Delhi District Court
Sc: 128/09 State vs . Bhagat on 8 October, 2009
:1:
In the Court of Ms. Shalinder Kaur
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 128/09
State
versus
Bhagat
S/o Videshi Bhagat
R/o Jhuggi No.2094,
Gali No.15, Prem Nagar
Anand Parbat, New Delhi.
Case arising out of:
FIR No. : 71/05
Police Station : Anand Parbat
Under Section : 363/376/511 IPC
Judgment reserved on : 18.09.09
Judgment pronounced on : 08.10.09
JUDGMENT
Case History:
1. Accused Bhagat stands trial before this Court for the offences punishable U/s 363/376/511 IPC.
SC: 128/09 State vs. Bhagat :2:
2. Investigations of the case commenced on receipt of DD No.25A by Investigating Officer ASI Desraj. He recorded the statement of Smt. Rekha, mother of the prosecutrix who stated that she was residing with her family in H.No.2094, Opposite Masjid, Gali No.15, Anand Parbat. On 04.03.05, her husband had gone for his work and she had taken her son aged 1 ¼ years for his treatment (Tona Totka) at Pahari while her two daughters aged 6 years and prosecutrix, aged 4 years were at home. She came back at 10 PM and her husband returned at 10.30 PM. At that time, her both daughters were sleeping. On 05.03.05, around 5 PM, the prosecutrix told her that last night, Bhagat had removed her underwear and raped her. Accused Bhagat resided in their neighbouhood, her husband apprehended him when accused Bhagat came and thereafter informed the police. The police personnel who had come from police station Patel Nagar made inquiries and thereafter took her and the prosecutrix to police station Anand Parbat. In the meanwhile, her husband also brought Bhagar to the police station. She prayed for legal action against accused Bhagat as he had removed her daughter to his Jhuggi.
3. On the statement of the mother of the prosecutrix, the investigations commenced. Investigating Officer informed WSI SC: 128/09 State vs. Bhagat :3: R.P. Minz, posted in Rape Cell, NGOs, Dr. Rajpal Mitra and WSI Asha Rani through helpline. The prosecutrix along with her mother and accused Bhagat along with Constable Virender were sent to DDU Hospital for their medical examination. The MLCs of the prosecutrix as well as of accused Bhagat along with exhibits and sample seals were obtained and deposited in Malkhana. The site plan was prepared and statement of the witnesses U/s 161 Cr.P.C. were recorded. The statement of the prosecutrix was also got recorded U/s 164 Cr.P.C. The accused got recorded his disclosure statement and thereafter he was arrested by the Investigating Officer. On completion of the investigations, charge sheet for offence punishable U/s 363/376/511 IPC was laid.
4. After the case was committed for trial to the sessions, Charge for offences punishable U/s 363/376/511 IPC was framed against the accused to which he pleaded not guilty. The prosecution examined 15 witnesses in order to substantiate the charge against the accused.
Evidence:
5. PW1 is Smt. Rekha who is the mother of the prosecutrix. The prosecutrix has been examined as PW2. PW3 Ram Kumar is the SC: 128/09 State vs. Bhagat :4: father of the prosecutrix. Their statements shall be adverted to subsequently in detail.
6. PW4 is ASI Mandodari who had taken the prosecutrix to DDU Hospital on 06.03.05 for her medical examination. She collected her MLC and two pulandas, containing the undergarment and vaginal swabs of prosecutrix, sealed with the seal of 'CMO', DDU Hospital along with sample seal. She handed over the pulandas to Investigating Officer which he seized vide seizure memo Ex.PW4/A.
7. PW5 HC Rajpal Singh has deposed that on 06.03.05, he was posted as MHCM in police station Anand Parbat. He proved the entry no.1623 of register No.19 as Ex.PW5/A vide which WSI R.P. Minz deposited four sealed pulandas with sample seal in Malkhana. On 30.03.05, these pulandas were sent though Constable Devender to FSL, Rohini vide road certificate No.137/21/04.
