Delhi High Court
Kali Charan vs The State (Delhi Administration) on 9 August, 1994
Equivalent citations: 1995CRILJ663, 1994(3)CRIMES502, 55(1994)DLT642, 1994(30)DRJ622
Author: Dalveer Bhandari
Bench: Dalveer Bhandari
JUDGMENT Dalveer Bhandari, J.
(1) This appeal is directed against the order and judgment dated 8th February, 1991, passed by Shri R.L. Chugh, Additional Sessions Judge, Delhi.
(2) The brief facts which are necessary to dispose of this appeal are recapitulated as under:- "ON 7th March, 1987, Bhagwan Dass, brother of the prosecutrix, Usha lodged a First Information Report that on 1.3.1987, he had gone to a marriage with his brother and younger sister leaving other younger sister Usha in the house. Kali Charan, appellant who is resident of Kachchi Jhuggi, Majnukatilla came to his house at about 9.30 P.M. and raped his younger sister who was all alone in the house. He has further stated that Usha wanted to raise an alarm but the accused put his hand on her mouth and threatened to kill her. Out of fear, she did not narrate the unfortunate incident to anyone. When on 7.3.1987, he saw her in a rather indifferent condition of health and enquired from her as to its cause, only then, Usha narrated the incident to him. Thereafter an F.I.R. was lodged at 11.25 P.M. on 7.3.1987".
(3) Sub Inspector, Suraj Pal Singh, PW-10 went to the spot and took down the statement of the prosecutrix Usha. He also took her to Hindu Rao Hospital where she was referred to a Gynaecologist for examination and opinion regarding rape and to the Radiologist for X-Rays for determination of her age. Dr. Sandhiya who examined Usha, prosecutrix, found that secondary sex characters were not developed.' Local vulva showed redness and swelling. She also found that the cervix and uterus were small and underdeveloped. She took slides for sperms but did not expect any positive result because, they do not survive after twenty four hours. In this case, the incident took place on 1st March, 1987 and she was examined on 8th March, 1987 almost after 7 days of the incident.
(4) Dr. C.P. Sharma, Radiologist, on X-ray examination found that the prosecutrix Usha, had completed 12 years and was less than 14 years of age. She was produced before the Metropolitan Magistrate and her statement u/s 164 of the Code of Criminal Procedure was recorded on 9th March, 1987. In that statement, she has clearly and categorically stated that on 1st March, 1987, when her brother had gone to attend a marriage party, she was alone in her house. At that time, one Kali Charan who lives in her neighborhood came to her house and he forcibly had sexual intercourse with her. When she tried to raise an alarm, he gagged her and threatened to kill her.
(5) In this case, the prosecution has examined prosecutrix Usha, as PW-2. Her statement is consistent with her earlier statement under Section 164 of the Code of Criminal Procedure, on 9th March, 1987. The prosecution has also examined Bhagwan Dass, brother of prosecutrix Usha. He has narrated the same version. The prosecution has also examined PW-10 Sub Inspector Suraj Pal Singh. He has also fully supported the version of the prosecution. PW-4 is Mr. Jaswant Singh, Metropolitan Magistrate, who recorded the statement of prosecutrix Usha under Section 164 of the Code of Criminal Procedure. PW-5 is Dr. C.P.Sharma, who had examined the prosecutrix and gave his opinion to the effect that she was about 12 years and less than 14 years of age. Sub Inspector PW-6 deposed about the registration of the first information. In this case, the investigation was entrusted to Women Cell, Headquarter, Delhi and the Investigation was completed by PW- 7. S.I. Amar Singh, PW-7 prepared the site plan Ex.PW-7/A and recorded the statements of the formal witnesses.
(6) On the basis of the creditworthy prosecution evidence, the learned Additional Sessions Judge has convicted the accused for an offence u/s 376, Indian Penal Code . and sentenced him to R.I. for ten years and a fine of Rs.4000.00 . In default of payment of fine, the accused was ordered to undergo S.I. for six months.
(7) In this case, the Court had appointed Mr. Akshay Vipin as amices curiae, for the appellant. Learned amices curiae pointed certain discrepancies in the statement of prosecution witnesses and he has challenged the judgment primarily on the ground that there is unexplained delay in lodging the F.I.R. When the prosecutrix in her statement mentioned that she had disclosed about the incident to her brother on 3rd March, 1987, then why was the F.I.R. lodged after 3-4 days' of delay. The other ground which has been argued by Mr. Akshay Vipin is that the appellant has been named because the prosecutrix was asked to name him by her brother because of previous enmity.
(8) Mr. R.D. Jolly, learned counsel appearing for the State has cited Harpal Singh Vs. State of Himachal Pradesh, , to show that delay alone will not be a ground of discrediting prosecution version. The facts were also identical where the girl was a minor and there was a delay of 10 days in lodging the First Information report. The Supreme Court has observed that it is not uncommon that such considerations delay action on the part of the near relations of a young girl who is raped. Therefore, the prosecution cannot be disbelieved on the ground of delay in lodging the First Information Report.
(9) I have considered the submissions made by amices curiae and learned counsel for the State and perused the relevant record in this case. Undoubtedly, there is a delay in lodging the First Information Report. It is a matter of common experience that in our country, people are quite hesitant in reporting such offences to the Police in majority of cases primarily to save honour of the family and the prosecutrix and in small number of cases as and when these cases are reported to the Police, they do so after considerable hesitation and long deliberations. In this view of the matter often there is delay in lodging the F.I.R. The prosecution version cannot be thrown out only on the ground of delay in lodging the first information report, otherwise in some cases it may lead to serious miscarriage of justice.
(10) Another criticism levelled against the prosecution version is that the prosecutrix was asked to name the appellant by her brother in law because of previous enemity is wholly devoid of any merit.
(11) It is not a normal human conduct that in such a case, the real culprit would be spared and some one else would be implicated by the prosecutrix or his relations. The statement of the prosecutrix is consistent with the statement of her brother, PW-3 Bhagwan Dass is also corroborated by the statement of PW-10, S.I. Suraj Pal Singh. The medical testimony also supports the prosecution version.
(12) I do not find any infirmity with the judgment of the learned Additional Sessions Judge. The prosecution has been able prove its case beyond reasonable doubt. The appeal being devoid of any merits is dismissed. The appellant be informed.