Kasim vs The State (Nct Of Delhi)
2016 Latest Caselaw 2456 Del

$-16
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     DECIDED ON : 30th MARCH, 2016

+            CRL.A. 719/2014 & CRL.M.A.No.19051/2015

      KASIM                                              ..... Appellant

                         Through :    Mr.Sumeet Verma, Advocate with
                                      Mr.Amit Kala, Advocate.


                         versus

      THE STATE (NCT of Delhi)                           ..... Respondent

                         Through :    Mr.Tarang Srivastava, APP.

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

S.P.Garg, J. (Oral)

1. The appellant - Kasim impugns a judgment dated 21.02.2011

of learned Additional Sessions Judge in Sessions Case No.20/2010 arising

out of FIR No.85/2010 PS Aman Vihar by which he was held guilty for

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

By an order dated 26.02.2011, he was awarded various prison terms with

fine. The sentences were to run concurrently.

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

sheet was that on 16.03.2010 at around 12.00 (noon), the appellant

kidnapped the prosecutrix 'X' (changed name), aged around 8 years out

of the lawful guardianship of her parents while she was playing outside

tea stall being run by him. The appellant, thereafter, committed rape upon

her inside the shop. The police machinery came into motion on receipt of

information about the incident vide Daily Diary (DD) No.13A (Ex.PW-

8/A) recorded at 01.08 p.m. at PS Aman Vihar to the effect that a girl aged

around 10 years was sexually assaulted. The investigation was assigned

to SI Surya Prakash who after recording victim's statement (Ex.PW-3/A),

lodged First Information Report. 'X' was medically examined. 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 filed

against the appellant in the Court. To prove its case, the prosecution

examined 12 witnesses. In 313 Cr.P.C. statement, the appellant denied his

involvement in the crime and pleaded false implication. The trial resulted

in his conviction as aforesaid. Being aggrieved and dissatisfied, the

instant appeal has been filed.

3. During pendency of the appeal, Crl.M.A.No.19051/2015 was

filed by the appellant for release as he had already undergone more than

seven years incarceration. Learned counsel for the appellant, on

instructions, stated that the appellant has opted not to challenge the

findings of the Trial Court on conviction. He prayed to modify the

sentence order and to release the appellant for the period already

undergone by him in custody which is more than seven years; he is the

only earning member in the family and is to take care of his four minor

children. Despite grant of suspension of sentence, he could not avail it

due to his inability to arrange the required surety.

4. Since the appellant has voluntarily given up challenge to the

findings on conviction, the conviction recorded by the Trial Court for

various offences is affirmed. Besides this, overwhelming evidence exist

on record to establish the appellant's guilt on merits. In the occurrence

that took place at around 12.00 p.m., the accused was apprehended at the

spot and was thrashed by the crowd gathered there. The incident was

conveyed to the police promptly without any delay at around 01.08 p.m.

and Daily Diary (DD) No.13A (Ex.PW-8/A) came into existence. In her

statement (Ex.PW-3/A), the victim named the appellant to be the

perpetrator of the crime and gave graphic detail as to how and in what

manner, she was ravished by the appellant in the shop. In her Court

statement, she identified the appellant to be the author of the crime and

implicated him for committing rape upon her inside the shop. She

deposed that after taking inside the shop, the accused removed her panty

and did "Galat Kaam". Blood started oozing out from her private parts; it

caused pain to her. The appellant allured her with `10 and asked her not

to reveal the act to anyone. On her raising alarm, her mother and other

neighbours arrived at the spot; the accused was beaten by them. In the

cross-examination, she disclosed that the appellant had tried to forcibly

give her `10 but she threw it. She denied that no such rape incident had

taken place in the shop or that the appellant was falsely implicated for the

act done by someone else.

5. On scanning the testimony of the child witness, it reveals that

material facts deposed by her have remained unchallenged and

uncontroverted. No oblique motive was assigned to the child to level

serious allegations of rape. The act of sexual assault as stated is not under

challenge. Appellant's contention that it was the handy work of someone

else is devoid of merit as 'X', the victim, is not expected to spare the real

offender and to implicate an innocent one with whom she had no prior

animosity or enmity. The accused was running a tea shop in the vicinity

since long. The victim's father had shifted to the said locality about three

months before and there was no history of hostility between the two

during that period prompting them to implicate the appellant in the crime.

Parents of a minor daughter cannot think to level such serious allegations

to spoil the reputation of their unmarried daughter of tender age. Nothing

has emerged on record if the statement was tutored to the victim; her

statement is consistent throughout.

6. PW-3 (Sitara), victim's mother, has corroborated her version

in entirety without any major deviation. On hearing her daughter's cries,

she went to the appellant's shop and found him indulging in sexual act

with 'X'. Victim's ocular testimony is in consonance with medical

evidence. Soon after physical sexual assault she was medically examined

at Sanjay Gandhi Memorial Hospital, Mangolpuri at about 02.00 p.m. by

PW-6 (Dr.Brijesh Singh) who noticed swelling over her forehead. PW-9

(Dr.Shalini) deposed that her ('X') medical examination was done under

anaesthesia, tear was present in the vagina; posterior vaginal wall was

found torn; fourchette tear with bleeding was present; hymen was fond

torn. Vaginal stitches were given to the victim. In the cross-examination,

she disclosed that hymen torn was fresh. In 313 Cr.P.C. statement, the

appellant did not give plausible explanation to the incriminating

circumstances proved against him. Since impugned judgment is based

upon true appreciation of the evidence, it needs no intervention.

Appellant's conviction is affirmed.

7. Regarding appellant's contention to take lenient view, it

transpires that the minimum sentence of ten years prescribed under

Section 376(2)(f) IPC has been rightly awarded by the Trial Court. The

victim was an innocent child of tender age of 10 years. The appellant

aged around 25 years a married person and father of four children was

well aware of the consequences of his nefarious act. Victim was like his

daughter. The appellant ravished her and attempted to suppress it by

offering `10 to her. The victim was an immature child and did not

comprehend as to what had happened with her. The appellant who lived

in the neighbourhood not only betrayed the trust of X's parents but also

defiled a girl of tender age. 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. Apparently, there are no adequate and

special reasons not to award the minimum sentence mandated under

Section 376 (2)(f) IPC.

8. Learned counsel for the appellant relied upon judgment in

'Suresh vs. State of Delhi' in Crl.A.792/2001 decided on 16.07.2013

whereby the sentence was modified by this Court from 10 years to 8

years. In the said case / appeal, certain documents and other materials

were reconstructed as the original Trial Court record was not traceable.

The victim in the said case had not suffered any injury on her body

including private parts. In the instant case, the child has suffered injuries

on her private parts and her medical examination was done under

anaesthesia; vaginal stitches had to be given. Moreover, the appellant

therein was aged around 20 years.

9. The appeal lacks merits and is dismissed. Pending application

also stands disposed of. Trial Court record be sent back forthwith along

with the copy of the order. A copy of the order be sent to Superintendent

Jail for information.

(S.P.GARG) JUDGE MARCH 30, 2016 / tr