Delhi District Court
State vs . Ram Bahadur on 19 October, 2010
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE: ROHINI COURTS: DELHI
SC No. 43/08
FIR No. 252/07
PS: Hari Nagar
U/s 363/366/376(2)(f)/325 IPC
ID No. 02404R0351002007
State Vs. Ram Bahadur
S/o Sh. Ganga Bahadur
R/o WZ-771 Village Kacha Tihar
New Delhi.
Date of Institution in Sessions Court : 03.09.2007
Date of Transfer to this Court: 21.11.2008
Date of Judgment : 12.10.2010
JUDGEMENT
1. In brief, the prosecution story is that on 1.5.2007, ASI Krishan Chander received a DD No. 3A in which it was recorded that Tihar Gaon Patel Chowk Do Saal Ki Ladki Ke Sath Galat Kaam Kiya Hai, Galat Kaam Karne Wale Ko Pakad Rakha Hai. Thereafter, the aforesaid ASI Krishan Chander reached the spot alongwith constable Ram Singh. There he came to know that PCR had St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 2 already removed the girl to DDU Hospital, Thereafter ASI Krishan Chander reached DDU Hospital and obtained the MLC of one prosecutrix (K) (the name of the prosecutrix has been changed, as it is a case U/s 376 IPC) aged 5 years, who was found admitted there for the treatment and there her mother Ram Dulari also met ASI Krishan Chander and got recorded the following statement:
"That she was having three daughters and one son and the mental condition of her husband was not good and she earned her livelihood by selling cooking food, at Som Bazar Road Footpath Tihar Gaon and today at around 11p.m i.e. on 1.5.07 she alongwith her husband and two children went to leave them at her house, which was located at a short distance away from her place of work and her second daughter the prosecutrix aged 5 years was left sleeping on the footpath, when she reached her house, at that time one person who was selling Chappals, visited her house and told her that one Ram Bahadur had taken away her daughter, who was sleeping and St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 3 she ran back to her place of work and she knew Ram Bahadur even prior to the incident and thereafter she alongwith other persons reached the room of Ram Bahadur at Tihar Village and on reaching there they found that the room was locked from inside and she heard the cries of her daughter from inside the said room. When she and the landlord and other persons of the locality knocked the door of the said house and thereafter, the door was opened and it was revealed to them, that said Ram Bahadur had committed rape with her daughter and the blood was also oozing out from her private parts. Somebody from the locality made a call to the police and the public persons gave thorough beating to the accused."
2. On the said statement of mother of the prosecutrix(K), an FIR bearing No. 252/07 U/s 363/376(2f)/325 IPC was registered at P.S. Hari Nagar and the further investigation(s) were taken up by W/SI Usha Sharma, who also reached DDU Hospital and there ASI St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 4 Krishan Chander produced the prosecutrix as well as the accused alongwith five sealed pullandas. The same were sealed by W/SI Usha Sharma. The statement of the PCR personnels were also recorded by her. After taking the accused to the spot, she prepared the siteplan of the spot. The crime team was also called, who took the photographs of the spot. Accused Ram Bahadur was arrested. He also made a disclosure statement and at the instance of accused one blood stained Baniyan belonging to the accused and one white and black colour bed sheet were also seized alongwith the other relevant articles lying there. Before that both the accused and the prosecutrix were medically examined at DDU Hospital and all the relevant exhibits were sent to FSL Rohini for Forensic Evaluation. Thereafter, the bone age X-rays of the prosecutrix was also got conducted to ascertain her age.
3. Thereafter, on completion of investigation(s), a charge sheet U/s 363/376(2f)/325 IPC was filed in the court.
4. Upon committal of the case to the court of sessions, a charge St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 5 U/s 363/366/376(2f)/325 IPC was framed against the accused vide order dt. 3.1.2008, to which he pleaded not guilty and claimed trial.
