Delhi District Court
State vs . 1. Umesh Singh on 17 August, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSION
JUDGE-II (NW): ROHINI COURTS: DELHI
Session Case No. 778/07
Unique Case ID No. 02404R0128092007
State Vs. 1. Umesh Singh
S/o Sh. Ram Bhorase
R/o House No. 34,
H/O Om Prakash,
Village Hastsal,
Uttam Nagar, Delhi
(Acquitted)
2. Smt. Urmila
W/o Munesh
R/o Village Bhojipura Pawai
PO Samaspur Phatta
PS Jarif Nagar,
Distt. Badayun, U.P.
(Acquitted)
FIR No. 1135/06
Police Station: Uttam Nagar
Under Section: 363/376/368 Indian Penal Code
Date of committal to session court: 25.4.2007
Arguments heard on: 23.7.2010
Judgment announced on: 17.8.2010
JUDGMENT:
As per the allegations the accused Umesh Singh kidnapped the prosecutrix 'B' (name of the prosecutrix is withheld St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 1 of 27 as this is a case under Section 376 Indian Penal Code) aged 13 years out of the lawful guardianship of her parents on 14.11.2006 with the intent that she shall be seduced to illicit intercourse and committed sexual intercourse at Bhojipura, Uttar Pradesh. In so far as the accused Urmila is concerned it has been alleged that she wrongfully confined or concealed the prosecutrix 'B' knowing well that she had been kidnapped or abducted.
BRIEF FACTS Case of the prosecution:
The case of the prosecution is that on 2.12.2006 Smt. Parveen the mother of the prosecutrix went to police statement Uttam Nagar and got her complaint recorded wherein she has informed the police that accused Umesh had illegally taken her daughter 'B' away. On the basis of the said statement of Smt. Parveen, the present FIR bearing No. 1135/06 was got registered. Thereafter on 19.12.2006 a police team was sent to Badayun and Bareily to trace out the missing girl but but they came to know that the prosecutrix and the accused had gone to Delhi. Pursuant to the same the prosecutrix and accused Umesh Kumar were apprehended from Janak Puri and the accused was arrested and the statement of the prosecutrix under Section 164 Cr.P.C. was got recorded wherein she has informed about the involvement of Smt. Urmila the brother of the accused in the crime. Thereafter, the St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 2 of 27 accused Urmila was arrested from village Maujipura and both the accused were charge sheeted.
CHARGE:
The record reveals that after hearing the arguments from both the sides, the Ld. Predecessor of this court has settled the charges under Section 363/366/376 Indian Penal Code against the accused Umesh Singh and under Section 368 Indian Penal Code against the accused Urmila to which they have pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case the prosecution has examined as many as 15 witnesses.
Public witnesses/ victim/ complainant:
PW2 Smt. Praveen is the mother of the prosecutrix and the complainant in the present case. She has deposed that on 14th November 2006 her daughter 'B' aged about 14 years, was taken by accused Umesh to village Bhojpura in Uttar Pradesh. According to the witness, the accused got her daughter employed three days earlier to the incident at a factory where cards were being printed and on the day of incident the accused came to their house and said that the employer had desired that the prosecutrix St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 3 of 27 should go out of station in connection with work after which the prosecutrix did not return home. She has further deposed that after waiting sufficiently and searching for her daughter, she went to police station Uttam Nagar on 2.12.2006 and got recorded her statement which is Ex.PW2/A. She has also deposed that on 29 December 2006, her Jeth and brother along with some police officials went to village Bhojpura in Uttar Pradesh and brought the accused Umesh and her daughter from there and they were both produced at Police Station Uttam Nagar. According to the witness her daughter was medico-legally examined and then sent to Nari- Niketan for eight days and thereafter her custody was handed over to them. The witness has testified that her daughter had gone to work in the Kothis and did not return and the accused Umesh, who lived in the neighbourhood was also noticed to be missing since that day, therefore, she suspected him to be involved in the offence. The witness has further deposed that her daughter was aged about 14 years at that time and she daughter was recovered from the possession of accused Umesh Singh, from near Bus Stand Uttam Nagar who is the Mausa of the prosecutrix. The witness has proved the arrest memo of the accused which is Ex.PW2/B and the carbon copy of personal search memo of accused which is Mark PW2/C. When this witness was cross-examined, she did not support the version given by her to the police or what she had St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 4 of 27 deposed in her examination in chief. She has admitted that her daughter had gone to work in a factory when she went missing and at that time she was not present at her house