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2020 Supreme(Del) 1449
IN THE HIGH COURT OF DELHI AT NEW DELHI
Vibhu Bakhru, J.
Sabhajeet Maurya - Appellant
Versus
State NCT Of Delhi - Respondent
Criminal Appeal No. 493 of 2013; Criminal Miscellaneous (Bail) No. 7547 of 2020
Decided On : 26-11-2020
Anu Narula, Advocate, Rohan Ahlawat, Advocate, Ravi Nayak, Advocate
Headnote:(A) Indian Penal Code, 1860 - Sections 376, 313, 307 - Conviction of step-father for multiple offences against step-daughter, including rape and attempt to cause miscarriage - Convicted for rape under Section 376 due to compelling DNA evidence confirming paternity of the abortus - Convicted for 25 years of imprisonment. (Paras 48, 72-78, 118)
(B) The prosecutrix's testimony was deemed partially unreliable due to inconsistencies, yet corroboration through DNA evidence established guilt. (Paras 34-43)
(C) The trial court’s determination of intent to murder under Section 307 was unsupported by evidence of an intent to kill, essential for such a charge. (Paras 89, 115-119)
Facts of the case:
The appellant was found guilty of raping his minor stepdaughter multiple times; he was HIV positive and allegedly attempted to cause her miscarriage by administering pills. (Paras 2-12)
Findings of Court:
The court found substantial corroboration of rape charges but insufficient evidence for miscarriage and attempted murder, leading to altered sentencing. (Paras 118-119)
Issues: The key issues involved reliability of the prosecutrix's statement versus corroborative evidence and whether intent to murder could be established. (Paras 34-37, 70-96)
Ratio Decidendi: Despite inconsistencies in the prosecutrix's testimonies, DNA evidence conclusively linking the appellant to the crime warranted conviction for rape. However, charges of miscarriage and attempted murder lacked sufficient evidentiary support. (Paras 44-75, 79)
Result: Appeal partially allowed; conviction for rape upheld but convictions for causing miscarriage and attempt to murder set aside.
| Table of Content |
|---|
| 1. conviction for serious offences and sentencing details. (Para 1 , 2) |
| 2. factual background of the case. (Para 3 , 4 , 5 , 6 , 7) |
| 3. witness testimonies are crucial in establishing facts. (Para 14 , 15 , 16 , 17) |
| 4. credibility and reliability of the prosecutrix's testimony. (Para 34 , 35 , 36 , 37) |
| 5. legal standards for conviction under sections 376, 313 ipc. (Para 48 , 49 , 50) |
| 6. conviction for attempt to murder and related legal principles. (Para 71 , 76 , 80) |
| 7. final judgment and orders by the court. (Para 118 , 119) |
JUDGMENT
Vibhu Bakhru, J. - Introduction
1. The appellant impugns a judgment dated 27.08.2012 delivered by the learned ASJ-02, North West Rohini Courts, Delhi (hereinafter ''The Trial Court''), whereby the appellant was convicted under Sections 376 /313/307 of the INDIAN PENAL CODE , 1860 (hereinafter ''IPC''). The appellant also impugns an order on sentence dated 14.09.2012, whereby the appellant was sentenced to undergo (i) rigorous imprisonment for a period of ten years with a fine of Rs.2000/- and in default of payment of fine, to undergo one month simple imprisonment, for the offence punishable under Section 376 of the IPC; (ii) rigorous imprisonment for a period of five years with a fine of Rs.2000/- and in default of payment of fine, to undergo one month of simple imprisonment for the offence punishable under Section 313 of the IPC; and (iii) rigorous imprisonment for a period of ten years with a fine of Rs.2000/- and in default of payment of fine, to undergo one month of simple imprisonment for the offence punishable under Section 307 of the IPC. All the sentences were directed to run consecutively. Thus, in effect, the appellant has been sentenced to twenty-five years of rigorous imprisonment apart from fines.
2. The Trial Court found the appellant guilty of raping his step daughter and since the appellant is infected with Human Immunodeficiency Virus (HIV Positive), he was also convicted for an offence punishable under Section 307 of the IPC - attempt to murder. The Trial Court reasoned that since the appellant was aware that his acts could result in transmitting the potentially lethal disease, he had knowingly committed an act, which if resulted in transmitting of HIV and consequently, the death of the victim from that disease, it would amount to murder.
Factual background
3. The appellant was prosecuted pursuant to registration of FIR bearing no. 281/2011, under Section 376 of the IPC with PS Shalimar Bagh. The said FIR was registered on 05.08.2011, pursuant to the statement made by a girl, who was aged about fifteen years at the material time. Her identity is concealed and she is hereafter referred to as ''the prosecutrix''. She had alleged that the appellant - who is her step father - had forcibly raped her multiple times
4. On 05.08.2011, the prosecutrix along with one Swati Sharma (PW-7) from NGO Prayas came to PS Shalimar Bagh and reported that the accused, who was her step father had continuously raped her. She handed over one UPT Positive Kit dated 03.08.2011 (Ex PW6/B) with one prescription/observation of Dr. Anita Harish (Ex PW6/C) and four medical documents of BSA Hospital (Ex PW14/A-1 to PW14/A-4) to SI Durga Kapri (PW-14). SI Durga Kapri examined the prosecutrix and recorded her statement (Ex. PW 8/A). Thereafter, the prosecutrix along with Ct. Parul, Swati Sharma and SI Durga reached Babu Jagjivan Ram Hospital (BJRM Hospital), where the prosecutrix was medically examined. SI Durga Kapri received the MLC of the prosecutrix. She prepared the rukka (Ex PW14/B) and on her direction, the duty officer recorded the FIR on the basis of the statement of the prosecutrix and the rukka.
5. The prosecutrix was referred to the Gynecological ward and underwent Dilation and Evacuation procedure. She remained admitted in the hospital till she was discharged on 09.08.2011.
6. On 06.08.2011, SI Durga Kapri went to BJRM Hospital to record the statement of the prosecutrix. The prosecutrix
