CRL.A.1241/2018 Page 1 of 21CRL.A.1241/2018 Page 2 of 21The facts of the case as borne out from the record are that on 17.01.2013 vide DD No.26A, a PCR call was recorded regarding rape by father with his own daughter, aged 8 years, at H.No B-1970, Kashmiri Block,Jain Nagar, Delhi.SI Dinesh along with Ct. reached the house where they met the mother of the victim who reported the rape committed by her accused husband, on their two minor daughters, V aged 8 years and M aged 13 years.NGO was called and victims were taken to SGM hospital where they were medically examined.The complainant S, PW-13, gave her statement that she is a house wife and has four daughters and a son and her husband runs a factory.On 11.01.2013, her husband committed wrong act with daughter V after taking her to some other room of their residential dwelling, and also threatened her not to tell anything to anyone or else she will be killed.On 13.01.2013 when she was cleaning the house, she found one blood stained underwear of V under the bed.On inquiry from the prosecutrix PW-3, told by the latter that her father lifted her from the bed in the night and lay her on a sofa and gave her a tablet after which she began feeling sleepy, and then he inserted his 'shushu wali jagah' in her 'shushu wali jagah'; and when the prosecutrix felt pain, her father again brought her CRL.A.1241/2018 Page 3 of 21 back to the bed.PW-3 stated that she conferred about this incident with her family members and did not report the commission of the offence to the police at that stage, but when her elder daughter M, who was living with her maternal grandmother came and informed her that, her father committed wrong act with her as well, which the former did not disclose because of fear, the complainant came to Police Station and lodged the subject FIR.Allowed.) XXXXXXX by Ld.Addl.It is correct that me and my children are completely hand to mouth and there is no other earning member in my family, I want to get my husband released.It is also correct that my both daughters were produced before CWC and from there the custody of my daughters were handed over to me.It is wrong to suggest that I have left my daughter M at my mother's house due to acts of sexual assault upon her by my husband.In default of payment of fine, the Appellant has been sentenced to undergo simple imprisonment for a further period of one month.P.C has been granted to the appellant.Both sentences were ordered to run concurrently.The gravamen of the charge, for which the appellant has been convicted, is for having committed rape upon his own daughter/the CRL.A.1241/2018 Page 2 of 21 prosecutrix, a girl aged about 8 years, at the time of commission of the offence.After medical examination of the victim, her exhibit (one underwear having darker stains) was seized and her statement u/s 164 Cr.P.C. was recorded.IO collected the date of birth proof of the victim and sent samples to Forensic Science Laboratory (hereinafter referred to as 'FSL').The accused was arrested and was medically examined; and while awaiting FSL result, the present chargesheet was filed.CRL.A.1241/2018 Page 3 of 21By way of order dated 20.05.2013, charge was framed against the appellant for offence u/s 6 of POCSO Act read with u/s 376(2)(f) IPC and u/s 328 IPC for the offences committed against daughter V, to which the appellant pleaded not guilty and claimed trial.In order to prove the charges against the accused, prosecution examined as many as 15 witnesses, whereafter the statement of the accused u/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case by his wife PW-13 (the mother of CRL.A.1241/2018 Page 4 of 21 the child victim) due to a matrimonial dispute.The Appellant chose to examine three witness in his defence including himself.CRL.A.1241/2018 Page 4 of 21Broadly, the Trial Court has based the conviction of the Appellant on the testimony of victim V, PW-3 as hereunder :"24.08.2011 Q. Kya hua tha ?Me so rahi thi, papa aaye mujhe dawai khilayi.Meri kachhi uttari, apni kachhi uteri aur meri susu me apni susu laga rahe the.Q. Aap kaha so rahethe ?Hall me Q. Papa kahan so rahe the ?Lakdi wale kamre me.Hamare ghar me 3 kamre hain.2 me farsh (floor) par mate lagawaya tha aur ek me lakdi lagawayi thi.Q. Lakdi wale kamre me kaun kaun sota hai?Wahan par mummy papa sota hai Q. Kya aap pehle bhi court me ho ?Ha At this stage, the witness has been shown her statement u/s 164 Cr.P.C. i.e. Ex-PW- 2/D and identifies her signatures at point "A" thereupon.Q. Kya apne yeh baat kisi ko batayi thi ?Nahi Q. Mummy ko bataya tha ?Nahi, mummy ki tabiyat kharab thi sara din behosh padi rehti thi Q. Aur kisi ko bataya tha?Nahi, papa ne dhamka rakha tha ki kisi ko nahi batana hai CRL.A.1241/2018 Page 5 of 21 XXXX By Sh.Ravi Kant Singh, learned counsel for accused.CRL.A.1241/2018 Page 5 of 21Q.Aap kashmiri colony se pehle kaha rehte the ?Shashtri Nagar Q.Aapko mummy jyada pyar karti hai yah papa ?"I am a housewife and residing at the abovementioned address with my five children out of which four are daughters and one son.My husband, who is present in the court today as accused Jitender Sharma (witness has correctly identified the accused), was having his own work and running a factory of hydraulic machines.My eldest daughter M, who is aged about 15 years at present, is residing at the house of my mother.I do not want to say anything about the present case as to why and how this case has been registered against my husband.One day a quarrel took place between me and my husband and my husband gave beatings to me and my daughters, due to which I got annoyed and went to PS.I had told to the police officials that my husband was harassing me but the police officials did not record my said statement and I do not CRL.A.1241/2018 Page 6 of 21 know why the police official had recorded my statement in such manner.CRL.A.1241/2018 Page 6 of 21At this stage, witness is shown her complaint from the judicial file and she identifies her signatures at point "A" thereupon.The complaint is now exhibited as Ex-PW-13/A. My daughter V is aged about 10 years at present.My husband did not do anything wrong with my daughters M and V. Vol.He only gave 2/3 slaps to them.At present I want that my husband should be released as there is no earning member in my family and I generally remain ill.It was a simple quarrel between me and my husband which was given colour in the present form of complaint by the police.(At this stage, Ld. Addl.PP for the State seeks permission to cross examine the witness as she is resiling from her earlier statement.PP for the State.I have studied upto 9th class.I did not go through the contents of Ex.PW-13/A before signing the same.Police officials also did not read over the contents of Ex.PW-13/A to me.With great hardship, I am managing my household affairs and expenses.I get some stitching work from the tailors and do the same at home.All my children are school going and studying in different classes.Neither my in-laws nor my parental side are financially supporting me.The house where I am residing is belonging to my husband, which is constructed on a plot of 67 sq. yards.It is constructed upto first floor.I am residing on the first floor with my children and the ground floor is lying vacant.I am looking for tenant to let out the ground floor.It is correct that my both daughters M and V were got medically examined.It is in correct to suggest that I got my both the daughters internally examined vide my statement encircled at point "Y" on MLC already Ex.PW-9/B. It is wrong to suggest that I had the doctors regarding the sexual assault upon my daughters in the alleged history on the MLC.I have no knowledge if the statement of my daughters was recorded by the police wherein both the daughters had narrated the incident regarding the sexual assault upon them by the accused Jitender Sharma.It is correct that my both the daughters were brought to the Court earlier also where they were examined by the learned MM in chamber.CRL.A.1241/2018 Page 7 of 21At this stage, witness is shown site plan from the judicial file and she identifies her signatures at point "A" thereupon.The site plan is now exhibited as Ex.PW-13/B.It is wrong to suggest that my daughters had even disclosed about the conduct of my husband before NGO Anuradha in my presence.It is wrong to suggest that I found blood stained underwear of my daughter V from under the bed or that I got suspicious and I asked about the reason from my daughter V, who had told me that my husband had lifted her from the bed and committed wrong act with her, after giving her some pills to eat.Therefore, the CRL.A.1241/2018 Page 20 of 21 judgment and order on conviction dated 30.05.2018 and the order on sentence dated 05.06.2018 are both hereby upheld.CRL.A.1241/2018 Page 20 of 21A copy of this judgment be communicated to the appellant through the Superintendent, Tihar Jail and also be sent for updation of the records.SIDDHARTH MRIDUL (JUDGE) MANOJ KUMAR OHRI (JUDGE) APRIL 29, 2019 dn/di CRL.A.1241/2018 Page 21 of 21CRL.A.1241/2018 Page 21 of 21

Sections cited: Section 376 in The Indian Penal Code