Sunil Kumar vs State Of Delhi
2009 Latest Caselaw 305 Del

                 IN THE HIGH COURT OF DELHI, AT DELHI
                             Crl.Appeal.No.532/1999.

%                        Judgment delivered on January 30th, 2009.

#      Sunil Kumar                                          ..... Appellant
                              Through:     Mr.Mohinder Saini, Advocate


                                         Versus

$      State of Delhi                                   .... Respondent.

                              Through:     Mr.Lovkesh Sawhney, APP for State


CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI

1. Whether reporters of local papers may be allowed to see the Judgment ? Yes.

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

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

G.S.SISTANI, J :

1. The present appeal has been filed against the judgment dated

27.09.1999 and the order of conviction dated 29.09.1999 in case

No.50/1992, FIR No.179/1991, Police Station Delhi Cantt., filed

under Sections 363/307/376 of the Indian Penal Code, 1860

(hereinafter referred to as, "the IPC"). The appellant was

convicted under Section 366 of the IPC and sentenced to undergo

Rigorous Imprisonment (hereinafter referred to as "RI") for five

years and a fine of Rs.3,000/- and in default of the payment of

fine, the appellant was to undergo simple imprisonment for three

months. The appellant was further sentenced under Section

376(2)(f) read with Section 511 IPC, to undergo further RI for

seven years, a fine of Rs.5,000/- and in default of the payment of

fine, simple imprisonment for five months. Both the sentences

were to run concurrently and the appellant was to be given

benefit under section 428 of the Code of Criminal Procedure,

1973.

2. As per the case of the prosecution, on 12.05.1991, the

complainant, Dal Bahadur, along with his daughter (prosecutrix)

came to Police Station Dhaula Kuan and got recorded his

statement to SI Harish Chand to the effect that he along with his

family resides at Quarter No.13, Dhaula Kuan, Part-1. On

12.05.1991 his wife, Maya, told him that one boy who resides in

the neighbourhood had committed bad act with their daughter

(prosecutrix). He noticed an injury on the right eye of the

prosecutrix and finger prints were also seen on the neck of the

prosecutrix. When asked, the prosecutrix told him that on

11.05.1991 she was playing on the road in front of the quarters.

Sunil Kumar, who resides at Quarter No.30, (used to give her

toffee) took her towards the bushes, which were at a distance

from the quarters. He then removed her salwar and made her lie

on the ground and he himself climbed on her. She felt severe pain

in her stomach and she shouted. The appellant herein slapped

her when she cried loudly. Sunil Kumar, the appellant herein,

pressed her neck and she became unconscious. When she

regained consciousness, she came to her house and found that

her parent had gone to the neighbourhood. She went to sleep.

On the next morning, when her mother enquired, she narrated the

whole incident to her. SI Harish Chand enquired from prosecutrix,

mother of the prosecutrix, who also disclosed the same facts. SI

Harish Chand got conducted medical examination of the

prosecutrix and a case under Sections 363/376/307 IPC was

registered. The prosecution in order to prove its case examined

14 witnesses, and time was sought by defence to produce their

evidence which in fact was never led.

3. It is contended by learned counsel for the appellant that the

impugned judgment and the order of conviction are against the

law and facts of the case. The judgment and order are based on

surmises and conjectures and are liable to be set aside. Learned

counsel has strongly urged before this Court that the Trial Court

has wrongly and illegally relied upon the statement of the

prosecutrix. It is submitted that the evidence of the prosecutrix,

is self-contradictory and material improvements have been made

by her. It is further stated that the evidence of the prosecutrix,

being a child witness, cannot be relied upon and the same has not

been corroborated by any independent and reliable evidence.

