Delhi District Court
Sc No. 75/12 State vs Lal Babu Mahto Page No. 1 Of 25 on 13 April, 2015
IN THE COURT OF ADDITIONAL SESSIONS JUDGE01 : SED:
DESIGNATED JUDGE: TADA/POTA/MCOCA/POCSO:
SAKET COURTS: NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02406R0287622012
SESSIONS CASE NO. 75/12
FIR NO. 248/12
POLICE STATION : SARITA VIHAR
UNDER SECTION : 376(2)(f) IPC
STATE
VERSUS
LAL BABU MAHTO
S/O SH. BUDDHAN MAHTO
R/O DAIRY NO. 70, SANJEEV BANIYA KA MAKAN,
MADANPUR KHADAR, NEW DELHI.
PERMANENT ADDRESS: VILLAGE BALAYAN,
PO NAGDAOU, P.S. ARER,
DISTRICT MADHUBANI, BIHAR.
DATE OF INSTITUTION : 08.11.2012.
DATE OF RESERVING ORDER : 12.02.2015.
DATE OF DECISION : 13.04.2015.
J U D G M E N T
Case of Prosecution:
1. Brief facts of the case of the prosecution are that on 11.08.2012 DD No. 10A was received by SI Satish Kumar who along with Ct . Dinkar SC No. 75/12 State Vs Lal Babu Mahto Page No. 1 of 25 More reached at the spot i.e. Dairy Farm Madanpur Khadar Sarita Vihar where they came to know that rape has been committed with a 8 months old baby girl. SHO also reached at the spot and SI Josepha Kujur was called who reached at the spot and recorded the statement of complainant who stated that she is residing as tenant along with her family and running raidi.
She has two daughters namely Jia aged about 3.5 years and prosecutrix 'R' (name withheld to keep her identity confidential) aged about 8 months. On 09.08.2012 at around 10 PM she alongwith her husband and daughters came to home and went to terrace for keeping utensils. She sent her husband for taking potatoes. She came downstairs to feed her daughter Jiya as she was crying for food. Her daughter 'R' was sitting on the terrace and playing. On the terrace her neighbour Lal Babu aged about 30 years was also present. At 11 PM when she came to terrace she saw accused Lal Babu playing with her daughter 'R' and holding her in his lap. While playing he took her inside his room and after some time she heard cries of her daughter 'R' and she came to the room of accused Lal Babu. She saw that Lal Babu was not wearing his pant, holding her daughters hand 'R' and he was rubbing the vagina of her daughter 'R' with his penis by shaking her daughter 'R' who was not wearing her Kacchi. On seeing her, he put her daughter 'R' on the floor, discharged his semen on a piece of paper and threw it outside. She took her daughter and came to her room. She disclosed the entire facts to her husband. They did not report the matter to anyone due to fear of Lal Babu. After gathering courage she called the police on 100 number. On the complaint of complainant, case was registered. Prosecutrix 'R' was medically examined at AIIMS Hospital. Accused was arrested and he was SC No. 75/12 State Vs Lal Babu Mahto Page No. 2 of 25 also got medically examined from AIIMS Hospital. Exhibits were sent to FSL, Rohini for examination. Bone age examination of prosecutrix 'R' was also got conducted wherein her date of birth came between 1 to 2 years. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under Section 376 IPC was filed against the accused in the court.
