Abdul Alim vs The State Of Nct Of Delhi
2015 Latest Caselaw 1979 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : 25th FEBRUARY, 2015
                           DECIDED ON : 9th MARCH, 2015

+                       CRL.A. 636/2012

      ABDUL ALIM                                       ..... Appellant

                        Through :    Mr.M.L.Yadav, Advocate.


                        versus



      THE STATE OF NCT OF DELHI                        ..... Respondent

                        Through :    Ms.Kusum Dhalla, APP.


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

S.P.GARG, J.

1. Aggrieved by a judgment dated 20.12.2011 in Sessions Case

No.254/2010 emanating from FIR No.203/2010 PS New Usmanpur by

which the appellant - Abdul Alim was held guilty for committing offence

under Sections 354/377 IPC, the instant appeal has been preferred by him

By an order dated 21.12.2011, the appellant was awarded RI for two years

with fine ` 5,000/- under Section 354 IPC and RI for ten years with fine

`10,000/- under Section 377 IPC.

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

sheet was that on 23.06.2010 at about 10.30 A.M. at House No.G-57,

Gali No.3, Shastri Park, the appellant sexually assaulted 'X' (assumed

name) aged four years and also committed carnal intercourse. Police

machinery swung into action when intimation about the incident was

reported and Daily Diary (DD) No. 29B was recorded at Police Station

Usmanpur. The investigation was assigned to SI Amit Malik, who with

Const.Subodh went the spot. After recording statements of the victim's

mother (Ex.PW-2/A), he lodged First Information Report. 'X' was

medically examined and her statement under Section 164 Cr.P.C. was

recorded. The accused was arrested and medically examined. Statements

of the witnesses conversant with the facts were recorded. After

completion of investigation, a charge-sheet was filed against the accused

for committing offences under Sections 376 read with Section 511 IPC

and 377 IPC. The appellant was charged for committing offences under

Sections 377 and 376 (2)(f) read with Section 511 IPC. However,

subsequent to the recording of the testimony of the prosecution witnesses,

the charge was amended and the appellant was charged under Sections

377 and 376 (2)(f) IPC. He abjured his guilt and pleaded false implication.

The prosecution examined ten witnesses to establish the appellant's guilt.

In 313 Cr.P.C. statement, the appellant denied his involvement in the

crime and alleged that he was falsely implicated due to non-payment of

`10,000/- advanced to X's father. He examined DW-1 (Gulshan), his wife

in defence. After appreciating the evidence and considering the rival

contentions of the parties, the Trial Court, by the impugned judgment,

acquitted the appellant of the offence under Section 376 (2)(f) and 376

(2)(f)/511 IPC. The trial, however, resulted in his conviction under

Section 377/354 IPC. Being aggrieved and dissatisfied, the appeal has

been preferred. It is relevant to note that State did not challenge

appellant's acquittal under Section 376 IPC.

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

examined the file. Conviction of the appellant is primarily based upon the

sole testimony of the child witness 'X'. Her statement is consistent

throughout. In her 164 Cr.P.C. statement (Ex.PW-2/B), she named the

appellant and attributed a specific role to him in the crime. In her Court

statement as PW-1, she identified the accused to be the perpetrator of the

crime. Learned Presiding Officer had put number of questions to the child

witness to ascertain if she was able to understand the questions and give

rationale answer. After satisfying that 'X' was a competent witness and

understood the questions put to her, her statement was recorded. In her

deposition before the Court, she gave detailed account as to how and

under what circumstances, the appellant had taken her to his house after

giving her one rupee. She also disclosed that in the house the appellant

sexually assaulted her and also put his penis into her private part, he gave

a cheek bite. In the cross-examination, nothing was suggested if the

appellant had not taken 'X' to his house. 'X' was categorical to say that

the act was done by the accused in the morning time and she was taken for

medical examination to the doctor. The appellant did not deny his

presence at the relevant time in his house. Her testimony remained

unchallenged on material facts. No ulterior motive was assigned to the

child witness to make a false statement.

4. PW-2 (Jainab), X's mother proved the version given to the

police at first instance (EX.PW-2/A) without any variation. On

23.06.2010 at about 10 / 11.00 A.M. when she did not find 'X' aged four

years, she went to the appellant's room which was bolted from inside. She

banged the door and enquired if 'X' was inside the house. At first

instance, the appellant denied her presence but when 'X' herself disclosed

from inside that she was there, the door was opened. On enquiry, 'X'

narrated her ordeal to her mother. The police was informed. PW-2 further

disclosed that the appellant and her sister attempted to win her over and to

accept money for not reporting the matter to the police. In the cross-

examination, she denied if a sum of `10,000/- was borrowed from the

accused and for its non-payment, he was falsely implicated. The testimony

of this witness is crucial as she has found both 'X' and the appellant

together in the room of the accused soon after the incident. The appellant

did not explain as to what had prompted him to take the child to his room

without the permission of her parents and what was the necessity to bolt

the door from inside and to deny her availability in the house on the

asking of her mother. PW-3 (Mohd. Jilani), X's father, has deposed on

similar lines.

5. 'X' was medically examined vide MLC (Ex.PW-9/A) at

around 11.00 P.M. The alleged history records that the 'X' was sexually

assaulted by a tenant in the same building and she was found in his room.

There was no occasion for the 'X's parents to concoct a false story of her

presence inside the room of the accused. Appellant's involvement had

surfaced immediately after the crime and there was no delay in reporting

the incident to the police.

6. Minor contradictions, improvements in the testimony of the

prosecution witnesses are inconsequential as they do not affect the core of

the prosecution case and absolve the appellant of the crime. 'X' and her

parents had no prior animosity with the appellant to falsely rope him in

this ghastly crime. They had no reasons to level serious allegations of

unnatural offence for alleged non-payment of ` 10,000/-. They were not

expected to bring her child / daughter in disrepute and play with her life.

Unless an offence has really been committed, an unmarried little girl and

her parents would be extremely reluctant to make such allegations which

are likely to reflect on her chastity. No evidence has surfaced if any

amount of ` 10,000/- was ever paid by the accused or his wife if so when

and by what mode, and for its non-payment, the accused was implicated.

The defence deserves outright rejection. There are no sound reasons to

disbelieve 'X', an innocent child who was unaware of the consequences of

the act of the accused. The accused who lived in the neighbourhood took

advantage of the innocence of the child and allured her in his room on the

pretext to give her some cash.

7. The impugned judgment based upon fair appraisal of the

evidence deserves no interference. Considering the gravity of the offence

whereby a child aged four years was ravished, Sentence Order needs no

modification except that the default sentence for non-payment of fine

`10,000/- shall be Simple Imprisonment for fifteen days in all.

8. 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 09, 2015 / tr