Delhi District Court
State vs Dinesh@Dinu on 9 January, 2009
1 S.C. No. 13/07
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL
SESSIONS JUDGE-03,NORTH, DELHI.
FIR No.:- 1117/06
PS:- Ashok Vihar
U/s:-363/366/342/376/511 IPC
S.C. No.: 13/07
In the matter of:
State Vs.Dinesh@Dinu
S/o Sh. Chottey Lal,
R/o N-20-B-489A,
Udham Singh Park
Industrial Area, Wazirpur,
Ashok Vihar, Delhi.
Date of receiving in Sessions Court: 09.04.07
Arguments Heard: 01.12.08
Date of Judgment: 18.12.08
JUDGMENT
1. CASE OF THE PROSECUTION:-
Case of the prosecution is that on 29.12.06 at about 11:00a.m. at the shop of Lakshman, Udham Singh Park, Wazirpur Industrial Area within the jurisdiction of P.S. - Ashok 2 S.C. No. 13/07 Vihar the accused kidnapped the prosecutrix Neetu aged 8 years with the intention she will be forced to illicit intercourse and wrongly confined her in the Jhuggi, Udham Singh Park and attempted to commit rape upon her. After the completion of investigation challan was filed in the court. Since the offence u/s 366/376/511 IPC are exclusively triable by the courts of Session, therefore the case was committed to the court of Sessions by the Ld. MM.
2. CHARGE FRAMED:
After the committal, arguments on charge were advanced by the defence counsel as well as by the Ld. APP for the State. Prima facie case u/s 363/366/342/376/511 IPC was made out against the accused. Charge was framed against him to which he pleaded not guilty and claimed trial.3 S.C. No. 13/07
3. WITNESSES EXAMIEND:-
In support of its case prosecution has examined 19 witnesses in all.
PW1 is Dr. Manoj, CMO, BJRM Hospital, Delhi who proved the MLC of the accused as Ex.PW1/A and stated that as per MLC, there was nothing to suggest that patient was not fit for sexual activity.
PW2 is Dr. Prashant, JR. from BJRM Hospital. He proved MLC of prosecutrix as Ex. PW2/A. PW3 is Dr. Shalini, Sr. Gynecologist from BJRM hospital. She also examined prosecutrix Neetu and has given her observation on MLC Ex. PW2/A which she duly proved.
PW4 is Sita, who is the mother of the prosecutrix, who has stated that on 29.12.06 at about 10:30 or 10:45a.m. she was washing clothes at the house of her father at Udhampur 4 S.C. No. 13/07 Singh Park, Wazirpur Industrial Area. She has given 1 rupee to her daughter for purchasing toffee from a nearby shop. For sometime she had not returned then she searched her in the locality but could not find her, she returned. After sometime her daughter also returned. She asked her as to where she was on which she replied that accused Dinesh@Dinu took her in his Jhuggi in his lap and made to lie her on a small cot. He took off her underwear and also took off his wearing pant. Then he tried to penetrate his penis on her vagina on which she cried. Thereafter he left her and she ran away from there. She further stated that the accused was also living on the back side street of the jhuggi of her parents. Her husband was not present at the house. He came at about 10:00p.m. after finishing his duties. She told him these facts and they made a call to the police at 100 number. Police came there. The underwear of 5 S.C. No. 13/07 Neetu was torn and she placed the same in her jhuggi and gave another underwear to her daughter for wearing. The police took her daughter alongwith her to BJRM hospital for medical examination. The police had recorded her statement as ExPW4/A and also joined her in search of the accused. When they reached near Azadpur Mandi, the accused was sitting under railway bridge and the police arrested him vide arrest memo Ex. PW4/B. His personal search was taken vide memo Ex. PW. 4/C. Her daughter Neetu had shown the place of occurrence and the memo Ex. PW4/D was prepared in this regard. She further stated that she produced the underwear before the police and police had taken the same in possession vide memo Ex. PW4/E. She further proved the case property.
