Delhi High Court

Jaidev vs State Of N.C.T Of Delhi on 29 January, 2010

Author: V. K. Jain

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Crl.A.No.419/2008
%                     Reserved on:      27th January, 2010
                      Date of Decision: 29th January, 2010

#     JAIDEV                              ..... Appellant
!                     Through:     Ms.Rakhi Dubey, Adv.

                      versus

$     STATE OF N.C.T OF DELHI        ..... Respondent
^                  Through:   Mr.Lovkesh Sawhney, APP
                              SI UmeshMalik, PS Mehruli

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN


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

      2.    To be referred to the Reporter or not?

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


: V.K. JAIN, J.

1. This is an appeal against the Judgment dated 24th

September, 2007 and the Order on Sentence dated 17th

October, 2007, whereby the appellant was convicted under

Section 376 IPC and was sentenced to undergo RI for ten

years and to pay a fine of Rs. 5,000/- or to undergo SI for

three months in default.

2. In the night intervening 15/16 th September, 2004, the

Investigating Officer, SI Rajesh Kumar, on receipt of copy of

DD No.32 regarding commission of rape with a girl aged

about 3 years, from Police Control Room, went to Village

Saidullajab, where he came to know that the prosecutrix had

been taken to AIIMS Hospital. When the investigating officer

reached AIIMS, the complainant Achhelal, father of the

prosecutrix, met him there and lodged a complaint. Achhelal

informed that on 15th April, 2004 at about 8.00 p.m., he

accompanied by his wife, went to make a telephone call to his

native village, leaving their children behind. When they

returned back to their Jhuggi, their daughter was found

missing. On enquiry, they came to know that their daughter

had also followed them when they were going to make a

telephone call. They started searching their daughter. One

person informed them that he had heard the shrieks of a girl

from the jungle. He, accompanied by others, went to jungle,

where he heard the shrieks of his daughter. When he

reached the spot, he saw, in the light of the mobile phone of

one of his companions, that the appellant had gagged the

mouth of his daughter and was forcibly raping her having

removed her underwear. He rescued his daughter from that

man, who was given beating by the public, and Police Control

Room was informed.

3. The prosecutrix, though produced in the court on15th

October, 2005, was not examined as the learned Additional

Sessions Judge felt that she was not fully capable of

answering the questions put to her and, therefore, could not

be examined as a witnsess. The father of the prosecutrix was

partly examined on 15th of October, 2005 when he started

weeping and his further examination was deferred on that

day. Thereafter, he was not produced by the prosecution as

his wife stated in the court that her husband was not

traceable for about 2/3 months. It was, in these

circumstances, that his further statement could not be

recorded.

4. The mother of the prosecutrix, Smt.Ramwati came in

the witness box as PW-9 and stated that at about 8.00 p.m.

she and her husband had gone to an STD Booth, to make a

telephone call to her village. At that time, their children were

sleeping inside their jhuggi. When they came back at about

8.30 p.m., the prosecutrix was found missing. On enquiry in

the neighbourhood, they were informed that her daughter

had followed them when they were going to make a telephone

call. She raised an alarm and went in search of her

daughter. She, accompanied by her husband, heard some

noise from the bushes. One Sikh gentleman also came there

and switched on his mobile to throw some light. They went to

the bushes from where the sound was coming. From there,

her husband dragged the prosecutrix from beneath the

appellant. The underwear of her daughter had been removed

and her mouth had been pressed by the appellant with his

hand. The appellant was found wearing underwear and his

pant was half open and was on the knees. He was caught by

the public and was given a beating. The police was also

informed and took the prosecutrix as well as the appellant to

the hospital. She also stated that the accused/appellant was

caught raping her daughter.

