Delhi District Court
State vs . Rohit Balhara on 27 May, 2019
IN THE COURT OF MS. NEHA PRIYA, MM04, SOUTH DISTRICT,
SAKET COURT, NEW DELHI
STATE VS. Rohit Balhara
FIR NO: 108/12 Digitally
P. S Neb Sarai signed by
NEHA
U/s 377 IPC NEHA PRIYA
Crc No. 2032555/16
PRIYA Date:
2019.05.30
15:35:01
JUDGMENT +0530
Sl. No. of the case : 772/2 (18.05.2018)
Date of its institution : 25.05.2012
Name of the complainant : Smt. Sushila
W/o Sh. Ramu
R/o H. No. 14, Neb Sarai,
New Delhi.
Date of Commission of offence : 09.04.2012
Name of the accused : Rohit Balhara
S/o Sh. Satyawan
R/o H. No. 113 near Balhara
Chaupal, Neb Sarai Village,
New Delhi
Offence complained of : 377 IPC
Plea of accused : Not Guilty
Case reserved for orders : 09.05.2019
Final Order : Convicted
Date of orders : 27.05.2019
State v. Rohit Balhara Case No. 2032555/16 1/11
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1.The present case is prosecuted by the State against the accused for having committed an offence punishable U/s 377 IPC.
2. Briefly stated, the allegation against the accused is that on 09.04.2012, accused had lured son of complainant Sushila (aged 8 years) with Rs.10/ to accompany him to the jungle of Neb Sarai Village, East Side and there committed carnal intercourse with him. After 2 days of the incident, victim narrated the incident to his mother who then filed a complaint at PS Neb Sarai on which, FIR u/s 377 IPC got registered against the accused.
3. After completing the formalities, investigation was carried out by PS Neb Sarai and a charge sheet was filed against the accused. Charge was framed against accused u/s 377 IPC, to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, prosecution examined twelve witnesses. PW 1/complainant deposed that she was residing at the house of her landlord Bhai Chand and used to work as maid. On 12.04.2012, her son namely Pradeep informed her that the accused, who was her neighbour, took her son in the forest area by offering Rs.10/ and did carnal intercourse with him. She reported the matter to the police and police recorded her statement Ex.PW1/A. Medical examination of her son was conducted at SJ Hospital. She identified the accused in the court. She was cross examined on behalf of the accused.
5. PW2 victim P (name withheld) deposed that on 09.04.2012, he was playing outside his house. The accused came and offered Rs.10/ to him and asked him to come in the forest area. He went with the accused and the accused removed the pant of the victim and also his pant and inserted his penis in his anus. After 23 days, he narrated the incident to his mother and his mother called the police and police came and got him medically examined. He was cross examined on State v. Rohit Balhara Case No. 2032555/16 2/11 behalf of the accused and reexamined by Ld. APP for the State. During re examination he identified the accused in court.
6. PW3 HC Krishan Pal deposed that on 12.04.2012 he was posted at PS Neb Sarai and on that day, he alongwith IO ASI Sumer Singh and Ct. Manish went to H. No. 634, Neb Sarai where they met complainant Sushila and her son. IO prepared the site plan at the instance of victim. Thereafter, they went to the house of the accused and the accused was arrested at the instance of the victim vide arrest memo Ex.PW1/B and his personal search was conducted vide memo Ex.PW3/A. Medical examination of the accused was got conducted and he was put in lockup. Thereafter, IO recorded his statement. He was cross examined on behalf of the accused.
7. PW4 Ct. Manish deposed on the same lines as deposed by PW3 with regard to the investigation carried out by the IO. He was cross examined on behalf of the accused.
8. PW5 HC Nawal Singh deposed that on 11.04.2012 he was posted as Duty Officer at PS Neb Sarai. He proved the FIR i.e. Ex.PW5/A and endorsement on the rukka i.e. Ex.PW5/B. He was not cross examined on behalf of the accused despite opportunity.
9. PW6 Dr. Manjul Bijarnia proved the MLC prepared by Dr. Munish Sharma Ex.PW6/A. He was cross examined on behalf of the accused.
10.PW7 Inspector P.N. Verma deposed that on 19.04.2012 he was posted at PS Neb Sarai and investigation of this case was marked to him. On 23.04.2012, he had sent the seized exhibits to FSL Rohini through HC Ran Singh which returned from FSL with the remark that only three are relevant. On 04.05.2012, he again sent three exhibits to FSL, Rohini. On16.05.2012, he prepared the charge sheet and filed the same before the court.He was cross examined on behalf of the accused.
