Mohd. Isha vs State
2009 Latest Caselaw 3024 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


%                          Date of Judgment: 06th August, 2009.


+                          CRL.A.102/2007


       MOHD. ISHA                         ..... Appellant
               Through: Mr. Bhupesh Narula, Advocate.

                           versus

       STATE                                ..... Respondent
                       Through: Mr. Pawan Sharma, APP.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE INDERMEET KAUR


     1. Whether the Reporters of local papers may be
     allowed to see the judgment?

     2. To be referred to the Reporter or not?          Yes

     3. Whether the judgment should be reported in the
        Digest?                                Yes


INDERMEET KAUR, J. (ORAL)

1. On 17.10.2005 at 10.13 PM, D.D. No.82B had

been recorded on the information of HC Manmohan from the

Police Control Room that at B-Block of Old Palam Chowk,

Arya Nagar, after quarreling with her family a girl had come

to report the matter. This DD was marked to SI Surjit Singh

PW-11, who was then posted at police station Dwarka. On

receipt of the same he along with Const.Bhupender reached

the place of occurrence where the prosecutrix PW-10 met

them. Two ladies were also present with her. PW-10

disclosed that she had been raped by her father on that day

as also on earlier occasions.

2. The police party i.e. Const.Bhupender

subsequently joined by WSI Sunil Kumari PW-12 reached

jhuggi of Mohd.Isha, the father of PW-10; he was not present

there. The prosecutrix was taken for medical examination to

the DDU hospital. Her MLC was prepared by Dr.Shakun

PW-5, Senior Resident of the hospital who vide Ex.PW-5/A

had opined that her vagina admits two fingers; hymen was

torn; the victim was habitual to sexual intercourse.

3. The statement of the prosecutrix Ex.PW-10/A was

recorded; endorsement on the same Ex.PW-12/A was made

and the FIR Ex.PW-1/B was formally registered by PW-1 SI

Sajjan Singh. Mohd.Isha, the accused and the father of the

prosecutrix was arrested by SI Surjit Singh PW-11 vide

memo Ex.PW-10/B at 6 AM on the following day from his

jhuggi; his personal search Ex.PW-10/C was taken.

4.             Prosecutrix         was     opined      to    be        a   minor.

Dr.A.Bhasin            PW-9 was the Member of the Medical Board

comprising         of   himself     i.e.   Dr.A.Bhasin,       Dr.Raj       Dental

Surgeon, Dr.Sumit and Dr.Ritu Saxena. As per their report

Ex.PW-9/A Sahana Praveen was more than nine years and

less than ten years as on 28.10.2005.

5. Her statement under Section 164 Cr.PC was

recorded by the Magistrate V.K.Khanna PW-7 vide

proceedings Ex.PW-7/B and Ex.PW-7/C. On oath, the

prosecutrix was examined as PW-10.

6. The accused was medically examined by Dr.

Devesh PW-8 who had vide his report Ex.PW-8/A opined that

there was nothing to suggest that Mohd. Isha was not

capable of performing sexual intercourse.

7. The trial judge, relying upon the testimony of the

prosecutrix as also the medical evidence which was her MLC

Ex.PW-5/A, held the accused guilty of the offence of

committing rape on his minor daughter. He had been

sentenced to undergo life imprisonment.

8. On behalf of the accused, it has been urged that

the statement of the prosecutrix suffers from infirmity; the

trial judge has not taken into account that no injuries had

been noted on her MLC and had she been a victim of the

forceful lust of her father the same could not have been

absent; the prosecutrix has implicated the accused falsely

for the reason that she had a grudge against her father for

having got married for the second time and for leaving her

mother. It is stated that the appellant often used to scold his

daughter for her bad habits and the bad company that she

used to keep which was the reason why this false complaint

has been foisted upon him. Testimony of the prosecutrix is

clearly suspect and could not have been the sole basis for

the conviction of the appellant. In the alternate, leniency has

been prayed for the sentence imposed upon him.

9. The victim of the crime is a minor aged between

nine to ten years. She has been examined as PW-10; a

preliminary round of questions had been put to her to test

her competence to comprehend and understand the

questions put to her. After being satisfied, the court had

permitted PW-10 to enter the witness box. She had

deposed that her father i.e. Mohd.Isha had two wives; first

was her mother and the second whose name she does not

know. Her mother had been divorced from her father and

she i.e. PW-10 was residing with her grand-parents since

childhood; her father was residing in Delhi. Since about two

months she had been residing with her father in Delhi. She

has deposed that two months prior to the date of her

complaint i.e. two months before 17.10.2005 the accused

had made forcible relations with her „Usne Mere Saath

Zabardasti Galat Kaam Kiya‟; at night time her father had

removed her salwar. She had fled away and related the

incident to her neighbour. Police was called; her statement

Ex.PW-10/A was recorded which was thumb-marked by her,

pursuant to which investigation of this case was set in

motion.

