Jay Ram Singh vs State
2012 Latest Caselaw 4736 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        DECIDED ON : 13.08.2012

+                         CRL.A.326/2009

       Jay Ram Singh                                   ....Appellant
                  Through: Mr.Bhupesh Narula, Advocate for
                           the appellant along with appellant
                           in person.

                               versus

       State                                     ...Respondent

Through: Mr.Sanjay Lao, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE S.P.GARG

Sanjiv Khanna, J. (Open Court)

1. The appellant, Jay Ram Singh, has filed this appeal against his

conviction under Section 376 of the Indian Penal Code (IPC, for short) for

having committed rape of his daughter (hereinafter referred to as 'the

prosecutrix') aged about 6 years. By order or sentence dated 7th

November, 2005, he has been directed to undergo Life Imprisonment and

to pay a fine of Rs.2,000/- and in default of payment to undergo simple

imprisonment of 1 year.

2. The prosecutrix had appeared as PW2. She being a minor, aged

about 6 years, was questioned by the Learned Additional Sessions Judge

to ascertain whether she was tutored and was in a position to understand

and properly answer the questions put to her. In her statement, the

prosecutrix identified the appellant as her father and has stated as under:-

"My father is present in court today. He had taken off his own pant and my pant and has inserted his organ into my body. She points out towards her private part. I got lot of pain. My mother had gone for her work. It was done on the bed. The accused also threatened me that he would poison my mother and would cut my neck and blame someone else. My mother came after sometime. I told all the above mentioned facts to my mother. This had happened may days before now. My mother took me to P.S. where Ex.PW-1/A report was lodged by me and my mother. It bears my R.T.I at point „B‟. My statement was recorded before the Court. At this stage „Pyjami‟/pant is shown to the witness who identifies the same which was worn by her at the time of incident. The Pyjami is Ex.P-1. (At this stage a sealed envelope sealed with the seal of „BK‟ is opened and some papers are taken out. These papers bear my thumb impression at point „A‟ on both the pages. These are Ex.PW2/A.)"

3. The statement of the prosecutrix was also recorded under Section

164 of Code of Criminal Procedure (Cr.P.C.) before the PW10,

Mr.Rakesh, Metropolitan Magistrate on 21st February, 2004. The said

statement has been exhibited as Ex.PW2/A. The application for recording

of the statement was made on 13th February, 2004. The statement,

Ex.PW2/A, is similar and identical to the statement made by the

prosecutrix in the Court. There are no material contradictions in these two

statements of PW2. When cross-examined, PW2 has stated that she had

spoken and had narrated the truth and had not made the statement at the

instance of her mother.

4. The mother of the prosecutrix, Mrs.Rekha, had appeared as PW1.

In her statement, she had indicted the accused, inter-alia, stating, that she

had got married to the appellant about 7 years back. She was doing

domestic work in the Mayur Vihar Kothis. They had four children

including two daughters. The appellant was a drunkard and he also used

to play 'Satta'. On 7th February, 2004, she came back to Jhuggi after

doing domestic work in the Mayur Vihar Kothis at about 12.30 PM. She

had taken her youngest daughter, aged about 6 months, with her. When

she left for work, she had indicated that she would return by 2.00 PM. She

opened the door and found that her daughter-prosecutrix was crying. She

was not wearing the underwear and standing on a bench/Takhat. The

prosecutrix was nervous and told that the appellant-her father, would kill

her. PW1 has stated as under:-

"When I entered the room the accused was rubbing his penis with the vagina of my daughter. His semen was found on the „Pyjami‟of my daughter. My daughter told me that the accused had tried to put his penis in her mouth as well. She also told me that when she refused to take his penis in her mouth, the accused used to beat her. She also told me that when the accused threatened her that in case she told all these facts to me, he would give poison to me and would chop off her neck. The accused grappled with me and ran away. I waited for the accused for two days. The accused did not turn up and therefore, I sent a report and a complaint to the police. I had also signed the complaint which is Ex.PW-1/A. I had washed the „Pyjami‟of my daughter. My daughter was medically examined later on. She was also produced before the Magistrate where

her statement u/s 164 Cr.P.C. was recorded.

