Delhi District Court
State vs . Vijay @ Ajay on 18 December, 2012
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FIR No. 62/10
PS Sultanpuri
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
Sessions Case No. : 31/10
Unique ID No. : 02404R0132922010
State Vs. Vijay @ Ajay
S/o Sh. Mohan Lal
R/o H. No. A3/232, Sultanpuri,
Delhi
FIR No. : 62/10
Police Station : Sultanpuri
Under Sections : U/S 323/363/366/376/377/342/511 IPC
Date of committal to session Court : 02/06/2010
Date on which judgment reserved : 03/12/2012
Date of which judgment announced : 15/12/2012
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FIR No. 62/10
PS Sultanpuri
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: That on 02/03/2010 on receipt of DD No. 19A, PS Sultanpuri, SI K. S. Dogra alongwith Constable Ashok Kumar reached at H. No. A3/235, Sultanpuri, where the complainant Smt. Kavita alongwith her daughter/prosecutrix (named withheld being a case u/s 376 IPC) met them. PCR Van was also found present there. In the meantime, W/Constable Kalawati also reached there. Complainant Smt. Kavita W/o Late Sh. Jagroop Singh got recorded her statement which is to the effect that, she resides at the above mentioned address alongwith her family and do her household work. Her husband has expired two months back and she is having two sons and one daughter. Prosecutrix is her younger daughter (named withheld being a case u/s 376 IPC), aged about three years. Today at about 12:00 p.m. when she (Smt. Kavita) was sleeping in her house and her daughter/prosecutrix who was playing in the house of her neighbour Mohan Lal returned to her house weepingly. She asked her daughter the reason for her weeping, her daughter told her that uncle named Ajay had taken her into the upper room 2 of 55 3 FIR No. 62/10 PS Sultanpuri (upar wale kamre mei) and removed her underwear and attempted to insert his penis into her (loli lagane ki koshish ki) and attempted to commit rape upon her on which she (Smt. Kavita) dialed no. 100 and Police came. She alongwith prosecutrix were taken to SGM Hospital where medical examination of the prosecutrix was got conducted. She does not want any legal action. The statement has been heard and is correct. On the basis of the statement SI K. S. Dogra got registered the case u/s 376/511 IPC and the investigation was proceeded with. Prosecutrix alongwith her mother Smt. Kavita and W/Constable Kalawati was sent to SGM Hospital for medical examination and her (prosecutrix) medical examination was got conducted. The sealed pullindas with sample seal given by the Doctor after the medical examination of the prosecutrix were taken into Police possession and were deposited in Malkhana. NGO was also called at the spot and counselling of the prosecutrix was done by the Counsellor. Site plan was prepared. The statements of the witnesses were recorded. Accused was searched but he was not found present at his house. The father of the accused told that the age of accused Vijay @ Ajay is below 18 years but did not produce any document. On 03/03/2010, the record of date of birth of accused was obtained from Nagar Nigam Prathmik Vidhalya, QII, Mangol Puri, Delhi and his date of 3 of 55 4 FIR No. 62/10 PS Sultanpuri birth was found to be 10/12/1989.
On finding sufficient evidence against accused Vijay @ Ajay, he was arrested. His medical examination was got conducted and the sealed pullindas with sample seal given by the Doctor after his medical examination were taken into Police possession and were deposited in the Malkhana. Pointing out memo of the place of incident was prepared at the instance of the accused. Statement of the prosecutrix u/s 164 Cr.P.C. was got recorded thereafter, section 323/363/366/377/342 IPC were added in the case.
Upon completion of necessary further investigation challan was prepared for the offences u/s 323/363/366/376/377/342/511 IPC against accused Vijay @ Ajay and was sent to the Court for trial.
2. Since the offence u/s 376/511 IPC is exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after 4 of 55 5 FIR No. 62/10 PS Sultanpuri hearing on charge prima facie a case u/s 363/366 IPC, u/s 342/323/376/511 IPC r/w section 377/511 IPC against accused Vijay @ Ajay was made out. Charge was framed accordingly which was read over and explained to accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution has produced and examined 14 witnesses. PW1 Smt. Nazma Khatton, NGO, Nav Srishti Sansatha, PW2 Dr. Jyotsna, Sr. Gynae SGM Hospital, Delhi, PW3 The prosecutrix, PW4 Smt. Kavita, PW5 Ms. Sonali Gupta, Ld. Civil Judge, Tis Hazari Courts, Delhi, PW6 Dr. Ajay Kumar, CMO Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi, PW7 Surje, PW8 Ct. Kalawati, PW9 Dr. M. Das, CMO, SGM Hospital, Delhi, PW10 Retired SI K.S. Dogra, PW11 Retired ASI Shakru Deen, PW12 HC Lalan Rai, PW13 Constable Ashok Kumar and PW14 HC Krishan Lal.
5. In brief the witnessography of the prosecution witnesses is as under: PW1 Smt. Nazma Khatton is the Counsellor associated with NGO Nav Srishti Sandadtha, who counselled the prosecutrix.
5 of 55 6 FIR No. 62/10 PS Sultanpuri PW2 Dr. Jyotsna, Sr. Gynae, SGM Hospital, Delhi who gynaecologically examined the prosecutrix and proved her examination at PointA on the MLC Ex. PW2/A signed by her at PointB. PW3 The prosecutrix, is the victim girl who deposed regarding the incident and proved her statement u/s 164 Cr.P.C Ex. PW3/A bearing her thumb mark at point 'A'.
PW4 Smt. Kavita, is the mother of the prosecutrix who proved her statement Ext. PW4/A signed by her at point 'A' on the basis of which FIR was registered.
PW5 Ms. Sonali Gupta, Ld. Civil Judge, Tis Hazari Courts, Delhi who recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex. PW3/A and proved the certificate of correctness of proceedings Ex. PW5/B and the satisfaction of Court regarding voluntariness on the part of prosecutrix Ex. PW5/C and also proved the application moved by the IO for obtaining the copy of the proceedings Ex. PW5/C. 6 of 55 7 FIR No. 62/10 PS Sultanpuri PW6 Dr. Ajay Kumar, CMO, Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi who examined the prosecutrix and proved her MLC Ex. PW6/A signed by him at point 'A' and deposed that after examination he referred the patient for gynae examination.
