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Deepak @ Deepchand vs State on 1 June, 2017

% Decided on: 1st June, 2017

+ CRL.A. 512/2016

….. Appellant
Represented by: Mr. Harsh Prabhakar, Advocate
(amicus curiae) and Mr.
Anirudh Tanwar, Advocate.

STATE ….. Respondent
Represented by: Mr. Ravi Nayak, APP for the
State with SI Jasmer Singh PS
Jahangir Puri.


1. Convicted for offences punishable under Sections 363/342/376(2)/323
IPC Deepak @ Deep Chand challenges the impugned judgment dated 4 th
February, 2016 and the order on sentence dated 6 th February, 2016 directing
him to undergo rigorous imprisonment for a period of seven years and to pay
a fine of `8,000/- for the offence punishable under Section 363 IPC, rigorous
imprisonment for a period of one year and to pay a fine of `1,000/- for the
offence punishable under Section 342 IPC, rigorous imprisonment for a
period of ten years and to pay a fine of `20,000/- for the offence punishable
under Section 376(2) IPC and rigorous imprisonment for a period of one
year and to pay a fine of `1,000/- for the offence punishable under Section
323 IPC.

CRL.A. 512/2016 Page 1 of 10

2. Assailing the conviction, learned Counsel for the appellant contends
that there is a delay in reporting the matter to Police. Though even as per
case of the prosecution, the prosecutrix reached back to her grand-mother on
6th February, 2010 in the morning, however till 7th February, 2010 no PCR
call was made and only after informing Bhoop Singh a call was made at
10.17 PM. Further even compliance as mandated under Section 157 Cr.P.C.
was not done immediately and the copy of the FIR was received by the
learned Metropolitan Magistrate on 11th February, 2010. After the PCR call
was made at 10.17 PM on 7th February, 2010 the return information sent by
the PCR was that no rape has been committed. Though in the statement of
the grand-mother on the basis of which FIR was registered, particulars of the
place where the prosecutrix was allegedly raped were not given, however in
the Tehrir recorded by the investigating officer it was stated that the offence
of rape took place at “Mahender ka Makan”. There is no explanation as to
how the place of occurrence was added in the Tehrir. Further during the
course of investigation, a status report was filed by the Police which was
accompanied by the statement of the landlady of the house where the
appellant was residing. She stated that the appellant was residing at H.No.
2/420, Shah Alam Band, Jahangir Puri since many years. Thus learned
counsel for the appellant seeks to draw an inference that the appellant was
not residing at “Mahender Ka Makan”. Reliance is placed on the decisions
reported as 228 (2016) DLT 162 (DB) Vishal Vs. State and 2016
LawSuit(Del) 2525 Mohd. Hanif; Mohd.Rafiq; Mirazuddin; Sirazuddin Vs.
State. There are material contradictions and improvements in the statements
of the prosecutrix and her grand-mother, thus the appellant is liable to be

CRL.A. 512/2016 Page 2 of 10

3. Learned APP for the State on the other hand contends that though the
sister and uncle of the prosecutrix appeared as witnesses, however they were
not cross-examined. Even in cross-examination of the grand-mother though
delay was put to her, however she was not asked to explain the reasons for
delay in lodging of the FIR. The delay in lodging of the FIR has however
been explained by the grand-mother who deposed that after the prosecutrix
informed her of the incident, they tried to search the appellant and wanted to
confront him, however since he was not available, the facts were informed to
Bhoop Singh who made a PCR call. He further states that to challenge the
factum of noting “Mahender Ka Makan” as the place of incident, the
investigating officer ought to have been cross-examined which was not done
and hence now no such plea of the appellant can be entertained. Further
mother of the prosecutrix was dropped as a witness as her statement under
Section 161 Cr.P.C. was not recorded and Mahender was dropped as he was
not traceable. From testimony of the witnesses, facts that the prosecutrix left
the home in the afternoon of 5th February, 2010; came back only in the
morning of 6th February, 2010 and was picked up by the grand-mother and
her sister from the bus stop after information was given by the appellant have
been proved beyond reasonable doubt. The alleged improvements in
statements of the prosecutrix and her grand-mother are not material in nature
and do not go to the root of the matter.

4. Process of law was set into motion on receipt of DD No. 25A at 10:20
P.M. on 7th February, 2010 at PS Jahangir Puri informing that a woman has
been raped at H-2 Block, Shah Allam Bandh, Sai Baba Mandir near Jahangir
Puri. SI Umed Singh along with Ct. Jasbir went to the spot and met
grandmother of the prosecutrix and the prosecutrix. Thereafter, he informed

CRL.A. 512/2016 Page 3 of 10
W/SI Sushila and went back to the police station along with the prosecutrix
and her grandmother. The prosecutrix was taken to BJRM Hospital for
medical examination. Though the MLC was prepared, however, the doctor
refused to perform internal examination as mother of the prosecutrix was not
present. On 8th February, 2010 itself the prosecutrix was again taken to
BRJM Hospital for her medical examination. Thereafter, statement of
grandmother of the prosecutrix was recorded, on the basis of which FIR
bearing number 50/2010 was registered under Sections
363/342/376(2)(f)/506 IPC. During the course of investigation, Deepak @
Deep Chand was apprehended at the instance of the prosecutrix from House
Number 1144, Gali Number 2, Khadda Colony. Statement of the prosecutrix
was recorded under Section 164 Cr. P.C. vide Ex. PW-11/A.

