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2007 DIGILAW 1289 (DEL)

DULI CHAND v. STATE OF DELHI

2007-07-05

H.R.MALHOTRA, R.S.SODHI

body2007
R. S. SODHI, J. ( 1 ) CRIMINAL Appeal No. 689 of 2001 seeks to challenge the judgment and order of the Additional Sessions Judge, Kakardooma Court, Shahdara, Delhi in sessions Case No. 79 of 2001, arising out of F.. R. No. 165 of 1996, registered at police Station Trilok Puri, whereby learned judge vide her judgment dated 10. 04. 2001 has held the appellant, Duli Chand, guilty for offence under Sections 376/366/365 IPC. Further by her separate order dated 10. 04. 2001, has sentenced the appellant to life imprisonment with a fine of Rs. 10,000/- and in default of payment of fine, simple imprisonment for five months under Section 376 (2) (f) ipc. The appellant was further sentenced to undergo rigorous imprisonment for three years together with fine of Rs. 3,000/- and in default, simple imprisonment for 45 days under section 365 IPC and under Section 366 IPC, rigorous imprisonment for three years with fine of Rs. 3,000/- and in default, simple imprisonment for 45 days. Out of the fine, if realised, Rs. 9,000/- was to be paid to the prosecutrix. All the sentences were directed to run concurrently. Benefit of Section 428 of Code of Criminal Procedure was also awarded to the appellant. ( 2 ) BRIEF facts of the case as have been set down by the learned additional Sessions Judge in her judgment under challenge are as follows :- "on 21/03/1996, Matadin, R/o Village-Bhadeysar made a complaint to the police that his daughter Raj Kumari aged 4 years was missing from his house since 28/02/1996 on which he got a D. D. Entry recorded at Police Post Mandawali, that he had searched for his daughter amongst his relatives and friends, that his daughter has not been traced and that he apprehends that his daughter has been kidnapped. An FIR was recorded on 21/03/1996. The child was recovered on 26/08/1999. The child was produced before the Ld. Metropolitan Magistrate for her statement U/s. 164 Cr. P. C. Both the kidnapped child and the accused from whom the child was recovered were subjected to medical examination and, thereafter, the accused was challanned. The Ld. Additional Sessions Judge to whom the case was marked after committing to Court of Sessions framed charges against the accused Duli Chand U/s. 363/366/365 and 376 of the Indian Penal Code. P. C. Both the kidnapped child and the accused from whom the child was recovered were subjected to medical examination and, thereafter, the accused was challanned. The Ld. Additional Sessions Judge to whom the case was marked after committing to Court of Sessions framed charges against the accused Duli Chand U/s. 363/366/365 and 376 of the Indian Penal Code. " ( 3 ) THE prosecution examined the prosecutrix, Raj Kumari, PW-2, kundi Bai, mother of the child, PW-3, Matadin, father of the child as also PW- 13, Ms. Bimla Kumari, learned Metropolitan Magistrate, who recorded the statement of the prosecutrix under Section 164 of Code of Criminal Procedure. The prosecution further examined the doctors PW-9, Dr. M. K. Mandal and PW-10, dr. Kalpana Kumar, who examined the girl, Raj Kumari, and prepared MLC Exhibit pw 9/a. ( 4 ) LEARNED counsel for the appellant, in the first instance, argued that the appellant had not been provided with counsel during trial and this has gravely prejudiced the case of the appellant. He prayed that the matter be remanded to afford proper opportunity to the appellant. In order to ascertain the factual position of this case, we went through the record and order sheets of the case and found that at the request of the accused, amicus Sh. Sanjay gupta, Advocate was appointed on 29. 01. 2000. He conducted the case on behalf of the appellant during the trial and has cross-examined some of the witnesses. This contention of the counsel that Legal Aid has not been provided to the appellant is contrary to the record of this case. We are not extensively reproducing the evidence already produced by the trial court in its judgment. However, while appreciating the material on record, we have carefully taken into consideration the statements made by all the witnesses and, in particular, the statement under Section 164 of Code of Criminal Procedure of the prosecutrix as also the statement of the father of the prosecutrix, who recognized his child at kakrola at the house of the appellant, Duli Chand. ( 5 ) LEARNED counsel does not dispute that the child remained with the appellant, Duli Chand, for three years nor does he dispute that Duli Chand removed the child from the lawful guardianship of the parents. He fairly adverts to the grounds of appeal where the case of the appellant himself has been stated. ( 5 ) LEARNED counsel does not dispute that the child remained with the appellant, Duli Chand, for three years nor does he dispute that Duli Chand removed the child from the lawful guardianship of the parents. He fairly adverts to the grounds of appeal where the case of the appellant himself has been stated. He, however, contends that merely because the hymen of the prosecutrix has been torned, does not indicate that she has been subjected to rape by the appellant. He submits that hymen could have torned due to infection which has been noticed in the MLC. Dealing with the contention raised by the learned counsel, we may advert to the medical evidence in this case as has been deposed to by Dr. Kalpana Kumar, SDN Hospital, Shahdara, who states that on 26. 7. 1999, she was working as EMO (G) in the Hospital and on that date the prosecutrix, Raj Kumari, daughter of Matadin, aged seven years, was referred to her by CMO, Dr. M. K. Mandal. The doctor medically examined Raj Kumari and on examination found the patient conscious and oriented; secondary sex character not developed; no fresh injury seen over breast, face and perineum. On local examination, excoriation present all around Vulva. Vulva seen red with scattered area of excoriation and ulceration. Hymen torn from multiple sides and old tear present. Vagina admits one finger easily. ( 6 ) IN the statement under Section 164 of the Code of Criminal procedure of the prosecutrix, recorded by PW-13, Ms. Bimla Kumar, she clearly states that rickshaw wala, Duli Chand, who was her neighbour offered to give her ride in her rickshaw when she was playing at Mandawal. He took her to Gurgaon where she was kept for two years and then to Kakrola where she was confined for another two years. The accused used to make her cook, bring water, smear the house with cow dung and at night remove her underwear and do "gandi baat". She also narrates about the beating that she would be administered on occasions when she refused to bring water. The child has also stated that the appellant, Duli chand, used to insist that the child supports a bindi and on refusal she would be beaten and on her inquiry about her parents, she was informed that her parents are dead. She also narrates about the beating that she would be administered on occasions when she refused to bring water. The child has also stated that the appellant, Duli chand, used to insist that the child supports a bindi and on refusal she would be beaten and on her inquiry about her parents, she was informed that her parents are dead. There is no doubt that in court in the presence of Duli chand, the prosecutrix appears to have frozen, obviously out of fear. Yet, we have on record the medical evidence, her statement under Section 164 of Code of criminal Procedure, which was recorded by the Magistrate, PW-13, who deposes to having recorded the same and we find no reason to disbelieve the same. ( 7 ) TAKING into consideration the statement under Section 164 of code of Criminal Procedure of the prosecutrix as also the medical evidence and the lack of explanation of the accused as to how and why he took the child from the lawful guardianship of her parents and detained her for over three years, is sufficient to prove the charge framed against him. ( 8 ) WE have also been taken through the judgment of the trial court and have noted with satisfaction that the trial court has dealt with the entire evidence on record, considered the same and arrived at a conclusion which cannot be faulted. Accordingly, while upholding the judgment and order under challenge, we dismiss Criminal Appeal No. 689 of 2001.