Delhi District Court
State vs . Jai Prakash on 16 March, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II(NORTH-WEST): ROHINI COURTS: DELHI.
Sessions Case No. 1224/2010
Unique Case ID No. 02404R0142262010
State Vs. Jai Prakash
S/o Arjun Thakur
R/o Jhuggi No. B-260,
CSA Colony, Wazirpur
Industrial Area, Delhi.
(Convicted)
FIR No.: 101/2010
Police Station: Ashok Vihar
Under Section: 376 (2) (f) Indian Penal Code
Date of committal to Sessions Court: 7.7.2010
Date on which orders were reserved: 4.2.2011
Date of decision: 4.3.2011
JUDGMENT:
1. The allegations against the accused are of committing rape with a minor girl 'M' (aged about 12 years) (name of the girl is withheld as this is a case under Section 376 (2) (f) Indian Penal Code), his sister-in-law at Jhuggi No. B-260, First Floor, CSA Colony, Wazirpur Industrial Area.
BRIEF FACTS/ CASE OF THE PROSECUTION:
2. The case of the prosecution is that on 15.4.2010, HC Chaju Lal on receipt of DD No. 12A, reached at ESI Hospital Basai Darapur, State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 1 of 50 Raja Garden and collected the MLC No. 216/10 of prosecutrix 'M' (name of the girl is withheld as this is a case under Section 376(2)
(f) Indian Penal Code) and according to the doctor, the prosecutrix was not fit to give statement at that time. HC Chaju Lal did not find the father and mother of prosecutrix in the hospital and therefore the MLC was kept pending. Thereafter, on 16.4.2010, the investigating officer reached at ESI Hospital who recorded the statement of the prosecutrix. The victim / prosecutrix 'M' in her statement to the investigating officer had stated that she was twelve years old and was residing at A-315/1, Uddham Singh Park, Wazirpur Industrial Area, Ashok Vihar, along with her sister Pooja and jija Jai Prakash (the present accused). She further told the investigating officer that about two years back her sister Pooja brought her to Delhi and got her admitted in Class 6th in the School at D- Block, Ashok Vihar and that her jija Jai Prakash had done 'galat kam' on two to three occasions, dates she does not remember, but according to her the accused used to threatened her while doing 'galat kam'. The prosecutrix further told the investigating officer that when her stomach started increasing in size, then on 3.4.2010 her sister took her to a doctor and informed that she was having pain in her stomach on which doctor advised that there was a swelling in her stomach and gave her medicine. She further told the investigating officer that later when her sister delivered a child and was hospitalized, she went to the hospital to see the child of her sister, where she felt pain in her stomach on which she was taken to the doctor where she delivered a child. She prayed for legal action against her jija Jai Prakash (present accused).
State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 2 of 50
3. On the basis of the statement of the prosecutrix, present FIR was got recorded and at the instance of the prosecutrix, the accused was arrested on 16.4.2010 and his medical examination was got conducted. On 17.4.2010 the child delivered by prosecutrix died and his cremation was conducted at Nigam Bodh Ghat by investigating officer. Statement of prosecutrix was got recorded under Section 164 Cr.PC before Ld. MM and DNA test was also got conducted to ascertain the parentage of the child. After completing the investigation, charge sheet was filed before the court.
CHARGE:
4. This court has settled the charges under Sections 376 (2) (f) Indian Penal Code against the accused to which he pleaded not guilty and claimed trial.
EVIDENCE:
5. In order to prove its case the prosecution has examined as many as nineteen witnesses.
Public witnesses:
6. PW10 Smt. Premwati, Principal, Nigam Vidhyala, Wazirpur Industrial Area, K-Block, has deposed that on 01.05.2010 she was working as Principal at this school and on that day the investigating officer SI Raj Bala had moved an application seeking the record of date of birth of prosecutrix prosecutrix Kumari. She received the copy of the same which is Ex.PW10/A bearing her signatures at point A. State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 3 of 50 She had given her certificate vide Ex.PW10/B bearing her signatures at point A. According to the witness, as per record, the date of birth of the prosecutrix is 01.09.1998 and her date of admission is 29.08.2008. The witness has proved the original record of prosecutrix and the copy of application form running into two pages which is Ex.PW10/C bearing her signatures at point A on both the pages. She has also proved the original affidavit submitted in support of date of birth and address along with the application form and copy of the affidavit is Ex.PW10/D which also bears her signatures at point A. This witness has further proved the admission register and the relevant entry which is Ex.PW10/E and bears her signatures at point A. In her cross examination by Ld. Amicus Curiae, this witness has deposed that in the column provided for giving the name of father/mother's name, Sh. Jai Parkash Thakur/Smt. Pooja Devi is mentioned which names were given by Jai Parkash at the time of admission of the prosecutrix. The witness has further deposed that they had taken an affidavit only in support of date of birth and resident proof. According to the witness they do not take any other proof showing the date of birth of the child issued from office of Birth and Death of the concerned area in case the child comes from village. The witness is unable to admit or deny whether the Jai Parkash or Smt. Pooja Devi had given wrong date of birth in the affidavit and the admission form.
7. PW11 Mrs Pooja, W/o Jai Parkash, has deposed that she has four other sisters and she is eldest one and has no brother. According to her she is 26 years old and her sister i.e. prosecutrix is about 10 years less in age to her. She has deposed that her husband Jai Parkash, State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 4 of 50 (present accused) used to work in the factory and she along with her husband reside at B-Block, Ashok Vihar. The witness has further deposed that she had brought her younger sister the prosecutrix from her native village for her education in Delhi and was residing with them. According to the witness, initially they were residing in jhuggi situated in A Block and thereafter they had changed the jhuggi and started leaving in another jhuggi near the previous jhuggi. She got their ESI card prepared and the name of her younger sister prosecutrix got entered in the same. She has deposed that she also got her sister admitted in the school which is near our jhuggi in fourth class and she passed fifth class and was in sixth class at the time of incident. She has deposed that her sister, the prosecutrix told her that she was suffering from pain in her stomach and therefore she took her to ESI hospital where doctor suggested Ultrasound but due to her own illness she could not get her Ultrasound conducted. However, during this period she (witness) gave birth to a female child who was not fully developed and was kept by the doctor in nursery. The witness has further deposed that the prosecutrix suffered from labour pain and she was got admitted in the hospital after which she delivered a male child. According to the witness, thereafter the doctor informed the police station and police came in the hospital and the investigating officer examined prosecutrix but she did not tell anything in her presence as to what had happened to her. The witness has deposed that, she had given her statement to the police in which she had not stated the fact which were narrated by prosecutrix to the police.
