Delhi District Court
State vs Ramesh Patel @ Rahul on 11 January, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.10/10
FIR No.950/06
U/s 376/506 IPC
PS Sangam Vihar
State
Vs.
Ramesh Patel @ Rahul
Mangleshwar Patel
H.No. 1151, 12 Block Gali no. 21
Sangam Vihar
New Delhi
.......... Accused
Challan filed on : 25.09.07
Received by Fast Track Court on:31.08.10
Reserved for Order on : 03.01.2011
Judgment delivered on : 06.01.2011
JUDGMENT
Briefly stated the facts of the prosecution case are that on 27.9.06 prosecutrix Shashibala alongwith her mother and father visited police post H Block Sangam Vihar and gave a verbal report that she was State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 1 of 26 being sexually abused by accused Ramesh Patel @ Rahul. Ms. Aparna from NGO Pryaas was called by SI Vishwajeet and then prosecutrix was taken for medical examination by ASI Nirmala and Aparna where her MLC was prepared which is Ex.PW1/A and she was reported pregnant. IO recorded the statement of prosecutrix which is Ex.PW3/A in which she has alleged that Ramesh Patel used to come to her house for charging mobile and she know him being neighbourer. During March 2006 Rahul came to her house when none else was present. Ramesh told her that he wants to establish physical relations with her but she refused. Then Ramesh threatened her uttering that if she did not do so, he will get her brother killed. Next day Ramesh again came to her house and threatened her and forcibly established physical relations with her. Thereafter whenever Ramesh finds her alone at home, he used to come and used to establish physical relations and every time he used to extend threatening not to open her mouth. He established relations with her for 1214 times and lastly he has established relations during the month of May/June. Thereafter some problems were developed and she consulted the doctor on 23.9.06 where she came to know that she is pregnant. She came back to her house and told the entire incident to her family members. On this statement Investigating Officer made his endorsement Ex.PW8/A on the basis of which the present case was registered vide FIR no.950/06 u/s 376/506 IPC. The investigation was done and accused was arrested. After completing the investigation accused Ramesh Patel was challaned to the State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 2 of 26 court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 27.08.08 and thereafter by the fast track court on 31.08.2010.
3. The charge against accused Ramesh Patel @ Rahul was framed u/s 376/506 IPC on 08.10.2008 by Sh.V.K.Bansal, Ld. ASJ to which the accused pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 13 witnesses.
5. The evidence against the accused was put to him in his statement recorded u/s 313 Cr.P.C in which he has pleaded his innocence and deposed that he has been falsely implicated in this case. The accused has led defence evidence and examined DW1 Mangleshwar Patel. Thereafter the case was fixed for final arguments.
6. I have heard the Ld. APP for the State as well as Ld. counsel for the accused and perused the testimonies of all the PWS and DW and exhibited documents carefully.
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7. In view of the arguments advanced by the Ld.APP and ld.counsel on behalf of the accused I have also perused the testimonies of all the PWS.
8. PW1 Dr.Basil has deposed that Dr.Pushraj has prepared the MLC of prosecutrix which is Ex.PW1/A.
9. PW2 Dr.BK Mohapatra has deposed that he conducted the DNA Sequencing for five samples in the present case and after examination he prepared his report which is Ex.PW2/A.
10. PW3 Shashi Bala is the prosecutrix and complainant in this case and she has stated that police recorded her statement which is Ex.PW3/A.
11. PW4 W/ASI Nirmala has deposed that on 27.9.06 NGO volunteer Aparna after enquiry handed over report to IO. She took the prosecutrix to AIIMS and it was revealed that she is in the family way.IO recorded the statement of prosecutrix, prepared the rukka and got the case registered through Ct. Vijendra. She has further deposed that prosecutrix pointed out a room in House No. 1150/26 I 2 Block Gupta colony Sangam Vihar, Delhi where accused Ramesh had committed rape upon her against her consent on the point of knife and IO prepared the site plan. State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 4 of 26 Accused was arrested at the instance of prosecutrix from 1151/26 I2 Gupta Colony Sangam vihar and he also pointed out the place of incident. Statement of prosecutrix u/s 164 Cr.PC was recorded.
12. PW5 Ram Kishan is the father of the prosecutrix and he has stated that Shashi Bala was born on 24.11.90.
13. PW6 Dr. Sushil Sharma has appeared for Dr. Bharat Verma who has examined accused Ramesh Patel and prepared his MLC Ex.PW6/A.
