Delhi District Court
State vs . Ashok on 26 March, 2012
SC No. 39/11
FIR No. 68/11
PS: Kapashera
State Vs. Ashok
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. SESSIONS JUDGE : DWARKA COURTS:
NEW DELHI
In the matter of :
SC No. : 39/11
FIR No. : 68/11
Police Station : Kapashera
Charged under Section : 377/354/367 IPC
Convicted under Section : 367/354 IPC
Acquitted under Section : 377 IPC
Received on assignment : 04.07.2011
Reserved for orders on : 19.03.212
Judgment announced on : 19.03.2012
State Vs. Ashok
S/o Shri Harkhi Chand
R/o Vill. & P.O. Siswa Bajar,
PS Kothi.
Temporary address:
C/o Joginder Yadav
Veer Bajar Wali Gali,
Village Kapashera, Delhi.
J U D G E M E N T
1. Brief facts of the prosecution's case are that on 21.04.2011 on receipt of DD No. 4A, ASI Dilbagh Singh alongwith Ct. Manoj Kumar reached the spot at the house of Joginder Yadav, SC No.39/11 Page 1 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok Gali No.6, Kapashera where they met the complainant Smt. Alpana Devi W/o Shri Anant Ram Pandey, who told that accused Ashok had committed unnatural sex with her daughter/ prosecutrix S aged about 4 years (name withheld in view of dictum of Hon'ble Superior Courts). Smt. Alpana stated in her complaint that she was the resident of the abovesaid address and on 20.04.2011 in between 1.001.30 p.m., she was sleeping in her room and when she woke up, she found that her daughter (prosecutrix) was not present there. She started searching for her daughter in the nearby quarters of the same plot. During search of her daughter, when complainant again went to the quarters of back line, she found the door of the room of one Ashok (accused) was semiopened. She saw Ashok (accused) lying on the mat and her daughter (prosecutrix) sitting near his head. The complainant called her daughter from outside and asked her as to why she had gone to the room of Ashok, to which she replied that when she was playing on the roof, accused Ashok had caught hold her hand and brought her in his room and gave money for bringing toffees. Prosecutrix further told the complainant that when she came back after bringing toffees, accused Ashok asked for one toffee and when she went in the room of accused Ashok for giving him a toffee, he closed the door of room and made her lie on the mat and removed her panty and from the side of his underwear he took his male organ out and put it in her mouth and thereafter he also put his finger in her vagina. Prosecutrix further told her SC No.39/11 Page 2 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok mother that accused Ashok had told her not to disclose this thing to anybody and asked the prosecutrix to come again on next day and opened the door and in the meantime complainant reached there. Complainant on hearing this, checked the clothes of the prosecutrix which were stinking so she washed the same and started waiting for her husband. At about 11.00 p.m. her husband reached back home from his duty and complainant narrated the whole story to her husband and somebody from the neighbourhood call the police at 100 number and police reached there. The prosecutrix was got medically examined at Safdurjung hospital. On the statement of complainant, case under Section 377/342 IPC was registered. Prosecutrix was then produced for recording her statement under Section 164 Cr.P.C. Accused was arrested and on conclusion of the necessary investigation, he was chargesheeted.
2. After supplying copies to the accused as per law, case was committed to the court of sessions.
3. After due deliberation, charge under Section 377/354/367 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
4. Prosecution was called upon to adduce evidence to establish its case as per law. Prosecution has tendered 10 SC No.39/11 Page 3 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok witnesses in all in support of its case. On completion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. wherein he controverted the entire evidence as false and fabricated and claimed that he has been falsely implicated in this case by the complainant. He did not lead any defence evidence, hence final arguments were advanced.
5. I have gone through the entire records and carefully considered the matter.
6. Before proceedings further, I would like to discuss the evidence led by the prosecution to prove the case.
7. PW1 HC Surender Singh was the duty officer who had registered the FIR on the basis of rukka. He proved the FIR Ex.PW1/A. He made the endorsement on rukka and proved the same vide Ex.PW1/B.
