Sajjan Lal vs State
2013 Latest Caselaw 622 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                Judgment Reserved on :05.02.2013
                                Judgment Delivered on: 08.02.2013

+      Crl. A.162/2000

       SAJJAN LAL                                  ...Appellant
                           Through:   Ms. Charu Verma, Adv. with
                                      appellant in person.

                                 Versus
       STATE                                    ...Respondent
                           Through:   Mr. Manoj Ohri, APP.
                                      ASI Devendar Singh, Narcotics
                                      Cell.
                                      SI Somil Sharma, PS Gokal Puri,
                                      Delhi.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1. The sole accused had been convicted for the offence under

Section 376 read with Sections 365 & 342 of the Indian Penal Code

(IPC). He had been sentenced to undergo rigorous imprisonment for

seven years and to pay a fine of Rs.500/-; in default of payment of fine

to further undergo rigorous imprisonment for two months for the offence

under Section 376 of the IPC. For the offence under Section 365 of the

IPC, he had been sentenced to undergo rigorous imprisonment for three

years and to pay a fine of Rs.500/- and for the offence under Section 342

of the IPC, he had been sentenced to undergo rigorous imprisonment for

six months.

2. The version as set up by the prosecution is that on 31.03.1998 one

'M' (name undisclosed) at about 12 noon (aged about 13 years) was

attending to her household chores along with her mother. Accused

Sajjan Lal who was residing in their neighbourhood reached there. 'M'

enquired from him whether he had a newspaper to which he replied that

he would ascertain the same from Ashok. 'M' accompanied accused

Sajjan to the house of Ashok where as soon as she reached there accused

Ashok closed the door of the room and committed rape upon her. The

co-accused Sajjan Lal also raped her. The act was repeated. While doing

so, her mouth was gagged. Blood was also oozing out from her private

part; she reached home. On inquiry by her mother, the incident was

revealed to her. Matter was then reported to the police and the

aforenoted FIR was registered.

3. Upon investigation, chargesheet was filed. Co-accused Ashok was

found to be a juvenile and was tried under the Juvenile Justice Act

before the Juvenile Court. Charge under Sections 376/365/342/34 of the

IPC was framed against the accused.

4. 'M' being the star witness of the prosecution was examined as

PW-4. She has reiterated her version as set up by the prosecution. On

oath she has deposed that accused Sajjan had taken her to the house of

accused Ashok and after striping her clothes, he committed rape upon

her along with the co-accused Ashok; she started bleeding from her

private parts; her underwear was taken into possession. In her cross-

examination, she has stated that accused Sajjan was known to her two

months prior to the date of the incident and his house was also known to

her. She has admitted that although she cannot read a newspaper but the

newspaper was needed by her to spread it in the almirahas; she denied

the suggestion that accused persons had not committed rape upon her.

5. The statement of her mother was recorded as PW-5. She was the

complainant; her version is also that accused Sajjan was known to them

being in their neighbourhood i.e. in the house opposite to their house

and he often used to purchase goods from them on credit. She denied the

suggestion that accused has been falsely implicated.

6. The rukka Ex. PW-7/A was prepared and the FIR Ex. PW-7/B

was registered on the same day. Medical examination of PW-4 was

conducted by Dr. Preeti Bhardwaj PW-2 on 01.05.1989. The hymen

was found torn and bruised but no bleeding was present at the time of

examination. No sign of external injury was noted. PW-3 Dr. V.K. Jain

had medically examined the accused; he had reported that there was

nothing to suggest that accused was incompetent to have sex.

7. On behalf of the appellant it has been argued that the MLC has

named only Ashok and name of Sajjan does not appear in the MLC; the

incident had occurred at 12.00 Noon when admittedly the prosecutrix

used to be in school between 7.00 AM to 1.00 PM. There is no report of

the CFSL; the age of the victim has also not been verified. Submission

is that the appellant has been falsely implicated for the reason that

money was owed by the appellant to the mother of the prosecutrix and

they having had an altercation some time ago on this point the accused

has been falsely embroiled and to substantiate this submission attention

has been drawn to cross-examination of PW-2 and PW-4 where

suggestion to this effect had been given by the learned defence counsel.

8. Arguments have been countered.

9. The star witness of the prosecution is PW-4. She was aged 12

years on the date of her deposition and under Section 118 of the Indian

Evidence Act there is no bar on the age of the deposition of the witness;

the only condition being that the witness must be able to understand the

import of what she so states on oath. PW-4 has specifically stated that

at about 12.00 Noon on the fateful day when she was sitting at their

shop the accused Sajjan came to the shop and on her enquiry as to

whether he had a newspaper he took her to the house of Ashok where

she was raped by both Ashok and the appellant. She was bleeding from

her private parts; she came back home where her mother noticed her

weeping and a police complaint was lodged. The record shows that

Rukka was taken at 6.00 PM on the same day and the FIR was

registered thereafter. The statement of the prosecutirix under Section

164 of the Cr.P.C. Ex. PW1/A was also got recorded on the following

day i.e. 01.4.1998 wherein the same role i.e. that the accused Sajjan Lal

and Ashok Kumar had committed rape upon her person had been

attributed. This was after a specific inquiry made by the learned

Magistrate (PW1) that the witness was capable of understanding the

questions put to her and she was in a fit state of mind to give the said

statement. This version of PW-4 (Ex.PW1/A) was reaffirmed by her

deposition on oath. Although a suggestion has been given to the witness

that there were some money dealing of the accused Sajjan Lal with the

mother of PW-4 but the same had been vehemently denied. She has

stated that she had come home from school early as she had not paid the

fee for which her teacher had sent her home; this version was also

corroborated by PW-5

10. The mother of the prosecutrix Ram Murty was examined as

PW-5. She had four children. She had deposed that on the fateful day

at about 12.00 Noon she saw her daughter was crying; she appeared

frightened; there was blood on her legs. On inquiry, a complaint was

lodged with the police. Version of PW-5 matches and corroborates the

version of PW-4. She had also denied the suggestion that because of

an altercation with Sajjan 10-12 days prior to the incident he was falsely

framed in this case.

11. The MLC Ex.PW-2/A reflects the history of rape by two boys one

of whom was identified as Ashok Kumar. Hymen was bruised at 4'O

clock position and torn at 5'O clock position. Bleeding was also noted.

Merely because there was no external injury would not detract from the

veracity of the MLC which is a valuable medical evidence affirming the

fact that the hymen of the victim was torn. Bleeding was also noticed;

history charts also refer to the incident where the name of co-accused

Ashok has specifically been mentioned. The history chart details a rape

committed upon the victim by two persons.

12. Prosecution in view of this ocular testimony of PW4 corroborated

by the version of her mother as also the medical evidence has been able

to establish its case to the hilt. There was no reason for the accused

persons to have been falsely implicated. The conviction calls for no

interference.

13. Section 376 of the IPC prescribes a minimum punishment for rape

which shall not be less than seven years but may extend for life or to 10

years and the convict shall also be liable to pay fine. The victim, even as

per the case of the prosecution, is between 13 to 14 years of age. The

sentence inflicted upon the accused is the minimum sentence. It calls for

no interference.

14. This Court has been informed that the convict has already

undergone some part of his sentence as an under trial. Benefit of Section

428 of the Cr.P.C. be granted to him.

15. The appeal being devoid of any merit is accordingly dismissed.

FEBRUARY 08, 2013                       INDERMEET KAUR, J.
A/nandan/rb