Delhi High Court
State vs Janardhan Gupta on 21 November, 2014
Author: Pradeep Nandrajog
$~10 & 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: November 21, 2014
+ CRL.A. 1072/2014
JNARDHAN GUPTA ..... Appellant
Represented by: Mr.M.L.Yadav, Advocate
versus
STATE ..... Respondent
Represented by: Ms.Aashaa Tiwari, APP
SI Vijay Singh, PS Alipur and W/SI
Santosh Kumari, Security Unit
CRL.A. 1420/2014
STATE ..... Appellant
Represented by: Ms.Aashaa Tiwari, APP
SI Vijay Singh, PS Alipur and W/SI
Santosh Kumari, Security Unit
versus
JNARDHAN GUPTA ..... Respondent
Represented by: Mr.M.L.Yadav, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J. (Oral)
1. Crl.A.No.1420/2014 has been filed by the State, on leave to appeal
being granted against the judgment dated May 22, 2014, convicting
Janardhan Gupta for the offence of having attempted to rape the prosecutrix
who was aged around 14 years as on June 11, 2012, and for which offence
he has been sentenced to undergo rigorous imprisonment for 5 years as per
order on sentence dated May 30, 2014 and pay fine in sum of Rs.5,000/-.
Janardhan Gupta challenges his conviction vide Crl.A.No.1072/2014, and
thus both appeals are being heard together. It is the case of the State that the
evidence establishes the prosecutrix being raped.
2. At the forefront has to be the question whether Janardhan Gupta's
involvement with the victim has been proved as alleged by the prosecutrix
and her sister : Sangeeta PW-1.
3. Sangeeta is the wife of Janardhan Gupta.
4. Concerning the medical examination of the prosecutrix, the MLC
Ex.PW-6/A proved by Dr.Swapnil Patil, but authored by Dr.Silky Jagoria, a
senior gynaecologist at SRHC Hospital shows that the prosecutrix was not
well oriented when brought to the hospital at 9:15 PM on June 11, 2012 and
she did not allow her internal examination. Since at the said hospital facility
for medical examination under anaesthesia was not available, the prosecutrix
was referred to BSA Hospital for medical examination under anaesthesia.
At said hospital the prosecutrix was examined at 6:00 AM the next day i.e.
June 12, 2012 by Dr.Abhilasha who wrote the MLC Ex.PW-17/A recording
therein that there was no visible external injury on the prosecutrix, whose
hymen was intact. She prepared a vaginal swab of the prosecutrix, in
respect whereof we find that as per the FSL Report no semen could be
detected. The FSL Report dated May 05, 2014 is lying as an unexhibited
document in the Trial Court Record. We further note that on the clothes of
the prosecutrix which were seized and were sent to the FSL Laboratory for
examination, the report records neither blood nor semen being detected.
5. Sangeeta PW-1 has deposed that Janardhan Gupta was her husband
and was working as a worker in a private factory. The prosecutrix who was
mentally deficient was brought by her to Delhi. She i.e. Sangeeta was in the
family way. Even she i.e. Sangeeta started working in a factory. On the day
of the incident after she returned to her house at 4:30 PM and switched on
the television she suddenly noted her husband lying nude on top of the
prosecutrix whose underwear was pulled down the legs and the frock was
raised on the upper part of the body. She hit her husband in anger and also
slapped the prosecutrix. She ran out crying to call her friend Sapna and
when she returned the accused ran away. She rang up the police control
room and her statement Ex.PW-1/A was recorded by the police.
6. We have perused the cross examination of PW-1 and do not find
anything brought out to discredit the testimony of PW-1. We see no reason
as to why she would falsely implicate her husband.
7. The prosecutrix has been examined as PW-10 and we find that she has
only said that the accused did a wrong thing with her (galat kaam kiya).
8. Dr.Rajiv Ranjan PW-3, Dr.Jitender Singh PW-4 and Dr.Sanjay
Kumar PW-5 were the members of a medical board who examined the
prosecutrix and found her to be around 14 years of age with a mental
disability.
9. There is incriminating evidence in the form of absconsion against
Janardhan Gupta, who ran away from his house and was apprehended on
July 06, 2012.
10. From the testimony of PW-1 and the prosecutrix, keeping in view the
two MLCs of the prosecutrix it cannot be said that the view taken by the
learned Trial Judge that the greater probability was that as Janardhan Gupta
prepared to rape the prosecutrix his wife entered the room resulting in
Janardhan Gupta being caught at the stage of the attempt to rape the
prosecutrix i.e. while doing the act which was the immediate preceding act
before the act of rape would have been committed is a wrong view. From
the fact that the underwear of the prosecutrix was not fully removed and it
was positioned just at the feet of the prosecutrix when the prosecutrix's
sister caught her husband, the reasonable probably inference would be that
Janardhan Gupta was just about in the position to insert his male organ in
the private parts of the unfortunate victim, but could not do so because his
wife intervened.
11. Concurring with the view taken by the learned Trial Judge that the
evidence on record establishes that Janardhan Gupta attempted to rape his
sister-in-law, we dismiss Crl.A.No.1072/2014 filed by Janardhan Gupta as
also Crl.A.No.1420/2014 filed by the State.
12. TCR be returned.
Crl.M.B.No.10227/2014 in Crl.A.No.1072/2014
Since arguments in the appeal and the connected appeal have been
heard, instant application seeking suspension of sentence is dismissed as
infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
NOVEMBER 21, 2014
mamta