5. The prosecution in support of its case has examined 18 witnesses.
PW1 is HC Chhatram, who has proved the copy of FIR Ex.PW1/A as well as the DD No. 3A Ex.PW1/C and DD No.4 Ex.PW1/B. PW2 is the prosecutrix(K), the star witness of the prosecution and the victim.
PW3 is Smt. Pushpa Kumari, the landlord of the accused. PW4 is H.C. Hari Ram, who was MHC(M) during the relevant time and with whom various case properties were deposited by the IO during the investigation(s).
PW5 is Smt. Ram Dulari, the complainant and the mother of the victim.
PW6 is Sonu, the person who had informed PW5 regarding taking away of the daughter of the complainant on the date of St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 6 incident.
PW7 is Dr. Ajay Sharma, who has proved the MLC of the accused Ex.PW7/A in the absence of Dr. Ramit Dhalla, who had left the hospital.
PW8 is Sh. Mainuddin, the neighbour of the accused. PW9 is Dr. Rittu Goel, who has proved the MLC of the prosecutrix Ex.PW9/A in absence of Dr. Gitanjali, who had left the hospital and has proved her opinion regarding internal examination of the prosecutrix.
PW10 is Virender Singh, another eye witness, who had seen the accused taking away the minor girl prosecutrix(K) on the date of incident, from the place of work of PW5 complainant.
PW11 is H.C. Ram Avtar, who had deposited the sealed parcels of this case with the FSL Rohini on 25.5.2007.
PW12 is Dr. Rajat Mitra, a formal witness who had given counselling to the prosecutrix.
St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 7 PW13 is SI Anil Kumar, of the crime team, who went to the spot and prepared his crime team report Ex.PW13/A. PW14 is Dr. Poonam Aggarwal, who had proved the discharge summary of the prosecutrix, while she was admitted in the gynae ward on 1.5.2007 and was discharged on 7.5.2007 from DDU Hospital, as Ex.PW14/A in the absence of Dr. Sereesha, who had left the services of the hospital.
PW15 is ASI Devender Singh, who was Incharge of the PCR van on the date of incident and who had gone to the spot on receipt of call regarding a rape having taken place with a minor girl and who had removed the prosecutrix to the hospital.
PW16 is SI Usha Sharma, the IO of this case, who has deposed regarding the investigation(s), as were carried out by her, during the course of the present case.
PW17 is HC Ram Singh, who accompanied ASI Krishan Chander on receipt of DD No. 3A to the spot, who had also got registered the FIR.
St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 8 PW18 is ASI Krishan Chander, the initial IO of this case, who had reached the spot on receipt of DD No. 3A alongwith constable Ram Singh and thereafter he visited DDU Hospital and recorded the statement of mother of the prosecutrix Smt. Ram Dulari.
6. Thereafter, the statement of the accused U/s 313 Cr.P.C was recorded, in which the defence of the accused was that he had been falsely implicated in this case and he was working with one Ahuja Tent House on the date of incident he was not present at his house and police arrested him on the way when he was coming back from his work and he also stated that he wanted to lead defence evidence, but despite opportunities, no witness was examined by him, as the witness whom he desired to examine was found to be untraceable.
7. I have heard the ld. Amicus Curiae Ms. Shashi Jaiswal for the accused and Sh. G.S. Guraya, Ld. Addl. PP for the state.
8. Ld. Amicus Curiae has argued that in the present case, accused has been falsely implicated in this case at the instance of St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 9 mother of the prosecutrix, and on the date of incident the accused was not even present at his house and while he was returning back from his work, he was lifted by the police and falsely implicated in this case. She has further argued that accused could not examine the witness in his defence, as he was in judicial custody and therefore, he could not find out the address of the said defence witness. She has also argued that the testimony of PW2 the prosecutrix(K) was not a reliable one, as she had not given any categorical deposition against the accused.
9. In any case, she has argued that due to her tender age being a child witness the chances of tutoring her by her parents and the police officials cannot be ruled out and therefore she has argued that the deposition of the said child witness has to be read and scrutinized carefully by this court. She has further argued that the FSL report also does not support the prosecution story and therefore, she prays that the accused deserves to be acquitted.
