Brahamdev Pandit vs State (Nct) Of Delhi
2013 Latest Caselaw 626 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 15th January, 2013
                                DECIDED ON : 8th February, 2013

+                         CRL.A. 5/2010

      BRAHAMDEV PANDIT                ....Appellant
             Through : Mr.Anish Dhingra, Advocate.

                                versus

      STATE (NCT) OF DELHI              ....Respondent
               Through : Mr.M.N.Dudeja, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant- Brahamdev Pandit impugns his conviction in

Sessions Case No.9/1/2008 arising out of FIR No.940/2006 registered

under Sections 363/376 IPC, PS Ashok Vihar by which he was convicted

for committing offences punishable under sections 363/376 IPC. The

appellant was sentenced to undergo RI for One year with fine `1,000/-

and in default of payment of fine he shall further undergo SI for 30 days

under Section 363 IPC. He was also sentenced to undergo RI for ten years

with fine `5,000/- and in default of payment of fine he shall further

undergo SI for six months under Section 376 IPC. Both the sentences

were directed to operate concurrently.

2. Allegations against the accused were that on 24.11.2006 at

about 02.00 P.M. from Central Park at J.J.Colony, Wazirpur, Delhi, he

kidnapped prosecutrix 'X' (assumed name) aged about 5 ½ years and

committed rape upon her. The prosecution examined eleven witnesses in

support of its case. In his 313 Cr.P.C. statement, the accused pleaded false

implication and stated that he was kept in illegal detention since

25.11.2006. He examined ASI Roshan Lal as defence witness. On

appreciating the evidence and considering the rival contentions of both the

parties, by the impugned judgment, the accused was convicted. Being

aggrieved, he has preferred the present appeal.

3. Counsel for the accused urged that the Trial Court did not

appreciate the evidence in its true and proper perspective. The prosecutrix

'X' was aged about 4/5 years and did not understand the facts. Her

statement under Section 164 Cr.P.C. was not recorded as she was

incapable to understand the questions put to her and give rationale

answers. Her testimony before the Court was wavering and she was

unable to disclose the incident. When leading questions were put to her in

examination-in-chief by the learned Prosecutor, she merely stated that the

accused had done 'wrong act' with her. Though hymen was found torn in

the MLC, it can happen for number of other reasons. In the MLC, it was

alleged that sexual assault was committed by an 'unknown person'. No

DNA test was conducted. Forensic Science Laboratory (FSL) report was

not exhibited in evidence. Learned APP while supporting the judgment

urged that it does not call for interference. The prosecutrix 'X' was

recovered from the custody of the accused after number of days. The

medical evidence corroborates the testimony of the prosecutrix and there

is no reason to disbelieve her.

4. I have considered the submissions of the parties and have

examined the record. PW-2 (Vipin Singh), X's father lodged missing

person report (Ex.PW-2/A) on 25.11.2006 stating that his daughter 'X'

was missing since 24.11.2006 from central park at J.J.Colony, Wazirpur,

Delhi where she had gone to play at 02.00 P.M. and did not return

thereafter. Case vide FIR No.940/2006 under Section 363 IPC was

registered and the police machinery came into motion. Efforts were made

to find out the whereabouts of the child but in vain. On 28.11.2006, PW-6

(Satinder Singh) went to police post Monak, PS Gharonda, Distt. Karnal,

Haryana at about 8 or 08.30 P.M. and informed the police that the

accused- Brahamdev Pandit was present with a girl aged about 5/6 years

in the room at his tube-well. PW-10 (ASI Ishwar Singh) informed Delhi

police. PW-6 (Satinder Singh) stapped in the witness box and deposed that

during the last days of November, 2006, the accused had brought a female

child aged about 5/6 years at his dera in the fields at about 12.00 noon.

