Delhi District Court
Sc No. 149/10 State vs Dalip @ Jugnu Page No. 1 Of 24 on 25 October, 2013
IN THE COURT OF ADDITIONAL SESSION JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET
COURTS: NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID No. 02406R0360502010
SESSIONS CASE No. 149/10
FIR No. 149/10
POLICE STATION : PUL PRAHLADPUR
UNDER SECTION : 376/323/325 IPC
STATE
VERSUS
DALIP @ JUGNU
S/O SH. BANSI LAL,
R/O H.NO. D12, TRANSIT CAMP RAILWAY
COLONY, TUGHLAKABAD, NEW DELHI.
DATE OF INSTITUTION : 01.09.2010
DATE OF RESERVING ORDER : 09.05.2013
DATE OF DECISION : 25.10.2013
J U D G M E N T
Case of Prosecution:
1. On 04.06.2010 at about 4.35 am DD No. 18A was received at police station Pul Prahladpur regarding rape upon a minor girl namely SC No. 149/10 State Vs Dalip @ Jugnu Page No. 1 of 24 'X' ( name withheld to keep her identity confidential) . After receiving the information, SI Mahender Singh along with Ct. Sanjay and Ct. Arvind Kumar reached at the spot i.e. Tanki No. 1, Railway Colony, Tuglakabad. On reaching there, they came to know that prosecutrix along with her mother was taken to hospital. SI Mahender Singh along with other staff reached at the spot i.e. Block No. 91, Railway colony, Tuglakabad, New Delhi where on the top floor rape was committed upon the prosecutrix. SHO Police station Tuglakabad also reached at the spot. Subsequently, Ct. Sanjay Kumar was deputed at the spot by the Investigating officer. SI Mahender singh along with Lady Ct. Jyoti reached at AIIMS Hospital, New Delhi. MLC of the prosecutrix was collected from the AIIMS Hospital by the Investigating officer. Statement of complainant Ms. Dropadi Devi was recorded by the Investigating officer and case under Section 376 of IPC was registered against the accused Dalip. Accused was arrested and his medical examination was got conducted by the investigating officer. Statement of prosecutrix as well as witnesses were recorded by the police. Exhibits were sent to FSL, Rohini, Delhi for examination and after completion of investigation, charge sheet was filed against the accused under Section 376/323/325 of IPC in the court.
2. Since the offence under Section 376 IPC is exclusively triable by the Court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions.
SC No. 149/10 State Vs Dalip @ Jugnu Page No. 2 of 24 Charge against the accused:
3. Prima facie case under Section 376/323/325 of IPC was made out against the accused Dalip. Charge under Section 376/323/325 of IPC was framed upon the accused by my Ld. Predecessor vide order dated 16.11.2010 against which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined twenty witnesses in all. The brief summary of deposition of the prosecution witnesses is as under: Material Witnesses:
5. PW5 is Smt. Dropadi Devi, complainant of the present case.
She stated that on 4th June, year she does not remember she was at home. Her children were playing outside her jhuggi. On that day at about 1 pm her daughter 'X' disappeared while playing. Her daughter Kalpana and son Sat Prakash returned home and informed her immediately. She waited for her daughter 'X' till 1.30 pm and thereafter searched her. At about 3 pm, her daughter 'X' came to her house weeping. Her clothes were having blood stains. On asking, her daughter told her that one uncle had taken her on the roof of the quarters of Tuglakabad Railway Colony and removed her clothes and lay down on her. Then, her daughter took PW5 to the spot where blood was also lying. Her daughter told that uncle had committed galat kaam with her. Her daughter was medically examined at the hospital and her statement SC No. 149/10 State Vs Dalip @ Jugnu Page No. 3 of 24 was recorded by the police. PW5 further produced on record copy of affidavit regarding the age of her daughter 'X' Ex.PW5/B.