Learned counsel further submits that the child witnesses are

prone to tutoring and PW-2, prosecutrix, has admitted that she

was tutored before making the statement. Learned counsel also

submits that the tutored statement made before the Court was

not the case of the prosecution and she had made material

improvement in her statement and the entire examination-in-chief

is contrary to her statement recorded under Section 161 of the

Cr.P.C. (Exhibit PW-2/D-A) and the statement under Section 164 of

the Cr.P.C. (Exhibit PW-1/A). Learned counsel has pointed out that

PW-2, prosecutrix, had admitted in her cross-examination that she

was tutored to make statement by her advocate to depose that

the appellant had penetrated her in a private part. Counsel

submits that the prosecutrix also admitted that the story of rape

and penetration was not told by the prosecutrix on the previous

occasions and she was making the statement because she was

tutored by her parents and advocates. It is also contended that

there are material contradictions in the statements made by PW-

2, prosecutrix, with regard to the presence of the sister of the

prosecutrix. As per the prosecutrix and her mother the elder

sister was in Nepal.

4. Learned counsel for the appellant submits that the medical

evidence placed on record would show that there was no injury on

any private part of PW-2. CFSL report also shows that no semen

or blood was detected on any part of the case property including

the Salwar and underwear. Thus, the case of the prosecution

stands completely shattered. Learned counsel further submits

that the statement of the prosecutrix does not inspire confidence.

Learned counsel also submits that as per the evidence of Hansa

Dutt Joshi, PW-5, the father of the prosecutrix, PW-3 was his

subordinate whereas in his statement the father of the

prosecutrix, PW-3, has stated that he does not know any person

by the name of Hansa Dutt Joshi. It is further stated that the Trial

Court has wrongly relied upon the evidence of PW-5, Hansa Dutt

Joshi. It is also submitted that PW-2, prosecutrix, was allegedly

wearing a salwar at the time of the incident, but PW-5, has stated

that she was wearing a frock and nicker at the time of the

incident. Even otherwise, it is submitted that the sentence

awarded by learned Trial Court, is highly excessive, unreasonable.

The appellant was 18 years of age at the time of the alleged

incident and no previous convictions have been proved against

the appellant. The appellant is the sole bread earner of the family

and has no other person in his family to support his old parents,

besides his elder brother, who is mentally unsound.

5. Learned counsel for the State submits that the prosecution has

been able to prove its case beyond any shadow of doubt. Counsel

further submits that the statement made by the prosecutrix is

trustworthy. There are no material contradictions in her

statement and even otherwise contradictions, if any, are on

account of passage of time and do not go to the root of the

matter. Counsel also submits that the medical evidence clearly

proves the case against the appellant. Accordingly, there were

bruises on the face of the prosecutrix and her hymen was not

intact. It is further submitted that the appellant was last seen

with the prosecutrix, which fact is clearly established by the

independent witness, PW-5, whose testimony has not been shaken

in the cross-examination.

6. I have heard learned counsel for the parties, who have taken me

through the record of this case. It would be useful to analyse the

evidence of the material witnesses. PW-2 is the prosecutrix. At

the time of recording of her statement, she was 11 years of age.

The Court before recording the evidence had put certain questions

to the witness in order to ascertain if the witness was able to give

rational answers or not and being satisfied thereafter her

evidence was recorded. As per this witness, PW-2 on 11.05.1991,

she was playing with her friends under a tree near her house

when at about 7.30 pm, the appellant came and tried to allure her

by saying that he would give her a toffee. Thereafter, the

appellant asked her, if she would go with him to her aunt's place

and to which the witness replied in the negative. However, he

caught hold of her arm and took her to the Embassy near the

broken wall. The learned Trial Court also observed that this

witness was sobbing time and again. PW-2 further deposed that

the appellant removed her salwar. At that time, a couple was

passing nearby and she tried to raise hue and cry. The appellant

gagged her mouth. The appellant then opened the button and zip

of his pant and made her lie in a park on the grass. After making

her lie, he took his organ and pressed it on her private part and

then shook it. She felt severe pain. The appellant continued to

gag her mouth till the couple disappeared and made her

unconscious by strangulating her neck, before he committed rape.

After committing rape, the appellant had threatened her that he

would kill her as well as her parents, if she would narrate this

incident to anybody else. Thereafter, the appellant brought her in

front of her house in his lap. Her parents were not at home at that

point of time as they were away to the aunt's place. Her elder

sister was only present there. After having her meal, she went to

sleep. The next morning, her mother noticed scratches on her

neck and enquired her as to how they appeared, to which she

refused to divulge anything and said that there was a threat to her

life, if she disclosed anything. After being convinced and

courageous, she narrated the entire incident to her mother and

also named the appellant, Sunil Kumar, for the act. Her parents

took her to the house of Sunil Kumar and the matter was

thereafter reported to the police. She had accompanied her

father to the police station where her statement was recorded.

