Delhi District Court
State vs Abdul Alim S/O Mohd. Hassan, on 21 December, 2011
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS
JUDGE03(NE):KARKARDOOMA COURTS : DELHI.
SC No. 254/10
Unique ID No.02402R0232582010
Date of institution:17.8.2010
Date of transfer: 8.10.2010
Date on which reserved for order:16.12.2011
Date of delivery of order:20.12.2011
State Vs Abdul Alim S/o Mohd. Hassan,
R/o H.No.G57, Gali No.3,
Shastri Park, Delhi53.
FIR No. 203/10
PS New Usmanpur
U/s 376/377/511 IPC
JUDGMENT:
1. The sexual violence is a dehumanising act and it is an unlawful encroachment into the right to privacy and sanctity of females. The courts should be strict and vigilant to protect the society from such evils.
2. The prosecution case is based on the complaint of one Jainab dated 23.6.2010 wherein she stated that she was living as a tenant at G57, Gali NO.3, Shastri Park and her husband was a rickshaw puller. On 23.6.2010 at about 10 a.m, she was busy with her work. After FIR NO.203/10, PS New Usmanpur 1/29 finishing her work when she looked around, she could not find her daughter (prosecutrix) aged four years. She started searching for her. While searching she found that the room of another tenant accused Alim was bolted from inside. She asked Alim if he had seen the prosecutrix, Alim refused. She asked him again on which he replied that she was inside. When she insisted accused Alim opened the door and she found her daughter naked and accused Alim had wrapped his dhoti in a very unusual manner. She questioned accused Alim but he did not say anything. She questioned her daughter who told her that 'IN UNCLE NE MUJHE NANGA KARKEY APNI PESHAB KARNE WALI JAGAH SE MERI PESHAB KAERNE WALI JAGAH SE CHHERCHHAR KI HAI". At that time her husband was not at home. Due to shame and fear she did not disclose the same to anybody. When her husband returned back she disclosed the same to him. When her husband was taking her and her daughter to police, Alim came in front of them and told them, "POLICE KE PASS MAT JAO KOI FAYDA HANIN HAI" (do not go to the police no purpose would be served), due to which there was a verbal altercation between her husband and accused Alim. Due to the brawl, people from the neighbourhood gathered at the spot and started beating accused Alim. Police was FIR NO.203/10, PS New Usmanpur 2/29 given a phone call and on the basis of the statement of Jainab, the present case was registered u/s 376/511 IPC. On receipt of DD No.29B SI Amit Malik alongwith accused Subodh Kumar reached at the spot where complainant Jainab met him and accused was given in the custody of the police. On the basis of statement of the complainant, ruqqa was prepared and FIR was got registered. Prosecutrix was taken to GTB Hospital for medical examination. Accused was also got medically examined. Thereafter he was arrested. Site plan was prepared. Statement of prosecutrix u/s 164 Cr.P.C. was got recorded. Exhibits were sent to FSL Rohini and after completing necessary formalities charge sheet was filed against the accused u/s 376/377/511 IPC.
3. Initially charge was framed against the accused u/s 377 and 376 (2)(f) read with Section 511 IPC. However, subsequent to the testimony of the prosecution witnesses, amended charge was framed on 19.10.2011 u/s 377 and 376(2)(f) IPC. Accused abjured his guilt and the trial was held.
4. Prosecution has examined 10 witnesses in support of its case. ● PW1 is the prosecutrix aged four years. PW2 Jainab is the mother of the prosecutrix who has proved her statement given to the police as Ex.PW2/A. The statement of her daughter recorded by Ld. FIR NO.203/10, PS New Usmanpur 3/29 M.M. u/s 164 Cr.P.C. running into three pages is collectively Ex.PW2/B (also Ex.PD). Accused was arrested after his personal search was conducted vide Ex.PW2/C and Ex.PW2/D. His disclosure statement was also recorded vide Ex.PW2/E. PW3 is Mohd. Zilani, father of the prosecutrix.