2. Since the offence under Section 376 IPC is exclusively triable by the court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions. Charge against the accused:
3. Prima facie case under section 376(2)(f) IPC was made out against the accused. Charge under Section 376(2)(f) was framed upon the accused to which he pleaded not guilty and claimed trial. Witnesses Examined:
4. In support of its case, prosecution has examined fifteen witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material Witnesses:
5. PW1 is Smt. Meenu, complainant of the case who had deposed that she and her husband run a food raidi. In August 2012 they were staying at second floor near Sunil Dairy, Madanpur Khadar. She has two daughters namely Zia aged about 4 years and prosecutrix 'R' aged 1 year. On 09.08.2012 she and her husband along with their children came back to their home and went upstairs (terrace) for keeping their belongings. At the terrace two rooms were constructed out of which in one room SC No. 75/12 State Vs Lal Babu Mahto Page No. 3 of 25 accused Lal Babu Mehto along with his two friends resides. She asked her husband to bring potatoes. Her elder daughter was weeping for food so she along with her elder daughter came downstairs (II nd floor) leaving her younger daughter 'R' upstairs (terrace). It took some time to provide food to her elder daughter when in the meantime she heard the cries of her younger daughter 'R'. She immediately went upstairs(terrace) where she saw that the accused Lal Babu Mehto was not wearing his lower (trouser/underwear) etc and he was rubbing the vagina of her daughter 'R' with his penis by shaking her daughter 'R' who was not wearing her Kacchi as she had passed urine some time back in her Kacchi. On seeing her accused immediately separated her daughter from him and discharged his semen on a piece of paper and threw the same towards the dairy meant for buffaloes. She was scared and for this reason did not inform the police. However after two days she gathered courage and informed the police. Police enquired from her and recorded her statement Ex.PW1/A. After the incident accused also ran away from the spot and he was produced before the police after two days. Accused was arrested by the police vide arrest memo Ex.PW1/B and police got conducted his personal search vide personal search memo Ex.PW1/C. Police got the medical examination of her daughter 'R' vide MLC Ex.PW1/D. Accused was correctly identified by the witness in the court. IO recorded her statement to this effect.
6. PW14 is SI Josepha Kujur who had deposed that on 11.08.2012 DD entry No 10 A was entrusted to SI Satish Kumar initially for inquiry and thereafter on the instructions of SHO she reached at the spot where the complainant along with her daughter 'R' were present. She SC No. 75/12 State Vs Lal Babu Mahto Page No. 4 of 25 recorded the statement of complainant, got registered the FIR through Ct. Dinkar, took the prosecutrix along with her mother to the hospital and got her medically examined, prepared site plan at the instance of complainant, arrested the accused and got him medically examined, sent the exhibits to FSL , got the ossification test of the prosecutrix , recorded the statement of witnesses, prepared chargesheet and submitted the same in the court. Accused was correctly identified by the witness in the court. Formal Witnesses:
7. PW2 Sh. Sanjeev Kumar who had deposed one Sonu @ Alam was staying as tenant on the second floor of his house along with his family members. On the terrace two rooms were contructed in one of which accused Lal Babu Mehto along with his two mates was staying and in the other room other tenants are staying. On 11.08.2012 Sonu and his wife Meenu informed him about the incident having been committed on 09.08.2012 at about 11 PM and thereafter they informed the police. On 11.08.2012 he produced accused Lal Babu Mehto before the police and police arrested him. Police had also recorded his statement to this effect. Accused was correctly identified by the witness in the court.
8. PW3 is Sh. Sonu @ Alam, husband of complainant, who had deposed that he and his wife runs a food raidi. In August 2012 they were staying at second floor of near Sunil Dairy, Madanpur Khadar. He has two daughters namely Zia aged about 4 years and prosecutrix 'R' aged 1 year. On 09.08.2012 he and his wife along with their children came back to their home and went upstairs (terrace) for keeping their belongings. At the terrace two rooms were constructed out of which in one room accused Lal SC No. 75/12 State Vs Lal Babu Mahto Page No. 5 of 25 Babu Mehto along with his two friends resides. His wife asked him to bring vegetables. When he came back, his wife informed him that her elder daughter was weeping for food so she along with her elder daughter came downstairs (II nd floor) leaving her younger daughter 'R' upstairs (terrace) and when she was providing food to her elder daughter she heard cries of her younger daughter 'R'. She immediately went upstairs(terrace) where she saw that the accused Lal Babu Mehto was not wearing his lower (trouser/underwear) etc and he was rubbing the vagina of her daughter 'R' with his penis by shaking her daughter 'R' who was not wearing her Kacchi as she had passed urine some time back in her Kacchi. On seeing his wife accused immediately separated his daughter from him and discharged his semen on a piece of paper and threw the same towards the dairy meant for buffaloes. They were scared and for this reason did not inform the police. However after two days they informed the police. After the incident accused also ran away from the spot and he was produced before the police after two days by their landlord. Accused was arrested by the police vide arrest memo Ex.PW1/B and police got conducted his personal search vide personal search memo Ex.PW1/C. Police got the medical examination of his daughter 'R'. Accused was correctly identified by the witness in the court. IO recorded his statement to this effect.
