Delhi High Court
Chand vs State Nct Of Delhi on 15 December, 2015
Author: Indermeet Kaur
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on :10.12.2015.
Judgment delivered on :15.12.2015
+ CRL.A. 869/2013
CHAND
..... Appellant
Through Mr. Ankur Sood and Mr.
Shoumendu Mukherjee,
Advocates
versus
STATE NCT OF DELHI
..... Respondent
Through Ms. Kusum Dhalla, APP for the
State
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 This appeal is directed against the impugned judgment and order
on sentence dated 28.07.2012 and 31.07.2012 respectively wherein the
appellant stands convicted under Sections 366/376 of the IPC. The
maximum sentence awarded to him is RI 7 years. He also has to pay a
fine of Rs.7,000/- and in default of payment of fine to undergo SI for 3
months.
2 Nominal roll of the appellant has been requisitioned. It reflects
that as on date, he has undergone incarceration of 5- ½ years which
includes the remissions earned by him.
3 The version of the prosecution is that on 29.04.2011, a complaint
was received from one Ramanand which was to the effect that his
daughter 'AJ' aged 14 years was missing since 3 PM. She had not
returned home. FIR was initially registered under Section 363/366 of the
IPC. In the course of investigation, it was suspected that appellant
Chand had taken the prosecutrix to Jhajhar, Haryana. The victim had
stayed in the house of the appellant at Panipat from where they were
recovered. Her bony age was determined by the doctor on 12.05.2011
who had opined her age to be between 16-17 years. On 07.05.2011, the
statement of the victim under Section 164 of the Cr.PC was recorded.
She was sent to Nirmal Chaya.
4 The prosecution in support of its case has examined as many as
15 witnesses. The star witness of the prosecution was the prosecutrix
herself examined as PW-5. She had deposed that on the fateful day
when she was going to her mausi's house, the appellant who was her
neighbor had met her. She stopped for five minutes as she thought that
there was no harm in stopping. He thereafter forcibly put her in the car;
she tried to raise alarm; he threatened that her parents would be killed;
he wanted to marry her. She refused. Accused took her in a house and
committed rape upon her against her wishes. Thereafter he took her in
another house and kept her for 2 days. After 2-3 days, the police came
and apprehended him. Her statement under Section 164 of the Cr.PC
was recorded. She was subjected to a lengthy cross-examination. She
admitted that she is an illiterate and had never gone to the school. She
admitted that the accused started residing in a house adjacent to her
house since the last 2-3 weeks and she had no friendly terms with him.
On the fateful day, the accused pulled her into the car against her
wishes. She reiterated that she was kept in the house for two days and
the accused had committed forceful act of rape upon her against her
wishes. She denied the suggestion that she wanted to marry the
appellant.
5 The father of the victim Ramanand Jha was examined as PW-6.
He has reiterated on oath that on 28.04.2011, he had lodged a missing
report of his daughter. His daughter was aged 14 years and she has
returned home since 03:00 pm. After 7 days her daughter was recovered
by the police. In his cross-examination, he admitted that appellant was
residing opposite their house since the last 15 days. In another part of his
deposition, he admitted that his daughter was recovered after 2 days.
6 The mother of the victim Smt. Prabha was examined as PW-7.
She had accompanied her daughter when the bony age of the victim was
recorded. The bony age of the victim given by Dr. L.R.Richhele (PW-7)
who had opined her age between 16 to 17 years and the Trial Judge
noting the bony age of the victim and giving a benefit of two years had
held the victim to be an adult. This finding has not been challenged.
7 Noting the above background, learned counsel for the appellant
has argued that since the victim was admittedly an adult and she had
accompanied and stayed with the appellant for two days on her own
consent, this is a clear case where the appellant has been falsely
implicated.
8 Learned counsel for the State has refuted these submissions.
9 Record shows that the appellant and the victim were known to
each other since the last 2-3 weeks. This has come in the version of
PW-5 as also her father (PW-6). It is not the case where the victim was
well known to the appellant and she was friendly or even well
acquainted with him. She in her statement recorded under Section 164 of
the Cr.PC which has been corroborated by her version on oath stated
that the appellant had met her on her way to her mausi's house and had
asked her to stop. She stopped for five minutes. She thought that there
was no harm in it. Thereafter the appellant forcibly took her into the car
and had committed the unholy act of rape upon her against her wishes.
The victim was admittedly an illiterate girl. She had been taken to
Panipat where the incident had occurred. This place was admittedly at a
long distance and away from her house and as such the submission of
the learned counsel for the appellant that the victim did not try to run
from the clutches of the appellant is of little force. A young girl in her
teens, who was admittedly an illiterate would have no knowledge of the
topography of a foreign place; she was admittedly taken out station at
Panipat and her having knowledge of how to return back would have
been almost impossible. Thus the submission of the learned counsel for
the State that she was forced to stay with the appellant against her
wishes in this intervening period is a submission which carries weight.
10 Although the medical evidence is not supportive of the version of
the prosecution yet the testimony of the witness qualifies as one of
sterling quality. Her testimony is cogent and coherent. There was no
reason for her to have falsely implicated the accused. Her forceful stay
at Panipat with the appellant was not out of consent; it was a forcible
and coercive act of the appellant upon the victim. By no stretch of
imagination, can it be termed as a 'consent'. The testimony of the victim
although uncorroborated fulfills the parameters of clarity and cogency.
The judgment relied upon by the learned counsel for the appellant
reported as 2012 (131) DRJ 3 (SC) Rai Sandeep @ Deepu Vs. State of
NCT of Delhi does not apply to the factual matrix of the instant case.
The conviction of the appellant does not call for any interference. The
appellant has already been granted the minimum sentence i.e. RI 7 years
for the offence for which he has been convicted.
11 Appeal is without any merit. Dismissed.
INDERMEET KAUR, J
DECEMBER 15, 2015
A
