Jagmohan @ Jagga vs State
2014 Latest Caselaw 2499 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : April 01, 2014
                               DECIDED ON : May 16, 2014

+                        CRL.A. 975/2011

       JAGMOHAN @ JAGGA                         ..... Appellant
                   Through : Ms.Rakhi Dubey with Mr.Anuj Pal,
                            Advocates.



       STATE                                         ..... Respondent
                         Through : Mr.M.N.Dudeja, APP for the State.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant-Jagmohan @ Jagga questions the legality and

correctness of a judgment dated 11.08.2010 in Sessions Case No.83/09

arising out of FIR No.112/09 registered at Police Station Khyala by which

he was convicted under Section 367/377/307 IPC. By an order dated

27.08.2010, he was sentenced to undergo RI for six years with fine

`20,000/- each under Sections 367/377 IPC; and RI for ten years with fine

`50,000/- under Section 307 IPC. The sentences were to operate

concurrently.

2. Briefly stated, the prosecution case, as reflected in the

charge-sheet, was that on 19.05.2009 at about 10:00 pm at Gali No.1,

Vishnu Garden, Delhi, the appellant kidnapped Chaman, aged 12 years,

and committed carnal intercourse behind the bushes situated on the road

leading towards Paschim Vihar. He also inflicted injuries to the victim in

an attempt to murder him. Daily Dairy (DD) No.4A (Ex.PW-8/A) was

recorded at Police Station Khayala at 12:15 (night) on getting information

about a quarrel at RZ-T-156, Vishnu Garden. The investigation was

assigned to SI Narayan Singh. At 12:40 (night) DD No.5A was recorded

to the effect that Chaman has been admitted in DDU hospital in an injured

condition. SI Narayan Singh went to the spot and came to know that the

injured had already been shifted to Safdarjung hospital from DDU

hospital. On 22.05.2009 after recording victim-Chaman's statement

(Ex.PW-5/A), FIR was lodged by sending rukka (Ex.PW-8/D).

Statements of witnesses conversant with the facts were recorded. The

appellant was arrested on 23.05.2009 and pursuant to his disclosure

statement (Ex.PW-4/B), clothes which he was wearing on the day of

incident were recovered. After completion of investigation, a charge-

sheet was filed against the appellant; he was duly charged and brought to

trial. The prosecution produced nine witnesses to substantiate the charges.

In 313 statement, the appellant pleaded false implication and denied his

complicity in the crime without examining any witness in defence. The

trial resulted in his conviction as aforesaid. Being aggrieved and

dissatisfied, the appellant has preferred the appeal.

3. The appellant's counsel urged that the trial court did not

appreciate the evidence in its true and proper perspective and fell into

grave error in relying upon the testimony of a child witness tutored by his

brother and relatives. The prosecution did not explain the undue delay in

lodging the FIR. Initially, the victim did not disclose commission of

offence under Section 367/377 IPC. Subsequently, he improved the

version at the instance of his family members and one Bijender with

whom the complainant had a quarrel few days before. No statement of the

child was recorded under Section 164 Cr.P.C. The appellant was

unknown to the victim and the Investigating Officer did not move any

application for holding Test Identification Proceedings. No injuries were

found on the body of the victim or of the appellant to infer commission of

offence under Section 377 IPC. Learned Additional Public Prosecutor

urged that the child witness has fully supported the prosecution and there

are no sound reasons to disbelieve him.

4. The occurrence in which the victim-Chaman sustained

injuries on head took place at about 10:00 pm. Chaman became

unconscious after sustaining injuries and from the spot went to his house

at about 12:00 (night). Soon thereafter, he was taken to Deen Dayal

Upadhyaya hospital and was medically examined by MLC (Ex.PW-6/A).

