Raju Day vs State
2015 Latest Caselaw 5342 Del

$~R-28

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment reserved on :21.7.2015
                                     Judgment delivered on :28.7.2015

+      CRL A. 1331/2012



       RAJU DAY                                      ..... Appellant.
                            Through       Mr.S.S.Ahluwalia, Advocate.

                            versus

       STATE                                         ..... Respondent
                            Through       Mr.O.P.Saxena, APP.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

of sentence dated 04.8.2012 and 8.8.2012 wherein the appellant stood

convicted under Section 376 of the IPC. He had been sentenced to

undergo RI for 8 years and to pay a fine of Rs.2000/-, in default of

payment of fine to undergo SI for 2 months.

2 This was an unfortunate case where the victim is the daughter of

the appellant. The prosecutrix has been examined as PW-9. Her mother

Smt.Ratna (PW-8) also supported her version. Version of the

prosecution being that the victim was continuously raped for the last

about six months by her father. She had disclosed the incident to her

mother. Her mother accosted her father who had apologized stating that

the incident would not be repeated in future. Her mother did not report

the matter to the police. When her mother had gone to village the

appellant again committed rape upon the victim. Police report was

accordingly lodged. Apart from the statement of PW-8 and PW-9 the

medical report which included the MLC of the victim (Ex.PW-6/A)

proved through Dr.Ruchi Mishra (PW-6) recorded that her hymen was

torn. The age of the prosecutrix was established through the record

produced by the Principal of the MCD which included the admission

Register; this was proved through Smt. Snehprabha Hastir (PW-4).

3 Challan was accordingly filed. In the statement of the accused

recorded under Section 313 Cr.P.C. he stated that he had been falsely

implicated. He further stated that his wife was in the business of

prostitution and she encouraged her daughters to join this business; this

was the bone of contention between the parties hence for this reason he

had been falsely implicated. No evidence was led in defence.

4 Arguments have been heard and record has been perused.

5 PW-9 is the star witness of the prosecution. She was the real

daughter of the appellant. She had on oath deposed that sometime in

January her mother had gone to her parents‟ house in West Bengal. She

had gone alone. She spent 18-19 days there. On the day when her

mother had left, her father had done „galat kaam‟with her. He slept with

her against her wishes. Reply to a specific query which was put to the

witness about the meaning of „galat kaam‟ was noted. Her demeanour

was also noted by the trial Judge. It was also noted that the victim was

crying. PW-9 further deposed that this act was repeated by her father

with her 2-3 times during the time when her mother was away. She told

about this incident to her sister Rinki. Rinki told the incident to her

mother. Her father was accosted by her mother to ensure that this act

would not be repeated. Her father however again committed „galat

kaam‟ upon her on the same night. Her Bua Vandana was also aware of

this. But her father had threatened Vandana and her husband that

nothing about this incident should be disclosed. Police had recorded her

statement. In her cross-examination, she stated that her mother never

stayed outside the house prior her going to West Bengal. Her mother

had gone to Best Bengal on 21.01.2011 but she did not remember the

exact day of the week. She did not remember the date when she

disclosed the things to her mother for the first time. She denied the

suggestion that her mother used to stay outside for days together without

the permission of her father so there was a usual marital discord between

them. She denied the suggestion that she and her mother used to indulge

in illicit activities of prostitution and her father used to stop them from

doing all these things which was the bone of contention and the reason

for the false implication of the appellant.

6 The mother of the victim Smt.Ratna was examined as PW-8. She

was used to work as a maid servant in the house. She deposed that she

had developed Jaundice that is why she had gone to West Bengal. Her

husband used to ply rickshaw. "R" is her eldest daughter aged 11 years.

Rinki is her second daughter. She has three daughters and one son.

Two of her daughters i.e. victim and Rinki stayed behind her with her

husband. She further deposed that when she returned to Delhi after one

and half month, the victim told her that her father raped her 5-6 times

when she was not in Delhi. He used to say that he would give her

Rs.20/- to Rs.30/- to spend. When PW-8 accosted her husband he

pleaded sorry and stated that the things would not be repeated. Police

complaint was lodged. Her daughter was medically examined. In her

cross-examination PW-8 admitted that her statement was recorded by

the police. She denied the suggestion that since she used to stay outside

for days it was the bone of contention between the husband and wife.

