Research › Search › Judgment

Delhi High Court · body

2007 DAILYLAW 2451 (DEL)

RAJPAL YADAV, RAM ASRAV v. STATE

2007-09-26

V B Gupta

body2007
V. B. GUPTA, J. ( 1 ) THE present revision petition has been filed under Section 397 read with section 401 of the Code of Criminal Procedure against the judgment dated 31st october, 2006, of Shri S. N. Gupta, ASJ, upholding the conviction and sentence of the trial court in case FIR No. 219/2000 under Section 377 IPC. ( 2 ) THE brief facts of the case are that, on 12th June, 2000, at house no. 645, Gali no. 12, Sangam Vihar, New Delh, the revisionist had carnal intercourse against the order of nature with a child Rizwan, aged about 6 years and as such the revisionist was charged under Section 377 IPC. ( 3 ) THE learned Magistrate convicted the revisionist under Section 377 IPC and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 5,000/-, in default three months simple imprisonment was awarded. ( 4 ) AGGRIEVED with the order passed by the Magistrate, the revisionist filed appeal in the Court of Sessions and vide impugned judgment dated 31st october, 2006 the conviction of the revisionist was upheld by the learned ASJ. However, he reduced the sentence of imprisonment from two years to one year, but maintained the fine imposed by the trial court. ( 5 ) THIS is how the present revisionist is before this Court. ( 6 ) IT has been contended by the learned counsel for the revisionist that the testimonies of the prosecution witnesses are full of contradictions and inconsistencies, belying the prosecution story. The testimony of the alleged victim is uncorroborated and there is no independent witness. The report of the forensic Science Laboratory is also not helpful to the prosecution as no blood was detected on the underwear and micro slide belonging to the victim and the medical of the victim has not been proved since the Doctor who examined the victim has not been produced by the prosecution. There was no external injuries on the private part of the revisionist and since the revisionist was not arrested from the spot when the alleged offence was committed, as such there was no need for him to prove his alibi. Learned counsel in support of his contentions, has cited a decision of the Supreme court reported as Rahim Beg and another vs. State of U. P (1972) 3 SCC 759 . Learned counsel in support of his contentions, has cited a decision of the Supreme court reported as Rahim Beg and another vs. State of U. P (1972) 3 SCC 759 . It was a case of rape and no injury was detected by the Doctor on the male organ of the accused and in the absence of such injuries on the male organ of the accused, it was held "these circumstances points to the innocence of the accused. " ( 7 ) ON the other hand, it has been argued by learned counsel for the State that there is nothing on record to show that the complainant had any enmity with the revisionist so as to falsely implicate him in the case and there is nothing on record to show that the testimony of the victim who is a child and who has narrated true facts in the court, should be disbelieved. As per CFSL report, there were stains of semen on the underwear of the revisionist and plea of alibi has not been proved by the revisionist and as such there is no illegality or infirmity in the judgments passed by the courts below. ( 8 ) THE victim in this case is a child who was aged about 6 years at the time of the occurrence and has fully supported the prosecution case. There is nothing on record to show that this innocent child or his parents, had any enmity with the present revisionist, so as to falsely implicate him in this case. No suggestion was given to the PW-1 (mother of the victim) that the revisionist did not commit any unnatural sexual act with Rizwan, his son. Moreover, no suggestion was given to PW-1 that she had any enmity with the revisionist. The revisionist, in his statement under Section 313 Crpc has taken the plea that he was on duty at the time of the alleged crime and was not present at the spot. However, no documentary evidence to this effect, that the revisionist was on duty, has been placed or proved on record nor any suggestion to this effect was given to PW-1. Revisionist has no where stated in his statement under Section 313 Crpc as to where on the date of the alleged incident, where he was on duty and what were his duty hours. Revisionist has no where stated in his statement under Section 313 Crpc as to where on the date of the alleged incident, where he was on duty and what were his duty hours. His only plea is that he had been falsely implicated due to enmity, since the complainant wanted to grab his plot and there was a Panchayat and in the Panchayat the father of rizwan (the victim) admitted that he has made a false complaint against him and a panchayatnama was also prepared, which was signed by the Members of the panchayat and himself and the father of the victim. However no suggestion to this effect was given to the mother of the child when she appeared in the witness box nor even to the PW-2 (father of victim ). Moreover, no such panchyatnama has been placed or proved on record, nor any Member of the panchayat was summoned by the revisionist in support of his claim. ( 9 ) THERE is nothing on record to show that PW-2 had given any complaint against the revisionist or they did not have any cordial relations, before the alleged incident or there has been any dispute over electricity pilferage between PW-2 and the revisionist. ( 10 ) NOW coming to the medical evidence, PW-7 the Doctor, who has proved the MLC has stated that on examination of the child, the possibility of being sodomized cannot be ruled out. He also found multiple abrasions and contusions around the anal opening of the child which was punctured and tightly closed. There was slight bleeding at the 6'o clock position. Thus, the medical evidence duly supports the testimony of the child. Moreover, human semen was detected on the underwear of the revisionist, including the human blood and these exhibits were seized by the Police immediately after the incident. Had there been no intercourse, how there could have been semen and blood that too of human being on the underwear of the revisionist. ( 11 ) PW-3 in his statement has stated that due to insertion/penetration of the pennis, blood came out and he was having pain. There has been no cross-examination on this material aspect on behalf of the revisionist. ( 11 ) PW-3 in his statement has stated that due to insertion/penetration of the pennis, blood came out and he was having pain. There has been no cross-examination on this material aspect on behalf of the revisionist. Here in the present case the testimony of the victim, who is a child, has remained unshattered during the course of cross-examination and medical evidence is also there to this effect that the semen was found on the underwear of the revisionist and PW-3 had complained of pain and of blood coming out of his anal, as such it stands clearly established that the revisionist had carnal intercourse with PW-3 against the order of nature. Moreover, as per Explanation to Section 377 IPC, "penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this Section. " ( 12 ) IN view of the above discussion, I do not find any illegality or infirmity in the judgments passed by the courts below and the present revision petition, under these circumstances, is not maintainable. ( 13 ) THE learned ASJ has already taken a very lenient view and the same does not call for any interference. ( 14 ) HENCE the present revision petition is dismissed. Since the revisionist is on bail, he is ordered to surrender before the trial court within a week, failing which the trial court shall issue coercive process against the revisionist and see to it that the revisionist undergo the sentence awarded to him by the court below. ( 15 ) COPY of this judgment be sent to the trial court. ( 16 ) TRIAL court record be sent forthwith.