Delhi District Court
35. In Swapan Patra vs . State Of Best Bengal (1999) 9 Scc on 25 August, 2010
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE03, NORTH, DELHI.
FIR No.: 285/09
PS: Burari
U/s: 376/511 IPC
S.C. No.: 92/2009
Case ID No. 02401R0510412009
In the matter of:
State
Vs.
Subhash
S/o Sj. Jang Bahadur
R/o Village Sarai, P.S. Sayana
DistrictBuland Shehar
U.P.
Date of receiving in Sessions Court : 8.12.2009
Arguments Heard : 20.8.2010
Date of Judgement : 25.8.2010
JUDGEMENT
Case Of Prosecution:
1. On 3.9.2009 on receipt of DD no. 20 A, SI Darsh Pandey alongwith Constable Sanjay reached at the spot at House no. C452, Village Nathu Pura, Burari, Delhi where the complainant Rajeev Singh met them. He handed over accused Subhash to SI Darsh Pandey and took S.C. No.: 92/09 1/15 his sister i.e. the prosecutrix (name withheld to keep her identity confidential) to Aruna Asaf Ali Hospital for her medical examination in the PCR Van. Thereafter SI Darsh Pandey also reached at Aruna Asaf Ali Hospital and obtained the MLC of prosecutrix. There he recorded the statement of complainant Rajeev Singh who gave his statement that he resides as tenant at House no. B331, Village Natthupura, Burari, Delhi and is a conductor in RTV bus. On 3.9.2009 at about 2 or 2.30 p.m. when he returned to his house from his job, he found the door of his room locked. He thought that his wife might have gone to the house of his mother at C452. So he reached at the house of his mother where he found that the door of his mother's room was closed and it opened when he pushed the same. Thereafter he heard the cries of a child coming out of the room. He went inside and saw that the accused who runs a tailor shop at his neighbourhood was lying on his sister i.e. the prosecutrix in naked condition and attempting to commit rape upon her. He cried loudly and caught the accused Subhash. On hearing the noise, public persons also gathered there and they gave beatings to the accused. Thereafter the complainant put the clothes of his sister on her and called the police at 100 number. Police officials reached at the spot and he handed over the accused to them. On the basis of statement of the complainant and MLC of the prosecutrix, case U/s 376/511 IPC was registered against the accused and further investigation of the case was handed over to W/ASI Alma Minz who during the course of investigation, prepared the site plan, S.C. No.: 92/09 2/15 recorded the statement of witnesses, arrested the accused and after completion of investigation, filed the challan in the court.
2. Since the offence U/s 376/511 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case under section 376/511 IPC was made out against the accused. Charge was framed against him to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 14 witnesses in all.
5. The brief summary of the deposition of the prosecution witnesses is as under:
Material Witnesses:
6. PW2 is Sh. Rajiv Singh, brother of the prosecutrix. He stated that on 3.3.2009 he came to his house from his duties at about 2 or 2.30 p.m. He was working as a conductor on RTV bus. When he came to his house, the door of the house was found locked. He thought that his wife has gone to his mother who was living in house No. C452 in the same locality. He went there. The door of the room of his mother was closed. He pushed the same and it opened. He heard the cries of his sister i.e. the prosecutrix. Thereafter he went inside the room and saw that the accused S.C. No.: 92/09 3/15 present in the court was lying on his sister in naked condition. and his sister was also not having her under garments. He raised alarm and caught the accused there. Public persons came there and they gave beatings to the accused. He put the clothes of her sister on her and informed the police on 100 number. Police came there and he took his sister i.e. the prosecutrix to Aruna Asaf Ali, hospital in the same PCR van. The accused was in the custody of the police. He further stated that the concerned doctor examined his sister and thereafter he took his sister to their house. Thereafter the IO of the case came to their house and prepared the site plan on his pointing out and recorded his statement as well as the statement of his sister.
7. PW 4 is the Prosecutrix (Name withheld to keep her identity confidential). She stated that she know the accused present in the court as he used to work on a tailor shop near her house. He also used to come to their house. She stated that she does not remember the date and month but it is a matter of 2009. She returned from her school at about 2.30 p.m.. At that time, her mother and other family members were not present at the house. She laid down on the bed lying in the room in her house and was sleeping. After sometime the accused present in the court entered into her room and he got her woke up. The accused removed her pant. He also removed his pant and underwear and laid down upon her. She cried on which the accused slapped her. In the mean time her brother Rajiv came there and he caught the accused. Her brother put her clothes on her. Some S.C. No.: 92/09 4/15 public persons had also come there. After sometime, police also reached there and took her to the hospital and she told the above said facts to the police and the concerned doctor. She further stated that she was also taken to the court by the police and her brother for her statement.
