Delhi District Court
State vs . Pravin @ Babu Fir No. 432/08, Ps- N. F. C on 12 November, 2014
State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C
IN THE COURT OF MS. SHIVANI CHAUHAN: METROPOLITAN
MAGISTRATE-01 (MAHILA COURT): SAKET COURTS, NEW DELHI
State Vs.Pravin @ Babu
FIR NO.432/08
PS- N. F. Colony
UID NO.02403R0780372008
STATE
Versus.
Pravin @ Babu
JUDGMENT U/S 355 Cr. P.C.
a) Date of Complaint : 05.07.2008
b) Date of Institution of case : 04.09.2008
c) Date of judgment : 12.11.2014
d) Offence complained of : 354/377 IPC.
e) Name of accused/parentage of accused : Pravin @ Babu
S/o Sh. Sukhpal
R/o.623, Gali No.6
First Floor, Sun
Light Colony-II,
New Delhi
d) Plea of accused : Pleaded not guilty.
e) Final Order : Convicted
Pronounced in the open court on 12.11.2014 Page 1 of 17
State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C
JUDGEMENT
1. Accused Pravin @ Babu has been sent to face trial on the allegations that he assaulted the minor girl Isha aged about 5 years and put his penis in her mouth and put his finger into her private part and thereby committed offence punishable U/s 354 /377 IPC.
2. Formal Charge for the offence punishable under Section 354/377 IPC was framed against the accused Pravin @ Babu vide order dated 27.05.2009 passed by Ld. Predecessor court, to which he pleaded not guilty and claimed trial.
3. The matter was then listed for prosecution evidence. Prosecution has produced nine witnesses in support of the case, Ms. Mamta as PW-1 & PW-8, Isha/Victim as PW-2, Dinesh Kumar as PW-3, Awadesh Kumar as PW-4, ASI Yashpal as PW-5, Ct. Mahender Singh as PW-6, ASI Adrina as PW-7, and Dr. Sujata Pronounced in the open court on 12.11.2014 Page 2 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C Rawat as PW-9.
4. The incriminating evidence was put to accused and his statement was recorded under Section 313 CrPC r/w Under Section 281 Cr.P.C wherein he stated that he is innocent and the allegations leveled against him are false. He stated that when he came back from work to his sister's house, Mamta and her mother Rajwati were beating his sister over the issue of pulling of water from a borewell installed outside the premises in the street and a quarrel ensued. His sister had also filed a complaint against the instant complainant and others which was compromised in the police station. The accused stated that due to this enmity, he has been falsely implicated in this case by the complainant through her daughter.
5. The accused produced three witnesses in his defence. He got examined Smt. Kamal as DW1, Sh. Sukhpal as DW2, and Sh. Raju, DW3.
6. Final arguments heard on behalf of all the Pronounced in the open court on 12.11.2014 Page 3 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C parties. Carefully perused the record and the written arguments of both the parties.
Prosecution witnesses deposed as follows:
7. Victim was examined as PW-2 . She deposed before the court that she was standing at the door of her mausi's house when the accused lured her on the pretext of giving her money and she went with him. Thereafter, he put his private part in her mouth and also rolled his finger in her private parts. She ran and came to her mother and informed her about the incident. She categorically deposed in verbatim that Pravin @ Babu "mujhe building ki chat par le gaya tha. Usne apni pant uteri thi. Apni peshab ki cheez mere muh mein daal reha tha. Wo mere muh par peshab kar raha tha. Usne mere chehre par peshab kia. Maine us waqt jeans pehni hui thi, usne mere jeans bhi utar di. Usne apni ungli mere peshab karne ki jagah par andar daal di thi. Usne ungli andar daal kar bahar andar kari thi. Maine uske hath par kat lia tha or fir mein vahan se bhagi. Maine apni jeans ki pant khud se band ki thi. Is din se pehle 2-3 bar pehle bhi vo mujhe chat par le gaya tha. Pronounced in the open court on 12.11.2014 Page 4 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C Pehle din vo sirf mere upar let gaya tha. Dusre Din bhi mere upar leta tha. Teesre din, mere jeans utari thi or mere upar peshab bhi kia tha. Jab maine usko chat par kaat dia tha, tab usne mujhe thappar mara tha. Fir neeche aakar, maine apni mummy ko bata diya tha. Fir mummy ne Babu ke behan ko sab jakar bata diya tha. Fir usne kaha that ki mera bhai abhi nai aayega."
8. PW-3 Sh. Dinesh Kuamr identified with handwriting and signatures of Dr. Sukhdeep Singh on MLC Ex-PW3/A being acquainted with the same.
9. PW-4 Awadesh Kumar was posted as HC/DO at PS- N. F. C on 05.07.2008 and had recorded FIR No.432/08 Copy of which is Ex-PW4/A.
10. PW-5 ASI Yashpal, was HC at PS- N. F. C on that who got registered case FIR No.432/08 through Ct. Mahender Vide her endorsement Ex-PW5/A. Pronounced in the open court on 12.11.2014 Page 5 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C
11. PW-6 Mahender Singh deposed that on 05.07.2008, he was posted as Constable at PS- N. F. C and he took the rukka and got registered case FIR No.432/08. On 06.07.2008 accused Pravin was arrested from his house No.623. S. L. Colony-II, New Delhi vide arrest memo Ex-PW6/A and personal search memo vide Ex-PW6/B
12. PW-7 ASI Adrina who deposed that on 05.07.2008 she was posted at PS- N. F. C and investigation of the present case was assigned to her. She visited the house of the complainant at J-16, Sidharth basti alongwith Ct. Mahender and recorded supplementary statements of Mamta and Minor Victim. Victim was medically examined at AIIMS vide her application Ex-PW7/A and Ex- PW7/B. She prepared the site plan Ex-PW7/C at the instance of the complainant Mamta. She made thorough search of accused and on 06.07.2008, accused was arrested while Constable Mahender and complainant mamta was with her. The arrest memo of the accused already Ex-PW6/A and personal search memo Ex-PW6/B. Accused was medically examined and blood gauze sample was taken by the doctor. Same was deposited with MHC(M). She recorded statement Pronounced in the open court on 12.11.2014 Page 6 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C of Prosecution witnesses and on completion of investigation, prepared the charge sheet.
13. PW-1/PW8 Smt. Mamta deposed that in the year 2007, Babu took away her daughter namely Isha on the roof of her house. When she came back at about 12 Noon, she was told by her daughter that Babu fingered her private parts and he put his private part(penis) in her mouth on the roof of her house. Thereafter, Mamta went at the house of Babu and complained his sister Kamal, who assured her that accused will never be seen around that area. However, after 4-5 months, the accused again started visiting the area. Mamta again made a grievance before Kamal, who did not listen to her and rather sprinkled the kerosene oil on herself and tried to set herself ablaze. Kamal started fighting with Mamta and told her that accused would keep coming to that area and threatened that she will implicate Mamta and her family in a false case. The complainant, left with no other option, made a complaint to the police, which is Ex- PW1/A .
14. PW-9 Dr. Sujata Rawat who deposed that she has Pronounced in the open court on 12.11.2014 Page 7 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C seen the MLC Ex-PW9/A prepared and signed by Dr. Prerna, the then Sr. Resident, Gynecologist -III. She identified her handwriting and signatures of Dr. Prerna.
Defence witnesses deposed as as follows:
15. DW-1 Smt. Kamal deposed that on 05.07.2008, a quarrel took place between her, Mamta & Rajwati on taking water from handpump. Accused, who was residing alongwith her and also doing a private job, returned at her house from his office and rescued her. Mamta threatened her brother that she will make him learn a lesson. Mamta called the police on 100 Number. She gave the false case statement to the police and implicated her brother Pravin @ Babu in a false case. No such incident ever occurred as stated by the complainant in her testimony.
16. DW-2 Sukhpal who deposed that on 05.07.2008, he had received a phone call from his daughter Kamal, who told him that she was given beatings by some neighbours namely Pronounced in the open court on 12.11.2014 Page 8 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C Mamta and her mother. However, this witness did not have any personal knowledge about the facts of the case.
17. DW-3 Raju who deposed that in the year 2007-2008, he received a call from his wife. When, he reached home, he saw her wife lying unconscious on the floor. He asked his wife about the whereabouts of her brother-in-law Pravin, to which she informed that he has already been taken into custody by the police officials. His wife also told him that she has been beaten by Mamta. Then, he went to the house of Mamta and confronted her and then she threatened him that she would put him behind bars. Reasons for the decision:
18. Pravin @ Babu has been accused of commission offence U/s 377 IPC against victim Isha who was five years old on the date of the alleged incident.
19. In support of its case, prosecution has examined Pronounced in the open court on 12.11.2014 Page 9 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C the mother of the victim Smt. Mamta, who is also the complainant in the present case and the victim Isha.
20. The testimony of the mother Mamta was recorded twice by the Predecessor Court. She was examined in chief on 03.12.2011 as PW-1 and the cross examination was deferred due to absence of counsel for accused. She was recalled again on 09.10.2012 wherein her examination was recorded again before the Predecessor Court as PW-8. She was cross examined and discharged on the same day. The Counsel for accused did not object to the witness being examined in chief again on that day.
21. The prosecution was launched on the complaint dated 05.07.2008 made by Mamta. Mamta has deposed that her daughter was sexually assaulted by accused on the roof of the house around 5-6 months prior to the date of complaint. She deposed that her daughter confided about the incident with her when she returned back from her work around noon. She then confronted sister of the accused and told her about the incident and was assured by Kamal that the accused could not visit the vicinity again. Despite the Pronounced in the open court on 12.11.2014 Page 10 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C assurance, the accused again started visiting the vicinity of the victim and she was terrified to see the accused. Upon seeing this, Mamta again confronted Kamal who, at this stage refused to stop the accused from visiting the vicinity and threatened to implicate Mamta in a false case. Mamta, seeing no other way out, made a complaint to the police about the incident which occurred with her daughter Isha.
22. Mamta was duly cross examined by the opposite Counsel, who did not confront her about the original incident. Mamta was questioned about the incidence of fight with Kamal, but these incidents were subsequent to the date of incident in question. Thus, these are insufficient to impute any motive on part of the complainant to implicate the accused. The complainant was further given suggestion about the fight with Kamal in the month of January, 2012 and settlement between them and accused. However, the same is also irrelevant, being subsequent to the date of the incident.
23. Qua this witness, the accused, in his written arguments has also taken defence that on 03.12.2011, Mamta deposed that she became aware about the incident at about 12:00 Pronounced in the open court on 12.11.2014 Page 11 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C Noon whereas in her complaint dated 05.07.2008, the date of incident was recorded as 01:00 PM to 02:00 PM. Interestingly, the counsel has also given suggestions to the complainant and the complainant had admitted that she was illiterate and the complaint was not in her handwriting. She also admitted having signed a blank paper on which the complaint was written. In these circumstances, the accused has demolished his own defence about the time of the incident by giving contradictory suggestions as the complainant had neither written the complaint in her handwriting nor the same was signed by her subsequent to its being written.
24. Victim Isha has also categorically deposed before the Court that accused has taken her on the roof of the house on three occasions. On first two occasions, the accused only lie down on the complainant and on third occasion he had taken off her jeans and had ejaculated on her and had inserted his finger in her Vagina and had also put his Penis in her mouth. The same is duly corroborated by the statement of victim recorded U/s 164 CrPC, wherein she has categorically stated that Babu had inserted his "gulli" in her mouth twice. The victim deposed that she had bitten him then accused had Pronounced in the open court on 12.11.2014 Page 12 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C also slapped her. The victim then ran away and told her mother about the incident. She has also corroborated the testimony of her mother to the effect that after such narration, her mother visited the house of Kamal. No contrary suggestions was given to victim on these occurrences. During cross examination, the counsel for accused only put suggestions with respect to fight between Mamta and Kamal. In a question put by the Court, victim stated that she did not tell mother about the previous two incidents as the accused had lured her with promise to give some "cheez". In these circumstances, the testimony of the Victim Isha has remained unrebutted and un-controverted and is duly corroborated by her previous statement and is sufficient to convict the accused for commission of offence Under S.377 IPC and S. 354 IPC.