It records the arrival time of the patient at around 12:30 am with the

alleged history of 'physical assault'; the patient was conscious and

oriented. PW-6 (Dr. Dinesh Kumar) proved the MLC (Ex.PW-6/A). On

the basis of CT scan of head, he opined the nature of injuries as

'grievous'. Injury given by ENT doctor was 'simple' in nature. In the

cross-examination, he revealed that the patient was brought by HC Pratap

Singh. PW-7 (Mr.Navratan), victim's brother, deposed that when

Chaman reached home at 11.00 pm, he was in injured condition. He

informed the police at 100 and took him to DDU hospital where he

remained under treatment till discharge on 21.05.2009. PW-5 (Chaman)

in his statement (ExPW-5/A) given to the Investigating Officer on

22.05.2009 gave detailed account as to how and under what

circumstances, he was beaten by the appellant with fist and blows and

how he hit him by a stone on his head. While appearing as PW-5, in

Court statement, Chaman implicated Jagmohan @ Jagga for causing

injuries on his head by a stone. The appellant did not dispute the injuries

sustained by the victim in the cross-examination. The child victim was

not expected to fake the incident in which he suffered grievous injuries on

vital organ and let the real assailant to go scot free; to falsely name an

innocent one with whom he had no prior animosity. The appellant did not

give plausible explanation to the incriminating circumstances in 313

statement. He did not offer any reason as to how the quarrel had

originated prompting him to hit Chaman by a stone. He also did not give

reasonable explanation about his presence with the victims at the spot at

odd hours.

5. It is true that initially the child did not reveal commission of

unnatural offence by the appellant. PW-7 (Navratan) testified that after

discharge from the hospital on 21.05.2009, when they were on way back

to their house, Chaman told him that Jagmohan @ Jagga has committed

'wrong' act with him. He again contacted the police and disclosed about

the development. Chaman was again taken to hospital where he was

medically examined. PW-6 (Dr.Dinesh Kumar) has corroborated the

version and deposed that on 21.05.2009, the patient was brought by SI

Narain Singh and he was medically examined by him at 09.15 pm vide

MLC (Ex.PW-6/B). The patient had told him that sexual or anal sex was

done with him about two days back. In the statement (Ex.PW-5/A)