State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 5 of 50
8. With due permission of this court, the Addl. PP also cross examined the witness as she was found resiling from her previous statement. In her cross-examination by Addl. PP, The witness has deposed that she came to know about facts of this case through the police and her statement Ex.PW11/A was recorded by the police. The witness has denied the suggestion that prosecutrix had stated to the police in her presence that her husband (the accused Jai Prakash) had committed rape (wrong act) upon her. She has admitted that she did not feel the changing in the body of prosecutrix due to pregnancy and did not see any characteristic of being pregnant of prosecutrix being married lady. She has denied the suggestion that she had given in her statement Ex.PW11/A that her husband might have given threat to the prosecutrix therefore she did not tell anything to her. The witness has further denied the suggestion that she had stated in her statement to the investigating officer that her husband had done the wrong act (rape) upon her sister i.e. prosecutrix and sought punishment for the accused who is her husband. The witness has also denied the suggestion that being wife of the accused Jai Parkash she is not telling the fact that the prosecutrix had given the allegations of rape upon her to the investigating officer in her presence. She has denied the suggestion that being wife of the accused she is not deposing against the accused and not giving the correct facts as mentioned mentioned in her statement Ex.PW11/A deliberately in order to save him.
9. In her cross examination by Ld. Amicus Curiae, this witness has admitted that she is a house wife and does not go for work anywhere any point of time. She has denied the suggestion that her State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 6 of 50 sister i.e. prosecutrix is about one or two years younger to her.
10. PW12 is the prosecutrix 'M' (name of the girl is withheld as this is a case under Section 376(2) (f) Indian Penal Code). She has deposed that her elder sister Pooja is married to the accused Jai Prakash and resides at D-Block, Wazirpur, Delhi. She further deposed that her sister Pooja had brought her to Delhi for the purposes of studies and had got her admitted in Government School situated at A- Block, Ashok Vihar, Delhi where she was in Class 5th and had gone to class 6th. According to prosecutrix, the accused Jai Prakash is her Jija who had done 'ganda kam' with her on two occasions. She has deposed that she did not know what was happening with her and when she objected, the accused told her 'kuch nahi hota'. The prosecutrix has further deposed that after some time, she started having pain in her stomach and her stomach also started to grow in size. She told her sister about the pain on which her sister took her to the doctor and the doctor told them that there was a swelling in her stomach and gave medicines for it. The prosecutrix has further deposed that about six months back (i.e. from the date of her deposition in the court), the date she does not remember, when she had gone to the hospital to see her sister Pooja who had delivered a child, she (prosecutrix) became unconscious on account of the pain in stomach and she was taken to the doctor. According to the prosecutrix, when she came to her senses and regained consciousness, she was told that he had delivered a child and the child had died and thereafter the doctor informed the police and the police recorded her statement.
State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 7 of 50
11. A court question was put to the prosecutrix if she had physical relations with any other person to which she has denied and stated that it was only the accused Jai Prakash who had done these things with her. On further questioning by the court, the witness has deposed that she was sent to Nirmal Chhaya whre she stayed for one month and she was also produced before Ld. MM where her statement under Section 164 Cr.PC was recorded which is Ex.PX1 but according to her she does not recollect whether she had signed on the various pages. According to the prosecutrix, when she was examined by the doctor, her sister Pooja had given her own name in place of mother of child and name of the accused Jai Prakash was given in place of father of the child and it was because she was staying with her sister who according to her is 10-12 years elder to her and who had brought her to Delhi for purposes of studies.
12. In her cross examination by Ld. Amicus Curiae, the prosecutrix has testified that the jhuggi where she resides with her sister Pooja was only comprising of one room and she used to sleep with her sister. She further testified that she remained in a semi- conscious state for about two to three days and during that period she did not meet anybody. She has admitted that she did not tell her sister what the accused had been doing with her. She has further admitted that she was sent to Nirmal Chhaya and stayed there for about one month and she was made to understand and was told by the Incharge, Nirmal Chhaya, what to say before the Ld. MM. She has stated that she was told by the police officials what was to be said in the court.
State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 8 of 50
13. The court has read over the contents of the statement made by the prosecutrix before the Ld. MM and also what she has deposed before this court and thereafter she was asked about the correctness o the same on which the prosecutrix has stated that whatever she had told before the Ld. MM and whatever she has stated before the court, is true as it has happened with her. She has denied the suggestion that she is a major and hardly one or one and a half year younger to her sister. She has further denied the suggestion that she had made consensual relations with her jija (present accused). The prosecutrix has further denied the suggestion that the accused had never made relations with her and the child which was born was not from the accused Jai Prakash who is her jija.
14. PW14 Sh. Radhir Singh Sharma, Assistant, Branch Office ESI Ashok Vihar has produced the the employees state insurance corporation's record in respect of accused Jai Parkash, S/o Sh. Arjun Thakur and the computerized generated copy of the same is Ex.PW14/A running into three pages which bears the signatures of Branch Manager Sh. Thau Appau at point A which signatures the witness has identified being well conversant with the handwriting and signatures of Sh. Thau Appau having seen him while writing and signing during his course of official duty. This witness was not cross examined on behalf of the accused despite opportunity.
15. PW15 Deepak Sharma has deposed that he was working as Priest/ sewadar at Nigam Bodh Ghat, Kashmiri Gate and on 17.04.2010 one constable along with a lady constable and another lady having dead body of two days child came and they performed the State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 9 of 50 cremation ceremony of the child and a receipt to this effect was given to lady constable which is Ex.PX4. According to the witness, his signatures were taken on a written document which is Ex.PX3 bearing his signatures at point A. This witness was not cross examined on behalf of the accused despite opportunity.
Medical evidence / witness
16. PW6 Dr. Satender Kaur has deposed that on 17.04.2010 she was working as CMO and on that day Dr. Manjeet Kaur was also working as SR Gynae in the hospital who examined the patient prosecutrix aged about 12 years under her supervision and prepared the discharge slip which is Ex.PW6/A bearing the signatures of Dr.Manjeet Kaur at point A and bearing her signatures at point B. This witness was not cross examined by the accused despite opportunity.
17. PW7 Dr. Nupur Gupta has deposed that on 15.04.2010 she was working as specialist Grade-II in ESI hospital and on that day she examined the patient prosecutrix D/o Jai Parkash aged about 12 years, female brought by Pooja Devi vide MLC Ex.PW7/A. This witness was not cross examined by the accused despite opportunity.
18. PW8 Dr. Manjeet Kaur has deposed that on 15.04.2010 she was working as SR Gynae in ESI hospital Basai Darapur and examined the patient prosecutrix aged about 12 years under the supervision of Dr. Satender Kaur who was working as CMO in the aforesaid hospital and prepared the discharge slip on 17.04.2010 which is Ex.PW6/A which bears her signatures at point A. This witness was not cross examined by the accused despite opportunity.
State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 10 of 50
19. PW9 Dr. Rajesh Kumar Dalal, IMO Grade II, ESI Hospital, Basai Dara Pur, has deposed that on 03.04.2010 he was working as IMO Grade II in hospital and Dr. Ranjan Kumar examined the patient prosecutrix vide OPD ticket which is ExPW9/A which bears the signatures of Dr. Ranjan Kumar at point A. According to the witness, on 13.04.2010, he had examined the patient again and advised for ultrasound of whole abdomen vide his note on Ex.PW9/B which bears his signatures at point A and also filled in three laboratory requisition slips which are Ex.PW9/C running into three pages and which bears his signatures at point A. This witness was not cross examined by the accused despite opportunity.
