Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Reserved on: 20 September, 2013
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Pronounced on: 26 September, 2013
+ CRL.A. 1113/2012
JOGINDER @ VIRENDER SHARMA ..... Appellant
Through: Mr. Sunil Kapoor, Advocate with
Ms. Sudha, Advocate.
versus
GOVT. OF NCT OF DELHI ..... Respondent
Through: Ms. Rajdipa Behura, APP for the State.
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
J U D G M E N T
G. P. MITTAL, J.
1. The dilemma in the instant appeal which arises out of a judgment dated
06.08.2012 and order on sentence dated 07.08.2012 passed in Sessions
case No. 48/2010 whereby the Appellant was convicted under Section
376 read with Section 511 of the Indian Penal Code, 1860 (IPC) is
whether the Appellant really attempted to commit rape on the prosecutrix
‘G’, a small girl of eight years or it was merely a sexual assault.
2. On 21.02.2010 at about 8:37 P.M., DD No.31-A was recorded in Police
Station (PS) Nihal Vihar to the effect that one Rajender Singh, son of
Late Harnam Singh had informed that his neighbour Virender (the
Appellant) had did a wrong act with his daughter ‘G’. He had been
caught by the public near Shiv Vihar Dispensary. The DD was assigned
to SI Kuldeep Singh who reached the spot and proceeded to record the
Crl.A.No.1113/2012 Page 1 of 10
statement of the prosecutrix. The prosecutrix informed the SI that on that
day at about 7:00 P.M. her mother had asked her to get some numkeen
( matar ) from a shop downstairs. When she reached the shop, she noticed
the Appellant standing there. The shopkeeper informed her that the earlier
said matar was finished. The Appellant offered her (the prosecutrix) to
get matar . He took her to a deserted place near Shiv Vihar Dispensary.
He (the Appellant) opened the zip of his pant and put her hand inside his
trousers. He started pulling down her underwear. She (the prosecutrix)
started crying and raised an alarm. Thereupon some men and women
reached the spot and saved her from the Appellant’s clutches. Public also
extended beatings to the Appellant. The statement Ex.PW-1/A was signed
by the prosecutrix as also by her mother (PW-4). The IO made an
endorsement Ex.PW-13/B for registration of a case under Section 376
read with Section 511 IPC on the basis on which the present FIR Ex.PW-
6/A was recorded. The prosecutrix and the Appellant were medically
examined. Statement of the prosecutrix was also got recorded under
Section 164 of the Code of Criminal Procedure, 1973 (Cr.P.C.) wherein
the prosecutrix stated that the Appellant had also tried to touch his male
organ with her vagina. That is how the charge sheet for an offence
punishable under Section 376/511 IPC was filed against the Appellant.
3. On the Appellant pleading not guilty to the charge, the prosecution in
order to establish its case examined 15 witnesses.
4. The prosecutrix who entered the witness box as PW-1 is the star witness
of the prosecution who corroborated her statement recorded under
Section 164 Cr.P.C. and leveled allegations of the Appellant making an
Crl.A.No.1113/2012 Page 2 of 10
attempt to touch his male organ with the prosecutrix’s vagina. PW-4
prosecutrix’s mother and PW-14 Dev Shree corroborated PW-1’s version
regarding the prosecutrix leaving her house for getting numkeen (matar).
PW-14 deposed that on 21.02.2010 at about 7:00 P.M., the Appellant was
standing in front of her shop. The prosecutrix came to her shop to buy
numkeen (matar) . Since the same had finished in her shop, she told the
prosecutrix about the same. While the prosecutrix was returning to her
house, the Appellant asked her to get numkeen (matar) purchased from
another shop and told her to accompany him. She deposed that the
prosecutrix left her shop with the Appellant.
5. The prosecution examined Ram Babu (PW-5) to prove that he had heard
screams of the prosecutrix and had seen the Appellant, who had already
removed the prosecutrix’s underwear trying to touch his male organ to
the private part of the prosecutrix. This witness, however, did not support
the case of the prosecution and simply deposed that on 21.02.2010, while
he was returning to his home, he found that the prosecutrix, who was the
daughter of his neighbour was missing from her house. He also tried to
search the prosecutrix. When they reached Shiv Vihar, they noticed some
police officials were taking away the Appellant with them. The
prosecutrix, who was also present, was crying. Some ladies were also
present in the crowd. Other witnesses have provided various links in the
prosecution case.
6. On close of the prosecution evidence, the Appellant was examined under
Section 313 Cr.P.C. He denied the allegations of the prosecution and
pleaded false implication on the ground that there was some dispute
Crl.A.No.1113/2012 Page 3 of 10
between the Appellant and the prosecutrix’s father’s younger brother on
some nali (small drain). The Appellant stated that he has been falsely
implicated in order to take revenge. The details of the dispute were,
however, not put to either of the prosecution witnesses and the same were
not even disclosed by the Appellant in his examination under Section 313
Cr.P.C.