and when she returned back from her work place she came to know that her daughter is missing. She has admitted that the age of her daughter is more than 20 years and was more than 18 years at the time of occurrence. The witness has also admitted that she had only gone to the Police Station for lodging a missing report of her daughter and that on return of her daughter she took her along with the accused to the Police Station to inform them about the return of her daughter and that the police officials falsely implicated the accused and his sister and arrested them. PW2 has also admitted that her daughter told her that she was not subjected any sexual intercourse by the accused during her stay with the accused and that she was not forcibly detained by the accused or not threatened at any time using a knife or otherwise. The witness has further admitted that the accused Urmila was not present in the native village of accused Umesh and that she had not facilitated any crime and that her daughter told her that when she voluntarily went with accused Umesh to the house of his maternal uncle, the said maternal uncle was not at his home and no force was used by said maternal uncle. The witness has further admitted that her statement made to the police Ex.PW2/A was not read over to her and that the paper was blank when she put her thumb impression St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 5 of 27 thereon. She has also admitted that at the time of admission of her daughter to the school she had mentioned the date of birth to be less by about 3-4 years, as she was advised to mention a young age, to provide her benefit in future employment.
The witness has turned totally hostile in her cross- examination and therefore, she was cross-examined by the Ld. Addl. PP for the State wherein she has denied that her examination in chief was a true version or that she has been won over by the accused person or that her daughter was minor at the time of occurrence. She has also denied that the date of birth mentioned by her at the time of her admission was incorrect.
PW-3 is the prosecutrix 'B' who has deposed that she was 13 years old at the time of occurrence and lived with her parents and other siblings. According to her, she used to work at a House as caretaker of a child and used to work from 7 to 8 PM and accused Umesh is her Mausa. She has deposed that the accused came to their house and offered her to get employed in a factory and at that time her grandmother was at home, while her parents had gone to their village. The witness has further deposed that the accused got her employed in a factory where visiting cards were printed and she had worked for three days in that company @ Rs.2,000/- per month and on the fourth day accused came to her house and told her that, the employer had deputed him to go out of station and that she should go with him. According to the witness, St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 6 of 27 she resisted but the accused said that, he was related to her as a Mausa and could not harm her after which he took her to village Bhauzipur, UP. where he took her to the house of his sister. PW3 has deposed that at the house of his sister for one month, the accused raped her daily and used to threaten her with a knife that in case she tried to run away he would kill her. The witness has also deposed that the sister of the accused also used to threatened her that in case she tried to run away she shall face dire consequences. According to her, one day he offered to take her to another sister in Delhi and brought her to Delhi where at the bus stop of Uttam Nagar when she was present with the accused, his mother, tauji and police officials met them and police officials apprehended them and brought them to the Police Station Uttam Nagar. She has also deposed that from the police station she was taken for medico-legal examination to DDU Hospital and after medical examination she was sent to Nari-Niketan, for three-four days after which she was sent home and then produced in Rohini Court before Magistrate, where her statement was recorded. The witness has proved her statement under Section 164 Cr.P.C. which is Ex.PW3/A. She has identified both the accused persons in the court.
However, PW3 was found resiling from her previous statement due to which reason she was cross-examined by the Ld. Addl. PP wherein she has admitted that her statement under St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 7 of 27 Section 164 Cr. P.C. was recorded by the Ld. M.M. on 2.01.07. According to him, she did not state to the Ld. MM that accused Urmilla had caught hold of her hand when accused Umesh committed rape with her but states that she was standing nearby. She has admitted that the accused Umesh had taken her to village Tada at the house of his maternal uncle and raped her and she did not state to the Ld. MM that maternal uncle of Umesh abetted him to rape her. She has been confronted with portion her statement Ex.PW3/A where the said facts were recorded.
