Babloo vs State (Nct Of Delhi)
2015 Latest Caselaw 1114 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                     DECIDED ON : FEBRUARY 06, 2015

+                           CRL.A. 390/2012

       BABLOO

                                                               ..... Appellant

                            Through : Ms.Saahila Lamba, Advocate

                                        (DHCLSC)

                            versus



       STATE (NCT OF DELHI)

                                                             ..... Respondent

                            Through : Mr.Navin K.Jha, APP.


CORAM:
HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

1. The instant appeal is directed against the judgment dated

04.05.2011 of learned Additional Sessions Judge-01 (North), Tis Hazari

Courts in Sessions Case No.56/2010 arising out of FIR No.325/2009

registered at Police Station Kotwali by which the appellant-Babloo was

held guilty for committing offence under Section 376 (2) (g) IPC. By an

order dated 11.05.2011, he was sentenced to undergo RI for ten years with

fine `10,000/-.

2. Facts and circumstances giving rise to the case, as stated in

the charge-sheet were that on 24.11.2009, the appellant and his associate

Chhotu administered poisonous substance to 'X' (assumed name), aged 14

years and thereafter sexually assaulted her for two days. Police machinery

swung into action when 'X' lodged complaint at 11:45 a.m. on 26.11.2009

against the appellant and his associate for committing rape on her person.

Both the accused persons were arrested and at their instance, clothes of

the prosecutrix which she was wearing at the time of incident were

recovered. 'X' was medically examined. Statements of witnesses

conversant with the facts were recorded and after completion of

investigation, a charge-sheet was filed against both of them for

committing offence under Sections 328/376 (2) (g) IPC. The prosecution

examined 13 witnesses to bring home the appellant's guilt. In the

statement recorded under Section 313 Cr.P.C. to afford him opportunity to

explain the incriminating circumstances, the appellant denied his

complicity in the crime and pleaded false implication. After considering

the evidence and rival contentions of the parties, the trial resulted in the

conviction of both Babloo and Chhotu. It is relevant to note that both of

them were acquitted of the offence under Section 328/34 IPC and the

State did not challenge their acquittal. It is unclear if co-convict Chhotu

has preferred any appeal to impugn the judgment.

3. Learned counsel for the appellant urged that the version

given by the prosecutrix is improbable and it is unbelievable that she was

continuously ravished for two days by the appellant and his associate. At

no stage, the prosecutrix raised alarm. The delay in lodging the FIR has

not been explained. No injuries were noticed on her body at the time of

her medical examination. Learned APP while supporting the judgment of

the trial court urged that there are no valid reasons to disbelieve the

prosecutrix who had no ulterior motive to falsely implicate the accused.

4. Appellant's conviction is primarily based on the sole

testimony of the prosecutrix 'X', aged 14 years; resident of Kanpur. Her

mother had expired when she was aged about five years and her father had

performed second marriage. Her step-mother had two kids and did not

provide love and affection to her. Finally, she was adopted by one Sabir

Hussain whose attitude towards her was also not good. That compelled

the minor and innocent child to travel alone in a train to stay with Sabir

Hussain's daughter living at Bhajanpura, Delhi. She had no money with

her when she alighted at Railway Station, Delhi and met the appellant

Babloo, a rickshaw puller, who allured her to take her to Bhajanpura. She

fell in his trap and sat on the rickshaw. On the pretext of taking her to

Bhajanpura, the appellant took her here and there and finally when it was

dark, he promised to take her to Bhajanpura the next day. During night,

she was administered some poisonous substance by him and his associate

Chhotu and she became unconscious. PW-3 ('X') elaborated in her

testimony that when she regained senses, she felt pain in stomach and

vagina; her salwar was smeared with blood. She was given new clothes

and was taken to a place near a water pool under the tree where she took

bath and changed her clothes. Next day, again, she was sexually assaulted

at night on the grass near the Patri by both Babloo and Chhotu. On the

third day, when the accused persons were taking her in the rickshaw, she

saw police officials and reported the incident. On her statement (Ex.PW-

3/A), FIR was lodged. She identified her wearing clothes (Ex.P-1). Ex.P-

2 (pant/jeans) was supplied by the accused persons after committing rape

for the first time. In the cross-examination, she disclosed that the train in

which she had travelled arrived at Delhi Railway Station in the evening.