9. PW4 is Constable Sandeep who had deposed that on 12.08.2012 on the instructions of IO he took the accused to AIIMS Hospital and got conducted his medical examination, doctor handed over over three pullandas, one sealed envelope with the seal of hospital along with sample seal to me which he produced before the IO and the same was seized by IO SC No. 75/12 State Vs Lal Babu Mahto Page No. 6 of 25 vide memo Ex.PW4/A. He also handed over the custody of accused to IO. IO recorded his statement to this effect. Accused was correctly identified by the witness in the court.
10. PW7 is Constable Sonica Bhati who had deposed that on 11.08.2012 on the instructions of IO she joined the investigation of this case, took the prosecutrix 'R' to AIIMS Hospital, got her medically examined in the presence of her mother Meenu and IO collected the MLC of the prosecutrix. IO recorded her statement to this effect.
11. PW8 is Constable Dinkar More who had deposed that on the intervening night of 10/11.08.2012 he was on emergency duty at police station Sarita Vihar. On 11.08.2012 at about 07.30 AM after receiving DD No. 10 A he along with SI Satish Kumar reached at the spot I.e Dairy No. 70, Madanpur Khadar, Sarita Vihar where he found mother of prosecutrix who told them that galat kaam was done with her daughter aged about 7/8 years. IO/SI Josepha recorded her statement and prepared rukka and handed over the same to him for registration of case. IO went for medical examination of prosecutrix. After registration of case, he took the rukka and copy of FIR to AIIMS Hospital and handed over the same to IO. Thereafter they came back to the spot and IO prepared the site plan. Accused Lal Babu Mehto was apprehended from his room at Dairy No .70, Madanpur Khadar at the pointing out of secret informer. IO interrogated the accused and arrested him vide arrest memo Ex.PW1/B and conducted personal search vide personal search memo Ex.PW1/C and then recorded his statement to this effect. Accused was correctly identified by the witness in the court.
SC No. 75/12 State Vs Lal Babu Mahto Page No. 7 of 25
12. PW9 is SI Adrina who had deposed that on 11.08.2012 upon receipt of rukka Mark X through Constable Dinkar More she recorded formal FIR, computerized print out of the FIR on record is now Ex. PW9/A (OSR). After registration of case, she handed over the rukka and copy of FIR back to Ct. Dinkar More to hand over the same to IO. Her endorsement on rukka Ex.PW9/B was duly proved on record.
13. PW10 is Head Constable Santosh who had deposed that on 11.08.2012 he received a wireless message from J50 to the effect that wrongful act has been done with a female baby aged 78 months at the main gate of Madanpur Khadar Dairy Form Sarita Vihar. She reduced the said information into writing in the Roznamcha as DD No. 10A copy of which is Ex.PW10/A. Copy of DD entry is given to SI Satish Kumar for further course of action who along with Ct. Dinker More left for the spot.
14. PW11 is SI Satish Kumar who had deposed that on 11.08.2012 he was entrusted with copy of DD No. 10A and thereafter he along with Ct. Dinker reached at the spot I.e Diary No .70, Madanpur Khadar where the complainant Smt. Meenu along with her daughter aged about 7/8 months met them and told them about the wrong act having been done with her daughter. SI Josepha was called at the spot and further investigation was conducted by SI Josepha. SI Josepha recorded the statement of complainant and got the case registered. On the same day at about 10 PM he along with SI Josepha went to the house of accused where the IO interrogated and then arrested him vide arrest memo already Ex.PW1/B and also conducted his personal search memo vide personal search memo already Ex.PW1/C. IO recorded her statement to this effect. Accused was SC No. 75/12 State Vs Lal Babu Mahto Page No. 8 of 25 correctly identified by the witness in the court.
15. PW13 is Constable Navtej Kumar who had deposed that on 11.08.2012 at about 7.28.14 AM a call was received from mobile number 9211860177 and stated "Madanpur Khadar, Dairy Farm ke main gate par 7/8 mahine ki ladki ke saath galat kaam kar diya hai". He entered said information in PartI of the format installed in the computer. Certified print out of PCR form brought by him is Ex.PW13/A and he has duly proved the signatures of ACP on the same. After filling the same he forwarded the same on internet.