PW5 is Sh. Ram Milan who is the father of the prosecutrix and has deposed on the lines of PW4 except that police did not record his statement.6 S.C. No. 13/07
PW6 is Ct. Dashrath who stated that on the intervening night of 29/30.12.08 he was posted as Ct. at P.S. - Ashok Vihar and during that night at about 12:10a.m. he was asked to report to SI Raj Bala at P.S. - Ashok Vihar. He went there and at about 12:30a.m. SI Raj Bala had joined him in the investigation of the present case. They went to Jhuggi no. B-4115, Udham Singh Park where prosecutrix Neetu aged about 7/8 years alongwith her mother met them. The prosecutrix pointed out the jhuggi that is the place of occurrence. On the direction of the IO he took the prosecutrix alongwith her mother to the BJRM hospital for her medical examination. The concerned doctor asked them about the wearing underwear by the prosecutrix at the time of the occurrence on which the mother of the prosecutrix told that she had removed the same and same is lying in the jhuggi. When they returned to the Jhuggi the mother 7 S.C. No. 13/07 of the prosecutrix produced the same to the IO which was sealed into a Pulanda and taken into possession vide memo Ex. PW. PW4/E. PW7 is Ct. Mool Chand who took the sealed parcel from the Malkhana Mohara and deposited the same with the FSL Office. He further stated that so long the sealed parcels remained in his possession nobody had tempered the same.
PW8 is Ct. Rajender Singh. He took the Rukka to the police station and handed over the copy of the FIR and original rukka to the IO. He further stated that the Pajami of the prosecutrix was sealed in his presence and taken into possession vide Ex. PW4/E. PW9 is H. Ct. Rajesh, who stated that on 30.12.06 women SI Raj Bala had deposited three sealed parcels alongwith sample seal of the parcels and has further proved the 8 S.C. No. 13/07 entries in the Malkhana Moharar register. It is stated that the sealed parcel alongwith sample seals and relevant documents were sent to the FSL Rohini and the result of the same were received on 1.8.07 and he handed over the result to the IO. He made the entries in the register also & proved the same.
PW10 is prosecutrix Neetu, she was examined without oath as she was below 12 years of age and she stated that she knew the accused present in the court as he was living in the street of her house. On 29 of a month year 2006 at about 12 noon she went to purchase toffee from the shop of Lakshman but she could not purchase the same as accused picked her from the shop and took her in his Jhugi. He bolted the door of his jhuggi from inside and switched on his television. He took off his pant and removed her pajami and took her in his lap. She cried and opened the door of the jhuggi and ran away after 9 S.C. No. 13/07 wearing her pajami. She came to her house and told the entire facts to her mother. After the occurrence she was taken to the court and her statement was recorded. She was slightly cross examined by Ld. APP for the State and she submitted that accused started kissing her and forcibly took out her pajami and tried to put his pennis in her vagina. She had forgotton these facts so she could not depose the same in her evidence.
PW 11 is H. Ct. Onkar Singh he is the duty officer and registered the formal FIR, he proved the FIR as PW11/A. PW12 is Mahender Kumar. He stated that he is living in the same locality where accused is residing but he does not remember the exact date but it was a matter of about one year ago. He came to know that accused had committed rape upon a child but he does not know anything about this case. In his cross examination also this witness stated that he does not know anything.10 S.C. No. 13/07
PW13 is Lakhan, who has stated that on 29.12.06 he was not present to his house and returned to this house at about 9:00p.m. and at that time her sister Sita told that accused Dinesh had tried to commit rape upon her daughter Neetu. Someone had informed the police at 100 number and police came there and nothing has happened in his presence. In his cross examination this witness stated that he did not make any statement before the police and that nothing happened before him.
PW14 is Smt. Tripta, Vice Principal, from MC Primary School, Shalimar Bagh. She stated that the date of birth of the prosecutrix as per their record is 24.11.98. She stated that Neetu was admitted on the application form submitted by her mother Ex. PW14/B and date of birth of the child was entered on the basis of the affidavit filed by her mother. She further proved school certificate as Ex. PW.14/D. 11 S.C. No. 13/07 PW15 is H. Ct. Raghubir Singh who was posted as H. Ct. in PCR. On the receipt of the call he sent the message to the concerned district.
PW16 is Sh. Pulastasya Parmanchala, Ld. MM who recorded the statement of the prosecutrix u/s 164 Cr.P.C. and has proved the application, her statement as well as the application for supply of copy by the I.O.
