Delhi District Court
(D)In Ramji Lal vs . State 53 (1994) Dlt 829, There Were on 26 February, 2010
1
IN THE COURT OF SH. INDER JEET SINGH, ADDITIONAL SESSION
JUDGE-02, WEST DISTRICT, TIS HAZARI COURTS, DELHI
S. C. No. 49/2008
FIR No. 151/2008
P. S. Moti Nagar
u/s 342/354/376/511 IPC
Govt. of N. C. T of Delhi. .....State
VERSUS
Umesh Kumar Ram
S/o Sh. Ram Bali Ram
R/o T-42, Second Floor,
Karam Pura, Haryana Dharamshala,
New Delhi-110015 .....Accused
Date of Institution : 03.07.2008
Decision Reserved on : 25.02.2010
Date of decision : 26.02.2010
JUDGMENT
1.1 The Prosecutrix's father Sh. Raju Chaurasia (PW-2) is author of FIR No.151/2008 (now Ex.PW7/B) of police station Moti Nagar, which was recorded on the basis of his statement Ex. PW2/A. The complainant/PW-2 Raju Chaurasia narrates in his statement, the episode, as follows:
On 04.05.2008 at about 3:00 pm, his daughter/ prosecutrix, aged about 7 years (name withheld) went to the house of neighbourer Umesh Kumar Ram (present Contd.....2
accused) to watch T.V there. She came back home crying and disclosed to her mother i.e complainant's wife/PW-3 Smt. Sunita) on query that accused Umesh Kumar Ram teased her and also tried to did wrong acts to her. She also disclosed that when she went there to watch TV in the house of accused Umesh Kumar Ram, the said Umesh Kumar Ram closed the door and hold of her forcibly and then make her to sit on him, then he started teasing with the body of prosecutrix. The prosecutrix narrated all these facts to complainant's wife Smt. Sunita, who in turn disclosed to the complainant Raju Chaurasia. Then police report was lodged, prosecutrix was also examined medically, she was admitted in the hospital. On the basis of such complaint/statement, FIR was registered under section 342/354/376/511 IPC.
1.2 During the investigation, not only statement of witnesses were recorded by the investigating officer but also statement of prosecutrix was got recorded under section 164 Cr. P. C; the prosecutrix was also got examined medically/pathologically in the Gynae Department. Accused Umesh Kumar Ram was also examined medically. The inner Contd.....3
clothes of prosecutrix were also sent to FSL Rohini, Delhi for scientific opinion. In addition, the prosecutrix's parents also gave her birth certificate record to the investigating agency which was seized by memo.
1.3 On completion of the investigation, charge-sheet was filed under section 342/354/376/511 IPC and after compliance of statuary provisions of law inclusive of section 207 Cr. P. C., the case was committed to the court of sessions here Ld. Addl. PP for State opened the case. 2.1 The case was opened in the session's court. The accused was charged under section 376/511 IPC that on 04.05.2008 at about 3:00 pm at T-42, Karampura, Moti Nagar, Delhi, he attempted to commit rape on prosecutrix (a minor girl of 7 years age); he has also been charged under section 342 IPC that he wrongfully confined the prosecutrix for less than one hour at the said place. The accused Umesh Kumar Ram has also been charged under section 354 IPC on that day, time and place, he used criminal force to the prosecutrix, intending to outrage, and knowing it to be likely that he would thereby outrage, the modesty of prosecutrix by such assault or criminal force. However, the accused Contd.....
4Umesh Kumar Ram pleaded not guilty and claimed trial. 2.2 In order to establish the charge, the prosecution/ State examined as many as 12 witnesses, their pivotal role and names are enumerated as follows:-
(i).PW1 prosecutrix (name withheld) to establish the incident of 04.05.2008.
