Sunil @ Monu vs State
2015 Latest Caselaw 7215 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : SEPTEMBER 16, 2015
                           DECIDED ON : SEPTEMBER 22, 2015

+                          CRL.A. 1081/2013

       SUNIL @ MONU                                     ..... Appellant
                           Through :    Mr.Imran Khan, Advocate with
                                        Mr.Kunwar C.M. Khan, Advocate.

                           versus

       STATE                                             ..... Respondent
                           Through :    Mr.Sanjeev Sabharwal, APP.

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

S.P.GARG, J.

1. Present appeal is directed against the judgment dated

07.03.2013 of learned Additional sessions Judge in Sessions Case

No.02/11 emanating from FIR No.185/10 registered at Police Station

Nand Nagari by which the appellant-Sunil @ Monu was held guilty for

committing offences punishable under Sections 324/363/366/376(2)(f)

IPC. By an order dated 12.03.2013, he was awarded various prison terms

with fine.

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

sheet was that on 04.09.2010 at around 7:15 p.m. after kidnapping the

prosecutrix 'X' (assumed name), aged around 7 years from the lawful

guardianship of her parents, the appellant committed rape upon her at his

house. The incident was reported and Daily Diary (DD) No.29A came

into existence at 12.00 a.m. at Police Station Nand Nagari. The

Investigation was assigned to SI Manmeet, who was on patrolling duty in

the area. On reaching the spot, he came to know that the victim had

already been taken to GTB hospital for medical examination by PCR

officials. After recording statement of Rekha, victim's mother (PW-4/A),

he lodged First Information Report. The accused was arrested and taken

for medical examination. Statements of witnesses conversant with the

facts were recorded. 'X' recorded her statement under Section 164

Cr.P.C. Exhibits were sent for examination to Forensic Science

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

against the appellant for commission of various offences including

Section 377 read with Section 511 IPC. In order to bring home the

appellant's guilt, the prosecution examined 16 witnesses in all. In 313

statement, the appellant pleaded false implication and denied his

involvement in the crime without producing any witness in defence. After

considering the rival contentions of the parties and on appreciating the

evidence on record, the Trial Court by the impugned judgment held the

appellant guilty for the offences mentioned above. It is apt to note that the

appellant was acquitted of the charge under Section 377 IPC read with

Section 511 IPC and the State did not challenge it. Being aggrieved and

dissatisfied, the instant appeal has been preferred by the appellant.

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

examined the file. Victim is a minor girl of tender age of seven years.

PW-12 (Smt.Santosh Kumar), Principal, MCD Primary School, Nand

Nagari proved the admission form (Ex.PW-12/B) where her date of birth

was registered as 07.05.2003. As per admission register (Ex.PW12/A), she

got admission in the aforesaid school in 1st standard on 14.07.2008. No

sound reasons prevail to disbelieve the date of birth recorded in Ex.PW-

12/A. Her parents never anticipated such an unfortunate incident to

happen in future to manipulate her age that time. The accused had

nowhere denied that the prosecutrix was above seven years of age on the

day of occurrence.

4. The occurrence took place on 04.09.2010 at around 7:15 p.m.

The victim was taken immediately to GTB hospital where she was

medically examined by MLC Ex.PW-14/A which records her arrival time

at 9:30 p.m. The FIR was lodged without any delay. After recording

statement of the victim's mother PW-4 (Smt.Rekha), rukka (Ex.PW-2/A)

was sent at 11:45 p.m. In her statement (Ex.PW-4/A), the complainant

gave detailed account as to how and under what circumstances 'X' was

ravished by the appellant in his house. The appellant was specifically

named in the FIR and definite role was assigned to him. Since the FIR

was lodged promptly, there was least possibility of the complainant to

concoct a false story in such a short period.

5. 'X' recorded her statement under Section 164 Cr.P.C.

