Delhi District Court
Fir No. 314/08/ State vs . Manoj Bhagat Page 1 Of 23 on 20 May, 2011
IN THE COURT OF SH. RAVINDER DUDEJA; ADDL SESSIONS
JUDGE-03: NW: ROHINI : DELHI
Session Case No. 99/08.
FIR No: 314/08
U/s: 376 IPC
PS: Mukherjee Nagar.
State.
Versus
Manoj Bhagat,
S/o Sh. Ram Sunder Bhagat,
R/o Jhuggi No. 27/9, Indira Vikas Colony,
Delhi-110009.
Date of Institution : 06.11.2008
Date of argument : 25.04.2011
Date of judgment : 10.05.2011
JUDGMENT
1. Prosecution case is that on 08.09.2008, complainant Smt. Manju came at PS Mukherjee Nagar with her daughter Kumari "K" (name withheld), aged about ten years and gave her statement to WSI Mukesh Devi that on 07.09.2008, accused Manoj, her neighbour, came at her house to take water. She FIR No. 314/08/ State Vs. Manoj Bhagat Page 1 of 23 requested him to give some cement from the site where he was Chowkidar. Accused asked her to send her child to get cement. Complainant sent her daughter Kumari "K" to bring cement from accused. After sometime, prosecutrix came back with cement and wept and told the complainant that accused removed her underwear and performed "Ganda Kaam" with her after removing his pant. He left her only when somebody called him. Complainant further stated in her said statement that she did not report the matter to the police in the night as her husband was not at home. On the statement of the complainant, FIR was registered under Section 376 IPC. Accused was arrested. Prosecutrix and accused were got medically examined. The exhibits were seized. The exhibits were sent to FSL Rohini. Statement of prosecutrix was got recorded under Section 164 Cr. PC wherein she stated that accused had performed "Ganda Kaam" with her and that she reported the matter to her sister who informed her mother. The bone age examination of the prosecutrix was conducted for age determination. On completion of investigation, charge sheet was filed against accused under Section 376 IPC.
2. After compliance of Section 207 Cr. PC, the case was committed to Sessions Court. Charge under Section 376 IPC FIR No. 314/08/ State Vs. Manoj Bhagat Page 2 of 23 was framed against the accused to which, he pleaded not guilty.
3. In order to prove its case, prosecution examined 16 witnesses. PW-1 is Kumari "K". She is the prosecutrix.
PW-2 is Smt. Manju Devi, mother of the prosecutrix. She deposed about the averments made in her statement Exbt. PW-2/A given to the police.
PW-3 is HC Rajiv Yadav, Duty Officer. He recorded the FIR Exbt. PW-3/A. PW-4 is Constable Parshu Ram. He is the witness of arrest of accused. He had accompanied the accused and prosecutrix to Hindu Rao Hospital for their medical examination. He stated that after medical examination, the doctor had handed over the pullandas. He is the witness of seizure memo Exbt. PW-2/E. PW-5 is Constable Jai Prakash. He had deposited the pullandas at FSL.
FIR No. 314/08/ State Vs. Manoj Bhagat Page 3 of 23PW-6 is SI Vikas. He was Constable at the time of occurrence. He stated that Duty Officer gave him Tehrir and the copy of FIR. He went at the spot at Indira Vikas Colony where WSI Mukesh Devi met him. Accused was arrested He and the prosecutrix were taken to Hindu Rao Hospital and after their medical examination, IO had seized the pullandas given by the doctor.
PW-7 is Inderjeet. He is the father of the prosecutrix. He deposed that at about 10.00 pm, when he returned back at the house from work, his wife informed him that accused had done "Ganda Kaam" with their daughter. He asked his wife to go to police station to lodge the report.