(ii).PW2 Sh. Raju Chaurasia, S/o Sh. Ram Sambhuj Chaurasia (to establish that he is father of prosecutirx and the author of FIR Ex.PW7/B, which was registered on the basis of his statement Ex.PW2/A )
(iii).PW-3 Smt. Sunita W/o Sh. Raju Chaurasia (to establish that she is mother of the prosecutrix, she was apprised of episode by her daughter immediately coming back from the house of the accused Umesh Kumar Ram; then the prosecutrix was taken to the hospital)
(iv).PW-4 Dr. Vinal Sharma, Casualty Medical Officer, Deen Dayal Upadhyay, Hospital Delhi (to establish that on 05.05.2008, he examined the prosecutrix, a minor girl of 7 years-female, he prepared her MLC Ex.PW4/A and referred her to Gynae Department)
(v).PW-5 Dr. Ajay Sharma, Casualty Medical Officer Deen Dayal Upadhyay, Hospital Delhi appeared in place of Dr. Sanjeev Kumar, who examined the patient Umesh Kumar Ram on 05.05.2008 and prepared his MLC Ex.PW5/A and also opined that there is nothing to suggest that the accused Umesh Kumar Ram is not capable of doing sexual intercourse; Dr. Ajay Sharma identified the signatures of Dr. Sanjeev Kumar on MLC Ex. PW5.
(vi).PW-6 Dr. Ritu Goel, Gynaecologist, Deen Dayal Contd.....5
Upadhyay Hospital, Delhi (Dr. Ritu Goel appeared in place of Dr. Karamjeet Kaur, Sr. Resident, who examined the prosecutirx in Gynae Department and gave her report on MLC Ex.PW4/A above her signature, it was identified by Dr. Ritu Goel since Dr. Karamjeet Kaur had left the hospital.
(vii).PW-7 HC. Umrao Singh (to establish that he was Duty Officer in the Police Station on 04.05.2008, he recorded the formal FIR No.151/2008 Ex. PW7/B on the basis of statement Ex.PW2/A by endorsing appropriate endorsement on Ex. PW7/A at 3:45 am on the rukka; the FIR was taken by Ct. Dev Raj handed over it to Investigating Officer W/SI Kamlesh PW-13).
(viii).PW-8 Ct. Desraj (to establish that he was called by W/SI Kamlesh, accordingly he reached Deen Dayal Upadhyay Hospital, Delhi and joined the investigation, besides got registered the FIR formally by brining the Asal Tehrir from the hospital to the police station).
(ix).PW-9 Ct. Bijender Singh (to establish that he accompanied the investigating officer during the course of investigation of the case, accused Umesh Kumar Ram was arrested in his presence and he also brought the accused to hospital for his medical examination; hospital authorities seized blood samples of accused Umesh Kumar Ram, he handed over the pulanda to the investigating officer which was taken into possession by memo).
(x).PW-10 SI Raghuvir Singh/second investigating officer (to establish that he is the second investigating officer, and during the tenure of his investigation he recorded the statement of landlord Sh. Kartar Singh, also sent the exhibits to FSL Rohini, Delhi; the result was also collected, the same was tendered by him as Ex.PW10/A ).
Contd.....
6
(xi).PW-11 Sh. Kartar Singh S/o Sh. Gurbaksh Singh (to establish that he is the landlord of accused Umesh Kumar Ram and his brother Santosh Kumar, he had let out room at second floor to the accused Umesh Kumar Ram. The room was let out in property bearing No.T-42, Karampura, Delhi and there were about 20 families are living in the tenanted property No.T-42, Karampura, Delhi)
(xii).PW-12 W/SI Kamlesh, firstt investigating officer (to establish that she was called by the Station House Officer in the police station Moti Nagar at about 9:00 pm on 04.05.2008 when prosecutrix with her parents came there; immediately the prosecutrix was taken to the hospital. The formal FIR was registered on the statement of PW-2 Raju Chaurasia. She got recorded statement of prosecutrix under section 164 Cr. P. C. and also carry the investigation inclusive of arrest of accused Umesh Kumar Ram, his medical examination inclusive of collection of blood samples and getting dispatched articles/exhibits to FSL Rohini);
2.3 After closure of prosecution evidence, statement of accused Umesh Kumar Ram, without oath, under section 313 Cr. P. C was recorded, however, he had denied the allegations with the plea of his innocence that a false case has been foisted against him, by forwarding the prosecutrix by her parents in order to avoid payment of money of Rs. 2,000/- lent to them for the treatment of their daughter i.e. the prosecutrix vis-a-vis there was a dispute on the point of fetching water from pump, they were already prepared to Contd.....
