CRL.A.258/2014 Page 1 of 30

#4

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Delivered on: 20

th

November, 2019

CRL.A. 258/2014

ANIL KUMAR …. Appellant

versus

STATE .... Respondent

Advocates who appeared in this case:

For the Appellant : Mr. S.B. Dandapani, Advocate.

Appellant produced in custody.

For the Respondent : Mr. Ashish Dutta, APP for State.

SI Rajeshwar, P.S. Palam Village.

CORAM:

HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

HON'BLE MR. JUSTICE I.S. MEHTA

J U D G M E N T

SIDDHARTH MRIDUL, J (OPEN COURT).

1. The present appeal assails the judgment dated 16

th

December,

2013 and the order on sentence dated 20

th

December, 2013, rendered

by the learned Additional Sessions Judge, Dwarka Courts, New Delhi,

in Sessions Case No. 94/13, arising out of FIR No. 102/2012, Police

Station-Palam Village, whereby, the appellant was convicted for the

commission of offences under Sections 363/376(2)(f)/457 of the

CRL.A.258/2014 Page 2 of 30

Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’ and

sentenced to undergo as under:-

(a) 20 years rigorous imprisonment and fine of Rs.25,000/-

and in default of payment of fine, further imprisonment for a

period of 6 months for the offence punishable under Section

376(2)(f) IPC;

(b) 5 years rigorous imprisonment and fine of Rs.10,000/-

and in default of payment of fine, further imprisonment for a

period of 3 months for the offence punishable under Section

363 IPC and;

(c) 3 years rigorous imprisonment and fine of Rs.10,000/-

and in default of payment of fine, further imprisonment for a

period of 3 months for the offence punishable under Section

457 IPC.

2. The facts, as are necessary for the adjudication of the present

appeal, are adumbrated as follows:-

a) On the 27

th

April, 2012, at 11:42 p.m., on information

received in Police Station- Palam Village, from the Police

Control Room (PCR), to the effect that, a minor girl had been

raped, after breaking open the lock of her house, DD No. 64A

CRL.A.258/2014 Page 3 of 30

was recorded and its contents were intimated to ASI Asha Rani,

PW-15.

b) ASI Asha Rani, PW-15, reached the spot, where the

offence is stated to have occurred i.e. RZF-754, Gali No. 1, Raj

Nagar Part-II, Palam Colony and met the complainant Mr.

Kripal Singh Yadav, PW-4, the father of the prosecutrix ‘S’

(real name withheld in order to conceal her identity). Mr. Kripal

Singh Yadav, PW-4 stated that, he is a driver by profession and

has two children, namely, a daughter ‘S’, aged about 7 years

and son Vishal, aged 2 years. It was further stated by PW-4 that,

on the 27

th

April, 2012, he along with his wife had gone to the

Friday Market, after leaving their children inside their rented

accommodation and locking the premises from the outside.

When the parents of the minor victim returned home at around

10:45 p.m, they found that the lock of the said accomodation

had been broken and the door was closed from the inside.

Subsequent upon their knocking on the door of the premises, it

was opened by the prosecutrix ‘S’, who then started weeping

loudly and exclaimed that the Uncle, who had been visiting

their house, had beaten her up.

CRL.A.258/2014 Page 4 of 30

c) Simultaneously, PW-3, Ms. Rangeeta, the mother of the

minor girl noticedthat thelatter was bleeding from her private

parts. Upon further enquiry as to what had transpired, the

prosecutrix told that the parents in a terrified voice that, an

Uncle, who had come to their house earlier as well, had come in

their absence and took her to a dark place saying that, her Papa

is calling her on the roof, then took off her pant and inserted his

private organ into her private organ. The prosecutrix

complained that, she had felt intense pain at that time,

whereafter that Uncle had left her outside their house and made

himself scarce. The prosecutrix told her father, PW-4 that, it is

owing to this fear, that she had locked the door from within.

PW-3, Ms. Rangeeta made a call to the Police Control Room

(PCR) at telephone No. 100, which was marked to ASI Asha

Rani, PW-15 and the latter arrived and prepared a rukka

(Ex.PW-4/A & 1/D) at 11:58 p.m. on 27.04.2012 and got the

subject FIR (Ex.PW-1/C) registered at 3:30 a.m on 28.04.2012,

on the basis of the above said statement of Mr. Kripal Singh

Yadav. Thereafter, ASI Asha Rani, PW-15, took the minor girl

to DDU Hospital, where she was admitted for treatment.

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d) A perusal of the MLC (Ex.PW-13/A), in relation to the

prosecutrix ‘S’ records that, she had been escorted to the

Hospital for medical examination by Pw-3,Ms Rangeeta,

mother of the victim and Pw-15, WSI Asha Rani, at 1:50 a.m on

28.04.2012 on account of an alleged sexual assault by a

neighbor as endorsed thereon. The examining doctor

Dr.Narender Kumar (not examined as prosecution witness)

found the following injuries present on the prosecutrix:-

Exh.PW-13/A

“Name: ‘S’ d/o Kripal Singh, aged 7 years, sex:

female

DD 64/A

E.no.89162. MLC no. 7613 dated: 28.04.2012

Brought for medical examination: alleged h/o sexual

assault as told by B/B mother( Rangeeta)

L/E 1. Bruise present 2x2 cm (approx.) side upper chest

light pink colour

2. Bruise present 3x3 cm (approx.) side neck light pink

colour

Pt ref to Gyne opinion ”

Subsequent upon the medical examination of the

prosecutrix, the exhibits provided by the doctor were seized

vide seizure memo Ex.4B on 28.04.2012.

