Rajesh vs State
2015 Latest Caselaw 7565 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : 16th SEPTEMBER, 2015
                           DECIDED ON : 5th OCTOBER, 2015

+                        CRL.A. 233/2013

      RAJESH                                              ..... Appellant

                         Through :    Mr.Jivesh Tiwari, Advocate.


                         VERSUS

      STATE                                               ..... Respondent

                         Through :    Mr.Sanjeev Sabharwal, APP.


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

S.P.GARG, J.

1. Aggrieved by a judgment dated 04.08.2011 of learned Addl.

Sessions Judge in Sessions Case No.44/10 arising out of FIR No.87/10 PS

Dabri by which the appellant - Rajesh was convicted for committing

offences under Sections 376/506 IPC, he has preferred the instant appeal

to challenge its legality and propriety. By an order dated 18.08.2011, the

appellant was awarded RI for ten years with fine `10,000/- under Section

376 IPC and RI for two years with fine `5,000/- under Section 506 IPC.

The substantive sentences were to operate concurrently.

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

sheet was that before registration of the FIR, the appellant sexually

assaulted and abused the prosecutrix 'X' (assumed name) at House

No.RZ-372, Gali No.14A, Durga Park, Sagar Pur, New Delhi, for about

six months and criminally intimidated her. The police machinery came

into motion when information was conveyed by Duty Constable Manjeet

Singh at DDU Hospital about admission of a girl 'X' aged around

seventeen years in an injured condition by her mother. Daily Diary (DD)

No.33A (Ex.PW-13/A) came into existence at 02.30 p.m. The

investigation was assigned to SI Anil Kumar who with Constable Rakesh

went to DDU Hospital and found 'X' admitted there. He moved an

application (Ex.PW-7/A) to seek permission from the doctor to interrogate

'X'. 'X' revealed that she was being continuously raped by her step-father

for the last five or six months. SI Anil Kumar apprised the SHO

concerned on telephone and the investigation was taken over by W/SI

Asha (PW-14). After recording X's statement (Ex.PW-9/A), she lodged

First Information Report. During investigation, 'X' recorded her statement

under Section 164 Cr.P.C. The accused was arrested and taken for medical

examination. Statements of the witnesses conversant with the facts were

recorded. Upon completion of investigation, a charge-sheet was filed in

the Court against the appellant. The prosecution examined sixteen

witnesses to substantiate its case. In 313 Cr.P.C. statement the appellant

pleaded false implication without producing any witness in defence. The

trial resulted in conviction for the offences as aforesaid. Being aggrieved

and dissatisfied, the instant appeal has been filed by him.

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

examined the file. Undisputably, PW-10 (Santosh), victim's mother, was

earlier married to one Babu Lal and six children were born to her out of

the said wedlock. When Babu Lal deserted her around five or six years

before, she married the appellant and started living along with her children

with him in the premises in question. In 313 Cr.P.C. statement, the

appellant admitted that Santosh (X's mother) used to live with him as his

wife without marriage along with her children, husband and mother.

4. Exact age of the prosecutrix 'X' has not surfaced on record.

PW-1 (Phool Wati), Principal, Nagar Nigam Prathmik Balika Vidhyalya,

Mahavir Enclave, disclosed that X's date of birth recorded in the school

register (Ex.PW-1/A) was 15.10.1991. 'X' had taken admission in the

school on 09.07.1997 and had left it on 31.03.2004. School Leaving

Certificate mark - 'A' was issued to her. It is unclear on the basis of what

documents date of birth 15.10.1991 came to be recorded in the school

record. Apparently, no birth certificate of the prosecutrix was submitted to

infer her exact date of birth. In her Court statement recorded on

23.11.2010 'X' claimed herself to be about seventeen and a half years.

Her mother PW-10 (Santosh) did not reveal her exact age. Obviously, 'X'

was above sixteen years of age on the day of occurrence.