● The medical evidence has been proved on record by PW9 Dr. Parul Aggarwal. She has proved the MLC of the prosecutrix prepared by Dr. Shagun Sinha as Ex.PW9/A and Ex.PW9/DA. ● The prosecution has examined six police witnesses out of which three police witnesses are formal in nature. PW7 Const. Sunita Kumari took the prosecutrix for medical examination to GTB Hospital. PW8 Const. Chandervir got the accused medically examined. PW10 Const. Samay Singh took the pullandas to FSL. ● PW4 SI Amit Malik is the IO of the case who recorded statement of the prosecutrix. He on 23.6.2010 on receipt of DD NO.29B went to the spot alongwith PW6 Const. Subodh. He recorded statement of the complainant, got the accused and prosecutrix medically examined. Two sealed parcels and sample seal were handed over to him which he seized vide seizure memo Ex.PW4/A pertaining to the victim girl. Doctor also handed over two sealed parcels and sample seal pertaining to the accused which FIR NO.203/10, PS New Usmanpur 4/29 he seized vide memo Ex.PW2/B. He prepared ruqqa Ex.PW4/C. He prepared site plan vide Ex.PW4/D. He arrested the accused. ● PW5 ASI Santosh is second IO of the case. On 26.7.2010 investigation of the case was marked to her. After the investigation was complete, she filed challan in the court.
5. The defence did not dispute the genuineness of the MLC of the accused, FIR, FSL report and statement of the prosecutrix u/s 164 Cr.P.C. and therefore, the same were exhibited as Ex.PA, PB, PC and PD u/s 294 Cr.P.C. The prosecution has dropped three witnesses i.e. Dr. Sagar, ASI Rajender Prasad who recorded the FIR and Shri Rakesh Kumar, Ld. M.M. who recorded statement u/s 164 Cr.P.C. of the prosecutrix in view of the admission made by the defence.
6. Statement of the accused was recorded u/s 313 Cr PC in which he denied the prosecution case and pleaded innocence and stated that PW2 Jainab and PW3 Mohd. Zilani had taken Rs.10,000/ as loan from him in several installments and since they did not want to return the money, they cooked up a false story against him.
7. In his defence he examined DW1 Gulshan, his wife, who stated that they had been residing at Gali No.3, Shastri Park, Delhi, for five years prior to the date of incident. Jainab, mother of the prosecutrix FIR NO.203/10, PS New Usmanpur 5/29 came to reside in the same building in which they were residing. She had given Rs.5000/ in the hospital for treatment of her husband. She used to lend her Rs.500/, Rs.1000/, Rs.2000/ on different occasions and total of Rs.10,000/ was outstanding against her. On 5.6.2010, she demanded her money back and Jainab quarreled with her. She left for her village on 14.6.2010. She called her husband, the accused and told him to ask Jainab to pay money in installments. Jainab threatened her husband to implicate him in a false case if he demanded money back and finally she got him falsely implicated. In her cross examination she stated that she did not know on which date she had given Rs.5000/ to Jainab or any other date on which she had given money to Jainab. She had not maintained any record and had not taken any receipt from Jainab to prove the fact that she owed her money. She denied the suggestion that she had not given any money to Jainab and that is why she did not have any record or that she did not remember any date. She stated that she herself had gone to the hospital to give Rs.5000/ to Jainab and she had taken money from her. She did not know from which ailment husband of Jainab was suffering.
8. I have heard Ld. Addl. P.P. for the state and Mr. M.M. Hashmi, Ld. Counsel from the accused and gone through the entire record.
FIR NO.203/10, PS New Usmanpur 6/29
9. The prosecution case mainly hinges on the testimony of the prosecutrix. To the prosecutix PW1 aged four years, certain preliminary questions were put to ascertain if she was able to understand the questions being put to her and give answers reasonably. Before recording her statement, I was satisfied that she was understanding the questions and was in a position to answer them despite being of young age. Considering her tender age oath was not administered to her. Her statement was recorded in camera i.e. in the chamber on 21.12.2010. Her statement was recorded in the presence of the support person namely Ms. Vandana from Delhi Commission of Women. Accused had been brought in the chamber and the witness correctly identified him. Thereafter accused was standing behind the screen. In her testimony before the court, prosecutrix stated that accused had put his penis in her vagina and anus. (Witness had indicated towards both her body parts). She stated that he had bit her cheeks. He also pinched on her hands. He took her to his house and gave her one rupee before putting his penis into her private parts. He did all these acts at his home. He also gave his penis (juju) in her hands. Thereafter, her mother came. Her statement was also recorded previously in the court by a Judge and she had affixed her thumb impression on her statement. In her FIR NO.203/10, PS New Usmanpur 7/29 statement u/s 164 Cr.P.C. which is proved as Ex.PD she stated that "ALIM MUJHEY SUBAH APNE GHAR LE GAYA AUR ANDAR BULA LIYA AUR USNE APNA JUJU (PENIS) MERE PEECHHEY GHUSA DIYA AUR PHIR MUJHEY PAISE DIYE AUR PHIR TEEN BAAR USNEY APNA JUJU (PENIS) MERE PEECHHEY GHUSA DIYA. USNEY MERE HAATH MAIN BHI APNA JUJU (PENIS) RAKH DIYA. DEY DIYA AUR MUJHEY PAISE DIYE KI CHEEJ KHA LENA. ISHARA KARKE BATAYA KI USNEY MERE PEECHEY APNA JUJU (PENIS) GHUSA DIYA AUR PHIR MERI MUMMY NE MUJHEY BULA LIYA. ALIM NE MERE GAAL PAR BHI DANTON SE KATA THA.
