Delhi District Court
State vs . Pankaj Kumar on 8 April, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI.
Sessions Case No. 908/2008
Unique Case ID: 02404R0482292007
State Vs. Pankaj Kumar
S/o Lal Chand
R/o House No. 5, Gali Hanuman
Mandir Wali, Kewal Park,
Azad Pur, Delhi.
(Convicted)
FIR No.: 268/2007
Under Section: 376 (2) (f) Indian penal Code.
Police Station: Adarsh Nagar
Date of committal to Sessions Court: 18.2.2008
Date on which orders were reserved: 28.2.2011
Judgment pronounced on: 26.3.2011
JUDGMENT
1. As per the allegations on 14.5.2007 between 6:00 PM to 9:00 PM at House No.5, Gali Hanuman Mandir, Basti Kewal Park, Azadpur, the accused Pankaj Kumar attempted to commit rape upon State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 1 his daughter, aged two and a half years (less then twelve years) namely 'T' (name of the girl is withheld as this is a case under Section 376 (2) (f) Indian Penal Code).
BRIEF FACTS/ CASE OF THE PROSECUTION:
2. The case of the prosecution is that on the intervening night of 1415.5.2007 one Smt. Renu came to the Police Station Adarsh Nagar along with her daughter 'T' aged two and a half years and lodged a complaint wherein she informed the police that she was having a matrimonial dispute with her husband Pankaj Kumar. According to her, on 14.5.2007 at about 6:00 pm her husband came to her house on the pretext of meeting the children and he took the child 'T' with him and at about 9:00 pm left the child at the door and run away. She informed the police that the child was crying and when she took the child inside she found that the child was bleeding from her private parts reflecting that her husband had committed rape upon the child. On the basis of the statement of Smt. Renu, the present FIR was registered and the accused Pankaj Kumar was arrested. After completion of investigations the charge sheet was filed against the accused in the court.
CHARGE:
3. The Ld. predecessor of this court settled the charges under State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 2 Section 376 (2) (f) read with Section 511 Indian Penal Code against the accused to which he pleaded not guilty and claimed trial. EVIDENCE:
4. The prosecution in order to prove its case, has examined as many as ten witnesses.
Public Witnesses:
5. PW1 Renu W/o Pankaj (present accused) has deposed that earlier she was residing in Sector 15, Rohini with her brother and his family. She deposed that she was married to the accused Pankaj Kumar on 3.7.2002 and had a daughter namely 'T' (child victim) aged about four years now and she also had a son namely Vineet now aged about six years. According to the witness, there was some matrimonial dispute between her and the accused (her husband) and she had even made a complaint with the Dowry Cell, Pitam Pura in this regard and a compromise had been arrived at CAW Cell but according to the witness, her husband (accused) and her inlaws still harassed and misbehaved with her due to which reason she thereafter shifted to the house of her brother in Section 15, Rohini. The witness Renu has further deposed that about two three days prior to 14.5.2007, she went to the house of her uncle Raghubir Singh in Gali No. 6, Majlis Park, Delhi along with her children. On 14.5.2007 at State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 3 about 6:00 PM, the accused came to the house of her uncle on the pretext of meeting the children and after meeting the children, he forcibly took away her daughter 'T', who was aged about two and half years at that time with him, at about 9:00 PM, the accused returned with 'T' and left her at the door and ran away. According to the witness, her daughter was crying and she took her inside the house and saw that she was bleeding from her private part. She further deposed that her husband (accused) who had taken away the child had committed sexual intercourse with her daughter. The witness has deposed that at the time when the accused left her daughter on 14.5.2007, her father, her uncle, daughterinlaw of her uncle were also present at the house and she immediately took her daughter to a private doctor in Majlis Park with her uncle's daughter in law namely Vineeta and after examination, the doctor advised that she (witness) should contact the police on which they went to the police station along with her daughter and lodged the report where her statement was recorded which is Ex.PW1/A bearings her signatures at point A. The witness has further deposed that the police then took her daughter 'T' with a lady head constable to BJRM hospital and she also accompanied them. According to the witness at the time of medical examination of her daughter, she (witness) had given her consent for examination of her daughter at point A to A in the MLC hearing her signatures at point.
State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 4
6. Witness Renu has further deposed that the police had seized the clothes of her daughter 'T' vide memo which is Ex.PW1/B bearing her signatures at point B. According to the witness, her daughter was born on 7.11.2004. She further deposed that on 15.5.2007 her husband Pankaj was arrested from Suraj Nagar Park at her instance vide arrest memo Ex.PW1/C and was personally searched vide memo Ex.PW1/D. She has proved the seizure memo of slides and samples seal which is Ex.PW1/E bearing her signatures at point A. The witness has correctly identified the accused as well as the case property i.e. one half pant and one shirt belonging to her daughter which she was wearing at the time when she was taken to the hospital and was seized by the police, which is Ex.P1.
7. In her cross examination by Ld. defence counsel, the witness Renu has testified that she has studied till class seven and her marriage was solemnized on 3.7.2002 and that she remained with her husband till about one/ one and a half years after the marriage and thereafter, she was compelled to live separately with her husband on the insistence of her motherinlaw. According to the witness, they were residing separately in a different house and she is having a matrimonial dispute with her husband. The witness has deposed that she separated from her husband after the present incident which took place with her daughter. According to the witness, before this incident, she had gone to her mother's house to attend her brother's State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 5 marriage which took place on 4.2.2004. She has further deposed that she came to her mother's house on 30.12.2003 and did not go back because her husband had never came to take her back. According to the witness, on 14.5.2007, she had shifted to the residence of her Paternal Uncle/ Tau at gali no. 6, Majlis Park and had informed her husband about it and her husband i.e accused, used to come and meet her there. According to the witness, she had never gone to the house of Pankaj's parents / her inlaws after 2003 nor they have ever visited her and as on date she was no contact with them. The witness has further deposed that apart from the present case, a civil case pertaining to maintenance is also pending but she has filed no divorce case. She has denied that suggestion that she had fabricated this case against the accused only to pressurize the accused to fall in line. According to the witness, the incident took place at about 6 PM and it was Pankaj and his friend Kaushal who had left her daughter at her door by throwing her there while she was vomiting and thereafter did not stop. The witness has further deposed that when the accused was taking her daughter, her Tauji had consented and did not stop the accused from taking her. According to the witness, her son and daughter were playing when the accused Pankaj came and when her son resisted and stopped Pankaj from taking the daughter, he forcibly picked her up and took her telling her Tauji that he is taking her, when her Tauji told her son that it does not matter since Pankaj is her State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 6 father. According to the witness, earlier to this, Pankaj had never taken her daughter and on one occasion he had picked up her son from the road and taken him away and later her son was found from his house when she telephoned him and he then left him at their house. According to the witness, Radhey Shyam was bicholiya/ middleman from the side of Pankaj at the time of marriage and the daughter of Radhey Shyam was married to the son of her Tauji. She is unable to tell if Radhey Shyam is on visiting terms with her Tauji. According to the witness, on the day of the incident, the daughter of Radhey Shyam, who is her Tauji's daughterinlaw was not at home and she had gone to her parental house but she is unable to tell the time when she had gone. The witness has also stated that her daughter was not running any fever on the date of incident and was completely healthy. She further deposed that when the child came home and she picked her up, it was then she realized that her daughter was bleeding. She has deposed that it must be at about 9 PM. Her daughter had told her that she was having pain and she (witness) then took her to the local doctor who after examining the child told her (witness) that some incident / harkat had been done with the child. According to the witness, the doctor who had examined the child was a lady doctor and having her clinic at Adarsh Nagar. Witness is unable to tell her name and address because it is her Tauji's daughterinlaw who had taken them there. According to State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 7 the witness, she does not know any Mitterpal nor he had accompanied them to the doctor. She has deposed that it took them about 57 minutes with the doctor and within five minutes thereafter they came back home as the doctor was just on the backside gali of their house. She has also deposed that she herself, her father, Tauji and brothers had gone to the police station along with her daughter at about 11 PM and they all stayed there for almost the entire night as their complaint was lodged after a great delay. She does not recollect the time but states that her statement was recorded during the intervening night itself and they returned home only in the morning. She has further deposed that they were taken to the hospital early morning along with the child and thereafter they returned home. She is unable to tell the time but it was early morning. She has denied the suggestion that her daughter had got injured while playing by nail scratch and she had falsely implicated the accused because she was having a matrimonial dispute with him.
