Raju @ Ikhlaq vs The State (G.N.C.T.) Of Delhi
2010 Latest Caselaw 1435 Del

               HIGH COURT OF DELHI : NEW DELHI
               Judgment Reserved on: March 4, 2010
          Judgment Pronounced on: March 15, 2010


+              Criminal Appeal No. 595 of 2008


%      Raju @ Ikhlaq                     ...        Appellant
                              Through:   Mr. Rajesh Mahajan, Advocate

                                    versus

       The State (G.N.C.T.) of Delhi          ...   Respondent.
                       Through: Mr. Amit Sharma, Additional
                       Public Prosecutor for State.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

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

2. To be referred to Reporter or not?                        No

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

SUNIL GAUR, J.

1. The conviction of the appellant herein is for the offence of

rape of a minor child, aged about seven or eight years. The

impugned order of 21st January, 2008, imposes a minimum

sentence of ten years with fine and a lesser sentence for the

Criminal Appeal No. 595 of 2008 Page 1 allied offence has been also imposed. The incident is of late

evening of 21st August, 2005, and the place is roof of the house of

the prosecutrix (PW-5). At the time of this incident, she was

sleeping there.

2. As per the version of the prosecutrix (PW-5),

appellant/accused came there and had committed the offence of

rape and thereafter went away. After this incident, prosecutrix

(PW-5) came crying to her mother (PW-6) and had narrated this

incident to her. This matter was reported to the police after two

days of this incident. The reason for the delay, as given by the

mother (PW-6), is that the accused had threatened to kill if this

matter was reported to the police. Since the prosecutrix (PW-5)

had developed some medical complications after this incident,

therefore, this matter had to be reported to the police. FIR No.

548 of 2005, under Sections 376/506 of the IPC, was registered at

Police Station Ashok Vihar, Delhi, regarding this incident. Apart

from the medical examination of the prosecutrix (PW-5),

statement of the witnesses was recorded and the spot

proceedings were conducted during the investigation of this case.

Statement of the prosecutrix (PW-5) under Section 164 of the

Cr.P.C. was also got recorded and the investigation of this case

Criminal Appeal No. 595 of 2008 Page 2 stood concluded with the filing of the charge-sheet against the

appellant/accused. It was followed by the trial, as the

appellant/accused had not pleaded guilty to the charges framed

against him for the offence under Section 376/506 of the IPC. The

evidence recorded not only comprises the deposition of the

prosecutrix (PW-5) and of her mother (PW-6), but also of Doctor

Archna Gupta (PW-8) and Investigating Officer (PW-11).

3. The stand of the appellant/accused before the trial court

was of denial and of his false implication in this case. Though the

plea of alibi was taken by him but no evidence to substantiate it

was led by him before the trial court. The trial of this case ended

with the conviction of the appellant/accused for the aforesaid

offences, which is under challenge in this appeal.

4. Sum and substance of the submissions advanced on behalf

of the appellant/accused is that there are discrepancies in the

prosecution case, coupled with the delay in lodging of FIR of this

case and the FSL Report does not incriminate the appellant/

accused. According to the Counsel for the appellant, even if the

prosecution case is taken as it is, still it does not constitute the

offence of rape. At best, the offence, if any committed, is of

Criminal Appeal No. 595 of 2008 Page 3 attempt to rape and the sentence of about three years, already

undergone by the appellant/accused, would be adequate for the

offence of attempt to rape. Reference has been made to the

decision in "Virender vs. The State of NCT of Delhi" 2009 [4] JCC

2721, to urge that the benefit of contradictions in the

prosecution case accrues to the appellant/accused in a case like

the present one.

5. The aforesaid submissions have been stiffly refuted by

Mr. Amit Sharma, learned Additional Public Prosecutor for

respondent-State, who points out that the delay occasioned

stands sufficiently explained and shortcomings, if any, in the

deposition of the prosecutrix (PW-5) is of no avail, as the

medical evidence on record clinchingly proves that the offence

committed is of rape and not of attempt to rape.

6. First of all, the delay aspect has to be dealt with. The

delay aspect has to be appreciated in such like cases in the

light of the pertinent observations made by the Apex Court in

„Dildar Singh V State of Punjab‟ AIR 2006 SC 3084, which

reads as under:-

"In the normal course of human conduct an unmarried girl who is victim of sexual offence would not like to give

Criminal Appeal No. 595 of 2008 Page 4 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."