Medical Witnesses:
16. PW5 is Dr. Sujata Rawat who had deposed that on 11.08.2012 at 12.30 PM prosecutrix 'R' aged about 8 months was brought to the Pediatric Emergency by her mother Meenu and she medically examined the prosecutrix 'R' and prepared detailed MLC Ex.PW1/D. She stated that upon examination she found redness of fourchette, superficial abrasion (injury marks) seen on hymen, however, hymen seem intact. She stated that since baby has taken bath so sample could not be collected.
17. PW6 Dr. Hari Prasad who had deposed that on 12.08.2012 at about 11.40 AM accused was brought to the department of Forensic Medicine by police. He medically examined the accused and prepared detailed MLC Ex.PW6/A. Upon medical examination, he opined that there is nothing to suggest that the person examined is incapable to perform sexual intercourse under normal circumstances. During examination, he collected the blood in gauze, penile swab with control and underwear and sealed the same with the seal of hospital and handed over to police along SC No. 75/12 State Vs Lal Babu Mahto Page No. 9 of 25 with sample seal.
18. PW12 is Dr. Venkatesh who had deposed that he has seen the ossification test report No. CS19318 dated 11.08.2012 and as per record the Xray plates pertaining to Baby 'R' were radiologically examined by Dr. Upasana Sinha who prepared report Ex.PW12/A. Upon examination Dr. Upasana Sinha opined the age of baby 'R' between 12 years. PW12 duly proved the signatures and handwriting of Dr. Upasana Singh on record.
19. PW15 is Ms. Anita Chhari, Sr. Scientific Officer, FSL, Rohini who had deposed that on 14.09.2012 four sealed parcels were received in their office containing penile swab of accused, control swab, underwear of accused and gauze cloth piece having brown stains of blood of accused. She duly examined the exhibits by taking all precautions and prepared detailed biological and serological reports Ex.PW15/A and Ex.PW15/B respectively.
Statement and Defence of accused :
20. Statement of accused under Section 313 Cr.P.C was recorded wherein the accused denied the case of the prosecution and stated that it is a false case made by the complainant. He stated that on 09.08.2012 he returned from his duty at around 8.30 PM and at that time Sonu was preparing food for his business purposes in morning after spreading his utensils and other articles in front of his room. He objected to this and asked him not to spread his utensils and other articles in front of his room and that he will not allow him to cook food in this manner as he is residing on the ground floor and has no occasion to come to the top floor in front of his rented room to cook food. Sonu Alam refused to remove articles SC No. 75/12 State Vs Lal Babu Mahto Page No. 10 of 25 whereupon he asked him that he will throw the articles from roof. Thereafter, Sonu Alam pushed him and a scuffle took place between them . Sonu threatened him that he will get him beaten up for his objections. At that time other neighbour in the surrounding rooms namely Pintu, Ram Babu, Ram Khilaan and himself were present. His landlord Sanjeev Baniya had also come to the spot after the quarrel had taken place and tried to pacify the same. Due to said quarrel he has been falsely implicated by Sonu Alam in this case. Sonu and his family members were also using bathroom of his floor despite the fact that they were having their own bathroom on their own floor but stopped using the said bathroom. He also made complaint to his landlord who also asked Sonu Alam not to cook food but Sonu Alam also threatened the landlord to falsely implicated him. On 11.08.2012 he was called by his landlord that wife of Sonu Alam had gone to Sarita Vihar Police station to make a complaint of the quarrel which had taken place between him and her husband Sonu Alam. On this he reached at metro station where his landlord met and then he along with his landlord went to police station Sarita Vihar. Police did not inquire anything from him and he was implicated in this case despite his objections and despite the asking of landlord. Accused further stated that he wish to lead defence evidence. Accused produced three witnesses in his defence. DW1 is Sh. Sanjeev Kumar who is the landlord of complainant and accused. He deposed that complainant Meenu was his tenant and was residing at second floor and accused Lal Babu Mehto was also tenant and residing at the roof of his property. There are two rooms at the roof of his house and due to this there used to quarrel between the accused and complainant. On 09.08.2012 SC No. 75/12 State Vs Lal Babu Mahto Page No. 11 of 25 quarrel occurred between complainant and accused. Accused complained before me regarding this quarrel. He also directed Meenu not to prepare food on roof but she did not mend her ways. Due to quarrel Meenu threatened accused that she will plant a false case upon him. On 09.08.2012 nothing was happened at the roof at around 11 PM as all the five tenants were present at the roof and he had not got any complaint from Meenu regarding such incident. He stated that more than thirty persons were residing at his address at that time but none of them got aware about the incident. On 11.08.2012 police called him at the police station to come with tenant /accused. He reached at police station along with accused and accused was arrested by the police.