5. PW-4, Shri Jai Bhagwan, has stated that on 15 th

September, 2004, he was present at his workshop where he

used to be on duty from 9.00 a.m. to 6.00 p.m. During those

days, he used to reside in the workshop itself. At about

10.00 p.m., he heard the noise of weeping of a man and a

woman. Thereafter, he along with Gurbachan, Manoj and

other labourers went towards the side fromwhere the noise of

crying was coming and found a man and a woman were

sitting there along with other residents of jhuggies. They

heard the noise of crying of a girl child. The accused present

in the court was found there with the girl, who at that time

was wearing only a frock and was stained with blood. At that

time, the girl was not wearing underwear. The girl was

brought to their garage and the accused was beaten by the

public. The Police Control Room was informed and the

accused was handed over to the police, whereas the

prosecutrix was taken to hospital in an ambulance. In his

cross-examination he also stated that on seeing mobile light,

the accused started running, but was apprehended by them.

6. PW-5, Shri Manoj, has corroborated the statement of

PW-4, Jai Bhagwan, and stated that when he along with

others heard the noise of crying of a girl, they found the

accused with the girl. The underwear of the girl had been

removed. On seeing them, the accused started running but

was apprehended and beaten by public. There was bleading

from the private part of the girl. The police was informed and

when the police came to spot, the accused was handed over

to the police. In his cross-examination, he stated that the

prosecutrix and the accused were lying on the ground and

the mouth of the prosecutrix was gagged by the accused.

7. PW-1, Dr.Chitranjan Behra, examined the appellant in

the hospital on 15th September, 2004 and found a number of

injuries on his person. He also noticed smell of alcohol from

his mouth. PW-2, Dr.Charu, examined the prosecutrix in the

AIIMS Hospital on 15th of September, 2004 and found that

her hymen had been ruptured and there was minimal

bleeding from introitus.

8. In his statement under Section 313 Cr.P.C., the

appellant denied the allegations against him and stated that

he had been falsely implicated, since he was drunk.

9. According to PW-9, he had found the appellant raping

her daughter when they reached the spot, on hearing the

shrieks of her daughter. If this part of her deposition is

excluded from consideration, the case of the prosecution

against the appellant would rest solely on circumstantial

evidence.

10. 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.

11. 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.

12. CIRCUMSTANCES

(i) The first circumstance proved against the

appellant is that he was found present in the jungle at

the same place where the prosecutrix was found. This

factual position proved by PW-4, Shri Jai Bhagwan,

PW-5, Shri Manoj, and PW-9 Smt.Ramwati, has not

been disputed by the appellant either in his statement

under Section 313 Cr.P.C. or during arguments. No

explanation has been given by the appellant, for his

being found along with the prosecutrix, in night, at a

dark and secluded place. His presence at that time

and place, in the company of the prosecutrix without

any explanation for his being found there, is definitely

an incriminating circumstance against him.

(ii) The second circumstances proved by the

prosecution against the appellant is that when the

prosecutrix was found with him in jungle in the night

of 15th September, 2004, she was wearing only a frock,

her underwear having been removed. This fact, proved

by PW-4, Shri Jai Bhagwan, PW-5, Shri Manoj, and

PW-9 Smt.Ramwati, has not been disputed by the

appellant, who has claimed, in cross-examination of

PW-9, Ramwati, that somebody else had raped the

prosecutrix and since the appellant was lying there in

drunken condition, he was apprehended and handed

over to the police. In his statement under Section 313

of Cr.P.C., the appellant did not say that he had found

the prosecutrix in the jungle and that she had told him

that some one had raped her. The natural reaction of a

person, who comes across a child who has been

subjected to rape, would be to enquire, from her, as to

what had happened with her and who had committed

the crime with her. His next step would be to take the

child to a police station or to her house so that she can

be taken care of. The appellant, however, does not

claim to have done anything like that and, therefore,

this circumstance also incriminates him.

(iii) The third circumstances proved by the

prosecution against the appellant is that the frock

which the prosecutrix was wearing at the time she was

found with the appellant was having blood on it and

the prosecutrix was bleeding from her private part at

that time. When the prosecutrix was examined in the

hospital vide MLC, PW-2/A, the blood, though minimal,

was found even at that time. This factual position has

also not been disputed by the appellant, who claims

that the prosecutrix had been raped, though by some

person other than him.

