Delhi District Court
State vs . Ajay on 18 October, 2010
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(NORTH-WEST)-04, ROHINI : DELHI
(Sessions Case No. 45/08)
Unique ID case No. 02404R0094132008
State Vs. Ajay
FIR No. : 67/08
U/s : 376 IPC
P.S. : Jahangir Puri
State Vs. Ajay
S/o Sh. Ashok
R/o Village-Rajpura, P.S Incholi,
District Meerut, (U.P)
Also at
Gali No.1, Gali Tandoorwali,
Shradhanand Colony,
Bhalswa Dairy, Delhi.
Date of institution of case-05.04.2008
Date on which, judgment have been reserved-29.09.2010
Date of pronouncement of judgment-13.10.2010
S. C No. 45/08 1/14
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JUDGMENT:
In the present case on 06.2.2008, on receipt of DD No.22-A at PS Jahangir Puri, ASI Bijender Singh alongwith HC Umed Singh reached at the spot i.e. Sulabh Shouchalya, C-block, Jahangir Puri, Delhi where they saw the gathering of public persons and one person was apprehended by a lady Anjupal, who disclosed his name as Ajay. Anjupal told the ASI that Ajay had committed rape upon her daughter i.e. prosecutrix aged about six years on 04.2.2008 and thereafter ASI took the accused Ajay as well as prosecutrix and her parents to Babu Jagjiwan Ram Memorial hospital where accused and prosecutrix were got medically examined. In the meantime, W/SI Sushila Rana also reached BJRM hospital vide DD No.23-A and there she met the above named police officials, accused, prosecutrix and her parents. Thereafter, W/SI Sushila Rana recorded the statement of Anjupal, mother of prosecutrix, wherein she stated that her daughter i.e. prosecutrix was studying in class-1st in Nagar Nigam Primary School, C-block and on 04.2.2008 she went to her school at about 8:00 A.M in the morning and came back crying at about 10:30 A.M and when she inquired, prosecutrix told her that she had gone to Sulabh Shouchalya to ease herself and a boy was already sitting there and he caught hold of her and removed her underwear and did 'Galat Kaam' with her. She further informed that when she raised alarm, that boy threatened to kill her. Complainant-Anjupal further stated that thereafter she alongwith prosecutrix went to the Sulabh Shouchalya but none was not found there, however she did not lodge any report on that day due to fear of shame in the society. She further stated that on that day i.e. 06.2.2008, she had gone to Sulabh Shouchalya alongwith prosecutrix where on seeing that boy, her daughter i.e. prosecutrix started crying and told her that he was the same boy who committed 'Galat Kaam' with her on 04.2.2008. Thereafter, she raised alarm and that boy Ajay was caught hold of by her with the help of public persons and she also stated that legal action may be taken against that boy.
S. C No. 45/08 2/14 3On the basis of the aforesaid statement (Ex. PW-4/A) of the complainant, a rukka (Ex. PW-16/A) was prepared by the IO W/SI Sushila Rana and the same was sent to PS through Ct. Umed Singh, which resulted in the registration of the present case vide FIR No. 67/08 at PS Jahangir Puri and the investigation of the case was entrusted to IO-W/SI Sushila Rana.
During the course of the investigation, IO prepared the site plan and arrested accused Ajay and got him medically examined. Prosecutrix was also got medically examined at Babu Jagjiwan Ram Memorial hospital and thereafter the statement of prosecutrix u/s- 164 Cr. PC was got recorded and after completion of the investigation, charge sheet was prepared and was filed before the court of concerned Ld. MM.
2. After committal, the arguments on the point of charge were heard and on the basis of the material on record, charge for committing the offence punishable u/s-376/511 IPC was framed against accused Ajay by the Ld. Predecessor of this court, to which the said accused pleaded not guilty and claimed trial.
It is pertinent to mention here that during her deposition in the court, prosecutrix (PW-2) made specific averments of rape committed upon her by the accused Ajay and accordingly, vide detailed order dated 3.9.2009, an amended charge u/s 376 IPC was framed against accused Ajay, to which the said accused pleaded not guilty and claimed trial.
