Delhi District Court
Sc No. 112/06, Fir No. 375/04 1 State vs Manoj Etc. on 2 January, 2008
SC No. 112/06, FIR No. 375/04 1 State Vs Manoj etc.
IN THE COURT OF SH VINOD KUMAR
ADDL. SESSIONS JUDGE N. DELHI
Sessions Case No. 112/06
FIR No. 375/04
PS Mehrauli
U/S 376/506 IPC
State Vs 1. Manoj S/o Khema Ram
R/o C-336 Sanjay Colony, Bhati Mines,
2. Ramesh S/o Sh Mohar Singh,
R/o C 163 Sanjay Colony,
Bhati Mines,
Date of arguments - 19.12.07
Date of Judgment - 2.1.08.
JUDGMENT
1. Prosecution case in brief is that on 7.6.2004 at about 5.30 pm prosecutrix Santosh Kumari (PW1) and her younger sister Arbeli (PW5) were returning to their house from the zoo near Bhati mines after answering the call of nature. Accused persons intercepted them and took both of them to a nearby abandoned room where accused Manoj committed rape upon Santosh and accused attempted to commit rape upon Ms Arbeli. Both the girls returned to their house and SC No. 112/06, FIR No. 375/04 2 State Vs Manoj etc. narrated everything to their mother Smt Janki. Their father Bhagwan Dass ( PW6) was not at home. The accused persons lived in the neighbourhood of the prosecutrix. Bhagwan Dass, the father of prosecutrix had gone to Sukhdev Vihar to work as a labour with his son Naresh Kumar and returned to his house from work on 8.6.2004. Bhagwan Dass went to the police station and on his complaint EXPW6/A, the FIR was registered at 12.10 am on 9.6.2004. ASI Adesh Kumari (PW11) the Investigating Officer, took Santosh Kumari to hospital and got her medically examined vide MLC EXPW2/A on 9.6.2004 itself. However, since the prosecutrix was under menstrual cycle, the prosecutrix was again medically examined vide MLC EXPW2/B dt. 11.6.2004. The Investigating Officer recorded the statement of prosecutrix Arbeli and Smt Janki, their mother. The Investigating Officer took the clothes of the prosecutrix and converted the same in a sealed pulanda with the seal of AK. At the instance of prosecutrix, the site SC No. 112/06, FIR No. 375/04 3 State Vs Manoj etc. plan EXPW11/B was prepared on 9.6.2004 itself. The age of the prosecutrix was also got determined vide the x ray report EXPW3/A according to which her age was found to be between 14.9 year to 15.8 years. The Investigating Officer also collected the school certificate EXPW8/B, vide which the prosecutrix Ms Santosh was born on 1.6.1988. That means the prosecutrix was about 16 years of age on the date of offence. On 10.6.2004, both the accused persons were arrested and were got medically examined. The underwear and the blood gauze of accused Manoj were seized vide memo EXPW11/C.
2. On 12.6.2004, Investigating Officer moved an application for recording statement U/S 164 CrPC of the prosecutrix vide application EXPW11/D. The statement Ex.PW1/B of the proseuctrix was recorded by Sh Sudesh Kumar, Ld Metropolitan Magistrate. The FSL report EXPW11/G was collected. After completion of investigation, the charge sheet was filed. SC No. 112/06, FIR No. 375/04 4 State Vs Manoj etc.
3. On above accusation a charge U/S 376 IPC was framed against accused Manoj whereas a separate charge U/S 376/109/506 II IPC was framed against accused Ramesh . Both accused persons pleaded not guilty.
4. In order to prove its case prosecution examined eleven witnesses in all.
5. PW1 is Kumari Sanotsh, the prosecutrix. She has fully supported the prosecution version.
6. PW2 is Doctor Anupama Bahadur, Senior resident, AIIMS hospital. She has testified that on 9.6.2004, she medically examined Santosh Kumari. She testified that on local examination she found no injuries on the person of prosecutrix. She further testified that as the prosecutrix was under menstrual cycle, vaginal examination was not done. She further testified that on 11.6.04, Santosh Kumari was again brought for medical examination and on examination she found her hymen ruptured. She has proved her MLC dt. 9.6.04 and 11.6.04 as EXPW2/A&B. SC No. 112/06, FIR No. 375/04 5 State Vs Manoj etc.
7. PW3 is doctor Harsh Kandpal. He testified that he has examined X ray plate of Santosh Kumari and proved the report EXPW3/A.
8. PW4 is doctor Parthasarthi Pramani. He testified that on 10.6.04, he conducted medical examination of accused Manoj regarding potency test and has proved his report Expw4/A.
9. PW5 is Albeli, the another prosecutrix/eye witness. As she was minor, she was examined without oath. This witness also supported the prosecution case and corroborated the version of PW1 Santosh Kumari.
10. PW6 is Bhagwan Dass, the father of both the prosecutrix.
He has testified that on 7.6.04, he along with his son had gone to Sukhdev Vihar for work. He deposed that on next day (i.e. on 8.6.2004) when he came to his house, her wife told him the entire incident. He has testified that his wife told him that in the evening both accused took the daughters to in a room where accused Manoj committed SC No. 112/06, FIR No. 375/04 6 State Vs Manoj etc. rape upon Sanotsh and accused Ramesh apprehended Arbeli in a room and also threatened them not to disclose the incident. He further testified that he got the case registered and proved his statement EXPW6/A.
11. PW7 is lady constable Rajbala. She had taken Santosh Kumari to AIIMS for medical examination and got her medically examined. She testified that doctor handed over to her sealed pulanda which she further handed over to the Investigating officer.
12. PW8 is Dharmbir Singh, Head Master, MCD school Bhati Mines. He has proved the date of birth of Santosh Kumari as per school record as 1.6.88. Photocopy of admission register is EXPW8/A and school certificate as Expw8/B.
13. PW9 is ASI Omparkash, the Duty Officer. He has proved copy of FIR EXPW9/A.
14. PW10 is Sh Sudesh Kumar, Ld Metropolitan Magistrate. He testified that an application for recording statement U/S 164 CrPC of prosecutrix was marked to him and in pursuance SC No. 112/06, FIR No. 375/04 7 State Vs Manoj etc. of it, he recorded statement Ex.PW1/B of proseuctrix Santosh.
15. PW11 is ASI Adesh Kumari, the Investigating Officer. She has testified that on 8.6.04 she was called at the police station. At about 10.30 pm Bhagwan Dass reached the police station alongwith her minor daughter and she recorded statement of Bhagwan Dass EXPW6/A. She further testified that on his statement she got the case registered. She further testified that she got Kumari Santosh medically examined and collected the MLC EXPW2/B. She further testified that she also prepared site plan Expw11/B and exhibits were deposited with MHCM. She also testified that on 10.6.04 both the accused persons were arrested vide memos Expw6/B&C. She has further testified she also got recorded statement of prosecutrix U/s 164 CrPC record and collected the birth record of Kumari Santosh from MCD school, Bhati Mines. She further testified that after completion of investigation, she filed the challan. SC No. 112/06, FIR No. 375/04 8 State Vs Manoj etc.
16. After recording of statement of witnesses, statement of accused persons U/S 313 CrPC were recorded in which both accused persons pleaded innocence. However, they did not prefer to lead evidence in defence.
17. Ld. Defence Counsel has assailed the testimony of Prosecutrix (PW1) and testimony of her sister (PW5). It is argued by Ld. Defence Counsel that both the accused persons live in the neighbourhood of these girls. The prosecutrix was having an affair with a boy. It is submitted that at the time of the incident, both the accused persons had seen the prosecutrix in compromising position with the said boy. In such circumstances, the accused persons rebuke her and slapped her. Ld. Defence Counsel argue that due to this fact the prosecutrix had falsely implicated the accused. Ld. Defence Counsels argue that there are lot of improvements in the testimonies of both these witnesses. Apart from this PW2 Dr. Anupama Bahadur, who medically examined, has testified that the vagina of the prosecutrix SC No. 112/06, FIR No. 375/04 9 State Vs Manoj etc. admitted two fingers. It is argued that this means that the prosecutrix was habitual to sexual intercourse and this supports the defence version that prosecutrix was having affairs with a boy. It is argued by Ld. Defence Counsels that in fact no rape upon the prosecutrix has taken place and that is why no semen on the underwear of the prosecutrix or her pubic hair could be detected. Ld. Defence Counsels argue that testimony of the prosecutrix which is not corroborated by medical evidence should be discarded.
18. I have considered the submissions of Ld. Defence Counsels. I am of the opinion that it is not necessary that the testimony of the prosecutrix must in all cases be supported by medical evidence. The testimony of the prosecutrix can be disbelieved only if medical evidence goes contrary to her version. It is argued by Ld. Defence Counsel that there is no injury on the person of the prosecutrix as per MLC. I am of the opinion that injuries on the person in inner and outer part of the vagina of the prosecutrix would only SC No. 112/06, FIR No. 375/04 10 State Vs Manoj etc. appear when there is resistance from the prosecutrix. It is pertinent to note that in the present case both the accused persons forcibly took the prosecutrix and her sister in a room and the prosecutrix appears to be totally helpless at that time. In her testimony PW1 Kumari Santosh has not testified anywhere that she tried to resist the rape. Her sister Albeli (PW5) who was only nine years of age at that time tried to raise noise but her mouth was gagged. In such circumstances it is not unnatural that the prosecutrix surrendered out of helplessness and did not resist. Therefore lack of injuries on the person of the prosecutrix is not unnatural. As per MLC Ex.PW2/B the hymen of the prosecutrix was found ruptured. Ld. Defence Counsel argues that the prosecutrix was habitual to sexual intercourse and in support of his submissions he has drawn my attention to the testimony of PW2 Dr. Anupama Bahadur, who in her cross examination, testifies that "I cannot give any conclusive opinion whether was habitual to sex SC No. 112/06, FIR No. 375/04 11 State Vs Manoj etc. because vagina admitted two fingers". This testimony does not show that the vagina of the prosecutrix admitted two fingers in fact it is only a suggestion by the accused to the doctor. Even if it is presumed that the prosecutrix was habitual to sex, still it does not rule out the rape by the accused upon the prosecutrix. The MLC Ex.PW2/B shows that vaginal smear was not taken because the patient was undergoing a menstruation cycle. The MLC Ex.PW2/A of the prosecutrix dated 9.6.204 also shows that she was having her periods. Ld. Defence Counsel has drawn my attention to the facts that the prosecutrix was having her periods on the date of incident and that is why red spots were found on the under garment. Ld. APP, on the other hand, has drawn my attention that there was a white spot on the clothes of the prosecutrix which appeared to be the semen of the accused. However Ld. Defence Counsel argues that as per the FSL report Ex.PW11/G, no semen was detected on the clothes of the prosecutrix.
SC No. 112/06, FIR No. 375/04 12 State Vs Manoj etc.
19. On considering the FSL report and the MLCs, I am of the opinion that it cannot be said that medical and scientific evidence on record is contrary to the version of prosecutrix. Of course, the same does not connect the accused with the crime but the same does not belie the version of the prosecutix and her sister. Therefore this court is left with the testimony of the prosecutix and her sister which if found reliable, the accused persons would be liable to be convicted.
20. The prosecutrix (PW1) has testified that on 7.6.2004 at about 5:30 pm she along with her younger sister Albeli was coming to their house after attending natural call. When they reached near the gate of zoo, both the accused persons were stood inside the gate of zoo. Accused Manoj gagged her mouth with a handkerchief and accused Ramesh gagged the mouth of her sister Albeli and took them in a vacant room near the gate of zoo. They took them inside the room and accused Manoj committed rape upon her. At that time SC No. 112/06, FIR No. 375/04 13 State Vs Manoj etc. accused Ramesh was also inside the room and he had caught hold of her sister. Accused Ramesh broke the string of SALWAR of Albeli and when Albeli tried to raise noise, she was gagged. Both the accused persons threatened them after showing knife and told them that if they do not come again at 1:00 pm next day, they would finish them. PW5 Albeli, who was only 10 years of age when she testified before this court has, has fully supported the prosecution version. She testified that at the time of rape her sister was screaming, therefore accused Manoj called accused Ramesh and asked him to hold her sister from her arm. Accused Ramesh gagged her (Albeli's) mouth with a handkerchief and pushed her in a corner of room. She testified that accused Ramesh caught hold of her SALWAR and tried to open the string and threatened her that if she raised any alarm, he would also rape her. This witness testified that when she object to it, accused Ramesh broke the string of her SALWAR. She further testified that in the meantime SC No. 112/06, FIR No. 375/04 14 State Vs Manoj etc. handkerchief on her mouth slightly slipped and she managed to scream. Accused Ramesh left her SALWAR and put his hand on her mouth. Ld. Defence Counsel argues that her testimony has been confronted with few portions of her statement under Section 161 CrPC. However I am of the opinion that neither any contradiction in their testimonies nor any important improvement in their statements. It is pertinent to note that whereas the police records the statements of the witnesses in brief, on the other hand the witness testifies in detail before the court because of the congenial atmosphere available to the witness in the court. Moreover during the investigation, the statement of the prosecutrix in a rape case is recorded shortly after the incident. At that time such witness is under a shock and trauma and therefore it is not for Investigating Officer to record the statement of the prosecutrix in detail. On the other hand the prosecutrix gives evidence in the court after considerable time and therefore some more details are SC No. 112/06, FIR No. 375/04 15 State Vs Manoj etc. testified by her.
21. Now this court is to see as to whether PW1 and PW2 are testifying truthfully or not. A careful perusal of the testimonies of prosecutrix and her sister, there is nothing on record to show that they should be disbelieved. Both the witnesses are truthful witnesses and there is no blemish in their testimonies. In statement under Section 313 CrPC both the accused persons admit that they were present in the zoo. They have stated that both the sisters were present there with their boy friends namely Chiman and Jitender, who are the relatives of these two girls. In cross examination PW1 has specifically denied the suggestion that there was any person by the name of Chiman in her family. In cross examination although the accused persons have put a suggestion that accused Manoj has slapped the prosecutrix when he saw her with the other boy and threatened her that he would inform her parents as to what he had seen, however it is nowhere suggested that the prosecutrix was SC No. 112/06, FIR No. 375/04 16 State Vs Manoj etc. present with the boys namely Chiman and Jitender. Further more there was no reason as to why the accused Manoj would slap the prosecutrix simply because he happened to work with the brother of the prosecutrix. In fact there is no material on record to show that accused persons were friends with the brother of the prosecutrix. In cross examination accused persons have put their case that accused Ramesh has been implicated in the case because there was a dispute between their families. However no evidence has been led by the accused to this effect. It is argued by Ld. Defence Counsels that both the girls were present there with their respective boy friends. Ld. Defence Counsels argue that the accused persons had caught these girls in compromising position with their boy friends. I disagree with Ld. Defence Counsels. The prosecutrix and her sister belong to a very orthodox and poor family. It is highly unlikely that both the real sisters or anyone of them would be found in compromising position with their boy SC No. 112/06, FIR No. 375/04 17 State Vs Manoj etc. friends together in presence of her real sister. It is also highly unlikely that accused would try to slap the prosecutrix when two boy friends are present there. There is no suggestion to the witnesses that her brother used to work with the accused persons or was a close friends. In fact prosecutrix has testified that although she knew the accused Ramesh from her childhood as he lives in their neighbourhood. However there is no quarrel between their families but they were also not visiting terms with the family of accused Ramesh. No evidence has been led by the accused persons to show that the brother of the prosecutrix was the friend of the accused persons. In these circumstances it is not plausible that the accused persons had any reason to object to the conduct of the prosecutrix if they were roaming with their boy friends or were found in compromising position with them. I am convinced that the defence pleas are patently false.