8. PW4 Vinita has deposed that Renu is her nanad (sister in law) and the accused Pankaj is her husband. The witness does not remember the date but according to her it was about two year ago, that Pankaj had taken away the girl 'T' aged about two and half year from their house as her nanad along with her children had come there to stay. The witness has further deposed that the accused Pankaj had taken away the girl 'T' at around 6.00 PM and left her back at State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 8 around 9.00 PM and when her mother (complainant) saw, she was bleeding from her private parts and they therefore took the child to a private doctor but doctor told them that it was a police case because rape has been committed. Thereafter the child 'T' was taken to somewhere by her (witness) fatherinlaw.
9. Ld. Addl. PP with the permission of the court put a leading questions to the witness regarding the date of incident on which the witness has admitted that the incident occurred on 14.5.2007.
10. In the cross examination by Ld. defence counsel, the witness Vinita has testified that the police had not recorded her statement. According to the witness she had not visited police station nor police made any inquiry from her. She has stated that her fatherinlaw was doing the work of dry cleaning. She does not know as to whether there was any matrimonial dispute between her nanad and accused. She has admitted that marriage of her dever took place in February 2007. She does not know whether Pankaj and his family members were invited in the marriage or not as she was in talking terms with the family of accused. According to the witness, the accused had not talked to anybody when he took away the girl. She also does not know whether Renu had talked to Pankaj on telephone between 6.00 to 9.00 PM on the date of incident or whether she has sent any person to bring back Tisha. The witness has further deposed that Pankaj was having a family comprising of his parents and brother and sister State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 9 and two bhabhi who reside together at Kewal Park. According to the witness, the distance between her house and the house of accused is half an hour walking distance and on the day of incident the accused had came on foot. Witness has admitted that the pajami of the child victim 'T' was completely stained with blood on the date of incident and the child 'T' was vomiting on that day and was suffering from fever since morning. According to the witness, they had only given medicine to her (child victim) from the chemist in the morning but she is unable to tell the name of the doctor where they had been the child victim but according to the witness, they are having visiting terms with the above private doctor as they take medicine. The witness has further deposed that the Doctor also recognized her by face as she often go to her to take medicine for herself and for her children. The witness has denied the suggestion that child victim was present at the home for the entire day as she was bed ridden due to sickness or that the accused had taken away the girl with him and he has not done anything wrong with her. The witness has further denied the suggestions that Renu herself has inflicted injury on the private part of the child victim 'T' in active connivance with her (witness) and doctor in order to falsely implicate the accused Pankaj. She further denied that since there was matrimonial dispute between Renu and accused therefore due to that reason in order to humiliate and damaged the reputation of the accused and his family she has State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 10 falsely implicated her husband in the present case as she want to remarry and get rid of him (accused).
11. PW9 Rattan Lal has deposed that on the day of incident he used to do iron the clothes with his brother Raghubir Singh at his house situated at C66, Majlis Park, Delhi and since his brother was ill in those days, therefore he use to work at his shop which is in the same house. According to the witness, his daughter Renu had come at C66 Majlis Park alongwith her children in the month of May 2007. The witness has deposed that on 14.05.2007 at about 4.00 PM, he had gone to Nirankari Colony and her daughter Renu had informed her on telephone that her husband Pankaj had come at about 6.15 PM and took away his daughter namely 'T' aged about two and a half years despite the objection of his daughter Smt. Renu. According to the witness, since there was some dispute between his daughter Renu and her husband Pankaj, therefore Ranu was residing with them for about last four months at C66 Majlis Park. The witness as further deposed that at about 8.45 PM, he came back to the house of his brother Raghubir Singh at C66 Majlis Park. He has deposed that the accused Pankaj had come at about 9.00 AM alongwith his daughter 'T' and left leaving his daughter 'T' at the door. He further deposed that the baby 'T' fell down on the gate. According to the witness, his daughter Renu took 'T' inside the house. According to the witness, his daughter Renu found blood on State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 11 the private part of baby 'T' (child victim) and his daughter Renu along with her Bhabi (sisterinlaw) Vineeta took baby 'T' to a private doctor where the doctor had informed her that "Galat Kaam" had been done with the child and further advised her to take the victim to Police Station. According to the witness, he went to the Pradhan of the village but he did not meet him at that time. He also wanted to collect the people of the village but they did not collect and thereafter he, his daughter Renu took baby 'T' to police station Adarsh Nagar where the Duty Officer recorded the case and Police took baby 'T' to BJRM hospital where her medical examination was got done.
12. During cross examination by Ld. defence counsel, the witness has deposed that his statement was recorded after about one and a half month of the incident by SI Kishan Lal at the shop of his brother. The witness has also deposed that the marriage of his daughter Renu took place in a Dharamshala in Rohini, in a simple manner and it was an arrange marriage. He does not remember whether the accused used to have a mobile phone but states that he did not have any mobile phone on the day of the incident. According to the witness the house of accused is at a distance of about half kilometer from the house of his brother. He further testified that the information that Pankaj had taken 'T' (child victim), was received by him on his mobile phone. He did not go to the house of the accused in order to verify the presence of accused and baby 'T'. According to State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 12 the witness, the accused resided in his house along with his mother, father, brother and sisterinlaw in a three storied house. He further deposed that the dispute between his daughter and Pankaj started about one year after the marriage as Pankaj was an alcoholic. According to the witness, a complaint had been filed with a CAW cell after about two years of the marriage and as on date no complaint is pending in the CAW cell as the same has been withdrawn by him (witness). The witness has deposed that on the date of the incident i.e. 14.5.2007, the accused came along with child victim 'T' on a two wheeler but he is unable to tell the registration number or color of the said scooter. He does not know the name of the private doctor where the girl was taken by his daughter but states that he had accompanied his daughter to the hospital. According to the witness, first they visited the police station and thereafter they were taken to the hospital. According to him they did not change the clothes of the girl on 14.05.2007. The witness has denied the suggestion that his community did not support his step as he had lodged a false complaint. The witness has further denied that he and his daughter had created a false story in active connivance with the police in order to teach a lesson to the accused and in order to malign the reputation and respect of the accused and his family. The witness has further denied the suggestion that the girl (child victim) sustained injury on her private part as it was caused accident and not in the State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 13 manner as stated by him. He has further denied the suggestion that the accused did not take the girl along with him on the said date. Medical evidence:
13. PW2 Dr. Neeraj Choudhery has deposed that on 15.5.2007, one patient Pankaj S/o Lal Chand aged 30 years male was brought to the hospital with alleged history of sexual assault and patient was examined by Dr. Tabrez under his supervision and as per MLC there was nothing to suggest the patient is incapable of performing sexual intercourse. According to the witness, after examination the blood sample and trouser were sealed and handed over to investigating officer. The witness has deposed that Dr. Tabrez has left the hospital and his whereabouts are not known. The witness has identified signature and handwriting of Dr. Tabrez as he has seen him while writing and signing during the course of his duty. The MLC is Ex.PW2/A bearing Dr. Tabrez signature at point A and B. In his cross examination, the witness has deposed that the MLC was not prepared in his presence and that there is no finding as to absence or presence of smega on the male organ.
