Delhi District Court
State vs . Rattan Mandal S/O Haren Mandal on 17 November, 2009
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.103/09
FIR No.403/07
U/s 376 IPC
PS Okhla Industrial Area
State Vs. Rattan Mandal s/o Haren Mandal
Jhuggi No. S-14 A-380 JJ Rajiv Camp,
Okhla Industrial Area Ph.II
New Delhi
Challan filed on : 21.07.07
Received by Fast Track Court on:28.10.09
Reserved for Order on : 10.11.09
Judgment delivered on : 17.11.09
JUDGMENT
Briefly stated the facts of the prosecution case are that on 21.05.07 on receipt of DD no. 13A ASI Shanti reached in AIIMS Hospital and collected the MLC of prosecutrix Namita. Mrs. Laxmi mother of prosecutrix met her in the hospital and she got recorded her statement Ex.PW3/A in which she has alleged that she is residing at Jhuggi no. 202 Jeevan Jyoti Rajeev Camp, Okhla PH.II, New Delhi alongwith her family. He husband is a labourer. She has three daughters named Anju, Namita and Kavita. The age of Namita is 12 years. About 22 days back from 21.5.07, her daughter State Vs.Rattan Mandal FIR no.403/07 Page No. 1 Namita, who is mentally retarded, was present in the jhuggi. She (complainant) had gone for work. At about 1.30 p.m she came back to her jhuggi to take lunch. She found the gate of her jhuggi closed. She peeped inside from window. She saw that accused Rattan Mandal, resident of nearby jhuggi and who used to come to her jhuggi, was laying on her daughter. She pushed the gate of jhuggi on which accused Rattan Mandal separated from her daughter and fled away from there. Her daughter was very perplexed. Because of social status and culture she did not told this to anyone. On 21.5.07 her daughter complained of stomach pain and she took her to Kalkaji dispensary for taking medicine where doctor has disclosed that perhaps Namita is pregnant. She took her to a hospital where her tests were done and thereafter doctor has disclosed her that she is pregnant. She suspects that accused Rattan Mandal who was laying on her daughter about 22 days prior has committed rape upon her. On asking Namita she has also disclosed to her that accused Rattan Mandal has committed rape upon her various times when she (her mother) and her husband (her father) used not to be available. On this statement Investigating Officer made her endorsement Ex.PW10/A on the basis of which the State Vs.Rattan Mandal FIR no.403/07 Page No. 2 present case was registered vide FIR no.403/07. The investigation was done and accused person was arrested. After completing the investigation the accused was challaned to the 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 10.08.07 and thereafter by the fast track court on 28.10.09.
3. The charge against the accused Rattan Mandal was framed u/s 376 IPC on 07.09.2007 by Sh V.K.Bansal, Ld.Additional Sessions Judge to which the accused pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 10 witnesses. PW1 Namita, PW2 HC Ram Chander, PW3 Smt. Laxmi, PW4 HC Ram Avtar, PW5 Dr. Raghvender Kumar, PW6 Ct. Gulab Singh, PW7 Ct. Praveen, PW8 Dr. Basil, PW9 Sanjay Kumar Tiwari, PW10 W/ASI Shanti.
5. The evidence against the accused was put to him State Vs.Rattan Mandal FIR no.403/07 Page No. 3 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 had opted to lead defence evidence and examined DW1 Rattan Mandal, DW2 Smt. Gaya Shree and DW3 Dilip Mandal. 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 DWS and exhibited documents carefully.
