Delhi High Court

Dhan Bahadur @ Raju vs State Of Nct Of Delhi on 25 February, 2011

Author: A. K. Pathak

         IN THE HIGH COURT OF DELHI: NEW DELHI

+             CRL. APPEAL NO. 873/2009

%             Judgment decided on: 25th February, 2011

DHAN BAHADUR @ RAJU                              .....APPELLANT

                           Through:   Mr. S.K. Sethi, Adv.

                           Versus

STATE OF NCT OF DELHI                            ...RESPONDENT

                           Through:   Mr. Arvind Gupta, APP for
                                      the State.
                                AND

              CRL. APPEAL NO. 927/2009

DAAN BAHADUR                                     ..... APPELLANT
                           Through:   Mr. S.K. Sethi, Adv.

                           Versus

STATE OF NCT OF DELHI                           .,..RESPONDENT

                           Through:   Mr. Arvind Gupta, APP for
                                      the State.

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

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

       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. By the judgment dated 29th August, 2009, appellants have

been convicted under Section 376(2)(g) of the Indian Penal Code

(IPC) by the Trial Court. They have been sentenced to undergo

rigorous imprisonment for ten years with fine of `50,000/- and in

default of payment of fine to undergo simple imprisonment for two

years. It has been ordered that fine amount, if realized, be paid to

the parents of the girl for her rehabilitation. Benefit of Section

428 Cr.P.C. has also been given to the appellant.

2. It is this judgment which is under challenge in these

appeals. Both the appeals are being disposed of together as the

same arise out of the same incident and FIR.

3. FIR in this case was registered on the statement of mother

of the prosecutrix (hereinafter referred to as "complainant"). In

the FIR, complainant stated that Dhan Bahadur @ Raju was her

jeth (elder brother of her husband). On 20th November, 2007 at

about 12:30 pm, her jeth along with his friend Daan Bahadur

came to her house. They told complainant‟s husband that they

wanted to have food. Her husband went to market to buy

vegetables. Complainant went inside the kitchen for doing some

work. Her children were playing in the adjoining room. After

some time her son aged about 4 ½ years came out of the room.

Her daughter (prosecutrix) aged about 6 years remained in the

room. At about 2 pm, on hearing cries of her daughter, she

opened the door of room and saw her daughter lying naked on the

bed. Dhan Bahadur @ Raju was lying on her daughter and was

doing "galat kaam". Daan Bahadur had caught hold of her

daughter‟s hands. He had also gagged the mouth of her daughter.

On seeing her, both the appellants ran away. Her daughter was

bleeding per vagina and was not in a position to walk. In the

meantime, her husband came there. She narrated the incident to

him. Thereafter, they took the prosecutrix to the All India

Institute of Medical Sciences (AIIMS).

4. Prosecutrix was first taken to casualty department of AIIMS

where her MLC was prepared. Then she was referred to Senior

Resident Gynae, Dr. Bindya Gupta, who conducted her medical

examination vide Ex. PW8/A. Complainant informed the doctor

that the prosecutrix had been raped at about 2 pm by her „Tao‟

(her husband‟s brother). Doctor found that prosecutrix had not

attained menarche. On vaginal examination hymen was absent

and it was blood stained. Vaginal smear as well as underwear of

the prosecutrix was taken, sealed and handed over to the police

official by the doctor. Since prosecutrix was not able to

communicate properly, she was referred to Dr. Shyam Kumar,

Senior Resident, Department of ENT, AIIMS for examination.

Doctor found hearing of prosecutrix within the normal limits. He

has noticed in his report that prior to the incident also prosecutrix

was having history of decreased speech but was able to

communicate her basic needs. Oral cavity was found in normal

limits. He advised that due to lack of communication expert

opinion for neurological and psychological condition should be

sought. Accordingly, prosecutrix was referred to PW9 Ms. Anubha

Dhal, who was PHD Scholar at AIIMS. Ms. Anubha Dhal assessed

the social maturity of prosecutrix by using Vineland Social

Maturity Scale (VSMS). On the basis of her examination she

opined social age of the prosecutrix as three years and ten months

with social quotient in the range of 62 to 67 which was indicative

of "mild mental retardation".

5. During the investigation both the appellants were arrested

from the Bus Stand Sarai Kale Khan on 20th November, 2007 at

about 9:45 pm at the instance of complainant. Both the

appellants were medically examined at AIIMS. Doctor opined that

there was nothing to suggest that appellants were not competent

to perform sexual intercourse. No injuries were found on the

persons of appellants. Blood sample, under wear, pant and penial

swab of the appellants were taken, sealed and handed over to

Investigating Officer (IO). Case property was sent to Central

Forensic Science Laboratory (CFSL) and its report was obtained.

