Delhi District Court
As 1998 (1) Jcc ( Delhi) 217 Samay Singh vs . State It Was Observed That on 27 May, 2009
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 9/1/2008
State
Versus
Brahamdev Pandit S/o Nageshwar Pandit,
R/o L-166, J.J. Colony, Wazirpur,
Delhi.
Case arising out of
FIR No. 940/2006
U/S: 363/376 IPC
P.S. Ashok Vihar
Date of FIR : 25.11.2006
Date of Institution : 9.2.2007
Date of Final Arguments : 21.5.2007
Judgment reserved on : 21.5.2007
Date of judgment : 25.5.2009
JUDGMENT
This is a case charge sheeted by the In Charge of Police Station Ashok Vihar in FIR No. 940/2006 against the accused Barhamdev Pandit S/o Nageshwar Pandit for the offence punishable u/s 363/376 IPC.
The allegation made as culled out from the prosecution case as follows:
Contd..........
/2/ Sh. Vipin Singh S/o Ram Dayal Singh made a complaint in P.S. Ashok Vihar that Sonu Kumari aged about 5 ½ years who is her daughter, was playing in the central park at J.J.Colony, Wazirpur, Delhi on 24.11.2006 at about about 2 pm but she did not turn up to her house till evening. He had made all efforts to search her here and there as well as all the kith and kin but there is no whereabout came to know of her. She has wearing a red coloured frock, white coloured underwear and blue coloured Chappal. Her height 3 ½ foot and of whitish complexion and has also suspicious that some unknown person kidnapped her. Complaint to this effect was recorded on 25.11.2006 vide DD No. 21A at P.S. Ashok Vihar. On the basis of said complaint Ex. PW2/A FIR No. 940/2006 u/s 363 IPC was registered initially.
On 29.11.2006 a message was send to Vipin Singh through Ct. Mohar Singh from the local police that his daughter is in Haryana. Thereafter he alongwith one known Jogeshwar belonging to his village and Ct. Mohar Singh went to the Haryana for search of his daughter in Maruti Car which took about three four hours . His daughter and the accused Brahamdev Pandit were found in the police station in Gharonda, Karna, Haryana. It was told that accused and his daughter got recovered from the tube well in Contd..........
/3/ field where some relative of the accused were working. One local Sardar of Haryana on having seen his daughter crying got suspicious and got apprehended the accused and his daughter and handed over to the local police. His daughter was rescued vide memo Ex. PW2/B and handed over the custody to her parent vide memo Ex. PW2/C. The accused was arrested vide memo Ex. PW2/E. His daughter Baby Sonu Kumari told the entire happening to her mother and she was also taken for her medical examination to Babu Jagjivan Hospital. The parent had also accompanied with her. Vipin Singh's daughter Sonu Kumar was also brought to the court for recording her statement before the Ld. Magistrate u/s 164 Cr.P.C. The result on MLC was obtained. The accused was also got medically examined and his MLC is also received by IO. After completion of investigation, challan was prepared . Same is forwarded by the Assitt. Commission of Police on 16.1.2007 for court verdict.
Ld. Magistrate after supplying prosecution documents to the accused and having satisfied that the offence brought out against the accused persons is triable exclusively by a court of Sessions u/s 209 IPC. The court of Sessions took cognizance of offence and made over the case to the Additional Sessions Judge of Delhi from there transferred to to his court for trial and disposal and hence this case.
Contd..........
/4/ When the accused was appeared before this court after giving an opportunity to be heard on both sides charge u/s 363/366A/376 IPC . A prima facie case has been made out against the accused to frame charge for offence u/s 363/366A/376 IPC. In view of order dated 22.2.2007 charge framed accordingly and accused denied the charges and claimed trial.
To unveil the prosecution version the prosecution cited 12 witnesses and out of them 11 witnesses are examined , who also proved the document during the course of examination of witnesses. After closer of the prosecution evidence statement of accused u/s 313 Cr.P.C recorded.
The accused was questioned u/s 313 Cr.P.C and he had denied the incriminating evidence brought out against him and deposed that he has been falsely implicated in this case. The accused h as also examined ASI Roshan Lal of P.S. Gharonda, Karnal, Haryana in his defence. Who proved the DD register of PP Munak of PS Gharonda and stated that as per record dated 28.11.2006 to 30.11.2006 there is no entry regarding arrival or otherwise any other entry of Delhi Police in the police post in connection with investigation of FIR No. 940/06 PS Ashok Vihar, Delhi.
