Delhi District Court
State vs . Parmod Mandal on 28 November, 2013
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 07/2013)
Unique ID case No. 02404R0349072012
State Vs. Parmod Mandal
FIR No. : 225/2012
U/s : 376/377 IPC
P.S. : Adarsh Nagar
State Vs. Pramod Mandal
s/o Devki Mandal
r/o N9/240, Lal Bagh, Azadpur,
Delhi.
Date of institution of case 03.01.2013
Date on which, judgment has been reserved 18.11.2013
Date of pronouncement of judgment - 25.11.2013
JUDGMENT:
1. The present case involves a minor victim (hereinafter referred to as 'P'), who is alleged to have been sexually assaulted by her own biological father. The matter was reported to police, when PW14 Smt. Devki Sharma, teacher at NGO, Janhit Society for Social Welfare, Lal Bagh, Azadpur, Delhi, where P was receiving primary education, chanced upon injury marks on the person of victim P. In the first instance, the members SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 1 of 34 2 of NGO i.e. PW14 Smt. Devki Sharma and PW5 Sh. Rajesh Kumar, contacted PW13 Smt. Asha Devi, mother of the victim child and upon being informed about the plight of the victim P, the PW13 Smt. Asha Devi went and filed complaint Ex. PW13/A against her husband/accused Parmod Mandal at Police Station Adarsh Nagar, pursuant to which, case FIR no. 225/12 Ex. PW1/B was registered at Police Station Adarsh Nagar against the accused. The victim child was got medically examined. Accused Parmod Mandal was arrested in the case and was also got medically examined. Exhibits collected from victim P and accused Parmod Mandal respectively, by the concerned doctors, were sent to FSL for analysis. Statements of witnesses were recorded and after completing investigations, charge sheet was prepared and filed in the court against the accused Parmod Mandal.
2. Upon committal of this case to the court of Sessions, charges for the offence under Sections 376/377 IPC were framed against the accused Parmod Mandal, however, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. In order to prove its case, prosecution has examined 16 witnesses.
4. The PW10 is the prosecutrix in the present case. Her testimony shall be discussed at length in the following paragraphs of the judgment.
5. The PW14, Smt. Devki Sharma was working as teacher in an NGO named as "Janhit Society for Social Welfare" Lal Bagh, Azad Pur, in the year 2008 and in the SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 2 of 34 3 said NGO, the street children were being provided primary education for admission in regular school. She deposed that P used to visit their center and had been coming there since one/two months prior to the reporting of the incident. She further stated that on one day, P was playing with other children in the center and while so playing, she fell down and that PW14 picked P up and removed dust from her frock. The PW14 further stated that as soon as, she touched P's back, P started crying bitterly and when PW14 lifted her frock, she noticed that her entire back was having blue marks of beatings. On being asked by her gently, the prosecutrix told PW14 that her father had given her beatings and when PW14 asked her about the reason for such beatings, the prosecutrix hesitantly told PW14 that "papa mere sath ganda kaam karte hai" The PW14 further asked the prosecutrix "kaise ganda kaam karte hai", on which the prosecutrix replied that "Din main, Mummy job par chali jati hai, papa upni chaddi utar dete hai, aur meri chaddi bhi utar dete hai, aur galatkam karte hai" and that :"Papa bathroom wala hissa mere muah me dalte hai, piche bhi dalte hai aur aage bhi dalte hai"
and while saying so, the prosecutrix pointed towards her anal region and vaginal region while explaining the terms 'aage piche'. The PW14 further asked the prosecutrix as to why she did not raise alarm, on which, the prosecutrix told her that when she tried to do so, her father used to beat her. Thereafter, the PW14 informed about all these facts to other members of NGO including PW5 Mr. Rajesh. She also asked about the same from the PW13/mother of the prosecutrix, but latter showed her ignorance about the matter. The PW14 further deposed that thereafter, they counseled PW13/mother of prosecutrix and thereafter, they took her to Police Station after which, the Police took over the matter.
SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 3 of 34 4 During her crossexamination, PW5 deposed that the prosecutrix used to attend the third shift i.e from 3:00 PM to 5:00 PM at her center and that they marked their attendance of children in register. She also deposed that the incident of prosecutrix falling and telling her about her abuse occurred in the month of September, 2012, but could not tell the exact date thereof. She further stated that when she had visited house of prosecutrix to talk to her mother, initially, the mother of prosecutrix was not available as she is working and that she had an off day on Wednesday and so they called her to their center on a Wednesday. The PW14 further stated that they maintained register of children, who studied in their center and their attendance was marked daily. She also stated that the matter was reported to the Police after 4/5 days, however, she volunteered to state that it was so as in the intervening period, they were trying to contact the mother of the prosecutrix.
