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Delhi District Court

State vs . Shree Bhagwan on 31 October, 2012

   IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
      JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI


Sessions Case No. 39/2012
Unique Case ID: 02404R0135672012


State                       Vs.           Shree Bhagwan
                                          S/o ShreeNath
                                          R/o Village & PS Muker
                                          Distt.: Chapra (Bihar)

FIR No.                     :             47/2012
Police Station              :             Bawana
Under Section               :             363/376 (2) (f) Indian Penal Code


Date of committal to Sessions Court  : 22.05.2012

Date on which orders were reserved  : 04.10.2012

Date on which judgment pronounced : 17.10.2012


JUDGMENT

Brief Facts:

(1) As per the allegations, on 7.2.2012 at 4:00 PM at in front of the Jhuggi No. 110, F Block, JJ Colony, Bawana, the accused Shree Bhagwan kidnapped the prosecutrix 'C' (name of the girl is withheld being the case under Section 376 (2) (f) IPC) minor aged about 5 years from the lawful guardianship of her parents and with intent that she may be forced or seduced to illicit intercourse and State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 1 of 78 thereafter between 4:00 PM to 5:00 PM near Pattri, Nehar (Badi Nehar) Dariyapur Kalan, Bawana, he committed rape upon her.

Case of prosecution in brief:

(2) The case of the prosecution in brief is that on 7.2.2012 on receipt of DD No. 62 B, ASI Raj Kumar along with Ct. Arjun Lal reached at MV Hospital, Pooth Khurd and collected the MLC of the prosecutrix 'C' with alleged history of sexual assault brought by PCR and the patient was referred to BSA Hospital. The father of the prosecutrix namely Virender was also present in the MV Hospital.

ASI Raj Kumar recorded the statement of complainant Virender who told the police that on 7.2.2012 at about 5:00 PM one Krishan Kumar who was previously known to him came to his Jhuggi and informed him that somebody had done galat kaam with is daughter 'C' and the said person had been apprehended at the spot. The complainant further told the police that on coming to know about the incident, he along with his wife Sangeeta immediately rushed towards the Bawana nehar and reached at the tea stall situated at the pull where PCR Van and the police officials had caught hold of Shree Bhagwan who was his neighbour. He also saw his daughter 'C' aged 5 years sitting there who was crying and her underwear was blood stained and when he removed her underwear he found that she was bleeding from her private parts and when he asked his daughter what had happened, she informed him that Shree Bhagwan had taken her to the State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 2 of 78 nehar on the pretext of eating the ber where he pressed her mouth and committed galat kaam with her and thereafter threw her into water. The complainant further told the police that the PCR officials took him, his wife Sangeeta, his daughter 'C' and the accused Shree Bhagwan to Maharshi Balmiki hospital where his daughter was medically examined and the accused was handed over to the police. The complainant informed the police that his wife also told him that on that day at about 4:00 PM Shree Bhagwan had taken his daughter 'C' towards the nehar and committed galat kaam with her. (3) On the basis of the statement of Virender, rukka was prepared, FIR was registered and the accused Shree Bhagwan was taken into custody. After completing the investigations, the charge sheet was filed in the court.

CHARGE:

(4) Charge under Section 363/366/376 (2) (f) Indian Penal Code were settled against the accused Shree Bhagwan to which he pleaded not guilty and claim trial.

EVIDENCE:

(5) In order to discharge the onus upon it, the prosecution has examined as many as twenty five witnesses:

State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 3 of 78

Public Witnesses:

(6) PW14 Krishan Kumar has deposed that he was residing at the given address for the last 13 years and is employed as Operator/ Chowkidaar in Delhi Jal Board. According to him, he knew Sonu and also the prosecutrix 'C' who was aged about 5 years who was residing in J.J. Colony, Bawana with her parents and he also knew the place the jhuggi where she was residing as he was known to her parents. The witness has deposed that on 07.02.2012 at about 5 p.m. he was present at the T shop, near Hanuman Mandir at Bawana Mor. According to the witness he saw that one Sonu was bringing accused Shree Bhagwan and the child 'C' by holding their hands and there was blood on the clothes of 'C' and Sonu told him that accused Shree Bhagwan committed rape with the child 'C'. The witness has deposed that he immediately went to the house of the child 'C' and called her parents. He has identified the accused Shree Bhagwan court.

(7) In his cross­examination by Ld. Amicus Curiae for the accused, the witness he identified the child because he had seen her previously and he knew her parents and used to frequent their house.

According to the witness, the victim 'C' was wearing Jumpher and underwear (kachi) and he had seen Sonu only who brought the victim girl and the accused. The witness has deposed that Sonu with victim girl and accused met him at Tea shop and the police was already State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 4 of 78 informed and police reached at the spot after 10­15 minutes and three police personnels came at the spot in the PCR van. The witness has deposed that the upper part of pant of Sonu was also wet and his shirt was also wet as the victim girl was on his lap and Sonu brought the accused Shree Bhagwan by holding his hand at the tea shop. According to the witness, when he reached at the Tea shop already 15­20 persons were standing there. He has deposed that Sonu had already brought the victim girl and accused Shree Bhagwan at the Tea shop before his arrival there and Sonu told all the incident to him. According to the witness, he called the parents of the child 'C' on the asking of the PCR official because he knew the child and her parents. The witness has admitted that the Tea shop is just near the canal and that Sonu used to work as a Farmer and used to sell seasonal fruits and vegetables and that Sonu used to sell seasonal fruits and vegetables near the tea shop. The witness has denied that he has deposed falsely at the instance of Sonu and police. (8) PW15 Virender has deposed that he has been residing at the given address for the last seven years and he is a vegetable seller. According to the witness, it was the month of 'Magh', this year and the date was 7th, Krishan, who is resident of same area and is in employee of Delhi Jal Board who remains at the pump house, came and called him and told him that his daughter 'C' aged about 5 years, was there at the tea stall and was totally soaked in water. The State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 5 of 78 witness has deposed that when he went to the tea stall, he found his daughter totally wet, soaked in water with her hair were partly burnt and he found bruise marks on her neck as if somebody had tried to strangulate her. The witness has deposed that he also found swelling on her forehead and when he lifted his daughter, he found that she was bleeding from her private parts. According to the witness he asked his daughter who was crying at that time as to what had happened and she told him that 'Shree Bhagwan mujhe bula kar le gaya and mera khoon nikal diya, baalo me aag laga diya aur nehar mein duba diya'. The witness has deposed that before he had reached the spot, somebody had already called the police who had also come there. He has deposed that thereafter his daughter was taken to Pooth Hospital by the PCR and he and his wife Sangeeta went with the PCR to the hospital where his daughter was examined and medically treated. The witness has correctly identified the accused Shree Bhagwan in the court. The witness has deposed that from M.V. Hospital, Pooth, they were referred to Ambedkar Hospital and the police shifted his daughter to Ambedkar Hospital where they also accompanied her. According to the witness the local police had already come along with the Lady Police Officer who shifted his daughter to BSA Hospital where she treated. He has deposed that th police had recorded his statement at at the BSA hospital vide Ex.PW11/A. The witness has also deposed that his daughter had State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 6 of 78 also come to the Rohini Courts after about 3 months of the incident where her statement was recorded by the Ld.M.M. (9) Ld. Addl. PP for the State with permission of the court put leading question to the witness on the aspect of the date of the incident, and the witness has admitted that the date of incident is 7.2.2012 and that he could not tell the date in his examination­in­ chief being totally illiterate and does not know about the months as per the English Calender.

(10) In his cross­examination by Ld. Amicus Curiae for the accused, the witness has deposed that for the first time, he was told that Shree Bhagwan had done something wrong with his daughter was by ShreeKishan, Chowkidar and has voluntarily added that it was ShreeKishan who told him that 'tere bache ke sath galat kaam ho chuka hain - chalo'. The witness has deposed that Kishan had come to his house between 4:30­5:00 pm and when Kishan had come to his house, there was another young boy with him whom he can identify but he cannot recollect his name. The witness has admitted that he did not see the incident and only saw the blood on the private parts of his daughter. He has denied that he had taken the name of Shree Bhagwan only on the asking of Kishan and has voluntarily added that when he asked his daughter what had happened, she had also given the name of Shree Bhagwan. According to the witness, Shree Bhagwan was present at the spot as public persons had caught State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 7 of 78 him. The witness has deposed that he reached the spot within five minutes of receiving the information from Kishan. The witness has further deposed that the distance between tea stall and his Jhuggi is as far as the distance of this court from the main road, where the metro line is situated. (It has been observed by the court that it must be around little less than ½ km). The witness has further deposed that when he reached the spot, he met large number of public persons who had caught hold of Shree Bhagwan and also 3­4 police persons but he cannot tell the name of the public persons present there and has voluntarily explained that the 'chai wala' was there. The witness has deposed that he is selling vegetable from his Jhuggi itself and remains at home and used to put a rehri on which he takes a round of the area and then he come back to his Jhuggi from where he sell vegetables. According to him, he used to leave his house at around 5:00­5:30 pm and return by 9:00­9:30 pm in the evening. He has denied that the accused Shree Bhagwan has been falsely implicated by him on account of previous disputes.

(11) PW16 Sonu has deposed that he used to work as a Farmer in the fields of Daryapur and he used to sell Guavas near the Hanuman Mandir, Badi Nehar of Bawana, where he had taken the Guava garden of Ramphool on contract. According to him on 07.02.2012 at about 5 p.m. he was coming to the place near Hanuman Mandir where he used to sell Guavas from the Guavas State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 8 of 78 Garden Area and he saw one girl aged about five years in the canal and one boy was standing near the girl. This witness thereafter pointed out towards the accused Shree Bhagwan and identified him as the same person who was standing near the victim girl. Witness has further deposed that the girl was weeping and he brought the girl from the canal and found swelling on her face and her clothes were blood stained. According to him accused Shree Bhagwan tried to run away from there but he caught him and thereafter, brought accused Shree Bhagwan and the victim girl near the Tea Stall, near Hanuman Mandir where and Krishan met him and he informed him about the entire facts and after which he made a call to police at 100 number. Witness has further deposed that Shree Krishan called the parents of the victim girl and the police also reached at the spot and he handed over accused Shree Bhagwan and victim girl to the police. According to him accused Shree Bhagwan was present at the spot near the victim girl and underwear of the victim girl was also blood stained. On Court question, witness has explained that when he saw the child it was lying at the banks of the Nehar. The water at the spot was about 15 feet deep.