recorded on 22.05.2009, Chaman gave vivid description of the

circumstances in which he was allured to be taken from the spot by the

appellant to take food in a hotel. He described the occurrence in detail

and disclosed how and in what manner the appellant committed anal sex

with him. In his testimony as PW-5, he deposed that when he was playing

outside in the gali at about 10.00 pm, the accused who was a resident of

the same area i.e. next gali, offered him food at a hotel; took him to Nala

Paar, Paschim Vihar inside the bushes and he committed sodomy. When

he threatened to inform his parents, the accused picked up a stone and

caused injuries on his head. He admitted that when he returned to the

house, he did not tell about the incident of sodomy and informed his

brother about it after two days of the occurrence. In the cross-

examination, the witness stated that the place of incident was at a distance

of half an hour walk from his house. It was a secluded place and there

was no hotel nearby it. He denied the suggestion that sodomy was

committed by one Bijender and the appellant was falsely implicated due

to enmity with him. Scrutinizing the testimony of the child witness, it

reveals that despite lengthy and searching cross-examination, nothing

material could be extracted or elicited to disbelieve the version given by

the child. Nothing has come on record to show if the appellant had any

quarrel with Bijender any time; the particulars of the said quarrel have not

been disclosed in 313 statement. No such incident of quarrel was reported

to the police. The victim is not imagined to exonerate the real culprit and

to shift the blame upon the appellant with whom allegedly Bijender had a

quarrel few days prior to the incident. The child had not implicated the

appellant at the first instance for sodomy. It is true that there is delay of

two days in recording the statement of the victim. However, initially the

victim's statement could not be recorded as he was not able to speak due

to injuries caused on head. The victim being a child aged 12 years, was

reluctant to inform his family members about the sexual abuse at the

hands of the appellant. Only when he became normal (after two days of

the incident), he divulged the information to his brother. Delay has thus

been properly explained. It is settled in law that mere delay in lodging the

First Information Report cannot be regarded by itself as fatal to the case of

the prosecution. The explanation offered by the victim deserves

acceptance as in sexual assault cases, often the victim shows reluctance in

telling the wrong act to his close friends and relatives due to fear or

shame. The court has no valid reasons to disbelieve the child witness

who was asked number of questions to ascertain if he was able to give

rational answers and understood the sanctity of oath. After the court was

satisfied about the competence of the witness to make statement, it was

recorded without administering oath. The witness admitted in the cross-

examination that the statement recorded was on the asking of his brother

Navratan and his father and nothing was asked from him by the police at

that time. From this, it cannot be inferred that the statement before the

court was the result of any tutoring. Family members of the victim had no

ulterior consideration to tutor the statement for no apparent

motive/benefit. The evidence of the witness is to be evaluated as a

whole. Chaman had absolutely no reason to falsely implicate the

appellant. Injuries sustained by him confirm his presence at the spot.

Ocular testimony of the witness finds corroboration in FSL report

(Ex.PW-9/A) where human semen was found on victim's underwear

(Ex.2c)

6. It is not necessary that there should always be mark of

injuries on the penis in the case of a child victim being ravished by a

grown up person. There is no inflexible axiom of law which lays down

that the absence of injuries on the male organ of the accused would

always be fatal to the prosecution case. The absence of any injury on the

anal of the victim may not discredit the statement of the child. No adverse

inference can be drawn for failure on the part of Investigating Officer to

hold Test Identification Proceedings. The appellant was arrested at the

pointing out of the victim from his house as he lived nearby. In the

statement (Ex.PW-5/A), there is a specific mention that the appellant was

known to the victim and he was known by the name of Jagmohan @

Jagga. This acquaintance had led the victim to accompany the appellant

to get food in a hotel. Besides, the complainant identified the appellant in

the Court without any hesitation and it is the substantive evidence. Minor

contradictions, discrepancies and improvements highlighted by the

appellant's counsel do not shake the basic structure of the prosecution

case.

7. Regarding Section 307 IPC, in my view, the evidence

adduced by the prosecution did not attract its ingredients. There was no

past history of hostile relations between the parties. On the day of

incident, the victim had voluntarily accompanied the appellant to get food.

The appellant was not armed with any weapon. His only intention to take

the child at a secluded place was to sexually abuse him. Only when the

child threatened to disclose the appellant's wrong act to his parents, it

appears that in a rage he picked up a stone and hit it at the victim which

caused injuries on his head. The appellant did not cause multiple injuries

to the victim on vital organs in a repeat assault. The child was able to

travel a distance of about half an hour walk from the spot to his residence

alone at around 12.00 (night). When taken to DDU hospital, he was

conscious and oriented and was discharged on 21.05.2009. The injuries

sustained by him were 'grievous' in nature. Apparently, the injuries were

not caused with the avowed intention or knowledge to cause death of the

child. The offence committed by the appellant for causing injuries was

punishable under Section 325 IPC where he voluntarily caused 'grievous'

hurt by a blunt object. The conviction of the appellant under Section 307

IPC is accordingly altered to Section 325 IPC.

8. Since the conviction has been altered to Section 325 IPC, the

sentence order requires modification. Appellant's nominal roll dated

10.10.2013 reveals that he had suffered incarceration for about four years,

four months and fifteen days besides earning remission for eleven months

as on 07.10.2013. He is not a previous convict and is not involved in any

criminal case. He is a first time offender. Sentence order dated

27.08.2010 reveals that he was aged about 20-21 years on the day of

occurrence and was the sole bread winner of his family comprising of his

widow mother, handicapped sister and a brother suffering from

tuberculosis. Considering these mitigating circumstances, the sentence

order needs modification. The appellant shall undergo RI for six years

with fine `5,000/- each and failing to pay the fine to further undergo SI

for two months each under Sections 367/377 IPC; RI for five years with

fine `2,000/- and in default of non-payment, SI for one month under

Section 325 IPC. The substantive sentence shall run concurrently. The

appellant shall have benefit under Section 428 Cr.P.C. The petitioner

shall, however, pay compensation of `20,000/- to the complainant; deposit

it within fifteen days before the Trial Court; and it will be released to the

complainant/victim after due notice.

9. The appeal stands disposed of in the above terms. Trial

Court record be sent back forthwith along with the copy of this order.

(S.P.GARG) JUDGE May 16, 2014 sa