State vs . Munna S/O Sh. Tej Pal on 13 October, 2010

[Cites 19, Cited by 0]

Delhi District Court

State vs . Munna S/O Sh. Tej Pal on 13 October, 2010

   IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
    JUDGE-II(NORTH-WEST): ROHINI COURTS: DELHI

Session Case No.: 1120/09
Unique Case ID No.:0240420595962009

State           Vs.                      Munna S/o Sh. Tej Pal
                                         R/o Jhuggi No. 43, C-A Block,
                                         Shalimar Bagh,
                                         Delhi
                                         (Convicted)

FIR No.:                                 513/07
Police Station:                          Shalimar Bagh
Under Section:                           342/376 (2) (f) Indian Penal Code


Date of committal to sessions court: 29.10.2007
Date on which order was reserved:                 13.9.2010
Date on which judgment announced:6.10.2010


JUDGMENT:

As per the allegations on 21.7.2007 the accused Munna wrongfully confined the minor girl 'M' (name of the prosecutrix is withheld as this is a case under Section 376 (2) (f) Indian Penal Code) aged 5 years and committed rape upon her.

BRIEF FACTS:

Case of the prosecution:

The case of the prosecution is that on 21.7.2007 DD no. 61B was received at police station Shalimar Bagh pursuant to which Sub Inspector Baljeet Singh along with Head Constable Surinder reached CA Block Jhuggies, Shalimar Bagh where they came to St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 1 know that prosecutrix had been removed to BJRM Hospital. Thereafter they reached at BJRM Hospital where the prosecutrix 'M' and her mother Smt. Laxmi. In the meanwhile Sub Inspector Sushila Rana reached the hospital and Smt. Laxmi informed the police that on 21.7.2007, she left her house at about 8:00 am in the morning for her job and at about 4:00 pm when she returned back to her house she saw her daughter weeping and on asking she told that when she was playing outside the house, the accused Munna asked her to bring cigarette. Her daughter brought cigarette for Munna after which Munna caught hold her hand and took her inside the house and committed rape upon her and she was saved by one Vir uncle. On the basis of the statement of Smt. Laxmi the present case was registered.

On 22.7.2007 the investigating officer Sub Inspector Sushila Rana received a secret information regarding the presence of accused Munna pursuant to which at the instance of the secret informer the accused Munna was apprehended near Petrol Pump Singlapur, near Mall. Thereafter the accused was arrested and charge sheeted.

CHARGE:

The Ld. Predecessor of this court has settled the charges under Section 343 and 376 (2) (f) Indian Penal Code against the accused Munna to which he has pleaded not guilty and claimed trial.

EVIDENCE:

In order to prove its case the prosecution has examined as many as 12 witnesses:

St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 2

Prosecutrix/ public witnesses:

PW1 is the prosecutrix 'M' who was a minor at the time of incident and was hardly aged 5 years. After satisfying itself the court had examined the child prosecutrix without Oath and she has deposed that she was playing outside her house when Munna caught her hand and took her inside his house. According to her, the accused removed her clothes and also his clothes. She has specifically deposed that "Vo mere upper late gaya aur usne upni Susu wali jagaj meri susu wali jagah me mila di. Tab mai chillai. According to her, then Vir Pal uncle came and saved her. She has also deposed that her statement was also recorded by the Magistrate. The prosecutrix has correctly identified the accused Munna in the court.

In her cross-examination the witness has deposed that accused Vir Pal is known to her parents and he used to visit their house as he was living in front of their house. She has denied that Munna has not done anything with her or that a quarrel took place between the accused and her parents on account of water.

PW2 Smt. Laxmi is the mother of the prosecutrix who has deposed that she is a maid servant and do work in the kothies of Shalimar Bagh. According to her, she had three children out of which two are girls and one is boy. She has deposed that on 21.7.2007 at about 8:00 am she left her house and went for work and her husband used to leave the house at about 5 am for his job. The witness has testified that at about 4;00 pm when she returned back to her house she saw that her daughter 'M' was weeping and on asking her daughter told her that the accused Munna called her when she St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 3 was playing outside the house and asked her to bring cigarette. PW2 has further deposed that her daughter brought cigarette for accused who caught her hand and took her in his house and thereafter he removed the skirt of her daughter. According to the witness, her daughter also told her that accused Muuna put his susu wali jagah into her susu wali jagah and thereafter she started crying on which one Vir Uncle came and saved her. The witness has also deposed that she then went to the house of Vir Pal and inquired about the fact on which Vir Pal answered positively and thereafter she search Munna but he ran away from his house. She has also deposed that thereafter she made a telephonic call to her husband and narrated the incident on which her husband returned back at about 5:00 pm and informed the police on 100 no. She has proved her statement which is Ex.PW2/A and has deposed that her daughter was taken to government hospital by the police and she accompanied her daughter to the hospital for medical examination. The witness has also deposed that doctor seized the clothes of her daughter who was released to them on superdari vide memo Ex.PW2/B. She has also testified that her daughter was also taken to Rohini Courts and her statement was recorded by the Metropolitan Magistrate. She has proved the arrest memo of the accused Munna which is Ex.PW2/C. The witness has identified the accused Munna in the court and her examination in chief was deferred for want of case property but it is evident from the record that thereafter the said witness did not turn up to depose before this court and it is now reported that she is not traceable having left for Nepal.

