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IN THE HIGH COURT OF DELHI AT NEW DELHI
S.P. GARG, J.
MAHESH KUMAR @ TAPKA – Appellant
Versus
STATE – Respondent
CRL.A.446 of 2012
Decided On : 02-02-2017
Rape - Criminal Law - IPC 363, IPC 376, IPC 506 - The court discussed the prosecution's case, the victim's testimony, and the appellant's denial of involvement. The court considered the delay in lodging the FIR, the victim's initial silence, and the lack of medical examination. It emphasized the victim's consistent testimony, her age, and the absence of ulterior motives. The court concluded that the appellant's guilt was established based on the victim's testimony and modified the appellant's sentence based on time served.
Fact of the Case:
The appellant was convicted for kidnapping and raping a 13-year-old girl. The prosecution's case relied on the victim's testimony, while the appellant denied involvement. The delay in lodging the FIR and the victim's initial silence were raised as issues.
Finding of the Court:
The court found the victim's consistent testimony credible, emphasized her age as a factor in establishing the appellant's guilt, and concluded that the delay in lodging the FIR and the victim's initial silence did not undermine her testimony.
Issues: The issues included the delay in lodging the FIR, the victim's initial silence, and the credibility of the victim's testimony.
Ratio Decidendi: The court relied on the victim's consistent testimony, her age, and the absence of ulterior motives to establish the appellant's guilt. It emphasized that the victim's testimony alone could lead to conviction and that no corroboration was required.
Final Decision: The appellant's conviction under IPC 376 was upheld, and the sentence was modified based on time served.
S.P. GARG, J.
1. Present appeal is directed by the appellant – Mahesh Kumar @ Tapka against a judgment dated 04.01.2011 of learned Addl. Sessions Judge in Sessions Case No.88/09 arising out of FIR No.189/09 PS Pahar Ganj whereby he was convicted for committing offences punishable under Sections 363/376/506 IPC. By an order dated 06.01.2011, he was sentenced to undergo various prison terms with fine.
2. Briefly stated, the prosecution case as reflected in the charge-sheet was that on the night intervening 07/08.08.2009 at about 02.00 a.m. the appellant kidnapped the prosecutrix ‘X’ (assumed name) aged around 13 years from the lawful custody of her parents and thereafter committed rape upon her after criminal intimidation. PW-9 (Sanjay) in his testimony before the Court informed that on the night intervening 07/08.08.2009 at around 01.00 or 01.30 a.m. after hearing the voice of a girl weeping, he came outside and saw ‘X’ standing there. He enquired from her as to what had happened. ‘X’ went to her garage without disclosing anything. He did not inform the police fearing that he himself might be implicated in the case. PW-2 (Jagdish Chand) when came to know about the incident of commission of rape made a telephone call at 100 from Mobile No.9278835514 on 08.08.2009 at about 10.00 a.m. DD No.9A (Ex.PW-11/A) came into existence and the investigation was assigned to ASI Vedwati who along with Const. Nanak Ram reached the spot. The Investigating Officer after recording victim’s statement (Ex.PW-8/A) lodged report under Section 363 IPC. ‘X’ was medically examined; she recorded her 164 Cr.P.C. statement. Sections 376 and 506 were added in the FIR. During further investigation, the accused was arrested and medically examined. Statements of the witnesses conversant with the facts were recorded. Upon completion of investigation, a charge-sheet was filed against the appellant in the Court. In order to establish its case the prosecution examined sixteen witnesses. In 313 Cr.P.C. statement, the appellant denied his involvement and pleaded false implication in the crime. The trial resulted in conviction as aforesaid. Being aggrieved and dissatisfied, the present appeal has been preferred by him.
3. I have heard the learned counsel for the parties and have examined the file. Learned counsel for the appellant urged that the Trial Court did not appreciate the evidence in its true and proper perspective and overlooked vital infirmities and inconsistencies in the statements of the prosecution witnesses. Initially, the complainant had not lodged any report regarding commission of rape and FIR was under Section 363 IPC only. The victim had not implicated the appellant by name and had denied to have any acquaintance or familiarity with him. There is a considerable delay in lodging the FIR under Section 376 IPC. ‘X, a child witness has not presented true facts and conviction based upon her sole testimony is highly risky. Learned APP urged that the statement of the prosecutrix cannot be ignored in the absence of any prior animosity or ulterior motive.
4. The occurrence took place in the night intervening 07/08.08.2009 when at around 01.00 or 01.30 a.m. ‘X’ was found near the staircase in the gali away from her residence. PW-9 (Sanjay) who lived in the neighbourhood saw her weeping that time. ‘X’ did not disclose anything and went to her garage. Due to fear of involvement in the crime, PW-9 (Sanjay) did not lodge report that time. DD No.9A (Ex.PW-11/A) came into existence at PS Pahar Ganj at 10.08 a.m. It was informed that on the night intervening 07/08.08.2009 at around 03.35 a.m. incident of rape had occurred with a girl of 13 years of age at garage No.85, Aram Bagh, Pahar Ganj, Delhi. In her complaint (Ex.PW-8/A), ‘X’ disclosed that when she was sleeping along with her parents, she was kidnapped at around 02.00 a.m. by an unknown individual and was taken to the stairs nearby. When she raised alarm, someone from a nearby house came outside and t
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