SINCE THE RESPONDENT/ACCUSED IN THE PRESENT CASE IS THE FATHER OF THE VICTIM, IN ORDER TO CONCEAL THE IDENTITY OF THE VICTIM, THE NAME OF ACCUSED/RESPONDENT, THE DATE OF BIRTH OF THE VICTIM AND SOME OFFENSIVE MATERIAL HAS BEEN REDACTED IN THIS JUDGMENT. THE REGISTRY IS DIRECTED TO REDACT THE NAME OF THE RESPONDENT/ACCUSED FROM THE CAUSE TITLE.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 02.04.2019
CRL.REV.P. 17/2017
STATE (GNCT OF DELHI) Vs Mr X.
CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA
SINCE THE RESPONDENT/ACCUSED IN THE PRESENT CASE IS THE FATHER OF THE VICTIM, IN ORDER TO CONCEAL THE IDENTITY OF THE VICTIM, THE NAME OF ACCUSED/RESPONDENT, THE DATE OF BIRTH OF THE VICTIM AND SOME OFFENSIVE MATERIAL HAS BEEN REDACTED IN THIS JUDGMENT. THE REGISTRY IS DIRECTED TO REDACT THE NAME OF THE RESPONDENT/ACCUSED FROM THE CAUSE TITLE.
Crl.M.A.249/2017 (Delay of 8 days in filing the revision petition)
1. Subject petition has been filed with a delay of 8 days. It is
contended that the matter had to be considered for elucidating opinion
on filing of the appeal by the Addl. Public Prosecutor, Chief
Prosecutor, Director of Prosecution (DOP), Principal Secretary (Law
and Justice) and upto the Law Minister on account of which delay of 8
days occurred in filing the present revision petition.
2. On perusal of the record, I am satisfied that the petitioner has
sufficiently explained the delay in filing the petition.
3. For the aforesaid reason, the delay of 8 days in filing the
revision petition is condoned.
4. Application is allowed.
1. State impugns order dated 15.09.2016 whereby the Trial Court
has discharged the respondent from the offences under Sections 354,
376(2) (f) of the IPC.
2. The prosecutrix is the daughter of the accused. As per the FIR
the accused is blind and is living separately from his wife. The
prosecutrix in her statement submits that she has no memory as to
when the sexual assaults started. She was born on 27.03.1998 and her
father was the caretaker of her and her brother. There are several
instances narrated by her starting from the period 2004-2005 till 2011
when he is alleged to have sexually assaulted her.
3. The Trial Court by the impugned order has discharged the
accused primarily inter-alia holding as under:-
“ It is natural position that a blind person cannot
give bath to any person and even if he gives bath, he
cannot put his penis between the thighs of any person.
Even if, he had done this act, there was various
opportunities to prosecutrix to raise alarm or discuss the
fact to any close relative or friend or mother. Even in the
present case, divorced mother of prosecutrix was also
alive, she could have discussed with her but same was
not done. Moreover, in the cities like Delhi there is
facility of 100 number for calling police. She could have
made the phone to police, it appears from her contents of
complaint that prosecutrix is well educated and her
father is blind. There was lot of opportunities for,
prosecutrix to make the complaint against her father at
that time.
Complaint further reveals that on 22.06.2016,
father of prosecutrix asked her to go somewhere with him
and she refused and she went to her mother's home to
stay with her and he called her mother and said whatever
the matter between her mother and him. They sort it out.
From this fact and complaint dated 26.06.2016, it
appears that it was the matter of fighting between
prosecutrix and her father. On that pretext, present
matter was lodged for offence u/s 376 IPC.
From the MLC it is revealed that last sexual
assault was happened when prosecutrix was aged of 13
to 14 years and MLC also does not suggest any fresh
injury on person of prosecutrix at the time of medical
examination, hence, submissions of Ld. Addl. PP for the
State that matter is covered under POCSO is not tenable.
Further, submissions of IO has also not supported the
version of Ld. Addl. PP for the State. Hence, offence
under POCSO Act is not made out against the accused.