14. PW7 Insp.Sushil Kumar has deposed that he perused the file and filed the challan.
15. PW8 Insp.Vishwajit has deposed that on 27.9.06 Shashibala and her mother and father came to PP and gave report that she was being sexually abused by Ramesh. He called Ms. Aparna from NGO and after counselling, prosecutrix was sent for medical examination to AIIMS where her MLC Ex.PW1/A was prepared and it was reported that she is pregnant. He recorded the statement Ex.PW3/A prepared rukka Ex.PW8/A and got the case registered. He prepared the site plan Ex.PW8/B. He arrested the accused vide memo Ex.PW3/C and conducted his personal search vide memo Ex.PW3/D. Accused was interrogated and State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 5 of 26 he made disclosure statement which is Ex.PW3/F. He pointed out the place where he had committed rape vide memo Ex.PW3/E. He got the accused medically examined vide MLC Ex.PW6/A and after examination doctor handed over two plastic small bottle which were seized vide memo Ex.PW8/C. He got recorded the statement u/s 164 Cr.PC. He deposited the case property in malkhana. He has further stated that after abortion the foetus of the girl was got preserved at AIIMS Hospital and after taking the sample DNA test was conducted to ascertain the biological mother and father of the foetus. The approval for DNA is Ex.PW8/A.
16. PW9 HC Hari Singh is the FIR recorder and he has deposed that he recorded the FIR u/s 376/506 IPC copy of which is Ex.Pw9/A.
17. PW10 Ms. Ravinder Bedi has deposed that she had recorded the statement of the prosecutrix u/s 164 Cr.PC which is Ex.PW10/A.
18. PW11 Kamleshwar Prasad has appeared from MC Primary girls School, Devli and he has stated that as per school admission record the date of birth of Shashi Bala is 24.11.90. He produced the copy of admission form Ex.PW11/A, printed affidavit Ex.PW11/B, school leaving certificate Ex.PW11/C and admission register Ex.PW11/D.
19. PW12 Ct.Vijender Singh has deposed that he got the case State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 6 of 26 registered and thereafter he handed over the copy of FIR to IO. He further stated that accused was arrested at the instance of mother of complainant vide memo Ex.PW3/C and his personal search was conducted vide memo Ex.Pw3/D. He was interrogated and his disclosure statement was recorded which is Ex.PW4/F. He has further stated that accused pointed out the place of committing rape vide memo Ex.PW3/E and that he was medically examined in the hospital where SI Vishwajeet seized two sealed parcel which were taken into possession vide memo ex.PW8/C.
20. PW13 Dr. Anupama Raina has appeared from AIIMS, Deptt of Forensic Medicine and she has stated that after examination of exhibits she prepared the report which is Ex.PW13/A.
21. I have also considered the defence evidence adduced on behalf of the accused. DW1 Mangleshwar Patel has deposed that Ram Kishan made a complaint in the PS against his son accused Ramesh Patel that he has committed rape upon his daughter and also told this fact to him. His son is TV mechanic and also doing part time job as waiter in marriages etc. His wife has not made any complaint against his son at any time. Shashi Bala used to visit his house. Shaashi Bala seems to be 18 years old.
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22. Analyzing the testimonies of witnesses, it is revealed that PW3 Shashi Bala is the complainant and prosecutrix and PW5 Ram Kishan is her father and they are the main star witnesses of the prosecution. Considering the evidence available on file, the most important evidence to be looked into is the age of the prosecutrix at the time of her alleged rape because her age plays a decisive role in relation to the charge framed in this case u/s 376 IPC. Sec.376 contemplates: Rape - A man is said to commit rape who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First - Against her will.
Secondly - Without her consent Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 8 of 26 substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under sixteen years of age.
23. In rape cases, the court must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim's version. The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. According to section 376 IPC there should be material to establish that either the alleged marriage or intercourse has taken place without the consent of the girl, if she is above the age of 18 years or 16 years as the case may be. Section 376 IPC has now two sub sections, namely sub section (1) and sub section (2) and for the offence of rape committed by the accused as specified in sub section (1) is different from that provided under sub section (2) of section 376 IPC. Therefore, there is an essential difference between the offences under sub section (1) and those under sub section (1) of section 376 IPC. In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence.
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24. So, in view of the definition of section 376 IPC, I have given my thoughtful consideration on the testimony of PWS. In this case the age of the prosecutrix is of material importance. The prosecution has adduced PW5 Ram Kishan and PW11 Kamleshwar Prasad to prove the age of the prosecutrix in this case. PW11 Kamleshwar Prasad is the witness from MC Primary girls School no.1, Devli, New Delhi and he has stated that as per the school record, at the time of admission, the parents of Shashi Bala deposited printed form in the shape of affidavit regarding the date of birth of Shashi Bala as 24.11.1990 and this affidavit was filed by Sh. Ram Kishan. The copy of admission form is Ex.PW11/A, printed affidavit is Ex.PW11/B, school leaving certificate is Ex.PW11/C. I have also perused the said exhibited documents. In the said documents the date of birth of prosecution is stated to be 24.11.1990. I have also perused the cross examination wherein he has stated that at the time of admission of the child in the primary classes in Govt. school, there is no hard and fast rules to deposit the birth certificate of the child issued by the MCD Deptt. The printed form of an affidavit is not required to be attested by the magistrate. PW5 Ram Kishan is the father of prosecutrix and he has stated that victim Shashibala was born on 24.11.1990 and she studied in Govt. school. He produced the school leaving certificate of Shashi Bala. He has got Shashi Bala admitted in school and he had given her correct date of birth supported by his affidavit which was entered and recorded in the school admission register. In cross examination he has stated that he had State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 10 of 26 joined service of Delhi Home guard in 1989. He is working in Delhi Home Guards for 11 years. He is resident of Bulandshahar UP. Shashi Bala was born in his native village Jollygarh, District Bulandshahar. Her birth had not been got registered in the village or with any other authority. She had studied upto 9th class. No question has been put to PW5 Ram Kishan by the Ld. Defence counsel as to when he was got married and after how many years his first child was born and what was his age when he was married. Even no question has been put by the Ld. Defence counsel to PW5 that he got registered wrong age of his daughter Shashi Bala in school record. PW3 Shashi Bala who is prosecutrix has stated her age as 19 years as on 12.11.09 at the time of recording of her statement in the court. Even she has stated her date of birth as 24.11.1990. The date of incident is March 2006. As per the evidence and documents available on file the date of birth of the prosecutrix is 24.11.1990 and considering the present case incident i.e. March 2006, it is crystal clear that at the time of rape the prosecutrix was aged about 15 years and four months. The MLC also shows that age of prosecutrix as 15 years. Ossification test of the prosecutrix has not be conducted in this case. So, the age mentioned in the school record is taken as correct date of birth. In view of this, it can be safely held that at the time of rape the prosecutrix was minor.
25. Reverting back to the deposition of Pw3 Shashi Bala regarding the allegations in the present case, she has stated that around Holi festival State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 11 of 26 in the year 2006, accused came to charge the mobile in her house. She was alone. Accused said to her that he love her and wanted to have physical relations with her. She refused and declined but accused then exhibited a knife to her and threatened her that he will kill her brother. That day accused went away without any further harm to her. Next day accused came again in her house to charge his mobile and she was alone in her house. Accused again showed her a knife and on that threat of knife he had a sexual intercourse with her against her consent and wish by force. He had threatened her that if she did not offer herself for sexual relationship with him, he will kill her brother. Thereafter accused continued committing rape on her by indulging in sexual intercourse with her against her consent and wish and he committed act for 12 to 14 occasions, may be on an interval of day or two in between two occasions. Every time accused had threatened her that he will kill her brother if she resisted or disclosed the incident to anybody and for that reason she did not disclose to anyone. On the occasion of last sexual intercourse committed by the accused with her with was somewhere in the month of May or June 2006 then she had become some little disturbed in her health and started vomiting. On 23.9.06 she went to doctor and it was revealed that she was pregnant. Thereafter she disclosed the entire incident to her mother. Her mother took her to Police Post and got recorded her statement which is Ex.PW3/A on 27.9.06. Her statement was also recorded by a Female Judge which is Ex.PW3/B. foetus in this case was State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 12 of 26 conceived by her from accused Ramesh Patel. Accused was arrested by the police on 27.9.06 vide memo Ex.PW3/C and his personal search was conducted vide memo Ex.Pw3/D. Pointing out and disclosure statement of accused are Ex.PW3/E and F. I have also considered the cross examination of