3. In support of its case, prosecution has examined 16 witnesses i.e PW-1 to PW-16.
PW-1 Dr. Pooja Baranwal has medically examined the prosecutrix on 06.2.2008 and she has proved her report in this regard as as Ex. PW-1/A. S. C No. 45/08 3/14 4 PW-2 is the prosecutrix and prosecution is mainly relying upon her testimony to prove its case on record.
PW-3 Yatinder Pal @ Pappu is the father of the prosecutrix and he deposed that on 04.2.2008, he left his house at about 8:00 A.M for his job and when he returned in the evening, he came to know from his wife that his daughter i.e prosecutrix aged about 6 years was raped by accused Ajay when she went for toilet. He further deposed that on that day, he did not make any complaint to the police and subsequently after consultation with his relatives, they made a complaint to the police and accused Ajay was arrested at the pointing out of his daughter and she was medically examined and IO recorded her statement also. PW-3 also deposed that accused was arrested vide memo Ex. PW-3/A and his personal search was conducted vide Ex. PW-3/B and police handed over his daughter to him vide memo Ex. PW-3/C. PW-4 Anjupal @ Shabana is the mother of prosecutrix and prosecution is also relying upon her testimony to prove its case on record.
PW-5 Dr. Shipra Rampal has examined the X-ray plates of prosecutrix on 07.2.2008 and opined that estimated bone age of prosecutrix was between 5-6 years on that day. She has also proved her report in this regard as Ex. PW-5/A and aforesaid X-ray plates as Ex. PW-5/B (colly.).
PW-6 HC Pawan Kumar Bhagat was working as DO at PS Jahangir Puri on 06.2.2008 and he has proved the true copy of DD No. 23-A recorded on that day as Ex. PW-6/A. PW-6 also recorded the FIR No.67/08 of this case and he has proved S. C No. 45/08 4/14 5 the computer generated copy of the same as Ex. PW-6/B and his endorsement on the rukka as Ex. PW-6/C. PW-7 Aasma deposed that Anjupal was her tenant in the year 2008 and she told her about the incident of 4.2.2008 with her daughter and thereafter she alongwith Anjupal reached at Sulabh Shouchalya where on the identification of prosecutrix, one person was apprehended by Anjupal and police also reached at the spot i.e Sulabh Shouchalaya and she came to know that the said person namely Ajay had committed rape upon the prosecutrix, aged 6 years on 04.2.2008.
PW-8 HC Umed Singh reached at the spot i.e. C-block, Sulabh Shouchalaya alongwith ASI Vijender Singh on 6.2.2008 where they saw gathering of many public persons and Anjupal, mother of the prosecutrix met them and produced Ajay and told that the said accused had committed rape upon the prosecutrix on 04.2.2008 at Sulabh Shouchalaya. Thereafter, ASI Vijender Singh interrogated the accused and he & prosecutrix were sent Babu Jagjiwan Ram Memorial hospital for medical examination. He further deposed that after medical examination of accused Ajay, doctor handed over two pullandas with the seal of MS BJRM hospital, blood sample and sample seal and same were taken into possession by the IO vide memo Ex. PW-8/A. PW-8 deposed that after medical examination of prosecutrix, IO prepared rukka and handed over to him for the registration of the case and accordingly, he went to PS Jahangir Puri, got registered the FIR No. 67/08 and came back at the spot alongwith original rukka and copy of FIR and handed over the same to the IO. He further deposed that thereafter accused pointed out the place of occurrence vide memo Ex. PW-8/B and his disclosure statement, Ex. PW-8/C was recorded. PW-8 has also proved the arrest memo and personal search of accused as Ex. PW-3/A and Ex. PW-3/B respectively.
S. C No. 45/08 5/14 6PW-9 Dr. Neeraj Choudhary has proved the MLC of accused Ajay prepared by Dr. Kamal as Ex. PW-9/A and deposed that as per MLC there was nothing to suggest that the patient i.e. accused was incapable of performing sexual intercourse.