In her cross-examination the prosecutrix has turned hostile and has not supported the case of the prosecution. She has admitted that she is more than 20 years old (at the time of her deposition). According to her, she had gone with accused Umesh Singh to his village voluntarily and there was no force used by the accused Umesh and no inducement by him. She has also deposed that during her stay with him at his village, Distt. Bidyaun, no force was used and she was not ill-treated. The witness has further deposed that no threats were extended to her and she was not ill- treated and she was not subjected to sexual intercourse or any physical assault. According to PW3, there were no restriction on her during his stay at her village and her statement made in the court on 03.11.2007 and 01.08.08 was at the instance of police officials and was not voluntary. She has further deposed that her statement Ex.PW3/A was also at the instance of police official St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 8 of 27 and was not his voluntary statement. She has stated that her statement was not recorded during investigation by the police. She has furthe5r deposed that accused Urmilla was not present in the village of accused Umesh, throughout her stay with him. PW3 has also admitted that accused Umesh never threatened her with a knife or restrained her under the threat of knife. According to her, on her return to Delhi, she herself and her mother along with accused Umesh had gone to the police station to inform them that she had returned and that police officials illegally apprehended accused Umesh and foisted a false case upon him.
She has also been further cross-examined by the Ld. Addl. PP since she has turned totally hostile wherein she has admitted that she was a student of Primary school, Kharka Pur, Distt. Biduan, UP. and that her date of birth as per school leaving certificate is 12.08.1994. She has denied the various suggestions put by the Ld. Addl. PP.
PW5 Sohan Lal is the uncle of the prosecutrix who has deposed that prosecutrix 'B' lived in Delhi with her father and other family members and on 14.11.06 he came to know that prosecutrix has left the parental home. According to the witness, she was aged about 14 years at that time and her mother namely Praveen lodged an FIR on which he came to Delhi and they searched for her on the nearby area. The witness has further deposed that accused Umesh who lived in the neighbourhood was also reported to be missing St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 9 of 27 and he along with the police team went to the native village of Umesh i.e. Gangloi Distt. Badayun, UP but the accused was not found present at his house. He has also deposed that they came to know that the accused was in Bhojipura after which they went to Bhojipura, where again accused and prosecutrix could not be traced and they returned to Delhi. According to PW5, the accused and the prosecutrix were spotted under the Metro track in Uttam Nagar but he does not remember the date, month or year of spotting them and they were taken to PS Uttam Nagar and both of them were taken to some hospital for medical examination after which the prosecutrix was handed over to their custody and accused was sent to jail.
He has also been cross-examined by the Ld. Addl. PP for the State since PW5 has been found resiling from her previous statement given to the police. He has denied that on 23.12.2006 he was present in Delhi and joined the investigation and on 13.12.2006 the police recovered the prosecutrix from the custody of accused Umesh. He has also denied that accused had made a disclosure statement in his presence but admits his signatures on disclosure statement Ex.PW5/A. He has also identified his signatures on the arrest memo which is Ex.PW2/B but according to him accused was not arrested in his presence. The witness has denied that custody of the prosecutrix was handed over to him on 28.12.2006 but admits his signatures on memo Ex.PW5/B. St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 10 of 27 In his cross-examination he has admitted that when his niece went missing she was more than 18 years old and now she is more than 20 years old and that he has no personal knowledge of the present case and he has deposed on the basis of information collected. The witness has admitted that when he went to the Police Station and his signatures were taken by the officers on several blank papers. He has testified that he was present in the court premises when statement of the prosecutrix was recorded under section 164 Cr.P.C. and has admitted that on that day Investigating Officer had threatened the prosecutrix and had directed her to make a statement implicating the accused but they did not make any complaint to senior police officials against the Investigating Officer, they had been threatened by the Investigating Officer to be implicated in some other case. He has admitted that the prosecutrix had told him that she had voluntarily joined the company of accused without any force or inducement or that she was not subjected to any sexual intercourse by the accused.