PW7 Surje is the uncle (Phufa) of the prosecutrix who deposed regarding the incident as was disclosed to him by the prosecutrix shortly after the incident and proved his signature at point 'B' on the statement of Smt. Kavita Ext. PW4/A. PW8 Ct. Kalawati who joined investigation with IO PW10 SI K. S. Dogra after the medical examination of the prosecutrix at S.G.M. Hospital doctor had given two sealed pullindas sealed with the seal of SGMH GNCT of Delhi alongwith sample seal which were seized by IO vide seizure memo Ex. PW8/A signed by her at Point 'A'.
PW9 Dr. M.Das, CMO, SGM Hospital, Delhi, who deposed that on 03/03/2010 at about 5:25 p.m. he examined patient Vijay @ Ajay S/o 7 of 55 8 FIR No. 62/10 PS Sultanpuri Mohan Lal and further deposed that after examination he was of the opinion that there is nothing to suggest that the patient Vijay is incapable of performing sexual intercourse and proved the MLC Ext. PW9/A signed by him at point 'A'.
PW10 Retired SI K. S. Dogra is the Investigating Officer (IO) of the case, who deposed on the investigational aspects and besides proving the other memos also proved the attested copy of DD No. 17A Ext. PW10/A, seizure memo of two sealed pullindas and a sample seal of the hospital given by the concerned doctor to Constable Kalawati which she handed over to him Ext. PW8/A, his endorsement Ex. PW10/B on the statement of Kavita Ex. PW4/A, site plan Ext. PW10/C, application for obtaining date of birth certificate (Ex. PX) of accused Vijay @ Ajay Ex. PW10/D, arrest memo of accused Vijay @ Ajay Ex. PW10/E, his personal search memo Ex. PW10/F, seizure memo of the two pullinda and a sample seal given by the doctor of SGM Hospital after the medical examination of accused Vijay @ Ajay Ex. PW10/G, pointing out memo of the place of incident by accused Vijay @ Ajay Ext. PW10/H and FSL report Ex. PY & Ext. PY1.
8 of 55 9 FIR No. 62/10 PS Sultanpuri PW11 Retired ASI Shakru Deen is the Duty Officer, who proved the copy of the FIR Ex. PW11/A and his endorsement on the rukka Ex. PW11/B. PW12 HC Lalan Rai is the Incharge PCR Van on Libra 43 who deposed that on 02/03/2010 at about 12:18 p.m. he received an information that "one boy had committed rape with my daughter at A3/235, Sultan Puri, Mangal Bazar Chowk" and after receiving the information he reached at the above mentioned address where he met Smt. Kavita and she told him that one Ajay who is residing in neighbourhood had committed rape with her daughter prosecutrix (name withheld) aged around 3 year. In the meantime, SI K. S. Dogra (PW10) also reached there. He (PW12) recorded the information at page no. 17 of call book register of Libra 43 and proved the copy of relevant entry Ex. PW12/A. PW13 - Ashok Kumar who joined the investigation with the IO SI K. S. Dogra (PW10) and deposed on the investigational aspects and also proved the memos already referred to in the evidence of PW8 Constable Kalawati and PW10 - SI K. S. Dogra (IO).
9 of 55 10 FIR No. 62/10 PS Sultanpuri PW14 - HC Krishan Lal is the MHC(M) who proved the relevant entries of the register no. 19 Ex. PW14/A and Ex. PW14/B and also proved the copy of road certificate Ex. PW14/C and copy of the acknowledgment given by the FSL Ex. PW14/D. The testimonies of the prosecution witnesses shall be dealt with in detail during the course of the appreciation of the evidence.
6. Statement of accused Vijay @ Ajay was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication. He opted to lead defence evidence and in his defence has examined two witnesses namely DW1 Sonia and DW2 Ritu.
DW1 Sonia is the sister of accused Vijay @ Ajay who deposed that on 02/03/2012 she was present at her father's house i.e. A3/232, Sultan Puri, Delhi and at that time her husband, her mother, brother, bhabhi, her son Shivam and her nephew Kale were also present in the house. At that time, no female child had come to their house to play with children of hers at their house. The prosecutrix (name withheld) daughter of Kavita had come to 10 of 55 11 FIR No. 62/10 PS Sultanpuri their house. Accused Vijay @ Ajay was also present in the house. Except her bhabhi who was present at the first floor they all were present at the ground floor. Her brother Vijay @ Ajay was having friendship with Bhua of prosecutrix (name withheld) and he was caught by Kavita (mother of prosecutrix) as they were sitting together in the park. Kavita alongwith her fatherinlaw came to her father's house and threatened that either make Vijay @ Ajay understanding otherwise they would do anything to the accused. Kavita had falsely implicated her brother Vijay @ Ajay in this case.
DW2 - Ritu is the sisterinlaw (Bhabhi) of accused Vijay @ Ajay who deposed that on 02/03/2010 she was present at her house i.e. A3/232, Sultan Puri, Delhi and at that time her mother, brother, Sonia (her sisterinlaw), her husband, Shivam son of her sisterinlaw and her son Kale were also present in the house. Prosecutrix (name withheld) daughter of Kavita had come to their house on that day and accused Vijay @ Ajay was also present in the house. They all were present at the ground floor. Her brotherinlaw Vijay @ Ajay was having friendship with Bhua of prosecutrix (name withheld) and he was caught by Kavita (mother of prosecutrix) as they were sitting together in the park. Kavita alongwith her fatherinlaw came to 11 of 55 12 FIR No. 62/10 PS Sultanpuri her father's house and threatened that either make Vijay @ Ajay understanding otherwise they would do anything to the accused. Kavita had falsely implicated her brotherinlaw (Dever) Vijay @ Ajay in this case.
The testimonies of the defence witnesses shall be dealt with in detail during the course of the appreciation of the evidence.
