Delhi District Court
State vs . Surya Bhan @ Uday on 22 January, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 65/2012
Unique Case ID No. 02404R0163422012
State Vs. Surya Bhan @ Uday
S/o Sh. Dukh Haran
R/o 851/54, Lekhu Nagar,
Tri Nagar, Delhi
(Convicted)
FIR No.: 85/2012
Police Station: Keshav Puram
Under Section: 341/376/506 Indian Penal Code
Date of committal to session court: 7.8.2012
Date on which judgment was reserved: 11.1.2013
Date on which judgment was announced: 11.1.2013
JUDGMENT:
(1) As per the allegations on 4.4.2012 at 2:002:30 PM at House No. 851/54, Third Floor, Lekhu Nagar, Tri Nagar the accused Surya Bhan @ Uday wrongfully restrained the prosecutrix 'P' (name of the prosecutrix is being withheld as this is a case under Section 376 IPC) aged about 12 years in his room and thereafter committed rape upon her and criminally intimidated the prosecutrix 'P'. St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 1 CASE OF THE PROSECUTION/ BRIEF FACTS:
(2) The case of the prosecution is that on 5.4.2012 at about 12:45 PM complainant 'P' along with her mother Bimla Devi and father Shyam Narain came to Police Post Shanti Nagar of Police Station Keshav Puram and made a complaint regarding rape upon 'P' by one Surya Bhan. In her complaint to the police the complainant / prosecutrix 'P' informed the police that on 4.4.2012 while she was alone at home at about 2:002:30 PM the accused Surya Bhan who was residing on the third floor of the premises, called her to his room. She further informed the police that when she went inside the room of Surya Bhan, he committed rape upon her. According to the prosecutrix even on one previous occasion the accused had misbehaved with her. The complainant also informed the police that at about 4:004:30 PM when her mother returned home she narrated her about the incident and at about 10:00 PM when her father returned back home she and her mother disclosed about the to him. (3) On the basis of the said complaint of the prosecutrix 'P' the present case was got registered. The prosecutrix was taken to BJRM Hospital for her medical examination where initially she refused for her internal examination but on being counseled by the NGO the prosecutrix consented for the same after which her internal examination was got conducted and the exhibits were taken and handed over to the Investigating Officer. The spot of the incident was St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 2 got photographed and inspected by Crime Team Officials and one quilt cover having stains was seized by the Investigating Officer. On 7.4.2012 the statement of the prosecutrix 'P' under Section 164 Cr.P.C. was got recorded before the Ld. MM wherein the prosecutrix 'P' made similar allegations against the accused Surya Bhan.
During investigations, 9.4.2012 the accused Surya Bhan @ Uday was arrested from New Delhi Railway Station and thereafter his blood samples were collected. The samples were thereafter sent to FSL for DNA examination. After completion of investigations charge sheet was filed against the accused.
CHARGE:
(4) Charges under Sections 341, 376 and 506 Indian Penal Code were settled against the accused Uday Bhan to which he pleaded not guilty and claimed trial.
EVIDENCE:
(5) In order to prove its case the prosecution has examined as many as Twenty Witnesses as under:
Prosecutrix/ Public Witnesses:
(6) PW12 Rajender Prashad Aggarwal has deposed that he has a trading business at the ground floor of 456/33, Onkar Nagar C, Tri Nagar, Delhi. According to the witness, he has also another St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 3 house situated at 851/54, Lekhu Nagar, Tri Nagar, Delhi where on the second floor Shyam Narayan was residing on rent and on the third floor Uday @ Surya Bhan was residing as tenant. He has further deposed that Surya Bhan was also working at his house Onkar Nagar C on the ground floor in his trading business as a helper for about last seven years and he used to pay him Rs.6,500/ per month as salary and the rent from Surya Bhan used to be adjusted from his pay.
According to the witness, he did not issue any rent receipt of the same to his tenants Surya Bhan and Shyam Narayan. The witness has also deposed that accused Surya Bhan was an original resident of District Gorakhpur UP and he was having a photocopy of his voter I Card which he handed over to the police when police came to him for inquiry which is Ex.PW12/A. He has correctly identified the accused Surya Bhan in the court.
(7) During his cross examination by Ld. Defence Counsel, the witness has deposed that he used to visit at his house at Lekhu Nagar also and there was cordial relationship between Shyam Narayan and accused Surya Bhan. According to him Surya Bhan was working as his helper smoothly and was punctual in his duties. He has further deposed that on 01.12.2011 one Pintoo was appointed by him in his trading business as helper since accused Surya Bhan was going for his marriage and in the last days of month of March 2012 Pintoo started residing at the third floor in another make shift room at his St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 4 house at Lekhu Nagar. He has also deposed that Pintoo was not examined by police in his presence and has voluntarily explained that police came to his house and recorded his statement. (8) PW13 Shyam Narayan @ Mahender has deposed that he is residing at 851, Gali No.54, (Third Floor) Lekhu Nagar, Tri Nagar, Delhi on rent basis which premised was owned by Sh. Rajender Prashad Aggarwal since the year 2007. The witness has further deposed that he used to work as a Kabari and was residing at the said house along with his wife Bimla, two daughters and two sons. According to him, the prosecutrix 'P' aged about 12 years is his eldest child and was studying in class 7th. He has testified that accused Surya Bhan @ Uday was also residing on the top floor of the house and also used to work at the shop of Rajender Prashad at Onkar Nagar, Tri Nagar, Delhi. According to the witness, on 04.04.2012 his three children including the prosecutrix 'P' had gone to their school and he had gone went for his work whereas his wife Bimla also went to Tibia College, Karol Bagh with his youngest child for taking medicine. According to the witness at about 10.00 PM when he came back to his house, his wife told him that Surya Bhan @ Uday committed rape upon 'P' at about 2.00PM on which he called Surya Bhan at his house and confronted him with the incident on which the accused Surya Bhan apologized and told him that he would not repeat such acts in future. The witness has testified that he slapped St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 5 the accused twothree times but the accused ran away from there despite the fact that he tried to apprehend the accused. Witness has also deposed that out of fear of humiliation and feeling nervous he did not go to the police station in the night time but on the next morning he went to Police Post Shanti Nagar of Police Station Keshav Puram along with his daughter 'P' where his wife told all the facts to the police. He has proved that police recorded the statement of his daughter 'P' in their presence vide Ex.PW13/A after which police took his daughter 'P' to BJRM Hospital. His daughter felt scared in the hospital hence her internal examination could not be conducted and they returned back to the police post. He has testified that one NGO official came at the police post and she counseled his daughter 'P' only after which his daughter 'P' became ready for her internal examination and thereafter they again went to BJRM Hospital and fresh medical examination of his daughter 'P' was conducted. The witness has testified that thereafter they returned back to the police post and reached at the room of accused Surya Bhan where his daughter 'P' pointed out the place of incident and police officials conducted their proceedings and took photographs. He has proved that one cover of mattress (Gadda) was kept in a cloth pullanda and sealed the same and was seized vide memo Ex.PW4/B and his daughter 'P' was sent to Nari Niketan. The witness has further deposed that on 09.04.2012 when he went to police post St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 6 Shanti Nagar for making inquiry about his daughter who was in the Nari Niketan at that time, he found the accused Surya Bhan @ Uday in the police post on which he identified him as Surya Bhan @ Uday who had committed rape upon his daughter 'P' on 04.04.2012. According to him, the police arrested the accused Surya Bhan vide arrest memo Ex.PW2/A and his personal search was taken vide Ex.PW2/B. Witness has also correctly identified the accused Surya Bhan @ Uday in the Court.
