Ranjan Kumar vs State (Gnct Of Delhi)
2015 Latest Caselaw 7345 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON: 6th JULY, 2015
                              DECIDED ON : 28th SEPTEMBER, 2015

+                         CRL.A. 3/2013
      RANJAN KUMAR                                         ..... Appellant
                          Through :    Mr.Abhinav Agnihotri, Advocate
                                       with Mr.Deepak Vohra, Advocate.

                          versus
      STATE (GNCT OF DELHI)                                ..... Respondent
                          Through :    Mr.Navin K.Jha, APP.

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

S.P.GARG, J.

1. Aggrieved by a judgment dated 09.10.2012 in Sessions Case

No.120/11 emanating from FIR No.144/11 PS Ghazi Pur by which the

appellant - Ranjan Kumar was convicted under Section 376 IPC, he has

preferred the instant appeal to challenge its legality and correctness. By an

order dated 17.10.2012, the appellant was sentenced to undergo RI for

seven years with fine `1,000/-. Vide order dated 04.01.2013, this Court

issued show cause notice to the appellant as to why the sentence awarded

by the Trial Court be not enhanced. Response to it has been filed by the

appellant.

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

sheet was that on 19.05.2011 at about 07.10 p.m. in the toilet of a house

belonging to Rakesh Mehto, Sapera Basti Chowk Village Ghadoli, Delhi,

the appellant committed rape upon the prosecutrix 'X' (assumed name)

aged around two years. Intimation of the occurrence was conveyed to the

police and Daily Diary (DD) No.31A came into existence. SI Kuldeep

Singh along with Const.Ravinder Pal and Lady Const.Preeti Yadav went

to the spot and came to know that the victim 'X' had already been taken to

Lal Bahadur Shastri Hospital (In short 'LBS Hospital') by PCR officials.

After collecting victim's MLC and recording her father's statement

(Ex.PW-9/A), he lodged First Information Report. During investigation,

the prosecutrix 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 to Forensic Science Laboratory for

examination. Upon completion of investigation, a charge-sheet was laid

before the Trial Court against the appellant for commission of offence

under Section 376 IPC. The prosecution examined fourteen witnesses to

substantiate its case. In 313 Cr.P.C. statement, the appellant abjured guilt

and pleaded false implication. He did not examine any witness in defence.

After considering the rival contentions of the parties and on appreciation

of the evidence, the Trial Court, held the appellant guilty for commission

of rape. 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. Appellant's counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective. It committed

grave error in relying upon the uncorroborated testimonies of the child

witnesses. Significant contradictions and discrepancies emerging in the

statements of the prosecution witnesses were ignored without cogent

reasons. Conflicting versions have been given by the prosecution

witnesses about the presence of the accused at the spot soon before the

occurrence. Relevant and material witnesses were not examined to

establish appellant's presence at the spot. 'X' did not suffer any external

injuries on her body and it ruled out commission of rape. No witness from

the neighbourhood was examined. It is not believable that the appellant

would spare the elder sisters of the prosecutrix and ravish a little child

aged around two years inside the toilet. 'X' aged about two years was

unable to comprehend and her statement is a tutored one. Per contra,

learned Addl. Public Prosecutor urged that no sound reasons exist to

disbelieve the statements of the prosecution witnesses including the victim

who had no ulterior motive to falsely implicate the accused.

4. Admitted position is that the premises in question were

owned by the appellant's cousin Rakesh Mehto who lived on the ground

floor. Manoj Thakur, victim's father lived in the rented accommodation in

the said premises on the first floor. The appellant who lived at a nearby

house was frequent visitor to his cousin.

5. 'X', in the instant case, aged about two years was victim of

sexual assault and animal lust of the perpetrator of the crime. She was

ravished in the toilet of the house on the ground floor. Soon after the

horrendous crime, PCR officials arrived at the spot and took 'X' to LBS

Hospital where she was medically examined vide MLC (Ex.PW-8/A) at

about 11.00 p.m. In the alleged history, it is specifically mentioned that it

was a case of 'sexual assault' at around 08.00 p.m. by a known person

(landlord's cousin). PW-8 (Tapsi Chatterjee) who was conversant with the

handwriting and signatures of Dr.Nidhi Aggarwal in official capacity has

proved the MLC (Ex.PW-8/A) prepared by her. As per local examination,

there was redness and swelling over labia majora and hymen was

ruptured. Apparently, it was a case of sexual assault upon the prosecutrix.

The incident of rape suffered by the victim has not been controverted.