6. PW6 is prosecutrix herself. She stated that she was playing with her sister namely Kalpana and her brother namely Prakash behind the tank. Accused Jugnu took her to Chouthi Manjil Chhat ( 3rd floor terrace) and did galat kaam with her. She know accused Jugnu through her father. When she came back from Chauthi Manzil Chhat she narrated the whole incident to her mother. She along with her mother went to the Chauthi Manjil Chhat where the blood was found. Police took her to the hospital and got conducted her medical examination.
7. PW8 is Km. Sadhna, sister of the prosecutrix. She stated that on 04.06.2010 she was present in the house. On that day, her brother and sisters were playing outside. Her sister Kalpana came back weeping because her sister/prosecutrix did not turn up. They searched their sister/prosecutrix but could not found her. Her sister/prosecutrix came back at 2/3 pm and was in a bad condition. She was bleeding from her private part and her clothes were smeared with blood. PW8 stated that her mother called up the police.
8. PW9 is Km. Kalpana, sister of prosecutrix who also deposed on the lines of PW8.
9. PW20 is SI Mahender Singh, Investigating Officer of the case who conducted the whole investigation, arrested the accused, recorded the statement of witnesses and duly proved all the memos prepared in this SC No. 149/10 State Vs Dalip @ Jugnu Page No. 4 of 24 regard.
Formal Witnesses:
10. PW1 is Ms. Surya Malik Grover, Metropolitan Magistrate who conducted the TIP proceedings of accused Dalip and has duly proved the memos Ex.PW1/A to Ex.PW1/C in this regard.
11. PW2 is Sh. Sanjeev Kumar, Metropolitan Magistrate who recorded the statement of prosecutrix under Section 164 of Cr.P.C and has duly proved the memos Ex.PW2/A to Ex.PW2/C.
12. PW3 is SI Mahesh Kumar, Draughtsman who stated that he along with Investigating officer reached at the spot and has duly proved the scaled site plan vide Ex.PW3/A.
13. PW4 is HC Girdhari Lal , MHC(M) who stated that he made entry in register no. 19 and has duly proved all the memos.
14. PW10 is HC Beg Raj who proved on record DD entry No. 18A vide Ex.PW10/A and recorded the FIR Ex.PW10/B.
15. PW11 is L/Ct. Seema who proved on record the information regarding rape upon a girl vide Ex.PW11/A.
16. PW14 is HC Arvind Kumar who along with Ct. Sanjay and Investigating officer reached at the spot, got registered the case FIR and has duly proved all the memos etc.
17. PW15 is Ct. Sanjay Kumar who on the instructions of investigating officer remained at the spot i.e. Block 91, Near pani ki tanki1, SC No. 149/10 State Vs Dalip @ Jugnu Page No. 5 of 24 Railway colony, Tuglakabad, got the spot photographed and handed over the photographs Ex.PW15/A1 to Ex.PW15A6 to the Investigating officer .
18. PW16 is L/Ct. Jyoti who accompanied the Investigating officer to AIIMS hospital and recorded the statement of prosecutrix on the instructions of investigating officer.
19. PW17 is HC Surender Singh who took three pullandas sealed with the seal of hospital along with sample seal from the hospital and handed over the same to the investigating officer vide memo Ex.PW14/A.
20. PW18 is Ct. Vijay singh who joined the investigation of the case with the investigating officer, arrested the accused, got the accused medically examined and has duly proved all the memos in this regard.
21. PW19 is HC Pratap Singh who joined the investigation of the case with the investigating officer, arrested the accused, got the accused medically examined and has duly proved all the memos in this regard. Medical Witnesses :
22. PW7 is Dr. Prajnanika Gurung who proved on record MLC Ex.PW7/A prepared by Dr. Kinshana Jain .
23. PW12 is Dr. Rajani Kanta Swain who proved on record MLC Ex.PW12/A of patient/accused Daleep @ Jugnu prepared by Dr. Shiva Prasad.
