Delhi District Court
State vs . Tara Chand @ Taur S/O Vijay, R/O E120, ... on 21 July, 2010
1
IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 101/09
Case Unique ID No. 02402R0192092009.
State Vs. Tara Chand @ Taur S/o Vijay, R/o E120, Jhuggi Rajinder PD
Colony, Dilshad Garden, Delhi.
FIR No. 159/09
PS Seemapuri
U/s 363/376 IPC.
Date of Institution : 24.07.09
Date of reserving the Judgement : 05.07.2010
Date of pronouncement : 15.07.2010
J U D G E M E N T : Gravamen of the prosecution case lies in the fact that on 08.05.2009 on receipt of DD No. 66B Ex.PW12/A regarding commission of rape upon a girl aged about 7 years by a male aged about 25 years, ASI Ajeet Kumar went at the place of occurrence i.e. in front of Gurudwara, Rajinder Prasad Colony, Dilshad Colony, where Smt. Munni Devi along with her daughter Latika (name changed) met him. Lady Constable Geeta was called at the spot from the police station. Statement of Smt. Munni Devi was recorded. Prosecutrix was sent for her medical examination, along with her mother and lady Constable Geeta. Tehrir was sent to police station and case was got registered. ASI Tejwati reached the spot. During the course of investigation, accused was arrested. He was also sent to hospital for medical examination. Exhibits were sent to FSL. Investigation culminated into a charge sheet against the accused u/s 363 and 376 IPC.
2. Charge for offences punishable under sections 363 and 376 IPC was framed against the accused, to which charge he pleaded not guilty and claimed S.C. No. 101/09 Page 1/24 2 trial.
3. To substantiate the charge, prosecution has examined Smt. Munni (PW1), Manoj Kumar, Constable (PW2), Geeta, Constable (PW3), Arun Kumar, Head Constable (PW4), Shoubir, Constable (PW5), Laxmi (PW6), Bhim Singh, Head Constable (PW7), Dr. Umesh Kumar (PW8), V. Shankarnarayanan, Sr. Scientific Assistant (PW9), Dr. Parul (PW10), Tejwati ASI (PW11) and Ajeet Kumar SI (PW12) in the case.
4. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under section 313 Cr.P.C. Except the fact that he was residing in neighbourhood of Munni Devi and was arrested in the case, he denied rest of the allegations against him. He projects that he was working with the husband of complainant Munni Devi. Due to non payment, he left the job and husband of Munni Devi was annoyed with him. Husband of Munni Devi instigated her to falsely implicate him in the case. He claims that it is a false case and he has been made scapegoat.
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5. Smt. Munni Devi (PW1) deposed that on 8 day of year, 2009, however she did not remember the month of the year, at about 8.30pm, her daughter Latika came to her from outside and at that time she was preparing food, and Latika went for sleep. Her daughter usually did not go to bed so early. She asked reason for going to her bed early. She noticed that blood was there on the underwear of her daughter. She asked her as to what had happened. She stated to her that Tara Chand @ Teru had taken her to a shop on the pretext of giving her a toffee, however he did not give her chocolate, instead took her beneath a tree, which was at some distance from her jhuggi, and he removed her underwear and then he removed his own underwear and laid down on her and committed wrong acts upon her. He put his penis into her vagina and due to S.C. No. 101/09 Page 2/24 3 which she felt pain. Her husband was not present at the jhuggi at that time. She called her husband through telephone. She stated all the facts to him and thereafter, she along with her husband and daughter Latika went to PS Seemapuri. Her report was got written. They were taken to GTB Hospital by police officials for medical check up of Latika. Latika was medically examined and her underwear was seized by the doctor. Her thumb impression was obtained on medical documents of her daughter. She (witness) narrated all the things to the doctor at GTB Hospital, who examined her daughter Latika. She had also shown the place of occurrence to the police officials, who prepared document Ex.PW1/B in that regard.
Manoj Kumar, Constable (PW2) got accused Tara Chand medically examined at GTB Hospital. Doctor handed over him blood sample and he handed over the same to the investigating officer. He also produced accused before the investigating officer. Undergarments of the accused were also seized. Same were taken into possession vide memo Ex.PW2/A. Accused was arrested by the investigating officer and put behind the lock up.
Geeta, Constable (PW3) got the prosecutrix Latika examined at GTB Hospital. She also took tehrir from the investigating officer and got the case registered. Thereafter, she handed over copy of FIR and rukka in original to ASI Tejwati as investigation was assigned to her.
Arun Kumar, Head Constable (PW4) was working as MHC(M) on 09.05.09 at PS Seemapuri. On that day, ASI Tejwati deposited five sealed pulandas and two sample seals. He made an entry to this effect at Sr. No. 3768 in store room register. He proved copy of the same as Ex.PW4/A. On 15.05.09, he sent five pullandas, duly sealed along with two sample seal through Constable Jagbir for FSL Rohini, vide RC No. 71/21, but the same could not be deposited. Thereafter, S.C. No. 101/09 Page 3/24 4 on 25.05.09, he again sent the case property through Constable Shoubir Singh to FSL Rohini. On 01.09.09, Constable Nandu Pathak collected the result from FSL and deposited the same with him. He handed over the result with the investigating officer and exhibits were deposited in the Malkhana.
Constable Shoubir (PW5) deposited five sealed pullanda and two sample seals to FSL Rohini, vide road certificate No. 75/21. Case property was not tampered with till it remained with him.
Latika (PW6) was brought in the witness box on 10.09.2009. Before recording her statement, certain preliminary questions were put to her to ascertain her capability to understand the question and to answer them and whether she was capable to testify or not. However, when questions were put to her, she could not give rational answers. Although she was stated to be six years of age, however as per her physique, she seems to be even less than that. Even on previous occasion, efforts were made twice to record her statement, but she could not speak anything due to her tender age. As such this witness was discharged unexamined due to her feeble faculty of understanding.
Bhim Singh, Head Constable (PW7) recorded FIR and proved copy of it as Ex.PW7/B. Dr. Umesh Kumar (PW8) examined accused Tara Chand @ Teru and proved his MLC as Ex.PW8/A. V. Shankarnarayanan, Sr. Scientific Assistant (PW9) received five sealed parcels in the office of FSL, Rohini. He examined exhibits and proved his biological report as Ex.PW9/A, and serological report as Ex.PW9/B. Dr. Paul (PW10) medically examined prosecutrix Latika and proved her MLC as Ex.PW10/A. ASI Tejwati (PW11) conducted investigation of the case. She detailed S.C. No. 101/09 Page 4/24 5 those very investigative steps, which were taken by her during the course of investigation. SI Ajeet Kumar (PW12) detailed those very investigative steps, which took place in his presence.
6. I have heard Sh. Subhash Chauhan, ld. Prosecutor, and Sh. A.K. Sharma, Advocate for the accused and have perused the record.
7. It was submitted by ld. Counsel for accused that prosecutrix has not been examined by the prosecution. There is no other eyewitness to the incident. Testimony of Smt. Munni Devi, mother of the prosecutrix, is hearsay. Moreover, she has deposed that her signatures were obtained on blank papers. There is discrepancy in the testimony of police officials regarding conduct of proceedings. As such prosecution has failed to bring home guilt of the accused beyond reasonable doubt and accused is entitled to be acquitted.
8. On the contrary, ld. Prosecutor submitted that prosecutrix could not be examined due to her tender age. Hectic efforts were made to get her statement recorded, but due to her tender age she did not speak anything before the Court and therefore she could not be examined. However, even if prosecutrix could not be examined before the Court, that is, not fatal to the case of prosecution, because immediately after the incident the entire incident was narrated by the prosecutrix to her mother Smt. Munni Devi, who lodged complaint Ex.PW1/A before the police. The entire narration of the incident made by the prosecutrix to her mother immediately after the incident is admissible in evidence. As regards the fact that complainant deposed that her signatures were obtained on blank papers, it was submitted that complainant is an illiterate lady. Moreover, it has come in her testimony that she has narrated entire contents to the police and only thereafter the contents were written in the same, which was signed by her. Besides that, prosecutrix was produced before the doctor. At very initial juncture, S.C. No. 101/09 Page 5/24 6 name of the accused was mentioned before the doctor being the person who committed rape on her. Thereafter, on medical examination hymen of prosecutrix was found to be torn. Moreover, accused refused to give his semen sample. The underwear of the prosecutrix and that of accused and other samples were sent to FSL and report given by Sr. Scientific Officer also proves the case of prosecution. Moreover, the accused has failed to assign any reason as to why he would be implicated in this case. It was submitted that complainant without any rhyme and reason would not have put the honour of her daughter at stake by lodging this false complaint. Under these circumstances, it was submitted that prosecution has been able to establish its case beyond reasonable doubt and accused is liable to be convicted for offences alleged against him.
9. I have carefully gone through the evidence led by the prosecution and have given considerable thoughts to respective submissions of the ld. Counsel for the parties and have perused the record.
10. There is no dispute that prosecutrix was aged about six years old at the time of commission of offence. Record reveals that she appeared on 04.09.09 and efforts was made twice to record her statement. But she did not speak anything. Under these circumstances, the matter was adjourned on that day and her mother was directed to bring her on 10.09.09. On that day again, hectic efforts were made to record her statement, but before doing so, in order to ascertain her capability to understand the questions and to answer them, certain preliminary questions were put to her, but the manner in which she answered the questions made it clear that she was not able to understand the questions and to answer them properly. Moreover, although she was stated to be six years old, but as per her physique she seems to be even less than that age. Despite efforts and repeated questioning, she did not speak. Under these circumstances, it was S.C. No. 101/09 Page 6/24 7 not possible to record her statement. But that by itself is not fatal to the case of prosecution. 2004 Cr.L.J. 4123, Syed Pasha vs. State of Karnataka was also case u/s 376 IPC and the child victim was aged about four years. She was not examined by the prosecution. Similar plea was taken that nonexamination of the victim is fatal to the case of prosecution. Repelling the contentions, it was held by Hon'ble Karnataka High Court that the Court has to take into consideration the mental capacity of the child to recollect what had happened when she was aged about four or five years and whether could (be) able to identify the person, who had committed the heinous crime on her or is the child in a position to say about the sexual act committed on her, when the child is not aware of such acts, that too when she was in the age group of 1314 years at the time of recording of evidence before the Court below. It may not be possible for her to recollect what had taken place when she was aged four or five years. Therefore, non examination of the victim does not go to the root of prosecution case. It was further observed that it is settled principle of law that where a rape has been committed on child of tender age, there is no rule of law requiring corroboration from independent sources of evidence of the child as to the identity of the accused. The examination of the child or otherwise does not make any difference, when fact is taken note of that the child was just aged about four or five years at the time of committing crime and could not have expected to examine the child so as to recollect the memory of the worst incident that took place in her life. When it involves dignity and honour of the child and her family, it cannot be expected that a child of such tender age to step in the witness box and depose the facts.
1996 Cr.L.J. 502, Thana Rama vs. State of Rajasthan was also a case where allegations were about commission of rape upon the child of the age of 5 S.C. No. 101/09 Page 7/24 8 years. The prosecutrix was not examined. It was held by Hon'ble Justice Rajender Saxena of Hon'ble High Court of Rajasthan that nonexamination of the child of five or six years is not fatal to the prosecution case. In that case, reliance was placed on Manga vs. State of Haryana, (1979 Cr.L.J. 939), where the victim of rape was deaf and dumb girl of 13 years and she was not examined. However, prosecution evidence against the accused consisted statement of an eyewitness, which was corroborated by blood stained salwar of prosecutrix and the medical evidence of the doctor, who had examined the victim at the time of rape and found her hymen to be torn and ruptured. It was held by Hon'ble Apex Court that since prosecutrix was deaf and dumb girl of only 13 years age, no useful purpose would have been served by examining her. In view of these authoritative pronouncement, nonexamination of the prosecutrix who is aged about 6 years, who had not developed faculty of understanding is not fatal, if the case is otherwise proved by circumstantial evidence.
11. PW1 Smt. Munni Devi is the mother of prosecutrix. She was examined on th 04.09.09 and has deposed that five months prior to 8 day of year, 2009 at about 8.30pm, her daughter Latika came to her from outside and at that time she was preparing food. Her daughter went to sleep. She did not use to go for sleep so early. As such she inquired from her as to what had happened. She noticed blood on the underwear of her daughter and asked her as to what had happened. She informed her that Tara Chand @ Teru took her to a shop on the pretext of giving her toffee. Her daughter further told her that Tara Chand did not give her chocolate, but had taken her beneath a tree, which is at some distance from her jhuggi. Tara Chand removed her underwear and thereafter, he also removed his underwear and laid down on her and then committed rape upon her. Her daughter told her that accused put his penis in her vagina, due to which she felt S.C. No. 101/09 Page 8/24 9 pain. Since her husband was not present at the jhuggi at that time, as such she informed him on telephone. After her husband came, she informed all these facts to him and then she along with her husband and daughter went to PS Seemapuri and lodged report Ex.PW1/A, which bears her signatures at point 'A'. Thereafter, she along with her daughter and her husband were taken to GTB Hospital by police officials for medical check up, where she was medically examined and her underwear was seized by the doctor. She narrated entire details to the doctor at GTB Hospital, who examined her daughter. She had shown place of occurrence to the police officials. She also identified accused to be the person, who reside near her neighbourhood. After apprehension of accused, he had taken the police and his daughter to the place of occurrence and the place of occurrence was shown by him to police.
12. From the testimony of Smt. Munni Devi, it becomes clear that immediately after the incident, the entire episode was narrated by her to her mother.
13. The factum of making the complaint and the terms thereof become relevant as subsequent conduct. Such a conduct is relevant under section 157 read with section 8 of the Indian Evidence Act. In Emperor vs. Phagunia Bhuran, AIR 1926 Pat. 58, it was observed as under : "If the girl went to her relatives straight after the occurrence and complained on her own initiative, there is no doubt that her conduct would have a direct bearing upon and connection with the occurrence itself".
In Umeshwar Kalyan Singh vs. State of Rajasthan (1952) 3 SCR 377 also, it was observed that where the raped girl instinctively ran home to her mother, but not finding her there, she went to sleep and when the mother returned four hours later, the girl told her what had happened, it was held that the statement made to the mother fell within the ambit of section 157 read with S.C. No. 101/09 Page 9/24 10 section 8 illustration (J) of the Evidence Act. In the instant case also prosecutrix immediately, after the incident, returned home and narrated the incident before her mother. As such making of this statement to the mother is relevant under section 157 read with section 8 illustration (J) of the Evidence Act.
14. Nagam Gangadhar vs. State (1998 Cr.L.J 2220) considered the similar situation, where a child of four years was raped. Hon'ble Apex Court observed as under : "It is then contended that PW3 is a child witness and no importance can be attached to that evidence. It is true that the evidence of PW3 cannot be given the same weight as a grown up victim in a case of rape, the reason being that she is aged four years at the time of occurrence. However, she appears to have communicated to her parents that the revision petitioner has committed an act due to which she was getting pain in her private part. PW1 as well as PW2 have sworn to the fact that PW3 disclosed the said act, even if the testimony of PW3 is to be ignored, the circumstances set out supra are, in view of Hon'ble Apex court, sufficient to bring home the guilt of the revisionpetitioner."
15. In Syed Pasha (supra) also the child informed her mother about the incident and the person, who had committed rape upon her. It was held that this information was admissible in evidence and it points out to the guilt of the accused. It was further observed that section 60 of the Evidence Act stipulates that oral evidence must be direct, that is, to say the fact to be proved could be seen, heard, touched, tasted and/or smelt. The testimony should be one of the said it, heard it, touched it, tasted it or smelt it. In that case, the child told her mother, when enquired 'Pasha' and it was held to be a circumstance which has to be taken into account in considering the overall testimony of other prosecution witnesses, including the investigating officer, who recorded statements of S.C. No. 101/09 Page 10/24 11 witnesses at the earliest. It is to be noted that Section 60 of the Evidence Act does not preclude from considering the circumstantial evidence of things that could be seen, heard or felt. Even taking into its extreme, elimination of mentioning the name of accused by the child, the other circumstances point to the guilt of the accused.
16. Similar view was taken by Hon'ble High court in 2010 II AD (SC) 117, Nanna Gupta @ Babu vs. State and in 2010 Cr.L.J. 1281 Hari Om vs. State. It was held that previous statement of prosecutrix are admissible in evidence under section 157 of the Evidence Act and this proposition of law was recognized by Hon'ble Apex Court in Madan Lal vs. State of J&K, 1988 SC 386, where statement made by the prosecutrix to her mother soon after the incident was accepted to be corroborative piece of evidence. In view of these authoritative pronouncements, information of the incident given by prosecutrix to her mother immediately after the incident is corroborative piece of evidence against the accused.
17. Not only that, even at the time when the prosecutrix was produced before Dr. Parul (PW10), history of rape upon her was given as under : "Alleged history of rape by a person, named, Tara Chand, upon a six years old child, namely, Latika, at about 8.30pm on 08.05.09. The child was playing outdoor and was taken by above said person and was raped".
Under these circumstances, the history given to Dr. Parul immediately after the incident gives corroboration to the testimony of Smt. Munni Devi regarding commission of rape upon her daughter by the accused.
18. When prosecutrix was examined by Dr. Parul, on medical examination her hymen was found torn. She prepared her MLC Ex.PW10/A and took into possession her undergarments, two vaginal smears, one sample seal and swab S.C. No. 101/09 Page 11/24 12 and handed over the same to the Constable. In crossexamination, this witness admitted that hymen cannot be torn due to sustaining injuries. During the course of arguments, it was submitted by ld. Defence counsel that it was wrongly mentioned in her crossexamination that hymen cannot be torn due to sustaining of injuries and in fact she had deposed that hymen can be torn due to sustaining injuries. Firstly, it may be mentioned that no such inference can be drawn as was suggested by the ld. Defence counsel that witness has not deposed in the manner as was recorded in her crossexamination. Even if it is assumed to be the same, it is not the case of accused that prosecutrix had sustained any injury immediately prior to the incident or that her hymen was torn due to that reason. As such nothing comes out of this crossexamination. Keeping in view the fact that hymen of minor girl aged about 6 years was found to be torn on her medical examination is very strong piece of evidence against the accused.
19. Hari Om (supra) was also a case where hymen of the prosecutrix aged about 89 years was found to be torn on medical examination and it was held by Hon'ble High Court that this fact is drawing expression of the fact that she has been subjected to rape.
20. Further more, after accused was arrested, he was also sent for medical examination. He was examined by Dr. Umesh Kumar and he has testified that on medical examination, he found that there was nothing to suggest that patient was not capable to perform sexual intercourse. The blood sample and undergarment of the patient were taken and were handed over to Constable on duty.
Constable Manoj (PW2) handed over a sealed parcel to investigating officer, who seized the same vide memo Ex.PW3/C. Factum of taking blood sample and undergarments into possession by doctor has been admitted by accused in his statement u/s 313 Cr.P.C. The same was sent to FSL on 25.05.09 S.C. No. 101/09 Page 12/24 13 through Constable Shoubir Singh and was examined by V. Shankar Narayanan (PW9) and as per his report, human semen was detected on Ex.P6, that is, underwear of the accused. Thus, it stands proved that semen was found on the underwear of accused. There is no explanation from the side of accused as to how semen came on his underwear. Therefore, the inference is that semen came on his underwear, when he committed rape upon the prosecutrix. Thus, presence of semen on the underwear of accused is another piece of evidence proving to his guilt. Nanna Gupta (supra) was also a case where semen was detected on the underwear of accused and this fact was held to be one of the corroborating piece of evidence to the version given by prosecutrix.
21. Further doctor has deposed that semen could not be collected, as patient was not cooperating. When this incriminating piece of evidence was put to the accused while recording his statement u/s 313 Cr.P.C, he merely replied it as "incorrect". However, this denial simpliciter is of no consequence, keeping in view the fact that Dr. Umesh Kumar was not crossexamined at all by the accused, with the result his testimony goes unrebutted and unchallenged and even no suggestion was given to him that accused did not decline to give his semen sample. Moreover, there is no reason to disbelieve unchallenged testimony of Dr. Umesh Kumar who is an independent witness and has no illwill, spite or grudge against the accused to depose against him. This refusal on the part of accused to give his semen sample is another strong piece of evidence against him. 2010 (1) AD (Delhi) 130, Mahender Singh vs. State was also a case where the accused had failed to give his semen sample, and it was held by Hon'ble High Court that this refusal to give semen sample certainly nails him.
22. Moreover, when accused was examined by Dr. Umesh, he observed "no injury mark or smegma over the penis". Meaning thereby that no smegma over S.C. No. 101/09 Page 13/24 14 penis was found. Absence of smegma over penis is another factor which points out towards commission of sexual intercourse by the accused.
23. Further more, as seen above, Smt. Munni, mother of the victim has unfolded that her daughter came from outside and went to the bed. She noticed that blood was there on the underwear of her daughter, and thereafter victim narrated entire incident to her mother. Dr. Parul (PW10) seized the underwear of the prosecutrix, besides two vaginal smear samples and one anal swab. After sealing the same, she handed over to constable Geeta (PW3), who handed over the same to investigating officer of the case and same was seized vide memo Ex.PW3/A. During the course of investigation, same was sent to Forensic Science Laboratory and was examined by V. Shankarnarayan, Sr. Scientific Assistant (PW9) and on biological examination, as per his report Ex.PW9/A, blood was detected on Ex.P1, that is, underwear of prosecutrix and as per serological report Ex.PW9/B, the blood was of human origin only. This is another piece of evidence going against the accused.
24. ld. Counsel for the accused tried to assail testimony of Smt. Munni Devi on the ground that as per prosecution version, she is the author of complaint, but she had admitted that she signed on blank papers. In this regard, it may be mentioned that entire statement of the witness has to be read in a whole and it is also to be kept in mind that she is an illiterate lady and therefore cannot read her statement. She has also deposed that she had narrated contents of Ex.PW1/A to the police and thereafter contents were written by them. Therefore, nothing much favourable to the accused comes from this part of the testimony of the complainant.