7. Ld. Counsel for the accused submitted that the main point which has come out from the evidence of the prosecution is that the case of the prosecution is attempt to commit rape, however, the statement of even a single witness is not corroborated with the statements of other witnesses. If we take the statement of PW1, Counselor NGO who has gone far beyond in her statement before the Court what was not stated by her during investigation to the Police. It shows that she came to the Court with a particular mindset to prove the accused guilty irrespective of the fact that she may have to go to any extent including deposing falsely against the accused. The prosecutrix is a girl of tender years i.e. 3/4 years and it is very serious to rely upon the statement of the child. Moreover, she admitted that she is deposing against the accused at the instance of her mother. The main witness 12 of 55 13 FIR No. 62/10 PS Sultanpuri is the mother of the prosecutrix who during her statement has stated that her daughter came weeping when she was sleeping and told that the neighbour Ajay @ Vijay took her in the room upstairs, removed her under garments and tried to commit rape upon her and also tried to touch his male organ on her private part whereas in her statement before the Court she has said that her daughter came crying and informed her mother with regard to the alleged incident and she alongwith her daughter went to the father of the Shubham whose name she does not know. This piece of evidence was not there during the investigation and if her daughter has named the accused to be the person who has attempted to commit rape upon her then what for she had gone to the house of father of Shubham to ask as to who has done such thing with her daughter. She further admitted that she again visited to one more house and thereafter to the house of the accused. Her statement is full of improvements and contradictions. None of the facts were stated during the investigation to the Police and she has improved her statement before the Court. Her earlier statement in writing was put to her during cross examination and the things stated by her in chief were not found in her earlier examination in writing.
Ld. Counsel for the accused further submitted that it is also very interesting that all the investigating witnesses including IO, witness from 13 of 55 14 FIR No. 62/10 PS Sultanpuri PCR, Constable Ashok and Constable Kalawati have categorically stated that they were informed by the mother of the prosecutrix that rape had been committed on her daughter whereas it is not the case even of the prosecutrix or her mother and this piece of statement is not supported by the medical examination as well.
Ld. Counsel for the accused further submitted that the medical examination has strong bearing on this case as the doctor has not observed any injury marks, no struggle marks on the person of the prosecutrix. Her hymen was intact, Labia normal, no injury, no bleeding etc. whereas, it is stated by the prosecutrix as well as her mother that accused gave a slap beating to the prosecutrix then there should have been some mark of injury on the person of the prosecutrix and there is no time gap in the incident alleged as well as the medical examination. It is also pertinent to mention here that even the investigation is not carried out properly. Some of the witnesses say that even the prosecutrix was directly taken to the hospital from her house whereas the Counselor Nazma Khatoon, PW1 has stated that she counseled the prosecutrix in the Police Station and from there she was taken to hospital for medical examination.
14 of 55 15 FIR No. 62/10 PS Sultanpuri Ld. Counsel for accused has further submitted that the IO has admitted that the investigation was conducted prior to registration of FIR and later on the number of FIR filled in the blank left. This is the manner the Police investigates such a serious offence and brings out so called truth before the Court. IO SI Dogra, Lady Constable Kalawati, Constable Ashok and HC Lalan Rai have categorically stated that they were informed by the mother of the prosecutrix that her daughter was raped by the accused whereas, nowhere the mother of the prosecutrix has stated in her statement and there is no allegations of rape at all. There is also one more important aspect of this matter that the prosecutrix was examined by Ld. MM u/s 164 Cr.P.C. where she has said that the Mama of Shubham took her inside the house, removed her under garments and touched his male organ on her private part at the back and when she started crying he gave a slap to her and she came back to her house. The Ld. MM who recorded the statement of prosecutrix u/s 164 Cr.P.C. was asked in crossexamination that whether she ensured that the prosecutrix was not at all under pressure and whatever recorded was the account as given by the prosecutrix, to that the Ld. MM has said Yes. Ld. Counsel for the accused further submitted that the IO who took the witness for recording the statement u/s 164 Cr.P.C. had gone one more 15 of 55 16 FIR No. 62/10 PS Sultanpuri step and after recording her statement u/s 164 Cr.P.C. recorded one more statement of the prosecutrix to the effect that she got frightened before the Ld. Judge for that reason she could not said the complete truth to the Ld. Magistrate. Here a very simple question arises that when the IO was not inside the room where the statement of the prosecutrix was being recorded then how come he came to know what is deposed by the prosecutrix that too when she is girl of a very tender years i.e. 3/4 years of age and what made IO to record statement of prosecutrix again after her statement u/s 164 Cr.P.C. It shows that by any means the IO was trying to prove the accused guilty of the offence in this case. What was the reason with the IO to believe that the statement made by the prosecutrix before the Ld. MM was influenced by fear. Secondly, the IO has not taken the witness again to the Ld. MM for explaining that she could not state the true facts out of fear. In fact the recording of statement by the IO strongly indicated that he was bent upon to prove the guilt of the accused by any means.
Ld. Counsel for accused further submitted that in this case there is no cogent, legal and consistent evidence to prove the guilt of the accused. First of all the entire case based on the statement of a child witness who is of a very tender age i.e. 3/4 years and the possibility that she was tutored by her 16 of 55 17 FIR No. 62/10 PS Sultanpuri mother cannot be ruled out. Moreover, she has admitted this fact before this Court.
Ld. Counsel for accused referred to the cases and reported as Samay Singh Vs. State 1998(3) AD (Delhi)721 and Aman Kumar and Anr. Vs. State of Haryana 2004 CRL. L. J. 1399 (SC). Ld. Counsel for accused prayed for the acquittal of the accused on the charge levelled against him.
8. While the Ld. Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and further submitted that the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Sh. Anil Kumar Gupta, Ld. Addl. PP for the State and Sh. Bhupesh Saini, Ld. Counsel for the accused and have also carefully perused the entire record.
10. The charge for the offences under sections 363/366 IPC, 17 of 55 18 FIR No. 62/10 PS Sultanpuri 342/323/376/511 IPC r/w section 377/511 IPC against the accused Vijay is that on 02/03/2010 at about 12:00 noon, he had kidnapped the prosecutrix (a minor girl aged about 3 years) from her house no. A3/235, Sultan Puri, Delhi within jurisdiction of PS - Sultan Puri out of lawful guardianship of her parents without their consent and he kidnapped her with intention or knowledge that she may be forced to illicit intercourse with him and further that he had also wrongfully confined her in a room and attempted to commit rape as well as sodomy upon her person and voluntarily also caused injuries on her person on her protest.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW4 Smt. Kavita, mother of PW3 Prosecutrix in her 18 of 55 19 FIR No. 62/10 PS Sultanpuri examinationinchief has deposed that at the time of incident prosecutrix was about 31/2 years of age.
During her statement recorded u/s 164 Cr.P.C (Ex. PW3/A) PW3 Prosecutrix has stated her age as about 31/2 years. Both PW4 Smt. Kavita and PW3 Prosecutrix were incisively crossexamined at length and nothing has been brought out so as to impeach their creditworthiness. They have withstood the test of crossexamination and their testimonies are consistent throughout.
