Delhi District Court
St. vs Upender Mukhiya on 9 April, 2010
Page No. 1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution : 03.07.2007
Date of judgment reserved on : 31.03.2010
Date of decision : 09.04.2010
Sessions Case No. 112/2008
St.Vs Upender Mukhiya
FIR No. 263/2007
U/s 376 IPC
P.S : Okhla Indl. Area
Upender Mukhiya
S/o Ramesh Mukhiya
R/o RZ-113B, Gali No. 3,
TKD Extension, New Delhi
J U D G M E N T:-
Accused Upendra Mukhiya has been tried on a charge of rape and the charge is that on 30.3.2007 somewhere around 3-4 PM accused subjected victim prosecutrix a young girl aged around 5 years to sexual assault in his room / house no. RZ 113B/3, TKD Extension, New Delhi. Facts which led to registration of this case are " Smt. Mitlesh PW-2 along with her husband Virender Singh PW-6 brought their victim daughter aged around 5 years M(complete name withheld) to AIIMS Hospital on 31.3.2007. On the basis of the information given by mother that victim was subjected to sexual assault by Upender Mukhiya on 30.3.2007, that examination of victim prosecutrix was taken up and MLC Ex. PW-2/B was prepared. Victim was complaining pain lower abdomen and difficulty in urinating and when inquired by her mother victim had revealed that she was sexually assault. Bloodstained underwear brought by the mother was preserved".
Sessions Case No. 112/2008 Page 1/12 Page No. 2Physical examination of the victim revealed that hymen was torn ( fresh injury) but then there was no other injury or bleeding. Child was not cooperative. Duty Ct. at AIIMS conveyed that information at O.I.A which was recorded as DD No. 23 at 10.30 PM on 31.3.2007. SI Vijay Kumar PW-5 from Police Station O. I. Area reached AIIMS , collected MLC of the victim. Vaginal Smear and under garment were also seized and handed over to SI Vijay Kumar. Two sealed parcels handed over in the hospital, were taken custody of and victim had been discharged along with her parents were brought to the Police Station and further investigation was then taken over by W/SI Kiran Sood PW-10.
Smt. Miltesh gave her complaint as Ex. PW-2/A which was recorded by SI Kiran Sood. It is averred in the report that Mitlesh Devi was residing in a room in house no. RZ-113/B, TKD Extension with her husband and children. Her husband used to earn livelihood by selling vegetable. On 30.3.2007 her daughter M (complete name withheld) aged around 5 years complained to her mother that she was felling pain while urinating. Complainant / mother ignored it taking it to be because of summer whether. On next day morning i.e., on 31.3.2007 at around 6 AM when victim 'M' complained of pain while urinating the complainant checked the underwear of the victim and found bloodstain in the under garment and then she asked victim daughter as to how come bloodstain was on her undergarment and her daughter then narrated that on 30.3.2007 while she was playing outside , Upender Mukhiya took her inside his room while alluring her with toffee. He laid her on the cot, removed her undergarment and then inserted his private part into her vagina. She felt pain and started crying and then accused released her. Complaint further averred that she informed this incident to her husband and then they brought victim Meghni to AIIMS Hospital.
On this complaint given by Mitlesh and the MLC from AIIMS that offence u/s. 376 IPC was found committed by accused Upender Mukhiya and accordingly F.I.R. in this case now proved as Ex. PW-3/A was registered in Police Station O. I. Area. Accused Upender Mukhiya was found missing from his room but then ultimately he was arrested on 7.4.2007 from DDA Part, opp. Shitla Sessions Case No. 112/2008 Page 1/12 Page No. 3 Mandir, TKD Extension, New Delhi. Accused was got medically examined and MLC Ex. PW-7/A was recorded about the potency and capability of accused in the act of sexual intercourse. Undergarment of the prosecutrix which had been seized during medical examination of the Victim, vaginal smear and the underwear of the accused which had already been seized while he was being medically examination and MLC EX. PW-7/A was prepared, all these articles were got examined and analyzed at FSL, Delhi. Report Ex. PX and PX-1 was received wherein blood and human semen was detected in the undergarment of the victim prosecutrix. But then group of human semen could not be determined.