PW-8 is Dr. M.D. Hassan, Medical Officer from Hindu Rao Hospital. After the medical examination of the prosecutrix, he referred her to EMO (OBS & Gynae) for examination. He proved the MLC of the prosecutrix as Exbt. PW-8/A. PW-9 is WSI Mukesh Devi. She is the Investigating Officer of this case. She stated that on 08.09.2008 at about 4.15 pm, prosecutrix and her mother Manju were present at the police station. She recorded the statement of Smt. Manju and FIR No. 314/08/ State Vs. Manoj Bhagat Page 4 of 23 prepared Rukka Exbt. PW-9/A and gave the same to Duty Officer for the registration of the FIR. Then she along with the prosecutrix, her mother and Constable Parshu Ram reached at the spot at 34/2, Indira Vikas Colony from where accused was apprehended on the pointing out of the prosecutrix. He was interrogated and arrested in this case. Accused and prosecutrix were then taken to Hindu Rao Hospital for medical examination. The exhibits were seized vide memos Exbt. PW-2/B and Exbt. PW-2/E respectively. She then prepared the site plan Exbt. PW- 9/B on the pointing out of the prosecutrix. Statement of prosecutrix and her mother were recorded. Statement of prosecutrix under Section 164 Cr. PC was also got recorded. On 17.10.2008, sealed pullandas were sent to FSL through Constable Jai Prakash. She had also got conducted the bone age examination of prosecutrix for age determination. During the pendency of the case, FSL result Exbt. PW-9/C and Exbt. PW-9/D were collected and filed in court.
PW-10 is Dr. Payal Bajaj. She stated that the gynae examination of prosecutrix was done by Dr. Chhavi Shukla and as per her observations, hymen was torn and there was no sign of external injury. The gynae observations have been proved as Exbt. PW-10/A. FIR No. 314/08/ State Vs. Manoj Bhagat Page 5 of 23 PW-11 is Dr. Shyam Kishore. He had conducted the medical examination of accused and proved his MLC Exbt. PW- 11/A. After examination, he referred the accused to EMO, Surgery and Medico Legal Expert for further opinion.
PW-12 is Sh. Sanjay Jindal, ACMM, Dwarka Courts. He had recorded the statement of prosecutrix under Section 164 Cr. PC.
Dr. Naseem Akhtar has been wrongly numbered as PW-12. He stated that on examination of accused by Dr. Pradeep Kumar, he found no external injury and there was no evidence that he cannot perform sexual act.
PW-13 is Dr. P.K. Jain, Radiologist. He had examined the X Ray plates of the prosecutrix and as per his opinion, the age of the prosecutrix was between 7 to 9 years.
PW-14 is HC Mukesh Kumar, the then MHCM. He proved the relevant entries of Malkhana Register.
PW-15 is Dr. Dinesh Dang, SR, Forensic Medicine, Hindu Rao Hospital. He stated that accused was examined by FIR No. 314/08/ State Vs. Manoj Bhagat Page 6 of 23 Dr. Pramod Kumar who prepared the proforma and as per the said proforma, there was nothing to suggest that accused was not capable of performing sexual intercourse.
4. I have heard arguments from the learned APP Sh. Anil Kumar and Sh. J.S. Kalra, advocate for the accused and have carefully gone through the records of the case. Prosecution has built its case on the basis that prosecutrix was a minor less than 12 years of age and was sexually assaulted by the accused. Prosecution is relying on the statements of parents of prosecutrix and X Ray report Exbt. PW13/A.
5. In the cases of offence of rape, the prime question for consideration always remains the age of the prosecutrix. Prosecution has not placed on record documentary evidence of the date of birth of the prosecutrix. The mother of the prosecutrtix in her testimony deposed that the age of the prosecutrix was ten years. WSI Mukesh Devi deposed that she had got conducted the bone age examination of the prosecutrix for age determination. As per X-Ray report Exbt. PW-13/A proved by the doctor, the age of the prosecutrix was between 7- 9 years. Thus, the age of the prosecutrix was less than 12 years. Accused himself has not challenged the age of the FIR No. 314/08/ State Vs. Manoj Bhagat Page 7 of 23 prosecutrix as given by her mother and has also not challenged the X Ray report and therefore that being so, there is no doubt whatsoever that the age of the prosecutrix was about 10 years and in any case below 12 years.
6. The learned defence counsel has vehemently argued that the place of occurrence is situated in a densely populated area but there is no public witness to corroborate the testimony of the prosecutrix. It is submitted that there is no observation by the doctor as to whether the hymen was old or fresh torn. No injury has been found on the body of the prosecutrix or the accused. The FSL result does not prove the presence of blood and semen on the underwear of the prosecutrix. It is thus argued that prosecution story is not supported by medical and forensic evidence. It is submitted that medical and forensic evidence rather than supporting the prosecution evidence, negatives, nullifies, falsifies and militates against the version of the prosecutrix which renders prosecution story suspect.
7. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence FIR No. 314/08/ State Vs. Manoj Bhagat Page 8 of 23 of a person other than prosecutrix is available and for this reason in a rape case, conviction of the accused on the basis of the testimony of prosecutrix alone is permissible and conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. A plethora of decisions by Hon'ble Supreme Court would show that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the courts for the corroboration of her statement. Corroboration of testimony of prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. In the case of Sheikh Zakir Vs. State of Bihar 1983 (4) SCC 10, it was held as under:-
"Section 133 of the Indian Evidence Act says that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. But the rule of practice is that it is prudent to look for corroboration of the evidence of an accomplice by other independent evidence. This rule of practice is based on human experience and is incorporated in Illustration FIR No. 314/08/ State Vs. Manoj Bhagat Page 9 of 23
(b) to Section 114 of the Indian Evidence Act which says that an accomplice is unworthy of credit unless he is corroborated in material particulars. Even though a victim of rape cannot be treated as an accomplice, on account of a long line of judicial decisions rendered in our country over a number of years, the evidence of the victim in a rape case is treated almost like the evidence of an accomplice requiring corroboration. It is accepted by the Indian courts that the rule of corroboration in such cases ought to be as enunciated by Lord Reading, C.J. In King v.
Baskerville. Where the case is tried with the aid of a jury as in England it is necessary that a Judge should draw the attention of the jury to the above rule of practice regarding corroboration wherever such corroboration is needed. But where a case is tried by a judge alone, as it is now being done in India, there must be an indication in the course of the judgment that the judge had this rule in his mind when he prepared the judgment and if in a given case the judge finds that there is no need for such corroboration he should give reasons for dispensing with the necessity for such corroboration. But if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground. (emphasis added)."
8. Similarly, in the case of Bharwada Bhoginbhai FIR No. 314/08/ State Vs. Manoj Bhagat Page 10 of 23 Hirjibhai Vs. State of Gujrat 1983 (3) SCC 217, it was held 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 complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. The Hon'ble Court further held that we must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values; and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile."
FIR No. 314/08/ State Vs. Manoj Bhagat Page 11 of 239. Similarly, in the case of State of Maharashtra Vs. Chandraprakash Kewal Chand Jain 1990 (1) SCC 550, the court held that a prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as it attached to an injured in cases of physical violence....... What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration........... If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted."
FIR No. 314/08/ State Vs. Manoj Bhagat Page 12 of 2310. Thus, it is a settled legal position that even the uncorroborated testimony of the prosecutrix can be held to be sufficient to sustain conviction of an accused of rape, but then such testimony should be unflinching, consistent and infallible and inspire confidence of the court to believe her version.
11. In her testimony, prosecutrix deposed that she was sent by her mother with accused for taking cement for filling up a pit in their house. Accused took her to the upper floor of his house where he performed "Ganda Kaam" with her. She stated that accused removed his clothes and also removed her clothes and then put his urinating portion in her urinating portion. When somebody called the accused, he brought her down and gave her cement. On coming back to her house, she narrated the incident to her mother. She stated that accused was known to her before the date of occurrence and had been visiting her house. In reply to a leading question put by the learned APP, she admitted that she had shown the place of occurrence to the police.
12. In her cross examination, the prosecutrix admitted that there are jhuggis in the vicinity of the house where she was FIR No. 314/08/ State Vs. Manoj Bhagat Page 13 of 23 raped. She states that "Ganda Kaam" was done with her outside the room on the first floor of the house. She stated that she did not sustain any injury except on her knee. According to her, her mother did not inform about the incident to anyone except her father. She stated that she knows the accused prior to the incident and accused used to visit her house on earlier occasions also. She stated that she carried with her a polythene bag to bring cement. She further stated in her cross examination that no one was residing in the house which was under construction.
13. Prosecutrix has withstood the test of cross examination. Nothing concrete has been pointed out in cross examination which may shake her credibility or trustworthiness.
