Delhi District Court
State vs . Ram Nath on 24 August, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSION JUDGE
II (NW): ROHINI COURTS: DELHI
Session Case No. 1229/10
Unique Case ID No.: 02404R0196072010
State Vs. Ram Nath
S/o Shiv Charan
R/o Gali No.4, Sant Ram Ka Makan,
Harijan Colony, Bhalswa Dairy,
Delhi
(Convicted)
FIR No.: 141/10
Police Station: Jahangir Puri
Under Section: 376/506 Indian Penal Code
Date of committal to Session Court: 17.8.2010
Date on which orders were reserved: 3.8.2011
Date on which judgment pronounced: 10.8.2011
JUDGMENT:
As per the allegations, in the month of February to April 2010 at Gali no.3, Harijan Colony, in the house of Sant Ram, Village Bhalswa the accused Ram Nath committed rape upon the prosecutrix 'L' (name of the prosecutrix is withheld as this is a case under Section 376 Indian Penal Code) and he also criminally intimidated the prosecutrix at the time of committing the rape upon her. St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 1 CASE OF THE PROSECUTION/ BRIEF FACTS:
The case of the prosecution is that on 18.4.2010 DD No. 61 was received at Police Station Jahangir Puri pursuant to which ASI Ram Babu along with Ct. Shri Bhagwan reached the house of Sant Ram at Harijan Basti, Bhalswa where the prosecutrix and her mother met and on inquiry from Heerawati she informed that rape had been committed upon her daughter 'L' by her (Heerawati's) husband. Thereafter ASI Ram Bahu and Ct. Shri Bhagwan took the prosecutrix and her mother to BJRM Hospital where SI Sushila Rana and HC Asha also reached. SI Sushila Rana recorded the statement of the prosecutrix 'L' wherein the prosecutrix informed the police that about one and a half month prior (in the month of February) her step father namely Ram Nath committed rape upon her without her consent and when she tried to raise an alarm he threatened to kill her as well as his mother. According to the prosecutrix, being scared she did not disclose this fact to anybody. The prosecutrix further informed the police that in the month of February itself her step father again committed rape upon her on twothree occasions. According to her, on 18.4.2010 when her mother was away for her work, her father came to the house and asked her brothers and sisters to go downstairs after which he started teasing her and on being objected he physically assaulted her on which she raised an alarm and in the meantime her mother came back to house when she told everything to her mother who called the police.
St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 2
On the basis of the statement of the prosecutrix the present case was got registered and the accused was arrested. After completion of investigations, the accused was charge sheeted. CHARGE:
Charges under Sections 376 and 506 Indian Penal Code were framed against the accused Ram Nath to which he pleaded not guilty and claimed trial.
EVIDENCE:
In order to discharge the onus upon them, the prosecution has examined as many as fourteen witnesses:
Prosecutrix/ public witnesses:
It is evident from the record that the prosecutrix 'L' has not been produced before this court to depose and it is only her mother Heerawati who has appeared and deposed against the accused.
PW13 Hirawati is the mother of the prosecutrix and wife of the accused Ram Nath. She has deposed that her first husband who was the biological father of the prosecutrix has expired and as on date she is residing in the house of the accused and has two children from her first husband including the prosecutrix who is her second child and the eldest was the son. She has four children from the accused and one daughter St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 3 from the accused has expired. She has deposed that the prosecutrix got married four months after this incident but her daughter (prosecutrix) returned because her husband was a smack addict. She has deposed that her daughter / prosecutrix was residing at her house at the time of this incident. According to her, she is a maid working in the houses and she used to go to her work at about 9 AM and come back at about 9 PM. She has testified that in the fourth month of the previous year during the season of Holi, date of incident she does not remember being illiterate, she came back her house at about 9 PM as usual and found the door closed and when she knocked the door, it was closed from inside. According to her, when she pushed the door the kundi / bolt opened from inside and she saw her husband Ram Nath indulging in wrongful sexual act with her daughter / prosecutrix 'L' who at time was aged about less than 15 years. According to her, the moment she saw what Ram Nath was doing, she gave him a chappal blow. She has deposed that she saw her daughter in a naked condition and the accused was also in naked condition and when she asked her daughter as to what had happened with her, she informed her that the accused had forcibly caught hold of her and gagged her mouth with his hand and committed sexual act with her against her wishes. The witness has further deposed that the prosecutrix later on told her that Ram Nath had even on three previous occasions had done galat kam with her but she did not tell her (witness) about the same being scared as he was threatening her that he would kill her (witness). St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 4 She has further deposed that when she confronted the accused with the same, he started beating her on which she immediately called the police by dialing 100 number from a neighbouring shop after which the police came to the spot and the accused was handed over to the police. She has further deposed that the police also took her daughter to the BJRM hospital where her medical examination was got conducted and her statement was recorded by the police. She has identified the accused Ram Nath in the court who according to her was arrested by the police on her pointing out vide memo Ex.PW12/D and personally searched vide memo Ex.PW12/E With due permission of the court, Addl. PP for the State questioned the witness on the whereabouts of the prosecutrix who has not been produced in the court and the witness has deposed that her daughter 'L' left the house about two months ago. She has deposed that the name of the husband of 'L' is Chhotu who was residing at Jamuna Bazar on rented accommodation. She has deposed that she had made a complaint regarding missing of her daughter with Ghaziabad police but they refused to record the same. She has also deposed that she did not make any complaint to any senior officer or to the court regarding her daughter going missing and has denied the suggestion that she is deliberately not disclosing the whereabouts of her daughter fearing that her matrimonial life would be destroyed. She has deposed that she is St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 5 residing at Ghaziabad for about four months and prior to the same she was residing at Bhopura Theka. According to her, the IO had initially met her when she was residing at Harijan Colony, Bhalaswa Dairy and at that time her daughter was still with her. According to the witness, the IO had told her that she will have to come to the court but since her land lord had thrown her out of the house therefore she could not come to the court. She has denied the suggestion that she is not producing her daughter 'L' in the court deliberately in order to save the accused being her husband or that she had concealed her daughter in order to give benefit to the accused who is her husband. She has stated that she can make an attempt to produce her daughter 'L' after searching for her if some time is granted to her (which time was granted but the prosecutrix has not been produced).