There is also nothing on the record either placed or led or suggested to by the accused to the said witnesses that the PW3 Prosecutrix was not aged about 31/2 years at the time of the alleged incident.
In the circumstances, it stands established on the record that PW3 prosecutrix was aged about 31/2 years at the time of incident.
MEDICAL EVIDENCE:
13. PW2 Dr. Jyotsana, Senior Gynae, SGM Hospital, Delhi, in her 19 of 55 20 FIR No. 62/10 PS Sultanpuri examination in chief has deposed that the prosecutrix was referred by the CMO for gynaecological examination. She examined the patient on 02/03/2010 and observed no injury or struggle mark over the body. No blood/seminal stains over the body. On local examination no signs of struggle, hymen intact, libia normal, no tear, no injury, no bleeding. She took samples of hair, nail clipping, perianal swab and handed over the same to the IO and her examination is at PointA on the MLC Ex. PW2/A signed by her at PointB. The patient was about three years of age.
There is nothing in her crossexamination so as to impeach her creditworthiness.
In the circumstances from the perusal of the gynaecological examination at PointA on MLC Ext. PW2/A it is clearly indicated that PW2 Dr. Jyotsana on local examination of the prosecutrix found no signs of struggle, hymen intact, labia normal, no tear, no injury, no bleeding and no seminal/no blood stains over the body.
BIOLOGICAL AND SEROLOGICAL EVIDENCE: 20 of 55 21 FIR No. 62/10 PS Sultanpuri
14. As per FSL report Ex. PY, the description of articles contained in parcel and result of analysis reads as under: DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibits '1a' & '1b'.
Exhibit '1a' : One woolen pyjama.
Exhibit '1b' : One Tshirt.
Parcel '2' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibits '2a', 2b', 2c', 2d' & 2e'. Exhibit '2a' : Nail clippings kept in an envelope labelled as 'Rt Hand Cutting Nail'.
Exhibit '2b' : Nail clippings kept in an envelope labelled as 'Lt Hand Cutting Nail'.
Exhibit '2c' : Cotton wool swab on a plastic stick kept in a test tube labelled as 'Vaginal Smear'.
Exhibit '2d' : Cotton wool swab on a plastic stick kept in a test tube labelled as 'Rectal Swab'.
21 of 55 22 FIR No. 62/10 PS Sultanpuri Exhibit '2e' : One empty labelled as 'Hair Comb' Nothing found inside the envelope.
Parcel '3' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibit '3'.
Exhibit '3' : Gauze cloth piece having dark brown stains described as 'Blood sample of accused'.
RESULT OF ANALYSIS
1. Semen could not be detected on exhibits '1a','1b','2c' & '2d',
2. Blood was detected on exhibit '3'.
3. Skin could not be detected on exhibits '2a' & '2b'.
4. Report of serological analysis in original is attached herewith.
As per FSL report Ext. PY1, the result of serological analysis reads as: Exhibits Species of ABO Origin Grouping/Remarks '3' Gauze cloth piece Human 'B' Group 22 of 55 23 FIR No. 62/10 PS Sultanpuri On careful perusal and analysis of the biological and serological evidence, semen could not be detected on Exhibits '1a', '1b', '2c' & '2d', skin could not be detected on Exhibits '2a' & '2b'. However, blood was detected on Exhibit '3' (gauze cloth piece), Exhibit '3' is the gauze cloth piece described as 'blood sample of accused' which as per the serological report Ext. PY1 is of human species and of 'B' Group.
On a conjoint reading of the medical evidence, the gynaecological examination at PointA of PW2 Dr. Jyotsana on the MLC of prosecutrix Ext. PW2/A together with the MLC of accused Vijay @ Ajay Ext. PW9/A, in the light of biological and serological evidence detailed hereinabove, it clearly rules out any sexual intercourse and carnal intercourse activity.
In the circumstances, it stands clearly established on the record that no recent sexual intercourse and carnal intercourse activity has taken place in the instant case.
VIRALITY OF ACCUSED VIJAY @ AJAY: 23 of 55 24 FIR No. 62/10 PS Sultanpuri
15. PW9 Dr. M. Dass, CMO, SGM Hospital, Delhi in his examinationinchief has deposed that on 03.03.2010 at about 5.25 PM he examined Vijay @ Ajay S/o Mohan Lal brought by the police for the medical examination with the history of sexual assault. He had examined the sexual character like pubic hair, testicles, penis, moustache, prepuce. After examination he was of the opinion that there is nothing to suggest that the patient Vijay is incapable of performing sexual intercourse and proved the MLC Ext. PW9/A signed by him at PointA. Despite grant of opportunity PW9 Dr. M. Dass was not cross examined on behalf of the accused.
In the circumstances, it stands established on the record that the accused Vijay was not incapable of performing sexual intercourse.
16. Now let the testimony of PW3 Prosecutrix, PW4 - Kavita, mother of the prosecutrix and PW7 - Surje (Phufa) of the prosecutrix be perused and analysed.
24 of 55 25 FIR No. 62/10 PS Sultanpuri The statement of PW3 Prosecutrix was recorded after putting a number of preliminary questions to her and after being satisfied about her competency and keeping in view her tender age oath was not administered to her.
PW3 prosecutrix in her examinationinchief has deposed that Shubham was residing in their Gali and she used to visit his house for playing purpose. Shubham was around one year age and his house is near to her house. When she was playing in the house of Shubham his elder brother took her in a room at the first floor and he has also put off her underwear and touched his penis over her vagina. The name of the elder brother is Ajay who is present in the court. She started weeping and he had given slap to her and accused told her to go to her house. She further deposed that she narrated the above facts to her mother, her mother called the Police, Police came to their house and investigated the matter. She further deposed that her statement was recorded u/s 164 Cr.P.C by the concerned MM and proved the same as Ext. PW3/A bearing her thumb mark at PointA. She further deposed that the accused is the Chaha of Shubham.
25 of 55 26 FIR No. 62/10 PS Sultanpuri Inspite of incisive crossexamination of PW3 Prosecutrix nothing material has been brought out so as to impeach her creditworthiness. In the witness box she has withstood the test of crossexamination and her testimony is consistent throughout.