8. PW2 Ct. Balwan Singh deposed that on 21.04.2011 he joined the investigation with the I.O. and proved the seizure memo of Tshirt and underwear of the prosecutrix seized by the I.O. as Ex.PW2/A. He deposed that thereafter, I.O. arrested the accused Ashok vide arrest memo Ex.PW2/B and personal search of the accused was conducted vide memo Ex.PW2/C and thereafter accused made his disclosure statement vide Ex.PW2/D. SC No.39/11 Page 4 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok He further deposed that accused also got recovered one blanket from his house which was seized by the I.O. vide Ex.PW2/ E. This witness further deposed that accused was thereafter taken to Safdarjung Hospital where after his examination doctor handed over him four sealed parcels which he handed over to the I.O. and proved the same vide Ex.PW2/F.
9. PW3 ASI Dilbagh Singh deposed that on 2021.04.2011 on receipt on DD No. 4A he alongwith Ct. Manoj Kumar went to the house of one Jogender, Gali no. 6, Veer Bajar Wali Gali, Kapashera where they met complainant Smt. Alpana who was present with her husband and daughter (prosecutrix). He further deposed that the complainant had told that some wrong act was done with her daughter due to which she was not feeling well. PW3 further deposed that thereafter he alongwith prosecutrix, complainant and Shri Antram (husband of the complainant) went to the Safdarjung hospital where medical examination of the prosecution was got conducted vide MLC No. 10698/11. He further deposed that after the medical examination of prosecutrix, doctor handed over him three sealed parcels and thereafter they returned to the police station where statement of complainant Smt. Alpana was recorded vide Ex.PW3/A. He made his endorsement vide Ex.PW3/B. He further deposed that after the registration of FIR, further investigation was marked to SI Saroj Bala.
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10. PW4 Smt. Alpana deposed that she was residing at the House of Jogender, Gali no.6, Kapashera, New Delhi and on 20.04.2011 at about 1.001.30 p.m., she was sleeping in her room with her daughter and her daugther woke up and started playing in the courtyard. She further deposed that and when she woke up, she found that her daughter (prosecutrix) was not present there. She started searching for her daughter in the nearby quarters of the same plot. During search of her daughter, when she went to the lane situated behind her lane, she found the prosecutrix in the house of accused Ashok. She deposed that accused Ashok was lying on the mat and her daughter (prosecutrix) sitting near his head. The complainant called her daughter from outside and inquired from her her as to why she had gone to the room of Ashok, to which she replied that when she was playing on the roof alongwith other children, accused Ashok came there and gave money for toffee and thereafter he took the prosecutrix at his room and bolted the the door of room from inside and made her lie on the mat and removed her panty and after removing his underwear put his private part in the mouth of prosecutrix and also put his fingers in private parts of prosecutrix. PW4 further deposed that prosecutrix further told her that accused Ashok had told her to not to disclose this thing to anybody and had directed the prosecutrix to come again on next day. She further deposed that thereafter she and alongwith the SC No.39/11 Page 6 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok prosecutrix came back home and started waiting for her husband who had gone out for his duty. She further deposed that at about 10.00 p.m. when her husband reached back home from his duty, she narrated the whole story to her husband and her husband told somebody from the neighborhood to call the police at 100 number and police reached there and took the prosecutrix to the hospital for medical examination. She further deposed that thereafter they return to the police station where her statement was recorded and her daughter (prosecutrix) was produced before the Ld. Magistrate for recording her statement. PW4 further deposed that she had washed the clothes of prosecutrix which she was wearing at the time of incident and she handed over the same to the police. She further deposed that accused was arrested from his room and his personal search was conducted and accused had also pointed out the place of occurrence and police seized the mat from his room. PW4 further deposed that it was also disclosed by her daughter (prosecutrix) to her that accused Ashok had also taken one more girl namely Niti to his room and had also inserted his finger in her panty.
11. PW5 Shri Anant Ram Pandey deposed that on when he returned from his duty at about 11.00 p.m., his wife (complainant) told him that accused had taken his daughter (prosecutrix) to his room and put his private part in her mouth and also inserted his SC No.39/11 Page 7 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok finger in the private part of her daughter (prosecutrix)
12. Prosecutrix entered into the witness box as PW6. As prosecutrix was minor aged about 4 years, Court had put certain question to her. From the question put to the prosecutrix, Court had observed that the prosecutrix was of sufficient maturity and was capable of giving replies to the questions put to her but, however, as she did not understand the meaning and sanctity of oath, her statement was recorded without oath.
