Deepak vs The State (N.C.T.Of Delhi)
2013 Latest Caselaw 647 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 15th January , 2013
                               DECIDED ON : 11th February, 2013

+             CRL.A.No.848/2010 & Crl.M.B.No.1005/2010

        DEEPAK                                      ..... Appellant
                         Through: Thakur Virender Pratap Singh
                                   with Ms.Shushra, Mr.R.P.S.Tomer,
                                   Mr.Pushpender Charak and
                                   Mr.Raj Kumar, Advocates.

                         Versus

        THE STATE (N.C.T.OF DELHI)             ..... Respondent
                       Through: Mr.M.N.Dudeja, APP for the State.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant-Deepak impugns his conviction and sentence

under Section 376/506 IPC in Sessions Case No.914/2006 arising out of

FIR No.659/2006 registered at Police Station Saraswati Vihar by which he

was sentenced to undergo rigorous imprisonment for seven years with

fine.

2. Allegations against the accused were that in the month of

January/February 2006 at House No.T-246/3, Railway Colony, Shakur

Basi, Delhi, he committed rape upon 'X' (assumed name) and threatened

to kill her. The prosecution examined 17 witnesses. Statement of the

accused was recorded under Section 313 Cr.P.C. and he pleaded false

implication. He stated that 'X' was having love affair with one Narender

who lived in the vicinity and when he objected to that, 'X' and her

mother falsely implicated him in this case. On appreciating the evidence

and considering the contentions of the parties, the Trial Court, by the

impugned judgment, convicted and sentenced the appellant. Being

aggrieved, the appellant has preferred the appeal.

3. Counsel for the accused challenged the impugned judgment

and urged that the Trial Court did not appreciate the evidence in its true

and proper perspective. The appellant who was in custody throughout the

trial was not given an opportunity to cross-examine material witnesess 'X'

and her mother PW-8 (Manju Devi) on the ground that they were not

traceable. Application moved by the accused to cross-examine them

under Section 311 Cr.P.C. was dismissed. The Trial Court did not

examine inordinate delay of about five months in lodging the First

Information Report with the police. Adverse inference is to be drawn

against the prosecution for withholding Pooja (prosecutrix's sister) who

was a material witness. The prosecution further failed to examine

Narender with whom 'X' had love affairs. No DNA test was conducted.

It is not clear if the pregnancy was terminated or not. The prosecution did

not establish the exact place of the occurrence. Statement of the

prosecutrix has not been corroborated.

4. Learned Additional Public Prosecutor while supporting

the judgment urged that it does not call for interference. Sole testimony of

the prosecutrix 'X' who is a reliable witness needs no corroboration. The

accused was the step-father of the prosecutrix and took advantage of the

situation when prosecutrix's mother had gone to Faridabad and committed

rape upon her. Due to threats extended by the accused, the prosecutrix

did not reveal the heinous act to her mother. Pooja was a child, and for

that reason she was not examined.

5. I have considered the submissions of the parties and

examined the record. The prosecutrix 'X' claimed that her mother (Manju

Devi) married the accused after the death of her previous father and that

all were residing together in the house. PW-8 (Manju Devi) also testified

that after her husband Raj Kishan Gupta expired about eight years back,

she married with the accused. She was having three children from her

previous husband and prosecutrix 'X' was one of them. The accused in

his statement under Section 313 Cr.P.C. denied marriage with PW-8. He,

however, admitted that he was residing for the last eight years with her in

her house. He did not explain under what capacity he resided with PW-8

(Manju Devi) and her children. It seems that deliberately the appellant

intends to conceal to the factum of marriage with Manju Devi.

6. It is true that there is delay of more than five months in

reporting the incident. The delay has been explained. The prosecutrix has

stated that she did not inform her mother about the incident due to threats

extended by the accused. The explanation seems plausible as the

prosecutrix 'X' was a child aged about 15 years on the day of occurrence

and was studying in Class IX. The appellant was her step-father. The

prosecutrix due to threats and fear did not come open and suppressed the

incident without knowing its consequences. When on 13.06.2006 she fell

ill and was taken to a doctor, it surfaced that she was having a pregnancy

of five and a half months. Only then, the things came out and she

revealed that the pregnancy was due to sexual intercourse done by the

appellant with her against her wishes. The prosecutrix and her mother

Manju Devi had no reasons to falsely blame the appellant for the heinous

act and to absolve Narender.

