Pappu vs State Nct Of Delhi
2010 Latest Caselaw 2403 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Reserved on: 3rd May, 2010
                        Judgment Pronounced on: 5th May, 2010

+                        CRL.APPEAL No.423/2010

       PAPPU                                 ..... Appellant
                    Through:   Mr.Sumeet Verma, Advocate

                               versus

       STATE NCT OF DELHI               ..... Respondent
                Through: Ms.Richa Kapoor, A.P.P.

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?

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

PRADEEP NANDRAJOG, J.

1. In yet another prolix judgment dated 30.10.2009, of

the kind we find being penned in abundance by the learned

Trial Judges, the appellant has been convicted for the offence

of having raped an infant girl child aged 1½ years on the date

when the crime was committed.

2. Vide order dated 31.10.2009 the appellant has

been sentenced to undergo imprisonment for life and pay fine

in sum of Rs.50,000/-.

3. In a decision which sways all over; noting the

testimonies of the witnesses; the arguments advanced

pertaining to the credibility of the witnesses; copiously copying

extracts from various decisions; but without dealing with the

submissions urged; recording in a cryptic manner that

discrepant details vis-à-vis the earlier and the current

statements would not discredit a witness, finding of guilt has

been returned.

4. An impression is given that the learned Judge

simply picked up the file and went about narrating the

testimony of the witnesses by making the stenographer sit in

front and one by one re-narrating the deposition of the

witnesses; an exercise which has consumed the first 25 pages

of the prolix decision. Thereafter extracts from as many as 17

decisions has been extracted; inter spaced in between are the

submissions and in this manner the next 25 pages have been

consumed. The reasons span only 3 pages. With a little more

effort, probably consuming the same time, but requiring the

Judge to be focussed, a short decision, in our opinion not

spanning 20 pages i.e. in approximately 1/3rd the number of

pages consumed, the learned Judge could have better

expressed herself.

5. The charge-sheet filed shows that the prosecution

alleged against the appellant that pursuant to DD No.29-A

being recorded on 19.11.2008 at P.S. Nangloi SI Pradeep

Kumar PW-9, accompanied by Const.Ved Prakash PW-2,

reached A-115 Veena Enclave and met Smt.Savitri Devi PW-5

and saw her crying with her daughter Kumari 'P' in her hand

with blood oozing from her private parts and the appellant

held on to by the people with a sound beating given. SI

Pradeep Kumar and Const.Ved Prakash took Kumari 'P' and her

mother as well as the appellant to Sanjay Gandhi Memorial

Hospital where Dr.Sangeeta Kumari PW-3 examined Kumari 'P'

and prepared her MLC Ex.PW-3/A which evidenced that Kumari

'P' was raped. Dr.Meenakshi PW-4 examined the appellant

and prepared the MLC Ex.PW-4/A recording therein that the

appellant had periorbital odema i.e. swelling on the face,

generally occasioned by beating with slaps. At the hospital,

the statement Ex.PW-5/A of Savitri Devi PW-5 was recorded as

per which she told that her daughter was playing outside the

room. Appellant who knew her and her daughter took her

daughter for playing to his room. She heard the cry of her

daughter from the room of the appellant and on pushing the

door and accessing the room of the appellant was horrified to

see her daughter beneath the appellant who was in a

crouching position with his pant and underwear lowered and

his penis placed upon the private part of her daughter. She

raised an alarm. Appellant attempted to flee. Umesh PW-6

and other persons in the neighbourhood heard her cries and

hence apprehended the appellant and gave him a beating.

6. It is apparent that the case of the prosecution

rested on the testimony of Savitri PW-5 and Umesh PW-6 as

also the testimony of SI Pradeep PW-9 and Const.Ved Prakash

PW-2 pertaining to appellant being apprehended on the cries

of Savitri and the testimony of Savitri as to what she saw.

Further, the MLC of Kumari 'P' had to be looked into for the

reason when subjected to forensic examination neither blood

nor semen could be detected on the vaginal swabs taken on a

slide by Dr.Sangeeta Kumari PW-3.

7. We do not find any discussion by the learned Trial

Judge on the issues which were urged before us as also before

the learned Trial Judge; the issue being whether DD No.29-A

and the FIR were ante timed and for this reason, since the said

argument had to be dealt with, the testimony of the witnesses

who deposed about DD No.29-A being recorded, the rukka

being prepared and sent as also FIR being registered needed

to be noted and then evaluated.