6. The PW5, Sh. Rajesh Kumar is the Welfare Officer of Jan Hit Society, Social Welfare Department. He deposed on the lines of PW14 and further stated that one day, he came to know from PW14 Devki Sharma, that the prosecutrix was sexually assaulted by her father and after inquiry, when they found this information to be correct, they took the prosecutrix and her mother to the Police Station and got a case registered.
During crossexamination, PW5 stated that they used to maintain a register of students, who come to their Center for tuitions. He further stated that a report regarding the incident was made to Modi Care Foundation, the NGO attached with their Center.
7. The PW13 Smt. Asha is the mother of the prosecutrix and she stated that SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 4 of 34 5 she was having three children i.e. two daughters including the prosecutrix and one son and that her husband, who was working in a acid factory at WPIA, used to go his factory at 9:00 AM and used to come back at 9:00 PM. She further deposed that she was also working in another factory and her timings were from 9:00 AM to 9:00 PM. In reply to some court questions, the PW13 deposed as under : Court Ques.: While you were away for work, who used to take care of your children ?
Ans. My eldest daughter i.e. the prosecutrix used to take care of the other children.
Court Ques. Was prosecutrix going to school at that time ?
Ans. No. She used to go to tuition at a government center from 11:00 AM to 1:00 PM.
Court Ques. Who used to take care of your other children in absence of the prosecutrix ?
Ans. My son Rohit used to look after the youngest daughter Karishma.
Court Ques. Who used to cook food for your children ?
Ans. I used to cook food for them and if children needed anything in my absence, prosecutrix used to cook for them. Court Ques. : You used to return late at night i.e. after 9:00 PM. Who used to cook food at night ?
Ans. Sometimes I used to cook and at other times, prosecutrix cooked food for all of us.
SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 5 of 34 6 Court Que.: Did you husband do work in night shift in his factory ?
Ans. Yes for 1 ½ months.
PW13 further deposed that during the period, when her husband was working in night shift, he used to remain at home during day time and that she used to go for her duty during day time. The PW13 further stated that during this period, her husband had committed rape upon the prosecutrix many times, but her daughter did not tell her about the said things and instead of telling her, her daughter told this fact to her teacher/PW14 Devki i.e. her teacher at center, where she used to go for her tuition classes and that said Smt. Devki came to her and talked about the factum of rape committed upon the prosecutrix by the accused. She further stated that PW14 Devki and PW5 Rajesh from the said tuition center took her and prosecutrix to the PS Adarsh Nagar, where her statement Ex. PW13/A was recorded by the police and that thereafter, the police came to her room and prepared site plan as per her instance and at the instance of her daughter. She further deposed about the medical examination of her daughter at Jahangir Puri Hospital and about recording the statement of the prosecutrix before court. .
During her crossexamination, PW13 stated that Devki told her about the factum of rape on the day when her statement was recorded by the police. In reply to a specific court question that "Did you ever spend time with prosecutrix or tried to find out if she was troubled in any manner", the witness replied that "By the time I returned back, prosecutrix was asleep."
SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 6 of 34 7
8. The PW11 Mayank Jain is the employer of the accused and he deposed that he was running a factory of stainless steel sheet and acid processing factory along with his father at WPIA and that accused Parmod Mandal used to work in their factory as labour. He further stated that his factory was running only in single shift i.e. from 9:00 AM to 9:00 PM and that they used to maintain the register of the employees for two months and thereafter destroyed the same.
In reply to a specific court questions, the PW11 replied that it was very rare for his factory to run in night shift and that to when there was shortage of labour, electricity failure etc. but such instances were not more than once or twice a month and that if the said factory was running at night, then the entire labour worked at night and not one or two labourers. He further stated that he could not recollect, if accused Parmod had done night shift in the factory or not. He specifically stated that wife of the applicant/accused was not working in his factory.
During his crossexamination, PW11 stated that he could not tell by approximation as to, in how many night shifts his factory was running and in how many of them accused Parmod was present. He further stated that he did not hand over the police any document to show that accused Parmod had worked with him in night shift or that his factory was running in night shift also.
9. The PW4, Ms. Vandana, learned MM, Rohini Courts, Delhi, had recorded the statement of prosecutrix u/s.164 CrPC. She proved the said statement as Ex.PW4/B. The applications for recording of statement u/s.164 Cr.P.C and supply of copy of said statement filed by IO were proved as Ex.PW4/A and Ex.PW4/D SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 7 of 34 8 respectively while the certificate given by PW4 was proved as Ex.PW4/C.
10. The PW15, Mrs. Reeta Nayyar is President, Apni Didi, a Social Welfare Organization and she stated that on 13.09.2012, on receipt of a call from PW16 IO SI Upkar Kaur, she went to PS Adarsh Nagar in the vehicle provided by the IO and that in her presence, statement of the prosecutrix aged about 8 years was recorded by the IO and that thereafter, she counseled the prosecutrix and returned back.
