Hakim @ Billu vs State
2009 Latest Caselaw 4413 Del

*  IN THE HIGH COURT OF DELHI AT NEW
DELHI

+      Crl.A.No.669/06

                           Reserved on: October 23, 2009

                        Pronounced on: October 30, 2009

#      Hakim @ Billu                          ..... Appellant

!                         Through: Mr.     Manoj  Sharma,
                          Standing Counsel from Delhi High
                          Court Legal Service Committee.

                      Versus

$      STATE
       (NCT OF DELHI)                    ..... Respondent

^                         Through:Mr.R.N. Vats, Addl.P.P.

CORAM:

    HON'BLE MR. JUSTICE V.K. JAIN

       1. Whether Reporters of Local newspapers 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


V.K.Jain, J.

This is an appeal against the judgment dated

28.11.2005 and Order on Sentence dated 01.12.2005,

whereby the appellant was convicted U/s. 376 IPC and

was sentence to undergo imprisonment for 14 years and

to pay fine of Rs. 5,000/- to undergo simple

imprisonment for one year in default.

2. The case are prosecution, in nutshell is that on

23.05.2003 at about 6.00PM, the appellant took the

prosecutrix, then a girl aged about 4 years with him, on

the pretext of giving biscuit to her. When the child

returned at about 6.30 PM her mother noticed blood

stains on her face, thigh and the frock which she was

wearing. On enquiry, the prosecutrix informed that the

appellant had taken her to his jhuggi and done bad act

with her, after removing her clothes as well as his own

clothes. On checking the private parts of the

prosecutrix, her mother found fresh wounds and blood

there. The people living in the locality gathered on the

spot and gave beatings to the appellant, when he tried

to run away. The police was informed and the appellant

was handed over to the police.

3. The complainant, who is the mother of the

prosecutrix, came in the witness box, as PW-1 and

stated that on 23.05.2003 at about 6 PM, when her child

was playing with the children in the neighbourhood and

she was cooking food, the prosecutrix entered the

house in a semi-conscious condition. She was weeping

and had blood stains on her face and thighs as well as on

her frock. She cleaned her face and thighs and asked

her as to what had happened with her. She told her that

the appellant Hakim @ Billu who was living in her

neighbourhood had taken her away on the pretext of

taking a buiscuit. At the time when the prosecutrix

pointed out towards appellant he was locking the door of

his jhuggi. The prosecutrix further stated that he took

her inside his jhuggi, made her lie on the floor and

removed her underwear. When she tried to screem, the

appellant put his hands on her mouth tightly and then

committed rape upon her. She has further stated that

she found fresh injuries on the private part of the

prosecutrix and also noticed bleeding from her vagina.

The prosecutrix was not wearing underwear at that

time. On hearing this, she raised alarm immediately,

as a result of which people from the neighbourhood,

caught hold of appellant, and gave beating to him, when

he was trying to run away. Someone, informed the

police. Police reached there and recovered a bed sheet,

which was blood stained and underwear of prosecutrix

from the house of appellant. The frock which the

proseuctrix was wearing was taken by the doctor. The

witness has identified frock Ex. P2 which the prosecutrix

was wearing at the time of incident.

4. PW-4 Ashehswar is the neighbour of PW-1. He has

stated that on 23.05.2003 at about 6 PM, when he

returned from work, he noticed the appellant talking to

prosecutrix in a drunken condition and then taking her

with him. He (witness) went inside his house. After

sometimes, he saw the prosecutrix coming out from

jhuggi of the appellant while weeping, sweating and

bleeding. He also noticed the appellant outside his

jhuggi. On being asked by neighbour as to why she was

weeping, the prosecutrix replied by making gestures

that the appellant had done wrong act with her. The

appellant was apprehended seeing the bad condition of

the prosecutrix. He was given beatings by the public

and police was called. One bedsheet was recovered

from the house of the appellant, alongwith underwear of

prosecutrix. The witness has identified these articles in

the court.

5. PW-5 Mrs. Manju is the another neighbour of PW-

1. She has stated that on 23.05.2003 at about 6 PM, she

noticed the appellant taking the prosecutrix inside his

jhuggi. After sometime, she saw the prosecurtix coming

out of his jhuggi in a bad condition. She was weeping at

that time and became unconscious. Some water was

sprinkled on her face and she was asked as to what had

happened. The prosecutrix gained consciousness and

replied that the appellant had wrong act with her. The

prosecutrix was bleeding profusely from her vagina at

that time. Immediately thereafter, the appellant tried to

run away, after putting lock on the door of his jhuggi.

People apprehended the appellant and gave beating to

him when they came to know about the incident.

Somebody telephoned police and the appellant was

handed over to them by the public.

6. PW-9 Dr. Shalini Jain examined the prosecutrix in

the hospital, on 23.05.2003 and found that her hymen

was torn and 2nd degree perinial tear was present which

was bleeding.