6. Statement of the prosecutrix was not recorded since she

was not in a position to communicate, inasmuch as, she was

found suffering from "mild mental retardation". Though,

prosecutrix was six years of age but on her examination, Ms.

Anubha Dhal found her social age equivalent to that of a child of

three years and ten months.

7. Complainant has been examined as PW1. Her husband

Raju has been examined as PW2. Dr. Shyam Kumar has been

examined as PW6. Dr. Bindya Gupta has been examined as PW8.

Ms. Anubha Dhal has been examined as PW9. All other witnesses

are formal in nature being police officials having been joined with

the investigation at one or the other stage.

8. After prosecution closed its evidence statements under

Section 313 Cr.P.C. of the appellants were recorded separately

wherein entire incriminating material which had come on record

was put to them. The case of the appellants is that of simple

denial. In their defence appellants examined their friends namely

Lal Bahadur and Dhan Raj as DW1 and DW2 respectively.

9. Trial Court meticulously examined the evidence adduced by

the parties and found the testimony of PW1 trustworthy, reliable,

credible and sufficient enough to conclude that appellant Daan

Bahadur had caught hold of prosecutrix while appellant Dhan

Bahadur had committed rape upon her. Trial Court was also of

the view that testimony of PW1 was duly corroborated from the

medical evidence, inasmuch as, hymen of the prosecutrix was

found torn with traces of blood. The discrepancies, as pointed by

the counsel for the appellants, have been brushed aside being

minor in nature. As regards absence of semen on vagina and

under garment of prosecutrix is concerned, Trial Court has

observed that it was not necessary that there should be

ejaculation or emission of semen for completing the offence of

rape. It was observed that simple penetration was sufficient to

constitute the offence of rape.

10. Arguments heard. Record perused. PW1 has deposed that

on 20th November, 2007 his jeth along with his friend came to her

house at about 12:30 pm. They told her that they would take

meal. Her husband went to market to buy vegetables. Her

daughter (prosecutrix) and son were playing inside the room. She

went in the kitchen for preparing food. After some time she heard

cries of her daughter. She asked her son to go to room so as to

find out what the matter was. Since her son did not listen to her,

she herself went inside the room. On opening the door of the

room, she found her daughter lying on the bed in naked

condition. Her jeth was lying upon her daughter and committing

rape. Friend of her jeth had caught hold of hands of her

daughter. On seeing her, both the accused ran away from there.

Blood was oozing from the private parts of her daughter. In the

meantime, her husband came there. She told him about the

incident. Thereafter, they took their daughter to AIIMS where

police also arrived and recorded their statements. She identified

her signatures on her statement Ex. PW1/A. It is this statement

which is the basis of FIR. She has correctly identified both the

accused in court. Her deposition in court is in line with her

earlier statement on the basis whereof, FIR had been registered.

Her this version given in examination-in-chief has remained

unshattered in spite of the fact that she had been cross examined

by the counsel for appellants at length. Her statement on

material points had remained unshaken. That apart, medical

evidence lends credence to her version. PW8 Dr. Bindya Gupta

has deposed that on 20th November, 2007 at about 5:20 pm she

medically examined the prosecutrix in Paediatric Casualty

Department. Mother of prosecutrix gave history that prosecutrix

was raped at 2 pm on 20th November, 2007 by her Tao. On

vaginal examination of prosecutrix, her hymen was absent and it

was blood stained. PW8 Dr. Bindya Gupta in her cross-

examination has rendered a positive opinion that prosecutrix was

sexually assaulted. Statement of PW8 duly corroborates the

version of PW1 that the prosecutrix was raped on the date of

incident. As per PW1, it is the appellant Dhan Bahadur @ Raju

who had raped her daughter while appellant Daan Bahadur had

caught hold of her hands. It is evident that there was fresh tear of

hymen which was blood stained when the doctor had examined

the prosecutrix. This itself shows that penetration was there. In

my view, Trial Court has rightly accepted the statement of PW1 to

convict the appellants for committing gang rape upon the

prosecutrix. PW1 has been categorical in making her statement

that appellant Daan Bahadur had caught hold of hands of her

daughter while Dhan Bahadur @ Raju had committed rape.