Her testimony is natural, clear, cogent, convincing, trustworthy and inspires confidence. There is nothing in her statement to suggest that she had an animus against the accused to falsely implicate him in this case. Her testimony is also found to be in consonance with her statement recorded u/s 164 Cr.P.C. Ex. PW3/A. During her crossexamination PW3 prosecutrix has negated the suggestions that at that time mother, bhabhi, sister, brother and father of the accused (were) in the house and accused was sitting with them or that accused did not go upstairs or that at the instance of her mother she has falsely named the accused in this case or that she is deposing falsely.
The testimony of PW3 Prosecutrix is also corroborated by the 26 of 55 27 FIR No. 62/10 PS Sultanpuri testimony of PW4 Kavita, her mother and PW7 Surje (Phufa) of the prosecutrix, to whom prosecutrix had disclosed the facts relating to the crime shortly after the incident being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
Nothing could be elicited during the crossexamination of PW4 Kavita and PW7 Surje so as to impeach their creditworthiness. Their testimonies are natural, clear, reliable and inspire confidence. PW4 Kavita during her crossexamination admitted it to be correct that Sarika is her Nand (husband's sister). She negated the suggestions that long ago prior to the incident in question she had apprehended her Nand Sarika with accused Vijay @ Ajay in the MCD Park, Jalebi Chowk, Sultanpuri and has also slapped him (accused) and also threatened accused that she will see him (dekh laungi) or that in order to take the revenge of above such apprehension of her nand Sarika with accused Vijay @ Ajay in the MCD park she has falsely implicated the accused Vijay @ Ajay in this case or that nothing was done by accused with her daughter (prosecutix) or that nothing was narrated to her by her daughter on 02.03.2010 or that she is deposing falsely.
During her crossexamination PW4 Kavita was put a question 27 of 55 28 FIR No. 62/10 PS Sultanpuri which she had replied and the same is reproduced and reads as under: "Q. During the period of incident in the house of accused, the accused used to live in the ground floor with his family and the first and second floor were under tenancy?
Ans. It is wrong. No portion of the house of accused was under tenancy at that time."
PW7 Surje, phufa of the prosecutrix, during his cross examination negated the suggestions that he was not present on 02/03/2010 at the house of Kavita, mother of the prosecutrix or that he had come subsequent to 02/03/2010 and had signed at PointB on Ext. PW4/A or that he is deposing falsely.
17. While analysing the testimonies of PW3 Prosecutrix, PW4 Kavita and PW7 Surje as discussed here inabove, inspite of incisive cross examination nothing has come out in the statement of PW3 Prosecutrix, PW4 Kavita and PW7 Surje which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestions put by the defence to PW4 Kavita regarding long ago prior to the incident in question 28 of 55 29 FIR No. 62/10 PS Sultanpuri the apprehension of her nand Sarika with accused in the MCD Park, Jalebi Chowk, Sultanpuri and of her (PW4) slapping the accused and also threatening the accused to see him and in order to take the revenge of such apprehension of her and with accused Vijay @ Ajay in the MCD Park and of his false implication in the present case, have been put to PW4 Kavita but the same have not at all being made probable much established by any cogent evidence. Moreover, the suggestions so put are totally vague and unspecified and pertains to the period long ago prior to the incident in question.
However, a futile attempt has been made by the accused to save his skin from clutches of law, by way of examination of DW1 Sonia, his sister and DW2 Ritu, his sisterinlaw (Bhabhi).
During her examinationinchief DW1 Sonia has deposed that "My brother Vijay @ Ajay was having friendship with Bhua of prosecutrix (name withheld) and he was caught by Kavita as they were sitting together in the Park. Kavita, alongwith her fatherinlaw, came to my father's house and threatened that either make Vijay @ Ajay understanding otherwise they would do anything to the accused."
During her crossexamination by Ld. Addl. PP, DW1 Sonia has deposed that "I do not remember the date and time when Kavita and her fatherinlaw came to our house and threatened to do something against the accused, if the accused did not mend his ways."
29 of 55 30 FIR No. 62/10 PS Sultanpuri During her examinationinchief DW2 Ritu has deposed that "My brotherinlaw Vijay @ Ajay was having friendship with Bhua of prosecutrix (name withheld) and he was caught by Kavita as they were sitting together in the Park. Kavita, alongwith her fatherinlaw, came to my father's house and threatened that either make Vijay @ Ajay understanding otherwise they would do anything to the accused."
During her crossexamination by Ld. Addl. PP, DW2 Ritu has deposed that "I do not remember the date and time when Kavita and her fatherinlaw came to our house and threatened to do something against the accused, if the accused did not mend his ways."
The said parts of crossexamination of the said defence witnesses have knocked out the bottom of the defence of the accused, being vague and unspecified. It also clearly indicates that they are the procured witnesses. Their testimonies do not inspire confidence.
18. It is also to be noticed the opinion expressed by Modi in Medical jurisprudence and toxicology (Twenty First Edition) at Page 369 which inter alia reads as : "Rape, is crime and not a medical condition. Rape is not a diagnosis to be made by the medical officer. The only statement that can be made by the medical officer is that there is evidence of recent sexual 30 of 55 31 FIR No. 62/10 PS Sultanpuri activity. Whether the rape has occurred or not is a legal conclusion and not a medical one".
19. Analysing the testimony of PW3 Prosecutrix in the light of the medical, biological and serological evidence, MLC of prosecutrix Ext. PW6/A, gynaecological examination of the prosecutrix at PointA on the MLC Ext. PW2/A as well as the MLC of accused Vijay @ Ajay Ext. PW9/A as discussed hereinabove any recent sexual intercourse and carnal intercourse activity either by way of complete penetration of penis or partial penetration within the libia majora or the vulva or pudenda as well as in the anal region is completely ruled out. However, the act of accused Vijay @ Ajay does sufficiently indicate an attempt to commit rape and the carnal intercourse against the order of nature upon the prosecutrix.
20. Ld. Counsel for the accused submitted that PW1 - Smt. Nazma Khatoon has gone far beyond in her statement before the Court what was not stated by her during investigation to the Police. It shows that she came to the Court with a particular mindset to prove the accused guilty irrespective of the fact that she may have to go to any extent including deposing falsely against 31 of 55 32 FIR No. 62/10 PS Sultanpuri the accused.
I have carefully perused the record.
