Delhi District Court
State vs : Mithu Rai on 24 September, 2010
IN THE COURT OF SH. R.B. SINGH: ADDL.SESSIONS JUDGE
03-OUTER DISTRICT, ROHINI COURTS : DELHI
SC No. : 191/09
FIR No. : 447/07
PS : Adarsh Nagar
U/S : 376 IPC
State V/s : Mithu Rai
Date of Institution : 25.10.2007
Date of decision : 24.09.2010
JUDGMENT
1. Briefly stated, the prosecution case is that on 12.09.07 at about 10.00 PM at Rented Room, Pashe ki Dairy, H. No. 205/10, Azad Pur, Delhi within the jurisdiction of PS Adarsh Nagar, accused Mithu Rai committed rape upon the person Khushboo D/o Sh. Kedar Bahadur, aged 4 years and he thereby committed an offence punishable U/S 376 (2) (f) IPC and within the cognizance of this court. With this allegation, the accused was sent for trial.
2. After hearing arguments on charge from Ld. Counsel for the accused and Ld. Addl. PP for the State, a charge U/S 376(2)(f) SC No. 191/09 1/39 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
3. In support of the case, the prosecution has examined 14 witnesses in support of its case.
4. PW1- Baby Khushboo D/o Sh. Kedar Bahadur has deposed that her name is Khushboo. His father's name is Kedar Bahadur. She resides at Azadpur. (The witness was asked some questions to determine her capacity to logically understand the questions and give coherent answers. After putting the questions and hearing the answers from the child witness, court has come to the conclusion that she can understand the questions and logically answer the same. As she is below 12 years of age, her statement has been recorded without oath). She further deposed that she does not remember the date, month and year, however on one day accused Mithu who was present in the court on that day (correctly identified by the witness) who was working with Bhains Wala near our house, called her when she was playing with other children. She earlier knew the accused Mithu. He took her to his house. He gave her some money and put his finger on her private part (witness says "PESHAB KARNE WALI JAGAH PAR HATH DALA"). Blood started oozing from her private parts (PESHAB KARNE WALI JAGAH). He removed her underwear.
SC No. 191/09 2/39He also removed his clothes. After putting his finger on her private parts put his urinating part into her urinating part and committed GALAT KAAM (APNA PESHAB KARNE WALA HAMARI PESHAB KARNE WALI JAGAH MEIN DALA).
Thereafter, accused gave her money. She told this fact to Laxmi Didi. Her father cleared the blood stains with water. She was taken to hospital, Jahangirpur where she was medically examined. At the time of incident she was wearing frock and underwear. Her frock was sealed by the doctor at the time of her medical examination. Her statement was also recorded by Ld. MM. Police Wali Aunty made inquiry from her. She stated that she can identify the frock and underwear which she was wearing at that time. MHC(M) PS Adarsh Nagar produced one sealed pulinda duly sealed with the seal of FSL, Rohini, Delhi. It was opened and contained one baby frock in black colour and shown to her and she has correctly identify the same frock which she was wearing at time of incident. The said frock is Ex.P1. MHC(M) PS Adarsh Nagar produced another sealed pulinda duly sealed with the seal of FSL, Rohini, Delhi. It was opened and found containing one chaddar (bed sheet) and baby underwear of light grey colour. Underwear shown to her and she correctly identified the same which was wearing at time of incident. The said undewear is Ex.PW.P2.
SC No. 191/09 3/395. In her cross examination, she further deposed that her name is Khushboo and do not study. She do not know the house of the children with whom she was playing on the day of incident. It was day time when she was playing. She states that she had already taken meal before she started playing on that day.
She was asked some questions which are as follows:
Q: At what time did you take your food on that day before you started playing with other children?
A: She has not replied. (Court observation). The concept of time is not expected from a child witness.
Q: Where were you playing on that day? A: NEECHE. We reside on upper floor of the house. Q: What your father does? A: Chowkidari. Q: Whether your mother is alive? A: Yes. Q: What your mother does? A: GHAR PAR RAHTI HEIN.
