Delhi District Court
State vs . Amit on 1 October, 2015
IN THE COURT OF SH. SANJAY SHARMA-I
ADDL. SESSIONS JUDGE-01, NORTH EAST, KARKARDOOMA COURTS,
DELHI
SC No.31/2011
Unique Case ID No.02402R 0150042011
State Vs. Amit
S/o Sh. Ramdass,
R/o H.No. C-283, MCD Flats, Near
Mother Dairy, New Usmanpur,
Delhi.
FIR No. : 57/2011
Under Sections : 376(2)(f) IPC
Police Station : Welcome
Date of Committal : 01.06.2011
Arguments Heard On : 26.09.2015
Date of Decision : 01.10.2015
JUDGMENT
1. The victim in this case is a girl aged about 7 years and a student of class 2 nd at the time of incident. She was residing with her parents, grandparents and brother. She had alleged that on 15.02.2011, when she was going upstairs to her room at the top floor after purchasing milk from a shop, one boy namely Amit who used to do DJ work with her father and also known to her previously, met and caught hold of her at the second floor and removed her Pajami. She further alleged that when she asked the accused to leave her, he did not do so and instead, sat on her waist and inserted his finger into her urinary organ on which she started crying and he also wetted her Pajami. Meanwhile, on hearing the cries of the victim, her mother reached there and on seeing her, accused Amit ran away. On the asking of her mother, the victim told the incident to her and thereafter to her father. On the complaint of the victim, a case was registered for the offences punishable under Sections 376/511 IPC vide FIR State Vs. Amit SC No.31/2011 Page No.1 of 11 No.57/2011, dated 16.02.2011. The accused was arrested on the same day. After completion of the investigation, police filed a chargesheet against the accused for the offences punishable under Sections 376(2)(f) IPC before the Ld. MM and vide order dated 01.06.2011 the case was committed to this Court.
2. The Ld. Predecessor of this Court framed a charge against the accused for the offence punishable under Sections 376(2)(f) IPC vide order dated 19.07.2011.
3. In order to bring home the guilt of the accused, 13 witnesses were examined by the prosecution.
4. PW-1 was the victim, aged about 9 years (on the day of her examination), who deposed about the incident. PW-2 was Smt. Poonam, mother of the victim. PW-3 was Sh. Sanjay, father of the victim. PW-4 was Sh. Amitabh Rawat, Ld. MM who had recorded the statement of the victim under Section 164 CrPC. PW-5 Ct. Bhanwar Lal had taken the accused to the GTB Hospital for his medical examination and received two sealed parcels alongwith the sample seal and he handed over the same to the IO. PW-6 was Ct. Mehboob who had obtained the exhibits from the MHC(M) and deposited it in FSL Rohini. PW-7 was Ct. Umesh Kumar who had assisted the IO during investigation and a witness to the arrest of the accused. PW-8 was duty officer, who recorded the FIR.
5. PW-9 was W-Ct. Suman in whose presence the parents of the victim came to the PS and narrated the incident to the IO and disclosed the name of the accused as Amit. She alongwith the IO, the victim and her parents had gone to the GTB Hospital for the medical examination of the victim. IO had recorded the statement of the victim in her presence, prepared Rukka and handed over the same to her for the registration of the IO. After registration of the FIR, she returned to the spot alongwith the Rukka and copy of FIR and handed over the same to the IO.
6. PW-10 SI Manoj Kumar was the IO of this case who deposed in detail about the investigation conducted by him as also, the various documents prepared during investigation.
State Vs. Amit SC No.31/2011 Page No.2 of 117. PW-11 was HC Jai Pal Singh, the MHC(M) who deposed about the depositing of the case property at the PS and sending it to the FSL.
8. PW-12 was Dr. Ria Malik, Senior Resident, Gynae Department, GTB Hospital, who had medically examined the victim vide MLC Ex.PW12/A.
9. PW-13 was Dr. Prameshwar Ram, CCMO, GTB Hospital. He had proved the MLC of the accused as Ex.PW13/A which was prepared by Dr. Amit Kumar Gupta.
10. Thereafter, the statement of the accused under Section 313 CrPC, was recorded wherein the entire incriminating evidence was put to him which he denied and pleaded innocence. However, he took the defence that he used to work with the Chacha of the victim and there was a dispute about his wages and due to this reason he has been falsely implicated in this case.
