Full Text
HIGH COURT OF DELHI
Date of reserving: 06th May, 2026
Date of Decision: 29th May, 2026 IN THE MATTER OF:
SANTOSH TIWARI .....Appellant
Through: Appellant-in-person with Mr. Manoj K.Mishra, Mr. M.T.Radeesh Kumar, Ms. Madhulika and Mr. Umesh Dubey, Advs.
Through: Ms. Satinder Singh Bawa, APP for the State.
Ms. Vrinda Bhandari, Adv. alongwith Ms. Pragya Barsaiyan, Adv. for the victim / prosecutrix
(DHCLSC).
JUDGMENT
1. Marxist view of religion that it is opium of masses surfaced in the instant case but the familial ties, outrage of chastity of the daughter and broken promises / dishonesty of the Appellant woke up the victim’s family from the spell of the opium of Marxist influence. The matter, which was, in a way, swept under the carpet, by the family of victim, was raised in a kind of retributive anger and frustration which was probably simmering somewhere deep down in the heart and psyche of the family, more particularly with the mother of the victim. It burst out for the Appellant broke his own voluntary promise of staying away from the temple and possibly the city too, when he resurfaced in the vicinity. He was probably waiting for the anger to die down and being oblivious of the repulsion in the heart and mind of the victim’s mother, took the chance to possibly resume his priestly duties, hiding and forgetting his satanic and unholy deed. All hell broke loose when the Appellant was spotted in the vicinity by the brother of the victim who confronted him resulting to an altercation and fight bringing in police through DD No.24B.
2. While assailing the Impugned Judgment dated 30.01.2013 and order on sentence dated 31.01.2013, the counsel for the Appellant has put forth and laid down the foundation of his challenge on primarily on five counts: i) That there is an inordinate and unexplainable delay in registration of FIR spanning for a period of 40 days. ii) There is no corroboration to the testimony of the prosecutrix either medical or forensic. iii) The case of the prosecution is highly improbable, as it has been put forth. iv) The testimony of the prosecutrix is not credible, being full of doubtful circumstances and self-contradictory and finally. v) The Investigating Officer himself is not clear and that he has not conducted a fair investigation.
3. As regards the delay of 40 days in lodging FIR (Ex. PW-6/A), it has been stated that alleged incident took place on 04.02.2010 and FIR came to be registered only on 15.03.2010, that too despite the fact that the prosecutrix had disclosed about the incident to her mother on that very day i.e. 04.02.2010. While countering the contention it has been submitted on behalf of the Respondent/ prosecution that the delay has been explained by the witnesses especially the mother of the victim who has been examined as PW-4.
4. While appreciating rival contentions certain aspects are required to be kept in mind that India is a very religious society and religion is placed very high in the estimation of the individuals. Females are more religious than the males, coupled with the fact that the incident took place in a temple that too at the hands of the temple priest. The prosecutrix incidentally happens to be physically matured aged about 30 years but her mental age is far less than her physical age.
5. Disability certificate Ex.13/B according to which the IQ level of the prosecutrix was 60 (Mild Mental Retardation). The prosecutrix was referred to National Institute of Mentally Handicapped persons for IQ assessment in which the aforesaid IQ level was found. This was in consonance with the earlier certificate issued by Safdarjung Hospital and no significant change in her intellectual status was observed. The testimony of Dr. R. Rastogi examined as PW-13 is reproduced herein below: “Meaning of Mild retardation is that IQ level is between 50-70 of the person. Patients of mild retardation have a lower level of comprehension as compared to normal people. They are simple, gullible and not manipulative by and large.”
6. In these circumstances, when a temple priest is involved and the incident has taken place in a temple, coupled with the fact that the prosecutrix / victim has a lower IQ than her parents, as any parent of a female child, would be very cautious to take up the matter fearing social ostracization, fear of backlash, future prospects of the prosecutrix and the so-called family pride, all of which would be endangered in which the prosecutrix and her family would be at the receiving end. Thus, it is not unexpected or unusual that the family may deliberate about taking any action.
