Ram Bahadur vs State
2015 Latest Caselaw 4810 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : JULY 02, 2015
                               DECIDED ON : JULY 08, 2015

+                         CRL.A.1284/2011
       RAM BAHADUR                                       ..... Appellant
                          Through :   Mr.Ravi Chaturvedi, Advocate.
                          versus
       STATE                                             ..... Respondent
                          Through :   Ms.Fizani Husain, APP.
        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Being aggrieved by a judgment dated 12.10.2010 in Sessions

Case No.43/08 arising out of FIR No.252/07 registered at Police Station

Hari Nagari by which the appellant-Ram Bahadur was convicted under

Section 376 (2) (f)/366/325 IPC, the instant appeal has been preferred. By

an order dated 19.10.2010, the appellant was awarded various prison

terms with fine. The sentences were to operate concurrently.

2. The victim is a helpless child aged around five years who

was brutally ravished by the appellant. The police machinery came into

motion when intimation was conveyed vide daily diary (DD) No.3A

(Ex.PW-1/C) on on 01.05.2007 at 12:32 night to the effect that a child

aged two years was sexually assaulted and the perpetrator of the crime had

been caught at the spot. The investigation was assigned to ASI Kishan

Chander. DD No.4A (Ex.PW1/D) came into existence at 1:05 night on

getting information from DDU hospital where 'X' was admitted after

being sexually assaulted. After recording statement of victim's mother

(Ex.PW-5/A), the Investigating Officer lodged First Information Report.

During investigation, the prosecutrix was medically examined and her

statement under Section 164 Cr.P.C. was recorded. The accused was

arrested and medically examined. Exhibits collected were sent for

examination to FSL. Statements of witnesses conversant with the facts

were recorded. After completion of investigation, a charge-sheet was laid

before the court. The prosecution examined eighteen witnesses to

establish its case. In 313 statement, the accused denied his involvement in

the crime and pleaded false implication without producing any evidence in

defence. The trial resulted in his conviction. Being aggrieved and

dissatisfied, the instant appeal has been preferred.

3. I have heard the learned counsel for the parties and have

examined the file. There is overwhelming evidence adduced by the

prosecution to bring home the appellant's guilt. The accused was

apprehended red handed inside his room along with the prosecutrix. 'X's

mother Ram Dulari used to earn her livelihood by selling tea on the

footpath at Som Bazar. Her husband was mentally unsound and she had

the responsibility to take care of her three daughters and a son. As usual,

on the day of occurrence, 'X' was present with her mother at her tea shop.

At around 11:00 p.m., Ram Dulari went to her nearby house to drop her

husband leaving behind 'X' at the shop. In the meantime, the appellant,

who lived as a tenant in the premises owned by PW-3 (Pushpa Kumari)

arrived there and took 'X' in her lap to his room. On return, Ram Dulari

did not find 'X' at the shop and came to know that the appellant had taken

her while she was in sleep. She and others rushed to the appellant's room

and repeatedly knocked at it. The appellant deliberately did not open it.

Finally, it was pushed and broken. 'X' was found in the appellant's

company therein. She was bleeding profusely and had sustained injuries

on her body parts. It led the public to beat the appellant. The police was

informed and the accused was apprehended there. In her statement

(Ex.PW-5/A) recorded soon after the occurrence, Ram Dulari gave

detailed account as to how and under what circumstances 'X' was taken

by the appellant and how she was recovered from his room. In her 164

statement, 'X' in brief in her own words implicated the appellant to be the

perpetrator of the crime. She informed the learned Metropolitan

Magistrate that she was sexually assaulted by the accused who broke her

tooth and inflicted injuries on her eyes. In her Court statement as PW-2,

she proved the version given to the learned Metropolitan Magistrate in

164 Cr.P.C. statement in its entirety without any variation. Before

recording her statement, preliminary inquiry was conducted by the learned

Presiding Officer to ascertain if 'X' was competent to depose. The learned

Presiding Officer was of the view that 'X' was a competent witness and

she fully understood the questions and was capable to give rational

answers. In her statement, she identified the appellant to be the

perpetrator of the crime. She attributed specific / definite role whereby he

after disrobing her committed rape upon her. She even accused the

appellant for breaking her tooth. In the cross-examination, she answered

the queries put to her efficiently and did not deviate from her initial

version. She elaborated that the accused lived in their neighbourhood at

some distance and her mother knew him. She categorically denied to be a

tutored witness. She even deposed that after the accused was found in the

room, he asked her parents to pardon him. Apparently, the material facts

deposed by the child witness in examination-in-chief remained

unchallenged and unrebutted. No ulterior motive was attributed to the

child for implicating him in the crime. In the absence of prior animosity,

the little child was not imagined to name the appellant to be the author of

the crime. His name emerged soon after the occurrence. 'X' had

absolutely no strong motive to name the appellant to be the rapist. In fact,

he was found red handed in the company of the child in his room.