Undisputably, PW1 - Smt. Nazma Khatoon was a counsellor who was joined in the proceedings involving the sexual assault. Any exaggeration made by her does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
21. Ld. Counsel for the accused submitted that the prosecutrix is a girl of tender years i.e. 3/4 years and it is very serious to rely upon the statement of the child. Moreover, she admitted that she is deposing against the accused at the instance of her mother.
I have carefully perused and analysed the evidence on record. It appears that the Ld. Counsel for the accused has misread the testimony (crossexamination) of PW3 prosecutrix and has twisted the words out of context while making the said submission.
It needs no reiteration that the testimony of a witness is to be read in its totality.
"It is settled principle of law that while appreciating evidence of a witness, the approach must be whether the evidence of the witness read as a 32 of 55 33 FIR No. 62/10 PS Sultanpuri whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks, and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by talking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the roof of the matter, would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trail court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. (Reference Mahmood vs State 1991 RAJDHANI LAW REPORTER 287).
There is nothing on the record to show that PW3 prosecutrix was not capable to reveal the incident and identify the accused. The deposition of PW3 prosecutrix with regard to the incidence is firm and 33 of 55 34 FIR No. 62/10 PS Sultanpuri convincing. Her testimony is natural, clear, cogent, convincing, trustworthy and inspires confidence. In the witness box she has withstood the rigors of crossexamination and her testimony is consistent throughout.
It is pertinent to reproduce the crossexamination of PW3 prosecutrix recorded on 01/10/2011, which reads as under : "I almost used to go daily to the house of Shubham to play. There used to be other child namely Kalia, who would often come to play in house of Shubham. Now a days also I go to the house of Shubham to play. Accused did not visit our house. My mother never refused me to visit the house of Shubham. I generally obey my mother. It is wrong to suggest that I had been tutored by my mother. Vol. I have told about the true occurrence. Q.1. Whether your mother has asked you to depose against the accused in the Court?
A. Yes, my mother asked me to depose in the Court. Vol. Accused had done the said act with me.
At this stage Ld. Defence counsel submits that it should be recorded that her mother had tutored her to depose before the Court, however, Ld. APP submits that witness has time and again stated that accused has done the said act with her.
Q. 2. Whether your mother has told you the name the accused, who has done the act of putting his penis over your vagina ? Objected to by the Ld. APP. as the witness has categorically stated about it earlier. Considered Question disallowed as witness has already answered it.
The Ld. Defence counsel emphasised that witness must answer 34 of 55 35 FIR No. 62/10 PS Sultanpuri the said question. Ld. APP submits that said question has already been answered by the witness earlier, in the earlier question that her mother has asked her to depose in the Court, hence, the question is repetitive in nature.
At this stage the accused has also started shouting in the Court that he is innocent. He is asked to keep a low profile as evidence is going on and it is not the stage of ascertaining his guilt or innocence. Ld. Counsel has emphasized that till the Court will not record that mother of child has tutored her to depose against the accused, he will not proceed further for cross examination. He has stated that witness has answered that her mother has tutored her, however, from the version of the prosecutrix it is shown that she has time and again stated that her mother has not tutored her. Now Ld. Defence Counsel puts question to the witness. Q.3 Whether the accused Vijay had ever entered into any quarrel with your mother?
A. No. Q. 4 Is it correct that on the said day you played with other children at ground floor of the house of the Shubham and went back from their only? A. "Uppar lagaya tha"
Court Question : Kisne lagaya tha?
Ans. Ajay ne lagaya tha.
Court Question : Kya lagaya tha?
Ans. Apni lulli.
Qus 5 by Ld. Defence Counsel: Whether Shubham and Kalia had also gone upstairs at that time with you?
Ans. Yes.
Qus. 6 If on the said day, mother, bhabhi, sister, brother, father of the accused were present in the said house?
Ans. No. Qus. 7 I put it to you that at the instance of your mother you have falsely 35 of 55 36 FIR No. 62/10 PS Sultanpuri name the accused?
Ans. No. It is wrong to suggest that at that time mother, bhabi, sister, brother and father of the accused in the house and accused was sitting with them. It is wrong to suggest that accused did not go upstairs. It is wrong to suggest that at the instance of your mother you have falsely name the accused in this case.
It is wrong to suggest that I am deposing falsely." From the aforesaid narration, at the cost of repetition, it is clearly indicated that her (PW3 - Prosecutrix) testimony is natural, clear, cogent, convincing, trustworthy and inspires confidence and she is not a tutored witness. To be more precise, the version of the said witness on the core spectrum of the crime has remained intact.
In State of U.P. Vs. Krishna Master 2010 VIII AD (S.C.) 401 = AIR 2010 SC 3071, the Hon'ble Supreme Court held : "There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts of 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 36 of 55 37 FIR No. 62/10 PS Sultanpuri 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"
In "Nivrutti Pandurang Kokate Vs. State of Maharashtra"
AIR 2008 SC 1460, the Hon'ble Supreme Court dealing with the child witness has observed as under : (SCC pp. 56768, para 10) "10. ... 7. ... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial judge who notices his manners, his apparent possession or lack of intelligence, and the said judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of makebelieve. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness"
In "State of H.P. Vs. Suresh Kumar @ DC" 2010 AD (S.C.) 573 = (2009) 8 SCALE 628, the prosecutrix was 56 years old. The accused 37 of 55 38 FIR No. 62/10 PS Sultanpuri therein was resident of the same village. The observations of the Hon'ble Supreme Court in paragraphs 12 & 13 are relevant to note : "12. There is another vital submission made by the respondentaccused which is required to be dealt with at this stage. It was submitted that both the child witnesses, namely, PW3 and PW4, the prosecutrix and her sister respectively, should not and could not have been believed due to the following two reasons. Firstly, both PW3 as well as PW4 was child at the time of commission of the said offence and secondly, they were tutored by their parents and Police.
13. We have considered the said submission, but we find the same to be unacceptable. The depositions of these two witnesses, i.e. PW3 & PW4 with regard to the occurrence of such incidence are firm and convincing. We find no reason as to why a child of her age i.e. prosecutrix would get an innocent person named for an offence which was undisputable committed on her. It is settled position of law that the conviction for offence under Section 376 on the sole testimony of a rape victim if the evidence of the prosecutrix is found to be credible and convincing."This Court observed as follows in the case 'State of Rajasthan Vs. MANU/SC/0416/2002 : Om Prakash 2002 38 of 55 39 FIR No. 62/10 PS Sultanpuri CriLJ2951' :
13. The conviction for offence under Section 376 IPC can be based on the sole testimony of a rape victim is a wellsettled proposition. In 'State of Punjab Vs. Gurmit Singh', MANU/SC/0138/1997, referring to 'State of Maharashtra Vs. Chandraprakash Kewalchand Jain', MANU/SC/0122/1990, this Court held that it must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. It has also been observed in the said decision by Dr. Justice A. S. Anand (as His Lordship then was), speaking for the Court that the inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim, in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her 39 of 55 40 FIR No. 62/10 PS Sultanpuri statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury."
