Zuber vs State (Nct Of Delhi)
2015 Latest Caselaw 7876 Del

$

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : OCTOBER 05, 2015
                           DECIDED ON : OCTOBER 14, 2015

+                  CRL.A. 1260/2013 & Crl.M.B.3054/2015
       ZUBER                                           ..... Appellant
                        Through :    Ms.Suman Chauhan, Advocate.
                        versus
       STATE (NCT OF DELHI)                      ..... Respondent
                        Through :    Mr.Amit Gupta, APP.
        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 13.09.2012 of learned

Additional Sessions Judge in Sessions Case No.75/2011 emanating

from FIR No. 211/2011 registered at Police Station Khajuri Khas by

which the appellant-Zuber was held guilty for committing offences

under Section 376(2)(f)/363/366/354/506 IPC, he has filed the instant

appeal. By an order dated 19.09.2012, the appellant was awarded

various prison terms with fine. The substantive sentences were to

operate concurrently.

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

was that on 11/07/2011, the appellant after kidnapping the prosecutrix

'X' (assumed name), aged around 11 years from the lawful

guardianship of her parents, took her at his residence at House

No.10/711, A-Block, Shri Ram Colony, Khajuri, Delhi and committed

rape upon her. Information about the incident was conveyed to the

police and Daily Diary (DD) No. 10A (Ex.PW12/A) came into

existence at 9.50 AM at PS Khajuri Khas on 13.07.2011. The

investigation was assigned to ASI Tejwati who along with HC Roshni

went to the spot. After recording statement of victim's mother (Ex.PW-

2/A), the Investigating Officer lodged First Information Report. 'X'

was medically examined; she 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.

Exhibits collected during investigation were sent for examination to

Forensic Science Laboratory. Upon completion of investigation, a

charge-sheet was filed in the Court. The prosecution examined fourteen

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

appellant denied his involvement in the crime and pleaded false

implication without examining any witness in defence. The trial

resulted in his conviction as aforesaid. Being aggrieved and

dissatisfied, the instant appeal has been preferred.

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

examined the file. The victim in the instant case is a girl of tender age.

She was a student of Vth standard. PW-10 Anand Mittal, School

Incharge, Nigam Girls School, Rajeev Nagar-I, Shahdara (North),

Delhi, produced and proved the school record where at the time of

admission, 'X's date of birth was recorded as 21.05.2000. It was

recorded on the basis of an affidavit filed by the victim's mother. The

relevant documents proved are Ex.PW-10/A to Ex.PW-10/D. These

have been issued by a Government official in the discharge of his

official duties and there are no reasons to disbelieve the same. Entries

in the school register and admission forms regarding date of birth

constitute good proof of age. 'X' got admission in the aforesaid school

in Ist standard on 22.08.2008. 'X's parents never anticipated such an

unfortunate incident to happen in future to manipulate her date of birth

in 2008. The appellant did not claim if the prosecutrix was more than

16 years of age and it was a case of sex with consent. 'X' in her

deposition claimed that she was aged around 11 years on the day of

incident.

4. The incident whereby 'X' was sexually assaulted is not under

challenge. Appellant's only plea is that he was not the author of the

crime and it was the handy work of someone else. In this regard,

material testimony is that of the prosecutrix 'X' (PW-1). In her 164

Cr.P.C. statement (Ex.PW1/A), recorded on 14.07.2011, 'X' named the

appellant to be the perpetrator of the crime. She gave detailed account

as to how and under what circumstances she was ravished by the

appellant. She elaborated that when she was coming back from her

school on 11.07.2011, the accused took her inside his house and served

her bread, chorma and sweets. Thereafter, he committed rape upon

her. She was threatened not to disclose the incident. When her mother

inquired from her about blood stains on her wearing clothes, she

narrated her ordeal to her. Before recording 164 Cr.P.C. statement, the

learned Presiding Officer had put various questions to the child witness

to ascertain if she was making her statement voluntarily without any

fear or pressure. In her Court statement as PW-1, the learned Presiding

Officer before recording her statement conducted a preliminary inquiry

and satisfied himself that the witness was competent to make

statement. In her Court deposition, she identified the appellant, who

lived in her neighbourhood and to whom she used to call 'Abba', to be

the individual who had ravished her in his room after taking her there.