11. I have also heard the Ld. Addl. PP for the State and Ld. Counsel for the accused.
12. It was pointed out by Ld. Counsel for the accused that the victim, though minor had changed her versions at each and every stage and had even admitted so in her cross- examination. In this context, her statements recorded at different stages are required to be referred.
13. The incident took place in the evening of 15.2.2011. In her initial complaint made to the police on which the FIR was registered, the victim stated that on the day of incident, in the evening the accused came to her house who earlier worked with her father of playing DJ and who was known to her, while she was going to the room situated at the top floor after fetching milk and reached at the second floor, accused Amit caught her and took off her pajami. She requested him to leave her but he did not left her and then sat on her back and inserted his finger inside her urinary track. She started crying and in the meanwhile he made her pajami wet. On hearing her cries, her mother came in the room and on seeing her, the accused fled away. This statement was recorded on 16.2.2011.
State Vs. Amit SC No.31/2011 Page No.3 of 1114. The victim made the second statement to the doctor on the same day wherein too she stated that "she was stopped on the second floor where lighting was poor, by Amit, he removed her clothes, sat on her back and put his fingers into her private parts".
15. Thereafter, the statement of the victim was recorded under Section 164 Cr. PC on 17.2.2011. In that statement, the victim stated that on 15.2.2011, she had fetched milk at about 8 PM and when she returned home, the accused was already sitting there. He asked the victim to come downstairs after keeping the milk and that he would give money to her. On asking why he would give money, the accused replied that she should come on the second floor as her house was on the third floor. She further stated that the accused had visited after several days and he used to work with her uncle Babloo. She further stated that then she reached on the second floor, accused took her to the room where he laid her down and put off her pajami and thereafter opened the zip of her pant and inserted his urinary organ into her urinary track. Thereafter, the accused made her lay upside down and started jumping on her back. She was feeling pain and was crying. The accused also kissed her, then suddenly her father came and on seeing him the accused fled away downstairs. She told her father that the accused was doing wrong act with her. The accused went downstairs and sat at the shop of her grandfather. The accused was beaten by her mother and father.
16. The victim was then examined in Court as PW1 on 21.8.2012. In her testimony, she deposed that on 15.2.2011, at about 9 PM, the accused had taken her in a room at the first floor of her house where he removed her clothes and committed rape upon her. She cried hearing which her father came in that room on the first floor and no other person was alongwith him. On seeing her father, the accused ran downstairs. Her mother called him upstairs and he came and her mother told him that she would make a police call. She further deposed that when the accused was trying to run away, her grandmother tried to stop him but the accused bit on her hand and ran away.
State Vs. Amit SC No.31/2011 Page No.4 of 1117. It is, thus, seen that the victim has given totally different version about the incident at different stages and there is a marked difference regarding the factual position and in respect of the material facts. In the initial complaint Ex.PW1/A and in the statement made to the doctor recorded on her MLC Ex.PW12/A, she simply stated that the accused had inserted his finger into her vagina while sitting on her waist. She improved upon and deposed in her statement under Section 164 CrPC that the accused had inserted his penis into her vagina and in her deposition before the Court as PW1, she used the word "rape", deposing that the accused had committed rape upon her. In her testimony before the Court, she even changed the place of incident from second floor to first floor. Similarly, in her initial complaint Ex.PW1/A she stated that first her mother reached the room on the second floor.
18. The victim was duly confronted with the previous statements. She denied to have stated to her parents that the accused had inserted his finger in her private part and was duly confronted with Ex.PW1/A, portion B to B, where it was so recorded. She was also confronted with Ex.PW1/A when she denied that her mother had not come at the first floor. She admitted that the accused had not laid upon her towards her face and when her underwear got wet, the accused was sitting on her waist. She also deposed in her cross examination that she had stated to the doctor about the fact of rape committed by the accused with her. There is no such statement on the MLC nor so deposed by the doctor, PW-12.