14. PW3 Dr. Shyam Singh has deposed that he is the head of the department of Gyani and OBS. He seen the MLC No. 27133 of Tisha who was brought the hospital on 15.5.2007 for medical examination and patient was initially examined by Dr. Prashant, Junior Resident and thereafter she was referred to Gyani Department State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 14 where she was examined by Dr. Sadhna Gautam. As per MLC the patient was brought to hospital with alleged history of sexual assault by father at 6.00 to 9.00 PM on 14.5.2007. The witness has deposed that the patient was accompanied by her mother with complaint of vomiting five to six times and on general examination, the condition fair, patient was conscious and oriented and responding and the patient had changed her undergarments. Further, PA was Soft on local examination, no soft injuries marks seen over the breast, thighs, abrasion mark seen over the vulva, minimal bleeding present from vulva and separation of labia hymen intact. According to the witness, slide were made from the secretion over the vulva and packed and sealed and handed over to Lady Constable Ragni Sharma. He has proved the MLC which is Ex.PW3/A bearing signature of Dr. Sadhna at point A. The witness has testified that both Dr. Sadhna and Dr. Prashant have left the hospital and her present where about are not known.
15. In his crossexamination the witness has deposed that the patient was not examined in his presence and that the abrasion mark as mentioned in the MLC could be possible by foreign body viz finger etc.
16. PW6 Dr. Sanjay Kumar has deposed on the MLC No. State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 15 27133 and Emergency No.32781. According to the witness, the MLC Ex.PW3/A was prepared under supervision of Dr. Masroor Alam, (CMO) who is no longer in service and his whereabouts are not known and whose name finds a mention at point X. Police Witnesses:
17. PW5 HC Shiv Dan has deposed that on 15.05.2007 he was posted as Head Constable in police station Adarsh Nagar and was working as Duty Officer from 1.00 AM to 9.00 AM and at about 3.00 AM SI Kishan Lal produce one rukka on basis of which he registered FIR No268/07 U/s 376 read with 511 IPC, copy of which FIR is Ex.PW5/B. He also made endorsement upon the rukka which is Ex.PW5/A both bearing his signature at pointA. According to the witness, he thereafter handed over the original rukka and the copy of the FIR to Ct. Hiralal for handing over the same to SI Kishan Lal to whom the investigation had been marked. He further deposed that on the said date at 12:40 AM DD No.29 A had been recorded by HC Satpal Singh from whom he had taken over duty. According to the witness, the said DD was registered on the basis of the statement made by the child victim in the police station, copy of the DD No. 29A is ExPW5/C bearing the signature of Renu at PointX. This witness was not cross examined on behalf of the accused despite opportunities in this regard.
18. PW7 WHC Rajni Sharma has deposed that on 15.05.2007 State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 16 she was working as Head Constable in the office of DCP (North West), Ashok Vihar and was residing in the government quarters. According to the witness, on that day at about 1.00 AM, she was called by the investigating officer SI Kishan Lal in the police station. The witness has deposed that on the direction of the investigating officer, she took baby child victim, aged about two and a half years at that time, to the BJRM Hospital alongwith her mother and got her medical examination conducted. She took the exhibits of the child victim duly sealed with the seal of MS BJRM Hospital and sample seal from the doctor and were handed over to the investigating officer, who seized the same vide seizure memo Ex.PW1/E. She also took the clothes of baby child victim from her mother in the presence of investigating officer who seized the same vide seizure memo Ex.PW1/B both bears her (witness) signature at point B. The witness has correctly identified the case property i.e. one half pant and one shirt as produced by mother of the child victim in her presence and sealed by the investigating officer which are Ex.P1 (collectively).
19. In her cross examination by Ld. defence counsel, the witness PW7 has deposed that a special messenger had come to call her on the day of incident. She further deposed that she was called from her living quarters which are situated inside the complex of the police station. She did not record her arrival entry at the police station State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 17 Adarsh Nagar neither she recorded the departure entry in the DD register as the same was being recorded by the duty officer. She further deposed that in her presence the doctor did not make any inquiries from the child nor the doctor seized the clothes of the child in her (witness) presence but according to her the investigating officer had seized the clothes. She has denied the suggestion that she had tampered with the parcels till the time they remained in her possession or that she did not join the investigation or that she is deposing falsely at the instance of investigating officer.
20. PW8 HC Raghubir Singh has deposed that on 15.05.2007 he was posted at police station Adarsh Nagar and on that day he was on patrolling duty in his beat at Kewal Park and when he reached near park at about 10.00AM, SI Kishan Lal alongwith Smt. Renu met them, and he joined the investigation with them and reached at House No. 5, Kewal Park for search of accused Pankaj Kumar but Pankaj Kumar did not meet them. According to the witness, thereafter they reached behind Akash Cinema, Azadpur Commercial Complex, for his search and the accused Pankaj was found sitting in the Park who was identified by Smt. Renu and thereafter he was interrogated and after being satisfied, SI Kishan Lal arrested him vide memo Ex.PW1/C bearing his (witness) signatures at point B and personally searched vide memo Ex.PW1/D, bearing his (witness) signatures at point B. According to the witness, Rs.500/ were recovered from State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 18 formal search of accused and thereafter he was brought to the police station and thereafter was taken to BJRM hospital where he was got medically examined and the doctor concerned handed over the exhibits of accused Pankaj and one trouser in a sealed parcel duly sealed with the seal of MS, BJRM Hospital. He handed over the same to the investigating officer who seized the same vide memo Ex.PW8/A bearing his (witness) signature at point A. The witness has further deposed that the accused present in the court was interrogated and whatever he has stated was recorded separately vide Ex.PW8/B which also bears his signature at point A.