With these incriminating facts collected during investigation that accused was charge sheeted and case was being committed to Sessions Court and accused was put on trial on the charge as described above.
Victim prosecutrix has been examined by prosecution as PW-1. She being a tender age child, a preliminary examination was conducted to ensure that victim was capable of understanding the question put to her and to give rational and logical answer. Her examination was taken up without oath and she stated that accused present in court in this case had committed rape on her by inserting his private part into her private part . She deposed that accused called her while she was playing outside her house promising to give her toffee and took her inside his house. She further stated that she had come to court and her statement was earlier recorded and she identified that statement as Ex. PW-1/A. Cross examination on behalf of accused suggested defence to the witness that no such act of rape was committed or that accused had not been taken her anywhere on a pretext of giving toffee but witness answered suggestion as wrong. She further stated no other child was playing with her at that point of time. First she along with her parents went to the Police Station . This is in all that prosecutrix was cross examined by the defence.
Mother of the prosecutrix has supported her complaint version. She deposed that on 30th of the month date of the incident she found, victim M sitting Sessions Case No. 112/2008 Page 1/12 Page No. 4 outside the house and weeping and when she asked why she was crying, M told that she was having pain in her vagina. Mother thought that it could be because of hot whether and next day morning when she saw bloodstain on the undergarment of the prosecutrix and she inquired from her that victim told that Upender Mukhiya had taken her into his room on the pretext of giving her toffee and then accused had inserted his private part into her mouth and then into her vagina. She further deposed that her husband reached home at about 8 AM and she narrated incident to him but then her husband proceeded from the house first to sell his vegetable which otherwise would destroy and he came back by 4 PM and then they took their daughter to AIIMS Hospital. Witness also identified the cream colour underwear as Ex. Pw-2/J which victim M was wearing at the time of the incident and later which was seized by the doctor. This witness was then cross examined later on , on the request of Ld. Defence Counsel this witness was recalled for her further cross examination and then cross examination was conducted on 8.3.2010. Witness admitted in cross examination that she narrated the incident to her husband in the morning. Initially a defence was suggested to the witness that because of business rivalry that accused had been got falsely implicated and the witness answered defence suggestion as false and wrong and voluntarily stated that whereas her husband used to sell vegetable while taking it on cart, accused Upender Mukhiya had a fixed place to sell vegetable in C . R. Park. In the cross examination as a recalled witness , a defence was suggested that few days prior to this incident a quarrel had taken place between Manoj Singh and the complainant party or that on account of that grudge that accused was got falsely implicated. Witness refuted the suggestion. She however admitted that wrongful act committed by accused Upender Mukhiya with her daughter was not in the room in which Upender Mukhiya was living but in a room situated in the outerside of the building. Witness was unable to understand the site plan Ex PW-10/C. She denied defence suggestion that accused has arrived Delhi from his native place on the date of the incident itself, she deposed that accused had Sessions Case No. 112/2008 Page 1/12 Page No. 5 arrived abut 2 / 3 days prior to the occurrence .
PW-3 has recorded the F.I.R. and proved its copy. PW-4 is a doctor from the Deptt. of Gynae , AIIMS Hospital and identified the hand writing and signature of Dr. J. Aruna with whom PW-4 had worked and was familiar with her hand writing and signature and Dr. J. Aruna having left the hospital, PW-4 proved the MLC and stated that hymen was found torn with fresh injury in this case.
PW-5 is SI Vijay Kumar who on receiving DD 23A had reached AIIMS Hospital. PW-6 is the father of the prosecutrix. In his examination in chief witness deposed that matter was reported with the police and then police took Victim M to the hospital where she was medically examined but in the cross examination witness corrected this statement saying that initially he and his wife had taken prosecutrix to the hospital and there police reached. He also asserted that Upender Mukhiya had reached Delhi two days prior of this incident from his native place. Witness further deposed in cross examination that he had been inside the room of Upender Mukhiya and the articles lying in room comprised a television, a table and then a space to spread bedsheet for sleeping. Witness Admitted there was no cot in the room. The defence suggested to witness in cross is that on the date of alleged incident in fact accused had gone to Sangam Vihar to his uncle's place and the witness denied this defence. Witness further denied defence suggestion that about a month prior to this incident there had been a quarrel between the accused on one side and this witness and Manoj as a 2nd party and accused was got falsely implicated only on the basis of the suspecion.