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 Namita was examined on 28.01.08 before Sh V.K Bansal, Ld.ASJ and after putting certain questions Ld. ASJ has recorded his opinion that "After questioning the witness and seeing her gestures and considering her replies, I am of the opinion that the witness is not mentally fit. She is not able to answer the questions and give rational reply'. Her examination in chief was deferred. She was again examined State Vs.Rattan Mandal FIR no.403/07 Page No. 4 on 24.4.08 with the assistance of Ms. Inakshi Ganguli Thukral and Sh A Acharjee as witness understands Bengali. She has deposed that the accused present in the court committed the act of rape with her. She has pointed towards the accused by giving sign with the movement of her head. She has stated that she does not know the name of that boy. In cross examination she has stated that no other person had done the wrong act except the accused. She was living in Delhi when the accused committed wrong act with her. The accused has committed the wrong act during night. There was no other person when the accused has committed wrong act with her. Brother of the husband of her sister was at home on that day. At the time of committing the offence accused also uttered the words 'kaha bhaag rahi hai tu'. She was asked to see towards the accused but she has stated that she does not even want to see towards him. Before commission of this offence her parents had quarreled with the accused. Husband of her sister has good relations with her and he behave good with her.
9. PW2 HC Ramchander has deposed that on 21.05.07 he received rukka through Ct. Gulab sent by WASI Shanti on the basis of which he recorded FIR no. 403/07 and he proved State Vs.Rattan Mandal FIR no.403/07 Page No. 5 the copy of FIR Ex.PW2/A. In cross examination he denied the suggestion that FIR was registered ante time at the instance of mother of prosecutrix.
10. PW3 Smt. Laxmi has deposed that she has three daughters Anju, Namita and Kavita. She does not remember the date and month but last year in the month of Besakh accused Rattan Mandal committed rape with her daughter Namita Mandal, her daughter is mentally retarded. Accused Rattan Mandal is residing in her neighbourhood jhuggi. On that day light had gone. Her daughter started crying. She heard the cry and peeped from the window and saw accused committing rape with her daughter. She complained to the father of Rattan Mandal but he did not tell anything and express his inability. On the same day she went to the police post but police did not register the case. Later on her daughter felt pain in her stomach. She took her to the hospital where doctor told her that her daughter is pregnant. Doctor called media persons and thereafter she was taken to Safdarjung Hospital and later on her statement Ex.PW3/A was recorded by the police. After medical examination of her daughter Namita, doctor had given State Vs.Rattan Mandal FIR no.403/07 Page No. 6 papers which was seized by the IO. She further stated that accused Rattan Mandal was arrested from the garage in Srinivaspuri vide memo Ex.PW3/B and conducted his personal search vide memo Ex.PW3/C. She does not remember the date of birth of her daughter Namita. At the time of rape she was 12/14 years old. She was born in jhuggi and her birth certificate could not be prepared. In cross examination she has stated that she was 17 or 18 years old when she was got married to Ajit Mandal. Her first daughter named Anju is around 18 years of age. Namita was born after 7 years of birth of Anju. Namita was 12 years of age when she had her first menstruation. Now it is about 3 and half years since Namita had her first menstruation. Police was with her when accused Rattan Mandal was apprehended from Srinivaspuri area. Prior to incident, accused Rattan Mandal has never at any occasion taken her daughter Namita with him nor Namita went alongwith him on any occasion. Rattan Mandal is now 20 years of age. Presently her daughter Namita is in a normal state of health both physical and mind. Namita was found to have conceived and that conception was about a month old and it was got aborted after six or seven days of this incident. Her daughter Kavita is six years of age. Namita State Vs.Rattan Mandal FIR no.403/07 Page No. 7 was a little low mentally developed child but she denied the suggestion that she was involved in any affair with Rattan Mandal. She admitted that report was lodged with the police after one week when Rattan Mandal was got apprehended. When confronted with the FIR she admitted that report was lodged after 22 days. Sanjay Tiwari from NGO Chetna was with him when report was lodged. She has further stated that it is a fact that on the day Rattan Mandal has committed this wrongful act with her daughter they had tried to call a panchayat but nobody listen to her. She denied that she intended to get it settled in a panchayat that Rattan Mandal should marry her daughter Vol. she intended to convene panchayat to take up the issue but then father of Rattan Mandal declared that he had disowned Rattan Mandal and would not take any responsibility. Panchayat was not convened in such circumstances. She denied the suggestion that they wanted Namita to get married to Ratan Mandal and when it did not materialized they got Rattan Mandal booked falsely in this case. She denied that Namita is of 18 years of age. She further denied that Namita used to go with Ratatn Mandal on visits and it was in their notice and knowledge and she State Vs.Rattan Mandal FIR no.403/07 Page No. 8 had deposed falsely to implicate accused.
