Ram Nandan vs The State (Govt Nct Of Delhi)
2015 Latest Caselaw 5195 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     RESERVED ON : 3rd JULY, 2015
                                     DECIDED ON : 21st JULY, 2015

+                        CRL.A. 999/2011

      RAM NANDAN                                         ..... Appellant

                         Through :    Mr.Sumeet Verma, Advocate.


                         VERSUS

      THE STATE (GOVT NCT OF DELHI)                      ..... Respondent

                         Through :    Ms.Fizani Husain, APP.


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

S.P.GARG, J.

1. Aggrieved by a judgment dated 09.03.2011 of learned Addl.

Sessions Judge in Sessions Case No. 96/08 arising out of FIR No. 940/07

PS Uttam Nagar by which the appellant - Ram Nandan was convicted for

committing offence under Section 376(2)(f) IPC, the instant appeal has

been preferred by him. By an order dated 11.03.2011, he was sentenced to

undergo RI for ten years with fine ` 10,000/-.

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

sheet was that on the night intervening 21/22.12.2007, the appellant

committed rape upon „X‟ (assumed name) aged about seven years. Daily

Diary (DD) No.42A (Ex.PW-4/A) came into existence at 06.40 p.m. at PS

Uttam Nagar on 22.12.2007 on receipt of information about a child sitting

abandoned at M-48, Mohan Garden, Uttam Nagar. The investigation was

assigned to ASI Sanwar Mal who went to the spot. „X‟ and her brother

PW-2 (Sajjan Kumar) present there apprised the Investigating Officer

about the commission of rape. „X‟ was taken for medical examination to

DDU Hospital. After recording statement (Ex.PW-2/A) of victim‟s

brother - Sajjan Kumar, the Investigating Officer lodged First Information

Report. Statements of the witnesses conversant with the facts were

recorded. „X‟ recorded her statement under Section 164 Cr.P.C. Ram

Nandan was arrested and medically examined. The exhibits collected

during investigation were sent to Forensic Science Laboratory for

examination. After completion of the entire investigation, a charge-sheet

was laid before the Court. The prosecution examined eighteen witnesses

to prove the appellant‟s guilt. In 313 Cr.P.C. statement, the accused

denied his involvement in the crime and took the defence that he was

falsely implicated by the victim‟s brother when he declined to lend

`15,000/- to him. He did not produce any evidence in defence. The trial

resulted in his conviction as aforesaid. 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. Learned counsel for the appellant urged that the Trial

Court did not appreciate the evidence in its true and proper perspective

and fell in grave error to rely upon the testimonies of interested witnesses

without independent corroboration. Material discrepancies and

contradictions in the statements of the prosecution witnesses were ignored

and overlooked by the Trial Court. The medical evidence did not

corroborate „X‟s version as she did not sustain any visible injuries on her

body. In the FSL report, „semen‟ detected on the clothes did not match

with that of the appellant. In the initial information conveyed to the police

there were no allegations of sexual assault upon the child. The prosecution

witnesses have made vital improvements in their deposition. It is unclear

as to why PW-2 (Sajjan Kumar), victim‟s brother preferred to inform the

landlady instead of reporting it to the police. Delay in lodging the FIR has

remained unexplained. PWs have given conflicting statements as to what

was the relationship between „X‟ and the appellant. Learned Addl. Public

Prosecutor urged that „X‟ aged around seven years has fully supported the

prosecution case and no reasons exist to disbelieve her.

4. The prosecutrix „X‟ had lost her father and she was staying at

the residence of her brother Babban at Mohan Garden, Uttam Nagar. It

appears that „X‟ was maltreated there and during PW-2 (Sajjan Kumar)‟s

visit there, she insisted to go with him. PW-2 (Sajjan Kumar) brought her

at the house of the appellant - Ram Nandan who lived at M-48, Mohan

Garden, Uttam Nagar. It is relevant to note that the appellant was known

and acquainted with the victim‟s brother as he lived in his neighbourhood

in the village. PW-2 (Sajjan Kumar) in his deposition before the Court

categorically stated that he stayed along with „X‟ at the appellant‟s room

on the night intervening 20/21.12.2007. On 21.12.2007, he went to Noida

leaving „X‟ with the appellant at his room to fetch his clothes etc. and

returned next day at about 06.00 or 07.00 p.m. „X‟ was found weeping

and on inquiry about that, she disclosed about sexual assault by the

appellant upon her. He immediately informed the landlady who in turn

informed the police at 100. In the cross-examination, PW-2 (Sajjan

Kumar) elaborated that „X‟ was residing with his elder brother for the last

about 8 or 9 months. He denied the suggestion that „X‟ met him at the

Police Station after she was recovered by the police. He denied if he had

enmity with the appellant to falsely implicate him.

On perusal of the statement of the victim‟s brother, it stands

established that he had brought „X‟ at the appellant‟s residence on

20.12.2007. She had stayed in the said accommodation when Sajjan

Kumar had gone to Noida on 21.12.2007 to bring his clothes. During that

night, „X‟ was ravished by the appellant. PW-8 (Suhan Lata), landlady,

who has corroborated PW-2‟s version in its entirety has deposed that the

room in question was rented out to the appellant about 6 or 7 months

before the incident. She further stated that after coming to know about

rape upon „X‟ from victim‟s brother - Sajjan Kumar, she gave a call to

police at 100; the appellant was arrested by the police. She denied the

suggestion that false statement was given by her as she intended to get the

tenanted room vacated. PW-8 (Suhan Lata)‟s testimony inspires implicit

confidence as she had no prior acquaintance with the victim or her brother

to give any false statement at their instance. Nothing has emerged to infer

if any time, she intended to get the tenanted room vacated from the

appellant. Contrary to that, the appellant had denied his residence in the

premises at M-48, Mohan Garden, Uttam Nagar and specific suggestion to

that effect was given to PW-2 (Sajjan Kumar) in the cross-examination.

