Delhi High Court
Shankar Lal vs State on 19 November, 2010
Author: Mukta Gupta
Bench: Mukta Gupta
$~ R-1B
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 686/1999
Decided on 19th November, 2010
SHANKAR LAL ..... Appellant
Through: Mr. Tarun Verma, Amicus Curiae.
versus
STATE ..... Respondent
Through: Mr. Manoj Ohri, APP with SI
Shekhar, PS Civil Lines, Delhi.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Not Necessary
2. To be referred to Reporter or not? Not Necessary
3. Whether the judgment should be reported
in the Digest? Yes
MUKTA GUPTA, J. (ORAL)
By this Appeal the Appellant lays a challenge to the impugned judgment of conviction and sentence passed by learned Additional Sessions Judge whereby he has been convicted for an offence under Section 376 IPC and directed to undergo the sentence of rigorous imprisonment for a period of 7 years.
As per the prosecution case on 22nd March, 1993 an information was received at PS Civil Lines at 11:05 P.M. that daughter of Ram Prasad, aged nine years has been raped by Shanker Lal, upon which SI B.R. Kaushik along with Constable Lal Singh went to the spot. Since the Prosecutrix had already been removed to the hospital, the investigating officer PW10 SI B.R. Kaushik reached civil hospital where he was Crl. A. 686/1999 Page 1 of 10 informed that the girl has been sent to Hindu Rao Hospital as no Gynecologist was available in the civil hospital. PW10 obtained the MLC of the girl from the civil hospital and Hindu Rao Hospital. On the prosecutrix being declared fit her statement was recorded by him being Exhibit PW1/A on which a ruqqa was sent to the Police Station for registration of the FIR. In her statement the prosecutrix stated that she was residing in the Jhuggi and at about 8.30 P.M. when she had gone to urinate out of her house near the hill (pahari) her neighbor Shankar Lal came there, picked her up and made her lie on a big stone on the hill and committed rape on her. She cried and on hearing her cries another neighbour Chander, came there who took her out from underneath the Appellant. Blood was coming out from her private parts, police was called and she was taken to the hospital. The prosecutrix as per the radiological examination duly proved by PW7 vide his report exhibit PW7/A was aged between 7 to 9 years. The prosecutrix was first taken to the civil hospital where her MLC Ex PW6/B was prepared by Dr. Rajesh Gupta PW6 who found minor injuries below the right lower eye lid and also blood through her gentiles. As the condition of the prosecutrix was serious she was referred to Hindu Rao Hospital where she was examined and it was found that besides the hymen being torn, there was a second degree vaginal tear on the posterior vaginal wall of right side about 1½ inch long which was stitched and under general anesthesia stitches were given to her. After registration of FIR the accused was arrested from his Jhuggi on the same night and was Crl. A. 686/1999 Page 2 of 10 medically examined vide MLC Ex. PW6/A. The statement of the prosecutrix was recorded under Section 164 Cr.P.C. by the learned Magistrate who was examined as PW11. In her statement before PW11 the prosecutrix reiterated the version which she had narrated in her statement to the police on the basis of which the FIR was registered. On completion of investigation, the charge-sheet was filed. After the recording of the prosecution witnesses, statement of accused under Section 313 Cr.P.C. and the defence witnesses, the learned ASJ passed the impugned judgment.