In her cross examination by Ld. defence counsel, the witness has deposed that after vacating the house from Harijan Colony at Bhalaswa Dairy, she shifted for about four months to Bhopura after which she shifted to the present address. She does not recollect the name of land lord of the house where she resided at Bhopura. According to witness, her eldest son is aged about 21 years and the prosecutrix 'L' is about one and a half years younger to her son whereas her third son Gautam is aged about 10 years. According to the witness, her daughter 'L' was a student of class third or fourth in a government school but she is not aware the name of that school but states that it is situated in Harijan St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 6 Colony. She has deposed that her daughter was studying in coeducation school but she had no male friends. She has deposed that on date of incident she had returned home by about 9:30 PM and pushed the door in order to get the same opened because she could hear the voices of her daughter screaming. According to the witness, the prosecutrix was saying mami mere ko jabardasti pakar liya hai. She has deposed that when she saw her daughter, the accused had put his hand over her mouth and they were both lying in the floor. According to the witness, her elder son aged 21 years does not resides with them whereas her other children aged 910 years, 4 years and 2 years were sleeping on the two charpais lying in the same room and has voluntarily added that they were very small. She has further deposed that on seeing this she gave chappal blow to Ram Nath and there was sorsaraba in the room on which her children sleeping in the room also woke up. She has deposed that there is no floor on the upper ground and the said house is single story and there are stairs to go on the roof of the house. She has also deposed that she had seen both her daughter/ prosecutrix 'L' and her (witness's) husband Ram Nath in naked condition. She has admitted that she did not see the offending act or that she is deposing falsely. She has further deposed that she does not know any Sukhu Ram. She has denied the suggestion that she did not make any call to the police on 100 number. She has deposed that the PCR officials came to the spot within 30 minutes but cannot tell the exact time being totally illiterate but the incident could be later than St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 7 9:30 PM. She has also deposed that her thumb impression was taken on various documents during the intervening night in the police station. According to the witness, first time when she had gone to the hospital she did not refuse the internal examination of her daughter but she is unable if her daughter had refused the same. She has deposed that she did not tell the doctor that she did not want to internal examination of her daughter and has voluntarily added that she had told the doctor that she wanted the internal examination of her daughter to be conducted. She has deposed that she had gone to the hospital only once but her thumb impression was taken at two places in the hospital. She has also deposed that she did not know what was written on the document on which she put her thumb impression but she had been telling the doctors to conduct the examination of her daughter and has voluntarily added that when they had gone to the hospital at night there was no doctor and they were sent back but in the morning when they went her daughter was examined but she was asked to put her thumb impression on two documents. According to the witness, they had gone to the hospital of their own since the examination of her daughter was not conducted at night as the doctor was not available. She has deposed that she has not been told by anybody what to depose in the court and has denied the suggestion that her daughter was having an affair with somebody in the neighbourhood to which the accused objected and that is why she and her daughter had implicated the accused in this case. According to the witness, she had not St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 8 told the IO that somebody had opened the door from inside and has voluntarily added that the kundi/ bolt of the room is loose and if somebody pushes the same, it opens, this is what she had told the police. She has further deposed that her husband / accused is not employed anywhere and is a dailywager. She has denied the suggestion that she is deposing falsely or that whatever she has deposed today, the same is at the instance of the IO.
PW5 Sukhbiri has deposed that she has six children including three married and three unmarried and her husband has expired about 10 years back. According to her, the accused Ram Nath had been her tenant only for about one month along with his family and his wife Heerawati was also known as Usha. The witness is not aware as to whether she was working as house maid but she was residing along with the prosecutrix 'L' (daughter).
With due permission of the court, Ld. Addl. PP for the State has cross examined this witness as she was not giving full details, wherein the witness has denied the suggestion that she had stated to the police in her statement U/S 161 Cr. P. C. that the accused Ram Nath had resided in her house for about last one year but when her statement Ex.PW5/A (portion A to A) has been read over and explained to the witness, she denied having made so before the IO. Witness has further denied the suggestion that she has deposed falsely regarding period of St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 9 tenancy of accused in her house. Witness has deposed that she is illiterate so she is unable to give the exact period and date when the accused Ram Nath resided in her house as tenant. She has deposed that the accused left her house after about 23 days after this incident and at present no member of his family is residing in her house. In her cross examination by Ld. defence counsel, the witness has deposed that her statement was not recorded in her presence. She has deposed that the police official came to her residence and made inquires from her but nothing happened in her presence in the family of accused.
Medical evidence:
PW1 Dr. Minakshi has deposed on behalf of Dr. Anjali who reported to have left the services of the hospital. The witnesses has deposed that as per record, on 19.04.2010 Dr. Anjali was working as S. R. Gynae in the hospital and examined the prosecutrix 'L' D/o Ram Nath, aged about 15 years, with alleged history of sexual assault by step father, vide MLC Ex.PW1/A under the supervision of Dr. Seema who was working as CMO at that time which bears the signature of Dr. Anjali at point A and bears the signature of Dr. Seema at point B. According to the witness, she is well conversant with the handwriting and signature of Dr. Anjali and Dr. Seema as she has seen them while writing and singing during her official course of duty.
St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 10
During her cross examination by Ld. defence counsel, the witness has admitted that as per the MLC, she is not able to opine about the sexual assault. She has admitted that neither the MLC was prepared in her presence nor the patient was examined in her presence. She has deposed that at the time of examination of the patient, her blood pressure was normal and she was conscious, as per the MLC. According to the witness, since the prosecutrix has refused to be examined internally therefore, she is unable to give any specific opinion and there is no external injury on the body of the prosecutrix.
PW4 Dr. Sanjay Kumar has deposed on behalf of Dr. Ram Chander, the then JR Casualty, Dr. Sunil Kumar, SR Surgery and Dr. Deepak, JR Casualty who all have left the services from the hospital. The witness has deposed that as per MLC No. 8803, on 19.04.2010 Dr. Ram Chander examined the patient Ram Nath (accused) with alleged history of sexual assault, vide MLC which is Ex.PW4/A bearing signature of Dr. Ram Chander at point A and Dr. Sunil Kumar at point B and thereafter the patient was referred to SR Surgery therefore Dr. Sunil Kumar examined the patient and as per the opinion of Dr. Sunil Kumar there was nothing to suggest that Ram Nath was not competent to perform sexual act. The witness has further deposed that, as per MLC No. 8831, Dr. Deepak examined the patient Ram Nath on 20.04.2010 which MLC is Ex.PW4/B bearing the signatures of Dr. Deepak at point St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 11 A and as per this MLC, there was no fresh injury visible externally at that time. The witness has deposed that he is well conversant with the handwriting and signature of Dr. Ram Chander, Dr. Sunil Kumar and Dr. Deepak having seen them while writing and signing during official course of duty. This witness has not been cross examined on behalf of the accused and hence the entire testimony has gone uncontroverted.