CRL.A.258/2014 Page 6 of 30

e) The minor girl was thereafter referred to Dr. Arpita

Gangwani, PW-13, the consulting Gynecologist for an opinion

on the very same day on 28.04.2012, who rendered it

subsequently which is extracted in-extenso, as follows:-

“Findings

1.BPU (f) (f)

2.Hymen torn

3.Posterior vaginal wall tear of 4 cm. bleeding

from edges (+)

4.Posterior fourchette tear/ midline perineal tear/

limb above the sphincter(+)

5.Anal sphincter intact

Samples:

1.Vaginal swabs

2.Panty (undergarment) + pants

3.Blood sample in plain vial

Final opinion: Grievous Injury ”

f) PW-15, ASI Asha Rani visited the spot, where the

incident had occurred and prepared a rough site plan (Ex.PW-

15/A). PW-15 also took the broken lock into possession and

recorded the statements of witnesses under Section 161 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as

‘Cr.PC’). On the basis of the suspicion raised by the

complainant Mr. Kripal Singh Yadav, PW-4, the name of the

perpetrator emerged as Mr. Anil Kumar s/o Mr. Bishamber, r/o

CRL.A.258/2014 Page 7 of 30

Bijnour, U.P., the appellant herein, who is stated to have been

residing in the neighborhood of the complainant. Subsequent

thereto, the tenanted room of the appellant, where the offence

was alleged to have been committed, was inspected and the

statement of his landlord recorded, in accordance with law. The

Investigating Officer thereafter obtained non-bailable warrants

against the accused, Anil Kumar and a police team was

dispatched to Bijnour to apprehend him. Subsequent upon his

apprehension from Bijnour, the appellant was brought back to

Delhi, where he was interrogated and arrested vide arrest memo

(Ex.12/A) on 18.05.2012 by Inspector Mahender Singh, PW-18.

3. It was the case of the prosecution that the appellant made a

disclosure statement (Ex.12/C), admitting his involvement in the

offence, and pointing out the spot where the incident had occurred,

and leading the police to the spot from where the iron rod (Ex.Pw-

7/C), with which he had broken open the lock of the door of the

complainant’s accommodation, was recovered. The disclosure

statement also led to the recovery of the clothes, with which the

appellant had wiped out his body and that of the prosecutrix, after the

CRL.A.258/2014 Page 8 of 30

commission of the crime, which was duly seized by the Investigating

Officer. The appellant was thereafter got medically examined and the

exhibits given by the doctor, in relation to him, were seized. All the

exhibits of the case were sent to the Forensic Science Laboratory (for

short ‘FSL’) for forensic examination; and the case file subsequent

upon the investigation, was handed over to WSI Kusum Lata, PW-17,

who prepared the charge-sheet and submitted the same to the

concerned Magistrate.

4. The learned trial court framed charges under Sections 363/376

(2) (f)/457 IPC, against the appellant, to which the appellant pleaded

not guilty and claimed trial.

5. In order to establish its case against the appellant beyond doubt,

the prosecution examined 19 witnesses. The statement of the accused

under Section 313 of the Cr.PC, was thereafter recorded, in which he

denied in-toto the charges against him and stated that, he had been

falsely implicated. The appellant further stated that, he had been

implicated in this case at the behest of his brother, namely, Sunil,

with whom he had a property dispute at Bijnour and who was also a

resident of Delhi. However, the appellant did not examine any witness

in his defence. The trial court, vide its judgment dated 16

th

December,

CRL.A.258/2014 Page 9 of 30

2013, came to the conclusion that the prosecution had been successful

in establishing the charges against the appellant, beyond any doubt,

and convicted him acoordingly.

6. The trial court, vide the order on sentence dated 20

th

December,

2013, sentenced the appellant as follows:-

“9. In view of the aforesaid discussion, the convict is

sentenced to as under:-

(1)To rigorous imprisonment for a period of 5 years

alongwith fine of Rs.10,000/- for the offence punishable

u/s.363 IPC. He shall suffer further imprisonment for a

period of 3 months in case of default in payment of fine.

(2)To rigorous imprisonment for a period of 20 years

alongwith fine of Rs.25,000/- for the offence punishable

u/s.376 (2) (f) IPC. He shall suffer further imprisonment

for a period of 6 months in case of default in payment of

fine.

(3)To rigorous imprisonment for a period of 3 years

alongwith fine of Rs.10,000/- for the offence punishable

u/s.457 IPC. He shall suffer further imprisonment for a

period of 3 months in case of default in payment of fine.”

7. Mr. S.B. Dandapani, learned counsel appearing on behalf of the

appellant, assailed the findings arrived at by the trial court, by inviting

our attention to the improvements in the testimony of the prosecutrix

and the inherent contradictions between her testimony and that of her

parents, PW-3 and PW-4. Further, it would be urged that the

biological and DNA Test did not incriminate the appellant for the

CRL.A.258/2014 Page 10 of 30

commission of the sexual assault. Lastly, it was urged that, there was

no evidence that the appellant broke open the lock of the

complainant’s accommodation with an iron rod and the prosecution

had failed to examine any witness, in this behalf.

