Naresh Kumar vs State on 9 February, 2018

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Judgment reserved on : 07.02.2018
Judgment delivered on :09.02.2018

+ CRL.A. 549/2011

NARESH KUMAR ….. Appellant

Through: Mr R.D. Chauhan, Adv with appellant
in person

versus

STATE ….. Respondent

Through: Ms Neelam Sharma, APP with SI
Anupama Rathi

CORAM:

HON’BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1. This appeal has impugned the judgment and order on sentence dated

25.03.2011 and 26.03.2011 respectively wherein the appellant stood

convicted under Section 376 r/w Section 511 IPC as also for the second

offence under Section 506 IPC; for his first conviction he has been sentenced

to undergo rigorous imprisonment for a period of 5 years and to pay a fine of

Rs. 2000/- in default of payment of fine to undergo SI for a period of one

month; for his second conviction, he has been sentenced to undergo RI for a

CRL A. 549/2011 Page 1 of 12
period of one year. Both the sentences were to run concurrently; benefit of

Section 428 of the Cr.P.C had been granted to the appellant.

2. The nominal roll of the appellant has been requisitioned. This reflects

that as on the date when his sentence was suspended, he had undergone

incarceration of about 2 years 4 months which included the remissions

earned by him.

3. Record shows that the present FIR has been registered initially under

Section 354 of the IPC. The FIR was registered on 22.05.2008 on the

statement of the mother of the victim namely Ruby. Pursuant thereto the

statement of the victim was recorded under Section 164 of the Cr.PC before

the learned M.M. on 31.05.2008; the FIR was thereafter converted from an

offence under Section 354 IPC to an offence under Section 376 of the IPC.

The conviction as noted supra was a conviction under Section 376 IPC r/w

Section 511 and Section 506 of the IPC.

4. The case of the prosecution is that on the fateful day i.e. on

22.05.2008 the complainant Ruby had made a complaint at about 8 pm in the

evening alleging that the accused had attempted to rape her minor daughter

aged about 7 years and had threatened to kill her; he had also threatened her

not to disclose the incident to any person. The accused was absconding; he

CRL A. 549/2011 Page 2 of 12
could not be arrested till 03.03.2009.

5. The prosecution had examined 13 witnesses to prove its case. The star

witness being PW1(S.J). PW1 was a minor aged about 7 years. Her

statement without oath was recorded on 04.09.2009; this deposition matches

the statement made by her to the Magistrate under Section 164 of the Cr.P.C

which had been recorded on 31.05.2008. She had described the incident in

detail both in her statement recorded under Section 164 Cr.P.C as also her

version in Court.

6. PW1 used to take tuitions from the accused. The tuition fee of Rs

150/- was being paid by her mother to the appellant. She deposed that earlier

the victim used to go to the house of the appellant to take tuitions but later on

he started teaching her at her home; at the time of the incident she was in the

3rd standard. The appellant used to ask her to remove her underwear and

would lie on top of her; he would also remove his own underwear and lie on

top of her; he thereafter did a „gandi harkat’. She has further described the

manner in which the appellant used to put his urinating organ into her

private part; she used to feel pain. He threatened to beat her in case she

disclosed this incident to any person. On the fateful day at about 8 pm when

her mother came inside the room to pick up a bucket she saw the accused

CRL A. 549/2011 Page 3 of 12
doing the act; on seeing her the appellant fled from the spot. The victim was

taken to the police station; she was medically examined on the same day.

7. In her cross examination she had stuck to her stand; she did not

deviate. Her credibility could not be tarnished. She repeated the manner in

which the accused used to perform the unholy act upon her person. He did

this act several times earlier also in fact around 50 times. He used to bolt the

door of the room before doing the act. She did not disclose this incident to

her parents as the accused had threatened her that he would kill her and her

parents in case she told any person about it. She denied the suggestion that

she is lying or has made a false statement. Relevant would it be to note that

in her entire version no suggestion has been given to her as to why she would

make a false statement. It is not the case of the defence that she has made a

false statement or has given an incorrect version for any enmity which the

victim and her family had harbored against the accused.

8. This court also notes that the statement of the prosecutrix was

recorded for the first time under Section 164 of the Cr.P.C on 31.05.2008.