Appellant's only plea is that he was not the author of the crime and it was

the handiwork of 'someone' else.

6. The incident took place at around 07.30 p.m. FIR was lodged

promptly after recording statement (Ex.PW-9/A) of the victim's father

Manoj Thakur and rukka (Ex.PW-12/A) was sent during the night

intervening 19/20.05.2011 at around 00.10 hours. In his statement

(Ex.PW-9/A), Manoj Thakur gave detailed account as to how and under

what circumstances, the appellant who was in X's company soon before

the incident sexually assaulted her. The accused was specifically named to

be the perpetrator of the crime at the earliest and specific role was

assigned to him. Since the FIR was lodged without any delay, there was

least possibility of the victim and her family members to concoct a false

story in such a short period.

7. On the day of incident, 'X' along with her siblings had gone

to play with the landlord's children on the ground floor. PW-3 (Anjali)

aged around seven years in her Court statement informed that on that day,

she along with her sisters 'X' and Stuti had gone to play with Suraj and

Shubham, landlord's sons. The appellant was present in the room that

time. The accused asked Suraj and Shubham to go out of the room. She

and Stuti also came out of the room while 'X' remained there. When she

tried to call 'X', the accused did not permit her to go out. In the cross-

examination, she elaborated that Suraj and Shubham were studying in

class 5th and 2nd, respectively. Their mother was sitting outside and was

talking to another aunt. She denied the suggestion that the appellant was

not present at the spot that time. No reasons exist to disbelieve the

testimony of the child witness about the presence of the accused at the

spot soon before the incident. 'X' in her 164 Cr.P.C. statement (Ex.PW-

14/A) recorded at 20.05.2011 affirmatively revealed about the presence of

the accused at the spot. When asked by the learned Presiding Officer

whether she was able to identify the assailant, she nodded her head in

affirmative by moving it up and down. Before recording her Court

statement as PW-7, a preliminary enquiry was conducted by the learned

Presiding Officer to ascertain if 'X' was a competent witness, able to

understand and give rational answers to the questions put to her. After

recording satisfaction that 'X' was able to give statement, her statement in

question-answer form was recorded. She not only implicated the appellant

for the horrible crime but also identified him without any hesitation. She

described him as 'Daruwala'. In the cross-examination, she continued to

emphasise that the appellant 'Daruwala' uncle had taken her in the latrine.

When feeble attempt was made to confuse her by putting a question,

'Aunty had told you to identify the accused in the Court?', response of the

child was that he had taken her in latrine and 'Mujhe Sata Liya Tha'. Her

natural version establishes appellant's presence along with the victim in

the latrine at the relevant time. PW-9 (Manoj Thakur) has also

corroborated her on the circumstance of last seen when he informed that

on his arrival at the spot, the accused ran away. When chased by him and

some public persons, the appellant managed to flee. Soon thereafter, a call

at 100 was made and PCR officials arrived after 5 or 7 minutes and took

'X' to LBS Hospital. PW-2 (Rani), victim's mother was apprised of the

incident and about the involvement of the appellant soon after the

occurrence. It stands established that soon before the incident, the

appellant was present at the spot and the victim was in his company.

When victim's sisters were playing with landlord's children, 'X' was hale

and hearty. After the appellant managed to send all other children out of

the room, he took 'X' to the latrine and committed the act. There was no

other male member in the room that time. Landlord and his wife were not

present in the house at the time of occurrence. The appellant did not

produce any evidence in defence to prove his plea of 'alibi'. In 313

Cr.P.C. statement, he did not disclose as to where else he was present that

time. He even did not examine his cousin - Rakesh Mehto to falsify the

prosecution case that on the day of occurrence, he had not visited the

house. Landlord's children - Suraj and Shubham were also not examined

to deny his presence in the house. The circumstances which have been

highlighted by the prosecution witnesses prove that the accused was last

seen in the company of the victim. The plea of alibi set up has not been

established. In 'State of U.P. vs. Satish', 2005 Cri.L.J. 1428, Supreme

Court noted as follows :

"22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2"

8. Besides it, 'X' consistently implicated the appellant to be the

author of the crime. In her 164 Cr.P.C. statement (Ex.PW-14/A), she

disclosed that the landlord's brother had taken her to the latrine. She

pointed her hand at her vagina and stated that it was the place where the

said person had fondled her. In her Court statement as PW-7, she proved

the version recorded under Section 164 Cr.P.C. without variation. She

reiterated that the accused to whom she described as 'Daruwala' had taken

her in the latrine and had pressed her towards him (Sata liya). The accused

thereafter fled the spot and she was taken to the hospital where her

undergarments were taken by the doctor. In the cross-examination, she

denied herself to be a tutored witness. In response to various questions put

by the learned counsel for the accused, she repeatedly claimed that the

accused had taken her in the latrine and 'Mujhe Sata Liya Tha'. The

accused did not put any suggestion to the victim if he was not present at

the spot and had not taken her to the latrine. He did not give any plausible

explanation as to what had prompted her to take the tiny girl to the latrine.