8. Insofar as, the submission made on behalf of the appellant to the

inherent contradictions that exist in the testimony of the prosecutrix

‘S’ and the divergent deposition made by her parents is concerned, it

would be necessary and appropriate in this behalf to extract the

testimony of the minor victim, in full.

“Without oath

I do not know the date and the month of the incident. On

that day, my parents had gone to market in the evening.

Anil uncle came to our room and told me that my

parents are calling me upstairs. Anil uncle used to

reside adjacent to coupon shop near our house. I did

not say anything to him. He took me in his lap and took

me to his home. He then laid me on a bed and put his

male organ into my female organ. He had taken off my

pant before doing so. He did not say anything to me and

then left me in a dilapidated house. When he did so to

me, I felt pain and also started bleeding. I cried in pain.

After doing the act, he put on the pant to me.

From the aforesaid dilapidated house, I went myself to

my house. My parents returned home after I had

reached there. Thereafter I narrated the incident to my

mother. My parents took me to a doctor. The doctor did

not do anything to me and we returned home. Police

officials reached our house during the night. Police

officials made inquiries from me but I did not tell them

anything. I did not show them the house of Anil uncle

CRL.A.258/2014 Page 11 of 30

where he had taken me. Police officials took me to the

hospital during the night.

I identify Anil uncle. He is present in court today.

(Witness has correctly identified accused Anil, present in

court today).

Xxxxxx by Sh. L.S. Gautam, counsel for accused from

Legal Aid.

Nobody had tutored me what to depose in the court

today. My parents have brought me to the court today.

Misal and Sajan are my two brothers. Kanchan and

Kiran are the names of my two sisters. I do not know

who is the eldest amongst us. My parents stay together

in the same house.

On the date of incident and at the time of incident, my

parents had gone to the market. I cannot tell the time

when Anil uncle took me. However, it was dark at that

time, There are houses on both sides of the house, in

which we resided and people resided in those houses. J

had seen Anil uncle before the date of incident also as he

used to came to our house to give keys. I had seen him

two or three times. 1 do not know the details of those

keys.

On the date of incident when my parents had gone to

market, 1 along with my brother Misal was present

inside the room. We had not bolted the room from inside.

It was locked from outside by my parents. Nobody saw

Anil uncle taking me in his lap.

I had not worn underwear on that day. It is wrong to

suggest that I had worn underwear on that day. The

doctor to whom my parents had taken me, did not ask me

how 1 had suffered injuries and why I was bleeding. Anil

uncle had taken me to the roof of his house where he was

residing. Many persons were residing in that house. I do

not know their names. They did not see Anil uncle and

myself. There was darkness on the roof where incident

took place. I do not know what type of clothes were worn

by the accused Anil at that time. I did not notice any

articles lying in that room on the roof. If is wrong to

CRL.A.258/2014 Page 12 of 30

suggest that a person residing in adjacent room to our

room had beaten me and I had told this fact to my

mother. Vol. Anil uncle had beaten me. It is further

wrong to suggest that photographs of Anil uncle have

been shown to me and 1 was asked to identify him as a

culprit. I did not see the accused after the date of

incident till today. However, his photograph had been

shown to me but I do not know by whom and when. It is

wrong to suggest that accused was identified to me by

my mother outside the court.

It is wrong to suggest that accused has been falsely

implicated in this case at the instance of my parents.

Reply to Court question;- I do not remember whether I

was produced before any Magistrate or Judge by the

police officials at any point of time.

At this stage, the statement u/s 164 Cr.P.C. Of the

witness Ex. PWll/A is Shown to her. She Identifies her

signatures at points Yl, Y2, Y3, Y4 and Y5 on the same.

She, however, does not remember, when she put these

signatures on the statement.”

9. In this behalf, it is observed that the case of the appellant is

founded on the assertion that, there were many contradictions in the

testimonies of the material witnesses on important aspects of the

evidence such as the finding of his photo; the handkerchief alleged to

have been tied around the eyes of the victim; the response of the

accused and the factum of wearing of the underwear by her, at the

time of the commission of the offence by the victim.

10. Mr. S.B. Dandapani, learned counsel appearing on behalf of the

appellant, who invited our attention to the deposition of the

CRL.A.258/2014 Page 13 of 30

prosecutrix ‘S’, urged that although, she has stated that she was not

wearing underwear on that fateful night, the parents have testified to

the contrary. It was further asseverated on behalf of the appellant that,

whereas, on the one hand, PW-3 Ms. Rangeeta, the mother of the

prosecutrix ‘S’ states that, she had never seen the appellant in the

neighbourhood, on the other the minor victim testified that the latter

had taken her to his house earlier also. In this behalf, it is urged that

the present is a case of mistaken identity.

11. Mr. S.B. Dandapani, learned counsel appearing on behalf of the

appellant, on instructions from the latter, who is present in the Court,

would also assail the correctness of the sentence of 20 years rigorous

imprisonment imposed upon him by stating that the same was harsh,

excessiveand not commensuratewith the offence for which, he has

been convicted.

12. On the contrary, Mr. Ashish Dutta, learned APP appearing on

behalf of the State, would invite our attention to the clear and

unrebutted testimony of the prosecutrix ‘S’, read in conjunction with

the corroborating testimony of her parents, as well as, the MLC

Ex.13/A and the FSL report Ex.PA, to urge that, there was no warrant

or reason in the present case to interfere with the finding of guilt

CRL.A.258/2014 Page 14 of 30

arrived at, by the trial court.

