Sarita vs State (Nct) Of Delhi
2016 Latest Caselaw 176 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                   RESERVED ON : November 18, 2015
                                   DECIDED ON : January 11, 2016


+      CRL.A. 97/2012 & CRL.M.B.11265/14


       SARITA                                           ..... Appellant
                          Through :    Mr.Chetan Lokur, Advocate with
                                       Mr.Nitish Chaudhary, Advocate.

                          versus


       STATE (NCT) OF DELHI                             ..... Respondent
                      Through :        Mr.Amit Ahlawat, APP.


+      CRL.A. 40/2012 & CRL.M.B.11298/14


       RAHUL                                           ..... Appellant
                          Through :    Mr.M.L.Yadav, Advocate.


                          versus


       STATE                                            ..... Respondent
                          Through :    Mr.Amit Ahlawat, APP.



        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG
Crl.A.Nos.97/12 & 40/12                               Page 1 of 12
 S.P.GARG, J.

1. Aggrieved by a judgment dated 04.04.2011 of learned

Additional Sessions Judge in Sessions Case No.1152/2009 arising out of

FIR No.311/2009 registered at Police Station Jahangir Puri by which the

appellants were convicted, the instant appeals have been filed them.

Sarita (A-1) was held guilty for committing offences punishable under

Sections 366A/368/201/506(II) and also of Section 109 read with Section

376 IPC. Rahul (A-2) was convicted under Section 376 IPC. By an order

dated 27.04.2011, they were sentenced to undergo various prison terms.

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

sheet was that A-1 during the period from 22.5.09 to 5.6.09 at ground

floor, H.No.J-389, Jahangir Puri, Delhi, abetted commission of rape upon

the prosecutrix 'X' (assumed name), aged about 12 years after wrongfully

confining and criminally intimidating her. She was also charged for

causing disappearance of evidence of commission of rape. It was alleged

that A-2, Dev Raj (since expired) and one Vakil (since absconding) had

established physical relations with 'X'' during this period in the said

house in A-1's occupation at her behest.

3. On 05.06.2009, the prosecutrix and her mausi reported the

incident to the police. The Investigating Officer after recording victim's

statement (Ex.PW-19/B) lodged First Information Report. In her

complaint 'X' gave detailed account as to how and under what

circumstances, she was raped by Dev Raj, Rahul (A-2) and Vakil on

various days after she was called by A-1 to her residence on one pretext or

the other. 'X' was medically examined; she recorded her 164 Cr.P.C.

statement. Exhibits collected during investigation were sent for

examination to Forensic Science Laboratory. A-1, A-2 and Dev Raj were

arrested. The Investigating Officer moved an application for conducing

Test Identification Proceedings qua Dev Raj. Upon completion of

investigation, a charge-sheet was filed against the accused persons in the

court. To establish its case, the prosecution examined twenty witnesses.

In 313 statement, the accused persons denied their involvement in the

crime and pleaded false implication. The trial resulted in their conviction

as mentioned previously. Being aggrieved and dissatisfied, the convicts

have preferred separate appeals. It is relevant to note that Dev Raj had

filed Crl.A.No.822/2011 which stood 'abated' on 1.5.2014 on his death.

4. 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. The appellants

have been falsely implicated at the instance of the victim's mausi -Kusum

to avoid payment of `45,000/- taken by her as loan from Dev Raj. The

victim's statement is at the behest of her mausi. Delay in lodging the FIR

has remained unexplained. No external injuries were found on the 'X's

body including private parts at the time of her medical examination.

Counsel pointed out various discrepancies and inconsistencies in her

statements to urge that she is not a reliable witness. Learned Additional

Public Prosecutor would submit that no sound reasons prevail to

disbelieve the prosecutrix aged 12 years who has no extraneous

consideration to falsely implicate the accused persons.

5. Admitted position is that A-1 used to live on the ground floor

of H.No.J-389, Jahangir Puri, Delhi. 'X' lived along with her mausi and

maternal grand mother on the first floor of the said premises. 'X's mother

has expired soon after her birth and her father had abandoned her after

remarriage and his whereabouts were not known. She was brought up by

her mausi and nani. PW-1 (Kusum) 'X's mausi used to go to an STD

booth at Sanjay Gandhi Transport Nagar on her duty during day time and

her mother worked as maid in different houses. Kusum's husband was not

living with them. She had two children who used to go to school. 'X'

used to be alone in the house during their absence.