Medical Evidence:
PW1 Dr. Meenu Sehgal has proved that on 23.12.2006 she examined the prosecutrix 'B' brought by Lady Const. Rekha and the patient had given the history of sexual assault on the night of 21.12.06 and had given history of LMP fifteen days back. According to her on examination, she found her general condition St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 11 of 27 to be fair and the prosecutrix was not running any fever and there were no external injury marks on the body and the patient was not wearing underwear. She has deposed that on local examination, hymen was found not intact; vaginal introitus admits two fingers and there were no fresh injury marks. Per speculum examination shows cervix and vagina to be normal and on per vaginal examination uterus was anti verted, ante flexed normal size, firm and mobile, bilateral fornices were free. She has proved the MLC of the prosecutrix which is Ex.PW1/A. According to her, she collected pubic hair, two slides swab from vagina and handed over the same to the police official.
PW9 Dr. Bhavana has proved having examined the accused Umesh Singh on 24.12.2006 and on examination she found that there was nothing to indicate that the patient could not perform the act of sex. The MLC of the accused Umesh is Ex.PW9/A. According to the witness, semen sample of the accused was handed over to Ct. Azad Singh.
Police witnesses/ official witnesses:
PW4 Sh. Hardwari Lal Head Master, Primary School Khargapur, District-Badayun has brought the original Admission Register of the School. According to him, as per the record the prosecutrix D/o Phool Chand (Mother's Name- Smt. Parveen) was admitted in the school on 16.09.2000 and at the time of her St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 12 of 27 admission to school the date of birth was recorded as 12.08.1994. He has placed on record the photocopy of the relevant extract which is Ex.PW4/A and the School Leaving Certificate (SLC) dated 15.12.2006 which is Ex.PW4/B. PW6 HC Nem Pal is the Duty Officer who has deposed that on 02.12.2006 he received a rukka mark A which was presented to him in person by SI Dharampal on the basis of which he recorded FIR No.1135/06 u/s 363 IPC, carbon copy of which is Ex.PW6/A. He has also proved having recorded DD No.35A in this regard in the roznamcha and made an endorsement to that effect on the rukka which endorsement is Ex.PW6/B. PW7 HC Ramesh Chand has deposed that on 19.12.2006 he was entrusted with the investigation of this case by the SHO and accordingly he along with Ct. Narender went in search of prosecutrix and accused Umesh to village Bhojipura, Badau, UP. According to him, he made efforts to search Umesh and went to the local police station and after taking police assistance from over there went to the house of sister of accused Umesh but neither the accused nor the prosecutrix could be found over there. He has further deposed that at the local police station one Sohan Lal, who was the uncle (tau) of the prosecutrix met them and on further inquiry in the area they came to know that the prosecutrix and accused had gone to village Tanda, District Bareli, UP. Thereafter he along with Ct. Naresh Kumar and Sohan Lal St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 13 of 27 went to PS Amla, Village Tanda, Distt. Bareli, UP and after taking police assistance from the local police they went to village Tanda where some relatives of accused Umesh were found residing and on inquiry in the area they came to know that the accused and the prosecutrix had gone back to Delhi. The witness has deposed that they accordingly came back to Delhi and he apprised the SHO of all of the aforesaid facts and thereafter the subsequent investigation was handed over to SI Dharam Pal pursuant to the orders of SHO.
PW8 Ct. Rekha has deposed that on the night intervening 23/24-12.2006 she was entrusted with the custody of prosecutrix for getting her medical examination. According to her, she accordingly took the prosecutrix to DDU Hospital where she was medically examined vide MLC Ex. PW1/A. PW10 Ct. Sandeep Kumar has deposed that on 27.01.2007 he took 4 sealed pullandas from MHC(M) Uttam Nagar to CFSL Kolkata vide RC No. 329/21 and after depositing the sealed pullandas he returned back and handed over the copy of the receipt of pullandas on the copy of RC to the MHC(M). He has proved that so long as the sealed pullandas remained in his possession, no one tampered with them.