7. It seems that the aforesaid factors mentioned in preceding paragraph persuaded or compelled the mother of the prosecutrix, examined as PW-4, to initially forgive and forget the Appellant if he would have had left the city / temple in which he was the priest. And as the Appellant, after the incident had left for his native place and was not present in the vicinity and the temple for some time, therefore, PW-4 had every reason to believe that he has acted upon his promise and left the temple for all times to come.
8. The relevant part of the testimony of PW-4 can be looked into: “On the date of incident, I had gone to the temple at about 06:30 pm after I came to know about the incident from my daughter. I did not talk to any other Pujari except the accused in the temple. I did not have any quarrel with accused Santosh on that day. I did not tell my husband on 20.02.2010 that Santosh had told me on 04.02.2010 that he would leave the temple permanently and go away.”
9. However, when the Appellant again appeared on the scene, then the issue got out of hand as by that time the brother of the victim had also come to know about the incident and out of anger, he accosted the Appellant and a kind of altercation and scuffle took place which led to reporting of the matter to the police through DD No. 24B and DD No. 25B (Ex.PW-2/A) dated 14.03.2026:
10. Testimony of PW-4, mother of the victim has deposed about it on following words: “On 14.03.2010, my son Ashutosh saw Santosh Tiwari in the area and he made a call to my husband and called him there in the area. Santosh Tiwari was apprehended. Police was called. Santosh Tiwari was handed over to the police.”
11. Delay in lodging the FIR is further explained in the testimony of PW-4, as given below: “I myself went to mandir in the evening, I met Santosh Tiwari inquired from him about the incident, accused Santosh Tiwari apologies to me and requested that he would go from the mandir. My husband was not well during those days. I did not disclose the incident to him or anyone till 20.02.2010. During these days, I remains very tensed. On 20.02.2010, I narrated the incident to my husband and my son Asuthosh. They both went to mandir and inquired about Santosh Tiwari but found that Santosh Tiwari was missing from that very day and they came back”
12. The aforesaid evidence on record, which remains unshaken, clearly points out that the father of the prosecutrix being ill, and all the aforesaid factors has led to the delay in reporting the matter to the police. Learned counsel for the Appellant has relied upon the judgment in this context titled as Thulia Kali vs State of Tamil Nadu, (1972) 3 SCC 393.
13. However, he is unable to point out any prejudice or manipulation against Appellant rather delay has taken away evidence in the shape of medical examination of victim. As such, the judgment does not further the cause of the Appellant.
14. The situation got flared up when the Appellant was spotted in the area and that is how the FIR came into being. Evidently, the delay has not caused any prejudice to the Appellant rather it had, in a way, impaired the evidentiary foundation of the case of the prosecution as immediate reporting would have had better evidence in medical and forensic aspects.
15. It has come in the evidence that the prosecutrix was examined medically after the registration of the FIR. The MLC (Ex. PW-18/B) dated 14.03.2010 records the following details of the medical examination where the doctor found no external injuries, no genital injuries and only a small healed hymen tear of (0.5cm) was there.
16. While relying upon the judgment in Radhu vs. State of Madhya Pradesh, (2007) 12 SCC 57, it is contended on the strength of the MLC that in the absence of any evidence suggestive of sexual intercourse / rape, the requisite corroboration is not there and therefore, the Appellant cannot be held responsible. Similar arguments with regard to the forensic evidence have been put forward inasmuch as no clothes of the prosecutrix were seized, the vaginal swab taken was inconclusive and does not indicate anything, at least on the prosecutrix being raped by the Appellant. The only observation which the prosecution has relied upon in the forensic examination is the towel and the bed sheet of the Appellant where traces of semen were found. Strangely, after 40 days of the incident finding traces of semen is very unusual, as if neither the towel nor the bed sheet was washed. In any case this forensic evidence is not going to help the prosecution and the contention on behalf of the Appellant is correct in this context.