St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 4

PW3 Shyam Singh is the father of the prosecutrix who has deposed that on 21.7.2007 he left his house at about 5:00 am in the morning for his job and went to Palam. The witness has further deposed that his wife usually left the house at about 8:00 am and went for her job in the kothies and on that day at about 4:00 am he received a telephonic call and his wife narrated about the incident which occurred with his daughter 'M'. The witness has deposed that he immediately came to his house at about 5:30 - 6 pm and inquired from his wife Laxmi, daughter 'M' and his neighbourer Vir Pal about the incident and thereafter he tried to search the accused Munna but the accused ran away from his house. According to PW3 Vir Pal told him that on hearing the cries of the prosecutrix, he went inside the house of accused Munna and saved the prosecutrix 'M'. He has testified that the prosecutrix told her that when she was playing outside the house, accused called her for bringing some cigarette and thereafter the accused caught hold her hand and taken inside his house after which the accused removed her clothes and put his 'susu wali jagah' to her 'susu wali jagah'. The witness has proved having telephoned to the police on 100 number and that the statement of his wife Laxmi was recorded and FIR was registered. According to the witness, his daughter was taken to BJRM Hospital for her medical examination and doctor seized the clothes of the prosecutrix after which she was released to them on Superdari vide memo Ex.PW2/B. He has further deposed that his daughter was taken to Rohini Courts and her statement was recorded by the Metropolitan Magistrate. PW3 has proved the arrest memo of the accused which is Ex.PW2/C, personal search memo of the accused which is Ex.PW3/A. He has St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 5 also identified the accused Munna in the court. However, examination in chief of the witness was deferred for want of case property but it is evident from the record that thereafter the said witness did not turn up to depose before this court and it is now reported by the investigating officer that the witness is not traceable having left for Nepal.

PW5 Mohinder Singh is the landlord of the accused Munna who has deposed that he had partitioned his Jhuggi no. 46 CA Block, Shalimar Bagh into two parts and in one part he is residing with his family and in the other part accused Muuna was residing as a tenant at a monthly rent of Rs.600/- along with his brother Arvind. He has deposed that he used to go for his work in the morning and on 14.7.2007 he had gone to his work as usual and when he came back he came to know that accused has committed rape on the daughter of Shaym who was aged around 5-6 years. He has testified that accused Munna was his tenant on the day of the incident. This witness was also not cross-examined by the accused.

Medical Witnesses:

PW8 Dr. Shakuntala Rani has proved the MLC No. 28836 of the prosecutrix 'M', aged 5 years, female who was brought to the hospital on 21.7.2007 with the alleged history of physical and sexual assault on 21.7.2007 (as disclosed by patient and her mother). According to the witness, the patient was initially examined by Junior Resident in Casualty after which she was referred to SR Gynae for expert opinion. She has deposed in Gynae Department the patient was examined by Dr. Gangotri and as per the MLC on local St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 6 examination secondary sexual character were not developed; white discharge plus no external fresh injury seen; bleeding not seen; on per speculam examination the hymen torn old, no fresh bleeding, vagina admit one finger; there was no fresh injury seen in the vagina and no bleeding. On anal examination slightly erythematous (redness) seen and there was no bleeding. The witness has further deposed that according to the patient she was not wearing any undergarments and was wearing only skirt and shirt. According to PW8, skirt has been wrapped and sealed, anal smear side, vaginal smear sides were made and all the three items were handed over to Lady Constable after sealing. According to her, the patient was advised for X-Ray long bone for age determination. She has proved the endorsement of Dr. Gangotri dated 13.9.2007 where it is clearly written that vagina was admitting one finger otherwise no fresh injury, no bleeding. She has identified the handwriting of Dr. Gangotri on the MLC having seen her while signing and writing during the course of her duty. She has proved the MLC of the prosecutrix which is Ex.PW8/A. The witness has further proved that on 23.7.2007 one patient Munna, aged 19 years male was also brought to the hospital and was examined by Dr. Rakesh, Junior Resident and as per the MLC there was nothing to suggest that patient in incapable of sexual intercourse. She has proved the MLC of the accused which is Ex.PW8/B written by Dr. Rakesh. She has proved having seen Dr. Rakesh signing and writing during the course of her duty.

St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 7

In her cross-examination the witness has deposed that she is not aware of the date of appointment of Dr. Rakesh and Dr. Gangotri and she also does not remember the date when they left the hospital. According to her, she has deposed on the basis of the record and she has no personal knowledge of the case.

Police/ official witnesses:

PW4 HC Prem Singh is the formal witness being the Duty Officer. He has deposed that on 21.7.2007 at about 8:55 pm an information was received through PCR regarding the rape in CA- Block Jhuggi on which he made DD No. 61B in Daily Diary Register copy of which is Ex.PW4/A. He has proved that at about 11:15 pm he received a Rukka which was sent by SI Sushila Rana through HC Surender on the basis of which he registered the case FIR No.513/2007, under Section 342/376/511 Indian Penal Code, computer copy of which FIR is Ex.PW4/B. He has also proved his endorsement on the Rukka which is Ex.PW4/C and has deposed that he handed over the original rukka and computer copy of FIR to HC Surender. The said witness has not been cross-examined by the Ld. Counsel for the accused.

PW6 SI Baljeet Singh has deposed that on 21.7.2007 pursuant to DD No. 61B, he along with HC Surinder reached at CA Block Jhuggies, Shalimar Bagh where they came to know that the prosecutrix had been removed to BJRM Hospital. According to him, he alongwith HC Surinder reached BJRM Hospital where the prosecutrix 'M' and her mother Laxmi met them and in the meanwhile Sushila Rana came in the hospital. He has further St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 8 deposed that on 22.7.2007 SI Sushila Rana received a secret information on which he along with SI Sushila Rana, Constable Neeraj, Constable Naresh and secret information reached at CA Block Jhuggies from where they along with the prosecutrix and her parents went to Singhal Pur, near Petrol Pump. The witness has further deposed that at the instance of the secret informer, accused Munna was apprehended and arrested vide memo Ex.PW2/C and the personal search of the accused was conducted vide memo Ex.PW3/A after which accused took them to Jhuggies where he pointed out the place where he (accused) committed the rape pursuant to which the investigating officer prepared the site plan. He has further deposed that SI Sushila Rana along with constables and accused went to BJRM Hospital for medical examination of accused.