(iv) According to PW-9, Smt.Ramwati, when they

reached the spot, the appellant was found wearing

underwear and his pant was half open and was on his

knees. No suggestion was given to the PW-9 that the

pant of the appellant was not half open and was not on

his knees when he was apprehended by PW-4, Shri Jai

Bhagwan, PW-5, Shri Manoj, and PW-9 Smt.Ramwati,

and others. Even in his statement under Section 313

Cr.P.C. no such claim was made by the appellant.

This is a strong incriminating circumstance against the

appellant and theinference is that he had raped the

prosecutrix and that is why his pant was half open and

was on his knees.

(v) According to PW-9, Ramwati, when they reached

the spot, they found her daughter beneath the

appellant. No suggestion was given to her that the

prosecutrix was not beneath the appellant or was lying

at some distance from him. When a witness deposes a

particular fact and no suggestion to the contrary is

given to him in cross-examination, the person against

whom the deposition is made, is deemed to have

admitted that fact. Therefore, by not giving any

suggestion to the contrary to the witness, the appellant

is deemed to have admitted that he was lying on the

prosecutrix when he was apprehended by the

witnesses. This is one more and a very strong

incriminating circumstance against the appellant.

(vi) According to PW-4, Shri Jai Bhagwan, and PW-

5, Shri Manoj, the appellant, on seeing them, tried to

run away but was caught and beaten by the public.

The appellant has not given any explanation for his

trying to run away on seeing the witnesses. If the

prosecutrix had been raped by some other person, as

claimed by him, he, instead of trying to run on seeing

the witnesses, would have stayed there and explained

the factual position to the parents of the prosecutrix as

well as to others who accompanied them. The attempt

of the appellant to run away on being seen by them is a

clear indicator of his being the person who raped the

prosecutrix.

(vii) It has also been stated by PW-5, Manoj, that

when they reached the spot, they found that the mouth

of the prosecutrix had been gagged by the appellant.

No suggestion was given to this witness that the

appellant was not found having gagged the prosecutrix

when he was caught by the witnesses. There could

have been absolutely no reason for the appellant to gag

the prosecutrix, in case he was not raping her at the

time he was caught or he had not already raped her by

the time he was caught.

(viii) According to PW-1, Dr.Chitranjan Behra, who

examined the appellant in the hospital on 15 th

September, 2004, his underwear was sealed and

handed over to the IO. According to PW-14,

Const.Rohtash Singh, the underwear of the appellant

was seized vide memo Ex.PW-14/A. PW-15, ASI Adesh

Kumar, has also deposed the same fact. A perusal of

the report of the FSL Ex.PW-15/H shows that the blood

was found on the underwear when it was examined in

the laboratory. This is not the case of the appellant

that the underwear examined in the laboratory was not

the underwear which he was wearing at the time he

was caught. There is no explanation from the appellant

as to how blood came on the underwear which he was

wearing. The inference, in these circumstances, would

be that it was the blood of the prosecutrix which came

on the underwear of the appellant when he raped her.

(ix) According to PW-4, Shri Jai Bhagwan, PW-5,

Shri Manoj, and PW-9 Smt.Ramwati, they had reached

the spot on hearing the shrieks of a girl. The appellant

was caught immediately thereafter and at that time the

prosecutrix was found with him. There is no

explanation from the appellant as to why the

prosecutrix had shrieked when he was with her. The

inference to be drawn, in these circumstances, would

be that the prosecutrix had shrieked when the

appellant raped her.

13. The incriminating circumstances proved against the

appellant thus are, (i) he was found along with the

prosecutrix at a secluded place, in the night of 15th

September, 2004, soon after she got missing, (ii) the

prosecutrix was wearing only a frock at the time she was

found with the appellant and was not wearing her underwear

at that time, (iii) the blood was found coming from the private

part of the prosecutrix at the time she was found with the

appellant, (iv) the frock which the prosecutrix was wearing at

time when she was found with the appellant had blood on it,

(v) the pant of the appellant was on the knees and he was

wearing underwear at the time he was caught when found

with the prosecutrix, (v) blood was found on the underwear

of the appellant, (vi) the prosecutrix was beneath the

appellant when he was caught and, (vii) the appellant tried to

run away on seeing PW-4, Shri Jai Bhagwan, PW-5, Shri

Manoj, and PW-9 Smt.Ramwati, and other witnesses, the

prosecutrix had shrieked when she was with the appellant,

her shriek having been heard by PW-4, Shri Jai Bhagwan,

just before the appellant was caught with her.