***** ***** *****
At this stage, when it has come on record that police
on 100 number available in Delhi frequently and way of
writing of complaint shows that complainant is very
much intelligent and knowing consequences and could
have disclosed about the incident, if anything, had
happened with her to her mother or to any close relative
but same was not done. All the allegations are general in
nature without mentioning specific dates. Hence, in these
circumstances, prima facie there is no sufficient material
on record to proceed further with this case. Accordingly,
accused Tulsi Das Mahto is discharged from the offences
punishable under section 354/376(2)(f) IPC.”
4. The Trial Court inter-alia has held that the allegations were
made against a blind person and it was not possible for him to commit
the acts as alleged by the prosecutrix. Further the Trial Court has held
that there is facility of 100 number for seeking police assistance and
prosecutrix has not made any call to the police or even discussed
about the acts with any person for several years. On that premise Trial
Court has held that prima facie there is insufficient material on record
to proceed further with the case.
5. It would be necessary to extract the allegations made by the
prosecutrix based on which the FIR has been registered. She in her
statement has inter alia stated as under:-
“………..My parents are divorced. They started living
separately in 2004. I have no memory of when the sexual
assault started. In 2004-2005 we used to live in dhakha
Parmanand. My father was caretaker of me and my
brother. While giving me baths in the bathroom he used
to insert his finger in my vagina and also used to put his
penis between my thighs. If ejaculated he used to clean
his semen off my vulva. In 2006 he admitted me and my
brother in a hostel. And my mother say he did it to bring
other women home for sex and other things. In my
childhood he used to put his penis in my mouth. He used
to lick my vulva too and used to ask me to suck his penis.
In 2006 or 2007 he started putting his penis in my
vagina. He did it when we used to come home from hostel
for holidays. He used to do it when father and I were
alone in the House. In 2010 I came home for holidays. I
used to sleep next to him. In my sleep he used to touch my
private parts and penetrate his penis in my vagina.
Which was painful, and I used cry silently. This happened
more than once in that year. Due to lack of Sex-ed, I
begin to think that 1 would become pregnant and I went
through a lot of stress and mental trauma. In 2011 went
to a different hostel and started getting sex education and
came to know that what happened with me was rape and
sexual assault. But I never told anyone about this. When I
came home for holidays In 2011; he engaged in sexual
act with me, in my sleep. He penetrated his penis in my
vagina which was very painful. I woke up and told him
that it is hurting me. Then he stopped. From then I
started sleeping in a separate bed. I started covering my
Breasts. When he hugged me and kissed me on my face, I
never spoke to anyone about this because he was
dominating and always, told me during that period of
sexual-assault not to tell anyone about this. I was also
afraid of telling anyone because he was my father and
the only one to earn in the family. In 2012 and 2013 he
tried to touch me but I kept my distance. I also kept my
behaviour normal with him and everyone. From then I
made it my habit to cover my breast and being alert when
he was around. I kept it a secret because I did not know
how the people around me are going to react. All this
used to come in my mind every now and then. I used to
feel depressed by thinking what can be done now. On 22
June 2016, My father asked me to go somewhere with
him I refused. This turned into a fight. I went to my
mother's home to stay with her. He called my mother on
her phone and said whatever the matter is. It is between
me, my mother and him. We can sort it out. After
sometime he called again. I asked my mother to put it on
speaker. He said what is the proof that I have done it. He
also said that I want to run away with someone that is
why I'm saying all this. Next day (23-6-2016) He went
somewhere without telling anyone and left his phone at
home. On 25-June, 2016 we came to know that he is in
Bihar at his sister's home, I disclosed what happened
with me to my mother and Brother on 22 June. I have
shared this with a close friend of mine. His name is
Divya Prakash. He asked me that I want to do now and
told me what options I had. I asked him to help me. So he
talked to somebody, who suggest to go to NGO. I went to
NGO with my Brother and my Friend. ………..”
6. The medical examination of the prosecutrix also indicated
“hymen torn”. The prosecutrix has given detailed description of the
manner in which respondent used to sexually assault her.