10. In her cross-examination, PW-10 had reiterated

her version; she had admitted that her mother had got

married for the second time but she does not know her

address. Her second mother who is residing with her father

used to beat her; her "walid" (father) never beat her. She

i.e. PW-10 had never attended school and does not know

how to read or write. Her neighbour to whom she had

related the incident, had informed the police. She admitted

that her father had on one occasion abused her when she

lost her chappal. She denied the suggestion that she had

been tutored by the investigating officer or that she had

falsely implicated her father.

11. It would be relevant to note that no suggestion

has been given to this witness that she had falsely implicated

her father for the reason that she had a grudge against him

for having got married a second time and having left her

mother or for the reason that she was in bad company

having bad habits and since her father used to scold her she

was nursing a grievance against him which was yet the other

reason for his false implication.

12. The medical examination of the prosecutrix was

conducted by PW-5. Her MLC speaks volumes. There is no

dispute about the fact that the prosecutrix is a minor and

aged between nine to ten years. The MLC shows that her

hymen had been torn; she is a victim of habitual sexual

intercourse and her vagina admits two fingers easily.

Someone is responsible for the physical state of this child. It

is not the defence of the accused that the hymen of his baby

daughter has been torn for any other reason except the hard

fact that she has been subjected to sexual intercourse; the

medical evidence has also established that she is a victim of

continuous sexual abuse.

13. In this context the following observations of the

Supreme Court in the judgment reported as State of

Himachal Pradesh v. Asha Ram VIII (2005) SLT 574 are

useful:

"It is now a well settled principle of law that conviction can be found on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital; unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony

inspires confidence and is found to be reliable. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecturix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutirix should not be a ground for throwing out an otherwise reliable prosecution case."

14. In the instant case, testimony of PW-10 is fully

reliable; her version is cogent and coherent and is

corroborative of her first version recorded under Section

164 of the Cr.P.C. Ex.PW-7/A. Learned defence counsel has

been unable to point out any contradiction or infirmity in this

version. This ocular testimony of PW-10 is further fortified

by the medical evidence i.e. her MLC Ex.PW-5/A.

15. Dr. Shakun PW-5 had on oath deposed that she

had examined the prosecutrix on 18.10.2005 at 3 AM; as per

the history of the patient, she was a victim of rape

committed upon her by her father 4-5 times since the last 11

to 12 days and she had disclosed this fact to her neighbour

last night. This history as disclosed by PW-10 to the doctor

PW-5 corroborates the medical opinion as stated in the

report Ex.PW-5/A; this MLC had opined that on PU

examination, the vagina admitted two fingers easily, hymen

was torn and the victim was habitual to sexual intercourse.

No cross-examination had been effected of PW-5 that the

hymen could have been torn for any other reason but the

reason as given by her.

16. The defence propounded by the accused is clearly

sham; it has been argued that a false case had been planted

by the daughter upon her father for the reason that she was

annoyed with him because of his second marriage; neither

has this suggestion been given to PW-10 in her cross-

examination and nor does it find mention in the statement of

the accused recorded under Section 313 Cr.PC. PW-10,

after the separation of her parents i.e. right from her

childhood was living with her grand-parents. It was only in

the last winter that she had come to reside with her father in

Delhi. She was an illiterate child coming from a low socio-

economic background and tolerating the shifting moods of

her step mother and with no other choice but to live under

their roof.

17. In our view, from the evidence gathered it has

clearly been established that PW-10 was a hapless victim of

her father‟s lust; he had been committing rape upon her i.e.

since the time when she had come to reside with him in

Delhi; she was in a dilemma and did not right away expose

her father; may be in the hope that he would mend himself.

It is unthinkable and unimaginable to suggest that a girl of

such tender years would falsely invent a story of sexual

assault upon her by her father and implicate him for an

unforeseen reason i.e. her father having got married for the

second time when this event had occurred more than nine to

ten years ago as admittedly she was living with her grand-

parents since her childhood. There appears to be no

plausible reason as to why she would expose her honour and

dignity as also of the whole family to the society risking an

outcasting and ostracization from the family circle as also

from the society at large. In this bargain she would most

certainly be causing a mental torture and suffering to

herself; natural tendency being to avoid giving publicity to

such a shameful incident. Yet PW-10 had picked up the

courage to relate her woes to her neighbour who in turn had

passed on this information to the police.

18. Testimony of PW-10 being creditworthy and

suffering from no infirmity, non-examination of this neighbor

is immaterial and castes no doubt on the otherwise well

established version of the prosecution.

19. The judgment of the trial judge suffers from no

infirmity and calls for no interference. Even on the quantum

of punishment, we are not inclined to review it. This is a

case where the crime committed by the appellant not only

delicts the law but it has a deleterious effect on civilized

society. The gravity of the crime has to be assessed from the

nature of the crime; in this case, the offender is the father

against his own daughter and the offence cries for a

deterrent punishment. Father is a fortress, refugee and the

trustee of his daughter; by betraying the trust he has not

only ravished the chastity of his daughter but also

jeopardized her future prospects of getting married and

enjoying a harmonious conjugal life; her future has been

devastated. The sentence imposed upon the appellant also

calls for no interference.

20. Appeal being without any merit; it is dismissed.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE

August 06, 2009 rb