During her examination, prosecutrix deposed that one day when she was playing with her friends on roof, accused took her and one of her friend Niti downstairs stating that he will given them toffee and then he sent Niti away and took her to his room. She further deposed that accused thereafter closed the door of the room and made her lie on the mat and them he himself laid down on her. She further deposed that thereafter accused removed his underwear and that of the prosecutrix and asked her to open her mouth and put his tongue in her mouth. She further deposed that accused had also applied saliva on her private parts. Prosecutrix further deposed that she the disclosed about the incident to her mother and her father came in the night and called the police. During examination of the prosecutrix, Ld.Addl. P.P. for the State had put leading questions to the prosecutrix to which she denied that accused had put his private part in her mouth.
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13. PW7 Ms. Gurmohina Kaur, Ld. Metropolitan Magistrate, Dwarka Courts has proved on record the statement of prosecutrix under Section 164 Cr.P.C. vide Ex.PW7/B. Proceedings regarding recording of statement of prosecutrix under Section 164 Cr.P.C. is proved as Ex.PW7/C. Before recording the statement, I.O. had identified the prosecutrix vide his statement Ex.PW7/A. The certificate regarding correctness of proceedings is proved as Ex.PW7/D.
14. PW8 Dr. Atul Gupta, Senior Resident, Forensic Medicines Department, Safdarjung Hospital had examined the accused Ashok vide Ex.PW8/A and he deposed that there was nothing to suggest that accused was not capable of performing sexual intercourse. He further deposed that blood sample of Ashok was taken on gauze and was sealed in a bottle and one blue underwear of patient (Accused) was also seized in a bottle and both were handed over to the I.O.
15. PW9 ASI Saroj Bala was the investigating officer of the present case. She deposed that on 21.04.2011, the present case was assigned to her alongwith rukka and copy of FIR. She had also received the medical papers and seizure memos from ASI Dilbagh Singh. PW9 further deposed that she alongwith Ct. Balwan went to the house of complainant Smt. Alpana Devi and recorded the statement of prosecutrix and prepared the site plan SC No.39/11 Page 9 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok vide Ex.PW9/A. She further deposed that, thereafter, she tried to trace the accused who was residing the same locality but could not found him. She deposed that she had seized one blanket and also Tshirt and underwear of the prosecutrix. She further deposed that at about 1.30 p.m., she received a secret information that accused was present near his house and she alongwith the complainant when there and arrested the accused. She also took the personal search of the accused and also recorded his disclosure statement. She further deposed that accused was thereafter taken to Safdarjung Hospital where his medical examination was conducted and she received blood gauze in respect of accused and his underwear kept in two different parcels which she seized. She further deposed that on the next day accused was produced in the Court and from there he was sent to judicial custody. She further deposed that on 23.04.2011, statement of the prosecutrix under Section 164 Cr.P.C. was got recorded in Dwarka Courts. PW9 further deposed that in her statement, prosecutrix had disclosed that one another girl Niti was also sexually assaulted by the accused. She deposed that she tried to contact the parents of said Niti and moved an application for getting the statement of Niti recorded under Section 164 Cr.P.C but in the Court said girl could not give her statement. PW9 further deposed that during the course of investigation she sent the exhibits to FSL, Rohini and also collected the results of medical examination of accused regarding his capability to SC No.39/11 Page 10 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok perform sexual act. She further deposed that after recording the statement of witnesses and completing the investigation, she prepared the chargesheet and filed the same in Court. She further proved on record the FSL report vide Ex.PW9/B which she had collected during trial.
16. PW10 Dr. Nidhi Siddharth, Senior Resident, Safdarjung Hospital deposed that on 21.04.2011, prosecutrix, aged about 4 years was brought to the hospital for her medical examination with alleged history of abduction and molestation. She had examined the prosecutrix vide MLC No. 10698/1 and proved the same vide Ex.PW10/A. She deposed that on local examination, no physical injury was found on the body of the prosecutrix, however, her hymen was found torn.