PW-7 is a doctor who proved the MLC of the accused. PW-10 is the IO SI Kiran Sood and she has deposed on the fact as had been collected during investigation. As regards the room where incident was alleged to have occurred, in cross examination witness deposed that there was a takth ( wooden cot) in that room. PW-11 is Ld. MM who had recorded statement of the prosecutrix when brought before him for her statement u/s. 164 CrPC and finally PW-12 is a doctor from Deptt. of Radiologist wherein bone age of the prosecutrix was got Sessions Case No. 112/2008 Page 1/12 Page No. 6 determined and it was opined somewhere between the 3.5 to 4.8 years as per report Ex. PW-12/A. Accused when examined to explain this evidence and material against him in his statement U/s 313 Cr P.C has come out with a defence that he was falsely implicated because of a quarrel and dispute with cousin of the victim prosecutrix namely Manoj and his associates as they used to take liquor. He further pleads that he had gone to his native place in Bihar and came back and reached Delhi only on 30/03/2007. About a month prior to the incident father of the prosecutrix while under effect of alcohol had assaulted accused and in return accused also assaulted him and it could be the reason that he was implicated falsely. Accused then examined two witnesses in defence in support of his defence plea that he had returned from Bihar on 30/3/2007. DW-2 further deposed that accused having reached Delhi on 30/3/2007 morning had gone to Sangam Vihar on the same day after taking meals whereas parents of victim M raised hue and cry regarding this incident only in the evening and police came on 31st of that month and started harassing this witness. This is the evidence and material before this court to decide the charge.
Defence counsel Sh.Arvind Kumar Gupta argued that though bloodstains and semen stains were found on the underwear of the victim girl but then in the absence of group of blood and semen determined by the analyst, this evidence would not connect accused in this offence. Counsel submitted that there were several contradictions and the prosecution story that prosecutrix was put on a cot in the room of accused when accused committed this offence gets falsified from the testimony of her father PW-6 where in cross examination witness admits that there was no cot inside the room of accused when visited by the police. On this point counsel further referred to cross examination of PW-2 mother of the prosecutrix where she stated that ''wrongful act committed by accused Upender Mukhiya with victim M was not in the room in which Upender Mukhiya was living and residing but that was situated in outer side of that building. Counsel argued that according to prosecution case offence was Sessions Case No. 112/2008 Page 1/12 Page No. 7 committed by accused by calling the prosecutrix in his room, what the prosecutrix has deposed and what she immediately had narrated to her mother. The change of the place of occurrence would create a serious doubt in the prosecution case. Counsel also referred to the site plan Ex.PW10/C and pointed out that no such details has been given in the plan by the IO as to what was that room in dimension where the incident of this case took place or even to say whether there was any cot inside the room. Counsel submits that a point Mark X has been mentioned and recorded in this plan as the spot where alleged incident of this case occurred and all it reflects that IO in fact had not visited the spot and only prepared such a plan at Police Station .
Counsel further submitted that there is contradiction in the evidence on the point whether prosecutrix and her parents first visited Police Station or straight away went to AIIMS. It is further argued that accused was a married person having three months old daughter and thus there was no occasion to indulge in any such pervert act of committing sexual assault on a young girl aged around five years. On the other hand Ld APP argued that testimony of the prosecutrix is absolutely credit-worthy and suggests no reason at all from her cross examination that she would falsely implicate accused. Medical report comes in corroboration of the witness and prosecution charge stands proved and established beyond any doubt. I have given my consideration to these contentions and arguments.