11. The PW1 HC Sushil Kumar was posted as Duty Officer at P.S. Adarsh Nagar on 13.09.2012 and PW1 deposed about registration of FIR of the present case on receipt of rukka from W/SI Upkar Kaur. He proved the endorsement made by him on rukka as Ex.PW1/A and the computerized copy of FIR as Ex.PW1/B. During crossexamination, PW1 stated that he had not typed the rukka in the computer. The witness termed it correct that he had not obtained the certificate u/s 65 (B) of Evidence Act from CIPA.
12, The PW3 Ct. Ved Prakash stated that on 13.09.2012, he took the original tehrir and computerized copy of FIR to the spot i.e. at N9/240, near GRP Center and handed it over to PW16 SI Upkar Kaur.
13. The PW16 W/SI Upkar Kaur is the investigating officer of the case and she deposed on 12.09.2012, on being called, she went to PS Adarsh Nagar at about 7:00 PM, where she met PW13 complainant Asha, Welfare Officer/PW14 Smt. Devki Sharma and PW5 Rajesh and PW10/prosecutrix, who was a child aged about 9 - 10 SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 8 of 34 9 years and that she made inquiries from all of them one by one. She further stated that she also called PW15 Smt. Rita Nayyar, President of NGO Apni Didi, for counseling of the prosecutrix and got her counseled from her and that thereafter, she along with PW13/complainant Asha, PW10 prosecutrix and PW12 Ct. Urmila, went to BJRM Hospital for medical examination of the prosecutrix and got her medically examined vide MLC Ex.PW8/A and that after examination of the prosecutrix, the concerned doctor handed over samples taken from the prosecutrix in sealed sexual assault kit along with sample seal to her, which were seized by her vide seizure memo Ex.PW12/A. The PW16 W/SI Upkar Kaur further stated that thereafter, they returned to the PS on the next day i.e. 13.09.2012 at about 5:00 AM and on her return, she recorded statement Ex. PW13/A of mother of prosecutrix and prepared rukka Ex. PW16/A and got recorded the FIR of the present case and that after registration of the case, further investigations of the case were marked to her. The PW16 further stated that thereafter, she along with the prosecutrix and her mother went to the place of incident i.e. the house of the complainant at house No.N9/240, Lal Bagh, Azadpur, where she recorded statement of the victim child, who made allegations of rape against her own father and that since at that time, father of prosecutrix was not found at home, she returned back to PS leaving the prosecutrix and her mother at their home. She further stated that on the same day, she along with PW7 Ct. Krishan went in search of the accused and that at about 8:00 - 9:00 PM, accused came home and at that time, he was arrested by PW16 vide arrest memo Ex.PW7/A and was personally searched by PW16 vide personal search memo Ex.PW7/B. The PW16 further stated that thereafter, she interrogated the accused, who made disclosure statement Ex.PW7/C. The PW16 further got the accused medically examined at BJRM Hospital on 14.09.2012 vide MLC Ex.PW9/A SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 9 of 34 10 and stated that after medical examination of the accused, the concerned doctor handed over sample, sealed with the seal of Hospital, along with the sample seal, to her, which were seized by her vide seizure memo Ex.PW6/A. The PW16 then stated that on 15.09.2012, she got recorded statement of prosecutrix u/s.164 CrPC, which was recorded by PW4 Ms. Vandana and that after recording of statement of prosecutrix u/s.164 CrPC, she produced the prosecutrix before concerned CWC. She further stated that the prosecutrix was later got examined by medical board for assessment of her age, with the permission of CWC, and she had obtained the report Ex. PW16/B of medical examination of the prosecutrix by the medical board and filed it before the court, wherein prosecutrix has opined to be between 9 - 10 years as on the date of examination i.e. 20.12.2012. She further stated that during the course of investigation, she sent exhibits of the case to FSL and later on, she collected the FSL result Ex. PW16/C and filed it before the court.
During her crossexamination, PW16 stated that the complainant came to PS on 12.09.2012 at about 7:00 - 8:00 PM and that no written complaint was brought by the complainant. She termed it correct that she had made inquiries from the victim child. She further stated that she reached at the house of complainant at about 8:00 AM and that no neighbour of the complainant met them there at that time. The witness termed it correct that the house of the complainant was surrounded by other residential houses and stated that she had not made make any inquiry from neighbourhood regarding the relationship of complainant with the accused.
14. The PW6, Ct. Satish, joined the investigating of the present case with IO/PW16 W/SI Upkar Kaur on 14.09.2012 and got the medical examination of the SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 10 of 34 11 accused conducted at BJRM Hospital and deposed regarding the same. He further stated that after the medical examination of the accused, concerned doctor had handed over three sealed pullandas and sample seal to him, which were handed over by him to PW16, who seized the same vide seizure memo Ex. PW6/A.
15. The PW7, Ct. Krishan Kumar joined the investigating of the present case with IO/PW16 W/SI Upkar Kaur on 13.09.2012, at the time of arrest and personal search of the accused and deposed about the same. He further stated that on interrogation, the accused made his disclosure statement Ex. PW7/C.
