Delhi District Court
State vs . Udaibir on 18 February, 2015
State Vs. Udaibir
IN THE COURT OF DR. PS MALIK,
ADDL. SESSIONS Judge01, NORTH EAST, DELHI
Nature of the case Sessions Trial
SC No. 40/2012
FIR No. 24/2012
Penal Sections Invoked 363/366A/376(2)(f)/377 IPC
Police Station Welcome
Computer ID of the case 02402R0074432012
Date of Committal 09.05.2012
Charge framed on 30.07.2012
Arguments Heard on 10.02.2015
Date of Orders 18.02.2015
Nature of Order Conviction
State Vs. Udaibir
S/o Sh. Shiv Dayal, R/o U67
Welcome, Delhi.
JUDGEMENT
1. The case was registered on the complaint of a minor girl, aged about 6 years who stated that one of her neighbours, the accused asked her to go to Seelampur and she started accompanying him. On the way, he took her to a public toilet and there he committed sexual intercourse per vagina and per anus. The girl could not tell anything to her parents on that day. Next morning she disclosed it to her mother JUDGEMENT
1|P a g e State Vs. Udaibir and then her mother to her father. Thereafter, the matter was reported to the police and the case was registered vide FIR No.24/2012, under Sections 366/376/377 IPC in Welcome police station.
2. The police investigated the case. Accused was arrested on the date of lodging the FIR. The matter was investigated into and finally a chargesheet under Sections 366/376/377 IPC was filed before the Court of Ld. MM and the case was committed to this Court on 09.05.2012.
3. Ld. Predecessor vide his order dated 30.07.2012 was pleased to frame a charge against the accused Udaibir for offences punishable under Sections 363/366A/376 (2)(f)/377 IPC. And, the prosecution invited its witnesses.
4. The father of the victim Sh. Mukesh was examined as PW1. He stated that the victim told her mother in his presence that the accused had taken her to a site of pubic convenience and committed rape upon her. During his crossexamination, he stated that on 16.01.2012 the victim had come to him at about 03:30/04:00pm and asked money and after that she met him again after about 05:30/05:45pm.
5. The mother of the victim Smt. Neelam was examined as PW2. This witness had also seen nothing through her eyes. She had stated in the Court that her daughter i.e. the victim had told her about the incident.
6. The victim was examined as PW4. She stated that on the fateful day i.e. on 16th January the accused had committed wrong act with her in a public toilet situated at some distance from her house and while taking her there the accused had threatened her to accompany him silently otherwise he would beat her. The victim JUDGEMENT
2|P a g e State Vs. Udaibir stated that the accused had removed her Pajami (lower apparel) and committed wrong act from both the sides. On the next day she apprised her parents about the incident and then her father called the police. The victim stated to have given her statement before the Ld. MM also. She identified her clothes when it was shown to her by the prosecution. But, the Ld. PP (Public Prosecutor) was not satisfied with the details disclosed by the victim and he preferred to cross examine the victim after seeking permission from the Court.
7. Thereafter, Ld. Defence Counsel proceeded to cross examine the victim. Ld. Counsel asked the victim about the day and date when he was cross examining her and the victim could not give any correct answer to that question. Ld. Defence Counsel further asked the victim regarding the name of the police official who met her in the Court room but the victim was not aware of that name.
8. PW8 Dr. Priyadarshani Nanda had medically examined the victim after the incident and during her medical examination she found that the hymen was ruptured with a small abrasion on the labia minora on the left side with no active bleeding. This doctor had collected her personal samples and handed over them to the police. She prepared MLC Ex.PW8/A bearing her signatures at point A.
9. PW9 Dr. Ravinder Singh had identified the signatures of Dr. Prashant Mishra who had prepared the MLC of the accused and that MLC is Ex.PW9/A.
10. SI Bina Thakur was the first IO. She was examined as PW11. First of all she met the victim in GTB Hospital where the victim was taken for her medical examination. There, she recorded statement of the victim Ex.PW1/A. She also JUDGEMENT
3|P a g e State Vs. Udaibir seized the personal samples of victim vide memo Ex.PW3/A. Thereafter she prepared a site plan Ex.PW1/B at the instance of father of victim. The accused was arrested at the instance of father of victim. He was arrested vide arrest memo Ex.PW1/D and his personal search was conducted vide memo Ex.PW1/E. Thereafter she handed over the investigation of this case to SI Manoj but later she had also filed an FSL report in the Court which is Ex.PW11/B. She was cross examined by the Ld. Defence Counsel and during her cross examination it came on record that she had reached GTB Hospital at about 08:30pm and recorded the statement of the victim at about 09:00pm and thereafter she sent the Rukka at the same time and remained there for 15 minutes more and took the victim to her house and reached on the spot at about 10:00pm.
