Durgesh Jha vs State Of Nct Of Delhi on 4 August, 2017

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : JUNE 06, 2017
DECIDED ON : AUGUST 04, 2017

+ CRL.A. 658/2015

DURGESH JHA ….. Appellant
Through: Mr. B.S. Chowdhary and Ms.
Chitra Goswami, Advocates
versus
STATE OF 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 16.03.2015 of
learned Additional Sessions Judge in Sessions Case No.101/13
emanating from FIR No.241/13 registered at Police Station Aman Vihar
by which the appellant-Durgesh Jha was held guilty for committing
offences punishable under Sections 6 and 10 of POCSO Act (hereafter
referred to as ‘the Act’) and Section 506 IPC. By an order dated
23.03.2015, the appellant was sentenced to undergo Rigorous
Imprisonment for ten years with fine `20,000/- under Section 6 of the
Act and Rigorous Imprisonment for ten years with fine `10,000/- under
Section 10 of the Act. The sentences were to run concurrently.

Crl.A.658/2015 Page 1 of 16

2. Briefly stated the prosecution case, as reflected in the charge-
sheet, was that on 01.01.2013 at house No.O-13, Gali No.1, Prem Nagar
II, Delhi-86, the appellant, victim ‘X’s (changed name) real paternal
uncle (chacha), touched her breast and had physical contact with sexual
intent. ‘X’ was aged around 13 years at the time of the incident. In
February, 2013 and thereafter at different times at house No.O-13, Gali
No.1, Prem Nagar II, the appellant committed penetrative sexual assault
on ‘X’ repeatedly and also criminally intimidated her. The incident was
reported to the police on 13.06.2013. ‘X’ along with her mother went
to police station Aman Vihar at about 5.00 p.m. and lodged the
complaint (Ex.PW3/A). The Investigating Officer registered the FIR.
‘X’ was taken for medical examination; she recorded her 164
Cr.P.C.
statement. The appellant was arrested; statements of witnesses
conversant with the facts were recorded during investigation. The
exhibits collected were sent for examination at Forensic Science
Laboratory and its reports were collected. Upon completion of
investigation, a charge-sheet was filed against the appellant in the court
for commission of offences punishable under
Sections 376 (2) (f) (i) (j)
IPC and Section 6 of the Act. By an order dated 11.9.2013, the
appellant was charged for commission of offence punishable under
Sections 9(n) of the Act; under
Section 5(n) punishable under Section 6
of the Act and under
Section 506 IPC. The appellant pleaded not guilty
of the charged and claimed trial. In order to establish its case, the
prosecution examined 13 witnesses in all. In 313 statement, the
appellant denied his complicity in the crime and pleaded false
implication due to property dispute. DW-1 (Rajeev Kumar Jha), DW-

Crl.A.658/2015 Page 2 of 16

2(Punita Devi) and DW-3 (Parvati Devi) were examined in defence.
The trial resulted in his conviction, as aforesaid. Being aggrieved and
dissatisfied, the instant appeal has been preferred.

3. I have heard the learned counsel for the parties and have
examined the file. Learned counsel for the appellant urged that the Trial
Court did not appreciate the evidence in its true and proper perspective
and fell into grave error to base conviction on the sole testimony of the
prosecutrix without any independent corroboration. Counsel urged that
there were material discrepancies and infirmities in the statement of the
prosecution witnesses. No explanation was offered for inordinate delay
in lodging the FIR; no weightage was given to defence witnesses who
have spoken about the appellant’s innocence. Testimony of DW-1
(Rajeev Kumar Jha) was not taken into consideration to falsify ‘X’s
version if he had accompanied them to the SGM hospital. ‘X’ has made
vital improvements in her deposition before the court. The FSL report
did not support the version of the prosecution. No injuries were found
on ‘X’s body during her medical examination. The doctor who had
medically examined the prosecutrix was not examined. The learned
Additional Public Prosecutor urged that no sound reasons exist to
disbelieve the statement of the child witness. She had no ulterior motive
to make a false statement against her real paternal uncle. Minor
inconsistencies or trivial discrepancies in the statement of the witnesses
are inconsequential.

4. Admitted position is that the appellant is ‘X’s real paternal uncle
(chacha). Earlier, all of them lived together at J-368, Prem Nagar, Part-
II. The appellant’s father subsequently sold the said property and

Crl.A.658/2015 Page 3 of 16
property O-13, Prem Nagar, Part -II was purchased. After disposal of
the property, both the appellant and his brother Parkash Jha (‘X’s
father) shifted to rented accommodation. Subsequently, father of the
accused and Parkash Jha built ground floor of property No.O-13, Prem
Nagar, Part-II and the first floor of the said property was constructed by
the appellant. It is also not in dispute that ‘X’s father used to live along
with his family on the ground floor whereas the appellant lived along
with his family on the first floor. Relations between the parties were
cordial during their stay at J-368, Prem Nagar.