10. On the other hand Ld. Addl. PP for the State has argued that St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 10 from the testimony of the prosecutrix(K) PW2, which is duly corroborated by the testimony of other independent public witnesses PW3 Smt. Pushpa Kumari, the landlady of the accused and that by the testimony of PW6 Sonu, who had informed the mother of the prosecutrix regarding the fact that accused had taken away her daughter while she was sleeping at her place of work and further the said testimony is corroborated by another shopkeeper of the area Virender Singh PW10, who had also deposed so and the presence of the accused with the prosecutrix inside his room is also corroborated by the testimony of her mother Smt. Ram Dulari and the landlady of the accused Smt. Pushpa Kumari as well as by PW8 Mainuddin, who was also neighbour of the accused.
11. In these circumstances, he has argued that the prosecution has been able to prove that the accused was seen by two witnesses while he was carrying away the prosecutrix from the place of work of her mother, while she was sleeping without her consent and thereafter, accused was found with the said minor child in his room St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 11 when the door of the said room was locked from inside and when the door was opened by the accused, the prosecutrix was found to have been raped by him and blood was also oozing out from her private parts.
12. Ld. Addl. PP has also argued that from the testimony of Dr. Ritu Goel PW9, the rape on the said minor prosecutrix has been duly proved by the prosecution and the nature of injuries found on her private parts proves the savage act committed by the accused upon the prosecutrix. He has also argued that the FSL report also support the prosecution story totally. In these circumstances, he has argued that accused deserves to be convicted as accused had committed rape upon the innocent minor girl of aged 5 years. Consequently, he has argued that prosecution has been able to make out a case U/s 363/366/376(2)(f)/325 IPC against the accused.
13. I have gone through the rival contentions.
14. In the present case PW2 the prosecutrix(K) who was a child St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 12 witness of the age of 6 years at the time of her examination was examined after ascertaining her competency to depose in the court after putting some preliminary questions to her, so as to ascertain whether she was capable of giving rational answers to the said questions. After being so satisfied, the prosecutrix was examined without oath. In her deposition, she stated that the accused who was a Nepali person, present in the court today had "Mujhe Kachhi Main Khoon Khoon Kar Diya Tha Nepali Ne" and that said Nepali had done wrong act with her and he had also broken her teeth and had confined her in a room and after putting down her panty "Khoon Khoon Kar Diya Tha". On asking of a leading question by the Ld. Addl. PP she stated "Usne Apni Susu Wali Jagah Meri Susu Wali Jagah Main Daal Di Thi". The said child witness was cross-examined by the Ld. Amicus Curiae. However, nothing has come out in her cross-examination. Rather, in her cross-examination she reiterated what she had stated in her examination in chief and also stated that the said accused had lifted St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 13 her and had taken her to his house and had done wrong act with her and that he had also locked the room of the said house and her mother and father had broken the lock of the said room and the accused had also stated that he should be spared. She was asked specifically by the Ld. Defence counsel that who had told her to depose so, to which she stated that neither her father nor her mother or the police Aunty had told her to depose so, and her mother never had any quarrel with the said accused. It is settled law that the evidence of a child witness has to be scrutinized carefully, as the child witness is very susceptible of tutoring by his parents and police officials.
15. In the present case, the prosecutrix PW2 has stated the same facts in her examination in chief and she reiterated the same in her cross-examination by the ld. Amicus Curiae and nothing has come out in her cross-examination, which could show that she was a tutored witness. Rather from the co-joint reading of her examination and cross-examination, it is clear that PW2 was a truthful witness, St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 14 as she was only a tender child of 6 years of age, therefore, the chances of her fabricating a false story against the accused was not possible and why would such a tender child would falsely implicate the accused in this case. Consequently, the testimony of the aforesaid child witness passes the test of trustworthiness and can be relied upon.