17. However, the medical evidence as reflected in the MLC (Ex. PW- 18/B) has something in the shape of small healed hymen tear which indicates that there was sexual intercourse involving the prosecutrix. It was healed also and the normal healing period is the gap between the date of incident and the medical examination, therefore, it starts indicating towards the complicity of the accused and corroborates the testimony of prosecutrix if the oral testimony is found to be trustworthy. This brings further weightage to the evidence of the victim as she is the only witness with regard to her ordeal at the hands of the Appellant. The cousin sister of the prosecutrix examined as PW-7, had accompanied the prosecutrix to the temple on 04.02.2010 and was sitting inside the temple when all this happened, is unable to throw any light on the incident. PW-7 has categorically stated that she had accompanied her cousin sister, the prosecutrix, to the temple and both of them were sitting there. She however, did not notice as to when the prosecutrix was either called or was forcibly dragged by the Appellant towards the residential portion of the temple nor did she, obviously, note anything of the nature which may indicate that the prosecutrix was being raped. Her explanation to the situation has also come which is to the effect that she was deeply involved in meditative prayer for about 25-30 minutes and she was oblivious of her surroundings and this was seemingly the period when the incident of rape took place.
18. However, she established one fact, that the prosecutrix at the relevant date and time was there at the temple when the incident took place. This brings the testimony of the victim into contention who has narrated about the incident which is to the effect she was asked by the temple priest i.e. Appellant to make „sabji‟ for him, which subsequently led to the entire sequence of events.
19. The prosecutrix had categorically stated about her being there in the temple along with her cousin Priyanka. She had stated that there were two priests in the temple and both of them were peeling peas, one of them i.e. Appellant asked the prosecutrix to cook Curry (Sabji) for him which was refused by the prosecutrix, but, as has been deposed by her, she was dragged by the Appellant and taken to the residential portion of the temple in a room where there were three beds, two windows and one door.
20. The prosecutrix has clearly narrated as to what exactly happened with her. “He made me lie on the bed in the room, he removed my salwar and underwear and he also took off his Dhoti and committed rape with me forcibly despite my refusal. Santosh had removed stains of my discharge from a towel.”
21. There may be certain contradictions in her testimony regarding prior visits to the temples or familiarity with the accused or other priests/pandits of the temple or the circumstances immediately before the so-called incident but then these are not material contradictions which may dislodge the case of the prosecution. The variation in the deposition is bound to be there because of the limitation of the human memory and mind. In the instant case the limitation is far more greater than a normal human being inasmuch as the prosecutrix was mentally retarded having an IQ of 60 and anything below an IQ level of 70 is indicative of mild mental retardation.
22. In this context, relevant para of the testimony of doctor PW-13: “Meaning of Mild retardation is that IQ level is between 50-70 of the person. Patients of mild retardation have a lower level of comprehension as compared to normal people. They are simple, gullible and not manipulative by and large.”
23. In view of the aforesaid facts and circumstances it is evident that the prosecutrix is truthful, unaware of what manipulation is, simple and innocent like a child. Therefore, in these circumstances, if certain contradictions were found which are not on the material aspects then her testimony cannot be discarded or disbelieved, rather it is trustworthy.
24. It is contended on behalf of the Appellant that the story put forth by the prosecution is highly improbable, as can be inferred from the fact that the temple is not a place which is isolated, as at any given point of time, a lot of people would be visiting the temple. Thus, it is unbelievable that such an offence would take place in a temple that too at around 11:00 AM.
25. However, this is contrary to the reality inasmuch as most of the temples are frequented and visited by people early in the morning and in the evening. Afternoon or early afternoons are invariably the time when people are not there and even the priests do their normal chores. Learned counsel for the Appellant has placed reliance on the testimony of the PW-
19 Keshav, the co-occupant of the room where the alleged incident took place and the Assistant Pujari who deposed that he was the person who could have noticed the developments as has been deposed by the prosecutrix, had it been there. There was no question that it could have escaped from his knowledge and attention. Thus, PW-19 does not support the case of the prosecution, which only means that nothing of the sort as alleged and for which the Appellant has been held responsible, had taken place. His testimony is to be appreciated while keeping in mind that he was the colleague and occupant of room in the temple. And this puts a question mark on the deposition. The way PW-7 could not notice, the activities and the ordeal of the victim, so could be the case with PW-19 Keshav too.