16. The PW12, Lady Ct. Urmila joined the investigating of the present case with IO/PW16 W/SI Upkar Kaur on 14.09.2012 and got the medical examination of the victim child conducted at BJRM Hospital. She further stated that after the medical examination of the prosecutrix, concerned doctor had handed over samples taken from the prosecutrix in sealed condition, which were handed over by her to PW16, who seized the same vide seizure memo Ex. PW12/A.
17. The PW2, Ct. Gurdeep Singh took the exhibits of the present case to FSL, Rohini, vide RC no. 90/21/12 and deposited the same there and on return, he handed over the acknowledgment receipt to MHCM and deposed regarding the same.
18. The PW9, Dr. Gopal Krishan deposed that on 13.09.2012, at about 2.00 am, prosecutrix was brought to the casualty by PW16 W/SI Upkar Kaur and that she was initially examined by him vide MLC Ex. PW8/A and thereafter, she (prosecutrix) was SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 11 of 34 12 referred to Gynecological department for further examination. This witness also proved the MLC of the accused as Ex. PW9/A and stated that the same was prepared by Dr. Azia Manjoor and Dr. Vineet under the supervision of Dr. Neha and that as per the MLC, after examination, Dr. Vineet, S.R. Surgery opined that "there is nothing to suggest that he cannot perform such sexual act".
19. The PW8 Dr. Seema, Medical Officer, BJRM Hospital proved the MLC of the prosecutrix as Ex. PW8/A, which was prepared by PW9 Dr. Gopal Krishan and Dr. Poonam, S.R. Gynae and stated that after examination, Dr. Poonam gave observation that "hymen broken, admit one finger, no fresh bleeding per vagina, anal opening shows no cuts, benign bleeding" and that Dr. Poonam further opined that "sexual assault, hymen broken".
20. After closing of prosecution evidence, statement of accused Parmod Mandal was recorded u/s 313 Cr.P.C. Accused stated that he is innocent and had been falsely implicated in this case by the prosecutrix as well as her mother and NGO official and that he had nothing to do with the offence of the present case. The accused declined to lead evidence in his defence.
21. Arguments have been addressed by learned Amicus Curie l for the accused as well as learned Additional PP for the State.
22. Learned Additional PP has contended that prosecutrix and other material witnesses i.e. PW14 Smt. Devki and PW13 Smt. Asha have fully supported the case of SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 12 of 34 13 the prosecution and that prosecution has succeeded in proving its case against the accused beyond reasonable doubt by examining the said witnesses. It is stated that in view of the testimony of the prosecutrix no other evidence is required and has accordingly prayed that accused Parmod Mandal be convicted for the offences punishable u/s. 376/377 IPC.
23. On the other hand, learned counsel for accused has contended that accused is innocent and has nothing to do with offence committed upon the prosecutrix in the present case. It is also stated that the prosecutrix was tutored by her mother and she deposed under the influence of her mother and thus accused is entitled to be acquitted of all charges in the present case and it is prayed accordingly.
24. I have heard the arguments put forward by ld. Addl. PP and learned counsel for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
25. The victim child P is stated to be aged about 9/10 years at the time of incident and report of medical board Ex. PW16/B also shows that her age has been opined to be between 910 years by medical board, which examined her on 20/12/2012 i.e. after about three months of incident. There is no reason to doubt the report of medical board and prosecution has succeeded in proving that child P was a minor aged about 9/10 years as on the dates of incident i.e. 11/2 to 2 months prior to matter being reported, which was 13.09.2012.
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26. In the present case the victim child was unfortunately subjected to sexual abuse by her own biological father. The accused had been sexually abusing the victim child P for some time, but P, who is a tender aged child of about 9/10 years, could not tell about the incident to anyone, on account of threats extended by the accused. It was a matter of sheer chance that while playing in the Primary Education Center, where she used to go, she fell down and was picked up by PW14, who also removed dust from her frock and when PW14 accidently touched the back of the child, she started crying. It was then that PW14 discovered marks of beating on the back of P and was told by P about sexual abuse by her father.
27. The complaint Ex. PW13/A was filed, when the NGO members contacted Smt. Asha, mother of the victim child and told her about sexual abuse of P by accused/husband of PW13. The IO recorded statement of P u/s 161 Cr.P.C with the help of NGO and in the said statement, she categorically stated that "mere papa mere saath galat kaam karte hai, mere papa meri aage peshab karne wali, tatti karne wali jagah, va mere munh me apni peshab karne wala dalte hai, aur mere papa, mere saath kitni hi baar esa galat kaam kiya hai."