20. PW13 Dr. A. K. Srivastava, Assistant Director (Biology), DNA Unit, FSL, has deposed that on 27.09.2010 he was working as Assistant Director, FSL Rohini. According to the witness, the exhibits dully sealed with the seal of MLC ESI hospital containing blood of prosecutrix and the accused Jai Parkash were received, which he had examined and prepared his DNA report which is Ex.PW13/A bearing his signatures at point A. He also filed in the identification form of Jai Parkash vide Ex.PW13/B and the identification form of the victim / prosecutrix which is Ex.PW13/C both also bearing his signatures at point A. According to the witness, the remnants of the exhibits were duly sealed with the seal of AKS FSL Delhi and were returned back to the SHO police station Ashok Vihar. According to the report Ex.PW13/A the DNA profile (STR analysis) performed on the exhibits provided was sufficient to conclude that the source of State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 11 of 50 exhibit '4' (blood sample of the accused) and source of exhibit '5' (blood sample of the prosecutrix) are biological father and mother of source of exhibit '1' (blood gauze of child delivered by the prosecutrix). This witness was not cross examined on behalf of the accused despite opportunity.
Police / official witnesses:
21. PW1 HC Banar Singh is a formal witness and has proved the relevant entry in copy of Register No. 19 which is Ex.PW1/A, the copy of the RC which is Ex.PW1/B and the receipt which is Ex.PW1/C. In his cross examination by Ld. Amicus Curiae, this witness has deposed that on 15.04.2010 no exhibits were deposited in the Malkhana by the investigating officer SI Raj Bala. He has admitted that in column having title of description of property he simply copied the contents of the seizure memo. According to him on 21.04.2010 he handed over four pulandas along with one sample seal to Ct. Babu Lal. He has deposed that he was not aware about the description of those pulandas. He has admitted that Ct. Babu Lal has not signed in Register No.19 as an acknowledgment of the above said pulandas and sample seal.
22. PW2 SI Devender Kumar is also a formal witness who has proved the copy of FIR which is Ex.PW2/A and the endorsement made by him on the rukka which is Ex.PW2/B. He in his cross examination by Ld. Amicus Curiae, has admitted that he has not typed the FIR in the computer and was typed in CIPA and he was not State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 12 of 50 personally present there. According to him he has not brought any certificate as required under Section 65 B of Indian Evidence Act along with him nor he has obtained the same from the concerned authorities. He has denied the suggestion that the FIR is ante-timed and ante dated.
23. PW3 Ct. Anil Kumar is a formal witness who has been examined by way of affidavit Ex.PW3/1. He had taken the accused to the hospital and got his medical examination conducted. He in his cross examination by Ld. Amicus Curiae, has deposed that he was on patrolling duty on 16.04.2010 when he was called by the duty officer in the police station. According to him he had not received any directions in writing to take the accused Jai Prakash for medical examination. He has admitted that accused was already present in the police station along with the investigating officer. He did not prepare any seizure memo regarding the MLC and the exhibits of the accused. The witness has denied the suggestion that he did not take the accused to the hospital for medical examination. According to the witness, no blood sample of the accused was taken in his presence.
24. PW4 Ct. Sandeep is again a formal witness who was examined by way of affidavit which is Ex.PW4/1. This witness has proved the seizure memo of the pulanda and sample seal which is Ex.PW4/A. In his cross examination by Ld. Amicus Curiae, this witness has deposed that he was present in the Beat area of police station Ashok Vihar when he was called by the Duty Officer and he reached police station at about 9.00PM. He has admitted that no written instructions were given to him regarding taking the accused State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 13 of 50 for medical examination. The witness has deposed that the investigating officer SI Raj Bala gave him a written application addressed to the Babu Jagjeevan Ram hospital requesting for medical examine the accused. He has admitted that the investigating officer SI Raj Bala did not accompany them to the hospital where they remained for about 20 minutes and SI Raj Bala did not visit the hospital during his stay in the hospital. He has also admitted that the seizure memo Ex.PW4/A was prepared in the police station. He has denied the suggestion that he did not take the accused for hospital for medical.
25. PW5 Ct. Babu Lal is a formal witness who was examined by way of affidavit which is Ex.PW5/1 bearing his signatures at points A and B. He has relied upon the copy of the RC which is Ex.PW1/B, the receipt which is Ex.PW1/C. This witness in his cross examination by Ld. Amicus Curiae, has deposed that the number of RC is 1/21/10. He has denied the suggestion that he did not take any pullanda from the police station nor he had deposited the same with the FSL. He has further denied the suggestion he did not take the prosecutrix from the Lock up to FSL for DNA test.
26. PW16 Ct. Ashok Kumar has deposed that on 17.04.2010 he was posted at police station Ashok Vihar and on that day he along with SI Raj Bala were busy in the investigations of this case. According to the witness he went to ESI Hospital along with the investigating officer where they met the doctor on duty and requested for a blood sample as the DNA test of male child delivered by the prosecutrix as his parentage was be required to be ascertained and the State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 14 of 50 doctor handed over a blood stained gauze of the child duly converted into a pullanda and duly sealed with the seal of hospital and the investigating officer took the same into possession vide memo Ex.PW16/A bearing his signatures at point A. The witness has further deposed that the body of the child was handed over to the mother of the child i.e. victim prosecutrix who accompanied them to office of Child Welfare Committee along with body of child where investigating officer moved an application before the member Child Welfare Committee for admitting the prosecutrix in the children home and for conducting the last rites of the child. According to the witness, after the order was passed the last rites/ cremation of the dead body of the child was conducted at Nigam Bodh Ghat and the prosecutrix was admitted in the children home. In his cross examination by Ld. Amics Curiae, the witness has denied the suggestion that he did not join the investigation with the SI Raj Bala and all documentation was done while sitting in the police station. He has further denied the suggestion that the blood gauze was not duly preserved and the seal was tampered.
27. PW17 Ct. Samunder Parkash has deposed that on 16.04.2010 he was posted at police station Ashok Vihar and on that day he was busy with investigating officer in the investigations of the present case and had gone to the ESI Hospital where the prosecutrix met them who was interrogated by the investigating officer and her statement was recorded and at about 5:45 PM. The witness has further deposed that he was handed over a tehrir by the investigating officer for registration of FIR and he took the tehrir to the police station State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 15 of 50 Ashok Vihar and after registration of the FIR came back to the hospital and handed over the copy of FIR and original tehrir to investigating officer SI Raj Bala. The witness has further deposed that Pooja the wife of the accused Jai Parkash was also present in the hospital along with the investigating officer and she identified her husband Jai Parkash, the accused who was apprehended by him (witness) and was arrested vide memo Ex.PW17/A bearing his signatures at point A and the signatures of prosecutrix at point B and the signatures of the investigating officer at point C. He has also proved the personal search of accused conducted by him vide memo Ex.PW17/B bearing his signatures at point A and bearing the signatures of the IO at point B. According to the witness, the accused was duly interrogated who made his disclosure admitting his involvement in the present case vide disclosure memo Ex.PW17/C bearing his signatures at point A and bearing signatures at point B. The witness has further deposed that the accused also led police party to his house at B-260, CSA Colony, Wazipur Industrial Area and identified the place where he was staying and the incident had taken place on which the investigating officer prepared the pointing out memo/ Fard Nishandehi which is Ex.PW7/D bearing his signatures at point A and signatures of the IO at point B. The witness has further deposed that on the pointing out of accused the, IO prepared the site plan of the place where he had allegedly committed the offence with the prosecutrix and site Plan is Ex.PW17/E. The witness has further deposed that thereafter they returned to the police station where his statement was recorded by the investigating officer.
