Hoshiyar Singh vs State
2015 Latest Caselaw 1139 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                 DECIDED ON : FEBRUARY 09, 2015


+                                CRL.A. 83/2012


       HOSHIYAR SINGH                            ..... Appellant
                    Through : Mr.Ajay Verma, Advocate with
                              Ms. Neha Singla, Advocate.


                           VERSUS


       STATE                                           ..... Respondent
                           Through : Ms.Kusum Dhalla, APP.

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


S.P.GARG, J. (ORAL)

1. This appeal has been preferred by the appellant-Hoshiyar

Singh to challenge the legality and correctness of a judgment dated

10.03.2011 of learned Additional Sessions Judge in Sessions Case

No.60/2010 arising out of FIR No.67/2010 under Sections 376/506 IPC

registered at Police Station Bhajanpur, Delhi by which he, victim's father,

was held guilty for committing offences punishable under Sections

376/506 IPC. By an order dated 15.03.2011, he was awarded RI for ten

years with fine `7,000/- under Section 376 IPC and RI for two years with

fine `3,000/- under Section 506 IPC. Both the substantive sentences were

to operate concurrently.

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

charge-sheet was that on 06.02.2010 at about 11:00 p.m. and thereafter

during night till 10.02.2010, at house No.401, gali No.20, Bhajanpura,

Delhi-53, the appellant sexually assaulted 'X' (assumed name), aged 14

years, her daughter, and criminally intimidated her. 'X' was a student of

9th standard in GGSSS No.2, B Block, Yamuna Vihar and her class

teacher was PW-1 (Smt.Sarita Sharma). 'X' and her two younger siblings

used to live with the appellant in the house after their mother had left to

stay at her parents' house about one year before the occurrence due to

quarrel with the appellant. 'X' did not attend classes from 6th February,

2010 to 10th February, 2010. On 11th February, 2010 when she went to

her school, she gathered courage and reported the incident of sexual

harassment by her father to her class teacher Smt.Sarita Sharma (PW-1).

PW-1 took her to the Principal PW-3 (Dr.Neeraj) and before whom also,

she gave the complaint in writing (Ex.PW-3/A) against her father.

Intimation was given to the police and maternal uncles of the prosecutrix.

The investigation was taken over by W/SI Anuradha (PW-12). She

recorded 'X's statement (Ex.PW-9/A) and lodged First Information

Report after making endorsement (Ex.PW-12/A). The prosecutrix was

medically examined. The accused was arrested and statements of the

relevant witnesses were recorded. After the completion of investigation, a

charge-sheet was submitted against the accused in the court. The

prosecution examined 14 witnesses to substantiate the appellant's guilt.

In his 313 statement, the appellant denied his involvement in the crime

and pleaded false implication. He did not examine any witness in

defence. The trial resulted in his conviction as aforesaid. Being

dissatisfied, the appellant has come in appeal.

3. During the course of arguments, learned counsel for the

appellant, Mr.Ajay Verma, Advocate fairly admitted that there were no

valid submissions to assail the findings in view of overwhelming evidence

against the appellant. He, however, pointed out that the police had not

recorded X's statement under Section 164 Cr.P.C. The appellant had

lodged complaint against the prosecurix's mother who had illicit relations

with Balbir Gujjar and with whom she had started residing after deserting

him and the children. He further urged that the prosecutrix lodged a false

case at the behest of her maternal uncles who intended to grab his

property. The prosecutrix has given a most improbable and unacceptable

version of events that the appellant continued to rape her for a number of

days in the presence of her brothers in the house. Learned APP urged that

there are no valid reasons to disbelieve the prosecutrix, appellant's own

daughter.

4. Admitted position is that 'X', the appellant's daughter lived

with him in the house even after her mother had left the matrimonial

home. 'X' disclosed that the appellant was in the habit of consuming

liquor which was not liked by her mother and that was the bone of

contention. Contrary to that, the appellant urged that 'X's mother was

having illicit relations with Balbir Gujjar and she used to meet him at the

matrimonial home which was disliked by him and that was the reason of

their separation. The appellant, however, did not examine any witness to

substantiate the allegations. Nothing has emerged if any action,

whatsoever, was taken by the appellant against Balbir Gujjar or his wife

for the alleged objectionable relations or he lodged any complaint to her

brothers or convened any meeting of respectables to expose her. It has

come on record that when intimation was conveyed to the maternal uncles

of the prosecutrix by the Principal of the school, they immediately

travelled to Delhi and were given the custody of the prosecutrix They had

no complaint, whatsoever, against the conduct and behaviour of their

sister who stayed with them. In the cross-examination, nothing was

suggested to them if appellant's wife had stayed any time with Balbir

Gujjar at a definite location. Similarly, the appellant did not produce on

record any document to show if he was the owner in-possession of any

particular immovable property which was being allegedly grabbed by his

wife and her brothers. Moreover, PW-9 ('X'), a child witness had no

concern with all these matters and was not expected to falsely rope in her

own father. The defence deserves outright rejection and cannot be

believed.