21. DW2 is Sh. Ram Khilawan who stated that he was residing in a tenanted room with accused and Ram Babu. Complainant Meenu was preparing meals on the roof of the building and used to leave the garbage on the roof and in front of tenanted room. They used to clean the garbage and made objections to Meenu not to scatter garbage in front of their room but she did not pay any heed to their words. They also made complaint to landlord of the building who also tried to make Meenu understand but she did not mend her ways. On 09.08.2012 Meenu was cooking meals on the roof which was objected by accused Lal Babu. Hot arguments were exchanged between both the sides whereupon the complainant Meenu threatened accused Lal Babu that she will falsely implicate him in the case. On the same day he went for his duty and returned back in the evening at around 8.30 PM. On the said day when the quarrel had taken place between Meenu and Lal babu there were around thirty tenants of the surrounding SC No. 75/12 State Vs Lal Babu Mahto Page No. 12 of 25 rooms present there. No incident has happened as alleged by Meenu in the night of 09.08.2012 as five persons were sleeping together on the roof. On 10.08.2012 due to festival of janmashtmi they were on leave and nothing happened on that day. However on 11.08.2012 he and accused had left for the place of work. He was receiving telephone from some number which he does not remember from the side of his landlord who was enquiring about Lal Babu and asked him to come immediately. He went to Lal Babu and both accompanied together to their landlord who took accused Lal Babu to the police station Sarita Vihar and in the night he came to know by landlord that accused Lal Babu was arrested by the police.
22. DW3 is Sh. Ram Babu Mehto who deposed that he was residing in a tenanted room with accused and Ram Khilawan. Complainant Meenu was residing on the second floor of the building in a rented room. She was putting up a rehri of meals which was being cooked by her at the tenanted premises. Complainant Meenu was preparing meals on the roof of the building and used to leave the garbage on the roof and in front of tenanted room. They used to clean the garbage and made objections to Meenu not to scatter garbage in front of their room but she did not pay any heed to their words. They also made complaint to landlord of the building who also tried to make Meenu understand but she did not mend her ways. On 09.08.2012 Meenu was cooking meals on the roof which was objected by accused Lal Babu. Hot arguments were exchanged between both the sides whereupon the complainant Meenu threatened accused Lal Babu that she will falsely implicate him in the case. On the same day he went for his duty and returned back in the evening at around 8.30 PM. On the said day SC No. 75/12 State Vs Lal Babu Mahto Page No. 13 of 25 when the quarrel had taken place between Meenu and Lal babu there were around thirty tenants of the surrounding rooms present there. No incident has happened as alleged by Meenu in the night of 09.08.2012 as five persons were sleeping together on the roof. On 10.08.2012 due to festival of janmashtmi they were on leave and nothing happened on that day. However on 11.08.2012 he and accused had left for the place of work. On 12.08.2012 he was informed by Ram Khilawan that accused Lal Babu Mehto was arrested by the police.
Arguments of Ld. Defence Counsel for the accused:
23. It is stated by Ld. Counsel for accused that FIR is delayed. As per the MLC the hymen of the prosecutrix is intact meaning thereby that there was no penetration and as such offence of rape is not made out. It is stated that before amendment of Section 376 IPC penetration was essential for the offence of rape. The FSL result is negative. As per the MLC there were superficial abrasion over the hymen of the child but the same are not conclusive to say that they were caused by the accused. The site plan Ex.PW14/B shows the raidi articles on account of which the quarrel used to take place. Even the landlord of the premises says that the father of the prosecutrix used to cook food items at the terrace. Other tenants were also there in the room and the adjoining tenanted room falsifying the statement of the complainant. Arrest memo Ex.PW1/B shows the place of arrest at police station but it speaks about the residence. There are several contradictions on the point of arrest and the arrest memo. PW2 says that other maids were also present at the roof at the time of incident. The accused came to reside as tenant in the premises only two months prior to SC No. 75/12 State Vs Lal Babu Mahto Page No. 14 of 25 the incident. He cannot develop any intention to misbehave with the child. PW2 who is the landlord of the premises has also appeared as a defence witness from the side of accused and has supported the accused. DW2 and DW3, other tenants in the premises have also stated that no incident of 09.08.2012 had ever happened as they were present at the spot on the date of incident. Hence, it is prayed that accused be acquitted. Arguments of Ld. Additional Public Prosecutor for the State:
24. On the other hand, Ld. APP for state had argued that the testimony of the complainant is reliable. There is no occasion for her to falsely implicate the accused. The victim is a minor child of 08 months. From the testimony of the prosecution witnesses, the case is proved against the accused.
