Anil vs State
2010 Latest Caselaw 5688 Del

     *            IN THE HIGH COURT OF DELHI AT NEW DELHI
%                     Crl. Appeal 496 OF 2007


+                                  Date of Decision: 14th December, 2010

#          ANIL                                            ...Appellant
!                           Through: Mr. A.J. Bhambani & Ms. Nisha
                                     Bhambani, Advocates.


                                 Versus
$          STATE                                        ...Respondent
^                          Through:    Mr. Pawan Behl, APP.



           CORAM:
*          HON'BLE MR. JUSTICE P.K.BHASIN
1.       Whether Reporters of local papers may be allowed to see the
         judgment?(No)
2.       To be referred to the Reporter or not? (No)
3.       Whether the judgment should be reported in the digest?(No)
                           JUDGMENT

P.K.BHASIN, J:

This appeal is filed by the accused-appellant challenging his

conviction under Sections 363 and 376 of the Indian Penal Code(„IPC‟ in

short) vide judgment dated 3rd March, 2007 passed by Additional Sessions

Judge, Rohini as also the order of the same date whereby the accused-

appellant was sentenced to undergo rigorous imprisonment for ten years

and also to fine of Rs. 2000/-, with a default stipulation, under Section 376

IPC.

2. The prosecution case, briefly stated, is that on 15th December, 2005

PW-2 went to the police station Keshav Puram at about 1 a.m. and lodged

a report that his five years old daughter(PW-3) had left the house at 8.30

p.m. for going to his shop but thereafter had not returned back. He had

searched her but could not trace her. He expressed his suspicion that

somebody had enticed away his daughter. Accordingly the police

registered a case u/s 363 IPC vide FIR No. 632. Then the police also tried

to trace out the girl alongwith the complainant but she was not found.

When the complainant(PW-2) returned back to his house in the morning

at about 5.30 a.m. his missing daughter was seen standing outside her

house. At that time there was some injury on her lips and she was also

bleeding from her vagina. She was however not in fit state of mind to say

anything. Then at about 8.45 a.m. PW-2 alongwith his wife(PW-1) and

their daughter(PW-3) went to the police station where on seeing the

condition of the girl child the police got her sent to the hospital for medical

examination where she had to be admitted. The doctor who examined PW-

3 noted in the MLC, Ex.PW-4/A : "suspected H/O sexual assault. The

female child went missing on 14/12/05 at 8.30 p.m. & was recovered on

15/12/05 at 5.30 a.m.". The doctor found contusion over both upper and

lower lips. The girl was then referred to gynaecologist(PW-4) who

examined her and found the upper lips of the girl child swollen. Secondary

sexual characters were not developed. Hymen was found torn and third

degree perineal tear was present, which was stitched by the surgeon under

general anaesthesia. Posterior fourchette was also torn. Hymen admitted

one finger and there was some discharge mixed with blood. Present

Vaginal smear slide was prepared and sealed and given to the police as

also the trouser of the prosecutrix which she was wearing at that time. The

gynaecologist(PW-4) also recorded in the MLC that according to the

mother of the child the child had come home naked and had not taken bath

but at the time of her medical examination she was wearing trousers on

which some discharge was seen.

3. In view of the medical report of the girl the police made it a case of

rape also by adding Section 376 IPC in the case diary.

4. As per the further prosecution case, the police recorded the

statement of the prosecutrix on 17th December,2005 when she told the

police that she had been taken to some place beyond the railway line by

the accused, who was living in their neighbourhood near the Mother Dairy

booth from where they(PW-3 and her family) used to buy milk, and there

he had raped her after removing her ghagri and kachhi and had then left

her on the rail track.

5. Then the search for the accused started but he could not be found.

He was arrested on 19.12.2005 in another case of rape registered vide FIR

640/05 at the Keshav Puram police station and in that case while in police

custody he made a disclosure statement in which he confessed that he had

raped the daughter of the complainant of the present case also on the night

of 14th/15th December,2005. Then he was arrested in the present case also.

6. The statement of the prosecutrix was also got recorded by the

police under section 164 Cr.P.C. on 4th January,2006. During

investigation, the trouser of the prosescutrix and her vaginal swab were

sent to the Forensic Science Laboratory(FSL) and as per the FSL report

human semen and blood was detected on the trouser of the prosecutirx

which was sealed after her medical examination on 15th December,2005.

7. After the completion of the investigation the challan was filed in the

court of Metropolitan Magistrate concerned who committed the case to the

Court of Sessions. Charges under Sections 363 and 376 IPC were framed

against the accused-appellant by the Sessions Court to which he pleaded

not guilty and claimed to be tried. To prove its case the prosecution

examined ten witnesses.

8. The appellant when examined under Section 313 Cr.P.C. denied all

the allegations alleged against him and pleaded his innocence. Regarding

the circumstance of bleeding from the vagina of the prosecutirx he stated

that the bleeding was due to fall while she was playing. He however did

not lead any evidence in defence.

9. The trial Court accepted the testimony of the prosecutrix and relying

upon the same and the medical evidence held the accused guilty for the

offences of kidnapping and rape but he was awarded sentence only for the

offence of rape and surprisingly not for the offence of kidnapping. The

accused felt aggrieved and that is how this appeal came to be filed in this

Court.