7. On appreciation of evidence, the learned ASJ found that the prosecutrix’s
testimony is corroborated by her statement recorded under Section 164
Cr.P.C. as also by the testimonies of PW-4 and PW-14. The learned ASJ
found that the prosecutrix was reliable and trustworthy. He further held
that the Appellant’s act had gone beyond preparation to commit the
offence as he had opened the zip of his pant and had tried to touch his
male organ with the prosecutrix’s vagina. Thus, the Trial Court held that
but for the screams and shouts of the prosecutrix, the Appellant would
have completed the act of rape and thus, the Appellant was held guilty for
the offence punishable under Section 376/511 IPC and was sentenced to
undergo rigorous imprisonment for a period of five years and a fine of
` 1,000/-. In default of payment of fine to undergo simple imprisonment
for a period of 15 days.
8. Criticising the impugned judgment, the learned counsel for the Appellant
argues that the First Information Report (FIR) is a very important
document as it contains the earliest version of the complaint lodged with
the police. The Trial Court did not give any reason as to why the factum
of trying to touch his male organ by the Appellant with the prosecutrix’s
vagina was not mentioned in the FIR. There are material contradictions
Crl.A.No.1113/2012 Page 4 of 10
and discrepancies in the statement of the witnesses and the place where
the incident took place. The prosecutrix was a small child of eight years
who could have been easily tutored to falsely implicate the Appellant.
Relying on Rajoo & Ors. v. State of Madhya Pradesh, AIR 2009 SC 858,
the learned counsel argues that although the evidence of a prosecutrix
must be examined as that of an injured witness whose presence at the spot
is probable, but her testimony cannot be taken as a gospel truth. Referring
to Mumtaz v. State (Govt. of NCT of Delhi) Crl.A.214/2011 decided on
22.05.2013, the learned counsel argues that conviction can be based on
the sole testimony of a prosecutrix only if it is of sterling quality.
9. On the other hand, learned APP for the State argues that the proposition
of law is well settled that conviction can be based on the sole testimony
of the prosecutrix if the same is found to be reliable and credible.Reliance
is placed on the reports of the Supreme Court in Rameshwar v. State of
Rajasthan,AIR 1952 SC 54, State of Punjab v. Gurmit Singh,(1996)2 SCC
384, State of U.P. v. Pappu @ Yunus & Anr,(2005) 3 SCC 594 and Vijay
@ Chinee v. State of Madhya Pradesh (2010) 8 SCC 191. She contends
that minor discrepancies, variations and improvements are bound to occur
in every criminal case particularly in case of sexual assault on a
child.Undue importance cannot be attached to such contradictions to
disbelieve the prosecutrix, who has no reason to falsely implicate the
accused. Learned APP for the State relies on para 12 of the judgment in
Madan Lal v. State of J&K (1997) 7 SCC 677 to contend that the instant
case where the Appellant had tried to touch his male organ with the
prosecutrix’s vagina would show the Appellant’s determination to
Crl.A.No.1113/2012 Page 5 of 10
commit rape and it was only on account of the prosecutrix’s screams that
people were attracted and the Appellant could not complete the act.
10. As stated above, the prosecutrix was going to the shop down stairs to
purchase numkeen (matar) is established from PW-1’s statement which is
duly corroborated by PWs 4 and 14. The Appellant accompanied the
prosecutrix to purchase numkeen (matar) is sufficiently proved from the
statement of the prosecutrix which is corroborated by PW-14. No
substantial reason has been ascribed to PW-14 to make a false statement.
The Appellant has set up a defence that he was implicated falsely as there
was a dispute between him and the uncle of the prosecutrix on the issue
of a nali (small drain). What was the dispute, as stated earlier, has not
been explained by the Appellant. The Appellant expressed his willingness
to produce evidence in defence, but did not produce the same. The
contradictions as to the place of the incident, in my opinion, are not very
material. In the proxecutrix’s statement Ex.PW-1/A recorded under
Section 161 Cr.P.C., the place of incident was given as a deserted place
near Dispensary. To the same effect is her statement under Section 164
Cr.P.C. In the statement recorded in the Court, the prosecutrix stated that
the Appellant took her to the dispensary. A perusal of the site plan
Ex.PW-13/C prepared by the IO shows that the dispensary and the open
plot mark A are very close to each other. Even in her testimony in the
Court, the prosecutrix referred to the presence of a boy and a girl on a
motorcycle outside the dispensary. Thus, in all probability, the incident
took place at the deserted place close to the dispensary. There is also a
contradiction as to where the prosecutrix met her mother after the
Crl.A.No.1113/2012 Page 6 of 10
incident. In her statement made to the police, the prosecutrix stated that
her mother also reached the place of the incident after the public had
gathered on hearing her screams. In her statement in the Court, the
prosecutrix deposed that she met her mother at the stairs of her house
where she was taken by some women. To the same effect is the
testimony of PW-4. Apparently, this may sound to be a discrepancy in
the prosecution case. But, it has to be borne in mind that the statement of
the prosecutrix was recorded at the spot which was attested by her mother
PW-4. Since the plot was not far away from the prosecutrix’s house, in
all probability, the prosecutrix who was a small child of eight years may
have been taken to her house by some women, as stated by PW-1 and
PW-4, to make her (the prosecutrix) comfortable and she might have been
brought back to the spot after information of the Appellant was given by
the prosecutrix’s father. The attention to the statement Ex.PW-1/A was
not drawn by the defence and in the absence thereof, the same cannot be
taken as a material contradiction. Thus, leaving apart the actual act, there
does not appear to be any major contradiction in the testimonies of the
prosecution witnesses and the case set up in the FIR. The Appellant has
not proved his defence and even on the touch stone of preponderance of
probabilities, it is difficult to believe that the prosecutrix, at the instance
of her parents would level false allegations of molestation/sexual assault
and that too on some alleged dispute with regard to some nali , which has
not even been explained by the Appellant. It is difficult to believe that
the prosecutrix’s parents would level false allegations of sexual
Crl.A.No.1113/2012 Page 7 of 10
molestation against the Appellant just to settle some dispute with regard
to a nali.
