Ajay Kumar Sonar @ Ajay vs State
2016 Latest Caselaw 762 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                          RESERVED ON : DECEMBER 07, 2015
                          DECIDED ON : FEBRUARY 02, 2016


+      CRL.A. 1044/2014, CRL.M.B. 7497/15 & 8027/15
       CRL.M.A.No.14214/15 & 4533/15


       AJAY KUMAR SONAR @ AJAY
                                                          ..... Appellant
                          Through :    Mr.Rajeev Chhetri & Mr.Rajesh
                                       Chettri, Advocates.

                          versus

       STATE
                                                  ..... Respondent
                          Through :    Mr.Amit Ahlawat, APP with SI
                                       Vivek Maindola.


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

S.P.GARG, J.

1. Challenge in this appeal is to a judgment dated 19.04.2014 of

learned Additional Sessions Judge in Session Case No.73/13 arising out of

FIR No.156/12 registered at Police Station Sector -23, Dwarka by which

the appellant Ajay Kumar Sonar @ Ajay was held guilty for committing

offences under Sections 323/328/376/506 IPC. By an order dated

24.04.2014, he was awarded various prison terms with fine.

2. Briefly stated, the prosecution case as projected in the

charge-sheet was that on 25.08.2012 at about 2.00 p.m. at House No.107,

Servant Quarter Salaria Enclave, Sector-21, Dwarka, the appellant

committed rape upon the prosecutrix 'X'(assumed name), aged around 15

years, after administering stupefying substance mixed in medicine. 'X'

was slapped and criminally intimidated. The incident was reported to the

police on 01.10.2012. The Investigating Officer after recording victim's

statement (Ex.PW2/A) lodged First Information Report. 'X' was

medically examined; she recorded her 164 Cr.P.C. statement. The accused

was arrested and taken for medical examination. Exhibits collected

during investigation were sent for examination to Forensic Science

Laboratory. Statements of witnesses conversant with the facts were

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

against the appellant in the court. In order to establish its case, the

prosecution examined fourteen witnesses. In 313 statement, the appellant

pleaded false implication and denied his involvement in the crime. The

trial resulted in his conviction as mentioned previously. Being aggrieved

and dissatisfied, the instant appeal has been filed.

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

examined the record. Appellant's counsel urged that the Trial Court did

not appreciate the evidence in its true and proper perspective and

committed grave error to base conviction on the uncorroborated

testimonies of the prosecutrix and her sister. The prosecution was unable

to explain the inordinate delay in lodging the FIR. No external injuries

were found on the body of the prosecutrix during her medical

examination. The prosecutrix, her mother and sister did not support the

prosecution in entirety. Learned Additional Public Prosecutor urged that

there are no sound reasons to disbelieve the prosecutrix who had no

extraneous consideration to falsely implicate the appellant.

4. Admitted position is that the appellant was acquainted with

the prosecutrix and her family members before the incident. In 313

statement, the appellant admitted that 'X's mother and brother used to

visit his place of residence to meet his employer Wing Commander

Hiremat. He further admitted that 'X'was suffering from eczema and was

unable to walk properly.

5. From the very inception, it was the prosecution's case that

the victim was aged around 15 years on the day of occurrence. In her

complaint (Ex.PW-2/A), 'X' disclosed her age as 15 years. Similar is the

age disclosed by her in 164 Cr.P.C.statement (Ex.PW-2/B) and MLC

(Ex.PW-6/A). PW-1 (Smt.Kalawati), Principal, MCD Primary School,

Sector-8, Dwarka, New Delhi, proved record (Ex.PW-1/A to Ex.PW-1/E)

to show that 'X' was admitted in her school in class 1st (Primary) on

05.07.2006 vide admission No.2231. Parents had disclosed her date of

birth as 30.01.2001 which was entered in the record. 'X' studied in the

school till 26.03.2011 and School Leaving Certificate (Ex.PW-1/D) was

given to her. She admitted that the date of birth declared by 'X's parents

was not verified and it was not based on any birth certificate. In her

deposition as PW-2, 'X' claimed herself to be 15 years old, a student of

class 6th. Nothing was suggested to her that she was above 16 years of age

on the day of occurrence. PW-3 (Meenakshi), 'X's sister, was also not

questioned as to what was the age of prosecutrix on the day of incident.

PW-5 (Guddi Devi), X's mother, in the cross-examination revealed that

'X' was around 12/13. From all this, its stands established that 'X' was

below 16 years of age on the date of incident and her consent (if any) to

have physical relations with the appellant was of no consequence. The

date of birth (30.01.2001) came to be recorded way back in 2001. Parents

of the victim had not anticipated any such incident to occur later on to

manipulate her date of birth in the school record. The appellant himself

did not produce any document to show that 'X' was above 16 years of age

on the day of incident. He did not ask for ossification test during trial.

