Birju @ Mathur Bux vs State Nct Of Delhi
2015 Latest Caselaw 2330 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            RESERVED ON : FEBRUARY 24, 2015
                            DECIDED ON : MARCH 19, 2015

+                                    CRL.A. 494/2013

       BIRJU @ MATHUR BUX
                                                       ..... Appellant
                      Through : Mr.Pramod Kumar Dubey with Mr.Shiv
                               Chopra and Ms.Megha, Advocates.

                            versus

       STATE NCT OF DELHI
                                                          ..... Respondent
                      Through : Mr.Navin K.Jha, APP.
        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG


S.P.GARG, J.

1. Aggrieved by a judgment dated 21.01.2013 in Sessions Case

No.23/12 arising out of FIR No.145/11 registered at Police Station

I.P.Estate by which the appellant Birju @ Mathur Bux was held guilty for

committing offences under Sections 376/363/506 IPC, the instant appeal

has been preferred by him. By an order dated 24.01.2013, the appellant

was awarded RI for eight years with fine ` 10,000/- under Section 376

IPC and RI for one year with ` 2,000/- each under Sections 363/506 IPC.

Both the substantive sentences were to operate concurrently.

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

sheet was that on the night intervening 27/28.11.2011 in the area of Jhuggi

No.CN-225, Takiya Kalekhan, the appellant kidnapped the prosecutrix

'X' (assumed name), aged 14 years, out of the lawful guardianship of her

parents and took her to his Jhuggi. She was sexually assaulted and

criminally intimidated there. Police machinery swung into action when

the incident was reported on 12.12.2011 and FIR was lodged on victim's

statement (Ex.PW-5/A). She implicated the appellant by name and gave

a vivid account as to how and under what circumstances, she was sexually

assaulted by him. 'X' was medically examined and her 164 Cr.P.C.

statement was recorded. The accused was arrested and medically

examined. Statements of witnesses conversant with the facts were

recorded. On completion of investigation, a charge-sheet was placed

before the court. The prosecution examined ten witnesses to substantiate

the appellant's guilt. In 313 statement, the appellant denied his complicity

in the crime and pleaded false implication due to non-return of `13,000/-

given by him to 'X's father as loan. He did not examine any witness in

defence. The trial resulted in his conviction as aforesaid. Being aggrieved

and dissatisfied, he has filed the instant appeal.

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

examined the file. Appellant's counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective and erred on

relying upon the testimonies of interested witnesses without independent

corroboration. 12 days' delay in lodging the FIR remained unexplained.

Absence of injuries on 'X's body at the time of her medical examination

ruled out commission of rape. FSL report did not confirm her version.

Reshma 'X's sister present in the jhuggi at the time of alleged kidnapping

was not produced for examination. Learned Additional Public Prosecutor

urged that the delay was satisfactorily explained and there are no sound

reasons to disbelieve the prosecutrix.

4. Though the occurrence took place on the night intervening

27/28.11.2011, the incident was reported to the police on 12.12.2011.

Apparently, there was inordinate delay in lodging the report with the

police. However, in the instant case, the delay has been duly explained by

the prosecution witnesses. The matter was reported to the police on the

next day of the incident. However, the Investigating Officer instead of

lodging FIR promptly attempted to get the matter settled between the

parties. 'X' and her parents were threatened that in case they insisted to

lodge FIR, 'X' would also be arrested. It caused reasonable fear in their

mind not to proceed further with the matter. Later on when 'X's maternal

grand mother PW-4 (Shabra Begum) came to know about the accused to

have gone scot free, she and 'X's parents approached higher police

officers to register FIR. Copy of compromise deed (Ex.PW-2/D1) to

settle the dispute between the parties has been produced. The learned Trial

Court has discussed in detail the irresponsible behaviour of the

investigating agency not to register the FIR disclosing commission of

serious cognizable offence and to pressurize the victim and her family

members to settle the matter. The Trial Court has rightly ordered

`25,000/- to be paid to the victim and to take appropriate action against

the erring police officials responsible for the lapse. Delay in lodging the

FIR cannot be used as a ritualistic formula for doubting the prosecution

case and throwing the entire prosecution case overboard. If the delay is

explained to the satisfaction of the Court, it cannot be counted against the

prosecution. In the instant case 'X' had narrated the occurrence without

any delay to her parents on the next morning who in turn had approached

the police immediately. It appears that the police officials and community

fellows prevented them not to pursue the case at first instance.