(9) In his cross examination by Ld. Defence counsel, the witness has deposed that he was residing in the above said house since the year 2007 and his first wife namely Israwati had expired in the village as she was suffering from illness so he married again with Bimla. According to the witness, he was having three children from his earlier wife namely Israwati and out of them two children had expired and one daughter aged 18 years has already been got married by him. He has testified that the marriage of Bimla with him was a second marriage and he does not remember the name of her previous husband. According to him, Bimla did not have any child at the time of her marriage with him. Witness has further deposed that he was having cordial relations with accused Surya Bhan and he used to visit their house and also take meals at their house. He has admitted that accused Surya Bhan was going to be married in the month of June 2012. He has denied the suggestion that on 04.04.2012 accused St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 7 Surya Bhan came to their house with mobile phone having messages or that he asked about the messages and thereafter he scolded him and gave beating to him. The witness has also denied that his wife Bimla told the accused to run away from there, otherwise he would be given beatings by them. Witness has admitted that he did not see that his daughter 'P' was talking with accused Surya Bhan at lonely places and has voluntarily explained that accused Surya Bhan came to their house as he was living alone, so they provided food to him. He has admitted that the accused also used to talk his daughter 'P' also. The witness has further deposed that he reached at police post on 05.04.2012 at about 12.00 Noon along with his daughter and wife and his daughter was taken to the BJRM Hospital by lady police with his wife but her internal examination could not be conducted. According to him, at the second time he also went to the BJRM Hospital along with his daughter and wife and lady police for medical examination of his daughter 'P'. He has also deposed that police reached at the room of accused Surya Bhan at about 11.00P M and remained there for about one and half hour. According to the witness on 09.04.2012 he reached at the police station at about 9.00 AM and remained there only for about five to seven minutes and put his signatures on the arresting documents of the accused. He has admitted that one Pintoo also resided in the same house and has explained that he came there one and a half months prior to the day St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 8 of incident i.e. 04.04.2012 and is stilling residing there. He has denied the suggestion that his wife did not disclose anything to him or that due to the quarrel with accused Surya Bhan about the message on his mobile phone, he falsely implicated the accused Surya Bhan in this case.
(10) PW16 Smt. Bimla Devi is the mother of the prosecutrix 'P' who has deposed that she is residing at House No.851, (third floor) Gali no.4, Lekhu Nagar, Tri Nagar, Delhi along with her husband and four children since the year 2007 on rent which house is owned by Rajender Prasad. According to her, the accused Surya Bhan was also residing in the same house at the top floor and used to work as helper with Rajender Prashad at his another house. She has testified that on 04.04.2012 her daughter 'P' aged about 12 years and other two children had gone to their school at about 7.00AM whereas her husband Shyam Narayan had gone for his Kabari work and she along with her youngest child went to Tibia College, Karol Bagh for medicine for her and for her child at about 11.00AM. According to the witness, she also went to the Daya Basti from the Tibia College to visit her relative who was ill and thereafter at about 4.004.30PM she alongwith her youngest child reached at their house. Witness has further deposed that she found her daughter 'P' in their house and her two children were playing in the gali in front of their house. She has testified that the prosecutrix 'P' told her that accused Surya Bhan St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 9 called at the roof of the house and thereafter took her in his room forcibly and committed rape upon her. According to the witness, the prosecutrix 'P' was weeping at that time and told all the facts to her and at about 10.00PM her husband Shyam Narayan reached the house and told all the facts to him about the commission of rape committed by accused Surya Bhan with her daughter 'P'. She has testified that her husband called Surya Bhan at their house after which they asked him as to why he had committed rape upon her daughter 'P' on which he apologized for his acts and told her that he would not repeat such acts in future. She has also deposed that her husband slapped the accused and also tried to beat him with broom (Jharoo) but the accused Surya Bhan ran away from there. According to the witness, they felt ashamed and insulted therefore they did not go to the police post in the night time but on the next day on 05.04.2012 at about 11.00AM12.00 (Noon) she along with her husband and daughter 'P' went to Police Post Shanti Nagar and told all the facts to the police. She has further deposed that police inquired about the facts from her daughter 'P' and recorded her statement vide Ex.PW13/A. According to the witness, thereafter she along with her daughter 'P' and lady police went to BJRM Hospital but her internal examination could not be done as she (prosecutrix) was scared after which they returned back to the police post. Witness has also deposed that one NGO official came there and counseled her daughter 'P' after which St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 10 she was ready for her internal examination and thereafter she along with her husband, her daughter 'P' and lady police again went to BJRM Hospital where the medical examination of her daughter 'P' was conducted. She has proved that the prosecutrix 'P' also pointed out the place of incident from where one cover of mattress was sealed by the police. The witness has also proved that the police photographer took the photographs of the place of incident. She has correctly identified the accused Surya Bhan @ Uday in the Court. (11) During her cross examination by Ld. Defence counsel, the witness has deposed that the first wife of her husband was a TB patient. According to the witness, Shyam Narayan @ Mahender was married with her when she (first wife of her husband) was living who died after one month of her marriage. She has also deposed that her first husband namely Ravinder was a drunkard and was not taking care of her and hence she separated from him after which she married with Shyam Narayan. The witness has testified that she had four children from her present husband. She has testified that the accused was having cordial relation with their family members and she had not seen accused Surya Bhan misbehaving with her children prior to the day of incident. She has admitted that marriage of the accused Surya Bhan was fixed for 12.06.2012. Witness has also deposed that the clothes of her daughter were not found torn by her. The witness has further deposed that she was not having any mobile St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 11 phone at their house so she could not inform her husband immediately after the incident. She has also deposed that her statement was recorded in the police post and police seized the cover of mattress on 06.04.2012 at about 10.00AM. She has denied the suggestion that on 04.04.2012 accused Surya Bhan came to their house with mobile phone having messages or that the accused about the messages on which her husband scolded the accused and gave beating to him. The witness has further denied the suggestion that she told the accused to ran away from there, otherwise he would be given beating by them or that her daughter 'P' did not say anything about the rape by accused to her. She has also deposed that doctor sealed the underwear and baniyan of her daughter 'P' in the hospital. She has admitted that she did not see her daughter 'P' talking with accused Surya Bhan at lonely places and has voluntarily explained that the accused Surya Bhan came to their house as he was living alone, hence they provide food to him sometimes and at that time he used to talk her daughter 'P' also. She has denied the suggestion that accused Surya Bhan has been falsely implicated in the present case. (12) The prosecutrix 'P' has been examined as PW17 and during examination this Court observed the prosecutrix to be a minor much below 14 years of age. She has deposed that she was residing at H. No. 851, (third floor), Gali No. 54, Lekhu Nagar, Tri Nagar, Delhi along with her parents and two brothers namely Prince aged St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 12 about 9 years, Ashu aged about 6 years and one sister namely Pratima aged about 45 years since 2007 on rent basis. According to the witness, her date of birth is 09.06.2000. She has also deposed that her father used to work as a Kabari and her mother is a housewife. Witness has further deposed that she was studying in class 7th at Govt. Girls senior secondary school, Tri Nagar, Narang colony, Delhi and in the upper floor of their house Surya Bhan, labour of their house owner was residing. Witness has also deposed that on 04.04.2012 she along with her two brothers had gone to their school in the morning time at about 7 AM and in the afternoon at about 1:00 PM she along with her brothers returned back to their house. According to the prosecutrix she was having the keys of the house and she opened the same after which she and her brothers take their lunch which was already prepared by her mother. Witness has also deposed that at that time her mother, her younger sister and her father were not present and her both brothers went in the gali to play and she was left alone in their house. She has testified that at about 22:30 PM the accused Surya Bhan came at his room and called her in the staircase after which he caught hold her by her hands and took her to his room forcibly where he compelled her to lie on his bed. The prosecutrix has further deposed that the accused removed her salwar and underwear and also removed his wearing towel and underwear and thereafter committed rape upon her. She has deposed St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 13 that thereafter she returned back to their house after wearing her clothes and at about 44:30 PM when her mother returned back to their house, she informer her mother about the incident of commission of rape by accused Surya Bhan on her. Witness has further deposed that her father returned back to their house at about 10 PM when she and her mother told about the incident to her father. She has also deposed that on the next day on 05.04.2012 at about 12 noon she along with her parents went to the police post of police Station Keshavpuram where police inquired about the facts from her and she told all the facts to them. She has proved that police recorded her statement vide Ex.PW13/A. The prosecutrix has further deposed that the accused Surya Bhan had even misbehaved with her earlier on one occasion. The witness has testified that she was taken to BJRM hospital for medical checkup but her internal examination could not be conducted because she was scared and thereafter they returned back to the police chowki. She has also deposed that one NGO officer came there to counsel her after which she agreed for her internal examination and therefore she along with her parents and ladies police again went to BJRM hospital where her medical examination was conducted and her underwear and baniyan were also sealed by the doctor in the hospital. The witness has proved having pointed out the place of incident to the police. She has further proved that police seized one cover of the mattress, on which she was St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 14 forced to lie by the accused and committed rape upon her, which cover was kept in a cloth pullanda and sealed and was seized vide seizure memo Ex.PW4/B. (13) The prosecutrix 'P' has correctly identified the accused Surya Bhan in the Court and also identified the case property i.e. one baniyan and one underwear as the one belonging to her which were sealed by the doctors, which underwear is Ex.P1, Baniyan which is Ex.P2 and one quilt cover which is Ex.P3.
