Virender Kumar Jha vs State (Govt. Of Nct Of Delhi) on 1 December, 2017

$~R-20 (Persons in Custody)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: December 01, 2017

+ CRL.A. 383/2011
VIRENDER KUMAR JHA ….. Appellant
Through: Mr.M.L.Yadav, Advocate.
(DHCLSC)

versus

STATE (GOVT. OF NCT OF DELHI) ….. Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State.

PRATIBHA RANI, J. (Oral)

1. The appellant/convict has preferred this appeal impugning the
judgment dated 23rd April, 2010 and order on sentence dated 28th
April, 2010 passed in Sessions Case No.256/2008 (in FIR no.57/2007
under Section 376/506 IPC, PS Swaroop Nagar) whereby he has been
convicted for committing the offence punishable under Section
376(2)(f) and 506 IPC and sentenced as under:-

(i) Under Section 376(2)(f) IPC : to undergo RI for ten
years with fine of
`20,000/- and in default
of payment of fine to
undergo SI for one year.

(ii) Under Section 506 IPC : to undergo RI for one
year with dine of `2000/-

and in default of payment
of fine to undergo SI
three months.

CRL.A. No.383/2011 Page 1 of 10

2. In brief, the prosecution case is that the convict herein was
neighbour of the two child victims, who are sisters. The elder sister
‘D’ was aged about 10 years and the younger sister ‘A’ (name
withheld to conceal their identity) was aged about 6 years at the time
of incident.

3. Criminal law was set into motion on 29 th October, 2007 when
vide DD No.22B Ex.PW1/A an information was received at PS
Swaroop Nagar from one Dr.Ritu Chaudhary about the rape being
committed on two sisters by the convict Virender Kumar Jha about
fifteen days prior to that day. The DD was assigned to SI Sukhbir
Singh who alongwith Ct.Suresh reached the spot. Sh.Rajesh Kujur –
father of the two child victims met the Investigating Officer and
informed that the girls were at school. They were called from the
school. The mother of the child victims, who was an employee of
Dr.Ritu Chaudhary – the informant, was also called and both the child
victims were sent for medical examination. On medical examination
vide MLCs Ex.PW4/A and PW4/B, it was opined that hymen of both
the child victims was found ruptured. After registration of the FIR, on
the statement of their mother (PW-1 Maryam Kujur) the convict was
arrested and sent for medical examination. The convict was medically
examined vide MLC Ex.PW4/C which records that there was nothing
to suggest that he was incapable of performing sexual intercourse.

4. After completion of investigation, the chargesheet was filed and
the case was committed to the Court of Sessions. The convict herein
pleaded not guilty to the charge framed.

CRL.A. No.383/2011 Page 2 of 10

5. Prosecution examined 16 witnesses in all to prove its case. In
his examination under Section 313 CrPC, the convict denied the
evidence led by the prosecution and claimed himself to be innocent
and falsely implicated in this case due to the quarrel between his wife
and mother of the two child victims over throwing of the garbage.
However, he has not led any evidence in his defence.

6. After trial, relying on the testimony of PW-3 ‘D’ – the elder
child victim aged 10 years at the time of occurrence which was duly
corroborated by scientific evidence, the learned Trial Court held the
convict guilty of the offence punishable under Section 376(2)(f)/506
IPC and sentenced him in the manner stated above.

7. Mr.M.L.Yadav, learned counsel for the convict has submitted
that MLCs Ex.PW4/A and B of both the child victims have been
manipulated by their mother at the instance of PW-5 Dr.Ritu
Chaudhary with whom she was working as maid servant. It has been
contended that there are discrepancies about the date of incident as in
the MLCs Ex.PW4/A and 4/B the date of incident has been mentioned
as 27th October, 2007 whereas PW-1 Smt.Maryam Kujur – mother of
the child victims has stated that the incident has taken place about one
month prior thereto. It has also been contended that the conduct of
PW-1 Smt.Maryam Kujur is also quite unnatural as instead of
informing the police, she informed PW-5 Dr.Ritu Chaudhary with
whom she was employed. The younger sister ‘A’ who was also
alleged to be victim of sexual assault was unable to make statement
before the Court, hence dropped as witness by the prosecution. Thus,
the version of PW-3 ‘D’ – another child victim is not supported and

CRL.A. No.383/2011 Page 3 of 10
corroborated even by her sister and the scientific evidence also does
not prove the guilt of the convict, hence giving benefit of doubt, he
may be acquitted.