11. PW4 HC Ram Avtar is the duty officer to whom information was passed on by Ct. Ram Kishan regarding admission of Namita aged about 12 years in the hospital vide MLC no.5846/07. He recorded this information vide sr.no.13A and handed over the same to W/ASI Shanti. He proved DD no.13A as Ex.PW14/A.
12. PW5 Dr. Raghvender Kumar has deposed that he examined one Rattan Mandal on 22.5.07 and he proved his MLC Ex.PW5/A.
13. PW6 Ct.Gulab Singh has deposed that he took rukka to PS for registration of the case on the complaint recorded by ASI Shanti. Site plan was prepared in his presence. He has further deposed that on 2.5.07 Smt. Laxmi came to PS and informed that accused Rattan Mandal who had committed rape on her daughter, was a rickshaw pullar and living in Srinivaspuri, operating the rickshaw garage and could be apprehended. He alongwith IO and complainant reached there and on identification of complainant State Vs.Rattan Mandal FIR no.403/07 Page No. 9 accused was arrested vide memo Ex.PW3/B and his personal search was conducted vide memo Ex.PW3/C. Accused was interrogated and he made confessional statement Ex.PW6/A. Accused was taken to AIIMS for medical and after medical two sealed parcels were collected from AIIMS which were seized vide memo Ex.PW6/B. In cross examination he has stated that the exhibits were sealed by the doctor in his presence. One parcel was the cloth parcel and other was glass jar. He admitted that as per the disclosure of accused he had been in the physical relationship with the girl for the last two to three months. In his presence IO did not inquire from the girl if she had disclosed the earlier acts sexual intercourse committed by accused upon her vol. the girl was mentally deranged case. He does not know if the IO got the girl medically examined that she was suffering mentally. The girl suffering mentally was known to him when the girl talked upon.
14. PW7 Ct. Praveen has deposed that he took the exhibits from malkhana and deposited the same in CFSL Kolkata.
State Vs.Rattan Mandal FIR no.403/07 Page No. 10
15. PW8 Dr. Basil has deposed that she identified the MLC prepared by Dr. Nidhi which is Ex.PW8/A. She has stated that on 21.5.07 victim Namita was examined and her hymen was not intact but no external injury was found. Urine Pregnancy Test was found positive. On 28.5.07, on the basis of ultra sound victim was provided medication and on 11.6.07 her pregnancy was found terminated. The medical examination reports are X1 and X2. In cross examination she has stated that in India the age of puberty is usually 14 years but it may start at the age of 12 dependent upon circumstances. It is true that as per medical report Ex.PW8/A the victim girl had her first menstruation 4 years back. Her LMP before this examination was 4.4.07. Urine Pregnancy Test can be taken up after a week of month (should be after a month) of the LMP . Termination of pregnancy is permissible since its inception till 20 weeks.