25. I have heard the Ld. Defence counsel for the accused and Ld. APP for state and have carefully perused the record.
Conclusion:
26. Before appreciating the facts of this case,it is necessary to know the ingredients of the offence by resorting to the provisions of sec.375 read with sec.376 IPC. Section 375 Rape provides: " A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First Against her will.
Secondly Without her consent.
Thirdly With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of SC No. 75/12 State Vs Lal Babu Mahto Page No. 15 of 25 hurt.
Fourthly With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly With or without her consent, when she under sixteen years of age.
Explanation Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
27. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from ten to eighteen years.
28. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal knowledge of any SC No. 75/12 State Vs Lal Babu Mahto Page No. 16 of 25 woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the following essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
29. Age of the prosecutrix: In the present case, accused has been charged under Section 376 IPC for committing rape upon the prosecutrix aged about 08 months without her consent. Section 376(2)(f) of IPC provides for higher degree of punishment for the offence of rape committed with the girl who is under 12 years of age. As regard to the age of the prosecutrix, the prosecution case is that the prosecutrix is a minor child of 8 months of age. As per the statement of complainant PW1 Meenu who is the mother of the prosecutrix, the prosecutrix was a child of 8 months. The eldest daughter is aged about 4 years. To prove the age of the child the prosecution has relied upon the bony age test report Ex.PW12/A which is duly proved by Dr. Venkatesh, Radiologist. As per the report Dr. Upasana opined her age to be between 1 to 2 years. The accused has not challenged the testimony of the mother of the prosecutrix PW1 so as to controvert her statement with regard to the age of the prosecutrix. No cross examination was conducted upon PW12 radiologist who had proved the age ossification test report of the victim child. The accused has even not cross examined the mother and father of victim with regard to the age. The accused has nowhere taken the plea that the age of the prosecutrix was not 8 months when the offence was committed. Hence, from the unchallenged testimony SC No. 75/12 State Vs Lal Babu Mahto Page No. 17 of 25 of the mother and father of the prosecutrix duly supported by the age ossification test report Ex.PW12/A it is proved that the prosecutrix was a minor child of less than 1 year on the day of incident.
Other ingredients of the offence:
30. The entire foundation to bring home the charge of rape rests on the statement of the mother of victim child who is an eye witness of the incident. The victim is a child of 8 months at the time of offence and as such she is not a witness in the case. As per the statement of PW1 Smt. Meenu on 09.08.2012 she along with her elder daughter came downstairs leaving the younger daughter i.e. Victim 'R' upstairs (terrace). She was providing food to her elder daughter and by that time she heard the cries of her younger daughter victim 'R' . She immediately went upstairs and saw that accused was not having his lower (trouser / underwear )etc. and he was rubbing the vagina of her daughter 'R' with his penis by shaking 'R'. She also deposed that 'R' was not wearing pant /Kachi as she has passed urine some time back in her Kachi. PW1 further deposed that seeing her the accused immediately separated her daughter from him and moment thereafter he discharged his semen on a piece of paper and threw that paper towards the dairy meant for buffaloes. During the cross examination, PW1 has deposed that the accused had torn the said piece of paper from a copy lying in the room of the accused. No such paper or the copy from which the said paper was torn, was recovered by the police in this case.
31. I have seen the testimony of PW Meenu who is the only eye witness of the incident. However, there is a major contradiction in her statement as made in the court from that on which the FIR was registered.