21. During his cross examination by Ld. defence counsel, the witness has deposed that he did not return to the police station from his beat and thereafter did not record any DD entry regarding the departure from the police station along with the investigating officer. He also did not record the arrival entry at the police station, and states that the investigating officer might have done so. He thereafter went to the house of the accused along with the investigating officer and the wife of the accused by foot. According to him, the wife of the accused namely Renu met him near Ram Lila ground, Kewal park along with the investigating officer. He has deposed that the house of the accused is about 250 meters from the Ram Lila ground and the place of arrest is about 700/800 meters away from the house of the accused. He has deposed that after arresting the accused, they State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 19 accompanied him to the police station on foot. Further, according to the witness, the accused was running a shop of miscellaneous items (grocery). The witness has deposed that the information regarding the arrest of the accused was given to his chacha, however he does not remember his name. He does not know by what means the chacha of the accused was informed about the arrest. The accused was arrested around 11 AM. According to the witness, the disclosure statement of accused was written in the police station at about 11:30 12 noon, but he does not know in which room the said disclosure statement was recorded. Witness has further deposed that the accused was not produced before the Station House Officer of the police station Adarsh Nagar. According to the witness, the information regarding arrest of the accused in DD register was not recorded in his presence so he does not know the time of the arrest of the accused. He has deposed that no pointing out memo regarding the place of incident was prepared by the investigating officer since the accused was not taken to such place. He has deposed that apart from him, the arrest memo of the accused was signed by Mrs Renu also. The witness has denied the suggestion that he did not join the investigations in the present case or that the accused was not arrested in the manner and place as stated by him. The witness has further denied that the accused was present at his home and he was lifted from the said place. He further denied that he and the investigating State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 20 officer in active connivance with the complainant and his family have falsely implicated the accused in the present case to malign the reputation of the accused as a matrimonial dispute is going on between the complainant and the accused.
22. PW10 SI Kishan Lal has deposed that on 14.05.2007 he was posted at police station Adarsh Nagar as sub inspector. According to the witness, on the intervening night of 1415.05.2007 Renu came to the police station along with her daughter (child victim) aged about two and a half years and vide DD NO. 29 A lodged a complaint against her husband which DD is Ex.PW5/C. According to the witness, the aforesaid information was marked to WASI Renu but since she was not available therefore he himself recorded the statement of the complainant Renu which statement is Ex.PW1/A bearing his signatures at point B and thereafter send the child baby child victim to BJRM Hospital along with WHC Rajni who is residing in the compound of the police station itself and had been called from her residence by him. The witness has further deposed that the mother of the child Renu also accompanied her to the hospital. He has deposed that WHC returned to the police station at about 2:30 AM along with the MLC of the child and one sealed pullanda containing vaginal swab bearing the seal of the hospital and its sample seal which he seized vide memo Ex.PW1/E bearing his signatures at point C. The witness has further deposed that the State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 21 mother of the child namely Renu also handed over the clothes of the child which she was wearing at the time of the incident which he converted into a pullanda and sealed the same with the seal of KL which was seized vide memo Ex.PW1/B bearing his signatures at point C. He thereafter made his endorsement on the statement of Renu which is Ex.PW1/A bearing his signatures at point B and handed over the same to the duty officer for registration of the case and after the case FIR was registered, he was handed over the original rukka which is Ex.PW10/A and the copy of the FIR which is EX PW 5/B after which he accompanied the complainant for search of the accused and went to House No. 5, Kewal Park i.e. residence of the accused where his father was found but the accused was not present. According to the witness, they were told by his father that the accused was not returned to his house since last evening after which they made the inquires from the neighbourhood with regard to the whereabouts of the accused and the eye witness but could not find any eye witness and accused. The witness has further deposed that on the same he along with complainant Renu left for the search of accused and reached near Ram Lila Park where HC Raghubir Singh met them who joined them and started the further search of accused. The witness has further deposed that they reached at Suraj Nagar, in the area of Adarsh Nagar. According to the witness the accused Pankaj Kumar was found sitting in the Gopal Nagar Park State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 22 who was identified by the complainant Smt Renu and thereafter he was apprehended and interrogated and was arrested in this case vide arrest memo Ex.PW1/C and personally searched vide memo Ex.PW1/D both bearing his (witness) signatures at point C. The witness has further deposed that thereafter the accused was sent for his medical examination through HC Raghubir Singh who got his medical examination conducted and brought the accused in the police station. The witness has further deposed that HC Raghubir Singh had produced one sealed parcel containing trouser of accused and another parcel containing the exhibits of the accused along with the sample seal duly sealed with seal of hospital which he took into possession vide seizure memo Ex.PW8/A bearing his signatures at point B. The witness has further deposed that the accused was made to sit in the interrogation room and was throughly interrogated and his disclosure statement was recorded which is Ex.PW8/B bearing his signatures at point B. According to him, the aforesaid pullandas were deposited in the malkhana and the accused was produced before the hon'ble court and was sent to judicial custody. He has deposed that during the investigation he collected the birth certificate of the child victim from the MCD office which was placed on record. The witness has also deposed that on 29.06.2008 he took the exhibits from the MHC(M) and got the same deposited at FSL Rohini. The witness has further deposed that no tampering was done till such time State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 23 the aforesaid exhibits remained in his possession. He handed over the copy of receipt to MHC (M) after getting the exhibits deposited in FSL office Rohini. He thereafter recorded the statement of then MHC (M). He also collected the result Ex.PW10/B and placed the same on record and after completing the necessary investigation U/S 376/2(f)/511 IPC, he prepare the charge sheet.
23. During his cross examination by Ld. defence counsel, the witness PW10 has testified that the complainant Renu had come to the police station at about 12:40 AM (midnight) along with her father and daughter 'T' (child victim). According to him, the complainant stayed at the police station for about 2025 minutes and thereafter they went to the hospital along with WHC Rajni and returned to the police station at about 2:30 AM and stayed at the police station for about 45 minutes. According to the witness, during the said 45 minutes, he took into possession the parcels produced by WHC Rajni and also the clothes worn by baby child victim . The witness has further deposed that during the said course of 45 minutes, he did not handed over the said parcels to the MHC (M) and it remained in his possession and parcels were handed over to the MHC(M) only on 15.05.2007 at 12 noon. He has also deposed that he visited the house of the complainant's uncle and also the house of the accused. He did not prepare any pointing out memo regarding the place of occurrence. The witness has further deposed that he did not make State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 24 any DD entry regarding his departure from police station while searching for the accused since there was already a departure entry in the concerned FIR itself. According to the witness, there is a DD entry of his arrival on 15.05.2007 but he does not remember the number nor the time of the said DD entry. The witness has deposed that he was in his uniform and left the police station by foot along with complainant as she was also present in the police station itself. He has deposed that the distance between the police station and the house of the accused is about half km. and on his way he asked HC Raghubir to join him in the investigation who was also in the uniform. He has further deposed that first of all they visited the house of accused and thereafter they searched the accused in the surrounded area. Thereafter, they took about 78 hours in searching the accused in the surrounding area of the Police Station. According to the witness, the place of arrest as per arrest memo is about 750 meters from police station and the the said park is a large park but at the time of arrest there were only few persons. He has deposed that after the arrest of the accused he interrogated the accused for about 15 minutes in the park itself and the accused was sent to the hospital from the park itself for medical examination and was not taken to the police station. He has deposed that the disclosure statement was recorded at the police station which took about 3045 minutes. According to the witness, the arrest memo was prepared at the park State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 25 itself and the information regarding arrest of the accused was given to his chacha as he had come to the park coincidentally. According to the witness, HC Raghubir was an attesting witness to the disclosure statement and Mrs Renu was not present at the time of recording of disclosure statement. The witness has deposed that the clothes of baby 'T' (child victim) were seized by him after they had come from the hospital. The witness has denied the suggestion that he did not carried out fair investigations in the present case or that he connived with the complainant to create a false case against the accused as there was a matrimonial dispute between the complainant and the accused. Witness has further denied the suggestion that he recorded false statement, created false evidence or that he tampered with the parcels and exhibits which were in his possession or that the complainant did not accompany them to the place of arrest or that the accused was arrested in the manner and place as stated by him. The witness has further denied the suggestion that the accused was arrested from his residential house.