7. Prosecutrix (PW-5) has clearly stated in her evidence that

she had felt pain in her private parts after appellant/accused had

done „galat kaam‟ with her. Cross-examination of the prosecutrix

(PW-5) by the defence does not throw any light on the delay

aspect because it was not for her to have reported the matter to

the police ultimately. She had promptly told about happening of

this incident to her mother (PW-6). She could not have done

anything beyond than that. The explanation given by the mother

(PW-6) for the delay is that the appellant/accused had threatened

to kill her if this matter was reported to the police.

8. In the face of the evidence emerging on record, this Court

finds that the delay occasioned in reporting this matter to the

police is not fatal to the prosecution case. Regarding the

Criminal Appeal No. 595 of 2008 Page 5 contradictions in the prosecution case, it is found that they are

not material one. For instance, prosecutrix (PW-5) had claimed

that she was sleeping on the roof of her house whereas her

mother (PW-6) had stated that she was playing on the roof of the

house. Most part of the deposition of the prosecutrix (PW-5) has

been recorded in the question-answer form and it is found that

the answers given to the questions put in the chief examination

as well as in cross-examination are forthright and to the point.

Simply because it has come in the cross-examination of the

prosecutrix (PW-5) by the defence that her maternal grandfather

had tutored her for deposing in the Court, her entire deposition

does not get washed off. When the trial court had put a court

question on the tutoring aspect, the prosecutrix (PW-5) had kept

mum. In any case, why the prosecutrix (PW-5) would falsely

implicate the appellant/ accused in this case, remains

unanswered by the appellant/ accused. No suggestion to the

prosecutrix (PW-5) has been given by the defence as to why she

would falsely implicate the appellant/accused in this case.

9. It is worthwhile to notice that MLC (Ex. PW-8/A) of the

prosecutrix (PW-5) mentions the name of the appellant/ accused

as the culprit. Perhaps, it is for this very reason that Counsel for

Criminal Appeal No. 595 of 2008 Page 6 the appellant had to take the plea of present case being of

attempt to rape. Now it is to be seen as to whether the offence

committed is of rape or of attempt to rape. For this, MLC (EX PW-

8/A) of the prosecutrix (PW-5) is to be seen. It reveals that the

hymen of the prosecutrix (PW-5) was torn and the recovered

underwear of the prosecutrix (PW-5) was found to be blood

stained. Simply because it was not having semen stains, it cannot

be inferred that offence of rape has not been committed. This

Court in "Virender vs. The State of NCT of Delhi" 2009 [4] JCC

2721 has reiterated the settled position that to constitute the

offence of rape, even slightest penetration is sufficient and

seminal emission is not necessary. Therefore, absence of semen

stains on the underwear of the prosecutrix (PW-5) cannot be the

basis to conclude that the offence committed is not of rape, but is

of attempt to rape. Infact, not much is required to be said on this

aspect for the reason that evidence of Doctor Anjali Gupta (PW-

8), who has proved the MLC (EX. PW-8/A) of the prosecutrix (PW-

5), remains unchallenged.

10. It is settled legal proposition in criminal matters that

wherever there is material discrepancy in the prosecution case,

the benefit obviously goes to the accused. This is what has been

Criminal Appeal No. 595 of 2008 Page 7 reiterated in Virender vs. The State of NCT of Delhi (Supra) by

this Court. There can be no dispute with this proposition.

However, this Court does not find any worthwhile discrepancy in

the prosecution case to reject the prosecution version, which has

been found by the trial court to be consistent, trustworthy and on

perusal of the same, even this Court approves the findings of the

trial court and finds no hesitation in upholding the impugned

judgment. Since the sentence awarded is minimum under the law

for the offence in question, therefore, there is no scope for any

interference by this Court in this appeal. On the quantum of

sentence, no special or adequate reasons are forthcoming to

award lesser sentence than the minimum sentence provided

under the law. This appeal lacks substance and is accordingly

rejected.

11. Appellant is in custody. He be apprised of this order through

the concerned Jail Superintendent.

12. This appeal stand accordingly disposed of.

Sunil Gaur, J.

March 15, 2010
rs




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