16.The testimony of PW2 prosecutrix (K) is corroborated by her mother PW5 Smt. Ram Dulari, who is also a complainant who has stated that she used to earn her livelihood by selling food and tea on the footpath at Som Bazar Road and her husband was mentally disturbed and about two years ago on one evening, after leaving her daughter prosecutrix(K) on the footpath, where she had her tea/food stall, went to her room for leaving her other two children and husband and when had just reached at her room, one of her known person from the Som Bazar footpath, who used to sell chappals there, came to her house and informed that accused Ram Bahadur Nepali had taken away her sleeping daughter, the St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 15 prosecutrix(K).
17. Thereafter, she alongwith that person came back to Som Bazar and thereafter she alongwith other persons went for search of her daughter and they reached at the room of accused at Mani Vihar, Kacha Tihar. At that time the room of the accused was bolted from inside. They knocked the door. The cries of her daughter were heard by her, when they were knocking the door. On their repeated knocking, the accused had not opened the door. Police was called.
18. The door was opened by the crowd by pushing the same. Her daughter and accused were inside the room and there was blood on her private parts, her panty was also blood stained. The blood was oozing from her vagina. The accused was handed over to police. Police recorded her statement Ex.PW5/A and her daughter was also taken to the hospital, where she was operated and she remained in the hospital for 14 days. Nothing has come out in the cross-examination of PW5 which could help the case of the defence. In her cross-examination, she stated that her landlady, her St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 16 husband and other people had also accompanied her to the room of the accused and when the door was opened, her daughter was found lying inside the room of the accused.
19. The testimony of PW5 is corroborated by the testimony of PW10 Virender Singh, who has deposed that he was selling Chappals on the pavement of weekly Monday Bazar, at Kacha Tihar Village and one Ram Dulari also used to sell tea on the pavement near his stall in the said weekly market and that on 30.4.07 at about 11.00p.m he was just packing his stall and Ram Dulari went to her house for leaving her husband and daughter of Ram Dulari remained at her tea stall, accused whom he correctly identified in the court, came to the tea stall of Ram Dulari and took away her minor daughter and he informed Ram Dulari and her husband that their daughter had been taken away by the accused Ram Bahadur and they started searching for their daughter and accused and when he returned back and packed his belongings and went to his house. St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 17
20.Nothing has come out in his cross-examination as well, though he has stated that Ram Dulari had not told her to keep watch on her child and she had not stopped the accused as he thought that he was going to leave the child to the house of the child. This explanation furnished by PW10 appears to be plausible, as even if Ram Dulari had not told him to keep a watch on his shop, even then it was his duty to see that nobody takes away her minor child without her consent and he had not stopped the accused thinking that probably he was going to leave the said child to the house of Ram Dulari, as that time he could not have presumed or can be said to have known that accused would do such a savage act.
21.The testimony of PW10 Virender Singh is corroborated by the testimony of PW6 Sonu, who was also selling school bags in the weekly market, where the tea stall of the mother of the prosecutrix was situated. He has also deposed that on the date of incident one little girl was sleeping in the nearby tea stall and her mother had gone some where else, accused whom he also correctly identified St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 18 in the court came there and after watching on all the directions he picked up the sleeping girl and left away.
22.He informed his neighbour stall vendor Virender Singh, who used to sell chappals and he went to the house of mother of sleeping girl who was taken away by the accused. Nothing has come out in his cross-examination as well. Rather in his cross-examination he stated that he was present at the time when the accused picked up the girl. He had not stopped him and the accused had also consumed liquor at that time. Therefore, the testimony of PW6 also corroborated the testimony of PW10 and that of PW5 the mother of the prosecutrix, regarding the manner in which the accused took away the prosecutrix from the tea stall of her mother without her consent in her absence.