Learned amicus curiae challenging the judgment has contended that there are contradictions in the testimony of the prosecutrix. She has stated that she shrieked and shouted whereas in her cross examination she says that she did not shout/shrieked when the accused picked her up. Despite the fact that the prosecutrix was laid on a stone no injury on her back is seen or recorded by PW6 who prepared her MLC Ex. PW6/B. Since the prosecutrix has stated that her clothes were not seized in the hospital, the CFSL report is suspected. PW2 Chander who is stated to be the person who brought prosecutrix back from the hill has turned hostile and has not supported the prosecution case. Further, the FIR was lodged belatedly, as the incident allegedly took place at about 8.30 P.M on 22nd March, 1993 whereas the time of sending the ruqqa as recorded on the endorsement on the statement recorded of the prosecutrix Ex. PW1/A reads as 1.20 A.M. on 23rd March, 1993. PW5 constable Lal Singh who had accompanied the IO PW10 SI B.R. Kaushik, has Crl. A. 686/1999 Page 3 of 10 categorically stated that the IO did not record his statement and that he does not even know from where the accused was arrested. Contradiction has also emerged in the condition of the prosecutrix. It is stated that the condition of the prosecutrix was serious and she was administered general anesthesia despite that her statement was recorded at 1.00 AM. It is argued that PW6 Dr. Rajesh Gupta who allegedly examined the prosecutrix at the civil hospital in his testimony has stated that the injuries to the prosecutrix could be possible by the insertion of penis or finger or by pushing something in the vaginal. It is stated that this corroborates the Appellant‟s defence that he was falsely implicated. The Appellant had built a jhuggi near the jhuggi of the prosecutrix, which was objected to by her father and due to this enmity the appellant has been falsely implicated. PW8 Dr. Urmil Ghai has stated that the discharge slip marked „X‟ is not in the handwriting and under the signatures of Dr. Sudha Shikha Patnaik and she cannot say whose signatures are there at encircled point „A‟ on mark „X‟. PW9 Dr. Tripta Yadav who has proved the OPD card Exhibit PW9/A and the photocopy of the report of examination in the operation theatre under general anesthesia as exhibit PW9/B is not the author of the document and hence she could not have exhibited and proved the said document in the absence of Dr. Sudha Shikha Patnaik being examined as witness. The FSL report does not connect the Appellant with the crime as no blood was detected on the underwear of the accused. Moreover, no semen was detected either on the vaginal swab or on the frock of the prosecutrix. The most crucial witness i.e., the mother of the prosecutrix Crl. A. 686/1999 Page 4 of 10 has not been examined. The Appellant was arrested from his house and it is highly unnatural conduct on the part of the Appellant that he would continue to be in his Jhuggi after committing such an offence. As the prosecution has not been able to prove its case beyond reasonable doubt, the Appellant is entitled to be acquitted of the charge framed against him.
Learned APP for the State on the other hand contends that the prosecutrix was a child of tender age of 7 to 9 years which has been proved as per the opinion Ex. PW7/A, of the radiologist. The testimony of the prosecutrix proves the prosecution case beyond reasonable doubt against the Appellant and the conviction can be based solely on her testimony. FIR was lodged on the statement of the prosecutrix and thereafter her statement was also recorded by learned Metropolitan Magistrate under Section 164 Cr.P.C., who has been examined as PW11. The prosecutrix in her testimony has stated the same facts as she has stated in her statement under Section 164 Cr. P.C. and the FIR. Despite lengthy cross examination nothing has been elicited in her cross- examination which would point towards the appellant being an innocent who is implicated falsely. The so called contradictions which are sought to be pointed out are inconsequential and in fact when put in a sequence they explain exactly what had happened. Reliance is placed on Santosh Kumar Vs. State of M.P., 2006 (10) SCC 595 to contend that the evidence of hostile witness cannot be treated as efaced from the record and part of his evidence which corroborates other evidence can be considered. Thus, the testimony of PW2 Chander, the neighbor who had rescued the Crl. A. 686/1999 Page 5 of 10 prosecutrix from the clutches of the Appellant though has turned hostile however, even part of his testimony where he states that there was blood on the thighs of the prosecutrix can be used to corroborate the testimony of prosecutrix.
As regards the contention of delay in lodging the FIR it is stated by the learned APP that this contention of the appellant is wholly misconceived as the same was lodged immediately after the incident. The incident took place at around 8.30 P.M. and after that a call was made to the police station. The PCR took her to the civil hospital where she was examined by PW6 Dr. Rajesh Gupta who prepared her MLC Exhibit PW6/B at 11.50 P.M. However, since there was no gynecologist available in the hospital and her condition was serious she was referred to Hindu Rao Hospital. It is at this stage that before general anesthesia was administered to her at about 1.00 A.M on the intervening night of 22/23rd March, 1993 her statement was recorded and ruqqa was sent to the Police Station. In the ruqqa itself the Appellant is named by the prosecutrix.
The next contention advanced by the learned APP is that the MLC of the prosecutrix shows hymen torn and bleeding private parts. As per the time recorded in the MLC the patient was examined at 11.50 P.M. The history of assault was nearly three hours back thus corroborating the time when the incidence took place. Though PW8 Dr. Urmil Ghai could not identify the handwriting and signatures of the Doctor who prepared the discharge slip however, Dr. Tripta Yadav PW9 has proved the photocopy of the OPD card and report of examination in the operation Crl. A. 686/1999 Page 6 of 10 theatre Exhibit PW9/A and Exhibit PW9/B. The contention of learned counsel for the Appellant as regards the absence of semen on the vaginal swab is meritless as there is no requirement of discharge and presence of semen in the vagina or clothes. Reliance is placed on Aman Kumar Vs. State of Haryana 2004 (4) SCC 379. It is further contended that as per exhibit PW6/A the MLC of the appellant shows absence of smegma which indicates that he had sexual intercourse within the last 24 hours. It is prayed that there is no merit in the appeal and the same deserves to be dismissed.