PW-12 SI Harjinder Rana is the Investigating

Officer of this case, who went to the spot and arrested

the appellant. He has stated that the bedsheet Ex.P3

and underwear of the prosecutrix Ex. P1 were also

seized by him.

7. In his statement of U/s. 313 Cr.PC, the appellant

denied the allegations against him and stated that he

has been falsely arrested in this case, at the instance of

PW-5 Manju and another lady who name he did not

know.

8. The prosecutrix having not been examined in

the witness box, presumably on account of her tender

age, the case of the prosecution against the appellant

rests on circumstantial evidence.

9. When a case rests purely on circumstantial

evidence, such evidence must satisfy three tests.

Firstly, the circumstances from which an inference of

guilt is sought to be proved, must be cogently and firmly

established. Secondly, the circumstances should be of a

definite tendency unerringly pointing towards the guilt

of the accused. Thirdly, the circumstances taken

cumulatively, must form a chain so complete that there

is no escape from the conclusion that within all human

probability the crime was committed by the accused and

none else. That is to say, the circumstances should be

incapable of explanation on any reasonable hypothesis

save that of the guilt of the accused.

10. For determining whether circumstances

established on the evidence raise but one inference

consistent with the guilt of the accused, regard must be

had to the totality of the circumstances. Individual

circumstances considered in isolation and divorced from

the context of the overall picture emerging from a

consideration of the diverse circumstances and their

conjoint effect may be themselves appear innocuous. It

is only when various circumstances are considered

together that it becomes possible to understand and

appreciate their true effect.

11. The first circumstance proved against the

appellant is that at 6.00 p.m. on 23rd May, 2003, he took

the prosecutrix with him to his jhuggi. This has been

duly proved by PW-4 Asheshwar and PW-5 Mrs. Manju.

There is no reason to disbelieve the testimony of PW-4

and PW-5. There is no enmity or ill-will between the

appellant on one hand and either of them on the other

hand. Hence, there could have been absolutely no

reason to depose falsely against him. Though in his

statement u/s 313 of Cr.P.C., the appellant has claimed

that he has been implicated at the instance of PW-5

Manju and another lady whose name he did not know,

he has not given any reason as to why Manju should

implicate him in a false case. He has just made a bald

allegation without any foundation and without giving

any details. This is not his case that he had any previous

enmity with Manju. Therefore, I find no justification for

rejecting the testimony of either PW-4 Asheshwar or PW-

5, Manju.

12. The appellant has not given any reason for

taking the prosecutrix with him in his jhuggi. This is not

his case that though he took the prosecutrix to his

jhuggi, it was for the purpose of serving biscuit or some

other eatable to her. He has chosen to altogether deny

having taken her to his jhuggi.

13. The second circumstance proved against the

appellant is that when the prosecutrix came out of his

jhuggi at about 6.30 p.m., she was weeping and had

blood stains on her face and thighs as well as on her

frock. PW-4 Asheshwar as well as PW-5 Manju had seen

the prosecutrix coming out of the jhuggi of the

appellant, weeping and bleeding profusely. When the

mother of the prosecutrix checked her private parts, she

noticed injuries on them and also found her bleeding

from the vagina. The prosecutrix was not wearing her

underwear at that time. This is another circumstance

against the appellant which he has not attempted to

explain. No explanation has been given by him as to

why the prosecutrix who was when taken by him to his

jhuggi at about 6.00 p.m. was found bleeding from her

vagina, was without the underwear which she was

earlier wearing and why she had blood stains on her

face and thighs and on her frock. The inevitable

inference is that the marks of injuries on the vagina of

the prosecutrix were caused and her vagina started

bleeding while the prosecutrix was with the appellant in

his jhuggi between 6 p.m. to 6.30 p.m.

14. The third circumstance against the appellant is

that he was found locking the door of his jhuggi and

trying to flee away immediately after the prosecutrix

came out of his jhuggi. This was noticed not only by the

mother of the prosecutrix but also by PW-4 Asheshwar

and PW-5 Manju.

15. The testimony of the mother of the prosecutrix

and PW-4, Asheshwar corroborated by the testimony of

the police officials shows that one bed-sheet Exhibit P.3

was recovered from the jhuggi of the appellant

immediately after this incident. This bed-sheet was sent

to Forensic Science Laboratory for examination. The

report of FSL exhibit PW-16/A shows that blood was

detected on the bed-sheet seized from the jhuggi of the

appellant. The testimony of PW-1 and PW-4

corroborated by the testimony of PW-12, SI Harjinder

Rana shows that the underwear of the prosecutrix was

also recovered from the jhuggi of the appellant. The

report of the Forensic Science Laboratory shows that

human blood was found on the underwear of the

prosecutrix. No explanation has been given by the

appellant as to why the underwear of the prosecutrix

was found in his jhuggi and why blood marks were found

on the underwear. No explanation has been given by

the appellant as to why blood marks were found on the

bed-sheet recovered from his jhuggi immediately after

this incident. The report of FSL shows that blood was

also found on the frock of the prosecutrix which she was

wearing when she returned to her house after this

incident. The frock was taken by the doctor in the

hospital and was later on handed over to the police

which he sent it to Forensic Science Laboratory for

examination.