17. From the above recapitulation of testimony of vital prosecution witnesses, it is evident that PW6 (prosecutrix) has in her deposition categorically named and identified the accused Ashok as the person who had committed the said act with her on the fateful day. No doubt the testimony of child witness has to be considered with utmost care and caution as children are prone to tutoring, nonetheless the deposition of the prosecutrix in this regard inspires confidence and she appears to be deposing truthfully and naturally. Besides this, her statement is supported and supplemented by her mother who has deposed that accused has committed the kidnapping of the prosecutrix with the SC No.39/11 Page 11 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok purpose to commit illegal intercourse with the prosecutrix.
18. The testimony of the public witnesses tendered by the prosecution including prosecutrix does not suffer from any major discrepancy or contradiction causing a doubt as to veracity of prosecution version. Ld. Amicus Curaie for the accused has though pointed out some minor variations in the statement of the prosecutrix and her mother but they are not so vital as to cause dent in the story of prosecution.
19. The plea of the accused for false implication has no merits or substance as no daughter would put her house as well as honour of her family at stake. It is well settled legal position that if the statement of prosecution is credible and trustworthy, it requires no corroboration and conviction can be recorded on the sole testimony of the prosecutrix.
20. In the present case, the prosecutrix, a minor, PW6 is a child witness who has deposed that the accused Ashok had taken her from the roof and brought her down stair on the pretext of giving her toffee and closed the room and made the prosecutrix lie on the mat and, thereafter, the accused himself laid down on the prosecutrix. She has further deposed that the accused asked the prosecutrix to open her mouth and, thereafter, he put his tongue inside the mouth of the prosecutrix. The accused is further stated SC No.39/11 Page 12 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok to have applied saliva on the private parts of the prosecutrix and accused is further stated to have given money to the prosecutrix. The prosecutrix has further deposed that the accused further directed the prosecutrix not to disclose this fact to her mother (PW4). A leading question was put to the prosecutrix by Ld. Addl. PP for the State that the accused had put his private parts into her mouth but the prosecutrix admitted that the accused had not put his male organ in her mouth. During cross, this witness struck to her guns and reiterated that accused is the person who had outraged her modesty and committed this incident on that fateful day. This witness has been supported by PW4 who is not other then the mother of the prosecutrix who had brought the prosecutrix from the room of the accused. Therefore, it is proved on record that the prosecutrix was in the company of accused and she was taken away by her mother from the room of the accused. This witness has further stated that the prosecutrix had narrated the event which took place on that fateful day. Therefore, PW4 has corroborated the version of PW6, the prosecutrix. PW5 is father of the prosecutrix who got the information from his wife and called the police. However in medical evidence, no fresh injury is present on the private parts of the prosecutrix but it is not the case of the prosecution that accused had raped the prosecutrix. Although in the FIR and the statement of the prosecutrix, PW4 (proved on record as Ex.PW3/A) as well as in the statement of the prosecutrix recorded under section 164 Cr.PC SC No.39/11 Page 13 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok (Ex. PW7/B) is wherein allegation that the accused had put his private parts in the mouth of the prosecutrix but during cross examination, prosecutrix very categorically stated that accused had not put his private parts in her mouth. So in view of the deposition of the prosecutrix which is natural it cannot be inferred that the accused had committed an offence punishable under section 377 IPC and accused is hereby acquitted of the chage under section 377 IPC. But so far the charge under section 367 is concerned, the prosecution has proved on record that the accused had taken the prosecutrix out of her lawful guardianship of her mother in order to subject her to satisfy his unnatural lust. So the accused is hereby convicted under section 367 IPC. The accused had also put his tongue in the mouth of the prosecutrix and applied saliva in the private parts of the prosecutrix, therefore, the accused has outraged the modesty of the prosecutrix and committed an offence under section 354 IPC. So the accused is further convicted under section 354 IPC.
21. In view of foregoing reasons, I am satisfied that the prosecution has been able to prove as per law the charge under Section 367/354 IPC against the accused. The accused is accordingly convicted. Let he be heard on the point of sentence on 26.03.2012.
