Crl.A.No.367/2008 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: July 16, 2010 Judgment delivered on: July 19, 2010 + CRIMINAL APPEAL NO.367/2008 ARJUN ....APPELLANT Through: Mr. N.K. Srivastava, Advocate Versus STATE NCT OF DELHI .....RESPONDENT Through: Mr. Pawan K. Bahl, APP CORAM: HON'BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in Digest ? AJIT BHARIHOKE, J. 1. This appeal is preferred against the impugned judgment dated 27.03.2008 convicting the appellant on the charge under Section 376 IPC as also against the order on sentence of the even date in terms of which the appellant has been sentenced to undergo RI for the period of 10 years and to pay a fine of Rs.100/-, in default of payment of which to undergo SI for the period of 07 days. 2. Briefly stated, case of the prosecution is that on 06.09.2006 at around 5:50 am, an information was received at P.S. Sangam Vihar that one person who had raped a 05 years old girl was detained at near Crl.A.No.367/2008 Page 2 of 5 Primary School MCD. The information was recorded as DD No.41A in the daily diary maintained at the Police Station and copy thereof was sent to ASI Karamvir for further action. ASI Karamvir along with Constable Rajbir reached at the spot and there the appellant Arjun was produced before him by PW1 Ikramuddin, father of the prosecutrix (name withheld). 3. ASI Karamvir recorded the statement of Ikramuddin Ex.PW1/A wherein he stated that on the night of 05.09.2006, he slept outside his house on a cot lying in “gali” (street) and his youngest daughter i.e. the prosecutrix aged 4½ years was also sleeping with him. At about 5:00 am when he got up he found that the prosecutrix was missing. He went inside the house but prosecutrix was not there. When he came out, he saw his daughter coming. She was naked and weeping. She was also bleeding from her vagina. On inquiry, prosecutrix told him that one boy who was residing in the neighbourhood had kidnapped her from the cot and taken her to his room. There he removed her clothes and raped her. When she started weeping due to pain, said person let her go after sometime. Thereafter the prosecutrix took him to a room constructed on a plot in the neighbourhood and pointed out towards the appellant who was sleeping there. Prosecutrix said that appellant was the person who had kidnapped her and committed rape. He thus caught hold of the appellant, whose name on interrogation was revealed as Arjun Singh S/o Sunder R/o G-558 i.e. the house belonging to one Satya Prakash. Ikramuddin also stated that in the meanwhile Crl.A.No.367/2008 Page 3 of 5 his wife had informed the police on telephone No.100 and pursuant to the telephone call, the police had arrived. Investigating Officer appended his endorsement Ex.PW.2/C on the aforesaid statement and sent it to the Police Station for the registration of the case. 4. Prosecutrix as well as appellant was sent for medical examination and their MLCs were obtained. Appellant was arrested. Statement of the prosecutrix under Section 164 Cr.P.C. was got recorded. The clothes of the appellant as well as the prosecutrix were seized and were sent to CFSL for chemical analysis. On completion of formalities, challan was filed and the appellant was sent for trial. 5. Learned Additional Sessions Judge on consideration of evidence on record, charged the appellant for having committed the offences punishable under Section 363 and 376 IPC to which appellant pleaded not guilty and claimed to be tried. 6. On perusal of the impugned judgment, it transpires that the learned Additional Sessions Judge has approached this case in a careless and casual manner. As per record, the accused was charged for offences punishable under Section 363 and 376 IPC, which fact is recorded by the learned Additional Judge in Para 2 of the impugned judgment. Despite that, the learned Additional Sessions Judge has not returned any finding on the charge under Section 363 IPC. Such a careless approach by the learned trial Judge in the matters relating to life and liberty of the accused is not acceptable. Crl.A.No.367/2008 Page 4 of 5 7. Even the statement under Section 313 Cr.P.C. has not been properly recorded. Purpose of recording of statement of accused under Section 313 Cr.P.C. is to afford him an opportunity to explain the incriminating evidence appearing against him during trial. It is trite law that if some incriminating circumstance or evidence is not put to the accused while recording his statement under Section 313 Cr.P.C., it cannot be made use of to record conviction of the appellant. One of the incriminating circumstances relied upon by the learned trial Judge against the accused is the evidence to that effect that the frock and underwear of the prosecutrix, which she was wearing at the relevant time, was recovered, found tucked in the pants of the accused. However, on perusal of the trial court records, it transpires that this piece of evidence was not put to the accused during his examination under Section 313 Cr.P.C. It is well-settled that omission to examine or want of adequate examination of accused under Section 313 Cr.P.C. does not by itself necessarily vitiate the trial and this irregularity can be cured by re-examining the accused under Section 313 Cr.P.C. 8. Since the learned trial Judge has failed to return a finding on the charge under Section 363 IPC and also failed to put all incriminating circumstances to the accused while examining him under Section 313 Cr.P.C., in interest of justice and taking into account the seriousness of charges, the impugned judgment of the learned Additional Sessions Judge is hereby set aside and the matter is remanded back to the court concerned with the direction to record a proper statement of the Crl.A.No.367/2008 Page 5 of 5 accused under Section 313 Cr.P.C. and re-decide the matter in accordance with law, after hearing the parties on both the charge under Section 363 as well as 376 IPC. 9. Appeal is disposed of accordingly. JULY 19, 2010 (AJIT BHARIHOKE) pst (JUDGE)