5. Statement of PW1 was also recorded under Section 164 Cr.P.C. and

in her statement recorded by PW10, which is exhibited as Ex.PW10/E,

PW1 had made an identical statement before PW10.

6. PW1 was cross-examined and had stated that she used to go to do

domestic work in the Mayur Vihar Kothis at 4.00 AM and used to come

back at 12.30 PM. The appellant was a rickshaw pullar. She was raped by

him and under compulsion she got married to him. She reiterated that

'Pajama' was washed by her and that she had not tutored the prosecutrix.

She had stated that there was no reason to falsely implicate the appellant.

Even in the statement under Section 164 Cr.P.C., PW1 had stated that she

had got married to the appellant under compulsion, after the appellant had

raped her. Learned counsel for the appellant submits that there is no proof

of this allegation. No complaint or FIR was filed. Even if we ignore this

allegation, there is no ground or reason to ignore or discount the other

allegations made against the appellant. They were married for about 7

years. Making the said allegation against her own husband involving her

own minor daughter aged 6 years, would have caused a lot of

embarrassment and stress. The statement made cannot be taken lightly or

without basis or substance.

7. The prosecutrix was examined by PW3, Dr.Meeta, SR Gaynae,

LBS Hospital, New Delhi on 9th February, 2004 at about 10.40 PM. The

MLC is exhibit Ex.PW3/A. As per MLC, the prosecutrix had suffered

sexual assault two days back and that there were similar episodes many

times in last five-six months. No injury marks visible but redness was

seen over the labia majora. Hymen was found torn.

8. Learned counsel for the appellant submitted that there was delay of

two days in recording of the FIR. Secondly, it is submitted that as per the

CSFL report (Ex.PW11/A) tests were inconclusive.

9. We do not find any merit in the said contentions. The statements of

the prosecutrix PW2 and her mother PW1 are clear and categorical. The

reasons for delay in filing the FIR can be explained as the allegations

were made against the father. The apprehension, embarrassment and

courage required by the daughter-PW2 and the mother-PW1 in the said

situation can be appreciated and understood. PW1 was working as

domestic help in the houses. Going to the police itself requires

deliberation and fortitude. The delay in this case in filing of the FIR

cannot be regarded as fatal and stands explained. Moreover, the allegation

against the appellant stands proved by the MLC on record.

10. In the cross-examination, it was put to PW1 that she had falsely

implicated the appellant-accused. However, no reasons for false

implication of the appellant by PW1 were given or put to the said witness.

It is not apparent why and for what reasons and cause PW1 would have

falsely implicated the appellant. PW1 had made a similar statement under

Section 164 before the Magistrate. The prosecutrix PW2 is equally

forthright, lucid and clear in her statements.

11. The appellant in his statement under Section 313 Cr.P.C. has

accepted the fact that he had got married to PW-1 Rekha about 7 years

back and had two sons and two daughters and that the prosecutrix was his

daughter. He had stated that PW-1 had come back at 10.30 AM and not at

12.00 Noon as she usually used to come, though she had stated that she

would come back at 2.00 PM. He has not denied the fact that the

prosecutrix was with him. He had stated that no crime was committed by

him and he was falsely implicated by PW1 in connivance with the police

and brother of the PW1, namely, Manoj who was involved in criminal

cases and was a person of bad character. The said explanation or

justification does not merit acceptance. There is no material or evidence

against Manoj. There is nothing on record to show that Manoj was a

person with bad antecedent. PW1 was not cross-examined on the said

aspect. No question viz Manoj was put to her. PW2 was also not asked

any question about Manoj and his antecedents. We do not see any reason

to disbelieve PW2 the prosecutrix-child witness, PW1 the mother, and the

MLC Ex. PW3/A. On the question of quantum of sentence also, no

ground for interference is made out.

12. We do not find any merit in this appeal. The appeal is dismissed

and the conviction and the sentence are sustained.

(SANJIV KHANNA) JUDGE

(S.P.GARG) JUDGE AUGUST 13, 2012 vk