8. Thus, we note the relevant evidence and firstly note

the evidence relating to the involvement of the police officers

from the stage DD No.29-A was recorded in the DD register till

FIR was registered.

9. The scribe of DD No.29-A has not been examined

and the same has been proved by SI Pradeep Kumar PW-9 who

deposed that on 19.11.2008 he was on emergency duty at PS

Nangloi from 8:00 AM to 8:00 PM and received DD No.29-A,

Ex.PW-9/A and on basis of said DD, accompanied by Const.Ved

Prakash PW-2, reached A-115 Veena Enclave and saw a crowd.

Savitri Devi PW-5 met him and made a statement which he

reduced into writing and she produced her 1½ years old

daughter Kumari 'P'. Accused was produced. He took Kumari

'P' and the accused to the hospital and got the prosecutrix

medially examined and thereafter made an endorsement

Ex.PW-9/B beneath the statement of Smt.Savitri Devi and

handed over the rukka to Const.Ved Prakash who went to the

police station and got the FIR registered. The doctor handed

him over 4 sealed parcels relating to the prosecutrix which he

seized vide memo Ex.PW-2/D. He arrested the accused as

recorded in the memo Ex.PW-2/C and thereafter deposited the

various exhibits in the FSL Rohini and after completion of

investigation sent the file to the Court.

10. On being cross-examined he stated that he

received DD No.29-A at 4:45 PM and reached the spot at 5:15

PM where he remained for 15-20 minutes and then went to the

hospital and that he handed over the rukka to Const.Ved

Prakash in the hospital at 5:45 PM after he recorded Savitri's

statement in the hospital.

11. Const.Ved Prakash PW-2 deposed in sync with SI

Pradeep Kumar. He did not depose as to where the statement

of Savitri was recorded but stated that he took the rukka after

the prosecutrix and the appellant were medically examined,

meaning thereby deposed, though not in exact words, that

Savitri's statement was recorded in the hospital.

12. On being cross-examined he stated that they

reached the spot at around 5:15 PM or 5:20 PM.

13. HC Suresh Kumar PW-1 has deposed that he was

the duty officer from 5:00 PM to 1:00 AM on 19.11.2008 and

that he received the rukka on which he made the endorsement

Ex.PW-1/A and registered the FIR Ex.PW-1/B.

14. HC Suresh Kumar has not been cross-examined.

15. Endorsement Ex.PW-1/A records that as entered in

DD No.32-A, FIR was registered at 7:05 PM on 19.11.2008

upon receipt of the rukka from SI Pradeep sent through

Const.Ved Prakash. The endorsement Ex.PW-9/B beneath

Savitri's statement Ex.PW-5/A records the time of incident at

4:45 PM and dispatch of the rukka at 6:45 PM. The

endorsement Ex.PW-9/B records that after DD No.29-A was

handed over to him and upon reaching A-115 Veena Enclave,

SI Pradeep met Savitri who produced Kumari 'P' as also Pappu,

both of whom were taken to the hospital where MLC No.14850

of Kumari 'P' and MLC No.14722 of Pappu were handed over to

him and that in view of the MLC of Kumari 'P', FIR for an

offence punishable under Section 376 IPC was made out.

16. DD No.29-A, Ex.PW-9/A, records that information

was received at 5:31 PM on 19.11.2008 from the police control

room that a girl has been raped in a house behind Nangloi

Sonia Hospital.

17. Let us deal with the first argument advanced during

hearing of the appeal. It was urged that DD No.29-A being

registered at 5:31 PM, where was the question of SI Pradeep

and Const.Ved Prakash leaving the police station at 4:45 PM as

claimed by them and having reached the place of the crime by

5:15 PM. There from, it was urged that it was apparent that

everything was ante timed and in the interregnum Savitri PW-5

was given time to cook up a version to falsely implicate the

appellant for the reason Savitri's husband had a fight with the

appellant in the evening.