In cross examination by Ld. APP DW1 admitted that as per DD entry No. 22 dated 29.11.2006 the information is received from Bittoo of village Gagsina who informed that a person namely Brahamdev having with Contd..........
/5/ him a girl of 6/7 years of age namely Sonu Kumari D/o Vipin Singh and was known to Brahmanand and was referring him as her uncle and he proved the copy of said entry vide Ex. DW1/A. In order to substantiate the allegation made against the accused PW2 Vipin Singh proved his complaint Ex. PW2/A and narrated in his examination the contents made in his complaint. In his cross examination by Defence Counsel that he has taken his daughter to his house for two hours before she was taken for medical examination because at that time she was scared. After his daughter was taken to his house she had narrated the incident to her mother. He did not himself seen any injury on his victim daughter. When her daughter taken to the house, the neighbourhood ladies had collected in the house . He did not if the ladies had seen the injuries on the points of the body of his daughter. His statement was also recorded by the police on recovery of his daughter. Accused was known to him prior to the date of incident as he has visited in his house but he did not know his address. It is denied that his daughter was recovered on 29.11.2006 and all the written work was done in PS or he is deposing falsely.
PW Ragini Devi W/o of complainant Vipin Singh is examined as PW3 who corroborated the statement of PW2 by testifying that Contd..........
/6/ on 24.11.2006 her daughter had gone to play outside the house in a park at about 2 pm and did not returned after she left the house for play. She made search of her daughter at her level best and when she did not found her made a call to her husband at his workplace at Shastri Nagar. Her husband came to the house and lodged a report in Police Station. Her daughter was recovered on 29.11.2006 from Panipat Haryana. When she met her daughter she told her that on the date of incident Brahmdev had taken her when she came outside for play in the park. She further told her mother about Brahmdev that he is a man visiting the other person in neighbourhood of the same place She further told her that Brahm Dev did wrong with her by taking her to the Sugar Can fields. Her daughter has complaint her of pain in the lower abdomen. She was not able to take the food and treatment of her daughter continued up till last month. After recovery her daughter was taken for medical examination to Babu Jagjivan Ram Hospital. When taken for medical examination she was wearing the same cloths and her undergarments were taken by the doctor.
In cross examination Ld. Defence counsel made suggestion with respect to the deposition and confronted her statement , but she denied each and every suggestion. PW3 also identified the undergarments of the prosecutrix received from FSL and same was exhibited PW1 collectively.
Contd..........
/7/ PW3 Sonu Kumari, the victim has also stated in her examination that one day when she was going outside the house to throw the garbage , Brahmdev accused present in the court came from behind. It was the evening time. Brahmdev took her in a rickshaw, in a tempo and in a bus. Brahmdev told her that he is taking her to a Mela ( Fair). He took her to Panipat. Brahmdev made her to sleep with him and did the "wrong thing"
with her. She further stated that accused has removed his Paijama. She felt abdomen pain. Police has rescued her.
In her cross examination she deposed that Brahmdev was not visiting to his house. Before the incident she has not played with Brahmdev at any time, nor he had taken her to any fair before this. Before this Brahmdev had never given her any toffee, chocolate or ice cream, nor he had taken her for that purpose anywhere. Today she had come alongwith her parents and other family members. Today he was being told by her mummy and papa what he had to tell the court. Her parents had told her to identify Brahmdev in the court. The all other suggestions were denied.
PW6 Satinder Singh is the person who informed to the police about the incident in question and police came to him in the night at about 9 pm along with parents of female child, he handed over the female child to the police vide memo PW2/B. Accused present in the court was handed over to Contd..........
/8/ police. In cross examination PW Satinder Singh stated that he had gone personally to inform the Haryana Police about the incident. No writing work was done by the police in his presence. He did not know accused prior to date of incident.
PW10 ASI Ishwar Singh is the Incharge Chowki, Nighu District Karnal, Haryana, who got recovered the victim Sonu Kumari and Brahmdev Pandit at the instance of PW6 and also convey the information to the Delhi Police.
PW8 Dr. Sadhna Gautam proved the MLC of victim Sonu Kumari vide Ex.PW8/A. In her opinion she noticed "redness over the vulval region and found that hymen torn with fresh tear. The hymen admits little finger tightly".
