Shankar Lal vs State
2010 Latest Caselaw 5249 Del

$~ R-1B
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+          CRL.A. 686/1999
                                          Decided on 19th November, 2010

SHANKAR LAL                                       ..... Appellant
                      Through: Mr. Tarun Verma, Amicus Curiae.

                                 versus

STATE                                                   ..... Respondent
                         Through:       Mr. Manoj Ohri, APP with SI
                                        Shekhar, PS Civil Lines, Delhi.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                      Not Necessary

2. To be referred to Reporter or not?                   Not Necessary

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

MUKTA GUPTA, J. (ORAL)

By this Appeal the Appellant lays a challenge to the impugned

judgment of conviction and sentence passed by learned Additional

Sessions Judge whereby he has been convicted for an offence under

Section 376 IPC and directed to undergo the sentence of rigorous

imprisonment for a period of 7 years.

As per the prosecution case on 22nd March, 1993 an information

was received at PS Civil Lines at 11:05 P.M. that daughter of Ram

Prasad, aged nine years has been raped by Shanker Lal, upon which SI

B.R. Kaushik along with Constable Lal Singh went to the spot. Since the

Prosecutrix had already been removed to the hospital, the investigating

officer PW10 SI B.R. Kaushik reached civil hospital where he was

informed that the girl has been sent to Hindu Rao Hospital as no

Gynecologist was available in the civil hospital. PW10 obtained the

MLC of the girl from the civil hospital and Hindu Rao Hospital. On the

prosecutrix being declared fit her statement was recorded by him being

Exhibit PW1/A on which a ruqqa was sent to the Police Station for

registration of the FIR. In her statement the prosecutrix stated that she

was residing in the Jhuggi and at about 8.30 P.M. when she had gone to

urinate out of her house near the hill (pahari) her neighbor Shankar Lal

came there, picked her up and made her lie on a big stone on the hill and

committed rape on her. She cried and on hearing her cries another

neighbour Chander, came there who took her out from underneath the

Appellant. Blood was coming out from her private parts, police was

called and she was taken to the hospital. The prosecutrix as per the

radiological examination duly proved by PW7 vide his report exhibit

PW7/A was aged between 7 to 9 years. The prosecutrix was first taken

to the civil hospital where her MLC Ex PW6/B was prepared by Dr.

Rajesh Gupta PW6 who found minor injuries below the right lower eye

lid and also blood through her gentiles. As the condition of the

prosecutrix was serious she was referred to Hindu Rao Hospital where

she was examined and it was found that besides the hymen being torn,

there was a second degree vaginal tear on the posterior vaginal wall of

right side about 1½ inch long which was stitched and under general

anesthesia stitches were given to her. After registration of FIR the

accused was arrested from his Jhuggi on the same night and was

medically examined vide MLC Ex. PW6/A. The statement of the

prosecutrix was recorded under Section 164 Cr.P.C. by the learned

Magistrate who was examined as PW11. In her statement before PW11

the prosecutrix reiterated the version which she had narrated in her

statement to the police on the basis of which the FIR was registered. On

completion of investigation, the charge-sheet was filed. After the

recording of the prosecution witnesses, statement of accused under

Section 313 Cr.P.C. and the defence witnesses, the learned ASJ passed

the impugned judgment.

Learned amicus curiae challenging the judgment has contended that

there are contradictions in the testimony of the prosecutrix. She has

stated that she shrieked and shouted whereas in her cross examination she

says that she did not shout/shrieked when the accused picked her up.

Despite the fact that the prosecutrix was laid on a stone no injury on her

back is seen or recorded by PW6 who prepared her MLC Ex. PW6/B.

Since the prosecutrix has stated that her clothes were not seized in

the hospital, the CFSL report is suspected. PW2 Chander who is stated

to be the person who brought prosecutrix back from the hill has turned

hostile and has not supported the prosecution case. Further, the FIR was

lodged belatedly, as the incident allegedly took place at about 8.30 P.M

on 22nd March, 1993 whereas the time of sending the ruqqa as recorded

on the endorsement on the statement recorded of the prosecutrix Ex.

PW1/A reads as 1.20 A.M. on 23rd March, 1993. PW5 constable Lal

Singh who had accompanied the IO PW10 SI B.R. Kaushik, has

categorically stated that the IO did not record his statement and that he

does not even know from where the accused was arrested. Contradiction

has also emerged in the condition of the prosecutrix. It is stated that the

condition of the prosecutrix was serious and she was administered general

anesthesia despite that her statement was recorded at 1.00 AM. It is

argued that PW6 Dr. Rajesh Gupta who allegedly examined the

prosecutrix at the civil hospital in his testimony has stated that the injuries

to the prosecutrix could be possible by the insertion of penis or finger or

by pushing something in the vaginal. It is stated that this corroborates the

Appellant‟s defence that he was falsely implicated. The Appellant had

built a jhuggi near the jhuggi of the prosecutrix, which was objected to by

her father and due to this enmity the appellant has been falsely implicated.

PW8 Dr. Urmil Ghai has stated that the discharge slip marked „X‟ is not

in the handwriting and under the signatures of Dr. Sudha Shikha Patnaik

and she cannot say whose signatures are there at encircled point „A‟ on

mark „X‟. PW9 Dr. Tripta Yadav who has proved the OPD card Exhibit

PW9/A and the photocopy of the report of examination in the operation

theatre under general anesthesia as exhibit PW9/B is not the author of the

document and hence she could not have exhibited and proved the said

document in the absence of Dr. Sudha Shikha Patnaik being examined as

witness. The FSL report does not connect the Appellant with the crime as

no blood was detected on the underwear of the accused. Moreover, no

semen was detected either on the vaginal swab or on the frock of the

prosecutrix. The most crucial witness i.e., the mother of the prosecutrix

has not been examined. The Appellant was arrested from his house and it

is highly unnatural conduct on the part of the Appellant that he would

continue to be in his Jhuggi after committing such an offence. As the

prosecution has not been able to prove its case beyond reasonable doubt,

the Appellant is entitled to be acquitted of the charge framed against him.

Learned APP for the State on the other hand contends that the

prosecutrix was a child of tender age of 7 to 9 years which has been

proved as per the opinion Ex. PW7/A, of the radiologist. The testimony of

the prosecutrix proves the prosecution case beyond reasonable doubt

against the Appellant and the conviction can be based solely on her

testimony. FIR was lodged on the statement of the prosecutrix and

thereafter her statement was also recorded by learned Metropolitan

Magistrate under Section 164 Cr.P.C., who has been examined as PW11.

The prosecutrix in her testimony has stated the same facts as she has

stated in her statement under Section 164 Cr. P.C. and the FIR. Despite

lengthy cross examination nothing has been elicited in her cross-

examination which would point towards the appellant being an innocent

who is implicated falsely. The so called contradictions which are sought

to be pointed out are inconsequential and in fact when put in a sequence

they explain exactly what had happened. Reliance is placed on Santosh

Kumar Vs. State of M.P., 2006 (10) SCC 595 to contend that the evidence

of hostile witness cannot be treated as efaced from the record and part of

his evidence which corroborates other evidence can be considered. Thus,

the testimony of PW2 Chander, the neighbor who had rescued the

prosecutrix from the clutches of the Appellant though has turned hostile

however, even part of his testimony where he states that there was blood

on the thighs of the prosecutrix can be used to corroborate the testimony

of prosecutrix.

As regards the contention of delay in lodging the FIR it is stated by

the learned APP that this contention of the appellant is wholly

misconceived as the same was lodged immediately after the incident. The

incident took place at around 8.30 P.M. and after that a call was made to

the police station. The PCR took her to the civil hospital where she was

examined by PW6 Dr. Rajesh Gupta who prepared her MLC Exhibit

PW6/B at 11.50 P.M. However, since there was no gynecologist

available in the hospital and her condition was serious she was referred to

Hindu Rao Hospital. It is at this stage that before general anesthesia was

administered to her at about 1.00 A.M on the intervening night of 22/23rd

March, 1993 her statement was recorded and ruqqa was sent to the Police

Station. In the ruqqa itself the Appellant is named by the prosecutrix.

The next contention advanced by the learned APP is that the MLC

of the prosecutrix shows hymen torn and bleeding private parts. As per

the time recorded in the MLC the patient was examined at 11.50 P.M.

The history of assault was nearly three hours back thus corroborating the

time when the incidence took place. Though PW8 Dr. Urmil Ghai could

not identify the handwriting and signatures of the Doctor who prepared

the discharge slip however, Dr. Tripta Yadav PW9 has proved the

photocopy of the OPD card and report of examination in the operation

theatre Exhibit PW9/A and Exhibit PW9/B. The contention of learned

counsel for the Appellant as regards the absence of semen on the vaginal

swab is meritless as there is no requirement of discharge and presence of

semen in the vagina or clothes. Reliance is placed on Aman Kumar Vs.

State of Haryana 2004 (4) SCC 379. It is further contended that as per

exhibit PW6/A the MLC of the appellant shows absence of smegma

which indicates that he had sexual intercourse within the last 24 hours. It

is prayed that there is no merit in the appeal and the same deserves to be

dismissed.

This is a case where sexual intercourse has been committed on a

child of tender age of 7 to 9 years. The age of the prosecutrix has been

proved by radiological examination conducted on her by PW7 Dr. C.P.

Sharma. The testimony of PW1 the prosecutrix is cogent, convincing,

unblemished and needs no corroboration. The Appellant has been named

even in the first PCR call received at the Police Station recorded vide DD

No.22A, Ex. PW10/A. Immediately thereafter the statement of the

prosecutrix has been recorded based on which the FIR has been

registered. In her statement to the police prosecutrix has named the

Appellant as her assailant. Not only the statement to police but even in

her statement recorded under Section 164 Cr.P.C. by the learned

Metropolitan Magistrate PW11 she has stated the same facts. In her

testimony before the Court also the appellant has been named and

identified. The testimony of the prosecutrix itself proves the offence

committed by the appellant beyond reasonable doubt.

I do not find any merit in the contentions raised by the learned

counsel for the Appellant which are stated to discredit the testimony of

the prosecutrix. The Prosecutrix has stated in her testimony that she

shrieked and shouted while the appellant was committing the act. In her

cross examination she has stated that she did not shriek or raise alarm

when she was picked up as the appellant had put a cloth on her mouth and

muffled it. The contention of the learned counsel for the Appellant that

despite the fact that she was made to lie on the stone there is no injury on

the back is ill-merited as it is not necessary that when a person is layed on

the stone she is bound to have injuries on her back. The MLC of the

appellant Exhibit PW6/A shows injuries on the neck of the appellant

which as per PW6 were of recent duration. The frock of the prosecutrix

was seized when she was taken to the hospital and operated under general

anesthesia. At that stage she could not know about its seizure by the

doctor. Though PW2 has turned hostile however he has stated that soon

after the incident he saw blood on the thighs of the prosecutrix and this

version of PW2 also corroborates the testimony of PW1. The medical

evidence further corroborates the testimony of the prosecutrix. At this

stage, it would be appropriate to reproduce the observation of the doctor:

"As per record, on examination under GA vagina was found torn, there was 2% vaginal tear on posterior vaginal wall extended upto right side 1 1/2" long. Vagina was explored and vaginal tear was sutured in layer. Two slides of smear were prepared from vaginal swab. Frock of the prosecutrix was also sealed. The patient was given one unit of blood."

I see no merit in the contention raised by the learned counsel for

the Appellant that since Dr. Sudha Sikha Patnaik has not been examined

the medical evidence cannot be looked into. Undoubtedly since PW8 Dr.

Urmil Ghai has not identified the handwriting in the discharge slip the

same cannot be looked into. However photocopy of the OPD card and

the report of examination under general anesthesia has been duly proved

by Dr. Tripta Lal PW9 who has been examined and has identified the

signatures of Dr. Patnaik. Moreover, this witness has stated that she

herself had also examined the prosecutrix on that date.

Presence or non presence of the semen on the vaginal slides or the

cloth of the prosecutrix is not essential for determination of commission

of an offence of rape. The act of penetration is sufficient to constitute the

commission of offence punishable under Section 376 IPC and in the

instant case penetration has been proved by the medical examination of

the prosecutrix.

I also do not find any merit in the contention that the accused being

found in his Jhuggi after the incident is a conduct indicative that he had

not committed rape. Each individual reacts in a different manner in

similar circumstances. The prosecution rightly did not examine the

mother as a witness as she was not an eye witness to the incident and

came to know about the incident only from the prosecutirix.

I find no infirmity in the judgment convicting the appellant for the

offence punishable under section 376 IPC. On the point of sentence for

an offence under Section 376 (2) (f) in case of rape on a woman when she

is under 12 years of age the minimum sentence prescribed is 10 years

which may extend to life and fine. For adequate and special reasons to be

stated in the judgment the Court can impose a sentence of imprisonment

for either description for a term less than 10 years. In the case at hand it

has been proved that the prosecutrix was below the age of 12 years,

however, the appellant has been awarded a sentence of Rigorous

Imprisonment for seven years by the learned Trial Court. Not only no

special reasons have been recorded in the judgment for awarding a

sentence of less than 10 years it is recorded that the accused deserves no

leniency. However, no Appeal has been filed by the State for

enhancement of the sentence. At this stage i.e. after 17 ½ years of the

incident and 11 years after the date of pronouncement of judgment it

would not be in the interest of justice if this court now issues a show

cause notice for enhancement of sentence to the appellant. Thus, the

sentence awarded by the learned trial court to undergo RI for a period of

7 years is maintained.

Accordingly the appeal is dismissed.

MUKTA GUPTA, J.

NOVEMBER 19, 2010 vn