Shyam Narain vs State
2009 Latest Caselaw 503 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                              Crl. Appeal No. 772/2006

%                                Date of Order : February, 12, 2009

SHYAM NARAIN                                   ..... Appellant
                           Through : Ms. Charu Verma, Advocate.

                                     VERSUS

STATE                                         .....Respondent

Through : Mr. Pawan Sharma, APP

CORAM :-

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH

(1) Whether reporters of local paper may be allowed to see the judgment?

(2) To be referred to the reporter or not?

(3) Whether the judgment should be reported in the Digest ?

PRADEEP NANDRAJOG, J.(Oral)

1. Noting that Ms. Charu Verma learned counsel for the

appellant has been appointed as an Amicus Curiae by the court

and her fee has not been fixed, we fix the fee of learned Amicus

Curiae at Rs.5,000/-.

2. Vide impugned judgment and order dated

21.10.2005, written very emotionally, learned trial judge has

convicted the appellant for the offence punishable under Section

376 (II) (f) IPC.

3. Vide order of sentence of even date, the appellant

has been awarded the punishment of imprisonment for life and

to pay fine of Rs.5,000/- failing which to undergo RI for six

months.

4. Briefly stated the relevant facts are that Baby „M‟

aged 8 years, daughter of Binda Saha was taken by the

appellant to Lal Bahadur Shastri hospital at around 6.30 P.M. on

29.10.2003 where the young child was referred to GTB hospital,

Shahdara. She was admitted at the said hospital at 1.30 A.M. on

30.10.2003 i.e. during the intervening night of 29.10.2003 and

30.10.2003. The young child told the doctors, as recorded in the

MLC Ex.PW-10/D, that she had suffered a fall in the toilet at 2.00

P.M. on 29.10.2003 and that the injuries on her person was a

result of the said fall.

5. However, Dr.Anjay Yadav who examined the young

child was not convinced with what the child was telling him. The

reason is obvious. It is to be found in the MLC, where the

condition of the young child was recorded. The same is as

under:-

"O/E - Apprehensive look, G.C. fair, pallor mild, P- 96/m, BP 110/80, heart NAD. No bruises seen on body. Breasts and secondary sexual characters not

developed. P/A Soft, lever spleen not palpable. No shifting dullness, no area of tenderness. L/E - On separation of labia, a tear of 1.5 approx. to 2 cm. seen from posterior fourchette towards anus just 1 cm. short of anal opening and same tear extending upto hymen. Clot was seen in her vagina, anal opening was intact, no area of bruise seen on perineum. Bleeding per vagina was present. Decision for examination under anesthesia and repair of vaginal perennial tear taken. Patient was admitted in septic labour room and shifted to gynae emergency operation theatre. On examination under anaesthesia, showed same findings as above but in addition a tear of 3 cm approximately was seen in left vaginal wall from hymen into the vagina. Bleeding was positive. Apex of tear seen, tear stitched in layers, cervix seen healthy, no bleeding through OS. In view of EUA, findings under anesthesia high index of suspicion of sexual assault was made although the child and her uncle were denying of any such episode."

6. But, even to a layman, hence much more to a doctor,

it is stark naked, that the child was compelled to wrongly state

that she had suffered the injuries due to a fall in the toilet. The

injuries speak for themselves. The child was obviously brutalized

and raped in a most beastly manner.

7. The child insisted that the injuries were due to fall.

The appellant who took Baby „M‟ to the hospital also stood by

said fact.

8. The Duty Constable at the hospital, a man of

prudence, dutifully informed the local Police Station i.e. P.S.

Kalyanpuri, informing that Baby „M‟ was admitted at the hospital

and her condition was as recorded in the MLC. The said

information was recorded at the Police Station at 2:40 P.M. vide

DD entry No.18-A, Ex.PW-10/B on 30.10.2003.

9. The child remained at the hospital for six days and

was discharged. So traumatized was the young child that she

continued to stand by her version of having suffered the injuries

consequent upon falling inside the toilet of her house.

10. Obviously, the story could not have been digested by

a person of ordinary prudence. How could her parents digest the

said story?

11. It is obvious, the concerned mother of the young girl

kept on questioning the girl and probably coaxed her to tell

truth. As time passed by, the mother of the child was able to

gain the confidence of the young traumatized child, who broke

down before her mother on 10.11.2003 and told her that the

appellant had raped her and had threatened her that if she

disclosed the said fact to any person, her life and the life of her

family members would be in danger.