This is a case where sexual intercourse has been committed on a child of tender age of 7 to 9 years. The age of the prosecutrix has been proved by radiological examination conducted on her by PW7 Dr. C.P. Sharma. The testimony of PW1 the prosecutrix is cogent, convincing, unblemished and needs no corroboration. The Appellant has been named even in the first PCR call received at the Police Station recorded vide DD No.22A, Ex. PW10/A. Immediately thereafter the statement of the prosecutrix has been recorded based on which the FIR has been registered. In her statement to the police prosecutrix has named the Appellant as her assailant. Not only the statement to police but even in her statement recorded under Section 164 Cr.P.C. by the learned Metropolitan Magistrate PW11 she has stated the same facts. In her testimony before the Court also the appellant has been named and identified. The testimony of the prosecutrix itself proves the offence committed by the appellant beyond reasonable doubt. Crl. A. 686/1999 Page 7 of 10
I do not find any merit in the contentions raised by the learned counsel for the Appellant which are stated to discredit the testimony of the prosecutrix. The Prosecutrix has stated in her testimony that she shrieked and shouted while the appellant was committing the act. In her cross examination she has stated that she did not shriek or raise alarm when she was picked up as the appellant had put a cloth on her mouth and muffled it. The contention of the learned counsel for the Appellant that despite the fact that she was made to lie on the stone there is no injury on the back is ill-merited as it is not necessary that when a person is layed on the stone she is bound to have injuries on her back. The MLC of the appellant Exhibit PW6/A shows injuries on the neck of the appellant which as per PW6 were of recent duration. The frock of the prosecutrix was seized when she was taken to the hospital and operated under general anesthesia. At that stage she could not know about its seizure by the doctor. Though PW2 has turned hostile however he has stated that soon after the incident he saw blood on the thighs of the prosecutrix and this version of PW2 also corroborates the testimony of PW1. The medical evidence further corroborates the testimony of the prosecutrix. At this stage, it would be appropriate to reproduce the observation of the doctor:
"As per record, on examination under GA vagina was found torn, there was 2% vaginal tear on posterior vaginal wall extended upto right side 1 1/2" long. Vagina was explored and vaginal tear was sutured in layer. Two slides of smear were prepared from vaginal swab. Frock of the prosecutrix was also sealed. The patient was given one unit of blood."
I see no merit in the contention raised by the learned counsel for the Appellant that since Dr. Sudha Sikha Patnaik has not been examined Crl. A. 686/1999 Page 8 of 10 the medical evidence cannot be looked into. Undoubtedly since PW8 Dr. Urmil Ghai has not identified the handwriting in the discharge slip the same cannot be looked into. However photocopy of the OPD card and the report of examination under general anesthesia has been duly proved by Dr. Tripta Lal PW9 who has been examined and has identified the signatures of Dr. Patnaik. Moreover, this witness has stated that she herself had also examined the prosecutrix on that date.
Presence or non presence of the semen on the vaginal slides or the cloth of the prosecutrix is not essential for determination of commission of an offence of rape. The act of penetration is sufficient to constitute the commission of offence punishable under Section 376 IPC and in the instant case penetration has been proved by the medical examination of the prosecutrix.
I also do not find any merit in the contention that the accused being found in his Jhuggi after the incident is a conduct indicative that he had not committed rape. Each individual reacts in a different manner in similar circumstances. The prosecution rightly did not examine the mother as a witness as she was not an eye witness to the incident and came to know about the incident only from the prosecutirix.
I find no infirmity in the judgment convicting the appellant for the offence punishable under section 376 IPC. On the point of sentence for an offence under Section 376 (2) (f) in case of rape on a woman when she is under 12 years of age the minimum sentence prescribed is 10 years which may extend to life and fine. For adequate and special reasons to be Crl. A. 686/1999 Page 9 of 10 stated in the judgment the Court can impose a sentence of imprisonment for either description for a term less than 10 years. In the case at hand it has been proved that the prosecutrix was below the age of 12 years, however, the appellant has been awarded a sentence of Rigorous Imprisonment for seven years by the learned Trial Court. Not only no special reasons have been recorded in the judgment for awarding a sentence of less than 10 years it is recorded that the accused deserves no leniency. However, no Appeal has been filed by the State for enhancement of the sentence. At this stage i.e. after 17 ½ years of the incident and 11 years after the date of pronouncement of judgment it would not be in the interest of justice if this court now issues a show cause notice for enhancement of sentence to the appellant. Thus, the sentence awarded by the learned trial court to undergo RI for a period of 7 years is maintained.
Accordingly the appeal is dismissed.
MUKTA GUPTA, J.
NOVEMBER 19, 2010 vn Crl. A. 686/1999 Page 10 of 10