(12) Leading questions were put by the Ld. APP to the witness with the permission of the court on which the witness has admitted that police made enquiries from him and recorded his statement. Witness has admitted that he had asked Shree Bhagwan to State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 9 of 78 tell the true facts then he told him that the victim girl was his neighbour and he(Shree Bhagwan) had committed rape with her. (13) In his cross examination by Ld. Defence counsel, witness has deposed that he was residing at a distance of about one km. from the tea shop near Hanuman Mandir and his residence was situated at a distance of about 5 Killa (one killa = 5 bighas) from the place where he found the victim girl with the accused Shree Bhagwan. According to him he used to sell seasonal fruits and vegetables in baskets on the establishments of brick on the ground and he used to sell fruits and vegetables from 8 a.m. till the sunset. Witness has further deposed that he found the victim girl at the corner of the canal/Nehar and her head was also in the water and the child was clutching to the weeds flowing in the water. According to him the child was wearing frock and underwear and he carried the child on his shoulder and caught the accused from the other hand. On court question, witness has explained that the accused was drunk at that time and smelling of alcohol. Witness has further deposed that the accused was standing on the banks of the Nehar at the time when he first saw him and he was already soaked with water from head and toe when he first saw him but he is unable to tell how he got wet. Witness has denied the suggestion that it was the accused who saved the prosecutrix and was getting her out of the water when he (witness) caught him and falsely implicated him in this case. State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 10 of 78 According to him it was around 5 p.m. when he saw the child and states that it hardly took about 1­2 minutes to pull the child out of water and catch hold of the accused and has voluntarily explained that the accused was standing right next to the child on the bank. Witness has further deposed that the accused was not saying anything and has voluntarily explained that rather when he caught him and told him to carry the child when the accused questioned him saying "who was he" ? (Tu Kya Lag Raha Hai?) According to him at that time he was alone and there was no other person. Witness has admitted that he first held on to the child and then caught the accused. Witness has further deposed that it took him about half an hour to reach the Tea stall and has voluntarily explained that there is no habitation in that area and the jhuggi cluster/houses are ahead near the Hunuman Mandir where the Tea stall is situated and hence, he went there. Witness has denied the suggestion that accused did not try to run away and himself accompanied him to the tea stall and has voluntarily explained he tried to run away but he (witness) did not leave him. According to him victim child did not tell him anything and states that she was weeping when he found her first time and on the way to Tea shop, her eyes were open but she did not tell anything to him. Witness has further deposed that police was called by using his mobile phone by someone who took his phone from him whose name he does not know. According to him he does not know parents State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 11 of 78 of the victim girl and he knew the accused Shree Bhagwan before the day of incident. Witness has further deposed that he know Tea shop vendor Amit very well. Witness has denied the suggestion that he did not find the victim girl in the canal . Witness has denied the suggestion that he has not brought the victim girl and the accused Shree Bhagwan from the canal to the Tea shop. Witness has denied the suggestion that he fabricated the story against the accused or that the accused did not commit crime against the victim girl. Witness has admitted that the incident of rape was not happened in his presence. (14) PW17 Amit has deposed that he had been residing at the given address since 8 years and is running a tea stall at the Hanuman Mandir, near the Nehar for the last 6 years. Witness has further deposed that on 07.02.12, Sonu, who is an agricultural labour and was previously known to him brought a small girl child and one person by the name of Shree Bhagwan to his tea stall. He had explained that he had seen Shree Bhagwan in the area previously being a labour. According to him the child was shivering with cold and was totally wet being soaked in water and Sonu told him that he had removed her from the Nehar and further told him that Shree Bhagwan was doing 'galat kaam' with the child. h Thereafter they i.e. himself and Sonu noticed that there was blood on the underwear of the child and she was bleeding from the private parts. Witness has further deposed that there were 5­6 public persons in the shop at that State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 12 of 78 time, out of whom, one Kishan who used to come to his shop frequently, told them that he knew the child and her parents. According to him Kishan thereafter went and called the parents of the child who was around 5 years and Sonu in the meanwhile, called up the police and PCR also reached the spot and took the child and her parents with them. According to him, his statement was recorded by the Investigating officer on 08.02.2012. The witness has identified the accused Shree Bhagwan in the court.

(15) During his cross examination by Ld. Defence counsel, witness has deposed that he was not aware of the name of the father of the child neither is her family known to him previously and has voluntarily explained he had seen the child for the first time. Witness has admitted that it was Sonu who had told him that Shree Bhagwan had done the 'galat kaam' with the child. According to him it was around 5:00 pm when the child was brought to his shop and apart from Kishan Kumar and Sonu, one mechanic by the name of Rajesh and few other outsiders were also present at his shop whose name he cannot tell. Witness has further deposed that the child was crying at that time. Witness has admitted that in his presence, the child did not disclose the name of any person who had 'galat kaam' with her. According to him he is known to Sonu only because he used to frequent his tea stall but states that he is not his friend. Witness has denied the suggestion that he is close friend of Sonu and in order to State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 13 of 78 save Sonu, they have shifted the blame on the accused. Witness has denied the suggestion that he was deposing falsely. (16) PW19 Sangeeta has deposed that she has been residing at the given address since 7­8 years and she is a housewife. According to her on 07.02.12 at about 5:00 pm, Kishan came to their house and called her husband and he told them to accompany him to a tea stall near the Hanuman Mandir as her daughter 'C' was there and it appeared that something wrong had been done with her as she was totally wet and shivering after somebody had rescued her from the Nehar. Witness has further deposed that she had last seen her daughter at home at about 4:00­4:15 pm when she was playing outside the Jhuggi after it rained. According to her when she reached the tea stall alongwith her husband, she noticed that her child Baby 'C' aged about 5 years was shivering and she was bleeding from her private parts and her underwear/kachi was soaked with blood. Witness has further deposed that she was crying and there was also swelling on her forehead around the eyes and marks around her neck as if somebody had tried to strangulate her and she also noticed that her hair were partly burnt. Witness has further deposed that police had also reached there and police immediately shifted her daughter to M V Hospital and she and her husband accompanied them. According to her, at MV Hospital, Pooth her daughter was medically treated and from there she was referred to Ambedkar Hospital where State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 14 of 78 they were taken by the local police who came there along with a lady police. Witness has further deposed that at Ambedkar hospital, her daughter remained admitted for about 8­9 days where she was also given stitches. She has deposed that initially, she had made queries from her daughter while she was at the tea stall as to what had happened but she went on crying but in the hospital, when she asked her, she told her that Shree Bhagwan, (correctly identified) had taken her while she was playing outside the house near the Nehar on the other side and did galat kaam with her and also she further told her that he had burnt her hair with a match stick and hit her face with his fist and then strangulated her and threw her on Nehar. According to her she further told her that one person had taken her out from the Nehar and brought her to the tea stall and on the same day i.e. 07.02.12, her statement was recorded by the police. Witness has further deposed that the police had seized the blood stained underwear of her daughter at the hospital itself which underwear was wet on account of being soaked in Nehar water, which she can identify. Witness has also correctly identified the same i.e. underwear (baby's nicker) as underwear belonging to her daughter 'C' and same is Ex.P­1.

(17) In her cross examination by Ld. Defence counsel, witness has deposed that when her daughter was playing outside his house at 4:00­4:15 pm, there was other children playing with her belonging to State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 15 of 78 neighbour and has voluntarily explained that it started raining and therefore the children went here and there. According to her she searched for her daughter while it was raining but could not find her and has voluntarily explained that Kishan uncle had come after about one hour she cannot tell the names of the children with whom she was playing and has voluntarily explained that they are small children aged about 2 and 3 years belonging to neighbours. Witness has further deposed that she had asked the children from the neighbourhood where was 'C' but children did not know. Witness has admitted that for the first time it was Kishan uncle who told them that 'galat kaam' had been done by Shree Bhagwan with her daughter. Witness has denied the suggestion that her daughter did not disclose the name of Shree Bhagwan at any point of time and as voluntarily explained that her daughter had specifically given her the name of Shree Bhagwan in the hospital. Witness has admitted that Shree Bhagwan was known to them prior to the incident and has voluntarily explained that he was working in their neighbourhood. Witness has denied the suggestion that there was a quarrel between her husband and Shree Bhagwan previously. Witness has denied the suggestion that they has falsely implicated Shree Bhagwan on the asking of Kishan or that accused is innocent or that she was deposing falsely at the instance of her husband.

State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 16 of 78 (18) PW20 is the child prosecutrix 'C' aged about six years who has deposed in vernacular. (In order to ensure if the child witness is understanding the queries being put to her, this court has put some formal questions to her. After being satisfied that the child was comfortable and could make a statement, this court has proceeded further.) (19) In her statement the child witness has told the court that the name of her father is Virender and she along with her family is residing at J.J. Colony, Bawana, Delhi. According to the child, she is studying in class three and had come to the court along with her parents. The witness has deposed that Shree Bhagwan had taken her on the pretext to give her ber to eat. (Mujhe Shree Bhagwan Ber Khilane Ke Liye Le Gaya Tha). On court question as to how she knew Shree Bhagwan, the child witness has explained saying Sab usko Shree Bhagwan Ke Naam Se Bulate Hain. The accused was shown to the child along with three other boys of similar height, physique, complexion and wearing similar clothes despite which the child categorically and correctly identified the accused Shree Bhagwan first by pointing out towards him, having little of doubt. (20) According to the child witness, Shree Bhagwan took her towards the Mandir on the pretext of giving her ber to eat (Shree Bhagwan Ber Khilane Ke liye Mandir Ke Paas Le Gaya tha). When State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 17 of 78 the child was asked as to what the accused had done with her near the Mandir, the child become apprehensive and appeared to be feeling shy and kept. She then responded after sometime on persuasion from the court and thereafter explained saying that he removed his own underwear and also her underwear, then pressed her neck and gave her a fist blow on her eyes and also burnt her hair. (Apni Bhi Kachi Utari aur Meri Bhi utari. Phir gala dabakar Aankh Main ghoosa Laga diya . Phir Balon Main aag Laga di.) (Court observed that the head of the child had been tonsured completely and on query from the court it was informed that this was required to be done after the incident.) The child witness has further explained that after her hairs were burnt she had to get them chopped / tonsured from the barber. (Baal Jalene Ke Baad Nai Se Baal Kataye the) On court question as to how long were her hair, initially the child touched her shoulder indicating that it was shoulder length. When the child was asked to explain as to what Shree Bhagwan had done after removing her underwear, the child has explained that he put his penis inside her vagina ( "Pishab dal diya tha.") The child has further explained that there was a jungle ahead of the Mandir (Mandir Ke Aage). She has further states that Shree Bhagwan had thrown her into the canal (Nehar Main shree Bhagwan Ne Phenk Diya Tha.) and has explained that since State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 18 of 78 it was raining Shree Bhagwan had also become wet (Baarish Ho rahi thi tab Shree Bhagwan geela Ho gaya Tha). When court asked the child to inform as to how she knew Shree Bhagwan, the witness has explained saying that she had seen him when he committed the act on her (Us Waqt dekha tha jab usne kiya tha). The child was asked as who had saved her on which she replied saying ('Ek uncle Ne'). The witness has further explained that Shree Bhagwan was apprehended by the same person who had saved her (Jis uncle ne bachaya tha un Uncle Ne Shree Bhagwan Ko pakra tha). The witness was asked that when ShreeBhawan had committed the galat kaam, was she aware of his name, to the witness has explained saying that when he came, she had heard him being called by others as Shri Bhagwan and hence she came to know ( Jab wo aaye tha. Tab Usko sab shree Bhagwan Bolte The tab mujhe pata chala.) The child witness has identified her statement Ex.PW20/A bearing her thumb impression at point A. The witness has deposed that she was also produced before the Ld. MM and she had told the Ld. MM about the incident. This court has observed that the name of the accused was not mentioned in the statement of child u/s 164 Cr.PC.

