Vinod Kumar vs State
2015 Latest Caselaw 5200 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   RESERVED ON : JULY 06, 2015
                                   DECIDED ON : JULY 21, 2015

+                            CRL.A. 854/2012

       VINOD KUMAR                                        ..... Appellant
                             Through :   Mr.Sumeet Verma, Advocate with
                                         Mr.Amit Kala, Advocate.

                             VERSUS

       STATE                                               ..... Respondent
                             Through :   Ms.Fizani Husain, APP.

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

S.P.GARG, J.

1. The instant appeal has been preferred by the appellant-Vinod

Kumar to impugn a judgment dated 12.03.2012 of learned Additional

sessions Judge in Sessions Case No.02/2011 arising out of FIR

No.226/2010 registered at Police Station Ranhola by which he was held

guilty for committing offence under Section 376/506 IPC. The appellant

was sentenced to undergo RI for ten years with fine `2,000/- under

Section 376 (2) (f) IPC and RI for one year with fine `1,000/- under

Section 506 IPC. The sentences were to run concurrently.

2. Briefly stated the prosecution case as projected in the charge-

sheet was that on 28.10.2010 at about 12.00 noon at House No.68, Road

No.8, Sainik Enclave, Mohan Garden, Delhi, the appellant committed rape

upon prosecutrix 'X' (assumed name) aged, 15/16 years and criminally

intimidated her. Soon after the incident, 'X' apprised her mother about

the incident. Police was informed and the Investigating Officer recorded

victim's statement (Ex.PW2/A); lodged FIR by making endorsement

(Ex.PW-10/B) over it. 'X' was medically examined; she recorded her

statement under Section 164 Cr.P.C. The accused was apprehended and

medically examined. Exhibits collected during investigation were sent for

examination to FSL. After completion of investigation, a charge-sheet

was laid before the Court. The prosecution examined twelve witnesses to

substantiate its case. In 313 statement, the accused denied his

involvement in the crime and pleaded false implication. Ms.Chandrawati

appeared in defence as DW-1. After appreciation of the evidence and

considering the rival contention of the parties, the Trial Court convicted

the appellant as mentioned previously. 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. The incident took place at around 12.00 noon on

28.10.2010. Soon thereafter 'X' was taken for medical examination at

Sanjay Gandhi Memorial hospital, Mangolpuri at 4.25 p.m. MLC

(Ex.PW-5/G) records the alleged history of 'sexual assault'. The

appellant was specifically named before the doctor by the victim for

'sexual assault'. Statement of the prosecutrix was recorded promptly and

FIR was lodged at 6.30 p.m. Apparently, there was no delay in setting the

police machinery into motion. In her statement (Ex.PW-2/A), the victim

gave detailed account as to how and under what circumstances, the

appellant had committed rape upon her after alluring her to his house.

Since the incident was reported without any delay and the appellant was

named to be the author of the crime, there was least possibility of the child

victim and her mother to concoct a false story against him in such a short

span of time.

4. In her 164 Cr.P.C. Statement (Ex.PW2/B) recorded on

1.12.2010, again, 'X' gave vivid description of the occurrence and

specifically named the appellant to be the perpetrator of the crime. In her

Court statement as PW-2 also, she proved the version given to the police

and before the Magistrate without any material variation. Learned

Presiding Officer conducted preliminary enquiry and put various

questions before recording her statement. After satisfying that the child

witness was competent to understand the questions and was able to give

rational answers, her statement was recorded without oath. In her

deposition, she identified the accused to be the author of the crime as he

lived in her neighbourhood and she used to address him 'uncle'. She

elaborated that when she was playing outside her house in the street, the

accused took her to his house on the pretext that his sister was calling her.