7. The reasoning given by the Trial Court, that the allegations are
general in nature without mentioning specific dates and are not
substantiated as she had not called the police on 100 number or
informed any of the close relatives, is clearly not sustainable.
8. Perusal of the impugned order shows that the reasoning of the
Trial Court is completely perverse and Trial Court does not seem to be
alive to realities.
9. The relation between the prosecutrix and the accused is that of
daughter and father and the allegations of sexual assault go back to
several years. The prosecutrix in her complaint to the police and her
164 CrPC statement has stated that she does not even recollect when
the sexual assault started. Her narration of incidents go back to a
period when she was only 6 years of age and the sexual assault
continued till she was 13 – 14 years of age. Complaint is made to the
police when she attained the age of 18 years.
10. A child who is subjected to sexual abuse and assault from a
tender age of 6 and which assault continues till she is 14 years of age,
would not even be aware that she is being abused or any offence is
happening. The prosecutrix in her statement has stated that she was
not aware of the abuse and became aware only when she grew up.
11. Further, merely because there is delay in lodging a complaint
would be no ground for the Court to discharge an accused, especially
when there is other evidence to corroborate the allegations. Medical
evidence also supports the allegations. Trial court has erred in not
appreciating that the accused is the father of the prosecutrix and was
in a dominating position and keeping in the view the relationship, it
would not be abnormal for the prosecutrix not to make a complaint
against her own father. The reasoning given by the Trial Court is
completely perverse and contrary to record.
12. On perusal of the record, I am satisfied that the allegations raise
grave suspicion against the respondent of having committed the
offence of Section 354, 376(2)(f).
13. In view of the above, the petition is allowed, impugned order
dated 15.09.2016 discharging the respondent of the offence under
Section 354, 376(2)(f) IPC is set aside. The matter is remitted to the
Trial Court to frame appropriate charge inter alia under Section 354,
376 IPC against the respondent.
14. List before the Trial Court for appropriate orders on
15.04.2019. Respondent shall appear in person before the Trial Court
on the said date.
15. It is clarified that this court has not expressed any opinion on
the merits of the matter.
16. Order dasti under signatures of the Court Master.
APRIL 02, 2019 SANJEEV SACHDEVA, J
Print Page
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 02.04.2019
CRL.REV.P. 17/2017
STATE (GNCT OF DELHI) Vs Mr X.
CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA
SINCE THE RESPONDENT/ACCUSED IN THE PRESENT CASE IS THE FATHER OF THE VICTIM, IN ORDER TO CONCEAL THE IDENTITY OF THE VICTIM, THE NAME OF ACCUSED/RESPONDENT, THE DATE OF BIRTH OF THE VICTIM AND SOME OFFENSIVE MATERIAL HAS BEEN REDACTED IN THIS JUDGMENT. THE REGISTRY IS DIRECTED TO REDACT THE NAME OF THE RESPONDENT/ACCUSED FROM THE CAUSE TITLE.
Crl.M.A.249/2017 (Delay of 8 days in filing the revision petition)
1. Subject petition has been filed with a delay of 8 days. It is
contended that the matter had to be considered for elucidating opinion
on filing of the appeal by the Addl. Public Prosecutor, Chief
Prosecutor, Director of Prosecution (DOP), Principal Secretary (Law
and Justice) and upto the Law Minister on account of which delay of 8
days occurred in filing the present revision petition.
2. On perusal of the record, I am satisfied that the petitioner has
sufficiently explained the delay in filing the petition.
3. For the aforesaid reason, the delay of 8 days in filing the
revision petition is condoned.
4. Application is allowed.
1. State impugns order dated 15.09.2016 whereby the Trial Court
has discharged the respondent from the offences under Sections 354,
376(2) (f) of the IPC.