5. It is not in dispute that physical relations between the

appellant and the prosecutrix took place during her stay in the premises in

question. Appellant's stand on this aspect is conflicting and contrary.

Suggestions were put in the cross-examination to material prosecution

witnesses that the physical relations with the prosecutrix were with her

consent. However, in 313 Cr.P.C. statement, the appellant denied to have

any physical relations with the prosecutrix. Admitted position is that the

prosecutrix became pregnant. She and her mother had no inkling about it.

When 'X' was taken for medical examination because of pain in her

stomach by her mother PW-10 (Santosh) on 13.04.2010, the truth came

out. PW-5 (Dr.Sarabjeet Singh) medically examined 'X' vide MLC

(Ex.PW-5/A) and found that she had four months pregnancy that time.

Necessary information was conveyed to the police. Subsequent to that, the

pregnancy was terminated on 15.04.2010 after preserving foetus. As per

DNA profiling (STR analysis) performed on the exhibits sent to DNA

Unit FSL Rohini vide report Ex.PW-14/C proved by PW-15

(Dr.A.K.Shrivastava), it was concluded that source of Ex.2 [blood sample

of Rajesh (the appellant)] was biological father of Ex.1 (foetus of the

prosecutrix). Needless to say that the appellant and the prosecutrix were

involved in physical relations as a result of which she became pregnant.

6. In her statement (Ex.PW-9/A) to the police 'X' gave detailed

sequence of events as to how and under what circumstances after criminal

intimidation, she was sexually abused and assaulted by the appellant, her

step-father. She further informed that after coming to know about

pregnancy, she consumed pills to avoid its detection as a result of which

her condition deteriorated and her mother brought her to DDU Hospital.

She specifically named the appellant to be the perpetrator of the crime.

While appearing as PW-9 in the Court, 'X' proved the version given to the

police at first instance without major variations. She implicated the

accused to have sexually assaulted her for about six months. She was

specific to state that in November, 2009 when she was alone in her house,

the accused caught hold of her. When she tried to shout, he clamped her

mouth. After extending threats to kill her and pressing her neck, he

committed rape upon her. It continued for about six months. In the cross-

examination, she elaborated that the accused used to rape her during day

time. She did not divulge the occurrence to her friends or siblings due to

fear. She denied that the appellant was falsely implicated to put pressure

to transfer the ground floor of the premises in question in her mother's

name.

7. PW-10 (Santosh) has corroborated X's version in its entirety.

She deposed that from 'X', she came to know that the appellant was

author of the crime. She came to know about her pregnancy when she was

taken to DDU Hospital after she complained to have pain in her stomach.

When she enquired from 'X', how she became pregnant, she named the

appellant.

8. There are no valid or tangible reasons to disbelieve the

testimonies of PW-9 and PW-10 in this regard. Despite searching cross-

examination, no material infirmities could be extracted to cause dent in

their versions. Both the witnesses were closely related to the appellant and

were in his company for the last five or six years. They had no ulterior

motive to falsely name the appellant for the dreaded crime. Their

statements whereby the appellant established physical relations with 'X'

have been confirmed by DNA report. Feeble attempt was made by the

appellant to allege that false implication was to put pressure upon him to

transfer the ground floor of the premises in question in favour of PW-10

(Santosh). During investigation or trial, nothing surfaced as to when the

premises in question were purchased by the appellant. Admittedly, first

floor of the premises in question was transferred in the name of X's

mother. However, it is unclear as to on what date and for what purpose the

said transfer took place. It is unclear whether it was before the incident of

commission of rape or after the registration of the FIR. PW-10 (Santosh)

admitted that the first floor was transferred in her name. She, however,

volunteered to add that the appellant had taken advance money from some

property dealer for the sale of said floor and subsequently she had

returned double the amount of advance money to the said property-dealer

and as she did not have faith in him (the appellant), she asked him to first

execute the transfer paper of the first floor in her name. She further

elaborated that the said amount to the property dealer was given in cash

after withdrawing it from her account and the account of the prosecutrix.

