Sanjay Kumar S/O Ram Phal vs State (Nct Of Delhi)
2010 Latest Caselaw 706 Del

*                     HIGH COURT OF DELHI : NEW DELHI

        Judgment reserved on : February 02, 2010
      Judgment pronounced on : February 08, 2010

+                            Crl. A. No. 20/2004

%       Sanjay Kumar
        S/o Ram Phal                    ...   Appellant
                 Through: Mr. R.D. Sharma, Mr. Ajay
                          Sharma and Mr. Gaurav Kaushik,
                          Advocates

                                 versus

        State (NCT of Delhi)                ...   Respondent
                  Through: Mr. Amit Sharma, Additional
                             Public Prosecutor for the State

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR


1.          Whether         the
            Reporters  of local
            papers    may    be
            allowed to see the
            judgment?
2.                                         No.
            To be referred         to
            Reporter or not?

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

SUNIL GAUR, J.

1. The subject matter of this appeal is „incestuous rape‟.

Prosecutrix (PW-2) and appellant/accused are real cousins,

i.e., she is niece of her maternal uncle, who is father of

appellant/accused. Prosecutrix (PW-2) purportedly was of

Crl. A. No. 20/2004 Page 1 minor age and appellant/accused was of major age, when

this incident had taken place.

2. Impugned judgment records the conviction of the

Appellant for the offences under Section 376 and 506 (I) of

Indian Penal Code and sentences appellant/accused to

rigorous imprisonment for eight years with fine for the

offence of rape and lesser sentence is awarded by the trial

court for the allied offence.

3. In the morning of 1st October, 1998, prosecutrix (PW-

2) aged between 15 and 16 years, had gone to nearby

jungle to ease herself and she was caught by the

appellant/accused, who is said to have raped her on the

point of knife. Prosecutrix (PW-2) claims that she did not

disclose about this incident to her parents as she was

under threat of her elimination and of her parents at the

hands of the appellant/accused, if she disclosed about it.

However, on the next day of the incident, this matter was

reported to the police, resulting in registration of the FIR

No. 712/98 under Section 376/506 of Indian Penal Code at

Police Station Sultanpuri, Delhi.

4. Prosecutrix (PW-2) herself is the first informant of the

FIR in question. During investigation, she was medically

Crl. A. No. 20/2004 Page 2 examined and was subjected to bone age examination. On

the third day of this incident, appellant/accused accused

was arrested and was subjected to medical examination.

Statement of the prosecutrix (PW-2) under Section 164 of

Cr. P.C. was got recorded, although there was no need of

it, as the FIR of this case is on her statement. The cryptic

statement of the prosecutrix (PW-2) under Section 164 of

Cr. P.C. simply states that appellant/accused has not done

anything wrong with her and she has not been subjected

to rape and she knows appellant/accused who is her

neighbor. Upon investigation of this case being concluded,

charge sheet was filed and the trial of this case had

commenced as appellant/accused chose to contest the

charge of rape, etc., framed against him by the trial court.

5. The recorded evidence mainly comprises of

testimony of prosecutrix (PW-2) and that of her parents

(PW-3) and (PW-4), followed by the medical evidence and

of the Magistrate (PW-9), who had recorded the statement

of the prosecutrix (PW-2). Sub-Inspector C.M. Meena is the

Investigating Officer of this case. The plea of the

appellant/accused was of course of denial and he

preferred not to lead any evidence in his defence and

what he had to state, deserves attention and is as under:-

Crl. A. No. 20/2004 Page 3 "Rakhi is daughter of my maternal uncle. A quarrel took place between brother of my maternal uncle and me. He falsely implicated me in this case. I am innocent."

6. Trial of this case stood concluded with the conviction

of the appellant/accused, which is under challenge herein.

7. Submissions advanced have been pondered over.

Evidence recorded has been meticulously scrutinized.

Since prosecutrix (PW-2) claims that she was a minor on

the day of this incident, therefore, this aspect needs to be

adverted to, first.

8. MLC (Ex.PW-6/A) of the prosecutrix (PW-2) indicates

that she had disclosed her age as fifteen years then. At

the time of recording of the FIR of this case, the

prosecutrix (PW-2) had also given her age as fifteen years.

Bone age report (Ex. PW-5/A) also discloses that

prosecutrix (PW-2) had given her age at that time also, as

fifteen years. It is worthwhile to note that the age of the

prosecutrix (PW-2) is conspicuously absent in her

statement - Ex. PW-2/DA, recorded under Section 164 of

Cr. P.C.

9. In his deposition, father (PW-3) of the prosecutrix

(PW-2) gives her age as fifteen years on the day of this

Crl. A. No. 20/2004 Page 4 incident. Prosecutrix (PW-2) and her mother (PW-4) are

illiterate. During the course of the arguments, nothing

worthwhile has been brought out by the defence from the

depositions of the prosecutrix (PW-2) and her parents to

show that she was aged sixteen years on the day of this

incident.

10. Bone age report (Ex. PW-5/A) gives the age of the

prosecutrix (PW-2) as between fifteen to sixteen years.

