Delhi High Court

Rajab Ali vs State on 22 January, 2010

Author: Pradeep Nandrajog

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved On: 19th January, 2010
                     Judgment Delivered On: 22nd January, 2010

+                  CRL.APPEAL NO.58/2006

       RAJAB ALI                               ......Appellant
                   Through:   Mr.S.Q.Kazim, Advocate with
                              Mr.Alim Mizaj, Advocate

                              Versus

       STATE                                 ......Respondent
                   Through:   Mr.M.N.Dudeja, Advocate

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

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

     2. To be referred to the Reporter or not?    Yes

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

PRADEEP NANDRAJOG, J.

1. Since „F‟ i.e. the prosecutrix who was aged 3½

years when she was admittedly raped in the evening of

21.1.2003, while deposing in Court on 29.10.2004 stated that

the appellant enticed her with offer of peanuts and took her

behind bushes and after putting a hand on her mouth

committed an act causing pain to her and she started bleeding

as a result her clothes got stained with mud and blood; the

learned Trial Judge has held that it would be safe to convict the

appellant on said testimony of the prosecutrix, which found

support from the testimony of Mst.Meena PW-10 who deposed

that she saw the appellant going with a minor girl at 7:30 PM

as also the testimony of Mohd.Kaushar PW-1 and Mst.Firoza

PW-3 the parents of the prosecutrix who deposed that the

prosecutrix left the house at around 6.00 PM to purchase

peanuts and since she did not return within reasonable time

they went searching for her and found her coming towards the

house in the company of a boy aged 8 years who was holding

her hand and at that time mud was stuck on the clothes of

their daughter and when she was bathed blood was noticed

oozing from her private parts. The learned Trial Judge has

found that the young boy who was accompanying the

prosecutrix to her house was Amir PW-13 who deposed in

court that on 21.1.2003 he had gone to fetch milk at about

8:00 PM and on the way he saw a girl child crying near a Nali.

He was taking the girl to the Police Station when her parents

met them and he handed over the girl to them. The learned

Trial Judge has found further incriminating evidence in the fact

that the pair of chappals Ex.P-1 recovered from the bushes

near a Naala as entered in the seizure memo Ex.PW-1/C was

recovered from the said spot pursuant to the confessional cum

disclosure statement Ex.PW-8/B made by the appellant and

after he was arrested and after the statement he led SI Aadesh

Kumar PW-17 to the spot wherefrom the recovery was made.

The said pair of chappals was identified by the father of the

prosecutrix as that of his daughter. That the prosecutrix was

raped has been held established through the testimony of

Dr.Shabab Alam Qureshi PW-11 and Dr.Shikha Sharma PW-21

as also Dr.Anil Aggarwal PW-18. As per the parents of the

prosecutrix when they noticed blood oozing from the vagina of

the prosecutrix when she was being bathed, they took her to

the clinic of Dr.Shabab Alam Qureshi PW-11 who found that

the child was seriously injured and hence referred her to a

government hospital. The prosecutrix was taken to LNJP

Hospital where Dr.Ritu Gupta Senior Resident examined her

and diagnosed a small tear over posterior vaginal wall;

external anal had sphincter with stool oozing out evidencing

complete perineial tear. She took the vaginal smear, which

was analyzed by Dr.Anil Aggarwal PW-18 the Head of the

Department of Forensic Medicine at Maulana Azad Medical

College and as per the report Ex.PW-18/A noted that the

microscopic field was full of red blood cells and spermatozoa

head. Lest there be any confusion we may note here itself

that Dr.Shikha Sharma PW-21 proved the MLC Ex.PW-21/A

prepared by Dr.Ritu Gupta for the reason Dr.Ritu Gupta had

left LNJP Hospital and she had worked under Dr.Shikha Sharma

who stated that she was conversant with the handwriting and

the signatures of Dr.Ritu Gupta. That the appellant was

capable of performing sex has been held to be established

through the testimony of Dr.V.K.Yadav PW-20 who examined

the appellant on 24.1.2003 and made a detailed report Ex.PW-

20/A recording therein that the appellant refused to give his

semen sample.

2. Since a brief resume of the evidence led has been

intertwined by us while analyzing the impugned decision, we

may straightaway note the arguments advanced by learned

counsel for the appellant when the appeal was heard on

19.1.2010.

3. The first contention urged was that as per the

report Ex.PW-18/A and the testimony of Dr.Anil Aggarwal PW-

18 spermatozoa head was noted when the vaginal swab of the

prosecutrix was examined under a microscope and by not

conducting any DNA analysis with reference to the sperms of

the appellant the prosecution has withheld the most reliable

evidence and hence the appellant is entitled to the benefit of

doubt. The second contention urged is that after he was

apprehended, the appellant was not subjected to any test

identification by Mst.Meena PW-10. The third contention urged

was that in the undergarment of the prosecutrix no sperm was

detected and this rules out that the prosecutrix was raped.

Fourthly, it was urged that as per the seizure memo Ex.PW-1/C

the pair of chappals Ex.P-1 were recovered from within the

bushes adjoining a Naala along the railway line but father of

the prosecutrix Mohd.Kaushar PW-1 categorically deposed that

his daughter returned with one chappal and the other was

recovered from the Naala. Lastly, it was urged that PW-8 has

categorically deposed that he signed blank papers at the

asking of PW-1 and that the statement Ex.PW-8/B as also the

recovery memo Ex.PW-1/C pertaining to the pair of chappals

was drawn using the said blank papers.

