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Pramod Mandal vs State (Gnct Of Delhi) on 15 January, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON : 6th JANUARY, 2018
DECIDED ON : 15th JANUARY, 2018

+ CRL.A. 270/2014

PRAMOD MANDAL ….. Appellant
Through : Mr.M.L.Yadav, Advocate.

versus

STATE (GNCT OF DELHI) ….. Respondent
Through : Mr.Kewal Singh Ahuja, APP.

CORAM:
HON’BLE MR. JUSTICE S.P.GARG
HON’BLE MR. JUSTICE C.HARI SHANKAR

S.P.GARG, J.

1. Challenge in this appeal is a judgment dated 25.11.2013
of learned Addl. Sessions Judge in Sessions Case No.07/2013 arising
out of FIR No. 225/2012 registered under Sections 376/377 IPC at PS
Adarsh Nagar by which the appellant – Pramod Mandal was held
guilty for commission of offences punishable under Sections 376(2)(f)
and 377 IPC. By an order dated 28.11.2013, the appellant was
sentenced to undergo imprisonment for life with fine `10,000/- under
Section 376(2)(f) IPC and RI for ten years with fine `5,000/- under
Section 377 IPC. Both the sentences were to operate concurrently.

2. The perpetrator of the crime in this case is none else but
the biological father of the victim ‘X’ (assumed name) aged around 9

Crl.A. 270/2014 Page 1 of 9
years. The victim used to get her primary education at Janhit Society
for Social Welfare, Lal Bagh, Azadpur, Delhi. PW-14 (Devki
Sharma), Teacher at the said institution chanced upon injury marks on
the victim’s body. Finding something amiss, she inquired from the
child and came to know that she was being abused by her father.
Victim’s mother was contacted and informed about the child’s plight.
Asha Devi – X’s mother lodged complaint (Ex.PW-13/A) and FIR
(Ex.PW-1/B) came to be recorded at PS Adarsh Nagar. ‘X’ was
medically examined; she recorded her 164 Cr.P.C. statement. 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 in the Court. To establish its
case, the prosecution examined sixteen witnesses in all and relied
upon several documents. In 313 Cr.P.C. statement, the appellant
denied his complicity in the crime and pleaded false implication. The
trial resulted in conviction as aforesaid. Being aggrieved and
dissatisfied, the instant appeal has been preferred.

3. We have heard the learned counsel for the parties and
have examined the file minutely. Victim’s mother – Asha Devi put the
police machinery into motion and lodged complaint (Ex.PW-13/A) on
13.09.2012. In her complaint, she gave detailed account as to how and
in what manner the appellant – her husband used to sexually assault
her daughter ‘X’ aged around 9 years in her absence. Specific and
definite role was assigned to the appellant in the crime. In 164 Cr.P.C.
statement (Ex.PW-4/B) recorded on 15.09.2012, the victim reiterated
the version given by her mother in complaint (Ex.PW-13/A). She

Crl.A. 270/2014 Page 2 of 9
accused the appellant for committing sexual assault upon her in the
absence of her mother. She was threatened not to disclose the incident
or else she would be killed. She further informed that the occurrence
was narrated by her to her tuition teacher.

4. In her Court statement as PW-10, she supported the
version given to the learned Presiding Officer without any variation.
Before recording her statement, the learned Presiding Officer had put
various questions to her to ascertain if she was a competent witness
and she was able to give rational answers to the questions put to her.
After recording satisfaction that the child witness was able to depose
without any fear or pressure, her statement was recorded without oath
in a congenial atmosphere in question answer-form. She was made
comfortable and was provided with colours and white papers. During
this period, she was able to draw two beautiful drawings (Ex.P-
1/Colly). Her statement reads :

“Q. Aap ke Papa ka kya naam Hai?
Ans. Parmod.

Q. Aap ki mummy ka kya naam hai?
Ans. Asha.

Q. aap ke papa kya kaam karte hai?
Ans. Factory me machine chalate hai.

Q. Aap ki mummy kya karti hai?
Ans. Mummy kam karti hai. (The witness though for a
while and after a pause states that) mummy factory me
kaam karti hai, (The witness is unable to tell what work
her mother is doing in the factory.)