She had also deposed that she was taken to the hospital by the

police where she was medically examined. She also identified the

salwar, which she was wearing at the time of the incident. She

also admitted that her statement had been recorded by the

Magistrate. This witness was cross-examined at length.

7. During the cross-examination by learned counsel for the

appellant, this witness has stated that she cannot read English

fluently and thus could not read her statement under Section 164

of the Cr.P.C. as the same was in English. However, she stated

that the entire incident was narrated to the Magistrate in Hindi.

PW-2 further deposed that "[i]t is correct that I might not have

been able to narrate the incident in the manner, I narrated it

today, had I not been tutored today. The names of my friends

who were playing with me on 11.5.1991, were Seema, Sarita and

my sister Geeta. All the three had seen the accused taking me

away and therefore they also followed the accused, upto the

distance of 20-21 kadams (steps). They did not raise any hue and

cry over the act of the accused in taking me away. From that

place it had taken the accused about five minutes to reach the

broken wall of the Embassy. I had seen the accused opening

button of his pant and zip and had also seen the accused taking

out his organ and penetrating in my private part. There were

bloodspots on my salwar when the accused had committed rape

upon me. I had not noticed any other spot on my salwar. I had

received injuries only on my neck and no where else. The

accused penetrated his organ in my private part for about half an

hour. I cannot tell the extent of penetration, but I can tell that it

was little. I was also told by the advocates that I would depose in

the Court that the accused had penetrated in my private part. I

did not tell the police or to the Magistrate that the accusd opened

his pant and zip and made me to lie on the grass. I was tutored to

say so by my advocates. I, however, did not tell the police that on

the next morning when I woke up my mother had noticed

scratches on my neck and inquired from me as to how I had

sustained those injuries, to which I refused to divulge anything

saying that there was a threat to me and to my parents that in

case I would divulge any fact. My parents tutored me to say so in

the Court today." She further stated that she was playing with her

friends Seema, Sarita and her sister, Geeta. On 11.05.1991, when

she was being taken away by the appellant, they did not raise any

alarm. She was confronted with the portion of her earlier

statement where she did not tell the police or the Magistrate that

the appellant opened his pant and zip and made her lie on the

grass. PW-2 deposed that she was tutored to say by her advocate

and she had not told the same to the police or the Magistrate.

During the cross-examination, PW-2, had also disclosed that she

had told the name of the appellant, Sunil Kumar, to the Doctor at

the time of the preparation of MLC as well as narrated the details

of the incident. She had denied the suggestion that the appellant

did not commit rape upon her and that since her parents were

annoyed with the appellant because of his affair with her sister,

Devi, therefore, the case was falsely registered.