PW3. She has stated that she is settled peacefully in her marital life and present she does not have any complaint. It is correct that she does not to continue with the present case. She denied that incident in this case was merely a mishap. She admitted that accused Ramesh Patel was residing adjoining her house. While coming to their house for charging mobile accused appearance in their house even used to be on occasion when her parents were also present in the house. By putting this question it has come in evidence that accused used to visit the house of prosecutrix even in the presence of her parents for charging his mobile. The knife which accused had used in the incident against her was a big size around one foot long. The knife which accused had used in this incident was a pointed on the end on its blade. By putting these questions it has been admitted by the defence that accused had used knife which was pointed at the end and one foot long. Further PW3 has stated in cross examination that at the time of incident her mother used to go to Anganwadi for her job work and younger sister also accompany her. Her brother used to go to school. She made improvement regarding possession of knife by the accused. Accused Ramesh Patel was arrested in her presence. She had shown the place of occurrence to the police. The State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 13 of 26 first incident had taken place in the inner side room of their house and that was on the ground floor. The act of sexual intercourse committed by accused with her on the first occasion in this case was in the ground floor room and not on the first floor room (vol. However on one or two occasions that act was committed by the accused in the first floor room also). Further she has stated that on the occasion of first incident of sexual intercourse taken up by the accused with her, she had not raised any hue and cry or protest as accused had given her a threat to kill her brother. On the occasion of first sexual intercourse she was wearing suit i.e. shirt and salwar. By putting these questions it has been admitted by the defence that accused had committed sexual intercourse with prosecutrix Shashi Bala. PW3 has denied the suggestion put by the Ld. Defence counsel that sexual intercourse had taken place entirely with her consent and will. She denied the suggestion that she had deposed in this case becuase of the pressure and coercion of her parents in order to save the honour and prestige of the family.
26. In view of the testimony of PW3 she has made specific allegations against accused Ramesh Patel that he had committed sexual intercourse with her against her consent and wish by force and that he had threatened her that if she did not offer herself for sexual intercourse, he will kill her brother and every time accused had threatened her and uttered not to disclose the incident to anyone. PW10 Ravinder Bedi State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 14 of 26 Ld.MM has recorded the statement of Prosecutrix U/s 164 Cr.PC which is Ex.PW10/A. I have also perused the said statement. In the said statement prosecutrix has made the same allegation against the accused as made by her in her statement recorded before the court. Testimony of PW10 could not be shattered. So, statement Ex.PW10/A recorded u/s 164 Cr.PC are duly proved. On perusal of cross examination of PW3, it has been admitted in cross examination that accused used to visit the house of prosecutrix. Though the possession of knife by the accused had come under improvement since not stated by the prosecutrix in her statement, but considering the cross examination it has admitted by asking the size of knife by the Ld. Defence counsel that accused had knife with him at the time of incident and it seems that he threatened her with said knife. Ld. Defence counsel has also brought on record by way of cross examination that accused had committed sexual intercourse with prosecutrix PW3 Shashibala. Consent and willingness to have sexual intercourse has to be considered only if the prosecutrix is major. But in the present case in hand the prosecutrix is minor. On the other hand from cross examination conducted on behalf of the accused, it cannot be inferred that prosecutrix was consenting party in sexual intercourse. Considering the above allegations made by the prosecution I have also considered the medical evidence. PW1 Dr. Basil has appeared for Dr. Pushpraj who prepared the MLC Ex.PW1/A of prosecutrix. I have also perused the said MLC. It is mentioned on the MLC 'History of alleged State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 15 of 26 rape by Mr. Ramesh, neighbourer, was raped 1012 times from March to May/June, alleged threatening to kill younger brother of victim, Now patient is pregnant 3 months'. Hymen was found ruptured. PW1 has not been cross examined by the Ld. Defence counsel. So, MLC Ex.PW1/A stand proved and it is crystal clear that hymen of victim Shashi Bala was found ruptured and she was found carrying 3 months conception. The Name of accused is mentioned on the MLC. Even the alleged threatening has also been mentioned. So, MLC Ex.PW1/A corroborate the version of PW3 prosecutrix. PW6 Dr. Sushil Sharma has examined the accused and prepared his MLC Ex.PW6/A. As per the said MLC, the accused was found to be capable to perform sexual intercourse.
