Rajesh Kumar vs State
2016 Latest Caselaw 5106 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                  CRL.A.399/2000
%                                         Decided on: 3rd August, 2016
RAJESH KUMAR                                          ..... Appellant
                         Through: Ms. Saahila Lamba, Advocate.

                         Versus

STATE                                                ..... Respondent
                         Through: Mr. Kewal Singh Ahuja, APP for State.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA


MUKTA GUPTA, J. (ORAL)

1. Rajesh Kumar has been convicted for offences punishable under

Sections 366/376/506 Part II IPC vide order dated 13th May, 2000, and vide

order on sentence dated 15th May, 2000, awarded rigorous imprisonment for

a period of ten years and fine of Rs.1000/- and in default of payment of fine

to further undergo rigorous imprisonment for two months for the offence

under Section 376 (f) IPC and for offences punishable under Section

366/506 part-II rigorous imprisonment for three years and to pay a fine of

Rs. 500/- and in default of payment of fine to further undergo rigorous

imprisonment for one month on each count.

2. Learned counsel for the appellant contends that though the incident

took place on the intervening night of 2nd June, 1998 and 3rd June, 1998, and

the FIR was registered on 3rd June, 1998 at 3.40 PM, i.e. after lapse of

sufficient time, even then the name of the appellant was not mentioned in the

FIR by the mother of the prosecutrix. Even the prosecutrix named the

appellant for the first time in her statement recorded under Section 164

Cr.P.C. after a period of three months on 3rd September, 1998. Admittedly,

the appellant was known to the prosecutrix, despite which he was not named

in the FIR. The prosecutrix has not supported the prosecution case in cross-

examination. The appellant has been falsely implicated, thus he be acquitted

of the charges framed.

3. Learned Additional Public Prosecutor for the State submits that the

appellant is not named in the FIR recorded on 3 rd June, 1998 as prosecutrix

was threatened by the appellant not to take his name, however, the identity

was revealed in the supplementary statement of the mother, which was

recorded on 4th June, 1998 itself. Further the prosecutrix named the

appellant in her statement under Section 164 Cr.P.C. Both the prosecutrix

and her mother have supported the prosecution case which is corroborated

by the MLC of the prosecutrix and the CFSL report.

4. The case of the prosecution is that on the intervening night of 2 nd June,

1998 and 3rd June, 1998, the prosecutrix PW.2, was sleeping on the roof

along with her mother, grandmother and brother. Accused lifted her and

took her to a newly constructed house where he laid her on ground and

removed her underwear and committed rape on her. The accused had

threatened her to kill if she disclosed it to anyone and ran away from there.

She came back to the house and narrated the incident to her mother. She was

medically examined and her statement (Ex.PW. 2/A) was recorded under

Section 164 Cr.P.C. During cross examination she deposed that she did not

remember the date, month or year of the incident. She further deposed that

the accused was known to her prior to the incident but she had not told the

name of the accused to her mother. She identified the accused at police

station but had not come to court to identify the accused as she already knew

him. She also deposed that her father was sleeping outside the house near the

door, which is the only entrance to the house and was not locked from inside

on the day of incident. She deposed that she had not identified the accused

when he lifted her from the cot in the night. She also did not identify the

Accused when he committed rape on her. She further deposed that she had

not told the name of the accused to the police.

5. The version of the prosecutrix in her examination-in-chief is

corroborated by her MLC Ex.PW.2/A and the CFSL report Ex. PW.7/A. The

prosecutrix is a child of tender age and was examined without oath. Having

deposed in examination-in-chief and withstanding the cross-examination

initially, her testimony cannot be discredited merely because she could not

withstand the grilling cross-examination till the end blurred why answering

two questions put to her in the end.

6. Version of the prosecutrix is also corroborated by her mother, who

was informed immediately by her and who found her bleeding from private

parts, whereafter the mother of the prosecutrix informed her husband, who

called the police. PW.3 also clarified that her daughter did not disclose the

name of the appellant initially, as she stated that she had been threatened by

him not to disclose his name. The MLC Ex.PW.7/A of the prosecutrix, who

was aged eight years at the time of the incident, notes that there were marks

of scratches on the back of the prosecutrix, which supports her version that

she was taken by the accused to a newly constructed house opposite her

house, where she was laid on the ground and raped. Further as per the CFSL

report Ex. PW.12/C semen was detected in the vaginal swab of the

prosecutrix.

7. Considering the cogent and convincing testimony of the prosecutrix,

duly corroborated by her mother, the MLC Ex. PW.7/A and CFSL report Ex.

PW.12/C merely because, she did not disclose the name of the appellant

immediately after the incident, the prosecution case would not fail.

8. Consequently, the present appeal is dismissed. During the pendency

of the appeal, the sentence of the appellant was suspended by this Court vide

order dated 30th August, 2000. The appellant will surrender to custody for

undergoing the remaining sentence. The bail bond and surety bond of the

appellant are cancelled.

9. Trial court record be sent back.

(MUKTA GUPTA) JUDGE AUGUST 3, 2016 'n'