Delhi High Court
Sarwan Kumar vs State on 9 September, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment :09.09.2015
+ CRL.A. 836/2013
SARWAN KUMAR
..... Appellant
Through Mr. Imran Khan, Adv.
versus
STATE (GNCT OF DELHI)
..... Respondent
Through Ms. Neelam Sharma, APP for the
State.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 This appeal is directed against the impugned judgment and order
on sentence dated 18.10.2011 and 21.10.2011 respectively wherein the
appellant stands 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 a fine
of Rs.2,000/- and in default of payment of fine to undergo SI for 6
months.
2 The version of the prosecution is that the victim who was a three
years old girl had been subjected to the lust of the appellant; on the
fateful date, i.e. on 03.10.2009 while the victim was playing in the
courtyard, the accused had taken her to his jhuggi where he had
committed rape upon her. The version of the prosecution was unfolded
in the testimony of the mother of the victim who has been examined as
PW-10 (Chanchun). Her father Kailash was examined as PW-9. The
learned MM in the course of investigation had made efforts to record the
statement of the victim but being a three years old girl after putting
preliminary round of questions, the Court had noted that the witness
does not appear to answer the question and as such her statement was
not recorded. The MLC of the victim had been prepared by Dr.Sumitra
and this medical document (Ex.PW-3/A) had evidenced a torn hymen
and abrasion over her lower velva as well as injuries on her face, chest,
abdomen and legs.
3 In the statement of the accused recoded under Section 313 of the
Cr.PC, he has pleaded innocence stating that he has been falsely
implicated in the present case.
4 On the basis of the aforenoted evidence collected by the
prosecution, both oral and documentary, the appellant was tried,
convicted and sentenced as aforenoted.
5 On behalf of the appellant, learned amicus curiae submits that this
appears to be a case of false implication; there appears to be no reason
whatsoever for the appellant to have committed the crime; a suggestion
had been given to both PW-9 and PW-10 that this is a case of earlier
enmity; if the accused had committed the crime, he would not have
stayed in his jhuggi; he would have absconded. In the alternate,
submission is that since the appellant is a first time offender, he be
granted leniency in the sentence.
6 Needless to state that these arguments have been refuted.
7 The mother of the victim examined as PW-10 was the
complainant. She had on oath deposed that her husband used to drive
TSR and on the fateful day in the afternoon when her husband had gone
for duty, the accused who was living in the adjoining jhuggi took her
daughter who was playing in the courtyard on the pretext of playing.
When her daughter did not return for sometimes, PW-10 got suspicious
and she went to the jhuggi of the accused. The jhuggi was bolted from
inside. She knocked the door. There was no response. She pushed open
the door, she found the accused in naked position and underwear of her
daughter was removed. The accused was committing wrong act upon
her. On seeing her, the accused fled away from the spot. She put on the
clothes of her daughter and brought her back to her jhuggi. She
informed her husband (PW-9) about the incident. Her daughter was
medically examined. Her MLC was conducted.
8 In her cross-examination, she stated that there is one jhuggi
between her jhuggi and the jhuggi of the accused. She knew the accused
for the last 5-6 years who was also living in the neighbouring jhuggi.
Her daughter was bleeding from her private parts. Her daughter was not
in a position to speak. She denied the suggestion that the accused has
been falsely implicated due to prior enmity.
9 The husband of PW-10 was examined as PW-9. He had also toed
the version of PW-10 and had disclosed that when he returned home at
04:00 pm, he was told by his wife (PW-10) that his daughter had been
raped by the appellant. She had detailed the incident to him.
10 In his cross-examination, PW-9 stuck to his stand. He admitted
that the accused used to live with his family members. He denied the
suggestion that because of the earlier enmity, the accused has been
falsely implicated.
11 The medical record of the victim evidences that her hymen was
torn and there was penetration by admitting one index finger. Ex.PW-
3/A was prepared by Dr. Sumitra (PW-3). Abrasion and injuries were
also noted on other parts of her body i.e. her chest, cheeks and face. It is
this glaring evidence which has stare in the face of the Sessions Judge to
convict the appellant.
12 Learned counsel for the appellant has not been able to create any
dent in the version of the prosecution. Testimony of PW-10 and PW-9 is
clear, cogent and coherent. There was no reason for false implication of
the accused. A bald suggestion that because of earlier enmity (details not
discussed) the accused has been falsely implicated is neither here and
nor there. Moreover, this defence has not been adopted by the accused
while getting his statement recorded under Section 313 of the Cr.PC
where the only statement was that he was innocent. The medical record
speaks volumes. Obviously an unholy crime had been committed upon
the victim. There was no reason on the part of PW-10 & PW-9 to have
falsely implicated the accused.
13 The impugned order does not call for any interference.
14 Even on the question of sentence, there can be no modification as
the sentence imposed upon the appellant is already a minimum. The
Legislature (under the Un-amended Act) has prescribed a sentence of 10
years for an offence of rape on a child below the age of 12 years. In the
instant case, the victim was of 3 years of age. The physical, mental,
psychological and emotional trauma suffered by the victim cannot be
described in words. On no ground, the appellant deserves any leniency.
15 Appeal is without any merit. Dismissed.
INDERMEET KAUR, J
SEPTEMBER 09, 2015
A