Crl.A. 270/2014 Page 3 of 9
Q. Aap ko papa se koi shikayat hai?
Ans. Papa gandi bat karte the. Meri behein ko pas sulate
the aur patak dete the. Mere muh me dalte the. Mere
piche bhi dalate the aur aage bhi.

Q. Beta piche aur aage kaha par ?
Ans. (The witness has pointed towards her anal region
and then her vaginal region to show what she means
by piche lagate the aur aage lagate the.)

Q. Woh kya lagate the?

Ans. Woh jo unke aage hota tha, the witness
has pointed towards her vaginal region to indicate that
it was from that region of her father’s body that he
did something to her.

Q. Tab aap kya karte the?

Ans. Papa rat me jagate the. Tab mummy so jati thi.
Mujhe uthate the aur phir karte the.

Q. Aur kya karte the ?

Ans. Mere Papa mujhe mana karte the, maine
kisi ko nahi bataya. Mummy ko bhi nahi.

Q. Aap ke papa aur kya karte the ?
Ans. Merese kaddi nahi banati thi, toh mujhe marte
the, main baki sab khana bana leti hua.

Q. Yeh baat apne kisi ko batai thi ?
Ans. Apni tuitionwali madam ko batai thi.

Q. Unko kaise batai thi ?

Ans. Me kiraye par rehati hua, hamare upar ek ladaki
rehti hai.Usko pata tha ki mere papa galat baat karte
hai. Usne madam ko bataya aur madam ne mere
se pucha.

Q. Us ladki ko kisne bataya ?

Crl.A. 270/2014 Page 4 of 9

Ans. Uski behein mere ghar aati thi. Darwaja bhida
hua (half closed) tha. Usne mere papa ko dekha tha.

In response to questions put to her in her cross-
examination, the prosecutrix deposed that :

Q. Aap ke papa savere factory jate the ?
Ans. Ha. Jab late ho jate the toh nahi jate the. Kabhi
kabhi raat me bhi kam par jate the.

Q. Aap ki mummy kab kaam par jati hai aur kab kaam
se aati hai?

Ans. Mummy nau (9) baje jati hai aur nau (9) baje aati
hai, aate aate sade nau (9:30) baj jate hai, mein badi hua
khana mein banati hu.

Q. Apke chote bhai behein kis ke paas rehte hai ?
Ans. Woh mere paas rehte hai.

Q. Aap toh school jati thi, toh unko kaun dekhta tha ?
Ans. Pehle nahi jati thi, mummy naam nahi likhati thi.

Q. Aap tuition kab jati thi ?

Ans. 3 – 4 baje.

Q. Tab bhai behein ko kaun dekhta tha ?
Ans. Mere bhai behein bhi jate the.

Q. Aap ke ghar me kitne kamare hai ?
Ans. Ek.

Q. Aap sab kaha sote ho ?

Ans. Hum sab kamare me jamin par sote hai.

Q. Aap ko aaj kya kehana hai kisi ne bataya tha ?
Ans. Nahi.

Q. Aap jo kaha mummy ke kehne par kaha ?

Crl.A. 270/2014 Page 5 of 9

Ans. Nahi.

Q. Jo aunty aap ko aaj layi hai unhone bataya hai
aapko kya kahana hai ?

Ans. Nahi.”

5. On scrutinising the testimony of the child witness in its
entirety, it stands established that it was the appellant who defiled the
prosecutrix, his own daughter, taking advantage of the absence of his
wife. The material facts deposed by the victim in examination-in-
chief remained unchallenged and uncontroverted in the cross-
examination. No ulterior motive was assigned to the child witness to
make a false statement against her own father upon whom she was
dependent economically. It was not an easy task for the child to
implicate her own father for the heinous offence. She did not dare to
lodge any complaint against him for long and suffered in silence.
Only when PW-14 (Devki Sharma), her teacher in the institution
noticed some blue marks of beating on her back and she enquired
about it from the child, she came to know the entire incident. She was
informed by the prosecutrix, “papa mere sath ganda kaam karte hai”.
When asked “kaisa ganda kaam karte hai”, she responded “Din main,
Mummy job par chali jati hai, papa apni chaddi utar dete hai, aur meri
chaddi bhi utar dete hai, aur galatkam karte hai”. She further told
“papa bathroom wala hissa mere muh me dalte hai, piche bhi dalte hai
aur aage bhi dalte hai.” The prosecutrix pointed towards her anus and
vaginal region while explaining the terms “aage piche”. It led PW-14
(Devki Sharma) to contact her mother PW-13 (Asha Devi).