SC No. 75/12 State Vs Lal Babu Mahto Page No. 18 of 25 As per her statement Ex.PW1/A on which the FIR is registered, it is mentioned by her that she had come downstairs for feeding her elder daughter leaving the victim child 'R' at the roof who was playing on the roof and at that time the accused was also present there. At around 11 PM when she returned to the roof she found that the accused had taken the victim child in his lap and was playing with her. While playing he took the child to his room. After some time the complainant heard the cries of her daughter whereupon she went to the room of the accused and found that the accused had removed his lower garments and had taken the victim in his lap, had caught hold of both the hands of the victim, spread the legs of the child in his lap and was touching his penis with the vagina of the victim after shaking her. When the complainant had appeared in the court she had not stated that she had returned to the roof after feeding her elder daughter or that in her presence only the accused had taken the child to his room where the incident had happened. She has not also narrated the manner in which the accused was committing wrong act with the child in her statement in the court. It is beyond imagination that a person can dare to commit a wrong act with a child after taking the child to his room in the presence of the mother of the child. The incident had happened in the room of the accused. As per the version of the complainant at the time of incident, the room was not bolted from inside. If the accused would have taken the child from the terrace to his room for some immoral purpose and that too, within the sight and knowledge of mother of child, it is unbelievable that he will leave the door of the room opened and would perform the wrong act with the child in the open room knowing full well SC No. 75/12 State Vs Lal Babu Mahto Page No. 19 of 25 that there are other tenants in the surrounding rooms and even the parents of the child can come at any point of time to take back the child. In the statement recorded in the court, PW1 has not stated that accused had taken the child to his room in her presence. She has only stated that she was downstairs feeding her elder daughter, when she heard the cries of her younger daughter and went upstairs and then witnessed the incident. This is a major contradiction in her statement from her statement in the rukka making her testimony unreliable and untrustworthy. Moreover, it is also unnatural that a mother would not immediately take the possession of the victim child after she was separated by the accused and would continue to witness the conduct of the accused in tearing the page from a copy and then discharging his semen on the same and then throwing the paper towards the dairy of buffaloes. It is unnatural that during this time, PW1 shall watch the conduct of the accused as mute spectator without raising hue and cry.
32. Apart from the conduct of the complainant immediately at the time of incident, her conduct thereafter is also not acceptable to a normal human mind. It is not believable that even after seeing the incident where the accused was misbehaving with the child the mother of the victim shall keep quiet and will not raise any alarm knowing full well that the building is having around 30 tenants who can always come for their help. The unnatural conduct of the mother of the victim creates suspicion in the mind.
33. There is a delay of two days in lodging of FIR. As per the statement of complainant PW1 as well as her husband PW3 Sonu @ Alam, they did not lodge the complaint with the police on 09.08.2012 as they were scared of the accused. However, on 11.08.2012 they discussed the SC No. 75/12 State Vs Lal Babu Mahto Page No. 20 of 25 matter with their landlord PW2 and thereafter made the complaint to the police on 11.08.2012. The Landlord who must be an impartial and independent witness, speaks about frequent quarrels between mother of the victim and the accused on account of cooking of meals by the mother of the victim in front of the rented room of the accused. If the statement of the landlord is believed, the version of the complainant that they were afraid of the accused looses its sanctity. Moreover, as per the statement of PW1, after the incident accused has ran away from the spot. But as per the statement of PW8 Ct. Dinkar, PW11 SI Satish and PW14 SI Josepha Kujur, IO they arrested the accused on 11.08.2012 at 10 PM from his house. On the other hand, landlord PW2 Sh. Sanjeev Kumar says that accused was produced by him in police station on 13.08.2012. Hence, all the witnesses have given contradictory statements making arrest of accused doubtful. Doubt is also created on the statement of complainant, because if accused had fled away from spot on the day of incident, possibility of his returning to his house on the next day or thereafter is remote.
Medical Evidence:
34. From the statement of the complainant/PW1 Meenu/eye witness, it is clear that there was no penetration. The MLC of the child also shows that her hymen was intact.
35. So far as the report in MLC is concerned, it opines some redness at fourchette and superficial abrasion (injury marks) were seen on hymen however the hymen was seemed intact. The concerned doctor who had prepared the MLC of the victim has appeared as PW5. In her examination in chief she has deposed that since the baby has taken bath so SC No. 75/12 State Vs Lal Babu Mahto Page No. 21 of 25 the sample could not be collected. In her cross examination she has also deposed that there was no swelling on the genital part of the child nor there was any complaint of pain and bleeding. She had not given any opinion about the penetration. When she was specifically asked by the defence counsel that the injuries on the person of the prosecutrix is self inflicted, she could not opine anything about the same. Hence, the MLC of the child and the deposition of the doctor cannot conclusively point towards the commission of offence of rape. As per the statement of the mother of the child, she was not wearing her underwear which was removed by PW1 sometime prior to the incident as the child had passed urine. Hence, the possibility of redness on the fourchette or the abrasion on the hymen on account of some other reason cannot be ruled out. The FSL result is there but no sample of the child was collected nor sent to FSL for examination and as such, the FSL result is also not of any help.
