Delhi High Court
Bhringu Nath vs State on 26 February, 2009
Author: Pradeep Nandrajog
i.3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: February 26, 2009
+ CRL.A.196/2005
BHRINGU NATH ..... Appellant
Through: Ms.Poornima Sethi, Advocate.
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
PRADEEP NANDRAJOG, J. (Oral)
Crl.M.(B.) No.252/2008
Since the appeal itself is being heard today for
disposal, the application seeking suspension of sentence is
dismissed as infructuous.
CRL.A.196/2005
1. The appellant has been convicted for the offence
punishable under Section 376 IPC. The judgment and order is
dated 30.11.2004. Vide order of sentence dated 1.12.2004, the
appellant has been sentenced to undergo imprisonment for life
and to pay a fine of Rs.5,000/-, in default, to undergo RI for 6
months.
2. It is urged by learned counsel for the appellant that
no semen was detected from the frock of the victim and that the
doctor concerned has not ruled out the possibility of the injury
sustained by the victim in her private parts to be the result of a
fall on a hard object, the finding of guilt returned by the learned
Trial Judge cannot be sustained. It is additionally urged that the
parents of the victim i.e. PW-1 and PW-2 have deposed at
variance on the point as to who reached the jhuggi of the
appellant first and for said reason neither can be believed.
3. We note that when the incriminating circumstances
were put to the appellant i.e. when he was examined under
Section 313 Cr.P.C., the appellant stated:-
"I am innocent. No such crime was ever committed by
me. There was dispute between me and mother of the
prosecutrix on water. On the day of incident, „M‟, the little
child fell on the brick while playing in the gali and being
elder on humanitarian grounds I picked her up and on it
complainant implicated me falsely in this case. I have also
my grand-son and grand-daughter."
4. The date was 28.1.2001. „M‟ aged 1½ years was
playing outside her jhuggi. Her mother Ajab Nisha PW-1, was
inside the jhuggi. She heard the cries of her child and went
outside. The cries attracted her to an adjoining jhuggi (the
residence of the appellant). She pushed the door and went
inside. She saw her daughter lying on a bori (jute bag) inside
the jhuggi. She saw that the underwear of the accused was
stained with blood. Ajab Nisha cried and this attracted her
husband Mohd.Israel PW-2, as also people in the neighbourhood.
The appellant attempted to flee but was nabbed by the
residents of the locality. He was beaten. The police was
informed. SI Sanjiv Sharma PW-10, accompanied by Const.Hari
Kishan PW-6, reached the spot.
5. In the meanwhile, the injured child was removed to
the hospital in a PCR van by HC Abdul Rehman PW-7. At the
hospital, Dr.Seema Prakash PW-11, examined the victim and
prepared the MLC Ex.PW-11/A recording as under:-
"Bleeding P/V after the incident.
Child was not wearing undergarments at the time of
incident and allegedly removed by accused before
assault. The frock to be sealed which was worn at the
time of incident.
L/E Hymen could not be examined as child is irritable.
Dried up - secretions seen along with blood stains over
Latia minora and magora. No active bleeding p/v."
6. She recorded the opinion that there may be
possibility of forceful penetration into private part of the victim
as perineal tear was seen on EUA.
7. During trial, Dr.Seema Prakash PW-11 on cross-
examination deposed:-
"There was no injury on the Livea majora or minora.
Perineal tear can be caused by any penetration other
than male organ in case the baby falls and there is
some projection such like injury may be caused.
8. It is apparent that the appellant admitted his
presence with the victim, but sought to explain the injury on the
private parts of the victim, taking a cue from the opinion of the
doctor and hence stated that the child fell on a brick and out of
compassion he picked up the child.
9. Whether this has happened or not would be
determined on the analysis of the evidence. Ajab Nisha PW-1,
the mother of the victim deposed the facts as noted herein
above by us in para 4 above. Relevant would it be to note that
Ajab Nisha categorically deposed that she saw her child in the
jhuggi of the deceased and was lying on a bori (jute bag). She
also deposed that she saw the accused pulling up his knickers.
10. We note that Ajab Nisha has not been cross-
examined with respect to said two statements of fact made by
her. No suggestion has been given to her that she did not saw
her daughter inside the jhuggi of the appellant. No suggestion
has been given to her that the accused was comforting her
daughter. We note that the only suggestion given to her is that
she was falsely implicating the accused; a suggestion which was
denied.
11. Mohd. Israel PW-2, the father of the victim also
deposed on the lines of PW-1. He deposed that he reached the
jhuggi of the appellant on hearing the screams of a child and
saw the appellant having sexual intercourse with his daughter.
He deposed that on seeing him, the appellant tried to flee, but
was caught. That he saw his daughter bleeding from her private
parts. He saw his wife who took the child in a PCR van.
12. We notice that there is a slight variation in the
testimony of PW-2 and PW-1, as to who reached the jhuggi first.
But the said fact is neither here nor there for the reason, both
the witnesses come from a humble background. Who reached
first was an immaterial point in issue. The fact of the matter
remains that both of them had reached the jhuggi where the
offending act was done.
13. Pertaining to the deposition of PW-2, relevant would
it be to note that during cross-examination his statement in
examination-in-chief that he saw the accused and his daughter
inside the jhuggi of the accused has not been questioned.
Further, he has not been subjected to any meaningful cross-
examination pertaining to his statement that his daughter was
bleeding from her private parts.
14. We note that these very questions were addressed
before the learned Trial Judge who has held that the defence
version has to be thrown in the dustbin, for the reason the
testimony of PW-1 and PW-2 shows that the parents responded
to the cries of the young victim and the place from where the
cries were emanating was the jhuggi of the appellant and that
the appellant had not challenged their testimony with respect to
the said fact. Meaning thereby, the appellant did not challenge
the testimony of the parents of the victim on the point they saw
the victim inside the jhuggi of the appellant and the appellant
was inside the jhuggi and attempted to flee on seeing the father
of the victim.
15. Indeed, the learned Trial Judge is correct. If the child
had sustained the injury as claimed by the appellant and had he
responded to the cries of the child, who, as per his version fell
on a brick, his conduct would have been to rush the child to the
house of her parents and not take the child to his jhuggi and go
about removing her underwear.
16. Before concluding, we may note that the appellant
was examined by Dr.V.K.Jain PW-5, who, as per his report
Ex.PW-5/A, has opined that the appellant is capable of
performing sex. We note that the appellant refused to give his
semen sample.
17. The contention that no semen was found on the frock
of the young victim is neither here nor there for the reason as
deposed to by PW-1 and PW-2, when they saw their daughter
her underwear had been removed. The possibility of the frock
being pulled up and going much above the waist of the young
victim cannot be ruled out and this explains no semen dropping
on the frock.
18. We see no reason to differ with the view taken by the
learned Trial Judge, neither on the conviction, nor on the
sentence.
19. The appeal is dismissed.
PRADEEP NANDRAJOG, J.
ARUNA SURESH, J.
FEBRUARY 26, 2009
Dharmender