(14) In her cross examination by Ld. Defence counsel, the witness has deposed that accused Surya Bhan @ Uday used to visit their house sometimes whenever her parents were present and he used to talk with her and her brothers and sister occasionally. According to the witness, two to three days before the day of incident accused Surya Bhan teased/ misbehaved with her and she also informed her mother about this eve teasing by the accused. Witness has further deposed that her mother did not call the accused after this incident of eve teasing nor she scolded or warned the accused but instead advised her not to meet the accused Surya Bhan. She has testified that her mother was having one phone and her father had also one phone. She is not aware how to send messages from the mobile phones but states that she can use the mobile phone. Witness has also deposed that there are other residential houses near their house and one person Pintoo also used to live in the same house in St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 15 the separate room. She has testified that Pintoo also came at her room on the day of incident but he came before 2:00 PM for his lunch. The witness has further deposed that they had three keys of the lock of their house and her father, mother and herself having the one key each. According to the witness she was called by the accused Surya Bhan, then she went to staircase in front of their kitchen. Witness has further deposed that when the accused took her forcibly in the room, he shut the door immediately. She has stated that she did not bite on the body of the accused. She has also deposed that when accused committed sexual intercourse with her no blood was oozed out and her clothes were not torn at the time of the incident. The witness has also deposed that no injury was received by her during the incident and she was freed after five minutes by the accused. According to the witness, she did not raise any alarm after the incident because nobody was present in the house nor she made any call to her mother because the STD booth was away from her house. She has testified that her mother did not make call to her father regarding the incident. She has admitted that she had not told the name of the accused to the doctor in the hospital and has voluntarily explained that the doctor had never asked her about the same. She has testified that police officials came to their house on 06.04.2012 at about 8:30 AM and remained there for about one to two hours. The witness has denied the suggestion that no incident as St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 16 narrated by her had taken place or that she was deposing falsely on the tutoring of her parents. She has also denied the suggestion that accused came to their house with his mobile phone objecting to the messages received by him from the mobile of her father and after the matter got aggravated her family has falsely implicated the accused in the present case.
Medical witnesses:
(15) PW9 Dr. Vaibhav has deposed that on 05.04.2012 he was on duty as Casualty Medical Officer at BJRM hospital and on that day patient 'P' D/o Shyam Narayan, female, 12 years old was brought by Lady Ct. Anita for medical examination with alleged history of sexual assault. According to him, Dr. Nitish medically examined the patient 'P' at 1.55PM on 05.04.2012 under his supervision and after her medical examination Dr. Nitish prepared the MLC No. 39965 which is Ex.PW9/A. Witness has further deposed that there was no fresh external injury seen on the person of patient 'P' in the casualty at the time of her examination and she was referred to Gynae Department for further examination. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted. (16) PW10 Dr. Mamta has deposed that on 05.04.2012 she was on duty in the Gynae Department in BJRM hospital and on that day St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 17 at about 1.55 PM the patient 'P' D/o Shyam Narayan, female, 12 years old was brought at the hospital by Lady Ct. Anita for medical examination with alleged history of sexual assault and she was medically examined at the casualty of the hospital vide Ex.PW9/A after which she was referred to the Gynae Department for further examination. She has also deposed that in the Gynae Department she examined the patient 'P' with alleged history of sexual assault and on local examination she did not find any fresh external injury on the person of patient 'P'. According to the witness, the patient she refused for her internal examination. She has proved her observations on Ex.PW9/A from point X to X1. The witness has further deposed that again on 05.04.2012 at 10.00PM the patient 'P' was brought to the hospital for her medical examination with alleged history of sexual assault on 04.04.2012 and she was medically examined at the casualty vide Ex.PW10/A after which she was referred to Gynae Department. She has proved that during internal examination she did not find any injury marks seen over the external genitalia and the hymen of the patient 'P' was torn. According to the witness, she gave her observations at encircled portion X bearing her signatures at point A. She has proved having taken the samples and collected in the kit and handed over same to the police in sealed condition with the seal of hospital with sample seal. St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 18 (17) In her her cross examination by Ld. Defence counsel, the witness has admitted that she had not mentioned that the hymen was fresh torn. According to her, Hymentear could be possible by injury in that region after falling on the ground.
(18) PW14 Dr. Deepak Chugh has deposed on behalf of Dr. Sandeep. According to him, on 05.04.2012 at about 10.00PM the patient 'P' D/o Shyam Narayan, female, 12 years was brought at the hospital casualty by Lady Ct. Anita and was medically examined by Dr. Azia Manzoor vide Ex.PW10/A and there was no fresh external injury on the person of 'P' after which she was referred to the Gynae Department of the hospital. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
Forensic Experts:
(19) PW15 Sh. A.K. Shrivastava Deputy Director, DNA Unit, FSL Rohini, Delhi has deposed that on 12.04.2012 four sealed parcels of case FIR No. 85/12 of Police Station Keshav Puram were received in their DNA Unit at FSL Rohini, Delhi with sample seal and he tallied the same and found the same as intact. According to him on opening the parcel no.1 he found one quilt cover which was marked by him as Ex.1; on opening the parcel no.2 he found Ex.2a containing Ex.2a(1) and Ex.2a(2) one underwear and one baniyan St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 19 respectively and 2b, 2c, 2d, 2e, 2f, 2g and 2h containing Ex.2h(1) and Ex.2h(2) and 2h(3) and 2i containing 2i (1), 2i(2) and 2i(3) and 2j, 2k and 2l in respect of the prosecutrix described as sexual assault collection kit; in parcel no.3 he found one towel Ex.3 and on opening the parcel No.4 he found the blood sample of Surya Bhan marked as Ex.4. Witness has proved that the DNA was isolated from the exhibit 2a(1)( one underwear); 2h(1) & 2h(2) (two microslides); 2h (3) (cotton wool swab); 2i(1) & 2i(2) (two microslides); 2i(3) cotton wool swab and Ex.4 (blood sample of Surya Bhan). He has testified that STR sample analysis was used for sample and data was analyzed by using Gen Mapper IDX Software. According to him after examination he opined that the DNA profile from the source of Ex.2a(1), 2h(1), 2h(2), 2h(3), 2i(1), 2i(2), 2i(3) is similar with DNA profile of Ex.4. Witness has proved his detailed report in this regard which is Ex.PW15/A and the Genotype Analysis Report which is Ex.PW15/B. According to him, the remnants of the exhibits and exhibits were sealed with the seal of AKS FSL DELHI. (20) In his cross examination by Ld. Defence counsel, the witness has denied the suggestion that he had signed his report in a mechanical manner or that he had not conducted any examination of the above said exhibits. Witness has also denied the suggestion that he had given a false report at the instance of the Investigating Officer. St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 20
Police/ official witnesses:
(21) PW1 HC Naresh Kumar is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entry bearing No. 2740/12 in register no.19 copy of which is Ex.PW1/A; entry at Sr. No.2752/12 copy of which is Ex.PW1/B; entry bearing no. RC/30/21/12 in register no. 21 copy of which is Ex.PW1/C and copy of receipt/ acknowledgment issued by FSL which is Ex.PW1/D. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
(22) PW2 HC Ramesh is also a formal witness who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the arrest memo of accused Surya Bhan which is Ex.PW2/A; personal search memo of the accused which is Ex.PW2/B and disclosure statement of the accused which is Ex.PW2/C. He has been crossexamined by the Ld. Defence Counsel on the aforesaid aspects and has stood by his version.
(23) PW3 SI Sanjeev Verma is a formal witness being the Crime Team Inchare who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 21 wherein he has proved the Crime Team Report which is Ex.PW3/A. He has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted. (24) PW4 Lady Ct. Anita is also a formal witness who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved the DD No.14 PP dated 05.04.2012 which is Ex.PW4/A; seizure memo of cover of mattress which is Ex.PW4/B and seizure memo of exhibits of prosecutrix which is Ex.PW4/C. She has been crossexamined by the Ld. Defence Counsel on the aforesaid aspects and has stood by his version.
(25) PW5 Ct. Deepak is a formal witness who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entry in register no. 21 vide RC 30/21/12 copy of which is Ex.PW1/C and copy of receipt / acknowledgment issued by FSL which is Ex.PW1/D. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
(26) PW6 ASI Satbir is also a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 22 has proved the copy of FIR No. 85/12 which is Ex.PW6/A and his endorsement on rukka which is Ex.PW6/B. He has been cross examined by the Ld. Defence Counsel on the aforesaid aspects and has stood by his version.
