Prem Singh vs State (Nct Of Delhi)
2015 Latest Caselaw 6943 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                     RESERVED ON : 1st SEPTEMBER, 2015
                     DECIDED ON : 15th SEPTEMBER, 2015

+                        CRL.A. 1055/2013
      PREM SINGH                                        ..... Appellant
                         Through :    Mr.Sitab Ali Chaudhary, Advocate.
                         versus
      STATE (NCT OF DELHI)                     ..... Respondent
                    Through : Mr.Amit Ahlawat, APP.
      CORAM:
      HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.

1. Present appeal is directed to impugn a judgment dated

17.07.2012 in Sessions Case No. 235/09 arising out of FIR No.241/2009

PS Sultanpuri by which the appellant - Prem Singh was held guilty for

committing offences under Sections 376/506 IPC. By an order dated

20.07.2012, he was awarded RI for ten years with fine ` 20,000/- under

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

506 IPC. Both the sentences were to operate concurrently.

2. Briefly stated, the prosecution case in the charge-sheet was

that in between 14.08.2008 to December, 2008 at various places including

A-158, Raj Park, Sultan Puri, and Rajiv Gandhi Cancer Hospital, the

appellant committed rape upon the prosecutrix 'X' (Assumed name) aged

around 13 years and also criminally intimidated her. Information about the

sexual abuse was reported to the police on 04.07.2009. Investigating

Officer after recording X's statement (Ex.PW-2/A) lodged First

Information Report. 'X' was medically examined; she recorded her

statement under Section 164 Cr.P.C. The accused was arrested.

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 seventeen

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

denied his involvement in the crime and pleaded false implication; no

defence evidence was produced. The trial resulted in his conviction as

aforesaid. Being aggrieved and dissatisfied, the instant appeal has been

preferred.

3. Victim 'X' was aged around 13 years when she was ravished

for the first time on 14.08.2008. PW-14 (Ajay Kumar), Sub-Registrar,

Death and Birth, Nangloi, proved X's birth certificate (Ex.PW-14/A)

where her date of birth was registered as 29.12.1995. No suggestion was

put to the prosecution witnesses if 'X' was more than 16 years on the day

of incident. No sound reasons prevail to disbelieve the date of birth

recorded in Ex.PW-14/A as X's parents never anticipated such an

unfortunate incident to happen in future to manipulate her age that time.

Statement (Ex.PW-2/A) forming basis of FIR and MLC (Ex.PW-7/A)

record her age as 14 years. In her Court deposition, 'X' disclosed her age

15 years on the day of her examination on 16.04.2010. Apparently, she

was below 16 years and even her consent to have physical relations with

the appellant was of no consequence.

4. On scrutinising the statements of the prosecution witnesses, it

stands established that 'X' was a willing and consenting party throughout

to have physical relations with the appellant. Both were neighbours and

acquainted with each other. They used to remain in regular touch with

each other on mobiles. On the day of incident i.e. 14.08.2008, 'X' visited

appellant's house to collect certain old newspapers where physical

relations took place. In the statement (Ex.PW-2/A) given to the police at

the first instance, 'X' gave detailed account as to how and under what

circumstances, physical relations were established by the appellant in his

house on 14.08.2008. She further informed that on two other occasions

also, she was sexually assaulted. She further informed that the accused

had taken her nude photographs and used to criminally intimidate her. In

164 Cr.P.C. statement (Ex.PW-1/B), the prosecutrix reiterated her version

given to the police and implicated the appellant for sexual abuse. In her

Court statement as PW-1, she deposed that when she had gone at the

appellant's residence to collect old newspapers, she was sexually abused

after administering 'something' in a drink. After consuming it, she

became unconscious. In the cross-examination, she revealed that the

accused was 'alone' in the house that time. Needless to say, complete and

entire version given by 'X' to the police in her statement (Ex.PW-2/A)

and the one recorded under Section 164 Cr.P.C. has not been proved. She

omitted to testify if on any other occasion too either at Rajiv Gandhi

Cancer Hospital or in a lady's house, rape was committed upon her.

Certain discrepancies have emerged in her statements recorded at various

stages of the investigation / trial. She made improvement in Court

Statement alleging that physical relations were made after administering

'something', as a result of which, she became unconscious.