5. During the course of trial, Principal, Primary School appeared as
PW18 and furnished copy of the admission register Ex. PW-18/A, copy of
admission form Ex. PW-18/B and copy of affidavit executed by mother of
prosecutrix Ex.PW-18/C and stated that the date of birth of the prosecutrix,
as per the school record, is 28th April, 2005.

6. After satisfying that the prosecutrix PW-2, who was aged 8 years at
the time of incident, was capable to understand the questions and give
rational answers and competent to depose correctly about the incident, the
learned Additional Sessions Judge recorded the statement of the prosecutrix.
The prosecutrix stated that on 5th February, 2010, Deepak @ Deep Chand
was standing near Sai Baba Mandir and she was peeling off ‘cholia’ outside
her house. Deepak @ Deep Chand called her to the Mandir. When she went
there, he took her to a room in Swaroop Nagar. She requested him to drop
her at her house as it was night but he refused. He closed the door and

CRL.A. 512/2016 Page 4 of 10
removed her underwear. He also removed his underwear after which he lay
down over her. Thereafter, he put his urinating organ in her urinating part.
When she felt pain and cried, he pressed her mouth with his hand. He
threatened to kill her if she made any noise. He made her hold his penis and
shake the same. He also slapped her and kept her in the room the whole
night. Next day, in the morning, he made her sit in a bus which went to
Jahangir Puri and asked the driver to drop her at 100 number bus stand.
When she got down, she met her grandmother and sister to whom she
narrated the entire incident. During her cross examination, she stated that
when the appellant was taking her from Jahangir Puri to Swaroop Nagar by
bus, neither did she complain nor did she raise her voice to the passengers
that the appellant was taking her forcibly. She further stated that Mahender
was occupying the room adjacent to the room where “galat kaam” took
place. However, she did not go to the room of Mahender to inform him about
the “galat kaam”. She further stated that there was no bleeding when the
“galat kaam” was committed by the appellant.

7. PW-4 grandmother of the prosecutrix deposed that her elder son was
married and had three sons and two daughters. His son became mentally
imbalanced and left the house. Deepak @ Deep Chand is the son of her
brother in law. After her son left, she married her daughter-in-law i.e. mother
of the prosecutrix to Deepak @ Deep Chand. On 5th February, 2010, around
6:00 P.M., when she returned home after work, she found that the
prosecutrix was not at home. She was informed that the appellant had taken
the prosecutrix. However, she kept on searching for the prosecutrix. On 6th
February, 2010, she received a call from the appellant stating that there was
nothing to worry and asked her to reach 100 number bus stand. She along

CRL.A. 512/2016 Page 5 of 10
with her granddaughter i.e. sister of the prosecutrix went to the bus stand.
Prosecutrix got down from the bus. She was not accompanied by the
appellant. Clothes of the prosecutrix were torn. Thereafter, the prosecutrix
narrated the entire incident to her and her sister.

8. PW-6, sister of the prosecutrix corroborated the testimony of the
prosecutrix and her grandmother.

9. PW-3 Dr. Sumitra, SR, Gynaecology, BRJM Hopital, was deputed on
behalf of Dr. Mamta who had prepared the MLC of the prosecutrix, who
deposed and exhibited the MLC vide Ex.PW-3/A. As per the MLC, on local
examination, there was no sign of external injury over breast, mouth, lips
and abdomen. Pubic hair were not developed, libia majora and minora were
normal, hymen was torn, bruising was present and there was no fresh

10. PW-19 Ms. L. Babyto Devi, Sr. Scientific Officer, FSL, Rohini
prepared the FSL report Ex. PW-19/A and the serological report Ex. PW-
19/B. As per Ex.PW-19/A, semen was detected on the underwear of the

11. In respect of the contention of learned counsel for the appellant that
there is delay in compliance in terms of Section 157 Cr.P.C. it is required to
be noted that FIR was registered on 8th February, 2010 at 11.15 AM and on
the same day appellant was arrested. Thus, he was produced before the
learned Metropolitan Magistrate within 24 hours of the arrest when the case
diary was also produced. Thus the delayed submission of the special report
to the learned Metropolitan Magistrate on 11th February, 2010 is not fatal to
the case of the prosecution. The delay in lodging of the FIR from the
morning of 6th February, 2010 to the late night of 7th February, 2010 has

CRL.A. 512/2016 Page 6 of 10
been duly explained from the deposition of the grand-mother of the
prosecutrix who stated that after the prosecutrix informed her of the incident
she tried to find out the appellant as he was living in the same house and had
got married to the mother of the prosecutrix after the father of the prosecutrix
went missing and only after his whereabouts were not known and he was not
traceable, she informed about the incident to her son who made the PCR

