Sobhnath vs State
2015 Latest Caselaw 4765 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment reserved on : 03.07.2015
                                  Judgment delivered on : 07.07.2015
Crl. Appeal No.1574/2011

SOBHNATH
                                                           ......Appellant
                    Through:      Mr. Sumeet Verma, Adv.
                    Versus
STATE
                                                       .......Respondent
                    Through:      Mr. O.P. Saxena, 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

of sentence dated 12.07.2011 and 13.07.2011 respectively wherein the

appellant Sobhnath stood convicted under Sections 376 (2) (f)/506 (I) of

the IPC. He had been sentenced to undergo RI for a period of 10 years

for the graver offence under Section 376 (2)(f) of the IPC and to pay a

fine of Rs.2,000/- and in default of payment of fine to undergo SI for a

period of 2 months. For the offence under Section 506 (I) of the IPC, he

had been sentenced to undergo RI for a period of 6 months. Both the

sentences were to run concurrently.

2. The victim was a minor girl aged about 9 years and unfortunately

was the granddaughter of the appellant; she used to address him as

'dada'. The complaint was lodged on the date of the incident itself i.e.

10.04.2010. The complainant was the father of the victim. The father

Om Prakash (PW-6) had seen the appellant zipping up his pant having

clamped the mouth of his daughter (PW-5). The statement of the victim

was recorded under Section 164 of the Cr.PC before the learned

Metropolitan Magistrate (PW-4). Apart from the versions of PW-5 &

PW-6, there was an eyewitness account of CW-2 (the brother of the

victim). He had seen the appellant lying upon his sister and doing the

untoward act whereupon he had disclosed this fact to his father who on

reaching the jhuggi of the appellant had seen the appellant zipping up

his pant; at that time, his daughter was lying in the room with her mouth

tied with a cloth.

3. Apart from the aforenoted evidence which had been collected by

the prosecution, the victim was medically examined on the same day.

Her MLC (Ex.PW-1/A) had witnessed a fresh hymen tear; although no

swelling was reported on her vaginal and private parts yet redness was

noted. The exhibits which included the vaginal and vulval swabs as also

the undergarments of the victim and that of the accused were sent to the

CFSL for examination. The CFSL vide its report (Ex.PW-14/E) had

noted human blood on the baby skirt of the victim.

4. The appellant on the basis of the aforenoted evidence collected by

the prosecution has suffered the conviction and sentences as noted

supra.

5. On behalf of the appellant, arguments have been addressed in

detail. It is pointed out that the statement of the victim suffers from

infirmities and she being a child witness, a close scrutiny of her

statement is required. Attention has been drawn to that part of her cross-

examination wherein she has admitted that the police aunty had told her

how to disclose about the incident in the Court; she had also revealed

that her statement was not read over by the police aunty; submission

being that this witness is a tutored witness. If her testimony is

disregarded, there will be nothing left with the prosecution. Attention

has also been drawn to the testimony of PW-6, the father of the victim.

Submission being that this witness was also an interested witness and

the fact that the FIR has been lodged at 11:30 PM when the incident as

per the prosecution had occurred at 10:40 AM clearly shows that this

was an afterthought and this was for the reason that PW-6 and his family

were annoyed by the fact that the appellant was living with their mother;

the appellant had also had a fight with their mother who was in Sonipat

at that time. The CFSL has also not supported the version of the

prosecution as no semen has been detected on either the vulval or

vaginal swabs of the victim or on her clothes. Submission being that this

could well be a case of false implication as the family of the victim was

unhappy by the fact that the appellant was living with the mother of

PW-6.

6. Arguments have been refuted.

7. Record has been perused.

8. PW-5 is the child victim. She was 9 years of age on the date of

the incident and this has been established by the version of PW-3 who

had brought the birth certificate of the child victim evidencing her date

of birth as 05.10.2001. PW-5 was examined in camera. A preliminary

round of question had been put to her before her statement was

recorded. The Court was satisfied that the victim was capable of giving

rational answers to the questions and she appears to be well oriented.

The witness in detail disclosed the manner in which the incident had

occurred. She has deposed that the appellant had taken her inside the

house of her dadi and slapped her. He had removed her underwear. He

also removed his pant and had thereafter done the wrong act upon her by

lying upon her. She felt pain. Blood oozed out. She was threatened that

if she disclosed this incident to anyone, her throat would be cut.