13. We have heard learned counsel appearing on behalf of the

parties and given our careful consideration to the evidence on record.

At the outset, there is no gainsaying the settled position of law that, in

cases of sexual assault, the sole deposition of the prosecutrix, if credit-

worthy and reliable, is legally sufficient by itself sustain a verdict of

guilty.

14. The Supreme Court of India in“State of Rajasthan vs. Om

Prakash”,reported as(2002) 5 SCC 745, while upholding the

conviction of the appellant therein, held as follows:

“16.The Hon’ble Supreme Court, in State of Rajasthan

v. Om Prakash, reported as (2002) 5 SCC 745, dealing

with a similar question in the case of a child rape, while

upholding the conviction of the appellant therein and

reversing the decision of the High Court in that behalf,

relied upon earlier decisions and made the following

observations:

“13. The conviction for offence under Section

376 IPC can be based on the sole testimony of a

rape victim is a well-settled proposition. InState

of Punjab v. Gurmit Singh[(1996) 2 SCC384],

referring toState of Maharashtra v. Chandra

Prakash Kewalchand Jain[(1990) 1 SCC 550]

this Court held that it must not be overlooked that

a woman or a girl subjected to sexual assault is

not an accomplice to the crime but is a victim of

another person's lust and it is improper and

undesirable to test her evidence with a certain

amount of suspicion, treating her as if she were

an accomplice. It has also been observed in the

CRL.A.258/2014 Page 15 of 30

said decision by Dr Justice A.S. Anand (as His

Lordship then was), speaking for the Court that

the inherent bashfulness of the females and the

tendency to conceal outrage of sexual aggression

are factors which the courts should not overlook.

The testimony of the victim in such cases is vital

and unless there are compelling reasons which

necessitate looking for corroboration of her

statement, the courts should find no difficulty to

act on the testimony of a victim of sexual assault

alone to convict an accused where her testimony

inspires confidence and is found to be reliable.

Seeking corroboration of her statement before

relying upon the same, as a rule, in such cases

amounts to adding insult to injury.

14. In State ofH.P. v. Gian Chand[(2001) 6

SCC] Justice Lahoti speaking for the Bench

observed that the court has first to assess the

trustworthy intention of the evidence adduced and

available on record. If the court finds the

evidence adduced worthy of being relied on, then

the testimony has to be accepted and acted on

though there may be other witnesses available

who could have been examined but were not

examined.”

15. From a perusal of the evidence on record and its appreciation in

accordance with the rudimentary principles of jurisprudence, we are of

the considered view that in the instant case, the following facts have

been established beyond the pale of doubt.

(a) that the prosecutrix ‘S’ was subjected to vaginal

intercourse on the night intervening between 27

th

April, 2012

and 28

th

April, 2012. The plain reading of the testimony of the

prosecutrix ‘S’, considered in conjunction with the observations

CRL.A.258/2014 Page 16 of 30

of PW-13 on the MLC of the prosecutrix establish beyond

doubt, that the prosecutrix ‘S’, had been sexually assaulted soon

before she had been examined by PW-13.

b) Further from the uncontroverted testimony of PW-9, Ms.

Sushma Gupta, the Principal of the School, where the minor girl

victim was a student, it is found that the prosecutrix was just

seven years old, when she was brutally ravished.

16.It is the settled position of law that minor contradictions or

insignificant discrepancies should not be a ground for throwing out an

otherwise reliable case of the prosecution. InState of U.P. Vs. Naresh

reported as(2011) 4 SCC 324, wherein the Apex Court has observed

that :

“In all criminal cases, normal discrepancies are bound

to occur in the depositions of witnesses due to normal

errors of observation, namely, errors of memory due to

lapse of time or due to mental disposition such as shock

and horror at the time of occurrence. Where the

omissions amount to a contradiction, creating a serious

doubt about the truthfulness of the witness and other

witnesses also make material improvement while

deposing in the court, such evidence cannot be safe to

rely upon. However, minor contradictions,

inconsistencies, embellishments or improvements on

trivial matters which do not affect the core of the

prosecution case, should not be made a ground on which

the evidence can be rejected in its entirety. The court has

to form its opinion about the credibility of the witness

and record a finding as to whether his deposition

CRL.A.258/2014 Page 17 of 30

inspires confidence.

Exaggerations per se do not render the evidence brittle.

But it can be one of the factors to test credibility of the

prosecution version, when the entire evidence is put in a

crucible for being tested on the touchstone of credibility.

Therefore, mere marginal variations in the statements of

a witness cannot be dubbed as improvements as the

same may be elaborations of the statement made by the

witness earlier. The omissions which amount to

contradictions in material particulars i.e. go to the root

of the case/materially affect the trial or core of the

prosecution’s case, render the testimony of the witness

liable to be discredited.”

17. The solitary question therefore that requires determination by

this Court, is whether the appellant was guilty of having committed

the sexual offence on the person of the minor victim. In this behalf, it

would be necessary and profitable to extract and appreciate the

relevant portion of the findings arrived at by the learned trial court,

which are reproduced as follows:-

“18. The prosecutrix had first of all brought the

incident to the notice of her parents i.e. PW3 and PW4.

