Hari Shankar Kumar vs State Govt. Of Nct Of Delhi
2015 Latest Caselaw 7744 Del

$~R-91

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment reserved on : 29.9.2015
                                  Judgment delivered on : 09.10.2015

+      CRL.A. 36/2013

       HARI SHANKAR KUMAR                                  ..... Appellant

                         Through       Mr. K. Singhal, Advocate.

                         versus

       STATE GOVT. OF NCT OF DELHI                     ..... Respondent

                         Through       Ms. Neelam Sharma, 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 15.10.2012 and 26.10.2012 respectively wherein the

appellant had been convicted under Section 376 of the IPC. He had

been sentenced to undergo RI for a period of 10 years and to pay a fine

of Rs.20.000/- for the offence; this amount of Rs.20,000/- was directed

to be paid to the prosecutrix as compensation, in default of payment of

fine the convict was to undergo SI for 6 months. Benefit of Section 428

of the Cr.P.C. had also been granted to the appellant.

2 Nominal roll of the appellant reflects that as on date he has

undergone incarceration of almost about 5 years including remissions.

3 Version of the prosecution was unfolded after recording of DD

No.24A (dated 28.7.2011) wherein it was disclosed that one person had

been apprehended from House No.31A, Jamini Park, Nangli Sakrawati,

Najafgarh, New Delhi. SI Ram Dhan (PW-8) along with Constable

Surender (PW-11) reached the spot. The appellant Hari Shanker had

been apprehended. He was being beaten by the public. He was handed

over to PW-8 by Vijay Kumar (PW-3). A complaint was registered

against the appellant. The version of the prosecution was that the

prosecutrix "S" (examined as PW-2) who was studying in the 6th class

was being given tuitions by the appellant. On 23.7.2011 while the

appellant was giving tuition, he bolted the door from inside and

committed rape upon PW-2. Statement of PW-2 was recorded to the

said effect. Her version being that on that date i.e. on 23.7.2011 at about

5.30 p.m. the appellant had come to her house to give tuition to her. On

the asking of the appellant her brothers went out of the room. The

appellant bolted the room from inside and committed rape upon her.

Her parents were not at home. She was threatened not to disclose the

incident to anyone or else she would be killed. She did not disclose the

incident to her parents on that date. The incident was finally disclosed

on 28.7.2011 pursuant to which the present FIR has been registered.

The mother of the victim Anju Devi was examined as PW-4 and her

brother Master Digvijay was examined as PW-10. The victim was

medically examined on 28.7.2011 by Dr.Shruti Joshi Dabral (PW-13).

Her MLC (Ex.PW-13/A) had noted her hymen to be not intact. The

appellant was arrested. He was also subjected to a medical examination

and as per the report of the Dr.A.S.Yadav (PW-15) there was nothing to

suggest that he could not perform the sexual act.

4 In the statement of the appellant recorded under Section 313

Cr.P.C. he pleaded innocence. His submission being that he had been

falsely implicated as there was a money dispute as he had received an

overtime of Rs.5000/-, the father of the victim who was also working

with him in the same department wanted a share in this amount pursuant

to which a quarrel had taken place with PW-3 and this had led to his

false implication.

5 In defence the appellant had produced one witness. DW-1 was

Avdesh. He was working as a security guard in the Ircon International.

He had produced the attendance register to substantiate the stand of the

appellant that on the fateful day his attendance was marked in the

department between 8.00 a.m. to 6.00 p.m. and thus the version of the

prosecution that the incident had taken place at 5.00 p.m. on 23.7.2011

was negatived.

6 On behalf of the appellant arguments have been addressed in

detail.

7 The foremost argument of the appellant is that a benefit of doubt

must be given to the appellant for the dents which he had created on the

versions of the prosecution through DW-1 and there was sufficient

evidence to establish that on the fateful day i.e. on 23.7.2011 the

appellant was working in his office from 8.00 a.m. to 6.00 p.m. and as

such the version of the prosecution is dented. There is also no

explanation for the inordinate delay in lodging the FIR which was after a

period of 5 days; the MLC also does not support the version of the

prosecution as no injury was noted upon the person of the victim. Had it

been a case of forceful rape some kind of injuries would have been

noted upon her person. It is also difficult to believe as to how semen

was detected on the vaginal and anal swabs of the victim when even as

per the prosecution the incident had occurred five days earlier i.e. on

23.7.2011. The version of the prosecution was concocted.

8 Needless to state that learned APP for the State has refuted these

submissions.