25. ld. Defence counsel also pointed out certain discrepancies in the investigation of the case, inasmuch as, testimony of PW3 Constable Geeta was S.C. No. 101/09 Page 14/24 15 confined to going to the place of occurrence along with SI Ajeet Singh, and thereafter taking prosecutrix to hospital for medical examination, getting the case registered, receiving sealed parcel from hospital and then handing over the same to investigating officer of the case. Since this witness did not disclose some material facts, as such she is crossexamined by the ld. Prosecutor and then she admitted that site plan was prepared at the instance of prosecutrix. Accused was arrested and his personal search was taken, and then he was sent to GTB Hospital for medical examination, where sealed parcels were given by the doctor and same were taken into possession. In crossexamination by the ld. Defence counsel, she stated that she did not go to the spot and according to her entire writing work was done in police station. Testimony of ASI Tejwati was also attacked on the ground that this witness could not tell which of the documents were prepared by her and which was prepared by other police officials at her direction.
26. The discrepancies referred above cannot be said to be very material. Everyone cannot recollect minor details with complete accuracy and he/she by replying to such questions gives answer based upon his/her recollection of events at the time of incident. Therefore, the minor contradictions on such peripheral issues, which would not constitute core of the matter, cannot be said to be material and not much importance can be attached to these minor discrepancies. Since everyone does not have equal power of observations, retention and corroboration, which varies from individual to individual, there is bound to be some difference while giving details unrelated to the main incident. The approach of the Court while evaluating testimony of a witness has to be to see whether his/her evidence, when examined as a whole, appears to be true or not. If the witness appears to be truthful and trustworthy, his/her evidence need S.C. No. 101/09 Page 15/24 16 to be scrutinized. Taking into considerations the discrepancies and infirmities pointed out in his/her evidence and then testimony of the witness is to be evaluated, besides whether the evidence given by him/her stands impeached or shaken, rendering him/her unworthy of reliance.
27. Major attack to the testimony of Constable Geeta is that she did not go to the spot. Presuming the same to be correct, that does not make her testimony regarding taking the victim to hospital, getting her medically examined, taking sealed parcels from the doctor, handing over the same to investigating officer of the case, and getting the case registered, unreliable. Similarly, the fact that ASI Tejwati could not tell which documents were prepared by her and which documents were prepared by other police officials under her directions does not make prosecution version doubtful.
28. In State of Karnataka vs. K. Yarappa Reddy, (1999) 8 SC 715, it was held that even if investigation is illegal or even suspicious, the rest of the evidence must be scrutinized independently of the impact of it, otherwise criminal trial will plummet to the level of investigating officer ruling the roost..... Criminal justice should not be made a casualty for the wrongs committed by the investigating officer in the case. In other words, if the Court is convinced that testimony of a witness to the occurrence is true, the Court is free to act on it, albeit the investigating officer's suspicious role in the case. Similar view was taken in 2010 IV AD (SC) 645, Abu Thakir and others vs. State, represented by Inspector of Police Tamilnadu.
29. Foregoing discussions clearly reveals that there is ample material available on record to prove that it was the accused, who had committed rape upon the victim, who was a minor child, aged about 6 years. The circumstances appearing against the accused are : S.C. No. 101/09 Page 16/24 17 (1) Police machinery was sent in motion on receipt of DD No. 66B, which was regarding commission of rape on a child aged about 7 years by a male aged about 25 years, near Gurudwara, Rajinder Prasad Colony, Dilshad Colony. (2) Immediately, after the incident, when prosecutrix came to her house, blood was noticed on her underwear by her mother Smt. Munni devi. (3) Inquiry was made by Munni Devi from her daughter Latika, who narrated entire incident as to how Tara Chand, who used to live in her neighbourhood, took her to shop on the pretext of giving her toffee, and instead of giving toffee to her, she was taken beneath a tree where she was subjected to rape. On coming to know about the incident. Smt. Munni Devi called her husband without loss of time. Matter was reported to police. DD No. 66B, which is Ex.PW12/A, was recorded and SI Ajeet Kumar reached place of occurrence. (4) Victim was sent for medical examination with her parents and lady Constable Geeta. Dr. Parul (P10) medically examined the prosecutrix Latika, before whom also history of commission of rape by accused Tara Chand was given. (5) On medical examination doctor found hymen of prosecutrix to be torn. (6) Doctor took her underwear, besides vaginal smear sample and anal swab into possession, sealed the same and handed over to lady Constable Geeta, who in turn handed over the same to investigating officer of the case, who seized it vide memo Ex.PW2/A. (7) When accused was arrested, he was also sent for medical examination, where he was medically examined by Dr. Umesh Kumar (PW8). On examination, doctor opined that there was nothing to suggest that accused was not capable to perform sexual intercourse.