In his cross-examination the witness has deposed that he had received the DD at about 8:45/ 9 pm and he had not made separate departure entry. According to him, he reached the spot within 5 minutes on a scooter and remained in the hospital for about

15 minutes. He has deposed that on 22.7.2007 he reached the spot at about 5:15 pm at the instance of SI Sushila Rana and they reached Singhal Pur at about 6:15 pm and stayed there for about 45 minutes. PW6 has also deposed that many public persons were present at the place of arrest and he had not asked any public persons to join the investigations nor in his presence SI Sushila Rana asked any public person to join the investigations. He has testified that the accused was caught by Constable Naresh and Constable Neeraj. He is unable to tell the name of the owner of adjacent jhuggi of accused. He is also unable to tell if the investigating officer had inquired about the St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 9 occupants of adjacent jhuggi of the accused. The witness has further deposed that Constable Naresh and Constable Neeraj had taken the accused for medical examination.

PW7 Lady Constable Kamla Devi has deposed that on 21.7.2007 she was on duty at Control Room Ashok Vihar. According to her, Constable from the police station Shalimar Bagh came to the duty officer and asked to send one Lady Constable for medical examination of the prosecutrix pursuant to which she along with the Constable reached at BJRM Hospital where she got medically examined the prosecutrix 'M' aged about 5 years. She has testified that after medical examination doctor handed over two pullandas with the seal of BJRM Hospital and one sample seal to her which she handed over to the investigating officer which were taken into possession vide memo Ex.PW7/A. In her cross-examination the witness has deposed that they reached the hospital at about 9:40 pm where SI Sushila Rana and Constable Neeraj met her. She has also deposed that she along with SI Sushila Rana came to Jhuggi No. 43, CA Block belonging to the accused Munna but the Jhuggi was found locked.

PW9 HC Subhash is the MHCM who has deposed that on 21.7.2007 WSI Sushila Rana deposited two sealed pullandas and one sample seal of MS BJRM Hospital alleged to be containing anal smear slide and vagina slides of victim and the second pullanda was alleged to be containing skirt of the victim. He has proved having made the entry in this regard at serial no. 3518 of register no. 19. According to him, on 22.7.2007 the investigating officer SI Sushila Rana deposited two sealed pullandas sealed with the seal of BJRM St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 10 Hospital alleged to be containing undergarments of accused and blood sample of the accused along with sample seal and he made entry in this regard at serial no. 3519 of register no. 19. The witness has further deposed that on 6.8.2007 on the instructions of the investigating officer four sealed pullandas and two sample seals were handed over to Ct. Naresh Kumar for depositing in FSL Rohini vide RC No. 129/21/07 who after depositing the same, deposited the receipt with him, He has proved that the sealed pullandas remained intact during his custody and he did not interfere with it nor he allowed anyone to interfere with the same. He has placed on record the copy of the relevant entries in Register No. 19 which is Ex.PW9/A and copy of the Register No. 21 which is Ex.PW9/B. In his cross-examination the witness has admitted that he had not taken the signatures of the investigating officer in Register no. 19 who had deposited the pullanda with him. He has denied the suggestion that writings in the Register no. 19 and 21 are different.

PW10 ASI Devender Singh has deposed that on 21.7.2007 he was posted as PCR Van Incharge and at about 8:30 pm he received information from the Control Room regarding rape in Jhuggies at CA Block after which he along with his staff reached the spot where they met the victim 'M' aged about 5 years along with her mother and father. The witness has deposed that he took them to BJRM Hospital where the prosecutrix was examined and after some time SI Baljeet Singh from the police station Shalimar Bagh came and he informed him about the incident.

In his cross-examination the witness has deposed that he along with Driver ASI Daya Chand reached the spot and that he was St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 11 present near Prembari bridge when he received the call. According to him, he stayed in the hospital for about 20-25 minutes till the time the officials from the local police came to the hospital.

PW11 Sh. Rajesh Goyal, Ld. ACMM, Dwarka Courts, has deposed that on 23.7.2007 he was posted as Metropolitan Magistrate in Rohini Courts and on that day the investigating officer had moved an application for recording the statement of the prosecution 'M' under Section 164 Code of Criminal Procedure before Ms. Rekha, the the Ld. MM, Rohini which was marked to him for disposal and he fixed the same on 24.7.2007 for disposal. According to him, on 24.7.2007 the investigating officer SI Sushila Rana produced the prosecutrix and he proceeded to record the statement of the prosecutrix. He has proved the application moved by the investigating officer which is Ex.PW11/A, statement of the prosecutrix which is Ex.PW11/B, application of the investigating officer for copy of the proceedings which application is Ex.PW11/C and the envelope which is Ex.PW11/D. PW12 SI Sushila Rana is the investigating officer of the present case who has deposed that on 21.7.2007 she was posted as Sub Inspector in RCI Cell, Sub Division, Shalimar Bagh and on that day she received DD No.61 B after which she reached BJRM hospital where she met SI Baljeet Singh along with HC Surender L/Ct. Kamla, victim 'M' along with her parents. She has deposed that SI Baljeet briefed her about the incident and she made inquiry from the prosecutrix and her parents and collected her MLC. The witness has proved having recorded the statement of Smt. Laxmi which is St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 12 Ex.PW2/A on which she prepared rukka which is Ex.PW12/A which rukka was handed over to HC Surender for getting the FIR registered. She has further deposed that HC Kamla handed over to her two pullandas sealed with the hospital seal which she seized vide memo Ex.PW7/A after which she along with victim and her parents reached at Jhuggi No. 43 CA Block, Shalimar Bagh but the Jhuggi was found locked. She has testified that she made inquiries about the accused and recorded the statement of Veer Pal, as well as the statement of victim and her parents and in the meantime HC Surender came back at the spot and handed over to her the copy of the FIR. She has also deposed that the victim was handed over to her mother vide memo Ex.PW2/B and the case property was deposited in the malkhana. According to the investigating officer she received a secret information on 22.7.2007 with regard to the accused Munna on which she prepared raiding party consisting of herself, SI Baljeet, Ct. Neeraj and Ct. Naresh and reached at CA Block from there they took victim and her parents with them and thereafter reached near Patrol Pump Singalpur, near mall where at the instance of secret informer the accused Munna was apprehended who was also identified by the victim. She has proved the arrest of the accused vide memo Ex.PW2/C, the personal search memo of the accused which is Ex.PW3/A and the disclosure statement of accused which is Ex.PW12/B. According to the witness, the accused thereafter pointed out the place of occurrence vide pointing out memo Ex.PW12/C and she prepared the site plan Ex.PW12/D at the instance of victim. She has further deposed that she recorded the St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 13 statement of witnesses after which accused Munna was medically examined and pullandas were handed over to her vide memo Ex.PW12/E. The witness has further deposed that on 23.07.2007 she moved an application Ex.PW11/A for recording the statement of the prosecutrix under Section 164 Code of Criminal Procedure and thereafter on 24.07.2007 her statement was recorded and she collected the copy. The witness has also proved that the bony age examination of the prosecutrix was conducted according to which her age is 7-8 years which result is Ex.PW12/F and on 06.08.2007 exhibits were sent to FSL through Ct. Naresh and thereafter she deposited the receipt with MHC(M). She has proved having prepared the challan and filed the same in the court and later on FSL result Ex.PX was collected and filed in the court. PW12 has further deposed that she tried to search the witnesses Laxmi and Shyam Singh but they are not traceable despite her best efforts and the report of the DCP (NW) in this regard is Ex.PX1. She has duly identified the accused Munna in the court.