ISHAREY SE BATAYA KI ALIM NE MERI CHHATI BHI DABAI, MUJHEY MARA NAHIN THA, MUJHEY 2 RUPEY BHI DIYE THE" (Alim had taken me to his room, he put his penis into my anus, he gave me some money and thrice he inserted his penis into my anus. He also had put his penis on my hands and told me that with the money given I should eat some snacks (chijji)'. (She also indicated towards her anus stating that accused penetrated his penis into her anus). Accused Alim had also given me teeth bite on my cheeks and had pressed my chest. He had not given me beatings but had given Rs.2/).
FIR NO.203/10, PS New Usmanpur 8/29
10. Mother of the prosecutrix, PW2 Jainab has deposed that on 23.6.2010 at about 10/11 a.m., she was busy in her house hold work. She searched for her daughter aged about four years. She was not found. She saw that room of the accused Alim was bolted from inside. She gave a bang on the door and asked Alim if her daughter was inside. He told her that her daughter was not there but in the meantime her daughter herself told that she was inside. The door was not opened for sometime. Then her daughter told her that Alim uncle was putting on her panty. After coming out from the room of the accused, her daughter told her that uncle had inserted his penis inside her vagina and anus. She further told her, on her inquiry, that uncle had put his penis in her hands and asked her to masturbate. She further told her that accused had asked her not to tell the same to anyone and on this account he had given her money (two rupees) for purchasing some chocolates. She asked the accused as to why he had done such a thing. Accused started threatening her. The persons of the locality assembled there. Accused was beaten up with slaps and fists. Police was called. Police came there. She gave her statement to the police. Police took them to GTB Hospital. Her daughter was medically examined at GTB Hospital. Statement of her daughter was recorded u/s 164 Cr.P.C. She had also put her RTI FIR NO.203/10, PS New Usmanpur 9/29 on the statement of her daughter. Accused was arrested and his disclosure statement was recorded. Accused had tried to give her some money and to her sister also for not reporting the matter to the police or proceeding further. She observed some semen on the private part of her daughter. Since her daughter had fallen down in a drain, she had washed her clothes as well as her person including the private parts. In her cross examination she denied that she was having any money transaction with accused Alim. She denied the suggestion that she had borrowed Rs.10,000/ from the accused. She denied the suggestion that she was not in a position to return the money and in order to usurp the money, she falsely implicated Alim in this case. When the door was opened her daughter was not naked. She had not stated to the police that she had seen her daughter naked. She was confronted with statement Ex.PW2/A from portion X to X, where it was recorded that when Alim opened the door she saw her daughter in naked position. She denied the suggestion that her daughter prosecutrix never told her on enquiry that uncle Alim had put his penis in her hand and asked her to masturbate it. She denied the suggestion that her daughter did not tell her that uncle Alim had inserted his penis inside her vagina and anus. She had told to the police that her daughter had fallen down in the drain and so she was FIR NO.203/10, PS New Usmanpur 10/29 given bath. She denied the suggestion that her daughter had not fallen down in a drain. She denied the suggestion that she had not observed any semen on the private parts of her daughter.