Statement of Accused & Defence Evidence:
24. After completion of prosecution evidence the statement of the accused was recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence was put to the accused which he denied. The accused has admitted the facts of marriage with Renu and of having two children. According to him he was State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 26 lifted by the police from his house on 15.5.2007. He further stated that he was forced to sign certain blank papers in the police station.
According to the accused it is a false case against him which has been foisted by his wife as she was having a matrimonial dispute with him. The accused has also stated that Renu had also filed a complaint before the CAW Cell, Pitam Pura. According to him he has been taking due care of his wife and children. He has further stated that the present case has been initiated against him in order to malign his respect and reputation at the instance of his wife and her family members who are having grudge against him and his wife and police officials have colluded and conspired to create false evidence in this case to implicate him. He also deposed that he loves his wife and both children namely 'T' (child victim) and Varun very much and wants to keep them always with him and that his wife has used his daughter 'T' as an instrument to get rid of him and in order to teach him a lesson which she had threatened several times in CAW Cell. According to the accused, he had not taken his daughter (child victim) on 15.5.2007 and she was in custody of her mother and family members on that day, however, to the reasons best known to his wife she is not ready to stay with him. The accused has also examined two witnesses in his defence.
25. DW1 Kaushal Kumar has deposed that he know Renu as she is his family friend. According to him, on 14.05.2007 Pankaj State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 27 came to Kewal Park and informed that his wife has come to Gali No. 6, Majlis Park at the residence of her uncle and he (witness) was going to meet his family. The witness has further deposed that he also accompanied Pankaj to the residence of uncle of Renu. The witness has deposed that there Pankaj called his son but he did not come and the daughter of Pankaj came to him and all the members of the family of uncle of Renu were present there and Pankaj talked to the uncle of Renu and requested him and also took his daughter to his residence and after some time the girl insisted to come to his (witness) residence to play with his children, then they took her to his (witness) residence. According to the witness, the daughter of Pankaj remained at his (witness) residence for about half an hour or one hour, all the time she was playing with his children and the children from his neighbourhood. The witness has further deposed that at about 7:308 PM when they were going to leave the girl at residence of uncle of Renu, Radhey Shyam met them on the way and they went to the residence of uncle of Renu in gali No. 6, Majlis Park and left the girl there in normal conditions. The witness has deposed that the family of uncle of Renu requested them to have a cup of tea but he and Pankaj came back and Radhey Shyam stayed there to have a cup of tea.
26. The witness DW1 has deposed that on the next day i.e. on 15.05.2007 at about 2 PM when he returned back to Kewal Park State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 28 chowk after plying his three wheeler, he came to know about the present case and he thereafter he went to the police station and where he came to know that Pankaj has been taken to court and thereafter once he met the police inquiring into the case and appraised them about the fact. According to the witness, Renu has falsely implicated Pankaj in the present case as in fact once Renu went to her matrimonial home on the occasion of marriage of her brother but Pankaj did not go and Renu remained at her matrimonial house and insisted that Pankaj should come to take her back. He has deposed that Renus is egoist and once Renu met him in the court and asked him to mediate between her and Pankaj and told him that she does not want to live with the parents of Pankaj and if Pankaj takes a separate accommodation, she will burry all her grievances.
27. In his cross examination by Ld. APP for the State, the witness DW1 has testified that he know Renu prior to her engagement with accused Pankaj and had attended the sagai ceremony and marriage also but he is unable to tell the date of sagai and marriage. The witness has further deposed that his marriage taken place on 27.02.2003 but he is unable to give the date of birth of daughter of Pankaj. According go him, he did not go to the house of Renu at the time of birth of her child and he had gone at the time of birthday of that child. He is not aware the date of birth of the child nor he knows the name of the father of Renu. He has admitted that State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 29 he is not closed to the family of Renu and is closed to the family of accused Pankaj. He has denied the suggestion that since he is close to the family of accused Pankaj, he is manipulating the aforesaid story in favour of accused Pankaj. According to the witness, while he was going to market, Pankaj met him at about 6 PM in gali No.3, Majlis Park and thereafter he and Pankaj went to the house where Renu was residing at that time. He is not aware whether the said house is belonging to Tau or Chacha nor he knows the house number in which Renu was residing with her inlaws. He is unable to tell the name of son of Renu and deposed that Sh. Radhey Shyam met them at Kewal Park Chowk, which is a running road and there is no gali where Sh. Radhey Shyam met them. The witness has further deposed that he took Radhey Shyam with them while he was bringing the child from his house. He has further testified that Pankaj was also sitting on his scooter while Radhey Shyam was on his cycle and he handed over the daughter of Renu to Renu. According to the witness, Renu offered tea to him and Pankaj but they did not take the same. DW1 has also deposed that he along with four to five mohalla people went to the Police Station Adarsh Nagar and met the investigating officer but Radhey Shyam had not gone to the police station. According to him, the accused had not attended the marriage of brother of Renu therefore the quarrel had taken place between Renu and her husband on this issue. He is not aware the State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 30 nature of other dispute arisen in the family of accused. The witness is unable to tell the day of week on 14.05.2007 and has admitted that the date as 14.05.2007 was given to him by the accused Pankaj. The witness has denied the suggestion that the accused Pankaj had committed galat kam with his daughter due to which reason Renu made a complaint to the police. He knows the name of child 'T' but is unable to give the description and color of the clothes worn by the child at that time. The witness has further denied the suggestion that he is manipulating the story in order to save the accused Pankaj. According to the witness, Radhey Shyam is working at electric shop, the said shop is not pertaining to Radhey Shyam or his family, he is only employee at the electric shop. The witness has further deposed that he had seen the shop and he know him very well. He know Radhey Shyam very well as he used to supply the magazines and his shop was also situated near the said electric shop where Radhey Shyam is working. He has deposed that he had shifted his business from that shop and is presently plying an auto.