24. PW13 is Dr. Sanjay Kumar who proved on record MLC already Ex.PW7/A of prosecutrix prepared by Dr. Kinshana Jain.
SC No. 149/10 State Vs Dalip @ Jugnu Page No. 6 of 24 Statement and Defence of accused:
25. Statement of accused under section 313 Cr.P.C was recorded wherein accused stated that he has been falsely implicated in the present case and stated that police officials gave beatings to his father and brother and threatened him to sign on some blank papers or they will falsely implicate his brother and father. Accused chose not to lead evidence in his defence.
26. I have heard the Ld. Counsel for the accused as well as Ld. APP for state and have carefully perused the record.
Arguments of Ld. Defence Counsel for the accused:
27. Ld. Defence Counsel for accused argued that the accused has been falsely implicated in this case. The identity of the accused is not established from the statement of the complainant. The complainant is the mother of the prosecutrix who in her cross examination has stated that she has seen the accused for the first time in court and as such, the accused was not earlier known to the complainant. The identification of the accused by the prosecutrix who is aged 5 years is also very doubtful. It is also stated that the medical evidence also does not connect the accused and hence, the accused be acquitted.
Arguments of Ld. Additional Public Prosecutor for the State:
28. On the other hand, Ld. APP for state argued that the testimony of the complainant, the prosecutrix and her sisters have remained intact and are duly corroborated by the medical evidence on record. The accused is SC No. 149/10 State Vs Dalip @ Jugnu Page No. 7 of 24 duly identified. The medical evidence also supports the statement of the public witnesses. Hence, the prosecution has duly proved the case against the accused.
Conclusion:
29. Before appreciating the facts of this case,it is necessary to know the ingredients of the offence by resorting to the provisions of sec.375 read with sec.376 IPC. Section 375 Rape provides: " A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First Against her will.
Secondly Without her consent.
Thirdly With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
SC No. 149/10 State Vs Dalip @ Jugnu Page No. 8 of 24 Sixthly With or without her consent, when she under sixteen years of age.
Explanation Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
30. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from ten to eighteen years.
The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the following essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
31. The two issues to be determined on the basis of evidence adduced by the prosecution are the age of the prosecutrix and whether she SC No. 149/10 State Vs Dalip @ Jugnu Page No. 9 of 24 was a consenting party to the incident or not.
32. Age of the prosecutrix: In the present case, accused has been charged under Section 376 IPC for committing rape upon the prosecutrix aged about 05 years without her consent. Section 376(2)(f) of IPC provides for higher degree of punishment for the offence of rape committed with the girl who is under 12 years of age. As regard to the age of the prosecutrix, the prosecution case is that the prosecutrix is a minor child of 5 years of age. As per the statement of complainant Ms. Dropadi, PW5 who is the mother of the prosecutrix, the prosecutrix was not a school going child. The mother of the prosecutrix has stated that she is having seven daughters and one son and the prosecutrix is at serial no. 6 and is aged about 5 years. The eldest daughter is 20 years old. The mother of the prosecutrix i.e. PW5 had produced one affidavit with regard to the age of the child which was exhibited as Ex.PW5/B. The said affidavit is sworn by the father of the prosecutrix on 20.09.2010 wherein the date of birth of child is mentioned as 16.10.2005. It is also mentioned by the father of the prosecutrix in this affidavit that he could not get the date of birth of the prosecutrix registered in MCD record due to lack of knowledge. The accused has not challenged the testimony of the mother of the prosecutrix PW5 so as to controvert her statement with regard to the age of the prosecutrix. The authenticity of this affidavit is also not challenged in the cross examination of PW5 from the side of accused. The accused has nowhere taken the plea that the age of the prosecutrix was not 5 years when the offence was committed. Hence, from SC No. 149/10 State Vs Dalip @ Jugnu Page No. 10 of 24 the unchallenged testimony of the mother of the prosecutrix it is proved that the prosecutrix was aged 5 years on the day of incident.
