Arvind Kumar @ Pillu Nai vs State
2009 Latest Caselaw 805 Del

*                      HIGH COURT OF DELHI : NEW DELHI

           Judgment reserved on : February 24, 2009
            Judgment delivered on : March 13, 2009

+                          Crl. A. No. 849/2006

%     Arvind Kumar @ Pillu Nai               ...  Appellant
                Through: Mr. Sumeet Verma, Legal Aid
                           Advocate.

                                    versus

      State                                        ...  Respondent
                       Through:   Mr. Amit Sharma, Additional Public
                                  Prosecutor for State.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

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

2. To be referred to Reporter or not?

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

SUNIL GAUR, J.

1. In this appeal, appellant-Arvind Kumar @ Pillu Nai, assails

verdict of guilt returned against him, vide impugned judgment

and order on sentence of 17th and 19th April, 2006, under Section

363 and 376 of Indian Penal Code by the trial court.

2. Appellant - Arvind Kumar @ Pillu Nai has been sentenced to

undergo rigorous imprisonment for a period of ten years and to

pay fine of Rs.5,000/- and in default of payment of fine he had

been ordered to undergo rigorous imprisonment for six months

for the offence punishable under Section 376 of Indian Penal

Code and to also undergo rigorous imprisonment for a period of

Crl. A. No. 849/2006 Page 1 five years and fine of Rs.2,500/- and in default of payment of fine,

he has been ordered to undergo rigorous imprisonment for three

months, in pursuance to his conviction for the offence punishable

under Section 363 of IPC. These two sentences are to run

concurrently in terms of the impugned verdict.

3. The factual matrix, available on the record of this case, is as

under:-

„On 22nd November, 2003, at about 9.00 pm, on the asking by neighbourhood aunt of prosecutrix, she went out for taking poori subzi being distributed at the election center in the gali, where one person wearing white T-shirt, black pant and jacket on the pretext of providing her poori subzi within five minutes took her to the nearby DDA Park and after taking of her clothes as well as his clothes, he committed rape upon her forcibly and thereafter left the spot. Afterwards, one person came there and took her outside the said park and one police person met her and dropped her at her house. Thereafter, parents of the prosecutrix brought her to police station and asked for legal action against the said wrong doer. In pursuance of the aforesaid statement of the prosecutrix, rukka was prepared by Sub-Inspector Subhash Chand and on its basis, FIR No.453/03 under Section 363/376 of Indian Penal Code was registered. Prosecutrix was got medically examined and her undergarment and swab slide was taken into possession by police. Accused - Arvind Kumar @ Pillu Nai was apprehended and got medically examined. The clothes of the accused as worn by him on the day of incident, were taken into possession by police, exhibits of this case were sent to FSL and

Crl. A. No. 849/2006 Page 2 report from FSL was obtained, statements of concerned witnesses were recorded and after conclusion of the investigation, charge sheet was filed against the accused for the offence punishable under Section 363/376 of Indian Penal Code.

Appellant did not plead guilty and claimed trial for the charge of rape framed against him by trial court.

4. To establish the charge against the Appellant/accused -

Arvind Kumar @ Pillu Nai, the prosecution had got examined

nineteen witnesses in this case. The material witnesses are Smt.

Kusum (PW-3), mother of the prosecutrix; Naresh Kumar (PW-4),

father of the prosecutrix and Dr. Nischal Chugh (PW-5) and above

all, the prosecutrix (PW-2), whose name has not been indicated in

view of the social object of preventing victimization or ostracism

of victim of a sexual offence, is the most crucial witness of the

prosecution, who had narrated the whole incident, while deposing

before the court. This witness, to specific question of the court as

to whether the boy who had taken her inside the park is present

in the court, prosecutrix on being terrified and traumatised,

pointed out towards the appellant/accused and again started

crying uncontrollably and was consoled.

5. The prosecutrix stated in her deposition that the

appellant/accused took her to DDA Park and removed his pant

and underwear and also removed her pyjama and underwear and

laid upon her and put his private part into her private part, on

which she felt great pain and blood also came out from her

Crl. A. No. 849/2006 Page 3 private part. She also asserted that in this process, accused put

his hand on her mouth and tried to strangulate her. The

appellant/accused, thereafter, left the spot and she wore her

clothes and one uncle took her out of the park and, thereafter,

one police person took her to house, where she narrated the

incident to her mother. At the police station, her statement was

recorded and she was got medically examined. She also

identified her underwear as Ex. P-1, which she wore on the day of

the incident.