28. The victim child was produced before the PW4 Ld. M.M Ms. Vandana on 15.09.2012 and her statement u/s 164 Cr.P.C was recorded on the same day. In the said statement, the victim child deposed that, "Mera papa, jab mummy chali jaati hai, tab, mujhe apne pass bulate hai, aur apni susu karne wali jagah mere munh me dalte hai. Wo apni susu karne wali jagah meri susu karne wali jagah, aur latrine karne wali jagah me bhi dalte hai. Wo esha bahut din se kar rahe hai. Unhone muje bola tha, kisi SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 14 of 34 15 ko maat batana, nahi to bahut maroonga. Ek din maine ye baat apni tuition padhane wali didi ko bata di."
29. The victim child was summoned to depose before the court and was examined as PW10. Keeping the tender age of the child in the mind, her statement was recorded in camera proceedings in the chamber annexed to the court room, in presence of support person from DCWA. The victim was provided colours and white papers to keep her occupied and when, she was comfortable, certain preliminary questions were put to her to ascertain her capability to understand the importance of speaking truth and also her capacity to understand the questions put to her and to answer them reasonably. After being so satisfied with her capacity and capability, her statement was recorded in questionanswer form, without oath, wherein, she deposed as under : Q. Aap ke Papa ka kya naam Hai?
Ans. Parmod.
Q. Aap ki mummy ka kya naam hai?
Ans. Asha.
Q. aap ke papa kya kaam karte hai?
Ans. Factory me machine chalate hai.
Q. Aap ki mummy kya karti hai?
Ans. Mummy kam karti hai. (The witness though for a while and
after a pause states that) mummy factory me kaam karti hai, (The witness is unable to tell what work her mother is doing in the factory.) Q. Aap ko papa se koi shikayat hai?
Ans. Papa gandi bat karte the. Meri behein ko pas sulate the SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 15 of 34 16 aur patak dete the. Mere muh me dalte the. Mere piche bhi dalate the aur aage bhi.
Q. Beta piche aur aage kaha par ?
Ans. (The witness has pointed towards her anal region and then
her vaginal region to show what she means by piche lagate the aur aage lagate the.) Q. Woh kya lagate the?
Ans. Woh jo unke aage hota tha, the witness has pointed towards her vaginal region to indicate that it was from that region of her father's body that he did something to her.
Q. Tab aap kya karte the?
Ans. Papa rat me jagate the. Tab mummy so jati thi. Mujhe
uthate the aur phir karte the.
Q. Aur kya karte the ?
Ans. Mere Papa mujhe mana karte the, maine kisi ko nahi
bataya. Mummy ko bhi nahi.
Q. Aap ke papa aur kya karte the ?
Ans. Merese kaddi nahi banati thi, toh mujhe marte the, main
baki sab khana bana leti hua.
Q. Yeh baat apne kisi ko batai thi ?
Ans. Apni tuitionwali madam ko batai thi.
Q. Unko kaise batai thi ?
Ans. Me kiraye par rehati hua, hamare upar ek ladaki rehti hai.
Usko pata tha ki mere papa galat baat karte hai. Usne madam ko SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 16 of 34 17 bataya aur madam ne mere se pucha.
Q. Us ladki ko kisne bataya ?
Ans. Uski behein mere ghar aati thi. Darwaja bhida hua (half
closed) tha. Usne mere papa ko dekha tha.
30. In response to questions put to her in her crossexamination, the prosecutrix deposed that : Q. Aap ke papa savere factory jate the ?
Ans. Ha. Jab late ho jate the toh nahi jate the. Kabhi kabhi raat me bhi kam par jate the.
Q. Aap ki mummy kab kaam par jati hai aur kab kaam se aati
hai?
Ans. Mummy nau (9) baje jati hai aur nau (9) baje aati hai, aate
aate sade nau (9:30) baj jate hai, mein badi hua khana mein banati hu.
Q. Apke chote bhai behein kis ke paas rehte hai ?
Ans. Woh mere paas rehte hai.
Q. Aap toh school jati thi, toh unko kaun dekhta tha ?
Ans. Pehle nahi jati thi, mummy naam nahi likhati thi.
Q. Aap tuition kab jati thi ?
Ans. 3 - 4 baje.
Q. Tab bhai behein ko kaun dekhta tha ?
Ans. Mere bhai behein bhi jate the.
Q. Aap ke ghar me kitne kamare hai ?
SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 17 of 34
18
Ans. Ek.
Q. Aap sab kaha sote ho ?
Ans. Hum sab kamare me jamin par sote hai.
Q. Aap ko aaj kya kehana hai kisi ne bataya tha ?
Ans. Nahi.
Q. Aap jo kaha mummy ke kehne par kaha ?
Ans. Nahi.
Q. Jo aunty aap ko aaj layi hai unhone bataya hai aapko kya
kahana hai ?
Ans. Nahi.