9. 'Toilet' in the house is the place where 'X' was found crying

and weeping by PW-9 (Manoj Thakur). When her two daughters Anjali

and Stuti came upstairs, his anxiety was as to why 'X' who was playing

with them did not accompany them. Finding something amiss, he came

downstairs to find 'X' and finally located her in the latrine. He was aghast

to find that the little girl was weeping inside the toilet. He noticed that her

underwear was lying removed. 'X' informed him that she was suffering

from pain in her stomach. Medical evidence is in consonance with the

facts proved by 'X' and other prosecution witnesses. Her hymen was

found ruptured and there was swelling over labia majora. Since the

appellant was in the company of the child at the crucial time, the facts

were in his special knowledge as to how and under what circumstances

'X' had sustained injuries on her body and how the hymen happened to be

ruptured. Adverse inference is to be drawn against the appellant for not

divulging the necessary information under Section 106 Evidence Act.

10. FSL report is another vital incriminating circumstance to

connect the appellant with the crime. As per FSL report (Ex.PW-13/A),

human semen was detected on Ex.1a (baby's banian); Ex.1b (baby's

underwear); Ex.3 (underwear) and Ex.6 (gauze cloth piece). It is true that

the prosecution was unable to gather evidence to prove that the human

semen detected on these articles was that of the appellant. Nevertheless it

corroborates X's version that she was sexually assaulted. The appellant

did not furnish any explanation as to how the underwear worn by him got

semen stains.

11. Certain insignificant discrepancies or infirmities highlighted

by the appellant's counsel are inconsequential as these do not go to the

root of the case to affect the core of the prosecution case. No ulterior

motive was assigned to 'X' and her family members to falsely implicate

the accused. There was no previous history of hostility between the

parties. 'X' and her family members had no extraneous consideration to

fake the incident of sexual assault and to name the appellant to be the

perpetrator of the crime. They must be interested to bring the real culprit

to book. In the absence of prior animosity or ill-will 'X' and her family

members were not expected to let the real offender go scot free. Nothing

has come on record to show that 'X' and PW-3 (Anjali) were tutored

witnesses. Since 'X' was an immature infant girl aged around two years,

she was unable to give complete and exhaustive details of the incident. It

shows that she was not tutored by her parents. Nothing more can be

expected from a child of this age. It is well settled that if satisfied that the

testimony of the child witness is a voluntary expression of what transpired

and is an accurate impression of the same, no corroboration of the

testimony is required.

12. The prosecution case is based upon direct, circumstantial and

medical evidence and these are in consonance with each other to establish

the appellant's involvement in the crime beyond reasonable doubt. The

impugned judgment based upon fair appraisal of evidence needs no

intervention.

13. The appellant was sentenced to undergo RI for seven years

with fine `1,000/- by a Sentence Order dated 17.10.2012. No adequate

and special reasons have been given by the Trial Court as to why the

minimum sentence prescribed under Section 376(2)(f) IPC i.e. ten years

was not awarded to the appellant. The victim in the instant case was aged

around two years. At this tender age, she was subjected to sexual abuse by

the grown up able bodied convict. Sentence order records that the abusers

in such type of incident are often sex deprived and mentally pervert. Thus

there were no valid reasons to take lenient view. The punishment awarded

by the Trial Court is not commensurate with the crime committed by him

to award lesser punishment. Showing leniency in such matters would be

really a case of misplaced sympathy. Act of the accused was both

despicable and reprehensible, reflecting a perverted mind, deserving the

befitting sentence.

14. In the instant case, considering the nature and gravity of the

crime where the victim of sexual assault is an innocent child of two years

there were no mitigating circumstance to award lesser sentence than the

one prescribed under the Act. Accordingly, sentence order is modified and

the appellant is sentenced to undergo RI for ten years with fine `5,000/-

and default sentence would be SI for two months.

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

record be sent back with the copy of the order. A copy of the order be sent

to the Superintendent Jail for information.

(S.P.GARG) JUDGE SEPTEMBER 28, 2015 / tr