27. To connect the accused with the present case incident, the prosecution has examined PW2 Dr. BK Mohpatra, Sr. Scientific Officer CFSL and PW13 Dr. Anupama Raina, Scientist, FSL, AIIMS. Their reports are Ex.PW2/A and Ex.PW13/A. I have also perused the same. DNA testing of foetus was conducted by PW13 and DNA profiling report was submitted by PW2 Dr.BK Mohapatra. Aborted foetus is Ex. 199, fresh blood sample of Ramesh is Ex.200 and fresh blood sample of Shashi are Ex.201. The result of examination is concluded as under:
1. DNA extracted from the Ex.199 (aborted foetus), Ex.200 (fresh blood sample of Ramesh), Ex.201 (fresh blood sample of Shashi) and has amplified at all loci.
2. DNA profile obtained from Ex.199 (aborted foetus), shares the maternal State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 16 of 26 alleles with DNA profile obtained from Ex.201 (fresh blood sample of Ms. Shashi Bala).
3. Also, on comparison of DNA profile obtained from the Ex.199 (aborted foetus) shares the paternal allelle with DNA profile obtained from the exhibit 200 (fresh blood sample of Ramesh Patel @ Rahul).
28. Based on the above observations it was concluded that Ex.199 (aborted foetus) is the biological offspring of the Ex.200 (fresh blood sample of Mr. Ramesh Patel @ Rahul and Ex.201 (fresh blood sample of Ms. Shashi Bala) as per the Mendelian Law of Inheritance. So, as per the above DNA test conducted by PW13 Dr. Anupuma Raina, it is emphatically clear that the foetus which was aborted from the womb of Pw3 Shashi Bala had matched the blood sample of accused Ramesh Patel @ Rahul. This further strengthened the case of the prosecution and connected the accused with the present case.
29. I have also considered the testimony of official witnesses. PW9 HC Hari Singh has stated that he recorded the FIR of this case. The copy of FIR is Ex.PW9/A. PW9 Insp.Vishwajeet has stated that he recorded the statement of the prosecutrix and got the case registered through Ct. Vijender. PW12 Ct. Vijender has stated that he got the case registered on the rukka given to him by Insp.Vishwajeet. Ld. Counsel states that present case incident took place in March 2006 and case has been registered in Sept 2006. So, I have considered the testimony of PW3 State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 17 of 26 Shashi Bala who stated that accused had threatened her that he will kill her brother and she did not disclose the entire incident to anyone. However, it came to limelight only when she conceived. Thereafter immediately the case was registered. No doubt the incident took place much prior to the date of registration of the FIR. But the incident came in the knowledge only on the date of registration of the FIR. Also in the Social Indian Setup it is generally seen that the complaints about the Sexual Offences are not made due to fear of social stigma. It seems that before 27.9.06, parents of the prosecutrix were not aware about the rape being committed on PW3 on the threatening extended by the accused. It is held in Harpal Singh Vs. State of Himachal Pradesh, AIR 1981 SC 361 that : 'Where the prosecutrix explained the delay of 10 days in lodging the FIR by stating that as honour of the family was involved, its members had to decide whether to take the matter to the court or not, it was held that it is not uncommon that such considerations delay action on the part of the near relations of a young girl who is raped.'
30. In my opinion the plea of the defence counsel has no force that case was registered much later after the date of incident because it came to the knowledge of the present only on 27.9.06 and thereafter the FIR was lodged. So, it will not affect the case of the prosecution in any way.