31. The above mentioned statements of the prosecutrix i.e. her statement u/s 161 Cr.P.C, her statement u/s 164 Cr.P.C Ex. PW4/B and her testimony as PW10 before the court clearly bring out her plight on being repeatedly sexually abused by her own father. In all these statements, prosecutrix is consistent regarding the allegations of rape and sodomy by her father. The testimony of the prosecutrix is duly corroborated by that of PW14 Smt. Devki Sharma, to whom, prosecutrix had confided about sexual abuse/unnatural sexual assault by her father.
32. From the testimony of PW14, it is brought out that one day, while playing in the center, the prosecutrix fell down and as PW14 picked up child P and removed dust from her frock, she accidently touched back of P, who started crying bitterly. When, PW14 Smt. Devki Sharma lifted P's frock, she saw that her entire back was having blue marks of beatings. When coaxed gently by PW14, child P told her that the said SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 18 of 34 19 beatings had been given by her father. On further persistent query, P told PW14 Devki Sharma that "Papa mere saath ganda kaam karte hai". Subsequently, P clarified that "din main, Mummy job par chali jati hai, papa upni chaddi utar dete hai, aur meri chaddi bhi utar dete hai, aur galatkam karte hai. She further told PW14 that "Papa bathroom wala hissa mere muah me dalte hai, piche bhi dalte hai, aur aage bhi dalte hai". The PW14 stated that while telling her so, P pointed towards her anal region and vaginal region to explain the terms "aagepichche". The PW14 stated that she then asked the prosecutrix that did she not cry, when such things happened (tum roti nahi ho, chilati nahi) and child P told her that when she tried to do so, her father gave her beatings. The PW14 further stated that she shared this information with the other members of NGO including PW5 Sh. Rajesh Kumar and was asked to inquire into the matter further and that she asked the mother of the prosecutrix about the same, but she showed her ignorance in the matter and that after counseling, the mother of the prosecutrix that she should not permit such things to happen with prosecutrix, they took her to PS, where police took over the matter.
33. The testimony of the prosecutrix and PW14 is duly corroborated by MLC i.e. Ex. PW8/A. The prosecutrix was taken for medical examination on 13.09.2012 and as per child P, she was being sexually abused since 11/2 to 2 month prior to that. The MLC Ex. PW8/A finds observation given by doctor Poonam, whose handwriting and signatures were thereupon proved by Dr. Seema, as "hymen broken, admit one finger, no fresh bleeding per vagina, anal opening shows no cuts, benign bleeding". On basis of these observations, Dr. Poonam opined that "sexual assault, hymen broken." SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 19 of 34 20
34. Though, the MLC does not reflect positive finding qua sodomy, the fact that accused had been indulging in these act since 11`/2 to 2 months prior to the date, when the matter was reported to the police, and the victim child due to her tender age, could not tell specific date (s) or the acts committed by the accused on each of the said dates, it is possible that due to time gap, the concerned doctor could not detect the injuries in the anal region of P. However, the cogent testimony of child victim P in this regard cannot be discarded merely by absence of injuries in her MLC.
35. The testimony of PW13 Smt. Asha Devi, mother of the victim child also reflects that despite her tender age, the victim child was burdened with responsibility of the house as PW13 had no time for her house or children. She left for work at 9.00 and returned back home at 9.00 pm and by the time, she came back, prosecutrix was already asleep. Thus, child P had no occasion to tell her mother i.e. PW13 about the evil deeds, she suffered at hands of her father i..e the accused. It is also brought out from the testimony of PW13 that accused had worked in night shift at his factory for about one and a half months and thus, when, PW13 was away for work, prosecutrix was left in sole custody of the accused, who instead of discharging his duties as her father and protector, chose devil's path and violated body and soul of his daughter i.e the prosecutrix with his acts.
36. It is a well settled law that the conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court, after careful scrutiny of its evidence, In case of Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341, it was held that, SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 20 of 34 21 " A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his / her demeanor must be like any other competent witness and there is no likelihood of being tutored."
37. In case of Pancchi Vs. State of U.P., AIR 1998 SC 2726, it was further held : "It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence if a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and this a child witness is easy prey to tutoring."
38. Learned Amicus Curie for accused has also contended that testimony of prosecutrix / minor child cannot be relied upon as children are prone to be tutored and in the present case also from testimony of prosecutrix it is evident that she was tutored. SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 21 of 34 22
39. In this regard it has been held by Hon'ble Supreme Court in case titled as State of UP Vs. Krishan Master, AIR 2010 SC 3071, that : "There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A Child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature."