8. PW-3, Dal Bahadur, is the father of the prosecutrix. He deposed

that on 11.05.1991, birthday of the son of his brother, Chander

Bahadur, was being celebrated. His daughter (prosecutrix) was

playing in the staircase on that day. When they returned from the

birthday party, his wife told him that their daughter was not

traceable. However, he did not really search for her. On the next

day before going to duty, his wife had told him that the

prosecutrix was having finger prints on her neck and her right eye

was red. His wife also informed him that on the pretext of giving

a toffee, Sunil Kumar, had taken away the prosecutrix to the

ground in a nearby hospital where the appellant slapped her and

laid her on the ground and climbed upon her. Thereafter he along

with his brother, Chander Bahadur, his wife, and the prosecutrix

went to the house of the appellant and thereafter to the police

station where a complaint (Exhibit PW-3/A) was made. In the

cross-examination by learned counsel for the appellant, PW-3

deposed that the salwar of the prosecutrix had blood stains and

was torn from the aasan area and that the salwar was handed

over to the police. Thereafter the prosecutrix was taken to the

Hospital. In the Hospital, the doctor did not ask him about the

incident and that he was sitting outside when the prosecutrix was

medically examined in the Hospital. PW-3 deposed that he had no

talk with the doctor in the Hospital and did not tell the doctor that

the appellant had raped the prosecutrix. (Confronted with MLC of

the prosecutrix Mark PW3/A, wherein the alleged history has been

given by this witness to the doctor). He denied knowing of

anybody by the name of the Hansa Dutt Joshi. According to this

witness, his elder daughter had gone to Nepal 15-16 days prior to

the incident. And that he did not know if his daughter Devi, had

good relations with the appellant or that they used to meet prior

to her going to Nepal. PW-3 deposed that Devi had gone to Nepal

15-16 days prior to this incident and during this period, his

brothers had married Devi at Nepal. PW-3 further deposed that he

did not knew if Devi wanted to marry the appellant. He also

denied the suggestion that the appellant was being falsely

implicated in the case.

9. PW-4, Maya Devi, is the mother of the prosecutrix. She has also

stated that on 11.05.1991 at about 6.30 pm she along with her

husband had gone to the house of her brother-in-law and left her

daughter, prosecutrix. On her return, she found that the

prosecutrix was sleeping. She had seen marks on the right side of

her face and enquired from her as to how the marks had

appeared, to which no answer was given. On the next morning,

bold and courageous, the prosecutrix told her that the appellant,

who was living on the back side of their house, on the pretext of

her taking to her to the house of her chachi took her to the bushy

area and made her sit on the ground. Thereafter, she was

slapped and made her lie on the ground. He put his hand on her

neck and thereafter he opened the zip of his pant and committed

rape on her. She further stated that the prosecutrix had told her

that the appellant had put his hand on her neck because a couple

was going from nearby that place. She further stated that she

had seen that the salwar of the prosecutrix was torn from the

aasan area. She further stated that she had not accompanied the

prosecutrix to the hospital but accompanied her to the police

station and that she had also handed over the salwar of the

prosecutrix to the police. In the cross-examination by learned

counsel for the appellant, PW-4 deposed that from the day of the

incident, till today, she had not seen the salwar and it was for the

first time today that she was seeing the salwar in the Court. PW-4

deposed that she had told the police that the prosecutrix was

wearing the salwar at the time of the incident, which was having

blood stains on it and had changed her salwar and had made the

prosecutrix to wear the frock when she had brought her to the

police post. In the night, she had seen blood stains on the salwar

of the prosecutrix. On the next day, she told her husband that the

prosecutrix had told me that the appellant had committed rape

upon her. PW-4 stated that the prosecutrix had told her husband

about the incident except the fact that she was raped by the

accused. And that she had told her husband that the prosecutrix

has been raped by the appellant. Thereafter her husband did not

go to duty on that day. She, her husband, the prosecutrix and her

niece went to the house of the appellant and thereafter reached

the police post at about 9.30 or 10.00 AM. In the police post, the

police had inquired about the incident from her. Thereafter, when

they came back to their house, she found that her elder daughter-

Devi had washed the salwar Ex.P1, which the prosecutrix was

wearing on the previous day, because it was dirty. PW-4 deposed

that it was incorrect to say that her daughter-Devi wanted to

marry the appellant and they were opposed to it. PW-4 denied the

suggestion that they had falsely implicated the appellant in this

case.

10. PW-5, Shri Hansa Dutt Joshi, deposed that on 11.5.1991, at about

7.00 p.m., he had gone to Defence Services Officers Institute

Shopping Complex, Dhaula Kuan. He had seen appellant Sunil,

with one girl [whose name later on he came to know as ....,

prosecutrix (name withheld)] was going on the road behind the

M.I. Room where one doctor sits. He knew appellant and

prosecutrix by face prior to the incident, as they were frequenting

that area. In cross-examination by learned counsel for the

appellant, PW-5 deposed that the police inquired from him

regarding this case on 12.5.1991, when the police was not

registering this case. PW-5 deposed that he knew Dal Bahdadur,

father of the prosecutrix, prior to this incident, as he was his

subordinate. He had gone with Dal Bahadur to the police post on

12.5.1991 at about 11 A.M. and that he did not go to the P.P. on

11.5.1991. PW-5 further deposed that he did not remember what

clothes the appellant Sunil was wearing on 11.5.1991. (Vol.

stated that he was wearing a T-shirt of dark colour) and as far as

he remembered, the prosecutrix was wearing a frock and nikkar.