19. In her further cross-examination, she deposed that she had narrated correct facts of this case to the doctor and to the police and that the police had read over the statement to her, her parents and her grandmother before obtaining her signatures on it and in the same way the doctor had also read over her statement to her before obtaining her thumb impression on the MLC. In her further cross-examination, she categorically admitted that her statements before the police, doctor and the Ld. MM are different. It is relevant to reproduce the cross examination of the victim held on 16.10.2012 which is as under:
State Vs. Amit SC No.31/2011 Page No.5 of 11"my father had told me one day before that we had that we had to go to court for my statement. I had asked from my father what statement I had to make before the Ld. MM. My father had told me what I had to make my statement before Ld. MM. At that time, my mother was also present. My parents and one police official to the court on 17.02.2011. Before coming to the court we had gone to PS. Same police official had accompanied to court to whom we had met at PS. That police official had also told me at PS what statement I had to make before the court. It is correct that I had made my statement on 17.02.2011 as per police official and my father".
20. The statement of the victim under Section 164 CrPC was recorded after two days of the incident and during this period, she remained with her parents and also had interacted with the police officials. Hence, in view of this fact as well as the above deposition of the victim, the possibility of her being tutored cannot be ruled out.
21. The next material witness examined by the prosecution was PW-2, the mother of the victim. She deposed that when she asked the victim the reason of her crying, she told her that the accused had caught hold of her and had laid on her saying that she should not disclose to anybody whatever he was doing with her. She further deposed that she confronted the accused on which, he stated that he had done nothing but was giving money to her for toffee, however, the victim interfered and stated that the accused was lying and further told her that the accused had removed her pajami and sat on her waist. Thereafter, she gave two-three slaps to the accused and produced him before the police with her husband.
22. PW-2 was cross examined by the Ld. Addl. PP and in that cross-examination, she admitted that she came downstairs on hearing the cry of the victim and saw the accused sitting on the waist of the victim. In her cross-examination by the Ld. Counsel for the accused, she deposed that when she first time heard the cries of the victim, she was on the third floor and firstly the father of the victim came to the second floor and she followed. She also deposed that she came down to the second floor after about five-ten minutes as she was cooking chapatis. She deposed further that when she came to the second floor, she found that her husband was present in State Vs. Amit SC No.31/2011 Page No.6 of 11 the room where the victim was crying and who had already put on her pajami when she came there. She deposed that the accused had gone downstairs by that time. Thus, in this manner she had totally contradicted herself. As per her examination in chief, she was the first to reach the second floor room where the incident took place and saw the accused sitting on the waist of the victim, whereas, in her cross examination she deposed that her husband reached the place of incident first and by the time she reached there, the accused had already gone downstairs. This material contradiction makes her testimony shaky and doubtful.
23. Third material witness was PW-3 Sanjay, father of the victim. He deposed that on hearing the cry of the victim and saw the accused on the first floor of the house from the wooden ladder who was giving her some money and was saying the victim not to disclose anything to anyone. He then called the victim and his wife asked her as to what had happened with her on which, the victim told them that the accused had done bad talks with her (Gandi-Gandi Baten). Thereafter, his wife called the accused and slapped him who started running but he chased and apprehended him and took him to the PS. This part of the testimony of PW-3 is totally contradictory to the testimony of PW-2. As per this testimony, PW-3 had neither entered the room where the incident took place nor had seen the accused sitting on the waist of the victim. Both PW-2 and PW-3 in their examination-in-chief, have claimed to have reached first to the spot and the other followed, which makes their testimonies highly unreliable. Similarly, both PW2 and PW3 had claimed in the cross- examination that they had asked the victim to fetch milk.
24. It is worth mentioning that PW-3 was also cross-examined by Ld. Addl. PP for the State and it was only there that he admitted that he had seen the victim lying on the bed in the room and accused sitting upon her and that he had later on apprehended the accused. In her cross-examination by Ld. Counsel for accused, PW-3 admitted that the mother of the victim had talked to her before her statement under Section State Vs. Amit SC No.31/2011 Page No.7 of 11 164 CrPC was recorded and while they were coming to the court. He also admitted that the IO also met them in the Court before the recording of her statement.
25. The other witnesses examined by the prosecution were formal witnesses including the IO, who had only deposed about the details of investigation conducted by him. However, in the cross-examination the IO/PW10 deposed that at the time of preparation of MLC of the victim, her mother was present with the doctor. He also deposed that the mother of the victim was also present when he received the MLC and that he had examined her regarding the contents of the alleged history but she or the victim did not disclosed that the contents of the alleged history were written by the doctor correctly or wrongly. He also deposed that the contents of the alleged history on the MLC and the contents of statement Ex.PW1/A were almost same and further that the victim's mother did not made any statement to him regarding the rape of the victim in May 2011 and even after recording of her statement under Section 164 CrPC.