SC No.39/11 Page 14 of 20 SC No. 39/11 FIR No. 68/11PS: Kapashera State Vs. Ashok Announced in the open court (Vijay Kumar Dahiya) on the 19th Day of March 2012 ASJ/ Dwarka Courts New Delhi/19.03.2012 SC No.39/11 Page 15 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok IN THE COURT OF SHRI VIJAY KUMAR DAHIYA ADDL. SESSIONS JUDGE : DWARKA COURTS:
NEW DELHI In the matter of : SC No. : 39/11 FIR No. : 68/11 Police Station : Kapashera Charged under Section : 377/354/367 IPC Convicted under Section : 367/354 IPC Acquitted under Section : 377 IPC Received on assignment : 04.07.2011 Reserved for orders on : 19.03.212 Judgment announced on : 19.03.2012 Order on sentence announced on : 26.03.2012 State Vs. Ashok S/o Shri Harkhi Chand R/o Vill. & P.O. Siswa Bajar, PS Kothi.
Temporary address:
C/o Joginder Yadav Veer Bajar Wali Gali, Village Kapashera, Delhi.
ORDER ON THE POINT OF SENTENCE
1. I have heard the convict Ashok in person, Ms. Kiran Deep Kaur, Ld. Amicus Curiae on behalf of the convict as well as Shri SC No.39/11 Page 16 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok Alok Saxena, Ld. Addl. P.P.for the State at length on quantum of sentence. It is urged by Ld. Amicus Curiae for the convict that convict is a young man aged about 20 years and having a whole life ahead him and further that the convict is the only earning member and bread winner. She prayed that a lenient view may be taken so far as sentence part is concerned and convict may be released on the imprisonment already undergone by him in this case as he has no previous criminal antecedents and his entire life lies in front of him.
2. On the other hand, Ld. Addl. P.P for the State has strongly opposed the contention of Ld. Counsel for the convict and submitted that the convict has spoiled the life of a minor (prosecutrix) and such person should be awarded maximum imprisonment for such an offence to give message to the society that such offences which includes moral turpitude are dealt with firm hand and he has further argued that if such accused who are lacking moral as well as social value are let off by awarding lessor punishment, it will lead to further deterioration of the moral values in the society and such accused should be awarded maximum punishment as envisaged in the IPC.
3. Punishment is the sanction imposed on the offender for the infringement of law committed by him. Once a person is tried for commission of an offence and found guilty by a competent SC No.39/11 Page 17 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok court, it is the duty of the court to impose on him such sentence as is prescribed by law. The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor.
4. The offence committed by the convict is more serious in manner that he did not even spare minor aged about 4 years. The convict in total disregard to moral and social values went on ruining her life by committing immoral act of highest order. It is evident that convict treated the prosecutrix only as an object to fulfill his sexual desire. The offence committed by the convict is too heinous and, therefore, he does not deserve any leniency.
5. Sexual violence degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity.
6. The Apex Court has held that leniency in matters SC No.39/11 Page 18 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok involving sexual offence is not only undesirable but also against public interest.
7. In the instant case, the offence for which the convict is being sentenced, is grave, heinous and utterly abominable. Such an act of perversity has to be dealt with strictly and sternly. In these circumstances and in view of mandate of Hon'ble Superior courts, the convict is hereby sentenced to undergo RI for ten years and to pay a fine of Rs. 10,000/ in default of payment of fine to undergo Simple Imprisonment for six months under section 367 IPC. Convict is further sentenced to undergo RI for two years and to pay fine of Rs.2,000/ in default to undergo SI for one months for the offence punishable under Section 354 IPC. All the sentences shall run concurrently. Convict has been in custody during the trial, hence she shall be entitled to the benefit of Section 428 Cr.P.C. and the period of detention undergone by her till date in this case shall be set off against the sentence of imprisonment awarded today as per law. Copy of the judgment and order on sentence is given to the convict , free of cost.
8. The convict is informed of his right to appeal and availability of free legal aid for the said purpose.
9. Convict Ashok was ably assisted by Ms. Kiran Deep Kaur, Ld. Amicus Curia during trial, on request of the court. Her SC No.39/11 Page 19 of 20 SC No. 39/11 FIR No. 68/11 PS: Kapashera State Vs. Ashok professions remuneration is fixed as Rs.10,000/ for this case.
10. File be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya) on the 26th Day of March 2012 ASJ/ Dwarka Courts New Delhi/26.03.2012 SC No.39/11 Page 20 of 20