(8) His blood sample and underwear were seized.
(9) When samples were sent to FSL, same were examined by V. S.C. No. 101/09 Page 17/24 18 Shankarnarayanan (PW9). He found blood on the underwear of prosecutrix, which was of human origin.
(10) V. Shankarnarayanan also found semen on the underwear of the accused. (11) Accused failed to give his semen sample.
(12) Smegma was found absent.
All these circumstances conclusively establish that it was the accused, who committed rape upon prosecutrix. The circumstantial evidence, medical evidence and expert evidence clearly establish the fact of sexual intercourse on the child. The surrounding circumstances directly point to the guilt of the accused and though the childvictim could not be examined due to non development of her mental faculties, I am of the firm view that it does not go to the root of the case of prosecution
30. Coming to the stand of the accused, he has admitted that he used to reside in neighbourhood of complainant Munni Devi. He also admitted that he was arrested and was taken to hospital, where he was medically examined by the doctor and it was opined that there was nothing to suggest that he was incapable of performing sexual intercourse and on medical examination smegma was found absent. He also admitted that blood sample and undergarments were taken into possession. According to him, it is a false case. He was working with husband of complainant Munni Devi and due to nonpayment he left the job and husband of Munni Devi was annoyed with him. He instigated his wife to implicate him falsely in this case. At the outset, it may be mentioned that this plea taken by the accused seems to be completely afterthought, inasmuch as, it has seen the light of the day for the first time in the statement of accused. No such suggestion was given to Smt. Munni Devi that accused was employed with her husband or that he had left the job due to nonpayment or that her husband was annoyed on S.C. No. 101/09 Page 18/24 19 that count or that he instigated her to falsely implicate accused in this case.
31. Besides the fact that explanation given by the accused is of no assistance to him to establish the fact that he has been falsely implicated, even otherwise, it does not appealed to reason that in order to settle their personal scores, parents of prosecutrix would put honour of their daughter at stake. In this regard observations made by Hon'ble High Court in Hari Om (supra) may be reproduced with advantage : "Prosecutrix being a young girl aged about 7 years at the time of incident, it is not likely that her parents would have implicated the accused in a false case of rape of their daughter, conscious as they would be that reporting of such a matter to police, particularly, when parents of prosecutrix as well as the accused were living in the jhuggies situated in the same locality, was bound to expose their daughter to scrutiny and questions not only by the police and the Court, but also by their neighbour and relatives. They could not have been ignorant of the fact that they may even have difficulty in finding a suitable match for their daughter once it is known that she has been subjected to rape in her childhood. Therefore, if they, despite realising these consequences do report the matter to police, it would be only if what they were reporting was absolutely true and correct. In fact, some of the parents even refrain from reporting such incident lest their child not face embarrassment on account of incident becoming public and her marriage being jeopardised on account of prospective inlaws becoming aware of the incident, at the time of her marriage. The parents of prosecutrix knew that if they report the matter to the police, they will have to take their child first to police station, then to the hospital and ultimately in the Court, and the child will be made to repeat the worst incident of her life at every place at considerable discomfort and embarrassment to her. Therefore, unless the incident of this S.C. No. 101/09 Page 19/24 20 nature actually happened with their child, no parents would take such step".
Similar view was taken in Nannu Gupta (supra). Even in Radhu vs. State of Madhya Pradesh (2007) 12 SCC 57, Hon'ble Apex Court observed that it is unlikely that child of eight or nine years of age can even be tutored to make allegations of rape by a person otherwise well known to her and then repeat those allegations before police, magistrate, doctor and then during trial.
32. Hon'ble Supreme Court in Bharwada Bhoqinbhai Hirjibhai vs. State of Gujrat 1983 (2) Recent Criminal Report 192 had noticed peculiar conditions and circumstances in which a girl or woman, who happens to be victim of rape, in Indian conditions would find herself and so will be reluctant to disclose such incident to anyone and it is observed as under : "Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or woman in India make false allegations of sexual assault... The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because : (1) A girl or a woman in the tradition bound non permissible Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down upon by the society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance S.C. No. 101/09 Page 20/24 21 with a suitable match from a respectable or an acceptable family. (6) It would almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame and acccount of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not want to avoid publicity on account of fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the crossexamination by counsel for the culprit, and the risk of being disbelieved, act as deterrent".