10. I have heard Mr. Pawan Bahl, learned additional public prosecutor

for the State and Mr. A.J. Bhambani, learned counsel for the appellant, and

have also gone through the prosecution evidence and the impugned

judgment.

11. It was submitted by the learned counsel for the appellant that the

conviction of the appellant cannot be sustained since the prosecution had

not been able to prove its case beyond reasonable doubt. He contended

that the trial Court should not have accepted the testimony of the

prosecutrix because she had made contradictory statements and there was

no corroboration also of her evidence. It was also contended that during

her examination-in-chief the prosecutrix had deposed that she had been

beaten by Anil in the jungle and her underwear had been removed and he

had done nothing else with her. However, it was only when the public

prosecutor had been permitted to put a leading question to her that she

pointed out towards the accused and had nodded her head in affirmative

after she was asked by the prosecutor as to whether the accused had done

wrong with her after putting off her clothes and his own clothes and that

showed that that part of her statement was not her voluntary statement.

Learned counsel also argued that no reliance could be placed on the FSL

report since the human semen and the blood was found on the trouser

which admittedly the prosecutrix was not wearing either at the time when

she left her home on the night of the incident or at the time when she came

back in the morning of 15th December and it was only when she was taken

to the police station that she must have been made to wear trouser by her

mother and, therefore, the presence of semen and blood on that trouser is

of no significance particularly when no semen was detected on the vaginal

swab of the prosecutrix. Another submission made was that, in fact, even

the identity of the accused had not been established inasmuch as according

to the father of the prosecutrix she had told to him that she had been raped

by one Lallu but the prosecution had failed to establish that the accused -

appellant was known as Lallu also.

12. On the other hand, learned additional public prosecutor supported

the judgment of the trial Court and submitted that there was no infirmity in

the prosecution case justifying no interference in this appeal by this Court.

13. From the medical evidence it is more than apparent that the

prosecutrix was, in fact, sexually assaulted. The question is whether the

prosecution has been able to establish that it was the accused - appellant

who had raped her, as has been held by the learned trial Judge. In order to

find answer to this question I have carefully gone through the evidence of

the prosecutrix(PW-3). In her examination-in-chief she had claimed that

she was taken to jungle by the accused Anil where she was bitten on her

lips by him and her underwear had also been removed and further that the

accused had beaten her also and done wrong with her after putting off her

clothes and also his own clothes. Although she did not claim specifically

as to what actually had been done to her by the accused but the medical

evidence clearly shows that she had been raped. In her cross-examination,

the proscutrix had stated that when she had come back home her parents

had asked her as to what had happened to her and then she had narrated to

them what had happened to her and further that she had also told them

about the name Anil. The mother of the prosecutrix had also stated in her

cross-examination that her statement was recorded by the police on the day

when her daughter was admitted in hospital and further that before that her

daughter had narrated to her everything at home. Thus, the statement of

the prosecutrix is corroborated by her mother also.

14. Nothing could be elicited in the cross-examination of the prosecutrix

which could throw any kind of doubt about the truthfulness of her

statement where she had implicated the accused - appellant. Her statement

that the accused had taken her to a jungle, in fact, was not even challenged

in her cross examination. The accused - appellant was admittedly living in

the neighbourhood of the complainant‟s family. So, there cannot be any

doubt about his identity, as was the submission of Mr. Bhambani. PW-1

had no doubt claimed first that his daughter had told him that Lallu had

taken her to a jungle but later on he also claimed that his daughter had told

him that Anil had taken her to a jungle. That does not amount to any kind

of inconsistency and the prosecution was not required to prove that the

accused was known as Lallu also. The accused - appellant himself had

taken the stand in his statement under Section 313 Cr.P.C. that the

prosecutrix had fallen down while playing and due to that fall she was

bleeding. The learned trial Court has rejected that defence on the ground

that the prosecutrix could not be expected to be playing at night and I am

in full agreement with that reasoning of the learned trial Judge. That

statement of the accused - appellant, in fact, strengthens the prosecution

case that it was he only who had taken away the girl child and had done

something to her which had resulted into bleeding from her vagina. The

bleeding could have been only because of his having had sexual

intercourse with her forcibly which had also resulted into her hymen

getting torn. I am, therefore, of the view that the statement of the

prosecutrix, which is fully corroborated by medical evidence, through the

statement of the gynaecologist (PW-4), was sufficient to hold the accused -

appellant guilty.

15. Since immediately on the return of the prosecutrix to her home she

was bleeding the blood on the trouser which she might have been made to

wear by her mother before taking her to the police station might have got

blood stained because of the bleeding from the vagina and the presence of

human semen on her trouser further strengthens the prosecution case. And

just because the prosecutrix had claimed in answer to a leading question

put by the prosecutor with the permission of the Court that the accused

Anil had done wrong with her after putting off her clothes and his own

clothes it cannot be said that that was not a truthful statement. It was not

even suggested to the prosecutrix that she had been tutored by her parents

to falsely implicate the accused and the accused has also not claimed that

there was any enmity between him and the complainant side. So, false

implication is ruled out.

15. I, therefore, do not find any merit in this appeal which is accordingly

dismissed.

P.K. BHASIN,J

December 14, 2010 sh