PW6 Dr. Shipra Rampal has deposed that on 22.04.2010, she was working as Radiologist at BJRM Hospital and on that day she examined the Xray plate bearing No. 1489 of the prosecutrix 'L' vide MLC No. 8423 and opined the estimated bone age of the prosecutrix 'L' as between 17 to 18 years on that day. She has proved her detailed report which is Ex.PW6/A. This witness has not been cross examined on behalf of the accused and hence the entire testimony has gone uncontroverted.
Police/ official witnesses:
PW2 Ct. Amar Singh has deposed that on 26.05.2010, he was posted at police station Jahangirpuri and on that day he took two sealed parcels and two sample seals with the seal of doctor of BJRM hospital from MHC (M) and got deposited the same in the office of FSL, Rohini. According to him, he handed over the copy of RC to MHC(M) but he does not remember its number. He has deposed that he did not tamper with the exhibits during the period same remained in his St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 12 possession. He has not been cross examined on behalf of the accused and hence the entire testimony has gone uncontroverted.
PW3 ASI Rajwanti has deposed that on 19.04.2010, he was posted at police station Jahangirpuri as Duty Officer from 9 AM to 5 PM and at about 2:40 PM, Ct. Shri Bhagwan brought the rukka sent by SI Susheela Rana on the basis of which he recorded FIR No. 141/2010, copy of which is Ex.PW3/A. He also made endorsement on the rukka which is vide Ex.PW3/B. He thereafter, handed over the copy of FIR and original rukka for Ct. Shri Bhagwan for further handing over the same to the IO. In his cross examination, by Ld. defence counsel, the witness has admitted that in the endorsement Ex.PW3/B, he had mentioned the FIR No. 140/10 and has voluntarily clarified that the FIR number has been mentioned by mistake and inadvertently.
PW7 L/Ct. Urmila has been examined by way of affidavit which is Ex.PW7/A. She has proved the PCR form which is Ex.PW7/A bearing her signatures at point A. She has not been cross examined on behalf of the accused and hence her testimony has gone uncontroverted.
PW8 HC Ram Phal has deposed that on 18.4.2010, he was posted at Police Station Jahangirpuri as duty officer from 5 PM to 1 AM (midnight) and at about 11:45 PM on receipt of information from wireless operator regarding attempt of commit wrong act by step father, he reduced the same into writing vide DD No. 62 B which is Ex.PW8/A. St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 13 In his cross examination by Ld. defence counsel, this witness is unable to tell the name of wireless operator. According to him, he handed over the DD to ASI Mangat Ram. He has denied the suggestion that on 18.4.2011 he was not working as duty officer or that he recorded the said DD of his own.
PW9 ASI Ram Babu has deposed that on 18.4.2010, he was posted at police station Jahangirpuri and was on emergency duty from 8 PM to 8 AM in the police station. According to him, on receipt of DD No. 61, he along with Ct. Shri Bhagwan reached the house of Sant Ram at Harijan Basti, Bhalaswa and came to know about receiving of DD No. 62B. According to the witness, one Hirawati and the prosecutrix met them in the house of Sant Ram who was the land lord of the said house and he made inquiries from Hirawati who informed him that the rape had been committed with her daughter by her husband (i.e father of the prosecutrix). The witness has deposed that on coming to know the fact of rape, he informed the SHO to send a lady police official. He thereafter took the prosecutrix and her mother to BJRM hospital along with Ct. Shri Bhagwan while HC Asha along with one lady sub inspector also arrived there and he narrated the entire incident to them and handed over the prosecutrix to them.
In his cross examination, this witness has deposed that he received the DD No. 61A at about 11:45 PM after which he reached the house of Sant Ram at about 12:05 PM and did not make any efforts to St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 14 call any public person being the case of a girl. He has deposed that the sub inspector came to the hospital along with Ct. Asha at about 12:30 AM but he does not remember the name of lady sub inspector. Witness has denied the suggestion that he did not got to the house of Sant Ram or did not take the prosecutrix to the hospital or that he has deposed falsely.
PW10 HC Asha has deposed that on the intervening night of 1819.04.2010 she was posted in RTI Cell, Sub division, Jahangirpuri and on that day on the receipt of information she reached at police station Jahangirpuri and thereafter she went to BJRM Hospital where ASI Ram Bahu and Ct. Sri Bhagwan met him. According to him, the victim 'L' and her mother Hirawati were also present there. She has deposed that initially the mother of the prosecutrix had refused to get her daughter medically examined. She has further deposed that she brought the prosecutrix to the police station along with her mother and also made a call to one NGO from where one Kusum Behl came in the police station who also made the victim understand. According to the witness, thereafter she, Kusum Behl, IO SI Susheela Rana, prosecutrix and her mother went to BJRM Hospital in the morning i.e. on 19.04.2010 and got the medical examination of the prosecutrix conducted and received the sealed parcel containing exhibits of the prosecutrix duly sealed with the seal of hospital which she further handed over to the IO SI Susheela Rana who took the said pullanda into possession vide seizure memo St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 15 Ex.PW10/A. According to the witness, SI Susheela Rana collected the MLC of the prosecutrix and thereafter they all came back to the police station and her statement was recorded by the IO in the police station.
In her cross examination by Ld. defence counsel, the witness has deposed that first she received the information around 1212:15 AM (midnight) and she went to the police station from where she went to BJRM Hospital alone. She has further deposed that it was the mother of the prosecutrix who refused the internal examination of the prosecutrix. Witness has deposed that the doctor had asked the prosecutrix for her consent to get her internal examination conducted but she refused. She has denied the suggestion that she did not go to the BJRM hospital or she has deposed falsely at the instance of the IO.
PW11 HC Rajesh has deposed that on 19.04.2010 he was working as MHC (M) at Police Station Jahangirpuri and on that day WSI Susheela Rana had deposited one straw box duly sealed with the seal of BJRM Hospital containing eleven exhibits and the sample seal, which he received vide entry NO. 3638 of register No. 19. Witness has deposed that apart from this, the IO has also deposited three sealed parcels containing the exhibits of accused Ram Nath duly sealed with the same seal which he received the aforesaid exhibits also vide the same entry. Thereafter, on 26.05.2010, he sent the exhibits to FSL Rohini, through Ct. Amar Singh vide RC NO. 36/21. On 10.11.2010, he received the FSL result along with four sealed parcels through Ct. Daya Kishan. St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 16 According to the witness, on 16.11.2010, he handed over the aforesaid result and the exhibits to Ct. Samunder for further handing over the same to SI Susheela Rana. The copy of the aforesaid entry is EX PW 11/A running into two pages bearing his signature at point A and the copy of aforesaid RC No. 36/21 is EX PW 11/B. This witness has not been cross examined on behalf of the accused despite opportunity in this regard and hence the entire testimony has gone uncontroverted.