16. The incriminating circumstances noted above

viz. (i) the prosecutrix was taken by the appellant to his

jhuggi at about 6.00 p.m.;

(ii) the prosecutrix came out of the jhuggi of the

appellant at about 6.30 p.m.;

(iii) the prosecutrix was crying and sweating when she

came out of the jhuggi of the appellant ;

(iv) blood stains were found on the face, thighs and frock

of the prosecutrix when she came out of the jhuggi of

the appellant;

(v) the prosecutrix was bleeding from the vagina when

she came out of the jhuggi at about 6.30 p.m.;

(vi) the prosecutrix was not wearing underwear when

she came out of the jhuggi of the appellant;

(vii) blood stained underwear of the prosecutrix was

recovered from the jhuggi of the appellant immediately

after this incident.

(viii) a bed-sheet stained with blood was recovered from

the jhuggi of the appellant immediately after this

incident;

(ix) the appellant tried to flee from the spot immediately

after the prosecutrix came out of his jhuggi;

17. The hymen of the prosecutrix was found torn

when she was examined in the hospital and she had

second degree perennial tear which was bleeding at that

time leaving no reasonable doubt that the appellant who

had taken the prosecutrix to his jhuggi had committed

rape on her person and that is why the prosecutrix was

weeping and sweating when she came out of his jhuggi,

blood was found on her face, thighs and frock and not

only her blood stained underwear was seized from the

jhuggi of the appellant, blood stains were also found on

the bed-sheet recovered from his jhuggi. The

circumstances proved against the appellant unerringly

points towards the appellant being the person who

raped the prosecutrix. These circumstances leave no

reasonable doubt not in all human probability the rape

on the person of the prosecutrix was committed by the

appellant and no other person. The circumstances

proved against him are totally incompatible with the

innocence of the appellant and wholly consistent with

the guilt attributed to him.

18. These circumstances unmistakenly prove that

it was the appellant who had committed rape on the

person of the prosecutrix. The circumstantial evidence

proved against the appellant finds corroboration from

the statement made by the prosecutrix to her mother

immediately after the incident. It finds further

corroboration from the prosecutrix pointing out towards

the appellant, as the guilty, at the time when he was

locking the door of his jhuggi. Non-examination of the

prosecutrix will not be relevant in view of the over-

falling circumstantial evidence proved against him

during trial.

19. A perusal of the MLC of the prosecutrix shows

that when she was examined in the hospital at about

9.15 p.m. on 23rd May, 2003, her hymen was found torn

and she had second degree perennial tear which was

bleeding even at that time. Though semen has not

been detected on the articles sent to Forensic Science

Laboratory, that would be immaterial since not only the

prosecutrix was found bleeding from her vagina, her

hymen was also found torn when he was examined in

hospital. Tear of hymen coupled with profuse bleeding

from the vagina of the prosecutrix leaves no doubt that

penetration had actually taken place and that is why the

hymen got torn and the blood continued to ooze out of

the private part of the prosecutrix. Without penetration,

the hymen was not likely to be torn and the prosecutrix

would not have been found bleeding from her private

parts even three hours after the incident had taken

place. In any case, this is not the case of the appellant

that though he had taken the prosecutrix to his jhuggi

and was responsible for bleeding from her private parts,

he had not actually penetrated.

20. During the course of arguments, the learned

counsel for the appellant, considering the overwhelming

nature of the evidence led during trial did not challenge

the conviction on merits and confined his submission to

quantum of sentence, submitting that since the

appellant has been in custody for last more than six

years and was a young boy belonging to a poor family

when he committed this offence and is first time

offender, a lenient view may be taken.

21. As provided in Section 376 of Indian Penal

Code, the sentence for committing rape on a minor girl

when she is under 12 years of age is punishable with

rigorous imprisonment of a term which shall not be less

than 10 years but which may be for life though for

adequate and special reasons to be mentioned in the

judgment, the court may impose a sentence of

imprisonment for a term of less than 10 years. In the

present case, there is absolutely no ground for giving

less than the minimum prescribed sentence to the

appellant, who had no compunction in ravishing a girl of

four years. The act committed by him, besides being

heinous, is horrible and repulsive. No words are enough

to condemn such an act of absolute perversity.

22. Keeping in view all the facts and circumstances

of the case including the age and social and economic

background of the appellant, who could not afford even

to engage a lawyer of his own, and was provided legal

aid by Delhi High Court Legal Services Committee, the

sentence awarded to the appellant is reduced from 14

years to 10 years while increasing the amount of fine

imposed upon him from Rs.5000/- to Rs.10000/-. In

default of payment of fine, he shall undergo SI for a

period of one year. The amount of fine be paid to the

prosecutrix through her father.

One copy of this order be sent to the appellant

through concerned Jail Superintendent for information

and record.

(V.K. JAIN) JUDGE October 30, 2009/sk