6. Smt. Kusum (PW-3) is the mother of the prosecutrix who

deposed in the court to the effect that the prosecutrix is aged

about eight years and on 21.11.03 at 9 pm on not finding her

daughter (PW-2) in the house, they tried to trace her and at about

1.00 am (night), her daughter was brought by police and she

noticed blood stains on her private part. She also stated that her

daughter (PW-2) had told her that she could identify the culprit, if

shown to her.

7. Shri Naresh, (PW-4) father of the prosecutrix had

corroborated the narration/version of his wife (PW-3).

8. ASI Surender Singh, (PW-1) is the duty officer who proved

the FIR of this case as Ex. PW-1/A, and endorsement on the

rukka as Ex. PW-1/B, made by him.

9. Dr. Nischal Chugh, (PW-5) Senior Resident from Hindu Rao

Hospital, deposed that on 22.11.03 the prosecutrix (PW-2) was

brought to the hospital by Sub-Inspector Subhash and Kusum

Crl. A. No. 849/2006 Page 4 (mother of prosecutrix) with alleged history of assault (rape) and

he had prepared MLC Ex.PW-5A of the prosecutrix. He had taken

the blood sample of prosecutrix (PW-2) and prepared the casualty

card, Ex. PW-5/B.

10. A public witness named Harish (PW-6) was also examined in

this case, who deposed that one day, at about 9.30 pm in

November 2003, while he was going to take juice from the shop

at Main Market Sharstri Nagar, he had seen Pillu Nai taking one

female child, aged about 9-10 years towards Nala and on the

next day, he came to know that one minor girl had been raped at

Shastri Nagar and he went to the police station in the morning

and narrated the said fact to Investigating Officer. However, on

point of identity, he turned hostile and had not identified the

appellant as accused in the court.

11. Shri A.K. Srivastava, (PW-10) is SSO - cum-Chemical

Examiner, FSL, Malviya Nagar had proved the FSL report as Ex.

PW-10/A and Ex. PW-10/B, as prepared by him and forwarding

letter as issued by their Director as Ex. PW-10/C.

12. Constable Vinod Kumar, Duty Constable (PW-13) had

deposed about medical examination of Appellant/accused -

Arvind Kumar @ Pillu Nai at Hindu Rao Hospital and he being

delivered four sealed parcels containing underwear, baniyan,

blood sample alongwith sample seal of the accused of the

Investigating Officer, which were seized vide seizure memo Ex.

13A.

Crl. A. No. 849/2006                                          Page 5
 13.   Dr. Atul Mishra (PW-14)     from Hindu Rao Hospital had

proved the MLC No.8319/03 Ex. PW-14A. Dr.Archana Sinha,

learned Metropolitan Magistrate (PW-14) had proved the TIP

proceedings conducted by her as Ex. PW-14A and also deposed

that despite her caution, accused insisted upon refusing to

participate in the TIP proceedings.

14. Sub-Inspector Subhash Chander (PW-17) is the

Investigating Officer of this case, had deposed before trial court

that on the night intervening 21st/22nd November, 2003, at about

12.45 am while he alongwith Constable Amar Singh were present

at Main Market, Shastri Nagar, Naresh Kumar and his wife Kusum

alongwith their minor daughter (prosecutrix) met him and

informed about the commission of sexual assault upon the

prosecutrix, on which he recorded statement of the prosecutrix,

Ex. PW-1/B and got registered the FIR, copy of which is Ex. PW-

1/A, thereafter, prosecutrix was medically examined vide MLC Ex.

PW-5/A and arrested the accused vide arrest memo Ex. PW-17/B

and conducted the personal search memo as Ex. PW-8/B and

disclosure statement of accused as Ex. PW-8/A . He also added

that the accused was got medically examined vide MLC Ex. PW-

14/A and collected sealed parcels containing under garments of

accused, one blood sample of accused, one blood sample bottle,

which were seized vide memo Ex. PW-13/A. He stated about

preparation of site plan of the spot Ex. PW-17/C and recording the

statement of witnesses and filing of charge sheet on completion

of investigation of this case.