28. DW2 Radhey Shyam has deposed that he has a shop of electric repairing at D40, gali No. 7, Majlis Park. He was mediator in the marriage of Renu with accused Pankaj Kumar. According to him Renu is his relative also as his daughter is married with the son of Tau of Renu who is resident of gali No. 6, Majlis Park. The witness has further deposed that he has visiting terms with the family State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 31 of Renu. According to him on 14.05.2007, Tau of Renu had come to his (witness) shop at about 7:308 PM and told that Pankaj has taken his daughter to his residence and it was evening time and asked him to bring his daughter as it is late hours and the child cannot live without her mother. The witness has deposed that when he was going towards the house of accused Pankaj, in the way Pankaj, one Kaushal and the daughter of Pankaj met him. Thereafter, he along with Kaushal and Pankaj went to the house of Renu along with the child and the fatherinlaw of Pankaj offered them the tea. According to the witness, Pankaj and Kaushal left without having tea as they had to go to some other place. He remained there for about one and half to two hours and during this period Renu took her daughter outside for a walk and after half an hour she came back went inside the house. He was having talks with the tau of Renu as his daughter was sent to his residence. According to the witness, he was also asked by tau of Renu to mediate between Renu and Pankaj to solve the matrimonial disputes and he (witness) told him that his shop was still open and he therefore left to close his shop and thereafter again returned to the residence of tau of Renu. Thereafter, he along with father of Renu, Tau of Renu and Renu went to Kewal Park to one Mitar Pal who is the maujiz (Prominent) person of their community who told them that it is night time and he could not accompany them to the residence of Pankaj and told them to come in the morning on State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 32 which they had tea and snacks there and thereafter returned. According to the witness at the same time it started drizzling and he left them on the way and went to his house and thereafter the tau and father of Renu told him (witness) to come in the morning for the meeting. The witness has further deposed that in the morning the father of Pankaj came to his residence and told about the false implication of the accused by Renu. He went to the police station Adarsh Nagar and told them about the fact of the case and also told them that nothing as alleged by Renu has happened. He has further deposed that the police persons asked him to go to his house. According to the witness, he has come to the court at the instance of accused Pankaj as he asked him to appraise the court about the facts.
29. During his cross examination by Addl. PP for the state, the witness has deposed that the Tau of Renu had come to his shop on 14.05.2007 at about 78 PM. According to him, he closes his shop at about 10 PM. The witness had not produced any record showing that he is having electrical shop at D40, Tandon road, gali No. 7, Majlis Park. According to the witness, the shop is registered in the name of his father. Witness is also unable to tell the day of week on 14.05.2007. He has deposed that the accused Pankaj and Kaushal met him with the daughter of Pankaj in gali No. 3. He is unable to give the name of any resident of gali No. 3. He is also unable to give the details of gali No.3 and the name of the owner of the house in State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 33 front of which they met him. He does not know the date of marriage of Renu, however he got the same arranged and attended the same. Witness is also not aware of the date of his own marriage. According to the witness, prior to 14.05.2007 the accused and Renu met him on several occasions but he cannot tell the dates of those meetings. He is unable to tell the name of child involved in this case. According to the witness, at that time the age of child was about 22 ½ years. He has stated that he did not go to the house of accused Pankaj at the time of birth of his child since he was not called at the time of birth of child by Pankaj or by Renu. He has admitted that after the marriage of Pankaj and Renu he did not visit their matrimonial house frequently and admits that for this reason he did not know what was happening in their family. He is unable to the name of the father of the accused Pankaj and also the name of the father of Renu, who had offered tea. The witness has denied the suggestion that he had concocted this incident of the father of Renu having met him and of having offered tea to him at their house. DW2 has further deposed that Pankaj and Kaushal left the house leaving the child at the gate of the house of Renu but he is unable to give the description of the clothes worn by the child on that day. He is also not aware the nature of dispute between the accused Pankaj and his wife Renu. According to the witness police informed him that the accused had committed some galat kam with his daughter on which he informed the police State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 34 official of Police Station Adarsh Nagar that the accused Pankaj and Kaushal were bringing the daughter of accused Pankaj and nothing alleged was done by the accused with his daughter and the condition of his daughter was proper. He has also deposed that he did not meet any higher authority of the police nor made any oral or written complaint to the police official or other higher authorities. He is not aware as to what happened with the child before she met her father in the gali No.3. He has denied the suggestion that he is giving the date as 14.05.2007 at the instance of accused but has admitted that he is not aware of the date of marriage of Renu, date of birth of child or other functions in the family of Renu and his date of marriage also. He has denied the suggestion that he is manipulating the story of meeting the accused along with his daughter in gali No. 3 with him in order to save the accused.
FINDINGS:
30. I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Counsel for the accused. I have also gone through the testimonies of the various witnesses examined by the prosecution and the written synopsis/ memorandum of arguments filed on behalf of the accused.
31. Firstly in so far as the identity of the accused is concerned, State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 35 there is no dispute because the accused Pankaj Kumar is the father of the victim child and the husband of the complainant Smt. Renu.
32. Secondly it is an admitted case that the complainant in the present case is the mother of the victim namely Smt. Renu who is the estranged wife of the accused and had been residing separately at the time of the incident.
33. Thirdly the child victim at the time of the incident was stated to be hardly two and a half years of age and has not been cited as witness nor examined as such in the court keeping in view her tender age. Also, no statement of the child victim has been recorded under Section 164 Code of Criminal Procedure. This in my view will not be fatal to the case of the prosecution. The child was hardly two and a half years of age at the time of the incident and to put a child of this age in further trauma of examination and cross examination in the court is not required once there is other corroborative evidence to bring home the guilt of the accused.
34. Fourthly the oral testimony of Smt. Renu the mother of the child who has been examined as PW1 shows that she and the accused were having some matrimonial disputes and on the date of the incident, she was residing with her uncle at Majlis Park as she had gone to her matrimonial house to attend the marriage of her brother.
According to the complainant, on 14.7.2005 at about 6:00 pm the accused had come to the house of her uncle on the pretext of meeting State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 36 the children and forcibly took away the child victim 'T' (name of the child victim is withheld since this is a case under Section 376 Indian Penal Case) who at that time was aged about two and a half years and when the accused had returned at about 9:00 pm he left the child victim at the door and ran away. According to the complainant, she found her daughter crying and she took her inside and saw that she was bleeding from private parts. She immediately took her to a private doctor at Majlis Park along with her uncle's daughterinlaw namely Vineeta and it was the doctor who after examining the child advised to contact the police and lodge a complaint on which she got the complaint Ex.PW1/A registered. In her crossexamination she has admitted that she has no contact with the accused as on date nor she has ever gone to his parent's house after 2003. She has specifically denied the suggestion that she has fabricated the case only to malign him. According to her, it was the accused and his friend Kaushal Kumar who had left her daughter at the door by throwing her there while she (victim) was vomiting and thereafter they did not stop. She has further deposed that it was around 9:00 pm when she picked up her daughter that she realized that the child was bleeding from her private parts and her daughter had told her that she was having pain after which she took her to local doctor who after examining the child told her that some incident/ harkat had been done with the child. The testimony of Smt. State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 37 Renu (PW1) finds due corroboration from the testimony of Smt. Vineeta (PW4) who is the Bhabhi of the complainant Renu who has also similarly deposed that on the date of incident the accused had taken the child victim aged about two and half years from their house and left her at about 9:00 pm when her mother (Smt. Renu) saw that she (the child victim) was bleeding on which both of them i.e. Smt. Renu and Smt. Vineeta took her to private doctor who told them at it was a police case since rape had been committed upon the child and it was thereafter that her fatherinlaw took the child to some hospital. This witness Vineeta (PW4) has supported and corroborated the testimony of Renu (PW1) on the aspect of the child being taken away by the accused and thereafter being left on the door of the house when the child was found to be bleeding from her private parts and her garments were soaked with blood. There is no reason to doubt the version given by Vineeta, whose presence at the house is natural being the daughterinlaw of the Uncle of the complainant.