11. PW12 SI Manoj Kumar stated that on 17.01.2012 he was posted in PS Welcome. He received the information about the offence and requested his senior police officers to depute a lady police official as IO because the victim was a girl of about 6 years of age. Thereafter he stated that how the IO had conducted the investigation. After the first day of investigation, he took charge of the subsequent investigation on 18.01.2012 and got the statement of the victim recorded before the Ld. MM. In the cross examination he stated that he remained in GTB Hospital till 09:00/09:15pm and reached the house of the victim at about 09:30pm with IO SI Beena Thakur. He stated that the accused Udaibir was arrested at about 10:30pm and that he had not seen the spot i.e. the public toilet after 17.01.2012.
12. The statement of the accused was recorded under Section 313 CrPC. The accused simply denied the incriminating evidence against him and did not lead any defence evidence.
JUDGEMENT
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13. The requirements of Sections 363/366A IPC:
• That a minor girl was taken or enticed away from her lawful guardianship, and • she was so taken away or enticed with a view to subject her to an illicit intercourse.
14. The requirements of Sections 376(2)(f)/377 IPC:
• The victim was subjected to rape per vagina, and • She was not 16 years of age at that time, and • She was also subjected to carnal intercourse against the order of nature i.e. the sexual intercourse per anus.
15. At the time of medical examination of the victim the samples were taken from her person by the doctor who deposed before the Court as PW8. Those samples through police constables PW6 and PW10 were deposited in the FSL and the FSL thereafter gave its report which is Ex.PW11/B. Out of several exhibits those were sent for analysis Exhibit '1c' was a sample of swab taken from cervical (opening of the uterus) mucus of the victim; Exhibit '1d' was a vaginal secretion of the victim. Exhibit '1f' was a washing from vagina of the victim and Exhibit '1g' was taken from rectal swab of the victim. The Exhibit '2' was a Pyjama of the prosecutrix (i.e. the victim).
16. As per results of biological examination given in this FSL report, the human semen was detected on Exhibits '1c', '1d', '1f' and '1g'. The judicial analysis of this FSL report shows that the human semen was found in the vagina, in the anus and lastly deep inside the reproductive system, at the opening of uterus. The presence of JUDGEMENT
5|P a g e State Vs. Udaibir human semen at the opening of the uterus is indicative of the depth of penetration at the time of sexual intercourse and also the time passed since then that intercourse was made. After the insertion of the semen in the vaginal canal its destination is to move towards the uterus as per its natural motion because uterus is the last destination of semen. In the present case the semen was found just on the opening of the uterus. This opening is called cervix.
17. PW8 the doctor examining the victim had observed that the hymen was torn and there was a small abrasion on labia minora on left side. Labia minora is the inner aspect of the vagina. The abrasion found there is indicative that a forceful insertion was made which had torn the hymen of the victim. This analysis has to be seen in view of the age of the victim. She was a girl of about 6 years of age. She was not a mature person and the forceful sexual act committed upon her would have caused this abrasion and tearing of her hymen.
18. The male discharge after that coition would have propagated inside the vaginal canal and by the time it was observed in the hospital by the doctor after about 24 25 hours it had reached from vagina to the internal parts i.e. opening of the uterus (cervix).
19. Now, the second part of the offence is that this sexual intercourse was committed per anus also and the male discharge was ejected as aforesaid by the accused. This was also perfectly corroborated by the presence of male semen in the rectum.
20. During the course of final arguments, Ld. Defence Counsel has argued and relied upon the authorities that there was no conclusive proof that this male discharge JUDGEMENT
6|P a g e State Vs. Udaibir belonged to the accused. But this Court does not find it a convincing argument. The victim in the very first account of her complaint Ex.PW1/A had named the accused and the accused was known to her. There was no doubt regarding the identification of the accused. The victim in her statement under Section 164 CrPC before the Ld. MM had also repeated the same sequence of events that were committed by the accused. The victim had identified the accused in the Court itself during Court proceedings. Ld. Defence Counsel apprehended a doubt that this case was a false allegation and the police had failed in proving any nexus between the male fluids obtained from the person of the victim and the accused.