25. In his defence, the accused has examined his sister Kamal as DW-1, and her husband Raju as DW-3. The father of accused was examined as DW-2. All the defence witnesses are interested witnesses being the relatives of the accused.
26. DW-2 Sukhpal/Father of accused, has no personal Pronounced in the open court on 12.11.2014 Page 13 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C knowledge about the facts of the case. He was not present on the spot at the time of the alleged incidents. Accordingly, his testimony cannot be relied upon, being hearsay in nature.
27. DW-1 Kamal/Sister of accused has deposed that the accused has been falsely implicated as she had a fight with Mamta and Rajwati in respect of water and a settlement is also stated to have taken place. However, the witness failed to produce any prior complaint about any alleged incident. The other incident about fight between Pawan and Mamta is subsequent to the date of occurrence and is not relevant for the purposes of present case. During cross examination, Kamal admitted that she will not filed any complaint against Mamta regarding the incident of 05.07.2008. She also admitted that there was no prior fight or quarrel between them prior to 05.07.2008. Kamal is an interested witness, being the sister of the accused and her testimony, per se does not inspire much confidence without corroboration from independent sources especially in view of the fact there isn't any documentary evidence or testimony of any independent witness about the alleged incident of quarrel as stated by the defence.
Pronounced in the open court on 12.11.2014 Page 14 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C
28. DW-3 Raju was also not present on the spot at the time of the alleged incident. He merely deposed that he discovered his wife Kamal in an unconscious state when he arrived home on 05.07.2008 and was informed that accused Pravin had been taken into custody. Mere unconsciousness of Kamal is not sufficient to attribute the same to the alleged fight between her and the complainant. Especially, in view of the fact that there is no other evidence of the alleged quarrel between Kamal and Mamta. This incident of Kamal becoming unconscious may very well be attributed to the arrest of the accused, who is also her real brother. Otherwise also, Raju is an interested witness being the Jija of the accused. The deposition defence witnesses has insufficient to cast a shadow of doubt on the case of the prosecution.
29. Isha is the eye witness and the victim. She has through out deposed coherently and categorically deposed about the mannerism in which the accused Pravin had sexually assaulted her after luring her. There is nothing on record which would make her testimony unbelievable. The testimony of the victim was recorded by the Court in the presence of a Counselor and after recording its Pronounced in the open court on 12.11.2014 Page 15 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C satisfaction about the mental status and behaviour of the victim and after ascertaining that the victim was free from undue influence. The testimony of the victim is duly corroborated by her statement under S. 164 Cr.P.C. It is a settled proposition of law that the conviction can be based on the sole testimony of the victim, if the same is found to be trustworthy. The fact that the delay of 5-6 months between the date of incident and the complaint has been duly explained by the prosecution. Mamta had deposed that she did not make any complaint as Kamal had assured her that Pravin would not visit the vicinity of the complainant. She made the complaint when Pravin again started frequenting the vicinity to visit the house of his sister Kamal and Kamal refused to stop Pravin from doing so. Thus, the delay in making the complaint itself is no ground to doubt the case of prosecution which has already been duly proved through the unrebutted testimony of Mamta and Isha. Thus, it is held that the prosecution has been successful in proving that the accused Pravin @ Babu had lured the Victim Isha to the roof of the house and had disrobed her by taking off her jeans. It has been proved that the accused Pravin had put his penis in the mouth of the victim and ejaculated on her face. The accused Pravin had also repeatedly Pronounced in the open court on 12.11.2014 Page 16 of 17 State Vs. Pravin @ Babu FIR No. 432/08, PS- N. F. C inserted his finger into the vagina of the victim. After commission of the crime, the accused lured the victim with money and verbally restrained the victim from disclosing the incident to anyone. In these circumstances, the accused Pravin @ Babu is found guilty for commission of offences U/S. 377 IPC and U/S.354 IPC and is convicted accordingly.
Order on sentence to be pronounced separately. Copy of the judgment be given free of cost to the Convict.
Announced in the open court today (SHIVANI CHAUHAN)
on 12.11.2014 M.M. /Mahila Court/SED
Saket /ND 12.11.2014
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