In her cross-examination the witness has deposed that she reached the hospital at about 9:30 PM and remained there for about 2 hours. According to her the Jhuggi No. 43 was locked by its owner Mahender Singh and she cannot tell the name of the owner of Jhuggi No.42 as well as 44 but states that the Jhuggi No. of Laxmi is 101 and the distance between Jhuggi No. 43 and Jhuggi No. 101 is around 5-7 minutes. She has deposed that she remained at the spot at around 12:00 AM (midnight) and no one was ready to give their statements as public witness. The witness has testified that she also St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 14 came to know that Arvind was also residing in Jhuggi No. 43 at that time and she did not record the statement of Arvind on next day. She has also deposed that on 22.7.2007 she again visited at Jhuggi No. 43 at around 6:30 PM after arresting the accused and SI Baljeet, Ct. Naresh, Ct. Neeraj, victim, parents of victim and accused Munna were accompanied with her. According to the witness the secret information was received at 5 PM when she was at police station and she also made entry at police station regarding visit at Singalpur where they reached at around 5:45 PM. She has deposed that the accused was apprehended near the wall which was adjoining a mall and the disclosure statement of accused and arrest memo was prepared at the spot.

Statement of the accused/ defence evidence:

After completion of the prosecution evidence the statement of the accused Munna was recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence has been put to the accused which he has denied. He has stated that he is innocent and has been falsely implicated in the present case since he had objected to the illicit relations between the mother of the prosecutrix and Virpal Singh who were found in objectionable position in his Jhuggi. According to him, at that time they had given threat to him of facing the dire consequences and it is due to this enmity with the family of the prosecutrix, he has been falsely implicated in the present case. The accused Munna has examined two witness in his defence.

St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 15

DW1 Prakash has deposed that he knew Laxmi, Veer Pal and Munna who are residing in the same locality. According to him, there was a quarrel between accused Munna on the one side and Laxmi and Veer Pal on the other side since there were illicit relations between Laxmi and Veer Pal and they had threatened the accused that they would implicate him in a false case at any time. He has deposed that the accused Munna has been falsely implicated in this case by Laxmi and Veer Pal.

In his cross-examination the witness has deposed that he is related to Munna through his cousin Chacha through the village relation. He has further deposed that he had made a complaint to the police that Munna has been falsely implicated but he was told by the police to come to the police station. According to him, he did not give any complaint in writing to any senior police officer to this effect that Munna was innocent nor did he move any application in any court alleging that the police was not giving him a hearing. The witness has also deposed that no police complaints were made with regard to any quarrel which took place between the accused and Laxmi previously since it was sorted out with the intervention of respectable persons of the locality.

DW2 Ashok Kumar, who is also known to the accused and mother of the prosecutrix, has corroborated the testimony of DW1 to that extent that there was a quarrel between accused Munna on the one side and Laxmi and Veer Pal on the other side since there were illicit relations between Laxmi and Veer Pal and they had threatened the accused that they would implicate him in a false case at any time. He has deposed that the accused Munna has been falsely St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 16 implicated in this case by Laxmi and Veer Pal. DW2 has further deposed that Veer Pal had committed suicide by hanging himself because he has falsely implicated the accused in the present case and Smt. Laxmi and Shyam Singh have also ran away from their Jhuggies.

In his cross-examination the witness has deposed that accused Munna is his neighbour and he is also related to the accused. According to him, he did not tell the police that the accused had been falsely implicated by Laxmi on account of the quarrel nor did he make any complaint to the senior police officers. He has admitted that the complainant in the present case is Laxmi and not Veer Pal and has deposed that no case has been registered against Laxmi in respect of death of Veer Pal. He is unable to tell if Veer Pal committed suicide as he had falsely implicated the accused Munna in the present case. He has admitted that it is his own assessment that Veer Pal might have felt repentance for falsely implicated Munna in the present case on account of which Veer Pal committed suicide.

FINDINGS:

I have heard the arguments advanced before me and applied my mind to the evidence on record.

Firstly in so far as the identity of the accused Munna is concerned, the same has been clearly established as the prosecutrix/ child victim 'M' who has been examined as PW1 has clearly identified the accused Munna. Even otherwise there is no question of there being any dispute with regard to the identity of the accused since he was residing in the same area and was previously known to St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 17 the prosecutrix and her family.

Secondly in so far as the age of the child prosecutrix is concerned, it is evident from the testimony of the prosecutrix and also from the MLC that she was 5 years of age at the time of the incident, which aspect has not been duly controverted.

Thirdly it is evident from the record that the most material witness of the prosecution, who is the chance witness and had allegedly saved the child 'M' from the clutches of the accused, Veer Pal has not appeared before this court to depose since as per the report he has expired. There is, therefore, no independent corroboration to the version given by the child.

