residing in the house of prosecutrix and was having cordial relations with
the family of prosecutrix and the above-said evidence remains
unchallenged and so, in the instant case, no prudent person can conclude
that appellant has been falsely implicated because he objected to children
of prosecutrix’s mother defecating in front of house or because of quarrel
on this count. Neither parent would stake the honour of their minor
daughter and the family, to level such a serious accusation of rape against
appellant, to settle the scores on account of such a trivial quarrel,
particularly when the relations were cordial.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: June 16, 2017
CRL.A. 533/2016
PRAVEEN @ BABLU
v
STATE
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
The legality of appellant’s conviction under Section 376 of IPC is
the subject matter of this appeal. Impugned judgment of 14th March, 2016
holds appellant guilty of having raped prosecutrix, aged 5 years, on 18th
August, 2012 at 3:30 P.M. at F-281, Phase-6, Aya Nagar, New Delhi.
Impugned order of 22nd March, 2016, sentences appellant to
rigorous imprisonment for 10 years with fine of `50,000/- for committing
offence punishable under Section 376 (2) of IPC. Trial court has directed
that in default of payment of fine, appellant shall undergo rigorous
imprisonment for one year. The facts as noticed in impugned judgment
are as under: -
On 18th August 2012, SI Jaivir Singh recorded statement
of Smt. Jameela (PW1), the mother of the victim, who told him
that she alongwith her family was residing in a rented
accommodation; that her one son, aged about 11 years was
residing with his grand parents in their village, whereas her
other four children were living with her; that on 18th August,
2012 at about 3.30 pm, her youngest daughter S, aged 5
years, alongwith other children was playing in the courtyard
and she was chatting with Ms. Anjum, the aunt of her husband,
and then Sameer, aged 6 years, the son of Anjum came to her
and told her that Parveen @ Bablu uncle, having given her
toffee had sent him outside to play and thereafter, he bolted
her daughter S alongwith him in his room; that the mother of
the victim rushed towards the room of Parveen and found that
the door was closed; that she heard cries of her daughter
through the window in the room; that she removed the curtain
from the window and peeped inside and saw that Parveen @
Bablu had laid her daughter straight on the floor of the room
and after laying himself on her was committing rape upon her;
that she raised alarm in high voice and after hearing her voice
the accused released her daughter and after putting her
underwear on, opened the door of the room; that she caught
hold of her daughter and after hearing her voice neighbours
had gathered on the spot, and landlord Mobin Khan made a
telephonic call to her husband, who after reaching the house
called his employer S.K.Sharma, who after reaching called the
police on number 100.
Trial court has relied upon the testimony of prosecutrix (PW-2) and
that of her parents (PW-1 & PW-3), medical evidence and other evidence
on record including evidence of SI Jaivir Singh (PW-12) and has
discarded appellant’s version in his statement under Section 313 of
Cr.P.C., which is as under: -
“Question: Do you want to say anything else?
Answer: I am innocent. I have been falsely
implicated in this case. I further submits that on the day of
incident, one of the children of Jameela had passed latrine
in front of my house and when I objected to this, the mother
of the victim started abusing me. I had met with an accident
before the incident and at the time of the incident I was
under treatment at the hospital and was not even able to
walk. Due to the quarrel on the above mentioned issue, the
complainant has falsely implicated me in this case.”
Learned counsel for appellant submits that in pursuance of
production warrants, appellant was produced in custody before the Court
on the last date of hearing and he has already interacted with appellant
and submits that he has been instructed by appellant to argue this appeal
on merits.
Challenge to appellant’s impugned conviction by learned counsel
for appellant is on the ground that the version put forth by prosecutrix’s
father of her underwear being soaked in blood does not stand
substantiated from the FSL report and that no public persons were joined
in the investigation of this case and the false implication of appellant is
due to the quarrel which appellant had with family of the prosecutrix
regarding one of the children of prosecutrix’s mother defecating in front
of appellant’s house. It is pointed out that as per evidence of prosecutrix’s
mother (PW-1) and Investigating Officer (PW-12), public persons had
gathered at the spot but none of them was got examined to corroborate
prosecution version, which ought not to be relied upon in view of the
stand taken by appellant before trial court.
It is submitted by appellant’s counsel that prosecution version of
there being abrasions and scratches on the body of prosecutrix do not
stand substantiated. It is pointed out by appellant’s counsel that as per
version of prosecutrix’s father, they were first taken to police station and
from there to the hospital, but there is no corroboration of this version by
prosecutrix or her mother. To discredit the version put forth by
prosecutrix, learned counsel for appellant points out that there is variation
in the version put forth by prosecutrix in her statement under Section 164
of Cr.P.C. and her evidence before the Court and so, the inconsistencies
between the two versions entitle appellant benefit of doubt. Lastly, it is
submitted that appellant deserves to be acquitted as the prosecution case
is not established beyond reasonable doubt.
On the contrary, learned Additional Public Prosecutor for
respondent-State supports impugned judgment and submits that appellant
has committed a heinous crime and the offence committed by him stands
duly proved from evidence on record and the so-called infirmities pointed
out by appellant’s counsel in the prosecution case are immaterial and so,
this appeal deserves to be dismissed. Nothing else is urged on behalf of
either side.