(21) In her cross examination by Ld. Amicus Curiae for the accused, the witness has deposed that whatever she has deposed State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 19 of 78 before the court, it was of her own and not the instance of anybody. She has denied that the name of Shri Bhagwan has been taken on tutoring (Maine Khud Bola Hai. Kisi nai nahi bataya. Yeh Kehna Galat Hai Ki Maini Mummy Papa Ke Kehne Par Shree Bhagwan Ka Naam Liya tha. Yeh Kehna galat Hai Ki Shree Bhagwan Ne Mujhe Bachaya Tha aur galat kaam nahi kiya tha).

(22) PW21 Sunil Kumar has deposed that Ramphool is his Tau (uncle) and Sonu was working as a farmer and he had taken Guava garden of his Tau Rampur on contract basis and used to sell Guavas. According to him he had given the SIM of his mobile phone number 9873566014 to him (Sonu) for use.

(23) In his cross examination by Ld. Defence counsel, witness has deposed that he had given this SIM to Sonu about 2 years prior to the incident and has voluntarily explained that this was because Sonu was working as a agricultural labourer in the fields of his Tau. Witness has denied the suggestion that he was deposing falsely. Medical Evidence:

(24) PW12 Dr. Shimpi Goyal has proved the MLC of the prosecutrix prepared by Dr. Shaina. The witness has identified the handwriting and signatures of Dr. Shaina as she had worked with her and has seen her while signing and writing. According to the witness, on 07.02.12, at about 8:45 pm, the child prosecutrix 'C' female, 5 State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 20 of 78 years old was brought at the BSA Hospital in the Gynae department by her mother as she was referred from Maharishi Balmiki Hospital for examination under Anesthesia and proper sampling. The witness has deposed that Dr. Shaina medically examined the prosecutrix 'C' and prepared her MLC vide Ex.PW12/A. The witness has identified the signatures of Dr. Shaina at point A and observations at point bracketed X to X­1. The witness has proved that according to the MLC, the alleged history was physical and sexual assault in the evening of 07.02.12 and as per the local examination, hymen was found torn, bleeding per vagina was found positive, vagina mucosa was found torn and rectal mucosa tear was present.

According to the witness, the above said local examination was conducted in the anesthesia (EUA) and tears repaired. The witness has further deposed that in the general examination, the following injuries was found on the prosecutrix :

➢ Bruises present under left eye.

➢ Cuts present on both lips.

➢ Fresh abrasion present on right side of chin and neck. (25) The witness has further deposed that the cloth dusting, undergarments (panty), body fluid collection, nail scrapping, debri collections, in between fingers, breast swab, no pubic hairs, vagina secretions, cervical mucosa secretions, culture, washing from vagina, State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 21 of 78 rectal examination, oral swab, blood of victim, urine and oxalate blood vial, were taken. This witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted. (26) PW13 Dr. S. N. Sidharth has deposed that on 07.02.12 the child prosecutrix 'C', aged about 5 years was brought to the hospital by PCR with alleged history of sexual assault by one Shree Bhagwan. According to the witness the patient was examined by him and referred for Gynaecological examination. The witness has deposed that the MLC is Ex.PW13/A bearing his signatures at point A. The witness has deposed that on local examination, he observed minor abrasions over both sides face and swelling over the left side face and blood stains over the lower garment vide his observations at point bracketed X to X1. This witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.

(27) PW18 Dr. Geetanjali Singh has deposed that she has been directed by the Medical Superintendent to depose on behalf of Dr. Shilpi, Senior Resident, Gynae as she is no longer working in the hospital and she can identify her signatures having seen her writing and signing in official course. According to her, as per the MLC already Ex.PW­13/A, the child 'C' had been referred for Gyane examination, after which, she was examined by Dr.Shilpi. Witness State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 22 of 78 has further deposed that the father of the child was accompanying her and consented to her examination and Dr. Shilpi tried to talk to the child/victim and examined her but the child was apprehensive and uncooperative. According to her Bleeding was seen from genitals and thereafter, the patient/child was referred to BSA for examination under anesthesia and proper sample collection as no emergency OT/ anesthesiologist facility was available at the MV Hospital. The observation of Dr.Shilpi at pint Y to Y­1 bears her signatures at point B which she identify. This witness has not been cross examined on behalf of the accused and hence the entire testimony has gone uncontroverted.

Police Witnesses:

(28) PW1 Ct. Sunil has been examined­in­chief by way of affidavit which is Ex.PW1/1. According to the witness on 7.2.2012 at about 6 PM on receipt of PCR call he along with PCR staff reached the spot where they found Shree Bhawan sitting at the tea stall with prosecutrix 'C' and the caller. The witness has deposed that after some time the parents of the child also reached there and made inquires from the child who informed that Shree Bhagwan had done wrong act upon her and tried thereafter drowned her into the canal.

According to the witness, he along with PCR staff took the accused, the child victim and her parents to the MV Hospital where the State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 23 of 78 prosecutrix was got treated.

(29) In his cross examination by Ld. Amicus Curaei for the accused, the witness has deposed that when they reached the spot i.e. tea stall, there were around 5­7 public persons present apart from the parents of the child. He is unable to tell when the parents of the child had come and has voluntarily added that he was sitting in the vehicle only when he saw that the parents and the accused Shree Bhagwan were all taken to the hospital. The witness has deposed that Shree Bhagwan was also present at the spot and has voluntarily added that he was taken to the hospital. According to the witness, the child was not understanding Hindi and was only crying and not saying anything.

(30) PW2 L/Ct. Ritu has been examined­in­chief by way of affidavit which is Ex.PW2/1. According to the witness on 3.5.2012 she along with SI Narender went to the house of the victim 'C' and thereafter they came to Rohini court where statement of prosecutrix under Section 164 Cr.PC was recorded before the Ld. MM. This witness has not been cross examined on behalf of the accused and her testimony has gone uncontroverted.

(31) PW3 Ct. Balraj has been examined in chief by way of affidavit which is Ex.PW3/1. He has deposed that on 8.2.2012 at about 9 AM he along with SI Anil Tushir took the accused Shree Bhagwan to Bawana Canal and thereafter to the MV Hospital where State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 24 of 78 the accused was medically examined and the pullandas were also received. He has relied upon the seizure memo of exhibits of accused Ex.PW3/A. (32) In his cross examination by Ld. Amicus Curaei for the accused, the witness has deposed that they had reached the spot within 10 minutes by official vehicle but he did not make any separate departure entry and has voluntarily added that the IO had made the combined entry. According to the witness, the statement of tea stall owner namely Amit and Chowkidaar of Nalku had been interrogated in his presence by the IO and their statements were recorded.

(33) PW4 Ct. Anil has been examined by way of affidavit which is Ex.PW4/1. According to the witness, on 15.3.2012 as per the instruction of the IO, he took the exhibits of this case to the FSL and handed over the receipt of the same to the MHC (M). This witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.

(34) PW5 Ct. Kuldeep has been examined by way of affidavit which is Ex.PW5/1. According to the witness on 7.2.2012 while patrolling he reached the MV Hospital where on the instruction of ASI Raj Kumar he took the accused Shree Bhagwan Police Station Bawana. This witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted. State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 25 of 78 (35) PW6 HC Dharamsingh has been examined by way of affidavit which is Ex.PW6/1. According to the witness on 7.2.2012 he was working as Duty Officer and has recorded the FIR of this case. He has relied upon the copy of FIR No. 47/12 Ex.PW6/A and also the endorsement on rukka which is Ex.PW6/B. This witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.

(36) PW7 W/Ct. Meenu has been examined by way of affidavit which is Ex.PW7/1. According to the witness, on 7.2.2012 at about 7:30 PM on receipt of message from Duty Officer, he reached at MV Hospital where ASI Raj Kumar and Ct. Arjun Lal met him and the child 'C' was under treatment there. The witness has deposed thereafter he along with other staff and the prosecutrix came to BSA hospital where the child was medically examined vide MLC No. 120/12 and the doctors have handed over the pullandas in sealed condition wihc he handed over to ASI Raj Kumar. He has proved the seizure memo is Ex.PW7/A. (37) In his cross examination by Amicus Curaei for the accused, the witness has deposed that he reached at the hospital at around 7:30 pm and has voluntarily explained that the information had been received by him at 6:00 pm. According to the witness, only the father and mother of the child were present with her from her State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 26 of 78 family when he reached the hospital. The witness has denied the suggestion that the seizure memo was prepared later by the IO and he only signed the same on his instructions while sitting at the PS. (38) PW8 Ct. Suresh has been examined by way of affidavit which is Ex.PW8/1. The witness has deposed that on 4.5.2012, as per the directions of SI Narender, he wen to PHQ and collected the PCR form related to DD No. 62B dated 7.2.2012 and handed over the same to SI Narender. This witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted. (39) PW9 WCt. Alka has been examined by way of affidavit which is Ex.PW9/1. According to the witness, on 7.2.2012 she recorded the PCR call vide CRDD No. 07Feb121180258 at 1751 hours to the effect that 'ek ladka ek choti bachi ke saath baitha hai, caller ko doubt hai kuch galat kaam kiya hai. The witness has relied upon the PCR form which is Ex.PW9/A. This witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.