8. PW6 is HC Prabhu Dayal who was posted as the Duty Officer in police station Anand Parbat on 05/06.03.05 and performed his duties from 8 PM to 8 AM. He had registered FIR No.71/05 U/s SC: 128/09 State vs. Bhagat :5: 363/376/511 IPC on the basis of rukka, sent by ASI Desraj. He proved the said FIR as Ex.PW6/A.
9. PW7 is Constable Devender who corroborated the testimony of PW5 that on 30.03.05, he had taken four sealed pulandas vide road certificate No.137/21/04 to FSL, Rohini.
10. PW8 Constable Virender Singh deposed that on 05.03.05, he was posted in police station Anand Parbat and at about 10.45 PM, ASI Des Raj had received DD No.25A. In the meanwhile, SI Jagdish of police station Patel Nagar also reached there along with accused Bhagat, prosecutrix and her parents. ASI Des Raj had made inquiries from the prosecutrix and her parents who alleged attempt to rape having been committed by the accused on the prosecutrix. The witness deposed that he along with ASI Des Raj, ASI Mandodari, prosecutrix, her parents and accused went to DDU hospital for medical examination of accused and prosecutrix. PW8 also deposed that he had taken the rukka to police station and got the FIR registered and thereafter he handed over the copy of FIR and rukka to WSI R.P. Minz. After medical examination of the accused, he took two sealed pulandas sealed with the seal of 'DDU Hospital' along with sample seal, handed SC: 128/09 State vs. Bhagat :6: over to him by the concerned doctor which were seized by the Investigating Officer. The witness has proved the seizure memo of these articles as Ex.PW8/A. He also proved the disclosure statement of the accused, recorded in his presence as Ex.PW8/B. He deposed that the accused was arrested vide arrest memo Ex.PW3/A and his personal search was conducted vide memo Ex.PW3/B.
11. WASI Pushpa has been examined as PW9. She had partly conducted the investigations of this case and had prepared the charge sheet.
12. Dr. Shashi Lata Kabra has been examined as PW10. She deposed that on 06.03.05 while being posted in DDU Hospital as CMO, she examined the prosecutrix who was about four years old. The prosecutrix was brought in the hospital by her mother and WASI Mandodari at about 1.55 AM with alleged history of sexual assault. She has proved the MLC of the prosecutrix as Ex.PW10/A. After examination of the prosecutrix, she had referred to her to Gynae Department for Gynecological examination of the prosecutrix where the prosecutrix was examined by Dr. Renu Sehgal. As Dr. Renu Sehgal had left the hospital, therefore, PW10 SC: 128/09 State vs. Bhagat :7: also proved the report of Gynecological examination of the prosecutrix. She identified the signatures and handwriting of Dr. Renu Sehgal as having seen Dr. Renu writing and signing in ordinary course of her duties. She proved the detailed report as Ex.PW10/B, prepared by Dr. Renu on the MLC.
13. PW11 is ASI Jagdish Prasad who has proved the DD Entry No.25 A as Ex.PW11/A
14. Sh. A.K. Kuhar, Learned ACMM has been examined as PW12. He deposed that he had recorded the statement of the prosecutrix U/s 164 Cr.P.C on 07.03.05. He proved the application, moved by Investigating Officer as Ex.PW12/A. He also proved the statement of the prosecutrix, recorded by him as Ex.PW12/B and the certificate of correctness, given by him as Ex.PW12/C.
15. PW13 is Dr. Swati Aggarwal who had examined the accused Bhagat on 05.03.05 while she was working as Senior Resident in DDU Hospital. She proved the MLC of the accused as Ex.PW13/A. She also deposed that undergarment of the patient after sealing was handed over to Investigating Officer along with his blood sample.
SC: 128/09 State vs. Bhagat :8:
16. WSI R.P. Minz is the Investigating Officer of the case who has been examined as PW14. She proved the investigations, conducted by her in this case.
17. This is the entire evidence oral as well as documentary brought on record by the prosecution as noted above. Statement of the accused was recorded U/s 313 Cr.P.C. He pleaded innocence and stated that he has been falsely implicated by the complainant in the present case as she wanted to grab his Jhuggi which he had given on rent to her. The accused did not lead evidence in defence.