4. We may note that the argument before the learned

Trial Judge pertaining to Mst.Meena PW-10 being a false

witness as the accused had seen her in a compromising

position with Amjad PW-7 has not been urged before us for the

obvious reason learned counsel for the appellant could not on

the one hand urge that Mst.Meena and the appellant knew

each other and that she had a motive to falsely implicate him

and at the same time urge that Meena not being made to

identify the appellant after he was arrested during

investigation, her dock identification lacked credibility.

5. Qua the first plea urged it may be noted that as per

Dr.V.K.Yadav PW-20 who medically examined the appellant on

24.1.2003, the appellant refused to give his semen sample.

Thus, where was the occasion for the investigating officer to

have got done DNA analysis of the spermatozoa head detected

in the vaginal swab of the prosecutrix when Dr.Anil Aggarwal

PW-18 analyzed the same under a microscope.

6. On the issue of the appellant not being subjected to

any TIP by Meena, from the testimony of Meena where she has

said that when she saw the appellant with a young girl he

asked her where was he taking the girl, it is apparent that

Meena knew the appellant and thus it hardly matters whether

Meena was not required to identify the appellant in a test

identification parade.

7. We are surprised at the third submission made

pertaining to no sperm being detected on the underwear of the

prosecutrix and hence the requirement to draw a conclusion

that the prosecutrix was not raped. Our surprise is due to the

fact that the very first submission urged was that the

spermatozoa head found in the vaginal swab of the prosecutrix

was not subjected to a DNA analysis. Obviously, the

foundation of the first submission is the detection of

spermatozoa in the vaginal swab of the prosecutrix. Be that as

it may, not only the fact that spermatozoa was detected on the

vaginal swab of the prosecutrix, the MLC Ex.PW-21/A and the

testimony of PW-11 and PW-21 conclusively establish that the

prosecutrix was brutally raped. There was a tear over

posterior vaginal wall and the external anal had sphincter

evidencing complete perineial tear. The testimony of the

parents of the unfortunate young girl also proves that their

daughter was raped. The absence of semen on the underwear

of the victim is explainable on various counts, the foremost

being, that the underwear was removed completely and not

simply slid down to facilitate a complete penetration by the

appellant. That the penetration was complete is proved by the

prosecutrix suffering complete perineial tear. Her infant age of

3½ years would have required a probable wide parting of the

legs. After the rape was complete, the prosecutrix was made

to wear the underwear and may be the sperms in the vagina

did not flow on to the underwear.

8. It is no doubt true that PW-1 has stated that his

daughter returned with one chappal and the other was found

at the spot wherefrom the recovery of both chappals has been

shown in the memo Ex.PW-1/C. But, all other witnesses to the

recovery have unanimously deposed that the pair of chappals

Ex.P-1 i.e. both feet were recovered from the spot whereto the

appellant led the investigating officer and as entered in the

seizure memo Ex.PW-1/C. Thus, we take it as a blemish on the

part of PW-1 to somewhat be confused and discount the

blemish with reference to PW-1 being an illiterate vegetable

vendor whose illiteracy is evidenced by the fact that he cannot

even append his signatures and has affixed the left thumb

impression on his deposition as recorded in Court in

acknowledgment of the same having been read over and

explained to him.

9. That Mohd.Tafsir PW-8 a witness to the recovery

memo Ex.PW-1/C as also to the disclosure statement Ex.PW-

8/B of the appellant has chosen not to support the case of the

prosecution does not discredit the other witnesses of the

prosecution who have stood the test of cross examination with

respect to the recording of the disclosure statement and the

recovery effected pursuant thereto namely Mohd.Kaushar PW-

1 and SI Adesh Kumar PW-17.

10. We may note that no suggestions have been put to

the parents of the prosecutrix that they were falsely

implicating the appellant on account of any enmity. We

wonder why should the parents of the prosecutrix falsely

implicate an innocent person.

11. Though no submissions were urged before us

pertaining to the testimony of the prosecutrix, in all fairness to

the appellant we have perused the testimony of the young girl

who was aged only 4 years when she deposed in Court. She

could only understand and speak in Bengali and hence the

Court took the services of an interpreter namely Dr.Anita Basu

a Reader in Modern Indian Languages in the University of

Delhi. Her testimony shows that the prosecutrix was

extremely petrified when she appeared in Court. What is

worthy to be noted is that to the question: Who had taken you

away? She replied by a gesture by pointing out towards the

accused. To the next question whether she knew where the

accused resides, the child replied „No‟. To the question: What

the accused did to you? She gave no reply. She simply kept

mum. With the permission of the Court learned APP put

leading questions to her. Her further testimony is as under:-

"It is correct that the accused had given me peanuts to eat. The accused had taken me behind the bushes. The accused had raped me behind the bushes. I felt pain and blood oozed out but the witness does not state from where blood had oozed out. Blood had oozed out from my private part. Accused had put his hand on my mouth. The witness does not answer whether she was wearing chappal. Again said, she was wearing chappal. The accused had pushed me in the nalla. One boy had brought me from there. I do not know the boy who had brought me from the spot. My clothes were blood stained and clay stained. I was taken to the hospital by my parents."

12. It would not be out of place to note that the

prosecutrix has substantially deposed what has otherwise

been proved by the prosecution. That she was raped at a

place where there was slush has been proved through the

testimony of the parents of the prosecutrix who have stated

that when they searched for their daughter and saw her, mud

was stuck on her clothes and she had to be bathed. That the

prosecutrix has said that one boy had brought her from the

place where she was raped has been independently proved

through the testimony of Amir PW-13 who has stated that

when he went to fetch milk he saw a girl child crying near a

naali and he was taking her to the police station when her