14. A perusal of the MLC of the prosecutrix shows that

hymen was found torn and minimal bleeding also was found

when she was examined by the doctor soon after the incident

had taken place. Though semen was not found either on the

underwear of the appellant or on the frock of the prosecutrix,

that by itself does not mean that the prosecutrix had not

been raped. Had the prosecutrix not been raped, her hymen

would not have been found torn and she would not have been

found bleeding from her private part. The penetration alone

is sufficient to constitute rape and it is not necessary that

there has to be emission of semen, to constitute rape. It

appears from the facts and circumstances that the appellant

could not ejaculate, as he saw the witnesses, including PW-4,

Shri Jai Bhagwan, PW-5, Shri Manoj, and PW-9

Smt.Ramwati, coming towards him on hearing the shrieks of

the prosecutrix and, therefore, the appellant despite having

penetrated, could not emit semen.

15. The circumstances proved against the appellant

unerringly proved him being the person who raped the

prosecutrix. These circumstances leave no reasonable doubt

that in all probability the rape with the prosecutrix was

committed by the appellant and by no other person. The

circumstances proved against him are totally incompatible

with his innocence and are wholly consistent with the guilt

attributed to him. In fact, according to PW-9, Smt.Ramwati,

when they caught the appellant, he was raping her daughter.

Thus, according to this witness, she was an eye-witness of

rape by the appellant. If I accept the deposition of the mother

of the prosecutrix, there is direct evidence of the appellant

having raped the prosecutrix. If I exclude this part of the

deposition of PW-9, Ramwati, from consideration, the

circumstances proved against the appellant, leave no

reasonable doubt that he had committed rape on the person

of the prosecutrix.

16. It was contended by the learned counsel for the

appellant that no injury was found on the male organ of the

appellant when he was examined in hospital and since the

prosecutrix was a child aged about four years at the time of

commission of rape with her, such injuries would definitely

have been found had the appellant been the person who

raped the prosecutrix. In support of her contention, she

relied upon the decision in the cae of "Rahim Beg Vs. State

of UP", AIR 1973 SC 343.

17. This issue, including the decision in the cse of Rahim

Beg (supra), came up before the Hon'ble Supreme Court in

"State of Himachal Pradesh Vs. Raghubir Singh", (1993) 2

SCC 622, in which the victim was a girl of about seven years

of age. She was wearing a frock and having shawl with her.

The accused was of sixteen years. According to the

prosecutrix, she was made to lie down and accused

committed rape on her. On medical examination, the

respondent was found to be potent and capable of sexual

intercourse. It was argued on behalf of the accused that

absence of injuries on the penis of the accused should be

treated as fatal to the case of the prosecution. Reliance was

also placed on Rahim Beg(supra). Negativing the contention

and distinguishing Rahim Beg, the Court observed:

18. "Inferences have to be drawn in every case from the given set of facts and circumstances. There is no inflexible axiom of law which lays down that the absence of injuries on the male organ of the accused would always be fatal to the prosecution case and would discredit the evidence of the prosecutrix, otherwise found to be reliable. The presence of injuries on the male organ may lend support to the prosecution case, but their absence is not always fatal. Rahim Beg case was based on its peculiar facts and the observations made therein were in a totally different context and cannot advance the case of the respondent. The observations in Rahim Beg case cannot be mechanically pressed into aid in every case regardless of

the specific circumstances of the crime and absence of the fact situation as existing in that case." (Emphasis supplied)

19. As noted earlier, in the present case, there was no

ejaculation by the appellant, presumably, because despite

having penetrated, he had to abandon the act being

committed by him when he saw the witnesses coming

towards him and that was likely be the reason why injuries

were not found on his male organ after he had been caught

and taken to hospital for his medical examination.

Therefore, presence of injuries on the male organ would not

exclude commission of rape in the facts and circumstances of

this case.

20. As provided in Section 376 of Indian Penal Code, the

sentence for committing rape on a minor girl when she is under