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2012 DIGILAW 2459 (DEL)

Jay Ram Singh v. State

2012-08-13

S.P.GARG, SANJIV KHANNA

body2012
JUDGMENT : Sanjiv Khanna, J. 1. The appellant, Jay Ram Singh, has filed this appeal against his conviction under Section 376 of the Indian Penal Code (IPC, for short) for having committed rape of his daughter (hereinafter referred to as ‘the prosecutrix’) aged about 6 years. By order or sentence dated 7th November, 2005, he has been directed to undergo Life Imprisonment and to pay a fine of Rs.2,000/- and in default of payment to undergo simple imprisonment of 1 year. 2. The prosecutrix had appeared as PW2. She being a minor, aged about 6 years, was questioned by the Learned Additional Sessions Judge to ascertain whether she was tutored and was in a position to understand and properly answer the questions put to her. In her statement, the prosecutrix identified the appellant as her father and has stated as under:- “My father is present in court today. He had taken off his own pant and my pant and has inserted his organ into my body. She points out towards her private part. I got lot of pain. My mother had gone for her work. It was done on the bed. The accused also threatened me that he would poison my mother and would cut my neck and blame someone else. My mother came after sometime. I told all the above mentioned facts to my mother. This had happened may days before now. My mother took me to P.S. where Ex.PW-1/A report was lodged by me and my mother. It bears my R.T.I at point ‘B’. My statement was recorded before the Court. At this stage ‘Pyjami’/pant is shown to the witness who identifies the same which was worn by her at the time of incident. The Pyjami is Ex.P-1. (At this stage a sealed envelope sealed with the seal of ‘BK’ is opened and some papers are taken out. These papers bear my thumb impression at point ‘A’ on both the pages. These are Ex.PW2/A.)” 3. The statement of the prosecutrix was also recorded under Section 164 of Code of Criminal Procedure (Cr.P.C.) before the PW10, Mr. Rakesh, Metropolitan Magistrate on 21st February, 2004. The said statement has been exhibited as Ex.PW2/A. The application for recording of the statement was made on 13th February, 2004. The statement, Ex.PW2/A, is similar and identical to the statement made by the prosecutrix in the Court. Rakesh, Metropolitan Magistrate on 21st February, 2004. The said statement has been exhibited as Ex.PW2/A. The application for recording of the statement was made on 13th February, 2004. The statement, Ex.PW2/A, is similar and identical to the statement made by the prosecutrix in the Court. There are no material contradictions in these two statements of PW2. When cross-examined, PW2 has stated that she had spoken and had narrated the truth and had not made the statement at the instance of her mother. 4. The mother of the prosecutrix, Mrs. Rekha, had appeared as PW1. In her statement, she had indicted the accused, inter-alia, stating, that she had got married to the appellant about 7 years back. She was doing domestic work in the Mayur Vihar Kothis. They had four children including two daughters. The appellant was a drunkard and he also used to play ‘Satta’. On 7th February, 2004, she came back to Jhuggi after doing domestic work in the Mayur Vihar Kothis at about 12.30 PM. She had taken her youngest daughter, aged about 6 months, with her. When she left for work, she had indicated that she would return by 2.00 PM. She opened the door and found that her daughter-prosecutrix was crying. She was not wearing the underwear and standing on a bench/Takhat. The prosecutrix was nervous and told that the appellant-her father, would kill her. PW1 has stated as under:- “When I entered the room the accused was rubbing his penis with the vagina of my daughter. His semen was found on the ‘Pyjami’ of my daughter. My daughter told me that the accused had tried to put his penis in her mouth as well. She also told me that when she refused to take his penis in her mouth, the accused used to beat her. She also told me that when the accused threatened her that in case she told all these facts to me, he would give poison to me and would chop off her neck. The accused grappled with me and ran away. I waited for the accused for two days. The accused did not turn up and therefore, I sent a report and a complaint to the police. I had also signed the complaint which is Ex.PW-1/A. I had washed the ‘Pyjami’ of my daughter. My daughter was medically examined later on. The accused grappled with me and ran away. I waited for the accused for two days. The accused did not turn up and therefore, I sent a report and a complaint to the police. I had also signed the complaint which is Ex.PW-1/A. I had washed the ‘Pyjami’ of my daughter. My daughter was medically examined later on. She was also produced before the Magistrate where her statement u/s 164 Cr.P.C. was recorded. 