Crl.A. 270/2014 Page 6 of 9

6. PW-14 (Devki Sharma) has corroborated victim’s version
without any material improvement. She also deposed that the victim
had disclosed to her about the sexual assault by her father. When she
contacted the victim’s mother, she showed ignorance; she was
counselled and taken to police station. No extraneous consideration
was imputed to this independent witness for falsely implicating the
appellant in the crime. The witness had no axe to grind and did not
nurture any animosity against him to concoct a false story. The
prosecutrix was not expected to be instigated or tutored by this witness
without any rhyme or reason. It is not believable that the child would
implicate her own father on PW-14 (Devki Sharma)’s behest.

7. Statement of PW-13 (Asha Devi) is in consonance with
the testimony of the prosecutrix and PW-14 (Devki Sharma). The
Trial Court has discussed in detail the statements given by them.
Similar is the statement of PW-5 (Rajesh Kumar), Welfare Officer at
Janhit Society; he came to know about the sexual assault by the
appellant upon his daughter from PW-14 (Devki Sharma). After
finding the truth in the story, they took the prosecutrix and her mother
to the police station and got the case registered.

8. The ocular testimonies of the witnesses referred above
are supplemented by medical evidence too. Soon after the lodging of
the report, ‘X’ was medically examined. PW-8 (Dr.Seema) has
proved the victim’s MLC (Ex.PW-8/A) prepared by Dr.Gopal Krishna
and Dr.Poonam. Dr.Poonam in the MLC observed “hymen broken,
admitted one finger, no fresh bleeding per vagina, anal opening shows
no cuts, benigen bleeding”. She further opined at point ‘Z’ “sexual

Crl.A. 270/2014 Page 7 of 9
assault, hymen broken”. The witness was not cross-examined.
Apparently, the child had lost her virginity. The appellant who was
expected to take care the child did not explain as to who else was
responsible for defiling his daughter. Similar is the testimony of PW-
9 (Dr.Gopal Krishna).

9. In 313 Cr.P.C. statement the appellant did not furnish any
explanation to the incriminating circumstances proved against him.
He did not divulge as to what had forced the prosecutrix and her
mother to level serious allegations of sexual assault against him. In the
absence of any prior dispute or quarrel in the family, the child ‘X’ was
not expected to involve her own father to bring herself in disrepute.
Her statement is consistent throughout; her evidence inspires complete
confidence. It can be relied upon without seeking further
corroboration. Nothing has emerged on record to suspect if victim’s
statement is at the behest of someone else. The Court is conscious
that a child is susceptible to be swayed by the others and can be an
easy prey to tutoring. But it is not the case in the instant case. The
child was under fear and did not disclose the occurrence to her mother
and anyone else. Only when PW-14 (Devki Sharma) chanced upon
something amiss, she was able to extract real cause. The child
apprised her plight and ordeal to her.

10. The impugned judgment based upon fair appreciation of
evidence warrants no intervention. Conviction is affirmed.

11. Regarding sentence, the appellant does not deserve any
leniency. Being the father of the child of tender age, it was his duty to
secure her welfare and to protect her from the evil eyes of others.

Crl.A. 270/2014 Page 8 of 9

Contrary to that, he himself indulged in a dehumanizing act and
violated the privacy and sanctity of his own daughter. Sentence Order
needs no modification.

12. The appeal lacks merits and is dismissed.

13. Trial Court record be sent back forthwith with the copy of
the order.

14. Intimation be sent to the Superintendent Jail.

S.P. GARG
(JUDGE)

C.HARI SHANKAR
(JUDGE)

JANUARY 15, 2018 / tr

Crl.A. 270/2014 Page 9 of 9

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