2. The prosecutrix is the daughter of the accused. As per the FIR
the accused is blind and is living separately from his wife. The
prosecutrix in her statement submits that she has no memory as to
when the sexual assaults started. She was born on 27.03.1998 and her
father was the caretaker of her and her brother. There are several
instances narrated by her starting from the period 2004-2005 till 2011
when he is alleged to have sexually assaulted her.
3. The Trial Court by the impugned order has discharged the
accused primarily inter-alia holding as under:-
“ It is natural position that a blind person cannot
give bath to any person and even if he gives bath, he
cannot put his penis between the thighs of any person.
Even if, he had done this act, there was various
opportunities to prosecutrix to raise alarm or discuss the
fact to any close relative or friend or mother. Even in the
present case, divorced mother of prosecutrix was also
alive, she could have discussed with her but same was
not done. Moreover, in the cities like Delhi there is
facility of 100 number for calling police. She could have
made the phone to police, it appears from her contents of
complaint that prosecutrix is well educated and her
father is blind. There was lot of opportunities for,
prosecutrix to make the complaint against her father at
that time.
Complaint further reveals that on 22.06.2016,
father of prosecutrix asked her to go somewhere with him
and she refused and she went to her mother's home to
stay with her and he called her mother and said whatever
the matter between her mother and him. They sort it out.
From this fact and complaint dated 26.06.2016, it
appears that it was the matter of fighting between
prosecutrix and her father. On that pretext, present
matter was lodged for offence u/s 376 IPC.
From the MLC it is revealed that last sexual
assault was happened when prosecutrix was aged of 13
to 14 years and MLC also does not suggest any fresh
injury on person of prosecutrix at the time of medical
examination, hence, submissions of Ld. Addl. PP for the
State that matter is covered under POCSO is not tenable.
Further, submissions of IO has also not supported the
version of Ld. Addl. PP for the State. Hence, offence
under POCSO Act is not made out against the accused.
***** ***** *****
At this stage, when it has come on record that police
on 100 number available in Delhi frequently and way of
writing of complaint shows that complainant is very
much intelligent and knowing consequences and could
have disclosed about the incident, if anything, had
happened with her to her mother or to any close relative
but same was not done. All the allegations are general in
nature without mentioning specific dates. Hence, in these
circumstances, prima facie there is no sufficient material
on record to proceed further with this case. Accordingly,
accused Tulsi Das Mahto is discharged from the offences
punishable under section 354/376(2)(f) IPC.”
4. The Trial Court inter-alia has held that the allegations were
made against a blind person and it was not possible for him to commit
the acts as alleged by the prosecutrix. Further the Trial Court has held
that there is facility of 100 number for seeking police assistance and
prosecutrix has not made any call to the police or even discussed
about the acts with any person for several years. On that premise Trial
Court has held that prima facie there is insufficient material on record
to proceed further with the case.
5. It would be necessary to extract the allegations made by the
prosecutrix based on which the FIR has been registered. She in her
statement has inter alia stated as under:-
“………..My parents are divorced. They started living
separately in 2004. I have no memory of when the sexual
assault started. In 2004-2005 we used to live in dhakha
Parmanand. My father was caretaker of me and my
brother. While giving me baths in the bathroom he used
to insert his finger in my vagina and also used to put his
penis between my thighs. If ejaculated he used to clean
his semen off my vulva. In 2006 he admitted me and my
brother in a hostel. And my mother say he did it to bring
other women home for sex and other things. In my
childhood he used to put his penis in my mouth. He used
to lick my vulva too and used to ask me to suck his penis.
In 2006 or 2007 he started putting his penis in my
vagina. He did it when we used to come home from hostel
for holidays. He used to do it when father and I were
alone in the House. In 2010 I came home for holidays. I
used to sleep next to him. In my sleep he used to touch my
private parts and penetrate his penis in my vagina.