11. PW-7, DR. V. Ramesh, Safdarjung Hospital, deposed that on

13.5.1991, he had medically examined the appellant Sunil Kumar

vide MLC (Ex.PW-7/A), which bears his signatures at point A. after

examining Sunil Kumar, he had opined on MLC that he was

capable of performing sexual intercourse. In his cross-examination

by learned counsel for the appellant, PW-7 deposed that he did

not find any injury on the male organ of the appellant Sunil

Kumar. He had not mentioned in MLC if semega was present or

not. PW-7 voluntarily deposed that he did not mention about

semega because prepuce was retractable and there was no

deposit underneath it. PW-5 further deposed that it was not

necessary that there would be injury on the male organ of an

adult man if he has forcible sexual intercourse with a child. If

there is emission of semen, then it is possible that it would be

found on the male organ. However, it was incorrect to suggest

that there would be injury on male organ if an adult commits

forcible sexual intercourse with a child.

12. PW-14, Dr. Alka Goel, Gyne Department, Senior Medical Officer,

Safdarjung Hospital, deposed that in the MLC (Ex.PW9/A), it was

mentioned that there were bruises.Hymen was not in-tact.

Vaginal swab was taken and x-ray was advised for bone age. In

her cross-examination by learned counsel for the appellant, PW-14

deposed that it was correct that the alleged history given in the

MLC Ex.PW-9/A was not of rape. And voluntarily deposed that the

alleged history given by the father and the girl herself was of

assault by some man, who took her to the bushes last night and

assaulted her. Normally the age of bruises is about one week and

during this period, the colour of the bruises change. PW-14 stated

that it was incorrect to suggest that in a case of rape of a child of

tender age by a fully grown man, the abdomen of the child will not

be soft. PS and PV examination is conducted to find out the

evidence of rape and to see the position of hymen. Subsequently

PW-14 was asked "Do you agree that Modi has suggested where

in the absence of any injury on the private part of the girl,

although there was small tear of hymne, still if it is not a case of

rape? And to which she replied that "It is correct that Modi in his

book of Medical Jurisprudence has stated so, but I do not agree

with this observation." PW-14 further stated that it was incorrect

to suggest that she was deposing falsely.

13. The submissions of the learned counsel for the appellant can be summarized as under:-

1. That the trial court has wrongly relied upon the statements of the prosecutrix in view of the fact that her statement was a tutored statement.

2. That the statements of the material witnesses are contradictory and material improvements have been made.

3. Evidence of the prosecutrix is unreliable being a child witness and the same having not been corroborated by any independent evidence.

14. In this case, the trial court has held that the prosecution has

succeeded in proving beyond reasonable doubt that the appellant

had kidnapped the seven year old prosecutrix and attempted to

rape her.

15. To say that merely because the prosecutrix was a child witness

and so her evidence cannot be relied upon, is incorrect. It has

repeatedly been held by the Apex Court that a child witness if

found competent to depose, their testimony can be the basis of

conviction.

16. It would be useful to refer Ratansinh Dalsukhbhai Nayak Vs.

State of Gujarat reported at 2004 SCC (Crl.) 7. Relevant

portion of the judgment reads as under:

"6. Pivotal submission of the appellant is regarding acceptability of PW 11's evidence. The age of the witness during examination was taken to be about 10 years. The Indian Evidence Act, 1872 (in short "the Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from questions, because of tender years, extreme old age, disease -- whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and given rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States1. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Suryanarayana v. State of Karnataka)2.

7. In Dattu Ramrao Sakhare v. State of Maharashtra3 it was held as follows: (SCC p. 343, para 5)

"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the

159 US 523: 40 LeD 244 (1895).

(2001) 9 SCC 129.

(1997) 5 SCC 341.

court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.

The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. The precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make- believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and molded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."

This question was also the subject matter of a recent judgment of

the Supreme Court in Acharaparambath Pradeepan & Anr. Vs.