'X' was, however, certain and categorical to depose that the

appellant established physical relations with her first time in his house

when she had gone there to fetch old newspapers. No sound reasons exist

to disbelieve the statement of the child witness on this aspect. She had no

ulterior motive to level serious allegations of rape against an acquainted

with whom there was no history of previous enmity or hostility. As

observed above, seemingly being a consenting party, she never lodged any

complaint against the appellant to her parents or any authority. She did not

raise alarm or protest at the time of occurrence and did not suffer any

visible injuries on her body. She remained mum for months together

despite being defiled on other occasions till December, 2008. The incident

came to light when X's parents suddenly found certain uncalled for

'missed calls' in her mobile. When confronted, she admitted to have

physical relations with the appellant. PW-2 (Mamta), X's mother

elaborated in her examination-in-chief that on enquiry from 'X' about

'missed calls', she informed that the appellant had established illicit

relations with her in his house in 2008 and also on two or three other

occasions 'X's parents were quick to put the police machinery into

motion. Delay of about seven months, thus, does not absolve the

appellant's guilt as 'X' being below 16 years was incapable to give

consent for physical relations. It is apt to note that the appellant aged

around 37 years had sufficient maturity to understand the consequence of

having physical relations albeit with consent with a child aged around 13

years.

5. X's statement has been corroborated in material particulars

by PW-2 (Mamta), her mother; PW-3 (Rajesh Kumar) and PW-5 (Jagdish

Jain). PW-8 (Nazma Khan), Counseller from an NGO, has also

supplemented her version. Medical evidence is also not at variance. On

04.07.2009, 'X' was medically examined by PW-7 (Dr.Surekha) vide

MLC Ex.PW-7/A; her hymen was found torn. In the alleged history

recorded therein 'X' named the appellant to have sexually assaulted her.

In 313 Cr.P.C. statement, the appellant did not give plausible explanation

to the incriminating circumstances appearing against him. He failed to

explain as to in what context and for what purpose, he used to remain in

touch with the prosecutrix on her mobile.

6. Delay in lodging the FIR is not fatal in the instant case as the

prosecutrix was possibly a consenting party and her parents were not

aware about the objectionable relations between the two. After finding

unusual 'missed calls' in the mobile of the prosecutrix, they became

suspicious and without wasting any time lodged First Information Report.

'X', a school going child, victim of sexual abuse at the hands of rapist of

the age of her father had no reasons to level false allegations of rape to put

her honour at stake. When she was confronted by her parents, she had no

option but to divulge the truth. Apparently, she continued to suffer in

silence as it involved her prestige as well as prestige of her family. She

had no courage on her own to go before the Police and lodge a report.

7. Certain discrepancies and minor embellishments in her

statement are inconsequential as they do not affect the core of the

prosecution case whereby the appellant had established physical relations

with a minor child. Conviction under Section 376 IPC based upon fair

appreciation of evidence cannot be faulted. Since 'X' was a consenting

party, there was no possibility of the appellant extending threats to her to

criminally intimidate her. Conviction under Section 506 IPC cannot be

sustained and is set aside.

8. The appellant was sentenced to undergo RI for ten years with

fine ` 20,000/- under Section 376 IPC. Nominal roll dated 05.08.2013

reveals that he has already undergone four years and twenty-nine days

incarceration besides remission for three months and three days as on

05.08.2013. It further reveals that he is a first time offender and is not

involved in any other criminal case. His overall jail conduct is

satisfactory. Sentence order records that he has studied upto BA (Second

Year) and was doing computer hardware work. During custody in jail, he

won Certificate of Appreciation and also won the Best Teacher award. He

is involved in education work in jail. Aggravating circumstance is that the

appellant was aged around 37 years and was unmarried. He lived in the

neighbourhood of the prosecutrix; betrayed her parents' trust and abused

an innocent girl of tender age of 13 years, who was like his daughter. He

exploited innocence of a school going child. Court can well understand

the trauma of X's parents. 'X's silence encouraged him to indulge in

sexual relations repeatedly. Sentence order records that the convict during

the relevant time roamed freely and had started treating 'X' as an object to

satisfy his carnal / sexual needs, available at his back and call without

having even a little fear of law. 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.

9. Considering the facts and circumstances of the case and the

nature of crime committed, sentence awarded by the Trial Court needs no

modification except that the default sentence for non-payment of fine

amount of ` 20,000/- would be SI for two months.

10. 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 SEPTEMBER 15, 2015 / tr