State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 16 of 50
28. In his cross examination by the Ld. Amics Curiae, this witness has deposed that he reached the police station Ashok Vihar at about 6:35 PM after he brought the tehrir from the ESI Hospital. He stayed there at the police station for about 20-25 minutes and reached the hospital at about 7:30-7:40 PM and the accused also reached the hospital almost at the same time when he (witness) had reached the ESI hospital along with the copy of FIR and original Tehrir. According to him when the accused was apprehended at the hospital no doctor or employee of the hospital was joined as a witness, as they did not find anybody. The witness has also deposed that the accused was apprehended outside on the stairs of the hospital. According to the witness, the jhuggi of the accused is at a distance of about 7-8 Kms and they reached the jhuggi of the accused at about 8:20-25 PM but not find anybody else in the jhuggi as the jhuggi was closed though it was not locked. The witness has denied the suggestion that the accused was lifted from his house and was not present in the hospital. He has further denied the suggestion that all documentations were done while sitting in the hospital.
29. PW18 ASI Chaaju Lal has deposed that on 15.04.2010 he was working at police station Ashok Vihar on emergency duty as Head Constable and on that day on the receipt of DD No. 12A, he reached at ESI Hospital and collected the MLC No. 216/2010 of prosecutrix and Doctor had opined on the MLC that she was not fit for giving her statement. According to the witness, he informed the SHO on phone who sent SI Raj Bala to the hospital and he handed over the MLC and exhibits duly sealed with the seal of hospital to SI State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 17 of 50 Raj Bala. According to the witness, he also told the SHO who further handed over the aforesaid exhibits for getting the same deposited with MHC(M). He seized the same vide seizure memo Ex.PW18/A which bears his signatures at point A, after which DD No. 63B was made to this effect which is Ex.PW18/B. This witness in his cross examination has denied that he did not go to the ESI Hospital or that did not collect the MLC, exhibits and were not deposited with the MHC(M).
30. PW19 SI Raj Bala has deposed that on 15.04.2010 she was posted at Sub-Division Ashok Vihar and he alongwith HC Chhajju Lal on the receipt of DD No. 12A reached at ESI Hospital, Basai Darapur, Delhi where HC Chhajju Lal collected the MLC of prosecutrix prosecutrix, the exhibits of the prosecutrix duly sealed with the seal of hospital which were seized by HC Chhajju Lal vide seizure memo Ex.PW18/A. The witness has further deposed that being the case of rape with a minor girl, the case was handed over to her for the investigation. According to the witness, when she reached the hospital, the prosecutrix was unfit for giving her statement and she therefore kept the DD No.12A Ex.PX-8 pending. On 16.04.2010 she along with the SHO and Ct. Samunder left the police station and reached at ESI Hospital where they met the prosecutrix, she thereafter recorded her statement which is Ex.PW19/A bearing her signatures at point A and also prepared rukka Ex.PW19/B and got the FIR (Ex.PW2/A) registered through Ct. Samunder. According to the witness, the accused Jai Prakash was identified by prosecutrix as the person who had committed rape upon her on which he was arrested in State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 18 of 50 this case vide memo Ex.PW17/A and personally searched vide memo Ex.PW17/A bearing her signatures at point C and B respectively. After interrogation, he made his disclosure statement vide Ex.PW17/C bearing her signatures at point B. The witness has further deposed that the accused Jai Prakash took them at Jhuggi No. B-260, CSA Colony, WPIA, Ashok Vihar and pointed out at the said jhuggi in which he committed rape upon his sister in law (Saali), the prosecutrix on which she (IO) prepared the memo of pointing out vide memo Ex.PW17/D bearing her signatures at point B and also prepared the site plan at the spot vide Ex.PW17/E at the instance of Jai Prakash which bears her signatures at point A. The witness has also deposed that the accused was sent to BJRM Hospital for his medical examination through Ct. Sandeep and HC Anil who came back after getting the medical examination of the accused conducted vide MLC Ex.PX-2. She also seized the exhibits received from the hospital vide seizure memo Ex.PW19/C bearing her signatures at point A and the accused was sent to lock up and the case property was deposited in the Mal Khana.
31. PW19 has further deposed on 17.04.2010 on receipt of DD No.8A which is Ex.PX-7 regarding death of child of the prosecutrix prosecutrix, she alongwith Ct. Ashok reached at ESI Hospital and the body of child was tried to hand over Pooja the sister of prosecutrix but she had refused to receive the same and thereafter she (witness) received the body of the child. Thereafter, she received the blood sample of prosecutrix from the doctor duly sealed with the seal of ESI State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 19 of 50 Hospital and seized the same vide memo Ex.PW16/A bearing her signatures at point B. She also received the certificate Ex.PX-5 and death report form Ex.PX-6 from the hospital along with the discharge slip and the OPD ticket from prosecutrix. The witness has further deposed that she moved an application Ex.PW19/D before the Child Welfare Officer, Kingsway Camp seeking permission regarding disposal of the body of the child of prosecutrix on which Sh. Peeyush Angrish, Member, Bench of Magistrates, CWC had directed that the cremation be done as per rules and thereafter the cremation of dead body of baby prosecutrix was got done at Nigham Bodh Ghat, Delhi vide receipt Ex.PX-4 and her application to this effect is Ex.PX-3 and as per direction of the CWC prosecutrix was sent to Nirmal Chhaya. According to the witness, she recorded the statements of witnesses and the exhibits were deposited in Mal Khana. Thereafter, on 19.04.2010 she got recorded the statement of the prosecutrix under Section 164 Cr. PC which is Ex.PX-1 and also obtained the copy of statement and the same is Ex.PW19/G. According to the witness she moved an application before Ld. MM on 20.04.2010 seeking production of the accused and the victim prosecutrix and on 21.04.2010 and obtained the permission from Ld. MM Sh. Satish Kumar for getting the DNA of prosecutrix conducted on her application vide Ex.PW19/H which was also allowed. Thereafter, the DNA test of the child of the prosecutrix was got done at FSL Rohini vide report Ex.PW13/A to Ex.PW13/C which thereafter was collected later. She also collected the school certificate of the prosecutrix which is Ex.PW10/B on her State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 20 of 50 application Ex.PW10/A. The witness has further deposed that she verified the ESI card of the accused Jai Prakash from the issuing authority and the same was found genuine and the accused had shown the prosecutrix in the ESI card as his daughter but in the record maintained in the office of ESI her name was not found available. She recorded the statements of the witnesses and prepared the challan after completing necessary investigations.