40. In the present case, not only does the testimony of victim child/PW10 inspires confidence, but even otherwise, her testimony is duly corroborated by that of PW14 Smt. Devki Sharma and the medical evidence on record. I find no reason as to why a child of such tender age, would implicate her own father for an offence which was undisputedly committed with her. It would be worthwhile to remember that the victim SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 22 of 34 23 child in the present case was a very vulnerable victim because of her tender age (she is aged 10 years old), when children repose blind faith and trust in their parents/father/mother and many a times look upon them as their idols. Except for the fact that both the parents of child P i.e. her father/accused and mother/PW13 Smt. Asha were away for work at their respective factories, for long durations, nothing has been brought on record by the defence to show that the accused and PW13 Smt. Asha were having any strained relations or matrimonial discord of such magnitude as may have motivated PW13 Smt. Asha to tutor her daughter P against the accused. Rather, as already observed hereinabove, PW13 Smt. Asha hardly had time for her children specifically P, who was burdened with considerable household chores like cooking and looking after her two younger siblings in absence of her mother. Thus, there is even otherwise, a very remote possibility of PW13 Smt. Asha tutoring child P. Similarly, no motive could be assigned to the NGO workers for falsely implicating the accused by instigating PW13 Smt. Asha and child P against him. Had it not been for vigilant act and prompt action by PW14 Smt. Devki Sharma and PW5 Sh. Rajesh Kumar, the matter would perhaps have never come out in open and child P would have grown up as a sexually abused and oppressed child for whom, there would have been no escape from omni present abuser/aggressor i.e. her own father. No plausible justification has come forth from accused, why his own child child would nurture an enmity or grudge or ill will against him i.e. her own real biological father. The testimony of prosecutrix clearly bring out the traumatic experience she suffered at the hands of her own father i.e. accused.
41. In case of State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 23 of 34 24 the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence. It must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may took for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
Thus, from the testimony of the prosecutrix and other material witnesses examined by it, prosecution has succeeded in proving that accused had committed repeated offence of rape upon his 9/10 years old daughter. It also stands proved that accused had sodomized his own daughter.
42. The nutshell of foregoing discussion is that from the testimony of the prosecutrix as well as other material placed on record, the prosecution has successful in SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 24 of 34 25 proving that it was the accused Parmod Mandal, who committed rape as well as sodomy upon the prosecutrix. Although, accused has been charged for offence of rape u/s 376 IPC, considering that the victim child was aged about 9/10 years at the time of incident
(s) and the particulars of the offence, relationship of accused with the victim child as well as her age have been clearly mentioned in the charge framed against him on 08.02.2013, inadvertently section 376 IPC has been mentioned instead of section 376 (2) (f) in the Charge. Since all the material particulars for framing of charge u/s 376 (2)
(f) IPC are contained in the charge framed against the accused on 08.02.2013, such omission/error is duly covered under provision of Section 215 of Code of Criminal Procedure 1973. Accordingly, I convict accused Parmod Mandal u/s. 376 (2) (f) as well as 377 IPC and he is convicted accordingly.
(Announced in the open Court ) (Illa Rawat)
(Today on 25.11.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 25 of 34
26
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 07/2013)
Unique ID case No. 02404R0349072012
State Vs. Parmod Mandal
FIR No. : 225/2012
U/s : 376/377 IPC
P.S. : Adarsh Nagar
State Vs. Pramod Mandal
s/o Devki Mandal
28.11.2013
Present : Ld. Addl. PP for the State.
Convict produced from J.C., with ld. Amicus Curie.
ORDER ON THE POINT OF SENTENCE
In the present case, the convict - Parmod Mandal has been convicted u/s 376 (2) (f) as well as 377 IPC.
SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 26 of 34 27 I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. Amicus Curie for for the convict.
2. It has been submitted by the Ld. Addl. PP that in the present case, convict raped her own minor daughter aged about 9/10 years and he also committed sodomy with her and in view of the serious nature of offence, the convict does not deserve any leniency and she prays that maximum sentence prescribed by the law may be imposed upon the convict.
3. On the other hand, the learned Amicus Curie for the convict submits that the convictParmod Mandal is a local resident of village Bhagalpur and his mother, father and bhabhi are residing in the village and his elder brother is doing a private job in West Bengal and there is no one to look after his old aged parents in the village. She further stated that convict is married and is having his wife and children to look after and that he is the only bread earner of the family. It is also submitted that convict belongs to a low strata of society and has been in custody since last about 14 months. It is lastly submitted that convict is not a previous convict and is not involved in any other case and she prays that a lenient view may be taken in this case and sentence for the period already undergone by him may be awarded and he be given a chance of rehabilitation by granting him benefit of probation.
SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 27 of 34 28
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. Amicus Curiae and have carefully gone through the record of the case.
5. In the present case, the convict Parmod Mandal has been convicted for committing the offence punishable u/s- 376 (2) (f) IPC as well as 377 IPC. It is relevant to mention here that the victim child in the present case was a very vulnerable victim, being a minor dependent daughter of the convict. She was aged about 9/10 years at the time of the incident and was of an age, when children repose blind faith and trust in their parents/father/mother and often look up on them as their idols. The child P is the eldest born daughter of convict and PW13 Smt. Asha and despite her tender age, she was sharing substantial household responsibilities with her parents, both of them were away for work for long hours. Despite the fact that child P was a pillar of strength for her parents, the convict, instead of showing his love and affection to the child, sexually abused her. He showed no respect for chastity of his daughter, despite the fact that he was her father and child trusted him for her security and protection. He gave her severe beatings and subjected her to incest - sexual assault, unnatural sexual assault and even oral sex.