35. Fifthly the MLC of the victim child which has been duly proved by Dr. Sanjay Singh (PW3) as Ex.PW3/A shows that at the time when the child was taken to the hospital by Ct. Rajini Sharma to BJRM Hospital accompanied by her mother, there was a history of vomiting for about five to six times. There was no soft injury marks seen on the breast and thighs but abrasion mark was seen over the State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 38 vulva, minimum bleeding present from vulva and separation of labia. Hymen was intact. Slides were made from the secretion over the vulva. The history as given by the mother clearly shows the alleged sexual assault by the father between 6:00 pm to 9:00 pm. Dr. Shyam Singh (PW3) has already indicated in the crossexamination that the aforesaid injury could be possible by a foreign body i.e. finger. The defence of the accused that the injury could be possible by a fall or the nail is without any basis. In case of nail or other foreign object of similar kind, the nature of injury would not have been an abrasion with bleeding from vulva and separation of labia. Rather, it would have been sharp, which is not the case. It is writ large from the medical report that the private parts of the child were fingered with force thereby resulting into bleeding from vulva and separation of labia and the child being in the possession of the accused who else could have done it. This proves the version of the prosecution that sexual assault had happened with the child.
36. Sixthly the testimony of the complainant also finds due corroboration from the testimony of PW9 Rattan Lal the father of the complainant has similarly stated that the child had been taken by the accused on the date of incident and at about 9:00 pm the accused left the child at the door on which the baby fell down. According to him, the child was taken inside by her mother who found that the child was bleeding from her private parts on which Renu along with her State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 39 Bhabhi Vineeta took the child to the doctor who opined that "Galat Kaam" was done with the child. Dr. Shyam Singh (PW3) has proved that abrasion mark was seen over the vulva, minimum bleeding present from vulva and separation of labia. In his crossexamination Dr. Shyam Singh has stated that the abrasion mark as mentioned in the MLC could be possible by foreign body viz finger etc. The case of the accused is that the complainant has falsely implicated him because of the matrimonial dispute whereas her daughter received the injury while playing with the children on account of nail scratches. The medical evidence is not compatible with such a suggestion put by the accused rather he has also made a suggestion that the complainant Renu had herself inflicted injury on the private parts of the child victim in connivance with the doctor only to harm and damage his reputation because she wanted to remarry. For a moment this court was compelled to think if this could be possible but then having regard to the fact that in Indian context no mother worth the name would use her two and a half years old daughter as an instrument and expose her to such a risk and danger only to seek revenge from her husband, damage his reputation and to secure a divorce for herself is impossible. To say that it is the complainant who is the mother of the victim could have deliberately committed the act of scratching her private parts with her nails only to create a ground to fix her estranged husband is absurd. The matrimonial State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 40 dispute between the complainant Smt. Renu and the accused is pending since the year 2003. Had the complainant wanted to get rid of the accused she could have done so by resorting legal means but under no circumstances will she jeopardize the life and future of a baby child. Even otherwise, the medical evidence on record as proved by PW3, proves the sexual assault upon the child which could have been by a foreign body i.e. finger etc. and not by fall on a nail or by scratching as pleaded by the accused.
37. Seventhly the evidence on record is not suggesting that the accused had committed or even attempted to commit the rape upon the child victim (FSL report is not conclusive) but it has been certainly proved that there was some kind of sexual assault on the child 'M' which act however cannot be brought within the ambit of Section 375 Indian Penal Code or even attempt thereof.
38. Lastly the accused in his defence has examined his friend Kaushal Kumar who has deposed that he was also present at the time of incident when they had taken the child away. I may observe that DW1 Kaushal Kumar is a very good friend of the accused. The complainant Smt. Renu (PW1) has also admitted that Kaulshal Kumar had come along with the accused but according to her both of them had thrown her daughter at the door and run away. This shows that it is an admitted case of the accused that he had taken the child away from the possession of the complainant who is his estranged State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 41 wife and left the child at the house of the complainant at about 9:00 pm. The only dispute now is to what transpired thereafter. According to the complainant, she and her sister in law namely Vineeta took the child to a private doctor when the child was found bleeding when she was left at the house and thereafter her father Rattan Lal took the child to the hospital. This MLC of the child corroborates this version showing that there was abrasion mark over the vulva, minimum bleeding present from vulva and separation of labia. Though there is no eye witness to the incident yet it has been proved by the prosecution that the accused who is the father of the child victim had taken her with him and thrown her at the door of the complainant, she was immediately picked up by the complainant who found her to be bleeding and there is no reason to doubt her version.
39. The accused has also examined one Radhey Shyam in his defence, whose testimony on the face of it is nottrustworthy. He was the person who was instrumental in getting the marriage of the accused and the complainant solemnized but it is evident from his testimony that he is unable to provide the details thereof and is not even aware of the matrimonial problems of the accused and the complainant. Further, no explanation is forthcoming as to why Radhey Shyam did not inform the senior officers of the police regarding the false implication of the accused or make any complaint State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 42 in writing to any competent authority. His testimony before the court is in the nature of coverup and an after thought to help the accused and to save him from penal consequences and cannot be relied upon. FINAL FINDINGS:
40. The provisions of Section 375 Indian Penal Code provides the Definition of Rape as under:
"375 Rape: 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 whom she is interested in fear of death or 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 who 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 of 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.
State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 43 Sixthly: With or without her consent, when she is 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.
Any attempt to commit the act as aforesaid is also an offence.
41. Applying the settled principles of law to the facts of the present case, it is evident from the record that the identity of the accused stands established who is the father of the child victim and husband of the complainant Smt. Renu. It is also evident that the accused Pankaj Kumar and the complainant Smt. Renu are having matrimonial disputes and on the date of incident the complainant had gone to the house of her uncle (Tau) along with her children including the child victim. It stands established that on 14.5.2007 the accused came to the house of the complainant and took away the child victim namely 'T' aged two and a half years with him and the uncle of the complainant naturally would not object to it, the accused being the father. It has also been established that at about 9:00 pm the accused left the child at the door of the complainant and the child was found crying on which the complainant took her inside and State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 44 found that she was bleeding from her private parts. It also stands established that the child was thereafter taken to a private doctor who informed the complainant that sexual intercourse had been committed with her daughter. However, the medical record of the child does not support this conclusion of rape but it certainly proves a sexual assault upon her. The child was examined on the same day and abrasion mark over the vulva, minimum bleeding present from vulva and separation of labia was found to be present. The medical record of the child is indicative of a sexual assault which however is not covered in the category of rape or attempt thereof.
42. Therefore, in view of the aforesaid, I hereby hold that the medical evidence does not satisfy the basic ingredients of the provisions of Section 375 Indian Penal Code or even attempt thereof but it certainly stands established that the accused before this court namely Pankaj Kumar had assaulted the child by using criminal force with the intention of outraging her modesty, for which I hold the accused Pankaj Kumar guilty of the offence under Section 354 Indian Penal Code (not under Section 376 (2) (f) read with Section 511 Indian Penal Code) and convict him accordingly.
43. Case be listed for arguments on sentence on 1.4.2011.
Announced in the open court (Dr. KAMINI LAU)
Dated: 26.3.2011 ASJ (NW)II: ROHINI
State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 45
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI.
Sessions Case No. 908/2008
Unique Case ID: 02404R0482292007
State Vs. Pankaj Kumar
S/o Lal Chand
R/o House No. 5, Gali Hanuman
Mandir Wali, Kewal Park,
Azad Pur, Delhi.
FIR No.: 268/2007
Under Section: 376 (2) (f) Indian penal Code.
