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Sikandar @ Babu vs State on 19 March, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 19th March, 2018
+ CRL.A. 750/2017 and Crl. M.B. No. 1675/2017 (suspension)
SIKANDAR @ BABU ….. Appellant
Represented by: Mr. Vipin Chandra and Mr.
Sanjeev Sarker, Advocates.
versus
STATE ….. Respondent
Represented by: Mr. Amit Gupta, APP for State.
CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)

1. By the present appeal Sikandar @ Babu challenges the impugned
judgment dated 11th May 2017, whereby he was convicted for the offences
punishable under Sections 354/451/506(I) IPC and the order on sentence
dated 12th May 2017 directing him to undergo rigorous imprisonment for the
period of one year for the offence punishable under Section 354 IPC,
rigorous imprisonment for a period of one year and to a fine of ₹1000/- , in
default whereof to undergo simple imprisonment for a period of one month,
for the offence punishable under Section 451 IPC and rigorous
imprisonment for the period of one year for the offence punishable under
Section 506 (I) IPC.

2. Assailing the conviction, learned counsel for the appellant contends
that the appellant has been falsely implicated at the instance of father of the
prosecutrix who was an alcoholic and used to fight with the father of the
appellant. There are material contradictions and inconsistencies in the
version of the prosecution witnesses. There are discrepancies qua the place

CRL.A. 750/2017 Page 1 of 6
of incident. The appellant has not been connected with the offence. No
overt act has been attributed to him, hence is liable to be acquitted.

3. Per contra, learned APP for the State submits that the prosecution has
proved beyond reasonable doubt the offence committed by the appellant
based on the testimony of material witnesses, that is, the victim and the
complainant, hence the appeal be dismissed.

4. Process of law was set into motion on 26th December 2011 at around
6:20 P.M., when telephonic information was received from the control room
stating ‘H.No. 108, Sherpur Gaon, Shiv Mandir, ek aadmi ne 10 saal ki ladki
ke saath galat kaam kiya hai’. Aforesaid information was recorded vide DD
No. 26A (Ex.PW-11/A) and was entrusted to SI Amit Prakash. He along
with lady Ct. Aarti proceeded to the spot. Ct. Tejveer was also informed and
was asked to reach the spot. On reaching Gali No.1, Village Sherpur they
met the complainant (Aunt of victim) who produced her niece (victim
herein). Statement of complainant was recorded wherein she stated that her
Mausi resided near her house situated in Gali No.1,Sherpur Gaon on rent
along with her son and his family. Her husband used to go for work and
since she used to be alone at house she used to go to her Mausi’s place for
lunch. On 26th December, 2011 around 3:30 P.M. when she went to her
Mausi’s place to have lunch, she found that the door was closed but not
latched. When she opened the door and went inside, she saw that one person
Sikander @ Babu, whom she knew, was doing wrong act with her niece who
was lying on the bed. On seeing her, Sikander @ Babu ran away and while
running he threatened her that if she informs anyone she would face dire
consequences. She consoled her niece since nobody was present at the house
at the time. Thereafter, her Mausi came and she called on 100 number.

CRL.A. 750/2017 Page 2 of 6

Aforesaid statement was recorded vide Ex.PW-7/A. On the basis of the
aforesaid statement, FIR No.434/2011 (Ex.PW-4/A) was registered at PS
Khajuri Khas for offences punishable under Sections 342/354/506 IPC.

5. Thereafter, W/Ct. Aarti along with Ct. Tejveer took the victim to GTB
Hospital for her medical examination. In the meantime, parents of the victim
also reached the hospital. Thereafter, SI Amit Prakash went to the place of
the incident and prepared the site plan (Ex.PW-7/B) at the instance of the
complainant Uma. He along with Ct. Tejveer and Uma conducted a raid at
the house of Sikander @ Babu and apprehended him at the instance of the
complainant. He arrested him vide memo Ex.PW-7/C, conducted his
personal search vide memo Ex.PW-7/B and recorded his disclosure
statement vide memo Ex.PW-7/E. On 27th December 2011, statement of
victim was recorded under section 164 Cr.P.C. (Ex.PW-1/A).

6. On completion of investigation, charge sheet was filed under Sections
342/354/376/506/511 IPC. Vide order dated 16th September 2013, charge
was framed for the offences under Sections 451/506 IPC and Section
376(2)(f) read with Section 511 IPC.