23. The identity of the accused is well established as PW5 Smt. Ram Dulari in her cross-examination has stated that she knew the accused as he used to roam in the Som Bazar and also used to take tea at her tea stall and he used to reside little away from her St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 19 room. Similarly, PW6 has also stated in his cross-examination that the accused was not running any stall but he used to come near their stall to take tea from the tea stall and at the time of incident it was dark and he identified the accused, as he had seen him and at that time there was light of gas lantern of two /three adjoining stall vendors and he was watching the tea stall. Similarly, PW10 Virender in his examination has deposed regarding the identity of the accused. In his examination in chief he has stated that he knew the accused, who also used to remain in weekly market and was a regular visitor of tea stall of Ram Dulari and was present in the market at that time. Therefore, from the testimony of PW5,PW6 and PW10, the identity of the accused has been clearly established, as the person who took away the prosecutrix(K) from the lawful custody of her parents without their consent on the date of the incident, i.e. from the tea stall of her mother, where she had been left sleeping by her mother.
St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 20
24. Regarding the presence of the accused with the prosecutrix, in this regard the testimony of PW3 Smt. Pushpa Kumari is relevant, as she was a land lady of the accused with regard to the house where he was residing at the time of incident. She has also deposed that on the date of incident, she had heard a noise of crowd in the gali and some public persons were knocking the door and she got up and came out and they were knocking the door of the room of her tenant Ram Bahadur. He was not opening the door and the crowd pushed the door of the room and the same was broke opened. One girl child was found in the room alongwith the accused and the accused was lying on the girl and was trying to do wrong act. The child was scared and nervous and there was blood spots on her thighs and legs. The blood was also oozing from her private part. Police was called and police also seized the broken kundi, one Baniyan, one bed sheet and other clothes were recovered from the spot by the police. Nothing has come out in her cross-examination. Though, she stated that no such incident before St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 21 this incident had taken place with the accused, but the same is not of any relevance, as the previous conduct, good or bad of the accused is not relevant for the present enquiry to find out the culpability of the accused in the present case.
25.Similarly, the mother of the prosecutrix PW5 has also corroborated the testimony of PW3 in this regard that the accused and her daughter was found inside the room when they broke open the door. There was blood on the private part of her daughter. Her private part was also blood stained and blood was oozing out from her vagina. The presence of the accused with the prosecutrix in his room on the date of incident is also corroborated by another independent witness of the locality PW8 Mainuddin, who has also deposed and has supported the testimony of PW3 and PW5 in this regard and he has also deposed that on the date and time of the incident he was sleeping in his house.
26.He heard a noise from the gali and found that some persons in the gali were knocking the door of the room, where Ram Bahadur was St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 22 staying and the crowd was knocking the door repeatedly and by pushing the door, the bolt of the door was broken from inside. The door was opened. The accused was inside the room. One little girl aged about 5-6 years was also inside the room. The crowd started beating the accused. The girl was bleeding at that time and blood was every where on her body. There was bite marks on the face of the girl. Nothing has come out in the cross-examination of PW8. Rather PW8 stated in his examination in chief and cross- examination that he was present at the spot and he informed the police at 100 number.
27.Therefore, from the overwhelming positive testimony of PW3,PW5 and PW8, the prosecution has been able to prove the presence of the accused with prosecutrix(K) in his room, while doing wrong act with the prosecutrix and at that time the prosecutrix was stained with blood and blood was also oozing out from her privat parts. The testimony of the aforesaid witnesses regarding the presence of the accused with the prosecutrix and the fact that at that time the blood St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 23 was also oozing out from her private parts clearly corroborates the substantive deposition of PW2 in the court that accused had raped her and had made her soiled in blood and he has done Galat Kam with her.
28.The defence taken by the accused in his statement U/s 313 Cr.P.C was that he had been falsely implicated in this case, as he was working with Ahuja Tent House Ashok Nagar and on that day he was not present at his house and police arrested him on the way, when he was coming from his work. One Shanker who was his room mate and also worked with him, who was with him on that day also and he chose to lead defence evidence. Therefore, on the asking of accused, the summons were sent to the said defence witness. However, the summons were received back with the remarks, that no such person was residing at the address stated by the accused. In these circumstances, Ld. Amicus stated that she did not want to lead any other defence evidence. In these circumstances, the said plea of defence taken by the accused is an St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 24 empty plea. The accused has failed to substantiate the said plea by leading any sort of evidence. Accordingly, the said defence of the accused is empty and bald plea which has no legs to stand.
