW-3 is Head Constable, who was working as Duty Officer and had recorded the FIR, PW-4 is lady Constable, who had taken the Prosecutrix for medical examination to AIIMS.
5. During the arguments, the Counsel for Appellant pointed out several investigating lapses on the part of the Investigating Officer. He stated that Rajni was an important witness but, she was not made as a witness by the Investigating Officer. The underwear and salwar of the Prosecutrix were not seized by the police. Two other children were present in the room as per Prosecutrix's statement, at the time, when she was raped but none of those two young children was made as a witness. It is also argued that it was not possible for the accused to rape the Prosecutrix in presence of young children. He stated that the accused has been falsely implicated. The accused was not even present in the house at the time of alleged incidence. He was with one Mr. S.L.Goel, Chartered Accountant.
6. The defense of the accused from the very beginning has been that he was not present at home and he was falsely implicated. In the initial application, made by the accused to the Court for his discharge, the accused took following plea:
4. That the main reason of falsely implicated by the victim (Km. Kalpna) girl as per the FIR and Challan. She made an allegation on the applicant that she had been insulted in front of other outsider persons as well as by the orphan children and lady house Mrs. Chadda owner at the time of caught steeling the money from the donation box between 4.00 p.m. to 5.00 p.m.
7. A suggestion was given to the Prosecutrix in cross-examination that she had stolen money from 'Gullak' and was caught by Mrs. Chadha. Mrs. Chadha appeared as defense witness but did not subscribe to this story. The accused's second defense was stated in para 06(b) of this application. Para 06(b) reads as under:
6 b) That the police has showed the presence of the applicant between 4 p.m. to 5. p.m. when this incident was occurred. The petitioner humbly submits before this Hon'ble Court that between the said period in question he was present in the office of M/s S.K.Goyel & Associate (Accountant) at Karolbagh, Delhi with Mr. Arun Mandal one commercial institute owner in connection with auditing work, the applicant was stayed between 1 p.m. to 4.45 p.m. at Karolbagh office and he came back Along with mr. S.K.Goel, auditor (CA) in his car to Nehru Nagar, Delhi at about 5.15 p.m. for the purpose to check some files relating to foreign grants and the same were taken up to Central Market, Lajpat Nagar, New Delhi for photostat between 5.45 p.m. The petitioner can produce the above said intendant witnesses as and when this Hon'ble Court required.
8. Shri S.L. Goel was examined as defense witness DW-3. In his testimony, he stated that the accused had come to his home at Karol Bagh at 11/11.30 a.m. and a Trust Deed was to be modified and took 2/4 hours. The accused had lunch him at 3.00 p.m. and then he went to accused's house at 4/4.15 p.m. They reached at the office/house of the accused at Nehru Nagar at 5.15 p.m. and stayed at the room of the accused for 40-45 minutes. He separated from the accused at 6.30 p.m. It is obvious that the statement of Mr. S.L. Goel does not confirm to the stand taken by the accused in his statement under Section 313 Cr.P.C where he stated that he remained in the office of Mrs. Goel from 11.00 a.m. to 7.00 p.m. The defense witness was not believed by the learned Trial Court and rightly so. The plea of the accused that he was falsely implicated because of a fraud detected by him in respect of Mission cannot be believed because there is no relationship between the parent of the girl and the Mission, neither it can be believed that for the sake of Mission the mother of the girl shall put the honour of her daughter at stake. In AIR 1998 SC 386 Madan Lal v. State of Jammu & Kashmir, the Supreme Court observed that no woman of honour will falsely accuse another of committing rape since she sacrifices thereby what is dearest to her. It will be appropriate at this stage to bear in mind that in assessing the testimonial potency of the victim's version, the human psychology and behavioral probability must be looked into. The inherent bashfulness and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication.
9. Although it may look strange that the rape was committed in presence of two young children, one aged three years and another aged five years but strange is the ways of life. When the sexual passions of a man overpower him, he can fall to any extent. I am not using the words 'animal instinct' because that would be in fact not understanding the animal behavior. Animals behave in a more sensible manner than the man in such matters. It is said that sometimes truth is stranger than reality. It may look strange that accused could have committed rape in the presence of two young children, but there is no reason to disbelieve the testimony of the Prosecutrix. No motive has been assigned to her as to why she would become a tool in the hands of another for falsely implicating the accused neither any other reason is suggested for falsely implicating the accused.
10. The Trial Court did observe that the investigation in this case was not up to the mark and the Investigating Officer had not done the needful. He had not seized the salwar and underwear and had also not examined Rajni, another girl as a witness in this case. Merely, because the investigation has been conducted in a slipshod and defective manner and some lacunae have been left by the Investigating Officer, an accused cannot be acquitted. Conviction or acquittal of an accused depends upon the evidence adduced in the Court. If the evidence adduced in the Court is sufficient in the eyes of law to prove the crime, non-citing of another witness by the Investigating Officer shall not entitle the accused for acquittal. It has to be kept in mind that the girl Rajni could not have been made a witness in this case against the wishes of her parents. As a witness, she might had to come to Court repeatedly and her parents also had come to the Court to accompany her, looking into the way in which the trials are conducted and the witnesses are repeatedly called to the Court for one or the other reason. The Investigating Officer cannot be blamed totally for not making Rajni as witness. Moreover Rajni was only a corroborative witness and her non-examination cannot affect the value of the testimony of Prosecutrix and her mother.
11. Considering the testimony of Prosecutrix, her mother and medical evidence, I consider that the Trial Court rightly convicted the accused under Section 376 of IPC. The accused has been sentenced to the minimum sentence provided under the law. No special circumstance has been brought to the notice of this Court to warrant a leniency in awarding sentence. Rather, aggravating circumstances are present, that the accused was holding important position in some mission and took advantage of his being a tutor.
12. I find no force in the appeal. The appeal is hereby dismissed.