8. Mr.Kewal Singh Ahuja, learned APP for the State has
contended that it is a case where two sisters were raped by turn on the
same day by the convict, who was their immediate neighbour. The
MLCs of both the sisters show that their hymen was found ruptured.
It has been contended that in view of the tender age of both the sisters,
the statement of PW-3 ‘D’ – the child victim narrating the incident
with minute details, is sufficient to prove the guilt of the convict as
she had absolutely no reason to make a false statement against the
convict. It has also been contended that after committing rape both
the child victims were also threatened by the convict and due to this
reason, they even could not disclose this fact to their parents
immediately after the occurrence. It was only after a lapse of
sufficient time that their mother came to know about the incident and
on not being able to take a decision, she confided in her employer who
was a doctor. Learned APP for the State has also submitted that
Dr.Ritu Chaudhary advised her not to spare such persons and
informed the police from her mobile giving her name as informant.
Dr.Ritu Chaudhary, who has been examined as PW-5, has
corroborated the statement of PW-1 Smt.Maryam Kujur – mother of
the child victims that when the mother disclosed about her two
daughters being sexually assaulted by their neighbour, she informed
the police.

CRL.A. No.383/2011 Page 4 of 10

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

10. At the outset, it is necessary to record here that the appellant
though stated in his examination under Section 313 CrPC that due to
quarrel with his wife, he has been falsely implicated in this case by the
mother of the child victims but he even did not produce his wife in his
defence.

11. During investigation, both the child victims were produced
before the learned MM for getting their statement recorded under
Section 164 Cr.P.C. PW-13 Sh.Vijay Shankar, learned Metropolitan
Magistrate has deposed that the child victim ‘A’ was six years old
who made statement Ex.PW13/C and child victim ‘D’ was aged about
10 years who made statement Ex.PW13/G. Since the statement under
Section 164 CrPC was recorded in the Chamber, may be due to that
reason the child victim ‘A’ aged about 6 years at that time could make
the statement but when she appeared in the Court, she might have
been over-awed by the Court atmosphere and could not depose.

12. Since the prosecution has produced both the child victims
during trial, merely because the younger child victim was not able to
depose before the Court, cannot be taken as a ground to disbelieve the
testimony of the elder child victim as both the sisters were raped on
the same day in presence of each other.

13. In the decision reported as Madan Gopal Kakkad vs. Naval
Dubey (1992) 2 SCR 921 the Apex Court has observed as under:-

‘Even in cases wherein there is lack of oral
corroboration to that of a prosecutrix, a conviction can

CRL.A. No.383/2011 Page 5 of 10
be safely recorded, provided the evidence of the victim
does not suffer from any basic infirmity, and the
‘probabilities factor’ does not render it unworthy of
credence, and that as a general rule, corroboration
cannot be insisted upon, except from the medical
evidence, where, having regard to the circumstances of
the case, medical evidence can be expected to be
forthcoming.’

14. The elder child victim ‘D’ when examined as PW-3 before the
Court, has very categorically narrated the incident as under:-

‘Virender uncle lives in our neighbourhood. Uncle
called me and asked me to bring bidi. I went to bring
bidi. I went to his house to gave bidi to him. Uncle
bolted the room of his house and put down my underwear
and also put down his underwear and put his penis (susu
wali jagah) in my private parts (pishab wali jagah). I
suffered pain and started bleeding and threatened me not
to tell my parents otherwise he would kill me and he put
my underwear to me and ask me to go outside. I told my
mother about this incident on 27.10.07. the incident
occurred many days before 27.10.2007. My younger
sister Anjali was also with me when the incident
occurred. Virender uncle is present in Court today.
Uncle did the same act with Anjali also. I was afraid so I
did not tell about the incident to my parents for many
days.’

15. In her statement under Section 164 CrPC Ex.PW13/G also the
elder child victim ‘D’ has stated:

‘Jab main ghar mein thi to hum dono ko uncle ne bulaya
tha. Bola tha ki bidi leke aa jao. Aur paise de diya tha
khidki se. Jab hum leke aaye to darwaza band kar diya
tha. Hum dono beheno ko band kar diya tha. Usne apni
kacchi kholi aur apni susu humari susu mein dal di thi.
Jab hum rone lage to bola chup ho jao. Phir kachhi

CRL.A. No.383/2011 Page 6 of 10
pehnakar ghar bhej diya aur bola ki kisi ko batana mat
warna maar dalunga.’.

16. The statement of PW-3 ‘D’ – the child victim finds due
corroboration from the MLCs Ex.PW4/A and 4/B of both the victims
which records:

MLC Ex.PW4/A of child victim ‘D’
‘Alleged history of sexual assault some day back by her
mother and PCR on 29.10.07 at 3.20 pm. Pt. has taken
bath and changed clothes since then.

Menarche- not yet. Unmarried.

O/E
GC : Conscious, oriented.

PR – 86
P/A – soft.

L/E : No sign of fresh injury on thighs, breast or
abdomen.