Fourthly PW2 Smt. Laxmi the mother of the prosecutrix and PW3 Shyam Singh the father of the prosecutrix appeared at the initial stages but thereafter did not appear despite repeated opportunities and as per the report of the investigating officer, are presently not traceable. Their part testimonies, so recorded are liable to be discarded and cannot be read into evidence.

Fifthly the prosecutrix in her statement before the Ld. MM under Section 164 Code of Criminal Procedure which has been duly proved by Sh. Rajesh Goel the then Ld. MM (PW11), had stated that the accused had done Gandi Baat with her but on being asked by the Ld. MM what is Gandi Baat she is unable to reply the same. The relevant portion of her statement is as under:

".... Munna hai na jo usne mera haath khincha. Mujhe apni jhuggi me le gaya.

Mujhe pita. Usne mere kapre utaar diye.

Usne apne kapre bhi utaar diye. Usne St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 18 darwaja bund kiya hua tha. Munna mere upar chad gaya aur mere saath gandi baat ki. Main chillane lagi. Ek Veer Pal ne darwaja tod kar mujhe bachaya. Munna ne upar chad kar gandi baat karne ki koshish ki....."

She has further stated that:

"....... Mujhe nahin pata ki Gandi Baat kya hoti hai. Veerpal ne mujhe jhuggi par chor diya ......"

It is evident that the prosecutrix had stated that the accused removed her cloths and lied upon her and attempted Gandi Baat with her, when she shouted and Veer Pal Uncle came and saved her. Therefore, the child only talks about an attempt to do Gandi Baat after removing her clothes but does not specify the act. She is unable to tell the Ld. MM what she means by Gandi Baat.

Sixthly the child prosecutrix in her deposition made before the court, has for the first time specified the act of the accused. She has deposed as under:

" .......... I know accused Munna present in the court today. I was playing outside my house. Munna accused present in the court today caught my hand and took me inside his house. He removed my clothes 'Vo mere St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 19 upper late gaya aur usne apni Susu Wali Jagah meri susu wali jagah me mila di.

Tab me chillai. Then Vir Pal uncle came and saved me. My statement was also recorded by the Magistrate........"

It is evident that this statement of the prosecutrix does not find a corroborated from any other source and it is for the first time that the child has specified the act of the accused in the court. Earlier in her statement made before the Ld. Magistrate she has simply stated that the accused tried to do Gandi Baat with her but has unable to specify what Gandi Baat was. Even her mother Smt. Laxmi on whose statement the FIR was registered, has simply stated that the accused Munna had tried to commit rape/ Galat Kaam with the prosecutrix. Later before the court both Smt. Laxmi and Shyam Singh (father of the prosecutrix) have not appeared and their examination in chief which was partly recorded is liable to be discarded. The allegations made by the child against the accused having done Gandi Baat/ rape, does not even find a support from the medical evidence on record. This being so, I hereby hold that the statement of the child prosecutrix to the extent of improvement is liable to be discarded.

Seventhly PW8 Dr. Shakuntala Rani has proved the MLC of the prosecutrix which is Ex.PW8/A and it is evident from the MLC that on local examination no fresh external injury was seen. There was also no bleeding and per speculam examination shows that the hymen torn was old. In so far as the vaginal examination is St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 20 concerned, there was no fresh injury seen in the vagina but on anal examination there was slightly erythematous (redness). The relevant testimony of PW8 is as under:

".... In Gynae Deptt. Patient was examined by Dr. Gangotri and as per the MLC on local examination secondary sexual character not developed. White discharge plus no external fresh injury seen. Bleeding not seen. Per speculam examination hymen torn old, no fresh bleeding, vagina admit one finger. There was no fresh injury seen in the vagina. No bleeding. On anal examination slightly erythematous (redness). No bleeding......"

Therefore, it is evident from the above that the medical evidence of the child does not support the allegations of rape but anal examination shows slight redness (erythematous). This certainly proves that there was some kind of sexual assault on the child 'M' but certainly this act cannot be brought within the ambit of Section 375 Indian Penal Code or even attempt thereof.

Eightly the child at the time of her medical examination the prosecutrix was not wearing any undergarments and was wearing only skirt and shirt and it is evident that she had washed herself. The FSL examination report therefore does not support the case of the prosecution.

St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 21

Ninethly it is evident that the various police witnesses have proved the proceedings conducted by them and have corroborated each other on material particulars and there are no material contradictions.

Lastly the accused has tried to raise a defence that there were illicit relations between the mother of the prosecutrix and Veer Pal which he has objected due to which reason the mother of the prosecutrix implicated him in the present case and Veer Pal committed suicide on account of the same. I have considered the submissions made by the accused in this regard. I may observe that both DW1 Prakash and DW2 Ashok Kumar are closely related to the accused, DW1 Prakash being related to the accused through his cousin Chacha in the village and DW2 Ashok having admitted that he is related to the accused. The said witness have clearly stated that they did not make any complaint to the senior police officers or any authority that the accused has been falsely implicated at the instance of Veer Pal and it is for the first time that they have raised such a defence. Further, in so far as the factum of death of Veer Pal is concerned, they have admitted in their cross-examination that there was no police complaint between the accused and Smt. Laxmi to show that they had previous animosity nor any case was registered against Smt. Laxmi (mother of the prosecutrix) in respect of death of witness Veer Pal. In fact DW2 has deposed that Veer Pal has gone away from Delhi and he does not know the cause of his death but has admitted that this is his assessment that Veer Pal must have felt repentance for falsely implicating the accused Munna in the present case and had committed suicide about two years ago. This court St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 22 cannot go by the conjectures and surmises of the witnesses and in the absence of any documentary record with regard to the cause of death of Veer Pal, the testimonies of both the defence witnesses are required to be discarded.

FINAL FINDINGS:

The provisions of Section 375 Indian Penal Code provides the Definition of Rape as under:

"375 Rape: 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 whom she is interested in fear of death or 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 who 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 of 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.

