IN THE HIGH COURT OF DELHI AT NEW DELHI

 

SUBJECT : SECTION 376(2)(G) IPC, 452 IPC AND 506 (2) IPC.

 

Date of decision: January 10, 2006.

 

Crl.A.No.150/2004

 

Rakesh @ Kake Appellant

Through Mr.K.Priyadarshi, Advocate.

Versus

 

Govt of NCT of Delhi

(State) Respondent

Through Mr.Ravinder Chadha,Addl. Public

Prosecutor with Mr.Jagdish

Prasad, Adv.

Coram :

 

Hon'ble Mr.Justice Manmohan Sarin.

Hon'ble Ms.Justice Manju Goel

 

Manmohan Sarin, J

 

1. Appellant-Rakesh @ Kake by this appeal assails the impugned judgment dated 20th January, 2004 and order of sentence dated 29th January, 2004. The appellant was convicted for the offences under section 376(2)(g) IPC, 452 IPC and 506 (2) IPC. Appellant was sentenced to life imprisonment and a fine of Rs.1000/-, in default of payment of fine, SI for three months for the offence under section 376(2)(g) IPC. For the offence under section 452 IPC, appellant was sentenced to RI for three years and a fine of Rs.500/- and in default, SI for one month. For the offence under section 506(2) IPC, appellant was sentenced to three years RI and a fine of Rs.500/- and in default of payment of fine, SI for one month. The above sentences are to run concurrently.

 

2. The prosecution case, in brief, before the trial court was that the appellant carrying a screw driver along with his companion one Sunil, trespassed into the house of the prosecutrix-`R', at about 10 AM on 15th January, 1999. At that time, both her parents were away. Appellant using foul language told 'R' an unmarried minor girl, that he wanted to have sex with her and upon her refusal, dragged her on the floor. He threatened her with the screw driver and broke open the string of her salwar and forcibly had sexual intercourse with her. Thereafter, his companion also raped her. Appellant and his companion left extending threats that if she disclosed the incident to any one, they would kill her family members. The incident happened in the presence of `R's younger sister aged 10 years old, who had been slapped and made to sit in a corner. The appellant's companion Sunil had sent out the younger brother of the prosecutrix-`R' to purchase gutka for him. Prosecutrix-`R' states that she tried to raise alarm but nobody heard her.

 

3. The residence of `R' is said to be one room in the corner premises, beyond which there were empty plots, though located in a populated area. Prosecutrix-`R' being shattered by the sexual assault, around 4 p.m had consumed nepthalene balls as she wanted to end her life, but she felt sick and vomited. She claims that the neighbours knew about the incident. Prosecutrix-`R' narrated the incident to her mother when she returned at night from work. Report was lodged which was registered as DD No.73 on 15th January, 1999. Prosecutrix's-`R' statement was recorded on the same night being Exhibit 2/A. Medical check up of the Prosecutrix-`R' was done at the Deen Dayal Hospital where she was accompanied by her mother. X-ray was also done later. Accused persons were arrested on her pointing out.

 

4. Prosecution to prove the case had examined Prosecutrix-`R' and her younger sister PW-3. Ossification test was also carried out which confirmed the age of Prosecutrix-`R' as more than 15 years but less than 17 years. Prosecutrix-R's mother was also examined. She deposed that she learnt of the rape of her daughter on her returning from work at about 10.30 p.m. She also deposed that appellant's mother and their relations attempted to offer her money so as not to proceed with the complaint. She declined telling them that it was also their obligation to protect her daughter.

 

5. The M.L.C carried an endorsement “Alleged history of rape by two identified youth.? They were not named in the MLC. PW-8, Dr.Poonam Lal had carried out the gynaeocological examination and proved her report. Medical examination of Prosecutrix-`R' revealed an old hymen tear and vagina admitting two fingers tightly. No external injuries on the genital parts were seen. PW-8 opined that old tear in the hymen could be on account of many reasons like heavy exercise. It may be due to earlier sexual intercourse. She concluded that it was difficult to say from clinical examination whether she had been subjected to intercourse or not now. The medical examination of the appellant as also the co-accused had confirmed that they were both capable of sexual intercourse.

 

6. Learned counsel for the appellant assailed the judgment of the trial Court as being riddled with contradictions and not being based on any cogent evidence. Counsel for the appellant submitted that appellant had been falsely implicated in the case. Appellant's marriage had been fixed with the prosecutrix on 17.11.1998. However, just 10-15 days prior to marriage, another girl to whom he was married in childhood, appeared on the scene with her parents. They quarreled with the appellant, due to which his marriage could not be performed with the prosecutrix. It is urged that the prosecutrix's parents were, therefore, annoyed with him and have falsely implicated him in this case.

 

7. Counsel for the appellant next urged that the Gynaecological report did not confirm any evidence or rape or sexual assault. Rather vagina was admitting two fingers tightly and the hymen had an old tear. There were no injuries on the genitals. No sperms were detected on the vaginal swab. Hence sexual intercourse was not confirmed. He urged that the vital piece of evidence, namely, the “Salwar? of the prosecutrix had not been seized and produced on record. Counsel further urged that there were inherent improbabilities in the prosecution case. The incident is stated to have taken place in the morning at around 10.00 a.m. in a highly populated area. The prosecutrix is stated to have been screaming, incredibly, nobody heard her screams or came to her rescue. It was strange that though the alleged offence was committed at 10.00 A.M. in the morning, as per the prosecutrix's version, to the knowledge of neighbours nobody informed the Police, till late at night. The FIR does not name accused while their identity was known. There were contradictions between the statement made by prosecutrix while recording FIR and her deposition in Court. The statement of the child witness Shalini has made the prosecution case doubtful. While claiming to know both the accused but on being asked, who is Rakesh, she had pointed towards the appellant Sunil, who is no more. She also did not depose that the act of rape had been committed on her twice. The story regarding the consumption of napthalene balls in an attempt to suicide, has been found not to be supported by any of the witnesses. No independent witness has been examined in the case. The above sums up the Appellant's challenge in appeal.