5. The victim ‘X’ is a child aged around 13 years. In her complaint
(Ex.PW-3/A), MLC (Ex.PW-6/A), in 164
Cr.P.C statement (Ex.PW-
2/B) and in her deposition before the Court as PW-3, she claims herself
to be about 13 years on the date of incident. The prosecution examined
PW-1 (Jolly Dagar), MCD Teacher, Nigam Pratibha Vidhyala, Prem
Nagar-Ist, Delhi. She brought the relevant school record (Ex.PW-1/A to
Ex.PW-1/D). As per her testimony, ‘X’ was admitted in the school in
class Ist on 18.07.2005 on the basis of admission form and the affidavit
filed by her mother Ranjana Devi wherein her date of birth was
mentioned as 24.12.1999; ‘X’ studied in the school upto 5th class. In
the cross-examination, the witness admitted that no independent
verification of the date of birth was made and no MCD birth certificate
was produced.

6. This Court finds no valid reasons to suspect the date of birth
recorded in the school register at the time of seeking ‘X’s admission in
1st standard on 18.07.2005. This date of birth was recorded much prior
to the incident. ‘X’ or her family members had not imagined or

Crl.A.658/2015 Page 4 of 16
anticipated such an unfortunate incident to happen in future to
manipulate her date of birth. No other date of birth of the prosecutrix
has been suggested or proved by the appellant or defence witnesses who
are closely related to the victim. Apparently, the prosecutrix was below
16 years on the day of occurrence.

7. In her complaint (Ex.PW-3/A) lodged on 13.06.2013 forming
basis of the FIR, ‘X’ gave detailed account to the police as to how and
in what manner, she was sexually assaulted on various occasions by the
appellant on different pretexts. She further informed that due to fear she
was unable to narrate the incident to her parents. Finally when
subjected to sexual assault repeatedly, she gathered courage and
divulged the occurrence to her mother who brought her to the police
station where her statement was recorded. In her 164
Cr.P.C. statement
(Ex.PW-2/B) recorded on 14.06.2013 without any delay, the prosecutrix
reiterated her version before the learned Metropolitan Magistrate and
implicated the appellant for committing rape upon her on several
occasions.

READ  Smt. Beena Tiwari & Anr. Etc vs State Of Madhya Pradesh & Anr. Etc on 18 December, 1987

8. In her court statement as PW-3, ‘X’ proved the versions given to
the police as well as before the Magistrate without any major variations.
At the time of her court examination, she was studying in 8 th class in a
Government school at village Nithari. She deposed that in the month of
January, 2013 she had a severe stomach pain. Since her father was
away to work, her mother called the appellant and her another uncle
(foofa) to take her to the hospital. From the hospital, the appellant
brought her to his house. When she was taking rest in a quilt, finding
her alone in the room, the appellant entered inside the quilt and inquired

Crl.A.658/2015 Page 5 of 16
from her as to what was wrong with her. At the same time, he started
touching her entire body with hand. She did not feel comfortable with
his touch, got up and started crying. When her aunt enquired as to
what had happened, she wished to go home. In the meantime, her
mother came and brought her to the house.

9. Regarding the other episode in the month of February, 2013, ‘X’
deposed that at about 7 p.m., she was at her new house and her paternal
grandmother was in the kitchen cooking food; her mother had gone to
the market. Her grandmother asked her to bring the key from
appellant’s house who was to go to his in-laws. When she went there,
the main door of the house was open and she entered in the house. The
appellant came out of the toilet, caught hold her from behind; gave her
beatings and did wrong act with her. When specifically asked to clarify
as to what wrong the appellant had done, she elaborated that he
committed rape upon her and threatened to rape again and kill her
mother if she reported the incident to anyone. She further deposed that
when she enquired from the appellant after he removed her clothes
‘chacha kya kar rahe ho’ the appellant told her ‘tu chup rahe’ and
thereafter, he slapped her and committed rape upon her. She reasoned
that due to fear, she remained quiet. Regarding another incident in the
month of February, 2013 on Friday, ‘X’ detailed that her mother had
gone to drop her younger brother to school at around 8.30 a.m. At that
time, the appellant came in the room and asked ‘beta kya ho raha hai’.
She told him ‘chacha aap yaha se jao’. The appellant caught hold of her
and started touching her breast and again committed rape upon her. She
deposed that her grandfather (dada) was at home in other room. He

Crl.A.658/2015 Page 6 of 16
was, however, hard of hearing; her dadi and younger ‘chacha’ had gone
to her bua’s house. She did not tell the incident to anyone in the house
due to threats extended by the appellant.

10. The child further deposed that later on similar act was done by
the appellant several times. Finally, she took courage and informed her
mother after ten days of the incident. Her mother informed her ‘dadi’
who told ‘beta koi baat nahin chacha hai, yet beti ki jaat hai’ and
silenced her mother.

11. In the cross-examination, she expressed inability to inform if any
prescription of the SGM hospital for her treatment was given to the
police. She, however, informed that she was given an injection in
emergency and thereafter discharged. She further informed that it was a
rented house which consisted of one big room, one kitchen and one
bathroom. Her chachi was not visible from the bed where she was lying
under a quilt due to a wall between the kitchen and the room. She fairly
admitted that she did not raise alarm when touched by the appellant.
She denied the suggestion that she had not gone to the hospital that day.
Regarding the incident in February, 2013 at 7.00 p.m., she elaborated
that when she had gone to take key from the accused, his wife was not
present as she has gone to her parents’ house. Rape was committed
upon her that day for the first time on the floor. The second time, the
appellant committed rape upon her at her house on the bed even when
her grandfather was present. On both the occasions, she had offered
resistance but was beaten and threatened. She further admitted that she
did not suffer any injuries and her clothes were not torn. After the first
sexual assault, she had missed her periods and her mother had taken her

Crl.A.658/2015 Page 7 of 16
to government dispensary nearby where she was prescribed certain
medicines. She used to feel severe pain in her private parts and lower
abdomen.

12. The prosecutrix further responded that her father had
accompanied them to the police station but did not participate in the
proceedings as the sexual assault pertained to his daughter and her
mother was taking care of it. She denied if statement under Section 164
Cr.P.C. was given at her parents’ behest. She admitted that appellant’s
wife had filed a case against her father but she was not aware of its
details. She denied any property dispute between her father and the
appellant.

13. On scrutinizing the victim’s statement in its entirety, it reveals
that despite indepth cross-examination, no worthwhile or material
infirmities could be extracted or elicited to suspect her version. Her
statement is consistent throughout. She was categorical to assign
specific and definite role to the appellant in the crime on different dates.
No ulterior motive was attributed to the child witness to make a false
statement against her own relative who was akin to her father. Her
ocular testimony is in consonance with medical evidence. On the night
intervening 13/14.6.2013, she was medical examined at Sanjay Gandhi
Memorial Hospital, Mangolpuri vide MLC (Ex.PW-6/A). Name of the
perpetrator of the crime was disclosed to the examining doctor. The
alleged history recorded therein mentions that it was a case of sexual
assault by her own uncle Durgesh in January, 2013; it was repeated 3-4
times till February 2013. Apparently, the appellant was named at first
instance to be the culprit. Hymen was found to be torn. In the cross-

READ  Sri. Sachin S/O. Prakash ... vs The State Of Karnataka on 2 June, 2014

Crl.A.658/2015 Page 8 of 16

examination, the victim had specifically stated that no other individual
had done such wrong act with her prior to the commission of it by the
appellant.

14. Victim’s statement has been corroborated in material particulars
by her parents PW-6 (Rajni Devi) and PW-10 (Prakash Jha).

15. True, there was considerable delay in lodging the report with the
police. The first occurrence had taken place sometimes in January,
2013. The appellant repeated the act several times thereafter. The
report was made to the police only on 13.06.2013. It, however, does
not belittle the appellant’s crime. The victim has explained the delay in
narrating the incident to her parents and the police. She was a child
aged around 13 years and was afraid of the appellant who had extended
threats to her. Due to fear and threats, she did not dare to inform her
parents and continued to suffer the ordeal. Even her passive consent to
have physical relation with the appellant was of no consequence or
relevance, she being below 16 years of age. Due to immature age, she
was unable to understand the consequences of physical relations at such
a young age and that too with a grown up individual-her paternal uncle.
Delay in lodging the report in sexual offences, per se is not fatal.
Recently in the State of Himachal Pradesh vs.Sanjay Kumar alias
Sunny, AIR 2017 SCC 835 in similar circumstances where the child
aged around 9 years was sexually assaulted by her own real uncle, the
delay of three years in informing the parents by the victim was
considered inconsequential. The Supreme Court held as under:-

“23. As per the prosecutrix, she was called by the
Respondent to his room, which is on the first floor of the

