Sunil Kumar vs The State (Nct Of Delhi)
2010 Latest Caselaw 5098 Del

           IN THE HIGH COURT OF DELHI: NEW DELHI

+              CRL. A. No. 530/2008

%              Judgment delivered on: 9th November, 2010

SUNIL KUMAR                                ..... APPELLANT
                          Through:    Mr. Rajesh Mahajan, Adv.

                          Versus

THE STATE (NCT OF DELHI)                   .....RESPONDENT

                          Through:    Mr. Arvind Gupta, APP

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers                     No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?                        No

       3. Whether the judgment should be                            No
          reported in the Digest?


A.K. PATHAK, J. (Oral)

1. Appellant has been convicted under Section 376 IPC by the

Trial Court; sentenced to undergo rigorous imprisonment for a

period of ten years and to pay fine of ` 10,000/-; in default of

payment of fine to undergo simple imprisonment for a period of six

months. Benefit of Section 428 Cr.P.C. has also been given to the

appellant.

2. It is this judgment, which is under challenge in this Appeal.

Crl. A. No. 530/2008 Page1 of 13

3. Prosecution case as unfolded is that Smt. Sheetal (PW1)

along with her daughter (hereinafter referred to as "Prosecutrix")

aged about six years and son aged about three years had come to

Delhi from Pune, about fifteen days prior to the incident, to see her

ailing maternal grandmother, who was hospitalized in the Babu

Jagjivan Ram Memorial Hospital, Jahangirpuri (hereinafter

referred to as "BJRM"). She was staying at her aunt‟s (Mausi)

house bearing No. D-179, Jahangir Puri, Delhi. Appellant is son of

aunt of PW1. On 1st December, 2004, in the afternoon, PW1 was

sitting outside the house alongwith her son; while prosecutrix was

sleeping in the room where appellant was also present. At about

3:30 PM, on hearing cries of prosecutrix (PW2), PW1 went inside

the room and found PW2 lying on the bed. She was weeping.

Appellant was also present there. He had slide down his pant and

underwear. On enquiry PW2 informed that appellant had inserted

his penis in her vagina (words used by the witnesses are "urinating

part" instead of penis and vagina). Blood was oozing per vagina of

PW2. Underwear and pant of PW2 were blood stained. PW1 took

the prosecutrix (PW2) to BJRMH, where she was medically

examined vide MLC (Ex. PW7/A). Doctor Sujata Gautam had

conducted the medical examination. She found the posterior

vaginal wall torn which extended upto perineum, which appeared

to be 1.5 inches externally. Vaginal swab was taken. Under

Crl. A. No. 530/2008 Page2 of 13 garment of the prosecutrix was also sealed by the doctor and

handed over to the Investigating Officer.

4. Information regarding hospitalization of prosecutrix was sent

to the police station Jahangirpuri by the Duty Officer/Head

Constable Baljeet Singh, pursuant whereof DD No. 46-B was

recorded and handed over to Sub Inspector Dharampal Tyagi who

alongwith Constable Arun Kumar reached the hospital and

recorded statement (Ex. PW1/A) of PW1 Sheetal, pursuant whereof

FIR No. 882/2004 under Section 376 IPC was registered.

5. During the investigation, site plan (Ex. PW13/B) was

prepared on the pointing of PW1 Sheetal. Appellant was arrested.

He was medically examined in BJRMH. Doctor opined that there

was nothing to suggest that the appellant was incapable of

performing sexual intercourse. Blood stained undergarment of

appellant was sealed by the doctor and handed over to the

Investigating Officer. His blood sample on a piece of cotton was

also taken. However, semen sample of appellant could not be

taken due to his non-cooperation and noting to this effect has been

made by the doctor in the MLC. On the pointing of appellant,

blood stained mattress was also seized. Vaginal swab, underwear

and pant of the prosecutrix, one towel having brown stains as also

blood sample and underwear of the appellant were sent to Forensic

Science Laboratory (FSL) and its report was obtained. As per this

report, human blood of „B‟ Group was found on the underwear of

Crl. A. No. 530/2008 Page3 of 13 the prosecutrix. It was also found on the towel and quilt. Semen

was also detected on the underwear and pant of the prosecutrix.

6. After completion of investigation, appellant was sent up to

face trial for having committed an offence under Section 376 IPC

by filing a charge-sheet in the court of Metropolitan Magistrate,

who took cognizance of the offence and committed the case to

Sessions Court for trial, since offence under Section 376 IPC is

exclusively triable by the Sessions Court.