26. As such, the contention raised on behalf of the Appellant that the case is full of improbabilities and inconsistencies, is not correct.
27. Learned counsel for the Appellant has tried to derive undue mileage by targeting the contents of DD No. 24/B- and DD No. 25/B (Ex.PW-2/A) and has argued that there was not a reference regarding any sexual offence rather the matter was reported to the police about a brawl involving the brother of the prosecutrix of the Appellant.
28. It is further submitted that it was on account of the fact that the brother of the prosecutrix had already taken some money from a client of the Appellant which he was not returning and the insistence on the part of the Appellant had led to the altercation and thereafter a physical fight. However, there is no trace of the client of the Appellant as to who it was, what was the amount borrowed by prosecutrix’s brother. And in any case, the said client could have been examined as defence if it was so. It was this matter which was reported but subsequently it is asserted that an altogether different picture has been painted by the prosecutrix’s family by levelling a false allegation through the prosecutrix that the Appellant had committed rape upon her. The fact of the matter according to the counsel for the Appellant is that nothing of that sort had happened and in fact the whole issue was confined to the aspect of the fight between the brother of the prosecutrix and the Appellant.
29. This does not seem to be the correct explanation inasmuch as if the testimonies of witnesses are looked in to comprehensively, collectively and juxtaposing them with each other and the facts and contentions raised on behalf of the Appellant, then it would emerge that the family of the prosecutrix, primarily the mother of the prosecutrix had, in a way, decided to sweep the issue under the carpet in the belief and maybe some sort of assurance that the Appellant would leave the temple and go away from this temple, if not from the city which was seemingly complied with by the Appellant and he vanished from the scene after the incident for about a month, only to resurface on 14.03.2010.
30. It is this thing which has acted as a catalyst as by that time the brother of the prosecutrix had also come to know about the ordeal undergone by his sister at the hands of the Appellant. As any brother would have, the brother of the prosecutrix too acted in the befitting manner, by confronting the Appellant who has been examined as PW-3. When the Appellant was confronted, a fight took place and it seemingly led to the family to report the issue to the police. This not only explains delay but also make the so-called improbable prosecution’s story probable and plausible.
31. Investigation has been also put under the scanner by the Appellant to argue that it was defective and only one thing is sufficient to prove this i.e. site plan. According to the counsel for the Appellant the site plan prepared by the Investigating Officer which is Ex. PW-14/G reflects that it was a shared room containing three beds, therefore, there was no secluded or isolated space available within the temple precinct where such an offence could have been committed by anybody.
32. The door of the room where the incident took place was not locked as nothing to this effect has been deposed by the prosecutrix and therefore, the accessibility and visibility was free for all even during the commission of the alleged incident.
33. Incidentally, nothing of this sort has taken place, in such circumstances, as can be inferred from the testimony of PW-19 Keshav. There was no possibility that the Appellant could have forcibly removed or taken the prosecutrix from the main temple to the residential portion of the temple that too when the Assistant Pujari and the cousin sister of the prosecutrix both were present in the temple. The prosecutrix could have raised alarm if some sort of force was being used by the Appellant. Absence and existence of the aforesaid aspects only strikes at the root of the prosecution’s case and makes the entire incident highly improbable, if not impossible.
34. There is however, no defect in the investigation as the site plan prepared by the Investigating Officer is in consonance with what has been described by the prosecutrix about three beds, two windows and one door. In any case even if it is presumed that some defect was there in the investigation the same is not going to help the Appellant inasmuch it has been held in various pronouncements that defects and faulty investigations does not in itself create sufficient grounds to prove that the case is false. A reference in this context can be made to the judgements: The Hon’ble Supreme Court in Edakkandi Dineshan v. State of Kerala, (2025) 3 SCC 273, had laid down guiding principles on how defects in the investigative process should be treated in cases such as the one in hand. The relevant paragraph of the same has been reproduced hereunder:
Similarly in C. Muniappan v. State of T.N., (2010) 9 SCC 567, the Hon’ble Supreme Court has held as under:
Further reference can also be made in this context in Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263: