Delhi District Court
State vs . Salen Rai on 5 August, 2010
IN THE COURT OF SHR. S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
SESSIONS CASE NO. 54/08
State Vs. Salen Rai
S/o Kherkhu Rai
R/o House no. 286 Shahpur Jat
C/o Kishan Lal Singh, New Delhi
FIR No. : 89/08
Police Station : Hauz Khas
Under Section : 376/511 IPC
Date of Institution : 05.06.2008
Date when arguments : 04.08.2010
were heard
Date of decision : 04.08.2010
JUDGMENT
The SHO of police station Hauz Khas has challaned the accused to face trial for the offence under Section 376/511 IPC. After supplying copies of documents and compliance of provisions of under Section 207 Cr.P.C case is committed by learned Metropolitan Magistrate to the Court of Sessions for trial of accused. Keeping in view the provisions of Section 228 (A) IPC and the dictum of the Hon'ble Supreme Court in State of Karnataka Vs. Puttraja (2004 (1) SC No. 54/08 Page1/13 SCC 475) and Om Prakash Vs. State of Uttar Pradesh 2006 Cri.L.J. 2913 the name of prosecutrix is being not given in the judgment.
BRIEF FACTS The prosecution case, in brief, is that on 21.02.2008 mother of the prosecutrix gave statement to the ASI Mohan Lal that her husband used to do the work of embroidery. Near their house in house no. 286, her parents live as a tenant. In other room of the said house, she used to leave her daughter (prosecuterix) aged 5 years and boy Shubham with her mother then she used to go to the houses of locality to do kitchen work. On 20.02.08 when she returned back to her home she saw her daughter frightened and mum who told her that accused Salem Rai who is husband of her mother's sister and maternal grand father of her daughter has fondled with the private parts of her daughter. On being asked she told that accused Salem Rai has inserted his finger in her private parts. When her husband came back at 8:30 PM she informed the incident to him. Thereafter matter was reported to the police, Investigating officer recorded the statements of witnesses, he prepared the site plan. The prosecutrix was medically examined by the doctors. MLC of the prosecuterix was prepared. Disclosure statement of accused was also got recorded . Statement under Section 164 Cr.P.C of the prosecuterix was got recorded. The accused was arrested. On completion of investigation, accused was arrested and case was SC No. 54/08 Page2/13 committed for facing trial by accused before this court, as referred before.
CHARGE AND PLEA OF ACCUSED Prima facie case for the offences under Section 376 IPC read with 511 Cr. P.C was found to be made out against the accused and the charge under Section 376/511 IPC was framed accordingly, by the court on 16.09.2008, to which the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
In support of its case the prosecution has examined fourteen witnesses in all.
PW1 is Dr. S M Rehman Sr. Resident, AIIMS Hospital, New Delhi, who conducted medical examination of the prosecuterix and proved the MLC Ex.PW1/A. He stated that there was abrasion over external genitalia. There was hymenal tear at 2'O clock. Slight discharge per vagina was seen. Undergarments of prosecuterix were sealed. One smear made with vaginal discharge was made sealed and handed over to police.
PW2 is Head Constable Yatender Malik who proved DD No. 44A whose cope is Ex. PW 2/A. PW3 is Head Constable Hukam Singh who stated that he recorded the FIR and brought the original FIR, Computer copy of the SC No. 54/08 Page3/13 FIR is proved by him as Ex. PW 3/A. His endorsement on the rukka is Ex. PW3/B. After registration of FIR the copy of FIR and original rukka was handed over to ASI Mohan Lal.
PW 4 is smt Jhuma Rong was stated that she was working as a domestic helper. Accused Salem Rai is her mausa. He used to residing in her neighborhood in the house where her parents were reside. When she used to go to her work place, he used to leave her daughter in the house of her mother. On 20.02.2008 she went to her work place after leaving her daughter in the house of her mother. When she returned back at about 11:30 am her daughter was in a frightened state. When she asked her daughter she told that she went to play in the house of the accused Salen Rai. She informed that Salem Rai i.e. her Nana had fondled with her private parts by his fingers. She told these facts to her husband also. Thereafter, they brought their daughter to the police station where her statement was recorded and the same is Ex. PW 4/A. PW5 Smt. Shobha stated that her daughter Jhumma Rong used to reside in her neighborhood with her husband and her daughter aged 5 years. Whenever Jhumma used to go to her work place, she used to leave her daughter with her. Accused Salem Rai present in the court is the husband of her sister. She was residing in her house. She and her husband were also going to work place after leaving the child alone.
On 20.02.2008 when at about 8 Pm she came to her house her daughter SC No. 54/08 Page4/13 informed that accused Salem Rai has made indecent act with her daughter (prosecutrix) by calling prosecutrix in her room. Next day, in the morning they reported the matter to the police.
PW 6 Suraj Rongh has stated that on 20.02.2008 at about 8 PM he came back from his work place. His wife Jhumma Rongh informed that accused Salen Rai who is her maussa and was residing in his neighborhood in parental house of his wife has committed indencent act by fondling with her private parts. He alongwith his wife and daughter Sakhsi came to the police station and Lodged this FIR after that her daughter was medically examined and accused was arrested upon her identification.
PW7 is Brahm Prakash who stated that on 20.02.2008 he was posted at police station Hauz khas. He joined the investigation of this case with ASI Mohan Lal. Thereafter, he alogwith lady constable Neelam and the parents of prosecutrix alongwith prosecutrix went to AIIMS for medical examination of prosecutrix where she was medically examined and after her medical examination, doctor handed over two sealed parcels sealed with seal of hospital alogwith the sample seal. These items were handed over by him to the IO which were seized by memo Exhibit PW7/A. Accused Salen Rai then present in the court was arrested from his house upon identification by the public witness vide memo Exhibit PW7/B. His personal search was conducted vide memo Ex. PW 7/C who got medically examined after SC No. 54/08 Page5/13 his examination. Doctor handed over his underwear and blood sample in sealed parcels sealed with the seal of hospital alongwith the sample seal. These two items were seized vide memo Exhibit PW7/C. PW8 is prosecuterix aged 6 years. To know whether she is able to put the questions put to her and give rational answers some questions were asked from her and from the answers given by the victim court was satisfied that she is able to understand the questions put to her and give rational answers. However, she did not understand nature and obligation of oath so her statement was recorded without oath on 22.01.2010 and she stated that accused Salen Rai then present in the court is her grand father (Nana). Accused inserted the finger in her private parts. Accused Salen Rai also inserted his private part in her private part. She told these facts to her mother.
PW9 is Dr. Monika, Sr. Resident, Department of Radiology, AIIMS who proved the report Ex.PW9/A given by Dr. Zafar who had left the services of the hospital and his present address is not available.
PW10 is Lady Ct. Neelam, she stated that on 21.02.2008 she was on duty at control room, South District. On instructions of the I.O she went to AIIMS with victim prosecutrix and her mother was with her.
PW11 is ASI Mohan Lal who investigated the matter till registration of FIR on 20.02.2008 he was posted at Police Station Hauz Khas, DD No. 44A Ex.PW2/A was assigned to him. Smt. Jhumma SC No. 54/08 Page6/13 Rong and her daughter (prosecuterix) came to Police Station. He recorded the statement of Jhumma Rong Ex.PW4/A on which he made the endorsement Ex.PW.11/A and prepared the rukka on the basis of this rukka case was registered vide FIR Ex.PW 3/A. He visited the spot i.e. House No. 286, Shahpur Jat, and prepared the site plan Ex.PW. 11/B. Victim girl was got medically examined. After the medical examination he seized one slide and one underwear of the victim alongwith sample seal. All sealed with the seal of hospital vide memo Ex.PW 7/A. Accused Salen Rai was arrested vide arrest memo Ex.PW 7/B. After his personal search was conducted vide Ex.PW 7/C, he was got medically examined. Doctor gave him one underwear, blood sample and sample seal. All with the seal of hospital. These items were seized vide memo Ex.PW 7/D. The disclosure statement of accused is Ex.PW.7/E. The age determination of victim girl was done. The report of the hospital is Ex.PW 9/A and as per the report her age was 4.8 to 5.5 years.
PW12 is Dr. Sudipta Ranjan Singh Sr. Resident AIIMS she proved the MLC MLC Ex.PW 12/A, which is in handwriting of Dr. Sukhdeep Singh, as she had worked with said doctor.
PW13 Woman SI Kala Joshi who stated that she received the investigating of this case after registration of FIR. She recorded the statement of the victim and her parents. She also got statement of prosecuterix recorded under section 164 Cr.P.C vide her application SC No. 54/08 Page7/13 Ex.PW 13/A and collected copy vide application is Ex. PW 13/B. Copy of the statement collected by her upon is Ex.PW13/C. She also collected the bone age X ray report. She also sent case property to FSL and later on collected the FSL reports which are Ex.PW.13/D and Ex.PW 13/E. After collecting all the relevant documents and recording statements of PWs charge sheet was filed through SHO by her.
PW14 is Sanjay Bansal, ACMM.02 North Tis Hazari Court Delhi, he stated that on 22.02.08 he was posted as Metropolitan Magistrate at Patiala House Court. On that day Ms. Ravinder Bedi, Ld. Metropolitan Magistrate Patiala house Court marked to him an application moved by Assistant Sub Inspector Kala Joshi for recording statement of prosecuterix aged about five years daughter of Suraj. He recorded the statement on the same day itself. He had recorded the proceedings in his own handwriting. The record of proceedings of statement under Section 164 Cr.P.C is proved by him as Ex. PW 14/A (Carbon Copy is already Ex.PW13/C). The application of the investigating officer for recording statement is Ex. PW14/B. The application of the investigating officer for supplying the copy of the proceedings is Ex. PW 14/C. He had also annexed certificate in the proceedings and same is Ex. PW 14/D which bears his signature at point A. ARGUMENTS AND FINDINGS SC No. 54/08 Page8/13 It is argued by the learned Additional Public Prosecutor for the State that the prosecutrix, her parents and her grandparents have supported the prosecution case so prosecution has proved its case against the accused beyond reasonable doubt and he is liable to be convicted for the offence under section 376/511 IPC.
The learned counsel for the accused, on the other hand, has argued that in the statement under section 164 Cr.P.C no allegation of rape is made by the prosecutrix. The prosecutrix in the statement before the court had made allegation of rape against accused so she should not be believed. It is argued that there is delay in lodging the FIR and the matter was reported after 12 hours of the alleged incident. It is also argued that the police tutored the prosecutrix to give statement against accused under section 164 CrPC before learned Metropolitan Magistrate, this inference can be drawn as neither the mother of prosecutrix nor her father accompanied her. It is argued that the accused is entitled to benefit of doubt and acquittal and in the alternative he can at the most be convicted under section 354 IPC.
I have heard the learned Additional Public Prosecutor for the State, learned counsel for the accused and have gone through the record of the case and relevant provisions of law.
The important aspect of the matter is that the prosecutrix is a child about six years old and she was only about five years old at the time of incident. She has given in her statement under section 164 SC No. 54/08 Page9/13 Cr.P.C before the learned Metropolitan Magistrate which is proved on record as Ex.PW 14/A. From the statement of prosecutrix it can be inferred that in her language of a child she has stated in her statement under section 164 Cr.P.C that the accused inserted his finger in her private part. The point to be noted is that she has not stated that accused inserted or tried to insert his penis into her vagina. The insertion of finger into private part of women or the female child cannot be said to be commission of rape or attempt to commit rape. For these offences the penetration of the male organ in the vulva of the vagina of the prosecutrix is a condition sine qua non. For attempt to commit rape there should be overt act on the part of accused in this direction, which somehow has failed. The statement under section 164 CrPC of the prosecutrix only speaks about touching of the penis by accused with private part of the prosecutrix. She has not stated that accused tried to insert his penis into her private part. Therefore, the improvement made by the prosecutrix in her statement before the court as PW8 by stating that beside inserting his finger accused also inserted his private part in her private part should not be believed since she is a child witness and her testimony should be read cautiously.
Normally speaking, the hearsay evidence is inadmissible in evidence, as a result, it cannot be produced in the court proceedings, except as provided in the specific exceptions like dying declaration, admissions, doctrine of res gestae etc. SC No. 54/08 Page10/13 Section 6 of the Indian Evidence Act deals with the relevancy of facts forming part of the same transaction. It deals with the rule of res gestae. The facts which, though not in issue, are so connected with the fact in issue as to form part of the same transaction, are relevant, according to the said Section 6, whether they occurred at the same time and place or at different times and places. The four illustrations are also given in this Section 6 to explain the principle. The following two case law based fact situation would make the point clear.
Where the eye-witness spontaneous8ly stated, that the accused killed the deceased, to other witnesses, who reached the place of occurrence immediately after the incident, because they were working in the near vicinity of the place of occurrence, the statement of such other witnesses would be relevant under s.6, as following parts of the res gestae and therefore, admissible for proving the incident. {See Om Singh V. State of Rajasthan 1997 CrLJ 2419 (Raj)} In another case, the accused assaulted the deceased, and made a statement as to the said fact to the brother of the deceased within half- an-hour of the act. The time gap between the act and the statement being not very long, such evidence was found admissible under Section s.6 Indian Evidence Act. {See Venkatesan V. State 1997 CrLJ 3854 (Mad)}.
In the fact situation of the present case the prosucuterix soon after the incident has informed her mother the complainant PW4 SC No. 54/08 Page11/13 Jhumma Rani that accused had fondled with her private parts by his fingers. The prosecuterix has not stated about the commission of rape or attempt of rape by accused. PW 5 Shobha has also stated that her daughter prosecuterix has informed her that accused had made indecent act with her and subsequently stated that accused committed rape on the prosecuterix. PW 6 Suraj Rong the other public witness who is father of the prosecuterix has also stated that he was informed by her wife that accused has committed indecent act by fondling with her private parts. Therefore, in the light of principle of res gestae and Section 6 of Indian Evidence Act as referred before, it would not be appropriate to rely upon the statement of prosecuterix that accused inserted his private part into her private part as the statement of the prosecuterix looks exaggerated. The medical evidence shows the bruises on the private part of the prosecuterix which also can be possible due to insertion of finger of accused in her private parts. The fact that semen was found on the underwear of the accused also does not necessarily show that accused has committed rape or attempted to commit rape. There is no evidence that on the undergarments of the prosecuterix the semen was found. Where the allegations were that while the victim aged about 4 years went to shop of the accused to purchase a sweet pudiya (small packet), he called her inside and took her in his lap and did something as a result of which her dress was wet, but there was no material showing that any attempt was made by the SC No. 54/08 Page12/13 accused to commit rape or intercourse. There was no material that the accused had undressed himself and any attempt was made by him to undressed the victim, hence the conviction of the accused under section 376/511 was altered to one under section 354. {See Trinath Bhoi V State of Orissa (2007) Cr. L. J 3227 (Ori).} In view of the above discussion I hold prosecution has been able to prove its case against the accused under section 354 IPC for out ranging the modesty of the prosecuterix but has failed to prove the charge under section 376/511 IPC against the accused. Therefore, accused charged for the offence under section 376/511 IPC is liable to be convicted under section 354 IPC.
RESULT OF THE CASE In view of the above discussion I hold that the accused through charged under Section 376/511 IPC is convicted under Section 354 IPC. Let he be heard separately on the question of sentence. The judgment be sent to the server (www.delhidistrictcourts.nic.in).
Announced in the open
court on 04.08.2010 (S.K. Sarvaria)
Add. Sessions judge/01/South
Patiala House Courts New Delhi
SC No. 54/08 Page13/13
IN THE COURT OF SHR. S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
SESSIONS CASE NO. 54/08
State Vs. Salen Rai
S/o Kherkhu Rai
R/o House no. 286 Shahpur Jat
C/o Kishan Lal Singh, New Delhi
FIR No. : 89/08
Police Station : Hauz Khas
Under Section : 376/511 IPC
Date of Institution : 05.06.2008
Date of judgment : 04.08.2010
Date of order on sentence : 05.08.2010
ORDER ON POINT OF SENTENCE
Vide my judgment dated 04.08.10, the accused was convicted under Section 354 IPC.
Learned Additional Public Prosecutor has argued for deterrent punishment to the convict/accused in view of the serious offence proved against him.
The ld. counsel for convict/accused has requested for leniency and has argued that convict/accused is the sole bread earner of his family and has clean antecedents, so lenient view may be taken against him.
SC No. 54/08 Page14/13I have heard Ld. Addl. PP for the State and Ld. Counsel for the accused and have gone through the record of the case and relevant provisions of law.
Keeping in view the above submissions made by ld Counsel for convict and Ld. Addl. PP and overall facts and circumstances of case, I sentence accused under Section 354 IPC to undergo Rigorous Imprisonment for 2 years.
The period of detention already undergone by the convict during investigation and trial of this case shall be set off against the term of imprisonment imposed against convict by this order, as provided u/s 428 Cr.P.C.
The order be sent to server (www.delhidistrictcourts.nic.in). Copy of judgment and copy of order on sentence be supplied to the convict/accused free of cost. File be consigned to record room.
Announced in the open court
on 05/08/2010 (S.K.Sarvaria)
Additional Sessions Judge-01/South
Patiala House Courts/New Delhi
SC No. 54/08 Page15/13