Vulval examination – hymen ruptured.’

MLC Ex.PW4/B of child victim ‘A’
‘Alleged history of sexual assault some day back by her
mother and PCR on 29.10.07 at 3.20 pm. Pt. has taken
bath and changed clothes since then.

Menarche- not yet. Unmarried.

O/E
GC : Conscious, oriented.

PR – 96
P/A – soft.

L/E : No sign of fresh injury on thighs, breast or
abdomen.

Vulval examination – hymen ruptured.’

CRL.A. No.383/2011 Page 7 of 10

17. In the backdrop of the above legal principles of law, on
examination of the testimony of PW-3 ‘D’ – the child victim, who as
well as her younger sister ‘A’ are victims of lust of their immediate
neighbour, I find that she and her family had absolutely no motive
against the convict to falsely implicate him in this case. Rather, the
two sisters were so terrified that for a long period they even could not
confide in their mother even as to what the convict had done to them.

18. The minor discrepancy pointed out by learned counsel for the
appellant is about the date of incident as mentioned in the MLCs
Ex.PW4/A and 4/B to be 27th October, 2007 whereas PW-1
Smt.Maryam Kujur – mother of the child victims has stated that the
incident has taken place about one month prior thereto, is concerned,
suffice would it be to say that same does not render the testimony of
PW-3 ‘D’ – the child victim unworthy of credence. PW-1 Smt.Maryam
Kujur – mother of PW-3 ‘D’ is an illiterate lady who was working as
maid servant with PW-5 Dr.Ritu Chaudhary. The victim themselves
were girls of tender age and might not be in a position to recall the
exact date of the incident. Thus, any discrepancy in respect of the date
of incident cannot be a ground to discard their version.

19. It would be apposite to quote the observations made in the case
of State of Rajasthan vs. N.K. the accused 2000 CriL.J. 2205 as
under:-

“Having heard the learned counsel for the parties we are of the
opinion that the High Court was not justified in reversing the
conviction of the respondent and recording the order of
acquittal. It is true that the golden thread which runs
throughout the cobweb of criminal jurisprudence as

CRL.A. No.383/2011 Page 8 of 10
administered in India is that nine guilty may escape but one
innocent should not suffer. But at the same time no guilty should
escape unpunished once the guilt has been proved to hilt. An
unmerited acquittal does no good to the society. If the
prosecution has succeeded in making out a convincing case for
recording a finding as to the accused being guilty, the court
should not lean in favour of acquittal by giving weight to
irrelevant or insignificant circumstances or by resorting to
technicalities or by assuming doubts and giving benefit thereof
where none exists. A doubt, as understood in criminal
jurisprudence, has to be a reasonable doubt and not an excuse
for a finding in favour of acquittal. An unmerited acquittal
encourages wolves in the society being on the prowl for easy
prey, more so when the victims of crime are helpless females. It
is the spurt in the number of unmerited acquittals recorded by
criminal courts which gives rise to the demand for death
sentence to the rapists. The Courts have to display a greater
sense of responsibility and to be more sensitive while dealing
with charges of sexual assault on women”.

20. The motive suggested by the convict of his false implication at
the instance of PW-5 Dr.Ritu Chaudhary has to be rejected as an
after-thought. Dr.Ritu Chaudhary was a stranger to the convict and
she had absolutely no reason to implicate him. She only tried to guide
and advise her maid servant who was the mother of the child victims
and informed the police so that the offender can be brought to book.
She had no axe to grind in the matter and merely because she is the
informant in itself is no ground to disbelieve the testimony of PW-3
‘D’ – the child victim and her parents i.e. PW-1 Smt. Maryam Kujur
and PW-2 Sh.Rajesh Kujur.

21. I find that the learned Trial Court has rightly placed implicit
reliance on the testimony of PW-3 ‘D’ the child victim aged about 11

CRL.A. No.383/2011 Page 9 of 10
years, who as well as her younger sister ‘A’ had been subjected to rape
by the convict.

22. The conviction of the appellant for committing the offence
punishable under Section 376(2)(f)/506 IPC and the sentence awarded
thereunder is upheld.

23. The appeal is accordingly dismissed being devoid of merits.

24. Vide order 29th November, 2017 productions warrant was
issued against the appellant and pursuant thereto, report has been
received from the concerned Jail Superintendent to the effect that
appellant has already been released from the Jail on 19 th February,
2016 after completion of sentence awarded to him in this case.

25. Trial Court record be sent back forthwith along with a copy of
this order.

26. A copy of this order be sent to the concerned Jail
Superintendent for information.

PRATIBHA RANI
(JUDGE)
DECEMBER 01, 2017
‘st’

CRL.A. No.383/2011 Page 10 of 10

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