Contentions:
18. On behalf of the State, Learned APP submitted that the prosecution witnesses have deposed consistently and have supported the prosecution case. The prosecutrix has identified the accused who was residing in Patel Nagar at the time of occurrence and had removed her out of the lawful guardianship of her parents. He took her to his Jhuggi and performed the wrong act with her. Her parents have corroborated her testimony. Thus, in view of the overwhelming evidence on record, the accused is liable to be convicted for the offences for which he has been tried.
SC: 128/09 State vs. Bhagat :9:
19. Per contra, on behalf of the accused, it was contended that the accused had merely loved the prosecutrix as a child and she has admitted that he loved her the way he used to love his children. She has also admitted that he is of good character. Even the mother of the prosecutrix who has been examined as PW1 has not supported the case of prosecution. Thus, the accused is entitled to acquittal.
20. In the case of State of Himachal Pradesh vs. Asha Ram 2006 (1) RCR (Criminal) 139, the Hon'ble Supreme Court has observed that : It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting 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. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the SC: 128/09 State vs. Bhagat :10: prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.
In the backdrop of the said settled principle of law, let us examine the evidence of the prosecutrix, her parents as well as the medical evidence.
Findings:
21. At the time of commission of the offence, the prosecutrix was stated to be four years of age, when she appeared as a witness in the Court, she had turned to be of six years. The Learned Predecessor had put various questions to her while she was examined as PW2 to ascertain her capabilities to understand and answer the questions. After being satisfied that she can depose, her testimony was recorded without oath.
SC: 128/09 State vs. Bhagat :11:
22. The prosecutrix identified the accused as resident of Patel Nagar and she deposed that he used to sell candies. The accused took her in his lap and roamed in the area. He gave her a toffee and loved her in his Jhuggi. She further deposed that she was wearing her red colour underwear which was removed by the accused and he laid her on a cot. He removed her shirt and loved her. She felt pain when the accused was loving her and thereafter he left her at her Jhuggi. In response to a question that on which part of the body, she felt pain, the witness pointed towards her private part. During crossexamination, certain questions were put to the witness which she did not answer but responded by bending down her head.
23. PW1 is Smt. Rekha who is the mother of the prosecutrix. She testified that on the fateful day, she had gone with her son at Pahari of Anand Parbat for some work. She had left both her daughters in her Jhuggi. She came back at 10 PM in her Jhuggi and was told by her neighbours that the prosecutrix was taken by the accused who was not a good person. She made inquiries from her daughter who told that Bhagat had taken her to his Jhuggi. He gave her a toffee and had made love with her. Her husband had gone for his work who returned at 10.30 PM. On the next day, her SC: 128/09 State vs. Bhagat :12: husband made a telephone call to the police. The prosecutrix was taken to DDU Hospital for her medical examination and the doctor told her that nothing wrong had happened with the prosecutrix and she was normal. The witness also stated that her statement was not recorded by the police. She denied that she had stated to the police that her daughter had told her that the accused Bhagat had removed her underwear and committed sexual intercourse with her. She also stated that she asked for legal action against the accused at the instance of the neighbours.
24. During crossexamination, the witness has deposed that when she came back from Pahari at 10 PM, she found her both daughters were sleeping. She admitted that before she could enter her Jhuggi, her neighbours had told her that the accused had taken the prosecutrix with her. She also admitted that her thumb impression was obtained on a blank paper. The accused is having 45 children and used to sell icecandy in the area. She has also deposed that earlier she had not heard any complaint about the accused in any manner.
25. PW3 is Ram Kumar who is the father of the prosecutrix. He deposed that at the time of the incident which took place on SC: 128/09 State vs. Bhagat :13: 04.03.05, he had gone for his job at Shastri Nagar. On the next day, the prosecutrix had told him that the accused had committed wrong act with her after taking her to his Jhuggi on the pretext of giving her a toffee. He further deposed that the accused had removed her underwear and had attempted to commit sexual intercourse with her. When the child started weeping, he left her.