Corroborating the prosecution version PW-3 (Pushpa Kumari), landlady,

stated that after her door was knocked by some individuals, she got up and

came out. The door of the appellant's room was being knocked

repeatedly and he was not opening it. The crowd pushed the door and

accused along with the the girl child was found present there. The

accused was lying on the bed and was attempting to do the wrong act.

The child was nervous and blood spots were there on her thighs, legs and

private parts. This independent witness had no reasons, whatsoever, to

make a false statement. The accused did not offer plausible explanation

as to how the child was found in his room in injured condition at odd

hours. The circumstance of last seen is a material incriminating piece of

evidence to connect the appellant with the crime.

4. PW-10 (Virender Singh) who also used to sell 'chappals' on

the footpath near Ram Dulari's stall corroborated the prosecution case and

identified the accused to be the individual who had taken the child in the

absence of her mother Ram Dulari. He deposed that the accused was a

regular visitor at the tea shop. On the day of occurrence at around 11:00

p.m. when Ram Dulari had gone to her house to leave her husband, the

accused arrived there and took 'X' with him. He informed Ram Dulari

and her husband and they started searching her. In the cross-examination,

the witness gave plausible reason for not preventing the appellant to take

the child with him as he thought that he was going to leave the child to her

house. Since the appellant was a regular visitor at the shop of 'X's

mother, there were no reason to suspect any foul play that time. PW-6

(Sonu), another shopkeeper on the weekly market, accused the appellant

for taking the sleeping child 'X'. In his testimony, he deposed that he

informed his neighbour, Virender Singh who in turn informed 'X's

mother. PW-8 (Mainuddin) had informed the police at 100 after the

recovery of girl from the appellant's room.

5. 'X's version has been supplemented by her mother PW-5

(Ram Dulari) without any variation. No valid reasons prevail to

disbelieve her as she did not have any prior animosity with the appellant.

Medical evidence is in consonance with ocular testimony. 'X' was taken

to DDU hospital and was medically examined. Vide MLC (Ex.PW-9/A),

number of injuries were found on various body parts of the child. Similar

is the testimony of PW-14 (Dr.Poonam Aggarwal), who medically

examined 'X'. FSL reports (Ex.P-X and P-Z) are other pieces of

unimpeachable evidence. Blood was deducted on Ex.2 (underwear); Ex.4

(underwear); Ex.5a (T-shirt); Ex.5b (pant); Ex.6 (gauze); Ex.8a

(bedsheet); Ex.8b (sandow banian); and, Ex.8c (cloth piece). Blood group

'A' on Exhibits 4, 5a, 5b, 6 and 8b was ascertained. Semen stains were

found on Ex.4 (underwear) and it was also of 'A' group. The accused did

not explain as to how and under what circumstances, semen happened to

be there on the aforesaid clothes of the prosecutrix while she was in the

room.

6. It was informed by the prosecution witnesses that at the time

of incident, when the appellant had taken the child in his lap, he was under

the influence of liquor. PW-7 (Dr.Ajay Sharma) confirmed and testified

that on 01.05.2007, at about 3:20 a.m., when Ram Bahadur was brought

for medical examination with the alleged history of sexual assault he was

found positive for smell of alcohol in breathing and did not cooperate for

alcohol-meter test.

7. The prosecution case is crystal clear and no detailed

elaboration of evidence and relevant law is required to be discussed.

During the pendency of the appeal, the appellant moved

Crl.M.A.10448/2014 for release on the period already undergone by him.

This application was dismissed vide order dated 14.07.2014 considering

the heinous nature of the offence.

8. The impugned judgment is based upon fair and proper

appreciation of evidence and needs no intervention. Minimum sentence

prescribed under Section 376 (2) (f) is ten years which can't be modified

or reduced.

9. The appeal lacks merits and is dismissed. Trial Court record

(if any) along with a copy of this order be sent back forthwith. A copy of

the order be sent to Jail Superintendent, Tihar Jail for intimation.

(S.P.GARG) JUDGE JULY 08, 2015/sa