The argument of the learned counsel for the appellant that the FIR has given

a different version and is not in consonance with the statement made on

31.05.2008 is an argument which this Court has to necessarily reject. This is

CRL A. 549/2011 Page 4 of 12
for the reason that the FIR had been registered on 22.05.2008 on the

statement of Ruby who is the mother of the victim and obviously she did not

know what had actually transpired with the victim. This could only be

gathered in the statement of the victim which at the cost of the repetition was

recorded on 31.05.2008.

9. The statement of the complainant (Ruby) pursuant to which an FIR

had been registered was an eye witness account of what Ruby had seen at the

time when the accused was in the process of committing this act upon her

daughter. The FIR has disclosed this in detail. In her statement on oath in

Court, Ruby (PW4) had reiterated this version. She had deposed that on the

fateful date i.e. on 22.05.2008 at about 7.30 – 7.45 pm since it was raining

she went inside the jhuggi with a bucket for putting the same under the roof

where there was a leakage. The accused was giving tuition to her daughter

inside the jhuggi. When she entered the jhuggi she saw her daughter lying

naked and the accused was lying upon her. The accused was also naked at

that time. PW4 tried to catch hold of the accused but he fled from the spot.

The complainant reported the matter to police on the same day and her

statement (Ex.PW4/A) was recorded pursuant to which the FIR was

registered.

CRL A. 549/2011 Page 5 of 12

10. In her cross examination the credibility of this witness has also not

been destroyed. She has admitted that a monthly tuition fee of Rs. 150/- was

being paid to the appellant for giving tuitions to her daughter. The appellant

used to give tuition in the evening; since the complainant was running a shop

over her jhuggi and she was busy in the evening time she hardly used to visit

the jhuggi in the evening as there were several customers at that time at her

shop. On the fateful day it was raining; she knew there was a leakage in the

jhuggi and that is why she went to put a bucket inside the jhuggi when she

saw the incident as narrated by her in Ex.PW4/A. She denied the suggestion

that her daughter was tutored by her. She denied the suggestion that she is

deposing falsely. Relevant would it be to note that no suggestion has been

given to this witness either that PW4 was deposing falsely for some ulterior

purpose; it is not the version of the defence that PW4 was harboring any

grudge against the appellant or for that reason she was deposing falsely or

for that reason she had tutored her daughter to depose falsely.

11. The medical evidence adduced by the prosecution is also relevant.

The MLC of the victim was proved by PW8 Dr. Vineet Soni (Ex.PW8/A).

No injuries were noted upon her person. Dr. Sarika Verma (PW12) had

examined the victim. The MLC had been prepared by her Ex.PW8/B. She

CRL A. 549/2011 Page 6 of 12
had deposed that on local examination the hymen of the victim was found to

be intact. There was no injury or laceration which had been seen. The

history disclosed by her mother had been recorded in the MLC which was to

the effect that she was sexually assaulted by her tutor while her mother was

not there; her mother had witnesses this incident when she had gone to put a

bucket in the jhuggi due to leakage because of rain water.

12. The investigating officer has been examined as PW10.

13. In the statement of appellant recorded under Section 313 Cr.P.C he

has made a simplicitor statement that he is innocent and has been falsely

implicated. He did not lead any evidence in defence.

14. On behalf of the appellant, the first and foremost argument of the

appellant is that there are improvements in the version of the victim and her

version does not match the version of her mother. This court has already

partially answered this argument while discussing the testimony of PW1.

This court is of the firm view that the statement of the victim having been

recorded on 31.05.2008 for the first time under Section 164 Cr.P.C and the

FIR having been registered on the version of her mother on 22.05.2008, the

two versions cannot obviously be the same. That apart on 22.05.2008 the

mother of the victim had clearly described the incident in the manner in

CRL A. 549/2011 Page 7 of 12
which she had witnessed it; she had eye witnessed the accused lying naked

upon the naked body of her minor daughter and attempting to do an unholy

act upon her. PW4 appears to be wholly honest. She had described this act

as „ched chaad’ which she had also been asked to clarify in her subsequent

supplementary statement. The hymen of the victim was intact.

