Ranjeet Malik vs State
2014 Latest Caselaw 2019 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment reserved on :17.04.2014.
                                Judgment delivered on :23.04.2014

+      CRL.A. No. 670/2002 & Crl. M.A. No.2787/2003
       RANJEET MALIK                                   ..... Appellant
                        Through    Appellant with his counsel Mr.
                                   K.B. Andley, Sr. Adv with Mr.
                                   M.L. Yadav, Adv.
                        versus
       STATE                                    ..... Respondent
                        Through    Mr. Navin K. Jha, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The appellant is aggrieved by the impugned judgment and order

of sentence dated 22.07.2002 & 31.07.2002 respectively wherein he has

been convicted for the offence under Section 376 of the IPC and has

been sentenced to undergo RI for a period of 10 years and to pay a fine

of Rs.40,000/- and in default of payment of fine to undergo SI for 1

year. Nominal roll of the appellant has been called. It shows that as on

the date when he had been granted bail, he had suffered incarceration for

5 years 8 months and 28 days.

2 At the outset, learned counsel for the appellant has prayed for

leniency in sentence and has submitted that in view of the proviso

contained in Section 376 of the IPC, if there are adequate and special

reasons, the Court can in its discretion reduce the sentence from the

minimum prescribed. It is pointed out that in this case the victim even as

per the radiological report was between 12-14 years; she was not 12

years of age and as such the minimum sentence even as per the Statute

would be 7 years; the appellant now being a married man and living

with his family, on a sympathetic consideration, he may not be ordered

to be re-incarcerated and be sentenced for a period of 5 years 8 months

and 28 days which he has already suffered.

3 Needles to state, this plea has been opposed by the learned public

prosecutor.

4 Before answering this argument, it would be relevant to note the

facts of the case.

5 Record reveals that the prosecutrix (PW-6) was studying in 6th

standard at the time when the incident had taken place; this was on

19.03.2000. The father of the victim had died; she had a mother who

was working as a beautician and she generally left the home at 09:30

AM. The victim and her mother were living on the first floor; the

accused was their landlord and living on the ground floor. On the date of

the incident, it was Saturday. At about 03:00 PM, he had invited the

victim to watch TV with him; his wife was not present with him; his two

year old daughter Aarti was present; as per the version of the

prosecution, the appellant had first fingered the private part of the victim

and thereupon, he committed rape upon her.

6 FIR was lodged on the statement of the mother of the prosecutrix

Ruchi examined as PW-7. It was lodged on the same day. Dr. Sangeeta,

(PW-1) had examined the victim on the following day i.e. 20.03.2000;

her hymen was found torn; however no external injury was noted. Her

vaginal smear and her underwear as also the underwear of the accused

had been seized and sent by SI Mukesh Kumar (PW-13) to the CFSL.

Apart from the underwear of the victim and the accused, the bed-sheet

and pyjama of the accused had also been seized by the Investigating

Officer vide memo Ex.PW-7/A. The CFSL report has been proved as

Ex.P-X. This report had opined human semen on the bed-sheet as also

on the pyjama of the accused; the underwear of the victim and the

accused also contained human semen. This report remained

unchallenged.

7 It was on the basis of the aforenoted evidence collected by the

prosecution that the accused was convicted and sentenced as aforenoted.

8 On behalf of the appellant, on merits, it has been argued that the

deposition of PW-6 is not in conformity with the version given in the

rukka; submission being that both in the rukka as also in the statement

of PW-6 on oath in Court, there is no evidence of penile penetration and

in the absence of which ingredients of the offence under Section 376 of

the IPC (unamended IPC) are not substantiated. It is pointed out that the

victim had only stated that the accused had fingered her vagina which at

best can be an offence under Section 354 of the IPC.

9 Arguments have been refuted. It is pointed out that on no count

does the impugned judgment call for any interference.

10 Testimony of PW-6, prosecutrix is the most relevant piece of

evidence. The victim was a student of Presentation Convent Sr. Sec.

School and was studying in the 6th standard at the time when she had

come into the witness box. This was in the year 2001. The incident is

dated 19.03.2000. The victim at that time as per her version under

Section 164 of the Cr.PC was still in the 6th class. Pushpender Kumar

(PW-11), the administrative representative of the Presentation Convent

Sr. Sec. School has produced the admission slip wherein her date of

birth is evidenced as 01.01.1989 meaning thereby that on the date of the

offence, she would be around 11 years and 10 months. However, this

date of birth of the victim was not proved on record; it was only an

admission slip which had been proved. Thus during the course of

investigation, the Investigating Officer had obtained the X-ray plates of

the victim which was examined by Dr. Rajnish Juneja (PW-10), the

Radiologist of Hindu Rao Hospital and as per his opinion the victim was

between 12-14 years of age; he had proved his report Ex.PW-10/A; X-

ray plates had been proved as Ex.PW-10/B to Ex.PW-10/E. This

evidence remained unrebutted.

