Delhi District Court
State vs Prabhu Singh on 29 October, 2010
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IN THE COURT OF SMT. SARITA BIRBAL: ADDL. SESSIONS
JUDGE: KARKARDOOMA COURTS : DELHI.
S.C. No: 07/07
State Versus Prabhu Singh
son of Shri Melu Singh,
r/o 11/248, Kalyanpuri,
Delhi
FIR No: 65/2006
U/ss: 376/511 IPC
P.S.: Kalyanpuri
Date of institution of charge sheet 28.03.2006.
before the ld MM.
Date of allocation to this Court: 11.05.2006.
Date on which the judgment has been reserved: 18.10.2010
Date on which the judgment has been delivered: 21.10.2010
JUDGMENT
1. Briefly stated, the prosecution case as revealed from the report under section 173 Cr.P.C. is that on 09.02.2006 while SI Jaswant with Constable Dharam Pal was on patrolling duty, he reached near 11 Block, Main Market, Kalyanpuri at about 12.15 a.m. where one Smt Babita alongwith her husband and daughter (prosecutrix) met them. Smt Babita disclosed that her daughter has been raped by their landlord (makkan maalik ne galat baat ki hai). Medical examination of the :2: prosecutrix was got conducted from LBS Hospital. Statement of Smt Babita was got recorded wherein she stated that she (complainant) has been residing in the house of accused bearing No. 11/248, Kalyanpuri, Delhi for the last about six years (from 09.02.2006) and she is a housewife. It is also stated that on 08.02.2006 at about 6 p.m. while she reached the house, her daughter (prosecutrix) came to her in a preplexed condition, on which she (complainant) enquired about the matter. It is alleged that prosecutrix was weeping and told to complaint that landlord Prabhu Singh (accused) had done wrong thing (makan malik ne galat baat ki hai) with her (prosecutrix) after putting off her panty. It is also alleged that her husband was not present at that time and she told her husband about the incident when he came back from his working place. It is alleged that accused had attempted to commit rape with her daughter. On the basis of the complaint, a case under section 376/511 IPC was registered against the accused. During investigation, accused was arrested, got medically examined and then on completion of investigation of this case, accused was chargesheeted for an offence under section 376/511 IPC.
2. Since the offence in this case was exclusively triable by Court of Sessions, Ld M.M. committed this case to the court of Sessions which on allocation was assigned to this court.
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3. Vide orders dated 11.05.2006 my ld predecessor framed a charge under section 376/511 IPC i.e. an offence for an attempt to commit rape to which the accused pleaded not guilty and claimed trial. Consequently trial against him was proceeded with.
4. In support of its case, the prosecution has examined eleven witnesses.
5. Out of these witnesses, PW 1 prosecutrix and PW 2 - mother of prosecutrix are material witnesses.
6. PW 1 is the proscutrix who was seven yeas of age at the time of the incident and about eight years old at the time of recording of her evidence in the Court on 11.08.2006 and 09.02.2007. In order to ascertain the fact that the witness is able to give rational answers to the questions, certain general questions were put to her and in view of the answers given by the witness, my ld predecessor was satisfied that the witness was able to give rational answers and is able to understand the sanctity of oath. Accordingly, she was administered oath and thereafter her statement was recorded. She stated that while she was playing on the road at about 6 p.m. accused came to her, dragged her inside in his room, put off her underwear and bolted the door from inside and gandi gandi baatein karne lagaa. This witness further deposed that when his son Chinga came there and knocked at the door, upper bolt of the door :4: became unbolted while down bolt of the door remained bolted, accused slapped her on which she rushed and opened the door. She further stated that accused and his family member stated that they would be killed by sword. This witness further stated that she was feeling much pains and became unconscious and was taken to the hospital where doctor put medicines on her private parts. This witness further deposed that in the court her statement Ex. PW 1/A was recorded by one uncle. Statement Ex. PW 1/A under section 164 CrPC was recorded by ld MM on 15.02.2006. This witness was cross examined by ld defence counsel and then reexamined by ld Addl PP for the State on which she was further cross examined by ld defence counsel.