5. Appellant's conviction is primarily based upon the sole

testimony of 'X' who mustered courage to report the indecent behaviour

of her father to her class teacher PW-1 (Smt.Sarita Sharma) when she had

gone to school on 11th February, 2010. She was ravished by the appellant

from 6th February, 2010 to 10th February, 2010 and for obvious reasons

had not attended the school during that period. PW-1 (Smt.Sarita Sharma)

who had no prior animosity with the appellant, in certain terms disclosed

that on 11.02.2010 'X' had come to her weeping. When she inquired as to

why she was weeping, she informed that for the last 4/5 days, she was

being sexually harassed by her father. She took her to PW-3 (Dr.Neeraj)

who corroborated her version. She also questioned 'X' about the

complaint lodged by her. The prosecutrix reiterated her version and in

addition gave the complaint in writing (Ex.PW-3/A). Both PWs-1 and 3

who had performed their duties being well wishers of the student had no

extraneous consideration to make false statements.

6. PW-6 (Vijay Singh) and PW-7 (Jitender), X's maternal

uncles in village Shrikishan Nagar, District Alwar, Rajasthan, wasted no

time to reach Delhi after coming to know from PWs-1 and 3 about the

horrible incident. They had no grudge, whatsoever, against the

prosecutrix or her mother and took the custody of the child 'X'. Admitted

position is that at present the appellant's children are staying with them.

Nothing was suggested to them regarding the character of their sister in

cross-examination. PWs-6 and 7 were not expected to support the

prosecutrix's mother in case she had illicit relations with Balbir Gujjar, as

alleged. PW-9 ('X') proved the police version given at the first instance

without any variation. She implicated the appellant, her father, for sexual

assault. She gave detailed account as to how and under what

circumstances on 6th February, 2010 at about 11:00 p.m. when her

brothers were sleeping in the room, the appellant sexually ravished her for

the first time. She elaborated that on the next day also, the appellant

repeated the act. On the third day, though appellant attempted to establish

physical relations, she saved herself while sleeping with her brothers. On

the fourth day, again he succeeded in committing rape. On the fifth day

i.e.11th February, 2010, she reported the incident to her class-teacher. In

the cross-examination, she disclosed that the appellant was in the habit of

consuming liquor. She denied the suggestion that her father was not

present in the village from 6th February, 2010 to 15th February, 2010 and

had gone to his brother Mukhram's village for participation in election for

'Sarpanch'. She further denied that a false complaint was lodged by her at

behest of and on the instigation of her mother and maternal uncles who

wanted to grab his property. Despite, lengthy cross-examination, no vital

discrepancies or infirmities could be elicited in her statement. Material

facts stated by her in chief remained unchallenged and uncontroverted. No

ulterior motive was assigned to the child witness to falsely implicate him.

Implicit reliance can be placed on her testimony.

7. Statement of the prosecutrix is in consonance with medical

evidence. She was medically examined by PW-8 (Dr.Lipi Sharma) on

11.02.2010 vide MLC (Ex.PW-8/A). In the alleged history recorded

therein it is specifically mentioned that 'X' was raped by her father

Hoshiyar Singh since 6th February, 2010 every night; last time, she was

raped on 10th February, 2010 under force. On local examination, mild

swelling of Labia majora was noticed. Hymen was found torn. Nothing

was suggested to the doctor in cross-examination as to how and under

what circumstances 'X' had got swelling on her private part. Seemingly,

there is no conflict between the ocular and medical evidence.

8. Exhibits were sent for Forensic Science Laboratory for

examination. Biological examination report (Ex.PW-10/A) and

serological report (Ex.PW-10/B) further confirm the victim's version. As

per these reports, 'blood' was detected on the underwear. Semen stains

were also found on the underwear of both the prosecutrix and the

appellant. No explanation has been offered by the appellant in this regard.

9. In 313 statement, the appellant did not give plausible

explanation to the incriminating circumstances proved against him. He

took contradictory and inconsistent defence. He set up the plea of alibi

and claimed his presence at village Ismail Pur from 3rd February, 2010 to

11th February, 2010 when he had gone there in connection with the

election of his brother for the post of 'Sarpanch'. Earlier in the cross-

examination, suggestion was put by the appellant to PW-9 ('X') that he

was away to his brother's village from 6th February, 2010 to 15th February,

2010. He did not produce any evidence in this regard to show his

presence in the said village during the relevant period. So much so, he did

not examine his brother if he had called him to assist him in the election.

There is no substance in the appellant's contention that the prosecutrix

was under influence of her mother and has falsely implicated him. It has

come on record that 'X' was not in touch with her mother and had not

visited her during her stay in the house with the appellant. On 11.02.2010

in usual course, the prosecutrix had gone to attend her classes in school

dress. However, she was unable to bear the burden and opted to take her

class teacher into confidence to unearth the appellant's guilt.

10. The impugned order is based upon fair appreciation of the

evidence of the relevant witnesses and needs no interference. Since the

appellant is the perpetrator of the crime; being father, he deserves no

leniency. Sentence order dated 15.03.2011 requires modification

regarding default sentence only. While maintaining the conviction and

sentence, the sentence order is modified to the extent that default sentence

for non-payment of total fine of `10,000/- shall be Simple Imprisonment

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

undisturbed.

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

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

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

order.

(S.P.GARG) JUDGE

FEBRUARY 09, 2015 sa