Delhi District Court
State vs . Raju Day S/O. Sh D.G. Day on 8 August, 2012
IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS JUDGE:
01(EAST) : KARKARDOOMA COURT: DELHI.
SC No. 106/2011
FIR No. 176/11
PS. Mandawali
US. 376/506 IPC
Instituted on 22.07.11
Argued on 24.07.2012
Decided on 04.08.2012
State Vs. Raju Day S/o. Sh D.G. Day
R/o. 49 Gali No. 12, Sewa Sadan Block
Mandawali, Delhi
JUDGMENT
1. Briefly stated the case of prosecution is that on 26.04.11 PW12 IO ASI Harphool Meena on receipt of DD No. 45A regarding a quarrel reached at the spot i.e. Gali No. 2, House No. 49, Sewa Sadan, Mandawali. There prosecutrix (PW9) and her mother Ratna ( PW8) met the IO. Ct. Poonam was called from East District Line. Both PW8 and PW9 were taken to LBS Hospital. Prosecutrix refused to get her medical examination done as she was frightened. On 27.04.11 PW14 ASI Anita recorded statement of prosecutrix wherein she stated that she is residing with her parents. In January, her mother got jaundice and went to her parents house. Her three sisters and brother were present in the house. Her father pulls rickshaw. Her father comes to the house late night and at that time her brother and sisters used to be sleeping. In the same room first time her father raped her. She being scared did not tell this to her mother as father has threatened to kill her. Till date her father raped her 5-6 times. Today she told everything to her mother and also FIR No. 176/11 1 page of 11 told that even during Sunday night she was raped by her father. A quarrel took place between her mother and father. Due to this quarrel, her mother had stayed during the night in the house where she was working. On 24.04.11 i.e. Sunday her father took the benefit of this and again raped her.
2. IO PW14 prepared rukka on her complaint and got FIR registered. She prepared site plan at the instance of prosecutrix. Accused was arrested and his medical examination was conducted. Prosecutrix was produced before Ld. MM and her statement under Section 164 Cr.P.C was got recorded. After investigation, police filed chargesheet against accused under Section 376/506(ii) IPC.
3. Charge was given to the accused under Section 376/506(ii) IPC to which he pleaded not guilty and claimed trial.
4. To prove its case prosecution, examined 16 witnesses. PW1 ASI Dhanbir Singh was duty officer on 27.04.11, he recorded FIR Ex.PW1/A and did endorsement on rukka Ex. PW1/B. PW2 HC Suresh Kumar was working as duty officer on 26.04.11 and proved DD No. 45A Ex.PW2/A. PW3 Dr. Jigna, CMO LBS Hospital proved MLC of the prosecutrix Ex.PW3/A. PW4 Sneh Prabha, Principal, MCD Mandawali No,2, First proved affidavit, admission form and admission register of the prosecutrix Ex.PW4/A to C. PW5 Dr. Vinay Kumar Singh Specialist, Forensic Medicine, LBS Hospital medical proved report Ex.PW5/A of accused regarding his sexual potency. PW6 Dr.Ruchi Mishra proved MLC of prosecutrix Ex. PW6/A. PW7 Retired Dr. O.S.Tomar proved MLC of accused Ex.PW7/A. PW8 Ratna is wife of accused and mother of prosecutrix. She proved arrest memo of accused Ex.PW8/A. Prosecutrix was examined as PW9. She proved her complaint Ex.PW9/A and her statement recorded under Section 164Cr.PC by Sh. D.K. Garg,Ld.MM Ex.PW9/B. PW10 Sh D. K. Garg,Ld. MM proved statement of prosecutrix Ex.PW9/B recorded by him. PW11 Ct. Kamlesh took case property from Malkhana and deposited the same. PW12 ASI Harphol Meena FIR No. 176/11 2 page of 11 is the first IO who reached at the spot after receiving DD No. 45A. He took prosecutrix and her mother to LBS Hospital. PW13 Ct. Rajender Kumar accompanied IO on 27.04.11 for investigation and proved personal search memo and disclosure statement of accused Ex. PW13/A and B. He proved seizure memo Ex.PW13/C vide which pulandas given to him in the hospital after medical examination of accused were seized by IO. PW14 ASI Anita is the second IO. She proved seizure memo Ex.PW14/A vide which three pulandas and one kit given to her after medical examination of prosecutrix by doctor were taken into possession. She proved rukka Ex PW14/B, site plan Ex. PW14/C. PW15 HC Parvesh proved relevant entry in register No. 19 pertaining to this case as Ex.PW15/A to B. PW15 Naresh Kumar, Senior Scientific Officer (Biology)FSL Rohini proved his report Ex.PW16/A to B.
4. On the basis of incriminating evidence against accused, his statement was recorded under Section 313 Cr.PC wherein he denied entire evidence against him and took the defence that his wife used to work as maid in different houses. Often she did not return back in the house during night and she used to indulge in prostitution. Even prosecutrix was being pushed by his wife into prostitution and he used to object to it. He had also beaten his wife. He asked his wife to go her village so that he may work and send money but she did not agree. Due to this reason to get rid of him, she made a false complaint through his daughter. He did not opt to lead any defence evidence.
5. I have heard arguments of Sh. Ashok Kumar, Ld. Addl. PP for the state and Sh. A. K.Bali, Ld. Legal Aid Counsel for accused and have gone through case file.
6. Ld. APP submitted that from the statement of PW9 it is clear that accused raped her number of times. It is stated that accused after exercising power of authority in the house misused that power and raped his own daughter. It is stated that PW8 who is wife of FIR No. 176/11 3 page of 11 accused and mother of prosecutrix has also supported prosecution case.
7. Ld. A.K. Bali, Ld. Legal Aid Counsel submitted that prosecutrix is not a credible witness as she is deposing at the instance of her mother. It is stated that PW8 who is mother of prosecutrix was indulging in prostitution and also pushing prosecutrix in the same trade and on being objected by accused, this false complaint was made against him. It is stated that prosecutrix has made massive improvement in the statement made before this court. It is stated that MLC of the prosecutrix shows that her hymen was lying raptured since long which supports his defence that his wife was pushing prosecutrix in prostitution. It is stated that FSL report is not conclusive and cannot be believed. It is stated that there is no proof that PW8 had ever gone to village in West Bengal.
8. PW9 prosecutrix is the real daughter of the accused. She being minor aged 11 years was first examined in general and after being satisfied that she has got rational understanding and competent to depose, her statement was recorded. She deposed that she has two sisters and one brother. They were staying with their parents. In January last year her mother got jaundice and she alone had gone to her parental house at West Bengal. Her mother spent 18-19 days in her parental house at West Bengal. The day her mother left their house, during night her father came on the bed where she was sleeping and slept besides her. Next day again her father during night while all they were sleeping, came and slept besides her and did "Galat Kaam" with her. On being asked to explain "Galat Kaam" witness stated that what is done by husband and wife after marriage. After explaining this she started weeping Witness was consoled and she started making further statement. This demeanour of the witness reflects on mental trauma, she was undergoing while deposing before this court. He further deposed FIR No. 176/11 4 page of 11 that after that her father threatened her to kill if she told about it either to her mother or to any one. During time her mother did not return, her father did the same thing with her 2-3 times. When her mother returned, she did not tell anything to her (mother) because of threat given to her. She told everything to her younger sister Rinki. Rinki told all this to her mother and her mother asked her and she (prosecutrix) told everything to her. On that day her mother asked her father about this and both stared quarreling with each other. Her father pleaded sorry and assured her that this thing will not happen again. Next day again, her parents quarreled. Her mother used to work as maid in the house at Laxmi Nagar, she used to leave house for work at 7 AM and used to come back at 8 PM. On that day her mother did not return back to the house, again since her mother was not in the house, during night her father again did "Galat Kaam" with her. Even next day her mother did not return back. In the evening her father took all of them on his rickshaw and took them to the house where her mother used to work. They all went inside the house and called her mother and she told all this to her mother. Her father asked her mother to come back to the house but her mother refused to return back. The aunty in whose house her mother was working asked her mother to make a complaint with the police. Thereafter her father left the spot telling her mother that he will not return to her life and will live separate. Thereafter her mother sent her, her sisters and brother to their house in a rickshaw. At about 9.30-10.00 PM they all were in the house except her mother. She was making her brother to sleep. Her father returned to house. The moment she saw rickshaw of her father she sent to the house of Vandana aunty in the neighbourhood, to whom she used to call Bua. She slept there during night.
9. Prosecutrix further deposed that next day her mother came to the house of Vandana. In the evening her father armed with a FIR No. 176/11 5 page of 11 knife and blade reached at the house of Vandana. Her father was drunk and started threatening her and her mother. Her father also threatened Vandana and her husband showing knife and blade. Her mother was carrying a mobile and she made a call at 100 number. Thereafter her father returned back to the house. Police reached at their house. She, her mother and her father were taken to PS by the police and there police recorded her statement and arrested her father. She was taken to hospital but she refused to get herself medically examined as she was scared. Next day she and her mother were taken to hospital and there she( prosecutrix) was medically examined. Thereafter she was produced before Judge Saheb where her statement under Section 164 Cr.P.C was recorded. She correctly identified her clothes i.e. one black colour Pyjami, one top, one vest and one underwear which are collectively Ex. P1.
10. Ex. PW9/B is the statement of prosecutrix recorded under section 164 Cr. P.C by Sh. Devender Kumar Garg, Ld.MM, wherein she has stated the same story as told by her before this court. However, in Ex. PW9/B prosecutrix has not detailed the incident which took place in the house of Vandana to whom she calls her bua.
11. During cross by accused, prosecutrix has stated that before the incident her mother never stayed outside their house during night. she admitted that she did not tell police or Judge Saheb regarding the incident which took place in Vandana bua's house. She was confronted regarding the mentioning of date in her complaint to the police on which her mother left Delhi for West Bengal. She denied the suggestion that she and her mother used to indulge in illicit activities of prostitution and her father used to stop them from doing all these things and due to this reason they concocted a false story and made false complaint against him.
12. PW8 Ratna is the mother of prosecutrix and wife of accused. she deposed that she is working as maid servant in the houses.
FIR No. 176/11 6 page of 11 About one year back she got jaundice and due to this reason, she went to village Hareka, District Murshidabad, West Bengal. Accused used to ply rickshaw. She is having three daughters and one son from accused. Prosecutrix aged about 11 years is her eldest daughter. Rinki is her second daughter aged about nine years. Rakesh is her son aged seven years. Poornima is her third daughter aged about 5 years. Rakesh and Poornima accompanied her to the village. Prosecutrix and Rinki stayed in Delhi with her husband. She returned to Delhi after one and half month. Prosecutrix told her(PW8) that her husband had raped her( prosecutrix) 5-6 times when she was not in Delhi. Prosecutrix told her that accused used to say her that he will give her Rs.20/- Rs.30/- to spend. She ( PW8) asked accused that why he has done so with prosecutrix, accused pleaded sorry for all this. Due to self respect, she did not complain against accused. Accused continuing raping prosecutrix whenever he got chance and she was not available in the house. Sometimes prosecutrix used to tell her and sometimes not. Accused used to threaten prosecutrix not to tell this to her and what she gets by telling all this to her. She used to quarrel with accused daily on this issue. On 26.04.11 when she stayed in the house of aunty named Sulochana where she used to work for a night with the hope that if she will do this, probably accused may mend his ways. During that night accused again raped prosecutrix. Prosecutrix told her all this when next day morning she reached in her house. She along with prosecutrix went to PS Mandawali. Police recorded statement of prosecutrix. Police also recorded her statement. Thereafter police took her and prosecutrix to LBS Hospital. On that day prosecutrix was sent back and they returned back to house. Next day they again went to the hospital with the police where prosecutrix was medically examined. Clothes worn by prosecutrix were taken by doctor and she put another set of clothes on prosecutrix brought by her. Thereafter accused was arrested from his house. After about FIR No. 176/11 7 page of 11 a week prosecutrix was produced before Judge Saheb for recording her statement. and her statement was recorded.
13. During cross PW8 was confronted with her statement Ex. PW8/DA wherein PW8 had not mentioned that on 26.04.11 she stayed in the house of Sulochana. PW8 denied the suggestion that accused used to be annoyed with her as she often used to stay outside her house without his permission for days together and due to this reason, he used to quarrel with her. She denied the suggestion that her husband used to scold prosecutrix as she used to roam around with neighbouring boys.
14. Ex.PW3/A is the MLC of the prosecutrix. As per MLC, hymen was ruptured with old injury and no external injury was seen. Samples of body fluid, debri collection, vaginal, cervical culture and clothes of the prosecutrix were also taken and sealed with seal of hospital and handed over to the police. As per Ex. 16/A, human semen was detected on Ex. 1a,1b and1c i.e. shirt,Shameez and underwear of the prosecutrix.
15. One of the main contentions raised by Ld. Amicus Curiae for accused is that statement of prosecutrix does not inspire confidence as it is in contradiction to the statement of her mother. Ld. Amicus Curiae has pointed out that as per prosecutrix, her mother had gone alone to West Bengal in January 2011 whereas as per mother of the prosecutrix i.e. PW8, two of younger siblings of the prosecutrix Rakesh and Poornima accompanied her to West Bengal. It is stated that prosecutrix has also failed to give exact date when her mother left for West Bengal and she returned back to Delhi. It is stated that as per prosecutrix, her mother returned after spending 18-19 days in her parental house at West Bengal but as per PW8 she returned to Delhi after spending one and half month. It is stated that prosecutrix has introduced a new story of visiting the house of her bua Vandana whereas entire prosecution case is silent about it.
16. Various contradictions and improvements have been pointed FIR No. 176/11 8 page of 11 by Ld. Amicus Curiae in the statement of prosecutrix. Relevant point to be seen is that if these contradictions and improvements in the statement of prosecutrix vis-a-vis PW8 are major which may render her testimony, untrustworthy and inspired with extraneous motive. Before appreciating statement of prosecutrix it has to be kept in mind that she is a girl of tender age and she is just 10 years of age when she was sexually abused by her father. Her cognitive and socio emotional development, the environment in which she was residing, is also required to be kept in mind. Her mental trauma and impact which this incident might have left on her mind because she was sexually abused by her father also needs to be kept in mind. As already discussed, prosecutrix belongs to a poor family as her mother is maid servant and her father, who is an accused, used to pull cycle rickshaw, she studied up to only third standard and thereafter she is not going to the school and just remaining in house doing nothing.
17. Statements of prosecutrix and her mother PW8 are consistent on major aspects of the case. Various contradictions pointed out by Ld. Amicus Curiae are minor in nature. Though all efforts were made while recording the statement of prosecutrix to make her comfortable in deposing but for a girl of this tender age, deposing against her father in such circumstances, is big traumatic and daunting task. Regarding the contradictions in the number of days spent by PW8 in West Bengal, it is not strange as prosecutrix deposed in this court after lapse of complete one year. Even normal person tends to forget minor details like amount of time spent by her mother a year ago away from the house, not to talk about prosecutrix who is child of just 10 years . It is also not strange if she failed to tell if her two siblings accompanied her mother to West Bengal or they had stayed with her in Delhi. Incident as deposed by prosecutrix which happened in the house of Vandana is not that important, which if not told by PW8 may render her testimony under FIR No. 176/11 9 page of 11 the shadow of doubt. I do not agree with Ld. Amicus Curiae that statement of prosecutrix is untrustworthy.