This is a case of a tender age young girl aged around five years subjected to a sexual assault. Victim prosecutrix when examined in this trial has deposed that accused committed rape upon her and had inserted his private part in to her private part. Question arises whether this testimony of the prosecutrix is acceptable and believable. It is not a case where such a tender age young girl subjected to sexual activity by a grown up person suffered any kind of serious bodily injury or injury in her private part or any kind of serious bleeding. Rather her complaint initially made by her to her mother was that she was feeling pain while urinating, which was made just after some time of the occurrence and was Sessions Case No. 112/2008 Page 1/12 Page No. 8 ignored by the mother as might be a usual normal bodily pain because of summer weather and it is only next day morning when she noticed bloodstain in the undergarment of the victim that she asked the victim girl as to how blood was there and then victim girl narrated this incident to her mother. Parents of the victim girl then took the girl to AIIMS in the evening of the day and then examination of the victim girl revealed that hymen was torn as a fresh injury though there was no any other kind of injury or bleeding. It has further come in evidence of PW-2 mother of the victim girl and in the evidence of PW-6 father of the victim girl that though victim girl had disclosed the incident in the morning of 31/3/2007 but then PW-2 gives on explanation for no action being taken immediately by reporting the matter to the police as she deposed that her husband told her that he would go first to sell his vegetable and he would be returning soon because the vegetable might get rotten and she further says that her husband came back by around 4 pm and then they took their daughter to the hospital. We have to examine now if there is a delay in reporting the incident to the police, does it embellishes the prosecution case or does it stand duly explained in the above referred testimony of PW-2, acceptable and not harming the prosecution case.
Firstly comes the point for consideration while analysing the prosecution case whether testimony of the prosecutrix was acceptable and believable, when there is no manifest apparent injury on the person of the victim girl. It has been a matter for consideration in various judgment as to what extent absence of injury on the person of the victim in an offence of rape would create a doubt in the prosecution story. Absence of corroboration by medical evidence when would not be taken as fatal to the case has been held in B.C Deva Vs State of Kerala 2007 (9) JT 558 where it was held that though the report of Gynecologist concerning medical examination of the prosecutrix did not disclose any evidence of sexual intercourse, yet even in absence of any corroboration of medical evidence, oral testimony of the prosecutrix which was found to be cogent, reliable and convincing was to be accepted.
Sessions Case No. 112/2008 Page 1/12 Page No. 9In one such case before Supreme Court reported as State of H.P Vs Gian Chand AIR 2001 S.C 2075 (1) the victim of the crime of rape was an young 8 year old girl. Injuries noticed on the person of victim during her Medico Legal Examination were, to quote Local Exam - No external injury.
On retracting the labia - erythema seen.
Hymen torn - irregular edges.
Posterior vaginal wall tear about 0.5 c.m. In length No blood clot seen. No evidence of healing, no pus seen - foul smell. Tenderness. No sperms were seen.
One of the considerations which prevailed with Hon'ble High Court while acquitting accused was the absence of any injury on the person of the victim. Reversing the judgment of acquittal the Supreme Court found and held, ''The observations made and noted by Dr. Mudita Gupta during medico legal examination of PW-7 clearly make out the prosecutrix having been subjected to rape. The prosecutrix has spoken of ''penetration'' in her statement. The discovery of spermatozoa in the private part of the victim is not a must to establish penetration. There are several factors which may negative the presence of spermatozoa. (See Narayanamma V State of Karnataka (1994) 5 SCC 728). Slightest penetration of penis into vagina without rupturing the hymen would constitute rape. (See Madan Gopal Kakkad V Naval Dubey (1992) 3 SCC 204: (1992 AIR SCW 1480). The suggestion made in the cross examination of Dr. Mudita Gupta that injury of the nature found on hymen of prosecutrix could be caused by a fall does not lead us anywhere.