11. The vital question for consideration, however, is as to what was the actual
act committed by the Appellant, that is, was it only the putting of the
prosecutrix’s hand in his pant after opening its zip as stated in the
statement Ex.PW-1/A on which the FIR was recorded, or was it trying to
touch his male organ with the prosecutrix’s vagina. The prosecution has
not given any explanation as to why the act of trying to touch the male
organ with the vagina was not stated by the prosecutrix in her initial
statement Ex.PW-1/A. Admittedly, the mother of the prosecutrix was
also present at that time. It is important to note that in the subsequent
statement, the prosecutrix also leveled allegations of pulling, hitting and
slapping her by the Appellant while she was being taken towards the
dispensary. It is highly improbable that at about 7:00 P.M. when all the
persons are out in the street/market, the Appellant would have the
audacity of slapping, hitting or pulling the prosecutrix. In her initial
statement Ex.PW-1/A, the prosecutrix stated that the Appellant opened
the zip of his pant and put her hand in the trouser and started pulling
down her underwear. She also stated that there upon she screamed and
started crying whereupon people gathered at the spot. It may be noted
that the incident in question had taken place at a deserted place. The
prosecutrix has not explained as to how the act of trying to touch the male
organ with her vagina was done by the Appellant. It cannot be just while
walking or just standing at the deserted place. The prosecutrix is
completely silent if she was laid on any article to do this act. Thus, in the
Crl.A.No.1113/2012 Page 8 of 10
absence of any explanation by the prosecution as to why the act of trying
to touch the male organ with her vagina was not stated in her initial
statement and also in the absence of the prosecutrix’s statement as to how
this act was actually performed, especially when the prosecution claims
that this was done at a deserted place (in an open plot of land), it will be
difficult to believe that the act of trying to touch the male organ with the
vagina was actually done by the Appellant. In my view, this
improvement in the subsequent statement was only an exaggeration of the
actual incident. So, it would be highly unsafe to believe the improved
portion of the prosecutrix’s testimony that the Appellant tried to touch his
male organ with her vagina. Bereft of this, the Appellant’s act of opening
the zip of his trousers and forcing the prosecutrix’s hand in his trousers
and then pulling her underwear will only amount to an indecent assault
which is punishable under Section 354 IPC.
12. In view of the foregoing discussion, the Appeal is liable to be allowed.
The Appellant’s conviction and sentence for the offence punishable under
Section 376 read with Section 511 IPC is set aside and instead he is held
guilty for the offence punishable under Section 354 IPC.
13. It may be noticed that the acts of indecent assault towards females,
particularly, children are on the rise. The reason is that most of the times
the same are not reported to the police to save family honour. Thus, it is
only a few cases which are reported to the police and in many such cases
on account of pressure from the neighbours, the witnesses are prevailed
upon and sometimes the prosecutrix herself does not support her version.
Crl.A.No.1113/2012 Page 9 of 10
Thus, wherever cases of indecent assault on children are proved, the
Court should not show any sympathy to the offender.
14. It may also be noted that the legislature by virtue of Criminal Law
Amendment Act, 2013 has also increased the maximum sentence of
imprisonment for the offence punishable under Section 354 IPC from two
years to five years. In the circumstances, I sentence the Appellant to
undergo rigorous imprisonment for a period of two years and to pay a
fine of ` 25,000/- or in default to undergo SI for a period of six months for
the offence punishable under Section 354 IPC. The fine, if recovered,
shall be paid to the victim as compensation.
15. The Appeal is disposed of in above terms.
(G.P. MITTAL)
JUDGE
SEPTEMBER 26, 2013
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