Delhi High Court
Pawan @ Amit @ Tinku vs State Nct Of Delhi on 3 September, 2014
Author: Mukta Gupta
Bench: Pradeep Nandrajog, Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: September 03, 2014
+ CRL.A. 20/2013
PAWAN @ AMIT @ TINKU ..... Appellant
Represented by: Ms.Inderjeet Sidhu, Amicus
Curiae.
versus
STATE NCT OF DELHI ..... Respondent
Represented by: Mr.Varun Goswami, APP for
the State with Inspector
Mukesh Antil, PS Anand
Parbat.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. Pawan @ Amit @ Tinku is convicted for rape and illegal confinement of a girl child 'R' aged four years vide the impugned judgement dated August 03, 2012 and directed him to undergo imprisonment for life and a fine of `5,000/- for the offence punishable under Section 376 (2) (f) IPC and Rigorous Imprisonment for a period of one year and a fine of `1,000/- for offence punishable under Section 342 IPC.
2. The ghastly act of the appellant would be best narrated in the words of the little girl who deposed before the Court after the Court ascertained whether she was competent to depose or not.
"I know Tinku who is present today. He lives in my gali. One day he had called me to eat Roti-Puri. I had gone to his Crl.A.No.20 of 2013 Page 1 of 6 house. Tinku is a bad boy. He bit me with his teeth (Daat se kata). The witness has been questions as to where the accused Tinku had bitten her and she has pointed towards her private parts.
"Usne mera pant khol diya tha. Pet par char gaya tha. Tinku ganda ladka hai. Usko jail me dalna hai. Wo mujhe phir se pakar lega. Usne susu dala tha. The witness again points towards her private parts."
3. In the cross-examination she denied that she was not taken to the house of Tinku and that no such incident took place or that she was tutored by her parents.
4. The version of the prosecution stands corroborated by her mother PW-2 who stated that her elder daughter 'R' was aged four years and her younger daughter is about 1½ years. Pawan @ Amit @ Tinku lived in her neighbourhood. On May 25, 2011, at about 2.00 PM her daughter had gone outside the house for playing but she did not return till 3.00 PM. She came out from the house in search of her daughter. She searched her in the locality and even market area but could not found her daughter anywhere. She asked Salma, her sister-in-law about 'R' who had also not seen her. Then she went to the house of Pawan for making inquiries about her daughter as she used to go to his house to play on the roof. The door was opened by Pawan, however, he told PW-2 that 'R' had not come to his house and shut the door. He did not even allow PW-2 to check whether her daughter was there or not even though she had asked him to do so. She became suspicious and then went again to the house of Pawan with her sister-in-law Salma, PW-3. Again Pawan did not permit them to go inside and stated that 'R' was not present in the house. They both forcibly entered Crl.A.No.20 of 2013 Page 2 of 6 the house and saw 'R' lying naked on the bed in the room. She was semi conscious and bleeding from her private parts. As there was no one else except Pawan in the house, PW-2 shouted on him as to why he had done this to her daughter. She raised alarm and other neighbours also collected at the house. Pawan was apprehended. She took her daughter to the hospital on the motorcycle of Mobin, brother-in-law of Salma where she was given medical aid. The version of the PW-2 is supported by PW-3 her sister-in- law.
5. The MLC of the prosecutrix was prepared by Dr.Sarita and was exhibited by Dr.Shyam Sunder Meena PW-20 vide Ex.PW-18/A. As per the MLC, the victim sustained the following injuries:
"i. Swelling of both labia majora with bleeding per vagina present.
ii. Bruises with impression of finger and nail marks over left side of fact.
iii. Swelling over left side of face.
iv. bruises contros,
v. Bite marks
vi. Bleeding through istontus
vii. Hymen torn, fresh injury bleeding."