26. From the testimonies of prosecutrix and her parents, it is evident that accused had removed the prosecutrix, a minor child from the custody of her parents without their consent and knowledge. From the deposition of PW2, it emerges that the accused took her in his lap, roamed in the area and brought her inside his jhuggi. These witnesses have not been crossexamined at all on this fact. Rather the prosecutrix has been suggested during her crossexamination that accused took her in his lap and gave toffee to her. The prosecutrix did not give a specific reply to this suggestion but only nodded her head. PW3, father of the prosecutrix has corroborated her testimony. He deposed that on the next day, the prosecutrix told him that accuse Bhagat had removed the prosecutrix from his house to his Jhuggi and he took her there on the pretext of giving her a toffee. PW1 has also corroborated the testimony of the prosecutrix. Thus, prosecution SC: 128/09 State vs. Bhagat :14: has been able to establish that the accused had kidnapped the prosecutrix on 04.03.05 at 9 PM from the lawful guardianship of her parents.
27. As far as the allegations regarding attempt to commit rape by the accused are to be looked into, PW1, mother of the prosecutrix has deposed that prosecutrix told her that the accused had taken her to his Jhuggi, gave her a toffee and made love with her. The witness was got declared hostile by Learned APP as she was found to be resiling from her previous statement, made to the police. The witness denied the suggestion given by Learned APP that she told the police that her daughter had told her that accused Bhagat had removed her underwear and committed sexual intercourse with her. On the other hand, PW3 has testified that on the next day, his daughter told him that accused Bhagat committed wrong act with her. He further deposed that his daughter disclosed to him that accused had removed her underwear and attempted to commit sexual intercourse with her. On this, she started weeping and then accused left her. The testimony of PW3 is self contradictory. On one hand, he has testified that the prosecutrix told him that the accused had committed a "wrong act" with her but the "wrong act" has not been SC: 128/09 State vs. Bhagat :15: elaborated. On the other hand, in the same breath, the witness has deposed that the accused Bhagat had attempted to commit sexual intercourse with his daughter.
28. The prosecutrix has deposed that she was wearing a red colour underwear which was removed by the accused and he laid her on a cot. He also removed his shirt and loved her. She felt pain in her private part when accused was making love with her. Ex.PW10/A is the MLC of the prosecutrix. The alleged history as told to Dr. Renu Sehgal by the prosecutrix is that the accused took her to his place, made her lie down on the cot, took off her undergarment. But thereafter, the child was unable to explain anything further. On Gynecological examination, the doctor found the hymen of the child intact and opined that sexual intercourse does not seem possible. Doctor had also found the child unkept and dirty looking.
29. Though the prosecutrix has deposed that accused laid her on the cot and removed her underwear. He also removed his shirt and loved her but from her testimony, it does not appear that there was any 'penetration' or an attempt to 'penetration', made by the accused. The act of making love has not been explained by SC: 128/09 State vs. Bhagat :16: the witness. Thus, it cannot be inferred that by making love, the child meant sexual intercourse or its attempt. On the contrary, PW1 has denied that she had stated to the police that her daughter told her that accused had committed sexual intercourse with her.
30. In Aman Kumar & Anr. vs. State of Haryana 2004 (1) JCC 409, the Hon'ble Supreme Court has held as under : Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little.
Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration and this may occur with the hymen remaining intact. The actus reus is complete with penetration.
It is further observed that the examination of genital organs, state of hymen offers the most reliable clue.
SC: 128/09 State vs. Bhagat :17: Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further examination of the females for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen.
Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC.
It has been held that 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 do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempt 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 in spite of all SC: 128/09 State vs. Bhagat :18: resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.
31. From the evidence of the prosecutrix, it emerges that accused had removed his shirt only. Thus, there is no material on record to show that accused was determined to have sexual intercourse in all events. Moreover, PW1 has also deposed that when she returned home at 10 PM, she had found her both the daughters sleeping. Even the FSL result and medical evidence does not support the prosecution case. The undergarment of the child was not produced in the Court and got identified from the witnesses. Thus, the prosecution has failed to prove that the accused had attempted to rape the prosecutrix. Now, it is desired to be seen that whether it is a case of "criminal assault"
32. The distinction between rape and criminal assault has been described in the English case Rex vs. James Lloyd (1836) 7 C and P 317 : 173 ER 141. In this case, while summing up the charge to the jury, Justice Patterson observed :
In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner when he laid hold of the prosecutrix, not only desired to gratify his SC: 128/09 State vs. Bhagat :19: passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part.