 

8. Let us consider the appellant's plea of having been falsely implicated in the case due to his inability to go through the marriage scheduled with the prosecutrix on 17.11.1998. In his statement under Section 313 Cr.P.C, appellant claimed that since the parents of the girl whom he had married in childhood came on the scene and quarrelled, he could not go through the marriage with the prosecution which annoyed latter's parents and hence this false case. Appellant neither led any evidence in support of the above nor was any suggestion given either to the prosecutrix's mother or the prosecutrix despite several opportunities having been availed of. It is apparent that the above plea is a bogey which deserves no credence and an after thought.

 

9. Let us now consider the improbabilities of the incident and alleged contradictions urged by the appellant's counsel. The plea is that the incident took place in a thickly populated area at about 10.00 a.m. yet nobody came to the rescue of the prosecutrix even though she screamed. We may note that it has come in evidence of the Investigating Officer that even though the area was thickly populated, the premises in question were located on the corner of the street and beyond that it was open area. Hence there was no crowd or houses very close to her house. Further, the prosecutrix herself claimed that her neighbours knew about the incident yet nobody had the courage to stop them. It is not unusual for neighbours to be oblivious to the happening in the adjoining quarter. It is significant that there had been no suggestion given that either the incident did not take place or that the prosecutrix had any motive to falsely implicate the accused. It is not uncommon for the neighbours to go about their usual course without intervening with the happening in the neighbourhood. The prosecutrix, an unmarried girl, was facing two youths, one of them was armed with screw driver, holding out threat to life. In these circumstances, there could hardly be any struggle, which would result in injury on her person or on her genitals. The younger sister had been slapped and made to sit in a corner, while the younger brother was sent out. The decision regarding the lodging of a report in rape cases is naturally taken by the parents and in this case the mother promptly took the decision on her return from work.

 

10. We are in agreement with the trial Judge, who has found the statement of the prosecutrix reliable and trustworthy. We also find that the statement of the prosecutrix is corroborated by that of her younger sister, the child witness, in all material respects. It is not of any material consequence that while deposing, the child witness at one stage got mixed up with the name and had pointed towards Sunil, when being asked as to who Rakesh the appellant was. In her deposition, it has clearly come that the appellant and the other accused both of them had committed sexual assault, namely, rape. She had also deposed that when one accused was doing wrong act, the other was pointing the screw driver. She also deposed that first Rakesh had left the house and thereafter Sunil left, which is in conformity with the deposition by the prosecutrix. We find testimony of the prosecutrix and her sister reliable, trustworthy and worthy of acceptance.

 

11. Coming to the medical evidence, while it is true that no definite conclusion could be drawn on the basis of the statement of Dr.Poonam and the Gynaecological examination and without there being presence of sperm on the slides prepared from vaginal swab, the appellant has been found to be capable of sexual intercourse. Human semen was detected on micro slides marked 1a and 1b, prepared from the undergarments of the appellant. Accordingly, based on the statements of the prosecutrix, her sister and that of Gynaecologist Dr.Poonam read with CFSL report, it can be safely concluded that the prosecutrix had been subjected to forced sexual intercourse by the Appellant and Co-accused, within the meaning of Section 376(2)(g) of IPC. The contradictions, which are sought to be brought up by the defence are immaterial and of no consequence. These are bound to happen when evidence in Court is recorded after lapse of considerable time. We, accordingly, do not find any ground made out for interference with the well reasoned judgment of the trial Court.

 

12. Counsel for the appellant lastly urged that the accused was a young man of 21 years at the time of offence and has already undergone sentence of nearly 7 years. He submitted that the accused has no past criminal antecedents. The conduct of the appellant in jail has been satisfactory. The other co-accused Sunil died during the trial. He submitted that in these circumstances the sentence of life imprisonment would be harsh and disproportionate. Counsel urged that the prosecutrix got married around 5 years back and is having children and is settled in life and the Court, therefore, may show clemency towards the appellant.

 

13. There is no doubt that the appellant along with co-accused committed rape of a minor girl. The offence has been committed in a dare devil manner. However, we are of the view that considering the young age of the appellant, when the offence was committed and the absence of any past criminal antecedents, ends of the justice would be met by modifying the sentence of the appellant under Section 376 (2)(g) IPC to a term of 10 years and fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for a period of six months. The sentence for the commission of offence under Section 452 as also 506(2) IPC would remain the same. Accordingly, the sentence of the appellant shall stand modified as under:-

 

 

To undergo rigorous imprisonment for 10 years for the offence punishable under Section 376(2)(g) IPC and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for a period of 6 months;

 

To undergo rigorous imprisonment for a period of 3 years for the offence punishable under Section 452 IPC and to pay a fine of Rs.500/- and in default of payment of fine to undergo simple imprisonment for a period of 1 month;

 

To undergo rigorous imprisonment for a period of 3 years for the offence punishable under Section 506(2) IPC and to pay a fine of Rs.500/- and in default of payment of fine to undergo simple imprisonment for a period of 1 month.

 

The benefit under Section 428 Cr.P.C. would also be available to the appellant. All the sentences shall run concurrently.

 

14. Appeal stands disposed of with the above direction.

 

 

Sd./-

Manmohan Sarin, J.

Sd./-

January 10, 2006 Manju Goel, J.