21. Ld. Defence Counsel submitted that there is genuine doubt whose male fluids were those which were found inside the person of the victim. Ld. Defence Counsel relied upon two judgments. First is Kashinath Mondal Versus State of West Bengal, 2012(7) SCC 699, 2012. This was an appeal before the Hon'ble Supreme Court and the Hon'ble Supreme Court observed in the following words:
"PW2 Dr. Modak has stated that the evidence of spermatozoon in vaginal swab conclusively indicates sexual intercourse, but he has also stated that the spermatozoon may not be detected in vagina 10 hours after rape. Obviously, vaginal swab was chemically analyzed after a long lapse of time after the rape. We have no manner of doubt that had the Investigating Agency obtained the samples in a scientific manner and promptly sent them to the Serologist that would have lent further support to the prosecution".
22. The second case relied upon by the Ld. Defence Counsel is Krishan Kumar Malik Versus State of Haryana, 2011 (7) SCC 130, where a reference of Taylor's Medical Jurisprudence, 2nd Edition (1965) was made by the Hon'ble Supreme Court as under:
JUDGEMENT
7|P a g e State Vs. Udaibir "43. With regard to the matching of the semen, we find it from Taylor's 2nd Edn. (1965) Principles and Medical Jurisprudence as under: "Spermatoza may retain vitality (or free motion) in the body of a woman for a long period, and movement should always be looked for in wet specimens. The actual time that spermatozoa may remain alive after ejaculation cannot be precisely defined, but is usually a matter of hours.
Seymour claimed to have been movement in a fluid as much as 5 days old. The detection of dead spermatozoa in stains may be made at long periods after emission, when the fluid has been allowed to dry. Sharpe found identifiable spermatozoa often after 12 months and once after a period of 5 years. Nonmotile spermatozoa were found in the vagina after a lapse of time which must have been 3 and could have been 4 months".
23. Ld. Defence Counsel argued that the medical examination of the victim was conducted after about 2425 hours of the alleged incident and in that duration as per Taylor's view (Supra) the samples would be putrefied there and were not in a position to be analysed by the FSL.
24. This Court does not find this submission of the Ld. Defence Counsel quite satisfactory. The victim was a girl of about 6 years of age. For her any act of coitus would be nothing other than an experience of a severe physical pain. She was not in the age where a person lives in an active sexual life, therefore, it cannot be presumed that the victim was living an active sexual life and she might be bearing the male fluids belonging to some other male because nobody could be presumed to be willing to have a painful experience voluntarily. In these circumstances, the Court is willing to see the flow of events in a natural way. If the victim was having any traces of male fluids inside her body then those traces can simply be presumed to have been inserted there forcibly.
JUDGEMENT
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25. This is a precise case of prosecution that the victim was subjected to a forceful sexual intercourse per vagina and per anus by the accused. This Court has seen the examination of the victim conducted in the Court. During the course of examination of the victim, defence was not in a position to put a single question regarding the inability of the victim to identify the accused. It was nowhere suggested or shown that victim could have come in contact of any other male person other than as alleged by the prosecution. Nothing was indicative from the crossexamination of the victim that the victim had any previous animosity against him or had any confusion in identifying the accused. Therefore the plea taken by the defence at this stage is merely a chicanery. There is no element of sincerity in this plea.
26. The analysis as aforesaid is sufficient to show that the presence of male fluids in the body and on the clothes of the victim who was a small child of 6 years of age, was conclusive to show that the accused had a forceful sexual intercourse upon her per vagina and per anus both. The offences under Section 376(2)(f)/377 IPC both stand proved.
27. This offence was committed in a place of old public toilet where the victim was allegedly taken by the accused. She was a girl of 6 years of age and there is no dispute in this fact.
28. From the statements it is clear that the victim and her mother had put their thumb impressions on the sheets of the Court proceedings. They both were uneducated. Father of the victim also appears to be not well educated. Due to her illiteracy and tender age the victim could be easily induced or threatened by the accused. In her JUDGEMENT
9|P a g e State Vs. Udaibir examination she stated that the accused had threatened her in the words "CHUP CHAAP CHALTI REH NAHI TO TUJHE MARUNGA" (keep moving silently otherwise I will beat you). This is a simple threat under which the victim was put by the accused. Driven by this threat, victim felt forced to go where the accused wanted to take her and he took her to that abandoned place of public toilets, where, the accused committed the offence punishable under Sections 376(2)(f)/377 IPC. The accused was taking or enticing the victim girl and thereafter committed sexual assault on her is quite indicative to establish that when he was taking a victim he was inclined to take her out of her lawful guardianship with a view to commit a sexual intercourse upon her. This shows that the intention and the act of the accused were sufficient to prove his guilt under Sections 363/366A IPC and the offences punishable under Sections 363/366A stand proved by the prosecution against the accused.