(40) PW10 HC Dharampal has been examined by way of affidavit which is Ex.PW10/1. He was posted as MHC (M) and has relied upon the entry in Register No.19 vide S.No. 163/12 copy of which is Ex.PW10/A, entry at S.No. 165/12 copy of which is Ex.PW10/B, entry in Register No. 21 vide RC No. 35/21/12 copy of State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 27 of 78 which is Ex.PW10/C and receipt of of FSL is Ex.PW10/D. XXX by Ms.Shashi Jaiswal, Amicus Curaei for accused. (41) PW11 ASI Raj Kumar has been examined by way of affidavits which is Ex.PW11/1. According to the witness, on 7.2.2012 on receipt of the DD 62B he along with Ct. Arjun Lal reached at MV Hospital and collected the MLC of the prosecutrix with alleged history of sexual assault and the prosecutrix was referred to BSA hospital. He also met Virender the father of prosecutrix and recorded his statement vide Ex.PW11/A and made his endorsement vide Ex.PW11/B. (42) In his cross examination by Ld. Amicus Curiae for the accused, the witness has deposed that he had received the information at about 6:25 PM from Duty Officer and thereafter they reached the spot of the incident within 5 minutes i.e. 6:30 pm. He has voluntarily added that they did not find anybody there and they were told that child had been taken to MV Hospital and hence they went to M.V. Hospital thereafter. The witness has deposed that they reached the MV Hospital at 6:40 pm and there he met the parents of the child while the child was under treatment and states that he had seen the child when she was being medically examined but he did not speak to her. The witness again said initially, he did not talk the child but later on, he tried to speak to her and she only told him that 'ShriBhawan Bhaiya ne galat kaam kiya'. According to the witness State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 28 of 78 he had recorded the statement of the father at about 7:45 pm. He has denied that the child did not tell anything to him but admits that he recorded the rukka on the basis of the statement made by the father. He has also denied that he had falsely implicated the accused Shree Bhagwan at the instance of the father of the child / prosecutrix. (43) PW22 ASI Shree Bhagwan has deposed that on 07.02.12, he was posted at the PCR, Outer Zone and on that day, he was on duty on Libra 48, PCR Van and at about 6:00 pm, he received a call from the Police Control Room Headquarter that one boy was sitting alongwith a small girl at Hanuman Mandir, Narela Road, Tea Stall and the caller have suspicion that that boy had committed rape with a small girl. According to him he immediately reached at the above said place with his staff and found one young boy Shree Bhagwan, one girl 'C' aged about 5 years at the tea shop and the caller was also present there and meanwhile, parents of the 'C' also reached there. Witness has further deposed that 'C' talked with her parents and 'C' told that the accused Shree Bhagwan committed rape with her and tried to throw her in the Kenal/Nehar and thereafter, they took 'C', her parents and Shree Bhagwan to the MV Hospital, and the prosecutrix 'C' was taken for medical examination through Duty Constable in the hospital. According to him ASI Raj Kumar reached at the hospital and he handed over accused Shree Bhagwan to ASI Raj Kumar and his statement was recorded by the State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 29 of 78 Investigating officer. The witness has identified the accused Shree Bhagwan in the court.

(44) In his cross examination by Ld. Defence counsel, the witness has deposed that his statement was recorded by SI Anil on 07.02.12 at MV Hospital and both the child and the accused were wet at the time when they reached the spot. According to him it was not raining at that time and has voluntarily explained that when they had reached the spot, it was raining about half an hour back. Witness has further deposed that he did not check whether the accused was smelling of alcohol or not and has voluntarily explained that there were large number of persons standing at the spot and therefore, they hurriedly removed the child and the accused to the hospital. (45) PW23 Ct.Arjun Lal has deposed that on 07.02.12, he was posted at Police Station Bawana and he was on emergency duty from 8:00 am to 8:00 pm and on that day, he alongwith the ASI Raj Kumar reached at the MV Hospital after receiving the DD No. 62B, ASI Raj Kumar collected the MLC of the prosecutrix. According to the witness the PCR officials handed over Shree Bhagwan to ASI Raj Kumar who thereafter recorded the statement of Virender (father of child) on the basis of which the rukka was prepared and the FIR was got registered through him (witness). The witness has deposed that he went to the police station along with the rukka and got the FIR registered and thereafter be came back along with copy of FIR and State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 30 of 78 original rukka and further investigations was marked to SI Anil Tushir and thereafter they reached the MV hospital and ASI Raj Kumar with Lady Ct. Meenu met them there. According to him 'C' was taken to the B.S.A. Hospital alongwith Lady Ct.Meenu where the doctor handed over to her the MLC and 15 exhibits in one parcel duly sealed with the seal of hospital alongwith the sample seal which was seized by the Investigating officer vide memo Ex.PW­7/A. Witness has further deposed that the accused Shree Bhagwan was handed over to the custody of Ct.Kuldeep and sent to Police Station whereas he alongwith the Investigating officer reached at the Police Station later where accused Shree Bhagwan was interrogated by Investigating officer and he disclosed that he had committed the rape with the 'C' at Bawana Nehar and thereafter, Investigating officer arrested accused Shree Bhagwan vide arrest memo Ex.PW­23/A, his personal search was taken vide Ex.PW­23/B, his disclosure statement was recorded by Investigating officer vide Ex.PW­23/C. According to the witness accused also pointed out the place of incident vide pointing out memo Ex.PW­23/D. Witness has deposed that Investigating Officer has also prepared the site plan. The witness has identified the accused Shree Bhagwan in the court. (46) In his cross examination by Ld. Defence counsel, witness has deposed that the information was received by them at 6:25 pm and they reached at the Nehar within 5 minutes i.e. by 6:30 pm and State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 31 of 78 there they could not find anybody and came to know that victim had been shifted to MV Hospital where they reached within 10 minutes i.e. by 6:40 pm. According to him it was the father of the child who met them first and has voluntarily explained that the child was inside the hospital and was being medically examined. Witness has further deposed that the child did not make any statement in his presence and ASI Raj Kumar had recorded the rukka on the basis of the statement of the father. Witness has further deposed that apart from the parents of the child, there were 4­5 other public persons also present in the hospital but their names, he cannot tell and has voluntarily explained that one of the person present there had told them that he knew the parents of the child as he used to regularly go to the tea stall to have tea. According to him the Investigating officer neither interrogated the child nor recorded the statement in his presence and at the time he saw the accused in the hospital, his clothes were wet. Witness has further deposed that Investigating officer had asked him how he had got wet on which, he initially told him that he was sitting on the banks of the Nehar and was trying to save the child but later on, broke down and confessed that he had done galat kaam with the child. Witness has denied the suggestion that the accused had never made any confession or disclosure statement to the Investigating officer stating that he had committed wrong/done 'galat kaam' with the child or that he had always insisted that he was innocent and was State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 32 of 78 trying to save a child. Witness has denied the suggestion that Investigating officer deliberately and falsely implicated the accused and had recorded the disclosure statement of his own only to work out the present case and to divert the blame on him. Witness has admitted that the accused had been beaten and therefore, they had taken him to the hospital and has voluntarily explained that public persons had beaten him. Witness has denied the suggestion that it was on the asking of the public persons including the complainant and the father of the child, they have falsely implicated the accused. (47) PW24 SI Anil Tushir has deposed that On 07.02.2012 he was posted at Police Station Bawana and on that day at about 8.30PM he received information that he had to conduct investigation of this case and states that Ct. Arjun handed over copy of FIR and original rukka to him on which he alongwith Ct. Arjun reached at MB Hospital where victim 'C' was going to be shifted to BSA Hospital. According to him he directed Lady Ct. Meenu to accompany the child victim 'C' and and her parents to the hospital and he recorded statement of PCR officials. Witness has further deposed that thereafter he returned back to the police station where ASI Raj Kumar met him and he produced the MLC of victim before him and he recorded his statement and he also found accused Shree Bhagwan in the custody of Ct. Kuldeep at Police Station. According to him he interrogated accused Shree Bhagwan and he confessed State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 33 of 78 about his involvement and he arrested accused Shree Bhagwan vide arrest memo Ex.PW23/A, his personal search was taken by him vide memo Ex.PW23/B and he recorded disclosure statement of accused vide Ex.PW23/C. According to him thereafter accused pointed out the place of incident vide Ex.PW23/D and he prepared the site plan which is Ex.PW24/A. Witness has further deposed that Sonu met him near the place of incident and he recorded his statement. According to him Sonu identified accused Shree Bhagwan. Witness has further deposed that Lady Ct. Meenu handed over one parcel in sealed condition with the seal of SD alongwith the sample seal to him and he seized the same vide seizure memo Ex.PW7/A. Witness has further deposed that he recorded statements of parents of 'C' and Ct. Arjun and accused was kept in the lock up and seized articles were deposited in the Malkhana.

(48) Witness has further deposed that on 08.02.2012 he recorded statements of Tea stall owner (chai wala) and Sri Krishan and accused Shree Bhagwan was taken to MB Hospital for medical examination and after his medical examination he collected his MLC and also Ct. Balraj handed over five pullandas in respect of the accused sealed with the seal of hospital with the sample seal to him and he seized the same vide seizure memo Ex.PW3/A. According to him accused was produced before the court and was sent to JC and State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 34 of 78 he deposited the seized articles in the Malkhana and recorded statements of witnesses. Witness has further deposed that on 15.03.2012 exhibits of this case were sent to FSL Rohini, Delhi through Ct. Anil and he recorded statement of witnesses and thereafter he was transferred from the police statement and case file was handed over to MHC(R). The witness has identified the accused Shree Bhagwan in the court.