PW-8 (Suhan Lata) further informed that „X‟ aged 7 or 8 years was seen

by her at the house of the accused. It falsifies the appellant‟s contention

that „X‟ was not brought at his room by PW-2 (Sajjan Kumar).

5. Crucial testimony is that of PW-1 (X), a child witness. In her

164 Cr.P.C. statement (Ex.PW-15/A) recorded on 02.01.2008, she had

implicated the appellant for the crime. She gave detailed account of the

incident and informed the learned MM as to how and under what

circumstances, she was beaten and sexually assaulted by the appellant to

whom she used to address „Mama‟. Her 164 Cr.P.C. statement is most

natural being in her own words. When she appeared before the Court as

PW-1, learned Presiding Officer put various questions to ascertain if she

was a competent witness and was able to give rationale answers to the

questions put to her. After recording his satisfaction about the child

witness to be intelligent enough to give evidence, her statement was

recorded. In her brief statement, she identified the appellant without any

hesitation to be the perpetrator of the crime. She disclosed that she had

gone to the appellant‟s house along with her brother. During night, after

disrobing her, the accused undressed himself and committed rape upon

her; she was also slapped by him. These facts remained unchallenged and

uncontroverted in the cross-examination. No ulterior motive was assigned

to the child to level serious allegation of rape against him. Except putting

bald suggestions without any foundation, no queries whatsoever were

raised about the version given in her examination-in-chief. No suggestion

was put to the witness if her brother had not brought her at his house for

short stay.

6. Medical evidence is in consonance with ocular evidence.

Soon after the incident, „X‟ was taken to DDU Hospital at 09.23 p.m. on

22.12.2007 and was medically examined vide MLC (Ex.PW-10/A); her

hymen was found torn. The alleged history recorded therein reveals that it

was a case of „sexual assault‟; appellant‟s name to be the perpetrator of

the crime finds mentioned therein. As per FSL reports (Ex.PW-18/A and

PW-18/B), human „semen‟ was detected on Ex.1 (baby‟s skirt), Ex.2

(baby‟s underwear) and Ex.5 (underwear). The appellant did not explain

as to how human „semen‟ surfaced on the clothes of the child „X‟ who

was in his company throughout after her brother - PW-2 (Sajjan Kumar)

had gone to Noida. Detection of human „semen‟ on the baby‟s clothes

lends-credence to her version.

7. The accused did not give plausible explanation to the

incriminating circumstances proved against him. He took inconsistent and

conflicting defence. For the first time in 313 Cr.P.C. statement, he alleged

that victim‟s brother had suffered loss in business and had demanded `

15,000/- from him. When he declined to pay the money, he was falsely

implicated in this case. The defence deserves outright rejection. The

brother is not imagined to level serious allegations of rape and use a little

girl aged about 7 years to falsely implicate a person who allegedly

declined to pay ` 15,000/- as loan. No such suggestion was given to PW-2

(Sajjan Kumar) in the cross-examination. Nothing has come on record if

PW-2 (Sajjan Kumar) has suffered any loss in business or had demanded

any loan from the appellant. The appellant did not give detail particulars

as to when said demand was raised and declined by him.

8. Certain minor contradictions, improvements or discrepancies

highlighted by the appellant‟s counsel are inconsequential as they do not

affect the core of the prosecution case. There is no delay in lodging the

FIR. Soon after PW-2 (Sajjan Kumar) returned from Noida at around

06.00 p.m., information to the police was conveyed promptly and DD

No.42A (Ex.PW-4/A) was recorded at 06.40 p.m. Some delay in lodging

the FIR is not fatal in rape cases.

9. Conduct of the prosecutrix appears to be most natural. No

sound reasons exist to disbelieve her. Admittedly, she was aged around 7

or 8 years and was unable to put resistance to the nefarious act of the

appellant due to fear. No adverse inference can be drawn merely because

visible injuries were not found on her body at the time of medical

examination. In any event, absence of injuries or mark of violence on the

person of the prosecutrix may not be decisive, particularly, in a situation

where the victim did not offer any resistance on account of fear meted out

to her. In „Madan Gopal Kakkad vs. Naval Dubey & anr.‟, 1992 (3) SCC

204, a minor girl aged about 8 years was raped. It was held that even

slight penetration of the penis into the vagina without rupturing the hymen

would constitute rape. In „Rajinder @ Raju vs. State of H.P.‟, AIR 2009

SC 3022, it was held that absence of injuries on the person of the

prosecutrix does not lead to an inference that she consented for sexual

intercourse with the accused. In „Radhakrishna Nagesh vs. State of

Andhra Pradesh‟, 2012 (12) SCALE 506, Supreme Court held "that being

so it is quite possible to commit legally the offence of rape even without

causing any injury to the genitals or leaving any seminal stains."

10. The prosecutrix and her brother had no strong motive to

falsely involve the appellant. They had absolutely no reason whatsoever to

falsely implicate the accused to whom they have preferred to visit and

upon which trust was reposed and X‟s brother had no hesitation to leave

her in the appellant‟s company in his absence. The appellant taking undue

advantage of loneliness of the hapless child exploited her innocence and

established physical relations with her and betrayed the trust reposed in

him. Settled legal position is that the sole testimony of the prosecutrix if

found to be worthy of credence can be basis of conviction even without

corroboration.

11. The judgment based upon proper appreciation of the

evidence needs no intervention. The appeal lack merits and is dismissed.

Trial Court record be sent back forthwith with the copy of the order. A

copy of the order be sent to the Superintendent Jail for information.

(S.P.GARG) JUDGE JULY 21, 2015 / tr