(27) PW7 Ct. Subhash Chand is the Crime Team Photographer who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the photographs which are Ex.PW7/A1 to Ex.PW7/A6 and the CD of the photographs which is Ex.PW7/B. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted. (28) PW8 Ct. Net Ram is a formal witness who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the seizure memo of exhibits of accused which is Ex.PW8/A. He has been crossexamined by the Ld. Defence Counsel on the aforesaid aspects and has stood by his version.
(29) PW11 Mrs. Sunita Mehta Vice Principal, Government Girls Sr. Sec. School, Narang Colony, Tri Nagar has brought the original record in respect of admission of the prosecutrix 'P' D/o Mahender and Smt. Bimla Devi. According to her, the prosecutrix 'P' was admitted in their school on 01.04.2011 vide S.No. 6889 in class St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 23 6th photocopy of which admission register in this regard is Ex.PW11/A and according to admission register date of birth of prosecutrix 'P' is 09.06.2000. Witness has further deposed that the admission form of the prosecutrix was filled by Mahender Singh which is Ex.PW11/B and at the time of admission of 'P', her previous school SLC and class 5th report card of MCD School, Tri Nagar (Deva Ram Park) was also submitted by her father in their school, photocopy of which SLC is Ex.PW11/C and photocopy of the report card is Ex.PW11/D. She has proved having issued a certificate about the date of birth of the said prosecutrix 'P' which is Ex.PW11/E. (30) In her cross examination by Ld. Defence counsel, the witness has deposed that she has no personal knowledge about the date of birth of the prosecutrix 'P'. She has admitted that no birth certificate of the prosecutrix 'P' was submitted in their school at the time of her admission.
(31) PW18 SI Subhash Chander has deposed that on 05.04.2012 he was posted at police post Shanti Nagar, police station Keshavpuram and on that day at about 12:45 PM complainant 'P' along with her mother Bimla Devi and father Shyam Narain came to the police post Shanti Nagar and made a complaint regarding rape committed on 'P' by Surya Bhan. According to the witness, he immediately directed L/Ct. Anita to take the prosecutrix to BJRM hospital along with the parents of the prosecutrix for her medical St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 24 examination. Witness has further deposed that at about 3:15 PM the prosecutrix 'P' accompanied by her parents and L/Ct. Anita came to the police post and he was handed over the MLC of the prosecutrix, after which he recorded the statement of the prosecutrix which is Ex.PW13/A. According to the witness, he then went to Police Station Keshavpuram and made his endorsement on the complaint vide Ex.PW18/A which he handed over the Duty Officer for registration of the case at about 4:15 PM. Witness has further deposed that since the case involved a sexual assault the SHO was also apprised of the incident and W/SI Urmil was associated with the investigations along with himself. He has further deposed that the Duty Officer handed over the copy of the FIR and original rukka to SI Urmil. According to the witness, he immediately informed the women help line/ NGO and thereafter they returned to the police chowki where the prosecutrix and her parents were already sitting.
He has testified that at about 6:00 PM representative of the NGO came to the police post and counseled the prosecutrix for about one - one and a half hours. According to the witness, he also informed the crime team during this period and after the crime team reached the police chowki he along with, Ct. Anita, SI Urmil, prosecutrix and her parents went to house No. 851, gali No. 54, Lekhu Nagar, Tri Nagar on the third floor where prosecutrix had pointed out the place of incident. He has further deposed that Photographer of the crime team St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 25 had taken the photographs of the spot and the scene was inspected. He has proved that on the pointing out of the complainant the white bed sheet which was spread over the gadda was taken into possession by SI Urmil and converted into a pullanda after which she sealed the same with her seal and prepared the seizure memo vide Ex.PW4/B. Witness has testified that thereafter on the pointing out of complainant 'P', site plan was prepared by SI Urmil in his presence after which he and SI Urmil interrogated the father of the complainant regarding the accused during which he informed that accused Surya Bhan was working in gali No. 33, Omkar Nagar with Rajender Kumar, the owner of the house. The witness has also deposed that thereafter at about 9:00 PM the prosecutrix 'P' was again sent for her internal examination along with L/Ct. Anita and parents of the prosecutrix. He has proved that thereafter he along with SI Urmil went to the house of Rajender Parshad where they interrogated Rajender Parshad about the whereabouts of accused who informed that accused Surya Bhan had not reported to his duty on that day. Witness has also deposed that Rajender Parshad handed over ID proof and photograph of the accused after which they returned back to the spot and tried to search for the accused but he could not be traced there and thereafter at about 11 PM they returned back to the Police Post. The witness has further testified that on 06.04.2012 at about 1:30 AM (midnight) complainant along with her St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 26 parents and L/Ct. Anita returned back to the police post after the medical examination of the prosecutrix and L/Ct. Anita handed over the exhibits which were given to her by the doctors in the hospital to SI Urmil along with sample seal on which SI Urmil seized the same in his presence. According to the witness, he thereafter recorded the statement of mother and father of the prosecutrix on the directions of SI Urmil and thereafter SI Urmil recorded the supplementary statement of the prosecutrix 'P' and his statement was recorded by SI Urmil. He has testified that on 07.04.2012 on the directions of the senior officers, he along with HC Ramesh went to the native village of accused i.e. village Bhapasa, Post Thana Sajanwa, Gorkhpur, UP where he reached at about 12 noon on 08.04.2012 and came to know that the accused had left his native village and had gone to Delhi along with his brother Subhash. According to the witness they tried to search for the accused on the platform but could not locate him and thereafter on the next day i.e. on 09.04.2012 at about 7:30 AM they returned back to Delhi. He has testified that while they were searching for the accused at the main gate of New Delhi Railway Station with the help of photograph of the accused which was handed over by Rajender, they found one person resembling the person in the photograph and on interrogation he disclosed his name as Surya Bhan, S/o Dukh Haran after which they had taken the said person to the police post. According to the witness, thereafter he informed SI St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 27 Urmil about the same who came to the police post at about 10 AM and interrogated the accused and during the same period, father of the complainant namely Shyam Narain came to the police post who identified the accused Surya Bhan as the same person. He has proved that thereafter SI Urmil arrested the accused vide arrest memo Ex.PW2/A and his personal search was also conducted by HC Ramesh vide memo Ex.PW2/B and thereafter father of the complainant was relieved from the police post. Witness has further deposed that SI Urmil interrogated the accused in detail during which the accused made his disclosure statement vide Ex.PW2/C and thereafter he along with SI Urmil and the accused left the police post for the spot where accused pointed out the place of incident and at his instance one towel of white and purple check was recovered which was kept in a cloth pullanda and sealed with the seal of US and seized vide seizure memo Ex.PW18/B. According to the witness the accused was thereafter taken to BJRM hospital and after his medical examination, the doctor handed over two sealed pullandas sealed with the seal of hospital along with sample seal duly which was seized by the Investigating Officer vide memo Ex.PW8/A. (32) He has correctly identified the accused Sura Bhan in the Court and also identified the case property i.e. one cover of mattress which is Ex.P3 and one towel which is Ex.P4.