PW17 is Ct. Sadashiv who was in investigation with the IO. He stated that when they reached at the flyover of Azadpur, there Sita pointed out the accused present in the court and they apprehended the accused and their arrest memo was prepared. Personal search was also conducted on the direction of the IO. He took the accused to the BJRM Hospital for his medical examination. After medical examination one sealed pulanda having pant of the accused and one sealed pulanda 12 S.C. No. 13/07 having the sample of blood was handed over to him by the doctor and he handed over those to the IO.
PW18 is ASI Ram Bhau who received the DD no. 31. He alongwith Ct. Rajender went to Udham Singh Park, Wazirpur Industrial Area where he met mother of the prosecutrix. He informed the police station and thereafter SI Rajbala reached at the spot and he handed over the DD to her.
PW19 is SI Raj Bala who is investigation officer. She has arrested the accused, recorded the statement of prosecutrix and her mother and has duly proved all the memos and after completion of investigation, filed the challan in the court.
3. Statement of accused u/s 313 Cr.P.C. was recorded.
Wherein accused denied the case of the prosecution and has stated that all the witnesses of the prosecution are interested witnesses and he has been falsely implicated in this case as he 13 S.C. No. 13/07 used to give secret information to the Police and on refusal to do the work of the police officials, Ashok Vihar, they in collusion with the complainant falsely implicated him in this case. Prosecutrix and her family has enmity with him for the last three years. He further stated that he wants to lead evidence in defence. In his defence, the accused has examined two witnesses in all.
DW1 Asha and DW2 Sarita both these two witnesses stated that they are neighbours of the accused and they have not seen the accused with any girl on the date of incident.
I have heard the Ld. Counsel for the accused and Ld. APP for the State and have carefully perused the record.
Section 363 of IPC reads as under:-
"Punishment for kidnapping- Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine"14 S.C. No. 13/07
Section 366 of IPC reads as under:-
"Kidnapping, abducting or inducing women to compel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced to seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may be extend to ten years, and shall also be liable to fine."
Section 376 of IPC reads as under:-
"Punishment for rape- (I) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both"15 S.C. No. 13/07
For offence u/s 363 IPC, the prosecution must prove that:-
"(a) the person kidnapped was, at the time of offence, a minor under 16 years of age, if a male, or under 18 years of age, if a female, or he/she was a person of unsound mind.
(b) such person was in keeping of a lawful guardian.
(c) the accused took or enticed such person out of such keeping; and
(d) he did so without the consent of the lawful guardian"
PW3 is Dr. Shalini. In her cross examination, the witness has stated that if any person commit sexual act with female child of 8 years there will be more injury as compared to adult female but there is no sign of any sexual act committed with the patient recently in this case. It may be mentioned that the prosecution case is not that the accused committed sexual act with the prosecutrix Neetu aged about 8 years but their case 16 S.C. No. 13/07 is that he attempted to commit sexual act with her and therefore there is no reason to presume there will be injury mark on the person of the prosecutrix Neetu. Since attempt of the rape never materialized as per the prosecution case itself, therefore, if there was no injury mark found on the person of the prosecutrix Neetu and, therefore, no adverse presumption against the prosecution can be raised.
PW10 is the prosecutrix Neetu, aged about 8 years. This witness being 8 years of age, no oath was administered to her and my Ld. Predecessor also satisfied himself before recording her statement that she is capable of understanding the question and has given rational answers. This witness stated that on the 29th of a month year 2006 she went to purchase a toffee from a shop of Laxman but she could not purchase toffee as accused picked her up from the shop and took her in his 17 S.C. No. 13/07 Jhuggi. He bolted the door of his Jhugi from inside and switched on his Television. He took off his pant and removed her pajami and took her in his lap and she cried and opened the door of the Jhugi and ran away after wearing her pajami. She came to house and told the entire facts to her mother. This witness was, it seems being of tender age, also forgot some of the facts but during the cross by the Ld. APP she stated that accused has started kissing her and forcibly took off her pant and and thereafter he tried to put his penis in her private part from her front. This witness has been cross examined at length by the counsel for the accused but nothing material has come out of her cross examination. She stated that she used to go to school regularly and she used to go at 7:30a.m. and she comes back at 1:00p.m. and in one sentence it is written that she went to school at 7:30a.m. and came back at 1p.m. The Ld. 18 S.C. No. 13/07 Counsel for the accused submitted that on the date