PW9 Dr. Seema also examined the prosecutrix on 30.11.2006 vide MLC Ex. PW9/A and referred her to Gyane Department. She has also examined the accused vide MLC Ex. PW9/B. The other PW1 ASI Virender being posted as Duty Officer on 25.11.2006 has proved the registration of FIR in the present case and proved copy of FIR vide Ex. PW1/ A as well his endorsement on rukka vide Ex. PW1/B. PW5 Ct. Surender Kumar took the pullanda from the MHC(M) of Contd..........
/9/ P.S. Ashok Vihar and deposited the same in FSL , Rohini, Delhi. PW7 HC Rajesh has deposed about depositing the pullanda of this case sealed with seal of BR Ram Hospital and the said pullands were sent through Ct. Surender vide RC No. 28/21/06 for depositing with the FSL. PW11 SI Mohar Singh is the IO of the case and deposed in his examination in chief the story as narrated in the preceding para of the judgment and about the preparation of documents during the course of investigation. PW11 has however deposed that on 25.11.2006 he was posted at PP J.J. Colony, Wazirpur, PS Ashok Vihar as ASI. On that day complainant Vipin Singh came to the Police Post and made the complaint about kidnapping of his daughter namely Soni Kumari . He had recorded statement of Vipin Singh Ex. PW2/A and prepared Tehrir Ex. PW11/A. He had got registered FIR at PS by producing the Tehrir to the DO. Wireless message about the kidnapping were given and local inquiries were also made.
PW11 SI Mohar Singh has further deposed that on 29.11.2006 he have received DD NO. 10 Ex. PW11/B informing that the said girl is present at PS Garoanda, Distt. Karnal. He alongwith complainant reached there. Where at police post of PS Garonda ASI Ishwar Singh met them, he had informed that girl is present at the village Gagsina with the owner of tube Contd..........
/10/ well namely Satinder. They had reached at the tube well of Satinder , there complainant Vipin had identified his daughter Soni Kumari. The girl was taken into custody vide memo Ex. PW2/B. They had returned back to Delhi and SHO was briefed and girl was handed over to her father vide memo Ex. PW2/C. Accused, was also present at the tube well of Satinder, was also taken into custody and was arrested vide arrest memo Ex. PW2/D and his personal search was effected vide memo Ex. PW2/E. Accused was sent to lock up.
PW11 SI Mohar Singh has further deposed that on 30.11.2006 prosecutrix and accused were got medically examined. The pullandas which were received from the hospital were taken into police possession vide memo Ex. PW11/C and deposited in the Malkhana. The accused was produced before the court. During investigation he had recorded statement of witnesses and made the efforts for the recording of statement of girl u/s 164 Cr.P.C. Exhibits were sent to FSL Rohini on receipt of priority letter. Challan was submitted in the court on receipt of FSL result same was submitted in the court. He tendered FSL result in the evidence. Same is Ex. PX and PX1 and correctly identified the accused.
Contd..........
/11/ In cross examination by Ld. Defence Counsel, PW11 has deposed that he had made the enquiries at the park from where the girl was stated to be kidnapped but no clue was found. They had gone by a private car to Garonda and fare of the car was paid by him. When they were going to tube well public persons was passing in the way. He did not notice other tube well near the said tube well. One person namely Jamindar met them at the said tube well of Satinder. Jamindar was the nephew of the accused and employee of Satinder. He had not recorded his statement. He had made arrival entry in the relevant register at chowki of PS Gharonda. He do not remember if he had not obtained and placed the copy of the document on record. Before the receipt of the information about the girl he was making efforts to trace the accused and girl. During inquiry it was found that the accused had directly taken the girl to Garonda. This fact was disclosed during the inquiry by the accused. He did not record the disclosure statement of accused. The arrest of the accused was put at the Police Post Wazirpur and memos were prepared at the same place. Signatures of all the persons were not obtained on the memos. PW11 has admitted that he was knowing about the happening with the girl when she was taken to Medical examination of the victim. He had told history of the girl to the concerned Contd..........
/12/ doctor. It is wrong to suggest that I had told the doctor that some unknown person had committed rape with the said girl. It is wrong to suggest that the girl was left at PS Garonda by some Sardar. It is wrong to suggest that the accused was not arrested from the above place but he was already detained by me on 25.11.2006 in Delhi. I had recorded statement of the girl on 29.11.2006. It is wrong to suggest that I am deposing falsely. It is wrong to suggest that she was not in position to speak on 29.11.2006. The statement of Ragni was recorded at the Police Post. It is wrong to suggest that the Ragni did not visit to the PP and she has not got recorded her statement at the PP. It is wrong to suggest that I did not fairly investigated the case and falsely implicated the accused in this case. Rest of the suggestion made by defence counsel has been denied by witness.
