Delhi District Court
State vs (1) Sahdev Shah on 31 March, 2012
IN THE COURT OF SH. K.S.PAL: ASJ: KKD COURTS(E): DELHI
S.C. No: 95/08
State Versus (1) Sahdev Shah
s/o Sh Mangan Shah
(2) Sanjeev Kumar @ Sanju
s/o Shri Sahdev Shah
Both r/o Town Gudri Bazar,
PO & PS Darbhanga,
Distt. Darbhanga, Bihar.
FIR No: 187/08
P.S.: New Ashok Nagar
U/s. 376/34 IPC
Date of institution of charge sheet (before learned MM) 25.07.2008
Date of assignment of case to the Sessions court 04.08.2008
Date on which the judgment was reserved 05.03.2012
Date on which the judgment has been delivered: 31.03.2012
JUDGMENT
1. Accused Sahdev Shah s/o Sh Mangan Shah and Sanjeev Kumar @ Sanju s/o Shri Sahdev Shah, both r/o Town Gudri Bazar, PO & PS Darbhanga, Distt. Darbhanga, Bihar were arrested by the police of PS New Ashok Nagar in case bearing FIR No: 187/2008, and have been challaned to the court for facing the trial for the offences punishable u/s 376(2)(f) IPC with the allegations that on 24.05.2008 in between 2:30 pm to 2:45 pm in the tenanted premises forming part of house of Chaman, E-Block, New Ashok Nagar, accused Sahdev Shah committed rape of Kumari Dolly, a minor girl aged about 11 years and about 2-3 days prior to 24.05.2008, Sanjeev Kumar @ Sanjy son of Sahdev Shah had also committed rape of Kumari Dolly in the same tenanted room during noon time. Police was informed on 25.05.2008 and statement of Kumari Dolly SC no. 95/08, State Vs. Sahdev Shah and anr. page 1 of 10 was recorded on the basis of which rukka was prepared and present FIR was registered. During investigation of this case, both the accused persons were arrested by the police and their disclosure statements were recorded and moreover they were taken to hospital for their medical examination. Prosecutrix Kumari Dolly was also medically examined and statement of concerned witnesses were recorded by the IO u/s 161 Cr.PC and IO after completing the investigation of this case, filed the challan in the court of concerned M.M.
2. Copies of the challan were supplied to both the accused persons as per requirement of Section 207 Cr.PC by the concerned court of learned MM and thereafter this case was committed to the court of Sessions and it was marked to this court for trial of the accused persons.
3. On 28.02.2009 charge were framed against both the accused persons for the offences punishable u/s 376(2)(f) IPC to which they pleaded not guilty and claimed trial.
4. In order to prove the guilt of accused persons for the alleged offences, prosecution has examined as many as 11 prosecution witnesses namely PW 1 - HC Satya Prakash; PW 2 - Dr. S. Prasad, CMO LBS Hospital; PW 3 - Dr. Deepak Mathur; PW 4 - Ganesh Shah; PW 5 - Baby Dolly; PW 6 - HC Amar Singh; PW 7 - Dr. Pramod Kumar; PW 8 - Dr. Tapasi Chattarji; PW 9
- Virpal Singh; PW 10 - Ct. Narender Singh and PW 11 - W/ASI Santosh Sharma (IO of the case).
5. PW - 1 HC Satya Prakash is a formal witness of the prosecution, being the duty officer and this witness proved on record carbon copy of the FIR of this case as Ex.PW1/A alongwith his endorsement on rukka as Ex.PW1/B.
6. PW 2 - Dr. S. Prasad, CMO LBS Hospital proved on record the MLC of both the accused persons namely Sanjeev Kumar and Sahdev Shah as Ex.PW2/A and Ex.PW2/B respectively.
7. PW 3 - Dr. Deepak Mathur, proved on record the potency report of both the accused persons namely Sahdev Shah and Sanjeev Kumar as SC no. 95/08, State Vs. Sahdev Shah and anr. page 2 of 10 Ex.PW3/A and Ex.PW3/B respectively.
8. PW 4 - Ganesh Shah is the material witness of the prosecution, being the father of prosecutrix and this witness deposed that on 24.05.2008 at about 1 - 1.30 pm, he had left for his work for pulling rickshaw leaving his minor daughter Dolly at house and when he came back at his house, 10-20 persons were present and he came to know about rape of his daughter by accused Sahdev Shah. This witness also deposed that his daughter also disclosed to him that about 2-3 days back, she was also raped by Sanjeev Kumar @ Sanju and as such police was informed and recorded the statement of his daughter. She was also taken to LBS Hospital. This witness also deposed about the arrest of both the accused persons vide memos Ex.PW4/A and PW4/B respectively bearing his signatures.
