Delhi District Court
State vs . Ramesh @ Pawwa on 7 April, 2010
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IN THE COURT OF SH. O. P. GUPTA, ADDITIONAL SESSIONS
JUDGE - 02,CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Date of Institution : 2.7.07
Arguments Heard on : 5.4.10
Judgment delivered on : 7.4.10
SC No. 19/07
State Vs. Ramesh @ Pawwa
FIR NO. 247/07
PS Darya Ganj
U/s 376/511 IPC
JUDGMENT
1. The case has been registered on the statement of Kishan kant Mishra who informed the police that on 2.4.07 at about 4:30 p.m while returning to his house, he stopped in park in Darya Ganj and started taking rest. Certain children were playing cricket. At about 4:50 p.m. ball of the children playing cricket went in bushes and those children went in bushes. They brought one boy out of bushes, zip of whose pant was open. A girl aged five years came behind that boy and she had caught her trouser in her hand. The children playing cricket were saying that said boy was doing galat kaam with that girl. He informed no. 100 . Police reached at the spot .
2. During investigation medical examination of the prosecutrix and accused was got done. Their wearing clothes were seized. Blood sample of the accused was taken. Exhibits were sent to FSL. Statements of the witnesses were recorded. After completion of investigation, report U/s 173 Cr. P. C was filed.
23. Copies were supplied. Case was committed to the Court of Sessions. Report of FSL was filed. A prima facie case of offence U/s 376/511 IPC in the alternative f354 IPC and Secondly 366 IPC was found. Charge was famed to which accused pleaded not guilty.
4. In support of its case, prosecution has examined 17 witnesses. PW1 HC Ram Vriksh Duty Officer proved copy of FIR as Ex. Pw1/A, endorsement regarding registration of FIR on rukka as Ex. PW1/B, copy of DD no 26A regarding information of incident as Ex. PW1/C.
5. PW-2 SI Abdul Kaleem along with HC Tulsi Ram Inspector Asha, Ct. Ravinder and SHO reached at Sadbhawna Park, Darya Ganj. PCR officials, complainant, prosecutrix and accused met them. On 14.4.07 he obtained one pullanda containing clothes and blood sample of accused, sealed with the seal of JPN hospital and a sample seal vide memo Ex. PW2/A.
6. PW-3 Mohd. Nawab is father of the prosecutrix. He deposed that he was called by SHO where he came to know that accused had kidnapped his daughter aged 5 years with intention of committing galat kaam. His wife examined his daughter and found her alright. Accused who was a rickshaw puller, used to visit his shop. His father knew the accused and used to address him as chacha. He was cross examined by Ld. APP in which he admitted that date of incident was 2.4.07. he admitted that he told the IO that accused attempted to commit galat kaam with his 3 daughter. In cross-examination by counsel for accused he admitted that he had no personal knowledge regarding the incident.
7. PW4 Ct. Virender Singh took the accused to MAM College for blood sample. He collected blood sample of the accused, sealed with the seal of MAM hospital along with sample seal vide memo Ex. PW 4/1
8. PW5 HC Tulsi Ram accompanied SHO. He took rukka. He proved seizure memo of the rickshaw of accused, taken into possession at the pointing out of accused as Ex. PW 5/1. Thr rickshaw has been proved as Ex. P1.
9. PW6 is prosecutrix (name kept secret). Certain questions were put to her before examining her for satisfying that she was capable of understanding the nature of questions and of giving rational answers. She was examined after putting a screen between her and accused. Oath was not administered to her because she was aged 6 years. She deposed that in the morning accused present in the court took her in his rickshaw in park. Accused put off her kachha (panti) and offered toffees to her and did not do anything else. Accused had also put off his pant, had taken her behind bushes . Police came and apprehended the accused. In park some boys were playing with ball. Ball with which boys were playing had come towards side of bushes. When the boys came to search the ball near bushes, on seeing her they started saying `dekho dekho kaacha uttar raha hai'. At the time of taking her from her house, accused told her that he would give her something to 4 eat. Accused had given her two chocolates. The aforesaid children apprehended the accused. Earlier she had come to the Court for giving a statement before the Magistrate. Choclates have been given to her before putting off her kacha. Accused offered cash also saying that she could buy something to eat but she declined.
10. The Ld. APP put leading questions in which she nodded her head with approval to the question that accused took her to bushes in the park and said `marvaygi kya' and also took out some money from his pocket and said `paise dega, paise le le jitne chahe, agar marvaygi tu paise bhi dega aur choclate bhi'. She again nodded her head in approval of the suggestion that after putting of her kacha she started crying and told accused that he should drop her at her house. But he wanted to take her to his house on which she replied in negative. She further nodded her head in approval of the suggestion that on her insistence that accused should drop her at her house, he had put off his pant also. She further nodded her head in approval of the suggestion that when one person came near bushes while searching ball he saw her and accused and said `ye dekho ye ganda kaam kar raha hai'. She identified the cycle rickshaw Ex. P1 . The ld. Defence counsel gave no objection to the exhibition of the wearing clothes of the victim as the same had not been received from FSL. So the same were exhibited as Ex.P2 and Ex. P3. Three pieces of toffees were proved as Ex. P4.
11. In cross examination by counsel for accused she stated that she accompanied accused of her own. Accused did not threaten her or enured her. He did not offer any lalach to her. The witness 5 nodded her head in approval of the suggestion that when she left her house, accused did not offer any toffee to her. She also nodded her head in approval to the suggestion that she went to the park of her own. She nodded her head in approval of the question that accused did not do anything with her in the park . She nodded her head in approval to the question that toffees were given to her on her asking.She stated that she was taken away by accused to park, accused put off her kacha and laid down over her.