Having heard the rival contention of the Ld. Counsel and perused the authority cited and material placed on record.
Ld. APP for State, submitted that the prosecution has proved its case against the accused beyond reasonable doubt as the testimony of the complainant has been corroborated with the statement of prosecutrix and statement of PW3 Ragni Devi, i.e. the mother of the victim. The chain of Contd..........
/13/ evidence with respect to the kidnapping to the victim and taken away her from lawful guardianship as well as committed rape with her is being proved beyond reasonable doubt. The chain of evidence in all respect is completed. There is no flaw in the investigation from the initial date of the complainant till the conclusion of the investigation . No doubt there may be some delay in the investigation carried on by the IO but there is no defect as has been pointed out by Ld. Defence Counsel which hamper the case of the prosecution in any manner. The MLC of the prosecutrix proved that "hymen was found torn with fresh tear and the hymen admits little finger tightly" . The MLC of accused shows that " Testis & Penis well developed. Secondary sex characters well developed". The testimony of both the witnesses are also being corroborated with the medical evidence and FSL report. The FSL report showing that the human semen on exhibits. Therefore, it is prayed that accused is liable to be convicted for the charge levelled against him.
Ld. Defence Counsel has vehemently attacked on the reliability of the evidence of PW2 Vipin Singh, PW3 Ragni Devi and PW4 Sonu Kumari . According to Ld. Defence Counsel PW2 Vipin Singh is the complainant who made the complaint with respect to missing of his Contd..........
/14/ daughter on 24.11.2006 and made a report on 25.11.2006 as well as available with his daughter and the accused on 29.11.2006 at P.S. Gharonda, Haryana. PW3 Ragni Devi the mother of the prosecutrix has corroborated the statement of PW2 about the missing of her daughter and rest of the deposition is hearsay evidence which she stated that her daughter has told her that wrong act done by accused with her by taking her Sugarcane field is inadmissible in law. Ld. Counsel has relied on case titled as 1998 (1) JCC ( Delhi) 217 Samay Singh Vs. State it was observed that " Rape case on a minor girl of 6 years old- question of reliabiliyon her evidence- Child witness is prone to tutoring , hence the court should look to corroboration particularly when the evidence betrays traces of tutoring. Ld. Defence counsel further relied upon a case titled as 1994 CRI I. J. 56 Chhagan Dame V. The State of Gujarat and another judgment of The Stae of Karnataka Vs. Sureshbabu Puk Raj Porral 1993 Crime 600, wherein it was observed that " prosecution is bound to prove the ingredients of section 376 IPC. It cannot be done by using word " Galat Kam" " Bura Kam". It is to be noted that insulting a person by words, gestures or indecent behaviour is also " Galat Kam or Bura Kam" such Contd..........
/15/ terms did not make the prosecution to prove offence which is punishable u/s 376 IPC.
IT is further contended that PW8 Dr. Sadhna Gautam have also categorically stated that " injury on vulval region is possible by use of hand or due to fall on hard surface" The FSL report does not corroborate with the MLC in addition to that there are material contradiction among the deposition of PWs. In the medical history nowhere reported the name of the person who committed the rape. The IO, prosecutrix and complainant have categorically alleged that they did not know the name of the person who committed rape or being kidnapped. PW2 in cross examination stated that he had taken his daughter to his house for two hours before she was taken for medical examination and other neighbourers were also collected. There is every likelihood of tampering of the prosecution evidence. Further that the PW6 Satinder Singh has stated that he informed to the local police regarding the accused and child aged about 5-6 years at his Dera in the field at about 12 noon. The accused claims himself Uncle ( chacha ) of Jamidar of his labour. PW10 ASI Ishwar Singh has also stated that one Satinder S/o Raj Singh, Village Gagseena came to police post and informed about the accused and girl. However, PW11 SI Mohar Singh has made contrary Contd..........