SC No. 112/06, FIR No. 375/04 18 State Vs Manoj etc.
22. There appears to be no family relations between the family of the prosecutrix and the accused persons, nor there any dispute between them. As discussed above, neither the accused persons had any reason to object the prosecutrix if she was present with their boy friends in zoo, nor there was any enmity, to falsely implicate the accused persons. It is pertinent to note that in cross examination of PW1 the prosecutrix, the accused persons have suggested that she was having affairs with one Suresh. However in cross examination to PW5 Albeli they have suggested that they were present with the boy namely Chiman. It is further pertinent to note that in cross examination it is being suggested that the prosecutrix and her sister were present with one boy whereas in statement under Section 313 CrPC they have stated that they were present with two boys namely Chiman and Jitender. In these circumstances the defence of the accused persons is unreliable and cannot be believed.
SC No. 112/06, FIR No. 375/04 19 State Vs Manoj etc.
23. In these circumstances, I do not find any reason as to why the testimony of prosecutrix and her sister Albeli should be disbelieved.
24. Ld. Defence Counsels have drawn my attention that there is delay of two days in registration of FIR. I am of the opinion that delay stands fully explained. PW6 Bhagwan Dass the father of the prosecutrix has testified that on 7.6.2004 at about 4:00 pm he and his son Naresh had gone to Sukh Vihar for work. On the next day (i.e. On 8.6.2004) they came back to their house at 12:30 pm. He testified that his wife told about this incident and therefore he went to the police station. Accused persons argue that there are other residential houses near the place and the prosecutrix could have told those residents. I am of the opinion that in circumstances prevailing in India, it is highly impractical to assume that victim of such an offence would be able to tell this fact to any other person. In the present case they narrated the entire incident to their mother which is a SC No. 112/06, FIR No. 375/04 20 State Vs Manoj etc. natural conduct. Ld. Defence Counsel have drawn my attention that PW6 Bhagwan Dass reached the police station along with his minor daughters late in the evening on 8.6.2004. I am of the opinion that PW6 the father of the prosecutrix must have under a great shock and would be under such a tremendous trauma out of fear of social stigma, that it would have taken sometime for him to take a decision that matter must be reported to the police. I am of the opinion that the delay in registration of FIR in the present case is not unnatural and does not affect the prosecution case.
25. Ld. Defence Counsels have drawn my attention to the testimony of PW6 Bhagwan Dass, the father of the prosecutrix, who has admitted in his cross examination that there is a small toilet in his house and that the said toilet is being used by the family his members. It is argued by Ld. Counsels that when the toilet is available in the house itself, there is not reason as to why the prosecutrix and her sister SC No. 112/06, FIR No. 375/04 21 State Vs Manoj etc. would go ease themselves in the open. On the other hand, Ld. APP submits that the testimonies of PW1 (the prosecutrix) and PW5 (Ms Albeli) should be considered in light of the poor civil amenities available in the area where she resides. I am of the opinion that it is not clear as to whether the said toilet was a dry toilet or was it a toilet with flush facility. As per the submissions of Ld. APP, the residence of the prosecutrix is an unauthorized constructions and therefore there is no chance that flush facility would be available there. I am of the opinion that PW6 has admitted that there is a small toilet in his house. However it appears from his testimony that the toilet facilities in the house are primarily available to his very old and blind mother. Therefore it is not unnatural that younger members of the family use the jungle area in and out of the zoo to answer the nature's call. Further in statement under Section 313 CrPC the accused persons have admitted that both the girls were present in the zoo. Therefore I do not find any reason SC No. 112/06, FIR No. 375/04 22 State Vs Manoj etc. to disbelieve the testimonies of PW1 and PW5 in this respect.