(49) In his cross examination by Ld. Defence counsel, witness has deposed that he had received the information at around 8:30 pm and he reached the MV Hospital at about 8:45 pm alongwith Ct.Arjun and he did not make a separate departure entry and has voluntarily explained that he had been asked by the duty officer to go vide a daily diary information. According to him apart from the parents of the child, there was no other public persons known to the family of the victim present in the hospital. Witness has admitted that child was not in a position to speak and she did not inform him anything about the incident and has voluntarily explained that he had tried to speak to the child but she was not in a position to reply as she was continuously crying and was extremely scared and apprehensive. According to him the child and her family were taken to B.S.A. Hospital in an ambulance of the hospital and he did not record the statement of the child at BSA Hospital on that day and has voluntarily explained that she was accompanied by Lady Ct. Meenu State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 35 of 78 and she was not in a fit state to make a statement. Witness has admitted that child never mentioned the name of Shree Bhagwan to him directly and has voluntarily explained that it was only the father and the public witness who told him the name of Shree Bhagwan as the person who had done wrong with the child. Witness has admitted that Shree Bhagwan had been beaten by public persons and when he met him at the police station his clothes were wet and has voluntarily explained and they were no so wet at that time. According to him he did not find him smelling of alcohol when he interrogated him at the police station. Witness has denied the suggestion that Shree Bhagwan had been telling him that he is innocent and was only trying to save the child who was drowning in the Nehar. Witness has denied the suggestion that Shree Bhagwan did not make any disclosure confessing his involvement in the Crime or that he had recorded the same of his own on the asking of the father of the prosecutrix/child. Witness has denied the suggestion that all documentations were done while sitting at the Police Station which the witnesses signed later on his asking. Witness has denied the suggestion that he has falsely implicated the accused or that he was deposing falsely in this regard. (50) PW25 SI Narender has deposed that on 16.04.2012 he was posted at police station Bawana and on that day investigations of this case was marked to him. According to him on 03.05.2012 he moved an application for recording of statement of victim vide State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 36 of 78 Ex.PX­2 and he identified vide Ex.PX­3 and after recording of the statement he moved an application for the copy of statement vide Ex.PX­4. Witness has further deposed that he recorded statement of father of 'C' and Lady Ct. Ritu and he also collected the PCR form Ex.PW9/A. According to him he recorded statement of Sunil and after completion of investigation he submitted the chargesheet against the accused Shree Bhagwan. Witness has further deposed that he collected FSL Result and copy of FSL result is Ex.PW25/A (three pages). According to him he has submitted supplementary charge sheet alongwith the FSL result in the court of Ld. MM on 16.08.2012. He has identified accused Shree Bhagwan in the court. (51) In his cross examination by the Ld. Defence counsel, witness has deposed that the father of child prosecutrix was with her when the child was produced before the Ld. MM for recording the statement U/s 164 Cr. P. C. Witness has denied the suggestion that he had tutored the child before her statement U/s 164 Cr. P. C was recorded. Witness has denied the suggestion that even in the court he had pointed out the accused to the child/prosecutrix and she has identified him on his asking. (Here it has become necessary for the court to observe that it is not possible for the IO to have done so because as a matter of practice and procedure followed by the court the victim is never exposed to the accused prior to her examination State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 37 of 78 and made to sit in a separate room. In the present case the camera proceedings were conducted in the Judge's Chamber and child victim and accused never came close to each other except when the accused was called inside the Judges corridor along with other persons with similar physical profile for purposes of identification). Witness has denied the suggestion that the investigations conducted by him are not fair or that accused has been falsely implicated in this case at the instance of father of the victim.

Statement of Accused and Defence Evidence:

(52) After completing the prosecution evidence, statement of accused was recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence / material was put to him which he denied. According to the accused he is innocent and has been falsely implicated. He has stated that in fact when he saw the child drowning, he had tried to save the life of the child by jumping into the canal and in that process he himself got soaked into the water and thereafter he was standing at the bank of the canal. However, the accused has not examined any witness in his defence.

FINDINGS:

(53) I have heard the arguments advanced before him by the Ld. Addl. PP for the State and Ld. Defence Counsels. I have also State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 38 of 78 considered the testimonies of various witnesses and the written memorandum of arguments filed on behalf of the accused. My findings are as under:

Identity of the Accused:

(54) In so far as the identity of the accused Shree Bhagwan is concerned, there is not dispute because he was was apprehended by the public persons at the spot itself and was handed over to the police. Even otherwise, he has been specifically identified by the child prosecutrix 'C' (PW20) from amongst many persons of similar profile. Further, Sangeeta (PW19) the mother of the child, Virender (PW15) her father, Sonu (PW16) and Krishan (PW14), have all identified the accused as the person who was apprehended from the spot and there is no reason to disbelieve the testimonies of these witnesses. I hold that the identity of the accused stands established and proved.

Age of the Prosecutrix:

(55) The case of the prosecution is that the child victim 'C' was hardly about 5 years of age at the time of the incident. Even in their depositions before the court, the parents of the child (father Virender PW15 and mother Sangeeta PW19) have also given her age as 5 years, which had gone uncontroverted. In this background, I hold that the victim in the present case is a child who at the time of State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 39 of 78 incident was 5 to 6 years of age.

Medical Evidence:

(56) The MLC of the child prosecutrix 'C' Ex.PW12/A prepared by Dr. Shaina has been duly proved by PW12 Dr. Shimpi Goyal and PW18 Geetanjali Singh. Dr. Shimpi Goyal has proved that on local examination, hymen was found torn, bleeding per vagina was found positive, vagina mucosa was found torn and rectal mucosa tear was present. According to the witness, the said local examination was conducted in the anesthesia (EUA) and tears were repaired. On general examination, the following injures were found:

➢ Bruises were found present under left eye. ➢ Cuts were found present on both lips.

➢ Fresh abrasion were found present on right side of chin and neck.

(57) Further, Dr. Geetanjali Singh (PW18) has proved that at the time of the medical examination of the child victim, Dr. Shilpi tried to talk to the child but the child was apprehensive and uncooperative and bleeding was seen from her genitals and thereafter the child was referred to BSA hospital as examination under anesthesia and proper sample collection as no emergency OT / State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 40 of 78 anesthesiologist facility was available at the MV Hospital. (58) I may observe that the entire evident testimony of this witness has gone uncontroverted. I hold that the medical evidence which has come on record is compatible to the case of the prosecution regarding aggravated sexual assault and rape having been committed upon the child prosecutrix 'C'.

FSL / Forensic Report:

(59) The FSL Report Ex.PW25/A which has not been disputed by the accused (per se admissible in evidence under Section 293 Cr.PC) shows that semen could not be detected. Here, I may observe that absence of semen cannot be read in favour of the accused keeping in view the peculiar circumstances under which the crime had been committed. A valid explanation is forthcoming with regard to the absence of semen stains since after the offence had been committed upon the child, she was thrown into a canal filled with water. Sonu had found the child clinging on to the weeds with her body into water and hence under the given circumstances, semen would have been washed off. It is for this reason that despite the medical evidence indicating an aggravated sexual assault and also rape, no semen stains could be detected in the vaginal swab of the child naturally so because they were washed off in the water of the canal from where the child was recovered.

State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 41 of 78

Allegations against the accused:

(60) The case of the prosecution is that while the child was present outside her house, she was allured by the accused, taken to a jungle area, raped and thrown in a canal from where she was recovered by a passer­bye Sonu. The prosecution in order to prove its case has examined PW14 Krishan Kumar who had informed the father of the prosecutrix about the incident, PW15 Virender the father of the child, PW16 Sonu the passerbye, who had saved the child from the canal and carried her on his shoulder and simultaneously caught hold of the accused and PW19 Sangeeta the mother of the prosecutrix.

(61) Coming first to the testimony of the child prosecutrix 'C' (PW20). The relevant portion of her statement is reproduced as under:

"Q. Aap Mujhe Poori Baat Batayengi Kya Hua Tha?

Ans. (By nodding her head) Han. Mujhe Shri Bhagwan Ber Khilane Ke Liye Le Gaya Tha.

Court question: Sh. Bhagwan Ko Kaise Janti Ho?

Ans. Sab usko Shri Bhagwan Ke Naam Se Bulate Hain.

Q. Kaun sa Ladka Le Gaya Tha? Jisko aap Shree Bhagwan Kehte Ho usko Pehchan Sakti Ho?

Ans. Han .

State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 42 of 78 (At this stage the accused has been produced in the chamber alongwith three other boys of similar height, physique, complexion and wearing similar clothes and the child has correctly identified the accused Shree Bhagwan by pointing out and thereafter by touching him.) Court question : Iska Naam Kya Hai?

Ans. Shree Bhagwan.

Q. Shree Bhagwan Tumhe Kahan Le gaya Tha?

Ans. Shree Bhagwan Ber Khilane Ke liye Mandir Ke Paas Le Gaya tha.

Q. Mandir Ke Paas Usne Kya Kya Kiya?

(At this stage child become apprehensive and is feeling shy and has kept quiet and then responded after sometime on persuations from the court.) Ans. Apni Bhi Kachi Utari aur Meri Bhi utari. Phir gala dabakar Aankh Main ghoosa Laga diya . Phir Balon Main aag Laga di."

(Court observations : Child has been tonsured completely and I am told by her that this was done after the incident.) Q. Baal Jalene Ke Baad Tumahare Baal Kisne Kate the?

Ans. Baal Jalene Ke Baad Nai Se Baal Kataye the.

Court Question : Kitne Bade Baal The?

Ans. Witness touched her shoulder meaning it was shoulder length.

Q. Kachi Utari to shri Bhagwan Ne Kya Kiya Tha?

Ans. Pishab dal diya tha.

State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 43 of 78 Q. Jungle Kahan Hai?

Ans. Mandir Ke Aage. (child has stretched her hand and has said that ahead the temple).

Q. Tum Geeli Kese Ho Gai?

Ans. Nehar Main shree Bhagwan Ne Phenk Diya Tha.

Q. Kya Shree Bhagwan Geela Kaise Ho gaya tha?

Ans. Baarish Ho rahi thi tab Shree Bhagwan geela Ho gaya Tha.

Court question : tum Shree Bhagwan ko Kaisi Jante Ho?

Ans. Us Waqt dekha tha jab usne kiya tha. Q. Tumhe Kisne Bachaya Tha?

Ans. Ek uncle Ne.

Q. Shree Bhagwan Ko Kisne Pakra tha?

Ans. Jis uncle ne bachaya tha un Uncle Ne Shree Bhagwan Ko pakra tha.

Q. Shree Bhagwan Ne Mara aur ganda Kaam Kiya tha tab Tumhe Uska Naam Pata Tha?

Ans. Jab wo aaye tha. Tab Usko sab shree Bhagwan Bolte The tab mujhe pata chala.

(At this stage, witness has identified her statement Ex.PW20/A bearing her thumb impression at point A) Q. Pehle court main jab aayee thi tab uncle ko sab bataya tha ?

Ans. Han. (Yes).

Q. Kye Tumne Pehle uncle(Ld. MM) ko Bataya tha Ki Shree Bhagwan Ne Galat Kaam Kiya tha?

Ans. Han. Naam Bataya tha.

(Court observations : Name of the accused was State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 44 of 78 not mentioned in the statement of accused u/s 164 Cr.PC.)"

(62) The only suggestion made to the child / victim is that she had identified and named the accused Shree Bhagwan on the tutoring of her parents or that the accused Shree Bhagwan had not committed any galat kaam with her and he had saved her, which suggestion she has denied.

(63) Coming now to the testimony of PW16 Sonu whose testimony finds due corroboration from the testimony of child / victim. Witness Sonu is the person who had saved the child from the canal and carried her on his shoulder. The relevant portion of his testimony is reproduced as under:

"On 07.02.2012 at about 5 p.m. I was coming to the place near Hanuman Mandir where I used to sell Guavas from the Guavas Garden Area. I saw one girl aged about five years in the canal and one boy was standing near the girl.

(Witness pointed out towards the accused Shree Bhagwan and stated that he was the same person who was standing near the victim girl.) The girl was weeping. I brought the girl from the canal and found swelling on her face and her clothes were blood stained. Accused Shree Bhagwan tried to run away from there but I apprehended him and thereafter, brought accused Shree Bhagwan and the victim girl near the T shop , near Hanuman Mandir and State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 45 of 78 Krishan met him there and I informed him about the facts and thereafter, I made a call to police at 100 number. Krishan called the parents of the victim girl and the police also reached at the spot and I handed over accused Shree Bhagwan and victim girl to the police. Accused Shree Bhagwan was present at the spot near the victim girl. Underwear of the victim girl was also blood stained.

On Court question ­ the child was lying at the banks of the Nehar . The water at the spot was about 15 feet deep At this stage Ld. APP for the State seeks permission to put a leading question to the witness in respect of the accused.

Heard. Allowed.

It is correct that police made enquiries from him and recorded my statement. It is correct that I asked Shree Bhagwan to tell the true facts then he told him that the victim girl was his neighbour and he (Shree Bhagwan) had committed rape with her."

(64) PW16 Sonu has been cross examined at length and on a court question, he has specifically informed the court that the child was lying at the banks of the Nehar and the accused was drunk at that time and smelling of alcohol and it is this which explains the reason why Sonu was able to control, apprehend and bring the accused to the Tea Stall while simultaneously carrying the child on his other shoulder. According to the witness, he had seen the accused standing State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 46 of 78 on the banks of the nehar and was soaked with water from head to toe. The testimony of Sonu again finds independent corroboration from the testimony of PW14 Krishan and PW17 Amit. (65) Coming first to the testimony of PW14 Krishan. He is the Operator/ Chowkidar of Delhi Jal Board who is residing in the same area. He is known to Sonu (PW14) and also the victim 'C' and knew the place where she was residing being known to her parents. He had seen Sonu bringing the child and also found blood on the clothes of the child. He immediately rushed to the house of the child and informed her father that something wrong had happened to the child. Relevant portion of his testimony is reproduced as under:

"I have been residing at the aforementioned address for the last 13 years and I am employed as Operator/Chowkidaar in Delhi Jal Board. I know Sonu. I also know 'C' aged about 5 years who was residing in J.J. Colony, Bawana with her parents and I also know the place the jhuggi where she was residing as I was known to her parents. On 07.02.2012 at about 5 p.m. I was present at the T shop, near Hanuman Mandir at Bawana Mor. I saw that Sonu was bringing accused Shree Bhagwan and 'C' by holding their hands and there was blood on the clothes of 'C'. Sonu told him that accused Shree Bhagwan committed rape with 'C'. I immediately went to the house of 'C' and called her parents. Accused Shree Bhagwan is present in the court today. Witness correctly State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 47 of 78 identifies accused Shree Bhagwan."

(66) Now coming to the testimony of PW17 Amit who is the person running the Tea Stall in front of the Hanuman Mandir where the above Krishan was sitting and where Sonu had brought the child. He has explained that he is running the Tea Stall for the last 6 years. He has corroborated the testimonies of both Sonu and Krishan to the extent that he saw Sonu bringing the child and also the accused Shree Bhagwan to his stall. The relevant portion of his testimony is reproduced as under:

"I have been residing at the aforementioned address since 8 years and I am running a tea stall at the Hanuman Mandir, near the Nehar for the last 6 years. On 07.02.12, Sonu, who is an agricultural labour and was previously known to him brought a small girl child and one person by the name of Shree Bhagwan to my tea stall. I had seen Shree Bhagwan in the area previously being a labour. The child was shivering with cold and was totally wet soaked with water and Sonu told him that he had removed her from the Nehar and further told him that Shree Bhagwan was doing 'galat kaam' with the child and then we i.e. myself and Sonu noticed that there was blood on the underwear of the child and she was bleeding from the private parts. There were 5­6 public persons in the shop at that time. Out of whom, one Kishan who used to come to my shop State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 48 of 78 frequently, told us that he knew the child and her parents. Kishan thereafter went and called the parents of the child who was around 5 years. Sonu in the meanwhile, called up the police and PCR also reached the spot and took the child and her parents with them. My statement was recorded by the IO on 08.02.12. I can identify the accused Shree Bhagwan, who is present in the court (correctly identified)."

(67) The entire incriminating evidence which came on record was put to the accused while recording his statement under Section 313 Cr.PC wherein he does not deny the fact that he was present at the spot where the child was found drowning in the canal. He also does not deny that his clothes were soaked with water or that he was caught by Sonu and brother to the Tea Stall along with the child and the only explanation given by him is that he himself was trying to save the child from drowning and Sonu has falsely implicated him. The child victim baby 'C' has demolished this defence of the accused Shree Bhagwan that he was in fact trying to save the child since she has not only identified the accused Shree Bhagwan from amongst many persons present in the Court but has extensively elaborated all that the accused had done with her i.e. removed his as well as her underwear; boxed her on her eyes; tried to strangulate her by pressing her neck; burnt her hair with match sticks and committed rape upon her, which allegations find independent corroboration State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 49 of 78 from her MLC reflecting bruises on her left eye; cuts on both lips; abrasions on right side of chin and neck; tearing of hymen; bleeding from per vagina and tear in vagina mucosa and rectal mucosa. The child has also specifically explained to the Court that it was the accused Shree Bhagwan who had burnt her hair at the time of the incident which hair were shoulder length at that time and that it is for this reason that after the incident she had to get her head tonsured from the Barber. Why will the child tell a lie or identify the accused Shree Bhagwan if it was not he who had done all these things with her. There is no history of animosity between the accused Shree Bhagwan and the parents of the prosecutrix or between the accused and Sonu or Amit or Krishan.

(68) During the trial the accused had even tried to shift the entire blame on Sonu i.e. the person who had in fact saved the child. Had Sonu committed the offence, the child would have named him i.e. Sonu and not the accused, which is not the case. Even otherwise it does not appear probable that the person who has committed the crime on the child would himself save the child in case if his attempt is to save himself from penal consequences. Had Sonu been the actual offender, he would have escaped from the spot rather than saving the child from drowning or to have caught hold of the accused and handed him over to public persons and the police. Rather, on the other hand it is the conduct of the accused which is more suspicious. State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 50 of 78 What was the accused doing at the corner of the canal where the child was clinging on to the weeds and trying to save herself from drowning? Why is it that it is the accused who has been identified and named by the child as the assailant if he had not done anything? Why is that everybody i.e. Sonu, Krishan and Amit are pointing a finger on the accused if he had not done anything? (69) It is writ large that but for Sonu, the child would not have been alive. It is Sonu who had in fact jumped into the canal and saved the child from drowning and thereafter carried on his shoulder to the temple (Tea Stall in front of Temple) while he also caught hold of the accused Shree Bhagwan whom he had seen sitting on the banks of the canal under suspicious circumstances and whom he took along with him to the Tea Stall where Shree Bhagwan was handed over to other public persons and immediate call was made to the police. The conduct of Sonu is natural and probable and rather it is the conduct of the accused which is suspicious. Whatever defence the accused has raised that he has been falsely implicated by Sonu, appears to be an after thought to save himself from from penal consequences. The medical and circumstantial evidence conclusively establishes that the incident had taken place with the child victim and soon after the incident she was saved from drowning in the Nehar by Sonu. The clothes of the child victim were blood stained and she was in great pain and agony on account of the injuries which she had State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 51 of 78 received on her private part (because of the fact that the child was very small and it is this which indicates the pain, agony and trauma faced by the child). I, therefore, hold the accused Shree Bhagwan guilty of the offence under Section 363 read with Section 366 and under Section 376 (2) (f) Indian Penal Code.

FINAL CONCLUSION:

(70) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, 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 State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 52 of 78

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(71) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. (72) On the basis of the testimonies of the various witnesses of the prosecution, medical, forensic and circumstantial evidence on record, it is evident that the identity of the accused Shree Bhagwan stands established and proved. Further, the following facts stand established:

➢ That on the date of incident i.e. 7.2.2012 the child prosecutrix 'C' aged about 5­6 years was present outside her house when the accused Shree Bhagwan had allured her and took her on a cycle to the jungle on the pretext to give her ber. ➢ That after taking the child prosecutrix in the jungle, the accused Shree Bhagwan committed aggravated sexual assault upon the child (also physically assaulted her by strangulation and burning her hair) and also raped her and State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 53 of 78 thereafter pushes her into the canal.

➢ That one passer­bye (PW16 Sonu) had saved the child from the canal and carried her on his shoulder upto the Tea Stall situated on the Pull near the Temple and also simultaneously caught hold of the accused at the spot. ➢ That on seeing the condition of the child, one Krishan Kumar (PW14) had immediately informed the father of the prosecutrix about the incident.

➢ That the father of the prosecutrix Virender (PW15) rushed to the spot and noticed that the child was bleeding from her private parts and on his asking the child informed him that Shree Bhagwan had committed galat kaam with her and thereafter thrown her into the canal.

➢ That the police was informed and the PCR Van reached at the spot and the child was taken to the hospital by PCR officials where her medical examination was got conducted and the accused Shree Bhagwan was arrested. ➢ That there was no history of animosity between the accused Shree Bhagwan and the parents of the prosecutrix or public witnesses namely Sonu, Amit and Krishan. (73) That the medical evidence which has come on record is compatible to the allegations made by the prosecution against the accused of aggravated sexual assault and rape upon the child State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 54 of 78 prosecutrix 'C'. The FSL / Forensic evidence which has come on record proves that blood was detected in the clothes including vaginal secretion proving the aggravated sexual assault and rape upon the child.