State v. Rohit Balhara Case No. 2032555/16 3/11
11.PW8 Ms. Shashi Bala Pahuja deposed that on 04.05.2012, three forensic parcels were received in the office of FSL and the same were assigned to her for examination. She opened the parcels and examined the exhibits and prepared her detailed report i.e. Ex.PW8/A. She was cross examined on behalf of the accused.
12. PW9 Retired ASI Sumer Singh deposed that in the year 2012 he was posted at PS Neb Sarai and on 11.04.2012 he received PCR call regarding "ched khani". He alongwith Ct. Jitender reached at Gate no.4, IGNOU where they met complainant Sushila and her son who made a written complaint Ex.PW1/A. Medical examination of the victim was got conducted. Exhibits were collected. Rukka was prepared vide Ex.PW9/A and FIR was got registered. Exhibits were seized vide seizure memo Ex.PW9/B & Ex.PW9/C. Site plan was prepared vide Ex.PW9/D. He further deposed that the accused was arrested and his personal search was conducted vide memos Ex.PW1/B & Ex.PW3/A. Statement u/s 164 Cr.P.C of the victim was recorded before the Ld. MM. He was cross examined on behalf of the accused.
13.PW10 ASI Ran Singh deposed that on 04.05.2012 he was posted at PS Neb Sarai and on that day, he collected the exhibits from MHC(M) HC Babu Lal vide RC No.68/21/12 and deposited the same in FSL Rohini vide receipt no.FSL 2012/DNA/2993 and he handed over the receipt to HC Babu Lal. He was not cross examined on behalf of the accused despite opportunity.
14. PW11 ASI Babu Lal deposed that on 11.04.2012 he was posted at PS Neb Sarai and on that day, Ct. Jitender deposited the case properties (i.e. four sealed pulandas and one sample seal) in the malkhana vide entry no.608. On 12.04.2012, Ct. Subhash deposited the case properties (i.e. four sealed pulandas and one sample seal) in the malkhana belonging to the accused vide entry no.609. He further deposed that on 04.05.2012, he handed over three State v. Rohit Balhara Case No. 2032555/16 4/11 pulanda to Ct. Ran Singh vide RC No.68/21/12. He further proved the copy of RC as Ex.PW11/C. He was not cross examined on behalf of the accused despite opportunity.
15.PW12 Ct. Subhash deposed that on 12.04.2012 he was posted at PS Neb Sarai and on that day, he went to H. No.113, Neb Sarai village, New Delhi where he met you, ASI Sumer, Ct. Krishan and Ct. Manish. He and Ct. Krishan took the accused to AIIMS hospital for medical examination. The doctor handed over 4 pulandas i.e. underwear, blood in gauze, control swab and penis swab and one sample seal to him. He handed over all the pulandas to the IO. ASI Sumer Singh seized the said pulandas vide seizure memo Ex.PW9/C. He was cross examined on behalf of the accused.
16. Accused had admitted the genuineness of DD No.21 A dated 11.04.2012 (Ex.A1), potency test vide MLC No.58 dated 12.04.2012 (Ex.A2) and statement u/s 164 Cr.P.C of the victim (Ex.A3) u/s 294 Cr.P.C and as such the formal proof of these documents by calling their authors was dispensed with.
17. After closure of prosecution evidence, the statement of accused U/s 313 of Cr.P.C was recorded. All the incriminating circumstances were put to the accused. The accused denied all the allegations against him and took a defence that he has been falsely implicated in the present case as there was some money and property dispute with the mother of the victim. He did not choose to lead evidence in his defence.
18. Final arguments were addressed by the Ld. APP for the State as well as the Ld. Defence Counsel. Ld. APP argued that the testimonies of PW1 & PW2, who clearly narrated the date and manner of incident and identified the accused in court as well as the medical reports prove the guilt of accused beyond reasonable doubt. Per contra, ld. Counsel for accused argued that the delay in State v. Rohit Balhara Case No. 2032555/16 5/11 filing FIR, the omission of name of the accused in the initial complaint Ex.PW1/A and the absence of semen in the medical examination of the victim, disprove his guilt and indicates that he has been falsely implicated in this case.
19. The case of the prosecution is that the accused committed carnal intercourse with the victim against the order of nature and thereby committed an offence u/s 377 IPC. As per Section 377 IPC:
"377. Unnatural offences Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section".
20. The most important witness for the prosecution in the present case is PW2 who is also the victim and the only eye witness. In his deposition, he has clearly stated that on the day of the incident, the accused offered him Rs.10/ and took him to the forest area, where the accused removed his pant and also removed his own pant and inserted his penis in the victim's anus. He also identified the accused in the court. Being a victim, PW2 has no reason to falsely implicate the accused (in the absence of any previous enmity) and at the same time does not have any reason to shield the actual accused who had committed such a heinous crime on him.