St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 28 (33) In his cross examination by Ld. Defence Counsel, the witness has deposed that the prosecutrix 'P' along with her parents came to the police station at about 12:45 PM and remained there upto about 2:30 AM. He has testified that they went to the house of prosecutrix 'P' at about 7:45 PM and remained there upto 11:00 PM. According to him, Pintoo was not examined by the Investigating Officer in his presence and no neighbor was examined by the Investigating Officer in his presence. Witness has also deposed that his statement was recorded by the Investigating Officer at Police Station Shanti Nagar. He has denied the suggestion that he did not join the investigations with the Investigating Officer or that nothing had happened in his presence. He has also denied the suggestion that accused was not arrested in the manner as deposed by him in his examination in chief or that the accused has been lifted from the Khalilpur Distt. Basti, U.P. and falsely implicated in this case. The witness has further denied the suggestion that no disclosure statement was made by the accused or that nothing was recovered in his presence or that he recorded false statement of 'P' at the instance of her father Shyam Narain to falsely implicate the accused in this case. (34) PW19 ASI Urmil Sharma has deposed that on 5.4.2012 she was posted at Sub Division Ashok Vihar, Rape Cell and on the asking of SHO Police Station Keshav Puram she reached at the police station on which Duty Officer handed over copy of the FIR and St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 29 original statement of prosecutrix 'P' along with original rukka. According to the witness, she reached at the Police Post Shanti Nagar where prosecutrix and her parents met her and SI Subhash also met her there and called the NGO officials from Sampurna and the NGO official counselled the prosecutrix after which the prosecutrix was ready for internal examination. She has testified that after the Crime Team reached the police chowki she along with Ct. Anita, SI Subhash, prosecutrix and her parents went to house No. 851, gali No. 54, Lekhu Nagar, Tri Nagar on the third floor where prosecutrix 'P' had pointed out the place of incident. According to her, photographer of the crime team had taken the photographs of the spot and the scene of crime was inspected and on the pointing out of the complainant the white bed cover which was spread over the gadda was taken into possession which was converted into a pullanda after which she sealed the same with her seal of US and prepared the seizure memo vide Ex.PW4/B. Witness has further deposed that she prepared the site plan Ex.PW20/A at the instance of victim 'P'. According to the witness, she and SI Subhash interrogated the father of the complainant regarding the accused during which he informed that accused Surya Bhan was working in gali No. 33, Omkar Nagar with Rajender Kumar, the owner of the house. She has also testified that thereafter at about 9:00 PM prosecutrix was again sent for her internal examination along with L/Ct. Anita and parents of the St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 30 prosecutrix after which she along with SI Subhash went to the house of Rajender Parshad where they interrogated Rajender Parshad about the whereabouts of accused who informed that accused Surya Bhan had not reported for his duty on that day. She has further deposed that Rajender Parshad handed over ID proof and photograph of the accused which is Ex.PW12/A. The witness has testified that thereafter they returned back to the spot and tried to search for the accused but he could not be traced there and hence thereafter at about 11:00 PM they returned back to the police post. According to her, on 06.04.2012 at about 1:30 AM (midnight) complainant along with her parents and L/Ct. Anita returned back to the police post after the medical examination of the prosecutrix and L/Ct. Anita handed over the exhibits which were given to her by the doctors in the hospital to her along with sample seal and she seized the same vide memo Ex.PW4/C. The witness has also deposed that thereafter she recorded the statement of the mother and the father of the prosecutrix and the supplementary statement of the prosecutrix 'P'. Witness has also deposed that on 6.4.2012 the prosecutrix 'P' was sent to Nirmal Chhaya. According to her, on 07.04.2012 the prosecutrix was produced before the Ld. MM and her statement under Section 164 Cr.P.C. was recorded and obtained the copy of the same. Witness has further deposed that on 9.4.2012, she came at the Police Post Shanti Nagar and arrested the accused vide arrest memo Ex.PW2/A and his St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 31 personal search was conducted vide Ex.PW2/B and his disclosure statement was recorded vide memo Ex.PW2/C. She has testified that thereafter she along with SI Subhash and the accused left the police post for the spot where accused pointed out the place of incident and at his instance one towel of white and purple check was recovered which was kept in a cloth pullanda and sealed with the seal of US and seized vide seizure memo Ex.PW18/B. According to the witness, thereafter the accused was taken to BJRM hospital and after his medical examination, the doctor handed over two sealed pullandas sealed with the seal of hospital along with sample seal duly which were seized vide memo Ex.PW8/A. Witness has further deposed that she deposited the seized articles in the malkhana on the respected dates and recorded the statements of the witnesses. According to her, during investigations on 12.4.2012 the exhibits of this case were sent to the FSL Rohini through Ct. Deepak for DNA profiling and thereafter she was transferred and the case file was handed over to MHC (R). She has correctly identified the accused in the Court and the case property i.e. one cover of mattress which is Ex.P3 and one towel which is Ex.P4.
(35) During her cross examination by Ld. Defence counsel, witness has deposed that the investigations of the case was handed over to her at about 5/5:15 PM on 5.4.2012 and they went to the house of prosecutrix at about 8 PM where she remained for about one St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 32 to one and half hour. According to the witness she recorded the statements of the parents of the prosecutrix, SI Subhash, L/Ct. Anita, R. P. Aggarwal on 5.4.2012. She has denied the suggestion that she did not conduct fair investigations in this case or that the accused has been falsely implicated at the instance of the parents of the prosecutrix. Witness has admitted that Pintoo was not examined or interrogated by her and has voluntarily explained that she is not aware if there was any person by the name of Pintoo. She has admitted that no date of birth certificate of the prosecutrix issued by the MCD was handed over to her by the parents of the prosecutrix. (36) PW20 PSI Lakshmi Singh has deposed that on 7.5.2012 she was posted at Police Station Keshav Puram and on that day the investigations of this case was handed over to her on which she had gone through the file. She has testified that the accused was already in judicial custody and on 8.5.2012 she obtained 14 days judicial custody of the accused and recorded the statement of crime team members under Section 161 Cr.PC and thereafter she prepared the charge sheet and filed the same in the court. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted. STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(37) After completion of prosecution evidence the statement of the accused Surya Bhan has been recorded under Section 313 Cr.P.C. St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 33
wherein all incriminating evidence was put to him which the accused has denied. He has stated that he is innocent and has been falsely implicated in this case by the complainant due to previous disputes. He has further stated that there used to be quarrel between them on trivial issues and also on financial issues. According to the accused, on 4.4.2012 he had received messages from the mobile of the father of the prosecutrix on which he went to his room and objected to the same but the issue got aggravated on which the father of the prosecutrix gave beatings to him and threatened to implicate her in some false case. He has also stated that later on the father of the complainant in connivance with the police implicated him in this false case. However, the accused has preferred not to lead any evidence in his defence.
FINDINGS:
(38) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the testimonies of the various witnesses examined by the prosecution and the written memorandum of arguments filed on behalf of the accused. My findings are as under:
Identity of the accused:
(39) In so far as the identity of the accused Surya Bhan is concerned there is no dispute. He has been specifically named in the St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 34 FIR by the complainant/ victim. He was previously known to the prosecutrix and her family members since the accused was living in the same premises on the top floor as proved by Rajender Prashad Aggarwal (PW12) and has been correctly identified by the owner of the premises Rajender Prashad Aggarwal, the victim 'P' and her parents in the Court. In view of the above, I hereby hold that the identity of the accused Surya Bhan stands established.
Age of the prosecutrix:
(40) The case of the prosecution is that the victim 'P' at the time of incident was hardly aged 12 years of age and was studying in class 7th. Smt. Sunita Mehta (PW11) has produced the school record of the prosecutrix 'P' according to which the date of birth of the prosecutrix 'P' is 9.6.2000 which was recorded on the basis of the School Leaving Certificate and class 5th report card issued by the MCD School establishing that at the time of the incident the prosecutrix was around 12 years of age. In view of the above, I hereby hold that the prosecutrix 'P' at the time of incident was aged about 12 years, an aspect which has gone uncontroverted.
Medical Evidence:
(41) Dr. Vaibhav (PW9) and Dr. Mamta (PW10) have proved the MLC of the prosecutrix 'P' which is Ex.PW9/A. PW10 Dr. St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 35 Mamta has proved that initially the prosecutrix 'P' had alleged that there was a history of sexual assault but refused for internal examination but on the same day after counselling the prosecutrix 'P' was again brought to the hospital when she consented to her internal examination. According to Dr. Mamta she had found the hymen of the prosecutrix torn after which she took the samples and collected in the kit and handed over the same to the police in sealed condition.
Here, I may observe that though Dr. Mamta (PW10) has testified that the hymen torn can be possible by falling on the ground yet in the allegations made by the prosecutrix 'P' there is no reason to disbelieve her version of the prosecutrix more so because in case of a tearing of hymen by accident or fall the surrounding genitalia would also be injured which is not the case. More over the prosecutrix 'P' is aged about 12 years and in a position to explain the reasons for the tear of the hymen. Once the prosecutrix has explained that the hymen was torn on account of sexual assault there is no reason to disbelieve the same since the aspect of sexual assault also stands established from the DNA Fingerprinting Report which connects the accused to the offence. In view of the above, I hereby hold that the medical evidence on record is compatible to the prosecution case. Forensic Evidence:
(42) PW15 Sh. A.K. Shrivastava has proved the DNA Fingerprinting Report which is Ex.PW15/A and the Genotype St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 36 Analysis Report which is Ex.PW15/B. He has proved that STR Sample Analysis was used for the samples and data was analysed by using Gen Mapper IDX Software. The witness has also proved that after examination he opined that the DNA Profile from the source of Ex.2a(1) [underwear of the prosecutrix]; 2h(1) [Microslide];
2h(2) [Microslide]; 2h(3) [cotton wool swab]; 2i(1) [Microslide]; 2i(2) [Microslide] & 2i(3) [cotton wool swab] were similar with the DNA Profile of exhibit 4 (blood sample of accused Surya Bhan). This conclusively nails the lies of the accused and confirms the allegations made by the prosecutrix 'P' against the accused Surya Bhan of having committed rape upon her.