PW12 HC Rajender has deposed that on 19.04.2010 he was posted at police station Jahangirpuri as constable and on that day he was on emergency duty from 8 AM to 8 PM. According to him, he along with SI Susheela Rana went to BJRM Hospital at about 12 noon where Ct. Sri Bhagwan, WHC Asha, victim 'L' and her mother Smt. Heerawati met them. He has deposed that SI Susheela Rana recorded the statement of prosecutrix and her mother Heerawati and SI Susheela Rana prepared the rukka and handed over the same to Ct. Shri Bhagwan who went to the police station with rukka and got the case registered. The witness has further deposed that HC Asha received the exhibits duly sealed with the seal of BJRM Hospital and handed over the same to the IO which she seized. Thereafter, he along with SI Susheela Rana, victim 'L' and her mother reached at Bhalswa village, Gali No. 4, Second Floor at the house of Sant Ram and knocked the door. He has further deposed that the accused Ram Nath opened the door and came out of the room and on St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 17 seeing them he was trying to escape. According to the witness, the victim / prosecutrix pointed out her towards him and stated that he was her step father who had committed the rape (galat kam) upon her on which he (accused) was apprehended and was taken to BJRM Hospital where his medical examination was got conducted and he (witness) also received the exhibits of accused Ram Nath from the doctor duly sealed with the seal of BJRM hospital and he handed over to the IO who seized the same vide memo Ex.PW12/A. According to the witness, Ct. Shri Bhagwan brought the copy of FIR and original rukka in the hospital and handed over the same to the IO SI Susheela Rana and the accused Ram Nath was interrogated and his disclosure statement was recorded vide Ex.PW12/B. The witness has further deposed that the accused also took them to the place of incident and pointed out the spot where he has committed rape upon victim / prosecutrix and SI Susheela Rana prepared the memo of pointing out vide Ex.PW12/C and the accused Ram Nath was arrested in this case vide Ex.PW12/D and personally searched vide memo Ex.PW12/E. The witness has correctly identified the accused Ram Nath in the court.
With due permission of the court, Ld. Addl. PP for the State put some leading questions to the witness, wherein the witness has denied the suggestion that the victim and her mother had accompanied them to the hospital and voluntarily added that they met them (police) in St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 18 the hospital. According to him, he did not tell the IO that victim and her mother had accompanied them to the hospital but rather he had told her in his statement Ex.PW12/PX1 recorded U/S 161 Cr. P.C. that they had met them (police) at the hospital.
In his cross examination by Ld. defence counsel, the witness has deposed he was in the police station when he received the information. He has deposed that he did not receive any instructions in writing to go to the hospital. He has further deposed that he reached the hospital a little before 12 noon and that his statement was recorded in the police station. He does not recollect the place where the prosecutrix and her mother had met them in the hospital. He is unable to tell the name of the doctor who had examined the prosecutrix. He has denied the suggestion that he did not go to the hospital due to which reason he is unable to provide the details. According to the witness, at the hospital, one pullanda and one sample seal was handed over by the doctor to him which he handed over to SI Susheela Rana.
PW14 SI Sushila Rana is the investigating officer of this case. She has deposed that on 18.04.2010, she was posted at RCI Cell, Sub Division Jahangir Puri and on that day on the receipt of DD No. 62 B, she reached at BJRM Hospital Jahangir Puri, where she found ASI Ram Bhau, Ct. Sri Bhagwan and HC Asha. According to her, the victim / prosecutrix 'L' and her mother Heerawati also met her and ASI Ram St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 19 Bahu narrated the facts of the case to her and thereafter she interrogated the victim and her mother Heerawati. According to the witness, she got the medical examination of victim conducted through HC Asha and on the same night Heerawati had refused to get her daughter gynae check up done, therefore, they came back to the police station along with staff and the prosecutrix. According to the witness, at about 9.00 AM, she along with HC Asha, Ct. Rajinder, Ct. Sri Bhagwan took the victim and her mother to BJRM Hospital and Smt. Kusum Behal from Sampurna Sanstha NGO was also called at the hospital. She has deposed that the gynaecological examination of the prosecutrix was got conducted through HC Asha and she also collected the MLC of the prosecutrix from HC Asha. Thereafter, she recorded the statement of prosecutrix which Ex.PW14/A and prepared the rukka Ex.PW14/B and got the FIR registered through Ct. Sri Bhagwan. According to the witness, HC Asha handed over the sealed parcels containing exhibits of the prosecutrix to her which she took into possession vide seizure memo Ex.PW10/A. On the same day, she alongwith Ct. Rajinder, HC Asha, victim and her mother Heerawati reached at the spot i.e. at the house of Sant Ram, Bhalswa village, Jahangir Puri and Ct. Rajinder knocked the door and one person came out of the house who was identified by the victim as her step father Ram Nath after which the accused Ram Nath had tried to escape but he was over powered and after interrogation he was arrested in St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 20 this case at the instance of victim vide memo Ex.PW12/D, personally searched vide memo Ex.PW12/E and his disclosure statement was recorded vide memo Ex.PW12/B. According to the witness, the accused led the police to the spot of incident and pointed out the spot and she prepared the memo to this effect vide Ex.PW12/C and prepared the site plan at the instance of victim at the house of Sant Ram vide Ex.PW14/C. The witness has further deposed that she interrogated Sukhbiri, the wife of Sant Ram, the owner of the house and recorded her statement under Section 161 Cr.P.C. and also interrogated the persons from nearby houses but no person to ready to join the investigation or tell anything. The witness has deposed that she recorded the statement of the prosecutrix and her mother Heerawati under Section 161 Cr.P.C. and sent the victim and her mother Heerawati to the police station through HC Asha whereas she herself alongwith Ct. Sri Bhagwan and Ct. Rajinder took the accused to BJRM Hospital for getting his medical examination conducted where Ct. Rajinder got the medical examination of the accused conducted vide MLC Ex.PW4/A and she also received the sealed parcels duly sealed with the seal of hospital containing exhibits of the accused and took into possession vide seizure memo Ex.PW12/A and thereafter they came back to the police station. According to the witness, she had produced the victim, her mother and the accused Ram Nath before the SHO and the victim was handed over to her mother with the direction to her St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 21 mother that she will produced her daughter i.e. prosecutrix 'L' 'to the concerned Court for getting her statement under Section 164 Cr.P.C. recorded. She also collected the MLC of prosecutrix vide Ex.PW1/A and her subsequent MLC vide Ex.PW14/D. On 20.04.2010, she took out the accused from the lock up and was produced before the concerned Court, Rohini and thereafter ld. M.M. remanded to judicial custody. According to the witness, the victim / prosecutrix and her mother Heerawati could not attend the concerned Court on that day and thereafter she came back to the police station. She obtained the priority letter from DCP Crime for getting the exhibits deposited at FSL Rohini and on the same day she went again to the house of Sant Ram and made inquiries about victim and her mother to which Sukhbiri informed her that both the victim and her mother Heerawati had left her house in the night itself. According to the witness, hereafter she came back to the police station and was having a mobile number of Smt. Heerawti, therefore, she contacted her to which she informed her that she (Heerawati) will produce her daughter in the police station but she did not produce her daughter. The witness has further deposed that Heerawati promised her that she will produce her daughter on 23.04.2010 and 18.05.2010 but she did not produce her daughter and even on the aforesaid dates, she made efforts again to trace both the victim and her mother thereafter but she could not trace them. According to the witness, St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 22 she got deposited the exhibits of both the victim and accused with the MHC(M) through Ct. Amar Singh and also collected the bony age Xray report, containing the opinion regarding the age of the prosecutrix from BJRM Hospital which is Ex.PW 6/A. She has deposed that despite her best efforts the prosecutrix could not be traced in this case. The witness has also collected the FSL report and filed the same in the Court, which is Ex.PW14/E and Ex.PW14/F (not disputed by the accused).
In her cross examination by the Ld. defence counsel, the witness has deposed that she received the information at about 12.30 a.m. and ASI Ram Bahu , Ct. Sri Bhagwan and HC Asha met her in the Casualty. She has further deposed that Ct. Sri Bhagwan took the rukka at about 2.30 p.m. who brought the FIR at about 3.30 p.m. According to the witness, she made a call at 9868104665 to NGO Smt. Kusum Behal from NGO had come only for counseling but she did not cite her as a witness in this case. She has deposed that it was first floor of the house when Ct. Rajinder knocked the door. She has denied the suggestion that the house of Sant Ram is single story. According to the witness, she knew Sukhu Ram as he is the owner of STD Booth in the area and she made enquiries from him also to which he has stated that he is a running a PCO and a large number of people used to come daily and he expressed ignorance about the call made by Smt. Heerawati. According to the witness, she interrogated Sukh Ram on 20.04.2010 but she is unable to St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 23 tell the timings of STD Booth of Sukh Ram. The witness has denied the suggestion that she did not investigated the case properly. Statement of the accused/ defence evidence:
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 him which he has denied. According to him, he is innocent and has been falsely implicated in the present case and the prosecutrix was having an affair with a boy and when he came to know about it, he warned her not to get involved with that boy on which the prosecutrix threatened to implicate him in a false case. He has stated that Heerawati the natural mother of Laxmi, is his second wife and has falsely deposed against him.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Counsel appearing on behalf of the accused. I have also gone through the written synopsis/ memorandum of arguments and the evidence on record. My findings are as under: Identity of the accused:
The identity of the accused is not disputed as he is the step father of the prosecutrix 'L' and has been duly identified in the court by St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 24 her mother Smt. Heerawati who has been examined as PW13. Even the accused does not dispute the same.
Age of the prosecutrix:
There is no dispute with regard to the age of the prosecutrix and she was below 15 years at the time when the incident took place. Even other wise the accused does not dispute the same. Further, keeping in view the relationship between the accused and the prosecutrix, the accused being the step father of the prosecutrix, the question consent of the prosecutrix to any kind of physical relationship with the accused does not arise and therefore, the question of age of the prosecutrix becomes irrelevant.
Allegations against the accused:
The case of the prosecution is that during the period February to April 2010 the accused Ram Nath committed rape upon her step daughter the prosecutrix 'L' on two to three occasions and thereafter threatened her not to inform anybody about this incident to any person or else she would be killed as a result of which she did not disclose about this incident to anyone. It is further alleged that on 18.4.2010 the mother of the prosecutrix namely Smt. Heerawati (PW13) who is working as a maid servant came back home at about 9:00 PM and found the door closed from inside. She knocked the door and when she pushed the door St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 25 slightly the kundi/ bolt opened from inside and she saw that accused Ram Nath was indulging in wrongful sexual act with her daughter 'L' who at that time was aged less than 15 years. She saw both the accused and her daughter in naked condition and when she asked her daughter as to what had happened with her, she informed that the accused had forcibly caught hold of her and gagged her mouth with his hand and committed sexual act with her against her wishes on which Heerawati gave him a chappal blow. Later on further questioning the prosecutrix further disclosed that on three previous occasions the accused had done galat kaam with her but she (prosecutrix) did not disclose to her about the same as she was scared because the accused was threatening that he would kill her. When Heerawati confronted the accused, he (accused) started beating her (Heerawati) on which she immediately called the police by dialing 100 number from a neighbouring shop after which the police came to the spot and accused was handed over to the police. The accused has denied these allegations and has rather alleged that his step daughter was having an affair with a neighbour and when he objected to the same, she threatened to implicate him in a false case.
I have considered the rival contentions and also the material on record. Firstly at the very outset I may observe that the prosecutrix 'L' has not appeared in the court to depose and at no point of time her statement was got recorded by the Investigating Officer before the Ld. St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 26 Metropolitan Magistrate under Section 164 Cr.P.C. and therefore, the only version available on record is her statement recorded by the Investigating Officer.
Secondly I may also observe that Heerawati (PW13) the mother of the prosecutrix is having four children from the accused after she married with him. The prosecutrix 'L' was her daughter from the first marriage and has also a son (who is residing separately). Thirdly during the course of proceedings initially both Heerawati and the prosecutrix were not produced in the court and it was reported by the Investigating Officer that they were no longer available or residing on the given address and it was only after an information was given to the senior officers of rank of Deputy Commissioner of Police that ultimately Heerawati was traced and produced in the court who has now been examined as PW13 and only evidence on record is the oral testimony of Heerawati (PW13).
Lastly I may observe that oral testimony of Heerawati (PW13) does not find any corroboration from the medical evidence i.e. MLC of the prosecutrix and the forensic evidence which does not confirm the allegations of rape.
Coming now to the testimony of Heerawati (PW13). She is very specific in her allegations and has corroborated what she had earlier told the Investigating Officer. However, I may observe that even as on St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 27 date Heerawati is residing with the family of the accused. According to Heerawati the prosecutrix 'L' was married to one Chotu but since Chotu turned out to be a drug addict, the prosecutrix returned back but she is now no longer traceable and in respect of the same a missing report had been lodged by her in a Police Station at Ghaziabad district. It is evident that despite the allegations of incest, the prosecutrix and her mother Heerawati continued to reside with the family of the accused even after the incident and as per the testimony of Heerawati she is still residing with the family of the accused. Therefore, under these circumstances, the possibility of the prosecutrix being withheld from the court deliberately by the family of the accused cannot be ruled out.
However, coming now to the statement of the mother of the prosecutrix. The relevant extract of her statement is as under:
"....... When I pushed the door the kundi / bolt opened from inside and I saw my husband Ram Nath indulging in wrongful sexual act with my daughter Laxmi who at time was aged about less than 15 years. The moment I saw what Ram Nath was doing, I gave him a chappal blow. I saw my daughter in naked condition and the accused was also in naked condition. When I asked my daughter as to what had happened with her, she informed me that the accused had forcibly caught St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 28 hold of her and gagged her mouth with his hand and committed sexual act with her against her wishes. She later on told me that Ram Nath had even on three previous occasions had done galat kam with her but she did not tell me about the same being scared as he was threatening her that he would kill me. When I confronted the accused with the same, he started beating me on which I immediately called the police by dialing 100 number from a neighbouring shop"....... It is evident from the aforesaid that Heerawati has described the entire incident and even in her crossexamination has stood her version stating that at the time of the incident when she come back at about 9:30 PM she had pushed the door and could hear the voices of her daughter who was screaming "mummi mere ko jabardasti pakar liya hai". According to her, when she saw her daughter the accused had put his hand over her mouth and both were lying on the floor. She has also deposed that her her other children aged 910 years, 4 years and 2 years were sleeping on the two charpais lying in the same room but they were very small and initially did not get up when the prosecutrix was screaming but after she gave a chappal blow to the accused and there was a shorsharaba in the room, her other children also woke up. In her St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 29 crossexamination, Heerawati has also reaffirmed that she saw her husband i.e. the accused and the prosecutrix 'L' in naked condition and has denied the suggestion that she did not see the offending act.
I may observe that in so far as the oral testimony of Heerawati (PW13) to the extent of incident is concerned, the same finds limited corroboration from the MLC of the prosecutrix which is Ex.PW1/A and also from the second MLC Ex.PW14/D wherein the prosecutrix had told the doctor that she had been sexually assaulted by her step father about one to one and a half month back and on the date of the incident he was again trying to molest her by touching her breast and private parts on which she informed her mother who had called the police. Initially the prosecutrix being minor, her mother had refused for her internal examination but it is evident that after the intervention of the NGO she agreed to the same and after a few hours the second medical examination of the prosecutrix was conducted when the vaginal secretion were taken. The FSL report Ex.PW14/E and Ex.PW14/F which are not disputed by the accused do not confirm the allegations of rape and hence, under these circumstances, I hereby hold that on the date of incident the act of rape was not complete. In so far as the rape of three prior occasions are concerned, it is only the prosecutrix who could have proved the same. She has not appeared before the court to depose in this regard and the said aspect has not been established St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 30 beyond doubt and what has been stated to Heerawati was on the basis of what was told to her by the prosecutrix. The prosecutrix having failed to appear in the court, the allegations of rape on three prior occasions do not stands established. But in so far as the incident witnessed by Heerawati is concerned, I may observe that Heerawati is continuous to be in a matrimonial relationship with the accused having four children from him and is residing with the family of the accused. There is therefore no reason for her to put her marriage with the accused to stake and to have deposed falsely in respect of the alleged incident. I find her testimony truthful and trustworthy. In view of the accused is certainly guilty of outraging the modesty of his daughter (prosecutrix 'L'). Medical evidence:
It is evident from the record that when the prosecutrix was initially taken to the hospital by Lady HC Asha, she was not subjected to any internal examination since her mother had refused to the same but thereafter it is evident from the testimony of the Investigating Officer and also from the testimony of PW10 Lady HC Asha that the NGO Sampurna Sanstha was called to suitably counselled the prosecutrix and the mother on which the mother of the prosecutrix agreed to get the internal examination of the prosecutrix conducted and immediately on the next day morning i.e. on 19.4.2010 at 10:30 AM she was again examined. The first MLC hs been duly proved by Dr. Meenakshi which also shows that the prosecutrix was brought to the hospital with the history of sexual assault by step father about one to St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 31 one and a half month back and on the date of the incident he had against sexually assaulted her. The second MLC has not been disputed since the findings are virtually the same except that the vaginal secretion were taken and exhibits were prepared after the internal examination of the prosecutrix.
It is also evident from the MLC of the prosecutrix that her hymen was torn which also corroborates the allegations regarding previous sexual assault upon her. During the time of the first MLC (Ex.PW1/A) the prosecutrix had told the doctor the history as under:
" ......sexual assault by step father 1½ month back. Try to touch her breast and private parts on today also......"
On the next day morning, when the prosecutrix was again produced before the doctor for the second time in her MLC (Ex.PW14/D) she repeated the same history as under:
".......Alleged history of sexual assault by step father on 2/3 occasions in the past. Last episode of sexual assault about 1½ month back. Last night attempted to molest the victim again but as per victim no history of sexual assault last night. Victim told mother and then called police to report the case...."
Dr. Sanjay Kumar (PW4) has also proved the MLC of the accused Ram Nath which is Ex.PW4/A showing that there was nothing to St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 32 suggest that the accused was not capable of performing sexual act. FSL Reports:
The FSL reports which are Ex.PW14/E and Ex.PW14/F have not been disputed by the accused since there is nothing in the FSL which assists the prosecution in any manner. It is evident that the samples sent to the FSL were putrefied and no opinion could be given. Further, no semen stains were found on the vaginal secretion and swabs. Therefore, I hold that the FSL report does not assist the prosecution. Threats extended by the accused to the prosecutrix:
The case of the prosecution is that the accused who was the step father of the prosecutrix had threatened her for dire consequences and of killing her in case she disclose the fact regarding rape on previous occasions to anybody and it was on account of the same that the prosecutrix had kept quite. In this regard, I may observe that the prosecutrix has not been produced in the court. The mother of the prosecutrix has four children from the accused and is still residing with the family of the accused. The prosecutrix is the daughter of Heerawati from the first marriage and was residing with her at the time of the incident. She comes from an extremely poor strata of the society where Heerawati is making her ends need by working as a housemaid. The possibility of the prosecutrix being deliberately withheld from appearing St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 33 in the court and of sending her to unknown place so that she would not be in a position to depose against the accused cannot be ruled out.
I may observe that soon after the matter had been reported to the police the prosecutrix and her mother were not traceable. Thereafter even during the trial when they were called as witnesses, initially both the material witnesses i.e. prosecutrix and her mother were reported to have shifted from the given address and were not available and it was only with the intervention of the senior police officers of the rank of Deputy Commissioner of Police that ultimately the mother of the prosecutrix namely Heerawati was produced by the Investigating Officer on 16.3.2011. I may observe that till date the prosecutrix has not been produced in the court on the ground that she was missing and according to Heerawati a missing report in this regard has been lodged at Ghaziabad, Uttar Pradesh. It is borne out from the record that even after the incident the prosecutrix and her mother continued to reside with the family of the accused and therefore the possibility of the prosecutrix being deliberately withheld on account of the pressure of the family of the accused cannot be ruled out.
Further, it stands established from the testimony of Heerawati (PW13) that it was on account of the threats given by the accused that she (prosecutrix) did not disclose this fact to her mother that she had been previously raped by the accused, her step father on two occasions. Had this not been so Heerawati would have certainly come to St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 34 know about the incident much earlier. This aspect also stands corroboration from the MLC of the prosecutrix Ex.PW1/A and Ex.PW14/D which show that the prosecutrix while giving the history had even disclosed to the doctor that she was last raped by the accused her step father about 1½ month prior to her medical examination. This coupled with the fact that the prosecutrix is actually not traceable after the registration of the case against the accused, I hereby hold that the allegations regarding threats stand proved and established. Role of the Investigating Officer:
In the present case I am compelled to bring on record the fact that the role of the Investigating Officer and the manner in which the investigation and trial of the case has been handled. Firstly it is evident that as per the standing orders of Delhi Police the investigations in any case under Section 376 Indian Penal Code are required to be handled preferably by a lady officer not below the rank of Sub Inspector, who is sensitive to the issue. No doubt, the investigations in the present case have been conducted by a lady officer of the rank of Sub Inspector but sensitivity expected and required was totally lacking.
Secondly it was the obligation of the Investigating Officer to have ensured the safety and protection for the prosecutrix a minor, particularly when the allegations were of incest where the victim was being sexually assaulted and molested by her own step father. It was the St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 35 obligation of the Investigating Officer that the prosecutrix should have been handed over to the care and custody of some government agency (Children Home) or some NGO to ensure that she is kept away from the overawing and threatening atmosphere of the family of the accused which has not been done. She was rather handed over to her own natural mother who has already four children from the accused and was staying with the family of the accused even after the incident.
Thirdly given the circumstances of the present case, the statement of the prosecutrix under Section 164 Code of Criminal Procedure should have been promptly got recorded at the earliest which has not been done. Simply showing that an application had been filed for getting recorded the same and directions had been given to the mother of the prosecutrix and produce her in the court for getting her statement recorded would not be sufficient. It was the duty of the Investigating Officer to have ensured that till such time the statement of the prosecutrix was recorded, she was kept away from all kind of tutoring or threats or family pressures as the case might have been, which was again not done.
Fourthly the Investigating Officer having come to know during the investigations itself that the prosecutrix and her mother Heerawati had gone missing, should have taken immediate steps to trace them out which was not done. Rather, the charge sheet was filed without even making an inquiry into the same.
St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 36
Fifthly even during the trial the behaviour and conduct of the Investigating Officer as reflected on record, has been most casual and unprofessional. The summons issued to the prosecutrix and her mother were taken by her in a routine manner and the report with regard to the above witnesses i.e. the prosecutrix 'L' and her mother Heerawati being not available at the spot was given to the court and it was later on that when senior officers of the rank of Deputy Commissioner of Police were called to the court and told about the circumstances that ultimately it is the same Investigating Officer who was able to produce Heerawati the mother of the prosecutrix in the court after tracing her. No explanation is forthcoming as to what has happened to the prosecutrix. Simply to say that the prosecutrix was missing or had run away with some person would not be sufficient. The possibility of this being a ploy to keep the prosecutrix away from the Court cannot be ruled out and it is under these circumstances that the role of the Investigating Officer becomes crucial.
Lastly it is evident from the record that Heerawati (PW13) was examined on 16.3.2011 but the Investigating Officer SI Sushila Rana despite being available did not submit herself for examination and evidence of the prosecution was closed by the Court. It was the Ld. Addl. Public Prosecutor who by way of an application under Section 311 Code of Criminal Procedure highlighted this aspect and sought the permission to examine the Investigating Officer but I may observe that St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 37 before she could be actually examined on 6.6.2011 the Investigating Officer SI Sushila Rana again appeared before the court through a private counsel and questioned the right of the Addl. Public Prosecutor to seek her examination in the court as a witness saying that she had not authorized the Addl. PP to move this application. Strange is the conduct of the Investigating Officer who despite her presence in the court does not submit herself for examination and thereafter when the prosecution seeks to call her to the Court for examining her by moving an application, she questions the right of the Prosecutor to call her without seeking permission from her which she has done by engaging a private counsel and as observed by this court vide order dated 6.6.2011 was in contrary to the stand of the State.
This court has also come across other cases pending before it where the same Investigating Officer has committed serious lapses in investigations which are being time to time highlighted before her senior officers. Had this been a solitary instance the lapse on the part of this Investigating Officer, it could have been ignored but what has compelled this court to bring her behaviour and conduct on record is the repeated unprofessional and non sensitive approach of this Investigating Officer both during the investigations and during the trial of the case in clear violation of the various directions being issued by the Hon'ble High Court and Supreme Court from time to time with regard to the manner in which the investigations in cases of rape and sexual assault particularly in St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 38 cases where the victim is a minor are required to be handled. FINAL FINDINGS:
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 prerequisites 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 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;
3. The circumstances should be of conclusive nature and tendency;
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 St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 39 accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the present case, the identity of the accused Ram Nath stands established. He is the step father of the prosecutrix 'L' and the second husband of Heerawati the mother of the prosecutrix. It also stands established that on 18.4.2010 the mother of the prosecutrix namely Smt. Heerawati who is working as a maid servant came back home at about 9:00 PM and found the door closed from inside. It has also been established that Smt. Heerawati knocked the door and when she pushed the door slightly the kundi/ bolt opened from inside and she saw that accused Ram Nath was indulging in wrongful sexual act with her daughter 'L' and both the accused and her daughter were in naked condition. The prosecutrix had disclosed to Heerawati that on three previous occasions the accused had done the galat kaam with her but she (prosecutrix) did not disclose to her about the same as she was scared because the accused was threatening that he would kill her. It also stands established that when Heerawati confronted the accused, he started beating Heerawti on which she immediately called the police by dialing 100 number from a neighbouring shop after which police came to the spot and accused was handed over to the police. The prosecutrix has not been produced in the court to depose against the St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 40 accused and hence, the aspect of rape having been committed upon the prosecutrix does not stand proved. However, the aspect of molestation and threats being executed to the prosecutrix stands established.