State of Kerala 2007 [1] JCC 828. Relevant portion of the

judgment reads as under:-

"48. Section 118 of the Indian Evidence Act seeks to exclude evidence of those who may suffer from intellectual weaknesses. It reads as under:

"Who may testify. -- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."

49. In terms of the said provision therefore, all persons

shall be competent to testify unless by reason of tender years, the court considers that they are incapable of understanding the questions put to them and of giving rational answers. It is for the Judge to satisfy himself as regards fulfillment of the requirement of the said provision. The opinion of the learned Judge had been recorded and, thus, it satisfies the test laid down by this Court in Rameshwar S/o. Kalyan Singh v. The State of Rajasthan [AIR 1952 SC 54].

50. It is not the case of the appellants that the court had failed to comply with the statutory obligations in this behalf. It is also not the case of the appellants that their testimonies otherwise should not have been accepted.

51. A child indisputably is competent to testify if he understands the question(s) put to him and gives rational answer thereto. None of the witnesses have been found to be suffering from any intellectual incapacity to understand the questions and give rational answers thereto.

53. Indisputably, certain factors are required to be considered as regards reliability of the testimony of the child witnesses but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of child witnesses."

17. Applying the principles laid down by the Apex Court that while

relying on the evidence of a child witness, courts should carefully

and cautiously analyse the evidence and also that the evidence of

a child witness is prone to tutoring and that such evidence should

be scrutinized with great care and circumspection. In my

considered opinion, there are no material contradictions in the

statements made by the prosecutrix under Section 164 Cr.P.C.

and the statements made in court as far as the identity of the

appellant is concerned. There is also no contradiction that the

appellant Sunil had tried to strangulate the prosecutrix. No doubt,

there is material improvement, as has been noticed by the

learned trial court, with respect to the prosecutrix being raped.

On account of the material discrepancies with regard to her being

raped, prosecutrix, PW-2 has truthfully stated that she was told by

the Advocates and thus, she has deposed accordingly. The MLC

also supports the version of the prosecutrix which shows that

there were bruises on the right eye and neck. Furthermore, the

factum of the appellant having taken the prosecutrix stands

corroborated by the evidence of PW-5, Sh. Hansa Dutta Joshi who

had last seen the prosecutrix with the appellant. As per settled

law, it is not as if a conviction can only be based on the sole

ground of last seen, which may not by itself necessarily lead to

the inference that it was the accused who committed the crime. I

have examined the evidence of PW-5, Sh.Hansa Dutta Joshi, who

has stated that on the fateful day at about 7.00 p.m, he had seen

the appellant Sunil with one girl going on the road behind the M.I

Road. He also stated that he knew the appellant and the

prosecutrix by face prior to the incident. This witness was cross-

examined. I find that there is nothing in the cross-examination

which shakes the testimony of this witness. There is also nothing

on record to show as to why PW-5 would give evidence against

the appellant. In fact, no question has been put as well as there is

nothing on record to show that there was any enmity between

PW-5 and the appellant.

18. The evidence of the prosecutrix, PW-2 is consistent and reliable on

three material aspects that she was taken away by the appellant;

he removed her salwar and his pant, made her lie on the ground

and tried to strangulate her. This portion is clearly severable from

the portions which have been tutored. Moreover, she has

unambiguously identified the appellant. I find no force in the

submissions of the counsel for the appellant that there are

material contradictions in the statements of the witnesses.

19. In the light of the aforesaid, I find no infirmity in the judgment

dated 27.09.1999 passed by the learned trial court in Sessions

Case No.50/1992, FIR No.179/1991, P.S. Delhi Cantt. However,

taking into consideration the age of the appellant, who was 18

years of age at the time of incident, and the fact that there is no

previous conviction against him and also taking into consideration

the family circumstances of the appellant that he was the sole

bread winner of the family and he has to support his old parents

besides the fact that his elder brother is mentally unsound, the

sentence of conviction under Section 376 (2) (f) read with Section

511 of the IPC is reduced from seven years of RI to five years of

RI.

20. The appeal is disposed off accordingly.

G.S. SISTANI, J.

January 30, 2009 msr/ssn