According to her mother, PW3, the prosecutrix told her

that it was the uncle residing in the adjacent house who

did it. PW4 has stated that prosecutrix told him and his

wife that the uncle who had come a few days before for

taking the keys, did it. In the FIR also, PW4 has stated

that his daughter told him that the uncle who had earlier

also visited their house had come, taken her out and

sexually assaulted her. PW4 has further deposed in his

testimony that since accused Anil Kumar had come to

his house a few days before the incident to receive the

keys of a Gramin Sewa Vehicle, he suspected him of

CRL.A.258/2014 Page 18 of 30

having sexually assaulted his daughter. He knew his

name as both used to ply Gramin Sewa Vehicle on the

same route. He has also deposed that his daughter had

told him that the uncle had taken her to the adjoining

house. No suggestion has been given to PW4 in this

regard in his cross examination implying thereby that

the accused admits that he and PW4 were plying Gramin

Sewa Vehicle on the same route and both were known to

each other,

19.Now it is the case of the prosecution that PW4

had taken police officials to the room of the accused in

the house No.RZF-753, Gall No.1, Raj Nagar Part-II,

New Delhi where from a photograph of the accused was

recovered, which was shown to the prosecutrix in the

hospital and she identified the person in the photograph

to be her assailant.

20.To understand how the investigation progressed

after the call of rape was received in the Police Station

and how the police zeroed in upon the accused to be the

assailant, it would be relevant to reproduce the

following portions of testimony of the I0, W ASI Asha

Rani, who has been examined as PW-15:-

"On 27,4.2012 I was posted as SI in P.5.

Palam Village, New Delhi. On that day at

about 11:58 p.m. when I was present at my

home, I received a call .from the Duty Officer

on my mobile phone asking me to reach House

No.RZF-754, Gail No.l, Raj Nagar Part-II,

Palam Colony, New Delhi, where an incident

of rape has taken place with a minor girl. He

also told me that ASI Ram Karan, the SHO and

other staff have already reached there.

Accordingly I reached the aforesaid spot and

found ASI Ram Karan and SHO Inspector

Satbir Singh present there alongwith a male

person, a female person and a minor girl. A

broken lock was also lying on the ground. I

made inquiries from the aforesaid husband

wife, who were the parents of the minor girl,

who had been raped. I left ASI Ram Karan at

CRL.A.258/2014 Page 19 of 30

the spot and myself took the minor girl and her

parents to DDU Hospital in a government

vehicle. The minor girl namely Sabnam was

admitted in the hospital on account of serious

injury on her private part. I received a call

from police station that Ms. Mcdel Marine

from NGO has arrived there. Accordingly I

went to the police station and got her also to

hospital. I recorded the statement of father of

the victim girl and then came to the police

station leaving Ms. Marine at the hospital. On

reaching the police station, I prepared rukka

and got the FIR registered. After registration

of the FIR. I again reached the spot of incident

where I met ASI Ram Karan. He handed over

to me a silver colour lock which I seized vide

seizure memo already Ex.PW10/A bearing my

signature at point B. I prepared the site plan of

the spot of incident at the instance of ASI Ram

Karan and also recorded his statement. The

site plan is Ex.PWI5/A bearing my signature at

point A. Meanwhile Const. Jagbir reached the

spot alongwith original rukka and copy of FIR

and handed over the same to me. Thereafter

the complainant i.e. father of the victim girl

came to the spot who told me that the person

who has been coming to their house for taking

keys resides in a room on the top floor of

House l\lo.RZF-753 i.e. adjacent to their

house. He took me to that room where I found

that the goods lying there were scattered. A

photograph was lying amongst the clothes near

the bed. The complainant identified the

photograph to be that of Anil who drives his

vehicle (Chhota Hathi). I took into possession

the photograph vide seizure memo already

Ex.PW4/C bearing my signature at point B.

The photograph is Ex.PW15/B. I came

downstairs and searched for the landlord but

he could not be found. I showed the

photograph to the neighbours, who told me

that this boy is residing in the room of the said

CRL.A.258/2014 Page 20 of 30

house on its roof. They drew my attention lo a

mobile number written in white colour on the

wall of the house and told me that it is the

mobile number of the landlord of the house. I

dialed that number and the phone was picked

up by one Sh. Mahander. He told me that he is

in Rajasthan and would reach Delhi in one or

two days.

On 29.4.2012 I again reached House

No.RZF-7538, Gali No.l, Raj Nagar-2. Palam,

where I met a person, who disclosed his name

to be Mahender and slated that Anil is his

tenant and is native resident of Bijnor, U.P. I

recorded his statement. I also locked the room

on the roof of the house where incident had

taken place.

On 02.5.2012 I obtained the birth certificate

of the victim girl from the school in which he

was studying."

21. In this regard following portion of cross

examination of PW-15 is very relevant and needs to be

reproduced:-

"I cannot tell the number of tenants residing

in house NO. RZF-754 at that time. I cannot

tell the total number of rooms in that house.

There were about four or five rooms on the

ground floor. There is a main gate in the house

which was open when I reached there. I could

not get any documentary proof regarding the

residence of accused in that house as a tenant.

I had made inquiries from Sh. Mahender, the

owner of the house but I did not seize his

ownership documents. I do not know since

when the accused had been a tenant in that

house and what was the monthly rent.