6. The vaginal swabs and smear of the prosecutrix were sent for FSL. As per the FSL report Ex.PW-18/F human semen was detected on Ex.2/A the underwear of the prosecutrix. The same was of 'A' group origin which tallies with the blood stains found on the pant and underwear of Pawan.Crl.A.No.20 of 2013 Page 3 of 6
When the explanation of Pawan was sought in his statement under Section 313 Cr.P.C. his explanation was:
"I am innocent and have been falsely implicated in this case. On 25.05.2011, I was present in my house along with my friend Shankar and we were both consuming liquor. As I had consumed a lot of liquor, I went and lied down in the gallery near the main door of my house. The main door of my house was lying open. Shankar was watching a film on TV in the room where the bed is lying. I got up at around 4.30 PM and wore my clothes as I was wearing only my vest and lower (pyzama). At that time, Shankar had already left from my house. The family members of prosecutrix R (name kept back) came to my house and inquired about the prosecutrix about me and I told them that I am not aware about her whereabouts as she is not in my house. However, they went inside the bedroom from where the child was recovered. She was sleeping on the bed and was fine at the time of her recovery. She was not bleeding from her private parts nor had she sustained any injury. I do not know how sustained injuries as deposed by the prosecution witnesses.
On 25.05.2011, a quarrel had ensued between me and Mobin (phupha of the prosecutrix) and I was given beatings by him and other family members. At that time, I was under the influence of liquor. I have been falsely implicated in this case due to previous enmity with the complainant and his family. I did not rape the victim R (name kept back). If I had raped her, I would have tried to flee from my house. I am innocent."
7. Thus even in his explanation Pawan admits that he was present in his house on May 25, 2011 and also that the family members of 'R' found her inside the bed room of his house and recovered the child. Though he says that she was sleeping on the bed and was fine at the time of recovery however, this fact is belied by the MLC. Further the explanation of Crl.A.No.20 of 2013 Page 4 of 6 appellant that his friend Shankar was also present is also not born out from the evidence on record as PW-2 stated that both the time when she went to the house of Pawan he opened the house and did not permit her to enter the house and on the second occasion she forcibly entered the house with PW-3 and found the daughter lying on the bed in a naked condition with bleedings from her private parts.
8. Faced with the heavy odds of evidence against the appellant, learned counsel contends that the sentence of the appellant be reduced from life imprisonment to the period of ten years imprisonment which is the minimum prescribed as done by the Supreme Court in the decision reported as AIR 2012 SC 979 Bavo alias Munubhai Ambalal Thakore Vs. State of Gujarat. The mitigating circumstances advanced are that Pawan @ Tinku is also a young boy aged about 24 years old, has parents in the family and a mentally retarded brother. It is also pleaded that he is the first time offender. No doubt, the prosecution has not proved any previous involvement of Pawan however, the offence committed by him is serious in nature as he raped a four year old girl by confining her in his house and further sought to aggravate by preventing the family not to enter the house. In case the timely treatment was not given to the prosecutrix the consequence could have been very serious with the kind of injuries suffer by her. In the decision Bavo (supra), the Court took notice of the fact that the accused therein was of age of 18/19 years on the date of the incident, thus bordering on majority and the incident occurred 10 years ago. Thus, considering the time gap between the incident and the matter reaching the Supreme Court, it was noted that the sentence of rigorous imprisonment for 10 years would justify the action. In the present case, the incident is of August, 2012 i.e. just two years ago, the Crl.A.No.20 of 2013 Page 5 of 6 victim was aged 4 years and the appellant was not bordering the age of majority. Hence, the said decision has no application to the facts of the present case.
9. Considering the extenuating circumstances, we find no merit in the appeal. The same is dismissed.
10. T.C.R. be returned.
11. Two copies of the judgment be sent to the Superintendent Central Jail Tihar one for his record and the other to be handed over to the appellant (MUKTA GUPTA) JUDGE (PRADEEP NANDRAJOG) JUDGE SEPTEMBER 03, 2014 'vn' Crl.A.No.20 of 2013 Page 6 of 6