of incident she also went to school at 7:00a.m. and came back at 1:00p.m. It seems that during the translation in English and also considering the entire evidence the only inference that can be made out is that she goes to school at 7:30a.m. and comes back at 1:00p.m. and it is not only for that day that the child has left at 7:30a.m. or come back at 1p.m. She has clearly stated that the house of the accused is situated at a distance of 2/3 shops from her Jhugi and she has further stated that on the date of incident she was living in the jhuggi of her Mama. She also stated that the shop keeper was sleeping in his shop and again and again she has stated this fact that the shop keeper was sleeping in the shop and therefore she could not purchase the toffee. She also admitted that the residents of jhuggies of their locality used to sit outside the jhuggies in the evening and noon time. She has 19 S.C. No. 13/07 further stated that the accused took her in his lap then she had not made any cries. She also stated that when the accused entered in the jhuggi, he opened the bolt of the gate but it was not locked. When he was opening the gate he put her down on the ground. She has stated that the accused started his television. She has further stated that she does not know the time during which she remained in the jhuggi and it is not possible for the child merely aged of 8 years that she will be able to remember the time during which she remained in the jhuggi of the accused. She has denied the suggestion that accused has not taken her from the shop or that he was not present at that place. The defence taken by the accused during the cross examination of different witnesses is different. During the cross examination of prosecutrix Neetu the accused has taken the defence that since there was a dispute between the father and Mama of the 20 S.C. No. 13/07 prosecutrix and accused used to help Mama of the prosecutrix, therefore, the prosecutrix is falsely implicating him in the present case and at the instance of her father she is deposing falsely. Whereas during the cross of the father of the prosecutrix i.e. PW5 Ram Milan the suggestion has been given to him that to extort money from the accused he has been falsely implicated him in this case. PW4 is the mother of the prosecutrix, to whom the prosecutrix came after the incident and narrated the whole incident to her. This witness has also supported the case of the prosecution. She has been also cross examined at length by the Ld. Counsel for the accused and she has also stated that after coming to know of the incident she went to the jhuggi of the accused where he was alone and she inquired from the accused as to why he brought her daughter to his jhuggi for which he replied that he brought her for playing. She also stated that 21 S.C. No. 13/07 there are cluster of Jhuggi in which the jhuggi of the accused is situated and many public persons met her while going to the jhuggi of the accused. The counsel for the accused argues that despite there being so many persons it is strange that the mother of the prosecutrix did not tell this incident to anybody till 9:00p.m. in the night when her husband returned. So far as not disclosing this fact to the public persons or to the neighbours is concerned, after coming to know of the incident the PW4, mother of the prosecutrix, being a mother of a girl must be feeling shamed to tell this incident to her neighbours or to anybody else, therefore, she waited for her husband till 9:00p.m. in the night and only after her husband returned from his work then she disclosed this incident to him. There is nothing unnatural in it since in our society, for this type of incident the social stigma is also attached and for the fear of the shame the 22 S.C. No. 13/07 mother of the prosecutrix did not disclose this fact to anybody. In her cross she has stated again and again that she did not disclose this fact to anybody else. She has not made any story that she told this fact to the ladies of his neighbour or anybody else. The testimony of PW4 also inspires confidence. She stated that she did not tell anybody and did not disclose this fact to anybody. Even she did not disclose this fact to her brother and also volunteered that she did not disclose the fact due to shame. She stated that her husband has no fixed shop and he used to take goods to different shops as per requirement and therefore when he returned to house at about 9:30p.m. then only she told this fact to her husband and the matter was reported to the Police. This witness also stated that when her daughter did not return after half an hour of her going to take toffee. She went to search her daughter and also 23 S.C. No. 13/07 inquired from the other children. After searching she came back to her Jhuggi and her daughter came to her jhuggi in perplexed condition. And she was also weeping. She has stated that her other children were not searching for the prosecutrix. She has five children. The fact that the other children of the PW 4 Sita were not searching for the prosecutrix, there is nothing abnormal in the same. Since in the jhuggi cluster children keeping on playing here and there and therefore after searching her PW4 also came back to her jhuggi thinking that the daughter will come back in some time.