Which was painful, and I used cry silently. This happened
more than once in that year. Due to lack of Sex-ed, I
begin to think that 1 would become pregnant and I went
through a lot of stress and mental trauma. In 2011 went
to a different hostel and started getting sex education and
came to know that what happened with me was rape and
sexual assault. But I never told anyone about this. When I
came home for holidays In 2011; he engaged in sexual
act with me, in my sleep. He penetrated his penis in my
vagina which was very painful. I woke up and told him
that it is hurting me. Then he stopped. From then I
started sleeping in a separate bed. I started covering my
Breasts. When he hugged me and kissed me on my face, I
never spoke to anyone about this because he was
dominating and always, told me during that period of
sexual-assault not to tell anyone about this. I was also
afraid of telling anyone because he was my father and
the only one to earn in the family. In 2012 and 2013 he
tried to touch me but I kept my distance. I also kept my
behaviour normal with him and everyone. From then I
made it my habit to cover my breast and being alert when
he was around. I kept it a secret because I did not know
how the people around me are going to react. All this
used to come in my mind every now and then. I used to
feel depressed by thinking what can be done now. On 22
June 2016, My father asked me to go somewhere with
him I refused. This turned into a fight. I went to my
mother's home to stay with her. He called my mother on
her phone and said whatever the matter is. It is between
me, my mother and him. We can sort it out. After
sometime he called again. I asked my mother to put it on
speaker. He said what is the proof that I have done it. He
also said that I want to run away with someone that is
why I'm saying all this. Next day (23-6-2016) He went
somewhere without telling anyone and left his phone at
home. On 25-June, 2016 we came to know that he is in
Bihar at his sister's home, I disclosed what happened
with me to my mother and Brother on 22 June. I have
shared this with a close friend of mine. His name is
Divya Prakash. He asked me that I want to do now and
told me what options I had. I asked him to help me. So he
talked to somebody, who suggest to go to NGO. I went to
NGO with my Brother and my Friend. ………..”
6. The medical examination of the prosecutrix also indicated
“hymen torn”. The prosecutrix has given detailed description of the
manner in which respondent used to sexually assault her.
7. The reasoning given by the Trial Court, that the allegations are
general in nature without mentioning specific dates and are not
substantiated as she had not called the police on 100 number or
informed any of the close relatives, is clearly not sustainable.
8. Perusal of the impugned order shows that the reasoning of the
Trial Court is completely perverse and Trial Court does not seem to be
alive to realities.
9. The relation between the prosecutrix and the accused is that of
daughter and father and the allegations of sexual assault go back to
several years. The prosecutrix in her complaint to the police and her
164 CrPC statement has stated that she does not even recollect when
the sexual assault started. Her narration of incidents go back to a
period when she was only 6 years of age and the sexual assault
continued till she was 13 – 14 years of age. Complaint is made to the
police when she attained the age of 18 years.
10. A child who is subjected to sexual abuse and assault from a
tender age of 6 and which assault continues till she is 14 years of age,
would not even be aware that she is being abused or any offence is
happening. The prosecutrix in her statement has stated that she was
not aware of the abuse and became aware only when she grew up.
11. Further, merely because there is delay in lodging a complaint
would be no ground for the Court to discharge an accused, especially
when there is other evidence to corroborate the allegations. Medical
evidence also supports the allegations. Trial court has erred in not
appreciating that the accused is the father of the prosecutrix and was
in a dominating position and keeping in the view the relationship, it
would not be abnormal for the prosecutrix not to make a complaint
against her own father. The reasoning given by the Trial Court is
completely perverse and contrary to record.
12. On perusal of the record, I am satisfied that the allegations raise
grave suspicion against the respondent of having committed the
offence of Section 354, 376(2)(f).
13. In view of the above, the petition is allowed, impugned order
dated 15.09.2016 discharging the respondent of the offence under
Section 354, 376(2)(f) IPC is set aside. The matter is remitted to the
Trial Court to frame appropriate charge inter alia under Section 354,
376 IPC against the respondent.
14. List before the Trial Court for appropriate orders on
15.04.2019. Respondent shall appear in person before the Trial Court
on the said date.
15. It is clarified that this court has not expressed any opinion on
the merits of the matter.
16. Order dasti under signatures of the Court Master.
APRIL 02, 2019 SANJEEV SACHDEVA, J
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