16. PW9 Sanjay Kumar Tiwari has deposed that on 21.5.07 he received a called from dispensary of Kalkaji that young girl had a problem of stomach pain and that she is pregnant. He reached there. Namita was referred to AIIMS. He talked to the victim girl but she was not responding with State Vs.Rattan Mandal FIR no.403/07 Page No. 11 any reply and reacting in a different manner and all his questions were being relied by her mother. At AIIMS the pregnancy was confirmed by the doctor. Police came at the hospital and made enquiries and recorded the statement of Laxmi, mother of the victim girl which is Ex.PW3/A on the basis of which the FIR was registered. Pregnancy was terminated and their organisation was in constant touch. In cross examination he has stated that mother of the victim had given the history to the doctor at the time of preparation of MLC. He admitted that on the day of abortion he was present in the hospital. However, abortion was not concluded under his supervision. It is correct that he has handed over the documents of abortion to IO. Statement of Laxmi was recorded in the PS and statement of victim was not recorded as she was not in a position to give statement. The wearing clothes of the victim were seized in the hospital. He admitted that Laxmi being Bangla National was unable to converse in Hindi comfortably and finding it quiet difficult to converse in Hindi. His assessment regarding age of victim girl was that she was around 12 years of age.
17. PW13 W/ASI Shanti has deposed that on 21.5.07 on State Vs.Rattan Mandal FIR no.403/07 Page No. 12 receipt of DD no.13A she had gone to AIIMS Hospital and received MLC of prosecutrix Namita. She was told that Namita is not mentally well. She recorded the statement of Laxmi Ex.PW3/A, made her endorsement Ex.PW10/A and got recorded the FIR through Ct. Gulab. She recorded the statement of prosecutrix. She seized the parcel given by doctor through seizure memo Ex.PW10/B. She prepared the site plan. She further stated that on 22.5.07 accused was arrested from near the bus stand from Bunty Rickshaw Garrage Srinivaspuri vide arrest memo Ex.PW3/B and his personal search was conducted vide memo Ex.WP3/C. She also deposed that accused made disclosure statement which is Ex.PW6/A. He got examined the accused through Ct. Gulab and seized two parcels vide memo Ex.PW6/C. She has further stated that sealed parcels were sent to FSL for opinion result of which is Ex.PW10/C. In cross examination she has stated that it is correct that she received the information first time over telephone. She received Ex.PW4/A in the hospital. It is correct that she had proceeded to AIIMS Hospital on receipt of DD no.13A vol. she had received the same over telephone. She admitted that she did not move any application for checking the mental condition of State Vs.Rattan Mandal FIR no.403/07 Page No. 13 prosecutrix. She did not move any application in writing for conducting ossification test of the prosecutrix. She had asked the reason for lodging the complaint as such delayed stage then complainant replied that due to public shame, she had not reported the matter to the police earlier. It is correct that there is only one room in the jhuggi when the occurrence took place. There is no partition in the room. There is a room and one window in that jhuggi. She had not asked the mother of the prosecutrix for recording her statement u/s 164 Cr.P.C. IT is correct that prosecutrix has admitted in her statement that she was having physical relation with accused since last about 2 and half month. Lastly about 22 days back. She admitted that the abortion of prosecutrix was not done in her presence.
18. I have also considered the defence evidence adduced on behalf of the accused. DW1 Rattan Mandal has deposed that on 30.4.07 he was selling gutka and cigarrettes on rehri near Jhuggi no. S-4/A338 Okhla-II and he know accused who used to ply rickshaw from 8 a.m to 7/8 p.m and he has been falsely implicated in this case. In cross examination he has admitted that he never made any State Vs.Rattan Mandal FIR no.403/07 Page No. 14 complaint before court, IO or senior police officers that accused has been falsely implicated in this case. He admitted that he does not know in which area accused ply rickshaw in day time and who visited the jhuggi of prosecutrix on 30.4.07.
19. DW2 Smt. Gaya Shree has deposed that accused Rattan Mandal was arrested by the police in her presence from the road near his house. She has deposed about visiting terms of accused to the house of prosecutrix. She has further deposed that at the time of incident accused was pulling cycle rickshaw somewhere else and accused came at 9 p.m. The prosecutrix was aged about 18/19 years. In cross examination she has admitted that she does not know what was going on outside her jhuggi in the locality. She does not guard outside the house of Naumi prosecutrix. Her jhuggi is situated inside the gali and the jhuggi of prosecutrix is at the corner. She did not file any complaint regarding falsely implication of accused.
20. DW3 Dilip Mandal has deposed that accused has been falsely implicated by the girl in this case. Accused used State Vs.Rattan Mandal FIR no.403/07 Page No. 15 to leave jhuggi at 8 am and come back at 9 p.m. On 30.4.07 accused was present in Srinivaspuri in a hotel and taking lunch with him at about 1 p.m and he was arrested by the police. The girl Namita looks good and used to speak in good language and she is mentally OK. Her age is about 20 years. In cross he has stated that he does not know in which year Namita was born. The age of mother of Namita is about 40 years. He does not know what happened on 30.4.07. He did not see anything with his own eyes. He has not made complaint to any authority regarding falsely implication of accused.
21. Analyzing the testimonies of witnesses, it is revealed that PW1 Namita is the prosecutrix and PW3 Laxmi is her mother and complainant in this case. PW9 Sanjay Tiwari is the witness from NGO. PW1&3 are the main star witnesses of the prosecution. Infact they are the backbone of the prosecution case. The testimony of PW1 prosecutrix is very relevant in this case because she is the victim. Before discussing the testimonies of star witnesses of the prosecution I would like to reproduce the definition of 'rape' because this case was registered u/s 376 IPC.
State Vs.Rattan Mandal FIR no.403/07 Page No. 16 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 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.
22. 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. Coming to the testimonies of PW1 &3 it is revealed that PW1 prosecutrix could not tell her age in the court and PW3 has stated the age of the State Vs.Rattan Mandal FIR no.403/07 Page No. 17 prosecutrix at 12/14 years. There is no authentic proof available on file to ascertain the age of the prosecutrix. In the prescription slip of AIIMS Hospital as well as in MLC the age of the prosecutrix is mentioned as 12 years. In MLC Ex.8/A it is mentioned that mensuration started 3 years back and as per deposition of PW3 about age of prosecutrix, it started at the age of 9/11 years. PW8 who is a doctor has stated in cross examination that in India age of puberty is usually 14 years but it may start at the age of 12 depending upon circumstances. So, even at the age of 11 years the mensuration can start. But age of 9 years is too low. PW3 at the time of recording her statement in the court has stated her age as 35 years and she was married when she was 17 or 18 years of age. She was examined in the court on 27.11.08. So, she was married 17/18 years prior to recording her statement in the court. She has deposed the age of her first child Anju as 18 years as on 27.11.08. It can be taken that she gave birth to first child after one year of marriage. She further stated in cross examination that Namita was born after seven years of Anju. It is clear that Namita was aged about (18-7) = 11 years of age. However, since there is no proof in this respect nor any ossification test was conducted, it can be State Vs.Rattan Mandal FIR no.403/07 Page No. 18 safely held that the prosecutrix was below 16 years of age as on the date of her rape.
23. In this case PW3 Smt. Laxmi is the mother of the prosecutrix and she has stated that her daughter started crying. She heard the cry and peeped from the window and saw accused committing rape with her daughter. Later on her daughter felt pain in stomach and she took her to hospital where she was told that her daughter is pregnant. She proved her statement Ex.PW3/A. PW1 Namita who is the prosecutrix was examined in the court on 28.01.08 and on the said date it was observed by the Ld.ASJ that :
'After questioning the witness and seeing her gestures and considering her replies, I am of the opinion that the witness is not mentally fit. She is not able to answer the questions and give rational reply'.