6. In a case titled as State vs. Gurmit, (1996) 2 SCC 384, it has been held that a rapist not only violates the victim's privacy and personal integrity but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault. It is often destructive of the whole SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 28 of 34 29 personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not yet swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature.
7. In a case titled as 'Dinesh v. State (2006) 3 SCC 771', it has been observed by the Hon'ble Supreme court has observed that "sexual violence apart from being a dehumanising act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a crime against basis human right and is violative of the victim's basic human right.
8. In the present case, the testimony of the victim child clearly brings out her plight and agony. The acts of convict would have never been reported, had it not been for accidental, yet timely intervention, by NGO members at Primary Center, where child P was receiving primary education. It is noteworthy that due to the acts of the convict, the victim child is now living a life of an orphan in a Children Home and even her mother does not want to take her responsibility, probably due to the fact that she has two younger children to look after. The deplorable and unthinkable acts of convict does not call for any leniency and I hereby award life imprisonment to the convict Parmod Mandal for having SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 29 of 34 30 committed offences u/s 376 (2) (f) IPC. I further impose a fine of Rs. 10,000/ on convict, in default of payment of fine to further undergo simple imprisonment for six month, for the offence punishable, u/s 376 (2) (f) IPC. I also sentence convict Parmod Mandal to undergo rigorous imprisonment for a period of ten years for having committed offence u/s 377 IPC. I also impose a fine of Rs. 5,000/ on convict, in default of payment of fine to further undergo simple imprisonment for three months, for the offence punishable, u/s 377 IPC. Both the sentences shall run concurrently.
Benefit u/s 428 Cr.PC be also given to the convict.
9. Coming now to the aspect of compensation to the victim, who is a minor girl, the Hon'ble Apex Court has time and again observed that that 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. In a case titled as Bodhisattwa Gautam vs. Subhra Chakraborty, AIR 1996 SC 922, it has been held by Hon'ble Supreme Court 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.
10. Even otherwise, the concept of welfare and well being of children is SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 30 of 34 31 basic for any civilized society and this has a direct bearing on the state of health and well being of the entire community, its growth and development. It has been time and again emphasized in various legislations, international declarations as well as the judicial pronouncements that the Children are a "supremely important national asset" and the future well being of the nation depends on how its children grow and develop. In this regard reference is made to the following observations of Hon'ble Supreme Court in case of Laxmi Kant Pandey Vs. Union of India (1984) 2 SCC, 244, that :
"The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fullness of physical and vital energy and the utmost breath, depth and height of its emotional intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. Now obviously children need special protection because of their tender age and physique, mental immaturity and incapacity to look after themselves. That is why there is a growing realization in every part of the globe that children must be brought up in an atmosphere of love and affection and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire selfconfidence and selfrespect and a balance view of life with full appreciation and realization of the SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 31 of 34 32 role which they have to play in the nation building process without which the nation cannot develop and attain real prosperity because a large segment of the society would then be left out of the developmental process. In India this consciousness is reflected in the provisions enacted in the Constitution. Clause (3) of Article 15 enables the State to make special provisions inter alia for children and Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Clauses (e) and (f) of Article 39 provide that the State shall direct its policy towards securing inter alia that the tender age of children is not abused, that citizens are not forced by economic necessity to enter avocations unsuited to their age and strength and that children are given facility to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. These constitutional provisions reflect the great anxiety of the constitution makers to protect and safeguard the interest and welfare of children in the country. The Government of India has also in pursuance of these constitutional provisions evolved a National Policy for the SC No. 07/2013 State Vs. Pramod Mandal Page Nos. 32 of 34 33 Welfare of Children. This Policy starts with a goaloriented perambulatory introduction."
11. Therefore, in order to provide Restorative and Compensatory Justice to the victim i.e prosecutrix, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant compensation to the tune of Rs. 2,00,000/ (Rs. Two lacs only) to the victim child. At present, the victim child is staying at New Life Mercy Home, Laxmi Vihar, Burari and is under care and custody of the State through the concerned CWC. It is thus, directed that the said amount be deposited in the form of a F.D.R in the name of the victim child P, to be payable to her on attaining the age of majority/18 years, after which, the said amount shall be used for her welfare and rehabilitation, under the supervision of Welfare Officer, so nominated by the Government of NCT of Delhi.
12. 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. Another copy of this order be also sent to the Distt. Child Protection UnitI, Sewa Kutir Complex, Kingsway Camp, Delhi for information, coordination and filing of report of compliance.
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13. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 3437, Lawyer Chamber Block, High Court of Delhi, New Delhi.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Illa Rawat)
(Court on 28.11.2013) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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