She was unaware as to where at what particular place, her sister lived at

Bhajanpura. She fairly admitted that on the first day she did not complain

to anyone when she was taken from one place to another. She, however,

explained that when wrong act was done by the accused with her first

time, she had raised alarm. There was no shop or house where she was

kept.

5. The appellant did not opt to cross-examine the prosecutrix

and adopted the cross-examination conducted on behalf of co-convict

Chhotu. No material discrepancy or infirmity could be elicited in the

cross-examination to disbelieve the version narrated by the prosecutrix.

Her statement on material facts remained unchallenged and unrebutted.

She implicated both the appellant and Chhotu by name and identified

them in the court. She had no extraneous consideration to falsely rope in

the appellant with whom she was not acquainted before the incident and

had travelled from Kanpur in search of her sister. Finding the minor aged

about 14 years alone, the appellant and his associate took advantage and

on the pretext of taking her to Bhajanpura, sexually assaulted her. The

prosecutrix was found in the company of the appellant at the time of his

arrest. The appellant did not explain as to how and under what

circumstances, the prosecutrix who was a stranger remained in his

company.

6. 'X' statement has been corroborated by medical evidence.

PW-6 (Dr.Ravi Kanta) medically examined her on 26.11.2009 at 3.20

p.m. vide MLC (Ex.PW-6/A). The alleged history records that 'X' was

sexually assaulted by rickshaw pullers on 24 th and 25th November, 2009.

PW-9 (Dr.Sonia Agarwal) revealed that on examination her hymen was

found torn and she had fresh bleeding. Apparently, there is no conflict

between the ocular and medical evidence. As per FSL report (Ex.PW-

10/A) proved by PW-10 Dr. Manisha Upadhyay, blood was deducted on

exhibit 1 (i.e. jeans/pant), Ex.2p (blood collection of victim), Ex.5 (blood

sample); Ex.11b (one pyjama/(lower)) and 11d (one handkerchief).

Human semen was deducted on Exhibits 1 (jeans), 3a (Pyjama/(lower)),

6a (semen sample), 7 (one dirty pant) and 11b (one pyjama/(lower)).

Blood deducted on various exhibits was of human origin. Blood group on

exhibits 1 and 11b was of 'AB' group. Semen stains were of 'AB' group

on exhibits 1 and 11b. It was of 'A' group on Ex.7 (pant). The clothes

which the prosecutrix was wearing at the time of commission of crime at

first instance were recovered at the instance of the accused pursuant to his

disclosure statement. Jeans pant (Ex.1) is same which was given to the

prosecutrix to wear after rape on the first night. The accused has failed to

explain as to how and under what circumstances, blood and human semen

happened to be on these clothes. In 313 Cr.P.C. statement, the appellant

did not offer plausible explanation to the incriminating circumstances

proved against him except making the bald denial of the allegations. No

motive was assigned to the prosecutrix to make false statement against

them for the heinous crime. The trial court has considered all the relevant

materials and appreciated the rival contentions of the parties. The

impugned judgment is based upon fair appraisal of the evidence and needs

no interference.

7. In the light of above discussion, while maintaining the

conviction and sentence, the sentence order is modified to the extent that

the default sentence for non-payment of total fine of `10,000/- would be

SI for one month. Other terms and conditions of the sentence order are

left undisturbed.

8. The appeal stands disposed of in the above terms. Copy of

this order be sent to the concerned Jail Superintendent for information.

Trial court record be sent back along with a copy of this order.

(S.P.GARG) JUDGE FEBRUARY 06, 2015 sa