33. Consent of the prosecutrix and other ingredients of the offence: The entire foundation to bring home the charge of rape rests on the statement of the prosecutrix who is just aged 5 years of age. It needs no elaboration that a conviction can be based on the uncorroborated evidence of the prosecutrix if the same inspires confidence. It will be useful to refer to the observations of Apex Court in the case titled as Radhu Vs State of Madhya Pradesh 2007, Crl. Law Journal 4704 wherein Hon'ble Supreme court has held that: " It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of SC No. 149/10 State Vs Dalip @ Jugnu Page No. 11 of 24 rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.
15. The evidence of the prosecutrix when read as a whole, is full of discrepancies and does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. The learned Counsel for the respondent submitted that defence had failed to prove that Mangilal, father of prosecutrix was indebted to Radhu's father Nathu and consequently, defence of false implication of accused should be rejected. Attention was invited to the denial by the mother and father of the prosecutrix, of the suggestion made on behalf of the defence, that Sumanbai's father Mangilal was indebted to Radhu's father Nathu and because Nathu was demanding money, they had made the false charge of rape, to avoid repayment. The fact that the defence had failed to prove the indebtedness of Mangilal or any motive for false implication, does not have much relevance, as the prosecution miserably failed to prove the charges. We are satisfied that the evidence does not warrant a finding of guilt at all, and the Trial Court and High Court erred in returning a finding of guilt."
SC No. 149/10 State Vs Dalip @ Jugnu Page No. 12 of 24 Similar views are expressed in State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, wherein honble 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 look 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."
34. The prosecutrix in this case is a minor child of 5 years. The Indian Evidence Act 1872 does not prescribe any particular age as a determinative factor to treat the witness to be competent witness. As per section 118 of Indian Evidence Act, 1872, all the witnesses shall be competent to testify unless the court considers that they are prevented from understanding the question put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, weather of body or mind or any other cause of the same kind. An explanation has been SC No. 149/10 State Vs Dalip @ Jugnu Page No. 13 of 24 incorporated by the legislature to clarify that a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers. Thus, so far as the competency to appear as a witness, the legislature has underlined the basic requirement of a person's understanding of the obligation to speak the truth and to give an accurate impression and possession of the mental capacity at the time of the occurrence concerning which he has to testify and to receive an accurate impression of it. This would be moreso in the case the witness is a child of tender years. It is necessary to ascertain as to whether the witness had a memory sufficient to retain and independent recollection of the occurrence, capacity to understand simple question about it and the capacity to express his / her memory of occurrence.
35. The Apex court has observed that the omission to administer an oath goes to the credibility of the witness and not his competency which is in effect under section 118 of Indian Evidence Act, 1872.
36. So far as the competency of a child to testify as a witness is concerned, the courts in India have relied on the proposition formulated by Justice Brewer in Wheeler vs. United States 159 US 523 (1895) who had opined that the evidence of a child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convicted about the quality thereof and reliability can record conviction, based thereon.
37. The reservation expressed with regard to evaluating the SC No. 149/10 State Vs Dalip @ Jugnu Page No. 14 of 24 testimony of a witness is based on apprehensions that children may be vulnerable and susceptible to be swayed by what others tell and the child witness is an easy pray to tutoring and therefore their evidence must be evaluated carefully and with greater circumspection. (Ref: Panchhi vs. State of U.P. MANU/SC/ 0530/ 1998 : 1998 CriLJ 4044).
38. It is equally well settled that if satisfied that the testimony of the child witness is a voluntary expression of what transpired and is an accurate impression of the same, no corroboration of the testimony is required. The Supreme Court has repeatedly ruled that there is no rule of practice that the evidence of a child witness needs corroboration and stated that conviction can be based on it. It is only as a rule of caution and prudence that the court may require that it would be desirable to have corroboration from other dependable evidence. (Ref : Dattu Ramrao Sakhare & Ors. vs. State of Maharashtra MANU/SC/1185/1997 : (1997) 5 SCC 341; Suryanarayana vs. State of Karnataka MANU/SC/0001/2001 :