After having duly considered the submissions advanced by both the
sides and on perusal of impugned judgment, order on sentence and the
evidence on record, I find that the crucial evidence is of prosecutrix
(PW-2), from which it is quite evident that she was sexually assaulted.
Infact, prosecutrix has clearly stated in her deposition that after the sexual
assault, there was blood and she felt hurt. Pertinently, there is no crossexamination
of prosecutrix regarding her bleeding after she was sexually
assaulted. Non-mention of bloodstains on prosecutrix’s panty in the FSL
report, is inconsequential in the facts of the instant case.
Supreme Court in its recent decision in State of H.P. Vs Sanjay
Kumar, (2017) 2 SCC 51 while dealing with the case of child victim, who
was subjected to rape, has reiterated as under:-
“………..it is well settled that the testimony of a victim in
cases of sexual offences is vital and unless there are
compelling reasons which necessitate looking for
corroboration of a statement, the courts should find no
difficulty to act on the testimony of the victim of a sexual
assault alone to convict the accused. No doubt, her
testimony has to inspire confidence. Seeking corroboration
to a statement before relying upon the same as a rule, in
such cases, would literally amount to adding insult to
injury. The deposition of the prosecutrix has, thus, to be
taken as a whole. Needless to reiterate that the victim of
rape is not an accomplice and her evidence can be acted
upon without corroboration. She stands at a higher pedestal
than an injured witness does. If the court finds it difficult to
accept her version, it may seek corroboration from some
evidence which lends assurance to her version. To insist on
corroboration, except in the rarest of rare cases, is to
equate one who is a victim of the lust of another with an
accomplice to a crime and thereby insult womanhood. It
would be adding insult to injury to tell a woman that her
claim of rape will not be believed unless it is corroborated
in material particulars, as in the case of an accomplice to a
crime. Why should the evidence of the girl or the woman
who complains of rape or sexual molestation be viewed with
the aid of spectacles fitted with lenses tinged with doubt,
disbelief or suspicion? The plea about lack of corroboration
has no substance.”
Non-joining of public witnesses in a case like instant one is
immaterial because the veracity of version put forth by prosecutrix has to
be objectively considered. Since I find that the deposition of prosecutrix
is trustworthy, therefore, I hold that non-joining of public witness in the
investigation of this case is of no consequence. On a bare perusal of
prosecutrix’s MLC, I find that there is mention of brown scabbing on the
face and chest of prosecutrix and also an oval shape bite mark was found
on the chest of prosecutrix. Thus, the version put forth by father of
prosecutrix does not get diluted from the medical evidence. Simply
because no semen was detected on the vaginal slide, would not justify an
inference that there was no sexual assault on the prosecutrix. MLC of
prosecutrix does reveal that there was some kind of injuries on her private
parts which fortifies prosecutrix’s assertion of sexual assault by appellant.
It is pertinent to note that it has come in the evidence that appellant was
residing in the house of prosecutrix and was having cordial relations with
the family of prosecutrix and the above-said evidence remains
unchallenged and so, in the instant case, no prudent person can conclude
that appellant has been falsely implicated because he objected to children
of prosecutrix’s mother defecating in front of house or because of quarrel
on this count. Neither parent would stake the honour of their minor
daughter and the family, to level such a serious accusation of rape against
appellant, to settle the scores on account of such a trivial quarrel,
particularly when the relations were cordial. Whether prosecutrix and her
parents were first taken by police to police station or straightaway to
hospital, would not be of any consequence in the facts of the instant case
and on such inconsequential plea, appellant cannot earn acquittal in a case
like instant one.
It is true that prosecutrix in her statement under Section 164 of
Cr.P.C. narrated the entire incident in a forthright manner as said
statement was recorded on the next day of the incident whereas the
evidence of prosecutrix was recorded in the court after more than one
year. Still, there is no variation or contradiction between the version put
forth by prosecutrix in her statement under Section 164 of Cr.P.C. and her
deposition before the court. The only difference is that prosecutrix’s
initial version of the incident in her statement under Section 164 of
Cr.P.C. recorded by a Magistrate is more detailed, whereas before the
court, she has briefly deposed, but has stated essential facts from which it
can be easily gathered that she was raped. Infact, it has come in the crossexamination
of prosecutrix that she was alone with appellant-accused in
the room at the time of this incident. Nothing more needs to be said, to
conclude that appellant had committed this heinous offence. Minimum
sentence as provided in law has been awarded to appellant.
In the considered opinion of this Court, evidence of prosecutrix is
consistent and it stands amply corroborated from evidence of parents and
the medical evidence. There is no material infirmity in the prosecution
case, to justify granting of benefit of doubt to appellant. In view of
foregoing narration, I find no substance in this appeal and as such, it is
dismissed. The concerned Jail Superintendent to apprise appellant about
fate of his appeal.
This appeal is disposed of while appreciating the able assistance
rendered by learned counsels on both the sides.
(SUNIL GAUR)
JUDGE
JUNE 16, 2017
No comments:
Post a Comment