26. The discussion of the testimonies of these material witnesses show that the deposition of PW-2 and PW-3 is highly unreliable considering the contradictions appearing in their evidence and as pointed above. They do not appear to be the eye witnesses of the incident. It is also clear that the victim herself has made material improvements in her statements at later stages and considering her cross- examination noted above, she had clearly been tutored to improve upon her previous statement. Neither PW-2 nor PW-3 deposed that they ever protested to the IO or to the doctor who recorded the statement of the victim that they had recorded incorrect facts or that though the victim was raped but they both failed to mention this fact recorded in their respective documents.
27. The medical evidence in this case also assumes importance. Though in the FSL report Ex.PW10/PX and PY, semen was detected on the pajami and underwear of the victim as also on the underwear of the accused but it was not so detected on any other part of the victim including in the vagina secretion swab and micro slides. It is State Vs. Amit SC No.31/2011 Page No.8 of 11 also worthwhile to mention that the doctor/PW12, who examined the victim, had observed that the external genitals of the victim were healthy and her hymen was intact. She also noted no visible injury mark, except two abrasions on the right forearm and on right palm which she had noted were caused from fall on the stairs in the morning.
28. In case any penetration of the penis is attempted into the vagina of a small girl of seven years of age as in the instant case, it is highly unlikely that there would be no injury mark on her genitals, labia minora or the forchette. At least, there should be redness, swelling or abrasion present in the event of any forceful penetr ation which was absent in this case. As per Modi's Medical Jurisprudence, Page 504, "In small children, the hymen is not usually ruptured, but may become red and congested with the inflammation and bruising of the labia. If considerable force is used, there is often laceration of forchette and perineum."
29. The only conclusion which can be drawn from the above discussion is that the first statement made by the victim to the police and the doctor was correct and genuine while the later statement U/S 164 Cr. PC and her testimony in the Court was tutored and afterthought. It is also clear that though the accused inserted his fingers into the vagina of the victim but never committed rape upon her or even attempted to rape her by trying to insert his penis into her vagina. It is apparent that when the accused took off the pajami of the victim and inserted his fingers, he ejaculated which is the reason for the wetting of the pajami of the victim and finding of semen on her Pajami and underwear as well as underwear of the accused.
30. It may be noted that the incident aforesaid, took place on 15.2.2011, i.e. before the coming into force of the Criminal Amendment Act, 2013, which became effective from 13.2.2013 and in which the definition of rape was vastly amended and made quite wide. However, it is a settled law that criminal amendments cannot be with retrospective effect and as such, the present case has to be decided under the law as it stood before the amendment.
State Vs. Amit SC No.31/2011 Page No.9 of 1131. According to Section 375 IPC (prior to amendment), "a man is said to commit rape who except in the case hereinafter excepted, has sexual intercourse with a woman ..........." Thus, the necessary ingredient of Section 375 IPC was sexual intercourse which could not be established in this case and as such the offence under Section 376(2)(f) IPC (committing rape on a woman when she is under 12 years of age) could not be proved by the prosecution and therefore, the accused is acquitted of the offence punishable under Section 376(2)(f) IPC. However, it has been proved from the testimony of PW1 and the surrounding circumstances that the accused had used criminal force in order to outrage the modesty of the victim. Hence, the accused is found guilty for the offence punishable under Section 354 IPC and is accordingly convicted for the said offence.
32. The convict was arrested on 16.2.2011 and he remained in custody till 31.8.2013, i.e. for a period of more than two years and six months. The maximum punishment prescribed under Section 354 IPC, before amendment, was two years or fine or with both. Since the accused has already undergone punishment for more than the prescribed period under Section 354 IPC for which he has been held guilty, he is directed to be set at liberty. His personal bond and surety bond stand discharged.
33. A copy of the judgment be given to the convict free of cost. File be consigned to Record Room after compliance of Section 437-A CrPC.
ANNOUNCED IN OPEN COURT ON 1st day of October 2015 (SANAJY SHARMA-I) ADDL.SESSIONS JUDGE-01/N-E DISTRICT KARKARDOOMA COURTS, DELHI State Vs. Amit SC No.31/2011 Page No.10 of 11