12. As regards mentioning of the place of incident being “Mahender Ka
Makan” in the Tehrir it may be noted that the investigating officer PW-20 SI
Sushila Rana had made enquiries from the grand-mother and the prosecutrix
where after they were taken to the hospital and only after getting the MLC of
the prosecutrix prepared wherein the Doctor did not gynecologically
examine the prosecutrix for the reason that the mother of the prosecutrix was
not present, whereafter formal FIR was lodged on the statement of
grandmother of the prosecutrix. Thus it cannot be ruled out that the place of
offence being noted as “Mahender Ka Makan” in the Tehrir was on the basis
of the inquiry. In any case on this issue there is no cross-examination of SI
Sushila Rana who would have been the relevant witness to explain how she
noted this fact in the Tehrir. In the absence of cross-examination of the
material witness on this count in view of the decision of the Supreme Court
reported as (1998) 3 SCC 561 State of U.P. Vs. Nahar Singh it cannot be
adversely used against the prosecution.

13. The return PCR call though noted that “rape Nahin Hain”, however it
also notes that Chacha of the prosecutrix who was aged 10 years has done
“Galat Kam” with her. Since this witness from the PCR has not been
examined and the information being hearsay, the appellant cannot take

CRL.A. 512/2016 Page 7 of 10
advantage of this fact. Further the status report which accompanied the
statement of the landlady of the house where allegedly the appellant was
residing has not been exhibited during the course of trial. The statement so
recorded at best can be used as a previous statement of the landlady who has
not been examined in the Court. Further as per the statement of the landlady,
the appellant was residing at H.No. 2/420, Shal Alam Band, Jahangir Puri. It
is not the case of the prosecution that she was raped by the appellant at his
second house and the same is not sufficient to rule out that no offence took at
the place alleged.

14. As per learned counsel for the appellant the improvements/
contradictions in the statement of the prosecutrix were that though in her
statement under Section 161 Cr.P.C. she stated that the appellant lay upon
her and committed rape, however in her statement recorded under Section
164 Cr.P.C. she stated that the appellant committed “Galat Kam” with her,
that he was forcing her and made her hold his penis in her hand. In her
statement before the Court the prosecutrix stated that the appellant lay upon
her and committed rape and also asked her to hold his penis. A perusal of
the three statements show no contradictions or variations except that the
words used are different. Further in her deposition before the Court the
prosecutrix stated that the appellant called her to Mandir, however this fact
was neither stated in her statement under Section 161 Cr.P.C. nor under
Section 164 Cr.P.C., does not go to the root of the matter. Moreover, in her
statement under Section 161 Cr.P.C. prosecutrix stated that her uncle made a
call to the Police whereas in her deposition she stated that a call was made by
her grand-mother would also not discredit the version of the prosecutrix, as
the prosecutrix was examined in Court nearly one and a half years after the

CRL.A. 512/2016 Page 8 of 10
incident and these minor aberrations will not discredit her otherwise reliable

15. From the testimony of the prosecutrix, her grand-mother and sister, the
prosecution has proved beyond reasonable doubt that the prosecutrix had
gone missing from her house from the afternoon of 5th February, 2010 and
came back only on 6th February, 2010 in the morning and was picked up at
the bus stop which fact was informed by the appellant to the grand-mother of
the prosecutrix. The version of the prosecutrix is consistent that the
appellant took her to a place and committed rape on her besides other sexual
activities. Further the semen could not be detected on the vaginal swabs etc.,
for the reason there was delay in the medical examination of the prosecutrix
as the FIR was got lodged only on the intervening night of 7 th and 8th
February, 2010 and further she was gynecologically examined only on 8 th
February, 2010 in the late evening. The prosecutrix was aged 9 years at the
time of incident and soon after the incident her hymen was found torn with
bruising on the vaginal area.

16. It is well settled that even on the uncorroborated testimony of the
prosecutrix if the same is reliable, conviction for an offence of rape can be
based. [See (1993) 2 SCC 622 State of Himachal Pradesh Vs. Raghubir
Singh and (2012) 7 SCC 171 Narender Kumar Vs. State.] In the present case
the version of the prosecutrix is duly corroborated by her grand-mother,
sister and her MLC. Further even as proved by the prosecution, the
prosecutrix was in the company of the appellant since the evening of 5 th
February, 2010 till the morning of 6th February, 2010 and thus in terms of
Section 106 of the Evidence Act onus shifts upon the appellant to explain as
to how she was ravished at the time when she was in his custody, which he

CRL.A. 512/2016 Page 9 of 10
has miserably failed to do. Explanation of the appellant in his statement
under Section 313 Cr.P.C. being bald denial on these facts and stating that he
was innocent and falsely implicated does not come to his aid. Consequently,
the appeal is dismissed. Judgment of conviction and order on sentence are
upheld. The appellant will undergo the remaining sentence.

17. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record and intimation to the appellant.

18. TCR be returned.

JUNE 01, 2017

CRL.A. 512/2016 Page 10 of 10

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