Allegations against the accused:
(43) The case of the prosecution is that the family of the prosecutrix 'P' was residing on second floor of premises No. 851/54, Lekhu Nagar, Tri Nagar, Delhi as tenant which premises belong to Rajender Prashad Aggarwal and the accused Surya Bhan @ Uday was residing on the top floor. The accused Surya Bhan was also working as a labour in the house of Rajender Prashad Aggarwal on the ground floor and was helping in his business for the last seven years. On the date of incident i.e. 4.4.2012 while the father of the prosecutrix 'P' had gone for his work and all others were not at home, the accused Surya Bhan @ Uday taking advantage of their absence St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 37 called her to his room and thereafter forcible committed rape upon her. In the evening when the mother of the minor prosecutrix returned she informed her about the incident and the mother in turn informed the father when he returned. On the next day the matter was reported to the police. Initially when the prosecutrix was taken to BJRM Hospital the prosecutrix 'P' refused for her internal examination but later after she was duly counselled by the NGO, the prosecutrix was again taken to the hospital for her fresh examination on the same date when the mother of the prosecutrix 'P' consented for her internal examination. After the medical examination of the prosecutrix the exhibits were collected which were handed over to the Investigating Officer and later on sent to the FSL for examination.
The most material witness of the prosecution is the minor prosecutrix 'P' herself whose testimony finds due corroboration from the testimonies of her parents. In fact Rajender Prashad Aggarwal the owner of the premises who has been examined as PW12, has proved that the family of the prosecutrix 'P' was residing on the 2nd floor in the premises in question where the accused Surya Bhan whom he has correctly identified in the Court, was residing on the third floor. (44) Before evaluating the statement of the prosecutrix on the touch stone of truthfulness and credibility, it is necessary to briefly discuss the guiding principles of law as laid down by the various Courts. I may observe that the Hon'ble Supreme Court has in the St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 38 case of State of Rajasthan Vs. Biram Lal reported in 2005 AIR (SC) 2327 has held that:
"........It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the court is satisfied that the evidence of prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the Court may look for corroboration from independent sources or from the circumstances of the case before recording an order of conviction. In the instant case the allegations were that the accused during night entered the prosecutrix room and committed rape on her, the evidence of the prosecution was found worthy of credit and implicitly reliable....."
(45) In the year 2006 the Hon'ble Apex Court in the case of State of Himachal Pradesh Vs. Asha Ram reported in AIR 2006 SC 381 had observed that:
"...... The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of a victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty in acting on the testimony of a victim of sexual assault and to convict an accused where her testimony inspires confidence and is found to be St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 39 reliable. It is settled law that corroboration is a condition for Judicial Reliance on the testimony of the prosecutrix and is not a requirement of law but a guidance of Prudence under the given circumstances. Even minor contradiction or insignificant discrepancies in the statement of the prosecutrix cannot be a ground for throwing out, an otherwise reliable prosecution case.
(46) It was further observed by the Hon'ble Court that:
"..... No girl of self respect and dignity who is conscious of her chastity having expectations of married life and livelihood would accuse falsely against any other person of rape, much less against her father, sacrificing thereby her chastity and also expose the entire family to shame and at the risk of condemnation and ostracization by the society. It is unthinkable to suggest that the mother would go to the extent of inventing a story of sexual assault of her own daughter and tutor her to narrate a story of sexual assault against a person who is no other than her husband and father of girl, at the risk of bringing down their social status and spoil their reputation in the society as well as family circle to which they belong to....."
(47) Further, in the case of Vishnu Vs. State of Maharastra reported in 2006 AIR (SC) 508 it was observed by the Hon'ble Apex Court that:
"..... In the traditional nonpermissive bounds of society of India, no girl or woman of selfrespect St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 40 and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only she would be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracized and outcast from the society she belongs to and also from her family circle. From the statement of the prosecutrix, it was revealed that the accused induced her to a hotel by creating an impression that his wife was admitted in the hospital and that he would see her first and then drop the prosecutrix at her residence whereas, in fact, she was not admitted in the hospital. On the pretext of going to Hospital, he took her to a hotel, took her inside a room, closed the door of the room, threatened her to finish her if she shouted and then forcibly ravished her sexually. A clear case of rape, as defined under Section 375 Clause third of IPC was found established against the accused...."
(48) Also in the case of Bharwada Boginbhai Hirji Bhai Vs. State of Gujarat reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) it was observed by the Hon'ble Supreme Court that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complaints of rape or sexual molestation be viewed with doubt, disbelief or suspicion? To do so is to justify charge of male St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 41 chauvinism in a male dominated society.
(49) Applying the settled principles of law to the facts of the present case, at the very Outset I may observe that there is no previous history of dispute between the family of the prosecutrix and the accused at any point of time and there is no reason for his false implication.
(50) Secondly at the time of the incident the age of the prosecutrix 'P' was about 12 years and was studying in class 7th whereas the accused Surya Bhan was 32 years of age and hence, the consent of the prosecutrix, if any, is immaterial. Even otherwise the prosecutrix 'P' has specifically stated that she did not consent and forcibly raped by the accused and there is no reason to disbelieve her since it is the prosecutrix 'P' herself who had of her own disclosed about the incident of her parents. The mother of the prosecutrix 'P' corroborates the testimony of the prosecutrix and has explained that when she returned to her house, she found the prosecutrix in a distorted condition and she (prosecutrix) told her about the incident while crying. This would not have been her condition in case if the prosecutrix was a consenting party.
(51) Thirdly it stands established that when the offence took place the parents of the prosecutrix 'P' were not at home. While the father of the prosecutrix 'P' namely Shyam Narayan @ Mahender who is a Kabari by profession had gone for his work, the mother of St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 42 the prosecutrix namely Bimla Devi had gone to Tibia College along with her youngest child for taking medicines and other children were playing in the street. Taking advantage of the situation the accused committed rape upon the prosecutrix. The testimony of the prosecutrix 'P' in this regard is very categorical. In her first statement made by the police and also thereafter made to the Ld. MM under Section 164 Cr.P.C. which proceedings are Ex.PX3 (collectively) and also in her deposition before this Court she is very categorical. In her testimony before this Court she has made specific allegations against the accused. She has also explained that even on a earlier occasion the accused had misbehaved with her and teased her after which she had informed her mother of the incident but unfortunately it is the prosecutrix herself who was asked to maintain distance from the accused and the accused was never confronted. The relevant portion of her testimony is as under:
"........ I have been residing at the aforesaid house along with my parents and two brothers namely Prince aged about 9 years, Ashu aged about 6 years and one sister namely Pratima aged about 45 years since 2007 on rent basis. My date of birth is 09.06.2000. My father used to work as a Kabari. My mother is a housewife. I am studying in class 7th at Govt. Girls senior secondary school, Tri Nagar, Narang colony, Delhi. In the upper floor of our house Surya Bhan, labour of our house owner was residing.
St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 43
On 04.04.2012 I along with my two brothers had gone to our schools in the morning time at about 7 AM. In the afternoon at about 1 PM I along with my brothers returned back to our house. I was having the key of the house and I opened the same and myself and my brothers take our lunch which was already prepared by my mother. At that time my mother, my younger sister and my father were not present. My both brothers went in the gali and they were playing there and I was alone in our house. At about 22:30 PM Surya Bhan came to his room and he called me in the staircase and thereafter he caught hold me by my hands and took me to his room forcibly and he forced me to lie on his bed and he removed my salwar and underwear and he also removed his wearing towel and underwear and thereafter he committed rape upon me.
Thereafter I returned back to our house after wearing my clothes. At about 44:30 PM my mother returned back to our house and I told about the above said incident to my mother about the commission of rape committed by accused Surya Bhan. My father returned back to our house at about 10 PM. My mother and myself told about the incident to my father. On the next day on 05.04.2012 at about 12 noon I along with my parents went to the police post of police Station Keshavpuram. Police inquired about the facts from me and I told all the facts to them.