The child was quite frightened and crying. The accused claimed himself

that he was uncle (chacha), of his labourer (Jamindar). When he made

enquiries from the child, she was unable to tell if he was her 'chacha' or

'mama'. On getting suspicion, he informed the police who came at 09.00

P.M. with the parents of the child and he handed over the custody of the

child vide memo Ex.PW-2/C. PW-2 (Vipin Singh), X's father also

deposed that prosecutrix 'X' was recovered on 29.11.2006 from Haryana

and her custody was taken vide memo Ex.PW-2/C. He had gone with the

police in a Maruti car and her daughter was found with the accused at the

police station. In his 313 Cr.P.C. statement, the accused did not deny this

circumstance. In the cross-examination, DW-1 (ASI Roshan Lal) from PS

Gharonda, Distt.Karnal, Haryana admitted that as per Daily Diary (DD)

No.22 dated 29.11.2006 (Ex.DW-1/A), the information was received from

Bittoo of village Gagsina that accused Brahamdev was present with a girl

aged about 6/7 years. From all the statements, it stands established that

'X' was recovered from the custody of the accused at a far away place in

the jurisdiction of PS Gharonda, Distt.Karnal, Haryana. The accused did

not explain as to how and under what circumstances, he took the innocent

child with him without seeking permission of her parents. He did not offer

any reason for taking her to such a far away place and not informing her

parents. The prosecutrix remained missing for about five days. During this

period, the accused did not bother to contact her parents and inform them

about her whereabouts. PW-2 (Vipin Singh) had lodged missing person

report and the police had flashed wireless message to find out the

whereabouts of the child.

5. It is true that statement of the prosecutrix was not recorded

under Section 164 Cr.P.C. as she was unable to understand the questions.

However, in her deposition as PW-4, she named the accused to have taken

her in a rickshaw on the pretext of taking her to a fair. She stated that the

accused made her to sleep with him and did 'wrong thing' with her.

Learned APP sought necessary clarifications from the child as to what

was 'wrong thing'. The prosecutrix ''X' disclosed that the accused had

removed her underwear and his pajama. She felt pain in her abdomen. The

child in the age of 4/ 5 years was unable to understand the nature of the

act (rape) and to divulge it in detail.

6. The testimony of PW-8 (Dr.Sadhna Gautam) is very crucial.

She examined the prosecutrix vide MLC Ex.PW-7/A. It records that the

prosecutrix was sexually assaulted by an unknown person after her

kidnapping about 5 or 6 days back. She noticed redness over the vulval

region and hymen torn with fresh tear. In the cross-examination, she

admitted that the injury on the vulval region was possible due to use of

hand or fall on hard surface. The accused, however, did not dare to say

that he was responsible for the injury by use of hand or she had sustained

injuries due to fall. The prosecutrix was recovered from the custody of the

accused and she remained with him for 4 or 5 days prior to her

kidnapping. Soon after her recovery, she was medically examined and her

hymen was found torn with fresh tear. Legitimate presumption/inference

can be drawn that she got the injuries on her vulval region and her hymen

was torn with fresh tear during her presence with the accused. It was for

the accused under Section 106 Evidence Act to explain as to how and

under what circumstances, the prosecutrix (a child) who was in his

custody sustained injuries on her private parts and how her hymen was

found torn with fresh tear. The prosecutrix and the accused were last seen

together. This circumstance categorically establishes that it was the

accused who was the perpetrator of the crime.

7. I have no reasons to disbelieve the testimony of the

prosecutrix and of her parents who had no ulterior motive to falsely

implicate the accused. The accused had no reason to take the child with

him. Only motive of the accused can be inferred is that he intended to

sexually assault the child and which he did. The conviction is based upon

fair appraisal of the evidence and no interference is called for.

8. The appellant has been sentenced to undergo RI for 10 years.

He committed rape with a child who was 5 ½ years old who did not know

its consequence. The Court can well understand the trauma of the child

who was taken out of the lawful custody of her parents in a remote place

for five days. Similar, was the anxiety of her parents who continued to

search her during this period. It is the minimum sentence which is to be

awarded under Section 376 (2)(f) IPC and no reduction is possible.

9. In the light of above discussion, conviction and sentence of

the appellant are maintained. The appeal is dismissed. The Trial Court

record be sent back forthwith.

(S.P.GARG) JUDGE FEBRUARY 08, 2013 tr