Sixthly:- With or without her consent, when she is under sixteen years of age.

St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 23

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.

Any attempt to commit the act as aforesaid is also an offence.

Before proceeding further to discuss regarding the applicability of provisions of Section 376 Indian Penal Code, I am compelled to pen down my concerns on the manner in which the medical examination of the prosecutrix 'M' a small girl of 5 years has been got conducted. The MLC of the prosecutrix 'M' Ex.PW8/A reveals that the doctor who had examined the prosecutrix had after reporting on the external injuries, state of sexual organs of the victim and the samples collected, conducted the following tests on the prosecutrix 'M' aged about 5 years:

1. The Hymen Test

2. The PV Test.

In so far as the Hymen Test is concerned, it has been reported by the doctor on the MLC of the prosecutrix that the Hymen torn old. Further, with regard to the PV Test it has been reported that vagina admits one finger.

This court has come across a number of MLCs of victims of rape where apart from reporting on the signs of violence or resistance, state of sexual organs of the victim and details regarding collecting of samples and reporting on the condition of the St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 24 hymen cord the information "PV: two fingers admissible or inadmissible" as the case may be is also mentioned. In this information it is also transcribed as "habituated to sex" or "used to sex". The category of habituated is used against raped women to suggest they lie about rape and this extends to child sexual abuse cases too.

It is this test which is the cause of concern. It is being routinely conducted by the doctors on the victims of sexual abuse and rape be it a minor (as in the present case), unmarried girl or married woman, without having any regards to the fact that the opinion of the doctors rendered after conducting such a test has no bearing with regard to the guilt or otherwise of the accused.

I may observe, that in case of sexual assault the doctor is only required to look into signs of violence or resistance if any upon the body of the victim for which the doctor would make a note of it by visible external examination. The doctor is further required to report on the state of sexual organs of the victim to include information regarding puberty and attaining of sexual maturity of the victim and in case of assault or pregnancy the abdominal and vaginal examinations and thereafter to collect the samples from the clothes of the victim and the alleged attacker and the vagina of the victim so as to establishing the nature of assault and the identity of the attacker.

In case if the victim is unmarried, the Hymen Test is conducted to check if the hymen cord is intact and in case of use of force any signs of tearing or bruising off or near the vagina is noted. Having conducted the aforesaid test no further examination is required. Why then the Per Vagina (PV) test which is normally St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 25 called the Finger Test is being carried out in routine on victims of sexual offences (even children). This test only establishes whether the vestibule is congested and whether one, two or three fingers can be inserted. It is this PV Test which is being carried out by the doctors in routine upon the rape victims to which this court has serious reservations.

The Hon'ble Supreme Court of India has Articulated and protected the privacy as one of the features of the fundamental rights i.e. Article 21 of the Constitution of India which states that no person shall be deprived of his life and personal liberty except according to the procedure established by law. The Hon'ble Apex Court has dealt with this aspect of Right to Privacy of a patient's medical record in the case of Mr. X Vs. Hospital Y reported in (1998) 8 SCC 296 in case of an AIDS patient's right of life which included his right to privacy and confidentiality of his medical condition.

Earlier in the case of Roe vs. Wade reported in 410 US 113 (1973) even while the Supreme Court of America dealt with the rights of an unmarried pregnant woman to an abortion, it observed that although the American Constitution did not explicitly mention any right of privacy, it recognized such a right as a guarantee of certain "zones or areas of privacy".

This being the legal position and the Constitution of India recognizing the Right of Privacy as an important fundamental right, the reservations of this court on the conduct of the PV Test/ Finger Test are on the following counts:

St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 26

Firstly the manner in which this medical test (PV Test) is carried out by inserting a finger inside the vagina of a women irrespective of age or marital status is violation of her body and in the absence of her consent would be violative of Constitutional dictates of right to Life as enshrined under Article 21 of the Constitution of India.

Secondly this test which permits a doctor to state whether a woman is "habituated to sex" or "used to sex" in a public proceedings without having due regards for confidentiality, is in itself violative of the Right of Privacy of a woman regarding her sexual life in as much as it tends to expose her private sexual life.

Thirdly the PV Test/ Two finger test, medically has no scientific or conclusive basis and the opinion rendered by the doctor to the extent of congestion of vestibule is subjective. I say this because assuming in a given case where the victim of rape is a married woman it is only natural that the vestibule would admits more than one finger. How then, would this be relevant to establish rape. Also, in a case where the victim is an unmarried girl once the Hymen Test is conducted how the aspect of extent of congestion of the vestibule would be relevant. The extension of vestibules to various degrees can be on account of various reasons including medical and not only because of the sexual life of a woman. Even if it is on account of her previous sexual life how relevant or authentic this test would be.

Fourthly once the character evidence of a rape victim is no longer admissible in evidence, how can this test (PV Test) which St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 27 only permits the doctor to state if the woman is habituated to sex or not, continue to inform the rape trials. This PV Test/ Finger Test which is being so conducted in routine upon the victims of sexual offences allows the character evidence to disqualify the victim's testimony. The presumptions under the Indian Evidence Act and the existing statutory provisions in India makes the sexual character of a rape victim irrelevant to sexual violence trials. Given these circumstances, the PV Test is absolutely unnecessary and irrelevant in trial of rape cases.

Lastly the PV Test which allows the doctor to state whether the woman is habituated to sex or used to sex is self incriminating as it is often used to disqualify the victim's testimony. This test shifts the focus of the investigations and the trial in sexual offences cases from the accused to the victim which is impermissible.

The humiliation which a rape victim suffers in the court on account of existing procedures is impermissible. This court is of the view that the existing medical and legal procedures which are irrelevant to the trial of the rape cases, are required to be reviewed and stopped forthwith.

The provisions of Section 164-A of the Code of Criminal Procedure [inserted by Act 25 of 2005, Section 17 (w.e.f. 23.6.2006)] make the consent of the rape victim/ prosecutrix or other person competent to give consent on her behalf, a mandatory pre-

condition for conducting her medical examination by the registered medical practitioner. In the present case, the MLC of the child St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 28 prosecutrix does not reflect any kind of consent on behalf of the person so competent to give consent on her behalf.

