Delhi District Court
State vs Sanjay @ Titu on 24 April, 2008
1
IN THE COURT OF SHRI S. K. SARVARIA ADDITIONAL
SESSIONS JUDGE, NEW DELHI
SC No. 64/2005
State Versus Sanjay @ Titu
son of late Badam Singh
R/o Harijan Basti
Chuttan Nagari
VPO Bijwasan
New Delhi.
Date of Institution: 26.5.05
Date when the arguments were heard: 09.04.08
Date of Judgement: 22.04.08
FIR No. 64/05
Police Station Kapashera
Under Section U/s 376 IPC
JUDGMENT
The SHO PS Kapashera has challaned the accused to face trial for the offence under section 376 IPC alleging that on 23.3.05 at about 9.30 am the accused committed rape on the prosecutrix Pooja, a minor girl. After compliance of provisions of section 207 CrPC by supplying the copies of the documents relied upon by the prosecution the learned Metropolitan 2 Magistrate, New Delhi committed the case to the court of sessions under section 209 CrPC . After hearing arguments on the question of charge the prima facie case under section 376 IPC was found against the accused and the charge was framed accordingly against him to which he pleaded not guilty and claimed trial.
In support of its case the prosecution has examined 14 witnesses in all. PW1 Dr Richa Arora has medically examined the prosecutrix on 23/3/2005 and has proved her MLC as Ex PW1/A. PW2 Vinod is the brother of the prosecutrix Pooja to whom the prosecutrix has related story of her rape by the accused. This witness has also called the police by making a phone call at 100. PW 3 is Dr Deepak Mathur who has medically examined the accused and has proved his report Ex PW3/A and has stated that there was nothing to suggest that the accused was incapable of performing sexual intercourse. PW4 Lady ASI Sheela is the formal witness and has proved the copy of the DD No. 16 A as ExPW4/A. PW5 is Dr Pooja Batra who examined the xray plates of the prosecutrix and has given her opinion that the prosecutrix was more than 14 years and less than 16 years of age. She has proved her report as Ex PW5/A. PW6 HC Pavitra was posted as duty officer on 3 23/3/2005 and has proved the carbon copy of the FIR as Ex PW6/A. PW7 is Ct Tajender Prakash who has stated, in short, that on 23/3/2005 he accompanied the IO and joined investigation on the pointing out of the mother of the prosecutrix the accused was arrested and his personal search was conducted vide memo Ex PW7/A and his disclosure statement Ex PW7/B was recorded and accused pointed out the spot where he raped the prosecutrix vide memo Ex PW7/C.. He also stated that the brother of the prosecutrix Vinod Kumar handed over attested photocopy of the birth certificate to IO and IO seized it vide memo Ex PW7/D. PW8 Ct Jagdish a formal witness, and has stated that on 24.3.05 as per the direction of IO, he accompanied the accused to Safdarjung Hospital along with IO for the medical examination and after medical examination doctor handed over two sealed parcels and one sample seal which IO seized vide memo Ex PW8/A. PW9 is lady Ct Sunita who as per the direction of the IO has accompanied the prosecutrix and her mother to the Safdarjung Hospital and after medical examination of the prosecutrix the doctor handed over to IO two sealed parcels and one sample seal and IO seized the same vide memo Ex PW9/A. 4 PW 10 is Smt Amrawati, the mother of the prosecutrix who has stated, in short, that the accused took her daughter and her daughter came and on her inquiry she told that she was raped the accused. The witness also stated that her son made telephone call to the police, police reached at the spot and police took her daughter for medical examination. PW 11 is ASI Dharampal Singh who is the initial investigating officer of this case and has stated about various steps taken by him during investigation of the case. He stated that he interrogated the prosecutrix and recorded her statement vide memo Ex PW 11/A and his endorsement on it is Ex PW 11/B which was handed over to duty officer for registration of the case after which the case was transferred to SI Shiv Singh for further investigation. PW12 is Sh Vijay Yadav Sub Registrar Birth and Death and had brought the original register and the photocopy of the same containing relevant entry is proved as Ex PW 12/A. PW 13 ASI Saroj is the investigating officer who was appointed as such on 4/5/2005 and she deposited the case property in FSL Rohini and collected ossification report from Safdarjung Hospital and collected the photocopy of the MCD certificate of the prosecutrix from her brother vide memo Ex PW7/D. She recorded the statement of witnesses and after completion of 5 investigation prepared challan and has also tendered the FSL report Ex PX. PW 14 Ms Pooja is the prosecutrix and has stated, in brief, that she was playing outside the street. Accused called her in his new house. Thereafter accused put off her clothes. Accused also put off his clothes. Accused pressed her breasts. Accused slapped her and pressed her neck. Accused threatened her to kill her. She raised alarm 'Bachao' 'Bachao'. Police recorded her statement as Ex PW 11/A. PW 15 SI Shiv Singh is one of the IO's who has investigated this case. He has proved the site plan Ex PW 15/A with correct marginal notes. Accused was arrested by him and his personal search was conducted vide memo Ex PW7/A. Accused was interrogated and his disclosure statement was recorded vide memo Ex PW7/B. Accused took the police team to the spot and pointing out memo was prepared vide memo Ex PW7/C. He also stated that he recorded statement of the witnesses and thereafter the case was transferred to Lady ASI Saroj.
In his statement under section 313 CrPC the accused has either denied the incriminating evidence in the prosecution case or has stated that he did not know about the incriminating evidence put to him. He has stated that he was innocent and has been falsely implicated in this case. 6
In support of its case the accused has produced two witnesses. DW 1 Bhagwati has stated that on 23/3/2005 at about 10 a.m., the prosecutrix was playing with other ladies in the gali. After some time Vinod, brother of the prosecutrix, came and a fight took place between brother and sister. They intervened and Vinod took the girl along with him to his house. DW2 is Guddu who has stated that on 23/3/2005 he was working as Mason at the house of brother of the accused for constructing the house. None came there during that period. The lanter was not there. There was no door to the rooms which were under construction.
I have heard the learned Additional Public Prosecutor for the State and learned counsel for the accused and have gone through the record of the case and relevant provisions of law.
The main arguments on behalf of the accused are that in the MLC of the prosecutrix her mother has stated that she was ready for medical examination so the medical examination of her mother and not of the prosecutrix was conducted. The FSL report also does not support the prosecution. The mother and brother of the prosecutrix have stated that one old lady and the other persons were present with the prosecutrix. The prosecutrix has stated in the cross 7 examination that her grandfather met them on the way so the prosecution story is false as neither these persons are produced in evidence and their presence also shows that the accused did not forcibly take the prosecutrix to the alleged place for alleged commission of the rape. He also argued that the brother of the prosecutrix in the DD in question has stated that the accused attempted to commit rape while in his statement before the court he has stated that the accused committed rape so this witness should not be believed.
It is true that the mother of the prosecutrix has signed the endorsement ''I am willing for my examination " on the MLC Ex PW1/A of the prosecutrix but below her signature there is thumb impression of the prosecutrix also which indicates that the said endorsement pertain to the prosecutrix. The age of the prosecutrix in this MLC is given as 12 years so the said endorsement regarding medical examination cannot pertain to the mother of the prosecutrix and the xray for bone age of the prosecutrix was recommended in this MLC the report of which is Ex PW5/A which shows that the xray of the prosecutrix and not of her mother was conducted. Therefore, I do not find any reason to accept the argument learned counsel for the accused that the medical examination of the 8 mother of the prosecutrix and not of the prosecutrix was got conducted.
The mere presence of one old lady at the place where the prosecutrix was playing or of her grandfather on the way when the accused was taking her to the place of incident cannot discredit the prosecution case merely because these persons are not examined as no particular number of witnesses required by the prosecution to prove a fact in the light of section 134 of the Indian Evidence Act. Unless there is convincing evidence on the record with regard to the age of the old lady and the grandfather of the prosecutrix and their capacity of the hearing and vision, it is difficult to give a finding that the prosecutrix accompanied the accused voluntarily or was taken by him forcibly to the place where the alleged rape was committed.
In the present case the prosecutrix had given her age in her statement to the police as 12 1/2 years while her bony age as per xray report Ex PW5/A is above 14 years and less than 16 years. But the best piece of evidence adduced by the prosecution regarding age of the prosecutrix is her birth entry in the copy of birth register Ex PW 12/A proved by PW 12 who has brought the original register maintained in the office of Sub Registrar, Birth and Death, Najafgarh according 9 to which the registration of the birth of the prosecutrix was done on 10/1/1991 and her date of birth is 2/1/1991. This fact finds corroboration with the attested copy of the birth certificate handed over by the brother of the prosecutrix to the IO which was seized by him vide memo Ex PW7/A. Keeping in view the fact that the date of birth of the prosecutrix as recorded in municipal record or the death and birth record of the Sub Registrar of the local body is considered the authentic piece of evidence in comparison to the bone age and oral statement of the witnesses, I hold that the prosecutrix was born on 2/1/1991 and as on the date of incident, i.e., 23/3/2005 she was a little more than 14 years of the age and so it is immaterial whether the prosecutrix was forcibly taken by the accused to the place where the alleged rape was committed or she herself had gone with him, The medical evidence Ex PW3/A shows that there was nothing to suggest that the accused was incapable of performing sexual intercourse. As per FSL report ExPX the human semen was detected from his underwear. The mark of nails were seen on the back the prosecutrix reported in her MLC Ex PW 1/A . But the FSL report ExPX shows that no semen could be detected from her pubic hair, vaginal swab, high vaginal swab despite the fact that the the rape is alleged 10 to have been committed in the morning and she was medically examined and the said samples were taken in the evening on the same day. Therefore, it appears that the accused has not ejaculated in the vagina of the prosecutrix. I am not unmindful of the fact that in a rape case it is the penetration and not the ejaculation which matters. The medical evidence shows that human semen was detected from the underwear of the accused but no semen could be detected from the prosecutrix's pubic hair, vaginal swab, high vaginal swab, despite the fact that the the rape is alleged to have been committed in the morning of the same day and she was medically examined and her said samples were taken in the evening on the same day. Therefore, these facts pertaining to medical evidence in report of the Forensic Science Laboratory shows that the ejaculation was there but it was not in the vagina of the prosecutrix. If the ejaculation occured before the penetration, there does not seem to be the possibility of penetration thereafter. It would be proper to mention here the judicial opinion handed down by the higher courts to ascertain whether the present case the accused attempted to commit rape or he has actually committed rape.
The expression 'whoever attempts to commit an 11 offence' in s 511 IPC can only mean, whoever intends to do a certain act with intention or knowledge necessary for the commission of the offence. All offences may be viewed in four distinct stages (i) intention (ii) preparation (iii) attempt and (iv) completed act. There is a thin line between preparation and attempt. Attempt has been defined in Stephen's Digest of Criminal Law as follows:
an attempt to commit a crime is an act done with intent to commit that crime, and forming part of a serious (series) of acts which would constitute its actual commission if it were not interrupted. (See Sulekhan Singh & ors v State 1999 Cr LJ 3798 (Raj).) The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination, and what is necessary to prove for an offence of an attempts to commit rape has been committed is that the accused has gone beyond the stage of preparation. (See Madan Lal v State of J & K 1998 Cr LJ 667 (SC).) It is true that mere intention to commit an offence, is not crime unless such intention is followed by an act. Mere intention is not suggestive of attempt when the accused with intent to commit rape to satisfy his lust laid the victim on the ground over the shawl tore her salwar, opened 12 his pants, laid over her which would show that he intended to gratify his passion on her person in all events. It is only when the mother of the victim calling and looking for the victim reached near the spot that he got up from the body of the victim and fled away. This prevented him from penetrating but in the process, he ejaculated on the shawl, stains of which were also found on his pants. The act of the accused would squarely fall under s 376 read with s 511 IPC. (See Gulam Ahmed v. State of Himachal Pradesh 2006 Cr LJ 361 (HP).) A person commits the offence of attempting to commit the particular offence, when he intends to commit that particular offence and having made preparations and with the intention to commit that offence, does as act toward its commission and that such act need not be the penultimate act towards the commission of that offence, but must be an act during the course of committing that offence. (See Abhayanand Mishra v State of Bihar AIR 1961 SC 169, 1961 (2) Cr LJ 822) In the present case though the prosecutrix has stated in her Examinationinchief that the accused has pressed her breasts and in her crossexamination also she has stated that the accused had pressed her breasts and had pressed her neck. She has stated these to of her mother. 13 The mother of the prosecutrix PW 10 has also stated in her Examinationinchief that her daughter disclosed to her that the accused had committed rape on her person and he had also pressed her breasts. These statements of the prosecutrix and her mother certainly show that the accused outraged the modesty of the prosecutrix and thereby committed the offence punishable under section 354 IPC. But the question still remains to be answered whether the accused has also committed rape or attempted to committed rape?
The prosecutrix PW 14 in her statement has stated that the accused had put off her clothes. He also put off his clothes. She has also stated in her Examinationin chief that after putting off her underwear, the accused committed rape on her person. But she has not specifically stated anything about penetration and the ejaculation. The brother and mother of the prosecutrix in their statements Under section 161 CrPC have stated that the prosecutrix was suffering from mental problem but they have denied this fact in their crossexamination. However, the mother of the prosecutrix was confronted with the statement made it to the police Ex PW 10/DA where it was so mentioned. Therefore, the statement of the prosecutrix that the accused committed rape on her person after putting off underwear cannot, without 14 support for medical evidence, lead to the inference that the accused committed rape on her more so, when her mother and brother in their statements to the police have stated about her mental illness.
As already stated, the inference from FSL report regarding underwear etc of the accused and the prosecutrix shows ejaculation but not in, the vagina of the prosecutrix. The two possibilities ,therefore, arise. One, that the ejaculation and discharge of semen took place before the penetration when the accused was pressing the breast of the prosecutrix or/and was going for the penetration. Two, he in fact has penetrated and then came out of the vagina and discharge took place outside leading to spread of semen on his underwear. There is no direct evidence of these two possibilities on which the prosecutrix alone could have thrown light but she has not done so. Therefore, the golden principle of the criminal law that when the two views are possible, the view which favours the accused and not the prosecution shall be accepted by the court. Therefore, the possibility that the discharge of semen took place be for penetration and soon after which the accused could not possibly go for penetration is to be accepted. Therefore, the offence committed by the accused is attempt to commit rape and not the of the rape. 15
Further, the initial reports and information to police are generally treated credit worthy as against the delayed information to the police. In the present case the initial information to the police is given by the brother of the prosecutrix by DD No. 16A and this report Ex PW4/A is heavily relied by learned counsel for the accused in his arguments. It shows that the brother of the prosecutrix has stated that there was an attempt to commit rape on his sister. Therefore, the medical evidence and initial information to police Ex PW4/A and the facts and circumstances of the case suggest that the accused is guilty of attempt to commit rape and not of commission of the rape on the prosecutrix. There is no legal bar for convicting accused under section 376/511 IPC or section 354 IPC when the accused was charged for the offence under section 376 IPC.
As regards the defence of the accused DW1 has stated that the prosecutrix and brother of the prosecutrix on 23/3/2005 were present and a quarrel took place between them. They intervened and the brother of the prosecutrix took her to his house. But this witness is not worth believing as neither the prosecutrix nor her brother were asked in the crossexamination that DW1 was present at the spot or a quarrel took place between the prosecutrix and her brother 16 and thereafter the brother of the prosecutrix took her to his house. Therefore DW1 is not a trustworthy witness.
Similarly, DW2 who has stated that he was working as Mason at the house of the brother of the accused for constructing the house and there was 5/6 other boys working and none came there during that period is also not an eye witness who should be relied upon as neither prosecutrix nor her brother and mother are asked in the crossexamination that DW2 was working as Mason at the house under construction where the alleged incident took place. Therefore the testimony of DW2 is also not worth believing.
In the light of the above discussion I hold that the prosecution has not been able to prove its case against the accused for the offence under section 376 IPC but has proved its case against the accused beyond reasonable doubt for the offences under sections 376/511 and 354 IPC. The accused is convicted accordingly for the offences under section 376/511 IPC and under section 354 IPC. The judgment be sent to the server (www.delhidistrictcourts.nic.in).
( S.K. SARVARIA ) Additional Sessions Judge New Delhi Announced in the open court on 22.04.2008 17 IN THE COURT OF SHRI S. K. SARVARIA ADDITIONAL SESSIONS JUDGE, NEW DELHI SC No. 64/2005 State Versus Sanjay @ Titu son of late Badam Singh R/o Harijan Basti Chuttan Nagari VPO Bijwasan New Delhi.
FIR No. 64/05
Police Station Kapashera Under Section U/s 376 IPC ORDER ON SENTENCE Present Addl PP for the state. Convict/Accused in JC Counsel for the convict is also present.
Arguments on the point of sentence heard. The ld counsel for the convict has argued that convict is young person and was aged about 24 years and at the time of alleged commission of offence It is further argued that mother of the convict is handicapped and his father has expired and he is sole bread earner of his family and he is in Judicial Custody since 24.3.05.
On the other hand, learned Addl PP for state has argued that deterrent punishment should be awarded to the convict.
Keeping in view the facts and circumstance of the case and the arguments raised by the learned counsel for 18 the convict, I sentenced the convict to imprisonment for the period three years and one month RI and to pay fine of Rs. 1000/- under section 376 IPC in default of payment of fine convict shall undergo simple imprisonment for two months under section 376 IPC.
I further sentence the convict to rigorous imprisonment for one year and to pay fine of Rs 500 under section U/s 354 IPC and in default of payment of fine convict shall undergo simple imprisonment for one month. Both these sentences shall run concurrently.
The above substantive sentences of imprisonment awarded to the convict shall run concurrently and he shall also be given benefit of set off with regard to the detention already undergone by him during investigation and trial of this case U/s 428 Cr. P.C. Copy of judgment and order on sentence be given to convict free of cost.
The judgment be sent to the server
(www.delhidistrictcourts.nic.in).
File be consigned to record room.
Announced in the open court on
24th
day of April 2008
(SK SARVARIA)
Additional Sessions Judge
New Delhi
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