There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
In view of the above, I hereby hold the accused Ram Nath guilty of the offence under Section 354 (not under Section 376 Indian Penal Code) and 506 Indian Penal Code for which he is accordingly convicted.
Case be listed for arguments on sentence on 18.8.2011.
Announced in the open court (Dr. KAMINI LAU)
Dated: 10.8.2011 ASJII(NW)/ ROHINI
St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 41
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSION JUDGE II (NW): ROHINI COURTS: DELHI Session Case No. 1229/10 Unique Case ID No.: 02404R0196072010 State Vs. Ram Nath S/o Shiv Charan R/o Gali No.4, Sant Ram Ka Makan, Harijan Colony, Bhalswa Dairy, Delhi (Convicted) FIR No.: 141/10 Police Station: Jahangir Puri Under Section: 376/506 Indian Penal Code Date of Conviction: 10.8.2011 Arguments heard on: 18.8.2011 Date of Sentence: 24.8.2011 APPEARANCE:
Present: Sh. Taufique Ahmed, Addl. Public Prosecutor for the State.
Convict Ram Nath in judicial custody with Amicus Curiae Sh. Shivender Vishwas, Advocate.
St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 42 ORDER ON SENTENCE:
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 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 threequarters 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).
The accused before this court namely Ram Nath is the step father of the prosecutrix 'L' and the second husband of Heerawati the mother of the prosecutrix. As per the allegations on 18.4.2010 the mother of the prosecutrix namely Smt. Heerawati who is working as a maid servant came back home at about 9:00 PM and found the door closed from inside. Smt. Heerawati knocked the door and when she pushed the door slightly the kundi/ bolt opened from inside and she saw St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 43 that accused Ram Nath was indulging in wrongful sexual act with her daughter 'L' and both the accused and her daughter were in naked condition. The prosecutrix had disclosed to Heerawati that on three previous occasions the accused had done the galat kaam with her but she (prosecutrix) did not disclose to her about the same as she was scared because the accused was threatening that he would kill her. When Heerawati confronted the accused, he started beating Heerawti on which she immediately called the police by dialing 100 number from a neighbouring shop after which police came to the spot and accused was handed over to the police.
Though the case was exposed and FIR was registered but after the registration of FIR the victim has neither been produced before the Ld. Metropolitan Magistrate for recording her statement under Section 164 Code of Criminal Procedure nor the prosecution has been able to secure her presence in the court on the ground that she has now gone missing and none appears to be concerned. Ironically after this incident the minor prosecutrix was hurriedly married by her mother to one Chotu. However, as luck would have it Chotu turned out to be a smack addict and the prosecutrix was compelled to return home, but thereafter has now gone missing without trace. In fact both the mother Heerawati and prosecutrix were missing and only after this court took a stern view and got the senior police officers involved, the mother Heerawati was traced but not the prosecutrix which I am sure could have St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 44 been done had the Investigating Officer been more sensitive and vigilant on the issue.
On account of the non production of the prosecutrix in the court the aspect of rape having been committed upon the prosecutrix does not stand proved. The aspects of molestation and threats executed to the prosecutrix have however, been established by the prosecution and therefore, on the basis of the testimony of Heerawati the mother of the prosecutrix, this court has held the accused Ram Nath guilty of the offence under Sections 354 (not under Section 376 IPC) and Section 506 Indian Penal Code.
I have heard arguments on the point of sentence. The convict Ram Nath is aged about 37 years having a family comprising of aged father, mother, two brothers, two sisters, wife, one daughter and two sons. He is a first time offender and is not involved in any other case. The convict is in judicial custody since 19.4.2010. Ld. Counsel appearing on behalf of the convict has vehemently argued that the convict Ram Nath is a first time offender and has no history of any other criminal case. He submits that the convict has already suffered judicial incarceration for about 16 months and hence, he requests that a lenient view be taken against him.
Ld. Addl. Public Prosecutor has on the other hand prayed that a strict punishment be awarded to the convict keeping in view the St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 45 fact that he is the step father of the prosecutrix 'L'. He submits that the convict does not deserve any leniency.
I have considered the submissions made before me. The convict Ram Nath is the step father of the prosecutrix 'L'. During the trial the prosecutrix has gone missing and is not traceable. This court has observed that even after the incident the mother of the prosecutrix was residing with the family of the accused and hence, the possibility of the production of the prosecutrix being withheld cannot be ruled out. Hence, considering the relationship since the convict is the step father of the victim and the subsequent development, I hold that that the convict does not deserve any leniency and I hereby award the following sentences to the convict Ram Nath:
1. The convict is sentenced to Rigorous Imprisonment for a period of Two Years and fine to the tune of Rs.2,000/ for the offence under Section 354 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of two weeks.
2. He is also sentenced to Rigorous Imprisonment for a period of One Year and fine to the tune of Rs.1,000/ for the offence under Section 506 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one week.
St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 46
Both the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules.
The convict has been informed that he has a right to prefer an appeal 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, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Before I end, it has become necessary to observe that the prosecution of the convict under Section 376 Indian Penal Code has failed solely on account of the indifferent and insensitive approach of the Investigating Officer SI Sushila Rana which conduct has already been specified in the judgment. I may also observe that the Hon'ble Delhi High Court has in the case of Virender Vs. The State of NCT of Delhi in Crl. A. No. 121/2008 decided on 29.9.2009 provided certain guidelines for the Investigating Officers handling cases of Child Victim and I may specifically observe that all these guidelines would equally apply in the cases of where allegations are of incest rape keeping in view the close association of the victim with her own family members and therefore, the officers investigating such cases require due sensitization on this issue. I hereby direct that a copy of the judgment and this order St. Vs. Ram Nath, FIR No. 141/10, PS Jahangir Puri Page No. 47 on sentence be placed before the Commissioner of Police for information and appropriate action.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 24.8.2011 ASJII(NW)/ ROHINI
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