This being the background, I hereby hold that the PV Test/ Finger Test is irrelevant to sexual violence trials. This test is violative of the Fundamental Right of Privacy an important Constitutional Right of the victim. If due to any reason, under the given circumstances of a case, if the investigating officer is of the view that this test would be essential and necessary to collect evidence against the accused, or to ascertain the extent of injury caused to the victim in such case, then such a test should only be conducted only with the consent of the prosecutrix/ her guardians (prosecutrix if she is a major and guardians if she is a minor in terms of provisions of Section 164-A of the Code of Criminal Procedure) and that too after taking due permission from the court and not otherwise (since this test is not a preliminary test to establish charges of Rape).

Now coming to the merits of the case, as discussed herein above, the identity of the accused stands established. It is evident from the testimony of the prosecutrix that the accused had attempted to commit rape upon her but the medical record of the child does not support this conclusion. The child was examined on the same day and there was not fresh injury, bleeding etc. of any kind except redness around the anal area. The hymen of the child was torn but according to the doctor, the tear was old and there was no fresh injury. Therefore, the medical record of the child is only indicative of an assault but not of rape or attempt thereof.

St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 29

I hereby hold that the prosecution has been able to prove that the accused Munna wrongfully confined the minor girl 'M' and the medical evidence, does not satisfy the basic ingredients of the provisions of Section 375 Indian Penal Code or even attempt thereof but it certainly stands established that the accused before this court namely Munna had wrongfully confined the minor prosecutrix 'M' and assaulted her by using criminal force with the intention of outraging her modesty, for which I hold the accused Munna guilty of the offence under Section 342 and Section 354 Indian Penal Code (not under Section 376 (2) (f) read with Section 511 Indian Penal Code) and convict him accordingly.

Case be listed for arguments on sentence on 13.10.2010.

Announced in the open court                       (Dr. KAMINI LAU)
Dated: 6.10.2010                                  ASJ-II(NW): ROHINI




St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh           Page No. 30
 State Vs. Munna
FIR No. 513/07
PS Shalimar Bagh
6.10.2010
Present:        Addl. PP for the State.

Accused in JC with Amicus Curiae Sh. B.N. Sharma Advocate.

Vide my separate detailed order dictated and announced in the open court, I hold the accused guilty of the offence under Section 342 and 354 Indian Penal Code (not under Section 376 read with Section 511 Indian Penal Code) and convict him accordingly.

Case be listed for arguments on sentence on 13.10.2010.

(Dr. Kamini Lau) ASJ-II (NW)/ 6.10.2010 St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 31 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II(NORTH-WEST): ROHINI COURTS: DELHI Session Case No.: 1120/09 Unique Case ID No.:0240420595962009 State Vs. Munna S/o Sh. Tej Pal R/o Jhuggi No. 43, C-A Block, Shalimar Bagh, Delhi FIR No.: 513/07 Police Station: Shalimar Bagh Under Section: 342/376 (2) (f) Indian Penal Code Date of conviction: 6.10.2010 Arguments heard on: 13.10.2010 Date of sentence: 13.10.2010 APPEARANCE:

Present: Sh. Toufiq Ahmed, Addl. PP for the State.

Convict in JC with Amicus Curiae Sh. B.N. Sharma Advocate.

ORDER ON SENTENCE:

Vide my separate detailed judgment dated 6.10.2010, the accused before this court namely Munna has been held guilty of the offence under Section 342 and Section 354 Indian Penal Code.

The allegations involved are that the accused before this court namely Munna had attempted to commit rape upon the minor child 'M' aged about 5 years. As per the allegations he had asked the prosecutrix to get cigarette for him and when the child got the St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 32 cigarettes for him, he took her inside his Jhuggi and tried to commit Galat Kaam/ rape upon her but the prosecutrix was saved with the timely intervention of Veer Paal. The most material witness of the prosecutrix Veer Pal has not appeared in the court and as per the report of the investigating officer has expired. Even the mother of the prosecutrix namely Smt. Laxmi and father of the prosecutrix namely Shyam Singh had appeared at the initial stages and deposed partly but their examination in chief could not be completed and thereafter the investigating officer has failed to secure their presence before the court on the ground that they are not traceable. On the basis of the testimony of the prosecutrix 'M' and the MLC on record the accused has been acquitted of the offences under Section 376 (2)

(f) Indian Penal Code and has been held guilty only of the offence under Section 342 and Section 354 Indian Penal Code and convicted him accordingly.

I have heard the arguments advanced before me. Ld. Amicus Curiae appearing on behalf of the convict has argued that the convict Munna is a young boy of 21 years having a family comprising of father, mother and four brothers. It is submitted that the convict is totally illiterate and is a driver by profession. According to him, the convict is a first time offender and is not involved in any other case and is in judicial custody w.e.f. 22.7.2007 till date. He requests that a lenient view be taken against the convict.

The Ld. Addl. PP for the State has prayed that a stern view be taken against the convict in view of the fact that the offence has been committed upon a small child of 5 years.

St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 33

I have considered the rival contentions. The convict Munna has no criminal background and is not involved in any other case. He is a young boy of 21 years of age and belongs to a very poor family. The maximum punishment prescribed for the offence under Section 354 Indian Penal Code is two years and the convict has already remained in judicial custody for about 3 years, 3 months, 20 days i.e. more than the prescribed period. Therefore, the convict Munna is sentenced to Rigorous Imprisonment for a period of two years for the offence under Section 354 Indian Penal Code. He is also sentenced to Rigorous Imprisonment for a period of One Year for the offence under Section 342 Indian Penal Code. Both the sentences shall run concurrently.

Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial. Since the convict Munna has already remained in custody for the period more than the prescribed punishment, he is directed to be released forthwith.