9. PW 5 - Baby Dolly is the material witness of the prosecution being the prosecutrix in this case. This witness deposed about the doing of GALAT KAAM by accused Sahdev Shah as well as by accused Sanjeev Kumar @ Sanju. This witness deposed about the bleeding from her private parts as well as cleaning the bleeding by peace of cloth given by one Aunty. Even this witness also deposed about the giving of her statement to police as Ex.PW5/A as well as her medical examination in the hospital. Even this witness also identified both the accused persons in the court.
10. PW 6 - HC Amar Singh had accompanied the IO/W/ASI Santosh Sharma and Ct. Virpal in the investigation of this case and this witness deposed that on 25.05.2008 at about 11 pm, both the accused persons were apprehended while coming from NOIDA side at the instance of father of the prosecutrix and both the accused persons were arrested vide memos Ex.PW4/A and Ex.PW4/B respectively. Moreover this witness also proved on record personal search memos of both these accused persons as Ex.PW6/A and Ex.PW6/B respectively. This witness also deposed that during interrogation both the accused persons made disclosure statements proved on record as SC no. 95/08, State Vs. Sahdev Shah and anr. page 3 of 10 Ex.PW6/C and PW6/D respectively.
11. PW 7 - Dr. Pramod Kumar, RMP deposed that on 24.05.2008 he was present at his clinic bearing no. E 382, New Ashok Nagar, Delhi and on 24.05.2008 one girl aged about 10-11 years old was brought before him by one lady with an complaint of pain in her stomach and accordingly he gave medicine for the stomach pain. This witness also deposed that his statement was recorded by IO in this case on 17.06.2008.
12. PW 8 - Dr. Tapasi Chattarji CMO LBS Hospital, Delhi has proved on record MLC of Ms. Dolly daughter of Ganesh Shah prepared by Dr. Ruby Parveen on 24.05.2008 with the alleged history of rape as Ex.PW8/A.
13. PW 9 - Ct. Virpal Singh is a material witness of the prosecution who alongwith W/ASI Santosh Sharma had taken prosecutrix Dolly to LBS Hospital for her medical examination. This witness also deposed about the preparation of rukka by IO/W/ASI Santosh Sharma which was handed over to him for registration of case and accordingly the present FIR was registered and cop of the FIR alongwith original rukka were given to the IO at the spot i.e. E- Block, house of one Chaman, New Ashok Nagar, Delhi. This witness also deposed about the preparation of site plan by W/ASI Santosh Sharma as well as making efforts for the arrest of both the accused persons. This witness also deposed about the arrest of both the accused persons in this case as well as taking them to LBS Hospital for their medical examination. This witness also deposed that after the medical examination of prosecutrix on 25.05.2008 at LBS Hospital, the concerned Doctor had handed over 4 parcels duly sealed with the seal of LBS HOSP KP alongwith one sample seal which were seized by the IO vide memo Ex.PW9/A. Similarly this witness also deposed that on 26.05.2008 after medical examination of both the accused persons, the concerned Doctor had handed over four parcels duly sealed with the seal of LBS HOSP KP alongwith one sample seal which were handed over to the IO and taken into possession vide memo Ex.PW9/B bearing his signature at point A. This witness SC no. 95/08, State Vs. Sahdev Shah and anr. page 4 of 10 also deposed about the handing over of one peace of saari given by prosecutrix which were taken into possession by the IO vide memo Ex.PW2/C after keeping the same in the parcels duly sealed with the seal of SK.
14. PW 10 - Ct. Narender Singh deposed that on 26.05.2008, IO of this case had directed him to get the medical examination done of both the accused persons in the hospital and accordingly he alongwith Ct. Virpal took both the accused persons to hospital and accused Sahdev Shah was medically examined vide MLC Ex.PW2/B.