/16/ statement that the accused present at Tube well of Satinder who was taken into custody and they reached at the Tube well of Satinder complainant Vipin Singh identified his daughter Sonu Kumari. It is further contended that the accused examined DW1 ASI Roshan Lal in his defence who proved that the accused was never gone in PS Gharonda, Distt. Karnal, Haryana. Further Ld. Counsel for accused has brought the attention of this court to the testimony of prosecution witnesses and the document prepared during the course of investigation. In the deposition of prosecution who has not uttered even a single word in respect of committing rape or intercourse by accused with her as regarding the medical evidence which can be against by so many reasons with this scope the accused is liable to be acquitted.
In view of the aforesaid submission and the evidence placed on record the PW Vipin Singh is the witness who made the complaint of missing of his daughter and got recovered from Haryana and accused was also being present and he also identified the accused and his daughter. PW3 Ragni Devi is the mother of the victim Sonu Kumari and has categorically stated in her statement that her daughter Sonu Kumari told her that the accused Brahamdev Pandit had committed wrong act with her after taking her to the Sugarcane field.
Contd..........
/17/ The Supreme Court in a case titled as Dinesh (2006) 3 SCC 771 has held that " corroboration of testimony of prosecutrix by medical evidence was not essential. The court held that where the prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement had remained unchallenged in the cross examination, the opinion of the doctor that no rape appeared have been committed being based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix, could not throw out an otherwise cogent and trustworthy evidence of the prosecutrix. The opinion of th doctor was held to be based on ' no reason'.
To establish the case against the accused for proving the charge of rape the prosecution must prove:
(i) That the accused had sexual intercourse with the woman in question;
(ii) That the act was done under circumstances falling under any of the five descriptions specified in section 375;
Contd..........
/18/
(ii) that such woman was not the wife of the accused;
or, if she was his wife, she was under fifteen years of age;
(iv) that there was penetration.
In case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case prosecution witnesses cannot be accepted merely because an accused person has not been able to say as to why they have come forward to depose against him. However get that suspicion against the accused and however strong the moral belief and conviction of the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. Where the accused admitted having subjected the prosecutrix to sexual intercourse and asserted that it was with her consent the burden shifted upon him to prove that he had the sexual act with the prosecutrix with her voluntary consent. If the accused failed to prove this his conviction would be legal.
Contd..........
/19/ Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen of even an attempt at penetration is quite sufficient for the purpose fo the 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 medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence o recent sexual activity. Whether the rape has occurred or not is a legal conclusion , not a medical one.
In the present case there was redness over the vulval region and found that hymen torn with fresh tear. The hymen admits little finger tightly. In a case titled as State Vs. Raghuvir Singh (1993) 2 SCC 622 it was observed that " The victim was a girl of about seven years of age. She was waring a frock and having shawl with her. The accused was of sixteen Contd..........
/20/ years. According to the prosecutrix, she was made to lie down and accused committed rape on her. On medical examination, the respondent was found to be potent and capable of sexual intercourse. It was argued on behalf of the accused that absence of injuries on the penis of the accused should be treated as fatal to the case of the prosecution. Reliance was also placed on Rahim Beg. Negativing the contention and distinguishing Rahim Beg, the court observed " Interferences have to be drawn in every case from the given set of facts and circumstances. There is no inflexible axiom of law which lays down that the absence of injuries on the male organ of the accused would always be fatal to the prosecution case and could discredit the evidence of the prosecutrix, otherwise found to be reliable. The presence of injuries on the male organ may lend support to the prosecution case, but their absence is not always fatal. Rahim Beg case was based on its peculiar facts and the observations made therein were in a totally different context and cannot advance the case of the respondent. The observations in Rahim Beg case cannot be mechanically pressed into aid in every case regardless of the specific circumstance of the crime and absence of the fact situation as existing in that case."
Contd..........
/21/ In the present case the underwear of the prosecutrix and the accused alongwith the blood sample , semen of the assailant was taken by doctor who prepared the MLC and same was sent to the FSL for chemical examination. The FSL report reveals that semen stains on the underwear are found to be of human one. There is no suggestion of the defence counsel that the underwear was changed or semen of human being how came on the underwear of the prosecutrix , if not sexual assault was done. The prosecutrix in her deposition has stated that wrong act was done with her by accused . Her statement has been corroborated by her mother. In case titled as Madan Lal AIR 1998 SC 386 , it has been observed that chemical examination report found to be detective of human semen. The MLC proved the hymen torn of the prosecutrix and the other evidence has also been corroborated to the deposition of the prosecutrix and her mother. Even if does not establish that the human spermatozoa was that of the accused. The statement of the mother of the prosecutrix to the effect that the prosecutrix narrated the entire episode immediately when she arrived at home can also be held to be a corroborative piece of evidence.
In case of family animosity revealed from the circumstances of the case, it would not be ruled out that false report was lodged against the accused by the prosecutrix. The deposition of the prosecutrix was held Contd..........
/22/ reliable and worthy of relevance which corroborated through the testimony of her mother. Therefore, any advice can not be drawn against the accused of his implication falsely in the present case. In the aforesaid case during the cross examination of witnesses have also suggested that prosecutrix was raped but she was not raped by accused but someone else. Thus it is legal as well as moral duty of the accused to prove that the prosecutrix was in his custody from 24.11.2006 to 29.11.2006 who else the person has committed the rape except the present accused. The present accused was apprehended from the field alongwith victim by the Sardarji.
In order to appreciate the evidence, the Court is required to bear in mind the set up and environment in which the crime is committed. The level of understanding of the witnesses. The over jealousness of some of near relations to ensure that everyone even remotely connected with the crime be also convicted. Everyone's different way of narration of same facts.
In the evidence and facts as alleged by prosecution to my mind from the testimony of PWs. Vipin Singh, Ragni Devi and Sonu Kumar abduction of the victim from the lawful guardianship by the accused is being proved by the prosecution beyond all reasonable doubt. The accused enticed the minor girl Sonu Kumari from her parent (PW2 Vipin Singh and PW3 Contd..........
/23/ Ragni Devi) for the purpose of fulfill the ingredients of section 363 IPC. Since the accused has taken away the minor girl Sonu Kumari from her parental house to Haryana. As regard to provision u/s 376 IPC, which defined that to enticed the girl under the age of 18 years from a place to other to do an act, the accused did with such intend that such girl may be or knowing that it is likely that she will force or seduced to illicit intercourse with another person. The prosecutrix stated that Brahamdev made her to sleep with him and did wrong thing with her. She also narrated the wrong act to her mother. To understand the age, family animosity, illiteracy and level of understanding of the victim which is also being corroborated with the medical evidence as well as the FSL report. The ingredients of the charge u/s 376 IPC is proved beyond reasonable doubt. The factum of intention of having sexual intercourse with the victim forcibly or without her consent after seducing cannot be ruled out. The investigation as carried out by the IO is itself is enough to complete the chain of evidence and the case of the prosecution for the charges to the extent of 363/376 IPC levelled against the accused corroborated with the deposition of the prosecutrix and her parent. The identity of the accused is not being disputed and the accused has been Contd..........
/24/ categorically identified by the victim as well as by her parents. The accused was apprehended by the public persons from the field and produced before the concerned PS where the prosecutrix was also in the custody of the accused. The accused has not given any explanation either during the course of investigation or in his statement u/s 313 Cr.P.C with respect to the kidnapping and sexual assault with the victim Sonu Kumar aged about 5 -6 years old.
Modi in his well known work "Medical Jurisprudence and Toxicology" states that "to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury tot he genitals or leaving any seminal stains. In such a case medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition.
Contd..........
/25/ Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, nor a medical one.
The above observations are quoted with approval by the Supreme Court in Madan Gupal Kakkad Vs Naval Dubey 1992 AIR SCW 1480. The court also relied upon Parikh's Textbook of Medical Jurisprudence and Toxicology, wherein it is observed: "Sexual intercourse - in law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
The Supreme Court has held that absence of injuries on the private parts of the prosecutrix would not rule out her being subjected to rape.
Absence of semen or spermatozoa in vaginal swab collected from dead body of the deceased girl was held as not disproving sexual molestation Contd..........
/26/ of the victim when the post mortem report indicated bruises of tissues on right side of vagina, reddish blue in colour and bruising over the anterior lip of the cervix. This feature was held consistent with the victim offering resistance against forcible intercourse.
One of the argument of Ld. Defence counsel that there is no injuries on the penis of the accused or the vaginal part of the prosecutrix one finger admitted forcibly. In such circumstances there is no case of the rape and version of the prosecution cannot be believed. I am not convinced with the contention , since the MLC of the prosecutrix showing the redness over the vulval region , hymen torn with the fresh tear. The FSL result also found semen in the undergarments. Apart from it the oral testimony of victim and her parents are recorded to this effect I rely upon a case titled State Vs Suresh Nivrutti Bhusare 1997 Cri LJ 2003 (Bom), wherein it was held that in absence of such injury, it cannot be concluded that the incident had not taken place or that the sexual intercourse was committed with the consent of the prosecutrix. It always depends upon the facts and circumstances of the case.
Modi states that "injuries to the genital parts may result from force exerted by the accused or from forces applied by the victim. In addition to scratches or lacerations on the penis caused by the finger nails of Contd..........
/27/ the victim during a struggle, an abrasion, or a laceration may be discovered on the prepuce or glans penis, but more often on the fraenum, due to the forcible introduction of the organ into the narrow vagina of a virgin, especially of a child, but it is not necessary that there should always be marks of injuries on the penis in such cases.
In case titled Bharwada Bhiginbhai Hirjibhai AIR 1983 SC 753, the Supreme Court observed 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 of suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. Corroboration may be considered essential to establish a sexual offence in the back drop 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."
The Supreme Court held that, corroboration of testimony of prosecutrix by medical evidence was not essential. The court held that where Contd..........
/28/ the prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement had remained unchallenged in the cross examination, the opinion of the doctor that no rape appeared to have been committed being based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix, could not throw out an otherwise cogent and trustworthy evidence of the prosecutrix. The opinion of the doctor was held to be based on 'no reasons'.
In the present case, chemical and microscopical tests revealed the presence of semen/hymen spermatozoa on the underwear of the prosecutrix, this was held to be a strong corroborative piece of evidence to the prosecutrix version even if it has not been established that the human spermatozoa was that of the accused. The statement of the mother of the prosecutrix to the effect that the prosecutrix narrated the entire episode immediately when she arrived at home can also be held to be a corroborative piece of evidence In view of the aforesaid fact, circumstances of the case and the evidence led by prosecution, I am of the view the from the testimony of the victim Sonu Kumari is being corroborated with the deposition of PW2 Vipin Singh and testimony of PW3 Ragni Devi are also inspired confidence. The Contd..........
/29/ whole testimony of these PWs is also being corroborated by documentary evidence as appeared during the court of evidence as well as the MLC of the prosecutrix and the FSL report. There is no contrary evidence either by any means of documentary evidence or oral evidence which rebut the prosecution story in any manner. The defence of the accused that he has been falsely implicated in this case is baseless defence which has no legs to stand. There is no motive to implicate the accused in this case falsely. It is well settled law that since the prosecutrix herself stated in her that the accused has committed wrong act with her that statement if an unimpeachable veracity and inspired confidence. The absence of motive of the alleged offence is immaterial with the plea of accused that he has been falsely implicated int his case is not plausible in the eyes of law and based on surmises and conjecture. The ingredients of the section 366A IPC is not attracted within the facts and circumstances as well as the deposition of the witnesses. So far as the evidence led by the prosecution which shows that there is no other person except the accused who kidnapped and sexual assault to the victim Sonu Kumari aged 5 ½ years.
Contd..........
/30/ With the aforesaid discussion, I came to the definite conclusion that the prosecution is succeeded in proving its case against the accused Brahamdev Pandit beyond reasonable doubt for the charges levelled to the extent of u/s 363/376 IPC against him. Therefore, the accused Brahamdev Pandit S/o Nageshwar Pandit is hereby convicted for offence punishable u/s 363/376 IPC.
ANNOUNCED IN THE OPEN COURT TODAY ON 25.5.2009 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI IN THE COURT OF SH. SATINDER KUMAR GAUTAM, ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 9/1/2008 State Versus Brahamdev Pandit S/o Nageshwar Pandit, R/o L-166, J.J. Colony, Wazirpur, Delhi.
Case arising out of FIR No. 940/2006 U/S: 363/376 IPC P.S. Ashok Vihar ORDER ON SENTENCE:
Present: Sh. Jaffar Khan, Additional Public Prosecutor for State.
Accused/Convicted Brahamdev Pandir produced from J/C. Sh. Dinesh Sharma, Counsel for accused/convicted. The accused/convicted has been convicted for offence punishable u/s 363/376 IPC vide separate detailed judgment dated 25.5.2009.
Ld. APP for state submitted that prosecution has proved its case against the accused beyond all reasonable doubts. The accused Brahamdev Pandit kidnapped the prosecutrix Sonu Kumari aged about 5 ½ years from the lawful guardianship of her parents to Haryana and committed rape upon her. It is further contended that the accused taken the prosecutrix with the pretext for visiting a Mela ( fair) . The prosecutrix Sonu Kumari being Contd..........
