Santosh vs State
2015 Latest Caselaw 1341 Del

$-25
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                               DECIDED ON : 13th FEBRUARY, 2015

+                   CRL.A. 632/2012

      SANTOSH                                           ..... Appellant
                         Through :    Mr.M.L.Yadav, Advocate.


                         VERSUS

      STATE                                       ..... Respondent

                         Through :    Ms.Kusum Dhalla, APP with
                                      SHO Dabri Mahender Kr.Mishra
                                      and SI Benkatesh, P.S.Dabri


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

S.P.Garg, J. (Open Court)

1. Present appeal has been preferred by the appellant - Santosh

to challenge the legality and propriety of a judgment dated 06.08.2011 of

learned Additional Sessions Judge in Sessions Case No.16/10 arising out

of FIR No.223/09 PS Dabri by which he was held guilty for committing

offences punishable under Sections 342/366/376 IPC. By an order dated

19.08.2011, he was sentenced to undergo RI for ten years with fine `

10,000/- under Section 376 IPC; RI for seven years with fine ` 5,000/-

under Section 366 IPC and RI for one year under Section 342 IPC. All the

sentences were to operate concurrently.

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

sheet was that on 11.07.2009 at about 04.00 P.M., the appellant kidnapped

prosecutrix 'X' (assumed name) aged about 11 ½ years and sexually

assaulted her after confining in his house. The incident was reported to the

police on 17.07.2009. First Information Report was lodged after recording

victim's statement; she was medically examined. The accused was

arrested. Statements of the witnesses conversant with the facts were

recorded. Exhibits were sent to Forensic Science Laboratory for

examination. After necessary investigation, a charge-sheet was submitted

in the Court. The prosecution examined fifteen witnesses to bring home

the appellant's guilt. In 313 statement, the appellant denied his

involvement in the crime and pleaded false implication. The trial resulted

in his conviction as aforesaid. Being aggrieved and dissatisfied, the

appellant has filed the instant appeal.

3. Learned counsel for the appellant urged that the appellant

was falsely implicated due to a previous enmity with the prosecutrix'

father. Inordinate delay in lodging the First Information Report has

remained unexplained. Various discrepancies and contradictions in the

statements of the prosecution witnesses make it unsafe to base conviction.

Learned Addl. Public Prosecutor urged that the prosecutrix has attributed

specific role to implicate the appellant and her statement without major

infirmities cannot be disbelieved.

4. Admitted position is that the accused is the prosecutrix'

'Mausa' and lives in the vicinity. It is also not denied that he and

prosecutrix' father were engaged in the same business. 'X' was sexually

assaulted on 11.07.2009 at around 04.00 P.M. by the appellant in his

house after he enticed her there on the pretext to count sticks used in the

business. PW-4 (Manju), prosecutrix' mother on return from her job in the

evening at around 06.00 P.M., noticed blood on X' salwar. When she

enquired from 'X' about that, she divulged the incident to her. She took

her to Gandhi Nursing Home where she was medically examined and

treated. PW-11 (Dr.Juhi Sharma) deposed that on the night intervening

11/12.07.2009 at around 01.00 A.M., 'X' aged about 11 ½ years was

brought by her mother with the alleged history of bleeding from vagina

following a 'fall from stairs on a sharp object'. The patient could not be

examined on the bed due to pain and bleeding. Her examination was done

under anesthesia. On examination, she found a clear tear on the right side

of vaginal wall about 1 inch to 1 ½ inch long with an active bleeder.

The bleeder was ligated and the tear stitched. She proved her report

(Ex.PW-11/A). On 21.07.2009, 'X' again visited the Nursing Home to get

her stitches examined. Ex.PW-11/B is the medical record of the patient

which was seized by the Investigating Officer vide seizure memo Ex.PW-

11/C. Statement of the witness remained unchallenged. Apparently, 'X'

had sustained injury on her private part. As per MLC (Ex.PW-14/A)

prepared at DDU Hospital on 17.07.2009, her hymen was found torn,

small 0.5 x 0.5 cm laceration was seen towards left side of vaginal

introitus. It is true that the prosecutrix' mother did not reveal to the doctor

at Gandhi Nursing Home about sexual assault. Contrary to that, she

informed the doctor that 'X' had sustained injuries due to fall from stairs.

Obviously, at that time PW-Manju did not want any police action due to

absence of her husband. No question was put to the examining doctor if

such an injury in the private part was possible due to fall on a sharp

object. There was no occasion for the little child to fall from stairs at

01.00 A.M. Prosecutrix' mother was anxious to wait for the return of her

husband before initiation of police proceedings.

5. Prosecutrix 'X's statement as PW-1 is crucial and relevant to

infer the appellant's guilt. She gave a detailed account as to how and

under what circumstances on 11.07.2009 when she was playing with

children in the street, the appellant allured her to his house on the pretext

to count 'teela' (sticks of broom) as she used to do that work. When she

went there, the appellant bolted it from inside and sexually assaulted her.

