Shyambir vs State
2010 Latest Caselaw 34 Del

R-6

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL. APPEAL No. 667/2007

%                                  Decided on: 7th January, 2010

        Shyambir                                       ..... Appellant
                              Through: Mr. S.B. Dandapani, Adv.

                          Versus

        State                                        ..... Respondent

Through: Mr. Manoj Ohri, APP.

CORAM:

HON'BLE MR. JUSTICE A.K. PATHAK

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?

A.K. PATHAK, J.(ORAL)

1. Appellant has been convicted under Sections 376/506 of

the Indian Penal Code (for short referred to as IPC) by the

learned Additional Sessions Judge, Delhi; sentenced to face

rigorous imprisonment for eight years and pay fine of

Rs.10,000/- and in default of payment of fine to further

undergo simple imprisonment for five months for the offence

under Section 376 of the Indian Penal Code; sentenced to

undergo simple imprisonment for six months and pay fine of

Rs.2,000/- and in default of payment of fine to undergo simple

imprisonment for one month for having committed offence

under Section 506 of the Indian Penal Code.

2. Briefly stated, facts of the case are that the appellant

was neighbour of prosecutrix, aged about 8 years. On 17th

January, 2006 at about 5:30 PM prosecutrix was playing in

her house, while her mother was cooking food at the roof.

Appellant came there and forcibly took the prosecutrix with

him to a nearby jungle and removed the pyjama and

underwear of the prosecutrix. When prosecutrix started

weeping appellant gave beatings to her and gagged her

mouth. Thereafter he put her on the ground and laid himself

upon the prosecutrix and raped her. As a consequence of this

act clothes of the prosecutrix became blood stained.

Appellant also threatened the prosecutrix that in case she

disclosed the incident to any one, he would kill her and her

parents. Appellant left the prosecutrix near her house and

went away. Prosecutrix narrated the incident to her mother

Shyam Dulari, who in turn informed the police.

3. Information regarding incident was recorded as DD No.

62 in the police station Khajoori Khas and was handed over to

ASI Tejwati for enquiry (hereinafter referred to as

"Investigating Officer"), who reached the spot and came to

know that the prosecutrix had been taken to GTB Hospital by

the PCR. Thereafter, Investigating Officer reached GTB

Hospital, obtained MLC of the prosecutrix and recorded

statement of the prosecutrix wherein she described the

incident as mentioned in preceding para hereinabove.

Pursuant to this whereof FIR No. 27/2006 under Sections

376/506 IPC was registered.

4. Doctor Namita medically examined the prosecutrix and

noticed abrasions on her left thigh, left leg and right thigh; on

separating the labia tear fourchette, minimal bleeding plus

twigs at perineum were found present. History of rape, as

told by the prosecutrix and her mother, was recorded in the

MLC by the doctor. Undergarments, Vaginal swab and

perineal swab were sealed by the doctor and were handed

over to the Investigating Officer.

5. Appellant was apprehended from his house immediately

after the incident. He was arrested by the Investigating

Officer. He was medically examined in S.D.N. Hospital,

Shahdara and doctor opined that he was capable of

performing sexual intercourse. Semen, blood sample and

underwear of appellant were also taken in possession and

sealed by the doctor.

6. During the investigation, certificate was obtained from

Nagar Nigam Prathmik Balika Vidhyalaya, Sonia Vihar, Delhi

to verify age of the prosecutrix. As per certificate, prosecutrix

was born on 17th January, 1998. Above referred exhibits were

sent to Forensic Science Laboratory, Delhi and its report was

obtained, according to which, human semen was detected on

vaginal swab of the prosecutrix, blood was also found on the

underwear, perineal swab of the prosecutrix as well as on the

T-shirt and underwear of the appellant.

7. After completion of investigation charge-sheet was filed

in the court of learned Metropolitan Magistrate, who took

cognizance of the offence and committed the case to the

sessions court for trial as offence under Section 376 of the

Indian Penal Code is exclusively triable by the sessions court.

8. Charges under Sections 323/376/506 IPC were framed

against the appellant on 3rd April, 2006 to which he pleaded

not guilty and claimed trial.

9. Prosecution examined thirteen witnesses in all.

Thereafter statement of the appellant under Section 313 of

the Code of Criminal Procedure was recorded on 26th March,

2007 wherein entire incriminating evidence which had come

on record, was put to him. Appellant admitted that he was the

neighbour of prosecutrix. He also admitted that the age of

prosecutrix was about eight years. However, he denied that

he had taken away the prosecutrix with him on 17 th January,

2006 at about 5:30/6:00 PM and committed rape on her.

Appellant stated that he had been falsely implicated by the

mother and uncle of the prosecutrix in order to avoid

repayment of a loan of Rs.5,000/-, which they had taken from

him. However, no evidence was led by the appellant to

substantiate his this defence.

10. Statement of prosecutrix, without oath, was recorded as

PW2. Statement of mother of prosecutrix was recorded as

PW3. Learned Additional Sessions Judge found their

statements trustworthy and reliable to conclude that appellant

had taken away the prosecutrix on 17th January, 2006 from

her house to a jungle, and committed rape upon her. Learned

Additional Sessions Judge was also of the view that the

version of PW2 was corroborated from the medical evidence.

As per the MLC, superficial abrasions were found on the left

thigh and left leg and right thigh of the prosecutrix. On

separating the labia tear in fourchette, minimal bleeding was

also noticed. The fact that Prosecutrix was aged about eight

years at the time of incident was proved from the school

certificate Ex. PW7/A. This fact was otherwise admitted by

the appellant in his statement under Section 313 of the Code

of Criminal Procedure. In view of above evidence, learned

Trial Judge concluded that the prosecution had succeeded in

establishing that the appellant had in fact committed the

offences under Sections 376/506 IPC, accordingly, convicted

him under the aforesaid provisions.

11. I have carefully perused the statements of prosecutrix

PW2 as well as her mother PW3 Shyam Dulari and find them

trustworthy and reliable. Their statements had remained

unshattered on material point in their respective cross-

examinations. PW2 has categorically deposed that the

appellant had come to her house on the fateful day and took

her to a nearby jungle where he removed his as well as her

clothes and put her on the ground and thereafter laid over

her. She started feeling pain at the place of passing urine and

also started bleeding from there. When she tried to raise

noise appellant gagged her mouth. Appellant left the

prosecutrix near her house and threatened her that in case

she disclosed this fact to any one he would cut her and her

parents into pieces. After reaching home, prosecutrix

narrated the incident to her mother, who informed the police

on telephone. Her this statement had remained unshattered

in her cross-examination. PW3 Shyam Dulari has also

corroborated PW2 with regard to the visit of the appellant to

her house on the date of incident at about 5:30 PM. She

categorically deposed that the appellant had taken her

daughter with him. Later on, when her returned home, she

was weeping. On her enquiring as to what had happened, she

revealed that appellant had taken her to a jungle, removed

her clothes as well as his clothes and laid upon her, at which

she started feeling pain in her private part and also started

bleeding; appellant gagged her mouth when she tried to raise

noise. Testimony of PW3 had also remained unshattered in

her cross-examination on this point.

12. I do not find any reason to disbelieve the statement of

prosecutrix PW2 which otherwise also stands corroborated

from the medical evidence on record. Perusal of MLC Ex.

PW12/A shows that abrasions were found on the left thigh, left

leg and right thigh of the prosecutrix. On separating the labia

tear in fourchette bleeding was also found. Injuries on the

private part of the prosecutrix corroborate the statement of

PW2. PW13 Dr. Namita had proved this MLC. She was not

cross-examined with regard to the injuries found on the

person of prosecutrix. Medical evidence in this case support

the prosecution case.

13. Besides this, I find that the history of rape had been

mentioned in the MLC by the PW13 Dr. Namita. It has been

categorically mentioned that the history was given by the

prosecutrix and her mother. Name of the appellant has been

mentioned as the perpetrator of crime of rape upon the

prosecutrix. There is no reason as to why doctor would

record a wrong statement. This also shows that the stand

taken by the prosecutrix and her mother had remained

consistent right from the beginning. In view of the above

discussions, I am of the opinion that the learned Additional

Sessions Judge had rightly concluded that prosecution had

succeeded in proving its case beyond the shadow of

reasonable doubts and convicted the appellant for the

offences under Sections 376/506 IPC.

14. No material discrepancy could be pointed out in the

statements of PW2 and PW3 by the learned counsel for the

appellant during the course of arguments. Learned counsel

for the appellant has contended that, in her cross-

examination, prosecutrix admitted that the incident was

narrated by her on the tutoring of Investigating Officer and

her parents. Thus, her testimony cannot be read against the

appellant. In absence of her testimony prosecution has

miserably failed to prove that prosecutrix was raped by the

appellant. I do not find any force in this contention of the

learned counsel. It appears that a court question was put to

the prosecutrix as to whether the Investigating Officer and

her parents had told her to narrate the actual happening. In

answer to this question prosecutrix first stated "Yes" but

thereafter continued to add that the occurrence did actually

take place with her. This answer of the prosecutrix clearly

shows that the incident indeed took place with her in the

manner she described, while deposing in the court. The

answer given by her does not indicate in any manner

whatsoever that the story of rape was concocted by her

parents and that it was narrated by her in the court on their

tutoring. As already mentioned in the preceding paras

hereinabove, the statement made by the prosecutrix had

remained consistent and was also corroborated by the medical

evidence and other scientific evidence, inasmuch as, semen

was found in the vaginal swab of the prosecutrix. The

argument of learned counsel is, thus, rejected.

15. Learned counsel for the appellant has next contended

that the mother and uncle of prosecutrix had taken a loan of

Rs.5,000/- from the appellant and in order to avoid repayment

of loan, appellant was falsely implicated in this case by the

prosecutrix, her mother and uncle. This argument of the

learned counsel for the appellant needs to be rejected

straightaway. This defence taken by the appellant is not a

probable defence and was rightly not accepted by the learned

trial court. It is highly improbable that a person will involve

his minor daughter only in order to avoid liability of

repayment of a loan. No prudent person would like to put at

stake the reputation of family and face ignominy and

defamation in the society as also jeopardize the marriage

prospect of his daughter by attaching the stigma of rape, only

in order to avoid repayment of loan. Story propounded by the

appellant in his defence had not only remained

unsubstantiated by any cogent evidence but otherwise is also

improbable and cannot be accepted.

16. In the light of the above discussions, I am of the view

that on the basis of evidence led and available on record

learned Additional Sessions Judge rightly convicted the

appellant for the offences under Sections 376/506 IPC.

Keeping in mind that appellant, a middle aged person, had

committed rape upon a minor girl aged about eight years, in

my view, has been appropriately sentenced by the learned

Additional Sessions Judge. I do not find any material

illegality, impropriety or any infirmity in the impugned order

of conviction and sentence.

17. Dismissed.

A.K.PATHAK, J

JANUARY 07, 2010 rb