Monu vs State of Haryana

Anita Chaudhry, J.—The appellant was tried and convicted in FIR No. 119 dated 27.03.2008 registered at Police Station Sadar Gurgaon

u/s 376(2)(f) IPC. He was sentenced to undergo imprisonment for a period of 10 years along with a fine of Rs. 10,000/- by the Sessions Judge

Gurgaon vide judgment dated 06.07.2009. In default of payment of fine he was to undergo rigorous imprisonment for one year. The story of the

prosecution was unfolded by complainant Kiran in her application Ex. PA. She along with her husband and children were living in a rented

accommodation owned by Ram Singh. The accused had also taken a room on rent in the same building. On 18.03.2008, Kiran''s husband left for

work and she was resting. At about 10:00 A.M., the accused came and took her 08 year old daughter to his room tempting her with money. The

girl did not return. After a while, the complainant went to the room of the accused and found the accused raping her daughter. The accused fled on

seeing her. The accused was her husband''s younger brother in relation. The matter was discussed and ultimately the complaint was lodged on

27.03.2008. The child was got medico-legally examined by a board of doctors. The investigation was completed and a report was laid against the

accused.

The prosecution had examined the prosecutrix as PW2, her mother Kiran as PW1, her father Shyamu as PW3, the medical officers and the

investigating officers.

Dr. Alka Singh-PW9 had medico-legally examined the 8 year old child on 27.03.2008 and had noted the following:-

� She had alleged history of Sexual assault on 18.03.2008. Vitals were stable and pulse was 88 per minute.

� The general examination on the patient was normal and Menarche was not achieved.

� On local examination bleeding was not there. Hymen-margins were irregular.

� The patient had changed clothes several times and taken bath several times after 18.03.2008. So, no need or use of taking vaginal swabs or

sending clothes to FSL Madhuban.

� Opinion Sexual assault in this case could not be ruled out.

The medical officer had further disclosed in the cross-examination that after she had given her opinion, the CMO had passed an order for

constitution of a Board of which she was also a member and the Board had decided to refer the case to P.G.I. Rohtak. She could not say whether

any report had been received.

Dr. Neelam Thapar PW-11 was a member of the Board constituted by CMO had further examined the prosecutrix and on further examination,

they had noted the following:-

� On further examination patient was conscious and vitals were within normal limits. On local examination-introits lax, margins of hymen were

irregular and healed.

� The possibility of sexual intercourse cannot be ruled out. However, expert opinion in this case can be taken from PGIMs Rohtak.

In the statement recorded u/s 313 Cr.P.C., the accused pleaded false implication.

The trial Court accepted the version of the prosecution and convicted the accused and sentenced him to the punishment mentioned here-in-

before.

I have heard the submissions made on behalf of both the sides.

It was contended on behalf of the appellant that the medical examination of the child was carried out ten days after the incident and the medical

officer had stated that the child had changed her clothes and had taken bath. There was no bleeding and no vaginal swabs were taken and the

medical evidence did not support the prosecution case. It was urged that the medical report was inconclusive and had the child been raped there

would have been injuries on her person. It was contended that there was a delay in reporting the incident and it was not a case where a stranger

was involved and there was no need for going to the village and false accusation have been made. It was contended that though the plea of

juvenility had not been raised earlier but it can certainly be raised even at the stage of appeal and the age of the accused was recorded as 17 years

in the police papers and the trial Court has not taken note of it. It was urged that the medical officer in Mark-D had mentioned that he had

examined Monu aged 17 years. Reliance was placed upon Amit Singh Vs. State of Maharashtra and Another, .

Per contra, the submission on behalf of the counsel appearing for the State was that the appellant was major and was not a juvenile and his age in

the other papers is recorded as 18 years and no plea was taken before the Magistrate and merely because in one paper, the age is mentioned as

17 years, would not mean that he was a juvenile. It was urged that the accused was involved in a case of rape of a child and in this view there was

pressure upon the family and the family had gone back to the village but they had returned and had reported the incident and it caused delay. It

was urged that a Medical Board was constituted and the medical officers had given a report in favour of the prosecution and there was no reason

to doubt the statement of the mother who is an eye-witness.

The prosecution evidence consists of the testimony of the child witness. She had appeared in the witness box as PW2. The trial Court had

tested her ability to make a statement and had found her to be a competent witness. The child had stood the test of cross-examination. She had

deposed how she was taken away. She had stated that her cries had attracted her mother and the accused fled on seeing her. She had explained

that on the day of the incident, the neighbours did not allow them to approach the police and after the incident she was taken to a private doctor.

There is no reason to doubt her statement. Her statement gets corroboration from the statement of her mother.

The record reveals that the accused had himself surrendered in the Court and had moved an application upon which the CMO had constituted a

Board which gave an opinion in favour of the prosecution.

There is a delay of 9 days in reporting the incident. The complainant has explained the delay which in my opinion has been fully explained and no

adverse inference can be drawn nor the prosecution case can be thrown out merely on that count. There is no hard and fast rule that any delay in

lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon the facts and circumstances of each case.

Delay in lodging the FIR may cause a doubt about the veracity of the prosecution case but each case has to be examined and delay only puts the

Court on guard and the Court has to scrutinize the evidence with greater care and caution to see whether there are indications or fabrications but

the Court cannot reject the prosecution version solely on the ground of delay.

The incident, no doubt was reported after nine days but the explanation furnished by the prosecution is plausible. The mother had explained that

they had left for Kanpur (Uttar Pradesh) and on return the matter was reported. It has come in evidence that the neighbours did not allow the

family to report the incident to the police. It has also come in the evidence that the other residents of that building were related to the accused and it

was the relatives who had pressurized them not to report the incident. The statement of the mother cannot be ignored. No mother would falsely

involve one of her own relatives by making false accusations. The prosecution had fully established its case. The complainant and her husband are

illiterate. It is a case where one of their distant relative had raped their minor daughter. The family was forced to leave the place and go back to the

village but the family returned and reported the incident. The statement of the girl and her mother cannot be viewed with suspicion. The absence of

injuries on the body of girl can be understood as the medical was got done after a delay.

I am of the view that the trial Court had appreciated the evidence in its correct perspective and there can be no hesitation in concluding that the

prosecution had succeeded in proving the appellant''s guilt. Therefore, the judgment of the trial Court is confirmed and the appeal is dismissed.

Lower Courts record be sent back.