Jagdish vs State (Govt. Of Nct Of Delhi)
2005 Latest Caselaw 1488 Del

JUDGMENT

Manmohan Sarin, J.

1. The appellant Jagdish @ Tinku was prosecuted for rape of one Ms. Manju aged 11 years between 2.15 p.m. to 2.45 p.m. on 27th May, 2000. The learned Sessions Judge after analysing and appreciating the evidence as produced before him found appellant guilty of the offence under Section 376 IPC and convicted him. Vide an order of sentence dated 25th November, 2002, the learned Additional Sessions Judge observing the heinous nature of the crime on a girl barely 11 years old, sentenced Jagdish to life imprisonment with a fine of Rs. 30,000/- and, in default, simple imprisonment of three years. The learned trial Court noted that the prosecutrix had bled profusely on account of rape and had remained admitted in the hospital for treatment for nearly a month. These were considered as an aggravating factor for imposition of the sentence of life imprisonment.

2. Let us notice the essential facts for the purposes of this appeal. The prosecutrix had gone to purchase vegetables in the afternoon and Jagdish/accused who used to live nearby accosted her. The prosecutrix was known to the accused and she used to address him as 'Bhaiya'. As per the prosecution version, Jagdish @ Tinku caught hold of her and took her inside the house, locked the door and raped her. After the act, he let her go and threatened her not to disclose about the incident to anyone else otherwise he would kill her. The prosecutrix Ms. Manju returned home and disclosed the incident to her mother in the presence of her father and her elder uncle. Report was lodged with the police and Jagdish/accused was arrested. The prosecutrix was taken to the hospital. We shall advert to the MLC later in this regard. The blood stained bed sheet and the piece of cloth used to wipe blood flowing down the legs of the prosecutrix were also allegedly recovered at the instance on the disclosure of the accused. The underwear, mattress and cloth of the accused along with frock and underwear of the prosecutrix were sent to the FSL for examination. Prosecution examined the mother of the prosecutrix, her father and other witnesses to which we need not advert. The MLC Ex. PW11/B duly records the admission of the prosecutrix at the Hindu Rao Hospital with the history of alleged rape. As per the MLC :

L/E hymen torn (fresh). There is 2 perenial tear (midline) blood clot seen coming through introitus, bleeding P/V ++

3. Suffice it is to notice that the medical record duly confirms the factum of rape. Mr. Sumeet Verma in support of the appeal submits that firstly the prosecutrix and the family who claimed to have known Jagdish / accused have not named him in the MLC and the MLC does not carry his name. The judgment is also assailed on the point that the MLC had not been duly proved inasmuch as no doctor had been examined to prove the MLC. It is submitted that no semen was detected or traced on the bed sheet, mattress, cloth or on the underwear of Jagdish /accused or on the frock and underwear of the prosecutrix. He further submits that the blood samples had got putrefied and hence it could not be said that the blood found on the underwear was of the appellant or that of the prosecutrix. It is also urged that the appellant was beaten by members of the public and hence there could be blood oozing on account of the injuries sustained which could explain the presence of blood on his underwear. He said that there was no sign of resistance by the prosecutrix. Apart from the injuries on the vagina, no other injuries have been found on her person or on the private parts of appellant. It is urged in the grounds of appeal that the crucial and salient witnesses were not cross examined by the amices Curiae appointed by the State. PW-1, the Senior Scientific Officer, PW-2 Gainda Lal, PW-3 Prosecutrix and PW-4 Sooparta Roy were not cross examined. In view of this failure to cross examine by the counsel on behalf of Jagdish/ accused, it is urged that the appellant was denied a fair trial and it has resulted in a miscarriage of justice.