7. In her statement (Ex.Pw-7/A) made to the police at the first

instance on 13.06.2006 'X' gave detailed account as to how and under

what circumstances the accused committed rape upon her. Her statement

under Section 164 Cr.P.C. was recorded on 24.06.2006 and she implicated

the accused for ravishing her. In her statement before the court, she

proved the version given to the police and Metropolitan Magistrate

without any variation. She deposed that when her mother and brother had

gone to Faridabad, at about 06:00 A.M. she was sleeping with her sister

Pooja in the house. The accused started molesting her and committed

rape on her. He threatened her not to disclose the incident to anyone

otherwise he would kill her. Out of fear, she did not say anything to

anyone. After five months, she fell ill and at that time told the entire

incident to her mother. PW-8 (Smt.Manju Devi) corroborated her version

in its entirety. Opportunity was given to the accused to cross-examine

both the witnesses. Despite seeking repeated pass overs, the accused

failed to ensure the presence of his lawyer. The accused was given the

opportunity to cross-examine the witness but he did not avail it.

Subsequently, application under Section 311 Cr.P.C. was moved to recall

the witnesses for cross-examination. Efforts were made to trace both

these witnesses but they were not traceable. It was stated that 'X' was

married to someone and was not residing at the given address. The

testimony of both PWs 7 and 8 remained unchallenged.

8. Both 'X' and Manju Devei had no ulterior motive to falsely

implicate the accused. The accused could not produce any cogent

evidence that he was falsely implicated as Manju Devi wanted to grab his

property at Faridabad which was purchased by him in her name. No

complaint was lodged if any quarrel had taken place between the appellant

and Smt.Manju Devi over the property at Faridabad. Moreover, to grab

the property, the mother is not imagined to make her own daughter

scapegoat and allow her to become pregnant. The defence put by the

accused deserves outright rejection. There is no substance that the

prosecutrix had love affairs with Narender who resided in the same

locality. The accused did not allege if at any time he had objected to the

said relationship, if any, or that had lodged any complaint with the police

or to the parents of Narender. He was even not aware that the prosecutrix

was pregnant. The prosecution was under no legal duty to examine

Narender and produce him during trial as a witness. It was the accused

who had claimed that the prosecutrix was having love affairs with

Narender and he could have produced him or other witnesses to prove his

defence. The prosecution was expected to examine Pooja and produce her

in the court. However, it is stated that she being child was not examined.

Non-examination of Pooja is not fatal to the prosecution case as there is

ample evidence on record to establish the guilt of the accused. It makes

no difference that the site plan where the occurrence took place was not

ascertained. The occurrence took place in the house where the accused

resided. It makes no difference if it took place at a particular place in the

house.

9. There is no conflict between the ocular and medical

evidence. MLC (Ex.PW10/B) records the alleged history whereby the

prosecutrix was sexually assaulted by her step-father. Age of the

prosecutrix recorded therein is 16 years. PW-11 ( Dr.Gaurav Pradhan)

proved the ultrasound reort (Ex.PW-11/A) which showed that the duration

of pregnancy was 24 weeks, plus minus two months. PW-12 (Sunita

Gupta) proved school record where the date of birth of the prosecutrix was

recorded as 12.05.1991 to infer that she was aged about 15 years on the

date of occurrence.

10. Considering all the facts and circumstances, I am of the

opinion that the conviction of the appellant has been recorded on fair

appraisal of the evidence and is affirmed.

11. Order on sentence requires no modification as the offence

committed by the accused with her step-daughter is heinous. The

appellant violated the honour and dignity of the child aged about 15 years

who was unaware about the consequences of the act. Moreover, the

appellant has already undergone the whole or substantive part of the

sentence as is apparent from the perusal of the nominal roll on record.

12. In the light of the above discussion, the appeal lacks merit

and is dismissed. The conviction and sentence of the appellant under

Section 376/506 IPC are maintained.

13. Crl.M.B.No.1005/2010 stands disposed of being infructuous.

14. Trial court record be sent back forthwith.

(S.P.GARG) JUDGE February 11, 2013 sa