18. Now, MLC Ex.PW-13/A records that Kumari 'P' was

brought to the hospital at 6:20 PM. The author of the MLC

Dr.Sangeeta Kumari PW-3 has proved the MLC and no

suggestion has been given to her that the time recorded

therein is incorrect. The MLC Ex.PW-4/A of the appellant

records his being brought to the hospital at 6:10 PM. The

author of the MLC Dr.Meenakshi PW-4 has not even been

suggested that the time therein is incorrectly recorded. Both

MLCs record that Const.Ved Prakash (PW-2) had brought

Kumari 'P' and the appellant to the hospital. The authors of

the two MLCs have not been suggested that said recording is

incorrect. Indeed, Const.Ved Prakash PW-2 has stated that he

and SI Pradeep took Kumari 'P' and the appellant to the

hospital and so did SI Pradeep PW-9 deposed to. Thus, we

have 2 documents of unimpeachable character to show that

the appellant was in the custody of police well before 6:10 PM

and by said time was got medically examined. Obviously, SI

Pradeep and Const.Ved Prakash had with them the information

pertaining to Kumari 'P' being raped and this information had

to be the first DD entry recorded in the police station.

Const.Ved Prakash PW-2 on cross-examination has disclosed

that the distance between the police station and Veena

Enclave was about 2.25 kilometres and that he and SI Pradeep

went from the police station to Veena Enclave on his private

motorcycle. SI Pradeep Kumar has stated that before

proceeding to the hospital he remained at the spot for 15-20

minutes. Working the time backwards from 6:10 PM by which

time the appellant was admittedly brought to the hospital,

going back 15-20 minutes we reach 5:50 PM - 5:55 PM.

Excluding about 5 minutes time to reach the hospital from the

spot it takes us back to 5:45 PM - 5:50 PM. It would take about

4 to 5 minutes to cover a distance of 2.25 kilometres i.e. the

distance between the police station and Veena Enclave and

proceeding backwards it would mean that the two police

officers left the police station at around 5:40 - 5:45 PM. DD

No.29-A records the time 5:31 PM. Giving some time for its

copy to be prepared, a police officer available to be spotted

and his departure entered in the DD Register, we find

documentary web of circumstances proving that DD No.29-A

was indeed recorded at 5:31 PM. The stray statement of

Const.Ved Prakash as also SI Pradeep that they left the police

station at 4:45 PM when DD No.29-A was recorded is obviously

an error and the possible source of the error is the time of

incident recorded in the rukka being; 4:45 PM. It appears that

the two police officers refreshed their memory before entering

the Court by looking at the shadow file and in the process the

time 4:45 PM got fixed in their memory as the time when they

left the police station. Further, we find no serious challenge to

the time recorded on the endorsement Ex.PW-9/B of the rukka

being dispatched from the hospital at 7:05 PM which would

conform to the time consumed at the hospital for Kumari 'P'

and the appellant to be examined, their MLCs prepared and in

the meanwhile when the doctors were examining the two,

statement Ex.PW-5/A of Savitri PW-5 being recorded. We find

reinforcement from the fact that PW-1 has deposed to the time

when he entered the FIR in the register and the further fact

that PW-1 has not even been cross-examined.

19. It was urged that the admission of SI Pradeep that

he recorded the statement of Savitri PW-5 at the spot is also

indicative of the FIR being ante timed, is repelled for the

simple reason on being cross-examined SI Pradeep corrected

himself by stating that he recorded Savitri's statement in the

hospital. Even Savitri PW-5 has categorically said that her

statement was recorded in the hospital. The question of SI

Pradeep recording Savitri's statement and dispatching the

rukka from the spot does not arise inasmuch as the

endorsement Ex.PW-9/B beneath the statement Ex.PW-5/A

makes a mention of the number of both MLCs Ex.PW-3/A

pertaining to the prosecutrix and the MLC Ex.PW-4/A

pertaining to the appellant.

20. For the benefit of the learned Trial Judges, this is

the manner in which an incorrect statement whether by way of

a memory lapse or a blemish attributable to a witness has to

be dealt with, when good and sound documentary material is

available to establish the same. It is no use to note 8

judgments of the superior Courts where such trivial variations

have been held liable to be ignored. What we intend to convey

is that sound reasons are not copious reproductions of extracts

from judicial pronouncements, but analysis of the oral

depositions and documentary evidence. It is this process of

reflection of the judicial process which lends credit to the fact

that the learned Trial Judge has applied her judicial mind and

the judicial process has been followed.

21. Savitri PW-5 has deposed in complete sync with her

statement Ex.PW-5/A. Indeed, during cross-examination she

was not confronted with any part of her statement Ex.PW-5/A.

Nothing has been shown to us by way of any improvement or

contradiction whatsoever made by Savitri when she deposed in

Court vis-a-vis her statement Ex.PW-5/A.