12. The father of the young girl forth-with proceeded to

the Police Station and informed the police what was told by his

daughter. His statement, Ex.PW-3/A, was recorded and based

thereon, the FIR in question was registered.

13. In the statement Ex.PW-3/A, Binda Saha told the

police that his daughter had informed her mother that she had

wrongly been stating that she had suffered the injuries as a

result of a fall in the toilet. She told her mother that the

appellant had raped her.

14. The appellant was apprehended and sent for trial;

charged with the offence of raping Baby „M‟ aged 8 years (a

minor).

15. It may be noted at this stage that the appellant is a

tenant in the same building in which the family of Baby „M‟

resides.

16. It is but apparent that the fate of the appellant

depended upon the deposition of Baby „M‟ in court.

17. She was examined on 13.10.2004 as PW-1.

18. Her deposition reveals that the court questioned her

to ascertain, whether she was aware of the sanctity of the court.

After questioning Baby „M‟ and recording a satisfaction that

Baby „M‟, aged about 10 years when she appeared in court,

understood the questions put to her the court examined her.

19. She deposed that her maternal uncle used to reside

in Gulabi Bagh and that she was brooming her house and

nobody was present, as her parents had gone to the house of

her maternal uncle and her siblings had gone to the school; her

parents had told her to look-after the house. She deposed that

at around 1.00 in the after-noon, Shyam Narain the accused

present in court came to her house and started a vulgar talk.

He gave her some intoxicated drink and took her to a room. She

fell unconscious and the accused raped her and she told him

that she would narrate this fact to her parents, at which the

accused threatened, that if she disclosed this fact to her family

members he would inflict knife blows upon her and her family

members. She deposed that the accused told her that she

should tell her parents that she received the injuries when she

slipped in the toilet. Thereafter, the accused took her to the

hospital. She was bleeding from her private parts. The accused

first took her to LBS hospital where he was told to take her to a

big hospital, upon which the accused took her to a hospital

adjacent to her house. That initially she told her parents that

she had sustained injuries as a result of a fall in the toilet

because she was scared and hence she gave wrong facts.

20. She was cross-examined. In cross examination she

stated that the police met her in her house and in the hospital

and that the police did not make any document in her presence.

She admitted that whenever police came to her house, they met

her family members and that she had a talk with the police at

the Police Station. She said that she went to the hospital only

once. That in the hospital, she was sleeping and the police did

not meet her. She stated that there are six rooms in the house

and tenants reside there. There is no boundary wall between

their tenements and hers. That people reside in the

neighbourhood and that the neighbours had gone for duty at the

time of the occurrence. That initially there were three doctors

and that she did not disclose the facts to the doctors, who got

angry and threatened her. That they asked her to tell the true

facts. That they told her not to say that she had fallen in the

bathroom. That her father met her at the hospital and he was

accompanied by her mother. That she told her parents that she

had fallen in the bathroom, but did not remember the date of

the occurrence. She admitted that one aunty had talked to her,

but could not disclose her name. She informed that the aunty

had met her near the Police Station. She stated that: "My

parents had told me to speak about these facts which I have

stated today. They were also telling me to depose like this in

the house as well. My neighbour had also asked me to make

such statement before the police. I am deposing these facts at

their instance".

21. The court put a question to her "Whether the accused

raped you or not?"

22. She answered, "I was raped by the accused".

23. Indeed, there is no other evidence worth noticing,

except to complete the record, the fact, that after Baby „M‟ told

the reason of her injuries and the FIR was registered, she was

again examined at GTB hospital on 10.11.2003 and as per MLC

Ex.PW-4/A, rape of the young girl was confirmed.

24. In his statement under Section 313 Cr.P.C. the

appellant denied each and every question put to him and stated

that he was innocent and had not committed the crime. He

stated that he had been falsely implicated and had taken the girl

to the hospital to save her life. He stated that he was not aware

that Baby „M; had been raped and that he took her to the

hospital when he came to know that she had been raped. The

doctor inquired from her who raped her, but she did not make

any statement and insisted that he had brought her to the

hospital. That he informed the doctor that he was a neighbour

of Baby „M‟ and that the complaint against him was false. He

stated that parents of Baby „M‟ had threatened to implicate him

unless he confessed his guilt.

