Upender Mukhiya vs The State (Nct Of Delhi)
2015 Latest Caselaw 4417 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    RESERVED ON : 25th MAY, 2015
                                     DECIDED ON : 29th MAY, 2015

+            CRL.A.1134/2010 & CRL.M.A.No.4073/2015

      UPENDER MUKHIYA                                    ..... Appellant
                  Through :           None.

                          versus

      THE STATE (NCT OF DELHI)                ..... Respondent
                    Through : Ms.Kusum Dhalla, APP.

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

S.P.GARG, J.

1. Present appeal is directed against a judgment dated

09.04.2010 in Sessions Case No. 112/2008 arising out of FIR

No.263/2007 PS Okhla Industrial Area by which the appellant - Upender

Mukhiya was held guilty for committing offence under Section 376(2)(f)

IPC. By an order dated 13.04.2010, he was sentenced to undergo RI for

ten years with fine ` 1,000/-.

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

sheet was that on 30.03.2007 in between 03.00 to 04.00 p.m. at house No.

RZ 113B/3, T.K.D. Extension, New Delhi, the appellant committed rape

upon 'X' (assumed name) aged five years. The police machinery came in

motion when Daily Diary (DD) No.23 (Ex.PW-10/B) was recorded on

31.03.2007 at 09.30 p.m. at PS Okhla Industrial Area on getting

information from duty constable AIIMS about admission of 'X' in injured

condition there who was sexually assaulted near her house. The

investigation was assigned to SI Vijay who with Const.Davender went to

the hospital. After recording statement of Mithlesh Devi - victim's mother

(Ex.PW-2/A), the Investigating Officer recorded First Information Report.

'X' was medically examined and she recorded statement under Section

164 Cr.P.C. The accused was arrested and medically examined.

Statements of the witnesses conversant with the facts were recorded.

Exhibits collected during investigation were sent for examination to

Forensic Science Laboratory. After completion of investigation, a charge-

sheet was filed against the appellant in the Court. The prosecution

examined twelve witnesses to substantiate its case. In 313 Cr.P.C.

statement, the appellant pleaded false implication and denied his

involvement in the crime. He examined DW-1 (Surender Mukhiya) and

DW-2 (Harender Mukhiya) in defence. The trial resulted in his conviction

as aforesaid. Being aggrieved and dissatisfied, the instant appeal has been

preferred.

3. Appellant's conviction is primarily based upon X's

testimony. She, in her Court statement, identified the appellant to be the

perpetrator of the crime. She deposed that the accused had inserted his

private part into her private part. She was taken inside the house by the

accused on the pretext to give toffee when she was playing outside.

Material facts deposed by 'X' remained unchallenged and uncontroverted

in the cross-examination. A mere suggestion denying the incident was put

to the witness. No ulterior motive was assigned to her for making a false

statement against him. The accused did not deny his presence inside his

house at the relevant time. 'X' aged about five years is not expected to

level serious allegation of rape against an innocent one who lived in her

neighbourhood. There was no previous animosity to falsely rope him in

this case.

4. PW-2 (Mithlesh Devi) proved the initial version given to the

police vide complaint (Ex.PW-2/A) without any major variations. She

disclosed that when she did not find 'X' in the house at 04.00 p.m., she

went outside and saw her weeping. On enquiry, she told to have some

pain in her vagina. She took it lightly and thought that it could be due to

hot weather. On the next day, she found blood stains on her underwear

and on enquiry came to know that the accused had sexually assaulted her.

She narrated the incident to her husband who arrived at 08.00 a.m. after

purchasing vegetables from Okhla Industrial Mandi. Since he was

concerned with the vegetables to be sold, he told to return at 04.00 p.m.

Thereafter, they went to the police station. From there, they were taken to

AIIMS for medical examination where her statement (Ex.PW-2/A)

recorded. She identified underwear (Ex.PW-2/1) seized by the police. In

the cross-examination, she denied any business rivalry between the

appellant and her husband. She volunteered that her husband used to sell

vegetables while roaming whereas the accused sold vegetables in

Chitranjan Park. She denied if any quarrel had taken place among Manoj,

her husband and the accused about a month back and because of that the

accused was falsely involved in the incident. She disclosed that the

accused had come from his native place about 2 or 3 days prior to the

incident. Apparently, no material infirmities could be extracted in her

cross-examination. PW-6 (Virender Singh), X's father has testified on

similar lines. Despite lengthy cross-examination, his version could not be

shattered.

5. The incident of sexual assault is not in dispute. Only plea of

the appellant is that he was not the perpetrator of the crime and it was the

handi-work of someone else. 'X' and her parents were not expected to

spare the real offender and to falsely implicate the accused who belonged

to their native place and with whom they did not have any strained

relation prior to the incident. It is unbelievable that 'X' would not be

interested to bring the real culprit to book. She and her parents were not

going to be benefitted by falsely implicating the appellant. His

involvement emerged on the very day of the incident. Soon after the

occurrence, he fled the spot and could be arrested on 07.04.2007. The

accused did not explain as to why he absconded and during this period

where he remained. Abscondence is another incriminating circumstance to

point an accusing finger against the accused. No strong reasons exist to

disbelieve the testimony of child witness who had no ulterior motive to

falsely implicate the appellant for such a heinous offence. Unless such an

occurrence has really been taken place 'X' and her family members would

be highly reluctant to make such serious allegation against an

acquaintance.

6. The appellant has not given plausible explanation for his

false implication. He has taken divergent and conflicting defences.

Nothing has come on record if any serious quarrel had taken place among

him, Manoj and X's father. It was not elaborated as to when and on what

account the said quarrel took place. No complaint / FIR was lodged about

that incident. For any petty altercation X's parents are not imagined to

concoct false allegations which have reflection upon the chastity of their

little child. The accused also failed to establish the plea of 'alibi'. He

claimed that in the rented room for the last about one month, his cousin

along with wife used to stay. No cogent evidence has come on record to

show that the rented room of the appellant was in their occupation and the

appellant used to live at Sangam Vihar with his cousin. No such

suggestion was put to 'X' in the cross-examination.

7. Ocular testimony of the prosecutrix is in consonance with

medical evidence. 'X' was taken to AIIMS on 31.03.2007 by her mother.

Instead of lodging the report soon after the occurrence, she took the child

to AIIMS for her treatment as she felt pain in her vagina. The alleged

history records the name of the appellant to be the perpetrator of crime on

30.03.2007 around 03.00 to 04.00 p.m. It further records that the child was

having difficulty in urinating. PW-4 (K.Aparna Sharma) deposed that her

hymen was freshly torn. FSL reports (Ex.PX and Ex.PX1) show that

blood was detected on Ex.2 (One dirty underwear) and Ex.4 (Gauze cloth

piece); humen semen was detected on Ex.2 (Underwear); Blood stains

were of 'human' origin. It lends credence to X's version of sexual assault.

X's version is consistent throughout, her statement is clean and

unequivocal; in her 164 Cr.P.C. statement (Ex.PW-11/3) recorded on

16.04.2007, she gave detailed account of the incident and named the

appellant to be the author of the crime. Before recording her statement,

various questions were put to her to ascertain if she was competent to give

statement and understood the questions properly to give rationale answers.

Certain discrepancies regarding exact place of commission of crime, etc.

are not fatal as they do not go to the root of the case. Delay of short period

in lodging the FIR has been duly explained by X's parents. Apparently,

being belonging to poor strata of society, X's father was worried about the

sale of vegetables purchased by him to avoid its destruction. He preferred

to go to sell vegetables first and then to lodge report with the police in the

evening.

8. The impugned judgment based upon fair and proper

appreciation of the evidence supported by relevant judgments needs no

intervention. Conviction under Section 376(2)(f) is affirmed.

9. Since the perpetrator of the crime was known to the victim

and belonged to their native place, he deserves no leniency particularly

when the victim was aged about five years like his daughter. Sentence of

ten years cannot be termed excessive. Default sentence for non-payment

of fine ` 1,000/- needs modification to the extent that default period

would be fifteen days instead of six months.

10. The appeal stands disposed of in the above terms. Pending

application also stands disposed of. 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 MAY 29, 2015 / tr