Delhi District Court
State vs Gaurav @ Gauri on 17 August, 2011
;IN THE COURT OF MS. R. KIRAN NATH
ASJ 01, SOUTH DELHI, SAKET COURTS
S. C. No. 77/10
STATE
Vs.
Gaurav @ Gauri
S/o Shri Zile Singh
R/o B71, Katwaria Sarai,
Delhi.
FIR No. : 123/10
P.S. : Vasant Vihar
U/S : 376 IPC
Date of Institution : 04082010
Date of Judgment : 17082011
J U D G M E N T
1. This is a case where the accused has been charged with and has faced trial for having raped a five year old girl and thus having committed offences u/s 376 IPC.
2. In brief the case of the prosecution is that DD no.
FIR No. :123/10 Page no. 1 37A was recorded in PSVasant Vihar on 080510 at about 09.15 pm that the wireless operator had informed that a rape had been committed with five year old girl at IIT gate no. 2. On this ASI Dharambir Singh along with constable Harsahai reached the spot i.e. Shani temple at IIT gate and there they found mother of the victim along with victim (prosecutrix) and accused Gaurav. WHC was called; the mother of the prosecutrix gave her statement to the effect that she was living there with her family at Jhuggi near Shani Temple between gate no. 2 and 3, IIT; her husband was unemployed and they all used to make living by begging at the said temple. She had four children - eldest being son aged 10 years, then this girl prosecutrix aged 5 years, one son 3 ½ years of age and youngest son aged 2 years. She stated that they used to sleep on the footpath on the road side near their jhuggi. On 070510 they had all gone to sleep at around 10.00 pm; when she got up in the morning of 080510 at around 6.00 am she saw some FIR No. :123/10 Page no. 2 bite marks on the right cheek of her daughter, who, started crying on inquiry and then informed that the accused had taken her from the footpath at night near the wall in the dark of night and he committed wrong act with her due to which she had pain in her vagina. She also stated that the accused was doing some menial jobs and begging at the said temple and also used to sleep at the footpath. She also stated that on checking she found some stains on the underwear of her daughter and swelling in her vagina. She did not disclose it to anyone as her husband was not at home. She then gave bath to her daughter in the evening and washed her clothes. When her husband returned in the evening she disclosed all the facts to him. Then they apprehended the accused with the help of other persons and police was informed.
3. IO made his endorsement on the said statement and sent the rukka for registration of the case. The prosecutrix accompanied by her mother was taken to the FIR No. :123/10 Page no. 3 hospital and her medical examination was got conducted. The medical exhibits were handed over to the police. The FIR was got registered. Accused was arrested. The medical exhibits were sent to FSL. The statement of the prosecutrix was got recorded u/s 164 Cr.PC. After completing the investigation the chargesheet was filed in the court.
4. In view of the allegations contained in the charge sheet, charge u/s 376 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In support of its case the prosecution has examined 16 witnesses.
6. PW1 is the prosecutrix herself and PW2 is her mother Smt. Babita, whose statements would be discussed at length at appropriate stage.
7. PW3 is Dr. Atul Gupta, who had examined the accused and proved his report as Ex.PW3/A.
8. PW4 is constable Har Sahai, who had accompanied the IO to the spot on receipt of DD no. 37 and had joined FIR No. :123/10 Page no. 4 the investigations with the IO throughout. He is also witness to the arrest, personal search and the disclosure made by the accused and also to the pointing out memo.
9. PW5 is WHC Raj Bala, who had gone to the hospital with the prosecutrix and her mother for medical examination of the prosecutrix.
10. PW6 is constable Arun Kumar, who had taken the medical exhibits etc. of the case from malkhana of PS Vasant Vihar to FSL, Rohini.
11. PW7 is constable Murari Lal, who had taken the accused to the hospital for his medical examination and had handed over the medical exhibits of the accused (received by him from the doctor) to the IO.
12. PW8 is WASI Sunita, who had got recorded the statement of the prosecutrix u/s 164 Cr.PC.
13. PW9 is Smt. Paramjet Kukreja, Member, Child Welfare Committee, who had passed the orders for return of the child to her mother.
14. PW10 is ASI Dharamveer Singh, who had FIR No. :123/10 Page no. 5 recorded the FIR in this case and had proved the same as Ex.PW10/A.
15. PW11 is Smt. Anita Chhari, from FSL and has proved the FSL report as Ex.PW11/A and copy of FSL form as Ex.PW11/B and serological analysis as Ex.PW11/C.
16. PW12 is ASI Kishan Lal, who had proved the copy of DD no. 37A as Ex.PW12/A.
17. PW13 is Ms. Veena Rani, Ld. MM who had recorded the statement of the prosecutrix u/s 164 Cr.PC and has proved the same as Ex.PW13/D.
18. PW14 is Dr. Preeti, who had medically examined the prosecutrix on that date and has proved his report as Ex.PW14/A.
19. PW15 is ASI Kailash Kain, who had arrested the accused; recorded the disclosure statement; prepared the pointing out memo; prepared the site plan; got the accused medically examined and had seized medical exhibits.
FIR No. :123/10 Page no. 6
20. PW16 is ASI Dharambir Singh, who had gone to the spot on receipt of information vide DD no. 37A and had got the FIR registered on the statement of the mother of the prosecutrix; had got the prosecutrix medically examined and collected the medical exhibits of the prosecutrix.
21. In his examination u/s 313 Cr.PC all the incriminating evidence was put to the accused which he denied and stated he was innocent and had been falsely implicated in this case.
22. The accused had stated that he was sleeping in the Shani Mandir, IIT Gate at the time of incident; that he do not know why this case had been filed against him; that he used to work as sweeper in the said mandir where the prosecutrix and her parents used to come to beg alms.
23. I have heard the Ld. Addl. PP for the State as well as the counsel for the accused person at length and have also gone through the record carefully.
FIR No. :123/10 Page no. 7
24. It may also be noted at this stage that prosecutrix had also been examined u/s 164 Cr.PC without oath as she was only five years old and had stated as under: "Mei so rahi thi phir wo mujhko uthakar le gya! Wo mujhe doore le gya! Usne mujhe kaata tha! Wo meri chaddhi (panty) chedh rha tha! Aage nahi pata! (I was sleeping; he took me far away; he bit me; he was fondling my panty (underwear); I do not know further).
25. Counsel for the accused has argued that on the above statement of the prosecutrix, it could not be concluded that accused had committed rape on the prosecutrix. There is no other eyewitness to the incident except the above statement from a five year old as to what exactly had happened to her or what was done by the accused to her. One has to keep in mind that leave aside the word of concept of 'rape' she would have not even understood what sexual intercourse means and hence she cannot be expected to give the statement in graphic details as to what the accused had done to her.
FIR No. :123/10 Page no. 8 The same will have to be gathered from the totality of the attending circumstances.
26. The prosecutrix in this caseis a five year old child. The incident had taken place on 080510 in the night hours i.e. more than a year back. The prosecutrix was examined as PW1 in this case by the court in Camera; the child was made to sit by my side on the dais and then the questions were put to her, first to check her competency. It would be relevant to reproduce the proceedings during the examination of this witness and the same is as under.
Since the child is of a tender age, to check her compentency, the child is asked following questions in simple Hindi : Q. What is your name ?
A. Nita. Q. Where do you live ? A. (The child keeps mum). Q. What is your father,s name ? FIR No. :123/10 Page no. 9 A. (The child keeps mum). Q. What is your mother's name ? A. Batita. Q. What does your father do ? A. (The child keeps mum). Q. Are you studying ? A. Yes. Q. In which class ? A. Class 1st (Pehli). Q. In which school ? A. (The child keeps mum). Q. Where do you stay ? A. (The child keeps mum). Q. Who are your friends in school ? A. My brother Vishal. He is my brother.
I am satisfied that the child can understand the questions put to her, and answer as per her age and understanding. She is thus explained with respect to the case.
Q. Do you know the person (while pointing out towards FIR No. :123/10 Page no. 10 accused), present in the court ? A. The child nods in affirmative and answersa Nashedi. Q. Is he a good man ? A. "Bad." Q. Did he say or do anything to you ? A. 'Ganda Kaam' .
The child goes into prolonged silence on every question being asked to her. However, she has preliminarily identified the accused, present in the court as being known as Nashedi. She did not answer the questions put to her in the court room even incamera proceedings, though she was made to sit on the dias by my side by me. In these circumstances, she was brought to my chamber in the presence of Ld. Counsel for accused and Ld. Addl. PP and the child was asked to tell, what had happened with her or what the accused had done to her. After keeping silent for a long time, she only reiterated that he had done wrong act (Galat Kaam) with her. Despite cajoling and the question being put in different form, the child is not able to answer this and goes into a prolonged FIR No. :123/10 Page no. 11 silence and clutches to her mother, who was made to sit by the side.
Following are the questions, put by Ld. Addl. PP for the State : Q. Have you come to this place before ?
A. Yes. Q. Have you been asked questions earlier at similar place ? A. Yes.
XXXXX by Sh. M.L. Chaudhry, Advocate for accused.
Q. Do you understand the meaning of 'Galat Kaam' A. (The child keeps silent). Q. What does your father do ? A. (The child keeps silent). Q. For how many days are you going to school. A. (The child keeps silent). Q. Whether it is Nashedi ? A. I do not know. Q. You do not know ? A. (The child nods her head in negative). FIR No. :123/10 Page no. 12 Q. Since when do you know the Nashedi ? A. (The child nods heard head in negative.) Q. Before coming to the court your mother had told you that
the accused coming to the court is Nashedi ?
A. (The child keeps silent) Q. Whether this was Nashedi ? A. (Nods her head in affirmative.)
It is certified that the above statement is true account of the examination of the child witness in the court and in my chamber today by me, by the Addl. PP and by the counsel for the accused and has been taken down on my dictation.
27. The mother of the prosecutrix who was the first person who had seen the prosecutrix after the incident has been examined as PW2 had testified that when she got up in the morning she noticed some bite marks on the cheeks of her daughter (prosecutrix); her daughter was carrying her underwear in her hands and was weeping. She noticed some stains on the underwear of FIR No. :123/10 Page no. 13 her daughter. She further testified that it was about 6.00 am that her daughter asked them to take her to the temple and when they reached there, she pointed out towards the accused stating that he was the boy who was responsible for bite marks etc. That upon asking further, her daughter told her that accused did 'Ganda Kaam' with her (prosecutrix) and thereafter the matter was reported to the police. Her statement Ex.PW2/A was recorded by the police and her daughter was taken for her medical examination.
28. While considering the statement of the prosecutrix we have to remember that she was only five years old at the time of her deposition. As noted above it emerges that she had identified the accused and had repeatedly said that he was a bad man who had done 'Ganda Kaam' with her. She also admitted that she had made the statement before the court earlier also, which means she admits having been examined u/s 164 Cr.PC before the Ld. MM. This fact is also substantiated by the Ld. MM, FIR No. :123/10 Page no. 14 who appeared in the witness box as PW13 and had testified that she had made inquiries from the child regarding voluntariness of her statement and her understanding and had recorded her statement only after being satisfied. Even before the Ld. MM she had stated that she was sleeping when he (accused) took her far away and had bitten her and was fondling with her panty (which she was obviously wearing at that time). The Ld. MM recorded that thereafter the child witness does not say anything more. The Ld. MM had given her certificate at the end of these proceedings to say that the same was recorded by her and was true and correct account of statement made by the child. The said statement and the certificate is Ex.PW13/D and Ex.PW13/E respectively.
29. It is to be noted that it was with much patience that the child could be examined in the court. She had to be brought to the chamber and made comfortable before recording her statement and it had taken a long FIR No. :123/10 Page no. 15 time to get these answers from her. She had categorically been repeating that the accused had done 'Ganda Kaam' (wrong act) with her and everytime she was asked this question to explain about the act done by the accused, she would go into a long silence and cling to her mother who was made to sit by her side. The silence of this child or her nonexplaining what 'Ganda Kaam' means cannot be taken against her. She is a child of tender age being hardly five years of age, and it cannot be expected of her to explain what is rape or sexual intercourse.
30. The child was medically examined on the next day of the incident i.e. on 090510 vide MLC Ex.PW14/A. The doctor who examined her had observed that the "alleged history of sexual abuse was given by the mother as that on 080510 in night at home by some neighbour on her daughter X. The X's mother had given her bath and changed her clothes at 4 pm on 080510".
31. As for the medical examination it was observed FIR No. :123/10 Page no. 16 that : she had two scars of 4 x 2 cm present on the right side of the cheek;
P/A soft LE - Labia minora excernations present Hymen not intact A tear in posterior fourchette secretion present in posterior vaginal wall.
32. Counsel for the accused has argued that there were no external injuries or bruise marks and nothing to suggest that she was subjected to forceful intercourse.
33. It is reiterated that prosecutrix has persisted in saying that accused had done 'Ganda Kaam' (wrong act) with her. Before the Ld. MM she stated that he was doing 'chedchad' with her panty. It is also to be taken note of that child had been bathed and her clothes were changed by her mother when she was taken for her medical examination. The observations in MLC Ex.PW14/A further established that the child had been sexually assaulted. Even after having been bathed FIR No. :123/10 Page no. 17 there are the telltale signs i.e. two scar of 4 x 2 cm present on the right side of the cheek; Labia minora excoriations are present; hymen was not found intact tear was found present in posterior fourchette; p/a is soft and secretions present in the posterior vaginal wall which all point to the child having been subjected to sexual intercourse.
34. In Modi's Medical Jurisprudence and Toxicology it has been noted that:
In nubile virgins, the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears (more so in the posterior half), the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. These tears heal within five or six days and after eight to ten days, become shrunken and look like small tags of tissue. Frequent sexual intercourse and parturition completely destroy the hymen, which is represented by several small tags of tissue, which are FIR No. :123/10 Page no. 18 called carunculae hymenealis or myrtiformes.
The fourchette and posterior commissure are not usually injured in cases of rape, but they may be torn if the violence used is very great. The extent of injury to the hymen and the genital canal depends upon the degree of disproportion between the genital organs of both the parties and the violence used on the female.
In small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the fourchette and the perineum.
When grownup virgin girls, unmaried or married women, offer resistance, marks of violence, such as bruises and scratches of fingernails may be found on the external genitals, perineum, abdomen, chest, back, limbs, neck and face. Love bite marks are also seen on the cheeks, neck, and inner thighs due to sucking pressure and teeth imprints.
FIR No. :123/10 Page no. 19
35. Conversely thus, it would also mean that the external injury marks may not be there is small girls who cannot even offer resistance. The observations made by the doctor on examination of the prosecutrix thus do establish that she had been subjected to forceful sexual intercourse.
36. Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. It is a crime against humanity. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection.
37. The counsel for the accused has tried to show the contradictions/improvements in the statement of the mother i.e. she had stated in her statement as PW2 that she she got up in the morning she saw some bite marks on the cheek of her and daughter and her daughter was carrying her underwear in her hands and FIR No. :123/10 Page no. 20 was weeping. Whereas, in her complaint Ex.PW2/A on which the FIR was registered, she had stated that when she got up in the morning she saw bite marks on the cheeks of her daughter and when she asked her daughter about the same, her daughter started crying.
In my opinion, this is a minor contradiction as to whether the prosecutrix started crying on being questioned abut the bite marks or was already crying when her mother saw her. The counsel has further argued that in her statement before the court, she had stated that her husband was present at that time, whereas, in her statement Ex.PW2/A she had stated that her husband had come in the evening when she disclosed all the facts to him. This discrepancy is not of such a nature so as to discard her statement in entirety. We have to remember that the witness is from a poor strata of the society and does not understand the proceedings of the court so well. She had given her statement in continuous flow where the same facts gets FIR No. :123/10 Page no. 21 repeated again and again and some discrepancy may appear. However, it was open to the counsel for the accused at that time to point out the same to her and ask her as to how she had given these different statements recorded on the same day. However, it was not done by the counsel. The other points raised by the Ld. Counsel for the accused are equally unacceptable. It is not relevant that the site plan was prepared at the instance of the accused and not at the instance of the prosecutrix. Obviously, the prosecutrix could not have explained the site to the IO.
38. Counsel for the accused has argued that the child would have been in severe pain if she had suffered a sexual attack. One has to remember that by the time the statements are translated and transcribed in the court they do not disclose the severity of emotion of witness when he or she is making statement and cannot thus reflect as to how the mother described about the pain and cries of her child when she was being examined FIR No. :123/10 Page no. 22 in the court. Similarly, I do not find any substance in the arguments that there was infact a dispute between the accused and the complainant over the distribution of alms received in the begging and that is why she had wrongly involved the accused in this case. No mother would involve her child in such a case only to make even with any person. That aside, medical evidence of the child conclusively shows that the child had been sexually assaulted.
39. In view of the above discussion, I hold that the prosecution has conclusively established that in the night of 070510 at Jhuggi near Shani Temple between gate no. 2 and 3 IIT, accused had committed rape upon the prosecutrix who was 5 years old and thus committed offence u/s 376 IPC. The accused is accordingly convicted for having committed offence u/s 376 IPC. Announced on 17th August, 2011.
(R. Kiran Nath)
ASJ01/South
FIR No. :123/10 Page no. 23
New Delhi.
FIR No. :123/10 Page no. 24
State Vs Gaurav @ Gauri
FIR no.123/10
PSVasant Vihar
17082011
Present: Ld. Addl. PP for the State.
Accused from JC.
Vide separate judgment of the date, accused is convicted for having committed offence u/s 376 IPC.
Case to come up for arguments on the point of sentence on 200811.
(R. Kiran Nath)
ASJ01/Saket Court
17082011
FIR No. :123/10 Page no. 25