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
22. Ld. Counsel for the accused submitted that the main witness is the mother of the prosecutrix who during her statement has stated that her daughter came weeping when she was sleeping and told that the neighbour Ajay @ Vijay took her in the room upstairs, removed her under garments and tried to commit rape upon her and also tried to touch his male organ on her private part whereas in her statement before the Court she has said that her daughter came crying and informed her mother with regard to the alleged incident and she alongwith her daughter went to the father of the Shubham whose name she does not know. This piece of evidence was not there during the investigation and if her daughter has named the accused to be the person who has attempted to commit rape upon her then what for she had gone to the house of father of Shubham to ask as to who has done such thing with her daughter. She further admitted that she again visited to one more house and 40 of 55 41 FIR No. 62/10 PS Sultanpuri thereafter to the house of the accused. Her statement is full of improvements and contradictions. None of the facts were stated during the investigation to the Police and she has improved her statement before the Court. Her earlier statement in writing was put to her during cross examination and the things stated by her in chief were not found in her earlier examination in writing.
I have carefully perused and analysed the evidence on record. At the cost of repetition, the testimony of PW3 prosecutrix is also corroborated by the testimony of PW4 - Kavita, her mother and PW7 - Surje, Phufa of the prosecutrix to whom prosecutrix had disclosed the facts relating to the crime shortly after the incident being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.
Inspite of incisive crossexamination nothing material could be elicited in the crossexamination of PW4 - Kavita so as to impeach her creditworthiness. There is nothing in her statement to suggest that she had an animus against the accused to falsely implicate him in this case. Her testimony is natural, cogent and convincing. Minor contradictions are merely the inconsistencies on the fringe without materially affecting the credibility of the evidence.
It is a settled principle of law that every improvement or 41 of 55 42 FIR No. 62/10 PS Sultanpuri variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).
The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made on the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this 42 of 55 43 FIR No. 62/10 PS Sultanpuri Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].
23. Ld. Counsel for the accused submitted that the prosecutrix was examined by Ld. MM u/s 164 Cr.P.C. where she has said that the Mama of Shubham took her inside the house, removed her under garments and touched his male organ on her private part at the back and when she started crying he gave a slap to her and she came back to her house. The Ld. MM who recorded the statement of prosecutrix u/s 164 Cr.P.C. was asked in crossexamination that whether she ensured that the prosecutrix was not at all under pressure and whatever recorded was the account as given by the prosecutrix, to that the Ld. MM has said Yes. Ld. Counsel for the accused further submitted that the IO who took the witness for recording the statement u/s 164 Cr.P.C. had gone one more step and after recording her statement u/s 164 Cr.P.C. recorded one more statement of the prosecutrix to the effect that she got frightened before the Ld. Judge for that reason she could not said the complete truth to the Ld. Magistrate. Here a very simple 43 of 55 44 FIR No. 62/10 PS Sultanpuri question arises that when the IO was not inside the room where the statement of the prosecutrix was being recorded then how come he came to know what is deposed by the prosecutrix that too when she is girl of a very tender years i.e. 3/4 years of age and what made IO to record statement of prosecutrix again after her statement u/s 164 Cr.P.C.
I have carefully perused and analysed the evidence on record. The testimony of PW5 Ms. Sunali Gupta, Ld. MM who recorded the statement u/s 164 Cr.P.C. Ex. PW3/A, of the prosecutrix as well as that of PW10 - SI K. S. Dogra (IO) are on the record.
It appears that Ld. Counsel for accused either had not read or misread their testimonies.
PW5 - Ms. Sunali Gupta, Ld. MM in her examination in chief has specifically deposed that "The IO also moved an application before me for copy of proceedings which is Ex. PW5/C which I allowed as per rules which bears my signatures at point 'A'".
Further, Ld. Counsel for the accused has not indicated any statement of PW3 prosecutrix proved on record regarding which submission made, of its recording by the IO after her statement u/s 164 Cr.P.C.
In the circumstances, there is no substance in the plea so raised 44 of 55 45 FIR No. 62/10 PS Sultanpuri by the Ld. Counsel for the accused.
24. Ld. Counsel for the accused submitted that the medical examination has strong bearing on this case as the doctor has not observed any injury marks, no struggle marks on the person of the prosecutrix. Her hymen was intact, Labia normal, no injury, no bleeding etc. whereas, it is stated by the prosecutrix as well as her mother that accused gave a slap beating to the prosecutrix then there should have been some mark of injury on the person of the prosecutrix and there is no time gap in the incident alleged as well as the medical examination.
I have carefully perused and analysed the evidence on record. Section 319 IPC defines "Hurt".
It reads as
319. Hurt - Whoever caused bodily pain, disease or infirmity to any person is said to cause hurt.
Ld. Counsel for the accused failed to explain, of the slap beating to the prosecutrix what mark of injury should have been on the person of the prosecutrix, when undisputably, as per section 319 IPC even causing of bodily pain is covered within the ambit and scope of definition of 'Hurt'.
45 of 55 46 FIR No. 62/10 PS Sultanpuri Moreover, PW3 - Prosecutirx has specifically deposed in her examination in chief that she started weeping and he (accused) had given slap to her.
In the circumstances, there is no substance in the plea so raised by the Ld. Counsel for the accused.
25. Ld. Counsel for the accused submitted that some of the witnesses say that even the prosecutrix was directly taken to the hospital from her house whereas the Counselor Nazma Khatoon, PW1 has stated that she counseled the prosecutrix in the Police Station and from there she was taken to hospital for medical examination.
I have carefully perused the evidence on record. There are bound to be some discrepancies in the narration of witnesses when they speak out details. Moreover, the said minor discrepancies do not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.
The Hon'ble Supreme Court of India in case Leela Ram Vs. State of Haryana (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be 46 of 55 47 FIR No. 62/10 PS Sultanpuri expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
26. Ld. Counsel for accused referred to the cases and reported as Samay Singh Vs. State 1998(3) AD (Delhi)721 and Aman Kumar and Anr. Vs. State of Haryana 2004 CRL. L. J. 1399 (SC).
I have carefully gone through the same. With due respect there is no dispute as to what has been held therein. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
27. In view of above discussion and in the circumstances, I am of the considered opinion that prosecution has proved beyond shadows of all 47 of 55 48 FIR No. 62/10 PS Sultanpuri reasonable doubts that accused Vijay @ Ajay had kidnapped the prosecutrix a minor girl aged about three years from the place, ground floor of his house, where she was playing with Shubham, his nephew, aged around one year, took her in a room at the first floor of his house out of the keeping of lawful guardianship of her mother and without consent of such lawful guardian and with the intention that she may be forced to illicit intercourse and wrongfully confined her in the room at the first floor and attempted to commit rape as well as carnal intercourse against the order of the nature upon her person and also voluntarily caused injuries on her person by slapping her when she started weeping.
I accordingly, hold accused Vijay @ Ajay guilty for the offences punishable u/s 363/366/342/323 IPC, u/s 376/511 IPC and u/s 377/511 IPC and convict him thereunder.
28. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Vijay @ Ajay in the commission of the offences u/s 363/366/342/323 IPC, u/s 376/511 IPC and u/s 377/511 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring 48 of 55 49 FIR No. 62/10 PS Sultanpuri the guilt home to the accused Vijay @ Ajay beyond Shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Vijay @ Ajay guilty for the offences punishable u/s 363/366/342/323 IPC, u/s 376/511 IPC and u/s 377/511 IPC and convict him thereunder.
Announced in the open Court today (MAHESH CHANDER GUPTA) on the 15th day of December, 2012 Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi 49 of 55 50 FIR No. 62/10 PS Sultanpuri IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI Sessions Case No. : 31/10 Unique ID No. : 02404R0132922010 State Vs. Vijay @ Ajay S/o Sh. Mohan Lal R/oH. No. A3/232, Sultanpuri, Delhi FIR No. : 62/10 Police Station : Sultanpuri Under Sections : U/S 323/363/366/376/377/342/511 IPC ORDER ON SENTENCE :
1. Vide my separate detailed judgment dated 15/12/2012 accused Vijay @ Ajay has been convicted for the offences punishable u/s 363/366/342/323 IPC, U/s 376/511 IPC and U/s 377/511 IPC.
50 of 55 51 FIR No. 62/10 PS Sultanpuri
2. Sh. Bhupesh Saini, Ld. Counsel for convict submitted that convict Vijay @ Ajay is 23 years of age and is unmarried and is the youngest in the family and was working as a Sweeper in a factory. He further submitted that his mother had expired during the course of trial and his father is aged about 57 years and is a Heart patient and is under treatment and required constant care and attention. He further submitted that the convict is having two brothers, the elder brother is living separately from the family and his other brother is suffering from 75% eyes disability. He is having two sisters and both have already been married. He further submitted that he is running in JC since 03/03/2010 and is not involved in any other case and is the victim of circumstances and is having clean antecedents and his conduct during the course of the trial was very cooperative and prayed for leniency.
3. While Ld. Addl. PP for State, on the other hand submitted that convict be dealt with strictly and severest punishment be given to deter him from committing the same offence in future and further submitted that the offences were committed upon the person of a minor girl, aged about 3½ years which will have a very adverse impact on her future.
51 of 55 52 FIR No. 62/10 PS Sultanpuri
4. I have heard the Ld. Addl. PP for the state and the Ld. Counsel for the convict Vijay @ Ajay at length on the quantum of sentence. Convict Vijay @ Ajay had kidnapped the prosecutrix a minor girl aged about three years from the place, ground floor of his house, where she was playing with Shubham, his nephew, aged around one year, took her in a room at the first floor of his house out of the keeping of lawful guardianship of her mother and without consent of such lawful guardian and with the intention that she may be forced to illicit intercourse and wrongfully confined her in the room at the first floor and attempted to commit rape as well as carnal intercourse against the order of the nature upon her person and also voluntarily caused injuries on her person by slapping her when she started weeping.
5. It has been held by the Hon'ble Apex Court in Sahdev Vs. Jaibar @ Jai Dev & Ors. 2009 V AD (S.C.) 515 that: "After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really 52 of 55 53 FIR No. 62/10 PS Sultanpuri relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task".
6. It has been held in State of Karnataka Vs. Murlidhar 2009 IV AD (S.C.) 1 that: "The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
7. In Mulla and another Vs. State of Uttar Pradesh (2010) 3 SCC 508, after considering various earlier decision, the Hon'ble Supreme Court held as under: "It is settled legal position that the punishment must fit the crime. It is the duty of the Court to impose proper punishment depending upon the 53 of 55 54 FIR No. 62/10 PS Sultanpuri degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime".
8. Having regard to all the facts and circumstances of the case coupled with the submissions made on behalf of the convict, I am of the considered opinion that the ends of justice can be met by sentencing convict Vijay @ Ajay to undergo Rigorous Imprisonment for a period of seven years and to pay a fine of Rs. 4,000/ in default thereof to further undergo Rigorous Imprisonment for a period of six months u/s 363 IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs. 5,000/ in default thereof to further undergo Rigorous Imprisonment for a period of one year u/s 366 IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs. 1,000/ in default thereof to further undergo Rigorous Imprisonment for a period of three months u/s 342 IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs. 1,000/ in default thereof to further undergo Rigorous Imprisonment for a period of three months u/s 323 IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs.
54 of 55 55 FIR No. 62/10 PS Sultanpuri 3,000/ in default thereof to further undergo Rigorous Imprisonment for a period of six months u/s 376/511 IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs. 3,000/ in default thereof to further undergo Rigorous Imprisonment for a period of six months u/s 377/511 IPC. All the substantive sentences shall run concurrently. The period already undergone by the convict Vijay @ Ajay during the inquiry/investigation/trial of this case shall be set off under section 428 Cr.P.C.
A copy of judgment as well as that of order on sentence be given to the convict free of costs.
Announced in the open Court today (MAHESH CHANDER GUPTA) on the 18th day of December, 2012 Addl. Sessions Judge- IV/Outer Distt.
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