7. Victim was examined as PW-1. She deposed that on the day of the
incident, when she was present in the house, one person came inside the
house and pressed her mouth. She does not remember the name of the
person. That person also tied her hands and feet and showed her a knife. He
made her lie on the bed. Thereafter, that person removed her underwear and
also removed his underwear and then lied down on her. In the meantime, her
aunt came and he fled away. During her cross examination, she stated that
she does not know any boy in the neighborhood by the name of Sikander.
Her hands and feet were tied by the appellant using a string.

CRL.A. 750/2017 Page 3 of 6

8. Complainant was examined as PW-7. She deposed in sync with her
statement made to the police. She also stated that on the day of the incident
she found the victim was lying on the cot and one male person was lying
over her and his lower clothes were not on his body and there were also no
clothes on the lower body of the victim.

9. Mother of the victim, who was examined as PW-2, stated that the
victim used to go to school in the morning at 8.00 A.M. and used to come
back around 1.00 P.M. At the time of the incident, she along with her
husband were present at the work place of her husband. When they came
back home their neighbor informed that her sister-in-law and the victim had
gone to the police station and also narrated the incident to her.

10. Father of the victim (PW-16) deposed in conformity with the mother
of the victim.

11. Chandani (PW-10) who used to stay in the house of Dharamveer in
Gali No.1, Village Sherpur, stated that on the day of the incident, at about 1
P.M., she saw the victim returning from school and going inside the room.
At that time, her grandmother and her parents had gone for their respective
works and her younger brother had also accompanied his mother. After
sometime she saw that the victim was crying and her bua was with her and
was trying to console her. When she inquired about the reason they informed
her that one person came inside the house of the victim and tried to commit
rape upon her and also threatened her.

12. Dr. P. Ram (PW-14), CCM, GTB Hospital, Delhi, stated that he was
deputed to depose regarding the MLC prepared by Dr. Munesh who was no
longer working at the hospital and his whereabouts were not known. As per
the MLC (Ex.PW-14/A), on local examination no fresh external injuries

CRL.A. 750/2017 Page 4 of 6
were found. The victim was referred to Gynae Department for further
examination.

13. Dr. Sanjeeta Behra (PW-13), CMO, Gynae Department, GTB
Hospital, Delhi, stated that she was deputed to depose on behalf of Dr.
Geetika Trivedi who had examined the victim and whose whereabouts were
not known. She stated that she could identify the handwriting and signatures
of Dr. Geetika Trivedi as she had worked with her. MLC prepared by Dr.
Geetika Trivedi was exhibited as Ex.PW-13/A. As per the medical
observations, there was no injury seen and the hymen was found intact.
Parents of the victim had refused for internal examination of the victim.

14. Shatrughan Upadhaya (PW-15), Teacher, EDMC Primary School,
Biharipur, Delhi stated that as per their record the date of birth of the victim
is 10th March 2004. The copy of admission form is Ex.PW15/A (OSR), copy
of admission and withdrawal register is Ex.PW-15/B and the affidavit of the
mother of the victim in support if the date of birth is Ex.PW-15/C (OSR).

15. From the evidence on record it is proved that on the date of alleged
incident the victim was a minor aged 7 years. In the first statement itself the
appellant has been named. There are no contradictions in the testimony of
the victim and her aunt, the complainant of the case. Though appellant
claimed that he had been falsely implicated, however, contrary stands have
been taken in suggestion to various witnesses therefore, not probablising the
defence of appellant. Suggestion to the complainant was that the father of
the victim used to quarrel with the appellant after consuming liquor and that
on the day of incident a quarrel took place between the victim’s father and
son of the appellant over the issue of filling up the water. Suggestion to the
victim and the mother of the victim was that the victim and the son of the

CRL.A. 750/2017 Page 5 of 6
appellant had a quarrel few days before the incident, hence the appellant has
been implicated to take revenge. In view of overwhelming evidence on
record this Court finds no error in the impugned judgment of conviction and
order on sentence.

16. Appeal is accordingly dismissed.

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

18. TCR be returned.

(MUKTA GUPTA)
JUDGE
MARCH 19, 2018
‘vn’

CRL.A. 750/2017 Page 6 of 6

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