9 Arguments have been heard. Record has been perused.

10 The victim has been examined as PW-2. She was a 12 year old

girl. After putting a preliminary round of questions to her, she was

examined. She deposed that on 23.7.2011 Ram Shankar Yadav who

used to give tuitions to her had come to her house at about 5.00 p.m. On

some pretext he sent her two brothers outside the room and thereafter he

committed rape upon her. He threatened her not to disclose this incident

to any person. Her statement was recorded under Section 164 Cr.P.C.

This witness was permitted to be cross-examined by the learned APP as

she had wrongly given the name of the appellant as Ram Shankar

Yadav; his name was Hari Shankar. In her cross-examination, she

admitted that the name of her tutor was Hari Shankar and the accused

standing in the Court was the person who had committed rape upon her.

She correctly identified him. She clarified that because of fear she had

wrongly given the name as Ram Shankar Yadav whereas the name of

her tutor was Hari Shankar.

11 She was subjected to cross-examination. There was nothing to

dent her version. She had in her cross-examination stated that at the

time when the act of rape was being committed Kavita had knocked at

the door and after putting on his own clothes and her clothes the

appellant opened the door. On this count learned counsel for the

appellant submits that Kavita has not been examined; she was a relevant

witness.

12 This Court notes this submission but is of the view that Kavita

can in no manner be said to be a relevant witness. It is not the version of

PW-2 that Kavita had the seen any incident or that PW-2 had disclosed

anything to Kavita. In this background non-citing of Kavita as a witness

is an argument wholly without merit.

13 The version of PW-2 was corroborated by her medical evidence

i.e. her MLC (Ex.PW-13/A). Hymen was not found intact. There is no

doubt that no injury had been noted upon her person in spite of the fact

that an act of rape had been committed upon her but in all cases

evidence of injuries may or may not be a relevant circumstance to prove

the allegation of rape.

14 In this context, the observations of the Supreme Court in the case

of Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635 are relevant.

They read as under:

"........non-rupture of hymen or absence of injury on victim's private parts does not belie her testimony. This Court further held that the opinion of doctor that no rape was committed cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. This Court held that the evidence of the prosecutrix was amply corroborated by her mother and father whom she immediately informed about the occurrence."

15 Version of PW-2 is clear, coherent and cogent. There was no

reason for a 12 year old child to implicate the appellant. The fact that he

used to give her tuition is supported not only from her own version but

also by the version of her brother (PW-10) her father (PW-3) and her

mother (PW-4). Admittedly, the appellant was working in Ircon

International , the same company where PW-3 was also working. PW-3

was a security guard and the appellant was working in the capacity of a

supervisor. These facts are admitted.

16 The defense of the appellant and the plea of alibi which has been

set up by him only found mention at the time when he was asked to lead

his evidence in defense. This defense was never disclosed earlier. It did

not find mention in the cross-examination of the witnesses of the

prosecution; it is also in conflict with the defense raised by the appellant

in his statement recorded under Section 313 Cr.P.C.. In his statement

under Section 313 Cr.P.C. the appellant had stated that because he had

taken an overtime amount of Rs.5000/- in which PW-3 wanted a share

this had led to a quarrel and false implication of the appellant. The

defense of the appellant through DW-1 was wholly different. Plea of

alibi set up and the version of the appellant being that the appellant was

not present at the spot at the time of incident. The attendance register

which DW-1 had brought (Ex.DW-1/A) was a document rightly rejected

by the Trial Judge as this document even did not contain a stamp of the

company i.e. Ircon International. Even otherwise the defense

vacillating and the appellant not being sure of his stand; it was

obviously for the reason that the defense was not an honest defense.

17 Ingredients of Section 376 of the IPC stood established. A 12 year

old girl has been ravished by her tutor. The trust and faith which had

been reposed by this minor girl in her so-called „guru‟ was destroyed by

the act of the appellant. She could not report the matter earlier than

28.7.2011 as she was under threat from the appellant. After the fateful

day of 23.7.2011, (the evidence on record shows), the appellant had

gone to his native village and had come back again only on 28.7.2011 to

give her tuition. She refused to take tuitions from him at that point of

time and revealed the incident to her mother. The mental and

psychological trauma which the minor victim must have suffered in this

intervening period is understandable. Her apprehension and fear of not

disclosing the incident earlier to 28.7.2011 is explained.

18 The conviction calls for no interference. However, noting the

submission of the learned counsel for the appellant that the appellant is

young in years and he has a wife and a family to support leniency in

sentence is considered. Accordingly, the sentence of RI for a period of

10 years is reduced to RI for a period of 8 years. Sentence of fine

which is by way of a compensation to be paid to the victim calls for no

interference.

 19     Appeal disposed of in the above terms.



                                      INDERMEET KAUR, J
OCTOBER 9, 2015
ndn