Rajesh v. State of Delhi

judgment.

(S.P.GARG)

JUDGE February 20, 2013 sa

* IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON : February 04, 2013 DECIDED ON : February 20, 2013 + CRL.A.No.598/2000 RAJESH ..... Appellant Through : Mr.M.L.Yadav, Advocate. Versus STATE OF DELHI ..... Respondent Through : Mr.M.N.Dudeja, APP for the State. CORAM: MR. JUSTICE S.P.GARG S.P.GARG, J. 1. The appellant-Rajesh impugns his conviction in Sessions Case No.66/1999 arising out of FIR No.188/99 registered at Police Station Mansarover Park by which he was found guilty for committing offence under Section 376 IPC and sentenced to undergo RI for ten years with fine of `5,000/-. 2. Allegations against the accused were that on 09.08.1999 at 10:30 A.M. at house No.C-26, Gali No.13, Nathu Colony, Shahdara, Delhi, he committed rape upon "X" (assumed name) aged about three years. The prosecution examined 11 witnesses. In his statement under Section 313 Cr.P.C. the accused pleaded innocence. He stated that he was falsely implicated as X"s father was compelling his mother to sell their house to enable them to extend and rebuilt their house. On appreciation of the evidence and considering the rival contentions of the parties by the impugned judgment the accused was convicted and sentenced. Being aggrieved, the accused as preferred the present appeal. 3. Contention of the learned counsel for the appellant is that the Trial Court did not appreciate the evidence and documents on record in its true and proper prospective and fell in grave error to base its conviction on the sole testimony of X"s mother. She did not claim that the prosecutrix was sexually assaulted. She did not clarify what she meant by "gandi baat". No injuries were found on the body of the prosecutrix. Her hymen was intact. At the most, it could be a case under Section 354 IPC i.e. outraging the modesty of the child. No independent public witness was associated at any stage of the investigation. Learned Additional Public Prosecutor urged that the conviction does not call for any interference. There was no delay in lodging the report. Statement of the mother of the prosecutrix has been corroborated by medical evidence. 4. I have considered the submissions of the parties and have examined the record. The case of the prosecution is based upon circumstantial evidence. "X" was not examined under Section 161 Cr.P.C. Her statement under Section 164 Cr.P.C. was also not recorded. She was not produced in the court as she being a child was unable to understand the questions put to her and give rational answers. PW-6 (Kamlesh), "X"s mother, did not witness the occurrence. 5. The incident took place on 09.08.1999 at about 10:30 A.M. Daily Diary (DD) No.10/A (Ex.1/C) was recorded at 12:05 noon at Police Station M.S.Park on getting information that a child aged three years was raped and the person who had committed it was apprehended. The investigation was assigned to Head Constable Gyanender who with Constable Narender reached the spot and met "X" and her mother. The accused was also present there. "X" was taken to hospital for her medical examination. Statement of Kamlesh, "X"s mother, was recorded and Head Constable Gynender lodged First Information Report after preparing rukka (Ex.PW-1/A) at 02:30 P.M. There was no delay in lodging the First Information Report. In her statement (Ex.PW-6/A), Kamlesh gave detailed account as to how and under what circumstances Rajesh committed rape upon "X". Since the rukka was sent promptly there was least possibility of false fabrication. 6. PW-6 Kamlesh is a crucial witness. In her statement before the Court, she deposed that Rajesh was the son of her husband"s maternal uncle. On 09.08.1999 at about 10:30 A.M. she was present in the room on the ground floor. The accused went to the roof of her house for taking kite. While going upstairs, he took "X" with him and returned after five minutes. Her daughter came down weeping. She consoled her daughter and inquired why she was weeping. She told her that Rajesh committed rape (uske saath gandi