PREM PAL @ PREMI Vs. STATE (DELHI)

JUDGEMENT

(1.) THIS is an appeal against the judgment of the learned Sessions Judge by which the appellant guilty under section 376 Indian Penal Code and sentenced him to undergo imprisonment for life.

(2.) THE prosecution case is that on 7.9.1982 Mamta Kakkar d/o Surinder Kakkar, aged 4 years, resident of West Patel Nagar was coming back from the Municipal School at 12 noon where she was studying. On her way back she was enticed by the appellant who first gave her some biscuits and is then said to have taken her to a toilet and then committed rape on her. In this process she started bleeding from her private parts. She then came back home crying and told her mother of this incident who took her to the doctor who found that she was bleeding from her vaginal parts staining her both the things with blood. After noticing her injury, Mamta was referred to the Willingdone Hospital. There PW9 Dr. Sundran found on local examination bleeding per vagina was present and found that perineal tear was present. In support of the prosecution case PW2 has been examined. The Additional Sessions Judge further questions to test her grasping and speaking power and was satisfied that she could understand the question. She has given a straight version and supported the prosecution story in all details. She has started that on coming back from school she was met by the appellant who took her to the toilet and made her bleed form her private parts and she came back home and told her mother. The medical evidence as deposed to by PWS 6 and 9 fully support this version. As a matter of fact there was no challenge to the medical condition of the girl the only challenge by Mr. Naseem, the learned counsel for the appellant was to the contention that the appellant was not the one who had committed the offence. That she was bleeding at that time is also deposed by PW3. Surinder Singh who also lives near the place of incidence. The F.I.R. was recorded at the instance of the father of the prosecutrix who had stated that when he returned to his house at 12.30 p.m. he was told that his wife had gone to Doctor Uppal's clinic. He went there and was told that her daughter was raped. The FIR was recorded on the very day of the incidence i.e. 7th September, 1982. PW-1 is the mother of the girl and has given a detailed version from the time the girl came back to home and when she was taken to the hospital. In thus stands proved beyond doubt that the girl was raped at the time as alleged by the prosecution. PW2 the victim during trial has pointed the accused as the person who took her to the toilet and made her bleed. That it was the accused who was seen cajoling the girl on that day is deposed by another witness PW 12. He has deposed that he knows the accused. He also states that he saw on 7th September, 1982 at 12.05 p.m. Mamta with Prem Pal who was giving something like sweets to her. He also states that he saw the accused taking Mamta to a latrine towards L Block. He says that when he came to know about Mamta having been raped the same night he tried to locate the accused but did not find him for three or four days and the later on 12th September, 1982 his statement was recorded by the police. Apart from the criticism that he had appeared in one or two cases before, nothing material is pointed out as to why this witness should be disbelieved. Counsel for the appellant contended that had this witness seen the occurrence it was unnatural not to have informed the police there and then and also in not having talked of this incident to the parents of the girl. It is true that this witness has stated that though he knew the father of the girl he did not talk of his suspicion to him and talked of it only on 11th September 1982 to the uncle of Mamta. It may be a weakness in many citizen not to involve themselves in matter which may involve them in court proceedings and police investigating agencies but then when the matter became serious he himself went to the police and his statement was recorded by the police on 12th. It was thereafter that S.I. Kalyan Singh arrested the accused on 13.9.1982. Nothing has been mentioned as to why PW 12 would be deposing against the accused with whom there is not even a suggestion of any enmity or hostility. The statement of the girl was sought to be criticized by the appelant counsel by saying that she could not be depended upon to give a correct answer as she was too young. What is however forgotten is that in this kind of traumatic experience the girl even though of a tender age would be able to depose and identify correctly as to who was the one who had committed this rape on her. We have gone through the questions and answers put to her and find that she has deposed very naturally and in a manner in which child of her age would be able to depose. There is nothing in her evidence which would suggest that she was tutored or coached to depose in a particular manner. Her's is a straight forward evidence in which she identified accused as the person who had made her bleed on the day of the incident and who had given her biscuits and then taken her to the toilet where he had removed her underwear and committed rape on her. The counsel sought to make much of the question that was put to her that the person who had made her bleed was not the accused and the answer given by the witness after looking at the accused by nodding her head in the affirmative to suggest that she had by the affirmative nod suggested that it was not the accused who had made her bleed. We cannot agree. In our opinion it was unfair for such a misleading question to have been allowed to put to such a witness. That apart, to the normal understanding of the child of this tender age the question could only be understood in a positive sense as to whether the accused was the person who had made her bleed and when she nods her head in affirmative it evidently means that she is saying yes and identifying the accused as the person who did that act to her. There is thus no doubt that PW 2 is implicating the accused very definitely.

(3.) The defence of the accused was that he had been arrested on 9th and kept in the police station. The arrest was said to have been done on the report given by his father that the accused had asked for Rs. 5/- and on his refusal, the father is said to have called the police who took the accused in custody and kept him in custody till 13th September. the accused in his statement suggested that he was in police custody on 10th on his father's complaint when people complained about the police apathy in making any arrest in this offence of the rape. He also says that as his father was also in the demonstration the police involved him in the case. According to the father the accused was in custody till 13th and the father says that he came to know about the arrest only on that day. He would have us believe that accused was in custody from 9th onward and he only saw him again in police custody when he went on 13th to the police station. This seems to suggest as if the accused was in police custody from 9th onward till 13th September, 1982 when he was arrested in the present case. The record however is to the contrary. It shows that the accused was arrested on 9th September 82 under Delhi Police Act but that he was released on the surety of Hans Raj at 11.40 a.m. on 10th September, as evidence by D.D. Report No. 16 dated 10th September, 82. This entry has been proved by D.W-3 ASI P.S Patel Nagar. The defence produced Hans Raj who had the temerity to say that he had not stood surety for the accused and purported to deny his signatures on the surety bond; DW4/A. This is unacceptable. His signatures tally with his admitted signatures DW4/B. It is impossible to believe that the documents showing the release of accused on bail by police on 10th on the surety of Hans Raj were fabricated and forged by the police and that to apparently for no rhyme or reason. Even this witness Hans Raj has admitted that he and Surinder Singh has seen Mamta coming back injured and with blood on her underwear and things when the child had gone to her house. 5. The counsel for the accused made much of the fact that identification parade was not held. We attach no importance to it. In our view considering that the child identify the accused and as she had answered the question and pointed out the accused that was sufficient safeguard. That apart if the police did not hold the identification parade that is no reason to disbelieve the direct evidence given by the girl and the other witnesses who had seen the accused with the girl at the relevant time and immediately there after found her bleeding from her private parts.