She categorically stated that she did not want the documents of the ground

floor executed in her name. No comprehensive investigation has been

carried out on this aspect. It is not clear as to who is in possession of the

ground floor of the premises in question. The documents of execution of

first floor in favour of Santosh are not on record. It is unbelievable that to

get the documents of the ground floor executed in her name, Santosh, X's

natural mother would use her to falsely implicate the accused. It stands

established that physical relations were established by the appellant with

the prosecutrix. So there was no question of his false implication.

9. Under Section 114 of the Evidence Act, it was heavily upon

the appellant to prove that sexual intercourse with the prosecutrix was

with her consent. The appellant did not explain how and in what manner

he got X's consent for physical relations. Relationship between the parties

was that of father and daughter. Under normal circumstances, it was

unthinkable that a father or step-father would demand or ask sexual favour

from his own daughter under his protection and care since the age of 12 or

13 years. The appellant was to establish beyond doubt that 'consent' (if

any) given by the prosecutrix for physical relations was voluntary and

free. The appellant wielded an imposing authority over the child. Their

relationship was of utmost faith and trust. It was for the appellant to prove

that the prosecutrix was not under fear or undue influence to submit

herself. Consent under Section 376 IPC requires exercise of intelligence

based on the knowledge of the significance and moral quality of the act

and there must be a choice between the resistance and assent. Submission

of the body under the influence of fear or terror is no consent.

10. In the instant case, a girl aged around eighteen years was not

imagined to submit her body to the barbaric lust of her step-father with

her free consent. Had it been so, there was no occasion for her to implicate

the appellant in the crime. Neither the appellant nor PW-10 (Santosh)

were aware of her pregnancy. Had the pregnancy been result of

consensual sex, the prosecutrix must have revealed it to the appellant to

assist her in its termination. Instead 'X' on her own consumed pills to

abort it to avoid its detection due to fear. When her condition deteriorated,

it was her mother who took her to DDU Hospital for medical examination.

11. No sound reasons exist to disbelieve 'X' merely because she

did not inform her mother and other siblings or friends of sexual abuse. It

is to be noted that the perpetrator of the crime was none else but her step-

father under whose protection she along with her other family members

was living. It required a lot of strength and courage to report against her

father. 'X' suffered in silence and even became pregnant which she

would never had desired.

12. It is true that in her 164 Cr.P.C. statement (Ex.PW-3/B), 'X'

exonerated the appellant and informed the learned Presiding Officer that

physical relations with the appellant were with her free consent. The said

statement was recorded on 17.04.2010 and by that time, the appellant had

already been taken into custody. Appellant's anxiety was to get her father

released from custody. It appears that she opted to take entire blame upon

herself. She was bold enough to claim that physical relations with the

appellant were with her free consent. If tenor of the statement is analysed

minutely, it reveals that despite the appellant to have sexually abused her,

she did not want him to be 'punished'. She eagerly desired that her father

should be released; she did not want any punishment for him. She further

informed the Presiding Officer that her father was caught hold by the

police on the complaint lodged by the examining doctor. She and her

mother had not lodged any complaint and both wanted the police to

release him. It shows X's love and affection towards her father and

despite being ravished, she opted to exonerate him. In Court statement,

she was categorical to implicate the appellant. So merely because at one

stage in 164 Cr.P.C. statement the prosecutrix opted to exonerate the

appellant, his otherwise cogent testimony in Court cannot be suspected or

doubted. The Trial Court has dealt with all the aspects minutely.

Conviction is based upon fair appraisal of the evidence and warrants no

intervention.

13. Considering the gravity of offence and the relationship of the

appellant with the prosecutrix, Sentence Order requires no modification

except that default sentence for non-payment of fine shall be one month in

all.

14. 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 OCTOBER 05, 2015 / tr