11. PW3 is Mohd. Zilani, father of the prosecutrix. He stated that he was a rickshaw puller by profession. He did not remember the date but it may be 20th in the year 2010 when in the evening he returned to his home he came to know through neighbours that his daughter aged about four years had been raped by accused Alim. He went to P.S. and waited there till 1 O' Clock and he came to know that his daughter had been taken for her medical examination and they returned home in the night. A report was lodged by the police and the accused was arrested. He enquired from his daughter. She told him that accused Alim had inserted his penis inside her anus and vagina. His wife told him that accused had given his penis in the hands of his daughter. His wife Jainab also told him that she was washing some utensils and his daughter was called by Alim inside his room and he closed his room. When his wife was searching for his daughter, Alim told her that she was not there. When his wife again went there, then he admitted that his daughter was inside the room. She further told him that Alim had raped his daughter. Public persons gave beatings to accused when they came to know about this FIR NO.203/10, PS New Usmanpur 11/29 incident. He was cross examined by Ld. Prosecutor. He admitted the suggestion that the occurrence had taken place on 23.6.2010 at about 10.30 a.m. and when he returned from his work in the night at about 9 p.m. then they went to the police station and police recorded his statement. He denied the suggestion that his wife had taken Rs.10,000/ from Alim at different times and when they were not in a position to pay back to the Alim, he had been falsely implicated in the case.
12. MLC of the prosecutrix conducted on 23.6.2010 at 4 p.m. reads 'the alleged history of sexual assault by another tenant in the same building at 11 a.m. on 23.6.2010. Alleged history of being found in his room with clothes on. Later patient gave history that Alim had removed her clothes and molested her and attempted intercourse. No physical injury / marks / bruises / cuts. Hymen intact. No injury / bleeding. In Ex. PW9/DA it is mentioned, history of attempting intercourse, but it could not be accomplished. As per FSL report Ex.PC human semen was detected only on the underwear belonging to the accused. Semen could not be detected on Ex.P2 i.e. baby's pyzama.
13. Ld. Counsel for the accused has strenuously urged for the acquittal of the accused on the ground that the medical evidence FIR NO.203/10, PS New Usmanpur 12/29 totally rules out any possibility of rape. The victim girl was four years of age. As per medical record her hymen was found intact and there were no physical injury / marks / bruises / cuts on the area near her private parts or any other part of her body. As per MLC of accused Abdul Alim there was no injury on his person as well specially his private parts except one biting. In the MLC Ex.PA it is recorded that 'bitten by public' as statement given by accused himself. In her testimony before the court PW2 Jainab, mother of the prosecutrix stated that she had observed some semen on the private parts of her daughter. Since her daughter had fallen down in a drain, she washed her clothes as well as her person including the private parts. In her complaint to the police PW2 Jainab nowhere stated that her daughter had fallen in a drain due to which she had washed her clothes and bathed her. Even in her medical it was not disclosed that she had fallen down in a drain. If four year old child had fallen down in a drain there would have been some minor injury or bruises on her person which was found absent. Therefore it seems that PW2 has tried to make improvement in her statement. She has also given different version regarding the time when she went to lodge the report. In her complaint Ex.PW2/A complainant Jainab stated that she went to lodge the complaint when her husband came.
FIR NO.203/10, PS New Usmanpur 13/29 Accused threatened them not to approach the police, as a result of which, there was verbal altercation between Alim and her husband due to which people gathered and gave him beatings. While in the testimony before the court PW2 stated that she asked the accused why he had done such a thing. Accused started threatening her. The persons of the locality assembled there and accused was beaten up with slaps and fists. Police was called and she gave her statement to the police. However, the improvement in the statement on this aspect is of no consequence and is not fatal to the prosecution case.
14. In her statement u/s 164 Cr.P.C. the prosecutrix stated about the accused penetrating his penis into her anus only. She did not say that accused penetrated his penis into her vagina also. For the first time during her examination before the court she stated that accused penetrated his penis into her vagina and anus. In her complaint PW2 Jainab stated that her daughter disclosed ''IN UNCLE NE MUJHE NANGA KARKEY APNI PESHAB KARNE WALI JAGAH SE MERI PESHAB KAERNE WALI JAGAH SE CHHERCHHAR KI HAI", however, in her testimony before the court she also stated that her daughter told her that uncle had inserted his penis inside her vagina and anus. Therefore, from the testimonies of these witnesses it is clear that they have made improvements in their version before FIR NO.203/10, PS New Usmanpur 14/29 the court regarding the fact of the penis being penetrated into vagina.
15. The evidence of a child witness as the prosecutrix is all of four years is required to be evaluated carefully as the child may be swayed by what others may tell him or her as the child is a very easy prey to tutoring. Though the evidence of a child witness cannot be rejected out rightly the same must be evaluated with great circumspection. It is well settled that although legally there is no bar to accept the uncorroborated testimony of a child witness yet prudence requires that courts should not act on the uncorroborated evidence of a child witness whether sworn or unsworn.