Crl. A. No. 849/2006 Page 6

15. Statement of Appellant - Arvind Kumar @ Pillu Nai under

Section 313 Cr.P.C. was recorded by the trial court, wherein he

had denied the allegation of prosecution and claimed to be

innocent and alleged that he had been falsely implicated in this

case. The Appellant - Arvind Kumar @ Pillu Nai got examined two

witnesses in his defence. Manohar Lal, (DW-2) is father of

appellant and Chander Pal (DW-2) is neighbour of Appellant -

Arvind Kumar @ Pillu Nai.

16. Trial concluded with conviction and sentence imposed upon

appellant, as indicated above.

17. Counsel for the parties have been heard and the evidence

on record has been analysed with their assistance.

18. I proceed to evaluate the evidence of the prosecutrix (PW-

2), a girl child of eight years, in the light of the pertinent

observations made by the Apex Court in the case of State of

Punjab Vs. Gurmeet Singh and Ors. (AIR 1996 SC 1393), which

are as follows: -

"Of late, crime against women in general and rape in particular is on the increase... Rape is not merely a physical assault- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in Crl. A. No. 849/2006 Page 7 the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."

19. To dislodge the prosecution case, the question of identity of

the Appellant has been raised in this appeal. The testimony of the

prosecutrix (PW-2), regarding the identity of the culprit, deserves

to be taken note of and is reproduced as under:-

"Court question: Is the boy who had taken you inside the park present in the court?

Ans. The witness has looked at accused Arvind present in court produced from J.C. and has started crying very loudly. The witness is terrified and traumatised and states that he is the same man. The witness was so scared and terrified that she cried uncontrollably and fell down on the chair on which she had been made to stand to depose in the witness box. The witness has identified the accused. Once again the court, APP. Naib Court (lady) and mother of child have consoled the child."

Crl. A. No. 849/2006 Page 8

20. Prosecutrix (PW-2) in her evidence has not only identified

the Appellant as a culprit but has also graphically narrated in her

evidence, as to how she was forcibly raped by the Appellant.

Nothing worthwhile has come out in the cross-examination of the

prosecutrix to discredit her version. The evidence of the

prosecutrix not only finds support from the evidence of her

parents (PW-3) and (PW-4) but also from the medical evidence on

record.

21. Learned counsel for appellant heavily relies upon the

evidence of Harish (PW-6) who has resiled from his version of

seeing the Appellant with the prosecutrix on the day of incident.

Although, Harish (PW-6) has not supported the prosecution case

regarding arrest of the Appellant/accused at his instance and has

not identified the Appellant/accused before the trial court but he

has not denied the fact that one Pillu Nai was seen with the

prosecutrix (PW-2) in the main market of Shastri Nagar on the

day of the incident. Not only in the evidence but right from the

beginning, Appellant/accused has been addressed as "Pillu Nai"

and he had the opportunity to deny in his statement under

Section 313 Cr. P.C. that he is not „Pillu Nai‟. Appellant has not

denied it. The stand taken by the Appellant/accused before the

trial court in his statement under Section 313 of Cr. P.C. deserves

notice and is as under:-

"I am Innocent and have been falsely implicated in this case by the police as they had been harassing me

Crl. A. No. 849/2006 Page 9 earlier and used to visit my barbar shop frequently. Hence, I may be acquitted."

22. Even Manohar Lal (DW-1) has claimed in his evidence that

he is father of accused Arvind Kumar @ Pillu Nai. He has not

stated that Appellant/accused was never known by the name of

'Pillu Nai'. Although, Chanderpal (DW-2), being a neighbour of

the Appellant/accused gives him a clean chit but even he does

not state in his evidence that Appellant/accused was never

known as 'Pillu Nai'. As per Appellant‟s own showing he was

having a barber shop and there is no clear cut denial of his being

known as 'Pillu Nai'. Therefore, the hostility of Harish (PW-6) to

the prosecution case is of no avail to the Appellant/accused. No

reason is forthcoming as to why the Investigating Officer of this

case (PW-17) or the prosecutrix and her parents would falsely

implicate him in this case, for such a heinous offence.

23. The evidence on record considered in its entirety,

persuades this court to uphold the conviction and sentence

imposed upon the Appellant by the trial court in this case. Since

the Appellant had raped the prosecutrix who was just eight years,

therefore, the sentence of rigorous imprisonment for a period of

ten years awarded to him is the minimum, as provided under

Section 376 (2)(g) of Indian Penal Code, there is no scope for any

reduction of sentence imposed upon the Appellant.

24. This appeal lacks merit and is hereby dismissed.

Sunil Gaur, J.

March 13, 2009
pkb

Crl. A. No. 849/2006                                              Page 10