32. In her cross examination by Ld. Amicus Curiae, the witness PW19 SI Raj Bala has testified that on 15.04.2010 she left the police station at about 11.00AM alongwith HC Chhajju Lal and it was HC Chhajju Lal who made a departure entry however she does not remember the DD Number. Witness has admitted that she was not having any instructions in writing to join the investigation of this case but the SHO had directed her to accompany HC Chhajju Lal as the prosecutrix was a minor child. According to the witness, they reached the hospital at about 12.00Noon. The witness has admitted that no investigation was done on 15.04.2010 except that the MLC and four pulandas were seized by HC Chhajju Lal. She does not remember the ward and bed number of prosecutrix in which she was admitted on 15.04.2010 however the labour room was situated at second floor. She met prosecutrix on the bed in the post delivery ward. According to her there was no doctor present in the labour room at that time, only nurses were there. She does not know the name of the doctor who was treating the prosecutrix. According to her they left the hospital at about 1.30-2.00PM on 15.04.2010. The witness has denied the suggestion that she did not join the investigation of this case on State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 21 of 50 15.04.2010 or that she did not go to ESI Hospital nor she met the prosecutrix. The witness has further denied the suggestion that she did not seized the articles on 15.04.2010 as she never went to the hospital. PW19 has further testified in her cross examination that on 16.04.2010 she reached the ESI Hospital Basai Darapur at about 4.30PM. She has also admitted that she did not obtain any certificate from the doctor to the effect that the prosecutrix was fit for statement. According to her Doctor has orally informed her about the fitness of prosecutrix for statement but she does not remember the name of the doctor. She has deposed that she met the prosecutrix in the room of the Nurses which was attached to the ward however she does not remember the ward number nor name of the nurse who brought the prosecutrix to the Nursing Room and states that she had not recorded the statement of the said nurse. The witness has further deposed that she had sent the rukka for the registration of the case at about 5.45 PM. She has further deposed that the stairs from where the accused was apprehended was at a distance of 8 feet from the Nurses' room and accused was apprehended at about 8.00PM and after interrogation he was arrested at about 8.30PM. The witness has further deposed that the wife of the accused was already present in the hospital. She has admitted that she had not made any investigation regarding the age of prosecutrix on 16.04.2010 but she had asked Pooja about the age of prosecutrix and recorded statement of Pooja on 16.04.2010 but does not remember if she has mentioned the above his fact in the statement. The witness was shown the statement of Pooja U/s 161 Cr. PC which is Ex.PW19/DX-1 who after seeing the same had stated that the said State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 22 of 50 aspect has not been mentioned in the said statement. The witness has admitted that the arrest memo Ex.PW17/A bearing the signature of prosecutrix at point B whereas the copy of arrest memo Ex.PW19/DX-2 which was supplied to the accused does not bears the the signature of the prosecutrix. The witness has denied the suggestion that she did not go to ESI Hospital on 16.04.2010 or that the prosecutrix was not fit for statement on 16.04.2010 or that no statement of prosecutrix was recorded on 16.04.2010. She has further denied the suggestion that the prosecutrix did not point towards accused to be the person who had raped her or that the arrest memo was prepared in her presence or that the accused has been falsely implicated in the present case to work out the case. The witness has admitted that the prosecutrix never pointed out the the jhuggi No.B- 260 CAS colony to be the place of incident. According to the witness on 16.04.2010 she reached at Police Station at about 12.30 (midnight on 16/17.04.2010) and the case property was deposited in the Malkhana immediately after reaching police station. The witness (PW19) has also deposed that on 17.04.2010 she reached at ESI Hospital at about 11.00AM and remained there till 3.00 PM and came back to the police station at about 7.00-7.30PM. She has admitted that she had not collected the birth certificate or the school leaving certificate of prosecutrix According to her she obtained the admission record of prosecutrix from the school and states that the admission record of the school bears wrong information regarding the parentage of the prosecutrix. She has denied the suggestion that the date of birth mentioned in school record is incorrect. She has denied the suggestion State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 23 of 50 that the prosecutrix is more than 18 years of age or that the accused has been falsely implicated in this case.
Statement of the accused/ defence evidence:
33. After completion of prosecution evidence the statement of the accused was recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence was put to the accused which he denied. The accused has stated that the facts regarding age of the prosecutrix are incorrect. He has further stated that he did not make any disclosure statement. According to the accused, he was falsely identified by the prosecutrix at the instance of the investigating officer and he was arrested from his residence and that he did not do anything wrong with the prosecutrix.
FINDINGS
34. I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Amicus Curiae appearing on behalf of the accused. I have also gone through the testimonies of the various witnesses examined by the prosecution.
Identity of the accused:
35. In so far as the identity of the accused is concerned, the same has not been disputed, accused Jai Prakash being the brother-in-law/ Jija of the prosecutrix. It is an admitted case that the accused Jai Prakash is married to Pooja (PW11) the real sister of the prosecutrix 'M'. He has also been duly identified in the court by the prosecutrix 'M' as the person who had committed the illegal act upon her. This State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 24 of 50 being so, I hereby conclude that there is no dispute in so far as the identity of the accused is concerned which aspects stands established.
Age of the prosecutrix:
36. In so far as the age of the prosecutrix is concerned, Smt. Premwati (PW10), Principal, Nigam Vidhyalay, Wazirpur, has placed before the court the school record of the prosecutrix which reveals that the date of birth of the prosecutrix is 1.9.1998 and the date of her admission in the school is 29.8.2008. Smt. Premwati (PW10) has proved that this information regarding the date of birth of the prosecutrix was given to them by Jai Prakash at the time of the admission of the prosecutrix. This witness has further deposed that in respect of the residence proof and date of birth an affidavit had been taken on the basis of which the entry has been made. She is unable to admit or deny the fact that the parents of the prosecutrix had given wrong details regarding her date of birth.
37. I have gone through the Bone X-Ray report of the prosecutrix which is Ex.PW6/A. The radiological examination of the prosecutrix was got conducted at the time of her medical examination. Ex.PW6/A reveals that at the time of her examination in the hospital the prosecutrix was more than 13 years but less than 16 years reflecting that she has not even attained the age of consent.
38. I have also gone through the detailed medical record of the prosecutrix which is Ex.PW6/A and Ex.PW7/A which reflects that at the time of her medical examination in the hospital the age given was State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 25 of 50 12 years and as per the said record she has attained the menarche just eight months before the time when she delivered the child in the hospital. Hence, the Bony X-ray report of the prosecutrix and her MLC proves that the prosecutrix was a minor on the date of the incident being between 13 to 16 years of age. Rather, she was on the lower side i.e. between 12 to 13 years having attained menarche just eight months before the time when she had delivered the premature child. Hence, under these circumstances, even if the school record Ex.PW10/C showing the date of birth of the prosecutrix as 1.9.1998 is ignored as not being based upon any authentic record yet the Bony X-
Ray report conclusively proves that she was below the age of 16 years.
Statement of the prosecutrix:
39. The prosecutrix 'M' in her statement made to the Investigating Officer and thereafter in her statement before the Ld. Magistrate recorded under Section 164 Code of Criminal Procedure, which statement is Ex.PX1 and not disputed by the accused and also in her testimony before the court, is very categorical and consistent in so far as the alleged incident is concerned. She has deposed that she has five brothers and sisters and her family resides at Bhagalpur, Bihar. Her Jija (present accused) had brought her Delhi about two years back and her sister had got her admitted in a school in Class 6th and during this period she was residing with her sister and jija (accused). She has specifically stated that the accused had committed rape upon her at night on two to three occasions and had been repeatedly threatening her, asking her not to tell this fact to anybody. She has further State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 26 of 50 testified that after some time she started having pain in her stomach and when she was taken to the doctor by her sister Pooja, the doctor told that there was a swelling and gave medicines. She has further deposed that after some months when she had gone to the hospital to see the child delivered by her sister Pooja, she became unconscious on account of pain in her stomach and she was taken to the doctor and later when she regained consciousness, she was told that she had delivered a male child which child expired after two days. The prosecutrix 'M' has further testified that initially when she was examined by the doctor, her sister Pooja had given her own name in place of mother of the child and name of the accused in place of the father as she was staying with them. The relevant portion of the testimony of the prosecutrix is as under:
"........ My elder sister Pooja is married to the accused Jai Prakash and resides at D-Block, Wazirpur, Delhi, today. I have come to depose in the court from my native village at Bihar. My sister Pooja had brought me to Delhi for the purposes of my studies and had got me admitted in Govt. School at A-Block, Ashok Vihar, Delhi, where I was studying in Class 5th and had gone to Class 6th. Jai Prakash, the accused present in the court (correctly identified by the witness), is my Jija who had done 'ganda kam' with me on two occasions. I did not know what was happening with me and when I objected, he told me 'kuch nahi hota'. After some time I started having State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 27 of 50 pains in my stomach and also my stomach started to grow in size. I told to my sister about the pain and she took me to the doctor who told us that there was a swelling in my stomach and gave me medicines for it.
About six months back, the date I do not remember, when I had gone to the hospital to see my sister Pooja who had delivered a child, I became unconscious on account of the pain in my stomach on which I was taken to the doctor. When I came to my senses and regained consciousness, I was told that I had delivered a child and the child had died. The doctor informed the police and the police came and recorded my statement.
Court Questions: Did you have physical relations with any person ?
Answer : No. It was only the accused Jai Prakash who had done these things with me.
On Court Questions : I was sent to Nirmal Chhaya where I stayed for one month and I was also produced before Ld. MM where my statement under Section 164 Cr.PC was recorded....."
40. It is evident from the aforesaid that the prosecutrix at the time of alleged incident was hardly aged about 12 to 13 years when the accused made physical relations with her, so much so that she did not even realize what had happened with her and was not even aware of her pregnancy. The prosecutrix was repeatedly complaining of the State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 28 of 50 swelling and pain in her stomach and had even visited the doctor who according to her had given her some medicines for swelling in the stomach. It stands proved and is also not disputed that when the sister of the prosecutrix delivered a child in the hospital, the prosecutrix had gone to meet her and see the child little realizing that she herself was pregnant. It was there in the hospital that she became unconscious and was hospitalized where she delivered a premature male child who expired after two days. The record reveals that in fact it was on the information given by the doctors that the police reached the hospital and found the prosecutrix in a serious condition not fit to make a statement. The statement of the prosecutrix was recorded on the next day, when the case was registered. The testimony of the prosecutrix made by her before the court finds due corroboration from her medical record duly proved by the doctors. It has been proved that the prosecutrix had been hospitalized and had delivered a child and was initially not fit to make a statement which statement was recorded on the next day. The prosecutrix had been subjected to a detailed cross- examination and in order to demolish her testimony testimony various suggestions have been made to her but she stood her ground and nothing much has come out of it. The testimony of the prosecutrix also find due corroboration from the testimony of her sister Pooja who had not supported the case of the prosecution in so far as the incident and the statement made by her to the police, is concerned but has corroborated the version of the prosecutrix to the extent that the prosecutrix is her real sister and she had brought her from the village to Delhi and got her admitted in the school where the accused had State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 29 of 50 given his name as that of his father and that she herself gave her name as mother. She has specifically deposed that the prosecutrix was a minor at the time of the incident but denied that she has given any statement to the investigating officer. Understandably, Pooja is the wife of the accused and in order to save her marriage with the accused she has not come out with the complete details. It is also evident from the testimony of Pooja that she has corroborated the version of the prosecutrix to the extent that the prosecutrix had been complaining of stomach pain but according to her because of her own condition, she was unable to get her (prosecutrix) properly treated.
41. It is settled law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting 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. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out the testimony of a reliable prosecutrix. [Ref: State of Himachal Pradesh Vs. Asha Ram reported in 2005 (4) Crime 269].
42. The only defence of the accused is that the prosecutrix was a major and was a consenting party to the act which defence is State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 30 of 50 demolished from the Bony X-Ray report showing that the prosecutrix has not even attained the age of 16 years at the time of the incident. The consent if any, under these circumstances, becomes immaterial. Further, the provisions of Section 114 A of the Indian Evidence Act provide that in a prosecution for rape under sub Section 2 of Section 376 of the Indian Penal Code where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. This court had put specific queries to the prosecutrix and it is evident from her testimony that there was no consent involved. Rather, it is the accused who had been making relations with her despite her objections stating that nothing would happen. There is no reason to disbelieve the testimony and the version given by the prosecutrix.
Medical evidence:
43. PW6 Dr. Satender Kaur, PW7 Dr. Nupur Gupta and PW8 Dr. Manjeet Kaur have examined the prosecutrix and have proved the MLCs Ex.PW6/A and Ex.PW7/A placed on record. Further, PW9 Dr. Rajesh Kumar Dalal had also examined the prosecutrix and has proved the OPD ticket which is Ex.PW9/A, the ultrasound report which is Ex.PW9/B and three laboratory requisition slips which are Ex.PW9/C (collectively), to which there is no rebuttal. The medical evidence placed on record finds due corroboration from the oral testimonies of the prosecutrix. It is evident from the record that though State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 31 of 50 the prosecutrix was admitted in the hospital with the alleged history of amenrrhoea and as per the record she had even attained menarche about eight months back (i.e. virtually the same time when the accused made physical relations with her on which the prosecutrix had conceived). She was initially not in a position to give the statement having delivered a live male baby on 15.4.2010 at about 1.30 AM.
The MLC Ex.PW7/A was prepared since the prosecutrix was a minor and she had also been referred for further examination. Further, the male baby delivered by the prosecutrix expired after two days and the certificate Ex.PX-5 and death report form Ex.PX-6 issued by the hospital are not in dispute and has been duly admitted by the accused along with the cremation receipt which is Ex.PX-4. It has been proved that the child delivered by the prosecutrix expired after two days pursuant to which DNA examination was also got conducted and the DNA test report is Ex.PW13/A. Further, the MLC of the accused which is Ex.PX2 is not disputed and there is nothing on record to show that the accused was incapable to perform sex. In view of the aforesaid, I hereby hold that the medical record finds due corroboration from the oral testimony of the prosecutrix.
Forensic evidence:
44. It is an admitted case that he prosecutrix 'M' had delivered a male child in the hospital and the blood samples of the accused Jai Prakash, prosecutrix 'M' and the baby male child of the prosecutrix were collected and were sent to FSL Rohini in DNA Unit after which the blood samples of all the three persons were isolated and DNA State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 32 of 50 finger print profiles were prepared. PW13 Dr. A. K. Srivastava has proved the identification form of accused Jai Prakash which is Ex.PW13/B and the identification form of the victim vide Ex.PW13/C and also proved the DNA report given thereafter in respect of the baby delivered by the prosecutrix which report is Ex.PW13/A. It was found that the alleles as from the source of exhibit '4' (blood sample of accused Jai Prakash) and the alleles as from the source of exhibit '5' (blood sample of the prosecutrix are accounted in alleles as from the source of exhibit '1' (blood gauze of child). The DNS Profiling (STR Analysis) has been performed on the exhibits which prove that the source of exhibit '4' (blood sample of accused Jai Prakash) and source of exhibit '5' (blood sample of the prosecutrix) are biological father and mother of source of exhibit '1' (blood gauze of the male child). This being so, it stands conclusively established that the accused Jai Prakash was the biological father of the child delivered by the prosecutrix 'M' who was hardly 12 to 13 years of age at the time of the incident.
Contradictions and Discrepancies:
45. Ld. Amicus Curiae appearing on behalf of the accused has tried to demolish the case of the prosecution by placing her reliance on the various discrepancies in the testimonies of the various witnesses.
She has pointed out that the MHC(M) in his testimony has very categorically stated that he had not entered the contents of the seizure memo in Register no. 19 not the signatures of the officer is present on the Register No.19 and therefore, this fact that the exhibits have not State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 33 of 50 been tampered with, does not stand established. She has further pointed out that the FIR has not been proved in accordance with law since the witness has admitted that no certificate under Section 65-B of Indian Evidence Act has been filed. Ld. Amicus Curiae has also pointed out the discrepancies in the testimonies of the various police witnesses with regard to the place of arrest of the accused and also the time.
46. I have considered the submissions made. In this regard, I may mention that it is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of witness then the investigation becomes less important as the prosecutrix 'M' has not only deposed regarding the manner of commission of the crime but has also elaborated all the details thereof. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
47. In the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Supreme Court of India as that:-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 34 of 50 errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
48. Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under :-
"It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
49. As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that When the discrepancies are comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 35 of 50 importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
50. Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non-discrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
51. Applying the settled principles of law to the facts of the present case, I may observe that the contents of the seizure memo are not required to be mention in the Register No. 19 and it is sufficient if the details of the seizure memo and copy of the same is placed on record which has been done. Further, there being no signatures of the officer on Register No. 19 is a mere irregularity which will not affect State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 36 of 50 the merits of the case. In so far as the registration of FIR is concerned, the same is not disputed nor the time of its registration is disputed. FIR is an official document and there is a presumption of the said record being regularly maintained in the official course. Under the given circumstances of the case, once the witness has proved the endorsement made by him on the rukka on the basis of which the FIR has been registered, the certificate under Section 65-B of the Indian Evidence Act would not be required. Further, with regard to the discrepancies in respect of the place of arrest of the accused and time of arrest, it is apparent that the relationship between the accused and the prosecutrix of that being brother-in-law and sister-in-law is not disputed. It stands established that the accused was present in the hospital because his own wife i.e. the real sister of the prosecutrix had delivered a baby child and the prosecutrix had gone to the hospital to see the child, when she had become unconscious and delivered a premature child. It also stand proved that it was the hospital authority who informed the police since the medical condition of the minor prosecutrix had deteriorated when she was not fit to make statement after the delivery of the male child which child, expired after two days. Further, the blood samples of the prosecutrix, the accused and also the child delivered by the prosecutrix had been taken which were sent to DNA Unit, FSL Rohini where the STR Analysis was conducted ad the report of the same conclusively proves that the accused was the biological father of the deceased child delivered by the prosecutrix. Therefore, the above material aspects being proved, the discrepancies as pointed out by the Ld. Amicus Curiae are not State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 37 of 50 material and would not affect the merits of the case.
FINAL CONCLUSION:
52. In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The circumstances should be of conclusive nature and tendency;
3. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
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53. Applying the settled principles of law to the facts and circumstances of the present case, it is evident that the identity of the accused has been established. The prosecution has proved that the accused Jai Prakash is the brother-in-law of the prosecutrix 'M' and that he along with the sister of the prosecutrix namely Pooja had brought the prosecutrix 'M' to Delhi and got admitted in the school where the accused gave his name as the father of the prosecutrix and Pooja herself have her name as the mother of the prosecutrix. It has also been proved that the accused Jai Prakash committed rape upon the prosecutrix who at the time of the incident was hardly about 12 years of age. It is further proved that the prosecutrix had became pregnant on account of the sexual contact of the accused as a result of which she delivered a male child within eight months which child expired within two days. It has also been proved that the blood samples of the accused, prosecutrix 'M' and the child were taken for ascertaining the biological father of the child and pursuant to the DNA (STR Analysis) it was established that the accused Jai Prakash is the biological father of the child delivered by the prosecutrix 'M'.
54. In view of my aforesaid discussions, I hereby hold the accused Jai Prakash guilty of the offence under Section 376 (2) (f) Indian Penal Code and accordingly convict him for the same.
55. Case be listed for argument on sentence on 11.3.2011.
Announced in the open court (Dr. KAMINI LAU) Dated: 4.3.2011 ASJ-II(NW)/ ROHINI
State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 39 of 50 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II(NORTH-WEST): ROHINI COURTS: DELHI.
Sessions Case No. 1224/2010 Unique Case ID No. 02404R0142262010 State Vs. Jai Prakash S/o Arjun Thakur R/o Jhuggi No. B-260, CSA Colony, Wazirpur Industrial Area, Delhi. FIR No.: 101/2010 Police Station: Ashok Vihar Under Section: 376 (2) (f) Indian Penal Code Date of Conviction: 4.3.2011 Date of Arguments: 11.3.2011 Date of Sentence: 16.3.2011 APPEARANCES: Present: Sh. Taufiq Ahmed, Addl. Public Prosecutor for the State.
Convict in judicial custody with Amicus Curiae Ms. Sindu Sakarwal Advocate.
ORDER ON SENTENCE:
1. Child sexual abuse are dark realities in Indian society like in any other nation. 53 per cent of our children are sexually abused, according to a statistic from a survey done by the Government of India. A 1985 study by the Tata Institute of Social Sciences reveals that one out of three girls and one out of 10 boys had been sexually State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 40 of 50 abused as a child. 50% of child sexual abuse happens at home. In 1996, Samvada, a Bangalore based NGO, conducted a study among 348 girls. 15% were used for masturbation mostly by male relatives when they were less than 10 years old. 75% of the abusers were adult family members. A report from RAHI, (Recovering and Healing from Incest), a Delhi based NGO working with child sexual abuse titled Voices from the Silent Zone suggests that nearly three-quarters of upper and middle class Indian girls are abused by a family member -
often by an uncle, a cousin or an elder brother. (Rel. on material from Internet)
2. In the present case this court vide judgment dated 4.3.2011 has convicted the accused Jai Prakash for offence punishable under Sections 376 (2) (f) Indian Penal Code. Arguments addressed by the Additional Public Prosecutor for the State as well as the advocate, Amicus Curie for the convict, have been heard on the aspect of quantum of sentence.
3. This is an unfortunate case, where the wife of the accused namely Pooja hailing from a very poor family having a number of brothers and sisters had brought her minor sister (i.e. the prosecutrix 'M') with her to the City in order to secure good education for her. Unfortunately the child (prosecutrix 'M') fell prey to the despicable and evil designs of her brother-in-law (Jija) i.e. the convict Jai Prakash. She was not mature enough even to understand the nature of act committed by the convict having just arrived at the age of puberty. The minor was subjected to unwanted physical contact by the convict/ accused on two to three occasions as a result of which she conceived.
State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 41 of 50 The irony being that the minor could not comprehend the gravity of the act and even her sister i.e. the wife of the accused could not understand what had happened to the prosecutrix when the minor was repeatedly complaining of swelling in the stomach and pain. No doubt, she was taken to a local doctor where the treatment provided to her for swelling in the stomach and pain without anybody realizing that the child had conceived after being raped by her brother-in-law (convict before the court) pursuant to which she delivered a premature baby who expired within two days of its birth.
4. In this background, the Additional Public Prosecutor for the State has requested for the maximum sentence to be imposed upon the convict submitting that the convict Jai Prakash is the brother-in-law (Jija) of the prosecutrix 'M' who has not only committed "intrafamilial child sexual abuse" upon the prosecutrix 'M' but also fathered her child who unfortunately expired within two days of his birth. He submits that the convict does not deserve any leniency.
5. Ld. Amicus Curiae appearing on behalf of the convict, on the other hand, has requested for a lenient view to be taken against the convict. It is argued that the convict is a young man of thirty years having a family comprising of wife who is the sister of the prosecutrix and any strict view is likely to affect her matrimonial life. It is submitted that the convict is 10th class pass and was working in a factory of steel plant machine. Ld. counsel has also argued that the convict is a first time offender and is in judicial custody since 17.4.2010.
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6. I have considered the submissions made. The present case is a glaring example of the growing menace of sexual abuse of minors and young children. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is a small female child, close relative of the abuser over whom the family has repose faith as has happened in the present case where the minor has been subjected to unwanted physical contact by a perverted male adult. The convict Jai Prakash had committed rape upon his 12 to 13 years old minor sister-in-law. Due to her tender age, neither the body of the child was fully developed nor she was in a position to offer any resistance to the convict. The convict has taken advantage of a helpless and defenceless child who did not even understand the gravity of the offence or tried to escape and was an easy and vulnerable prey. She has undergone immense physical pain and agony when the offence was committed and thereafter when she conceived at a time when her body was not even fully developed to bear the child. Inspite of the tender age of the child, the convict went on to commit the ghastly, abominable, inhuman and barbaric act of rape, violating the person of the child and giving her a lifelong trauma.
7. Coming now to the aspect of quantum of sentence, the Delhi High Court in the case of Khem Chand Vs. State of Delhi reported in 2008 (IV) JCC 2497 enumerated the principle factors to be taken into account by the courts while assessing as to what could be the appropriate sentence in a given case. Some of the factors enumerated are (i) Criminal and Crime, (ii) Manner of Commission of offence,
(iii) Violence involved, (iv) Whether the offender or accused was in a State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 43 of 50 position of fiduciary, trust or exploited a social or family relationship,
(v) State of victim, impact of crime on the victim.
8. The Hon'ble Supreme Court while considering the question of quantum of sentence in the case of State of Rajasthan Vs. Gajender Singh reported in 2008 (III) JCC 2061 observed as under:
"... the law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property for the people is an essential functions of the state. It could be achieved through the instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet these challenges. The contagion of lawlessness would undermine social order and lay it in ruins...."
9. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the rime and responding to the society's cry for justice against the criminal. (Ref. Rajiv Vs. State of Rajasthan reported in 1996 (II) SCC 175). The Apex Court while considering the sentencing policy in the case of Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 44 of 50 AD (Crl.) SC 78 observed that:
"........law regulates social interests, arbitrates conflicting claims and demands. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be a decisive reflection of social unconsciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the move for commission of the crime, the conduct of the accused, and all other attending circumstances are relevant facts which would enter into the area of consideration......"
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10. The Hon'ble Court has further observed that:
"...........The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion the the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread......"
"......Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crime with equal severity is State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 46 of 50 now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is through then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment had some very undesirable practice consequences.."
11. Further in the case of Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463 it has been held by the Hon'ble Supreme Court that:
"......Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc...."
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12. Also in the case of Dennis Councle MCGDautha Vs. State of Callifornia reported in 402 US 183: 27 L.D. 2d 711, as relied by the Hon'ble Supreme Court in the case of Siddarama and Ors. Vs. State of Karnataka it has been observed that :
".......no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished....."
13. Hence in the words of Mr. Justice A. Pasayat as held in the case of Siddarama and Ors. Vs. State of Karnataka it is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be.
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14. Crime against women has increased in recent years, most of the offenders being previously known to the victim or enjoying some kind of a fiduciary, family or trust relationship which they betray. It is for the Courts to meet these challenges by moulding the sentencing system to ensure that public confidence in the efficacy of law is not undermined. In this background considering the various aggravating facts and also the conduct of the convict Jai Prakash, I hereby award the convict Jai Prakash following sentence:
1. The convict Jai Prakash is awarded Rigorous Imprisonment for a period of 10 (ten) years and fine to the tune of Rs.50,000/- (Rs. Fifty Thousand) for the offence under Section 376 (2) (f) Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of six months. The total fine of Rs.50,000/-, if recovered, shall be paid to the prosecutrix 'M' as compensation under Section 357 Cr.P.C. The amount whenever deposited shall be apportioned to prosecutrix 'M' in the form of FDR in the name of the prosecutrix for her welfare.
15. The convict is already in judicial custody. He is sent to custody for serving the sentence. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period undergone by him during the trial.
16. The convict is informed that he has a right to prefer an appeal State Vs. Jai Parkash, FIR No.101/10, Police Station : Ashok Vihar Page No. 49 of 50 against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
17. Copy of the judgment and order on sentence be given to the convicts free of costs and another be attached along with his jail warrants.
18. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 16.3.2011 ASJ-II(NW)/ ROHINI
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