6. In her complaint (Ex.PW-2/A), the prosecutrix gave detailed

account as to how and under what circumstances physical relations were

established by the appellant against her wishes after administering

stupefying substance in tea at his residence. The appellant was named in

the FIR and specific role was assigned to him. In 164 Cr.P.C. statement

(Ex.PW-2/B), the prosecutrix reiterated her version and implicated the

appellant for having physical relations with her. In her examination-in-

chief recorded on 04.04.2013, she proved the version given to the

police/court in entirety and specifically deposed that on 25.08.2012 at

about 2/3 p.m., the appellant had taken her from her house on the pretext

to examine her by a doctor. He took her to the same hospital where she

was examined earlier. Thereafter, the appellant took her to his room

No.107, Servant Quarters, Salaria Enclave, Dwarka, New Delhi and asked

her to have a cup of tea. After consuming tea, she became unconscious.

The appellant established physical relations with her. When she enquired

from the accused as to what he had done after regaining consciousness, he

slapped her twice or thrice and threatened to kill if she disclosed the

incident to anyone. She became terrified; put 'on' clothes and the accused

brought her to her house. Due to fear, she did not inform her mother and

brothers about the incident. On 29.09.2012, when she had a conversation

with her elder sister Meenakshi on phone, she asked her to reach Delhi

immediately. On her arrival to Delhi, she apprised her about the incident.

7. PW-3 (Meenakshi), 'X's elder sister, corroborated her

version. In her examination-in-chief recorded on 04.04.2013 she deposed

that on 'X's request to come immediately to Delhi, she arrived there on

29.09.2012. 'X' apprised her about the incident and implicated the

accused who lived in the neighbourhood to have committed rape upon her.

8. It is pertinent to note that the victim and her sister recorded

their examination-in-chief- on 04.04.2013. However, their cross-

examination was deferred at the request of learned proxy counsel who

informed that the main counsel was not available. These two witnesses

could be cross-examined thereafter only on 25.10.2013 and 29.11.2013

respectively. It appears that during this period, both these witnesses were

won over and for that reasons they took somersault in the cross-

examination and declined if any such incident of rape had taken place.

They were re-examined by the learned APP and were confronted with

their earlier statements given before the police/Court.

9. The Trial Court rightly relied upon the law laid down in

Khujji alias Surendra Tiwari vs.State of Madhya Pradesh AIR 1991 SC

1853 to discard the version given by PWs-2 and 3 in their cross-

examination. The defence had deliberately sought adjournments on

various dates to gain time to win over the prosecutrix and her sister and

for that purpose, they had no cross-examined them. The result was

obvious and in their cross-examination they gave a completely different

version. Nothing is on record to show that the victim or her mother/sister

had any motive or previous animosity with the appellant to involve him in

such a heinous case at the first instant.

10. It appears that the prosecutrix in her exaggerated version has

implicated the accused for establishing physical relations against her

wishes. Circumstances emerg on record demonstrate that the prosecutrix

seemingly was a consenting party. She had gone to the appellant's

residence without any demur and had stayed there for considerable period.

Physical relations took place between the two there and at no stage 'X'

raised hue and cry. After the rape incident, she did not protest and without

raising any alarm, returned to her house. She did not narrate the incident

to her family members. No visible injuries were noticed on her body. She

maintained silence for about two months and at no stage complained

about appellant's conduct and behaviour. In her 164 Cr.P.C. statement

(Ex.PW-2/B) the prosecutrix disclosed that she was ready and willing to

marry the appellant on attaining age of majority. She further disclosed

that after the physical relations, when she had enquired from the appellant

as to why he had done so, he disclosed that he loved her and wanted to

marry. It appears that both the prosecutrix and the appellant had intimate

relationship but because victim's mother objection to it, it could not go

further. Photocopies of certain documents have been placed on record

whereby love letters were exchanged. However, these could not be

proved on record. The prosecutrix was not medically examined soon after

the incident. Her medical examination after about two months vide MLC

(Ex.PW-6/A) was of no relevance to ascertain if she suffered any injuries

on her body including private parts at the time of commission of the

crime. The fact that the prosecutrix and her close family members opted

to exonerate the appellant in their cross-examination recorded after a gap

of certain months lends credence to the fact that they did not want stern

action against the appellant.

As discussed above, physical relations (if any) between the

two even with consent have no relevance as the prosecutrix was below 16

years of age. Conviction of the appellant on that score under Section 376

IPC cannot be faulted and it is affirmed.

11. Regarding sentence, the appellant was awarded Rigorous

Imprisonment for seven years with fine `10,000/- under Section 376 IPC.

Nominal roll dated 08.07.2015 reveals that he has already undergone two

years, four months and fifteen days incarceration besides remission for

three months and eighteen days as on 07.07.2015. He is not a previous

convict and is not involved in any other criminal activity. His overall

conduct in jail is satisfactory. Sentence order further records that the

appellant has a widowed mother and two unmarried brothers to take care

of them at Jharkhand as they are financially dependent upon him.

Appellant's mother is suffering from cataract and was unable to undergo

surgery.

12. Considering these mitigating circumstances and the fact that

the prosecutrix was a consenting party and she and her mother opted to

exonerate him in their cross-examination, the Sentence Order is modified

to the extent that the substantive sentence of the appellant shall be

Rigorous Imprisonment for five years instead of seven years under

Section 376 IPC. Other terms and conditions of the Sentence Order are

left undisturbed.

13. The appeal stands disposed of in the above terms. Trial

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

Intimation be also sent to Superintendent Jail.

(S.P.GARG) JUDGE FEBRUARY 02, 2016 sa