7. PW 2 - Mother of the prosecutrix deposed that in the month of February, of this year (her statement was got recorded on 11.08.2006 in the court) at about 6 p.m. while she was cutting vegetables and her daughter was downstairs, her daughter came weeping after sometime and on inquiry she (prosecutrix) told her that accused has committed wrong acts with her and her underwear was not in proper shape. It is stated that she was also having nail marks on her private parts and one spot was on her underwear. This witness further deposed that then she (this witness) rushed to the room of the accused where accused was found lying naked. She further deposed that her husband came at the :5: house at about 10 p.m. and matter was reported to the police vide her statement Ex. PW 2/A. This witness is also a witness to the arrest of accused and produced birth certificate of prosecutrix Ex. P X to the police. This witness was cross examined by ld counsel for the accused.
8. PW 3 - HC Bhagwat Prasad, duty officer, proved the copy of FIR Ex. PW 3/A recorded by him on receipt of ruqqa.
9. PW 4 - HC Prem Pal, MHCM proved entries Ex. 4/A & Ex. PW 4/B effected in register no. 19 regarding deposition of sealed pullandas in malkhana and sending of sample to FSL, Rohini.
10. PW 5 - Constable Dharam Pal Singh deposed that on 08.02.2006 while he alongwith SI Jaswant Singh was on patrolling duty, Smt Babita with her husband and their daughter met them and verbally told about the incident and wanted to get their daughter medically examined on which prosecutrix was medically examined. This witness further deposed that he is a witness to the seizure of articles in the hospital and got the case registered after ruqqa was handed over to him. This witness is a witness to the arrest of accused and also a witness to the seizure of articles after medical examination of the accused.
11. PW 6 - Dr. Kavita Gupta proved the MLC of prosecutrix as Ex. PW 6/A prepared by Dr Meeta stating that present whereabouts of that doctor are not known as she has left the services of the hospital.
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12. PW 7 - Dr S.B. Jangpangi posted as CMO, LBS Hospital stated that accused was examined by Junior Resident Dr. Ichhpal Singh who has left the service of the hospital. He proved the MLC of accused as Ex. PW 7/A.
13. PW 8 - Shri Ajay Gupta, ld MM, proved the statement of prosecutrix - Ex. PW 1/A recorded by him u/s. 164 CrPC.
14. PW 9 - Constable Kiran Pal deposed that on 28.02.2006 he took the parcel and deposited the same with FSL, Rohini in intact condition.
15. PW 10 - Inspector Sushma Rawat deposed that after entrustment of investigation of this case, she got recorded the statement of prosecutrix under section 164 CrPC and sent the exhibits to FSL authority.
16. PW 11 - SI Jaswant Singh is the Investigating Officer of this case who conducted the investigation of this case. He recorded the statement of complainant Ex. PW 2/A, got the case registered, arrested the accused, got the accused medically examined from LBS Hospital, recorded the statement of witnesses. Thereafter investigation was transferred to the SI Sushma Rawat.
17. In his statement under section 313 CrPC the accused denied the allegations of the prosecution levelled against him. He stated :7: that he has been implicated falsely in this case. It is further stated that prior to the date of the alleged incident, he had asked the parents of the prosecutrix to vacate the house due to which hot words were exchanged and he was threatened to be implicated in a false case.
18. The accused opted for leading evidence in his defence and examined DW 1 - Shri Parsa Singh. This witness stated that one Sunil was tenant in the house of accused on second floor. This witness further stated that once panchayat was called for settling the dispute between Sunil and accused as Sunil was neither paying rent nor vacating the premises. He further stated that tenant Sunil demanded Rs.1.5 lac for vacating the premises and refused to pay the rent on which altercation took place between the parties and wife of Sunil threatened to accused that she would teach him a lesson.
19. I have heard arguments advanced by Ld. Addl PP for the State and Shri S.K. Ahluwalia, Advocate, for accused and have gone through the record of this case.
20. Ld Addl PP for the State submitted that prosecution has proved its case beyond all reasonable doubt. Reliance is placed on the statement of prosecutrix, her mother and the MLC Ex. PW 6/A of the prosecutrix. It is argued that the accused is liable to be convicted.