24. The prosecutrix was again examined on 24.04.08 with the assistance of Ms. Inakshi Ganguli Thukral and Sh A.Acharjee since she understand only Bengali Language and on the said date she has stated that accused present in the court committed the act of rape with her. She has pointed towards the accused by giving sign with the movement of her head. She does not know his name. So, both the PW1 State Vs.Rattan Mandal FIR no.403/07 Page No. 19 who is prosecutrix in this case as well as PW3 who is mother of prosecutrix and complainant have deposed that the accused present in the court has committed rape upon PW1 Namita. I have also considered the cross examination of PW1 and she has even stated in cross examination that at the time of committing offence, the accused also uttered the word 'kaha bhaag rahi hai tu'. From this deposition it is clear that she was not the consenting party in the commission of rape. It has also been stated by her that no other person had done the wrong act except the accused. It has come in cross examination that witness PW1 was asked to see towards the accused present in the court and she has stated that she even does not want to see towards him. It further establishes that accused has done such an act that the witness does not even want to see his face and she is scared of him. It has come in the evidence of PW3 as well as of PW8 Dr. Basil that prosecutrix Namita has even conceived and her abortion was got done through medication and on 11.6.2007 her pregnancy was found terminated. As alleged the rape was committed on 30.4.07 and on 28.5.07 prosecutrix was given medicine for termination of pregnancy. Considering the dates it seems that the prosecutrix got pregnant after State Vs.Rattan Mandal FIR no.403/07 Page No. 20 commission of rape by the accused. Ld. defence counsel has further put question to PW3 regarding holding of panchayat and settle the dispute. But no document in respect has been brought on record by the defence. Also PW3 has volunteered that she intended to convene panchayat to take up the issue but the father of accused Rattan Mandal declared that he had disowned him and he will not take any responsibility. Accused Rattan Mandal has not examined his father to disprove this fact. It create doubt on the character of accused because no father would disown his son unless and until there is something wrong or untowards incident. It has further come in evidence that prosecutrix was mentally retarded. Even the Ld. ASJ, at the time of recording her statement has observed that she is not mentally OK. As per the hospital record i.e. MLC as well as prescription slip it is mentioned 'mentally retarded child'. PW3 in cross examination has stated that presently her daughter Namita is in normal state of health both physical and mind. It seems that at the time of her examination on 28.1.08 she was not mentally OK but when she was examined on 24.4.08 she supported the case of the prosecution and assigned the role of accused. There is no evidence on file to show whether State Vs.Rattan Mandal FIR no.403/07 Page No. 21 she was treated or not or as to when she got mentally fit. Even if she was mentally retarded, it cannot be said that she was not raped when she has assigned the role in this respect to accused. On perusal of her entire cross examination of PW1 & 3 it is revealed that their testimonies could not be shattered by the Ld. defence counsel. Even Ld. defence counsel has not put any suggestion to PW1 as well as PW3 that accused has not committed rape upon her. So, I am of the view that the prosecution has established beyond any reasonable doubt that prosecutrix PW1 was raped by accused Rattan Mandal on 30.04.07. However, I have found some contradictions in the statements of PW1&3 but those are of trivial nature which can be natural and possible due to lapse of time and these contradictions can be ignored rightly by the court in view of the observation of case law Asha @ Ashananad & Ors.etc. Vs. The State of Rajasthan, 1997 (2) CC Cases SC 155. In view of the corroborative and supportive evidence of PW1&3 I have also considered the testimonies of other official witnesses in this case.
25. PW2 HC Ramchander is the FIR recorder and he proved copy of FIR Ex.PW2/A. His testimony has been State Vs.Rattan Mandal FIR no.403/07 Page No. 22 corroborated by PW6 Ct. Gulab Singh who brought rukka to him as well as PW10 W/ASI Shanti who sent rukka for registration of FIR. In cross examination he denied that FIR was registered ante time. I have also perused the FIR. The present case incident took place on 30.04.97 and FIR was registered on 21.05.07. There is delay of about 22 days in registration of FIR. So, I have considered the testimony of PW3 who has stated that on the same day she went to PS but her complaint was not registered. Later on her daughter felt pain in her stomach and she took her to hospital where doctor disclosed about her being pregnant. She took her daughter to hospital on 21.5.07 as evident from the prescription slip. No doubt that there is delay in recording the FIR in the present case. But in the Social Indian Set-up it is generally seen that the complaints about the Sexual Offences are not made due to fear of social stigma. PW3 in her statement Ex.PW3/A has also stated that 'maine lok laaj ke karan ye baat kisi ko nahin bataye thi'. PW3 took her daughter to hospital on 21.5.07 and then she came to know that her daughter is pregnant. It seems that before this she was not interested in making complaint due to social stigma but when on 21.5.07 she came to know that her daughter is State Vs.Rattan Mandal FIR no.403/07 Page No. 23 pregnant, she immediately made complaint to the police. 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.'