25. It may be noted at the outset that the appellant did

not disclose in his statement as to what attracted him to go to

the house of Baby „M‟. He did not disclose as to under what

circumstances he chanced to see Baby „M‟.

26. The learned trial Judge has noted that the MLC

Ex.PW-10/D evidenced that Baby „M‟ was raped, a fact re-

affirmed in the second MLC Ex.PW-4/A.

27. Noting that the clothes which Baby „M‟ was wearing

and were removed by the doctors at the hospital when Baby „M‟

was examined at GTB hospital on 30.10.2003, were reported not

to be having any semen stains as per FSL report Ex.PW-10/F, the

learned trial Judge has opined, and in our opinion correctly, that

absence of semen stains was an irrelevant factor when the tell

tale physical condition of Baby „M‟ showed penetration of her

vagina. So forceful was the penetration that the tear had

reached the anus.

28. Indeed, at the hearing of the appeal today, Ms. Charu

Verma, learned counsel for the appellant does not dispute the

fact that the MLC of the young girl conclusively establishes that

Baby „M‟ was raped.

29. Reverting back to the decision of the learned trial

Judge, it has been held that while appreciating the conduct of a

young victim, her mental condition and the traumatized mind

has to be kept in view while appreciating the deposition of the

victim.

30. The learned trial Judge has held that there was no

reason to disbelieve Baby „M‟ that she did not tell the true facts

at the first instance as she was under a threat given by the

appellant that if she told the truth, not only she, but other family

members would be harmed by him.

31. The learned trial Judge has held that there was

nothing to disbelieve Baby „M‟ with reference to her cross

examination.

32. At the hearing of the appeal today, learned counsel

for the appellant urges that Baby „M‟ cannot be believed for the

reasons:-

(a) Firstly she did not remember the date of the incident.

(b) She has used the expression:- „the accused raped

me'; counsel urges that for a child aged about 10 years, it is not

believable that Baby „M‟ would have used the expression that

she was raped. Counsel urges that experience shows that girl of

tender age referred to a sexual act as "ganda kaam".

(c) In her cross examination Baby „M‟ admitted that the

doctors threatened her and told her not to say that she had

fallen down in the bathroom. Further, she admitted that her

parents had told her to speak about these facts which she was

deposing in court and that they also told her to depose like that

in the house as well. She further admitted that even her

neighbours had told her to make such statement before the

Police Station.

Thus, counsel urges that Baby „M‟ has herself admitted that

what she deposed in court was at the behest of her parents, and

as told by them and additionally at the behest of the

neighbours, and as told by them.

33. The second submission made by learned counsel for

the appellant is that if the appellant was the perpetrator of the

crime he would not have been taken Baby „M‟ from hospital to

hospital and ensure that she get treatment. Counsel urges that

conduct of a rapist is to abandon the victim and run away.

34. Learned counsel next urges that in her deposition,

Baby „M‟ has categorically stated that the appellant made her

drink some intoxicating drink and thereupon she became

unconscious. Counsel wonders as to how Baby „M‟ who was

unconscious could state that it was the appellant who had raped

her. Counsel urges that if Baby „M‟ was unconscious how could

she see the appellant rape her.

35. Lastly, counsel urges that the mother of Baby „M‟ i.e.

Laxmi PW-2, has turned hostile.

36. Taking the last submission first, we note that Smt.

Laxmi PW-2, has fully supported the case of the prosecution,

inasmuch as she deposed that initially her daughter insisted that

she had received the injuries as a result of fall, but as time

passed by, she told the truth to her after a few days of the

incident and told her that the appellant had gagged her mouth,

took her underwear and raped her. That she further informed

her mother that the accused had kept a knife on her neck and

she was threatened not to tell said fact to anybody.

37. For a trivial reason i.e. the witnesses wrongly stating

the date to be 30.10.2003, but the actual incident being of

29.10.2003, rather than seek permission of the court and put a

clarificatory question as to what was the date when the incident

took place, the learned Public Prosecutor got the witness

declared hostile so that he could cross examine her. The only

question which he put to the witness was, whether it was correct

that the incident took place on 29.10.2003. The witness

immediately corrected herself by saying that it was correct that

the incident took place on 29.10.2003 when she and her

husband had gone to the house of her brother and the other

children had gone to the school.

