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Rajesh Kumar vs State Of Delhi on 30 March, 2017

$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI

DECIDED ON : MARCH 30, 2017

+ CRL.REV.P. 811/2016

RAJESH KUMAR ….. Petitioner
Through : Mr.Kedar Yadav, Advocate with
Mr.S.K.Solanki Mr.Hemant
Sharma, Advocates.

VERSUS

STATE OF DELHI ….. Respondent
Through : Mr.Amit Gupta, APP.

CORAM:
HON’BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

1. Present Revision Petition under Section 397/401 Cr.P.C. has
been filed by the petitioner to impugn a judgment dated 1.12.2016 of learned
Additional Sessions Judge in Crl.A.No.204341/2016 whereby conviction
and sentence recorded by the learned Metropolitan Magistrate by orders
dated 23.12.2015 and 23.01.2016 were upheld. The petitioner had suffered
conviction in case FIR No.55/12 registered at Police Station Okhla for
commission of offence punishable under Sections 341/354 IPC. He was
sentenced to undergo Simple Imprisonment for six months under Section
354 IPC and to pay fine Rs.5,000/- under Section 341 IPC. The petition is
contested by the State.

Crl.Rev.P.811/2016 Page 1 of 4

2. I have heard the learned counsel for the parties and have
examined the file. The prosecutrix ‘X’ (changed name) and the petitioner
were known to each other as they lived in the same vicinity. The victim was
a school going child, aged about 15 years. Crime took place on 25.02.2012
at around 1.00 p.m. when the victim ‘X’ was on her way to home from
school. When she arrived in a lane, the petitioner forcibly restrained her;
pulled her inside his house; and attempted to kiss her. On her raising alarm
and after getting herself released, ‘X’ managed to reach her residence. She
informed her brother Mahesh about the incident who in turn called the police
at 100.

3. DD No.11 came to be recorded at 1.27 p.m. at Police Post OIE
Phase III, New Delhi, on that day. There is specific mention that some boys
had teased the caller’s sister. The investigation was assigned to SI Vinod
Kumar who along with Ct.Amit went to the spot. After recording victim’s
statement (Ex.PW-1/A), FIR was lodged. In the complaint, the victim gave
detailed account as to how and in what manner, her modesty was outraged.
The petitioner was named in the FIR and specific role was assigned to him.

4. The victim appeared as PW-1 in the Court. Before recording
her statement, the learned Presiding Officer had put various questions to
ascertain if she was competent to make the statement and it was without any
fear or pressure. After recording her satisfaction, the learned Presiding
Officer recorded the victim’s statement. ‘X’ proved her version given to the
police at first instance without any variation. She reiterated that on her
returning from school, when she was present in the lane, the accused tried to
pull her inside the house; he then kissed her forcibly against her wishes.
She, somehow, managed to escape and after coming to house, informed her

Crl.Rev.P.811/2016 Page 2 of 4
mother and brother. The police recorded her statement (Ex.PW-1/A). In
the cross-examination, she denied if the accused was falsely implicated due
to any dispute with her family members.

5. On scrutinizing the testimony of the victim in its entirety, it
transpires that nothing material has been elicited in the cross-examination to
suspect her version. The petitioner did not deny his presence at the spot on
the relevant date. Material facts attributed to him remained unchallenged and
unassailed in the cross-examination. The accused did not elaborate as to
what was the cause of dispute with the victim’s family compelling them to
rope him in the crime. No ulterior motive was assigned to the child witness
to make a false statement to bring herself in disrepute.

6. Victim’s statement has been corroborated on material
particulars by her brother PW-2 – Mahesh. He also declined in the
cross-examination if there was any dispute or animosity with the petitioner
prior to the incident.

7. No valid reasons exist to disbelieve the prosecutrix, the child
witness who has assigned a definite and specific role to the accused in the
occurrence. In 313 statement, the petitioner did not give plausible
explanation to the incriminating circumstances proved against him. He
came up with the plea that due to hurry to reach his shop he had collided
with the victim and had no intention to outrage her modesty. The defence
deserves outright rejection. For an unintentional collusion, the victim was
not expected to level serious allegations against her acquaintance whereby
attempt was made to kiss her. No such suggestion of accidental collusion
was put in her cross-examination. Presence of DW-1(Bunty) at the spot at
the time of occurrence was not suggested in the cross-examination to any

Crl.Rev.P.811/2016 Page 3 of 4
prosecution witness. The accused did not produce on record any document
to show if any quarrel over any issue had ever taken place with the family
members of the victim prompting her to lodge a false complaint against him.
No detailed particulars of any such incident have surfaced on record. In the
absence of prior animosity or ill-will, the child witness who has nothing to
do with any trivial issue of her family with the petitioner is not imagined to
make a false statement.

8. The findings of the courts below based upon fair appreciation
of the evidence deserve no intervention.

9. The victim was a school-going child. Finding her alone in the
street, on her way-back to home, the petitioner, aged around 22 years, who
lived in the neighbourhood outraged her modesty. Apparently, the petitioner
taking advantage of the situation intentionally committed the crime. He
deserves no leniency.

10. The revision petition lacks in merits and is dismissed.

11. The Trial Court record be sent back forthwith along with the
copy of the order.

(S.P.GARG)
JUDGE
MARCH 30, 2017
sa

Crl.Rev.P.811/2016 Page 4 of 4

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