Delhi District Court
8. In The Case Of Tarkeshwar Sahu vs . State Of Bihar (Now on 16 July, 2010
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IN THE COURT OF SH. DHARMESH SHARMA, ASJ-II,NORTH,
DELHI.
SESSIONS CASE NO: 72/2009
FIR No: 119/08
P.S. Sadar Bazar
U/S: 376 IPC
DATE OF INSTITUTION: 11.08.2008
DATE ON WHICH ARGUMENTS
HEARD : 09.07.2010
DATE ON WHICH JUDGEMENT
HAS BEEN DELIVERED: 16.07.2010.
STATE
VERSUS
MOHD. JAFFAR @ CHOTU
S/O MOHD. TAHIR
R/O VILLAGE NIRSA,
MOHALLA- ANSAAR,
DISTT. DHANBAD, JHARKHAND
APPEARANCE:
Mr. Maqsood Ahmed, Ld. Additional Public Prosecutor for
State.
Ms. Shagufta Afroz, Ld. Amicus Curiae for the accused.
16.07.2010
JUDGMENT:
1. Accused Mohd. Jaffar @ Chotu S/o Mohd. Tahir has been arraigned for trial by the Prosecution on the allegation that he had committed rape upon the daughter of his employer aged about six 2 years.
FACTS
2. The case of the prosecution is that on 14.05.2008 DD No. 47-B Ex.PW-8/A was lodged at PS Sadar Bazar at about 2:50p.m near Akhara Police Post Motia Khan, Sadar Bazar, Delhi that a person has been apprehended who committed rape upon a minor girl. The investigation was handed over to W/ASI Shakun (PW-18) who along with ASI Nissar Ahmed (PW-8), HC Chander Singh (PW-6) and Lady Ct. Krishna (PW-4) reached the spot where prosecutrix and her parents were found present. Statement of the mother of the prosecutrix was recorded which is Ex.PW1/A to the effect that "She is a house wife and her husband is running a "Kamela" i.e. a cattle house keeping some buffaloes ; that they have four boys and three daughters and the youngest one is the prosecutrix aged about six years; that accused Mohd. Jaffar @ Chotu was employed by her husband for about two years and the accused had been acquainted with all the members of the family; that on 13th May, 2008 sometimes in the afternoon she had gone to offer bananas to monkeys in the nearby park; that at about 6:00p.m her daughter i.e prosecutrix went to the bathroom located on the roof of the house and she experienced some pain while passing urine; that on being asked she 3 disclosed that Mohd. Jaffar @ Chotu had committed some "Galat Kaam" with her; that she physically inspected the private parts of her daughter and suspected something fishy; that accused Mohd. Jaffar @ Chotu was missing from the house; that she took her daughter to Kalawati Hospital where the Doctor on duty advised her to take the girl to Gynecology Department but since it was late at night they came back; She further stated that later during the day time they were looking for accused Mohd. Jaffar @ Chotu who was sighted near Sadar Thana road and she raised an alarm and with the help of the people the accused Mohd. Jaffar @ Chotu was apprehended".
3. On the basis of the said statement rukka Ex.PW 3/B was written and the present FIR Ex.PW 3/A was recorded on 14.05.2008 at about 9:10p.m. The prosecutrix as well as the accused person were sent for their medical examination. The prosecutrix was also produced before Sh. Lokesh Kumar Sharma, Ld. MM, Delhi where her statement u/s 164 Cr.P.C was recorded. After completion of the investigation the present charge sheet was filed against the accused. CHARGE
4. It is needless to state that accused was charged for committing offence u/s 376 IPC to which he pleaded not guilty and 4 claimed trial.
PROSECUTION WITNESSES
5. The prosecution in order to prove its case examined as many as 18 witnesses. The prosecutrix was examined as PW-3 and her mother and father were examined as PW-1 and PW-2 respectively. Their names are not being mentioned for the sake of family honour and confidentiality; The minor brother of the prosecutrix was also examined as PW-5; PW-4 was L/Ct. Krishna. She deposed taking the prosecutrix for her medical examination to Hindu Rao Hospital; PW-6 was HC Chander Singh. He was associated in the investigation during which time the statement of mother of the prosecutrix was recorded and accused was apprehended. He also deposed that he took the accused to the hospital for his medical examination; PW-7 was Ct. Mohan Singh. He deposed collecting four sealed parcels from MHC (M) on 18.06.2008 as per the directions of the IO and deposed that he deposited the same with the FSL Rohini vide Road Certificate No. 38/21; PW-8 was ASI Nissar Ahmed who was associated in the investigation of this case; PW 9 was Dr. J. Bali, CMO from Hindu Rao Hospital, Delhi. He deposed medically examining the accused and proved the MLC Ex.PW 9/A; PW 10 was Ct. Sanjeev. He was Duty Officer who recorded DD No. 47/B on 14.05.2008; PW 11 was 5 Mahesh Pal. He deposed that Ct. Sanjeev who was posted with PCR recorded the information given by Afzal at 14:47 hours regarding the rape of a girl and apprehension of the accused; PW 12 was HC Vedpal Singh who was Malkhana Incharge; PW-13 was HC Omkar Nath. He deposed recording the present FIR Ex.PW 13/A; PW 14 was Dr. M. K. Panigrahi from Hindu Rao Hospital, Delhi. He medically examined the accused and gave an opinion that he was sexually potent; PW 15 was Sh. Lokesh Kumar Sharma, Ld. MM, Delhi who recorded the statement of the prosecutrix u/s 164 Cr.P.C; PW -16 was Dr. Shweta Mishra, Consultant Gynecologist who deposed about the medical examination of the prosecutrix and the observations made by her on the MLC Ex.PW 16/A; PW 17 was Bhrigu Nath Singh Record Clerk from Mangla Hospital, Tentwali Basti, Motia Khan, Pahar Ganj, Delhi who proved discharge slip made by Dr. Swapnil Sandhya Ex.PW 17/A; lastly PW-18 was the Investigating Officer W/ASI Shakun.
STATEMENT OF ACCUSED
6. On the close of the prosecution evidence, accused was examined as per Section 313 Cr.P.C. and on putting the incriminating evidence appearing against him, the accused denied that he committed rape upon the prosecutrix. He submitted that he has been 6 falsely implicated by the police and the prosecutrix as he demanded his wages from the father of the prosecutrix which were dues for the last six months prior to the said incident. He did not choose to lead any evidence in his defence.
7. I have heard Mr. Maqsood Ahmed, Ld. APP for the State and Ms. Shagufta Afroz, Ld. Amicus Curiae for the accused. I have also perused the relevant record of the case.
8. In the case of Tarkeshwar Sahu Vs. State of Bihar (Now Jharkhand ) 2006 (3) Apex Criminal 427 : 2006 (4) Cri. C.C 822, the ingredients of rape u/s 375 and 376 IPC were explained as under :
i) Slightest penetration of penis in vagina is an offence or rape;
ii) Where penetration was proved, it would be offence of rape even if hymen remained intact;
iii)It is unnecessary to prove actual emission of semen
iv)Word "penetrate", according to Concise Oxford Dictionary means "find access into or through, pass through".
9. I am conscious of the proposition of law that evidence of child witness is required to be evaluated carefully as the child may be 7 swayed by the nears and dears and child may be vulnerable to tutoring. The main witness for the prosecution is the child prosecutrix. PW3 Prosecutrix was first examined in the Court on 24.4.2009. It would be expedient to refer to her testimony in the Court in toto. Ld. Predecessor of this Court conducted preliminary examination of the witness who testified that she was seven years of age, studying in third standard in Guru Nanak Primary School. On being asked the purpose of her visit, she stated that she was in the "Adalat" due to the accused. She stated that Ld. Judge was "Subse Bare" in the Adalat. She also stated that she knows that she has to speak the truth. My Ld. Predecessor made an observation that the child was capable of understanding the questions that were put to her and she answered them without any confusion. With that she was examined without administering oath.
10. Prosecutrix deposed that it was 13th day of the month last year ; that it was afternoon and she was sleeping in her house ; that she had stomach ache and went to the roof of the house to ease herself ; that when she was going back to her room, accused Chotu called her who was an employee of her father and used to come to their house . She deposed that there was a room near the toilet on the roof ; that the accused called her inside the room and bolted the 8 kunda from inside ; that accused made her lie down on the mattress and then also lied down upon her ; that he took off his clothes, opened the chain of his pant and took out his penis and entered the same in her back. Court observation was made that the witness pointed out towards her vagina. The prosecutrix then deposed that she sustained injuries and pushed the accused back, ran away to the down stairs to her room after opening the kunda. She also deposed that later when she had some pain while passing the urine, she informed her mother about the incident. She also deposed that her statement was recorded earlier before the Magistrate and the same was proved as Ex. PW3/A.
11. The prosecutrix was not cross-examined on 24.4.09 and her statement reads that an opportunity was given to the accused which was not availed. This Court also found that PW5, father of the prosecutrix besides PW16 Dr. Shweta also could not be cross- examined on behalf of the accused probably due to non-availability of his counsel/Ld. Amicus Curiae. As this amounted to violation of the Constitutional Rights of the accused to defend himself. therefore, this Court vide order dt. 24.4.10 directed the witnesses to be recalled.
12. PW3 Prosecutrix was therefore, recalled and she was 9 examined on 31.5.10. Suffice to state that the witness appeared to be quite confident of herself, not disturbed by the Court atmosphere, she was tendered for cross-examination. The cross-examination was recorded in question-answer form. The prosecutrix on being asked about the time of incident stated that it was sometime in the day time, not morning, evening or night. On being asked who were present in the house, she stated that her mummy -papa, brothers and sisters were present but she stated that "UPER WALE KAMRE MEIN KOI NAHI THA, US LARKE KE ALAWA" . Translated in English, it means that except for the accused, no-one else was present in the room on the roof. On being asked, she stated that the room was being used by her elder brother Suraj. She also deposed that the wrongful act was done by the accused from behind as well as from the front of her body.
13. Keeping the testimony of the prosecutrix on the hold for the time being, evidence of PW5 Suraj, brother of the prosecutrix, a boy of about 14 years of age brings out that accused, whose nick name is Chotu was working with their father and on the day of incident, he came to have some meals at their house. PW5 deposed that all her sisters and brothers were present in the ground floor portion of their house ; that accused Chotu came to the first floor and switched off the 10 Television which was in the room of the roof and thereafter, he went downstairs where his brothers and sisters were sleeping and he also went to sleep. The inference that his evidence makes out is that accused Chotu had come to their house sometimes in the afternoon and used the room on the roof for having his meals and for having some rest. PW5 also deposed that about 6 p.m, he came to know that accused had done some wrongful act with her sister/prosecutrix. Evidence of PW1, mother and that of PW2 father of the prosecutrix bring out that when the prosecutrix experienced some pain in passing urine, her mother asked her as to what had happened and then she revealed that the accused had done some "Galat Kaam" with her.
14. I am afraid reading the evidence of the prosecutrix in totality, there is no inference that she was tutored to depose against the accused or that she had any reason to depose falsely against the accused. Her evidence is put in a very simple manner, natural, cogent and trustworthy. In the case of Mohd. Alam Vs State (NCT of Delhi), 2007 Cr. L. J. 803, their lordships in the context of a case involving rape of a minor girl laid down certain parameters and factors that must be kept in mind:
Such cases need to be dealt with sensitively 11 and not like cases involving other penal offences. In other words, the whole approach of the Courts must be quite different. The traditional non-permissive bounds of Indian Society must be kept in mind while examining the evidence in cases involving sexual offences. Social factors play an important role in the nature and quality of available evidence. The sole testimony of a prosecutrix is enough to convict a person accused of rape, if the testimony is free from blemish and implicitly reliable. Such testimony does not need corroboration; but if there is some doubt about the implicit reliability of the testimony, then the Court may look for assurance to the acceptability of the testimony, short of its corroboration. If the testimony of the prosecutrix is reliable and trustworthy, then minor contradictions are not enough to thrown out the evidence and other issues such as non-examination of an available witness, even the non-examination of a doctor or the non- production of the doctor's report would not be fatal to the case of the prosecution.
15. It must be indicated that accused was admittedly under the employment of the father of the prosecutrix, working with them for about 2 years. He was friendly with the members of the family and sometimes used to take his meals at the house of his employer i.e. PW2. The accused took advantage of his position of trust and obviously the members of the family could have never comprehended that accused would indulge or commit such a dastardly act.
16. If I may quote, 'India Today' in its weekly edition, Vol. XXXIV 12 No. 27, June 30 to July 6, 2009, in an editorial article "Mind of a Rapist" cites data from National Commission for women to the effect that in 92% of the rape cases offenders know their victims and in 7.5% of the cases, relatives of the victim are involved. If such data are correct, it is an alarming situation. What disturbs me most is - What would a girl seven years of age know of sex or rape? The prosecutrix most probably had no idea what was the accused, who was like a family member, doing to her and she had no reason to suspect until she experienced pain and naturally talked to her mother.
17. The issue that begs our consideration is that though it is proved by the prosecution, the accused had committed some "Galat Kaam" with the prosecutrix. Was it an act of rape within the meaning of Section 375 of IPC? The prosecutrix was produced for medical examination before PW16 Dr. Shweta Mishra, Consultant Gynecologist, Hindu Rao Hospital on 14.5.2008 at about 5.05 p.m. On local examination, she found "vulva reddened and hymen ragged". She proved her remarks in detail in the MLC Ex. PW16/A. At the cost of repetition, PW16 was recalled and examined on 15.5.10. In her cross-examination, she clarified that the Vulva was reddened meant that there was inflammation. She also certified that the hymen was not torn and it was ragged meaning thereby that it was having 13 readness and inflammation.
18. Ld. Amicus Curiae urged that PW16 Dr. Shweta Mishra had made observations in the MLC Ex. PW16/A that mother of the prosecutrix had applied some ointment on the vulva, a day before. Ld. Amicus Curiae also urged that PW16 stated that inflammation or redness could have occasioned due to application of some ointment causing skin reaction. I am afraid in the light of clear testimony of the prosecutrix that accused did some "Galat Kaam" with her, I cannot buy the argument that the redness or inflammation occurred due to application of some ointment causing reaction. In the light of the said expert opinion, mere fact that there were no external marks on the body of the deceased as per MLC Ex. PW1/A and therefore, testimony of the prosecutrix is not believable cannot be accepted.
19. In Modi's Medical Jurisprudence and Toxicology, Twenty- third Edition, Lexis Nexis, Butterworths Wadhwa, Nagpur at page no. 897, it is observed that :
"To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with the emission of semen and the rupture of hymen. Partial penetration of the penis within the labia majora of the vulva or pudenda, with or without 14 the emission of semen, or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed".
20. In the case of State of Himachal Pradesh Vs. Gyan Chand, AIR 2001 SC 2075 ; (2008 SCC (Crl.) 980) where absence of external injuries marks on the person of the accused by itself was held to be not sufficient to negate the prosecution case. Further in Modi's book (Supra) at page 928, it is observed as under :
"In small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the fourchette and the perineum".
21. In the light of the said discussion, the mere fact that the hymen was not torn or ruptured or there was only inflammation and thus no penetration but merely an attempt by the accused to commit rape cannot be accepted. The evidence of the prosecutrix that the accused had made her lie down on the mattress and removed his clothes, taking out his penis and putting it in her vagina clearly indicates that the accused had gone beyond the stage of attempt and 15 had caused penetration so as to commit rape on the prosecutrix.
22. Ms. Shagufta Afroz, Ld. Amicus Curiae relied on Koppulu Venketrao vs. State of Andhra Padesh : AIR 2004 S 1874 wherein it was observed that "sine qua non of offence of rape is penetration and not ejaculation". Canvassing the point that it was a mere attempt, she referred to difference between preparation and attempt to commit an offence of rape in the cited case and wherein it was observed as under :
The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her flat on the ground undresses himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into vagina and on such rubbing ejaculates himself then it cannot be said that it was a case of merely assault under Section 354, IPC and not an attempt to commit rape under Section 376 read with 511 IPC. In the facts and circumstances of the case the offence of an attempt to commit rape by accused has been clearly established and the accused was rightly convicted under Section 376 read with 511, IPC.
23. I am afraid the said plea is also not sustainable in law. I have already reffered to the observations of the Apex Court in the Case of 16 Tarkeshwar Sahu Vs. State of Bihar (Supra) wherein it was held that once penetration is proved, it would be an offence of rape, even if the hymen remained intact. In another case by the Apex Court titled Aman Kumar Vs. State of Haryana : AIR 2004 SC 1497, in the context of rape of a minor girl by the accused/convict, it was observed that "to constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen". It was observed that "partial penetration within the Labia Majora of the Vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in law. It was also observed that "the depth of penetration is immaterial in an offence u/s 376 IPC" (Para 7).
24. Ms. Shagufta Afroz, Ld. Amicus Curiae for the accused lastly urged that there is no explanation why the prosecutrix was not medically examined soon after the incident on 13.5.08 and there was a considerable delay in lodging the FIR pointing out that the same was lodged next day at about 9.10 p.m. as per FIR Ex. PW13/A. I am afraid I am not impressed. It is in the evidence of PW1 mother of the prosecutrix that it was around 6 p.m. on 13.5.08 when the prosecutrix informed her that the accused had committed "Galat Kaam" with her. She deposed that she confided this fact with her husband PW2 who 17 corroborated the same. Both PW1 and PW2 i.e. the parents of the prosecutrix deposed that they took their daughter to Kalawati Hospital ; that in the hospital, the prosecutrix was medically checked by the doctor and their daughter was referred to the Gynecology Casualty Department. The witness then deposed that they came back to the house due to odd hours. To my mind, the delay is quite explanable. The poor parents of the girl were not sure what to do. It appears that they were not properly treated by the hospital and due to odd hours, they chose to deliberate more on their problem. It must be understood that they were illiterate persons and it strikes to reasons that they were in two minds or in a confused state to plan a proper course of action. Any how, it is in their evidence that on next date they started looking for the accused who was sighted at Sadar Thana Road near Police Booth and then they raised alarm and managed to get the accused apprehended by the police. As per DD no. 47B Ex. PW8/A, information to the concerned P.S. was made at about 2.15 p.m. and it is but obvious that thereafter the investigation started. The prosecutrix was produced without any further delay before the doctor at 5.05 p.m. as per MLC Ex. PW16/A. The prosecutrix was also produced before the Ld. M.M. who recorded her statement wherein she elaborated the manner in which the accused had done "Galat Kaam" with her.
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25. Ld. Amicus Curiae pointed out that in her statement u/s 164 Cr.P.C. Ex. PW3/A, she had indicated that "Galat Kaam" was done pointing out towards her anus. Well, she was a child hardly about 6-7 years of age studying in second standard and one can very well understand that she could not make out the difference as to what was the import of the "Galat Kaam" done by the accused upon her. At the cost of repetition, her version of incident when examined in the Court was more elaborate and one cannot say that she was tutored. She was categorical that when she went again to pass urine, she experienced pain. The witness was not asked any question that it was sexual assault in the nature of any un-natural offence or to say specifically Anal Intercourse. The witness during examination in the Court was categorical that "Galat Kaam" was done pointing out towards her vagina.
26. In the said view of the discussion, I find that the prosecution has been able to prove the guilt of accused beyond reasonable doubt. The accused is therefore, held guilty of committing offence U/s 376 IPC. Let he be heard on the point of sentence on 17.7.2010.
ANNOUNCED IN THE OPEN (DHARMESH SHARMA)
COURT TODAY i.e 16.07.2010 ASJ-II / NORTH, DELHI
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IN THE COURT OF SH. DHARMESH SHARMA, ASJ-II,NORTH, DELHI.
SESSIONS CASE NO: 72/2009 FIR No: 119/08 P.S. Sadar Bazar U/S: 376 IPC DATE OF INSTITUTION: 11.08.2008 DATE ON WHICH ARGUMENTS HEARD : 09.07.2010 DATE ON WHICH JUDGEMENT HAS BEEN DELIVERED: 16.07.2010.
STATE VERSUS MOHD. JAFFAR @ CHOTU S/O MOHD. TAHIR R/O VILLAGE NIRSA, MOHALLA- ANSAAR, DISTT. DHANBAD, JHARKHAND APPEARANCE:
Mr. Maqsood Ahmed, Ld. Additional Public Prosecutor for State.
Convict produced from J/C. Ms. Shagufta Afroz, Ld. Amicus Curiae for the convict.
17.07.2010 ORDER ON SENTENCE:
1. I have heard Ms. Shagufta Afroz, Ld. Amicus Curiae for the 20 convict and Mr. Maqsood Ahmed, Learned Addl. Public Prosecutor for the State. I have also heard the convict who states that he is innocent and has been falsely implicated in this case by the parents of the prosecutrix since he was demanding his arrears from them due for the last more than 2 years. It is urged that convict is innocent and he did not commit any crime. It is urged that convict was about 20 years of age at the time of incident and he belongs to a poor family ; that he is the eldest in the family and there are two brothers and two un-
married sisters.
2. At the cost of repetition, the prosecution has been able to prove that convict took advantage of the position of his trust in the family of the prosecutrix ; that convict called her in a room on the roof when no-one was around. convict took off his clothes and made the prosecutrix lie down on the mattress. It has been proved that the convict took out his penis and attempted to commit vaginal intercourse. It is by sheer chance that the poor girl was able to push the convict back and escaped from his clutches. The medical report that the Vulva was reddened and there was inflammation goes to suggest that convict succeeded in causing penetration but was not successful in satisfying his lust. The convict had clearly cross the stage of preparation and it is immaterial if the hymen was intact or 21 that there was no deep penetration and ejaculation of semen. It is well settled that sentence must commensurate with the gravity of the offence . The convict committed such dastardly act on a hapless child of seven years of age and the incidents of child abuse must be dealt with very strictly.
3. As per Section 376 (2) (f), commission of rape on a woman less than 12 years of age is punishable with minimum sentence of 10 years which may for adequate and special reasons may be less than that. Considering that the convict was about 20 years of age at the time of incident, hailing from a poor family and illiterate, it would not be appropriate to award him the minimum sentence of 10 years. Having regard to the facts and circumstances of this case, I, therefore, sentence the convict to undergo rigorous imprisonment for a period of 7 years and also impose fine of Rs.5,000/- failing which to undergo rigorous imprisonment for further period of one year. The convict be given the benefit of Section 428 Cr.P.C. The convict has been supplied copy of the judgment dated 16.07.2010 as well as the order on sentence passed today i.e 17.07.2010 free of costs.
4. He has also been apprised that he shall be at liberty to file an Appeal against this judgment and sentence before the High Court of 22 Delhi. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi. File be consigned to record room.
ANNOUNCED IN OPEN COURT (DHARMESH SHARMA) TODAY ON: 17.07.2010. ASJ-II, NORTH/DELHI. 23 SC No. 72/09 17.7.10.
Present : Sh. Maqsood Ahmed, Ld. learned Addl. Public Prosecutor for the State.
Convict produced from J/C. Ms. Shagufta Afroz, Ld. Amicus Curiae for the convict. Order on sentence announced separately today. File be consigned to R/R. (DHARMESH SHARMA) ASJ-II / NORTH, DELHI 24 SC No. 72/09 16.7.10.
Present : Sh. Maqsood Ahmed, Ld. learned Addl. Public Prosecutor for the State.
Accused produced from J/C. Ms. Shagufta Afroz, Ld. Amicus Curiae for the accused. Vide separate judgment of even date, the accused is hereby convicted U/s 376 IPC. Let he be heard on the point of sentence on 17.7.10.
(DHARMESH SHARMA) ASJ-II / NORTH, DELHI 25 SC No. 72/09 14.7.10.
Present : Sh. Maqsood Ahmed, Ld. learned Addl. Public Prosecutor for the State.
Accused produced from J/C. Ms. Shagufta Afroz, Ld. Amicus Curiae for the accused. Order is under dictation. Put up for Orders on 16.7.2010 (DHARMESH SHARMA) ASJ-II / NORTH, DELHI 26 I have heard Ms. Sadhna Bhatia, Amicus Curiae for the accused, the accused and Sh. Maqsood Ahmed, learned APP for the State.
Accused has urged again that he has been falsely implicated in this case by his real sister under pressure from her husband. He reiterates that he used to scold his nephew Khurshid who had fallen prey to anti-social elements and there were certain differences in the family. He states that prosecutrix was used to falsely implicate him in this case. I am afraid the submissions of the accused do not impress me. In the main judgment dated 02.05.2009, I have already given a finding that it is not conceivable that a sister would use her own daughter against her real brother in such a manner, as in this case, so as to ruin the life of her own real brother besides stigmatizing her own daughter for life in the society. The evidence brought on the record clearly establish that accused exploited his niece, the prosecutrix for his sadistic and perverted sexual needs.
The accused has also urged that during the trial, he has had no effective legal representation and his counsel or Amicus Curiae never talked to him or consulted him on any matter involving this case and he has also urged that he was not supplied the copies of the statement of the witnesses by the Court. I do not find any substance in the submission of the accused. Perusal of the record shows that Ms. Sadhna Bhatia, Amicus Curiae appointed by the court had been regularly appearing during the trial and Ld. Counsel cross-examined all the witnesses particularly prosecutrix, her mother, investigating officer besides others. Ms. Bhatia, Amicus Curiae states that the cross- examination of prosecutrix and her mother was conducted after due deliberation and consultation with the accused on factual matters in the Court.
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It appears that accused after his long stint in judicial custody has become wiser after coming in contact with some smart educated under trial prisoners. It is borne out from the record that accused on 19.3.09 had complained to this Court that he has been without legal representation and this Court after perusal of the entire record found no substance in it. Though Ms. Sadhna Bhatia sought discharge, on the insistence of Court, she continued to represent the accused. The accused was given the copies of statements of all the witnesses with liberty to approach Legal Aid Cell, DLSA in the Jail premises and take appropriate legal advise to enable him to decide further course of action. Intimation was also given to Jail Suptd. for an audience of the accused with Legal Aid Functionaries. The accused does not deny that he has had consultation with Legal Aid Functionaries in the Jail and I am certain that there has been no miscarriage of justice in this case.
Ld. Amicus Curiae has urged that accused is a first time offender. It is urged that he has a family having his wife and three sons and he is the sole earning member of his family. The accused on being asked informs that his three sons are in the age group of 5 to 9 years only. Ld. Amicus Curiae has requested for showing some mercy to the accused.
I am afraid the question of mercy to the accused does not arise at all. At the cost of repetition, the accused is the real maternal uncle of the prosecutrix. He sexually exploited the prosecutrix over a period of 7-8 months, intimidated her with dire consequence in case she reveals anything to anyone. Prosecutrix was kept under constant fear for her life as well as that of her family members. The punishment in this kind of cases should be not only severe but also to cause a deterrent effect. It also bear in mind that accused is of 36 years of age and he is in judicial custody since 19.10.05.
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In view of the totality of the facts and circumstances brought on record, I sentence the accused to undergo RI for a period of 10 years u/s 376 IPC and to pay a fine of Rs.10,000/- in default payment of which to undergo RI for a period of six months. Further, the accused is sentenced to undergo RI for a period of 7 years u/s 506 Part II and also impose a fine of Rs.5,000/- in default to undergo further RI for a period of three months. Both the sentences shall run concurrently. The convict shall be given the benefit section 428 Cr.P.C.
The convict has been supplied copy of the judgment dated 02.05.2009 as well as the order on sentence passed today i.e 13.05.2009 free of costs. He has also been apprised that he shall be at liberty to file an Appeal against this judgment and sentence before the High Court of Delhi. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi. File be consigned to record room.