2001 Cri.L.J. 705).
39. In the case of Dhirender Vs State of NCT of Delhi , Crl. A.No. 121/2008 decided on 29.09.2009, Hon'ble Justice Geeta Mittal of Delhi High Court has beautifully summed up the law propounded by Apex Court in various pronouncements eg. Sakshi Vs Union of India & Ors. AIR 2004 SC 3566, Sudesh Jhaku Vs K.C.J & Ors. 1998 Crl. L. J. 2428 and various other pronouncements wherein the Hon'ble Apex Court has referred to the SC No. 149/10 State Vs Dalip @ Jugnu Page No. 15 of 24 necessity of examination of a rape victim under screen and in camera and has also held that the trial judge may permit a social worker or other friendly, independent or neutral adult in whom the child has confidence to accompany the child and to be present and accessible to the child at all times during his or her testimony. Though, the care should be taken that such person does not influence the child's testimony.
40. In the present case the father and mother of prosecutrix were standing besides the prosecutrix at the time of her examination and one counselor of NGO and one Advocate from Delhi Commission for Women was also present in the court but after my predecessor court had satisfied itself about the capability and the competency of PW6 to depose before the court, she had recorded her statement.
41. In this case, the testimony of prosecutrix PW6 is consistent. She is not shaken during her cross examination despite the not so conducive atmosphere almost bordering the hostile in the court during the recording of her testimony. In her deposition before the court she has identified the accused to be the person who had committed rape upon her. She has deposed in the statement that one day she was playing with Kalpana and Prakash behind the Tent . It was morning time. Jugnu took her to Chauthi Manzil Chath(3 rd Floor terrace) and he was doing galat kaam with her. She has stated that "Jugnu ne meri Nunu me Nunu Dala tha. Chouthi Manjil se mein Akele Utri Thi. Mere Nunu se khoon Nikla tha". She further deposed that she know Jugnu earlier. She has also identified the accused in the court.
SC No. 149/10 State Vs Dalip @ Jugnu Page No. 16 of 24 She has further stated that when she came back from Chauthi Manjil Chath from her house, her mother met her to whom she narrated the incident who also went to Chauthi Manjil Chath along with her mother where blood was found. She has also identified her clothes Ex.P1 and Ex.P2 which were worn by her at the time of incident. In her cross examination she has specifically deposed that name of the accused was not disclosed to her by the police and stated 'Mujhe Pata Tha'. She has also stated that after one day of the incident police brought Jugnu to her house where she has seen him. She has denied that she had stated the name of Jugnu in her statement before the magistrate at the instance of police. The testimony of the prosecutrix, with relation to the incident of rape is reassuring as she has been consistent throughout in describing what the accused did to her. Her description of the act of rape is accurate and narrated with the understanding of a five year old child. It is not spoken of with the sophistication of an adult, and from this one can be reassured that the child has not been coached. She has referred to her private parts as well as to the private part of the accused as 'Nunu'. In the statement under section 164 Cr.P.C she referred to her private part as 'Peshab Wali Jagah'. She has stated that blood came out from her Nunu. The mother of the prosecutrix has fortified her statement to the effect that her clothes were having blood stains. Hence, the word Nunu is referable to 'Vagina' and nothing else. Even the medical examination of child shows that bleeding was present and there was fresh tear. Before the court the prosecutrix has identified the accused as well as narrated the incident in SC No. 149/10 State Vs Dalip @ Jugnu Page No. 17 of 24 clear terms. Moreover, the statement of the prosecutrix is also corroborated to some extent by her sister PW9 Kalpana aged 10 years who was playing with the prosecutrix when the prosecutrix, during the play had disappeared and when after sometime she returned she was bleeding from her private parts and was weeping. PW9 has stated that Sapna is aged about 7 years and on the day of incident she along with her brother Prakash and sister Sapna were playing in the park situated nearby her house. Her brother Prakash hurl stones towards her and she ran. Her sister Sapna was also following her. She made a complaint about hurling of stones to her Sister Sadhna who advised Prakash not to do so and thereafter they started playing. She has also stated that she know the accused who is Jugnu uncle, who is resident in the same locality. She has also deposed that while playing her sister disappeared and when she returned there was blood on her underwear and banyan and she was weeping. She deposed "Meri Behen roh rahi thi kyonki usse chot lagi thi". In her cross examination she has stated that for the first time she had seen the accused standing near the pole on 04th June. The statement of PW9 corroborates the statement of prosecutrix to some extent on the point of presence of accused Jugnu at the place of incident, disappearance of the prosecutrix while playing, her return after some time, bleeding from her private parts and weeping. Even in the statement recorded under section 164 Cr.P.C, the prosecutrix had named the accused and narrated the incident.