20. The statement of PW8 reflects on compromises which she made after knowing this mean inhuman act of her husband after returning from West Bengal. As deposed by her, on that day due to self respect, she did not complain against accused, on one hand future of four minor children was at stake and on another hand this inhuman act of her husband must have been piercing her conscious. However, for self respect, for respect of her family and future of her four children, she swallowed all this with pinch of salt but beastly behaviour of accused by sexual abusing prosecutrix, as and when he found opportunity, continued. Lastly when PW8 on 26.04.11 stayed away from her house during night with the hope that accused may mend his ways but accused again established incestuous relation with prosecutrix broke, patience and self restraint which PW8 was maintaining for the sake of her family. It must have been a very burdensome decision for a poor mother of four children to make a complaint against her husband. Probably a threat perception to her other two daughters might have prompted her to bring this incestuous act of her husband on record.
21. As per prosecutrix, her mother i.e PW8 went to West Bengal in January 2011. During the period when her mother was away, accused 2-3 times rapped her. Last time as per PW8 and prosecutrix, accused raped her day before the complaint she made to the police. MLC Ex.PW3/A of the prosecutrix supports statement of prosecutrix, as per which hymen was found ruptured(old). FSL report Ex. PW16/A as per which semen was detected on garments of the prosecutrix which further supports her testimony. As pointed out by Ld. Amicus Curiae though FSL is not conclusive to the extent that semen detected on the clothes of the prosecutrix was of accused but keeping in view of the facts and circumstances, presence of semen on clothes of the prosecutrix speaks volume FIR No. 176/11 10 page of 11 about the veracity of her deposition.
22. In view of various reasons, it is held that prosecution has been able to prove its case against accused beyond reasonable doubt for the commission of offence punishable under Section 376 IPC. He is accordingly convicted.
Announced in the open Court ( SANJAY GARG )
on 04.08.2012 Addl. Sessions Judge-01 (East)
Karkardooma Courts, Delhi
FIR No. 176/11 11 page of 11
IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS JUDGE;01 (EAST) : KARKADOOMA COURT: DELHI.
SC No. 106/2011 FIR No. 176/11PS. Mandawali US. 376 IPC State Vs. Raju Day S/o. Sh D.G. Day R/o. 49 Gali No. 12, Sewa Sadan Block Mandawali, Delhi ORDER ON SENTENCE
1. I have heard Sh. Ashok Kumar, Ld. Addl PP for the State and Sh. A.K. Bali, Ld. Legal Aid Counsel for convict Raju Day on quantum of sentence.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view be taken against the convict. Ld. Legal Aid Counsel for the convict submits that he is 31 years of age. It is stated that he was working as rickshaw puller and belongs to poor and backward society. It is stated that he is the first offender and in J/C since beginning. It is stated that taking lenient view he be sentenced to period of imprisonment already undergone.
3. The convict is in J/C since 27.04.11. It is a case of incest as prosecutrix is his real daughter. As per prosecutrix, when her mother was away to her parents house, accused raped her 2-3 times. Even accused continued this inhuman act thereafter, after his wife and mother of prosecutrix returned back, as and when he used to get opportunity. The convict has abused the pious relation of daughter and father. It is not a case of isolated incident rather convict sexually abused his daughter as and when he got opportunity.
FIR No. 176/11 12 page of 11
4. In view of the facts and circumstances of this case, the
convict deserves no leniency. Accordingly, he is sentenced as
under :-
For the offence u/s. 376 IPC he is sentenced
to undergo RI for eight years and shall also
be liable to pay fine of Rs.2,000/- in default
to undergo SI for two months.
5. Benefit of section 428 Cr. PC be given to the accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 08.08.2012 Addl. Sessions Judge-01/(E)
Karkardooma Courts, Delhi
FIR No. 176/11 13 page of 11