PW-10 W/Ct. Priya deposed that on 6.2.2008 she was directed to reach at Babu Jagjiwan Ram Memorial hospital by the IO where she met ASI Vijender, HC Umed Singh, prosecutrix and her parents and in the meanwhile, W/SI Sushila Rana also reached there and interrogated the accused and victim. She further deposed that prosecutrix was medically examined and after her medical examination, one sealed pullanda and sample seal were handed over to her by the doctor and same were seized vide memo Ex. PW-10/A. PW-11 Ct. Dharmendra Singh took the exhibits of this case to FSL, Rohini on 27.2.2008 vide RC No. 25/21/08.
PW-12 ASI Vijender Singh deposed that he alongwith HC Umed Singh reached at the spot i.e. Sulabh Shouchalaya, C-block, Jahangir Puri on 6.2.2008 on receipt of DD No. 23-A and his testimony regarding their meeting accused and prosecutrix and her parents, medical examination of accused and prosecutrix at Babu Jagjiwan Ram Memorial hospital, recording of statement of complainant, registration of the present case and arrest of accused is almost on the similar lines as that of PW-8 HC Umed Singh. In addition to that, PW-12 ASI Vijender Singh deposed that after medical examination of accused and prosecutrix, HC Umed Singh and W/Ct. Priya handed over to him the exhibits of this case which were taken into possession vide memo Ex. PW-8/A and Ex. PW-10/A respectively.
S. C No. 45/08 6/14 7PW-13 Dr. Neeraj Choudhary has proved the MLC No. 19935 of prosecutrix and MLC No. 009 of accused Ajay prepared by Dr. Alam as Ex. PW-1/A and Ex. PW-9/A respectively.
PW- 14 Ms. Smita Garg, Ld. M.M has recorded the statement of prosecutrix u/s 164 Cr. P.C and she has proved the said statement as Ex. PW-14/A and her certificate regarding the correctness of the proceedings as Ex. PW-14/D. PW- 15 HC Balbir Singh deposed that he was working as MHC (M) at PS Jahangir Puri on 6.2.2008 and on that day, the exhibits of this case were deposited in the Malkhana by the IO and he made entries in this regard in register no. 19 and he has proved the copy of the same as Ex. PW-15/A. He has also proved the RC No. 25/21/08 vide which the exhibits were sent to the FSL through Ct. Dharmendra as Ex. PW-15/B. PW- 16 W/SI Sushila Rana is the IO of this case and initial part of her testimony regarding the medical examination of prosecutrix and accused at Babu Jagjiwan Ram Memorial hospital, recording the statement of complainant, registration of the present case, arrest of accused is almost on the similar lines as that of PW-8 HC Umed Singh and PW-12 ASI Vijender Singh. In addition to that, PW-16 deposed that on the pointing out of prosecutrix she prepared the site plan Ex. PW-16/B. She further deposed that she moved an application (Ex. PW-16/C) for recording of the statement u/s 164 Cr.PC and the same was Ex. PW-16/C and accordingly the statement of prosecutrix (Ex. PW-14/B) was recorded and she received the copy of the same vide her application (Ex. PW-16/D). PW-16 deposed that bone age X-ray of prosecutrix was conducted at Babu Jagjiwan Ram Memorial hospital and she obtained the result of the same which was Ex. PW-5/A. She further S. C No. 45/08 7/14 8 deposed that after completion of the investigation, challan was prepared and presented in the court. PW-16 also deposed that during the course of trial, FSL result was received and same was Ex. PW-16/E and the serological report was Ex. PW-16/F.
4. After recording of prosecution evidence, statement of accused u/s 313 Cr.P.C was recorded, wherein all the incriminating evidence was put to the accused which he denied as incorrect. Accused Ajay claimed to be innocent and stated that he does not want to lead any any evidence in his defence.
5. I have heard arguments put forward by Ld. Addl. PP for State and Ld. Defence Counsel for the accused and have carefully gone through the record of the case.
6. It has been submitted by Ld. Addl. PP that in view of the evidence adduced on record, in particular the testimony of PW-1 (prosecutrix ) and her parents i.e PW-3 & PW-4, the prosecution has been successful in proving on record the guilt of the accused beyond the reasonable doubt. It is further submitted that prosecution has been successful in proving on record that on the day of the incident, accused- Ajay committed rape upon the prosecutrix aged about 6 years against her will. Ld. Addl. PP also submitted that in view of the evidence and material brought on record by the prosecution, the guilt of the accused have been proved beyond the reasonable doubts and he prayed that accused-Ajay may be convicted of the charged offence.
On the other hand, it has been submitted by the ld. Defence counsel that the prosecution has miserably failed to prove the guilt of the accused beyond the reasonable doubts. It is further submitted that from the material on record, no offence S. C No. 45/08 8/14 9 u/s- 376 IPC is made out against the accused as the prosecutrix has not made any specific allegation regarding rape against the accused. It is also submitted that the factum of rape is also nullified by the fact that no external injury was found on the private parts of the prosecutrix or the accused. Ld. Defence counsel submitted that the evidence brought on record by the prosecution is self contradictory and there were various loopholes in the testimonies of various prosecution witnesses, which entitles the accused to the benefit of doubt. Ld. Defence counsel also submitted that the prosecution has miserably failed to prove the guilt of the accused on record, beyond the reasonable doubts and he pray that the accused may be acquitted of the charged offence.
7. I have carefully considered the submissions made by Ld. Addl. PP for state and Ld. defence counsel for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced on behalf of the prosecution in support of its case.
8. In the present case, the accused-Ajay have been charged for committing the offence punishable u/s- 376 IPC.
In brief, the case of the prosecution is that on 04.2.2008 at about 10:00 A.M at C-block Sulabh Shouchalaya (toilet) near police booth, Jahangir Puri, Delhi within the jurisdiction of P.S Jahangir Puri, accused Ajay committed rape upon the prosecutrix aged about 6 years, against her will.
In order to prove its case on record, the prosecution is mainly relying upon the testimony of PW-1 ( prosecutrix ) and her mother i.e PW-4 Anuj Pal @ Shabana.
In her examination -in- chief, PW-2 ( prosecutrix ) deposed that she does S. C No. 45/08 9/14 10 not know the date and month, however on that day, she had gone to her school from where she had gone for toilet situated at some distance from her school and when she went inside the toilet with water, she found accused who had hid himself in that toilet. She further deposed that accused removed her clothes including her Kachchi and he also removed his underwear and he put his urinal organ in her urinal organ and thereafter he washed her private part and his private part with water from a tap installed in the toilet and accused directed her not to disclose the incident to anybody including her mother otherwise he would kill her. PW-2 (prosecutrix ) deposed thereafter, accused left the spot and she went to her house from the toilet after the incident and told that fact to her mother but accused was not found there at that time and on the next day when she was going to her school with her mother, she saw accused standing at the road and she told her mother saying that accused was the same person, who had committed 'Galat Kaam' with her and after sometime police reached at the spot and apprehended the accused at her instance. She further deposed that thereafter, police took her to a government hospital in Jahangir Puri where she was medically examined and her statement was also recorded by the Ld. M.M. In her examination-in- chief, PW- 4 Anjupal @ Shabana ( mother of the prosecutrix ) deposed that at the time of incident prosecutrix was studying in Nagar Nigam Primary School, C-block in class-1st and on 04.2.2008 her daughter went to her school at about 8:00 A.M in the morning and at about 10:30 A.M., she returned from her school and told her that from school she went to public toilet where one boy was already present and she entered in the public toilet and the said boy removed her underwear and inserted his penis into her vagina and when she cried that boy threatened to kill her and after sometime that boy left her in the toilet. PW-4 further deposed that thereafter she immediately went to the public toilet with prosecutrix but that boy was not present there and in the evening when her husband returned she narrated entire incident to him. PW-4 deposed that on the next day, accused Ajay was S. C No. 45/08 10/14 11 apprehended and he was identified by her daughter and they also made telephonic call to the police and police reached there and recorded her statement vide Ex. PW-4/A and her daughter aged about six years was taken to Babu Jagjiwan Ram Memorial hospital for her medico-legal examination. She further deposed that accused was arrested vide memo Ex. PW-3/A and she correctly identified the accused Ajay in the court.
9. In the present case, in view of the above testimonies of PW-1 (prosecutrix) and her mother (PW-4), the prosecution has been successful in proving on record that accused Ajay assaulted the prosecutrix on the day of the incident and now the question arises whether the act of the accused as narrated by the prosecutrix tentamounts to rape or attempt to rape.
It has been argued on behalf of the prosecution that in view of the material on record, in particular the testimonies of the prosecutrix and her parents, the accused is liable to be convicted u/s- 376 IPC, whereas on the other hand, it has been submitted on behalf of the accused that no offence u/s- 376 IPC is made out against the accused in the fact and circumstances of the present case.
In the instant case, from the material on record, the prosecution has been able to prove on record beyond the reasonable doubts that on the day of incident prosecutrix ( PW-2) had gone to toilet and when she went inside the toilet, she found accused present there and thereafter accused removed her clothes and sexually assaulted her. In her statement recorded u/s- 164 Cr. PC (Ex. PW-14/C) prosecutrix has stated that accused touched his urinal organ with her urinal organ, however in her deposition in the court she made material improvement in this regard and stated that accused put his urinal organ in her urinal organ.
It has been argued on behalf of the prosecution that in view of the testimony of the prosecutrix, offence u/s- 376 IPC was made out against the S. C No. 45/08 11/14 12 accused, however the said contention put forward on behalf of the prosecution does not hold water as from the material on record, the offence u/s-376 IPC is not made out against the accused. In the instant case, the prosecutrix is a minor girl aged about 6 years and in case the rape have been committed upon her, there should have been external injuries on her private parts, however no such injury was present on the prosecutrix as is evident from her MLC ( Ex. PW-1/A) , wherein it has been specifically stated that no external injury was present. In this regard, the testimony of PW-1 Dr.Pooja Baranwal, who medically examined the prosecutrix, is also relevant as she has stated that she examined the patient i.e prosecutrix and found no external injury on her person . She further deposed that hymen was found intact and on her vaginal examination, she did not admit tip of little finger. Further, there is also no external injury on the private parts of the accused as is evident from his MLC ( Ex. PW-9/A) which would have been the case had the accused committed forcible intercourse with the female child aged about 6 years. In addition to this, the prosecutrix has also specifically stated in her statement u/s- 164 Cr. PC ( Ex. PW-14/C) that the accused only touched his urinal organ with her urinal organ and this fact is also corroborated by the medical evidence on record. In these circumstances, in view of the fact that hymen of the prosecutrix was found intact and there were no injuries on the private parts of the prosecutrix, it is clear that no offence of rape was made out in the fact and circumstances of the present case.
Now the question arises, whether the above-said act of the accused tentamounts to attempt to commit rape or was it merely an act of outraging the modesty of the prosecutrix . In this regard, it has been submitted by the Ld. defence counsel that since the prosecutrix has stated the accused has only touched his urinal organ with her urinal organ, the accused can be held liable only for outraging the modesty of prosecutrix as punishable u/s- 354 IPC, however the said submissions S. C No. 45/08 12/14 13 made on behalf of the accused are devoid of any merits and are contrary to the record as in the instant case, prosecutrix has specifically stated that accused had touched his urinal organ with her urinal organ and thereafter he washed her private part and his private part with water from a tap installed in the toilet as such the act of the accused has gone beyond the purview of section -354 of the IPC and thus, the accused is liable for an offence punishable u/s-376 r/w section 511 IPC as has been laid down by the Hon'ble Supreme Court in the case reported as AIR 1998 SC
386. In the aforesaid case titled as "Madan Lal Vs. State of J & K (reported as AIR 1998 SC 386)" it has been laid down by the Hon'ble Supreme Court of India that :
" The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her flat on the ground undresses himself and then forcibly rubs his erected penis on the private part of the girl fails to penetrate the same into vagina and on such rubbing ejaculates himself then it cannot be said that it was a case of merely assault u/s 354 IPC and not an attempt to commit rape u/s 376 read with 511 IPC. In the facts and circumstances of the case the offence of an attempt to commit rape by accused has been clearly established and the accused was rightly convicted u/s 376 read with 511 IPC. "
In the instant case also, from the material on record , it is clear that the act of the accused was not merely an assault within the meaning of section-354 IPC, but was an attempt to commit rape upon the prosecutrix.
