CRL.A.441/2011 Page 1 of 11

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IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON : 21^st January, 2013

DECIDED ON : 14^th February, 2013

+

CRL.A. 441/2011 & CRL.M.B.773/2012

MEGH NATH KUMAR

....Appellant

Through :

Mr.S.K.Sethi, Advocate

Versus

THE STATE (GNCT OF DELHI)

….Respondent

Through :

Ms.Fizani Husain, APP.

CORAM:

HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1.

The appellant-Megh Nath Kumar impugns his conviction and

sentence in Sessions Case No.37/2008 arising out of FIR No.90/2007

Police Station S.P.Badli by which he was held guilty under Section

342/376 (2) (f) IPC and sentenced to undergo RI for one year under

Section 342 IPC and RI for ten years with fine ` 5,000/- under Section

376 (2) (f) IPC.

2.

Daily Diary (DD) No.82B was recorded at PS S.P.Badli on

25.01.2007 at about 08.35 P.M. on getting information that at Rajeev

Nagar, Gali No.4 near Kabir Mandir a boy had attempted to sexually

assault (galat kaam) a girl aged 5 or 6 years. The investigation was

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CRL.A.441/2011 Page 2 of 11

assigned to ASI Jai Prakash who with Const.Subhash reached the spot. SI

Mohd. Navi took over the investigation and recorded statement of Roop

Kanti Devi, victim‟s mother who disclosed that on 22.01.2007 at about

07.00 P.M. her daughter „X‟ (assumed name) aged 6 years was taken

away by Megh Nath Kumar to his room on the pretext to give her toffee.

When she went to the room after some time, the door of the room was

close. She opened the door and found „X‟ present in the room. Her

daughter‟s pajami was removed up to her knees. When she objected,

Megh Nath started quarrelling with her. She narrated the whole incident to

her husband. She did not report the incident to the police as they were

threatened by the accused. She prayed to take legal action against the

accused as he had teased „X‟ by touching her private parts.

3.

SI Mohd. Navi prepared rukka and lodged First Information

Report. During the course of investigation, the prosecutrix was medically

examined. The accused was arrested. Prosecutrix‟s pajami was seized.

Statements of the witnesses conversant with the facts were recorded. The

exhibits were sent to Central Forensic Science Laboratory for

examination. After completion of the investigation, a charge-sheet was

submitted against the appellant. He was duly charged and brought to trial

for committing offence under Section 376 (2) (f) IPC. The prosecution

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examined fifteen witnesses. In his 313 Cr.P.C. statement, the accused

pleaded false implication. DW-1 (Kameshwar Mehto) was examined in

defence.

4.

Learned counsel for the appellant while assailing the

impugned judgment urged that the Trial Court did not appreciate the

evidence in its true and proper perspective. The inordinate delay of three

days in lodging the First Information Report with the police remained

unexplained. PW-2, a child witness was tutored to make the statement.

The investigation carried out by the police is shoddy. The witnesses who

lived in the premises were not associated. PW-1, prosecutrix‟ mother and

PW-2, have given inconsistent version and have made vital improvements

in their deposition in the Court. Throughout, case of the prosecutrix‟

mother was that an attempt was made to sexually assault the victim and no

allegations of rape were made. The counsel further urged that the Trial

Court conveniently ignored the defence pleaded by the accused. He

categorically stated that prosecutrix‟s father did not return`7,000/-

borrowed from him. No injuries were found on the body of the „X‟ when

she was medically examined. There was no oc