Appellant/accused claims margin of error of two years on

either side and it is asserted on his behalf that once this

benefit is given, then the age of the prosecutrix (PW-2)

would be above eighteen years. It is difficult to accept this

submission for the reason that until and unless, expert

witness is confronted with it, no benefit of the same can

be extended to the appellant/accused. Dr. G.K. Sharma

(PW-5) proves the Bone age report (Ex. PW-5/A) and his

deposition remains unchallenged by the

appellant/accused. In this situation, trial court has rightly

held that the prosecutrix (PW-2) was sixteen years of age

on the day of this incident.

11. The deposition of the prosecutrix (PW-2) needs to be

appreciated in the light of the apt observations made by

the Apex Court in Dildar Singh vs. State of Punjab, AIR Crl. A. No. 20/2004 Page 5 2006 SC 3084, which are as under:-

"In the normal course of human conduct an unmarried girl who is victim of sexual offence would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate such incident. Overpowered, as she may be, by a feeling of shame her natural inclination would be to avoid talking to anyone, lest the family name and honour is brought into controversy. Thus delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report."

12. Upon doing so, this Court finds that the prosecutrix

(PW-2) has deposed in a straight forward manner and has

explained the reason for deposing differently before the

Magistrate, when her statement under Section 164 of Cr.

P.C. was recorded. She has candidly stated in her cross-

examination that regarding this incident, a Panchayat was

held and the notarized statement marked-'DA' purportedly

bears her thumb impression, which might be hers but she

has not identified it. However, she has qualified the

aforesaid statement by categorically asserting that she

had not attended that Panchayat meeting.

13. There is no whisper about the Panchayat proceedings

Crl. A. No. 20/2004 Page 6 or about alleged statement - marked 'DA', either in the

statement of appellant/accused under Section 313 of Cr.

P.C. nor any evidence in support of unproved document -

Marked 'DA' was led by him. In any case, this document

loses its significance, as prosecutrix (PW-2) in her

evidence had volunteered that she was not present at the

time of the alleged panchayat meeting and under threat

by the appellant/accused, this document was

manufactured.

14. The testimony of the prosecutrix (PW-2) is sought to

be demolished by learned counsel for the Appellant by

contending that she had made material improvement in

her evidence as she had omitted to state in her evidence

that she had gone to jungle or that any knife was shown to

her by the appellant/accused or that she had become

unconscious. The contradiction pointed out in her

evidence is that prosecutrix (PW-2) has stated in her

evidence that she had disclosed about this incident to her

father on the same day, whereas, in the FIR, it is stated

that she had disclosed about it to her mother on the next

day of this incident.

15. It is elementary that to derive any advantage out of

the so-called aforesaid contradictions, the witness has to Crl. A. No. 20/2004 Page 7 be confronted with it. Scrutiny of the evidence of the

prosecutrix (PW-2) reveals that this has not been done.

Prosecutrix (PW-2) gives plausible reason for changing her

version at the time of recording of the statement under

Section 164 of Cr. P.C., as she was under threat from the

accused of her younger sister meeting the same fate, if

she does not disown the contents of the FIR in question.

Therefore, precedence cannot be given to her statement

under Section 164 of Cr. P.C., especially when, the manner

of its recording, leaves much to be desired. It appears to

have been mechanically recorded. It is so said, because it

does not take note of the fact that the FIR of this case was

recorded on the statement of the prosecutrix (PW-2)

herself and in such a situation, the concerned Magistrate

ought not to have recorded her statement under Section

164 of Cr. P.C., especially when, the time gap between the

registration of the FIR of this case and recording of this

statement was of more than two months. In view of the

deposition of the prosecutrix (PW-2) before the Court, this

statement under Section 164 of Cr. P.C. - Ex. PW-2/DA,

has been rightly excluded from consideration by the trial

court. The alleged history given by the prosecutrix (PW-2)

as reflected in her MLC (Ex.PW-6/A) clearly states that she

Crl. A. No. 20/2004 Page 8 was raped by the appellant/accused whose name's

appears in the alleged history given.

16. Delay of a day or two, in cases of 'incestuous rape‟ is

hardly of any significance. It is beyond comprehension

that an unmarried teenager would stake her honour to

falsely implicate her real cousin because of some quarrel

between her brother and her cousin, especially when the

cause of the quarrel is not forthcoming. Therefore, version

of the prosecutrix (PW-2) cannot be discredited on the

basis of the aforesaid so-called discrepancies, which

according to me, do not go to the root of the matter and

are totally insufficient to dislodge her otherwise reliable

version.

17. Consequentially, on merits, this appeal deserves to

be rejected. The impugned judgment does not suffer from

any illegality or infirmity and is hereby upheld. The

minimum sentence for the offence of rape of this kind is

seven years. There are no special or adequate reasons for

awarding less than the minimum sentence prescribed for

this kind of offence.

18. Considering the facts and circumstances of this case,

the substantive sentence for the offence of rape is

Crl. A. No. 20/2004 Page 9 reduced from eight years to seven years rigorous

imprisonment. Except for this modification, there is no

scope for any interference by this Court. This appeal is

partly allowed to the aforesaid limited extent. Bail bonds

of the Appellant are forfeited. He be taken into custody by

the trial court to serve out the partially modified sentence

as indicated above.

19. This appeal as well as pending application, if any, are

accordingly disposed of.

Sunil Gaur, J.

February 08, 2010
pkb




Crl. A. No. 20/2004                                             Page 10