15. PW 11 W/ASI Santosh Sharma is a material witness of the prosecution, being the IO of this case and she deposed that on 25.05.2008 while she was posted at PS New Ashok Nagar as ASI, Ganesh Shah alongwith her daughter Kumari Dolly (prosecutrix) had come to PS and reported the matter about the rape of her daughter and accordingly she recorded the statement of Kumari Dolly and made her endorsement as Ex.PW11/A and sent the rukka to PS through Ct. Virpal on the basis of which the present FIR was registered and copy of the FIR alongwith original rukka were handed over to her by Ct. Virpal. This witness also deposed about the preparation of site plan Ex.PW11/B at the instance of prosecutrix. Further this witness deposed about the arrest of both the accused persons in this case on 26.05.2008 near Sarpanch Chowk at the instance of father of prosecutrix vide memo Ex.PW4/A and Ex.PW4/B respectively after taking the personal search of both the accused persons vide memos Ex.PW6/A and PW6/B respectively. This witness also deposed about the making of disclosure statements by both the accused persons namely Sahdev Shah and Sanjeev Kumar as Ex.PW6/C and Ex.PW6/D respectively bearing her signatures. This witness, being the IO also deposed that before the registration of FIR, prosecutrix was got medically examined in LBS Hospital and the four sealed parcels given by the concerned Doctor were seized by her vide memos Ex.PW9/A. This witness also deposed that statement of prosecutrix was also got recorded u/s 164 Cr.PC by the concerned learned MM on 26.05.2008 SC no. 95/08, State Vs. Sahdev Shah and anr. page 5 of 10 and copy of this statement recorded u/s 164 Cr.OPC has been proved on record as Ex.PW11/D. This witness also deposed about the recording of statement of witnesses u/s 161 Cr.PC as well as filing of challan in the court after completing the investigation of this case.
16. Statements of both the accused persons have also been recorded under section 313 CrPC in order to give them an opportunity to explain the circumstances appearing in evidence against them. Both the accused persons have denied the allegations of the prosecution as false and incorrect by taking the plea that they have been falsely implicated by the police in this case at the instance of Ganesh Shah, father of prosecutrix to whom they used to deposit Rs. 60/- per day after pulling rickshaw and when this arrear of amount was demanded, father of prosecutrix on one or other pretext avoided to make the demand and thereafter they have been falsely implicated in this case.
17. I have heard the final arguments made by learned Addl. PP for the State as well as Shri Abdul Sattar, amicus curiae for both the accused persons at great length and have also gone through the material as well as evidence adduced on record.
18. During the course of arguments, learned counsel for both these accused persons vehemently contended that prosecution has miserably failed in proving the guilt of both the accused persons for the alleged offences as from the perusal of MLC Ex.PW8/A pertaining to the prosecutrix, no rape could be established on record as no marks of external injuries or bleeding in private parts were found and even vagina admitted only tip of finger. It was also submitted that the story of the prosecution regarding rape has also been falsified from the fact that on the piece of saari (Ex.P-1) with which bleeding was allegedly cleaned by prosecutrix, no blood was found as per FSL report. It was also submitted that even no semen was found on the clothes of prosecutrix except underwear '1a' but its group could not be found due to no reaction. It has also been submitted by learned counsel for accused persons that none examination of Smt. Meera by SC no. 95/08, State Vs. Sahdev Shah and anr. page 6 of 10 the prosecution has also rendered the story of the prosecution regarding rape as false and improbable and even PW 7 - Dr. Pramod Kumar, RMP had not found any injury or bleeding when the prosecutrix was taken by Smt. Meera for her treatment on 24.05.2008. It was also submitted by learned counsel for accused persons that both the accused persons, being father and son have been falsely implicated by PW 4 - Ganesh Shah, father of prosecutrix as both the accused persons were demanding the amount paid to Ganesh Shah who was avoiding to make the payment on one or other pretext.
19. Learned Addl PP for the State, on the other hand, submitted that guilt of accused persons for the alleged offences have been established on record and testimonies of PW 4 - Ganesh Shah as well as prosecutrix cannot be disbelieved and PW Smt. Meera could not be examined in this case as present whereabouts of this witness could not be traced out despite sincere efforts made.
20. I have bestowed my careful consideration to the rival submissions made by Learned Addl. PP for the State as well as learned counsel for the accused persons in the light of the facts and circumstances of the case as well as the evidence and materials adduced on record by the prosecution by examining aforesaid 11 witnesses.
21. The law is well settled that in a criminal case, it is for the prosecution to prove on record the guilt of accused persons for the alleged offences by leading cogent and convincing evidence on record and guilt of the accused should be proved beyond any reasonable doubt and if any doubt arises about the involvement of the accused persons in the commission of the alleged offences, then the benefit of such doubt is always given to the accused persons.
22. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of the hymen. Partial penetration of the penis within the labia majora of the vulva or pudendum with or without emission of semen or even an attempt of SC no. 95/08, State Vs. Sahdev Shah and anr. page 7 of 10 penetration is quite sufficient for the purpose of law. In a girl under 14 years of age, vaginal orifice is usually so small that it would hardly allow the passage of little finger. In cases of sexual intercourse, the hymen may not remain intact if the vaginal orifice admits two fingers easily. If penetration takes place in the case of a girl of such age, then there can be wide spread damage of the fourchette, hymen, labia majora, vulva and vaginal canal. Where the doctor did not notice any injury or signs of violence on the labia majora, it has been duduced that no penetration has taken place (Suresh Chand Vs. State of Haryana (1975) 75 Punj. L. R. 54).
23. Keeping in view the aforesaid principles of criminal jurisprudence and applying the same to the facts and circumstances of the present case, I am of the view that the prosecution has not been able to prove the guilt of both the accused persons for the alleged offences beyond reasonable doubt because from the perusal of MLC Ex.PW8/A of prosecutrix, it is clear that no marks of external injuries or bleeding in private parts of the prosecutrix were found by the concerned doctor and even vagina of the prosecutrix admits only tip of finger. Admittedly prosecutrix was of 11 years old at the time of this alleged occurrence and had she been raped by accused persons, then bleeding as well as marks of injury must have been noticed by the concerned doctor at the time of her medical examination on 25.05.2008. In her statements given to the police, recorded u/s 164 Cr.PC as well as as a witness in this case, prosecutrix stated about the bleedings in her private parts after the alleged rape, committed by accused Sahdev Shah as well as cleaning of the bleeding with a piece of saari given by Meera Aunty. Even during the investigation of this case, that piece of saari was also seized and it was sent to FSL but as per report of FSL, no blood was found on this piece of saari (Ex.2). Even it is established on record that on 24.05.2008 after the alleged rape of prosecutrix, she was taken by one Smt. Meera to the clinic of a doctor in the locality and that doctor Pramod Kumar, RMP, 382, Ashok Nagar, Delhi has been examined in this case as PW 7, but he did not find any SC no. 95/08, State Vs. Sahdev Shah and anr. page 8 of 10 bleeding or marks of injury on prosecutrix at that time. Hence, this story of the prosecution that prosecutrix was raped by accused Sahdev Shah on 24.05.2008 and there was bleeding in the private parts of the prosecutrix which was cleansed by a piece of saari given by Smt. Saari has not been established on record.
24. Here it is pertinent to mention that in the case of Radhu Vs. State of M.P. 2007 (4) JCC 2603, the Hon'ble Supreme Court has held that the false charges of rape are not uncommon and in some cases parents do persuade gullible or obedient daughter to make the false charges of rape either to take revenge or to extort money or to get rid of financial liability. Moreover, in case of State of U.P. Vs. Ashok Dixit and Others 2000 (3) SCC 70, it has been held by the Hon'ble Apex Court that the evidence of a child witness is required to be evaluated carefully as the child may be swayed by what others may tell him or her as the child is easy prey to tutoring.
25. In the present case, the defence taken by the accused persons that accused no. 2 Sanjeev Kumar being a rickshaw puller used to deposit Rs. 60/- per day with father of the prosecutrix and when he demanded the amount paid to the father of prosecutrix, Ganesh Shah, father of prosecutrix avoided to make the payment on one or other pretext and thereafter both of them, being the father and son have been falsely implicated in this case, appears to be more probable and believable, keeping in view the fact that prosecutrix in her statement given to the police on 25.05.2008 had also stated that about 2 - 3 days prior to 24.05.2008, she was also raped by Sanjeev Kumar @ Sanju. Admittedly both the accused persons as well as father of the prosecutrix had been living as tenants in the same premises and possibility of implicating the accused persons falsely in this case by the father of prosecutrix in order to avoid his financial liability, cannot be ruled out.
26. Considering all the facts and circumstances of the case and in view of my above discussions coupled with reasons given and also the medical SC no. 95/08, State Vs. Sahdev Shah and anr. page 9 of 10 evidence not supporting the prosecution case regarding rape of prosecutrix, I have come to this conclusion that prosecution has failed in proving the guilt of both the accused persons namely Sahdev Shah and Sanjeev Kumar @ Sanju for the alleged offences beyond reasonable doubt. Accordingly, both the accused persons namely Sahdev Shah and Sanjeev Kumar @ Sanju are acquitted in this case by giving them benefit of doubt. They be released from jail if not wanted in any other case.
File be consigned to RR.
Announced in open court on 31.03.2012. (K.S. PAL) Addl. Sessions Judge:
KKD Courts(E): Delhi.
SC no. 95/08, State Vs. Sahdev Shah and anr. page 10 of 10