8. PW9 is constable Sanjay Kumar who accompanied SI Darsh Pandey to the place of occurance and got the registered FIR. In his presence, IO prepared the site plan and arrested the accused.
9. PW12 is SI Darsh Pandey who on receipt of the information regarding the incident reached at the spot, recorded the statement of complainant and got the medical examination of the prosecutrix done from Aruna Asaf Ali Hospital.
10. PW 14 is ASI Alma Minz, IO of the case, conducted the investigation of the case, arrested the accused, prepared the site plan and after completion of investigation filed the challan in the court. Formal Witnesses:
11. PW1 is Head Constable Amar Nath who was working as Duty Officer and got recorded the formal FIR no. 285/09 through computer operator and proved the same as Ex. PW1/A.
12. PW 6 is Lady Constable Anuradha, who on receipt of the call through channel no. 135, transferred the call to net and concerned Police Station and also filled up the required 100 no. form.
13. PW7 is Sh. Navin Kumar, Teacher from MCD Primary Girls School, who brought the admission and withdrawal register of the S.C. No.: 92/09 5/15 students for the year 2008 and proved the date of birth of the prosecutrix as 8.9.2000. He further proved the birth certificate issued by the school principal as Ex. PW7/A.
14. PW 8 is Sh. Tarun Yogesh, M.M. Tis Hazari Courts, Delhi who recorded the statement of prosecutrix u/s 164 Cr. PC. and proved the same as Ex. PW8/B.
15. PW 10 is Head Constable Chhidda Singh who was posted as MHC(M) at Police Station Burari. He duly proved all the entries in Malkhana Register.
Medical Witnesses:
16. PW3 is Dr. Rabinder Kumar, CMO from Aruna Asaf Ali Hospital who examined the accused and proved the MLC as Ex. PW3/A. He further stated that the patient was referred to Forensic Department for expert opinion and potency test.
17. PW5 is Dr. Ruby Kumari who examined the prosecutrix and proved the MLC as Ex. PW5/A. She further stated that she had referred the prosecutrix to Gynecologist for detailed examination, sample collection and further management.
18. PW11 is Dr. S. Lal Specialist Forensic Medicine from Aruna Asaf Ali Hospital, Delhi who stated that Dr. Raghvinder Bagla had examined the accused regarding his potency and proved the report as Ex. PW11/A.
19. PW13 is Dr. Archna Aggarwal. who identified the S.C. No.: 92/09 6/15 handwriting and signatures of Dr. Sarita on the MLC Ex. PW 13/A of prosecutrix.
20. Statement of accused U/s 313 Cr.P.C. was recorded wherein accused denied the case of prosecution and stated that this is a false case. He further stated that he did not try to commit rape upon the prosecutrix. and he had only inserted his finger into the private parts of the prosecutrix. Accused further chose not to lead any evidence in defence.
21. I have heard the Ld. Counsel for accused as well as Ld. APP for the state and have carefully perused the record.
22. PW2 is the brother of prosecutrix and PW4 is the prosecutrix herself. PW4 is aged about 10 years. She stated that she is studying in second class in Govt. School at Nathupura, Delhi. She has further stated that she know the accused present in the court as he used to work on a tailor shop near their house and he used to come to their house. She does not remember the exact date and month but it is a matter of 2009. She returned from her school at about 2.30 p.m.. At that time her mother and other family members were not present in the house. She laid down on the bed lying in the room of her house and was sleeping. After sometime the accused present in the court entered in her room and he got her woke up. Thereafter the accused removed her pant and he also removed his pant and underwear and laid down upon her. She cried on which the accused slapped her. In the mean time her brother Rajiv came there and he caught the accused. Her brother put her clothes on her and thereafter police also S.C. No.: 92/09 7/15 came at the spot and took her to the hospital. She further stated that she was also taken to the court by the police and her brother and she made the statement before the court. This witness further identified the clothes worn by her at the time of incident which were seized by the IO. In her cross this witness has admitted that police made enquiries from her. She has further stated that " Usne Mere Kapde Utaar Diye Aur Mere Upar Lait Gya. Fir Usne Apni Ungli Mere Peshab Wali Jegah Me Dali. Mai Chillai Aur Mera Bhai Aa Gya". In her cross also this witness has duly supported the case of prosecution and has stated whatever happened with her and the act committed by the accused. She had denied the suggestion that she was not wearing the underwear/pant which she has identified in the court at the time of incident and she has identified the same at the instance of her brother.
23. PW2 is the brother of the prosecutrix who has also deposed that on 3.3.2009 he came to his house from his duty at about 2 or 2.30 p.m. Though this witness has stated the date as 3.3.2009 but Ld. APP for the state during the course of arguments argued that the incident is of 3.9.2009 and it is only a typographical mistake. Ld. APP for the state further argued that accused in the statement of accused U/s 313 Cr.P.C. has also admitted this fact that he inserted his finger into the private parts of the prosecutrix and, therefore, this discrepancy which does not go to the root of the case does not affect the case of the prosecution. In my view, the submissions of Ld. APP for the state bears force since in the S.C. No.: 92/09 8/15 complaint as well as in the judicial file and during the evidence of other witnesses, the date of incident has been mentioned as 3.9.2009. Furthermore the accused himself has admitted this fact that he inserted his finger into the private parts of the prosecutrix. It is a well settled principle of law that the fact admitted need not to be proved. In the present case the accused himself has admitted this fact that he inserted his finger into the private parts of the prosecutrix. In such circumstances, the burden to discharge this onus on the prosecution goes. Still the prosecution has been able to fully discharge its burden as PW2 has also deposed on the lines of PW4. He has stated that when he came to his house, the door of the room of his mother was closed. He pushed the same which opened and he heard the cries of his sister i.e. the prosecutrix. Thereafter he went inside the room and saw that the accused present in the court was lying on his sister in naked condition and his sister was also not having her under garments. He raised alarm and caught the accused there. He has further stated that public persons came there and they gave beatings to the accused. He put the clothes of her sister on her and informed the police on 100 number and also took his sister to Aruna Asaf Ali hospital in the same PCR van and statement of his sister was also recorded by the police. Nothing material has come out of the cross examination of PW2. Moreover accused himself has also admitted this fact that he inserted his finger into the Private parts of the prosecutrix. PW2 has also admitted that the house where his mother is residing is S.C. No.: 92/09 9/15 surrounded by the residential houses and public persons had gathered at the spot. So far as the non joining of public witnesses is concerned, then it may be mentioned that same is not fatal to the case of prosecution as nowadays in cities like Delhi, public persons are reluctant to join the police investigation due to the fear of police station or court rounds and present case is also no exception to this fact. PW2 has denied the suggestion that hat he was on his duty till evening and he did not witness the occurrence .
24. The testimony of PW2 and PW4 inspires confidence and they do not seem to be tutored witnesses. Rather the prosecutrix in her cross has narrated the whole incident i.e. what happened with her.
25. PW1 is the duty officer who registered the case.
26. PW3 is Dr. Rabinder Kumar from Aruna Asaf Ali Hospital who examined the accused and proved the MLC as Ex. PW3/A.
27. PW5 is Dr. Ruby Kumari who examined the prosecutrix and found redness present over vulval region and stain present over inner cloth.
28. PW7 is Sh. Navin Kumar, Teacher from MCD Primary Girls School who duly proved the date of birth of the prosecutrix as 8.9.2000. Thus, on the date of incident, the prosecutrix was around 9 years of age. The testimony of PW7 has remained unchallenged and un shattered.
29. PW8 is the MM who recorded the statement of prosecutrix U/s 164 Cr.P.C. and proved the same as Ex. PW8/A. In the statement of S.C. No.: 92/09 10/15 prosecutrix U/s 164 Cr.P.C. recorded by the MM also, the prosecutrix has duly supported the case of prosecution.
30. PW11 is Dr. S. Lal, Specialist Forensic Medicine who stated that Dr. Raghvinder Bagla had examined the accused regarding his potency. He further proved the report as Ex. PW11/A. From the opinion of the doctor Ex. PW11/A, it is clear that there is nothing to suggest that accused is not capable of doing sexual intercourse.
31. PW 13 is Dr. Archna Aggarwal who stated that the prosecutrix was examined by Dr. Sarita who gave her findings Ex. PW13/A. PW13 has stated that she cannot comment as to whether the injuries mentioned in the MLC can be self inflicted and she can comment only by seeing the patient if there is any possibility of sustaining the injuries as mentioned in the MLC by the finger of a person.
32. PW14 is the IO of the case.
33. So far as the police officials are concerned, then nothing material has come out of their cross examination. Accused in his statement has denied that he attempted to commit rape upon the prosecutrix. He further denied that he entered into the room of the prosecutrix when her mother and other family members were not present in the house and at time prosecutrix was sleeping in her room. He further denied that he removed the clothes of the prosecutrix and also removed his clothes and undergarments and thereafter laid down upon her. He further denied that when prosecutrix raisd cries, he slapped her. Though S.C. No.: 92/09 11/15 he has denied all the case of prosecution but he has admitted the fact that he had inserted his finger into the private parts of prosecutrix. He has failed to explain how when he did not enter into the room of the prosecutrix or did not remove his and her clothes, he inserted his finger into the private parts of the prosecutrix. Though he has denied that he did not remove the clothes/undergarments of the prosecutrix but at the same time he has stated that he had inserted his finger into the private parts of the prosecutrix. He has denied this fact that he had entered into the room of the prosecutrix while she was sleeping and her mother and other family members were not present in the house but at the same time he has failed to explain how and under what circumstances, he inserted his finger into the private parts of the prosecutrix when he did not enter into the room of the prosecutrix, or he did not remove her clothes or did not lay down upon her.