9. In her cross-examination, she has stuck to her stand. Her earlier

version recorded under Section 161 of the Cr.PC (Ex.PW-5/DA) was put

to her but there was nothing apparent or evident which could be termed

as an 'improvement' and which would demolish her otherwise well

explained testimony. Relevant would it be to note that the entire

confrontation of the victim is with Ex.PW-5/DA and her statement

recorded under Section 164 of the Cr.PC (Ex.PW-4/A) was never

confronted to her. Perusal of Ex.PW-4/A shows that it was in

conformity with her version on oath in Court. This statement (Ex.PW-

4/A) was recorded on 12.04.2010 i.e. just two days after the date of the

incident. Even in Ex.PW-5/DA, nothing crucial has been pointed out by

the learned counsel for the appellant which could demolish the version

of PW-5.

10. The matter does not rest here. Apart from the version of PW-5,

the testimony of PW-6 is fully corroborative of PW-5. He was the father

of the victim. He had deposed that on the fateful day i.e. 10.04.2010, he

was in his jhuggi and remained there till 10:35 AM. His son (CW-2)

wanted to put a pin on his trouser as the hook of his trouser was broken.

CW-2 told him that he would get the pin from his dadi's house. On

coming back, CW-2 told him that he had seen dadaji doing an untoward

act with his sister (PW-5). PW-6 on reaching the jhuggi of the appellant

saw the appellant zipping up his pant; the mouth of his daughter was

tied with a cloth. His daughter was sweating. Also accused ran away

from the spot. PW-5 narrated the incident to him. PW-6 informed the

children of the accused and consulted his wife. His mother had returned

from Sonepat at 03:30 PM. At first a request was made by their close

relations to hush up the matter but PW-6 was not inclined to do so.

Complaint was accordingly lodged on the same day.

11. Nothing has been brought out in the cross-examination of PW-6

either which could dent his version.

12. CW-2 was the brother of the victim. He was not arrayed as a

witness of the prosecution but since he has not been summoned, at the

request of the Court, he was brought into the witness box. He was the

eyewitness to the incident. His version was fully corroborative of PW-5

& PW-6. CW-2 deposed that on the fateful day i.e. 10.04.2010, which

was a holiday, since his pant hook was broken, he told his father that he

would get a pin from his grandmother's jhuggi. On reaching there, the

door was closed. On forceful opening of the door, he saw that his 'dada'

(the appellant) had removed his undergarment and so also the

undergarments of his sister. The appellant was doing 'Gandi Harkat'

with his sister and was inserting his male organ in her private part. His

sister's mouth was tied with a cloth. CW-2 rush to his jhuggi and

informed his father about the same. When PW-6 reached there, the

appellant was zipping up his pant and his daughter was present there

with her mouth tied with a piece of cloth.

13. CW-2 was subjected to a lengthy cross-examination. He admitted

that his statement Ex.PW-7/A was recorded before the Magistrate. This

version (Ex.PW-7/A) was fully corroborative of the version of CW-2 on

oath in Court.

14. The MLC of the victim (Ex.PW-1/A) reveals that the victim was

examined on 10.04.2010 at 07:45 PM. There was a fresh hymen tear and

redness was noted upon her vaginal part. The vaginal and vulval swabs

were picked by the doctor and sent to the CFSL for examination.

Although no semen was detected on any of these exhibits yet human

blood was noted on the skirt of the victim. This medical and

scientific evidence also supports the version of the prosecution and

advances it.

15. Learned counsel for the appellant submits that there is every

possibility that the victim has been tutored as the family of the victim

was unhappy with the fact that their grandmother was living with the

appellant. This line of defence now picked up by the learned counsel for

the appellant did not find mention in the cross-examination of witnesses.

No such suggestion has been given to PW-5. It appears that the accused,

however became wiser at the time of cross-examination of PW-6 and a

suggestion to the said effect has been given to PW-6 but this appears to

be palpably false as admittedly the mother of PW-6 was living with the

appellant since the last several years and it would be difficult to believe

that all of a sudden, on one fateful day, PW-6 and his family got

annoyed with this fact when mother of PW6 was living with the

appellant since long.