31. PW7 Insp.Sushil Kumar is the formal witness as he has only filed the challan. PW4 W/ASI Nirmala, PW8 Insp. Vishwajeet and PW12 State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 18 of 26 Ct. Vijender Singh are the witnesses of investigation. Pw8 Insp. Vishwajeet is the IO and he has stated that on 27.9.06 prosecutrix Shashi Bala and her mother came to PS and reported that Ramesh Patel is sexually abusing her against her consent and wish. NGO Volunteer Aparna was called and prosecutrix was interrogated and thereafter sent for medical in AIIMS Hospital. PW4 W/ASI took the prosecutrix to AIIMS and after medical examination handed over MLC to PW12. PW8 prepared the site plan which is Ex.PW8/B. No suggestion has been put by the Ld. Defence counsel that he did not prepare the site plan. So, site plan has been proved by the prosecution. PW8 has further stated that accused was arrested vide memo Ex.PW3/C and his personal search was conducted vide memo Ex.PW3/D and he pointed out the place where he had committed the rape vide memo Ex.PW3/E and that disclosure statement of accused was recorded which is Ex.PW3/F. This version regarding arrest, personal search and pointing out the place of occurrence has been corroborated by PW4 and PW12. The arrest memo, personal search memo, pointing out memo and disclosure statement are available on file. No suggestion has been put to PW8 that accused was not arrested as alleged by him or he did not point out the place of incident and made disclosure statement. So, arrest memo, personal search memo, pointing out memo and disclosure statement have successfully been proved by the prosecution. PW8 has further stated that he got recorded the statement u/s 164 Cr.PC and after abortion the feotus was preserved at AIIMS Hospital State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 19 of 26 and blood samples of victim and accused were taken for DNA. DNA report has been produced and proved by PW2 & 13. So, the version of PW8 stand proved in this respect. I have also perused the cross examination of these PWS. Cross examination of PW4& 12 are quite formal. PW8 who is IO of this case has stated in cross examination that Aparna had submitted her report in writing. He is not aware if that report has been filed in this case or not. There was no examination of prosecutrix for assessment of her bone examination. He cannot comment if in the statement Ex.PW3/A there is no mention of use of knife by the accused against her in the incident. Prosecutrix was produced in the court at about 3 p.m on 28.9.06 for her statement u/s 164 Cr.PC. As regards to age of prosecutrix collected in this case, it was only a school certificate mentioning date of birth seized subsequent to 1.1.07 after he had handed over the file to MHCR. Clothes of the prosecutrix were not seized . In view of the cross examination of these witnesses, it is revealed that their testimonies could not be shattered by the Ld. Defence counsel. However, I have found some contradictions in their testimonies but those are of trivial nature which can be ignored due to lapse of time in consideration of the facts and circumstances of the case.
32. I have also considered the evidence adduced on behalf of the accused. DW1 Mangleshwar Patel is the father of accused Ramesh Patel. And he has stated that Ram Kishan made a complaint in the PS against his State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 20 of 26 son Ramesh Patel that he committed rape upon his daughter and also told him this fact. His son used to do part time job as waiter and used repair TV also. His wife did not make any complaint against his son at any time. Shashi Bala used to visit his house. Shashi Bala seems to be 18 years of age. In cross examination he has stated that Ram Kishan was know to him for last 12 years. In his statement DW1 has no where stated that his son has been falsely implicated in this case. He admitted that Ram Kishan, father of prosecutrix was know to him for 12 years. But he has not statement there was some enmity between them to implicate the accused in this case. I have also considered the statement u/s 313 Cr.PC of accused. Question no.7,8 and 10 are reproduced hereunder: Q7 It is further in evidence against you that between March to May 2006 at house no.1150/25, 12 Block, Gupta Colony you committed rape on Shashi Bala and threatened her that if she did not agree for commission of rape, you will murder her brother. What have you to say?
A7 I have not done anything against the wish of the prosecutrix. I never caused any threat as alleged by the prosecutrix. The prosecutrix offered herself for satisfaction of her wish.
Q8 It is further in evidence against you that you indulged in sexual intercourse with Shashi Bala against her consent and wish and committed the act for 12 to 14 occasions on the interval of day or two and everytime threatened her that you will kill her brother if she resisted or disclosed the incident to anybody. What have you to say?
A8 It is totally false and incorrect. I have not given any threat to kill the brother of the prosecutrix. The prosecutrix herself compelled him to satisfy her desire of having sex with her.
Q10 It is further in evidence against you that mother of the prosecutrix led the police party to your house no. 1151/26 I2 Block, Gupta Colony, Sangam Vihar, New Delhi and after identification you were arrested vide arrest memo Ex.PW3/C State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 21 of 26 and your personal search was conducted vide memo Ex.PW3/D. What have you to say?
A10 It is correct that I was arrested on the false complaint made by the prosecutrix at the instance of her parents and her father is working in Police Station since long and that is why a false case has been registered against me.