(74) There are two stages in criminal prosecution. First obviously is commission of crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (75) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. 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.

State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 55 of 78 (76) In view of the aforesaid, I hereby hold that the prosecution has successfully proved and established the allegations against the accused Shree Bhagwan of having kidnapped the child 'C' aged about 5­6 years from the lawful guardianship of her parents with intention that she may be forced or seduced to illicit intercourse and thereafter having committed aggravated sexual assault/ rape upon the child 'C' for which he is held guilty of the offence under Section 363 read with Section 366 and Section 376 (2) (f) Indian Penal Code and convict him accordingly.

(77) Be listed for arguments on sentence on 25.10.2012.

Announced in the open court                           (Dr. KAMINI LAU)
Dated: 17.10.2012                                   ASJ (NW)­II: ROHINI




State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana                  Page 56 of 78
    IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 

JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI Sessions Case No. 39/2012 Unique Case ID: 02404R0135672012 State Vs. Shree Bhagwan S/o ShreeNath R/o Village & PS Muker Distt.: Chapra (Bihar) (Convicted) FIR No.: 47/2012 Police Station: Bawana Under Section: 363/376 (2) (f) Indian Penal Code Date of conviction: 17.10.2012 Arguments concluded on: 25.10.2012 Date of sentence: 31.10.2012 APPEARANCE:

Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.

Convict Shree Bhagwan in judicial custody with Ms. Shashi Jaiswal Advocate.

ORDER ON SENTENCE:

Vide a detailed judgment dated 17.10.2012, this Court has held the accused Shree Bhagwan guilty of the offence under Sections State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 57 of 78 363/366/376 (2) (f) Indian Penal Code.

As per allegations of the prosecution, on 7.2.2012 at 4:00 PM at in front of the Jhuggi No. 110, F Block, JJ Colony, Bawana, the accused Shree Bhagwan kidnapped the child prosecutrix 'C' aged about 5 years from the lawful guardianship of her parents with the intent that she may be forced or seduced to illicit intercourse. It has also been alleged that between 4:00 PM to 5:00 PM near Pattri, Nehar (Badi Nehar) Dariyapur Kalan, Bawana, he committed rape upon her and thereafter threw her in the canal.

On the testimonies of the various prosecution witnesses including the child prosecutrix 'C'; public witness Sonu who had saved the child and apprehended the accused Shree Bhagwan at the spot itself; other public witnesses; medical and circumstantial evidence on record, vide a detailed judgment dated 17.10.2012 this Court has observed that the identity of the accused Shree Bhagwan stood established. Further, it stood established that on the date of incident i.e. 7.2.2012 the child prosecutrix 'C' aged about 5­6 years was present outside her house when the accused Shree Bhagwan had allured her and took her on a cycle to the jungle on the pretext to give her ber; that after taking the child prosecutrix 'C' in the jungle the accused Shree Bhagwan committed aggravated sexual assault upon the child and also raped her (also physically assaulted her by strangulation and burning her hairs) and thereafter pushed her into State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 58 of 78 the canal; that one passer­bye Sonu had saved the child from the canal and carried her on his shoulder upto the Tea Stall situated on the Pull near the Temple and also simultaneously caught hold of the accused at the spot; that on seeing the condition of the child, one Krishan Kumar had immediately informed the father of the prosecutrix about the incident; that the father of the prosecutrix Virender rushed to the spot and noticed that the child was bleeding from her private parts and on his asking the child informed him that Shree Bhagwan had committed galat kaam with her and thereafter thrown her into the canal; that the police was informed and the PCR Van reached at the spot and the child was taken to the hospital by PCR officials where her medical examination was got conducted and the accused Shree Bhagwan was arrested; that there was no history of animosity between the accused Shree Bhagwan and the parents of the prosecutrix or public witnesses namely Sonu, Amit and Krishan; that the medical evidence which has come on record was compatible to the allegations made by the prosecution against the accused of aggravated sexual assault and rape upon the child prosecutrix 'C' and the FSL / Forensic evidence showing that blood was detected in the clothes including vaginal secretion established the aggravated sexual assault and rape upon the child.

In view of the above, this Court has held the accused Shree Bhagwan guilty of the offence under Sections 363, 366 and State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 59 of 78 376 (2) (f) Indian Penal Code and convicted him accordingly.

Heard arguments on the point of sentence. The convict Shree Bhagwan is stated to be a young boy of 25 years having a family comprising of aged father, one younger sister and one younger brother. He is totally illiterate and is a labour by profession. Ld. Counsel for the convict has vehemently argued that the convict Shree Bhagwan is a young boy and is not involved in any other case. She submits that the convict is the helping hand of his family and any harsh view would not only ruin the entire future of the young convict but also be detrimental to the family of the convict. She prays that a lenient view be taken against the convict.

On the other hand the Ld. Addl. PP for the State has argued that the convict deserves no leniency keeping in view the nature of the offence and the fact that the child was aged about 5­6 years. He prays for a stern view to be taken against the convict Shree Bhagwan.

I have considered the rival contentions. The Hon'ble Supreme Court has in the judgment of State of Andhra Pradesh Vs. Gangula Satya Murthy reported in JT 1996 (10) SC 550, observed as under:

"Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.." State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 60 of 78

In the case of Shri Bodhisattwa Gautm Vs. Miss Subhra Chakraborty reported in AIR 1996 SC 922, the Hon'ble Apex Court observed that:­ "Rape destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the 'Constitution'). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions."

It has been held by the Hon'ble Supreme Court in the case reported in AIR 2000 Supreme Court 1470 that:

Socio­economic, status, religion, race caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 61 of 78 commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. It was also observed by the Hon'ble Court that it is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. (Ref: Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78).

The offence of rape is barbaric in nature where the victim is ravished like an animal for the fulfillment of desire and lust of another man. As observed by Hon'ble Mr. Justice Arijit Pasayat a murderer destroys the physical frame of the victim whereas the rapist degrades and defiles the soul of a helpless female. As per the official statistics a total number of 568 cases of rape have been reported in Delhi alone in the year 2011 out of which only 2% have been committed by strangers. If unreported cases were to be included, the figure would be much high but most of the cases are not reported by State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 62 of 78 the victims because of the various reasons such as family pressure, behaviour of the police, the unreasonably long and unjust process and application of law and resulting consequences thereof.

In the present case, the convict has committed rape on a 5­6 years old girl child. Due to her tender age, neither the body of the child was fully developed nor she was in a position to offer any resistance to the convict. The convict has taken advantage of a helpless and defenceless child who could not even try to escape or express herself and was an easy and vulnerable prey. She must have undergone immense physical pain and agony when the offence was committed. Inspite of the tender age of the child, the convict went on to commit the ghastly, abominable, inhuman and barbaric act of rape, violating the person of the child and giving a lifelong trauma to her family. The Medical Record of the is child indicative of the intense physical pain and agony which the child must have undergone when the brutal act was committed on her frail body. It indicates that her hymen was found torn, bleeding per vagina was found positive, vagina mucosa was found torn and rectal mucosa tear was present, which tears had to be surgically repaired under anesthesia. Further, bruises were found present under the left eye of the child; cuts were found on both her lips and fresh abrasion were found on the right side of chin and neck which also prove the aggravated sexual assault committed upon the person of the child. State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 63 of 78

It is in this background that this court is required to treat the issue with more sensitivity. The only mitigating factor is that the convict Shree Bhagwan is a young boy of 25 years and is a first time offender. The aggravating factors are that the convict had committed aggravated sexual assault on a child who was about 5­6 years of age. On his part the convict had tried to kill the child by physically assaulted her, then strangulating her and thereafter burnt her hairs and if that was not enough he pushed her into a Canal having water as deep as 15 feet i.e. sufficient of the child to have drowned. The child would have certainly died had she not clung on to the weeds on the banks of the canal when she was noticed and rescued by Sonu. It was by sheer providence; her timely rescue by a Good Samaritan Sonu and the immediate medical aid provided to her that the child survived. What worse could the child have faced? Having done all this, how can the convict now claims leniency? Any mercy shown to the convict under the given circumstances would be misplaced. Crime against children shakes the conscious of the society and sentencing is required to be stern. This being the background, I award the following sentences to the convict Shree Bhagwan:

1. For the offence under Section 363 read with 366 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.10,000/­.

In default of payment of fine the convict shall further undergo State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 64 of 78 Simple Imprisonment for a further period of 15 days.

2. The convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.50,000/­ for the offence under 376 (2)

(f) Indian Penal Code. The total fine amount of Rs.50,000/­ (Rs. Fifty Thousand), if recovered, shall be paid to the prosecutrix 'C' under Section 357 Cr.P.C. as compensation. In default of the payment of fine the convict shall undergo Simple Imprisonment for a period of Six Months.

Both the sentences shall run consecutively [first for the offence under Section 363 read with 366 IPC i.e. for 7 years and thereafter for Section 376 (2) (f) IPC i.e. for Life]. Benefit of Section 428 Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules.

Coming now to the aspect of compensation to the victim, I may observe that rape of a child not only affects her alone but such an incident leaves a devastating impact on her entire family who equally suffer in silence. The victim at the time of the incident was hardly aged about 5­6 years. It is cases like these which the Ministry of Women and Child development needs to target for Restorative Justice so that necessary support is provided to the victim. The Hon'ble Apex Court has time and again observed that State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 65 of 78 the subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. It has been so observed by Hon'ble Mr. Justice S. Saghir Ahmed and Justice Kuldip Singh (Ref:

Bodhisattwa Gautam Vs. Subhra Chakraborty reported in AIR 1996 SC 922) that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.

Therefore in order to provide Restorative and Compensatory Justice to the victim (a child aged around 5­6 years) who requires medical attention and rehabilitation, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant a compensation to the tune of Rs.1,00,000/­ (Rs. One Lac) to the victim 'C' daughter of Sh. Virender, R/o Jhuggi No.110, F­Block, JJ colony, Bawana, Delhi which amount shall be used by her for her welfare and rehabilitation under the supervision of Welfare Officer so nominated by the Government of NCT of Delhi, Department of Women and Child Development [Ref.: Hari Kishan & State of Haryana Vs. Sukhbir Singh & Ors. reported in AIR 1988 SC 2127 State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 66 of 78 and Bodhisattwa Gautam Vs. Subhra Chakraborty reported in AIR 1996 SC 922].