22. Relevant would it be to note that the thrust of

cross-examination is that at the time of the incident the

children of the appellant and her children were watching a

movie in the CD in the room of Pappu i.e. the appellant, a fact

which she denied. Admitting the fact that she lived in one

room and so did Pappu in the same building, she denied that

her husband was sitting outside his room. She denied that her

husband, Pappu and some other persons were consuming

liquor in the room taken on rent by Pappu. It is apparent that

what was attempted to put to Savitri was that with so many

people present in the room of Pappu, where was the question

of Pappu doing the offending act.

23. Relevant would it be to note that no suggestion was

put to Savitri of any fight between Savitri's husband and the

appellant or between Savitri and the wife of the appellant or

with the appellant.

24. Umesh PW-6 corroborated Savitri when he deposed

that cries of Savitri, his co-tenant, attracted him. He saw

Savitri chase the appellant and that he i.e. Umesh with the

help of persons in the locality apprehended appellant and the

local people gave a beating to the appellant and handed him

over to the police when the police came. Surprisingly, Umesh

was given suggestion that a quarrel had taken place between

the appellant, him i.e. Umesh and the husband of Savitri.

25. The appellant produced his wife Gajra DW-1 who

deposed that three persons, Mahender, Janak Pal and Chet

Ram (husband of Savitri) were consuming liquor when her

husband Pappu returned. The three requested her husband to

join them in drinking liquor. Her husband refused. The three

men started abusing and started quarrelling with her husband.

Savitri started beating her husband. Kumari 'P' who was

standing on a cot fell down and hurt herself. Somebody

informed the police who came and took away her husband.

26. Relevant would it be to note that no such version

was put to Savitri PW-5.

27. It is apparent that through his wife the appellant

wanted to prove that Kumari 'P' suffered an injury when she

fell from the cot. This is in harmony with the line of cross-

examination adopted when Dr.Sangeeta Kumari PW-3, the

author of the MLC Ex.PW-3/A deposed. Her cryptic cross-

examination is: "The examination conducted by me on the

patient and reduced in writing at encircle „X‟ in Ex.PW-3/A.

There is no possibility in this case that such type of bleeding in

this case may be possible due to touch of finger or fall on

wood."

28. As recorded in the MLC Ex.PW-3/A and as deposed

to by Dr.Sangeeta Kumari PW-3 when she examined Kumari 'P'

she saw: "Mild swelling in the perineal region, small tear in

forechette. Bleeding was present. Hymen?"

29. It is apparent that, not full, but partial penetration

had been made near the perineal region of the young girl

evidenced by mild swelling, small tear in forechette and

bleeding there from.

30. We have no reasons to hold that Dr.Sangeeta

Kumari would collude to incorrectly record as aforesaid. The

MLC corroborates the ocular version of Savitri, Const.Ved

Prakash, Umesh and SI Pradeep that they saw blood on the

private parts of Kumari 'P'.

31. That no blood was detected on the vaginal swab of

Kumari 'P' and no semen was detected therein is neither here

nor there in view of the ocular evidence of afore-noted four

witnesses; the testimony of Dr.Sangeeta Kumari PW-3 and the

MLC Ex.PW-3/A of Kumari 'P'. It is possible that the young

infant and unfortunate victim passed urine and thereby

diminishing the possibility of blood being detected in her

vaginal swab. As regards no semen being detected therein,

there is no law that unless there is ejaculation, rape is not

complete. There is no law that for rape to be complete there

must be full penetration.

32. It was urged that at best, evidence suggested a

digital rape. The argument has to be rejected inasmuch as the

testimony of Savitri PW-5 establishes that the appellant was

with his pant and underwear pulled down and he crouching

over Kumari 'P' with his penis on the private part of the young

girl.

33. That the MLC of the appellant shows his having a

swollen face evidences the appellant being slapped. The

attempt by the appellant to prove the circumstances of his

being beaten through the testimony of his wife has to be

rejected for the reason this version was not even remotely put

to Savitri PW-5. The version of false implication has surfaced

for the first time when Umesh PW-6 was given a very weak

suggestion that the appellant was beaten on account of his

refusing to sit down and consume liquor with husband of

Savitri and in respect whereof a full blown, but false version,

was sought to be brought on record through the testimony of

the wife of the appellant.