Defence of the accused:
36. The accused in his statement has stated that he has been falsely implicated in this case by the mother of the victim child as there used to be frequent quarrels between him and the parents of the victim child on the issue of cooking of food by the parents of the victim in front of the room of the accused which food items they used to sell on their raidi. Though, the mother of the victim was specifically asked if there were quarrels between them on the issue of making food at the terrace of the premises in question which was denied by her but in support of his defence the accused has produced the landlord of the premises where he as well as the complainant were residing. The landlord of the premises Sh.Sanjeev had appeared from SC No. 75/12 State Vs Lal Babu Mahto Page No. 22 of 25 the side of prosecution as well as accused both. I have compared his testimony which was recorded twice in this case but I did not find any contradictions in both the statements. His statement is consistent on the point that the complainant was her tenant and residing on the second floor of the premises where as the accused was also his tenant and residing on the roof of his building where there were two rooms in which five tenants were residing. He has stated that the complainant Meenu was doing the work of installing raidi of food and she used to prepare food at the roof of his house due to which there used to be quarrel between the accused and complainant and on 09.08.2012 the quarrel had occurred between them and the accused complained before him. He directed the complainant Meenu not to prepare food on the roof but she was preparing food even on his prohibition and had threatened Lal Babu to plant a false case against him. He further deposed that on 09.08.2012 nothing had happened at the roof at around 11 PM as all the tenants were present at the roof nor any such complaint was received by him from the complainant. However on 11.08.2012 on being called by the police he produced accused in the police station. He has also stated that on 11.08.2012 he came to know about the incident for the first time. On the similar lines the other tenants DW2 Ram Khilawan and DW3 Ram Babu Mehto have stated that the complainant was residing on the second floor of the building and she was preparing meals on the roof of the building and used to leave the garbage on the roof in front of the tenanted room. They made objections but she did not mend her ways. They stated that on 09.08.2012 a hot exchange of words have taken place between Lal Babu and Meenu on this issue and no incident as alleged by Meenu has taken place on SC No. 75/12 State Vs Lal Babu Mahto Page No. 23 of 25 09.08.2012. They have stated that they were present in the house on the date of incident.
37. So far as the submission of the accused that the complainant was preparing eatables meant for selling at raidi at the terrace of the top floor of the terrace is concerned the complainant has herself admitted in her cross examination that they used to cook the eatables at the terrace of the top floor. Even the site plan also shows that the articles of raidi were there on the terrace of the top floor. The landlord of the premises where the complainant and the accused were residing had also deposed that there used to be frequent quarrels between the accused and the complainant as she was preparing meals on the roof in front of the room of the accused. Due to the quarrels, she has threatened the accused to implicate him in a false case. The landlord is an impartial and independent witness as both the parties have reposed their faith in him and that is why he has appeared as witness of prosecution as well as defence. He had categorically deposed about the threat given to the accused by the complainant of falsely implicating him and has also deposed about her defiant behaviour when she had not even acceded to the request of the landlord not to cook the meals in front of the room of the accused. It is not the case of the parents of the victim that there was some enmity between them and the landlord to depose against them and in favour of the accused. There is nothing on the record to disbelieve the testimony of landlord and other defence witnesses moreso when the statement of the complainant does not inspire confidence and is shaky and the medical evidence also does not support the prosecution case.
38. In view of the above said discussion, prosecution has not been SC No. 75/12 State Vs Lal Babu Mahto Page No. 24 of 25 fully able to prove its case under Section 376(2)(f) against the accused. Hence, accused Lal Babu Mehto is acquitted of the offence under Section 376(2)(f)IPC.
ANNOUNCED IN THE OPEN COURT ON 13.04.2015 ( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA/POCSO ASJ01/SED/NEW DELHI SC No. 75/12 State Vs Lal Babu Mahto Page No. 25 of 25