33. In view of the above answers to the questions, accused has specifically stated that the prosecutrix offered herself for satisfaction of her wish and the prosecutrix herself compelled him to satisfy her desire of having sex with him. So, the accused himself has admitted in his statement that he had committed sexual intercourse with prosecutrix. His version that it was the wish of the prosecutrix, cannot be considered since the prosecutrix was minor. Another plea of accused that the father of the prosecutrix has good influence in the police, has no bearing on the case when accused has committed illegal act and even the prosecutrix was conceived. So, it cannot be termed that accused has been falsely implicated in this case at the instance of the PW5 father of prosecutrix.
34. As per medical evidence, the hymen of prosecutrix was found ruptured and even she conceived. As per MLC of accused Ex.PW6/A, 'there is nothing to suggest that Ramesh Patel is incapable for performing sexual intercourse'. As per MLC Ex.PW1/A no injury has been noticed on the person of prosecutrix. It is stated in case law Manga Vs. State of Haryana, AIR 1979 SC 1194 that : 'Where there was an eyewitness evidence as to the time and date of the occurrence of rape and the doctor examining the victim of the fact found that State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 22 of 26 hymen of the victim was torn and ruptured, the mere circumstance that the doctor did not find redness or inflammation around bruises would not be sufficient to put the prosecution case out of the court because the fact that there was a rupture of the hymen and a bruise around the hymen was sufficient to prove the act of rape'.
35. In view of the above discussions of all the Pws, I am of the view that the prosecutrix PW3 Shashi Bala has assigned the role to accused Ramesh Patel @ Rahul that he has committed sexual intercourse with her against her wish and consent. Her version has further been strengthened by the medical evidence and DNA report. Even PW3 has stated that accused has threatened her that he will kill her brother if she did not offer herself for sexual relationship. So, the prosecution has successfully proved its case against the accused.
36. As a sequel to my findings above, I am of the view that the prosecution has left no stone unturned to prove its case against accused Ramesh Patel @ Rahul. I therefore, hold accused Ramesh Patel @ Rahul guilty for the commission of offence punishable u/s 376/506 IPC and convict him thereunder.
Announced in the open Court on 06.01.2011.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 23 of 26 IN THE COURT OF SH.SURESH CHAND RAJAN ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT, (New Delhi & South East District) PATIALA HOUSE COURTS, NEW DELHI SC No.10/10 FIR No.950/06 U/s 376/506 IPC PS Sangam Vihar State Vs. Ramesh Patel @ Rahul Mangleshwar Patel H.No. 1151, 12 Block Gali no. 21 Sangam Vihar New Delhi .......... Accused ORDER ON THE POINT OF SENTENCE Accused Ramesh Patel @ Rahul has been held guilty for the commission of offence punishable u/s 376/506 IPC and convicted thereunder vide Judgment dated 06.01.2011.
2. I have heard the Ld. counsel for the convict as well as State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 24 of 26 accused/convict on the point of sentence. During the course of arguments it has been submitted on behalf of the convict that he is married aged about 24 years. He is married having one son aged about two and half year of age. He is the first offender. There is no other case registered against him in any court of law nor he has been convicted earlier. He is the elder son in the family and all the responsibility of family are upon his shoulders. He is only the bread earner in the family and entire family is dependent upon him. It is further submitted that the father of the convict is aged about 46 years and his mother is aged about 41 years.. His father is a casual worker. It has been further submitted that now the circumstances of the case have changed since complainant had no complaint against the accused since complainant and accused/convict are married and settled in their families. So, lenient view may be taken against the accused.
3. Keeping in view the facts and circumstances of the case and the act done by the convict, I am of the view that he is not entitled to any leniency since the accused has committed sexual intercourse upon minor girl who does not understand the ups and downs of the society.
4. In view of this the convict Ramesh Patel @ Rahul is ordered to undergo RI for seven years and to pay fine of Rs.2000/ u/s 376 IPC and in default of payment of fine to further undergo SI for six months. State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 25 of 26
5. He is further ordered to undergo RI for two years and to pay fine of Rs.1000/ u/s 506 IPC and in default of payment of fine to further undergo SI for two months.
6. The benefit of sec.428 Cr.P.C be given to the convict. Both the sentence shall run concurrently. Copy of this order on the point of sentence and copy of Judgment be given to the convict free of cost. It is ordered accordingly. File be consigned to record room. Announced in the open Court on 11.01.2011.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI State Vs.Ramesh Patel @ Rahul FIR no.950/06 Page No. 26 of 26