14. The learned Additional PP has argued that the absence of injuries either on the person of the accused or prosecutrix does not prove that no rape was committed or that prosecutrix was a consenting party. It is argued that the absence of injuries on the prosecutrix cannot falsify the case of rape and cannot discredit the statement of the prosecutrix. It has also been argued that to constitute the offence of rape, it is not necessary that there should be complete penetration of FIR No. 314/08/ State Vs. Manoj Bhagat Page 14 of 23 penis with emission of semen and rupture of hymen. Even partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen is quite sufficient to constitute rape. It is thus argued that it is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains.
15. So far as the legal position is concerned, explanation to Section 375 IPC makes it clear that penetration is sufficient to constitute sexual intercourse necessary to the offence of rape. To constitute penetration it must be proved that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. The only thing to be ascertained is whether the private parts of the accused did enter into the person of the woman. It is not necessary to decide how far they entered. It is not essential that the hymen should be ruptured, provided it is clearly proved that there was penetration even though partial. For the offence of rape to be committed, it is not necessary that there should be complete penetration. Similarly, seminal emission is not necessary to establish rape. Absence of spermatozoa cannot negative rape. In the case of Ranjeet Hazarika Vs. State of Assam 1998 (8) SCC 635, medical evidence did not prove any injury on the FIR No. 314/08/ State Vs. Manoj Bhagat Page 15 of 23 private parts of the prosecutrix and her hymen was found to be intact, the Hon'ble Court held that the opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of hymen and injuries on the private parts of the prosecutrix. It was held that opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix.
16. In the present case, as per the MLC of the prosecutrix, her hymen was found torn. Admittedly, there is no opinion of the doctor as to whether it was a fresh torn or old torn. Admittedly, there was no fresh injury either on the person of the accused or the prosecutrix. Admittedly, as per FSL result, no traces of semen were found on the underwear of the prosecutrix. The absence of support from the medical or forensic evidence would not impeach the credibility of the testimony of the prosecutrix. The absence of injury either on the person of the accused or the prosecutrix shows that prosecutrix did not resist but the absence of injury is not itself sufficient to hold that she was not sexually assaulted. May be being frightened, she was unnerved or for fear of being assaulted, she had not resisted. Prosecutrix was a girl aged about ten years. Merely because she was a helpless victim FIR No. 314/08/ State Vs. Manoj Bhagat Page 16 of 23 who was by force prevented from offering serious resistance, she cannot be disbelieved. In taking this view, I am also supported by the case of B.C. Deva @ Dyeva Vs. State of Karnataka (2007) 12 Supreme Court Cases 122. In the said case, medical evidence did not corroborate the alleged forced sexual intercourse. There was absence of marks of injury either on the person of the accused or on the prosecutrix. Medical examination of the prosecutrix did not disclose the evidence of sexual intercourse but the Hon'ble Court found the oral testimony of the prosecutrix to be cogent, reliable, convincing and trustworthy which stood corroborated by other Pws and the narration of events in the FIR. The defence of the accused that prosecutrix was a consenting party as she did not resist and no injuries were found on her body or on the accused was held to be unfounded and baseless and falsified by the subsequent conduct of the prosecutrix.
17. The learned defence counsel has argued that the testimony of mother of prosecutrix also does not inspire confidence as she deposed that the underwear of her daughter was having blood stains but the same is contradicted by FSL result. It is also argued that there is contradiction in the testimony of PW-1 and PW-2 in as much as PW-1 states in FIR No. 314/08/ State Vs. Manoj Bhagat Page 17 of 23 cross examination that she was carrying a polythene bag while PW-2 states that she did not give any bag to her daughter. It is well settled that minor contradictions and insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. The main evidence in a rape case is that of the victim herself. The evidence of the victim of sexual assault has a great probative force. The evidence of the prosecutrix in this case inspires confidence and there is no reason to disbelieve her testimony.
18. The learned defence counsel has further argued that father of the prosecutrix did not accompany her to the police station and it is unnatural that a father whose daughter has been raped, would not accompany her to the police station and therefore this causes suspicion on the prosecution story of rape. It is correct that Manju Devi has deposed that she took her daughter to the police station at the advice of her husband and PW-7 Inderjeet, who also stated that he asked his wife to go to police station to lodge the report. It seems that he himself did not accompany them to the police station but in view of the testimony of the prosecutrix which has been found to be straight forward and cogent, I refuse to attach much importance to such conduct of the father of the prosecutrix.