26. In my opinion also the prosecution has explained the delay in lodging the FIR in the present case in hand and the delay in the present case will not affect the case of the prosecution in any way.
27. PW4 HC Ram Avtar is a formal witness who recorded DD no.13A and he proved the copy of the same as Ex.PW4/A. PW7 Ct. Praveen is also a formal witness who took the exhibits to CFSL and deposited there. PW9 Sanjay Kumar Tiwari is the witness from NGO and he reached in the hospital after receiving the information. He has also stated that pregnancy of victim was got terminated and their association was in constant touch of that process. He has corroborated the version of PW1&3 regarding medical examination of PW1. PW10 W/ASI Shanti is the IO of this case State Vs.Rattan Mandal FIR no.403/07 Page No. 24 and PW6 Ct.Gulab was with her during investigation. Both have corroborated the version of each other regarding receipt of DD no.13A by PW10 and reaching in the hospital. Both have further stated that PW10 recorded the statement of Laxmi Ex.PW3/A on which the present case was registered. PW6 as well as PW10 have proved the arrest memo of accused Rattan Mandal Ex.PW3/B and his personal search Ex.PW3/C. The version of PW6&10 in this respect has also been corroborated by PW3 Laxmi who is mother of the complainant. All these witnesses have stated that accused was arrested from Srinivaspuri from Bunty Rickshaw Garrage. So, the arrest memo as well as personal search memo has successfully been proved by the prosecution. PW6 as well as PW10 have further proved the disclosure statement of accused PW6/A. Ld. Defence counsel during the course of arguments has stated that accused has stated in his disclosure statement that accused used to commit sexual intercourse with prosecutrix from two months prior and they had relation even before the present case date. The prosecutrix has denied that accused has committed sexual intercourse with her prior to the present case and she has assigned specific role to accused Rattan Mandal. PW10 has State Vs.Rattan Mandal FIR no.403/07 Page No. 25 proved on record the FSL result Ex.PW10/C. I have also perused the same. AS per FSL result blood was detected on Ex.3 i.e.blood gauze and semen could not be detected on Ex.1&2 i.e.vaginal smear slid and underwear. In this case no cloth of prosecutrix has been seized. It is admitted case of the prosecution that FIR was lodged after 22 days of the incident. So, it seems that by the time FIR was lodged, all the wearing clothes were washed away or the sample got putrified. On the other hand it has been established by the prosecution that prosecutrix was pregnant. So, corroboration of FSL result is required. IO has stated in her cross examination that she did not get the statement u/s 164 Cr.P.C recorded. As far as the recording of statement u/s 164 Cr.P.C is concerned I do not find that there is any mandatory provision in law which warrant recording of statements of the prosecutrix u/s 164 Cr.P.C in each and every case. It has been admitted by PW10 IO in cross examination that prosecutrix has admitted in her statement about having relations with accused since last about 2 and half month and lastly about 22 days back. It is evident from the statement recorded in the court that she has not accepted this version. It is well settled that the statement recorded u/s 161 Cr.P.C State Vs.Rattan Mandal FIR no.403/07 Page No. 26 has no value and the deposition made by the witness in the court has to be considered for just decision of the case.
