Delhi High Court
Sonu vs State on 24 November, 2015
Author: Indermeet Kaur
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 16.11.2015
Judgment delivered on : 24.11.2015
+ CRL.A. 1321/2013
SONU ..... Appellant
Through Mr.M.L.Yadav, Advocate.
versus
STATE ..... Respondent
Through Mr. Tarang Srivastava, APP for
the State.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 This appeal is directed against the impugned judgment and order
on sentence dated 11.07.2012 and 14.08.2012 respectively wherein the
appellant namely Sonu stood convicted under Section 376(2)(f) of the
IPC. He has been sentenced to undergo RI for a period of 10 years and
to pay fine of Rs. 5,000/- and in default of payment of fine to undergo
RI for a period of 2 months. Benefit of Section 428 of the Cr.P.C has
been granted to the appellant.
2 Nominal roll of the appellant has been requisitioned. This reflects
that as on date the appellant has undergone incarceration of almost about
8 years which includes remissions earned by him. The version of the
prosecution was unfolded in the statement of the mother of the victim
Seema. She was examined in Court as PW-5. Her version which was the
basis of the FIR was to the effect that on 22.03.2008 while she was
cooking food and her daughter (the prosecutrix-PW-3) aged about 8
years was playing in the gali and when she went looking out for her
daughter she heard her crying. PW-3 narrated the incident to her which
was to the effect that the appellant Sonu, who was the neighbor, had
called PW-3 to his room on the pretext of giving Holi colours being a
Holi day. He bolted the door from inside; after removing his underwear
he committed, unholy act of rape upon her daughter. PW-3 was bleeding
from her private parts. She was medically examined by Dr. Rakhi (PW-
8). Her medical report was proved through Dr. Sandhya (PW-11). The
appellant after his arrest was also medically examined. His MLC Ex.
PW12/A suggested that there was nothing to show that he could not
perform the sexual act. The Investigating Officer SI Dharampal was
examined as PW-14.
3 In the statement of the accused recorded under section 313 of
Cr.P.C. he stated that this was a case of false implication. There was a
money dispute between himself and Seema (PW-5) who had taken a
loan of Rs. 20,000/- from his cousin and since she was not repaying the
amount this false case has been planted upon him. DW-1 Kiran Singh,
his cousin has come into the witness box to support his defence.
4 The Trial Court has rejected the defence of the appellant. On the
basis of the evidence collected by the prosecution both oral and
documentary the appellant was nailed and sentenced as aforenoted.
5 On behalf of the appellant the foremost argument propounded by
the learned Amicus Curiae is that the prosecutrix herself has not been
able to narrate the incident; she has been silent. Her statement recorded
under section 164 of the Cr.P.C. is contrary to the version recorded even
on oath. Her version is not clear. PW-5 her mother was only a hearsay
witness. There is also no medical evidence to connect the appellant with
the crime. The doctor who had medically examined the victim PW-8 Dr.
Rakhi was not cross examined on all counts; the appellant is entitled to
benefit of doubt and a consequent acquittal.
6 Needless to state that these arguments have been refuted by
learned Public Prosecutor.
7 The FIR was registered on the complaint of the mother of the
victim. She was examined as PW-5. She has deposed that on the date of
occurrence i.e. 22.03.2008 while her daughter (PW-3) was playing
outside in the gali, she was cooking food ; she went out looking for her
daughter but she did not find her; she informed her husband; she and her
husband went for search of her daughter; when PW-3 returned she was
weeping; she narrated the incident to her mother which was to the effect
that appellant Sonu who was their neighbor committed "galat kaam" on
her; blood was oozing out. Police was called and the present FIR was
lodged.
8 PW-5 Seema was cross examined. She reiterated the version in
her chief. Relevant would it be to note that no suggestion had been given
to the victim that this is a case of false implication for the reason that Rs.
20,000/- which was a money dispute, had arisen between PW-5 and the
cousin of the appellant. This defence which has now been projected at
the time when the statement of the accused was recorded under section
313 of the Cr.P.C was thus clearly an afterthought. This was not taken at
the initial stage. Had it been a honest defence, it would have found
mention in the suggestions given to PW-5 but was not so.
9 Prosecutrix aged 8 years could not be examined under section 164
of the Cr.P.C. Before her examination on oath in Court a preliminary
round of questions were put to her. She was then examined without oath.
She has deposed that on the day of Holi the appellant who was the
neighbor called her in his room on the pretext of giving her Holi colours.
He removed her underwear. He also removed his underwear and did
wrong act with her. She felt pain at the place from where she was
passing urine. She started bleeding. She managed to escape from the
door and narrated the incident to her mother. This witness was cross
examined. She admitted that the appellant was under the influence of
liquor at the time of incident. She managed to flee by opening the kundi
of the door. She denied the suggestion that she is a tutored witness.
Relevant would it be to note that this witness was also not suggested on
the line of defence now propounded before this Court; it was not
suggested to her that it was due to a money dispute between PW-5 and
the cousin of the appellant that PW-3 has falsely implicated the
appellant.
10 The victim was medically examined on the same day by Dr.
Rakhi, who was a senior resident at Lal Bahadur Shastri Hospital. Her
detailed examination vide MLC Ex. PW 8/A showed dried blood stains
on medial side of thigh and legs; hymen not intact, a midline tear
extending from psoterio fourchette to anus. Bleeding was also found.
Cross examination of this witness was deferred for the next date on
which date Dr. Usha Upreti (PW-9) had come to depose on behalf of
Dr. Rakhi as Dr. Rakhi had left the Hospital. PW-9 had categorically
stated that she can recognize the handwriting of PW-8 who prepared the
MLC and accordingly proved as Ex. PW-8/A. This document was
exhibited as per the rules of Evidence. Submission of learned defence
counsel on this score that this document cannot be read in evidence is
thus futile.
11 The medical record of the victim clearly shows that not only
injuries were found on various parts of her body but there was also
blood clot found on the thigh and legs. There was a tear extending from
psoterio fourchette to anus. This documentary evidence thus fully
corroborated the oral testimony of PW-3 and PW-5.
12 The defence projected by the appellant that this was a case of
false implication was rightly rejected by the Trial Judge. The Trial Judge
has correctly noted that this defence was not projected in the first place;
had it been a true defence it would have been taken at the very first
instance i.e. at the stage of cross examination of the witnesses of the
prosecution. This was not the defence at that time. This defence was
taken at a later stage i.e. when the statement of the appellant was
recorded under section 313 of the Cr.P.C. i.e. more than 3 years after the
date of offence clearly shows that this was on legal advice.
13 The exhibits which included the vaginal swap and undergarments
had been seized; so also blood samples of the accused. The forensic
evidence i.e. report of CFSL evidenced blood on the vagina, underwear
blody clothes of the victim but since the blood sample of the appellant
was purified the connectivity on this count could not be established.
14 The oral and ocular version of PW-3 and PW-5 was consistent
and cogent. There was no reason for the Court to disbelieve it. The case
of false implication is clearly ruled out. The medical evidence also
supported this oral evidence. On no count does the impugned judgment
calls for any interference. Since the victim was a minor aged about 8
years and being less than 12 years the appellant has already been given
minimum punishment which is imprisonment for a period of 10 years.
Neither the conviction nor does the sentence call for any interference.
15 Appeal is without any merit. Dismissed.
INDERMEET KAUR, J
NOVEMBER 24, 2015
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