15. At the cost of repetition, the statement of the victim had also described

the manner in which accused used to perform the act upon her. Although in

one part of her version she has stated that he had committed rape upon her

but this court notes that the victim was a 7 year old child and coming from

an illiterate background would not know the nuances or the details of the

word “rape” or the distinction between rape or an attempt to rape. Her

testimony is otherwise consistent on all squares which was to the effect that

the appellant used to perform a „gandi harkat’ upon her; in both her versions

under Section 164 of the Cr.P.C as also her deposition in court she has stated

that appellant used to remove his clothes; he used to remove the clothes of

the victim and then lie upon her and do the „gandi harkat’. The details of the

„gandi harkat’ at the cost of repetition would not be really known to

such a child victim who not being educated and probably not

having heard the word „rape‟; her otherwise description of the incident is

CRL A. 549/2011 Page 8 of 12
a sufficient proof of the conviction which has followed in this case. This

court also notes that at the time when the victim was taken for her medical

examination which was immediately after the incident, the MLC had noted

that the victim was not wearing her undergarments which also substantiates

and supports the statement of PW4 and PW3. The conviction of the

appellant under Section 376 Cr.P.C r/w Section 511 of the IPC does not

suffer from any infirmity.

16. Reliance by the learned counsel for the appellant on the judgment of

the Supreme Court in AIR 2001 SC 3049 Dilip and Anr vs State of M.P is

misplaced. This is not a case of any contradiction by the witness; there is no

doubt that under Section 145 of the Evidence Act the defence has the right to

discredit the testimony of a witness by accosting her with her earlier

statement; the argument of the learned counsel for the appellant that the

version of the mother of the victim does not match that of the victim‟s is,

however, a submission which cannot come within the ambit of Section 145

of the Evidence Act. This judgment has no application to the facts of this

case. The applicability of second judgment relied upon by the learned

counsel for the appellant reported as 1974 AIR SC 117 Bishwanath Prasad vs

Dwarka Prasad is also an argument to be noted to be rejected. This is also

CRL A. 549/2011 Page 9 of 12
on the provisions of
Section 145 of the Evidence Act. As noted supra there

is no improvement in the version of PW1 which had been consistent qua her

earlier statement given under Section 164 Cr.P.C before the learned M.M.

PW1 is a consistent and steady witness; PW4, the mother of the witness has

also been honest. She had in her initial statement disclosed that when she

saw the accused, he was in a naked form and so also was her daughter and he

was lying upon her and doing some ched chaad.

17. The Supreme Court in AIR 2012 SC 2254 Jugendra Singh vs State of

U.P in the context of appreciation of evidence has held inter alia as under:-

“The court while appreciating the evidence must not attach

undue importance to minor discrepancies. The discrepancies

which do not shake the basic version of the prosecution case

may be discarded. The discrepancies which are due to normal

errors of perception or observation should not be given

importance. The errors due to lapse of memory may be given

due allowance. The court by calling into aid its vast experience

of men and matters in different cases must evaluate the entire

material on record by excluding the exaggerated version given

by any witness. When a doubt arises in respect of certain facts

CRL A. 549/2011 Page 10 of 12
alleged by such witness, the proper course is to ignore that fact

only unless it foes into the root of the matter so as to demolish

the entire prosecution story. The witnesses nowadays go on

adding embellishments to their version perhaps for the fear of

their testimony being rejected by the court. The courts,

however, should not disbelieve the evidence of such witnesses

altogether if they are otherwise trustworthy.”

18. The conduct of the accused is also not worthy. This is a relevant fact

under Section 9 of the Evidence Act. He had fled from the spot. The

incident is dated 22.05.2008. He has been arrested only in March 2009.

There is also no reason why the accused would have been falsely implicated.

Neither has any specific suggestion been given by the defence counsel to the

relevant witnesses (PW3 and PW4) on this count and neither has any such

statement appeared in the statement of the appellant recorded under Section

313 of the Cr.P.C.

19. The conviction of the appellant under Section 376 r/w Section 511 of

the IPC suffers from no infirmity. The sentence of 5 years RI also is a

sentence which cannot really be faulted with noting the nature of the crime.

The victim a 7 year old girl has been attacked not only in body but also in

CRL A. 549/2011 Page 11 of 12
mind; the psychological and emotional distress suffered by her would

probably not wean out from her system for years together.

20. The courts have time and again held that a demand for justice and the

award of punishment have to be in consonance with one another. There are

no mitigating circumstances in favour of the appellant to give him sentence

lesser than that which has already been awarded to him. The appeal is

without any merit. It is dismissed.

21. The appellant who is on bail be taken into custody forthwith to serve

the remaining sentence.

22. Appeal disposed of in the above terms.

INDERMEET KAUR, J
FEBRUARY 09, 2018
SU

CRL A. 549/2011 Page 12 of 12

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