Her mother, father, Laxmi Didi and Heena Didi reside with her at her house. Mummy cook food. On that day her mother had given her food. When she had taken food, her papa was there. After taking meal she had gone for play. She was not playing in the room below her house but she was playing in street (gali). She also to go to the house of accused-Mithu. She was further asked some SC No. 191/09 4/39 more questions as follows:
Q: Had you gone to the house of accused-Mithu on that day?
A: (The witness has nodded in positive). Q: At what time did you go to the house of accused-Mithu? A: I can not say (Court Observation : It appears natural that the child witness is not understanding the concept of time). Q: How did accused-Mithu take you to take his house on that
day either by taking you in lap or by holding your hand?
A: MUJHE PAKAD KE LEKER GAYE THE.
Q: Whether there are other houses built between your house
and the house of Mithu?
A: NAHI PATA.
Q: When Mithu was taking you to his house did anybody
else met you on the way?
A: No.
Nobody has seen her when she was taking away by the accused-Mithu. Children who were playing with her had not gone to the house of accused-Mithu. The children who were not playing with her had not stopped her for going to the house of accused- Mithu. It is wrong to suggest that she is deposing falsely. The house of accused Mithu is near her house. Mithu uncle had not beaten her or threaten her. One Rupee which was given by accused-Mithu to her, was given by her to her mummy, later on. She did not used to go to the house of accused-Mithu for playing. There are no children SC No. 191/09 5/39 in the house of accused-Mithu. Mithu uncle did not come to our house for taking tea etc. She had accompanied the police aunty. Her mother and father did not accompany with her. Her Laxmi Didi had accompanied with her to the hospital with the police. It is wrong to suggest that her mother, father did not accompany her to the hospital with police because she had told a wrong story about incident. It is wrong to suggest that she did not visit the house of accused-Mithu on the date of incident. It is wrong to suggest that MITHU NE APNA PESHAB KARNE WALA HAMARI PESHAB KARNE WALI JAGAH MEIN NAHIN DALA THA. She had told the incident to her father. Her father did not ask from accused-Mithu in her presence. It is wrong to suggest that she did not tell to her father about the incident because no such incident had taken place. It is wrong to suggest that since she was not taken to the house of accused Mithu, therefore, she was not able to tell about the things of his house. It is wrong to suggest that her sister has got a false case registered against accused or that she is stating falsely at the time of instance of her sister.
6. PW-2 Kumari Laxmi has deposed that baby Khushbu is her younger sister. She is about five year of age. She is working as maid in the nearby flats. On 12.09.07, she along with her family were residing at H.No. 205/10, Pase Ki Dairy, Azadpur, Delhi and on that day at about 10.00 PM when she was coming to SC No. 191/09 6/39 her house after finishing her work, she found her sister Khushbu present at her house. She noticed blood oozing out from her vagina. Khushbu told her that accused Mithu (correctly identified by the witness) who is present in the court who was working at Pashe Ki Dairy, Azadpur situated on the ground floor took her to his room and comitted galat kam with her and she also told her that Mithu/accused called her on the pretext of giving Rs. 2/- to her. Khushbu was carrying her underwear in her hand at that time as the same was washed by her father. Khushbu was weeping at that time. She told this fact to one Lal Bahadur who is known to them, who is residing near their house. He informed the police in this regard. Thereafter, police from PS Adarsh Nagar reached at their house. Her sister Khushbu was taken to BJRM hospital by police in her presence where she was medically examined and her frock was sealed by the doctor at that time. Thereafter, she along with Khushbu and police officials came back to their house where IO-W/ASI Pushpa Rani who met them in the hospital, recorded her statement Ex.PW2/A which bears her signature at point A. Thereafter when IO was conducting proceedings at their house, accused Mithu also reached in front of their house and on the pointing out of Baby Khushbu and herself accused Mithu was arrested by the IO in this case vide arrest memo Ex.PW2/B which bears her signature at point A. personal search of the accused was also taken vide memo Ex.PW2/C which bears her signature at SC No. 191/09 7/39 