26. Lot of arguments have been addresses on the issue as to why there are not injuries on the person of the prosecutrix. In this regard it is necessary to understand the time and the place of the offence. The site plan Ex.PW11/B would show that the place where the offence took place is near the broken wall of the zoo. There is a dilapidated constructions/rooms shown at point A of this site plan. The area where the offence was committed is a lonely place where these two unfortunate girls had no hope that anyone would hear their screams. The prosecutrix was only 16 years of age and her sister was about 9 years of age on the said date. In such a situation utter helplessness, it is not unnatural that the prosecutrix simply surrendered herself. In such circumstances, looking for the injuries on the person of the prosecutrix would be travesty of justice. SC No. 112/06, FIR No. 375/04 23 State Vs Manoj etc.
27. In view of above discussions I am of the opinion that prosecution has proved its case beyond reasonable doubt. I convict the accused Manoj Kumar under Section 376 IPC. I also convict accused Ramesh under Section 376 read with Section 109 IPC. I am not inclined to convict accused under Section 506 IPC specifically because the same constitute a part of the circumstances forming the offence of rape and its abetment.
Announced in the open court on 2.1.2008.
(VINOD KUMAR) Additional Sessions Judge Patiala House Courts New Delhi SC No. 112/06, FIR No. 375/04 24 State Vs Manoj etc. IN THE COURT OF SH VINOD KUMAR ADDL. SESSIONS JUDGE N. DELHI Sessions Case No. 112/06 FIR No. 375/04 PS Mehrauli U/S 376/506 IPC State Vs 1. Manoj S/o Khema Ram R/o C-336 Sanjay Colony, Bhati Mines,
2. Ramesh S/o Sh Mohar Singh, R/o C 163 Sanjay Colony, Bhati Mines, ORDER ON SENTENCE 3.1.2008 Present: Ld. APP for the state.
Both convicts from J.C. with counsels Sh. Sudhir Batra, adv. and Sh. Arun Kumar Tewari, adv.
Arguments on sentence heard. Ld. Counsels argue that the convicts are of very young age and have no previous record. It is argued by Ld. Counsels that the convict Ramesh is a student and convict Manoj is a married person having two minor children. It is argued that the convicts should be released on the period which they have already undergone during trial.
I have considered all facts and circumstances of the case. Although convict Ramesh has only abetted the commission of rape. However it cannot be forgotten that he is fully responsible for this offence. In fact he even broke the string of the SALWAR SC No. 112/06, FIR No. 375/04 25 State Vs Manoj etc. worn by the sister of the prosecutrix. The offence is punishable to imprisonment for life. Section 109 IPC provides the same punishment to abetter which is available for the principle offender. However considering the fact that he spared the sister of the prosecutrix, I award the minimum prescribed sentence to convict Ramesh.
I therefore sentence the convict Ramesh under Section 376/109 IPC to rigorous imprisonment for seven years and a fine in the sum of Rs.5,000/-. In default of payment of fine he shall undergo simple imprisonment for three months.
I sentence convict Manoj to rigorous imprisonment for ten years and a fine in the sum of Rs.10,000/- under Section 376 IPC. In default of payment of fine, the convict shall further undergo simple imprisonment for six months. Benefit under Section 428 CrPC be given to the convicts. Copy of judgement be supplied free of cost. Sentence warrants be prepared. File be consigned to record room.
Announced in the open court on 3.1.2008.
(VINOD KUMAR) Additional Sessions Judge Patiala House Courts New Delhi