21. Ld. counsel for the accused contended that accused has :8: been implicated falsely in this case as the parents of the prosecutrix were the tenant in the house of the accused and there was some dispute between them on account of non payment of rent and non vacation of the tenanted premises. In this respect he has relied upon the testimony of prosecutrix and DW 1 - Parsa Singh. It is further contended that prosecutrix nowhere stated that she was raped by the accused. It is also contended that prosecutrix is a tutored witness as she herself admitted during her cross examination that she was told by the police at to what she has to depose before the ld MM in her statement under section 164 CrPC and also at the time of making her statement in the court. Ld. defence counsel has relied upon the judgments reported as State of Punjab V. Narinder Kumar [1992 Crl L.J. 2192] of Hon'ble High Court of Punjab and Haryana; Chhangan Dame V. State of Gujrat [1995 SCC (Crl.) 182]; Dattu Ramrao Sakhare & Ors. V. State of Maharashtra II (1997) CCR 54 (SC)]; Sonelal and Others V. State [1984 (3) Crimes 149] of Hon'ble High Court of Allahabad and Bhagwan Singh & Ors V. State of M.P. [AIR 2003 S.C. 1088]. It is submitted that prosecutrix was aged about 78 years at the time of evidence and her testimony is to be scrutinised with great caution and adequate corroboration should be looked from other evidences. It is submitted that the prosecution has not been able to prove its case.
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22. I have given my thoughtful consideration to the submissions made.
23. The prosecutrix during her examination inchief deposed that on the date of incident, the accused dragged her inside his room, put off her underwear, bolted the door from inside and started doing indecent talks/things (gandi gandi baatein karna laga). She has also stated that meanwhile his son Chinga came there as he had brought food for him due to which the upper bolt of the room became unbolted and she was able to come out of the room after opening the door. She has further deposed that accused slapped her. As noted above she was cross examined and then reexamined by Ld. Addl PP. At the stage of re examination this witness stated that after removing her underwear, the accused put his private part in her private parts. Her underwear which was allegedly seized in the hospital was produced in the court. Initially PW 1 did not identify the underwear produced in the court and stated that it does not belong to her. However, thereafter she stated that the underwear Ex. P X might be of her but during her cross examination she again stated that underwear Ex. P X is not of her as her underwear was having blood stains on it.
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24. As noted above, the ld defence counsel submitted that the statement of prosecutrix (PW 1) is liable to be discarded in totality for the following reasons:
(a) There was landlord tenant dispute between the accused and the family of prosecutrix and thus she has falsely implicated the accused;
(b) the PW 1 admitted during her cross examination that she was told by the police officials as to what statement she had to make before the ld Metropolitan Magistrate and also before the court. She also stated that whatever was told to her, she deposed before the Metropolitan Magistrate and in the court;
(c) the evidence on record does not corroborate the testimony of this witness and
(d) she had made improvements in her statement by stating that accused had put his private part in her private parts.
25. I am not in agreement with the defence that the testimony of this witness is liable to be rejected in toto. The statement of PW 1 in the court is corroborated with her statement under section 164 CrPC which was got recorded on 15.02.2007 i.e. a few days after the date of the incident. Her statement is also corroborated with the statement of the mother of the prosecutrix - PW 2. She deposed that her daughter (prosecutrix) was playing downstairs, after some time she came and at that time she was weeping and on inquiry she stated that accused had committed wrong acts with her. She also deposed that the underwear of :11: prosecutrix was not in proper shape and that she was having nail marks on her private parts. Above all, the statement of prosecutrix is also corroborated with MLC Ex. PW 6/A in which it is recorded that though hymen was intact but there was inflammation.
26. It is very unlikely that family of the girl would involve the name of their daughter in such a case which may cause stigma to the reputation of the prosecutrix merely because of some landlord tenant dispute. It is not shown that any litigation was pending between the parties for eviction of the premises. From the evidence it appears that there was no specific dispute between the parties through there was some general dispute about rent and eviction. Moreover, the dispute can also be a reason for the accused to commit the offence.
27. The statement of the prosecutrix (PW 1) is required to be read in totality. One sentence here or there can not be read in isolation. In her reexamination which was got conducted immediately after her cross examination on the same day, the prosecutrix deposed that she had stated whatever had happened with her and she has not made the statement as told to her by someone else. Prosecutrix was about eight years at the time of her evidence. She might have misunderstood the meaning of some questions. Thus, her evidence in the court is not liable to be rejected on the ground that she is a tutored witness.