Firstly, no such suggestion was given to prosecutrix or her mother during cross examination. Secondly, why would the girl or her mother implicate the accused, charging him with rape, if the injury was caused by a fall? There is nothing to draw such an inference not even a suggestion, to be found on record. Answer to the suggestion made to Dr. Gupta cannot discredit the prosecution case in the absence of any other material Sessions Case No. 112/2008 Page 1/12 Page No. 10 to support the suggestion. So is the case with absence of external marks of violence on the body of the victim. In case of children who are incapable of offering any resistance external marks of violence may not be found. (See Modi's Medical Jurisprudence, 22nd Edn., P.502). It is true that marks of external injury have not been found on the person of the accused but that by itself does not negate the prosecution case.
Modi has opined (see, Modi ibid, page 509) that even in the case of a child victim being ravished by a grown up person it is not necessary that there should always be marks of injuries on the penis in such cases.
Coming to the facts of the present case we have the testimony of the prosecutrix specifically deposing that accused committed the sexual act with her. There is no cross examination at all on the point of the sexual act committed by accused. Defence put to the witness in cross examination is whether other children were there while she was playing when called by the accused and the witness says there was no other child. Another question put to the witness is whether her parents took her to the Police Station and she affirms it. Finally a suggestion that accused did not do any wrongful act to her and she denies it.
Cross examination of the mother of the prosecutrix or the father PW- 6 does not suggest if they had any motive what to suggest of any strong reason or motive to get accused falsely implicated and thereby their evidence provides corroboration to the evidence of the victim girl that victim was taken in to a room by the accused and he indulged in sexual activity with the prosecutrix. To my considered view where the Medico Legal Report of the victim girl mentions ''hymen torn as fresh injury'', itself suggests that victim was subjected to sexual activity and she being tender age of five year old child, may be even not knowing what exactly the accused was committing upon her, did not receive any other injury by no resistance or any other overt act.
As regards the exact place where the offence was committed, when defence counsel argued and pointed out that no cot was there in the room where accused was residing and then a prosecution witness deposing that in fact offence committed by accused was not in the room where he was residing but in Sessions Case No. 112/2008 Page 1/12 Page No. 11 another room situated in the outer part of the building, we may not find the circumstance improbablising the prosecution case or creating any serious doubt in the prosecution story. No cross examination has been put to the victim girl if there was any cot or no cot in the room. Though PW-6 father of the victim girl says in the cross examination that there was no cot in the room where accused was living but then IO has stated in cross examination that in the room where offence took place was a wooden cot (takath). There is no further cross examination on this point.
In the above reported judgment State of H.P Vs Gian Chand such a contradiction in the prosecution story was found not to vitiate the prosecution case when otherwise prosecution case was found acceptable. In this reported case as per F.I.R. incident of rape had taken place in the room on the first floor of the building but according to evidence of the witness incident of rape had occured in the open on the lintel of the house and it was considered to be a factor creating doubt in the prosecution story by the High Court. Setting aside the acquittal it came to be observed that as revealed from site plan, the distance between two places was insignificant and such a minor inconsistency was of no significance and caused no infirmity in the prosecution case. In the present case if two rooms were in a close vicinity i.e the room in which accused was residing and the room where accused committed the wrongful act, that should not dilute veracity of the prosecution case except to observe that investigating officer ought to have been cautious to be specificant and particular as to whom that room belonged where incident occurred such a lapse on the part of IO should not damage the prosecution case which is found acceptable and credit worthy from the testimony of the victim girl and medical evidence.
As observed above to my considered view delay in reporting the matter to the police stands explained. The victim girl belongs to a poor family where her father earned his living by selling vegetable. If PW-6 had brought vegetable in the previous night as has come in the evidence and if showed a concern to first sell the vegetable lest it might get rotten, there appears to be a Sessions Case No. 112/2008 Page 1/12 Page No. 12 probable normal human conduct delay in taking action in the matter fails to create any serious dent in the prosecution case.
