Nanney vs State
2006 Latest Caselaw 150 Del

JUDGMENT

R.C. Jain, J.

1. This appeal is directed against the Judgment dated 17.2.2003 and Order dated 6.3.2003 passed by the learned Additional session Judge, New Delhi, thereby convicting the appellant-Nanney herein for the charge punishable under Section 376 IPC and sentencing him to rigorous imprisonment for a period of 10 years and to pay a fine of Rs.500/- or in default of payment of fine to suffer a further simple imprisonment for one month.

2. The appellant was prosecuted by Police Station Sangam Vihar for the offence punishable under Section 376 IPC on the allegations that on the evening of 10.5.2005 at about 7.00 P.M. he has taken away a female child namely Pooja daughter of Vimal and Sheela aged about three and a half years from near her house to a nearby isolated place and committed rape on her. The child was recovered from the company of the appellant around mid night. On a complaint lodged by Mr. Vimal Kumar (PW-4) father of Pooja a case was registered and after usual investigation charge-sheet was filed. Charge under Section 376 IPC was framed against the appellant to which he pleaded not guilty. At the trial prosecution examined nine witnesses in all including the father Vimal Kumar (PW- 4) and mother Sheela (PW-5) of Pooja. In his examination under Section 313 Cr.P.C. the appellant denied the prosecution allegations and came out with the defense that he has been falsely implicated in the case by Vimal Kumar on account of some dispute over money relating to the hire charges of a rickshaw and on that account Vimal kumar quarreled with him six-seven days prior to the incident for which he had approached the Police but no action was taken against Vimal kumar and instead he has been falsely booked in the above case. He, however, did not produce any defense evidence. The learned trial court on a consideration of the matter has convicted and sentenced the appellant as above.

3. I have heard Mr. Kamal Sawhney, learned legal aid counsel representing the appellant and Mr. Sunil K. Kapoor learned Additional Public Prosecutor on behalf of the State and have bestowed my anxious consideration to their respective submissions.

4. Mr. Sawhney sought to assail the finding of conviction of the appellant primarily on the ground that the most material witnesses namely Pooja-the victim child, Subangi sister of Sheela who had seen the appellant taking Pooja and her brother Harnam who had rescued Pooja from the appellant have neither been cited nor examined by the prosecution and, therefore, the testimony of Vimal Kumar (PW4) and Smt. Sheela (PW-5) was clearly hearsay and inadmissible and ought not to have been relied and acted upon by the learned trial court. It is pointed out by him that the I.O. claims to have generally examined Pooja in regard to the incident and even prepared the site plan on her pointing out but for the reasons best known to the Investigating Officer he has not cited her as a witness. According to him a child of three and a half years or by the time of her examination she would have been more than four years could be a competent witness if after questioning her the learned trial court could be satisfied in that behalf. According to him, the non-examination of Pooja in this case is fatal to the prosecution case because there is no other occular witness of the incident. It is true that the prosecution has neither cited nor examined the child Pooja as a witness but this Court cannot lose sight of the fact that she was a young child below four years of age and, therefore, could not be a competent witness, more particularly so having regard to the strata of society her parents belongs to. Non-examination of Pooja cannot be said to be fatal to the prosecution because overwhelming circumstantial evidence has been brought on record to establish the guilt of the appellant. Similarly non-examination of Subangi and Harnam sister and brother of Sheela is not of material consequence because even Vimal and Sheela are also witness at least in regard to the rescue of Pooja from the company of the appellant after the incident. Same discrepancies here and there in the testimony of Vimal and Sheela are insignificant and immaterial and are not such as would shake the very edifice of the prosecution case. The medical evidence produced on record categorically suggest that Pooja was subjected to sexual assault around the time it was alleged by the prosecution else she would not have sustained the kind of injuries which were found on her person.

5. Mr. Kamal Sawhney learned Counsel for the appellant next submitted that in order to base the conviction on the circumstantial evidence, the circumstances relied upon by the prosecution must be cogent and firmly established and it should be of a definitive tendency unerringly pointing towards the guilt of the accused and if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and further that the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. There cannot be any quarrel with the above legal proposition but the important question is whether the prosecution has in fact been able to establish such circumstances which unerringly point out to the guilt of the accused. In the opinion of this Court and having regard to the entire material brought on record, it can be safely inferred that the chain of circumstances is complete in this case which unerringly point out towards the guilt of the accused and it cannot be explained on any other hypothesis. The plea of the accused that he has been roped in this case by the father of the girl because there was quarrel between him and the accused-appellant over the question of money of hire charges of the rickshaw six-seven days prior to the incident seems to be clearly concocted and afterthought defense because it is almost impossible to believe that any father, to whatever strata of society he may belong to, would put the honour and dignity of his female child at stake and to public ridicule.

6. On a consideration of the matter, this Court has no hesitation to hold that the conviction of the appellant is legally justified and is not liable to be interfered on any ground whatsoever. So far as the quantum of sentence is concerned, the appellant has been awarded the sentence of ten years imprisonment and a fine which is the minimum prescribed sentence for the offence under Section 376(2)(f) of the Indian Penal Code as it stands after amendment by the Amendment Act of 43 of 1983. Therefore on that count also no succor can be granted to the appellant. Neither pressed nor this Court finds any adequate or special reasons for imposing a sentence of imprisonment of less than ten years as awarded to the appellant by the learned trial court having regard to the gravity of the offence of which he has been found guilty. In the result the appeal fails and is hereby dismissed.

7. The order be conveyed to the appellant through Superintendent, Tihar Jail.