5. Statement of PW1 was also recorded under Section 164 Cr.P.C. and in her statement recorded by PW10, which is exhibited as Ex.PW10/E, PW1 had made an identical statement before PW10. 6. PW1 was cross-examined and had stated that she used to go to do domestic work in the Mayur Vihar Kothis at 4.00 AM and used to come back at 12.30 PM. The appellant was a rickshaw pullar. She was raped by him and under compulsion she got married to him. She reiterated that ‘Pajama’ was washed by her and that she had not tutored the prosecutrix. She had stated that there was no reason to falsely implicate the appellant. Even in the statement under Section 164 Cr.P.C., PW1 had stated that she had got married to the appellant under compulsion, after the appellant had raped her. Learned counsel for the appellant submits that there is no proof of this allegation. No complaint or FIR was filed. Even if we ignore this allegation, there is no ground or reason to ignore or discount the other allegations made against the appellant. They were married for about 7 years. Making the said allegation against her own husband involving her own minor daughter aged 6 years, would have caused a lot of embarrassment and stress. The statement made cannot be taken lightly or without basis or substance. 7. The prosecutrix was examined by PW3, Dr. Meeta, SR Gaynae, LBS Hospital, New Delhi on 9th February, 2004 at about 10.40 PM. The MLC is exhibit Ex.PW3/A. As per MLC, the prosecutrix had suffered sexual assault two days back and that there were similar episodes many times in last five-six months. No injury marks visible but redness was seen over the labia majora. Hymen was found torn. 8. Learned counsel for the appellant submitted that there was delay of two days in recording of the FIR. Secondly, it is submitted that as per the CSFL report (Ex.PW11/A) tests were inconclusive. 9. No injury marks visible but redness was seen over the labia majora. Hymen was found torn. 8. Learned counsel for the appellant submitted that there was delay of two days in recording of the FIR. Secondly, it is submitted that as per the CSFL report (Ex.PW11/A) tests were inconclusive. 9. We do not find any merit in the said contentions. The statements of the prosecutrix PW2 and her mother PW1 are clear and categorical. The reasons for delay in filing the FIR can be explained as the allegations were made against the father. The apprehension, embarrassment and courage required by the daughter-PW2 and the mother-PW1 in the said situation can be appreciated and understood. PW1 was working as domestic help in the houses. Going to the police itself requires deliberation and fortitude. The delay in this case in filing of the FIR cannot be regarded as fatal and stands explained. Moreover, the allegation against the appellant stands proved by the MLC on record. 10. In the cross-examination, it was put to PW1 that she had falsely implicated the appellant-accused. However, no reasons for false implication of the appellant by PW1 were given or put to the said witness. It is not apparent why and for what reasons and cause PW1 would have falsely implicated the appellant. PW1 had made a similar statement under Section 164 before the Magistrate. The prosecutrix PW2 is equally forthright, lucid and clear in her statements. 11. The appellant in his statement under Section 313 Cr.P.C. has accepted the fact that he had got married to PW-1 Rekha about 7 years back and had two sons and two daughters and that the prosecutrix was his daughter. He had stated that PW-1 had come back at 10.30 AM and not at 12.00 Noon as she usually used to come, though she had stated that she would come back at 2.00 PM. He has not denied the fact that the prosecutrix was with him. He had stated that no crime was committed by him and he was falsely implicated by PW1 in connivance with the police and brother of the PW1, namely, Manoj who was involved in criminal cases and was a person of bad character. The said explanation or justification does not merit acceptance. There is no material or evidence against Manoj. There is nothing on record to show that Manoj was a person with bad antecedent. The said explanation or justification does not merit acceptance. There is no material or evidence against Manoj. There is nothing on record to show that Manoj was a person with bad antecedent. PW1 was not cross-examined on the said aspect. No question viz Manoj was put to her. PW2 was also not asked any question about Manoj and his antecedents. We do not see any reason to disbelieve PW2 the prosecutrix-child witness, PW1 the mother, and the MLC Ex. PW3/A. On the question of quantum of sentence also, no ground for interference is made out. 12. We do not find any merit in this appeal. The appeal is dismissed and the conviction and the sentence are sustained.