It is a matter of record that the bloodstain and semen stain in the underwear of the victim girl could not be further analysed as about its group but then it has been specifically recorded that it was a human semen. Presence of human semen on the undergarment of a five year old child would suggest some sexual activity taken up by a person against such a victim girl and thereby the FSL report in this case provides further corroboration to the prosecution charge. Another contradiction referred to by ld defence counsel as to whether parents of the victim girl first took girl to the Police Station or to the hospital, the contradiction stands corrected in the cross examination where witnesses consistently deposed that first they took victim girl to AIIMS. It stands supported from the MLC of the victim girl where the person having brought victim is the mother. Otherwise the evidence is consistent and believable. To my considered view the prosecution charge stands proved that accused subjected victim girl a young five year old girl to sexual act and thereby committed offence of rape punishable U/s 376 (2) (f) IPC. He is convicted for the said offence.
Announced in the Open (J. R. ARYAN)
court on 09.04.2010. ADDITIONAL SESSIONS JUDGE
NEW DELHI.
Sessions Case No. 112/2008 Page 1/12
Page No. 13
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Sessions Case No. 112/2008
St.Vs Upender Mukhiya
FIR No. 263/2007
U/s 376 IPC
P.S : Okhla Indl. Area
ORDER ON SENTENCE
Heard both sides on the point of sentence.
Accused has been convicted U/s 376 (2) (f) IPC for having sexually assaulted a young girl aged around five years. Defence counsel today asked for a leniency in sentence on a plea that accused is a married person, very young in age and he got a daughter born who was around 2 months of age at the time of this occurrence and a long term of jail will deprive the family of accused of their livelihood as the convict is the only earning member of his family. It is submitted that accused belongs to a poor family and needs to be shown a leniency. Ld APP on the other hand submitted that minimum prescribed sentence of 10 years imprisonment has to be awarded in this case when offence committed by accused found duly proved is a serious charge. I have considered both sides submissions.
It has been hold by Supreme Court in a case State of Rajasthan Vs Madan Singh 2008 AIR (S.C) 1292 that normal sentence in a case where rape is committed on a child below 1 years age is not less than 10 years R.I though in exceptional cases '' for special and adequate reasons'' sentence of less than 10 years could be awarded. In the reported judgment High Court had reduced sentence from 10 years to 7 years R.I in a conviction U/s 376 (2) (f). No Sessions Case No. 112/2008 Page 1/12 Page No. 14 extenuating and mitigating circumstances were found available on record which could justify imposition of any sentence less than the minimum prescribed. It was observed that to show mercy in a case of such a heinous crime would be a travesty of justice and the plea for mercy was wholly misplaced.
In Moti Lal Vs State of M.P 2008 (1) Scale 81 it has been held that the measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must and depend upon the conduct of accused, the state and age of the sexually assaulted female and the gravity of the criminal act.
In the judgment referred to in the present case i.e State of H.P Vs Gian Chand while setting aside the judgment of acquittal passed by the High Court and restoring the conviction given by the trial court, sentence of 10 years R.I imposed by the trial court has been maintained despite the fact that appeal before Supreme Court was being decided after a gap of a decade as incident was of the year 1991 and the appeal before Supreme Court was decided on 1/5/2001.
There is no mitigating fact in the present case to be weighed as a special and adequate reasons to consider a sentence less than the minimum prescribed . Accordingly accused is awarded a sentence of 10 years R.I with a fine of Rs.1,000/- and in default of payment of fine, he shall undergo six months R.I. Announced in the Open (J. R. ARYAN) court on 13.04.2010. ADDITIONAL SESSIONS JUDGE NEW DELHI.
Sessions Case No. 112/2008 Page 1/12 Page No. 15 St.Vs Upender Mukhiya FIR No. 263/2007 U/s 376 IPC P.S : Okhla Indl. Area 12/04/2010 Present: Addl. PP for State. Accused produced in custody with counsel Arguments heard on the point of sentence. Be listed on 13/04/2010 for order on sentence. ASJ/New Delhi 12/04/2010 13/04/2010 Present: Addl. PP for State. Accused produced in custody Vide separate order accused is sentenced to
undergo R.I for 10 years and a fine of Rs.1,000/- and in default of payment of fine, he shall undergo six months R.I. Copy of the judgment and order be given to the convict free of cost. File be consigned to record room.
(J. R. ARYAN) ADDITIONAL SESSIONS JUDGE NEW DELHI.
13.04.2010.
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