Though she was not interested to go, the accused took her in the house

and committed rape upon her after disrobing her. He gave `15 to her after

the incident and warned not to inform her mother. When she was on her

way, she fell down and was lifted by a 'lady' who brought her to the

house. She narrated the incident to her mother who immediately called

the police. In the cross-examination, the witness was asked various

questions which were duly answered by her. She elaborated that there

was a 'cot' in the house of the accused and none else was present there

that time. She denied to be a tutored witness. Needless to say, no

material discrepancies or infirmities could be extracted in her cross-

examination which may raise any kind of doubt on the truthfulness of her

testimony. No ulterior motive was assigned to the child to falsely

implicate him. Nothing has emerged if 'X' or her mother nurtured any

grievance or ill-will before the incident to falsely implicate the appellant

in the case. There are no cogent reasons to suspect the credibility of the

prosecutrix's statement. She is consistent through out. Her testimony

clearly inspires confidence.

5. PW-4 (Praveen), 'X's mother has corroborated her version in

its entirety. She deposed that after 'X' was brought by a 'lady' to her

house, she enquired from her as to what had happened. 'X' disclosed the

entire facts to her and she in turn informed the police immediately. When

'X' was brought to the house, her clothes were strained with blood. In the

cross-examination, she denied that on 28.10.2010 at 4.00 p.m. she had

gone to the house of the accused where her sister was present. She was

unaware about the name of the 'lady' who had brought 'X' to the house.

No ill-will or enmity was assigned to the witness to be the motive for false

implication.

6. The Ocular testimony of the prosecutrix has been

corroborated by medical evidence. She was medically examined vide

MLC (Ex.PW-5/G). 'X's hymen was found torn. The appellant was

named in the alleged history recorded in the MLC. As per FSL report

(Ex.PW-5/H) human 'semen' was detected on exhibit 16 (underwear).

Blood was detected on exhibits 1a (lady's shirt), 1b (salwar), 15a (salwar)

and 15b (lady's shirt). Detection of 'semen' on exhibt 16 (underwear)

lends credence to the prosecutrix version.

7. Certain discrepancies, improvements and infirmities pointed

out by the learned counsel for the appellant are not material to affect the

core of the prosecution case. The prosecutrix was ravished by the

appellant in his house where she was taken on the pretext that his sister

was calling her. 'X' had no reasons to falsely implicate the appellant and

to spare the real offender to go scot free.

There is uncertainty as to the exact age of the prosecutrix.

PW-4, 'X's mother did not produce any birth certificate or school

certificate of the prosecutrix to show her exact date of birth. In fact, none

of the prosecution witness was able to tell the exact date of birth of the

prosecutrix. In her statement (Ex.PW-2/A), 'X' disclosed her age 12

years. During trial, ossification test to ascertain her age was conducted

and as per ossification report, her age was determined in between 15 to 16

years. There is thus merit in the appellant's plea that conviction under

Section 376 (2) (f) was not permissible as the prosecution was unable to

establish with certainty that 'X' was below 12 years of age on the day of

crime.

8. The appellant did not claim that 'X' was a consenting and

willing partner in the crime. There is complete denial of any such sexual

act by the appellant with the victim. Under these circumstances, even if

her age is taken as 16 or above it, it does not affect the prosecution case.

Apparently, 'X' was not a consenting party. She was allured by the

appellant to his house and taking advantage of her immaturity and

innocence, the appellant established physical relations with her against her

wishes.

9. The impugned judgment has discussed all the relevant

aspects and is based upon fair appraisal and appreciation of evidence and

needs no intervention.

The appellant was awarded minimum sentence of ten years as

conviction was under Section 376 (2) (f) IPC considering the 'X's age as

12 years. Even in the charge, the age of the prosecutrix was given as 15/16

years. Nominal roll dated 12.03.2015 reveals that the appellant aged 22

years has undergone four years, four months and one day incarceration

besides remission for nine months and four days. He is not involved in

any other criminal case and is not a previous convict. During interim bail

from 14.12.2013 to 24.12.2013 he did not misuse the liberty. Considering

these circumstances, the Sentence Order is modified to the extent that

substantive sentence under Section 376 IPC shall be eight years. Other

terms and conditions of the sentence order are left undisturbed.

10. Appeal is accordingly disposed of. 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 21, 2015 sa