6. From the very inception, it was the case of the prosecution

that 'X' was aged around 12 years on the day of incident. No cogent

documents, however, were collected during investigation to find out her

exact date of birth. She did not go to any school and is completely

illiterate. Ossification test was conducted to ascertain her approximate

age. As per ossification report (Ex.PW-2/D), her estimated age was

between 12 years to 14 years. The accused persons did not challenge the

ossification report. No other specific date of birth of the prosecutrix was

suggested or proved. Apparently, the prosecutrix was below 16 years of

age on the date of occurrence and her consent for physical relation (if any)

was of no relevance.

7. 'X' was sexually abused by various individuals during the

period from 22.5.09 to 5.6.09. The incident was reported to the police on

05.06.2009. In her statement (Ex.PW19/B), the victim gave graphic

details as to how and in what manner, she used to be called by A-1 to her

residence during noon-time where she was forced to have physical

relations with various different individuals on every day. She assigned

specific role to each of the perpetrators of the crime and named them. In

her 164 Cr.P.C. statement (Ex.PW-10/F), she reiterated her version and

implicated all the accused persons by name. The learned Presiding Officer

before recording her statement had put number of preliminary questions to

ascertain her state of mind and to see if she was making statement

voluntarily without any fear, coercion or undue influence. After recording

satisfaction, the learned Presiding Officer recorded 'X's statement on

26.06.2009. In the said statement again 'X' named the authors of the

crime on different dates and described the role played by them in the

commission of crime.

8. In her Court statement as PW-2, she fully supported the

prosecution and proved the versions given before the police/learned

Metropolitan Magistrate without any major variations. She testified that

on a day, the exact date she did not remember, when she was alone at her

house in the afternoon, A-1 called her to her residence on the pretext that

it was her daughter's birthday. When she went to her house on the ground

floor, A-1 shut the door. Dev Raj uncle was already sitting in the house

that time. A-1 asked her to open her 'pant' to which she declined.

Thereafter, she forcibly removed her pant and Dev Raj committed rape

after taking off his clothes. Dev Raj left the spot extending threats to her.

A-1, thereafter, cleaned her private parts and warned her not to tell the

incident to anyone or else she would be killed. On the second day, she

was again called by A-1 on the pretext that she was feeling scared being

alone. Again, she was raped by Dev Raj uncle in similar circumstances.

On the third and fourth day, she was called by A-1 to her house where A-2

established physical relations with her against her wishes. On the fifth

day, she went to A-1's house as usual, where one Vakil committed rape

upon her. She further deposed that after three or four days, she told the

incident to her mausi Kusum. She took her to the police station and her

statement was recorded by the police and FIR (Ex.PW-2/A) was lodged.

'X' identified the rapists in the court during her deposition. She added

that accused Dev Raj was also identified by her in jail. In the cross-

examination, she elaborated and explained that A-1 used to call her by

standing on the gate of the staircase. She admitted that she had visited

A-1 earlier also at her house but volunteered to add that she used to go to

play with her small daughter. She claimed that none of the rapists was

known to her before the incident. She denied if her mausi- Kusum had

taken a loan of `45,000/- from Dev Raj. She denied that A-1 was

implicated due to her acquaintance with Dev Raj who had visiting terms

in her house. She further denied herself to be involved in any criminal

case.

9. On scanning the various statements given by the minor

witness at various stages, it reveals that she is consistent throughout.

Despite lengthy cross-examination by the accused persons, no material

infirmities could be elicited to suspect her version. No ulterior motive was

assigned to the child witness for levelling serious allegations of rape

against the rapists with whom she had no prior acquaintance. Her

statement on material facts has remained unchallenged and uncontroverted

in the cross-examination. It is unthinkable that in the absence of prior

animosity or ill-will, 'X' would falsely rope in her neighbour A-1 living

on the ground floor since long. No sound reasons exist to disbelieve the

prosecutrix.