Police Station: Adarsh Nagar
Date of Conviction: 26.3.2011
Arguments heard on: 1.4.2011
Date of Sentence: 8.4.2011
APPEARANCE:
Present: Sh. Taufiq Ahmed, Additional Public Prosecutor for the
State.
Convict in Judicial Custody with Sh. Kundan Kumar Advocate.
ORDER ON SENTENCE:
1. Child sexual abuse are dark realities in Indian society like in any other nation. 53 per cent of our children are sexually abused, according to a statistic from a survey done by the Government of India.
A 1985 study by the Tata Institute of Social Sciences reveals that one out of three girls and one out of 10 boys had been sexually abused as a child. 50% of child sexual abuse happens at home. In 1996, Samvada, a Bangalore based NGO, conducted a study among 348 girls. 15% State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 46 were used for masturbation mostly by male relatives when they were less than 10 years old. 75% of the abusers were adult family members. A report from RAHI, (Recovering and Healing from Incest), a Delhi based NGO working with child sexual abuse titled Voices from the Silent Zone suggests that nearly three-quarters of upper and middle class Indian girls are abused by a family member - often by an uncle, a cousin or an elder brother. (Rel. on material from Internet)
2. In the present case vide my detailed judgment dated 26.3.2011, the accused Pankaj Kumar has been held guilty of the offence under Section 354 Indian Penal Code and convicted him accordingly for sexually abusing his two and a half years old daughter.
3. As per the allegations the accused Pankaj Kumar and his wife Smt. Renu are having a matrimonial dispute with each other and at the time of incident the complainant Smt. Renu had gone to the house of her uncle (Tau) along with her children including the child victim who was aged about two and a half years. On 14.5.2007 the accused came to the house of the complainant and took away the child with him and the uncle of the complainant did not object to it, the accused being the father of the child. At about 9:00 pm the accused left the child at the door of the complainant when the child was found crying on which the complainant took her inside and found that the child was bleeding from her private parts. The child was thereafter taken to a private doctor who inform the complainant that sexual intercourse had been committed with the child. However, the medical evidence on record does not support the conclusion of rape but it certainly proves a sexual assault upon her. The accused has, therefore, been acquitted for the charges under Section 376 (2) (f) Indian Penal Code but held guilty of the offence under Section 354 Indian Penal Code and accordingly State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 47 convicted.
4. I have heard the arguments on the point of sentence. Ld. Counsel appearing on behalf of the convict has vehemently argued that the convict is aged about 34 years having a family comprising of aged parents. According to the Ld. Counsel, the convict is 11th class pass and is having a general store. It is submitted that the convict is a first time offender and has no other criminal cases against him except a matrimonial dispute under Section 125 Code of Criminal Procedure which is pending in the court of Ms. Shail Jain, Rohini Courts, Delhi. He has argued that the convict has already remained in judicial custody for about two months. It is submitted that the convict is the only son of his parents and is the sole bread earner of his family. He requests that a lenient view be taken against the convict.
5. Ld. Addl. Public Prosecutor on the other hand has prayed for a strict punishment submitting that the convict Pankaj Kumar is the father of the prosecutrix 'T' who has committed "intrafamilial child sexual abuse" upon the prosecutrix/ child victim.
6. I have considered the rival contentions. I may mention that any sexual contact between a child and a trusted individual that damages the child, whether covert or overt, whether flirtation or sexual intercourse, needs to be dealt with assertively. It scars virtually all facets of the victim's life, since she is left with little or no self-esteem. At least one out of five boys and one out of four girls will be abused before they reach the age of 18. The child's emotional growth will gets stifled at the age of the first attack, and the victims in most cases do not even recover for very long time.
7. Coming now to the aspect of quantum of sentence, the Delhi High Court in the case of Khem Chand Vs. State of Delhi reported in State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 48 2008 (IV) JCC 2497 enumerated the principle factors to be taken into account by the courts while assessing as to what could be the appropriate sentence in a given case. Some of the factors enumerated are (i) Criminal and Crime, (ii) Manner of Commission of offence, (iii) Violence involved, (iv) Whether the offender or accused was in a position of fiduciary, trust or exploited a social or family relationship,
(v) State of victim, impact of crime on the victim.
8. The Hon'ble Supreme Court while considering the question of quantum of sentence in the case of State of Rajasthan Vs. Gajender Singh reported in 2008 (III) JCC 2061 observed as under:
"... the law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property for the people is an essential functions of the state. It could be achieved through the instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet these challenges. The contagion of lawlessness would undermine social order and lay it in ruins...."
9. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the rime and responding to the society's cry for justice against the criminal. (Ref. Rajiv Vs. State of Rajasthan reported in 1996 (II) SCC 175). State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 49
10. Further in the case of Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463 it has been held by the Hon'ble Supreme Court that:
"......Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc...."
11. Hence in the words of Mr. Justice A. Pasayat as held in the case of Siddarama and Ors. Vs. State of Karnataka it is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be.
12. I may observe that the existing laws in India are highly inadequate in dealing with cases relating to child sexual abuse by close relatives particularly where father is the perpetrator of this brutality. The basis for the law relating to incest in various countries have their roots in the dominant religious beliefs existing in the society. The Indian society looks upon child sexual abuse with horror on account of strong religious and social sentiments. There has been a long standing demand for a separate legislation in this regard but it appears that this State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 50 issue has been on the least priority in the political agenda. The existing laws are highly inadequate in dealing with the aspects relating to consent and age of the victim in cases of intrafamilial child sexual abuse.
13. Cases pertaining to child abuse have increased in recent years, most of the offenders being previously known to the victim or enjoying some kind of a fiduciary, family or trust relationship which they betray. It is for the Courts to meet these challenges by moulding the sentencing system to ensure that public confidence in the efficacy of law is not undermined.
14. The present case is a glaring example of the growing menace of sexual abuse of children. Sexual abuse of a child of hardly two years is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is a small female child and the abuser her own father over whom the family has repose faith. The child victim has been subjected to unwanted physical contact by a perverted father. The convict has taken advantage of a helpless and defenceless child who was an easy and vulnerable prey. The immense physical pain and agony which the child has undergone when the offence was committed as evident from the MLC which reveals abrasion marks over the vulva and bleeding from vulva and separation of labia.
15. This being the background and there being no law or special legislation in India dealing with cases pertaining to child sexual abuse; therefore, maximum punishment is required to be given to the convict so prescribed under the existing statutory law. In this background considering the various aggravating facts and also the conduct of the convict Pankaj Kumar, I hereby award the following sentence to the State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 51 convict:
(i) The convict Pankaj Kumar is sentenced to Rigorous Imprisonment for a period of two years and fine to the tune of Rs.25,000/- for the offence under Section 354 Indian Penal Code. The entire amount of fine of Rs.
25,000/- if recovered, shall be paid to the child victim 'T' as compensation under Section 357 Code of Criminal Procedure. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of two months.
16. The convict is already in judicial custody. He is sent to custody for serving the remaining sentence. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period undergone by him during the trial, as per rules.
17. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
18. Copy of the judgment and order on sentence be given to the convicts free of costs and another be attached along with his jail warrants.
19. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 8.4.2011 ASJ-II(NW)/ ROHINI State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 52 State Vs. Pankaj Kumar, FIR No. 268/2007, PS Adarsh Nagar Page 53