The photograph of the accused was

recovered from the room on 28.4.2012 and the

same was shown by me to the victim child on

4.5.2012 when she had regained full

CRL.A.258/2014 Page 21 of 30

consciousness. I do not know when she had

been discharged from the hospital. I met her at

her home on 4.5.2012. The TIP of the accused

was not conducted. There was no room

adjacent to the room of the victim in that

house. There was a kitchen adjacent to that

room and there was another room on the other

side of the kitchen. No body was present in that

another room when I had reached there. No

inhabitant of that house was prepared to give

any statement."

22. The ld. Counsel for the accused has failed to

point out anything in cross examination of PW-15 which

may show that the photograph of the accused was not

recovered by her from the room of the accused in house

No.RZ-753 and that the prosecutrix had not identified

him from the photograph when it was shown to her after

her discharge from the hospital on 4.5.2012. Her

testimony in this regard is corroborated by the

deposition of PW4 who also has not stated anything

contrary to the same in his cross examination. It was

argued by ld. Counsel for the accused that since no TIP

has been conducted, it cannot be believed that the

accused has been identified by the prosecutrix. The

argument has no force. When the prosecutrix has

identified the accused from the photograph shown to her

by the IO, there was no occasion for conducting TIP as

the accused would have in all probability refused to take

part in TIP on the ground that his photograph has

already been shown to the prosecutrix. The alibi taken

by the accused that his photograph was given by his

brother Sunil to the police officials in order to get him

implicated in this case, seems to be an afterthought only

as the same has not been put to any of the prosecution

witnesses including PWA and PW15. It has nowhere

been suggested to these witnesses that the photograph of

the accused was infact handed over to police by

accused’s brother Sunil.

23. It was also sought to be disputed on behalf of the

accused that the prosecution has not established that he

was residing as a tenant in a room in house No. RZ-753

CRL.A.258/2014 Page 22 of 30

in which, the prosecutrix is alleged to have been

ravished. In this regard, my attention has been drawn by

the ld. APP to the testimony of PW-7, who is the owner

of the said house and deposed that he had given a room

on the first floor of the house on rent to accused Anil

Kumar about ten months ago and his belongings were

still in the room. There is nothing in the cross

examination of PW-7 to suggest that he is a planted

witness. 1 find his deposition trustworthy. 1 do not see

any reason on record to disbelieve his testimony.

24. Now I may refer to the deposition of prosecutrix

who has been examined as PW-14. She did not know her

age or the address. Several preliminary questions were

put to her before recording her testimony and it was

after getting the satisfaction that she understands the

questions put to her and is able to give rational answers,

she was examined. However, her testimony was

recorded without oath as she did not know the meaning

and sanctity of oath. She did not know the month and

date of the incident. She deposed that on that date her

parents had gone to market in the evening. Anil uncle

came to their room and told her that her parents are

calling her upstairs. Anil uncle used to reside adjacent

to coupon shop near her house. She did not say anything

to him. He took her in his lap to his home, laid her on a

bed and put his male organ into her female organ. He

had taken off her pant before doing so. Thereafter she

did not say anything and left her in a dilapidated house.

She fell intense pain and also started bleeding when he

did so to her. She cried in pain and after doing the act,

accused put on the pant to her. From the dilapidated

house she went herself to her house. Her parents

returned home after she returned home and she narrated

the incident to her mother. Her mother took her to a

doctor who did not do anything to her and they returned

to their room. Police officials reached their house

during the night. They made enquiries from her but she

did not tell them anything. She did not show them the

house of Anil uncle where he had taken her. Police

officials took her to the hospital during the night. She

identified the accused Anil in Court. In the cross

examination, she deposed that nobody had tutored her

CRL.A.258/2014 Page 23 of 30

about what to depose in the court. She also deposed that

her parents stayed together in the same house and at the

time of incident, they had gone to the market. She could

not tell the time when Anil uncle took her but stated that

it was dark at that time. She had seen uncle before the

date of incident also as he used to come her house to

give keys. She had seen him on two or three occasions.

She also deposed that on the date of incident, when her

parents had gone to the market, she alongwith her

brother Misal was present in the room. They had not

bolted the door from inside. It was locked by her parents

from outside. Nobody had seen Anil uncle taking in his

lap. She also deposed that she had not worn underwear

on that day and there was darkness on the roof where

incident had taken place. She did not know what type of

clothes were Anil had worn at that time and did not

notice any article lying in that room. She denied the

suggestion that a person residing in the room adjoining

to their room had beaten her and stated voluntarily that

Anil uncle had beaten her. She also deposed that she did

not see accused Anil after the date of incident till the

date when her testimony was recorded but added that his

photograph had been shown to her but did not know by

whom and when. She did not remember when she was

produced before a Magistrate or a judge by the police

officials at any point of time. Her statement recorded u/s

164Cr.P.C. was shown to her and she identified her

signatures at points Yl, Y2, Y3, Y4 and Y5. She did not

remember when she put these signatures on the

statement.

25.From the aforesaid testimony of the prosecutrix it

is evident that she is a reliable and truthful witness. Her

deposition seems to be genuine, untutored and having a

ring of truth in it. Even being of very tender age, she has

narrated the incident very clearly and has withstood the

cross examination as well. Nothing contrary has been

elicited in her cross examination, which contains some

tricky questions also. Her testimony is corroborated by

her statement u/s 164 Cr.P.C. (Ex. PW11/A) and also

finds support from the testimony of her parents PW3 and

PW4, to whom she had described the incident first of all.

It is quite manifest from her testimony that she had no

CRL.A.258/2014 Page 24 of 30

doubts about the identity of the person who ravished her.