7teach a lesson to the accused and the case was framed. He was watching the television, other persons were also present to watch the television in the room of accused, it was improbable that the incident could have been happened during the presence of many others. He had opted for defence evidence, he produced his brother Santosh Kumar Ram as DW-1 and then he himself stepped into the witness box as DW-2, after seeking permission under section 315 Cr. P. C. 2.4 Witnesses DW-1 and DW-2 (the accused) put the case of accused that no event as alleged had taken place on 04.05.2008, as not only they but many more persons were present in the room. The prosecutrix came to watch the television in the morning, she was asked to leave the room around 9 am, no incident happened at 3 pm. The accused was picked by the police and then implicated. 3.1 During the arguments, Sh. B. S. Kain, Ld. Addl. PP for State requests that the incident pertains to 04.05.2008 at 3 pm, in the room of accused and on plain reading of statement of prosecutrix/PW-1 reflects that the accused tried to insert his penis in the private parts of the prosecutrix, a Contd.....
8minor girl. Statement of prosecutrix under section 164 Cr. P. C also reflects the acts done by the accused. The room was bolted/closed, it suggest that not only the prosecutrix was confined in the room, but also an attempt to rape was made. Further, the accused had also tried to rub, the prosecutrix by holding from her arms, at his lower part of the body, it also proves charge under section 354 IPC. In order to disprove the case of prosecution, the accused has projected the defence, as if, the sum of Rs. 2,000/- was lent to the parents of prosecutrix and in order to avoid the payment, the prosecutrix has been forwarded or the case was framed, whereas, neither it is a plausible defence nor it happens that a girl of 7 years will be forwarded in order to avoid the payment of amount. Otherwise, it is an afterthought defence. The other defence is that there was a dispute on the point of fetching of water from the water tap but it is also an afterthought defence. The accused produced two witnesses in defence, one is his brother and second he himself but their stand is not only contradictory but also it does not convince. The defence theory failed to pierced the prosecution case. The accused is liable to be held guilty in respect of the Contd.....
9charge framed.
3.2 Whereas, Ld. defence counsel Dr. Kanwal Sapra with Sh. H. R. Dhamija, Advocates opposed the propositions made on behalf of the State that there is no evidence of attempt to rape under section 376/511 IPC, the evidence on record does not satisfy the requirement of law of attempt to rape. The prosecution case is based on the incident of 04.05.2008 but the witnesses have deposed about the incident of 05.05.2008, on this sole ground, the prosecution case collapsed. The incident was stated to have been of 3 pm of 04.05.2008, whereas, FIR was recorded at 3.45 am of 05.05.2008, the delay remained unexplained. This delay opens avenue for introduction of many facts, it has been done in the present case.
There are also contradictory statement of the witnesses vis-a-vis inherent inconsistency in the statement of PW-1/prosecutrix, PW-3 Smt. Sunita, mother of prosecutrix, PW-2 father of prosecutrix; like PW-1 gives different description of apparels worn by her, there is an improvement in her statement from her previous statement recorded under section 164 Cr. P. C and under section 161 Cr. P. C. As Contd.....
10per prosecution case, prosecutrix apprised her mother/PW-3 about the episode and from such narration, recorded by the police, it does not make out any case of attempt to rape. Further, on plain reading of the entire evidence of star witnesses, it was never the case of prosecution that the accused removed his clothes or of the prosecutrix, there is no evidence to the effect that the attempt to rape or penetration was intended or acted by the accused. The undergarments of prosecutrix, vaginal swabs and blood guage of accused was taken but report of FSL is not against the accused and there is also no medical opinion against the accused. The prosecution failed to prove the charge of attempt to rape.
3.3 According to the prosecution case/PW-1, she came to watch television at the room of accused, because of glaring reflection from the door, the prosecutrix herself closed the door, she also explains that the door was not bolted either by the PW-1 herself or by the accused. It suggest that the accused had no intention to make wrongful confinement or do any wrong act, the charge under section 342 IPC could not have been proved.
Contd.....
113.4 On the basis of evidence on record, particularly the contentions like referred in the paragraphs No.3.2 & 3.3, above, there is also no evidence of criminal assault or criminal force to outrage the modesty of the prosecutrix. There were other persons in the room and feature of case as projected by the prosecution are improbably, since the statement of defence witnesses proves the case of accused that no event took place but he was implicated on the point of dispute of fetching water and loan amount. The accused deserves acquittal.
4. The rival contentions are assessed in the light of evidence on record and statutory provisions of law. In order to appreciate them, the requirement of law for attempt to rape under section 376/511 IPC, wrongful confinement under section 342 IPC and of assault or criminal force to a woman that intend to outrage her modesty under section 354 IPC, are reproduced hereunder -
The essential ingredients of section 375 IPC read with section 376 IPC are:-
A.1.Unlawful sexual intercourse by a man A.2. With his own wife under the age of 15 years OR A.3. With any other woman under the age of 16 years-with her consent, or without her consent B.1. Unlawful sexual intercourse by a man Contd.....12
B.2. With any other woman above 16 years of age, against her will, without her consent C.1 Unlawful sexual intercourse by a woman C.2 With any other woman above 16 years of age, with her consent, C.3 When her consent has been obtained by putting her (or to any person she is intended or close to her) or in fear of death or hurt, OR When the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is (or believes herself to be) lawfully married OR When at the time of giving such consent by reason of unsoundness of mind or intoxication or she administration of any stupefying or unwholesome substance, she is unable to understood the motive and consequence of that to which she gives consent.
In order to prove an attempt defined under section 511 IPC, it is required to establish:-
(i) accused attempted to commit some offence punishable with imprisonment under IPC (OR he attempted to cause such offence to be committed);
(iii)that in such attempt he did some acts towards the commission of that offence;
The essential ingredients of section 342 IPC
(i).The accused obstructed the complainant
(ii).Such obstruction non voluntarily
(iii).The effect of such obstruction was to restrain that person from proceedings beyond a certain limit
(iv).the restrain was wrongful.
The essential ingredients of section 354 IPC
(i).That the person assaulted was a female
(ii).That the accused assaulted or used criminal force to her
(iii).That he intended thereby to outrage her modesty (or that he knew it to be likely that he would thereby outrage her modesty)
5.1 First of all, a serious dispute on the point of date of incident is taken, that the prosecution case is of 04.05.2008 Contd.....
13at 3 pm, but the statement of Raju Chaurasia was recorded on 05.05.2008 and he in his statement Ex. PW2/A says that the incident is of today (i.e. 05.05.2008). In the light of this statement Ex. PW2/A, the statement of prosecutrix under section 164 Cr. P. C, comes under the cloud of doubts.
Whereas, the facts have been perceived contrary to the record, for the reason, the prosecutrix with her mother Sunita went to Cannaught Place, work place of Raju Chaurasia and then the matter was reported to the police. The statement of Raju Chaurasia Ex. PW2/A was recorded and when they reached to hospital, it was 1.45 am of 05.05.2008 and thereafter, the rukka/endorsement Ex. PW12/A was made on the statement Ex. PW-2/A and in the rukka, the facts incorporated in MLC Ex. PW4/A of the prosecutrix that there was a history of sexual assault yesterday was also incorporated. What happen, during the phase of recording the statement and then obtaining MLC, endorsement on the statement, the arm of clock crossed 12 O'clock midnight, it does not conclude that there was a case of 04.05.2008 projected as of 05.05.2008. With this clarification on the point raised, now other features are Contd.....
14discussed.
5.2 On consolidated reading of evidence of star witnesses, in the form of their oral testimony vis-a-vis the statement of Raju Chaurasia or statement under section 164 Cr. P. C of prosecutrix on medical evidence available and the scientific opinion received, charge of attempt to rape under section 376/511 IPC or wrongful confinement under section 342 IPC could not have been proved but charge under section 354 IPC of assault or criminal force to a woman with intend to outrage her modesty has been proved, for the following reasons:
(a)prosecutrix/PW-1 came at the house of accused voluntarily, out of her own volition and she was feeling inconvenient to watch television because of light reflection from the door, she herself had closed the door. The door was neither bolted by the prosecutrix nor by the accused;
(b)as per statement of PW-3, mother of prosecutrix, she was first apprised of episode that the prosecutrix has been teased by the accused by inserting finger in her vagina. The prosecutrix in her statement under section 164 Cr. P. C Ex. PW1/A states that the accused was wearing vest and short, the prosecutrix was wearing frock and a top; the accused made the prosecutrix to sit over him and then started rubbing/moving her on his lower part of the body. PW-4 Dr. Vimal Sharma had examined the prosecutrix medically and Dr. Karamjeet Kaur, Senior Resident (Gynealogy) examined the prosecutrix from the gynealogical point of view. The prosecutrix herself told Dr. Kamaljeet Kaur alleged the history of fondling of private parts. By consolidated reading Contd.....
15of statement of Smt. Sunita, the medical record prepared by Dr. Kamaljeet Kaur and facts narrated by the prosecutrix to the doctor, makes out the case of fondling of private parts by the accused and prosecutrix's statement under section 164 Cr. P. C was recorded at the initial stage of investigation, does not suggest the improved version given by her in the court, that accused tried/attempt to insert his penis in the private part of prosecutrix;
(c)the spirit of Section 354 IPC is based on the jurisprudence that when any act is done to (or in the presence of) a woman is clearly suggestive of sex, that act falls within the purview of Section 354 IPC. The essence of woman's modesty is her sex. The culpable intention of accused is a crux matter, the prosecutrix may be unable to appreciate the significance of the act, nevertheless the offender is punishable under this section. Further, knowledge the modesty is likely to be outraged is sufficient to constitute the offence without any deliberate intention of having such outrage alone for its object.
The accused not only married person but as per his statement, he is father of five children, the eldest is of 17 years old and the youngest is of 7 years;
(d)in Ramji Lal Vs. State 53 (1994) DLT 829, there were approximate similar circumstances of attempt to rape, victim was of 3½ years old but evidence on record was an attempt to fondle the vagina and the case was treated as proved under section 354 IPC, from converting attempt to rape under section 376/511 IPC;
(e)in Tara Dutt vs. State 2009 IV AD Delhi 780, that the case of fondling was considered an assault or criminal force to a woman with intend to outrage her modesty and it was also discussed that child sex abuse is extremely grave offence, which may be termed as digital rape but there is no piece of legislation to deal with such child sexual abuse like digital rape;
(f)the FSL result Ex. PW-10/A comprises undergarments of prosecutrix, her vaginal swabs but no semen was found on the undergarments or micro-slides derived from the Contd.....
16prosecutrix;
(g)the medical evidence in the form of statement of doctors or the record of MLC or the opinion in FSL result, do not establish the charge of attempt to rape;
(h)there is no evidence that the prosecutrix was wrongfully confined in the room, since she was already in the room of her own volition and prosecutrix tried to weep, she was left to go out from the open room. It does not establish that there was an intention to confine her wrongfully or the attempt to rape her, & (I)the statement of defence witnesses are contradictory to each other to the extent that DW-1 or DW-2 cannot be believed, as DW-1 says that he was sleeping from 1 pm to 5 pm, it means he does not know what happened since he was sleeping and on the other side DW-2 deposed that they were not sleeping but just lying on the ground, however, the specific averment of DW-2 that they were lying on the ground is a deliberate and conscious version as DW-2 was examined on another date subsequent to the statement of DW-1. Their statements do not disprove the case of the prosecution.
6. In view of conclusions drawn in paragraph 5, above and their comparison with the requirement of law referred in paragraph 4, above, the accused is acquitted of charges under section 376/511 IPC and under section 342 IPC. However, he is held guilty under section 354 IPC. (Announced in the open court INDER JEET SINGH on 26.02.2010) ADDITIONAL SESSION JUDGE-02 WEST DISTT TIS HAZARI COURT DELHI PD Contd.....