point A. Accused was interrogated by the police in this case. IO prepared site plan of the place of occurrence at the instance of Baby Khushbu in her presence. Accused was also apologizing us before the police for his said act. The prosecutrix was wrapped in the chadar when bleeding was going on at their house and blood also fallen on the same due to this fact. She handed over the blood stained chadar and underwear of her sister Khushbu which were taken into possession by the IO with the seal of PK and were taken into possession vide memo Ex.PW2/D which bears her signature at point A. During the course of investigation the statement of her sister Khushbu was also recorded by Ld. MM. The bone age X-ray test of her sister was also conducted at BJRM hospital during course of investigation. Police has also recorded the statement of her sister Khushbu. When white colour dirty chadar blood stained which was already taken out from the pulinda along with the underwear of prosecutrix shown to the witness, then witness correctly identified the same chadar in which the prosecutrix was wrapped and the underwear which was in the hand of Khushbu and she was wearing at the time of incident. Chadar is Ex.P-3 and baby underwear is Ex.P-2. When a baby frock which is Ex.P-1 is shown to the witness, then witness correctly identified the same which baby Khushbu was wearing at the time of incident.
In her cross examination she deposed that she is 24 hours SC No. 191/09 8/39 maid. She usually come after gap of one month for giving money at her house which she used to receive from her employer where she used to work as maid for 24 hours. Prior to date of incident, she had not visited her house for many days. On that day she had come only on receiving information on phone by someone. She worked at Paschim Vihar. She has no identify card to show as she worked as maid. She was paid Rs. 2,000/- per month by her employer. She worked with Aarti Didi at house no. JP-2 in Paschim Vihar. It is wrong to suggest that she had given wrong address of her employer in Paschim Vihar. It is correct that she had not informed the police at the time of FIR that she was intimated over phone about the incident. When she came back to house only Khushbu was in house. Her mother had gone for filling the gas. Her father was also not present at house. He came subsequently. Her father is watchman in factory. Her father used to work in the morning and comes back in the evening. At the time of incident, the duty hours of her father was 8.00 am to 5.00 pm. He used to work in a factory at Wazirpur. The distance from her house to Wazirpur is very short. She did not ask Baby Khushbu about the time incident. When they had taken Baby Khushbu to the hospital with police, her father and mother had reached back home. It is wrong to suggest that her mother and father did not go to PS as no such incident had taken place. It is wrong to suggest that her mother & father did not accompany to SC No. 191/09 9/39 the PS as she was lodging a false complaint against accused Mithu. It is wrong to suggest that she is deposing falsely. When she went to hospital the police madam, baby Khushbu and Lal Bahadur were with her. It is wrong to suggest that she had got a false case registered against Mithu due to enmity.
7. PW-3 Dr. Pooja, Sr. Gynae has deposed that she had seen the MLC No. 22277 of Khushbu D/o Kedar Bahadur, aged about 4 years female. The patient was brought to hospital with alleged history of rape on 12.09.07. Initially the patient was examined by the CMO and thereafter, she was referred to Sr. Gynae for further opinion and thereafter, patient was examined by Dr. Indira, Sr. Gynae. There was not history of changing clothes and taking bath after the incident. On local examination, there was no external injury seen on face, neck breast (chest), abdomen, thigh, back and upper and lower limb. Hymen torn, margins were fresh and was not bleeding at the time of examination. Slight bleeding was present on perineal and vulval region. No fresh and active bleeding was present at the time of examination. Vaginal laceration was present which was not bleeding. Swab was taken from perineal and vulval region which was sealed and handed over to the IO. A swab was also taken from vagina and it was also sealed and handed over to IO. Blood stained frock of patient was taken, sealed and handed over to IO. The finding of Dr. Indra on SC No. 191/09 10/39 the MLC is Ex.PW3/A which bears signatures of Dr. Indira at point A. She identified her handwriting and signatures as she had seen her while writing and signing during the course of her duties.