7. Charge under Section 376 IPC was framed against the

appellant on 19th April, 2005 by the Trial Court to which he

pleaded not guilty and claimed trial.

8. Prosecution examined thirteen witnesses to prove its story.

Material witnesses are PW1 Sheetal, mother of the prosecutrix;

prosecutrix herself, who has been examined as PW2, PW7 Dr.

Sujata Gautam, Senior Resident (Gynae Department), BJRMH,

who had examined the prosecutrix vide MLC Ex. PW7/A and has

deposed in this regard. PW11 Shri Vinod Yadav, Administrative

Sub-Judge, Delhi had recorded the statement of prosecutrix under

Section 164 Cr.P.C. and has proved the same as Ex. PW 11/B. All

other witnesses are formal in nature being police officials, who had

been joined with investigation at one or the other stage.

9. After the prosecution closed its evidence, statement under

Section 313 Cr.P.C. of the appellant was recorded, wherein entire

Crl. A. No. 530/2008 Page4 of 13 incriminating material, which had come on record in the

prosecution evidence, was put to him. Appellant admitted that on

1st December, 2004 PW1 Sheetal along with her daughter

(prosecutrix) aged about 5 years and son Aditya aged about 3 years

were in his house bearing No. D-179, Jahangir Puri, Delhi and in

fact she had been residing there. However, he denied that he had

committed rape upon the prosecutrix on 1st December, 2004

between 3:00 PM to 4:00 PM. He claimed that he had been falsely

implicated in this case. He also examined Gopal Sharma and

Bimla Devi, who were residents of the same locality, as DW1 and

DW2 respectively. Both these witnesses have deposed that on the

date of incident at about 3/4 PM they saw Sheetal and appellant

quarreling with each other. Number of persons had gathered there

and they were saying that Sheetal was in love with the appellant;

she had given warning to the appellant that he will have to face

dire consequences.

10. Learned Trial Court meticulously examined the testimonies

of PW1 Sheetal and PW2 prosecutrix and it found their versions to

be trustworthy and reliable, sufficient enough to conclude that it is

the appellant who had committed rape upon the prosecutrix on the

fateful day. Trial Court was also of the view that their version was

duly corroborated from the medical and scientific evidence

available on record, inasmuch as FSL report indicated the

presence of human semen on the clothes of the prosecutrix and

Crl. A. No. 530/2008 Page5 of 13 underwear of the appellant and doctor also found injuries on the

vagina of the prosecutrix. On the basis of evidence adduced by the

prosecution, Trial Court concluded that the prosecutrix was

sexually assaulted by the appellant. Arguments of the appellant

that he had been falsely implicated by the prosecutrix and her

mother on account of strained relations between his parents and

PW1 have been rejected. It was observed that had their relations

been strained, PW1 Sheetal would not have been staying at the

appellant‟s house for such a long period. That apart, Trial Court

was also of the view that contradictory defenses taken by the

appellant goes against him, inasmuch as DW1 and DW2 had

deposed that Sheetal was in love with the appellant and on this

point, a quarrel had taken place between them on the fateful day

when she allegedly threatened the appellant that he shall face dire

consequences, which defenses were, otherwise, not put to PW1 in

her cross-examination. Trial Court was also of the view that there

was no reason as to why Sheetal, who was cousin of appellant,

would have implicated him in grave charges of rape of her

daughter, more so when she had been staying in his house for the

past 15 days.

11. I have carefully perused the statements of prosecutrix (PW2)

and her mother (PW1) and I find their testimony trustworthy and

reliable. They have fully corroborated the prosecution case. Their

depositions in the Court are in line with their statements recorded

Crl. A. No. 530/2008 Page6 of 13 during the investigation. Both of them have fully supported the

prosecution story. Prosecutrix PW2 has categorically deposed that

on 1st December, 2004 she had come to Delhi alongwith her

mother and brother. Appellant was her maternal uncle; he was

living in Delhi; appellant had inserted his penis in her vagina.

Thereafter, her mother removed her to the hospital where she was

medically treated. She identified the appellant in the Court. PW1

Sheetal deposed that she had been living in Pune along with her

family. Her maternal uncle, aunt and other relatives were living in

Delhi. She along with her daughter (prosecutrix) and son Aditya

had come to Delhi and was staying at her aunt‟s (Mausi) house in

Jahangirpuri, Delhi. On 1st December, 2004 between 3:00 PM to

4:00 PM she was sitting outside the house, while her daughter

(prosecutrix) was sleeping on the bed in a room inside the house.

Appellant, son of her aunt, was also sleeping there. On hearing

cries of her daughter she rushed inside the room and found her

daughter lying on the bed without clothes. She noticed that the

pant of her daughter as well as half pant of the appellant was lying

on the floor. Appellant was trying to wear his nicker. Her

daughter was bleeding per vagina. On enquiry, her daughter

disclosed that the appellant had kept his penis over her private

parts. She removed her daughter to BJRMH.

12. Above version given by PW1 and PW2 has remained

unshattered in their cross-examination. Perusal of MLC shows

Crl. A. No. 530/2008 Page7 of 13 that the prosecutrix was admitted in the hospital with the history

of "sexual assault". Doctor found injuries on the private parts of

the prosecutrix. This medical evidence corroborates the version of

prosecutrix and her mother Sheetal. PW7 Dr. Sujata Gautam has

categorically deposed that on 1 st December, 2004 she had

examined the prosecutrix aged about 5 years. She was bleeding

from vagina with clots; posterior vaginal wall was torn which

extended to perineum to the extent of 1.5 inches externally; upper

limit was not reachable because of pain and uncooperative attitude

of the patient. In her cross-examination, PW7 has clarified that

the "posterior vaginal wall torn" meant that hymen was torn and

was extended upto perineum. PW1 categorically denied a

suggestion that the injuries, as mentioned in the MLC, had been

caused due to fall from the bed and not due to any sexual

intercourse. This medical evidence clearly indicates and supports

the version of PW2 and PW1 that the prosecutrix was sexually

assaulted on the fateful day. As per PW2 prosecutrix, it is the

appellant who had sexually assaulted her and this fact was

narrated by her to her mother PW1 Sheetal immediately after the

incident, inasmuch as PW1 Sheetal had herself seen the appellant

in the room naked below the waist and trying to wear his nicker.

Even the scientific evidence duly supports the versions of PW1 and

PW2, as human blood as well as semen stains were found on the

underwear and pant of the prosecutrix which were of "B‟ group.

Crl. A. No. 530/2008 Page8 of 13 Blood sample of the appellant taken on cotton was also identified

as that of „B‟ group. I am of the opinion that in view of the

overwhelming evidence indicating culpability of appellant, Trial

Court has rightly concluded that it is the appellant who had

committed raped upon the prosecutrix on the fateful day, thus,

was guilty of committing offence punishable under Section 376

IPC.

13. Learned Amicus Curiae has vehemently contended that PW2

was a child witness vulnerable to the tutoring of her near and dear

ones, more particularly by her mother, inasmuch as, in her cross-

examination the prosecutrix, in answer to a suggestion put by the

defense counsel, had admitted that her mother had told her to say

that the appellant had inserted his penis in her vagina. In

nutshell, contention of the appellant is that PW2 was a tutored

witness and no reliance could have been placed on her testimony.

I do not find any force in this contention of the learned Amicus

Curiae. When the whole testimony of the prosecutrix PW2 is read,

it shows that she is a natural witness and had spoken truthfully in

the court in all respects including the incident. A suggestion was

put to her by the defense counsel that it was at the instance of her

mother that she had deposed that the appellant had inserted his

penis in her vagina to which she replied that her mother had told

her about this fact. Immediately thereafter the Trial Court got this

fact clarified by putting a court question as to whether this fact

Crl. A. No. 530/2008 Page9 of 13 was spoken by her on the basis of tutoring by her mother or in fact

the appellant had inserted his penis in her vagina. In answer to

this court question, the prosecutrix categorically stated that

appellant had inserted his penis in her vagina. This clearly shows

that she had not narrated this fact on the basis of any tutoring by

her mother, but in fact the incident had occurred in the manner as

described by the PW2. There is nothing to suggest that whatever

was deposed by the prosecutrix, was based on tutoring by her

mother, more particularly when in answer to the court question

prosecutrix had categorically re-asserted and reaffirmed the

aforenoted fact

14. It is well settled that a child witness, if found competent to

depose the facts and reliable one, such evidence could be the basis

of conviction. In case such witness is able to understand the

questions and able to give rational answers thereof, the evidence of

such a child witness can be considered. However, credibility of a

child witness would depend upon the circumstances of each case.