16. Ld. Counsel for the accused has submitted that statement of the prosecutrix PW1 and her mother Jainab PW2 is liable to be discarded in total for the following reasons:
(i) there was dispute between the accused and the family of the prosecutrix regarding money;
(ii) the medical evidence on record does not corroborate the testimony of this witness; and
(iii) she has made improvements in her statement by stating that the accused had put his penis into her vagina.
17. I am not in agreement with the defence that the testimony of the prosecution witness is liable to be rejected in toto. The statement of FIR NO.203/10, PS New Usmanpur 15/29 PW1 in the court to some extent is corroborated by her statement u/s 164 Cr.P.C. which was recorded on 9.7.2010 i.e. a few days after the incident as the incident occurred on 23.6.2010 at about 10 a.m. Her statement is also corroborated with the statement of the mother of the prosecutrix PW2 Jainab. It is very unlikely that family of a girl would involve name of their daughter in such a case which may cause stigma to the reputation of their daughter merely because mother of the prosecutrix was asked to return the amount which she had borrowed from the accused. It is not shown that any litigation was pending between the parties. The defence evidence is not reliable. DW1 could not say on which date she had given Rs.5000/ to Jainab or any other date when she had given money to Jainab. She had not maintained any record and had not taken any receipt from Jainab to prove the fact that she owed her money. She herself had gone to the hospital to give Rs.5000/ to Jainab and she had taken money from her. She did not know from which ailment husband of Jainab was suffering. Therefore, the defence has failed to prove that there was any kind of money dispute between the accused and family of the prosecutrix.
18. The prosecution has successfully established the following facts: FIR NO.203/10, PS New Usmanpur 16/29
(i) That the accused took the prosecutrix to his room and bolted the door from inside.
(ii) He removed her clothes and also undressed himself.
(iii) He gave his penis into her hands.
(iv) He bit her cheeks and pinched on her hands.
(v) He opened the door and daughter of the complainant came out from inside.
19. Now the question arises on the basis of the facts proved by the prosecution, what offence has been committed by the accused since the prosecution has failed to proved that rape had been committed on the prosecutrix, beyond reasonable doubt. Would Section 376(2)(f) read with Section 511 IPC be applicable?
20. In Aman Kumar & Another V. State of Haryana {2004 Crl.L.J. 1399}, Hon'ble Supreme Court has held that:
"The plea relating to applicability of Section 376 read with section 511 needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 IPC is a general provision dealing with attempts to commit FIR NO.203/10, PS New Usmanpur 17/29 offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offence is the same as it he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed only half the punishment is awarded."
The Apex Court further held as:
" In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to so at all events and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events and inspite of all resistance material must exists. Surrounding circumstances many times throw beacon light on that aspect." (emphasis added).
21. In another judgment reported as Bachcha V. State of UP [2008 FIR NO.203/10, PS New Usmanpur 18/29 Crl. L. J. 483], the Division Bench of Hon'ble Allahabad High Court held that:
"From the statements of complainant and his son neither the rape is proved nor attempt of it. From the statement of the prosecutrix only this much is proved that the appellant undressed her and himself also and after lying her down on the ground sat on her. There is nothing visible from the statement of the prosecutrix also that any attempt of penetration was ever done by the appellant. In the absence of any attempt to penetrate the conviction under section 376/511 of the IPC could not be said to be legal and proper as penetration is the sine qua non for an offence of rape. The attempt of this offence can be said only when an attempt was made for penetration of male organ into the private parts of the prosecutrix. In the present case, there is nothing to conclude that the appellant at all tried to penetrate his male organ into the vagina of the girl. Hence he could not be held guilty for attempt to commit rape." (emphasis added).
22. In another judgment reported as Md. Nizam V. State of Bihar [2006 Crl. L. J. 3925] the Hon'ble High Court of Jharkhand held FIR NO.203/10, PS New Usmanpur 19/29 that:
"From perusal of the evidence available on the record, the fact remains that appellant has entered in the house of the informant and there he tried to threaten her to undress to satisfy his lust, however, in the midst of this case, PW3 reached there and he fled away after some exchange of hot words. The alleged incident as per prosecution, does not constitute the offence under Section 376/511 IPC, attempts to commit rape in the facts before the lower Court, I find that the preparation to commit rape and thereafter attempt to commit rape has not been complete in this case. Asking to undress at the point of knife and even trying to molest a lady can not be held to be an offence of attempt to rape.