It led to bleeding from her private part. The appellant directed her not to

disclose the incident to anyone. Since, she was scared, she did not disclose

it to anyone and her father was out of Delhi that time. On 16.07.2009,

when her father returned, she informed about the occurrence to her mother

and on 17.07.2009, First Information Report was lodged on her statement

(Ex.PW-1/A). In the cross-examination, irrelevant questions unconnected

with the incident were put to the prosecutrix. She was able to respond that

previously her 'bua' was married to the appellant. After she went with one

Raju subsequently her mausi was married to the appellant. 'X' had no

concern with all these family disputes which had occurred much prior to

the incident. The fact remains that the appellant was acquainted with the

prosecutrix before the incident and they were related to each other. This

relationship provided an opportunity to the accused to entice the

unsuspecting child on the pretext of counting sticks (of brooms) and to

sexually assault her thereafter. 'X' was taken by surprise and was not

aware about the impending danger. Her testimony on material aspects

remained unchallenged. In the cross-examination, no suggestion was put

to her if the appellant was not present at his house at the relevant time or

that no such incident had taken place. No ulterior motive was assigned to

the victim to rope him in the ghastly crime. PW-3 (Ram Kumar) and PW-

4 (Manju), prosecutrix' parents have supported the prosecution and has

corroborated X's statement on vital facts. They denied any animosity with

the appellant on account of marriage of prosecutrix' bua or over any

money transaction. The prosecutrix, a child, is not expected to fake the

incident of rape to defame herself because of the alleged animosity. It was

not expected that the prosecutrix's parents would concoct a false

allegation of rape simply to implicate the appellant. Had it been so, on

11.07.2009 itself the prosecutrix' mother could have lodged report with

the police against him. There are no valid reasons to disbelieve the

statement of the prosecutrix. Her testimony in consonance with medical

evidence inspires implicit confidence. Unless an offence has really been

committed, an unmarried little girl would be extremely reluctant to make

such allegations which are likely to reflect on her chastity.

6. Discrepancies in the statements of the witnesses highlighted

by the appellant's counsel are not material to affect the core of the

prosecution case. It is well settled that there are bound to be some

discrepancies between the narrations of different witnesses when they

speak on details and unless the contradictions are of a material dimension,

the same should not be used to jettison the evidence in its entirety. Trivial

discrepancies ought not to obliterate an otherwise acceptable evidence.

The Trial Court has noted down all these discrepancies to ignore.

7. It is true that there is delay of about six days in lodging the

report with the police. Again, it is settled position that delay in lodging the

FIR cannot be used as a ritualistic formula for discarding the prosecution

case and doubting its authenticity. Delay per se is not a mitigating

circumstance for the accused when accusation of rape is involved. In the

instant case, the delay in lodging the report has been explained. The

prosecutrix' father was away out of Delhi at the time of incident. The

accused was related to the prosecutrix and her family members. It was not

unusual for the prosecutrix' mother to wait for the arrival of her husband

to decide as to what course of action should be adopted. After his return

on 16.07.2009, X' father was apprised of the incident and soon thereafter

the police machinery was put into motion. Delay in lodging the report thus

is not fatal in the instant case. In 'State of Himachal Pradesh vs. Gian

Chand', AIR 2001 SC 2075, it was observed that it is common knowledge

and also judicially noted fact that incidents like rape, more so when the

perpetrator of the crime happens to be a member of the family or related

therewith, involve the honour of the family and therefore there is a

reluctance on the part of the family of the victim to report the matter to the

police and carry the same to the Court.

8. The appellant did not examine any witness in defence to

prove any animosity with the X's parents forcing them to falsely implicate

him in the instant case. He has taken divergent defence. At one stage, he

pleads that the prosecutrix' father nurtured ill-will as X's bua married to

him had eloped with Raju, his nephew. At other place, he alleges that X's

father did not intend to return ` 15,000/- taken from him for getting him

married to his sister-in-law. Nothing has come on record as to when any

such payment was given to X's father. The defence deserves outright

rejection.

9. The Trial Court's judgment is based upon fair appreciation of

the evidence and all the relevant contentions of the appellant have been

rejected with reasons. Conviction and sentence deserve no interference.

Sentence awarded is adequate and needs no modification except that

default sentence for non-payment of total fine of ` 15,000/- shall be

Simple Imprisonment for one month. Other terms and conditions of the

sentence are left undisturbed.

10. The appeal stands disposed of in the above terms. Trial Court

record be sent back immediately with the copy of the order. A copy of the

order be sent to the Superintendent Jail for information.

(S.P.GARG) JUDGE

FEBRUARY 13, 2015