4. Lastly, he submits that the sentence imposed is excessive keeping in mind the young age of the appellant.

5. Let us firstly consider the submissions made on behalf of Jagdish /accused that on account of denial of an opportunity for cross examination of material witnesses, Jagdish/accused has been prejudiced in his defense. We have examined the trial Court record. We find that initially an amices Curiae had been appointed for the defense of Jagdish /accused. During the course of proceedings, the appellant engaged a counsel of his choice, one Mr. S. K. Bansal. This engagement, it appears, was done on the date Ms. Manju, the prosecutrix had been examined and was to be cross examined i.e. on 4th May, 2001. The Trial Judge deferred the matter in the forenoon to afternoon to enable the counsel to have instructions from Jagdish/accused and to cross examine the prosecutrix. The prosecutrix, a young girl, had been waiting till about 3.45 p.m. and when the counsel for the accused did not cross examine her, the right to cross examine was closed. We may, at this stage, notice that although in the grounds of appeal reference is made that the amices Curiae did not cross examine PW-1, PW-2 and PW-4, an opportunity had been given to the amices Curiae to cross examine them, but may be in the nature of things, he did not consider it appropriate to cross examine them. Be that as it may, even the regular counsel Mr. Bansal, when he moved the application for recalling of the order closing the right to cross examine, no prayer was made for recalling these witnesses. As such, no grievance can be made In this account. In the event, the District and Sessions Judge had allowed the application for recalling of the witness/prosecutrix PW-3 on imposition of cost of Rs. 5000/-. It is seen from the record that the appellant did not avail of this opportunity. In these circumstances, it cannot be said that there has been denial of opportunity or failure of justice.

6. Coming to other submissions made on behalf of Jagdish/accused, at the outset, it is sufficient to notice that the prosecutrix has in a very clear and categorical manner narrated as to how the offence was committed on her. The statement inspires confidence and proceeds in a clear and cogent manner leaving no doubt or ambiguity. She has clearly identified the appellant as perpetrator of the offence and a person whom she used to address as 'Bhaiya'. The parents of the prosecutrix have also deposed as to how they found the prosecutrix immediately after the incident completely shaken. She was unable to stand and was bleeding from her private parts. The medical report confirms the factum of rape with hymen torn (fresh) resulting in her extended hospitalisation. It is well settled that the clear testimony of the prosecutrix by itself is sufficient for conviction. In the instant case, her statement stands corroborated by indisputable medical evidence as also the statement of her parents. It is of no consequence that the name of Jagdish/accused was not given in the MLC and omission of this nature cannot negate otherwise overwhelming evidence. Absence of semen stains alone in these circumstances, again cannot raise a presumption in favor of Jagdish /accused. The possibility of semen being washed away in the profuse bleeding and followed exits. Similarly the fact that the doctor who wrote the MLC was not available and the same had been proved through a record clerk is hardly of any consequence. Moreover, as noticed by the learned Trial Judge, there was blood on even the second underwear as found in the FSL report. It was the same blood group as found on the underwear of the prosecutrix supports prosecution version. We find no infirmity in the appreciation of evidence by the Trial Court by which the guilt of the accused stands duly proved.

7. This is a case falling under Section 376 Sub-section 2 Clause (f) of the Indian Penal Code. The prosecutrix being less than 12 years of age, the maximum punishment prescribed is for life with the minimum being 10 years. The Court is further empowered to impose a sentence of imprisonment for a term of less than 10 years, for adequate and special reasons to be recorded.

8. We have considered the matter in the light of the facts and circumstances, namely, that Jagdish/accused is a youth of 19 years without any previous criminal record. There is nothing on record available to indicate any propensity of crime on the part of the appellant. In these circumstance, it cannot be presumed that Jagdish /accused is not capable of being reformed after going through a substantive sentence. His conduct in jail so far where he has undergone about more than five years of sentence has been satisfactory. The appellant was sentenced to life imprisonment which would mean imprisonment for indefinite period till death unless there is commutation of sentence under Section 433 Cr. P. C.

9. In these circumstances, even though the appellant had committed rape in a gruesome manner exploiting his acquaintance with a minor girl, we are of the view that the ends of justice would be met on account of factors noted in Para 8 above, by awarding the appellant 10 years sentence of rigorous Imprisonment.

10. We are of the view that the ends of justice in this case would be met by imposing a sentence of rigorous imprisonment of 10 years with a fine of Rs. 30,000/- as imposed and in default imprisonment for a period of one year. The appeal is dismissed and the conviction of the appellant is con- firmed except for the order of sentence which would stand modified as above.