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28. However, I find force in the submission of ld counsel for accused that statement of prosecutrix in her reexamination that the accused put his private part in her private parts is an improvement and is liable to be rejected. No such statement was made by her in her statement under section 164 CrPC (Ex. PW 1/A). No such statement was made by her in her examination in chief and thereafter in cross examination conducted by the accused. It was only in her reexamination the prosecutrix stated that accused put his private part in her private parts. However, this improvement can not be a reason to discard the testimony of PW 1 in totality.
29. The statement of DW 1 is of no help to the accused as he only deposed that there was some landlord tenant dispute between the accused and the family of prosecutrix.
30. In view of the above discussion, I am of the view that the prosecution has been able to establish the following facts :
(i) The accused dragged the prosecutrix who was seven years of age inside his room and bolted the door of said room;
(ii) He put off her underwear and done indecent things to her;
(iii) Chinga, son of the accused came there and knocked at the door due to which door became unbolted from upper side and prosecutrix came out of the room;
(iv) The mother of the prosecutrix (PW 2) went to the room of the accused, where the accused was found lying naked;
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(v) prosecutrix was medically examined on 09.02.2006 at about 1 a.m. in the night at L.B.S. Hospital where her hymen was found intact though there was inflammation and.
(vi) the accused was 60 years of age at the time of incident. He was medically examined. The doctor who examined him was of the opinion that there is nothing to conclude that he is not capable to sex.
31. In Aman Kumar & Another V. State of Haryana [2004 Crl.L.J. 1399], Hon'ble Supreme Court has held that:
"The plea relating to applicability of Section 376 read with Section 511 IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 IPC is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offence is the same as it he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed only half the punishment is awarded."
The Apex court further held as :
"In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only :14: desired to gratify his passions upon her person but that he intended to so at all events and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events and inspite of all resistance materials must exists. Surrounding circumstances many times throw beacon light on that aspect." (emphasis added).
32. It is further held in the said judgment that:
"Modesty can be described as the quality of being modest; and in relation to woman, "womanly propriety of behaviour; scrupulous chasity of thought, speech and conduct." It is a the reserve or sense of shape proceedings from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex. V.s James Lloyd (1876) 7 C and P 817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions on her person but that he intended to do so at all evens and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her."(emphasis added).
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33. In another judgment reported as Bachcha V. State of UP [2008 Crl L.J. 483], the Division Bench of Hon'ble Allahabad High Court held that:
"From the statements of complainant and his son neither the rape is proved nor attempt of it. From the statement of the prosecutrix only this much is proved that the appellant undressed her and himself also and after lying her down on the ground sat on her. There is nothing visible from the statement of the prosecutrix also that any attempt of penetration was ever done by the appellant. In the absence of any attempt to penetrate the conviction under section 376/511 IPC of the IPC could not be said to be legal and proper as penetration is the sine qua non for an offence of rape. The attempt of this offence can be said only when an attempt was made for penetration of male organ into the private parts of the prosecutrix. In the present case, there is nothing to conclude that the appellant at all tried to penetrate his male organ into the vagina of the girl. Hence he could not be held guilty for attempt to commit rape." (emphasis added)
34. In another judgment reported as Md Nizam V. State of Bihar [2006 Crl. L.J. 3925] the Hon'ble High Court of Jharkand held that :
"From perusal of the evidence available on the record, the fact remains that appellant has entered in the house of the informant and there he tried to threaten her to undress to satisfy his lust, however, in the midst of this :16: case, PW 3 reached there and he fled away after some exchange of hot words. The alleged incident as per prosecution, does not constitute the offence under section 376/511 IPC, attempts to commit rape in the facts before the lower Court, I find that the preparation to commit rape and thereafter attempt to commit rape has not been complete in this case. Asking to undress at the point of knife and even trying to molest a lady can not be held to be an offence of attempt to rape. Therefore the conviction under section376/511 IPC of the Indian Penal Code can not be sustained. But on the basis of facts available on record definitely a case under section 354 of the Indian Penal Code is made out wherein the attempt and use of criminal force is made to outrage the modesty of Prakash Kaur and her sister."