FIR No. 314/08/ State Vs. Manoj Bhagat Page 18 of 2319. Accused has taken the defence that he had caught Smt. Manju Devi stealing cement from the site where he was working as a Chowkidar and had warned her that he would lodge a complaint against her and would put her behind the bars and this is why Manju Devi falsely implicated the accused in the present case in connivance with her husband and the police. In the traditional non-permissive bonds of society of India, no girl or woman of self respect and dignity would depose falsely, implicating somebody of ravishing her chastity by sacrificing and jeopardising her future. Not only would she be sacrificing her future prospect of getting married and family life, but also would invite the wrath of being ostracised and cast out from the society she belongs to and also from her family circle. There is also no valid or tangible reason as to why the parents would use their minor daughter as a tool to settle their petty score with accused. In the present case, there is no basis to come to the conclusion that the mother of the prosecutrix was caught stealing the cement. The facts and circumstances of the case do not disclose that prosecutrix or her parents were having a strong motive to falsely implicate the accused. The MLC of the prosecutrix confirms the rupture of hymen. The statement of mother of prosecutrix that prosecutrix narrated the FIR No. 314/08/ State Vs. Manoj Bhagat Page 19 of 23 entire episode immediately when she arrived at home can also be held to be a corroborative piece of evidence.
20. Hence, in view of my aforesaid discussion, I am of the opinion that prosecution has been able to prove its case against the accused beyond doubt. I therefore hold the accused guilty of commission of rape of prosecutrix and accordingly convict him under Section 376 (2) (f) IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:NW-03:ROHINI:DELHI ANNOUNCED IN THE OPEN COURT ON 10.05.2011.
FIR No. 314/08/ State Vs. Manoj Bhagat Page 20 of 23IN THE COURT OF SH. RAVINDER DUDEJA; ADDL.
SESSIONS JUDGE-03; NW; ROHINI; DELHI
Sessions case no. 99/08
FIR No.: 314/08
PS: Mukherji Nagar
U/s: 376 (2) (f) IPC
State
Versus
Manoj Bhagat
s/o Sh. Ram Sunder Bhagat,
r/o jhuggi no. 27/9,
Indira Vikas Colony, Delhi-09
Order on sentence
1. Arguments heard on the point of sentence
from Ld. APP for State as also from Ld. Defence counsel for convict. It has been submitted by Ld. defence counsel that convict is not involved in any other criminal case. He has three minor children and aged mother and there is no person in the family to support them. Request has been made for taking a lenient view. Ld. APP, on the other hand has prayed for awarding appropriate sentence.
2. Crimes of violence upon women need to be severely dealt with. Any liberal attitude by imposing meagre FIR No. 314/08/ State Vs. Manoj Bhagat Page 21 of 23 sentence or taking too sympathetic a view merely on account of considerations personal to the accused in respect of such offences would be resultwise counter-productive in the long run and against societal interest which needs to be cared for and strengthened by the required string of deterrence inbuilt in the stentencing system. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate sentence in a criminal trial. Leniency in matters involving sexual offences is not only undesirable but also against public interest. Showing leniency in such matters would be really a case of misplaced sympathy. The legislature has provided minimum sentence of 10 years for such like offences. None of the circumstances explained by Ld. Defence counsel justify the award of less than minimum sentence provided u/s 376 (2) (f) IPC. I, therefore, sentence the convict with 10 years Rigorous Imprisonment with fine of Rs. 10,000/-, in default of payment of fine, he shall undergo 6 months SI. He shall get the benefit of section 428 Cr. P. C. for the period during which he remained in custody during investigation/ trial. Copy of judgement and order be given to the convict free of cost. File be consigned to Record Room.
(RAVINDER DUDEJA) FIR No. 314/08/ State Vs. Manoj Bhagat Page 22 of 23 Additional Sessions Judge/ NW-03/ Rohini/Delhi Announced in open court on 20-05-2011 FIR No. 314/08/ State Vs. Manoj Bhagat Page 23 of 23