11 Thus this evidence which is the ossification report of the victim

suggests that the victim was aged 12-14 years on the date of the incident

and giving margin of two years in favour of the accused, the prosecutrix

is held to be more than 12 years of age on the date of the incident.

12 The testimony of the victim otherwise remained unrebutted. Her

version on oath in Court (PW-6) is fully corroborative of the version

given by her mother (PW-7) in the rukka pursuant to which the present

FIR had been registered. PW-6 has on oath detailed and sequenced the

incident in the manner in which it had occurred; the same sequence finds

mention in the narration given by PW-7 which is a part of the rukka.

13 PW-6 has on oath stated that on the fateful day i.e. 19.03.2000,

she was living on the first floor along with her mother in house No. 42;

Ranjeet Malik who is their landlord and residing on the ground floor

being a Saturday had invited her to watch TV; PW-6 was alone at that

time; her mother being a beautician had gone to work; the appellant

came upstairs and asked her to watch a movie on the ground floor; she

went to the ground floor. His two year old daughter was present there;

her name is Aarti. Further testimony of PW-6 reads herein as under:-

"He made me lie down on the bed and started kissing me. He opened the button of my blouse. I was wearing skirt blouse at that time. Thereafter, he started pressing my breast. He removed my panty and put his finger in my vagina. Thereafter, he laid down on me. I fell plain (SIC) at the place of urinating and I do not know what he is inserting in my private part. Thereafter, he asked me to go inside and wash my vagina as well as panty. I washed my vagina but did not wash the panty. He asked me not to disclose this to my mother. He also offered me to give me Rs.10/- or Rs.20/- on each day on my not disclosing this to my mother. He gave me Rs.10/-. I left the money there and went to my house while weeping. My mother came back at 07:30 PM and I disclosed the entire incident to my mother. My mother took me to the police stn. My statement was recorded. My statement bears my signatures at point 'A'. My statement is Ex.PW-6/A. I was taken to the hospital for medical examination. My panty was taken by the doctor. I can identify my panty."

14 This version on oath in Court is verbatim with the version given

by the mother (PW-7) in the rukka. Submission of the learned counsel

for the appellant that it was only a fingering of the vagina of the victim

which would qualify as an offence under Section 354 of the IPC and

there being no penile penetration is an argument bereft of force. PW-6

categorically stated that she felt pain at the place of urination and she dis

not know what was being inserted in her private part. This was but

natural because of the trauma being suffered by a young girl of a tender

age years would obviously not know what exactly was happening with

her. PW-6 has also stated that she had washed her vagina but she did not

wash her panty.

15 In her lengthy cross-examination, she had stuck to her stand.

There was no suggestion given to her that she was deposing for any

ulterior purpose; even before this Court, this argument has not been

pressed.

16 PW-7 was the mother of PW-6. As noted supra, she had affirmed

the narration given by her daughter. She had reiterated that her daughter

was taken to Hindu Rao Hospital for medical examination and her panty

was taken into possession. The medical evidence which has been proved

in the testimony of PW-1 shows that the hymen of the victim was torn.

On a specific query put to the doctor, she had stated that she cannot say

as to what was the age of the tear of hymen as she does not have any

particulars about that; in her cross-examination, PW-1 had stated that

the victim was not cooperative for the vagina test as it was painful. She

has further stated that in case of intercourse for the first time with a girl

of the age of the victim by a fully grown person, she may or may not

sustain injuries on her private parts. The medical evidence fully

corroborates the version of the prosecution.

17 The scientific evidence which is the report of the CFSL further

advances the version of the prosecution. Not only was semen detected

on the underwear of the victim as also on the underwear of the accused

but also on the bed-sheet and pyjama of the accused.

18 The trial Court returning a finding of rape by the appellant on the

victim has been fully substantiated. In this background, the conviction of

the appellant calls for no interference.

19 However, on the question of sentence, the trial Court has

sentenced the appellant to undergo RI for a period of 10 years. The trial

Court has noted that the victim was between 12-14 years of age. The

minimum sentence prescribed for a victim of rape of 12 years is 10

years but where the victim is more than 12 years, the minimum sentence

prescribed is 7 years. The accused has undergone a sentence of 5 years 8

months and 28 days. He was present at the time of hearing of the appeal.

He has no doubt committed a heinous offence of rape and has destroyed

the trust which the victim had reposed upon him who was a father figure

who had called her to his ground portion to watch a movie being her

landlord and was almost the age of her father.

20 In this background, this Court while maintaining the conviction of

the appellant sentences him to undergo RI for 7 years. The fine of

Rs.40,000/- which has been imposed upon him by the trial Court has

since not been deposited. The sentence of fine remains unaltered; in

default of payment of fine, the appellant shall undergo SI for a period of

one year. The appellant is present in Court. He be taken into custody to

serve the remaining sentence.

21     Appeal disposed off in the above terms.



                                              INDERMEET KAUR, J
APRIL 23, 2014
A