PW11 HC Rajbir Singh has deposed that on 08.12.2006 the investigations of this case were handed over to him and he along with Ct. Rambir Singh and uncle of missing girl went St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 14 of 27 to Badaun UP on 08.12.2006. He has further deposed that on 09.12.2006 they reached PS Peshganj Distt. Badaun and from there along with the local police they reached village Gangloli at the house of accused Umesh but the house was found locked and no one was present there. According to PW11, upon inquiry the neighbourers told that Umesh Singh has not come over there for the past many days much less with any girl and they were accordingly told to inform the police whenever Umesh Singh comes over there. He has also deposed that thereafter they returned back to Delhi and the case file was again handed over to SI Dharmapal pursuant to orders to SHO PS Uttam Nagar.
PW12 Inspector Dharampal is the investigating officer in the present case who has deposed that on 02.12.2006 one lady Smt. Parveen came to Police Station and got her complaint recorded pertaining to missing of her minor daughter aged 14 years. He has proved that he made his endorsement Ex.PW12/A thereunder and handed over the rukka to Duty Officer HC Nem Pal for registration of the case and after registration of the case he took over the investigation of the matter. According to him, he made efforts to trace out the missing girl and accused Umesh upon whom suspicion was raised by Smt. Parveen but they could not be found. He has also deposed that on 19.12.2006 he had sent a team headed by HC Ramesh to PS Badaun and Bareily to trace out the missing girl and they returned back on 23.12.2006 and informed St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 15 of 27 that they had come to know that the boy and the girl have come to Delhi in the house of their sister in Janakpuri. The witness has further deposed that accordingly he along with complainant went to Janakpuri and at near bus stand Uttam Nagar Smt. Parveen pointed out towards accused Umesh present along with one girl sitting over there at the bus stand after which both of them were apprehended. He has deposed that he accordingly informed the SHO that prosecutrix now alleged that rape has been committed upon her and therefore, SHO directed that further investigation may be handed to ASI Manjeet Kaur and he accordingly took both accused and the complainant along with prosecutrix to police station and handed them over to ASI Manjeet Kaur.
PW 13 ASI Manjeet Kaur is the second investigating officer who has deposed that on 23.12.06 she was entrusted with the investigation of the present case and on that day at around 9.30 pm she was handed over accused Umesh along with prosecutrix by SI Dharampal. She has deposed that she recorded statement U/s 161 Cr.P.C. of prosecutrix and sent her to DDU Hospital though Ct. Rekha for medical examination and also recorded statement of Smt. Parveen and her relative Sohan Singh. She has deposed that since it was past 12.00 midnight so she got the accused medically examined at DDU hospital and prior to that she arrested the accused vide arrest memo Ex.PW2/B and personal search memo Ex.PW2/C. According to the witness, the accused also made a St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 16 of 27 disclosure statement which is Ex.PW5/A and on the next day accused was produced in court and was sent to judicial custody. She has deposed that the prosecutrix was sent to Nari Niketan by the court and thereafter she moved an application Ex.PW13/A before the court with the request for recording statement U/s. 164 Cr.P.C. of the prosecutrix pursuant to which statement of the prosecutrix which is Ex.PW3/A was recorded and she sought a copy thereof vide application Ex.PW13/B. The witness has further deposed that at the time of medical examination of prosecutrix as well as accused the doctors had handed over to them one sealed pullanda containing the pubic hair and the vaginal swab of prosecutrix along with sample seal and she seized it vide memo Ex.PW8/A. She has testified that the doctors had also collected the semen sample of the accused and she collected the sealed pullanda thereof along with the sample seal vide memo Ex.PW13/C and she deposited the same with the MHC(M) and later on through Ct. Sandeep had sent them to CFSL Kolkata where they were examined vide report Ex.PW 13/PX 1. The witness has further deposed that since the prosecutrix had stated in her statement U/s 164 Cr.PC that Urmila the sister of accused Umesh was also involved in the incident and therefore efforts were made to trace her out but she could not be found. She has proved having prepared the challan against accused Umesh Singh and presenting the same before SHO for filing in court.
St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 17 of 27 PW14 Lady Ct. Kavita has deposed that on 29.11.2007 the accused Urmila was arrested by the investigating officer in the present and was personally searched by her vide memo Ex.PW14/A. PW15 HC Vishnu Kumar has deposed that on 24.11.2007 he along with ASI Jag Pal Singh left police station for investigation of this case and on 29.11.2007 they both reached at village Maujipura where the accused Urmila was apprehended in this case. According to him, the accused was brought to the police station and at that time her husband Bunesh and her father-in-law Suresh also accompanied them to Delhi. He has proved that the accused Urmila was arrested vide memo Ex.PW15/A and was personally searched by Lady Ct. Kavita vide memo Ex.PW14/A and the disclosure statement of the accused was recorded vide Ex.PW15/B. According to the witness, accused Urmila was having a daughter aged about 5-6 months who was also brought with her.
Statement of the accused/ defence evidence:
After completion of prosecution evidence, statements of both the accused persons were recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence has been put to them which they have denied. The accused Umesh Singh has stated that he has been falsely implicated in this case and the St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 18 of 27 prosecutrix had gone with him with her own free will and consent and later on he has been falsely arrested from his Mama's village Tanda, Raibareli. The accused Urmila has deposed that she has been falsely implicated in this case and she is staying in her matrimonial house. According to her, the prosecutrix had herself came with her brother but she did not keep her brother and the prosecutrix at her house since she is staying with her in-laws.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and also by the Ld. counsel for the accused persons. I have also gone through the testimonies of the various witnesses and the written synopsis of arguments filed on behalf of the accused.
Firstly it is evident that the identity of both the accused Umesh Singh and Urmila are not disputed being related to the prosecutrix and her family. (Accused Umesh is the Mausa of the prosecutrix).
Secondly it is evident that the age of the prosecutrix is under dispute. Her date of birth as shown in the school leaving certificate Ex.PW4/B proved by PW4 Hardwari Lal is 12.8.1994 but it is evident from the testimony of the prosecutrix 'B' who has been examined as PW3 and her mother Smt. Praveen PW2 that on the date of examination in the year 2009 she was aged more than St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 19 of 27 20 years and they have testified that a wrong date of birth has been mentioned in the school leaving certificate of the prosecutrix only to seek the benefit of 4-5 years later at the time of employment.
Thirdly it is evident from the record that both PW2 Smt. Praveen mother of the prosecutrix and PW3 the prosecutrix have turned hostile. In fact the prosecutrix has not even supported her statement made by her to the Ld. Metropolitan Magistrate under Section 164 Code of Criminal Procedure which is Ex.PW3/A and has given a clean chit to both the accused Umesh who is her Mausa in relation and his sister Urmila.
Fourthly it is evident from the testimony of PW3 the prosecutrix that she has also turned hostile on the use of force and has deposed that during her stay with the accused at his village district Badayun, no force was used nor she was not ill-treated nor she was subjected to sexual intercourse or any physical assault nor there was any restriction during her stay at the village. According to her, the statement made by her at the time of recording of statement under Section 164 Code of Criminal Procedure and at the time of her examination in chief was at the instance of police officials. In her re-examination by the Ld. Addl. PP she has not supported the case of the prosecution and has denied all the allegations.
Lastly PW1 Dr. Meena Sehgal has proved the MLC of the prosecution which is Ex.PW1/A showing that there were no St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 20 of 27 external injury marks and the vaginal introtius admits two fingers.
In view of the above, the allegations of rape upon the prosecutrix do not stand established more so as the prosecutrix herself has denied the aforesaid allegations in her deposition before the court and have turned totally hostile.
Therefore, in view of my aforesaid findings, I hereby hold that the prosecution has not been able to prove beyond doubt that the prosecutrix on the date of the incident was a minor or that she was enticed, allured or forcibly taken away by the accused persons or that she was sexually assaulted or abused against her consent by the accused Umesh. I, therefore, acquit the accused Umesh Singh of the charges under Section 363/366/376 Indian Penal Code and the accused Urmila of the charges under Section 368 Indian Penal Code. Bail bonds of both the accused stand cancelled. Their sureties stand discharged. Original documents of the sureties be returned after cancellation of endorsement, as per rules.
Before concluding, I am compelled to pen down my concerns on the manner in which the medical examination of the prosecutrix 'B' has been got conducted. The MLC of the prosecutrix 'B' Ex.PW1/A reveals that the doctor who had examined the prosecutrix had after reporting on the external injuries, state of sexual organs of the victim and the samples collected, conducted the following tests on the prosecutrix 'B' aged St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 21 of 27 about 14 years:
1. The Hymen Test
2. The PV Test.
In so far as the Hymen Test is concerned, it has been reported by the doctor on the MLC of the prosecutrix that the Hymen not intact. Further, with regard to the PV Test it has been reported that vaginal introitus admits two fingers.
This court has come across a number of MLCs of victims of rape where apart from reporting on the signs of violence or resistance, state of sexual organs of the victim and details regarding collecting of samples and reporting on the condition of the hymen cord the information "PV: two fingers admissible or inadmissible" as the case may be is also mentioned. In this information it is also transcribed as "habituated to sex" or "used to sex". The category of habituated is used against raped women to suggest they lie about rape and this extends to child sexual abuse cases too.
It is this test which is the cause of concern. It is being routinely conducted by the doctors on the victims of sexual abuse and rape be it a minor, unmarried girl or married woman, without having any regards to the fact that the opinion of the doctors rendered after conducting such a test has no bearing with regard to the guilt or otherwise of the accused.
St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 22 of 27 I may observe, that in case of sexual assault the doctor is only required to look into signs of violence or resistance if any upon the body of the victim for which the doctor would make a note of it by visible external examination. The doctor is further required to report on the state of sexual organs of the victim to include information regarding puberty and attaining of sexual maturity of the victim and in case of assault or pregnancy the abdominal and vaginal examinations and thereafter to collect the samples from the clothes of the victim and the alleged attacker and the vagina of the victim so as to establishing the nature of assault and the identity of the attacker.
In case if the victim is unmarried, the Hymen Test is conducted to check if the hymen cord is intact and in case of use of force any signs of tearing or bruising off or near the vagina is noted. Having conducted the aforesaid test no further examination is required. Why then the Per Vagina (PV) test which is normally called the Finger Test is being carried out in routine on victims of sexual offences. This test only establishes whether the vestibule is congested and whether one, two or three fingers can be inserted. It is this PV Test which is being carried out by the doctors in routine upon the rape victims to which this court has serious reservations.
The Hon'ble Supreme Court of India has Articulated and protected the privacy as one of the features of the fundamental St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 23 of 27 rights i.e. Article 21 of the Constitution of India which states that no person shall be deprived of his life and personal liberty except according to the procedure established by law. The Hon'ble Apex Court has dealt with this aspect of Right to Privacy of a patient's medical record in the case of Mr. X Vs. Hospital Y reported in (1998) 8 SCC 296 in case of an AIDS patient's right of life which included his right to privacy and confidentiality of his medical condition.
Earlier in the case of Roe vs. Wade reported in 410 US 113 (1973) even while the Supreme Court of America dealt with the rights of an unmarried pregnant woman to an abortion, it observed that although the American Constitution did not explicitly mention any right of privacy, it recognized such a right as a guarantee of certain "zones or areas of privacy".