Police recorded my statement vide already EX PW 13/A and I put my signatures at point A and my mother put her thumb impressions at point B St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 44 and my father also put his signatures at point C. Accused Surya Bhan misbehaved with me earlier also on one occasion. I was taken to BJRM hospital for medical checkup but my internal examination could not be done because I was scared. Thereafter we returned back to the police chowki and one NGO officer came there to counseled me and thereafter I was ready for my internal examination. I along with my parents and ladies police again went to BJRM hospital and my medical examination was conducted. My underwear and baniyan were also sealed by the doctor in the hospital......"
(52) The prosecutrix 'P' has been crossexamined at length and she has specifically testified that twothree days before the incident when the accused misbehaved with her, she had informed her mother about the eveteasing but instead of scolding the accused, her mother had advised her not to meet the accused Surya Bhan. It is evident from the crossexamination of the prosecutrix 'P' that she did not offer any resistance nor there were any injury marks on her body. Here, I may note that the prosecutrix 'P' has explained that she did not raise any alarm because there were nobody present in the house. It is necessary to note here that the minor prosecutrix was at a vulnerable age and was virtually a child of immature understanding. Merely because the prosecutrix did not offer any resistance is no ground to disbelieve her testimony or to assume that she was a St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 45 consenting party (even otherwise, her consent if any was immaterial because she was a minor below the age of 16 years i.e. around 12 years of age).
(53) Fourthly when the incriminating evidence on record including the DNA Fingerprinting Report (connecting the accused to the offence) and the statement of the prosecutrix was put to the accused in his statement under Section 313 Cr.P.C. he did not admit or deny the same and only stated that it was a matter of record. It is this DNA Fingerprinting Report which conclusively establishes that the DNA Profile from the source of Ex.2a(1) [underwear of the prosecutrix]; 2h(1) [Microslide]; 2h(2) [Microslide]; 2h(3) [cotton wool swab]; 2i(1) [Microslide]; 2i(2) [Microslide] & 2i(3) [cotton wool swab] were similar to the DNA Profile of exhibit 4 (blood sample of accused Surya Bhan). This connects the accused with the offence and no explanation is forthcoming from the accused as to how the said exhibits including the vaginal swab of the prosecutrix would contain the DNA material of the accused. The only defence of the accused Surya Bhan is that he has been falsely implicated by the family of the prosecutrix on account of trivial issues and also on account of financial issues. According to him, on 4.4.2012 he had received messages from the mobile of the father of the prosecutrix on which he went to his room and objected to the same but the issue got aggravated after which the father of the prosecutrix gave beatings to St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 46 him and threatened him to implicate in some false case. The DNA Fingerprinting Report falsifies this defence of the accused which on the face of it an after thought. Even otherwise, no father worth the name would would falsely implicate his neighbour (with whom he has no previous dispute and rather with whom he was having good relations) in order to seek revenge, by putting the reputation of his minor school going daughter at stake.
(54) Lastly the delay, if any, in registration of the FIR has been duly explained. The father of the prosecutrix namely Shyam Narayan (PW13) and her mother namely Bimla Devi (PW16) have explained that having come to know of the incident which took place with their daughter, they became nervous. The reaction of Shyam Narayan was natural and probable. Having come to know of the incident the parents of the prosecutrix 'P' first confronted the accused with the incident and hence Shyam Narayan gave him a beating. While Shyam Narayan was giving a beating to the accused Surya Bhan, the accused ran away. The parents have explained that feeling extreme sense of shame and humiliation did not inform the police immediately and it was next day morning that they reported the matter to the police. It has been proved that the various exhibits i.e. underwear of the prosecutrix and her swab were collected (as per Medical Jurisprudence in case if the victim has not taken a bath immediately then it is possible to retrieve the stains/ biological St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 47 material of the accused from the vaginal swab of the victim within 48 hours) which explains the matching in DNA even after the material was collected after 24 hours of the incident. This being so I hereby hold that the delay if any in registration of the FIR is not fatal to the prosecution case.
(55) In view of the above, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Surya Bhan @ Uday of having wrongfully restrained the prosecutrix 'P' in his room and of committing rape upon her for which the accused is held guilty of the offence under Sections 341 and 376 Indian Penal Code. However, in so far as the aspect of criminal intimidation is concerned, the prosecutrix 'P' in her testimony before this Court is totally silent on this aspect and hence the accused Surya Bhan is acquitted of the charge under Section 506 Indian Penal Code.
FINAL CONCLUSIONS:
(56) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 48 concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(57) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the evidence on record, the following facts stand established:
➢ That the prosecutrix 'P' was residing at House No. 851, Gali No. 54 (Second Floor), Lekhu Nagar, Tri Nagar, Delhi along with her parents and two brothers on rent which premises belong to Rajender Prashad Aggawal.\ St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 49 ➢ That the prosecutrix 'P' was aged around 12 years at the time of incident (her date of birth being 09.06.2000) and she was studying in class 7th at Govt. Girls Senior Secondary School, Tri Nagar, Narang Colony, Delhi. ➢ That the accused Surya Bhan @ Uday was also residing on the third floor of the said premises and was working as labour of Rajender Prashad Aggarwal and was hence known to the family of the prosecutrix previously. ➢ That on 04.04.2012 the father of the prosecutrix had gone for his work and the mother of the prosecutrix had gone to Tibia College along with her youngest child for taking medicines.
➢ That the prosecutrix 'P' along with her two brothers had gone to their school in the morning and in the afternoon at about 1:00 PM the prosecutrix 'P' along with her brothers returned back to their house.
➢ That both the brothers of the prosecutrix 'P' went in the gali to play and the prosecutrix left alone in her house. ➢ That at about 22:30 PM the accused Surya Bhan came to the room of the prosecutrix 'P' and called her in the staircase after which he caught hold her by her hands and took her to his room forcibly where he committed rape on the minor prosecutrix 'P'.
St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 50 ➢ That the prosecutrix 'P' thereafter returned back to her room and at about 44:30 PM when her mother returned back, she narrated the incident to her mother. ➢ That the father of the prosecutrix 'P' returned back at about 10 PM when the prosecutrix her mother told him about the incident.
➢ That on the next day on 05.04.2012 at about 12 noon the matter was reported to the police and the case was got registered on the basis of the statement of the prosecutrix 'P'.
➢ That the prosecutrix 'P' was taken to BJRM Hospital for her medical examination where initially she refused for her internal examination but on being counseled by the NGO the prosecutrix 'P' consented for the same after which her internal examination was got conducted and the exhibits were taken and handed over to the Investigating Officer, which exhibits were later on sent to FSL for DNA examination.
➢ That on 9.4.2012 the accused Surya Bhan @ Uday was arrested from New Delhi Railway Station and thereafter his blood samples were collected.
➢ That the DNA profile from the source of Ex.2a(1) [underwear of the prosecutrix]; 2h(1) [Microslide]; St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 51 2h(2) [Microslide]; 2h(3) [cotton wool swab]; 2i(1) [Microslide]; 2i(2) [Microslide] & 2i(3) [cotton wool swab] were found similar with the DNA Profile of exhibit 4 (blood sample of accused Surya Bhan) which conclusively connects the accused Surya Bhan with the offence.
(58) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(59) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLC, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 52 witnesses is natural and trustworthy and corroborated by medical & forensic evidence and the witness of the prosecution have been able to built up a continuous link.
(60) In view of the above I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Surya Bhan @ Uday of having wrongfully restrained the prosecutrix 'P' in his room and of committing rape upon her for which the accused is held guilty of the offence under Sections 341 and 376 Indian Penal Code and convict him accordingly. However, in so far as the aspect of criminal intimidation is concerned, the prosecutrix 'P' in her testimony before this Court is totally silent on this aspect and hence the accused Surya Bhan is acquitted of the charge under Section 506 Indian Penal Code.
(61) Be listed for arguments on sentence on 16.1.2013.