The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

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

St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 34

Before concluding, it is necessary to observe that this court in its judgment dated 6.10.2010 was compelled to pen down its concerns on the manner in which the medical examination of the prosecutrix 'M' a small girl of 5 years has been got conducted. The MLC of the prosecutrix 'M' Ex.PW8/A reveals that the doctor who had examined the prosecutrix had after reporting on the external injuries, state of sexual organs of the victim and the samples collected, conducted the following tests on the prosecutrix 'M' aged about 5 years:

1. The Hymen Test

2. The PV Test.

This court has come across a number of MLCs of victims of rape where apart from reporting on the signs of violence or resistance, state of sexual organs of the victim and details regarding collecting of samples and reporting on the condition of the hymen cord the information "PV: two fingers admissible or inadmissible" as the case may be is also mentioned. In this information it is also transcribed as "habituated to sex" or "used to sex". The category of habituated is used against raped women to suggest they lie about rape and this extends to child sexual abuse cases too.

St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 35

It is this test which is the cause of concern. It is being routinely conducted by the doctors on the victims of sexual abuse and rape be it a minor, unmarried girl or married woman, without having any regards to the fact that the opinion of the doctors rendered after conducting such a test has no bearing with regard to the guilt or otherwise of the accused.

In case if the victim is unmarried, the Hymen Test is conducted to check if the hymen cord is intact and in case of use of force any signs of tearing or bruising off or near the vagina is noted. Having conducted the aforesaid test no further examination is required. Why then the Per Vagina (PV) test which is normally called the Finger Test is being carried out in routine on victims of sexual offences. This test only establishes whether the vestibule is congested and whether one, two or three fingers can be inserted. It is this PV Test which is being carried out by the doctors in routine upon the rape victims to which this court has serious St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 36 reservations.

Firstly the manner in which this medical test (PV Test) is carried out by inserting a finger inside the vagina of a women irrespective of age or marital status is violation of her body and in the absence of her consent would be violative of Constitutional dictates of right to Life as enshrined under Article 21 of the Constitution of St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 37 India.

Secondly this test which permits a doctor to state whether a woman is "habituated to sex" or "used to sex" in a public proceedings without having due regards for confidentiality, is in itself violative of the Right of Privacy of a woman regarding her sexual life in as much as it tends to expose her private sexual life.

Thirdly the PV Test/ Two finger test, medically has no scientific or conclusive basis and the opinion rendered by the doctor to the extent of congestion of vestibule is subjective. I say this because assuming in a given case where the victim of rape is a married woman it is only natural that the vestibule would admits more than one finger. How then, would this be relevant to establish rape. Also, in a case where the victim is an unmarried girl or even a child (as in the present case) once the Hymen Test is conducted how the aspect of extent of congestion of the vestibule would be relevant. The extension of vestibules to various degrees can be on account of various reasons including medical and not only because of the sexual life of a woman. Even if it is on account of her previous sexual life how relevant or authentic this test would be.

Fourthly once the character evidence of a rape victim is no longer admissible in evidence, how can this test (PV Test) which only permits the doctor to state if the woman is habituated to sex or not, continue to inform the rape trials. This PV Test/ Finger Test which is being so conducted in routine upon the victims of sexual offences allows the character evidence to disqualify the victim's testimony. The presumptions under the Indian Evidence Act and St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 38 the existing statutory provisions in India makes the sexual character of a rape victim irrelevant to sexual violence trials. Given these circumstances, I hold that the PV Test is absolutely unnecessary and irrelevant in trial of rape cases.

Lastly the PV Test which allows the doctor to state whether the woman is habituated to sex or used to sex is self incriminating as it is often used to disqualify the victim's testimony. This test shifts the focus of the investigations and the trial in sexual offences cases from the accused to the victim which is impermissible.

The humiliation which a rape victim suffers in the court on account of existing procedures is impermissible. This court is of the view that the existing medical and legal procedures which are irrelevant to the trial of the rape cases, are required to be reviewed and stopped forthwith.

This being the background, I hereby hold that the PV Test/ Finger Test is irrelevant to sexual violence trials. This test is violative of the Fundamental Right of Privacy an important Constitutional Right of the victim. If due to any reason, under the given circumstances of a case, if the investigating officer is of the view that this test would be essential and necessary to collect evidence against the accused, then it should only be carried out with the consent of the prosecutrix/ her guardians (prosecutrix if she is a major and guardians if she is a minor) and that too after taking due permission from the court and not otherwise.

State action cannot be a threat to the Constitutional St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh Page No. 39 Right of an individual. What has shocked my conscious is the fact that this PV Test/ Finger Test is being carried out in routine on victims of sexual offences by the doctors (even on minors as has happened in the present case) thereby reflecting a rampant violation of the Constitutional Rights of such victims. It has therefore become necessary for this court to highlight this fact before the authorities concerned so that the necessary steps are taken in the direction to ensure the protection of the Right of Privacy of the victims of sexual offence.

Even earlier in case bearing FIR No.1135/06, Police Station Uttam Nagar, Under Section 363/376/368 Indian Penal Code under the title State Vs. Umesh Singh and Ors. has expressed similar concerns. It is desirable that investigating officers should be duly sensitized and instructed to ensure that this finger test/ PV Test is not carried out on the rape victims, particularly upon children, minor girls and married girls as a matter of routine. If due to any reason, under the given circumstances of a case, the investigating officer is of the view that this test would be essential and necessary to collect evidence against the accused, then it should only be carried out with the consent of the prosecutrix/ her guardians (prosecutrix if she is a major and guardians if she is a minor) and that too after taking due permission from the court and not otherwise. Copy of this order is hereby directed to be placed before the Commissioner of Police of Delhi for information and necessary action in this regard.

File be consigned to Record Room.

Announced in the open court                        (Dr. KAMINI LAU)
Dated: 13.10.2010                                 ASJ-II(NW)/ ROHINI

St. Vs. Munna, FIR No. 513/07, PS Shalimar Bagh           Page No. 40

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

State vs . Munna S/O Sh. Tej Pal on 13 October, 2010