Raj Kumar Gupta vs The State (Nct Of Delhi) on 26 July, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON : 1st JUNE, 2017
DECIDED ON : 26th JULY, 2017

+ CRL.A. 403/2016
RAJ KUMAR GUPTA ….. Appellant
Through : Mr.Azhar Qayum, Advocate.

VERSUS
THE STATE (NCT OF DELHI) ….. Respondent
Through : Ms.Meenakshi Dahiya, APP.

CORAM:
HON’BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Challenge in this appeal is a judgment dated 18.02.20016
of learned Addl. Sessions Judge in Sessions Case No.101/2014
emanating from FIR No.274/2014 PS Delhi Cantt. by which the
appellant – Raj Kumar Gupta was held guilty for committing offence
punishable under Section 376 IPC. By an order dated 03.03.2016, he
was sentenced to undergo RI for ten years with fine `25,000/-.

2. Briefly stated, the prosecution case as set up in the
charge-sheet was that around 3 -4 years prior to 10.05.2014 during
night time at Servant Quarter, Block No.1, Cariappa Vihar, New
Delhi, the appellant committed penetrative sexual assault with the
prosecutrix ‘X’ (changed name), his step daughter, aged around 13

Crl.A.403/2016 Page 1 of 9
years. It was further alleged that thereafter on 10.05.2014 at Block
No.58/6, Baird Place, Delhi Cantt., the appellant again committed
penetrative sexual assault upon the prosecutrix in the house during
night time; he touched her body with sexual intent and made sexually
coloured remarks towards her. The police machinery was put in
motion when PW-7 Madhu Rawat made a telephone call at 1098; the
prosecutrix had divulged the incident to her. The prosecutrix and
other siblings were taken to ‘Nirmal Chhaya’ as per the orders got
from CWC. Police officials went to ‘Nirmal Chhaya’ where the
statement of the prosecutrix ‘X’ (Ex.PW-1/A) was recorded forming
basis of the registration of the FIR.

3. During investigation, ‘X’ was medically examined; she
recorded her statement under
Section 164 Cr.P.C. The appellant was
arrested. Statements of the witnesses conversant with the facts were
recorded. Upon completion of investigation, a charge-sheet was filed
against the appellant for commission of offence punishable under
Sections 376/506 IPC and Sections 4 6 POCSO Act. In order to
establish its case the prosecution examined eleven witnesses. In 313
Cr.P.C. statement, the appellant denied his complicity in the crime and
pleaded false implication. The trial resulted in conviction as
mentioned previously under
Section 376 IPC. It is relevant to note
that the appellant was acquitted of the charges under Section 354A
and 10 POCSO Act. State did not challenge the appellant’s acquittal
under those offences.

4. I have heard the learned counsel for the parties and have
examined the record. Admitted position is that the appellant is the

Crl.A.403/2016 Page 2 of 9
step-father of the prosecutrix aged around 13 years. PW-5
(R.P.Singh), Principal, Rajputana Rifles, HM, Senior Secondary
School, Delhi Cantt., proved the relevant record where date of birth of
the prosecutrix was recorded as 01.01.2002 at the time of her
admission in 1st standard on 27.06.2008 vide admission No.227. The
relevant documents (Ex.PW-5/A to Ex.PW-5/C) have remained
undisputed; the appellant did not dispute their authenticity and
correctness.

5. Rekha – X’s mother had remarried the appellant. She
was suffering from TB and finally expired in April, 2014. It is also
not in dispute that previously the appellant along with the prosecutrix
and other family members used to live at Cariappa Vihar, Delhi Cantt.
Subsequently, they shifted to Baird Place, Delhi Cantt. in a servant
quarter and stayed there for around a year. Rekha used to work as a
maid. PW-2 ‘Y’ (changed name) aged around 10 years is X’s real
sister.

READ  Mahendra Kumar vs State & Ors on 16 May, 2017

6. In her complaint (Ex.PW-1/A), ‘X’ implicated the
appellant (her step-father) for committing rape and outraging her
modesty. She gave graphic detail as to how and in what manner she
was sexually assaulted by the appellant in the absence of her mother
and sister (PW-2 ‘Y’). The prosecutrix reiterated her version in her
164 Cr.P.C. statement (Ex.PW-1/D) recorded on 12.05.2014 before
the learned Metropolitan Magistrate. In her Court statement, she
proved the version given before the police and the learned
Metropolitan Magistrate without any major variation. Before
recording her statement without oath, the learned Presiding Officer

Crl.A.403/2016 Page 3 of 9
had put various questions to ascertain if ‘X’ was competent to depose
and was able to give rationale answers to the questions put to her.
After satisfying that the witness was able to understand the questions
put to her in Hindi and was capable and competent to give rationale
answers, her statement was recorded without oath.

7. In her Court statement, she disclosed that her mother
Rekha had opted to live with the appellant along with her two sisters
and a brother when she was very young. Her mother used to remain
ill and get treatment at a hospital. One day when her mother was
admitted in the hospital, her sister PW-2 ‘Y’ stayed with her. At
night, the appellant came inside the room; opened her pant; and
removed her underwear. When she enquired as to what he was doing,
the appellant told her that he was not doing anything “dard nahi hoga
dard nahi hoga”. The appellant gagged her mouth and established
physical relations, as a result of which, blood oozed out from her
vagina. The appellant removed his hand from her mouth and
threatened her to kill if she informed her mother. The witness also
narrated the incident when she was molested by the appellant after
about three years from that incident. She, however, got an opportunity
to escape and went to the Police Station to lodge the report. She was
studying in 4th standard at the time of commission of rape. The
molestation incident took place when she was in class 6 th. She further
elaborated that her complaint was not lodged. She confided in her
aunt Madhu Rawat who informed the concerned authorities. She
further disclosed that she had shared the incident with her sister ‘Y’.
In the cross-examination, she disclosed that she used to go to school

Crl.A.403/2016 Page 4 of 9
on foot; her father was an auto-driver. She expressed ignorance if the
appellant had borrowed money from Madhu Rawat or if there was any
dispute between them over money. She, however, denied that the
complaint was lodged at Madhu’s behest. She volunteered to add that
what was stated was her own version. She further informed that after
her mother’s death, she along with her siblings had stayed at Madhu’s
house and there she disclosed the incident to her.

8. On perusal of the entire statement of the prosecutrix, it
reveals that material facts proved by her have remained unchallenged
and uncontroverted in the cross-examination. No infirmity has been
extracted or elicited in the cross-examination to disbelieve her version.
No ulterior motive was assigned to the child witness to make serious
allegations of sexual assault against her own father upon whom she
was economically dependent. In the absence of compelling
circumstances, the child witness was not expected to involve her own
step-father particularly when she had no shelter and had lost her
mother.

READ  Ashwini Kumar Verma vs A.K.Tandon & Ors. on 14 August, 2014

9. PW-2 ‘Y’, aged around 10 years, another child witness,
has corroborated X’s version in its entirety. She also deposed that her
sister ‘X’ had informed her about the sexual assault upon her by the
appellant. Her mother had warned them to avoid the appellant’s
company. She further disclosed that ‘X’ had divulged the incident to
Madhu. She further deposed that she was not interested to live in the
company of her father due to fear. In the cross-examination, she
disclosed that she was studying in class 3. Madhu Rawat took them to

Crl.A.403/2016 Page 5 of 9
‘Nirmal Chhaya’. Again, the material facts uttered by the innocent
child witness remained un-assailed.

10. PW-6 (Priyanka Tiwari, Welfare Officer), PW-7 (Madhu
Rawat), PW-9 (Monisha Banerjee) and PW-10 (Veena Devi), all have
corroborated X’s version. They all are independent public witnesses
and have no extraneous consideration to falsely involve the appellant
with whom they had no prior animosity. To protect the interest of the
minor children, they had moved the concerned authorities; they had
also provided financial assistance to the destitute children. Obviously,
the victim had narrated her ordeal to them in confidence. In the cross-
examination, nothing material has been elicited to reject their
testimonies.

11. The appellant’s counsel urged that X’s statement cannot
be given any weightage as there is considerable delay of three years in
lodging the report. The prosecutrix did not raise alarm at the time of
the commission of the rape and declined to get herself medically
examined. Regarding the other incident of molestation, it happened
after three years and for that the Trial Court did not believe the
prosecutrix and has recorded acquittal.

12. Well settled position is that delay in lodging the FIR in
sexual offences per se is not fatal. It is to be noted that the prosecutrix
was aged around ten years at the time of commission of rape upon her.
She was dependent upon her step-father economically. It was not easy
to lodge a complaint of this nature exposing prosecutrix to the risk of
social stigma. A decision to lodge FIR becomes more difficult and
hard when the accused happens to be a close family member.

Crl.A.403/2016 Page 6 of 9

13. In ‘State of Himachal Pradesh vs. Sanjay Kumar’, AIR
2017 SC 835, the Hon’ble Supreme Court considered delay of three
years in lodging FIR inconsequential where the victim was a child
aged around 9 years and the perpetrator of the crime was her uncle.
The Supreme Court in para No. 29 noted :

“29. Likewise, delay of three days in lodging the
FIR by PW-1, after eliciting the information from
her daughter PW-2, is inconsequential in the
facts of this case. It is not to be forgotten that the
person accused by the prosecutrix was none else
than her Uncle. It is not easy to lodge a
complaint of this nature exposing prosecutrix to
the risk of social stigma which unfortunately still
prevails in our society. A decision to lodge FIR
becomes more difficult and hard when accused
happens to be a family member. In fact,
incestuous abuse is still regarded as a taboo to
be discussed in public. This reticence hurts the
victims or other family members who struggle to
report. After all, in such a situation, not only the
honour of the family is at stake, it may
antagonize other relations as well, as in the first
blush, such other members of family would not
take charge of this nature very kindly. We also
find that the so-called dispute between the parties
was so trivial in nature that it would not have
prompted PW-1 to lodge a false complaint,
putting her minor daughter of impressionable
age to risks of serious kinds, as pointed out
above.”

14. The statement of the prosecutrix is consistent. The
evidence on record contains positive proof. Minor discrepancies are

READ  Aloke Nath Dutta & Ors vs State Of West Bengal on 12 December, 2006

Crl.A.403/2016 Page 7 of 9
inconsequential. Statement of the prosecutrix need not to be
corroborated. Nothing has been disclosed as to what had prompted or
forced the victim to falsely involve her own step-father. In fact, the
defence taken by the appellant is inconsistent and conflicting. In the
cross-examination of the prosecutrix, no reasons were assigned as to
why she had involved him in the crime. It was merely suggested that
the complaint was lodged at Madhu Rawat’s behest. It was, however,
not elaborated as to why Madhu Rawat with whom the appellant had
no enmity would implicate him. In the cross-examination of PW-2
‘Y’, no motive was assigned to her to make a false statement. In the
cross-examination of PW-7 (Madhu Rawat) it was suggested that the
appellant was implicated in connivance with the prosecutrix as the
money borrowed by him was not returned. The appellant, however,
did not clear as to when any specific amount was borrowed by him
from PW-7 (Madhu Rawat), and if so, for what purpose. The
prosecutrix is not expected to favour Madhu Rawat to implicate her
own step-father over his inability to pay the alleged borrowed money.
In 313 Cr.P.C. statement, the appellant came up with a strange defence
for the first time. He alleged that the prosecutrix used to consume
tobacco and for that her mother used to scold her. One day when he
came to know about her bad habit and found small tobacco pouches
hidden at different places, he advised and scolded her to give up the
habit. ‘X’ threatened her stating “mujhe kuch ab tumhare bare main
sochana padega”. This defence deserves outright rejection. It is
unclear as to when the prosecutrix was found to be in possession of
any tobacco pouches. No such defence was put to the prosecutrix and

Crl.A.403/2016 Page 8 of 9
other witnesses in the cross-examination. For trivial incident, the
prosecutrix would not involve her own step father in a rape case and
that too after three years of the incident to bring herself in dispute.

15. In view of the above discussion, this Court finds no merit
in the appeal and it is dismissed.

16. Trial Court record be sent back forthwith with the copy of
the order. Intimation be sent to the Superintendent Jail.

(S.P.GARG)
JUDGE
JULY 26, 2017 / tr

Crl.A.403/2016 Page 9 of 9

Leave a Comment

Your email address will not be published. Required fields are marked *