33. In Aman Kumar & Anr. vs. State of Haryana (supra), the Hon'ble Supreme Court has observed as under : The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object.
It has been further observed that the point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her.
34. In the backdrop of settled legal position and the evidence adduced by the prosecution, it emerges that the accused had only removed his shirt and otherwise did not undress himself. It has not been shown that there was any attempt of penetration of the slightest degree. But the accused had definitely outraged the SC: 128/09 State vs. Bhagat :20: modesty of the prosecutrix by removing her undergarment and then laying her on the cot.
35. In the present case, the prosecution has been able to prove its case beyond reasonable doubt for offences punishable U/s 363/354 IPC. The accused is held guilty for the said offences. Announced in the Open Court On 08.10.09.
(Shalinder Kaur) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC: 128/09 State vs. Bhagat :21: State Vs. Bhagat FIR No. 71/05 PS : Anand Parbat SC No. : 128/09 08.10.2009 Present : Sh. Masood Ahmed, Learned APP for State.
Accused on bail with Counsel Sh. S.H. Ansari. Vide judgment announced of even date on separate sheets, the accused is held guilty for offences punishable under Section 363/354 IPC and is convicted.
Put up for Order on Sentence at 2 PM.
(SHALINDER KAUR) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC: 128/09 State vs. Bhagat :22: In the Court of Ms. Shalinder Kaur Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 128/09 State versus Bhagat S/o Videshi Bhagat R/o Jhuggi No.2094, Gali No.15, Prem Nagar Anand Parbat, New Delhi.
Case arising out of:
FIR No. : 71/05 Police Station : Anand Parbat Under Section : 363/376/511 IPC ORDER ON SENTENCE:
1. Heard on the point of sentence.
2. Learned APP states that the prosecutrix was barely four years of age when the accused had committed the said act with her, therefore, he does not deserve any leniency.
SC: 128/09 State vs. Bhagat :23:
3. Per contra, on behalf of the accused, it is stated that the accused had remained in custody for almost two years i.e. one year 11 months and three days which is sufficient deterrent punishment for him. It is further stated that the accused has six children out of which three are daughters and all the children are minor. He is the sole bread earner of his family. Thus, he may be sentenced for the period which he has already spent in judicial custody during trial.
4. In view of the submissions made as well as the antecedents of the accused, placed before me, in my opinion, interest of justice shall be adequately met with if the accused is sentenced to the period, he has already spent in judicial custody during trial for the offences punishable under Section 363/354 IPC. He is directed to pay a fine of Rs.2000/ for offence punishable U/s 363 IPC, in default SI for two months and to pay a fine of Rs.1000/ for offence punishable U/s 354 IPC, in default SI for one month. Copies be given free of cost to the convict.
Announced in the Open Court On 08.10.09 (Shalinder Kaur) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC: 128/09 State vs. Bhagat :24: State Vs. Bhagat FIR No. 71/05 PS : Anand Parbat SC No. : 128/09 08.10.2009 2:40 PM Present : Sh. Masood Ahmed, Learned APP for State.
Convict in person with Counsel Sh. S.H. Ansari. Arguments heard on point of Sentence.
Vide Order on Sentence announced of even date on separate sheets, the accused is sentenced to the period, he has already spent in judicial custody for the offences punishable under Section 363/354 IPC. He is directed to pay a fine of Rs.2000/ for offence punishable U/s 363 IPC, in default SI for two months and to pay a fine of Rs.1000/ for offence punishable U/s 354 IPC, in default SI for one month. Copies be given free of cost to the convict.
File be consigned to Record Room.
(SHALINDER KAUR) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC: 128/09 State vs. Bhagat