She has specifically slated that she had seen the

assailant i.e. the accused before the date of incident also

as he had come to their house to give keys. She identified

him from the photograph shown to her by IO on

04.05.2012. Her testimony does not suffer from any

embellishments or prevarications.

26. Apart from the testimony of PW3, PW4 and

PW12, I find further evidence on record pointing

towards the guilt of the accused. It is evident from the

testimony of PW-12 that he alongwith ASl Omkar Singh

and HC Satyavan had gone to Bijnore on 17.5.2012 in

search of the accused and they apprehended the accused

in the Police Station Bijnore and brought him to Delhi.

The accused was produced before PW-15 who, on the

directions of the SHO, handed over the case file as well

as the accused to PW-18. The accused was interrogated

and arrested by PW-18 on 18.5.2012 vide arrest memo

Ex.PW12/A. His disclosure statement Ex. PW12/C was

also recorded by PW-18. These two witnesses have

further deposed that accused led them to the spot of

occurrence i.e. a room on the first floor of house No.

RZF-753/B, Raj Nagar, Part-II and pointed out the same

vide memo Ex. PW7/C. They have further deposed that

the accused got recovered a red, blue and white colour

check shirt from the said room saying that he had worn

the same at the time of committing the crime. The

accused also led them to the roof of the house where

from he got recovered another shirt of black and white

colour saying that he had wiped off himself and the

victim by it after committing the crime and had thrown it

on the roof after washing it. From the roof itself the

accused had again got recovered an iron rod saying that

he had broken open the lock of the room by it in which

the victim was present.. The shirts as well as the iron rod

were sealed by PW18 in separate pullindas and were

seized by him vide seizure memo Ex. PW7/B and PW7/C

respectively.

27. There is no cross examination of PW-15 in this

regard. Just one question has been put to PW-13 in this

regard to which he has replied that he 'id not prepare

CRL.A.258/2014 Page 25 of 30

site plan of the spot from wherefrorn the shirts and iron

rod were got recovered by the accused.

28.Therefore, it is established on record that after

the arrest of accused in this case by PW-18, he made

disclosure statement Ex. PW12/C. In this statement,

accused has stated that after sexually assaulting the

prosecutrix, he wiped off himself as well as the niwar of

the cot by an old torn shirt and thereafter he washed the

shirt and threw it alongwith the iron rod upon the roof of

the house. He has also stated that he can show the spot

of incident to the Police officials and also can get

recovered his shirt as well as the iron rod.

29.It is pursuant to the disclosure statement of the

accused that he led the police officials to the room on

the first floor of the house No.RZF-753B and pointed out

the said room to be the spot of incident and also got

recovered his shirt as well as iron rod. It is worthwhile

to note here that those recoveries were effected by the

accused in presence of an independent witness i.e. PW-

7, the owner of the said house and, therefore, their does

not appear any reason to doubt the same. Also I do not

find anything in the cross examination of PW-7 to

suggest that he is a planted witness and the recoveries

were not effected in his presence. Therefore, the

prosecution has firmly established that the accused

pointed out the spot of incident i.e. the room on the first

floor of the house No, RZF-753B and also got recovered

the iron rod with which he had broken upon the lock of

the room of the prosecutrix and also the shirt with which

he had wiped off his body, the body of the prosecutrix

and the niwar of the cot after committing the crime.

Therefore, the relevant portion of his disclosure

statement becomes admissible in evidence as it distinctly

relates to the knowledge of the accused regarding the

place of incident, recovery of iron rod with which the

lock of victim’s room was broken open and recovery of

blood stained shirt of the accused with which he had

wiped off his body and that of prosecutrix.

30. PW-7 has stated that on 29.4,2012, two police

officials had come to his house alongwith the

CRL.A.258/2014 Page 26 of 30

prosecutrix, who showed the room of the accused to

those police officials saying that she had been raped in

that room. She had also shown the cot made of white

niwar in the room upon which she was raped. He

further deposed that the blood stained portion of the

niwar was cut and seized vide seizure memo Ex. PW7/A.

31. PW-I5 states that the prosecutrix took her to the

house of PW-7 on 4.5.2012 and in the presence of PW-7

pointed out the room of the accused in which she had

been ravished. Witness further deposed that she

collected the pieces of the niwar of the bed lying in the

room and seized the same vide seizure memo Ex. PW7/A.

Though these two witnesses have given two different

dates on which the prosecutrix led the police officials to

the room of the accused and the pieces of niwar were

seized by the police, yet I find that the date mentioned by

PW-15 is the correct date. Due to lapse of time PW-7

may not have recollect the correct date when these

proceedings took place and hence nothing averse to

prosecution case can be held in view of his such

testimony. Their remains no manner of doubt that PW-

15had seized a piece of white niwar from the aforesaid

room in the house of PW-7, which he had let out to the

accused. The aforesaid piece of niwar in sealed

condition was sent to the FSL alongwith the underwear,

vaginal swab and blood sample, of the prosecutrix. As

per the undisputed DNA report Ex. P-A, female profiles

were generated from all the four samples and all the

profiles were found to be similar in nature. Therefore, it

is established that the blood found on the niwar on the

cot in the tenanted room of the accused was that of the

prosecutrix. This further strengthened the charges

against the accused that he had brought the prosecutrix

to his room and sexually assaulted her, consequent

upon which prosecutrix started bleeding from her

private part and the blood had fell upon the niwar of the

cot. There is no challenge from the side of the accused

to the said DNA report. The accused has also failed to

explain how the blood of the prosecutrix was found upon

the cot placed in his tenanted room.