12.PW7 Najma is mother of the victim. She gave a statement similar to that of PW 5. She was cross-examined by the Ld. APP in which she admitted that they saw their daughter and learnt that accused had taken her to park with intention to do galat kaam. In cross examination by counsel for the accused she admitted that she had stated before the court what she heard from others. Her daughter never told her that she was taken forcibly by the accused.
13. PW 8 Dr. Bhim Singh medically examined the accused and opined that there was nothing to suggest that accused was not able to perform sexual intercourse. He proved MLC Ex. PW 8/1.
14. PW 8 (duplicate) Shehnawad is one of the children who was praying cricket. He deposed on the lines of case of prosecution. He did not tell the date of the incident, he was cross examined by Ld APP in which he admitted that date of incident was 2.4.07. In cross examination by counsel for accused he denied that the prosecutrix had gone to bushes of her own to ease or that the 6 accused was not laying over her or that zip of pant of accused was not open.
15.Pw9 Sh. Ajay Pandey MM proved application for statement U/s 164 Cr. P. C as Ex. Pw 9/1, Statement U/s 164 Cr. P. C as Ex. Pw 9/2, his certificate as Ex. Pw9/3, his endorsement as Ex. PW9/4, his report as Ex. Pw9/5, application for copy as Ex. PW9/6.
16.PW 10 Naseem is another person who was playing cricket. He gave statement similar to that of PW 8. He was cross examined by Ld. APP to extract certain facts. In cross examination by ld counsel for the accused, he denied the suggestions.
17.PW 11 HC Devender Singh , Incharge, PCR Van along with staff reached DTC park, on receiving the information. Local police reached there, accused and the girl were handed over to local police. He too was cross examined by Ld. APP to extract that HC Saroj Bala had physically checked the girl behind the curtain.
18.PW 12 SI Sudhir Kumar is subsequent IO. He proved copy of statement U/s 164 Cr. P. C as Ex. PW 12/1. He took exhibits to FSL Rohini and deposed that the seals remained intact.
19.PW 13 K. K. Mishra is the complainant. He has proved his report as Ex. PW 13/1 and corroborated the averments made therein. In cross examination by Ld APP he admitted that three toffees were recovered from left pocket of pant of the accused which were seized vide memo Ex. PW 13/2. Accused was arrested vide memo 7 Ex.PW 13/3 and his personal search was conducted vide memo Ex. PW13/4. He could not identify the toffees recovered from accused. He identified the pajami of the witness as Ex. P2 and top as Ex. P3. He identified the paint and shirt of the accused as Ex.P5 and Ex.P6.
20.PW14 Dr. Rukkaiya medically examined the victim and stated that no fresh external injuries were seen, external genelia was found normal, there was no bleeding and no trauma. Hymen was found intact. Local examination showed that no sexual intercourse had taken place . She proved the MLC as Ex. PW 14/1.
21.PW 15 Inspector Asha Barola proved the site plan as Ex. PW 15/A.
22.PW 16 HC Govind Lal deposed above sending of sample to FSL Rohini vide RC which is Ex. PW16/A.
23. After completion of PE, statement of accused was recorded U/s 313 Cr. P. C in which he expressed ignorance about registration of FIR , information of incident, seizure memo of clothes and blood sample of prosecutrix. However, he admitted seizure memo of his blood sample and his rickshaw at his pointing out. He denied having taken the prosecutrix, putting off her kacha, putting of his pant, taking the prosecutrix behind bushes. He stated that exhibition of his clothes and clothes of prosecutrix is matter of record. He denied having laid over prosecutrix. Regarding 8 application for statement U/s 164 Cr. P. C , statement, certificate, report etc, he stated that it was a matter of record. He did not know about the medical examination of prosecutrix or preparation of site plan. He did not know about the report of FSL. PWs have deposed falsley. He pleaded innocence. According to him prosecutrix went with him of her own. He opted not to lead DE.
24.I have gone through the material on record and heard the arguments. Neither the prosecutrix nor her parents have supported the case of the prosecution . MLC of the victim also demolishes the case of the prosecution. Merely undressing of the girl or putting off the clothes by the accused do not make out offence of attempt to commit rape. In taking this view I am fortified by the decision of our own Hon'bel High Court in Jai Chand Vs. State 1996 (1) CCC 505.
25.Since the prosecutrix stated that she went with the accused of her own , offence U/s 366 IPC also is not made out.
26.At the most it can be said that the act of the accused amounted to out raging the modesty of the prosecutrix. Thus the accused is convicted U/s 354 IPC.
Announced in the open Court (O.P. GUPTA)
on 7.4.2010 Additional Sessions Judge
Central -02, Tis Hazari Courts,
Delhi
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IN THE COURT OF SH. O. P. GUPTA, ADDITIONAL SESSIONS JUDGE - 02,CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI SC No. 19/07 State Vs. Ramesh @ Pawwa FIR NO. 247/07 PS Darya Ganj U/s 376/511 IPC ORDER ON SENTENCE Accused has been convicted u/s 354 IPC vide separate judgment passed today by this Court.
2. I have heard on quantum of sentence.
3. he is aged 21 years, is not a previous convict, has already faced trial for about 3 years, is in custody since the date of arrest i.e. 2.4.07.
4. Keeping in view the facts and circumstances of the case, the accused is sentenced to undergo RI for 2 years. Since he has already served that much imprisonment, he be set free.
Announced in the Open Court (O.P. Gupta) on 7.4.2010 ASJ/Central-02/Delhi