21. Although during crossexamination, at one point, PW2 states that the name of the accused Rohit had been suggested to him and he was asked to take his name when he had been taken to give the statement before the Magistrate, State v. Rohit Balhara Case No. 2032555/16 6/11 reading the crossexamination in toto, it appears that the witness was merely trying to say that he had been asked to name the accused who had committed the crime (and not specifically falsely name Rohit as opposed to any other actual culprit) as later on, in his crossexamination he denies the suggestion that the accused Rohit Balhara is not involved in the said crime. Further during re examination, the witness clearly identified accused Rohit Balhara in court by stating that he had committed carnal intercourse on him, and that he was identifying the accused in court on his own because the accused had committed carnal intercourse and was not doing so at the instance of any person or police. In the statement u/s 164 Cr.P.C recorded before the Magistrate (Ex.A3) as well, PW2 had reiterated that accused Rohit had committed carnal intercourse with him on the date of the incident.
22. The testimony of PW2 is duly corroborated by his mother PW1 to whom the victim PW2 had narrated the incident two days after it took place. Ld. Counsel for the accused contended that the case against accused is false as in the original complaint filed by PW1 i.e. Ex.PW1/A, PW1 had not specified the name of the accused despite him being known to her for a long time and it was later by way of improvement and as an afterthought that his name was included during the deposition in court. The court is not in agreement with the aforesaid contention of the Ld. Counsel. During crossexamination, PW1 has sufficiently explained the omission of name of the accused from the complaint. She states that she did not specify the name as the police had asked her only to write down the name of the accused after the identification of the accused had been done by the victim. However, since she had submitted the complaint before the identification, she could not include the name in the complaint but had verbally mentioned the same to the police. Further a perusal of the case diary reveals that it was at the instance of the victim and the complainant that the accused State v. Rohit Balhara Case No. 2032555/16 7/11 had been arrested. In Section 164 Cr.P.C statement, the name of the accused had been duly revealed by the victim and the accused had also been identified in court by both PW1 & PW2. Thus, mere omission of the name of the accused in Ex.PW1/A is of little or no significance.
23. It was also contended by the ld. Counsel for the accused that there is a delay in filing the FIR, due to which the prosecution story comes into question. It is trite that in our society, there are many crimes that go unreported, especially those of a sexual nature, as the victims are too scared/ashamed to speak up. There are questions concerning the reputation and honour of the family which play in the mind of the victim besides the mental agony being suffered by the victim. In these circumstances, considering the nature of the crime, the age of the victim and the mental trauma that he must have suffered on account of the same, a mere delay of 23 days is inconsequential in the facts of the present case and does not cause any damage to the prosecution case. Guidance in this regard is sought from the case of Mukhtayar Ahmed v. State of UP.1
24. The testimonies of PW1 & PW2 are also duly corroborated by the medical evidence. In the medical report of the victim Ex.PW6/A, it is opined that "insertion of tip of little finger into anal canal is painful". It has also been opined after anal examination of the victim that "insertion of penis or penis like object cannot be ruled out". The medical examination of the accused vide Ex.A2 also reveals that he was capable of performing intercourse under normal circumstances.
25. Ld. Counsel for the accused argued that no semen was detected in the medical examination as per MLC Ex.PW6/A which is also supported by the testimony of PW8 and Ex.1 & Ex.2. However, it is noteworthy that the medical examination of the victim had been done two days after the incident which fairly explains the 1 Judgment dated 30.05.2018 of the Hon'ble High Court of Judicature at Allahabad in Crl. Appeal No. 5633/09.
State v. Rohit Balhara Case No. 2032555/16 8/11 absence of semen on the body of the victim. It is not the defence of the accused that no carnal intercourse ever took place with PW2 as neither any suggestion to that effect had been put during crossexamination of PW2 nor was any such averment made in the statement of the accused recorded u/s 313 Cr.P.C. PW2 has categorically deposed to the act of carnal intercourse having taken place and the medical report has also opined on the same lines. As per the explanation to Section 377 IPC, penetration is sufficient to constitute the carnal intercourse necessary to the offence u/s 377 IPC. Thus, penetration having been proved, mere absence of semen is of no significance in the present case.
26. All other prosecution witnesses were official witnesses who deposed in support of the prosecution story.
27. Under Section 313 Cr.P.C statement, although the accused stated that he was falsely implicated in the present case on account of some money and property dispute with the mother of the victim, it was a bald avernment and no evidence was led to this effect by the accused. No plea of alibi, which could have been the best defence for the accused in the given circumstances, was raised or proved.