S. C No. 45/08 13/14 1410. Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case and in view of the testimonies of various prosecution witnesses, I am of the considered opinion that the prosecution has been able to prove on record beyond the reasonable doubt that on the day of the incident, accused- Ajay attempted to commit rape upon the prosecutrix, aged about 6 years. Accordingly, I hold the accused-Ajay guilty of the offence punishable u/s- 376 r/w section 511 IPC and convict him accordingly.
Now to come up for arguments on the point of sentence on 18.10.2010.
(Announced in the open ) (Paramjit Singh)
(court on 13.10.2010) Addl. Sessions Judge
(North-West)-04
Rohini/Delhi
13.10.2010
S. C No. 45/08 14/14
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IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE (NORTH-WEST)-04, ROHINI : DELHI (Sessions Case No. 45/08) Unique ID case No. 02404R0094132008 State Vs. Ajay FIR No. : 67/08 U/s : 376 r/w 511 IPC P.S. : Jahangir Puri ORDER ON THE POINT OF SENTENCE In the present case, the convict- Ajay have been convicted u/s- 376 r/w section 511 IPC.
I have heard the arguments on the point of sentence put forward by Ld.Addl. PP for State and Ld. defence counsel for the convict.
2. It has been submitted by the Ld. Addl. PP that in view of the serious nature of offence, the convict does not deserve any leniency and he prays that maximum sentence prescribed by the law may be imposed upon the convict.
3. On the other hand, it has been submitted by the Ld. defence counsel that the convict - Ajay is not a previous convict and is having clean antecedents. He further submits that the convict is a young boy, aged about 23 years and is the sole bread earner of his family consisting of his parents , young brothers and sisters. Ld. S. C No. 45/08 15/14 16 defence counsel also submits that the convict Ajay has already remained in the custody for about 2 ½ years during the investigation and trial of this case and he prays that in view of the age and family circumstances of the convict- Ajay, a lenient view may be taken in this case.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. defence counsel and have carefully gone through the record of the case.
5. In the present case, the convict has been convicted for committing the offence punishable u/s - 376 r/w section 511 IPC. Keeping in view the nature and gravity of offence and having regard to the adverse impact which such like offences can have on the society in general and victim in particular , I am of the considered opinion that the convict is not entitled to any leniency in the fact and circumstances of the present case. In these circumstances and having regard to the age and family circumstances of the convict, I hereby sentence the convict - Ajay to undergo RI for 5 years and to pay a fine of Rs. 5000/- in default SI for 5 months u/s - 376 r/w section 511 IPC, which sentence shall meet the ends of justice in this case.
Benefit u/s 428 Cr.PC be also given to the convict.
Conviction warrant be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 18.10.2010) Addl. Session Judge
(North-West)-04
Rohini/Delhi
S. C No. 45/08 16/14
17
FIR No.-67/08
P.S.-Jahangir Puri
18.10.2010
Present: Addl. PP for the State.
Convict -Ajay in JC with counsel Sh. Shubham Asri ( Amicus Curie
).
Arguments on the point of sentence, heard.
Vide separate order on the point of sentence, announced in the open
court, the convict- Ajay has been sentenced to undergo RI for 5 years and to
pay a fine of Rs. 5000/- in default SI for 5 months u/s - 376 r/w section 511 IPC, which sentence shall meet the ends of justice in this case.
Benefit u/s 428 Cr.PC have also been given to the convict. Conviction warrants be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 18.10.2010) Addl. Session Judge
(North-West)-04
Rohini/Delhi
S. C No. 45/08 17/14