38. Indeed, PW-2 has not turned hostile. Indeed, PW-2

has supported the case of the prosecution.

39. Dealing with the other submissions in the same

chronological order, it is true that Baby „M‟ has used the

expression that she was raped; an expression which a young girl

aged 10 years who comes from a humble background would

presumably not use. But, that means nothing, in the facts of this

case.

40. Firstly, depositions are recorded in English after the

statement made in vernacular by witnesses are translated by

the court. It is thus possible, that while recording the testimony

of Baby „M‟, as a result of translation of what she deposed, the

expression rape was used. The second reason could be that the

child herself used the expression having learnt about the same

at the hospital. There is evidence to justify said inference. As

noted above, Baby „M‟ was insisting in the hospital that she had

sustained the injuries when she fell in the toilet. There is

evidence that the doctors were not believing her. There is

evidence that everybody around was not believing her. It is

apparent that the doctors around her were speaking that Baby

„M‟ should be coaxed to speak the truth as it was obvious that

she had been raped. Baby „M‟ would have heard that

expression N number of times in the hospital. Thus she became

familiar with the word „rape‟ and as to its meaning and hence

used the same.

41. That Baby „M‟ has stated during cross examination

that she was forced by the doctors to tell the true facts and that

the doctors were angry at her and told her not to keep on saying

that she had fallen, shows the truthfulness of the

contemporaneous facts. Far from discrediting Baby „M‟, the

same corroborates her version that she was under a threat when

she was brought to the hospital by the appellant.

42. Obviously, in view of her physical condition, the

doctors and everybody around, would be coaxing the young girl

to come out with the truth. When she kept on saying that she

had suffered the injuries when she fell down, the doctors

certainly would have told her that they do not believe what she

was saying. May be, in frustration, a doctor may have raised his

voice hoping that her fear may be broken by counter fear. This

certainly would not be a threat. It would be an attempt of a

socially conscious doctor trying to reach out to the truth.

43. When the young girl admitted in the cross

examination that her parents told her to speak about the facts

which she stated in court and that they told her to depose in the

manner as she has deposed, as also that the neighbours also did

so is explainable. From the facts noted above, it is apparent

that it took ten days for Baby „M‟ to come out of the trauma and

the fear, and speak the truth. She was raped on 29.10.2003. Till

10.11.2003 i.e. for over eleven days, she maintained that the

injuries were a result of her falling in the toilet. Her fear was

over come and her confidence was restored on the 12 th day.

This child would certainly be having the trauma and the fear

etched somewhere in her memory and therefore her parents

encouraged her to speak the truth.

44. What further truthfulness of the statement of Baby

„M‟ can be available, other than that she truthfully told the court

that indeed her parents had coaxed her to say what she spoke?

Indeed, she did not try to fabricate a lie that her parents never

coaxed her.

45. We must understand the difference between tutoring

a person and coaxing a person to speak the truth. More so,

when it is a case of a child rape victim and the victim has been

threatened by the accused.

46. We are satisfied that Baby „M‟ has truthfully spoken

the facts in court.

47. The second submission is that if Baby „M‟, as deposed

by her, was given an intoxicating drink before she was raped

and became unconscious thereafter, how could she say that the

accused had raped her?

48. A few days back we had an occasion to deal with one

such similar argument, but in a different context.

49. A child witness in the said case had deposed against

his father to the effect that his father picked up a quarrel with

his mother outside the room, pushed her inside the room and

closed the door. He further deposed that his father lit the

matchstick and set his mother on fire, who screamed and

rushed to the door, unlocked the same and ran towards the

bathroom to douse the flame.

50. It was urged in said case, as to how a young child

could see, behind the close door of a room that his father had lit

a matchstick and set his mother on fire.

51. We had opined that a human mind is very creative. It

perceives events which are bound to happen with reference to a

preceding and succeeding event.

52. In the said case we had opined that a child, who sees

his father pick up a quarrel with his mother and further sees his

father take the mother inside the room and lock the room,

obviously does not see what was happening inside. A second

later, he sees his mother on fire and rushing out; the mind would

immediately connect the event which in turn connects the

preceding and succeeding event i.e. the event that the mother

was set on fire.