10. PW-1 (Kusum) has corroborated 'X's version in its entirety.

She deposed that on 04.06.2009 at around 8.00 p.m. 'X' apprised her

about the incident. On 05.06.2009 she took 'X' to the Police Station and

lodged the report. In the cross-examination, she denied to have any

familiarity with Dev Raj before the incident or to have taken `45,000/-

from him as loan. She admitted to be working at an STD booth at Sanjay

Gandhi Transport Nagar for the last about two years. The STD booth was

not in her name. She denied that 'X' was going the wrong way. She

denied that to avoid payment of `45,000/- taken as loan from Dev Raj,

'X' was used to implicate the accused persons.

11. The prosecutrix had specifically named the rapists in her

statements during investigation and had identified them in the court

without hesitation. She was not acquainted with them before the incident.

Dev Raj could not be arrested initially. After he surrendered in the court,

he opted to participate in Test Identification Proceedings which were duly

conducted. It is pertinent to note that 'X' identified him in Test

Identification Proceedings as well. In 313 statement, Dev Raj attempted

to wriggle out of it alleging that 'X' knew him before. He, however, did

not elaborate as to how and in what circumstances, he had come into

contact with 'X'. In 313 statement, it was claimed by him that 'X's mausi

Kusum had taken a loan of `45,000/- from him which was to be returned

within six months. When he pressed for its return, he was falsely

implicated in the case. On 22.5.2009 and 23.5.2009, he was not present in

Delhi and had gone to Punjab to his in-laws house along with his wife and

daughter. His plea of 'alibi' was not accepted by the Trial Court. Dev

Raj did not produce on record any document to show if any loan amount

was advanced by him to Kusum. It was also not clarified as to how A-1

or Kusum were known to him. A-1 in her 313 statement declined any

familiarity with Dev Raj. She did not state if any loan of `45,000/- was

advanced by Dev Raj through her. Besides it, just for a trivial dispute of

non-payment of `45,000/-, PW-1 Kusum who treated 'X' like her

daughter is not believed to invent a false story to implicate not only Dev

Raj but also Rahul and Vakil for commission of rape upon 'X'. The

defence deserves outright rejection.

12. 'X' aged around 12 years was an immature and innocent girl.

She was unaware of the consequences of the act being done by her on

A-1's behest. She did not raise any alarm at the time of commission of

rape on different days and did not report the incident to her mausi/nani

promptly. Rather she continued to visit A-1's house repeatedly on

number of days without any demur. During her medical examination on

5.6.2009 by Dr.Pooja vide MLC Ex.PW-2/C, no external fresh injuries

were found on her body including thigh and perineum; hymen was found

ruptured (old); introits admitted one finger easily. It ruled out that 'X'

was forcibly raped by the individuals against her wishes. It appears that

she was a consenting party but was allured or abetted to do so by A-1.

Since she was below the statutory age of 16 years, her consent to have

physical relations with the rapists is inconsequential. Submission of body

under the influence of fear is no consent.

13. Minor discrepancies, inconsistencies and contradictions

pointed out by the appellant's counsel are insignificant and do no affect

the core of the prosecution case materially to throw it over-board. Minor

variations in the ocular accounts of the witnesses are often the hallmark of

the truth of their testimony. The child was sexually abused for about five

days taking advantage of her loneliness in the house and also of her

immature age. There was no inordinate delay in lodging the report. PW-1

(Kusum) was informed of the occurrence on 04.06.2009 and soon

thereafter, she put the police machinery into motion. Delay in rape cases

is not fatal. Moreover, 'X' has explained that due to fear, she was unable

to report the incident to her relatives. In 313 statement, the accused

persons did not submit plausible explanation to the incriminating

circumstances proved against them. A-1 did not impute any motive to 'X'

or her mausi for levelling false allegations against her. It was merely

claimed that there used to be 'quarrels' and for that reason, she was

involved in this case. She did not elaborate if any serious quarrel had

taken place on any particular day or that the said incident was reported to

the police. For petty quarrels (if any) among the neighbours, such

allegations are not expected to be levelled.

14. The impugned judgment based upon fair appraisal of

evidence requires no intervention. The conviction is upheld. Considering

the gravity of the offence whereby a child of tender age was sexually

exploited for money consideration, no leniency is called for.

15. In the light of the above reasoning, the appeals being devoid

of merit are dismissed. All pending application(s) also stand disposed of.

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

Intimation be also sent to Superintendent Jail.

(S.P.GARG) JUDGE January 11, 2016 sa