34. In the FSL report Ex. PX duly proved by the prosecution, human semen is found on the exhibit in parcel no.1 i.e. the underwear belonging to the prosecutrix which she has duly identified.
35. In Swapan Patra Vs. State of Best Bengal (1999) 9 SCC 242, Supreme Court said that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found not to be true then the same offers an additional link in the chain of circumstances to complete the chain. The same principle has been followed and reiterated in State of Maharashtra Vs. Suresh (2001) 1 SCC 471, where is S.C. No.: 92/09 12/15 has been said that a false answer offered by the accused when his attention was drawn to a circumstance, renders that circumstance capable of inculpating him. Supreme court has further held in this case that in such a situation false answer can also be counted as providing a missing link for completing the chain. The aforesaid principle has been again followed and reiterated in Kuldeep Singh and Ors. Vs. State of Rajasthan 2000 (5) SC 161.
36. In Anthony D'Souza Vs. State of Karnataka 2003 Crl.L.J. 434, the full bench of Supreme Court consisting of Hon'ble R.C. Lahoti, Brijesh Kumar and H.K. Sema, JJ opined in para 15 as under:
"By now it is well established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination U/s 313 Cr.P.C. against the established facts that can be counted as providing a missing link for completing the chain".
37. Ld. defence counsel has placed reliance upon 1986 (II) D.R.J. 100 titled as Niranjan Singh Vs. State. In the authoritative pronouncement cited by the counsel for accused, the Hon'ble High Court has held that "it can only be treated as the case of preparation and not an attempt on the part of accused to commit rape upon the proecutrix".
38. In the present case, not only the accused entered into the room of the prosecutrix while she was sleeping but also removed her clothes. He also removed his undergarments and thereafter laid down upon her. He also inserted his finger into the private parts of prosecutrix as admitted S.C. No.: 92/09 13/15 by him and in such circumstances, it cannot be said to be mere preparation. Removing of the clothes of prosecutrix by the accused does not amounts to mere eve teasing or preparation by the accused. It was clearly an attempt by the accused to commit rape upon the prosecutrix. It was the luck of the prosecutrix that her brother came immediately and caught the accused red handed. From the conduct of accused, no inference can be drawn that accused was only making preparations and not attempted to commit rape. Though there is a thin line between preparation and attempt but when the accused laid down on a minor girl of 9 years and also inserted his finger into her private parts, then it only amounts to an attempt to rape and nothing else.
39. Following observations of the Hon'ble High Court in 2009 IV AD (Delhi) 780 made by Justice S. Muralidhar are relevant for the present case: "The offence of child sexual abuse is an extremely grave one. Innocent and tender children are abused sexually through a variety of means, one of which is the present case where the petitioner was found having inserted his finger into the private parts of the prosecutrix. Such incidents leave a deep scar on the psyche of the child and has the potential of adversely affecting the child's emotional and mental development. As documented studies show, the trauma the child suffers very often persists through her or his adult life. The book titled "Bitter Chocolate" by Pinki Virani (Penguin, 2000) documents several such true S.C. No.: 92/09 14/15 stories and brings to light the harsh truth that these incidents are more frequent than what we may imagine and very often goes unpunished by the child suffering the trauma and the attendant sense of shame silently".
It has been further held that : "In the considered view of this court when the prosecutrix was in no confusion as to what happened with her, the criticisms of her statement on the basis of some minor contradictions is without basis. Clearly the young girl of 7 years has a very clear recollection of what happened to her and who did it. The mother of the prosecutrix was examined as PW2. She fully corroborated the prosecutrix and denied the suggestion of any previous enmity with the petitioner".
40. In the present case also, prosecutrix is aged about 9 years. Accused removed his clothes and also removed the undergarments of prosecutrix. He has laid down upon her and inserted his finger in her private parts. None of these acts can be termed only as "Preparation".
41. In view of the abovesaid discussion, prosecution has been fully able to prove its case against the accused beyond the shadow of doubt. As such, accused is held guilty and convicted for the offence U/s 376/511 IPC.
(MADHU JAIN) Additional Sessions Judge03 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 25.8.2010 S.C. No.: 92/09 15/15