29. In view of the strong and overwhelming testimony of the prosecution witnesses discussed above namely that of PW2 and that of other corroborative witnesses discussed above, from which it is clearly established that on the date of incident accused took away the prosecutrix (K) from the tea stall of her mother, where she was left lying sleeping by her, as she had gone to her house for leaving her other two children and her mentally disturbed husband and the accused seizing the opportunity picked up the said child and thereafter took her away from the lawful custody of her mother and father without their consent and thereafter he took her to his house/room which he had taken on rent from PW3 and there when PW5 alongwith other persons reached and knocked at the door he did not open the door and at that time PW5 also heard the cries of her daughter and when the public persons broke open the door, St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 25 the accused was found lying on the said minor girl, while she was totally soiled with blood and blood was also oozing out from her private parts and she also had bite marks on her face.
30.The afore overwhelming direct testimony of the prosecution witnesses clearly establish, that it was the accused who had raped the prosecutrix after taking her away from the lawful custody of her parents, knowing fully well that she would be forced or seduced to illicit intercourse. The medical evidence in the present case is also overwhelmingly tilted against the accused and supports the prosecution story, as PW9 Dr. Ritu Goel who has proved the MLC of the prosecutrix in the absence of Dr. Gitanjali has deposed that the said MLC Ex.PW9/A had been prepared by Dr. Gitanjali and she had seen her writing and signing during the course of their official duties and on local examination of the prosecutrix it was found mild vulva swelling. On separation of vulva, posterior vaginal wall tear, extending upto external anal sphincter(Laceration extending to anal sphincter), seen with St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 26 difficulty. Sphincter tone present, slight bleeding per vaginum present. Bilateral bruise and swelling over cheeks present bruise over both eyes were present. Avulsion of lower incisor teeth, old clotted blood near the nostril present.
31. Another witness of medical evidence is PW14 Dr. Poonam Aggarwal, who has proved the discharge summary sheet of the prosecutrix, while she was admitted into DDU hospital from 1.5.2007 to 7.5.2007, Ex.PW14/A, which evidence has also been proved by way of secondary means, as she has also stated that Dr. Sereesha who had prepared the said discharge summary had left the hospital and her present whereabouts were not known and she has deposed that the patient was also having mild swelling near vulva. On separation, posterior vaginal wall tear with laceration extending to anal sphincter.
32. Nothing has come out in the cross-examination of the aforesaid witnesses. The aforesaid medical evidence clearly reveals the savage manner in which the accused had sexually St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 27 assaulted the minor girl aged 5 years and from the discharge summary Ex.PW14/A, it is clear that after operation the posterior vaginal wall tear and laceration extending to anal sphincter was repaired and from the aforesaid medical evidence, it appears that same was very elaborate and long process taken by the doctor(s) to restore the private parts of the prosecutrix, which also shows the savage manner in which the accused had sexually assaulted a minor girl of 5 years of age, without thinking about the consequences of the said act and it appears that due to some timely skillful medical intervention, the life of said minor girl had been saved. The aforesaid medical evidence clearly strengthens the case of the prosecution and supports the testimony of PW2, PW5 and other prosecution witnesses.
33. As discussed above, the accused has no worthwhile defence to make and further it has also come in the MLC of the accused Ex.PW7/A that there is no evidence to suggest that patient was incapable of performing sexual act thereby ruling out the impotency St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 28 of the accused. No such defence even otherwise has been taken by the accused in his statement u/s 313 Cr.P.C. that he was incapable of performing sexual act. In the MLC of the prosecutrix, it has also been reported that there was avulsion of lower incisor teeth, bruise over eyes, old clotted blood near nostril, bruise and swelling over cheeks. Though, the concerned doctor i.e. PW9 who had proved the MLC of the prosecutrix had not specified medical meaning of avulsion. However the word Avulsion has been defined "forcible tearing away of a body part by trauma or surgery of the separation by tearing or any part of the body from whole.