53. We had opined, that the child was speaking the truth,

as a human mind perceives a fact, which had to take place and

without which, the preceding and succeeding fact which he saw,

are disconnected.

54. The same thing has happened in the instant case.

55. The child remembered that the appellant had entered

her room and made vulgar talk with her and made her drink

something which intoxicated her. Of course, when she became

unconscious she would not know what happened. But when she

regained conscious, she saw her condition. The appellant was

there. She connected her physical condition when she was

conscious with her physical condition when she regained

consciousness and immediately perceived as to what had

happened during the period she was unconscious.

56. This does not mean that she is lying.

57. It is also not out of place to note that Baby „M‟ has

deposed that when she regained consciousness, the appellant

threatened her not to disclose the true facts and told her that if

she did, not only she but even other family members would face

his rage. Thus, when the appellant said that to her, her human

mind told her that it was the appellant who was the culprit for

why else would he threaten her not to speak the truth.

58. The third submission pertaining to the conduct of the

appellant is explainable consistent with his guilt.

59. Yes, it is true, that ordinarily and normally, a rapist

would flee from the scene of crime, as indeed, any other

criminal, who achieves the purpose of his intention would do.

60. But, in the instant case, the MLC Ex.PW-10/D shows

the physical and mental condition in which Baby „M‟ was, soon

after the rape. If left by herself, the young girl may have bled to

death. It is also possible that the appellant did not want her to

be left by herself, to be saved by somebody else, for he had a

fear that if he was away from Baby „M‟, there was a possibility

that Baby „M‟ would speak the truth. His presence in the sight of

Baby „M‟, would be a continuous threat to Baby „M‟ and under

fear of the appellant, she would not speak the truth.

61. A criminal mind acts differently than what a normal

and prudent mind would do. Rules of prudence sometimes fail

while dealing with a scheming mind.

62. While referring to the examination of the appellant

under Section 313 Cr.P.C., we had noted that the appellant did

not state as to what led him to the house of the victim or under

what circumstances he chanced to meet Baby „M‟.

63. In our opinion the non explanation by the appellant

as to how he saw Baby „M‟ or under what circumstances he

chanced to see her, are crucial.

64. It shows that indeed, the appellant did not chance

upon, to see Baby „M‟. Had he said so, he would be required to

explain the circumstances under which, he chanced to see Baby

„M‟. The appellant did not want to take the risk of explaining the

said circumstance and hence remained quiet.

65. How the appellant met Baby „M‟, and under what

circumstances, is a fact solely in his knowledge. The

prosecution has no means to ascertain the said knowledge or

give proof thereof.

66. An adverse inference is required to be drawn against

the appellant for not disclosing the said fact which was within

his personal knowledge.

67. It shows that the appellant did not meet Baby „M‟

when she was in an injured condition. He was present with Baby

„M‟ when she was fine. He was present with Baby „M‟ even

when she suffered injuries and he remained present even

afterwards.

68. Before concluding, we may note that the MLC Ex.PW-

10/B, contents whereof have been reproduced by us in para 5

above, conclusively establish that Baby „M‟ was raped.

69. Indeed, learned counsel for the appellant did not

dispute that Ex.PW-10/B needs no further corroborative

evidence.

70. We note that learned counsel for the appellant had

argued that the appellant could not be the rapist.

71. To complete the narration of a fact without which the

decision would be incomplete, we note, that after he was

apprehended, the appellant was examined at LBS hospital on

11.11.2003 by Dr. Ravish Gupta and as per MLC Ex.PW-5/A, it

was recorded, "From the foregoing examination, I find nothing

to suggest that the said accused is incapable of performing

sexual act."

72. We find no infirmity in the impugned judgment and

order which has held, that the appellant had raped Baby „M‟ and

hence had committed an act which is punishable under Section

376 (II) (f) IPC.

73. On the sentence, it would suffice to note that not only

is it a case of rape of a minor girl aged 8 years, but also, the

commission of the offence is pervaded with brutality. The

trauma which the young child would face all her life warrants a

sentence of imprisonment for life and the fine as imposed by the

learned trial judge.

74. The appeal is dismissed.

                                           (PRADEEP NANDRAJOG)
                                                JUDGE



                                           (ARUNA SURESH)
February 12, 2009                              JUDGE
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