She gave vivid description as to how and under what circumstances she

was defiled. The accused even gave `20/- to her for not disclosing the

incident to any one. She further deposed that due to fear, she did not

disclose the incident. On the next morning when her mother was

getting her ready for school, she saw blood on her salwar and on

inquiry she divulged the entire incident to her. In the cross-

examination, she reiterated that the accused had committed 'wrong act'

with her. She denied that she was taken by one 'Churanwala' from the

gate of her school on the date of incident. She denied that her mother

had tutored her to make the statement. She further denied that there

was any quarrel between her father and the accused.

5. On scanning the testimony of the prosecutrix as a whole it

reveals that despite lengthy examination, no material discrepancy could

be extracted to suspect her version. No ulterior motive was assigned to

the child witness to implicate the appellant with whom there was no

history of hostility prior to the incident. 'X' used to call the appellant

aged around 65 years 'Abba'. She had no valid reasons to make a false

statement to implicate him for the serious offence of rape to have

reflection on her own chastity. PW-2 (Samsheeda) has corroborated

'X's version in its entirety. In her complaint (Ex.PW-2/A) lodged

without inordinate delay, she had given detailed account of the incident

and had named the appellant to be the author of the crime. While

appearing as PW-2, she proved the version given to the police without

any variation. In the cross-examination, she disclosed that her

daughter had low Intelligence Quotient (I.Q). She informed that the

victim who was semi-mentally retarded used to remain alone in the

house in her absence. The accused used to live alone in a rented

accommodation nearby. She denied that there was a quarrel between

her and the accused before the incident. She further denied that the

victim had sustained injuries on her private parts while playing with

children in the gali. She was emphatic to say that no one would like to

implicate falsely any person using her daughter. PW-3 (Naimuddin)

has supplemented the version narrated by her mother and sister.

6. The defence put by the appellant is devoid of merits and

deserves outright rejection. He has taken different contradictory pleas

at different stages of the trial. Nothing has come on record to show if

any serious quarrel had taken place between the appellant and 'X's

family members any time. No complaint for the said quarrel was ever

lodged with the police. The appellant did not examine any witness

from the locality to corroborate his version on this aspect. Moreover,

for a petty quarrel (if any), 'X's parents are not imagined to falsely

implicate the accused to spoil the reputation of their unmarried

daughter of tiny age. In the absence of prior animosity or enmity, the

parents of a minor daughter can't think to level such serious

allegations. 'X's mother was not aware of the incident and became

suspicious only when she noticed blood on 'X's clothes. 'X's

testimony is found reliable and trustworthy. Conviction can be

recorded on the sole testimony of the prosecutrix if her evidence

inspires confidence and there is absence of circumstances which

militate her veracity.

7. PW-13(Dr. Geetika Trivedi) proved 'X's MLC (Ex.PW-13/A).

On local examination on 13.07.2011, victim's hymen was found

ruptured. There was mild bleeding. Apparently, there is no conflict

between the ocular and medical evidence.

8. Settled law is that the testimony of a child witness cannot be

rejected out-rightly. The evidence must be evaluated carefully and with

greater circumspection because a child is susceptible to be swayed by

what others tell him and a child witness is an easy prey to tutoring. The

Court has to assess as to whether the statement of the victim before the

court is voluntarily expression of the victim and that she was not under

the influence of others. As observed above, there is no indication if the

prosecutrix was tutored; her statement is consistent throughout. In 313

Cr.P.C. statement, the appellant did not give plausible explanation to

the incriminating circumstances appearing against him.

9. The impugned judgment based upon fair appraisal of evidence

requires no intervention. Considering the gravity of the offence

whereby a child, aged around 11 years was ravished by the appellant

aged about 65 years, he deserves no leniency. 'X' was like his

daughter and she had reposed trust in him. The appellant who lived in

the neighbourhood not only betrayed the trust of 'X's parents but also

defiled her at her tender age. Rape on a tender aged girl is bound to

create a permanent impact and impression on the mind of such a girl,

which may permanently affect her adversely. Sentence order deserves

no modification.

10. The appeal lacks merits and is dismissed. All pending

application(s) stand disposed of.

11. Trial Court record be sent back forthwith with the copy of the

order. Intimation be also sent to Superintendant Jail.

(S.P.GARG) JUDGE October 14, 2015/sa