34. No sane person would damage the private parts of

her child to simply falsely implicate somebody. Well, stray

incidents have been detected where a parent is proved to

have created false evidence of rape of a minor child by

inflicting an injury on the private part of the child and then

falsely implicated an accused, but in said stray cases,

extremely strong evidence of false implication has surfaced.

35. The lame duck argument that the wife and children

of the appellant were in his room and hence the question of

the appellant committing rape upon Kumari 'P' is most

improbable is rejected for the reason there is no proof of the

wife and the children of the appellant being in the room. We

find a shifting stand by the appellant on the attempt to prove

presence of the wife and children of the appellant in his room.

Savitri PW-5 has been given a suggestion that Savitri's children

and children of the appellant were watching a movie on CD in

the room of the appellant and some persons and the appellant

were consuming liquor in the room of the appellant. To Umesh

PW-5 a totally different version of a simple quarrel over liquor

has been suggested. A full blown account of a fight has been

attempted to be brought on record through the testimony of

his wife. A completely different version has surfaced through

the mouth of the appellant when he was examined under

Section 313 Cr.P.C. He stated: "I am innocent and have been

falsely implicated in this case by the police. I have not

committed any offence. When the quarrel occurred between

Savitri and me, her daughter/prosecutrix fell near the cycle

and hurt himself and as the child was injured, Savitri had got

me falsely implicated in the present rape case. The public had

beaten me at the instance of Savitri and took away the articles

lying in my house." The shifting currents sought to be

navigated by the appellant have actually created a whirlpool

drowning the object which the appellant intended to conceive.

36. We hold that there is sufficient and credible

evidence wherefrom the guilt of the appellant can be inferred.

We reject the theory of the appellant being falsely implicated.

37. Last submission urged was that the sentence to

undergo imprisonment for life was excessive. It was urged

that the victim being a minor girl as an aggravating

circumstance has been included in the minimum sentence

prescribed by the legislature for the offence of rape if the

victim was a minor by prescribing the same to be of

imprisonment for 10 years as against the minimum sentence

prescribed being that of imprisonment for 7 years in the case

of normal rape. Thus, counsel urged that ends of justice would

be met if sentence imposed was to undergo rigorous

imprisonment for a period of 10 years.

38. In our opinion a distinction has to be drawn when

the rape victim is a minor and an infant. Notwithstanding the

fact that every rape is a crime of debauchery and is repulsive

and loathsome by its very nature for the reason not only is the

body of the victim defiled but even her spirit is polluted and

the trauma may last forever and in that sense there is societal

hatred against the rapist. But retribution has no place in a

judicial mind, in sentencing, merely because a rape has been

committed would not justify the highest sentence to be

imposed, for if this was the demand of the society, legislature

would have so enacted the law. By prescribing a minimum

sentence and a maximum sentence, the obvious legislative

intent is to leave judicial discretion while imposing the

sentence. It is recognized that there is no absolute judicial

discretion; for every Judge has to be guided by precedent,

logic, legislative intent etc. It is in this context that a

distinction needs to be drawn while awarding a sentence of not

only the victim being a minor and a major but within the

former, to classify the sub-category of the minor victim being

an infant and said being an aggravating circumstance while

awarding the sentence.

39. It is recognized that corrective action can be taken

by the Appellate Court only when a discretion vested in the

Trial Court is manifestly absurd. Appellate corrective action

relates to wrong law or wrong principle of law being adopted

by the learned Trial Judge while exercising a discretion. In the

instant case we find none and hence we confirm the sentence

imposed upon the appellant to undergo imprisonment for life.

40. The appeal is dismissed.

41. Since the appellant is in jail we direct that a copy of

this decision be sent to the Superintendent, Central Jail Tihar

to be made available to the appellant.

42. If we do not dovetail a paragraph to what we have

penned in paras 1 to 4 of our decision above, we would be

failing in discharging our duty of guiding the learned Trial

Judge who has penned the instant decision, with a hope that

the learned Trial Judge would peruse her decision and ours,

and be guided how evidence has to be discussed at a criminal

trial and not simply brushed aside by stating that it is settled

law that blemishes have to be ignored. Before something can

be ignored as a blemish, it has to be brought out that it is a

blemish and hence we direct the Registry of this Court to send

a copy of this decision to the learned District & Sessions Judge,

Delhi with a letter of request that it be forwarded to the

learned Judge who has penned the impugned decision.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

MAY 05, 2010 dk