5. Appellant's conviction is primarily based upon the sole

testimony of the prosecutrix 'X'. Her version is consistent throughout and

in her statement (Ex.PW-5/A) recorded at the first instance, she had

named the appellant for committing rape upon her in his jhuggi. In her

164 Cr.P.C. statement (Ex.PW-5/B) also, she reiterated the version before

the learned Magistrate and gave a detailed account of the

circumstances/events leading to commission of rape by the appellant. In

her Court statement as PW-5, she proved the said version without any

variation. She deposed that she had gone to the jhuggi of her maternal

grand mother along with her sister Reshma to sleep there as she (her

maternal grand mother) was ill and had come to their jhuggi to sleep. In

the night, she came out of the jhuggi to answer the call of nature. The

accused who lived in a nearby jhuggi kidnapped her, took her to his jhuggi

and committed rape upon her. She had given a kick blow to the accused

but could not get rid of herself. After commission of rape, when the

appellant slept, she ran out of the jhuggi and informed her mother at

about 6:00 or 6:30 a.m. In the cross-examination, she denied herself to be

a tutored witness or that the accused had given a loan of `13,000/- to his

father and on its demand, he was falsely implicated. No material

inconsistencies or infirmities could be elicited in her cross-examination to

suspect her version. Her testimony on material facts remained

unchallenged and uncontroverted. No ulterior motive was assigned to the

child witness to make serious allegations against him. A child witness

would be extremely reluctant to make such allegations which are likely to

reflect on her chastity unless such an incident has really been occurred.

'X's statement is in consonance with the medical evidence. PW-6

(Dr.Vandana Solanki) had examined her vide MLC (Ex.PW-6/A) on

12.12.2011, her hymen was found torn. There was old scratch mark of

around 3-4 cm on left arm and 5 cm on left leg. PW-1 (Salim) and PW-2

(Sahida Begum), victim's parents, corroborated her version and had

deposed on similar lines.

6. It is not the appellant's defence that 'X' was a consenting

party. Even if this plea is taken into consideration, the consent of the child

below 16 years to have physical relations was immaterial. The

prosecution has collected and proved cogent evidence to show that 'X'

was aged below 15 years on the day of occurrence and her date of birth

was 19.01.1998 as per school record (Ex.PW-8/A). The appellant did not

deny her date of birth. Minor contradictions, inconsistencies and

omissions highlighted by the appellant's counsel are inconsequential as

they do not affect the core of the prosecution case. The appellant did not

offer any explanation as to how and under what circumstances

compromise deed (Ex.PW2/D1) came into existence. 'X's statement

inspires confidence and can be relied upon without seeking corroboration.

Statement of the prosecutrix cannot be discredited simply because

Reshma, her sister, was not produced for examination. She was not a

witness to the incident and her non-examination did not dent the

prosecution case. Since the prosecutrix was medically examined after

considerable delay, there was least possibility of traces of semen on her

clothes seized in this case. The appellant did not produce any evidence to

substantiate if any loan amount of `13,000/- was ever given by him to

'X's father. Rather in the cross-examination, 'X's father came up with

the plea that he had given `6,600/- to the appellant. The defence put up

by the appellant is inconsistent. It is unclear if `13,000/- were given as

loan to 'X's father or were deposited as security with him. No detailed

particulars have emerged as to when payment of `13,000/- was made to

'X's father. Moreover, for non-return of this paltry amount, 'X's father is

not imagined to use his unmarried minor daughter to avoid its payment.

The defence deserves outright rejection.

7. The impugned judgment based upon fair appraisal of the

evidence warrants no interference. The appellant was sentenced to

undergo RI for 8 years with fine `10,000/- under Section 376 IPC.

Nominal roll dated 09.01.2015 reveals that he has already undergone three

years, twenty six days incarceration besides remission for five months and

twenty six days as on 09.01.2015. He is a first time offender and is not

involved in any other criminal case. His overall conduct in jail is

satisfactory. Till date he has not availed any parole/interim bail/furlough.

Sentence order records that the appellant was a young boy of 22 years old

and had no criminal antecedents. He is the sole bread earner of the family

and has one young sister to take care of. Considering the mitigating

circumstances, sentence order is modified to the extent that RI for eight

years under Section 376 IPC shall be RI for seven years. Other terms and

conditions of the sentence order are left undisturbed.

8. The appeal stands disposed of in the above terms. 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 MARCH 19, 2015 sa