This being the legal position and the Constitution of India recognizing the Right of Privacy as an important fundamental right, the reservations of this court on the conduct of the PV Test/ Finger Test are on the following counts:
Firstly the manner in which this medical test (PV Test) is carried out by inserting a finger inside the vagina of a women irrespective of age or marital status is violation of her body and in the absence of her consent would be violative of Constitutional dictates of right to Life as enshrined under Article 21 of the Constitution of India.
St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 24 of 27 Secondly this test which permits a doctor to state whether a woman is "habituated to sex" or "used to sex" in a public proceedings without having due regards for confidentiality, is in itself violative of the Right of Privacy of a woman regarding her sexual life in as much as it tends to expose her private sexual life.
Thirdly the PV Test/ Two finger test, medically has no scientific or conclusive basis and the opinion rendered by the doctor to the extent of congestion of vestibule is subjective. I say this because assuming in a given case where the victim of rape is a married woman it is only natural that the vestibule would admits more than one finger. How then, would this be relevant to establish rape. Also, in a case where the victim is an unmarried girl once the Hymen Test is conducted how the aspect of extent of congestion of the vestibule would be relevant. The extension of vestibules to various degrees can be on account of various reasons including medical and not only because of the sexual life of a woman. Even if it is on account of her previous sexual life how relevant or authentic this test would be.
Fourthly once the character evidence of a rape victim is no longer admissible in evidence, how can this test (PV Test) which only permits the doctor to state if the woman is habituated to sex or not, continue to inform the rape trials. This PV Test/ Finger Test which is being so conducted in routine upon the St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 25 of 27 victims of sexual offences allows the character evidence to disqualify the victim's testimony. The presumptions under the Indian Evidence Act and the existing statutory provisions in India makes the sexual character of a rape victim irrelevant to sexual violence trials. Given these circumstances, the PV Test is absolutely unnecessary and irrelevant in trial of rape cases.
Lastly the PV Test which allows the doctor to state whether the woman is habituated to sex or used to sex is self incriminating as it is often used to disqualify the victim's testimony. This test shifts the focus of the investigations and the trial in sexual offences cases from the accused to the victim which is impermissible.
The humiliation which a rape victim suffers in the court on account of existing procedures is impermissible. This court is of the view that the existing medical and legal procedures which are irrelevant to the trial of the rape cases, are required to be reviewed and stopped forthwith.
This being the background, I hereby hold that the PV Test/ Finger Test is irrelevant to sexual violence trials. This test is violative of the Fundamental Right of Privacy an important Constitutional Right of the victim. If due to any reason, under the given circumstances of a case, if the investigating officer is of the view that this test would be essential and necessary to collect evidence against the accused, then it should only be carried out St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 26 of 27 with the consent of the prosecutrix/ her guardians (prosecutrix if she is a major and guardians if she is a minor) and that too after taking due permission from the court and not otherwise.
State action cannot be a threat to the Constitutional Right of an individual. What has shocked my conscious is the fact that this PV Test/ Finger Test is being carried out in routine on victims of sexual offences by the doctors thereby reflecting a rampant violation of the Constitutional Rights of such victims. It has therefore become necessary for this court to highlight this fact before the authorities concerned so that the necessary steps are taken in the direction to ensure the protection of the Right of Privacy of the victims of sexual offence and for this purpose I direct that a copy of this order be placed before the Directorate of Health, NCT of Delhi and Chief Secretary, Government of NCT of Delhi and the National Commission for Women for information and for information and appropriate action in this regard.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 17.8.2010 ASJ-II(NW): Rohini
St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 27 of 27 17.8.2010 Present: Addl. PP for the state.
Both accused are on bail.
Vide my separate detailed order dictated and announced in the open court, I acquit the accused Umesh Singh of the charges under Section 363/366/376 Indian Penal Code and the accused Urmila of the charges under Section 368 Indian Penal Code. Bail bonds of both the accused stand cancelled. Their sureties stand discharged. Original documents of the sureties be returned after cancellation of endorsement, as per rules.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJ-II(NW)/ 17.8.2010 St. Vs. Umesh Singh & Anr., FIR No.1135/06, PS Uttam Nagar Page No. 28 of 27