28. I have also considered the evidence adduced on behalf of the accused. DW1 Ratan Mandal has stated that accused used to ply rickshaw from 8 am to 7/8 pm and he has been falsely implicated in this case. It is revealed from his cross examination that he has not made any complaint about his being falsely implicated in this case. From remaining cross examination it can be said that when he does not know as to in which area accused used to ply rickshaw, he cannot say whether he committed rape upon prosecutrix on 30.4.09. DW2 has also stated that at the time of incident accused used to pull rickshaw somewhere else. She admitted that she does not guard outside the house of prosecutrix. When she does not know what was going outside her jhuggi in the locality it is not understandable as to how she has stated that accused has been falsely implicated in this case. DW3 has stated that on 30.4.07 accused was present in Srinivaspuri at about 1.00 p.m and he was arrested by the police. In this case the accused was arrested on 22.5.07. So, this witness is deposing falsely on this aspect. On State Vs.Rattan Mandal FIR no.403/07 Page No. 27 perusal of the cross examination of DW1,2&3 it is revealed that their testimonies have been completely shattered by the Ld. APP for the State and nothing in favour of accused come out from their testimonies.
29. I have also perused the medical evidence. PW5 Dr. Raghvender Kumar has examined accused Rattan Mandal and prepared his MLC Ex.PW5/A. I have also perused the MLC. It has been mentioned in the MLC that 'there is nothing to suggest that Rattan Mandal is incapable for performing sexual intercourse'. PW8 Dr. Basil has proved MLC of prosecutrix Ex.PW8/A prepared by Dr. Nidhi. I have also perused the MLC. It is recorded that hymen of victim was not intact but there was no other external or external injury found on her person. She was advised for X-ray. It is stated in case law Manga Vs. State of Haryana, AIR 1979 SC 1194 that :-
'Where there was an eye-witness evidence as to the time and date of the occurrence of rape and the doctor examining the victim of the fact found that 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'.
30. It is mentioned in the MLC that no external injuries State Vs.Rattan Mandal FIR no.403/07 Page No. 28 were found. But the doctor has examined her after 22 days of incident. So, the absence of any injuries on the person of complainant may not by itself discredit the statement of the prosecutrix.
31 In view of the above discussions of all the Pws, I am of the view that the prosecutrix PW1 has assigned the role to accused Rattan Mandal that he has committed rape upon her. Her version has further been corroborated by her mother PW3 Laxmi. It has further been strengthened by the medical evidence. So, the prosecution has successfully established its case against the accused.
32. 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 Rattan Mandal. I therefore, hold accused Ratttan Mandal guilty for the commission of offence punishable u/s 376 IPC and convict him thereunder. Announced in the open Court on 17.11.09.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court-New Delhi and South East District) State Vs.Rattan Mandal FIR no.403/07 Page No. 29 NEW DELHI State Vs.Rattan Mandal FIR no.403/07 Page No. 30 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.103/09 FIR No.403/07 U/s 376 IPC PS Okhla Industrial Area State Vs. Rattan Mandal s/o Haren Mandal Jhuggi No. S-14 A-380 JJ Rajiv Camp, Okhla Industrial Area Ph.II New Delhi ORDER ON THE POINT OF SENTENCE Accused Rattan Mandal has been held guilty for the commission of offence punishable u/s 376 IPC and convicted thereunder vide Judgment dated 17.11.09.
2. I have heard the Ld. counsel for the convict as well as 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 25 years and he is the first offender but his wife has left him and went away to her parental house. 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 40 years and his mother is already expired. He has two more brothers aged State Vs.Rattan Mandal FIR no.403/07 Page No. 31 about 7 and 9 years. It is further submitted that accused is languishing in jail for last 3 years. 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 rape upon a mentally retarded minor girl who does not understand the ups and downs of the society.
4. In view of this the convict 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 one month.
6. The benefit of sec.428 Cr.P.C be given to the convict. 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 20.11.09.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court-New Delhi and South East District) NEW DELHI State Vs.Rattan Mandal FIR no.403/07 Page No. 32