Vijay @ Bittu vs State on 25 October, 2017

$~R-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: October 25, 2017

+ CRL.A. 19/2011
VIJAY @ BITTU ….. Appellant
Through: Mr.M.L.Yadav, Advocate
(DHCLSC).

versus

STATE ….. Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State.

PRATIBHA RANI, J. (Oral)

1. The instant appeal has been preferred by the appellant Vijay @
Bittu assailing the judgment and order on sentence 14th May, 2010 and
17th May, 2010 respectively whereby he has been convicted for
committing the offence punishable under Section 376(2)(f) IPC and
sentenced to undergo RI for ten years with fine of ₹10,000/- and in
default of payment of fine, to undergo SI for one year.

2. Briefly stating, the case of prosecution is that on 25th May, 2007
on receipt of DD No.25A regarding rape of a girl, W/ASI Sushila
reached the spot where ASI Karan Singh, Ct.Suresh and
W/Ct.Sharmila were already present. W/ASI Sushila recorded the
statement Ex.PW2/A of Smt.Padma – mother of the child victim ‘P’
(name withheld to conceal her identity) aged about nine years wherein
she stated that ‘P’ was studying in 1st Standard in a School (name of

CRL.A. No.19/2011 Page 1 of 6
school withheld) in Ishwar Colony. Her husband was running a
grocery shop in Ishwar Colony. On the date of occurrence at about
1.00 pm, her daughter ‘P’ came to the shop directly from the school.
After sometime accused/appellant Vijay, who was their nephew (jeth
ka ladka) also came there. The complainant asked him to accompany
her to their house. She also made her daughter ‘P’ sit on the bicycle of
accused/appellant and she followed them on foot. On the way, she
met classmate of ‘P’ and while she was talking to her, the
accused/appellant alongwith her daughter went ahead. When she
reached home, she did not find her daughter at home. She searched
for her daughter and accused and also informed her husband. After
sometime, the accused/appellant was seen coming from the side of
canal. When she asked appellant/accused as to where he was, he
started looking here and there. Thereafter the accused/appellant went
alongwith her husband to the shop. Suspecting something wrong, she
checked the clothes of her daughter which she found to be stained with
blood. ‘P’ informed her that the accused/appellant took her to a room
near the canal and made her to remove her clothes and lie down on the
grass. Then he did ‘galat kaam’ with her. The complainant took her to
the shop of her husband and informed him about the incident.
Thereafter the matter was reported to the police.

3. On the basis of above statement, FIR No.282/2007 under
Section 376(f) IPC was registered against the accused/appellant at PS
Bawana. Child victim was sent for medical examination. Accused
was arrested and after completion of investigation, chargesheet was
filed.

CRL.A. No.19/2011 Page 2 of 6

4. Accused/appellant was charged for committing the offence
punishable under Section 376(2)(f) IPC to which he pleaded not guilty
and claimed trial. The prosecution has examined 15 witnesses to prove
its case. Accused/appellant was also examined under Section 313
CrPC to enable him to explain the incriminating evidence appearing
against him wherein he stated that he has been falsely implicated by
the family of the child victim due to enmity.

5. After trial, believing the coherent and cogent testimony of
prosecutrix supported by the medical evidence, the learned ASJ,
convicted the appellant for committing the offence punishable under
Section 376 (2)(f) IPC and sentenced him in the manner stated above.

6. Feeling aggrieved, the appellant has challenged his conviction
and sentence by filing this appeal.

7. I have heard Mr.M.L.Yadav, Advocate (DHCLSC) and
Mr.Kewal Singh Ahuja, learned APP for the State.

8. Mr.M.L.Yadav, learned counsel for the appellant has submitted
that the learned Trial Court has failed to note the material
contradictions and discrepancies in the testimony of prosecution
witnesses which go to the root of the case and shake the foundation of
the case. As per the MLC of the child victim, at the time of her
examination she was conscious and oriented and there was no external
injury on her private part. Learned counsel for the appellant has
submitted that the appellant has been falsely implicated in this case by
the family of the child victim as the appellant had a fight with the
father of the child victim nine month prior to the alleged date of
incident, which was resolved with help of common friends. The

CRL.A. No.19/2011 Page 3 of 6
statement under Section 164 CrPC of the child victim has been got
recorded after thirteen days of the date of occurrence and there was
ample time for the family to tutor the child victim to ensure conviction
of the appellant. Learned counsel for the appellant has prayed for
acquittal of the appellant.

9. Mr.Kewal Singh Ahuja, learned APP for the State has supported
the views taken by the learned Trial Court and submitted that there is
no iota of doubt in the conclusion arrived at by the learned Trial Court
that the child victim has been raped by the appellant. Learned APP for
the State submitted that the child victim in this case is a young child
aged about 9 years. On inquiry, the child victim had informed her
mother that appellant took her to a room near canal where he made her
remove her clothes and lie down on the grass on the floor and then he
committed rape on her. The mother of the child victim saw her
daughter coming alongwith the appellant/accused after the incident.
Further, there is no dispute about the identity of the appellant as he is
related to the family of the child victim and child victim also called
him ‘Bittu Bhaiya’. Learned APP for the State prays for dismissal of
the appeal.

10. I have considered the rival contentions and carefully gone
through the record.

11. Perusal of the LCR reveals that the appellant was well known to
the family of the child victim and was trusted by them to the extent
that when the child victim returned from the school, just to make her
comfortable the appellant was asked to take her on his bicycle to the
house and the mother followed on foot. It was only on not finding the

CRL.A. No.19/2011 Page 4 of 6
child at home that the mother panicked and started searching for her
daughter and also informed her husband. The appellant was seen
coming alongwith the child victim on the bicycle and when the mother
questioned him as to why he was coming from the canal side that he
started looking here and there and tried to avoid the questioning.
When PW-2 Smt.Padma – the mother suspected, she checked the
clothes of her daughter and found them stained with blood. The child
victim (PW-1) informed that she was taken by Bittu Bhaiya
(appellant/accused) in a room near the canal and committed rape on
her.

12. In her statement under Section 164 CrPC, the child victim
narrated the incident by saying that ‘Bittu ne apni toilet meri toilet
mein ghusa di’.

13. During her examination as PW-1, the child victim ‘P’ also
stated that after taking her to a deserted room, she was made to lie
down on the grass on the floor and then accused put his susu in her
susu.

14. The statement of the child victim throughout remained
consistent about the manner in which she was taken by the
appellant/accused when she returned from the school and her mother
sent her to be dropped at him. But instead of taking the child victim to
home, the appellant took her to a room in a canal where fodder was
stored and she was raped.

15. No doubt, the child victim is of tender age but her statement has
been duly corroborated by PW-2 Smt.Padma – her mother on all vital
aspects as well by her MLC Ex.PW7/A. The testimonies of PW-1 –

CRL.A. No.19/2011 Page 5 of 6

the child victim ‘P’, PW-2 Smt.Padma – her mother and PW-3
Sh.Pramod Kumar – her father are credible, corroborative and reliable.
The medical and scientific evidence point out to the guilt of the
accused who has been duly identified by the child victim to be the
person who instead of dropping her at home, took her to a room near
the canal and raped her.

16. The impugned judgment and order on sentence does not warrant
any interference by this Court.

17. Finding no merit, the appeal is dismissed.

18. Vide order dated 23rd October, 2017 production warrant was
ordered to be issued against the appellant for today i.e. 25th October,
2017. Pursuant to the production warrants issued against the
appellant, nominal roll of the appellant has been sent by the concerned
Jail Superintendent as per which the appellant has already been
released from jail on 17th October, 2015 after completion of sentence
awarded to him in this case.

19. LCR be sent back alongwith copy of this order.

PRATIBHA RANI
(JUDGE)
OCTOBER 25, 2017
‘st’

CRL.A. No.19/2011 Page 6 of 6

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