Delhi District Court
State vs . Ishwar Dayal S/O Sh. Puran Chand, on 11 July, 2009
1
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGE-VII :
NORTH-EAST-CUM-ADDITIONAL SEESIONS JUDGE:KARKARDOOMA
COURTS : DELHI :
S.C. No. 18/09
State Vs. Ishwar Dayal S/o Sh. Puran Chand,
R/o Village Palso, PS Goverdhan, Distt. Mathura,
U.P.
FIR No. 372/2008
PS Shahdara
U/s 376 IPC.
J U D G E M E N T :-
1. Gravamen of the prosecution's case lies in the fact that on 03.11.08, on receipt of PCR call, vide DD No. 19A, woman ASI Rakesh Kumari reached Surya Temple, Kabir Nagar, street No.5, Shahdara, Delhi, where HC Karan Singh and Constable Anil Kumar were also present. Smt. Sarita gave her statement to ASI Rakesh Kumari, regarding commission of rape upon her daughter Bhagyashri (name changed), aged about 8 years, by accused Ishwar Dayal, who was working as priest in Surya Temple, Kabir Nagar, Shahdara, Delhi, on 02.11.08, in Surya Temple in between 7 to 7.30pm, when she had gone to take prasad over there. Prosecutrix Bhagyashri was sent to GTB Hospital for medical examination. From statement of Smt. Sarita and MLC of prosecutrix, a case under section 376 IPC was registered. Accused Ishwar Dayal was arrested. He was sent for medical examination to GTB Hopsital through HC Karan Singh and Constable Anil Kumar. Blood sample and underwear of the accused were taken into possession. Underwear of prosecutrix was also seized. Prosecutrix was produced before Sh. Sonu Agnihotri, ld. MM, Delhi, who recorded statement of Bhagyashri under section 164 Cr.P.C., and thereafter exhibits were sent to FSL. After completing investigation, challan was submitted against accused Ishwar Dayal for an offence under section 376 2 IPC.
2. Arguments on charge were heard, and a prima facie case for offence under section 376 IPC was made out against the accused. Charge was framed accordingly against the accused, to which charge he pleaded not guilty and claimed trial.
3. In order to bring home the guilt of the accused, prosecution has examined fifteen witnesses, namely, Pargesh Kumar, Head Constable (PW1), Shashi, Head Constable (PW2), Anil Kumar, Constable (PW3), Virender, Head Constable (PW4), Karan Singh, Head Constable (PW5), Bhagyashri (PW6), Sarita (PW7), Vikas (PW8), Sh. Sonu Agnihotri, MM (PW9), Dr. Arifa (PW10), Dr. P.K. Phukan (PW11), Ravinder Pratap Singh, Physical Education Teacher (PW12), Rajesh Kumar (PW13), Rakesh Kumari, ASI (PW14) and V. Shankar Narayan (PW15) in the case.
4. Pargesh Kumar, Head Constable (PW1) was working as duty officer on 03.11.08 at PS Shahdara, Delhi. On receipt of rukka, which was recorded by Rakesh Kumari ASI and brought by Constable Anil Kumar, he recorded formal FIR, copy of which is Ex.PW1/B. Shashi, Head Constable, (PW2) recorded DD No.19A Ex.2/A, on receipt of information from wireless operator regarding an altercation at house No.5.48, Kabir Nagar, Delhi. Constable Anil Kumar (PW3) joined investigation of the case. He along with ASI Rakesh Kumari took prosecutrix Bhagyashri to GTB Hospital for medical examination. After medical examination of prosecutrix, Rakesh Kumari ASI handed over rukka Ex.PW1/A to him. He took the same to police station and got a case registered. In his presence, site plan was also prepared by the investigating officer, accused was arrested vide arrest memo Ex.PW3/A and his personal 3 search Ex.PW3/B was also conducted. Virender, Head Constable, (PW4) was working as MHC(M) in PS Shahdara on 03.11.08. Rakesh Kumari ASI deposited with him four parcels, duly sealed with seal of GTB Hospital, and one sealed parcel sealed with seal of RK. He recorded an entry to this effect at serial No. 2765 of register No.19. On 25.11.08, he sent all the four parcels to FSL, Rohini, vide R.C. No. 87/21 through Constable Virender in intact condition. PW6 is the prosecutrix Bhagyashri, while PW7 is her mother, PW8 Vikash is her brother and PW13 Rajesh Kumar is her father. PW9 Sh. Sonu Agnihotri, MM, recorded statement of prosecutrix under section 164 Cr.P.C and proved the same as Ex.PW9/A. Dr. Arifa (PW10) medically examined prosecutrix on 03.11.08 and prepared her MLC Ex.PW10/A. Dr. P.K. Phukan (PW11) examined accused on 03.11.08 and prepared his MLC Ex.PW11/A. Ravinder Pratap Singh, Physical Education Teacher (PW12) brought admission register of M.C. Primary School and deposed that as per school record, prosecutrix Bhagyashri was admitted in M.C. Primary School, Jyoti Colony, Shahdara, Delhi, on 17.07.08 in second standard and her date of birth was recorded as 12.01.2000. PW14 ASI Rakesh Kumari is the investigating officer of the case. She unfolds that on 03.11.08 at about 5.07pm, copy of DD No.19A was assigned to her for action in the matter. She reached house No.5/48, A-Block, Kabir Nagar. She recorded statement of Sarita and got her medically examined. She recorded rukka Ex.PW1/A and handed over it to Anil Constable for registration of the case. Thereafter, she arrested accused Ishwar Dayal and seized underwear produced by Sarita, mother of prosecutrix Bhagyashri. On 05.11.08, she produced prosecutrix Bhagyashri before the Magistrate and got her statement recorded under 4 section 164 Cr.P.C. On 25.11.08, she got exhibits of the case sent to FSL Rohini through Virender, Constable. Ultimately, she concluded investigation and got the accused challaned in the case. PW15 Sh. V. Shankar Narayan, Sr. Scientific Assistant, examined four parcels, which were received in FSL Rohini on 25.11.08 and gave his report Ex.PW15/a and Ex.PW15/B.
5. In order to give an opportunity to the accused to explain incriminating material coming against him, his statement was recorded under section 313 Cr.P.C, wherein he admitted that an information vide DD No.19A, which is Ex.PW2/A, was given by the wireless operator to PS Shahdara. According to him, this information was given personally by him to the police from his mobile phone. He denied rest of the case of prosecution. According to him, prosecutrix Bhagyashri and her brother used to come to the temple and he used to teach them. He never asked brother of prosecutrix to go from the temple. He further stated that earlier, he was residing at Karnal in Haryana. He was called by Satpal, who met him two or three times in Rishikesh and offered him to come to Delhi. He came to Delhi and Satpal being the incharge of temple asked him to perform the work of Pujari in Surya Temple. One person, namely, Kallu used to come in the temple. Sarita used to say that Kallu was having illicit relations with Saina. He told to mother of Satpal that Kallu was a good person and he did not have any illicit relations with Saina. Satpal stated all these things to Sarita and on this Sarita threatened to see him (accused). Initially Sarita and her family used to reside in the premises of Satpal and later on they vacated the room at the instance of Satpal and started living near the temple in a rented room, which belonged to Billo, a friend of Satpal. Sarita asked him to teach her children. He told her that he could teach 5 her children, only after performing his routine work. There was an altercation between him and Tejvir, son of uncle of Satpal, who used to ask him (accused) to sweep and clean the road and the nearby vicinity, besides watering the plants. Whenever, he used to go from the temple, Satpal and his family used to tell him that he can go after solemnization of marriage of Satpal. Billo, Tejvir, Ashok and Subey Singh used to visit Sarita. One day, Sarita came inside his room, and at that time he was reading a book. She bolted the room from inside. When he asked her as to why she was doing so, she demanded a sum of Rs.1 lac. When he expressed his inability to pay the amount, she went outside. He heard noise of Billo and Tejvir and Mahender Singh. On one occasion, Mahender Singh, younger uncle of Satpal, asked for telephone number of his mama, who resides at Mathura. Accordingly, he gave telephone number of his uncle. They made a call to his uncle. He received a call from his uncle, who told him that those persons had informed him that he had committed a folly. Thereafter, his uncle and one of his friend came from Panipat on receipt of telephone. He was taken to office of Satpal. These persons misbehaved with him and falsely implicated him in this case. He was not willing to remain in the temple and he wanted to leave the temple with his computer system, which he purchased himself. Satpal and others asked him either to pay an amount of Rs.1 lac or to leave the computer system there itself. Police officials also came at the spot and they asked him to give amount of Rs.1 lac to Satpal. HC Karan demanded a sum of Rs. 1 lac and Constable Anil demanded a sum of Rs.75,000/-, and they threatened him to give the amount, otherwise they would implicate him in some false case, and that is why this false case has been registered against him. He was also given beatings by the 6 police officials. He claimed innocence and his false implication in the instant case.
6. He has examined DW1 Sh. Jamuna Prasad in support of his defence. This witness deposed that accused was known to him from last two years. On 03.11.08, he went to meet accused Ishwar Dayal at Kabir Nagar, Surya Temple, at about 4.30 or 5pm. A quarrel was going on between the accused Ishwar Dayal and other four or five persons. He inquired about those persons, on which they told that accused would be taught a lesson. On inquiry, accused informed him that those persons used to ask him to sweep and clean, whereas he was a pujari and it was not his duty to sweep the street. Those persons were owner of the factory. He inquired from one lady, who was present there, regarding the quarrel and she told him to inquire from those very persons, who were present there. Accused informed the police, who reached at spot. Many persons had collected at the spot. After ten or fifteen days, he again visited the temple. He was informed that accused Ishwar Dayal was taught a lesson by those persos.
7. I have heard Sh. Subhash Chauhan, ld. Prosecutor, and Sh. R.K. Chaudhary, Advocate, for the accused. It was submitted by the ld. Counsel for the accused that accused has been falsely implicated in the instant case, at the instance of Satpal as he wanted to remove accused from Surya Temple, where accused was working as pujari. Moreover, as regard merits of the case is concerned, it was submitted that on medical examination hymen of the prosecutrix was found intact, as such prosecution has failed to prove its case and accused is entitled to be acquitted of the charge.
8. On the other hand it was submitted by the ld. Prosecutor that in the 7 instant case, prosecutrix has completely supported the case of prosecution and her testimony finds due corroboration from medical record as well as report of FSL authorities.
9. I have given my careful considerations to arguments submitted by ld.
Counsels for the parties and perused the record.
10. At the outset, it may be mentioned that testimonial potency of version of a victim of rape cannot be put on par with an accomplice. She is infact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must be attached in evaluation of her evidence as in the case of an injured complainant or a witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act, which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for corroboration required in the case of an accomplice. The nature of evidence required in to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on record of 8 the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. Law to this effect was laid by the Apex Court in State of Maharashtra Vs. Chander Prakash Keval Chand Jain (1990 (1) SCC 550).
11. The Apex court in State of Punjab Vs. Gurmeet Singh (1996 (2) SCC 384) has held that no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as involved in the commission of rape on her. In cases involving sexual molestation supposed considerations, which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix, should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness and tendency to conceal outrage of sexual aggression are factors which the Court should not overlook. The testimony of the victim in such case is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.
12. The Apex Court in State of U.P. Vs. Anil Singh (AIR 1988 S.C. 1998) concluded that with regard to the falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Apex Court sought reliance from Bankim Chander (AIR 1919 PC 157) wherein the Privy Council had ruled that in Indian litigation, it is not safe to assume 9 that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence. It was announced by the Apex court that it is also our experience that invariably the witnesses add embroidery to prosecution evidence, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses.
13. In Omprakash Vs. State of U.P. (2006) 9 S.C.C. 787, it was held that " it is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian woman has a tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members have courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scatting (sic scathing) her own prestige and honour.
10 Of late, crime against women in general and rape in particular is on the crease. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestation."
14. Prosecutrix Bhagyashri, who is a girl aged about 8 years, was questioned at length for ascertaining her competency to answer questions rationally. Her statement was recorded and she deposed that 11 she had gone to Surya temple, along with her elder brother and younger brother, to have prasad. It were evening hours at that time. Accused Ishwar Dayal was working as priest in the said temple. He took her and her younger brother upstairs, while her elder brother was made to run away. Accused asked her and her brother to fold their hands in front of the god. Thereafter, accused inserted his penis in her vagina. She went home, along with her younger brother, and narrated entire facts before her mother. Her mother went to the temple. At the time of incident, she was wearing an underwear. She felt pain and narrated those facts before her mother. Some stains of urinal discharge had come on her underwear. She made a statement before the court also, which is proved as Ex.PW6/A, and bear her signatures at point A and B. Despite searching cross-examination, nothing material could be elicited to discredit her testimony. She denied the suggestion that she made a false statement at the instance of her mother. Her testimony is trustworthy, consistent and inspires confidence and in view of the judicial pronouncements, referred above, it becomes clear that her testimony does not require corroboration. However, even if it is taken that she is child witness and as a rule of prudence, it requires corroboration even then there is ample material on record, which corroborates her testimony.
15. PW7 Sarita is the mother of prosecutrix and she has corroborated her version by deposing that her daughter Bhagyashri had gone to play along with her brother Vikas. She was playing near Surya Temple in Kabir Nagar, Delhi, which is a little distance from her house. Her daughter had left home at 7pm and returned back at 7.30pm. She came home, while weeping. Her son Vikas told that something has been done to Bhagyashri by the priest. Underwear of her daughter was stained with 12 semen and blood stains. She removed the same and threw it in the garbage, with a view to save her family honour. Her daughter complained her that she was taken upstairs by the priest and made her to fold her hands before the god, and then he did indecent act with her. She along with her husband went to the temple. Accused told them that nothing was done by him with Bhagyashri. Public persons had beaten the accused. Thereafter, she came back home. On the next morning, uncle of accused was called, who was laughing and saying that accused is a kid, and if something has had happened, it should be forgiven. Accused gave a telephone call to police control room. Police reached there. She lodged a report, which is Ex.PW7/A. Her daughter was taken for medical examination. She lifted underwear of her daughter from garbage and gave it to Rakesh Kumari ASI, who seized the same vide memo Ex.PW7/B.
16. Rajesh Kumar, father of prosecutrix, deposed that on the second day of English Calendar month, after Deepawali festival of 2008, he returned home at about 8pm. At that time, his eldest son told him that Panditji had molested Bhagyashri. His wife was weeping at that time. He found his daughter Bhagyashri lying, who was not in a position to sit. He checked her. He noted her private part bruised. He asked his wife to accompany him to the temple. He confronted accused Ishwar Dayal with those facts and questioned him as to why he had committed that folly. On the following day, at about 7am, he along with his wife again reached Surya Temple. He questioned accused about the incident. At about 3 or 4pm, uncle of accused reached there, who informed about the incident. However, accused did not confess his guilt in front of his uncle. Thereafter, accused went inside his room and gave a telephone call to 13 police control room. Thereafter, his daughter was taken to GTB Hospital for medical examination.
17. From the testimony of Sarita, it is clear that immediately after the incident, prosecutrix came home, while weeping and narrated the entire episode to her mother. The factum of making the complaint and the terms thereof become relevant as subsequent conduct. Such a conduct is relevant under section 157 read with section 8 of Indian Evidence Act. In Emperor Vs. Phagunia Bhuran AIR 1926 Pat.58, it was observed as under :-
" If the girl went to her relatives straight after the occurrence and complained on her own initiative, there is no doubt that her conduct would have a direct bearing upon and connection with the occurrence itself, but if she only answered questions, her statements would be mere hearsay."
In Rameshwar Kalyan singh Vs. State of Rajasthan (1952) 3 SCR 377 also, it was observed that where the raped girl instinctively ran home to her mother, but not finding her there, she went to sleep and when the mother returned four hours later, the girl told her what had happened, it was held that the statement made to the mother fell within the ambit of section 157 read with section 8 illustration (J) of the Evidence Act. In the instant case also prosecutrix immediately, after the incident, returned home and narrated the incident before her mother. As such making of this statement to the mother is relevant under section 157 read with section 8 illustration (J) of the Evidence Act.
18. Not only the prosecutrix made a statement to her mother, but also gave history of incident to Dr. Arifa (PW10), when she was taken to hospital for her medical examination. The history recorded by Dr. Arifa is 14 as under :-
" Alleged history of prosecutrix and her brother gone to temple on 02.11.08 evening to take prasad, when pandit of temple took the girl up in temple assaulted her. Girl gives history of dysonia and bleeding vaginally. No history of taking bath after the assault. But underwear worn on 02.11.08 was thrown by mother."
The history recorded by Dr. Arifa, immediately on the next day, about the incident gives corroboration to the version of prosecutrix.
19. Further more, prosecutrix was also produced before Sh. Sonu Agnihotri, ld. MM, on 04.11.08. An application was moved by Rakesh Kumari ASI before ld. MM for recording statement of prosecutrix. ld. Magistrate directed Rakesh Kumari ASI to produce prosecutrix on 05.11.08, on which date Sh. Sonu Agnihotri, ld. Magistrate, after satisfying himself regarding voluntary nature of statement of prosecutrix and ascertaining competency, recorded statement of prosecutrix as Ex.Pw6/. Perusal of statement of prosecutrix Ex.PW6/A also clearly reflects that she gave substantially similar version before the ld. Magistrate.
20. Further, when prosecutrix was produced before Dr. Arifa, her vaginal swabs were taken and same were handed over to police. When accused was produced before Dr. P.K. Phukan, his blood sample and undergarments were seized, which were handed over to police. Underwear of prosecutrix was handed over by mother of prosecutrix to ASI Rakesh Kumari, who seized the same vide memo Ex.PW7/B. Investigating officer of the case sent all the four exhibits of the case, in a sealed parcel, to FSL Rohini on 25.11.08. Sealed parcels were examined by V. Shankar Narayan. Parcel No.1 was containing a cotton 15 wool swab on a long wooden stick. Parcel No.2 was containing a dirty underwear of accused. Parcel No.3 was also containing a dirty underwear of prosecutrix and Parcel No.4 was containing gauze cloth piece having brown stains. On examination, he detected blood on parcel No.4, human semen on parcel No.2 and 3. However, human semen was not detected on parcel No.1. He gave his report Ex.PW15/A to this effect. On serological examination, human blood was noted on parcel No.4. However, it gave no reaction for the purpose of blood group. Since no reaction was given by parcel No.2 and 3, as such blood group could not be ascertained. He gave his report Ex.PW15/B to this effect. Although as per this report, blood group could not be ascertained, however it becomes clear that on the underwear of the accused as well as on the underwear of prosecutrix human semen was detected. No explanation has come forward from the side of accused as to how human semen was detected on his underwear or on the underwear of prosecutrix. This is a very strong piece of evidence, which goes against the accused.
21. Further, it has come in evidence that after recording statement of Sarita, mother of prosecutrix, ASI Rakesh Kumari took Bhagyashri to GTB Hospital, where she was medically examined by Dr. Arifa, who prepared her MLC and gave report Ex.PW10/A. After his arrest, accused was also taken to GTB Hospital and was examined by Dr. P.K. Phukan, who prepared his MLC Ex.PW11/A and opined that there was nothing to suggest that he was incompetent to perform coitus.
22. Much emphasis has been laid by ld. Defence counsel for submitting that on medical examination, hymen of prosecutrix was found intact, and there was no penetration, and as such offence of rape is not made out 16 against the accused. Such a plea is devoid of merits. As observed in Madan Gopal Nakkad Vs. Naval Dubey (1992) 3 SCC 204, to constitute the offence of rape, it is not necessary that there should be complete penetration of the penis within the labia majora of the vulva or pudendum with or without emission of semen. Slightest penetration of penis into vagina without rupturing the hymen would constitute rape. In Bhudan Lal Sharma Vs. State (1961) 1 Cr.L.J. 6, it was held that even an attempt at penetration is quite sufficient for the purpose of law. Similarly in State of U.P. Vs. Babul Nath 1994 SCC (IV) 1585, it was held that it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. For an offence of rape the legal requirement is satisfied by the least degree of penetration. It was observed in Ghanshyam Misra Vs. State AIR 1957 Orissa, 78 :-
" Even partial penetration leading to rupture of the hymen is sufficient to constitute rape, even though there might not be deep ;penetration into the vaginal canal. The girl's evidence was to the effect that she felt severe pain and raised a cry, after which the petitioner desisted from the fact. Consequently, from the mere fact that there was no dilation of the vaginal canal it cannot be assumed that the offence was not committed when the injury to the hymen showed clearly that there was penetration by the male organ. The depth of penetration is immaterial so as far as the offence under section 376 IPC is concerned."
23. In Modi's Medical Jurisprudence, twenty-third edition, at pages 897 and 928, it is stated :
" At page 897 : To constitute the offence of rape, it is not necessary that there would be complete penetration of the penis with emission of semen and the rupture of hymen. Partial penetration of the penis within 17 the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains.
At page 928 : In small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the fourchette and perineum."
24. In 2009 (2) RCR (Criminal) 778 Satya Pal Vs. State of Haryana, it was held by hon'ble Apex Court that for the purpose of satisfaction of ingredients of rape, it is not necessary that there should be complete penetration. In the instant case, Dr. Arifa, on local examination, did not find any external injury on vulva. However, she deposed that there was slightest abrasion on the right side of labia minora. In pursuance of the court questions, she deposed that in the instant case there was no penetration and by penetration she means that complete or partial penetration of penis. She went on to depose that there was no partial penetration. As regard abrasion of right side of labia minora, she clarified that same may be on account of somebody might have touched her private part or tried to molest her. She also admitted that by molestation, she means that somebody used his private part and rubbed it on forchute of the girl.
25. Result of aforesaid discussions is that even if on examination, Dr. Arifa found hymen to be intact, it does not mean that no such incident of rape had taken place. The judicial pronouncements are even to this effect that even if no sign of rape is found by doctor, there is no question 18 to disbelieve the testimony of prosecutrix. In Om Prakash (supra), it was observed by the lordship of Hon'ble Apex Court in a given case, even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve her testimony. In fact, as discussed above, FSL result conclusively proved that on the underwear of prosecutrix, human semen was detected, besides blood. Similarly, on underwear of accused human semen was detected.
26. Result of the aforesaid discussion is that testimony of prosecutrix finds substantial corroboration from the fact :-
(i) That immediately after the incident, she narrated entire incident to her mother, and thereafter to Dr. Arifa.
(ii) In her statement before the ld. Magistrate, who recorded her statement under section 164 Cr.P.C., she also narrated the entire incident.
(iii) Medical record.
(iv) FSL result.
27. As regards defence taken by the accused is concerned, same does not inspire confidence, inasmuch as the accused is taking various pleas in his statement, which has no legs to stand.
(1) Initially the accused had tried to state that one Kallu was having illicit relations with Saina. It is not clarified as to how illicit relation between Kallu and Saina, although not proved, has any bearing to his implication in the instant case.
(2) Subsequently, he has tried to state that Tejvir, son of uncle of Satpal, asked him to sweep and clean road and the nearby vicinity, which he declined.
(3) Another theory stated by him was that he wanted to leave the temple 19 with computer system, which he had purchased himself. However, he was asked by Satpal and others either to pay an amount of Rs.1 lac or to leave the computer system in the temple itself. When he declined to do so, therefore this false case was foisted upon him. As stated above, he had also examined Jamuna Prasad in support of his defence, who had deposed that accused was asked to sweep and clean, whereas he being the pujari of the temple was not required to sweep in the street. Even if, it is assured to be correct, it does not in any manner shows as to why for this reason, accused will be implicated in such a serious case. (4) One day Sarita came inside the room of accused, who was reading a book. She bolted the door from inside. On his inquiry, she demanded a sum of Rs.1 lac. On his refusal to give the amount, she went outside. (5) Police officials came at the spot and asked accused to give an amount of Rs.1 lac. HC Karan demanded a sum of Rs.1 lac and Anil Kumar, Constable, demanded a sum of Rs.75,000/-, otherwise he would be implicated in some false case.
28. In fact, all these defence taken by the accused seems to be afterthought, inasmuch as it has seen the light of the day for the first time in the statement of the accused and no such suggestion was given to any of the prosecution witnesses. The only suggestion was that he was implicated at the instance of Sarita or Satpal, which was denied by them and no proved by the accused. As regard demand of Rs.1 lac by HC Karan or Rs.75,000/- by Constable Anil Kumar, there is nothing to show that any complaint was made by him to any higher officer. The record reveals that on the very date of incident, in report lodged by the prosecutrix or her parents, it was only on the next date when they had again gone to the temple to inquire from the accused as to why he had 20 committed such a folly. Accused himself called the police and thereafter police machinery was set in motion.
29. Hon'ble Supreme Court in Bharwada Bhoqinbhai Hirjibhai Vs. State of Gujrat 1983 (2) Recent Criminal Report 192 had noticed peculiar conditions and circumstances in which a girl or woman, who happens to be victim of rape, in Indian conditions would find herself and so will be reluctant to disclose such incident to anyone and it is observed as under :-
" Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or woman in India make false allegations of sexual assault... The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because : (1) A girl or a woman in the tradition bound non- permissible Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the Society or being looked down upon by the society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel 21 extremely embarrassed in relating the incident to others being overpowered by a feeling of shame and account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not want to avoid publicity on account of fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, act as deterrent."
30. When in the face of these factors, the crime is brought to light, there is a built in assurance that the charge is genuine rather than fabricated. Even in Satya Pal (supra) it was observed that Court can take judicial notice of the fact that ordinarily the family of victim would not intent to get a stigma attached to the victim. Delay in lodging the first information report in a case of this nature is a natural phenomenon.
31. The mother of the prosecutrix has categorically deposed that parents, uncle and other relations of the accused were visiting her home time and again, and on that count her family honour has come at stake. She apprehends danger to her life and limbs. Even the father of prosecutrix, Sh. Rajesh Kumar, has deposed that on 30.01.09, that is the preceding date, when he was to be examined in the Court, he was accosted by three persons, who asked him to compound the matter. He was not ready to accept the money and compound the matter with accused. Four 22 persons had also gone to his room, who were saying that they were brothers of an advocate and asked to compound the matter. Despite pressure exerted on him, the witness mustered courage to depose against the accused, as such there is no reason to disbelieve his testimony, being the father of prosecutrix Bhagyashri. Moreover, at the cost of repetition, it may be mentioned that testimony of prosecutrix herself did not require any corroboration. However, in the instant case her testimony finds ample corroboration from medical evidence as well as FSL result. On the other hand, accused has not been able to bring out even an iota of doubt in the case of prosecution, which may show that he has been falsely implicated in the instant case.
32. In view of the foregoing discussions, prosecution has been able to prove its case against accused Ishwar Dayal beyond shadow of reasonable doubt. Consequently, accused Ishwar Dayal is held guilty and convicted for an offence of rape, under section 376 IPC.
Announced in the Open Court (Sunita Gupta) On this 8th day of July, 2009. District Judge-VII/North-East/ASJ, Karkardooma Courts, Delhi.
23 IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGE-VII :
NORTH-EAST-CUM- ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :
S.C. No. 18/09
State Vs. Ishwar Dayal S/o Sh. Puran Chand,
R/o Village Palso, PS Goverdhan, Distt. Mathura,
U.P.
FIR No. 372/2008
PS Shahdara
U/s 376 IPC.
ORDER ON THE POINT OF SENTENCE :-
Leniency in punishment has been claimed by ld. Counsel for convict Ishwar Dayal. He submits that convict is a young boy of 20 years, who has yet to start his life. Convict is saddled with the heavy responsibility of his family, being the sole bread earner of the family. Convict does not have any criminal history behind him. He also submits that convict be dealt with leniency in awarding punishment.
2. On 02.11.03 at about 7 or 7.30pm, Bhagyashri (name changed), along with her elder brother and younger brother Vikas, had gone to Surya Temple to take prasad. Convict Ishwar Dayal was working as priest there. He took her and her young brother upstairs, while her elder brother was made to run away. Convict asked her and Vikas to fold their hands in front of the god. Thereafter, convict inserted his penis in her vagina. Bhagyashri went weeping to her home. She narrated entire facts before her mother Sarita. On 03.11.08, Rakesh Kumari ASI received DD No.19A. She reached Surya Temple, Kabir Nagar, Street No.5, Shahdara, Delhi, where statement of Sarita was recorded, regarding commission of rape upon her daughter Bhagyashri. Statement of Bhagyashri was also recorded under section 161 Cr.P.C as well as under
section 164 Cr.P.C, wherein she raised accusing finger against convict 24 Ishwar Dayal.
3. Therefore, facts and circumstances, detailed above, projected that an alarming offence was committed by the convict. Moreover, an act of child rape is a gruesome and abhorring act. It leaves a permanent scar on the personality of the child, inhibiting growth and development. It instills a feeling of fear, insecurity and a brooding sense of shame and guilt for no fault of the child victim. Under these circumstances and keeping in view seriousness of offence committed by the convict, he is hereby sentenced to under RI for ten years and to pay a fine of Rs.7,000/-. In default of payment of fine, he would further undergo RI for one year.
4. Fine, if recovered, be paid to Bhagyashri as token of compensation.
Convict shall get the benefit of period already undergone in detention during investigation and trial of the case. A copy of judgement and order on sentence be supplied to him free of cost.
Announced in the Open Court (Sunita Gupta) On this 11th day of July, 2009. Distt. Judge-VII/North-East/ASJ, Delhi.