CRL.A.258/2014 Page 27 of 30

32. It was submitted by the Id. Counsel for the

accused that the fact that no male DNA profile was

generated from the underwear of the prosecutrix and her

vaginal swab, it makes the case of the prosecutrix

doubtful that she had been sexually assaulted. The

argument is too fallacious to be accepted. Firstly for the

reason that the prosecutrix had deposed in her cross

examination that she was not wearing any underwear at

the time of incident. Therefore, there was no question of

any male DNA profile to be found on the same.

Secondly, it is manifest from the record that after the

prosecutrix was subjected to sexual act by the accused,

she started bleeding profusely from her private part

which may have washed away all the spermatozoa and

for this reason, no male DNA profile could be isolated

from her vaginal swab. Further, as noticed herein

above, the fact that the prosecutrix was subjected to

sexual assault, cannot be disputed in view of the findings

of PW-13 upon the MLC.

33. The accused has failed to give any reason which lead

him to flee to Bijnour after the rape incident came to

light. He has himself admitted in his statement u/s 313

Cr.P.C. that he was apprehended from Bijnour. This

points towards the guilty conscience of the accused.

Further the accused has given false answers in his

statement u/s 313 Cr.P.C. by clarifying that he was

residing as a tenant in a room of House No. RZF-753B,

Raj Nagar Part-Il, which fact is clearly proved by the

owner of the house i.e. PW7 himself. The accused has

himself also got recovered the blood stained shirt and

iron rod from the roof of the house, which would not

have been possible, had he not been residing there as a

tenant, The false answers given by the accused in this

regard in his statement u/s 313 Cr.P.C. also points

towards his complicity in the crime.

34.The accused claims false implication in this case

at the instance of his brother Sunil. He has not lead any

evidence to show that he had any property dispute with

Sunil or that Sunil hated him to such an extent that he

would implicate him (accused) in a false rape case. The

alibi put forward by the accused is too far fetched. The

CRL.A.258/2014 Page 28 of 30

name of the accused to be the assailant has surfaced

during the same night in which incident had taken place

and his room had been visited by PW15 only after few

hours of the incident and recovered his photograph

therefrom. It is not understandable how the accused's

brother Sunil would have come to know about the

incident soon after its taking place and named accused

as the assailant and gave accused's photograph to the

Police. Accused has not lead any evidence nor did he

suggest to any prosecution witness that his brother Sunil

lived in the vicinity of the place which offence took place

or that he was known to PW3 (the father of prosecutrix)

or that he was present at the spot during the night after

the incident took place. Hence, I find that the alibi put

forward by the accused is absolutely false and concocted

having no legs to stand upon.”

18. An objective consideration of the above extracted findings in

the backdrop of the evidence on record, leaves no manner of doubt

that the prosecution has been able to establish the charges against the

appellant in full. The appellant failed to lead any evidence in support

of his assertion that, he had been falsely implicated on behalf of his

brother, namely, Mr. Sunil, owing to a property dispute, nor has any

suggestion been made by him to any of the material witnesses,qua

that being the motive for them to falsely implicate him, in the admitted

rape on the minor child.

19. In view of the foregoing and having regard to the facts and

circumstances of the case and the principles laid down by the Hon’ble

CRL.A.258/2014 Page 29 of 30

Supreme Court, in the judgment extracted hereinabove, we find no

compelling or substantial reasons to differ with the cogent findings

arrived at, by the learned trial court, based upon just appreciation of

the material evidence available on record in this case. The trial court

has correctly arrived at the conclusion of the guilt of the appellant,

after carefully considering and analysing the evidence on record

including the testimony of the prosecutrix. The appeal is resultantly

devoid of merit and is accordingly dismissed.

20. Before we part with the judgment, it would incumbent on our

part to deal with the alternative submission made on behalf of the

appellant by Mr. S.B. Dandapani, Advocate,quathe length of the

sentence imposed upon him.

21. It is trite to state that it is necessary for the Court to have a

sensitive approach when dealing with cases of child rape. The effect of

such a crime on the mind of the child is likely to be lifelong. A special

safeguard has been provided for children in Article 39 of the

Constitution of India which,inter alia,stipulates that the State shall,

in particular, direct its policy towards securing that, the tender age of

the children is not abused and also that children are an given

environment, opportunities and facilities to develop in a healthy

CRL.A.258/2014 Page 30 of 30

manner and in conditions of freedom and dignity; and that childhood

and youth are protected against exploitation and against moral and

material abandonment.

22. Further, let it not be forgotten that, this is a case of rape on a girl

child, only seven years old, at the time of the commission of the

offence, by a neighbour, who was on visiting terms with the family of

the victim. Nothing can be more heinous than a crime committed on

the person of a child by one, who has social, moral and human

obligation and is duty- bound by morality to provide her unflinching

protection from all harm. In our view, consequently, the sentence

awarded to the appellant by the trial court also does not warrant any

modification. Therefore, the judgment dated 16

th

December, 2013 and

the order on sentence dated 20

th

December, 2013, are both hereby

upheld and the appeal is dismissed.

SIDDHARTH MRIDUL

(JUDGE)

I.S. MEHTA

(JUDGE)

NOVEMBER 20, 2019

RS