Announced in the open court (Dr. KAMINI LAU) Dated: 11.1.2013 ASJII(NW)/ ROHINI St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 53 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 65/2012 Unique Case ID No. 02404R0163422012 State Vs. Surya Bhan @ Uday S/o Sh. Dukh Haran R/o 851/54, Lekhu Nagar, Tri Nagar, Delhi (Convicted) FIR No.: 85/2012 Police Station: Keshav Puram Under Section: 341/376/506 Indian Penal Code Date of Conviction: 11.1.2013 Arguments heard on: 16.1.2013 Date of Sentence: 22.1.2013 APPEARANCE: Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Convict Surya Bhan @ Uday in Judicial Custody with Ms. Sadhna Bhatia Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
The case of the prosecution is that the family of the prosecutrix 'P' aged about 12 years was residing on second floor of St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 54 premises No. 851/54, Lekhu Nagar, Tri Nagar, Delhi as tenant which premises belong to Rajender Prashad Aggarwal and the accused Surya Bhan @ Uday was residing on the top floor. The accused Surya Bhan was also working as a labour in the house of Rajender Prashad Aggarwal on the ground floor and was helping in his business for the last seven years. On the date of incident i.e. 4.4.2012 while the father of the prosecutrix 'P' had gone for his work and all others were not at home, the accused Surya Bhan @ Uday taking advantage of their absence called her to his room and thereafter forcible committed rape upon her. In the evening when the mother of the minor prosecutrix returned she informed her about the incident and the mother in turn informed the father when he returned and it was only on the next day that the matter was reported to the police.
The prosecutrix 'P' has appeared before this Court and made specific allegations against the accused Surya Bhan @ Uday. On the basis of the testimonies of the various prosecution witnesses particularly the prosecutrix 'P', her father Shyam Narayan, her mother Bimla Devi and the owner of the premises Rajender Prashad Aggarwal and also on the basis of the medical, forensic and circumstantial evidence on record, this Court has held the accused Suya Bhan @ Uday guilty of the offence under Sections 341 and 376 Indian Penal Code for which he has been accordingly convicted. Vide detailed judgment dated 11.1.2013 this Court has held that it St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 55 stood established that the prosecutrix 'P' was residing at House No. 851, Gali No. 54 (Second Floor), Lekhu Nagar, Tri Nagar, Delhi along with her parents and two brothers on rent which premises belong to Rajender Prashad Aggawal; that the prosecutrix 'P' was aged around 12 years at the time of incident (her date of birth being 09.06.2000) and she was studying in class 7th at Govt. Girls Senior Secondary School, Tri Nagar, Narang Colony, Delhi; that the accused Surya Bhan @ Uday was also residing on the third floor of the said premises and was working as labour of Rajender Prashad Aggarwal and was hence known to the family of the prosecutrix previously; that on 04.04.2012 the father of the prosecutrix had gone for his work and the mother of the prosecutrix had gone to Tibia College along with her youngest child for taking medicines; that the prosecutrix 'P' along with her two brothers had gone to their school in the morning and in the afternoon at about 1:00 PM the prosecutrix 'P' along with her brothers returned back to their house; that both the brothers of the prosecutrix 'P' went in the gali to play and the prosecutrix left alone in her house; that at about 22:30 PM the accused Surya Bhan came to the room of the prosecutrix 'P' and called her in the staircase after which he caught hold her by her hands and took her to his room forcibly where he committed rape on the minor prosecutrix 'P'; that the prosecutrix 'P' thereafter returned back to her room and at about 44:30 PM when her mother returned back, she narrated the incident St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 56 to her mother; that the father of the prosecutrix 'P' returned back at about 10 PM when the prosecutrix her mother told him about the incident; that on the next day on 05.04.2012 at about 12 noon the matter was reported to the police and the case was got registered on the basis of the statement of the prosecutrix 'P'; that the prosecutrix 'P' was taken to BJRM Hospital for her medical examination where initially she refused for her internal examination but on being counseled by the NGO the prosecutrix 'P' consented for the same after which her internal examination was got conducted and the exhibits were taken and handed over to the Investigating Officer, which exhibits were later on sent to FSL for DNA examination; that on 9.4.2012 the accused Surya Bhan @ Uday was arrested from New Delhi Railway Station and thereafter his blood samples were collected; that the DNA profile from the source of Ex.2a(1) [underwear of the prosecutrix]; 2h(1) [Microslide]; 2h(2) [Micro slide]; 2h(3) [cotton wool swab]; 2i(1) [Microslide]; 2i(2) [Micro slide] & 2i(3) [cotton wool swab] were found similar with the DNA Profile of exhibit 4 (blood sample of accused Surya Bhan) which conclusively connects the accused Surya Bhan with the offence.
In view of the above it has been held that the prosecution has been able to prove and substantiate the allegations against the accused Surya Bhan @ Uday of having wrongfully restrained the prosecutrix 'P' in his room and of committing rape upon her for St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 57 which the accused has been held guilty of the offence under Sections 341 and 376 Indian Penal Code. However, in so far as the aspect of criminal intimidation is concerned, the prosecutrix 'P' in her testimony before this Court was totally silent on this aspect and hence the accused Surya Bhan has been acquitted of the charge under Section 506 Indian Penal Code.
Heard arguments on the point of sentence. The convict Surya Bhan @ Uday is stated to be aged about 30 years having a family comprising of four elder brothers and three sisters. He is 12 th class pass and is a labour by profession. The Ld. Amicus Curiae appearing on behalf of the convict has vehemently argued that the convict is a first time offender and is not involved in any other criminal case. She requests that keeping in view the young age of the convict a lenient view be taken against him.
On the other hand, the Ld. Addl. Public Prosecutor has prayed for a stern view against the convict keeping in view the nature of allegations involved and also in view of the fact that the prosecutrix 'P' is a minor aged about 12 years. He has argued that the convict deserves no leniency.
I have considered the submissions made before me. The Hon'ble Supreme Court has in the judgment of State of Andhra Pradesh Vs. Gangula Satya Murthy reported in JT 1996 (10) SC 550, observed as under:
St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 58
"Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.."
In the case of Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty reported in AIR 1996 SC 922, the Hon'ble Apex Court observed that: "Rape destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the 'Constitution'). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions." It has been held by the Hon'ble Supreme Court in the case reported in AIR 2000 Supreme Court 1470 that:
Socioeconomic, status, religion, race caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 59 and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. It has been held by the Hon'ble Supreme Court that it is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. (Ref: Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78).
Of late instances of young girls of impressionable age being sexually exploited are on a rise and this, I may observe, is a matter of national concern. The primary obligation of the Courts is to ensure that minors are protected from all kind of exploitations. The prosecutrix 'P' was aged 12 years at the time of the incident and the convict Surya Bhan @ Uday was residing on the top floor of the premises. The convict taking advantage of the tender age of the prosecutrix, her immature understanding and absence of family St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 60 members of the prosecutrix 'P' committed rape upon the minor prosecutrix 'P'. What the convict has done with the minor prosecutrix 'P' is unpardonable and under these circumstances, no leniency can be shown to the convict. I hereby award the following sentences to the convict Surya Bhan @ Uday:
1. For the offence under Section 341 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of One Month.
2. For the offence under Section 376 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Ten Years and fine to the tune of Rs.10,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.
Both the sentences shall run concurrently. Benefit of Section 428 Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules.
Coming now to the aspect of compensation to the victim, I may observe that rape of a minor not only affects her alone but such an incident leaves a devastating impact on her entire family who equally suffer in silence. The victim at the time of the incident was hardly aged 12 years. It is cases like these which the Ministry of St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 61 Women and Child development needs to target for Restorative Justice so that necessary support is provided to the victim. The Hon'ble Apex Court has time and again observed that the subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. It has been so observed by Hon'ble Mr. Justice S. Saghir Ahmed and Justice Kuldip Singh (Ref: Bodhisattwa Gautam Vs. Subhra Chakraborty reported in AIR 1996 SC 922) that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
Therefore in order to provide Restorative and Compensatory Justice to the victim who requires medical attention and rehabilitation, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant a compensation to the tune of Rs.1,00,000/ (Rs. One Lac) to the victim 'P' daughter of Sh. Shyam Narayan @ Mahender, R/o 851, Gali No.54, Lekhu Nagar, Tri Nagar, Delhi which amount shall be used for her welfare and rehabilitation (including her studies) under the supervision of Welfare Officer so nominated by the Government of NCT of Delhi, Department of St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 62 Women and Child Development [Ref.: Hari Kishan & State of Haryana Vs. Sukhbir Singh & Ors. reported in AIR 1988 SC 2127 and Bodhisattwa Gautam Vs. Subhra Chakraborty reported in AIR 1996 SC 922].
A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi; Chief Secretary, GNCT of Delhi; Principal Secretary (Social Welfare), GNCT of Delhi and Director, Department of Social Welfare (Women and Child Development), GNCT of Delhi for information and necessary action under intimation to this Court.
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, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 22.1.2013 ASJ (NW)II: ROHINI
St. Vs. Surya Bhan @ Uday, FIR No. 85/12, PS Keshav Puram Page No. 63