11. Learned counsel for the appellants has contended that

prosecutrix was not examined in court, inasmuch as, her

statement was not even recorded under Section 161 Cr.P.C. by the

Investigation Officer. Efforts were not made to record the

statement of prosecutrix under Section 164 Cr.P.C. by a

Magistrate. Non-examination of prosecutrix is fatal. It is the

prosecutrix alone who could have divulged as to how she

sustained injuries in her vagina more so, when Dr. Bindya Gupta

has admitted in her examination that such injury was possible by

blunt forceful trauma. I do not find any force in this contention

of learned counsel for the appellants. PW6 Dr. Shyam Kumar has

deposed that prosecutrix was unable to speak, therefore, she was

referred to him. On examination he found her hearing within the

normal limits. He also found oral cavity of the prosecutrix within

the normal limits. Since prosecutrix was not able to communicate

he referred her for expert opinion with regard to her neurological

and psychological condition. PW9 Ms. Anubha Dhal, who had

been pursuing her doctorate at AIIMS had examined the

prosecutrix to find her level of maturity. PW9 Ms. Anubha Dhal

has deposed that she had assessed social maturity level of the

prosecutrix by using VSMS. On examination of prosecutrix she

found her social age to be three years and ten months as against

her actual age of six years. Her social quotient ranged from 62 to

67 which indicated that prosecutrix had been suffering from „mild

mental retardation‟. From this evidence it is clear that prosecutrix

was not a normal child and was suffering from „mild mental

retardation‟ and was not in a position to communicate properly.

For this reason, non-examination of prosecutrix in court will not

be fatal in this case. Besides this, PW1 is an eye-witness to the

incident. She had herself seen accused Dhan Bahadur lying on

the top of prosecutrix while Daan Bahadur had caught her hands.

At that time prosecutrix was naked from below the waist.

Testimony of PW1 itself is sufficient to prove the culpability of

appellants even in absence of testimony of prosecutrix.

12. Learned counsel for the appellants has next contended that

there are inherent discrepancies in the prosecution case. PW1 has

given different timings with regards to the occurrence of incident

at different stages. PW1, while in court has deposed that incident

occurred at 2.00 PM, whereas as per her initial statement and

FIR, it occurred sometime after 12.30 pm. Furthermore, as per

MLC, prosecutrix was examined at 2.00 PM. I do not find merit in

this contention. Minor discrepancies are bound to creep in the

testimony of a witness and trivial variations make such witness a

natural one. As per the mental capabilities of human being, it

cannot be expected that witness will absorb all the details and

reproduce it in the testimony. In State v. Saravanan and Anr.

AIR 2009 SC 152, Supreme Court has held that while

appreciating the evidence of a witness, minor discrepancies on

trivial matters without affecting the core of the prosecution case,

ought not to prompt the court to reject evidence in its entirety.

13. Learned counsel for the appellants has next contended that

PW2, who is father of prosecutrix and husband of PW1, has

deposed that PW1 had not informed him that appellant Dhan

Bahadur had committed rape upon the prosecutrix. As against

this PW1 has stated in the FIR as well as in court that she had

narrated the incident to her husband and, thereafter, both of

them had taken the prosecutrix to AIIMS. I do not find any force

in this contention of learned counsel for the appellants. Appellant

Dhan Bahadur is real brother of PW2. Accordingly, there is every

probability of his resiling on this point in order to save his

brother. PW1 is mother of the prosecutrix. She had no enmity

with the appellants. There is no reason as to why she would

depose falsely to implicate her jeth and his friend more so, when

PW1 and PW2 had been residing together. It is not the case that

they were not maintaining good relations or in order to take

revenge or out of frustration PW1 had falsely implicated appellant

Dhan Bahadur @ Raju.

14. Learned counsel has next contended that no traces of

semen were found on the vaginal smear as well as on the under

garment of prosecutrix. The allegations of PW1 that Dhan

Bahadur had raped her had remained uncorroborated by

scientific evidence; this itself makes the statement of PW1 that

prosecutrix was raped, unreliable. I do not find any force in this

contention of learned counsel either. Explanation to section 375

IPC envisages that penetration is sufficient to constitute the

sexual intercourse necessary to the offence of rape. Even the

slightest penetration of the vulva by penis with or without

emission of semen is sufficient for the commission of offence

under Section 376 IPC. In the present case penetration is evident

from the MLC of the prosecutrix as hymen was found absent with

blood stains.

15. In State of U.P. v. Babul Nath (1994) 6 SCC 29

Supreme Court has held as under:-

"To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. But in the present case before us as noticed above there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her."

Thus, absence of semen on vaginal smear and

undergarment would not wipe out the commission of offence.

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

Court was right in convicting appellants under Section

376(2)(g) IPC. Accordingly, conviction of appellants is

maintained.

17. Learned counsel for the appellants has prayed for

leniency in sentence. He contends that appellant Daan

Bahadur is about 37 years of age; his wife and four children

are totally dependent upon him; he is a poor person.

Appellant Dhan Bahadur is aged about 43 years; having two

children; his daughter is of marriageable age; and his old