Delhi High Court
Dharambir vs The State (Nct Of Delhi) on 2 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: January 04, 2017
Decided on: May 02, 2017
+ CRL.A. 178/2001
DHARAMBIR ..... Appellant
Represented by: Mr. Suresh Sharma, Advocate.
versus
THE STATE (NCT OF DELHI) ..... Respondent
Represented by: Mr. Ashok K.Garg, APP for the
State with SI Omveer Singh, PS
Nand Nagri.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By the present appeal, Dharambir challenges the impugned judgment
dated 23rd January, 2001 convicting him for the offences punishable under
Sections 363/366A/506(II)/342/376 IPC in FIR No. 884/1997 registered at
PS Nandnagri and the order on sentence of the even date directing him to
undergo rigorous imprisonment for a period of three years and to pay a fine
of ₹1,000/- for the offence punishable under Section 366A IPC, rigorous
imprisonment for a period of one year for the offence punishable under
Section 506(II) IPC, rigorous imprisonment for a period of six months for
the offence punishable under Section 342 IPC and rigorous imprisonment for
a period of seven years and to pay a fine of ₹1,000/- for the offence
punishable under Section 376 IPC.
2. Assailing the conviction, learned counsel for Dharambir contends that
the age of the prosecutrix has not been duly proved. No bone x-ray was
conducted despite the specific advise by PW-3 Dr. Manjusha. The knives
used during the incident have not been recovered. The prosecutrix stated that
the appellant and the other assailants were not known to her prior to the
incident. The prosecution had failed to prove how the parents of the
prosecutrix knew the names of the accused persons and had told her to take
their names. No test identification parade was conducted and the accused
were shown to the prosecutrix in the police station.
3. Per contra, learned APP for State states that the age of the prosecutrix
was proved by the school leaving certificate which mentions the date of birth
as 15th May, 1983. As per the FSL report, semen was detected on the salwar
of the prosecutrix which corroborates the version of the prosecutrix.
Furthermore, the consent of the prosecutrix was immaterial since her age
was below 16 years.
4. The brief facts of prosecution case are that on 25th December, 1997 at
8:50 P.M., PW-4 father of the prosecutrix came to the police station and
stated that his daughter (PW-1 prosecutrix herein) went somewhere in the
evening around 6:00 P.M. without informing anyone and had not come back
home. They could not find her despite searching her. On the basis of this
complaint, DD No. 61B was recorded by PW-15 Constable Dinesh.
However, on 27th December, 1997, the prosecutrix along with her parents
came to the police station and gave her statement wherein she stated that on
25th December, 1997, around 7:00 P.M., when she was going to the house of
her elder brother, she met Dharambir, Subhash and Raju who had covered
their faces. They all took out knives from their pockets, held her, gagged her
mouth and threatened her that if she raised alarm, they would kill her. She
further stated that since it was evening time and it was cold, there wasn't
anyone else on the road. Thereafter, three of them took her to C-2 Block,
Nandnagri, which was the house of maternal uncle of Raju and locked her
with Dharambir in a room on the upper portion. Dharambir committed rape
upon her without her consent on that night and also in the morning of the
next day. However, on 26th December, 1997, in the evening when it was
dark, Dharambir dropped her at the corner of the lane in which her house is
situated and ran away. He had also threatened her that he will kill her parents
if she disclosed about the incident to anyone. Later on, when she reached
home, she narrated the entire incident to her parents. On the basis of
statement Ex. PW-1/A, FIR was registered for offences punishable under
Sections 363/342/376/506/34 IPC. Prosecutrix was taken to GTB Hospital
for her medical examination. Site plan Ex. PW-18/A was prepared.
Dharambir and Subhash were arrested by PW-18 SI Narinder Singh. On 28th
December, 1997, Rajesh @ Raju was also arrested. Statements of the
witnesses were recorded. By the impugned judgment Subhash and Rajesh @
Raju were acquitted, however, Dharambir was convicted for offences
punishable under Sections 363/366A/506(II)/342/376 IPC.
5. The prosecutrix deposed before the Court in sync with her statement
made before the police. During her cross-examination, she stated that when
Dharambir dropped her back to her house, a quarrel took place between
Dharambir and her family members because of which her shawl was taken
away by Dharambir. She also stated that she did not know the names of
Subhash and Raju earlier. She stated that before leaving for her brother's
house she had informed her family members. She stated that Dharambir had
removed her clothes after which he removed his clothes and committed rape
upon her due to which she felt pain. She denied the suggestion that she was a
consenting party to the "galat kaam". She also denied the suggestion that at
the time of incident, her age was more than 18 years.
6. PW-4 father of the prosecutrix, and PW-7 mother of the prosecutrix,
corroborated the testimony of the prosecutrix.
7. PW-14, Principal Incharge, MCD Primary School, Nand Nagri stated
that according to the entry in school register Ex.PW-14/C, prosecutrix got
admitted in the school on 20th November, 1988. He exhibited the copy of
admission form Ex.PW-14/A and affidavit given at the time of admission
Ex. PW-14/B and stated that date of birth of the prosecutrix as per school
records was 15th May, 1983. He stated that the prosecutrix studied till class
5th after which a School Leaving Certificate was issued vide Ex.PW-14/D.
8. PW-3 Dr. Manjusha, Gynae, GTB Hospital, who had examined the
prosecutrix and prepared the MLC Ex.PW-3/A, stated that there were no
signs of injury, labia minora was spread apart and the hymen was intact.
Hiatus was relatively larger and admitted one finger. She also stated that in
case of intercourse or incomplete forcible intercourse, the hymen can remain
intact and that the hymen can remain intact even after two such attempts.
9. PW-12 Dr. A.K. Shrivastava, Sr. Scientific Officer, FSL prepared
biological report Ex.PW-12/A and serological report Ex.PW-12/B. As per
the report, human semen was detected on the salwar (Ex. 3A) of the
prosecutrix.
10. Though as per the suggestions given to the prosecutrix, the stand of
Dharambir was of consent but no such explanation was rendered in his
statement under Section 313 Cr.P.C. As noted above the prosecutrix was
less than 16 years of age at the time of incident, thus her consent, if any, is
immaterial. The contention of learned counsel for Dharambir that the age of
the prosecutrix was not properly proved as no ossification test of the
prosecutrix was done deserves to be rejected as her date of birth was proved
by the prosecution by exhibiting the school record. As per Rule 12 of the
Delhi Juvenile Justice (Care and Protection of Children) Rules, 2009
precedence has to be given to the age noted in the school first attended and
the last resort is to ossification test. The version of the prosecutrix is duly
corroborated by the presence of semen on the salwar of the prosecutrix. The
name of Dharambir has been mentioned in the ruqqa itself. Thus there is no
improvement in the version of the prosecutrix and there was no need for
getting test identification done.
11. Considering the evidence on record, it can be safely held that the
prosecution has proved its case against Dharambir beyond reasonable doubt.
The appeal is accordingly dismissed. Dharambir who is on bail will
surrender to custody. His bail bond and the surety bond are cancelled.
12. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.
13. Trial court record be returned.
(MUKTA GUPTA)
JUDGE
MAY 02, 2017
'vkm'