42. The statement of the prosecutrix on the point of rape is also SC No. 149/10 State Vs Dalip @ Jugnu Page No. 18 of 24 corroborated by her mother who has stated that after the disappearance of her daughter she had returned after half an hour or one hour and was weeping and bleeding from her private part. The mother of the prosecutrix along with her had gone to the place of incident and had witnessed lot of blood lying at the spot. The police had also lifted the blood from the earth as well as from the walls of the spot.
Medical Evidence:
43. In the MLC the factum of rape upon the prosecutrix has been mentioned. As per the report, her hymen was found torn with fresh tears. Perineal tear and bleeding was present. On her physical examination the doctor had found scratch marks over her face, neck(B/L), abdomen(lower, B/L), back generalized, legs (B/L). As per the report on the MLC, the external injuries of the prosecutrix were opined as simple whereas her vaginal injuries were opined as grievous and the victim was referred to Surgeon for treatment of vaginal injuries.
44. The FSL result with regard to the exhibits of the prosecutrix as well as of the accused is also placed on record by the prosecution. The report is perse admissible under section 293 Cr.P.C. As per this report, the blood found on the clothes of the prosecutrix and on the clothes of the accused matched as both are shown as 'B' group. Ld. Counsel for the accused had argued that this report is not conclusive since even the blood gauze of the accused has been grouped as 'B' in the report which means that the blood on the clothes may be of the accused himself and not of the SC No. 149/10 State Vs Dalip @ Jugnu Page No. 19 of 24 prosecutrix as it may be a coincident that the blood group of prosecutrix and the accused were same. Hence, the FSL result is not conclusive to prove that the blood on the clothes of the accused was of the prosecutrix.
45. I have heard the submissions and have seen the FSL result. The blood was detected on the earthy concrete soil, earth control on the underwear of the prosecutrix, on the baby shirt of the prosecutrix, in the blood gauze, in the pant of the accused and in the blood gauze of the accused and all these exhibits are being grouped as 'B' group. The human semen stains however, were found on the underwear of the victim, her micro slides and in the penile swab of the accused but the result were inconclusive on the underwear of the prosecutix and there was no reaction on the penile swab of the accused. I have also seen the MLC of the accused. This MLC of the accused shows that there were only one abrasion on the right knee of the accused and no other external injuries were found upon the person of the accused. There is no report of fresh bleeding from the person of the accused so as to conclude that the blood which was found on clothes of prosecutrix, earthy material belonged to him only. Since, there was no bleeding on the person of the accused, there was no chance that his pant may have blood stains. Further, it was for the accused to explain how his blood was there on his pant without any injury on his person, which he failed to explain. Hence, the FSL result in clear terms connects the accused with the offence. The blood stains on his pant may lead to an irresistible conclusion that the blood stains were of the blood of the prosecutrix and no one else. Though, it is a SC No. 149/10 State Vs Dalip @ Jugnu Page No. 20 of 24 coincidence that the blood group of the prosecutrix as well as the accused were same but in view of the MLC of the accused who was not having any fresh bleeding, it can be opined that the blood on his clothes were of prosecutrix.
Identity of the accused:
46. The prosecutrix has identified the accused in the court. In her statement before the magistrate, she had even named the accused. She had denied all the suggestions that she had named the accused at the instance of the police. She had stated that she had earlier seen the accused prior to the incident. On this point her sister PW9 had also corroborated her statement. The accused has refused to join the TIP. As per the statement of the accused the refusal was on the ground that the accused has been shown to the witnesses however, all the suggestions which were put in this regard to the prosecutrix as well as to her sister PW9 are denied by them. The prosecutrix is a minor child of 5 years and her sister PW9 is a minor child of 10 years. In his defence the accused had not taken any plea as to why prosecutrix aged 5 years will falsely implicate the accused in this case. The accused has not taken any plea of previous enmity with the prosecutrix or her family so as to falsely implicate the accused. The adverse inference of refusal to join the TIP shall be taken against the accused. From the statement of the prosecutrix coupled with his connection with the offence on the basis of FSL result leaves no scope to dispute the involvement of the accused in this case.
SC No. 149/10 State Vs Dalip @ Jugnu Page No. 21 of 24 Defence of the accused:
47. The accused in his statement has stated that he has been falsely implicated in this case. He has stated that police gave beatings to his father and brother and threatened him that if he will not sign some papers they will falsely implicate his brother and father. However, nothing is mentioned in the statement as to why the police gave beatings to his father and brother and why the threats were extended to him. Further, no evidence is led by the accused in support of these allegations. Hence, in view of the testimony of the prosecutrix duly corroborated by medical evidence and other witnesses the defence of the accused does not sound probable.
48. Accordingly, from the statement of prosecutrix PW6 duly corroborated by her medical record, the prosecution has proved all the ingredients of offence of rape. It is proved that sexual intercourse was done without the consent of the prosecutrix. Further as per the medical examination report of accused proved by concerned doctor there was nothing to suggest that accused was incapable of performing sexual intercourse. The offence of simple and grievous hurt:
49. Section 319 IPC provides that whosoever causes bodily pain, decease or infirmity to any person is said to cause hurt. The offence of causing hurt voluntarily is punishable under section 323 IPC.
So far as offence of grievous hurt is concerned, section 320 IPC has given kinds of hurt which are designated as grievous. The offence of SC No. 149/10 State Vs Dalip @ Jugnu Page No. 22 of 24 grievous hurt is punishable under section 325 IPC.
In the present case, the prosecutrix was medically examined by PW7 Dr. Prajnanika Gurung who proved the MLC. She has deposed that she had examined the child in the presence of Dr. Kinshana Jain and there were scratch marks over face, neck, abdomen(lower), back (generalized) and both legs. On local examination, the hymen was torn. There was fresh tear . Perineal tear was present. Bleeding was present. Rectal Mucosa was intact. The nature of external injuries were opined as simple and the vaginal injuries were opined as grievous and thereafter the child was referred to pediatric surgeon for repair of the vaginal injuries. This witness PW7 has been cross examined on behalf of the accused but nothing adverse came out in the cross examination of PW7 so as to doubt the authenticity of the MLC prepared by the doctor. The child was medically examined immediately after the rape. The offence of rape is duly proved against the accused. The injuries were caused to the victim during the committing of offence of rape by the accused. Even the victim has identified the accused and deposed that the accused had committed 'galat kaam' with her. The medical evidence/FSL has also connected the accused with the offence as discussed above in the judgment. In view of this it is duly proved that the accused had voluntarily caused simple hurt as well as grievous hurt to the victim.
50. In view of the above said discussion, prosecution has been fully able to prove its case under Section 376(2)(f)/323/325 against the accused as the prosecutrix is beyond 5 years of age. Hence, accused Dalip @ Jugnu is SC No. 149/10 State Vs Dalip @ Jugnu Page No. 23 of 24 held guilty and convicted for the offence under Section 376(2)(f)/323/325 IPC.
ANNOUNCED IN THE OPEN COURT ON 25.10.2013.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ01/SE/SAKET COURTS/ NEW DELHI SC No. 149/10 State Vs Dalip @ Jugnu Page No. 24 of 24