Once a court, after careful scrutiny of a child witness, comes to the

conclusion that there is an impress of truth in it, there is no

obstacle in the way of accepting the evidence of a child witness.

Merely because, the witness is a child his/her evidence cannot be

treated as unreliable. I have perused the testimony of PW2

prosecutrix, keeping in mind the above settled principles, I find her

to be trustworthy and reliable. Her statement in examination-in-

Crl. A. No. 530/2008                                  Page10 of 13
 chief    has     remained   unshaken   in   her   cross-examination.

Prosecutrix has clearly described the incident and identified the

appellant. Not only this, her testimony is duly corroborated by the

evidence of her mother. Besides this, the medical evidence also

lends support to the evidence of the prosecutrix, inasmuch as

injuries were noticed on the private parts of the prosecutrix.

15. Learned Amicus Curiae has next contended that PW1 is not

a trustworthy and reliable witness as her testimony is not in line

with the prosecution case. In her cross-examination PW1 has

deposed that after the incident prosecutrix changed her underwear

before she was brought to the hospital. However, as per the

prosecution, prosecutrix was wearing the same underwear which

she was wearing at the time of incident. The underwear was seized

in the hospital. Thus, it is contended that PW1 is not a reliable

witness. Other discrepancy as pointed out by the learned Amicus

Curiae is that while deposing in the court PW1 has stated that half

pant of the appellant was lying on the floor of the room and he was

trying to wear the nicker/half pant; while this fact was not

mentioned by her in the FIR, wherein she had stated that appellant

had slide down his underwear and pant. In my view, these

discrepancies are minor in nature and are not sufficient enough to

discredit the whole testimony of PW1. Statement of PW1 was

recorded in the Court after about eight months of the incident.

Due to lapse of the time, there are chances of fading of memory of

Crl. A. No. 530/2008 Page11 of 13 a person and in such eventuality some minor discrepancies are

bound to occur. In fact, such minor variations indicate that such

witness is a natural witness.

16. That apart, I do not find any reason as to why PW1 Sheetal

would have falsely implicated the appellant, who was her cousin.

No evidence has been led to show that there was any past enmity

between PW1 Sheetal and the appellant as well as with the

appellant‟s mother. In fact PW1 had come to Delhi and had been

staying at her aunt‟s house which itself indicates that they had

cordial relations. Defense set up by the appellant also does not

inspire any confidence. DW1 and DW2 had deposed that on the

date of incident at about 3:00 PM/4:00 PM they noticed appellant

and PW1 Sheetal quarreling with each other and the crowd, which

had gathered there, was saying that PW1 Sheetal was in love with

the appellant and she was threatening the appellant that he will

have to face dire consequences. No such suggestion was given to

PW1 in her cross-examination and this defense appears to have

been taken as an afterthought. That apart, statements of DW1

and DW2 clearly show that they were not having personal

knowledge about this fact as they had allegedly heard about it from

the crowd which had gathered outside the house of the appellant

on the fateful day. In fact, the statements of DW1 and DW2 goes

to show that this incident had taken place on the fateful day

between 3:00/4:00 PM. May be after finding that appellant had

Crl. A. No. 530/2008 Page12 of 13 raped her daughter, PW1 had raised alarm as a result whereof,

crowd gathered there. This plea, in fact, goes against the appellant

and supports the prosecution.

17. For the foregoing reasons, I am of the view that Trial Court

has rightly convicted the appellant under Section 376 IPC.

18. Section 376(2)(f) of the IPC provides that whoever commits

rape on a woman who is under twelve years of age shall be

punished with minimum sentence of not less than ten years.

However, proviso to Section 376(2) empowers a court to reduce the

sentence less than the minimum prescribed for adequate and

special reasons.

19. In this case, I do not find any adequate and special reasons

in favour of the appellant to reduce the sentence less than the

minimum prescribed. Keeping in mind the age of prosecutrix, the

sentence awarded by the Trial Court needs no interference.

20. For the foregoing reasons, Appeal is dismissed. A copy of

this order be sent to Superintendent Jail for serving it on the

appellant.

A.K. PATHAK, J.

NOVEMBER 9th, 2010
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Crl. A. No. 530/2008                                Page13 of 13