/2/ minor one could not understand the malafide intention of the accused/convicted who kidnapped her and committed rape upon her. Therefore, there should not be any leniency even if he is a young man and having clean antecedents.
Ld. Counsel for the accused submitted that the convicted and the parents of the prosecutrix are living in the same vicinity they are belonging to socially and economically poor background. The convicted is doing labour work. He has minor family. The convicted is only bread earner of his family and minor kids of his family members solely depend upon him. There is no other male member in the family to look after them. The convicted is also remained in J/C for more than 2 years. IN the present case mitigated circumstance which has been developed one after the others when the convicted have left and gone to his relative at Karnal. The sentence prescribed in the penal law is to the extent of life. However, the Apex Court in the catina of judgment awarded the sentence to the period which the convicted has already undergone in case 1981 Cri. L. J. 1131 (1135) wherein it was observed that " accused aged 16 convicted of rape of 5 years old girl-- sentence reduced from five years to 2 years and directed to be kept in reformatory school..."
Contd..........
/3/ In view of the submission made by Ld. APP for state and defence counsel and the material placed on record, the charges proved against the accused for the offence u/s 363/376 IPC.
The maximum punishment for the offence u/s 363 IPC is imprisonment of either description for a term which may extend to seven year and shall also be liable to fine . The punishment for offence u/s 376 IPC is imprisonment of either description for a term which shall not be less than 7 years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.
Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. 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 sensitised Judge is a better statutory armor in cases of crime against Contd..........
/4/ women than long clauses of penal provisions, containing complex exceptions and provisions. In a case of rape on a minor girl under twelve years of age, the law prescribes minimum sentence of rigorous imprisonment for a term not less than ten years, unless exceptional circumstances existed.
The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, cast or creed of the accused or the victim are irrelevant considerations in sentencing policy. The courts must hear the loud cry for justice by society in cases of the heinous crime of rape on innocent helpless girls of tender years and respond by impositions of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court.
The liberal attitude by imposing meager sentences or taking too sympathetic a view merely on account of lapse of time or considerations personal to the accused only in respect of such offences will be result wise 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 sentencing system. It is the nature and gravity of the crime but not the Contd..........
/5/ 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. Such types of offences are to be dealt with severity and with iron hands. Showing leniency in such matters would be really a case of misplaced sympathy.
The prosecution proved the guilt of the accused by tendering the sufficient evidence including the deposition of the prosecutrix and her parents. The prosecutrix is also minor girl of 5 ½ years of age i.e. below the age of 12 years.
(It has been very aptly indicated in Dennis Councle MCG Dautha Vs State of Callifornia (402 US 183: 28 L.D. 2d 711) that no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
Contd..........
/6/ In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs State of Madhya Pradesh, it has been held that, "in operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence. Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. .......... In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner.
The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be decisive reflection of social consciousness of society". Therefore, Contd..........
/7/ in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
In Sevaka Perumal etc. Vs State of Tamil Nadu (1991 (3) SCC 471 "It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. 2008 X AD SC 648, in this case, the accused's lustful acts have indelible scar not only physically but also emotionally on the victim. No sympathy or leniency is called for.
In view of the discussion and the circumstances and to consider the antecedents, conduct, behaviour and custodial period of the convicted Brahamdev Pandi, the convicted Brahamdev Pandit S/o Nageshwar Pandit be awarded the sentence of imprisonment for a period of One Year RI and fine Rs. 1000/- , in default of fine the accused shall undergo SI for 30 days for offence punishable u/s 363 IPC. Further the accused Brachmdev Pandit is also sentenced for 10 Years RI and fine of Rs. 5000/- in default of paypment fo fine the accused shall under go SI for 6 months for the offence punishable u/s 376 IPC. All the sentence awarded for the offence u/s 363/376 will run concurrently. The benefit of section 428 Cr.P.C. be Contd..........
/8/ awarded. The fine amount awarded in the case will be given to the victim as compensation. The period already undergone be set off from the sentence awarded to the convicted Brahamdev Pandit S/o Nageshwar Pandit .
Copy of this order be given to the convicted free of cost forthwith.
ANNOUNCED IN THE OPEN COURT TODAY ON 27.5.2009 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI