* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 17th MAY, 2017
+ CRL.A. 1580/2013
RAM @ RAM KUMAR ….. Appellant
Through : Mr.Vikas Padora, Advocate.
STATE ….. Respondent
Through : Ms.Meenakshi Chauhan, APP.
HON’BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (Oral)
1. Aggrieved by a judgment dated 29.05.2013 of learned Addl.
Sessions Judge in Sessions Case No. 48/2012 arising out of FIR No.
374/1993 PS Trilok Puri whereby the appellant – Ram @ Ram Kumar has
been held guilty for committing offence punishable under Sections 450/376
IPC, he has preferred the instant appeal. By an order dated 03.06.2013, the
appellant was sentenced to undergo RI for seven years with fine `2,000/-
under Section 376 IPC and RI for five years with fine `1,000/- under Section
450 IPC. Both the sentences were to operate concurrently.
2. Initially, charge-sheet was filed against the appellant for
commission of offences punishable under Sections 450 and 376 IPC read
with Section 511 IPC on the allegations that on 15.06.1993 at about 10.00
a.m. after committing criminal tress-pass at House No.E-534, Gali No.10,
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West Vinod Nagar, Mandawali, Delhi, the appellant attempted to commit
rape upon the prosecutrix ‘X’ (assumed name) aged around 10 years.
Subsequently, during investigation, it revealed that the appellant had
committed rape upon the prosecutrix. Accordingly, under Section 216
Cr.P.C. charge was altered to Section 376 IPC by an order dated 22.09.2012.
3. I have heard the learned counsel for the parties and have
examined the file. Admitted position is that the prosecutrix / victim was
aged around 10 years on the day of occurrence. PW-7 (Harbhajan Singh),
Head Master, Nagar Nigam Prathmik Vidyalaya, Trilok Puri, Delhi proved
the record where date of birth of the victim recorded was 04.11.1982. The
victim had taken admission in the school on 03.09.1992 in 4th standard. She
was admitted on the basis of Transfer Certificated issued by the school in
which she had studied previously. The witness proved the documents
(Ex.PW-7/A to Ex.PW-7/D). Since the date of birth of the prosecutrix came
to be recorded much prior to the lodging of the FIR, there was least
possibility of her parents to manipulate her date of birth. No other date of
birth has been suggested to the prosecutrix. Apparently, the victim was
below 16 years of age on the day of crime.
4. It is also to be noted that the appellant remained absent during
trial and was declared Proclaimed Offender by an order dated 04.07.1998.
He could be arrested subsequently after a considerable period on 22.05.2012
by the police of Police Station Gandhi Nagar. The appellant did not offer
any explanation as to what had prompted him to avoid the proceedings.
5. On perusal of the statements of the prosecutrix recorded at
various stages of investigation / trial, it transpires that number of
inconsistencies and discrepancies have emerged therein. The prosecutrix
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has given conflicting versions as to how and in what manner, physical
relation was established by the appellant with her. She, however, was
categorical in all her statements to claim that the appellant had established
physical relations with her on that day i.e. 15.06.1993. No valid reasons
exist to disbelieve the statement of the prosecutrix on this account. The
prosecutrix and the appellant were acquainted with each other prior to the
incident. The appellant was also familiar with her family members. PW-5
(Sharda) – victim’s mother, in the cross-examination, admitted that the
appellant was known to her for the last 5 – 6 years though he was not on
visiting terms. In the absence of prior animosity or ill-will, the prosecutrix,
a child aged around 10 years was not expected to falsely implicate the
appellant. In 313 Cr.P.C. statement, the appellant alleged that his false
implication was due to non-payment of `2,200/- by the victim’s mother.
This defence deserves outright rejection. No suggestion to this effect was
put to PW-5 (Sharda) in her cross-examination recorded on 02.07.1996.
When PW-5 (Sharda) reappeared on 25.03.2013, a suggestion was put to her
that she had borrowed `2,200/- and when the amount was demanded, the
appellant was falsely implicated at the instance of Ram Naresh and
Dr.Yadav. The appellant, however, did not furnish any detail particulars as
to when `2,200/- was borrowed by the victim’s mother and on what account.
For a petty amount of `2,200/- victim’s mother is not imagined to falsely
level serious allegations of rape against the appellant to put the honour of
her tiny child at stake. She is not expected to use her small unmarried
daughter to settle score with the appellant.
6. Possibility of the prosecutrix to be a consenting party cannot be
ruled out. In her complaint (Ex.PW-3/A), she informed the police that on
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15.06.1993 when her mother had gone to her duty at around 08.00 a.m. and
her brothers Vicky and Rakesh were playing outside, the appellant to whom
she knew before came inside the house at around 10.00 a.m. He enticed her
inside the room and forcibly put off her salwar. On her raising alarm, the
appellant pressed her mouth and put his penis on her vagina. Meanwhile,
her brother Vicky arrived and knocked at the door. She apprised her brother
about the incident. The appellant confessed his guilt and apologized. In the
evening, she narrated the incident to her mother.
7. In 164 Cr.P.C. statement (Ex.PW-8/B), the prosecutrix gave an
entirely different version. She informed the learned Presiding Officer that
on 15.06.1993 at around 11.00 a.m. she was playing with her brother
Rakesh. Her mother and elder brother Charan Kumar were away to their
duties. A boy aged around 18 years who was not known to her came to her
house and disclosed his name as Ram. He came inside the room; he was
armed with knife and revolver; she was criminally intimidated. The
appellant started searching her house and mixed some substance in the curd.
She was forced to consume it. Thereafter, the appellant put off his pant and
threatened her to put off her salwar. When she did not do so, he gave her a
slap on cheek and opened the cord of her salwar. Then he himself laid on
her and put a knife on her chest. Thereafter, he put his penis in her vagina,
as a result of which she started crying due to pain. Her hands were tied with
a cot. She became unconsciousness and did not know as to when the
appellant went out of the house. She remained unconscious for two days.
After she regained senses, the appellant came to her house and she told the
incident to her mother.
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8. In her Court statement, the victim introduced another version.
She as PW-3 deposed that at about 10.00 a.m. when she had gone to the
hand pump to fetch water, the appellant followed her to her house and bolted
the door from inside. The appellant took her in the room and asked her to
open the cord of her salwar. Her younger brother Rakesh aged around 6
years present there was threatened to kill if she did not open it. When she
did not agree, the appellant broke the cord and started doing “wrong act”
with her. The accused put off his pant and committed “wrong act” with her.
Due to sexual assault, for long duration, her condition deteriorated and she
started weeping. The appellant showed her a vulgar book and threatened to
commit rape upon her mother if she disclosed the incident. Thereafter, the
appellant went out of the room. At around 08.00 p.m. when her mother
arrived, her brother Rakesh told the incident to her.
9. On perusal of the statements referred above, it reveals that the
prosecutrix has given divergent statements at various stages. Apparently,
she was not disclosing or presenting true facts to save her own skin. She
was inventing different stories as to how and in what manner, the appellant
had gained entry when she was alone in the house. No external injuries
were found on her person at the time of her medical examination. The
‘hymen’ was slightly torn. There were no marks of violence on her body to
infer forcibly rape.
10. PW-4 (Vicky) has given a contrary account of the occurrence.
He deposed that on 15.06.1993 at around 10.00 a.m. when he returned to the
house and knocked at the main gate for 4 – 5 minutes, there was no
response. Then he went to the other door in the back gali and knocked it.
From outside, he heard the noise of weeping of his younger brother aged
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around 4 years. After opening the main gate, he saw the appellant running
from the house. He chased him but could not apprehend him. His sister ‘X’
present in the house told him that the appellant had teased her. In the
evening, the incident was narrated to his mother. The prosecutrix had not
revealed commission of rape to her brother soon after the occurrence. From
all the circumstances, it can well be inferred that the prosecutrix aged around
10 years was willing and consenting party to the coitus.
11. As observed above, X’s consent to have physical relations with
the appellant is of no consequence she being below 16 years of age. The
appellant was aged around 18 years and was well aware of his act. Finding
the victim alone in the house, the appellant gained entry inside the house.
‘X’ being a girl of immature age did not know as to what was the impact of
the consent given by her to have physical relations. The appellant exploited
her innocence and established physical relations with her for considerable
time. The prosecutrix has given natural version of the incident. When she
was sexually assaulted forcibly by the appellant for long, she felt pain.
While asking her to remain quiet, the appellant assured her to have physical
relations slowly. Victim’s condition deteriorated and she was taken to a
private hospital where she got treatment for 2 or 3 days. X’s consent does
not absolve the appellant’s guilt.
12. The investigation carried out by the Investigating Agency is not
up to the mark. At first instance, the police did not lodge the report though
the matter was reported on the same day. Victim’s mother was advised to
remain silent to save the reputation of her family. When the police
machinery was put into motion by the concerned doctor at the time of her
medical treatment, the police again did not record the correct version of the
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prosecutrix and diluted the incident by registering case only under Section
376 read with Section 511 IPC. In 164 Cr.P.C. statement, the prosecutrix
had levelled serious allegations of commission of rape but the investigating
agency preferred to file charge-sheet only for attempt to commit rape. The
Trial Court has rightly made certain scathing remarks in this regard.
13. Since the prosecutrix and other family members belonged to
poor strata of society and were not so educated, minor discrepancies and
inconsistencies in their statements which do not affect the core of the
prosecution case are inconsequential.
14. Impugned judgment based upon fair reasoning and proper
appreciation of the evidence deserves no intervention. The Trial Court has
already taken lenient view and did not opt to award minimum sentence of 10
years prescribed under Section 376 (2)(f) IPC. No further modification and
alteration in sentence is called for as the offence committed by the appellant
with school going child aged around 10 years is serious and grave.
15. The appeal lacks in merits and is dismissed. Trial Court Record
be sent back forthwith with the copy of the order. Intimation be sent to the
MAY 17, 2017 / tr
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