Therefore, the conviction under Section 376/511 of the Indian Penal Code can not be sustained. But on the basis of facts available on record definitely a case under Section 354 of the Indian Penal Code is made out wherein the attempt and use of criminal force is made to outrage the modesty of Prakash Kaur and her sister."
23. In view of the facts of the case and rulings referred to it is clear that no offence u/s 376(2)(f)/511 IPC is proved as the accused FIR NO.203/10, PS New Usmanpur 20/29 did not make any attempt to penetrate the vagina of the prosecutrix.
Accordingly, I hold that prosecution has proved beyond doubt that accused took the prosecutrix to his room, removed clothes of the prosecutrix, undressed himself, he also bit her cheeks and he also pinched on her hands and gave his penis in the hands of the prosecutrix which amounts to an offence u/s 354 IPC. The prosecutrix has made certain improvements in her statement. May be on account of her tender age she has not been able to explain as to what actually transpired during the incident, but some doubt remains about the extent to which the accused went during the incident.
24. In view of these circumstances, the accused is given benefit of doubt in respect of offence u/s 376 (2) (f) and 376(2)(f)/511 IPC.
25. Initially accused had been charged u/s 377/376(2)(f) read with section 511 IPC IPC. However, on the basis of statement of the prosecutrix later on the charge was amended to u/s 377 & 376(2)(f).
Offence punishable u/s 354 is a minor offence to the offence u/s 376 IPC. Accordingly, in view of Section 222 Cr.P.C. the accused can be convicted for the offence u/s 354 IPC, though charge has not been framed against him. {See. Bachcha V. State of U.P. (supra)}.
26. Thus, it is held that the prosecution has been able to prove its case against the accused to the effect that the accused had FIR NO.203/10, PS New Usmanpur 21/29 intentionally outraged the modesty of PW1 (prosecutrix) and thus, committed an offence punishable u/s 354 IPC.
27. As regards the offence u/s 377 IPC to prove its case, the prosecution has to prove that the accused had carnal intercourse against the order of nature with the prosecutrix. The allegation against the accused is that he penetrated the anus of the prosecutrix with his male organ. In her statement u/s 164 Cr.P.C., the prosecutrix stated that thrice the accused penetrated her anus. She with stood the statement in her testimony before the court also, when she stated that the accused had put his penis into her anus. She has been corroborated by her mother Jainab who also stated that accused inserted his penis into her anus and PW3 (father of the prosecutrix) as well stated that when he inquired from his daughter (prosecutrix) she told him that he had inserted his penis into her anus.
28. Ld. Counsel for the accused has contented that had there been any forcible carnal intercourse it would have resulted in some injuries to the prosecutrix. The injuries are not always a sine qua non to prove a charge of sexual assault. The absence of injury is not sine qua non for the offence u/s 376 & 377 IPC. I place reliance upon Dastagir Sab & Another V. State of Karnataka, AIR 2004 SC 2884 it was observed that "Injury on the body of the person of FIR NO.203/10, PS New Usmanpur 22/29 the victim is not a sine qua non to prove charge of rape..... The absence of injury on the person of complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance she cannot be disbelieved." As regards the medical evidence, it is obvious that the accused who was 34 years of age at the time of commission of offence and the prosecutrix being a minor child of four years there could not have been complete penetration as it would have caused substantial injury not only to the prosecutrix but also to the male organ of the accused.
The prosecutrix has not stated that any force was used upon her and therefore, the penetration was not complete as the victim was a young girl of four years. Partial penetration is sufficient to constitute the carnal intercourse necessary to the offence u/s 377 IPC.
29. In his statement u/s 313 Cr.P.C. accused has given evasive denial to the incriminating evidence against him. He was asked: "Q.1 It is in evidence against you that on 23.6.2010, you took the prosecutrix to your room and put your penis in her vagina and anus (prosecutrix had indicated towards both her body parts). What do you have to say?
FIR NO.203/10, PS New Usmanpur 23/29
Ans. It is wrong.
Q,6. It is further in evidence against you that after coming out from your room, prosecutrix told PW2 Jainab, her mother that you had inserted your penis inside her vagina and anus and put your penis in her hand and told her to masturbate. What do you have to say?
Ans. It is wrong."
It was for the accused to explain why did he take the prosecutrix to his room, bolted the door, removed her clothes, undressed himself and what did he actually do to her.