A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi; Chief Secretary, GNCT of Delhi; Principal Secretary (Social Welfare), GNCT of Delhi and Director, Department of Social Welfare (Women and Child Development), GNCT of Delhi for information and necessary action under intimation to this Court.

The convict is 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.

Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.

File be consigned to Record Room.

Announced in the open court                                  (Dr. KAMINI LAU)
Dated: 31.10.2012                                           ASJ (NW)­II: ROHINI




State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana                  Page 67 of 78
    IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 

JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI Sessions Case No. 39/2012 Unique Case ID: 02404R0135672012 State Vs. Shree Bhagwan S/o ShreeNath R/o Village & PS Muker Distt.: Chapra (Bihar) (Convicted) FIR No.: 47/2012 Police Station: Bawana Under Section: 363/376 (2) (f) Indian Penal Code Date of conviction: 17.10.2012 Arguments concluded on: 25.10.2012 Date of sentence: 31.10.2012 APPEARANCE:

Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.

Convict Shree Bhagwan in judicial custody with Ms. Shashi Jaiswal Advocate.

ORDER ON SENTENCE:

Vide a detailed judgment dated 17.10.2012, this Court has held the accused Shree Bhagwan guilty of the offence under Sections State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 68 of 78 363/366/376 (2) (f) Indian Penal Code.

As per allegations of the prosecution, on 7.2.2012 at 4:00 PM at in front of the Jhuggi No. 110, F Block, JJ Colony, Bawana, the accused Shree Bhagwan kidnapped the child prosecutrix 'C' aged about 5 years from the lawful guardianship of her parents with the intent that she may be forced or seduced to illicit intercourse. It has also been alleged that between 4:00 PM to 5:00 PM near Pattri, Nehar (Badi Nehar) Dariyapur Kalan, Bawana, he committed rape upon her and thereafter threw her in the canal.

On the testimonies of the various prosecution witnesses including the child prosecutrix 'C'; public witness Sonu who had saved the child and apprehended the accused Shree Bhagwan at the spot itself; other public witnesses; medical and circumstantial evidence on record, vide a detailed judgment dated 17.10.2012 this Court has observed that the identity of the accused Shree Bhagwan stood established. Further, it stood established that on the date of incident i.e. 7.2.2012 the child prosecutrix 'C' aged about 5­6 years was present outside her house when the accused Shree Bhagwan had allured her and took her on a cycle to the jungle on the pretext to give her ber; that after taking the child prosecutrix 'C' in the jungle the accused Shree Bhagwan committed aggravated sexual assault upon the child and also raped her (also physically assaulted her by strangulation and burning her hairs) and thereafter pushed her into State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 69 of 78 the canal; that one passer­bye Sonu had saved the child from the canal and carried her on his shoulder upto the Tea Stall situated on the Pull near the Temple and also simultaneously caught hold of the accused at the spot; that on seeing the condition of the child, one Krishan Kumar had immediately informed the father of the prosecutrix about the incident; that the father of the prosecutrix Virender rushed to the spot and noticed that the child was bleeding from her private parts and on his asking the child informed him that Shree Bhagwan had committed galat kaam with her and thereafter thrown her into the canal; that the police was informed and the PCR Van reached at the spot and the child was taken to the hospital by PCR officials where her medical examination was got conducted and the accused Shree Bhagwan was arrested; that there was no history of animosity between the accused Shree Bhagwan and the parents of the prosecutrix or public witnesses namely Sonu, Amit and Krishan; that the medical evidence which has come on record was compatible to the allegations made by the prosecution against the accused of aggravated sexual assault and rape upon the child prosecutrix 'C' and the FSL / Forensic evidence showing that blood was detected in the clothes including vaginal secretion established the aggravated sexual assault and rape upon the child.

In view of the above, this Court has held the accused Shree Bhagwan guilty of the offence under Sections 363, 366 and State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 70 of 78 376 (2) (f) Indian Penal Code and convicted him accordingly.

Heard arguments on the point of sentence. The convict Shree Bhagwan is stated to be a young boy of 25 years having a family comprising of aged father, one younger sister and one younger brother. He is totally illiterate and is a labour by profession. Ld. Counsel for the convict has vehemently argued that the convict Shree Bhagwan is a young boy and is not involved in any other case. She submits that the convict is the helping hand of his family and any harsh view would not only ruin the entire future of the young convict but also be detrimental to the family of the convict. She prays that a lenient view be taken against the convict.

On the other hand the Ld. Addl. PP for the State has argued that the convict deserves no leniency keeping in view the nature of the offence and the fact that the child was aged about 5­6 years. He prays for a stern view to be taken against the convict Shree Bhagwan.

I have considered the rival contentions. The Hon'ble Supreme Court has in the judgment of State of Andhra Pradesh Vs. Gangula Satya Murthy reported in JT 1996 (10) SC 550, observed as under:

"Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.." State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 71 of 78

In the case of Shri Bodhisattwa Gautm Vs. Miss Subhra Chakraborty reported in AIR 1996 SC 922, the Hon'ble Apex Court observed that:­ "Rape destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the 'Constitution'). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions."

It has been held by the Hon'ble Supreme Court in the case reported in AIR 2000 Supreme Court 1470 that:

Socio­economic, status, religion, race caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 72 of 78 commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. It was also observed by the Hon'ble Court that it is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. (Ref: Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78).

The offence of rape is barbaric in nature where the victim is ravished like an animal for the fulfillment of desire and lust of another man. As observed by Hon'ble Mr. Justice Arijit Pasayat a murderer destroys the physical frame of the victim whereas the rapist degrades and defiles the soul of a helpless female. As per the official statistics a total number of 568 cases of rape have been reported in Delhi alone in the year 2011 out of which only 2% have been committed by strangers. If unreported cases were to be included, the figure would be much high but most of the cases are not reported by State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 73 of 78 the victims because of the various reasons such as family pressure, behaviour of the police, the unreasonably long and unjust process and application of law and resulting consequences thereof.

In the present case, the convict has committed rape on a 5­6 years old girl child. Due to her tender age, neither the body of the child was fully developed nor she was in a position to offer any resistance to the convict. The convict has taken advantage of a helpless and defenceless child who could not even try to escape or express herself and was an easy and vulnerable prey. She must have undergone immense physical pain and agony when the offence was committed. Inspite of the tender age of the child, the convict went on to commit the ghastly, abominable, inhuman and barbaric act of rape, violating the person of the child and giving a lifelong trauma to her family. The Medical Record of the is child indicative of the intense physical pain and agony which the child must have undergone when the brutal act was committed on her frail body. It indicates that her hymen was found torn, bleeding per vagina was found positive, vagina mucosa was found torn and rectal mucosa tear was present, which tears had to be surgically repaired under anesthesia. Further, bruises were found present under the left eye of the child; cuts were found on both her lips and fresh abrasion were found on the right side of chin and neck which also prove the aggravated sexual assault committed upon the person of the child. State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 74 of 78

It is in this background that this court is required to treat the issue with more sensitivity. The only mitigating factor is that the convict Shree Bhagwan is a young boy of 25 years and is a first time offender. The aggravating factors are that the convict had committed aggravated sexual assault on a child who was about 5­6 years of age. On his part the convict had tried to kill the child by physically assaulted her, then strangulating her and thereafter burnt her hairs and if that was not enough he pushed her into a Canal having water as deep as 15 feet i.e. sufficient of the child to have drowned. The child would have certainly died had she not clung on to the weeds on the banks of the canal when she was noticed and rescued by Sonu. It was by sheer providence; her timely rescue by a Good Samaritan Sonu and the immediate medical aid provided to her that the child survived. What worse could the child have faced? Having done all this, how can the convict now claims leniency? Any mercy shown to the convict under the given circumstances would be misplaced. Crime against children shakes the conscious of the society and sentencing is required to be stern. This being the background, I award the following sentences to the convict Shree Bhagwan:

1. For the offence under Section 363 read with 366 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.10,000/­.

In default of payment of fine the convict shall further undergo State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 75 of 78 Simple Imprisonment for a further period of 15 days.

2. The convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.50,000/­ for the offence under 376 (2)

(f) Indian Penal Code. The total fine amount of Rs.50,000/­ (Rs. Fifty Thousand), if recovered, shall be paid to the prosecutrix 'C' under Section 357 Cr.P.C. as compensation. In default of the payment of fine the convict shall undergo Simple Imprisonment for a period of Six Months.

Both the sentences shall run consecutively [first for the offence under Section 363 read with 366 IPC i.e. for 7 years and thereafter for Section 376 (2) (f) IPC i.e. for Life]. Benefit of Section 428 Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules.

Coming now to the aspect of compensation to the victim, I may observe that rape of a child not only affects her alone but such an incident leaves a devastating impact on her entire family who equally suffer in silence. The victim at the time of the incident was hardly aged about 5­6 years. It is cases like these which the Ministry of Women and Child development needs to target for Restorative Justice so that necessary support is provided to the victim. The Hon'ble Apex Court has time and again observed that State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 76 of 78 the subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. It has been so observed by Hon'ble Mr. Justice S. Saghir Ahmed and Justice Kuldip Singh (Ref:

Bodhisattwa Gautam Vs. Subhra Chakraborty reported in AIR 1996 SC 922) that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.

Therefore in order to provide Restorative and Compensatory Justice to the victim (a child aged around 5­6 years) who requires medical attention and rehabilitation, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant a compensation to the tune of Rs.1,00,000/­ (Rs. One Lac) to the victim 'C' daughter of Sh. Virender, R/o Jhuggi No.110, F­Block, JJ colony, Bawana, Delhi which amount shall be used by her for her welfare and rehabilitation under the supervision of Welfare Officer so nominated by the Government of NCT of Delhi, Department of Women and Child Development [Ref.: Hari Kishan & State of Haryana Vs. Sukhbir Singh & Ors. reported in AIR 1988 SC 2127 State Vs. Shree Bhagwan, FIR No. 47/12, PS Bawana Page 77 of 78 and Bodhisattwa Gautam Vs. Subhra Chakraborty reported in AIR 1996 SC 922].

A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi; Chief Secretary, GNCT of Delhi; Principal Secretary (Social Welfare), GNCT of Delhi and Director, Department of Social Welfare (Women and Child Development), GNCT of Delhi for information and necessary action under intimation to this Court.

The convict is 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.

Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.

File be consigned to Record Room.

Announced in the open court                             (Dr. KAMINI LAU)
Dated: 31.10.2012                                     ASJ (NW)­II: ROHINI




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