33. When in the face of these factors, the crime is brought to light, there is a built in assurance that charge is genuine rather than fabricated.
34. In view of the aforesaid discussion, plea of the accused regarding his false implication does not inspire confidence. On the other hand, there is ample material on record to connect accused with crime. Under these circumstances, prosecution has been able to establish that it was the accused who committed rape upon the victim. On the other hand, accused has not been able to bring out even an iota of doubt in the case of prosecution which may show that he has been falsely implication. As such, he is held guilty and convicted for offence u/s 376 IPC.
35. Coming to the charge for offence u/s 363 IPC, following ingredients of S.C. No. 101/09 Page 21/24 22 kidnapping from lawful guardianship has to be established by the prosecution : (1) That accused entices a minor, who is under 16 years of age if a male, or (2) under 18 years of age if a female, or (3) any person of unsound mind, (4) out of the keeping of lawful guardian of such minor or person of unsound mind, without the consent of such guardian.
36. It is not disputed that victim was aged about 6 years, as such was a minor. She was under lawful guardianship of her parents. The victim was taken by the accused by enticing her to give toffee, out of the keeping of lawful guardianship of her parents. Under these circumstances, all the essential ingredients of section 363 IPC are also established against the accused.
37. In view of the foregoing discussions, accused Tara Chand @ Teru is held guilty and convicted for offences punishable under sections 376 and 363 IPC.
Announced in the Open Court (Sunita Gupta)
th
On this 15 day of July, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
S.C. No. 101/09 Page 22/24 23 IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI : S.C. No. 101/09
Case Unique ID No. 02402R0192092009.
State Vs. Tara Chand @ Taur S/o Vijay, R/o E120, Jhuggi Rajinder PD Colony, Dilshad Garden, Delhi.
FIR No. 159/09 PS Seemapuri U/s 363/376 IPC.
Date of Institution : 24.07.09 Date of reserving the Judgement : 15.07.2010 Date of pronouncement : 21.07.2010 ORDER ON THE POINT OF SENTENCE : Leniency in punishment has been claimed by Sh. A.K. Sharma, Advocate, for the convict, pleading that convict is aged about 35 years, and saddled with heavy responsibility of maintaining his wife and old aged parents. Convict does not have any criminal history behind him. He also submits that convict be dealt with leniency while awarding sentence.
2. On the other hand, ld. Prosecutor submits that convict took no pity on the prosecutrix Latika (name changed), who was a little girl aged about 6 years, while committing such an abominable act. Such a person deserves no leniency and any sympathy for such a person would be entirely misplaced. The prosecutrix would never, in her life, forget the trauma experienced by her at the hand of convict and the heinous and abhorable act committed by convict will keep 'haunting her as well as her parents throughout their life. As such, ld.
Prosecutor submits that convict may be given maxima punishment provided for the offences committed by him.
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3. On 08.05.09 at about 8.30pm, Latika came from outside and at that time her mother was preparing food. She went to sleep. She did not use to go for sleep so early. As such her mother inquired from her as to what had happened. Her mother noticed blood on her underwear and asked her as to what had happened. She informed her that Tara Chand @ Teru took her to a shop on the pretext of giving her toffee. She further told her that Tara Chand did not give her chocolate, but had taken her beneath a tree, which is at some distance from her jhuggi. Tara Chand removed her underwear and thereafter, he also removed his underwear and laid down on her and then committed rape upon her. She also told her that accused put his penis in her vagina, due to which she felt pain.
4. Therefore, facts and circumstances, detailed above, projected that an alarming offence was committed by the convict. Moreover, an act of child rape is a gruesome and abhorring act. It leaves a permanent scar on the personality of the child, inhibiting growth and development. It instils a feeling of fear, insecurity and a brooding sense of shame and guilt for no fault of the child victim. Under these circumstances and keeping in view seriousness of offence committed by the convict, he is hereby sentenced to undergo RI for ten years and to pay fine of Rs.7,000/. In default of payment of fine, he would further undergo RI for one years. He is further sentenced to undergo RI for three years and to pay a fine of Rs.3,000/ for offence punishable under section 363 IPC. In default of payment of fine, he would further undergo RI for six months.
5. Substantive sentences awarded to the convict shall run concurrently. Fine, if recovered, be paid as token of compensation to the victim.
6. Convict shall get the benefit of period already undergone in detention during investigation and trial of the case. A copy of judgement and order on sentence be supplied to him free of cost.
Announced in the Open Court (Sunita Gupta)
st
On this 21 day of July, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
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