30. As regards the defence of the accused that he has been falsely implicated in the matter no one would normally concoct a story of sexual assault just to falsely implicate a person as the sexual assault not only leaves a permanent scar and has a serious psychological impact on the victim but also her family members. In our tradition bound country nobody would tarnish or damage the reputation and image of his family merely because he had some dispute with the accused.
31. The evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury is the best witness in the sense that he is least likely to FIR NO.203/10, PS New Usmanpur 24/29 exculpate the real offender, the evidence of victim of a sexual assault is entitled to great weight. The only reason that the prosecutrix has not been disbelieved in respect of offence u/s 376 IPC, is the fact that her statement before the court was at variance with her statement recorded during investigation. While as regards the offence u/s 377 IPC she has been fully consistent. It is equally important that there must be fairness to all sides. In a criminal case, the court has to consider the trangulation of interests. It involves taking into account the position of the accused, the victim and his or her family and the public. The purpose of criminal law is to permit everyone to go about their daily lives without fear of harm to person or property.
32. The conviction for the offence of sexual assault can be based on the sole testimony of a victim is a well settled proposition. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to FIR NO.203/10, PS New Usmanpur 25/29 act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.
33. In view of the observations, I hold that the evidence on record is sufficient to prove the guilt of the accused u/s 377 IPC.
34. In view of the aforesaid discussion, I hold the accused guilty for the offence punishable u/s 354/377 IPC. Let the accused be heard on the point of sentence.
Announced in open court (Nisha Saxena)
Dated: 20.12.2011 Addl. Sessions Judge03(NE);
Karkardooma Court; Delhi.
FIR NO.203/10, PS New Usmanpur 26/29
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS JUDGE03(NE):KARKARDOOMA COURTS : DELHI.
SC No. 254/10
State Vs Abdul Alim S/o Mohd. Hassan,
R/o H.No.G57, Gali No.3,
Shastri Park, Delhi53.
FIR No. 203/10
PS New Usmanpur
U/s 354/377 IPC
ORDER ON SENTENCE:
1. I have heard Ld. Addl P.P. for the State and Cl. Mr. M.M.Hashmi for convict Abdul Alim on the point of sentence.
2. Ld. Prosecutor has demanded maximum sentence for the convict. as it a case if sexual violence against a minor child. He has contended that convict deserves maximum punishment as he has destroyed the dignity of a minor child.
3. The defence counsel has requested for taking a lenient view against the convict on the ground that the convict is a young person of 35 years and he is having a large family to support consisting of his wife and five children i.e. four daughters and one son. It has been contended by Counsel for the convict that this is his first offence and he has no previous criminal antecedents of any nature whatsoever.
FIR NO.203/10, PS New Usmanpur 27/29
4. Offence u/s 354 IPC prescribes punishment with imprisonment of either description for a term which may extend to two years or with fine or with both, while offence u/s 377 IPC prescribes punishment with imprisonment for life or with imprisonment for a term which may extent to 10 years and shall also be liable to fine.
5. Rape is the 'ultimate violation of self'. Sexual activities with young girls of immature age have a traumatic effect which often persists through life. The measure of punishment in a case of rape cannot depend upon social status of the victim or the accused. It must depend upon the conduct of the accused, the state and the age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence.
6. In view of the observations, I sentence the convict as under:
i) u/s 354 IPC sentenced to rigorous imprisonment for a period of 2 years and a fine of Rs. 5000/, in default of payment of fine, convict is directed to undergo rigorous imprisonment for a further period of six months.
FIR NO.203/10, PS New Usmanpur 28/29
ii) u/s 377 IPC sentenced to rigorous imprisonment for a period of 10 years and a fine of Rs.5000/, in default of payment of fine, convict is directed to undergo rigorous imprisonment for a further period of six months.
7. Both the sentences shall run concurrently. The convict will be entitled to get the benefit of Section 428 Cr.P.C. and the period of detention already undergone by him during investigation, inquiry or trial in the case shall be set off against the sentence awarded. The fine amount if realized shall be paid to parents of the prosecutrix, she being a minor after the expiry of the period of appeal.
8. A copy of this order as well as of judgment be given to the convict free of cost. File be consigned to record room.
Announced in open court (Nisha Saxena)
Dated: 21.12.2011 Addl. Sessions Judge03(NE);
Karkardooma Court; Delhi.
FIR NO.203/10, PS New Usmanpur 29/29