Delhi High Court
Arjun vs State Nct Of Delhi on 19 July, 2010
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: July 16, 2010
Judgment delivered on: July 19, 2010
+ CRIMINAL APPEAL NO.367/2008
ARJUN ....APPELLANT
Through: Mr. N.K. Srivastava, Advocate
Versus
STATE NCT OF DELHI .....RESPONDENT
Through: Mr. Pawan K. Bahl, APP
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether 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 Digest ?
AJIT BHARIHOKE, J.
1. This appeal is preferred against the impugned judgment dated
27.03.2008 convicting the appellant on the charge under Section 376
IPC as also against the order on sentence of the even date in terms of
which the appellant has been sentenced to undergo RI for the period of
10 years and to pay a fine of Rs.100/-, in default of payment of which
to undergo SI for the period of 07 days.
2. Briefly stated, case of the prosecution is that on 06.09.2006 at
around 5:50 am, an information was received at P.S. Sangam Vihar
that one person who had raped a 05 years old girl was detained at near
Primary School MCD. The information was recorded as DD No.41A in
the daily diary maintained at the Police Station and copy thereof was
sent to ASI Karamvir for further action. ASI Karamvir along with
Constable Rajbir reached at the spot and there the appellant Arjun was
produced before him by PW1 Ikramuddin, father of the prosecutrix
(name withheld).
3. ASI Karamvir recorded the statement of Ikramuddin Ex.PW1/A
wherein he stated that on the night of 05.09.2006, he slept outside his
house on a cot lying in "gali" (street) and his youngest daughter i.e.
the prosecutrix aged 4½ years was also sleeping with him. At about
5:00 am when he got up he found that the prosecutrix was missing. He
went inside the house but prosecutrix was not there. When he came
out, he saw his daughter coming. She was naked and weeping. She
was also bleeding from her vagina. On inquiry, prosecutrix told him
that one boy who was residing in the neighbourhood had kidnapped
her from the cot and taken her to his room. There he removed her
clothes and raped her. When she started weeping due to pain, said
person let her go after sometime. Thereafter the prosecutrix took him
to a room constructed on a plot in the neighbourhood and pointed out
towards the appellant who was sleeping there. Prosecutrix said that
appellant was the person who had kidnapped her and committed rape.
He thus caught hold of the appellant, whose name on interrogation was
revealed as Arjun Singh S/o Sunder R/o G-558 i.e. the house belonging
to one Satya Prakash. Ikramuddin also stated that in the meanwhile
his wife had informed the police on telephone No.100 and pursuant to
the telephone call, the police had arrived. Investigating Officer
appended his endorsement Ex.PW.2/C on the aforesaid statement and
sent it to the Police Station for the registration of the case.
4. Prosecutrix as well as appellant was sent for medical examination
and their MLCs were obtained. Appellant was arrested. Statement of
the prosecutrix under Section 164 Cr.P.C. was got recorded. The
clothes of the appellant as well as the prosecutrix were seized and
were sent to CFSL for chemical analysis. On completion of formalities,
challan was filed and the appellant was sent for trial.
5. Learned Additional Sessions Judge on consideration of evidence
on record, charged the appellant for having committed the offences
punishable under Section 363 and 376 IPC to which appellant pleaded
not guilty and claimed to be tried.
6. On perusal of the impugned judgment, it transpires that the
learned Additional Sessions Judge has approached this case in a
careless and casual manner. As per record, the accused was charged
for offences punishable under Section 363 and 376 IPC, which fact is
recorded by the learned Additional Judge in Para 2 of the impugned
judgment. Despite that, the learned Additional Sessions Judge has not
returned any finding on the charge under Section 363 IPC. Such a
careless approach by the learned trial Judge in the matters relating to
life and liberty of the accused is not acceptable.
7. Even the statement under Section 313 Cr.P.C. has not been
properly recorded. Purpose of recording of statement of accused under
Section 313 Cr.P.C. is to afford him an opportunity to explain the
incriminating evidence appearing against him during trial. It is trite law
that if some incriminating circumstance or evidence is not put to the
accused while recording his statement under Section 313 Cr.P.C., it
cannot be made use of to record conviction of the appellant. One of
the incriminating circumstances relied upon by the learned trial Judge
against the accused is the evidence to that effect that the frock and
underwear of the prosecutrix, which she was wearing at the relevant
time, was recovered, found tucked in the pants of the accused.
However, on perusal of the trial court records, it transpires that this
piece of evidence was not put to the accused during his examination
under Section 313 Cr.P.C. It is well-settled that omission to examine or
want of adequate examination of accused under Section 313 Cr.P.C.
does not by itself necessarily vitiate the trial and this irregularity can
be cured by re-examining the accused under Section 313 Cr.P.C.
8. Since the learned trial Judge has failed to return a finding on the
charge under Section 363 IPC and also failed to put all incriminating
circumstances to the accused while examining him under Section 313
Cr.P.C., in interest of justice and taking into account the seriousness of
charges, the impugned judgment of the learned Additional Sessions
Judge is hereby set aside and the matter is remanded back to the court
concerned with the direction to record a proper statement of the
accused under Section 313 Cr.P.C. and re-decide the matter in
accordance with law, after hearing the parties on both the charge
under Section 363 as well as 376 IPC.
9. Appeal is disposed of accordingly.
JULY 19, 2010 (AJIT BHARIHOKE)
pst (JUDGE)