(Ex.PW-5/A) on 07.09.2010. She implicated the appellant and gave vivid

description of the sequence of events whereby she was taken from the

park by the appellant to his house and was sexually assaulted after

extending threats to her. She even disclosed that after the occurrence, the

accused was locked in the room and was subsequently arrested by the

police. Before recording her statement as PW-5 in the Court, the learned

Presiding Officer conducted preliminary inquiry to ascertain if she was a

competent witness and was able to give rational answers to the questions

put to her. It was also ensured that 'X' was making her statement

voluntarily without any fear or pressure. After recording his satisfaction,

the learned Presiding Officer recorded her statement without oath. She

deposed that when she was playing outside her house with her friends, the

accused came there and picked her purse, chocolate coloured having four

clips. He took her in his house at some distance away from the park. He

gave teeth bite on her private parts and cheeks. Firstly, he opened her hair

and removed her clothes and then removed his clothes and gave teeth bites

on her cheeks. She further elaborated that the accused oiled her private

part, spread power two times and slapped her. Thereafter, he put her

private part into her private part. When she cried, some uncles and one

aunt came there. The accused was apprehended. Ex.P-3 (purse) was

recovered at the spot. In the lengthy and searching cross-examination, no

material infirmities could be extracted. Mere suggestions denying the

appellant's involvement in the crime were put to the witness. No ulterior

motive was assigned to the child witness for making false allegations of

rape against the appellant with whom she has no prior animosity or

hostility. Admitted position is that the appellant lived in the

neighbourhood of the victim and there was no previous ill-will or

animosity forcing the victim or her parents to falsely implicate him in this

case. The victim and her parents had no sound reasons to fake the

incident of rape which had reflection on the chastity of 'X', an unmarried

little girl.

6. PW-4 (Rekha) has corroborated 'X' version in its entirety

without any variation. She informed the Court that the victim had gone at

about 5.00 p.m. to a park near temple to play. When she did not return till

late evening, she and her sister-in-law Poonam went to search her. When

they reached near House No.C-2/18, Nand Nagari, they found 'X'

weeping. On enquiry, she informed that one uncle had taken her inside

the house and had caused teeth bite on her cheeks. She took them inside

the house No.C-2/18. When they were entering inside the house, the

accused came out of it and attempted to flee. On the pointing of the

prosecutrix, the accused was caught hold by her brother-in-law Naresh

who had arrived on hearing the noise. She further informed that the

accused was earlier known to her by face being a resident of C-Block.

Many persons from the Mohalla gathered and gave beatings to him.

Again, in the cross-examination, certain suggestions were put but nothing

material was elicited to suspect the version given by the witness. No

extraneous consideration was assigned to the witness to falsely depose

against the accused. PW-6 (Naresh Kumar) and PW-7 (Smt.Poonam)

have further corroborated her version.

The ocular testimony given by material prosecution witnesses

is corroborated by medical evidence and there is no conflict between the

two. PW-14 (Dr.Vandana) proved MLC (Ex.PW-14/A) prepared by Dr.

Ria to whom she had seen writing and signing while on duty with her.

Some injuries were found on the body of the victim. External genitalia

was found bruised and labia majora and minora were swollen and hymen

was torn. In FSL report (Ex.PW16/D), human semen of 'A' Group was

detected on Ex.1 i.e.underwear.

7. Certain insignificant discrepancies, improvements and

contradictions highlighted by the appellant's counsel are inconsequential

as they do not affect the core of the prosecution case. 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.

8. In 313 statement, the appellant did not give plausible

explanation to the incriminating circumstances proved against him. He

did not produce any evidence to prove if there was any animosity with the

victim's parents to falsely implicate him. No foundation for such a

defence was laid. Moreover, for a petty dispute (if any) it is not believable

that the parents of a minor child would use their own daughter to settle

score with him. The defence deserves out right rejection.

9. Conviction is based upon fair appraisal of evidence and

reasoned judgment given by the Trial Court warrants no intervention. The

conviction is sustained.

10. The offence committed by the appellant is grave and serious.

A minor innocent school going-child was ravished by the appellant to

satisfy his sexual lust. 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 needs no modification

except that the default sentence for non-payment of fine of `6,000/- in all

shall be Simple Imprisonment for one month.

11. The appeal stands disposed of in the above terms. Trial Court

record be sent back forthwith along with the copy of the order. Copy of

the order be sent to Superintendent Jail for information.

(S.P.GARG) JUDGE SEPTEMBER 22, 2015 sa