35. In this case the prosecutrix in her chief examination has deposed that accused bolted the door of the room, removed her underwear and started doing indecent things/talks (gandi gandi baatein karne laga). The prosecutrix in her statement to mother as got recorded in ruqqa Ex. PW 2/A, statement under section 164 CrPC Ex. PW 1/A and in her examination inchief has stated that accused 'gandi gandi baatein karna laga." May be, on account of her tender age she had not been able to explain as to what actually transpired during the incident, but some doubt remains about the extent to which the accused went during the incident. Mother of the prosecutrix in her examination chief stated that she saw the nail marks on the private parts of the prosecutrix, though in :17: cross examination she stated that she did not observe any nail marks on the person of her daughter. There is no evidence to show that accused was having any injury mark/scratch on his body at the time of his arrest on 09.02.2006 i.e. few hours after the alleged incident. It is no doubt true that as per MLC Ex. PW6/A there was inflammation on her hymen. However, in view of the evidence on record, I am of the opinion that possibility that such inflammation may have been caused due to an assault on the part of the accused during the incident cannot be ruled out. The FSL report Ex. P A in this regard shows that no blood stains could be detected on the underwear of the prosecutrix. In these circumstances, I am of the opinion that the prosecution has not been able to prove that an attempt to commit rape was made by the accused. To my mind, the evidence on record is not sufficient proof of the determination of the accused to gratify his passion at all events and inspite of all resistance on the part of the prosecutrix. However, he is certainly guilty for an offence under section 354 IPC.
36. Accused has been charged under section 376/511 IPC. Offence punishable under section 354 IPC is a minor offence to the offence under section 376/511 IPC within the meaning of Section 222 CrPC. Accordingly, in view of section 222 Cr.PC the accused can be convicted for the offence u/s 354 IPC, though charge has not been framed :18: against him. [See Bachcha V. State of UP (supra)].
37. Thus, it is held that the prosecution has been able to prove its case against the accused to the effect that the accused had intentionally outraged the modesty of PW 1 (prosecutrix) and thus committed an offence punishable under section 354 IPC. Hence, accused Prabhu Singh is convicted under section 354 IPC.
Announced in open Court on 21.10.2010. (Sarita Birbal) Addl. Sessions Judge:
KKD Courts: Delhi.
:19: IN THE COURT OF SMT. SARITA BIRBAL: ADDL. SESSIONS JUDGE: KARKARDOOMA COURTS : DELHI.
S.C. No: 07/07
State Versus Prabhu Singh
son of Shri Melu Singh,
r/o 11/248, Kalyanpuri,
Delhi
FIR No: 65/2006
U/ss: 354 IPC
P.S.: Kalyanpuri
Order On point of Sentence:
Pr. Shri Z.Abedin, ld subsitute Addl PP for the State. Convict in person with Shri S.K. Ahluwalia, Advocate.
1. I have heard ld Addl PP for the State; ld counsel for the convict and also convict in person on the point of sentence.
2. It is submitted on behalf of convict that he is aged about 70 years and has no previous involvement in any other case. It is contended on behalf of convict that he has to support his one unmarried daughter and one unmarried son besides one widow daughter with her two minor children. It is also contended that he has been facing trial for the last more than four years and never absented himself. It is also submitted that convict remained in judicial custody for about 1½ years in this case and prayed that lenient view be taken against him while awarding sentence.
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3. On the other hand, ld Addl PP submits that convict be sentenced with maximum punishment as prescribed under Law in view of the offence committed by the convict with minor girl of seven years of age.
4. As per the report of the Ahalmad, convict has already remained in judicial custody for one year, five months and twenty two days.
5. Section 354 IPC provides punishment with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
6. In view of the facts and circumstances of this case, convict is sentenced to undergo rigorous imprisonment for two years alongwith fine of Rs. 8,000/ (Rs. Eight thousand only), in default of payment of fine to undergo simple imprisonment for four months for the proved offence under section 354 IPC.
7. Benefit of section 428 CrPC shall be given to the convict.
8. An application under section 389 CrPC for suspension of sentence awarded to convict filed. It is stated that offence is bailable and convict was on bail during trial of this case. It is also stated that convict intends to file an appeal before Hon'ble High Court of Delhi against the present judgment and order on sentence passed by this court. In view of :21: the above, convict is admitted to bail till 22.12.2010 on furnishing personal bond in the sum of Rs. 20,000/ with one surety in the like amount for filing an appeal.
Bail bonds furnished and accepted till 22.12.2010. Copy of the judgment and order on sentence be supplied to convict, free of costs.
Announced in open Court on 29.10.2010.
(Sarita Birbal) ASJ: KKD Courts: Delhi 29.10.2010.