29. The accused Udaibir is convicted accordingly for offences punishable under Sections 363/366A/376(2)(f)/377 IPC.
30. The file be taken up for arguments and order on sentence as per schedule given in the ordersheet.
Pronounced in the open court on 18.02.2015.
Dr. PS MALIK Addl. Sessions Judge01 N/E Karkardooma Courts, Delhi JUDGEMENT
10|P a g e State Vs. Udaibir IN THE COURT OF DR. PS MALIK, ADDL. SESSIONS JUDGE01, NORTH EAST, DELHI Nature of the case Sessions Trial SC No. 40/2012 FIR No. 24/2012 Computer ID of the case 02402R0074432012 Penal Sections invoked 363/366A/376(2)(f)/377 IPC Police Station Welcome Date of Committal 09.05.2012 Charge framed on 30.07.2012 Date of Conviction 18.02.2015 Date of Arguments on Sentence 21.02.2015 Date of Orders on Sentence 21.02.2015 State Vs. Udaibir S/o Sh. Shiv Dayal, R/o U67 Welcome, Delhi.
Order on Sentence
1. The convict Udaibir was held guilty and convicted for offences punishable under Sections 363/366A/376(2)(f)/377 IPC vide judgment dated 18.02.2015. JUDGEMENT
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2. Ld. Amicus Curiae for the convict argued that the convict was a first time offender and a poor person. There was a lurking doubt in connecting the convict to the traces of human semen found in the body of the victim.
3. On the other hand, Ld. PP argued that this is a most heinous offence committed by this convict in a gruesome manner. The victim was a child of 6 years of age who even did not understand the proper nature of the act which this convict had committed on her. Therefore, no leniency ought to be taken for this convict while awarding sentence. Ld. PP has argued that a maximum punishment ought to be given in this case.
4. This Court has heard the arguments.
5. For offence punishable under Section 363 IPC the convict can be punished with imprisonment of either description for a term which may extend to seven year, and shall also be liable to fine; for offence punishable under Section 366A IPC can be punished with imprisonment which may extend to ten year, and shall also be liable to fine; for offences punishable under Section 376(2)(f) IPC convict can be punished for life or for a term which may extend to ten years and shall be liable to fine; and for offence punishable under Section 377 IPC for life or for a term which may extend to ten years.
6. After considering the facts and circumstances and the arguments by the Ld. PP and the Ld. Amicus Curiae for the convict, this Court is of the view that the manner in which this offence was perpetrated was really shocking. It was perpetrated on a victim of 6 years of age who was defenceless before the accused. There is no valid ground on which the case of leniency for the convict is made out. JUDGEMENT
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7. Hence, this Court orders that the convict has to undergo a simple imprisonment for a period of 5 years for the offence under Section 363 IPC and he is to undergo simple imprisonment for a period of 7 years for offence under Section 366A IPC.
8. For the offences punishable under Section 376(2)(f) IPC this Court deems it fit to order that the convict would undergo a simple imprisonment for 10 years alongwith a fine of Rs. 1 Lakh. This fine be given to the victim as compensation under Section 357(1) CrPC. In default of payment of fine, he is to undergo a simple imprisonment for life. For the offence punishable under Section 377 IPC he would undergo a simple imprisonment for 10 years and would pay fine of Rs. 1 Lakh and this fine of Rs. 1 Lakh would be paid to the victim under Section 357(1) CrPC by way of compensation, in default of payment of fine, simple imprisonment for life.
9. These sentences shall run concurrently and will be subject to remissions as per general or particular rules legislated by the appropriate governments.
10. The convict will be entitled to the benefits under Section 428 CrPC for the term of detention which he has already undergone in relation to this case. A copy of the judgment and the order on sentence be given free of cost to convict. Pronounced in the open court on 21.02.2015.
Dr. PS MALIK Addl. Sessions Judge01 N/E Karkardooma Courts, Delhi JUDGEMENT
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