28. The position of law regarding the evidentiary value of testimony of a child witness has been laid down by the Hon'ble Supreme Court in the case of Rameshwar v. State of Rajasthan2 wherein it is held that:
"In my opinion, the true rule is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the judge. In a jury case he must tell the jury of it and in a nonjury case he must show that it is present to this mind by indicating that in his judgment. But he should also point out that corroboration can be dispensed with if, in the particular circumstances of the case before him, either the jury, or, when 2 AIR 1952 SC 54 State v. Rohit Balhara Case No. 2032555/16 9/11 there is no jury, he himself, is satisfied that it is safe to do so. The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, an in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand".
29. The aforesaid position of law has also been reiterated in the case of Surya Narayan v. State of Karnataka3. In the present case, the testimony of PW2 was found to be credible and reliable. Also, it is not his sole testimony which is being relied upon in the present case. The statement of PW2 has been duly corroborated by his statement u/s 164 Cr.P.C., deposition of PW1, testimony of official witnesses as well as the medical evidence on record which go on to establish that carnal intercourse had been committed against the order of nature with the victim by accused Rohit Balhara. In view of the above, the guilt of the accused stands established beyond reasonable doubt. The ingredients of Section 377 IPC are satisfied.
30. Accordingly, accused Rohit Balhara is convicted for the offence u/s 377 IPC. Let 3 Judgment dated 03.01.2000 of the Hon'ble Supreme Court of India in Crl. Appeal No. 522/99.
State v. Rohit Balhara Case No. 2032555/16 10/11 he be heard separately on the point of quantum of sentence.
Announced in the open court (Neha Priya)
on 27.05.2019 Metropolitan Magistrate04,
South, New Delhi
It is certified that this judgment contains 11 pages and each page bears my signatures.
(Neha Priya)
Metropolitan Magistrate04,
South, New Delhi/27.05.2019
State v. Rohit Balhara Case No. 2032555/16 11/11
Case No. 2032555/16
FIR No. 108/12
State Vs. Rohit Balhara
PS Neb Sarai
30.05.2019
Present: Sh. Arun K.V., Ld. APP for the State.
Convict alongwith Ld. Counsel.
Arguments on sentence heard.
1. It is argued by Ld. Counsel for convict that convict is aged 26 years, is first time offender and belongs to a respectable family. He has already served 58 days in custody. Thus, a lenient view be taken.
2. On the other hand, Ld. APP for the State has submitted that the convict be awarded maximum sentence in this case keeping in view that the victim was 8 years of age at the time of the offence, in order to send a strong message to the society.
3. In Jameel Vs. State of Uttar Pradesh (2010) 12 SCC 532, the Hon'ble Supreme Court reiterated the well established principle of criminal jurisprudence that punishment must be appropriate and proportional to the gravity of the offence committed. The Hon'ble Supreme Court observed as follows:
"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
16. It is the duty of every court to award proper sentence having State v. Rohit Balhara Case No. 2032555/16 12/11 regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."
4. Further, it has been directed time and again by Hon'ble Supreme Court of India that adequate compensation be awarded to the victim so as to recompense him for the injuries suffered by him as well as to instill confidence in him with regard to the functioning of criminal justice system.
5. In view of the aforesaid settled legal position, I have considered both the aggravating as well as the mitigating circumstances. The convict had sexually assaulted a young innocent boy who was only 8 years old at the time of the incident. The impact of the crime on the mental fabric of the victim is beyond imagination. Such act has not only an adverse impact on the mind and health of a child of tender years but society at large is affected by such horrific crimes. This dastardly act does not warrant any leniency to the convict. Rather, a deterrent punishment is necessary to reassure the victim and the society at large that the state will act with its full might and will have the retribution on behalf of the victim to satisfy their conscience and also to discourage such evil elements on society from repeating the conduct as was done by the convict in the present case. Accordingly, the convict is sentenced to undergo rigorous imprisonment for a period of 3 years for offence u/s 377 IPC. Further, the convict is directed to pay a compensation of Rs.50,000/ to victim within a period of 30 days from today and in default of payment of compensation, to undergo further simple imprisonment of 6 months.
6. In terms of Section 428 Cr.P.C, the period of detention already undergone by the convict i.e. 58 days be set off against the period of sentence.
7. Counsel for convict has moved an application for grant of bail u/s 389 Cr.P.C for suspension of sentence for the purpose of filing appeal in this case. Considering the same, convict is released on bail for a period of 30 days for the purpose of filing of State v. Rohit Balhara Case No. 2032555/16 13/11 appeal subject to furnishing personal bond in the sum of Rs. 20,000/ and one surety in the like amount. Bail bonds furnished, considered and accepted.
8. Copy of this order alongwith judgment be given dasti to the convict.
9. Notice be issued to the victim for payment of compensation on 01.07.2019.
(Neha Priya)
MM04/South, New Delhi/30.05.2019
State v. Rohit Balhara Case No. 2032555/16 14/11