34. From the aforesaid definition and the testimony of PW2, wherein the prosecutrix has stated that the accused had also broken her teeth, which is corroborated by her MLC. The prosecution has also been able to prove that accused had caused grievous injuries on the body of the prosecutrix, as the said act of dislocation of tooth clearly falls within the definition of grievous hurt, as per Sec. 320(7) IPC.
St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 29
35. The net result of the aforesaid discussion is that, on the basis of strong probative force of the prosecution evidence lead on the record, as discussed above, more specifically from the testimonial deposition of PW2, the prosecutrix (K) herself, and by the corroborative testimony(s) of PW5, PW6, PW8 and PW10, who had no axe to grind against the accused and the fact that the said testimonial deposition(s) of the prosecution witnesses is further corroborative by medical evidence on the record, the prosecution has been able to make out a cast iron case U/s 366/376(2)(f)/325 IPC against the accused. The accused stands convicted accordingly. Now, to come up for hearing on the point of sentence on 19.10.10.
Announced in the open court (Sanjeev Aggarwal) on dt.12.10.2010 . ASJ/Rohini/Delhi St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 30 IN THE COURT OF SH. SANJEEV AGGARWAL ADDL. SESSIONS JUDGE: ROHINI COURTS: DELHI SC No. 43/08 FIR No. 252/07 PS: Hari Nagar U/s 366/376(2)(f)/325 IPC ID No. 02404R0351002007 State Vs. Ram Bahadur S/o Sh. Ganga Bahadur R/o WZ-771 Village Kacha Tihar New Delhi. ORDER ON THE POINT OF SENTENCE: Present: Sh. A.K. Srivastava, Ld. Addl. PP for the state.
Convict is produced from J.C with Ld. Amicus Ms. Shashi Jaiswal.
It is submitted by the Ld. Amicus, that the convict has no previous history of involvement in any other case and he has old and ailing parents, as well as younger brothers to look after and there is no other bread earner in his family, therefore, lenient view may be St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 31 taken against him.
On the other hand, Ld. Addl. PP for the state has argued that most severe punishment should be awarded to the convict, as he had ravished a minor girl of five years of age, and her life could only be saved due to timely and skillful medical aid, and he had spoiled the life of a young child, without thinking about the consequences of the same. Thereafter, he does not deserve any leniency.
I have gone through the rival contentions, in the present case, the convict had abducted and raped a younger minor girl of five years of age, when her mother was away to satisfy his lust, and had caused grave injuries on the private parts of the said girl, which resulted in hospitalization and operation, and the life of the said girl could only be saved due to skillful and timely medical aid. The act of the convict cannot be said to be that of a human being, rather the same partakes the character of savage animals. Such kinds of act are not tolerable in human behaviour. Consequently, he does not deserve any leniency.
St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 32 Consequently, the interests of justice shall be met, if the convict is sentenced to rigorous imprisonment for 10 (ten years), U/s 376(2)(f) IPC, and he is further sentenced to pay a fine of Rs. 1,000/-, under said section. In default of payment of fine, SI for two months.
I further sentence the convict to rigorous imprisonment for 7 (seven years), U/s 366 IPC, and he is further sentenced to pay a fine of Rs. 1,000/-, under said section. In default of payment of fine, SI for two months.
I further sentence the convict to rigorous imprisonment for 3 (three years), U/s 325 IPC, and he is further sentenced to pay a fine of Rs. 1,000/- under said section. In default of payment of fine, SI for two months.
All the sentences to run concurrently. The convict will also be entitled to the benefit U/s 428 Cr. PC, for the period already undergone by him during the trial.
The Ld. Amicus is discharged from this case, with the words of appreciation for the able assistance rendered by her during the trial of St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar 33 this case.
The copy of the judgment and that of point of sentence be provided to the convict free of cost. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal) on dt.19.10.2010 ASJ/Rohini/Delhi St. Vs. Ram Bahadur FIR No. 252/07 P.S. Hari Nagar