Kishan Lal vs The State (Nct Of Delhi)
2015 Latest Caselaw 1808 Del

$-12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    DECIDED ON : 2nd MARCH, 2015

+                       CRL.A.No.321/2014

       KISHAN LAL                                     ..... Appellant

                        Through :    Mr.Dinesh Malik, Advocate with
                                     Mr.Gurpreet Singh, Advocate.


                        versus

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

                        Through :    Ms.Kusum Dhalla, APP.


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

S.P.Garg, J. (Oral)

1. The instant appeal is directed against a judgment dated

05.07.2013 of learned Additional Sessions Judge in Sessions Case No.

91/11 arising out of FIR No.149/11 PS Sangam Vihar by which he was

convicted for committing rape on 'X' aged 14 years. By a sentence order

dated 19.07.2013, RI for seven years with fine ` 5,000/- was awarded to

him.

2. Admitted position is that, the appellant is a step-father of the

prosecutrix 'X' (Assumed name) and they all lived together at Sangam

Vihar. The incident was reported to the police on 03.05.2011. The

Investigating Officer lodged First Information Report after recording

victim's statement (Ex.PW-3/A). She disclosed that her step-father used to

commit rape repeatedly on her person for the last two years putting her in

fear. In her medical examination, 'X' was found pregnant. The child was

aborted and the foetus was preserved. DNA report confirmed the appellant

to be the perpetrator of the crime responsible for making 'X' pregnant. He

was arrested and medically examined. Statements of the witnesses

conversant with the facts were recorded. After completion of

investigation, a charge-sheet was submitted against him under Section 376

IPC. The prosecution examined twelve witnesses in all to bring home the

appellant's guilt. In 313 statement, he denied his involvement in the crime

and pleaded false implication. The trial resulted in his conviction.

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

examined the record. Crucial testimony to infer the appellant's guilt is that

of 'X' aged about 14 years. Her version throughout is consistent. In her

statement (Ex.PW-3/A) given to the police at first instance, she

categorically implicated the appellant for committing rape upon her. In

her 164 statement (Ex.PW-11/C), she gave detailed account as to how and

under what circumstances, after putting her in fear, the appellant in the

absence of her mother used to ravish her for the last about two years. She

further accused the appellant to have indulged in oral sex. In her Court

statement as PW-1, 'X' adhered to the initial version without any

deviation. No ulterior motive was assigned to her for falsely implicating

her step-father upon whom she was dependent for her livelihood. She was

abused for about two years but was scared to lodge any complaint against

him. Only when symptoms of pregnancy surfaced and she could not

further conceal the nefarious act of the accused, she divulged the incident

to her mother and grandmother. The medical evidence confirmed her

version in its entirety. In the MLC (Ex.PW-1/A), her hymen was found

ruptured. She had a pregnancy of 12 weeks duration. PW-4 (Dr.Anupuma

Raina) in her DNA report (Ex.PW-4/A) concluded that the foetus was the

biological offspring of 'X' and Kishan Lal (the appellant) as per

Mendelian Law of Inheritance. PW-5 (Shakuntala), victim's mother has

spoken on similar lines and has corroborated the victim's statement. In

313 statement, the accused did not take plausible defence and did not offer

any explanation as to how 'X', his step-daughter became pregnant. He

alleged that 'X' had illicit relations with many boys in the street.

However, he did not name any such boy. He did not furnish reason for

not taking any action against the alleged culprit for making her daughter

pregnant. The defence taken is inconsistent and contradictory. In the

grounds of appeal, the appellant took the plea of 'consent'. No such

suggestion was put to 'X' or her mother if the sexual relations with 'X'

were with her free consent. The appellant being the step-father of the

victim is not imagined to have sexual relations even with her consent. He

stood in a fiduciary capacity and was duty bound to protect her. Beside

this, X was about 14 years old on the date of lodging the report; she was

aged about 12 years when for the first time she was subjected to rape. As

per birth certificate (Ex.PW-3/B), her date of birth was 23.09.1998. To

ascertain her age, ossification test was also conducted by PW-10

(Dr.Prashant Kundu) and as per report (Ex.PW-10/A), her age was above

14 years and below 14.9 years. Even her consent for physical relations

with the appellant was inconsequential; she being below 16 years. The

appellant did not examine any witness to prove that 'X' was above 16

years of age on the day of occurrence. It is unbelievable that 'X' would

consent for physical relations with her father to bear his child. Only when

she started vomiting, it came to the knowledge of her mother and grand-

mother that she was sexually abused by her step-father. No valid

reasons exist to disbelieve or suspect the statement of the prosecutrix and

her mother particularly when there is no conflict between the ocular and

medical evidence. No further reasons are required to be detailed to dismiss

the appeal which lacks merits.

4. The appellant was related to the prosecutrix being her step-

father. The victim aged 12 years was too innocent to understand the

consequences of his act. She was scared to inform her mother and

continued to be tormented by him for about two years. Under these

circumstances, sentence order needs no modification except that the

default sentence for non-payment of fine ` 5,000/- shall be Simple

Imprisonment for fifteen days.

5. The appeal stands disposed of in the above terms. 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

MARCH 02, 2015 / tr