Raman Kumar Maggo S/O Sh Tilak Raj ... vs State Of Delhi
2002 Latest Caselaw 1280 Del

JUDGMENT

V.S. Aggarwal, J.

1. This is an appeal filed by Raman Kumar Maggo directed against the judgment and order of sentence passed by the learned Additional Sessions Judge, Delhi dated 23rd August, 1999 and 24th August, 1999 respectively. The learned trial court held the appellant guilty of the offences punishable under Section 366, 376 and 324 Indian Penal Code. Thereupon the appellant was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 2000/- for the offence punishable under Section 366 Indian Penal Code. In default of payment of fine he was to undergo further rigorous imprisonment for two months. He was further sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 5,000/- for the offence punishable under Section 376 of the Indian Penal Code. In default of payment of fine he was to undergo further rigorous imprisonment for five months. Lastly for the offence punishable under Section 324 he was sentenced to undergo rigorous imprisonment for two years. The sentence were directed to run concurrently.

2. Aarti is the prosecutrix. She was a child of eight years at the relevant time. On 2nd September, 1992 Kamal kishore, father of Aarti who works in Deed Dayal Upadhaya Hospital had reported at police station Rajouri Garden that his daughter was missing and he has not been able to trace her. He felt that his daughter has been enticed by some person . He only gave the physical features of her daughter.

3. On basis of this statement of Kamal Kishore a case was registered. Sub Inspector Om Prakash Sharma had been handed over the investigation. Information was received vide DD entry No. 71B that a girl has been recovered at Police Station Keshav Puram. Sub Inspector Om Prakash had gone to police station Keshav Puram and obtained the custody of the child. The blood stained clothes of Aarti were taken into possession. They had been sent to Central Forensic Scientific Laboratory for analysis.

4. Information was received from police station Ashok Vihar that the appellant, an accused who was involved in FIR No. 404/92 has made a disclosure statement concerning the present incident. Thereupon the appellant was arrested. He was produced before the Metropolitan Magistrate but he refused the test identification parade. During investigation it was established that it was the appellant who had kidnapped Aarti and had committed sexual intercourse with her. It is on these broad facts that report under Section 173 Code of Criminal Procedure was filed.

5. Charges under Section 366, 376, 326 Indian Penal Code were framed against the appellant to which he pleaded not guilty. In support of its case the prosecution had examined 22 witnesses. It was followed by the statement of the appellant who denied his involvement in the crime and stated that he has falsely been implicated. He examined one defense witness Ram Dhal.

6. The learned trial court on appraisal of the evidence concluded that it has been established that the appellant had kidnapped Kumari Aarti with intention to rape her. He actually raped her and caused injuries on her person. With this basic findings the impugned judgment and order of sentence were passed. Hence the present appeal.

7. During the course of submissions it was not disputed that Aarti Sharma at the relevant time was about 8/9 years of age.

8. The main submission in this regard revolved around the controversy as to if the appellant had kidnapped Aarti Sharma and raped her and thereafter even caused injuries on her person. The statement of Aarti Sharma had been recorded by the trial court. The trial court had examined her and recorded his satisfaction that though she is a minor child but she is in a position to understand the nature of questions. The witness had made a statement that she was playing with her friend Sheri who is one year senior to her. The appellant had come and asked them to tell him the house of Sharmaji. They had told him that they were not aware of the house of one Sharmaji and the mother of Preeti came there and had asked the appellant as to why he was standing there. She even told the appellant that there is no Sharmaji living in the locality and that he may be living in the other block. The appellant insisted and Aarti Sharma accompanied him to the other block. Thereafter he caught hold of her hand and directed her to do whatever he likes. He even gave her a fist blow on the face. She was frightened.

9. The witness went on to state that she was taken in a bus and they got down near the railway line. He abused him, passed indecent remarks and postures and thereupon the witness described as to how she had been raped. Afterwards the appellant ran. She had come out of the bushes and narrated the incident to three/four persons who took her to police station where her uncle had come. She was subjected to lengthy cross-examination but she stood the test like any other truthful witness. She was able to explain as to the time when the appellant had come and that Sharmaji was residing on the third floor of the same building in which they were residing. She stated that her blood stained clothes were taken into possession in the hospital.

10. Perusal of her statement shows that despite being a child of about 9/10 years she was able to answer the same cogently and coherently. She seemingly as is apparent from the record was intelligent and in that view of the matter there is no ground to ignore her statement.

11. It is true that a child witness is a dangerous witness, because some time they are tutored and are subjected to certain imagination. But is not an absolute rule that statements of all child witnesses should be rejected. Evidence of a witness has to be examined on its own merits. In the present case in hand as already referred to above, the witness answered the question coherently and in addition to that there is no enmity of the appellant with the prosecutrix or any of her relatives. She has specifically stated that she had been threatened and therefore she had not raised any alarm. Keeping in view her tender age the explanation so offered necessarily in the facts of the present case must be accepted.

12. Her evidence gets corroboration from the other evidence on the record. Kamal Kishore is the father of Aarti, he stated that he had received information fro Sheri that Aarti was not present in the house. She was not traceable and thereupon he had lodged the report. This fact gets further corroborated as to how the appellant was able to kidnap Aarti from the statement of Surjit Kaur, PW-9. She had stated that she had come outside her house at 6.30 PM. The appellant was standing near Aarti and others. She had enquired from him. Appellant replied that he was tracing the house of Sharmaji and Aarti had told her that he lived in the other block. In other words, the statement of the witness clearly establishes that the appellant had indeed come at the relevant time when Aarti was abducted.

13. Anuradha, PW-11 was the other child present at that time and was playing with Aarti. She corroborates her statement that at the instance of the appellant Aarti had accompanied him to show him the house of Sharmaji. She identified the appellant to be the same person who had come on the said day.

14. Not only the presence of the appellant at the relevant time is established but the medical evidence in this regard also corroborates the statement of Aarti. Ex. PW 15/A is the report in this regard when Aarti had been examined and relevant portion of the same reads:-

"(1) Right side nipple bitten - complete lost of skin and nipple approximately 2" x 2" underlying muscle exposed and bleed on the chest.

(ii) Multiple linear abrasions on chin and neck (RT) forearm and in (LT left forearm and both legs.

(iii) Contusion left arm Abrasion around perineum. Blood on the thigh and perineum."

15. It shows clearly and supports what Aarti had told the court that the appellant had injured her near her chest and thereafter raped her. There was blood on the private parts and the thigh. This supports her version as referred to above and it is therefore clear that the trial court rightly held that she had been kidnapped and thereafter raped and even injuries were caused on her person. There is no ground to take a different view.

16. As regards the quantum of sentence, keeping in view the nature of the offence and the manner in which it had been committed indeed no lenient view is required to be taken.

17. For these reasons appeal being without merit must fail and is dismissed.