16. PW-6 has also deposed that after the incident, he had disclosed

these facts to the children of the appellant as also to his wife and at first

efforts were made by the relations to hush up the matter but his

conscious did not permit him to do so. He waited for his mother to come

back from Sonepat and when she returned at 03:30 PM, after

consultation with her, they were advised to lodge the complaint which

was done so on the same day. The delay if any in lodging the FIR is

satisfactorily explained.

17. All these facts also show that there appears to be no reason to

falsely implicate the accused. It appears to be vice-versa. In fact the

family of PW-6 has advised him not to complain about the matter as

their mother was living with the appellant but this did not deter PW-6

from doing so. In fact his mother (second wife of the appellant) was

herself of the view that the matter should be reported to the police.

18. In the statement of the accused recorded under Section 313 of the

Cr.PC, the line of defence is still different. Version of the appellant is

that on the fateful day, he had had a quarrel with his wife (Gulabo Devi)

and the complainant (PW-6) took advantage of this and instigated

Gulabo Devi to lodge this false complaint against him. It was not the

defence of the accused that he has been falsely implicated for the reason

that the family of PW-6 was annoyed with the fact that he had married

Gulabo Devi.

19. DW-1 had come into the witness box to depose that on the fateful

day (10.04.2010), PW-5 was getting ready to go to school. 10.04.2010

was a Saturday; it was not a working day. CW-2 has categorically stated

that it was a school holiday. Although in one part of her deposition,

PW-5 stated that she was going to school on that day yet this can be

attributable to the fact that the witness being a child of tender years and

only on a suggestion given to her, she had stated that 10.04.2010 was

not a holiday. However admittedly 10.04.2010 being a Saturday, it was

not a school working day. The defence appears to be confused.

20. In the context of the evaluation of the testimony of an eye witness

the Supreme Court in 1998 Crl. LJ 4044 Panchhi and Ors. Vs. State of

U.P., has held as under:-

"The evidence of a child witness must be evaluated carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness in an easy prey to tutoring. The Court has to assess as to whether the statement of the victim before the Court is the voluntary expression of the victim and that she was not under the influence of others. The trial Court and the High Court have found the evidence of the child witness cogent, credible and had grain of truth. The High Court found that the evidence of victim was free from any influence."

21. Thus, prosecution has been able to prove its case to the hilt. The

testimony of the child victim PW-5 coupled with the eyewitness account

of her brother (CW-2), as also the res gestae testimony of her father

(PW-6) builds up a complete circle disclosing the manner in which the

incident had occurred. The role of the appellant in the said crime is

evident. The medical and scientific evidence also support the version of

the prosecution.

22. 'Rape' has been defined under Section 375 of the IPC. The law as

it stood prior to the amendment (Amendment Act of 2013 dated

03.02.2013) has to be looked into for the purposes of this offence as the

offence relates to the year 2010. The explanation contained in Section

375 of the IPC discloses that penetration by itself is sufficient to

constitute the offence of rape.

23. Section 376 speaks about the punishment for rape. Sub Section

(2) (f) makes it clear that whoever commits rape on a woman when she

is under 12 years of age shall be punished with RI for a term which shall

not be less than 10 years but which may be for life and shall also be

liable to fine. Proviso appended to Sub-section (2) makes it clear that

the Court may, for adequate and special reasons to be mentioned in the

judgment, impose a sentence of imprisonment of either description for a

term of less than 10 years.

24. It is clear from the above statutory provision that for the offence

of rape on a girl under 12 years of age, punishment shall not be less than

10 years but which may extend to life and also to fine shows that the

legislature intended to adopt strictness in awarding sentence if the victim

is below 12 years of age. No doubt, the proviso to Section 376(2) lays

down that the Court may, for adequate and special reasons to be

mentioned in the judgment, impose a sentence of imprisonment of either

description for a term of less than 10 years. It is settled law that courts

are obliged to respect the legislative mandate in the matter of awarding

of sentence in all such cases. In the absence of any special and adequate

reasons, recourse to proviso mentioned above cannot be applied in a

casual manner.

25. This Court notes that the appellant was in a trust relationship with

the victim; the victim addressing the appellant as 'dada' and the

appellant having betrayed the trust of his minor granddaughter deserves

no leniency on the minimum sentence imposed upon him does not call

for any interference.

26. Appeal is without any merit. Dismissed.

27. Trial Court record be sent back.

INDERMEET KAUR, J

JULY 07th 2015 A/m