PW5 is Ram Milan, he is the father of the prosecutrix and has stated that her wife told him that the accused person has taken her daughter in the jhuggi and tried to rape her. He has stated that police took her daughter for medical examination and has not recorded her statement. It is only on this point that 24 S.C. No. 13/07 this witness has not supported case of the prosecutrix, otherwise he has fully supported the case of the prosecution. Nothing material has come out of the cross examination of this witness and the suggestion has been given to him that he has falsely implicated the accused in order to extort money from him. Whereas the suggestions given to the PW10 is entirely different. Thus at different places the accused has taken different defence. In his statement u/s 313 Cr.P.C. he has taken the defence that he used to give secret information to police. When he refused to do work for them, then in collusion with complainant, police has falsely implicated him in this case.
PW12 is Mahender Kumar who is one of the resident of the locality. He has stated that he does not remember the exact date but the matter is about one year back and he came to know that accused committed rape of the child. He further 25 S.C. No. 13/07 stated that he does not know about this case. This witness was cross examined by the Ld. APP and he denied that he made any statement before the police and also stated that he has not stated to the police that the accused had taken the child Neetu in his lap and was carrying her towards his jhuggi. But he has admitted this fact that the mother of the child Sita was searching her daughter Neetu and she also came to his STD shop in search of girl. Thus this fact has been admitted by him that the girl Neetu was missing and her mother Sita was searching her. Though this witness has not supported the case of the prosecution in other respects. Similarly, PW13 is Lakhan, who is the maternal uncle of the child Neetu. He has stated that her sister told her that accused Dinesh tried to commit rape upon the prosecutrix Neetu but nothing happened in his presence. He has been cross examined by the Ld. APP and he denied having 26 S.C. No. 13/07 made any statement to police. It may be mentioned that he is not an eye witness of incident and as per the prosecutrix mother also she later told this facts to her husband and PW13 Lakhan. Thus even if PW13 that is the maternal uncle of the prosecutrix did not support the case of the prosecution still no adverse inference can be drawn against the case of the prosecution as he is only the hear say witness. PW Lakhan stated to the police whatever told to him by Sita and that fact also he resiled in the court stating that he did not state anything to the the Police and since he stated to the Police whatever has been stated to him by PW Sita. Therefore, he being only a hear say witness, not much importance can be given to his testimony and therefore even if he did not support the case of the prosecution no adverse inference can be raised against the prosecution.
PW14 is Smt. Tripta who is the Vice Principal of MC Primary School, Shalimar Bagh. She brought date of admission 27 S.C. No. 13/07 and date of birth record of girl Neetu stating that as per school record the date of birth of Neetu is 24.11.98. The incident took place on 29.12.06 and thus the age of Neetu was approximately 8 years of age on the date of incident. Remaining witness examined by the prosecution are the police officials who arrested the accused and took prosecutrix for medical examination or took case property for CFSL. All these witnesses have duly supported the case of the prosecution and nothing material has come out of cross examination of these. The most important witness of the prosecution is the prosecutrix Neetu herself and her testimony inspires the confidence. She does not seem to be the tutored witness as she has stated only what has happened with her. The Evidence Act no where says that her evidence cannot be accepted unless it is corroborated in material particular. She is undoubtedly a 28 S.C. No. 13/07 competent witness under section 118 and her evidence must receive the same weight as it attached to an injured in case of physical violence.
In State of Punjab vs Gurmeet Singh & Ors. 1996 (2) SCC 384, the Hon'ble Supreme Court held that :-
"If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
Similar, view was further taken in State of Sikkim vs Padam Lall Pradhan, 2000 (10) SCC 112 and in State of Rajasthan vs N.K. 2000 (5) SCC 30.
29 S.C. No. 13/07
In the present case the testimony of PW10 prosecutrix Neetu and her mother PW4 to whom the prosecutrix first disclosed the incident inspires confidence, so far as the remaining witnesses are concerned then the incident was narrated to them by the mother of the prosecutrix and also none of the witnesses were present at the spot and therefore even if the fact that they did not support the case of the prosecution does not effect the case of the prosecution much.
In the facts and circumstances of the case and in view of the above said discussion, prosecution has been able to prove its case against the accused beyond the shadow of doubts. As such accused is held guilty and convicted for offence u/s 363 IPC, 366 IPC, 342 IPC and Section 376/511 of IPC.
(MADHU JAIN) ASJ-03 (NORTH)/DELHI 09.01.2009 Announced in the open court today i.e. on 09.01.09. 30 S.C. No. 13/07