Crl.A.658/2015 Page 9 of 16
house. Unmindful of what could be the motive of an uncle
to call her, she obliged as a dutiful child. However,
according to the prosecution, unfortunate incident
happened. It happened with a nine year old child who was
totally unaware of the catastrophe which had befallen her.
Her mental faculties had not developed fully; she was in
the age of innocence; unaware of the dreadful
consequences. Further, at the time when she was being
sexually assaulted, her mouth was gagged so that she was
not able to scream and after the incident she was
threatened not to disclose this incident to anybody. In fact,
she kept mum out of this fear. It is quite understandable
that a nine year old child, after undergoing traumatic
experience and inflicted with threats, would be frozen with
fear and she could not find voice to speak against her
uncle. In cases of incestuous abuse, more often, silence is
built into the abuse. Incident came to light and tragedy
struck on the prosecutrix only when her mother noticed
that she was continuously suffering from stomach ache and
was, therefore, taken to a Gynecologist for her treatment.
But for the above, matter may not have come to light. It is
only after she was examined by Dr. Jasbir Kaur (PW-8),
who had medically examined and formed the opinion that
the prosecutrix had been sexually assaulted forcibly about
2-3 years ago, since her hymen was ruptured and her
external and internal sphincters were also torn, that PW-1
queried the prosecutrix and she revealed the incident,
hitherto hidden by her from the entire world out of fear,
not only as a result of the threats extended by the
Respondent but for varied other reasons.

24. When the matter is examined in the aforesaid
perspective, which in the opinion of this Court is the right
perspective, reluctance on the part of the prosecutrix in
not narrating the incident to anybody for a period of three
years and not sharing the same event with her mother, is
clearly understandable. We would like to extract the
following passage from the judgment of this Court in
Tulshidas Kanolkar v. State of Goa:

Crl.A.658/2015 Page 10 of 16

5. We shall first deal with the question of delay.
The unusual circumstances satisfactorily explained
the delay in lodging of the first information report.
In any event, delay per se is not a mitigating
circumstance for the accused when accusations of
rape are involved. Delay in lodging the first
information report cannot be used as a ritualistic
formula for discarding the prosecution case and
doubting its authenticity. It only puts the court on
guard to search for and consider if any explanation
has been offered for the delay. Once it is offered,
the court is to only see whether it is satisfactory or
not. In case if the prosecution fails to satisfactorily
explain the delay and there is possibility of
embellishment or exaggeration in the prosecution
version on account of such delay, it is a relevant
factor. On the other hand, satisfactory explanation
of the delay is weighty enough to reject the plea of
false implication or vulnerability of the prosecution
case. As the factual scenario shows, the victim was
totally unaware of the catastrophe which had
befallen her. That being so, the mere delay in
lodging of the first information report does not in
any way render the prosecution version brittle.”

25. In Karnel Singh v. State of Madhya Pradesh
MANU/SC/0497/1995 : (1995) 5 SCC 518, this Court
observed that:

7…The submission overlooks the fact that in India
women are slow and hesitant to complain of such
assaults and if the prosecutrix happens to be a
married person she will not do anything without
informing her husband. Merely because the
complaint was lodged less than promptly does not
raise the inference that the complaint was false.
The reluctance to go to the police is because of
society’s attitude towards such women; it casts

Crl.A.658/2015 Page 11 of 16
doubt and shame upon her rather than comfort and
sympathise with her. Therefore, delay in lodging
complaints in such cases does not necessarily
indicate that her version is false…

26. Likewise, in State of Punjab v. Gurmit Singh and Ors.
MANU/SC/0366/1996 : (1996) 2 SCC 384, it was
observed:

8…..The courts cannot overlook the fact that in
sexual offences delay in the lodging of the FIR can
be due to variety of reasons particularly the
reluctance of the prosecutrix or her family
members to go to the police and complain about
the incident which concerns the reputation of the
prosecutrix and the honour of her family. It is only
after giving it a cool thought that a complaint of
sexual offence is generally lodged…

27. Notwithstanding the fact that the trial court accepted
the explanation for delay as satisfactory by giving detailed
reasons, we are dismayed to find that the High Court has
been swayed by this delay in reporting the matter with
omnibus statement that it is not satisfactorily explained
without even an iota of discussion on the explanation that
was offered by the prosecution in the form of testimonies of
PW-1 and PW-2.

XXX XXX XXX

30. By no means, it is suggested that whenever such
charge of rape is made, where the victim is a child, it has
to be treated as a gospel truth and the accused person has
to be convicted. We have already discussed above the
manner in which testimony of the prosecutrix is to be
examined and analysed in order to find out the truth
therein and to ensure that deposition of the victim is

Crl.A.658/2015 Page 12 of 16
trustworthy. At the same time, after taking all due
precautions which are necessary, when it is found that the
prosecution version is worth believing, the case is to be
dealt with all sensitivity that is needed in such cases. In
such a situation one has to take stock of the realities of life
as well. Various studies show that in more than 80% cases
of such abuses, perpetrators have acquaintance with the
victims who are not strangers. The danger is more within
than outside. Most of the time, acquaintance rapes, when
the culprit is a family member, are not even reported for
various reasons, not difficult to fathom. The strongest
among those is the fear of attracting social stigma.
Another deterring factor which many times prevent such
victims or their families to lodge a complaint is that they
find whole process of criminal justice system extremely
intimidating coupled with absence of victim protection
mechanism. Therefore, time is ripe to bring about
significant reforms in the criminal justice system as well.
Equally, there is also a dire need to have a survivor
centric approach towards victims of sexual violence,
particularly, the children, keeping in view the traumatic
long lasting effects on such victims.”

16. It is well settled that the testimony of a victim in cases of sexual
offence 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. The victim’s testimony, however, must inspire
confidence. In the instant case, no compelling reasons exist to
disbelieve the statement of the prosecutrix. It was emphasized by the
appellant’s counsel that appellant’s false implication is due to property
dispute. The defence deserves outright rejection as there is no cogent
material on record to show if there existed any property dispute between

Crl.A.658/2015 Page 13 of 16
the two brothers. The ground floor is being occupied by the victim and
her family members whereas the first floor is in occupation of the
appellant and his family members. No complaint, whatsoever, regarding
any quarrel over property dispute was ever made to the police. No civil
proceedings regarding the property in question were ever initiated by
any of the parties. Moreover, for a trivial property dispute (if any) the
victim’s parents cannot be imagined to use their minor school going
child to settle score with the appellant. In that eventuality, they could
not have waited for long four-five months to lodge the report. Contrary
to that, appellant’s wife purportedly has lodged an FIR No.331/2013 at
Police Station Aman Vihar against the victim’s father Prakash Jha for
commission of offence punishable under
Sections 323/354/452/506/34
IPC. It is no clear as to what is the status of the said case. PW-10
(Prakash Jha) in the cross-examination informs that this FIR was lodged
after the filing of the present complaint. Photo-copy of the said FIR is
in appeal file, the FIR was lodged on 11.08.2013 when the appellant
was in custody. Undisputedly, the defence witnesses DW-1 (Rajiv
Kumar), DW-2 (Punita Devi) and DW-3 (Parwati Devi), appellant’s
brother-in-law, sister and mother respectively, have opted to support the
appellant in one voice. They have spoken that no such incidents had, in
fact, taken place and there was property dispute between the two
brothers. The Trial Court rightly did not give weightage to their
testimonies as they all were interested to save the appellant from
punishment due to sympathy with him particularly when he had lost a
new born child and the other one was not keeping good health. They
were not witnesses to the incident. Only ‘X’ who had suffered the

Crl.A.658/2015 Page 14 of 16
trauma was aware as to what had happened to her. Such offences are
not committed in open. The appellant used to take advantage of the
loneliness of the child and committed rape upon her frequently.

17. Since the victim had approached the police after several
days of the physical assault, chances of her suffering injuries on her
body including private parts was rare. No benefit can be given to the
appellant merely because during medical examination, no injuries were
found on victim’s body.

18. Minor contradictions or discrepancies highlighted by the
appellant’s counsel are of no consequence as they do not affect the core
of the prosecution case.

19. In 313 statement, the appellant did not give plausible explanation
to the incriminating circumstances proved against him. All the issues
raised by him have been dealt with in the impugned judgment with
reasons. The judgment based upon fair appreciation of evidence does
not call for any interference. The conviction for the aforesaid offences
stands affirmed.

20. Regarding sentence, the appellant does not deserve any
leniency. The victim was his own close relation akin to her daughter.
She was a child of tender age around 13 years, unaware as to what was
being done with her at a young age. The appellant violated her body and
betrayed the trust reposed in him by the victim’s family. It is relevant to
note that the appellant himself was a married man and was well-aware
as to what were the consequence and impact of the crime upon the
unsuspecting child.

Crl.A.658/2015 Page 15 of 16

21. The appeal being devoid of merits is dismissed. Trial Court
record along with the copy of the order be sent back forthwith.

S.P.GARG
(JUDGE)
AUGUST 04, 2017/sa

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