Relevant would it be to note that the defence as emanated from

the cross-examination of PW-8 and PW-9 is different. Whereas the

suggestion given to PW-8 by the learned defence counsel was with

regard to the bone of contention between PW-8 and the appellant for the

reason that PW-8 used to stay out of house for several days; in the cross-

examination of PW-9 the suggestion given to PW-9 was that the bone of

contention between PW-8 and the appellant was that PW-8 was in the

business of prostitution and she used to indulge her daughters in this

business as well which was the fight between the husband and the wife.

This difference in the two defences has been noted. They are distinct

and inconsistent. At this stage the most vehement argument pleaded by

learned defence counsel is that right from inception his case has been

that because of the activities of PW-8 (which was the fact that she was

running a prostitution racket and also encouraging her daughters to

indulge into it) annoyed PW-8 which was the reason for his false

implication through his daughter (PW-9). This submission is incorrect.

7 This argument of the learned defence is thus without any merit.

8 The second argument raised by the learned defence counsel was

based on the so-called inconsistency between the versions of PW-8 and

PW-9. Submission being that PW-8 had categorically stated that she

had gone to village with her two children whereas PW-9 had stated that

her mother had gone to village alone. Moreover it would also be

difficult to believe that the appellant had committed rape upon his

daughter in the Jhuggi where his other children were also sleeping. This

version set up by the prosecution is impossible to believe.

9 In this context the versions of PW-8 and PW-9 have been

examined. This Court also notes the charge for which the appellant

had been charged is for the offence of rape. The testimony of the each

witness has to be viewed as a whole and no minor discrepancy noted

here and there which otherwise does not affect the merits of the

controversy can be used as a defence tool to dislodge the otherwise well

established version of the prosecution.

10 This Court notes that the version of PW-8 and PW-9 are

consistent on all major aspects of the case. The Court also notes the

demeanour noted by the trial Judge of PW-9 which was that at the time

of examination of PW-9 on oath in court she became emotional and

started weeping; it was a natural act. It would be extremely difficult for

a minor daughter to depose against her father and that too of the nature

of the offence which is sought to be established by the prosecution i.e.

of an alleged sexual assault by the father upon his own daughter. Minor

discrepancies noted here and there which do not detract from the gist of

the case would not discredit the witness.

11 There was no reason for PW-9 to falsely implicate her father.

The defence of the appellant that he had been falsely implicated because

of his objection to the illicit activities of prostitution of PW-8 and

because PW-8 was encouraging her daughter in this business of

prostitution is without merit as this line of defence has been adopted

only in the cross-examination of Pw-9 but did not find mention in the

cross-examination of PW-8. PW-8 had been cross-examined on

25.01.2012. PW-9 had been cross-examined on 21.02.2012 this was

after a gap of more than one month. Counsel for the appellant had

obviously become wiser.

12 PW-8 has been categorical in her version. She had deposed that

her daughter told her about this incident rape committed upon her by her

father. She accosted her husband. This was the most natural conduct of

a mother in such situation. The husband had apologised and matter was

not reported to the police. When the act of rape was again committed

upon PW-9 she reported the matter to PW-8. PW-8 then reported the

matter to the police. This was also a natural conduct. PW-8 had given

benefit to her husband hoping that he would mend his ways but he did

not. In these circumstances, she had no option but to get the FIR

registered.

13 This Court also notes that PW-8 is a daily wager looking after the

needs of herself and her family by working as a maid servant. The

accused having been embroiled in this controversy and having been sent

to Jail and being the main bread earner of the family, the family earner

had been lost. It was obviously a huge cost for PW-8 that she resigned

herself to the fact that her daughter had been subjected to such a

humiliation by her own father and the matter required police

intervention. The medical evidence which is the MLC of the prosecutrix

(PW-3/A) also shows that her hymen was torn earlier. Human semen

was also detected on the exhibits which were seized including the shirt,

sameez and under wear of the prosecutrix. How and where did the

semen come from? i.e. on the clothes of a minor girl. There also

appears to be absolutely no reason for the false implication of the

appellant but for the fact that the appellant was guilty of the crime for

which he had been charged.

14 In AIR 2010 SC 3071 State of U.P.Vs. Krishna Master and Ors.,

while dealing with the testimony of child witness, the Hon‟ble Apex

Court held that child at a tender age is incapable of having any malice or

ill will against any person and there must be something on record to

satisfy the court that something had gone wrong between the date of the

incident and recording the evidence for the child witness due to which

the witness wanted to implicate the accused falsely in a case of serious

nature.

15     Appeal is without any merit. Dismissed.



                                            INDERMEET KAUR, J

JULY 28, 2015
ndn