In her cross examination, she has further deposed that she has no personal knowledge about this case and this record was not prepared in her presence. Dr. Indira is no longer available in the services of the hospital and her present whereabouts are not known. (Ld. Defence counsel has objected to the exhibition of the MLC on the ground that the present witness was not the author of the same. However, the objection is turned down as it has already come in the evidence of the witness that the concerned doctor whose evidence would have been of the nature of primary evidence is not available and the present witness claims to be acquainted with the handwriting and signatures of the said doctor, so the deposition of the present witness is clearly admissible as secondary evidence.
8. PW-4 Dr. Shipra Rampal, Radiologist has deposed that she examined the X-ray plate of Khushboo aged about 4 years, female vide MLC No. 22277 and X-ray plate No. 2762 dated 13.09.07 for bone age estimation. After examination of X-ray plate, she opined the estimated bone age of the patient to be between 5 to 6 years on that day. Her detailed report is Ex.PW4/A which bears her signatures at point A and four X-ray plates are SC No. 191/09 11/39 collectively Ex.PW4/B.
9. PW-5 HC Balraj Singh has deposed he was posted as DO at PS Adarsh Nagar from 1.00 AM (midnight) to 9.00 AM on 13.09.07. On that at about 2.15 AM, he received a rukka from Ct. Ram Karan and on the basis of which and on his instructions, the present FIR No. 447/07 U/S 376 IPC was registered. After registration of FIR, he handed over copy of FIR to Ct. Ram Karan and original rukka for handing over to W/ASI Pushpa for further investigation. Copy of FIR is Ex.PW5/A which bears his signature at point A. In this regard, he also registered DD no. 30A, the copy of which is Ex.PW5/B. In this regard, he also made endorsement on the rukka. Same is Ex.PW5/C which bears his signatures at point A.
10. PW-6 Ct. Shriniwas has deposed that he was posted as constable at PS Adarsh Nagar on 01.10.07. On that day on the instructions of IO, he took eight sealed pulindas, out of which one was sealed with the seal of PK and others were sealed with the seal of BJRM hospital, along with sample seal and FSL form from MHCM for depositing in the FSL Rohini vide RC No. 121/21/07. He accordingly deposited the same in the FSL Rohini and thereafter, deposited the receipt with the MHCM. The sealed pulindas remained intact during his custody. IO recorded his SC No. 191/09 12/39 statement.
11. PW-7 HC Mukesh Kumar has deposed that he was posted as MHCM at PS Adarsh Nagar on 13.09.07. On that day, IO- W/ASI Pushpa had deposited three parcels sealed with the seal of MS BJRM hospital containing vaginal swab, perenial swab, frock of Khushboo and sample seal of BJRM hospital. On the same day, IO had also deposited three parcels sealed with the seal of MS BJRM hospital containing undergarments, blood stained gauze, blood sample of accused and sample seal of MS BJRM hospital. IO had also deposited one pulinda sealed with the seal of PK containing one blood stained dirty bedsheet, one blood stained and washed white colour underwear. Entry in this regard was made by him at Serial No. 5089. On 14.09.07, IO had also deposited one parcel sealed with the seal of MS BJRM hospital containing blood sample of khushboo along with sample seal. On the instructions of IO, the sealed exhibits along with sample seal and FSL form were handed over to Ct. Sriniwas for depositing it in FSL Rohini vide RC no. 121/21/07 and after depositing the same, he had deposited the receipt with him. On 3.09.08, Ct. Subhash deposited the sealed parcels along with the FSL result. The copy of register no. 19 is Ex.PW7/A and Ex.PW7/B. The copy of RC register is Ex.PW7/C. The sealed pullindas remained intact during his custody.
SC No. 191/09 13/3912. PW-8 HC Surender Kumar has deposed that he was posted as duty officer from 5.00 PM to 1.00 AM(midnight) at PS Adarsh Nagar on 12.09.07. On that day at about 10.30 PM, he recorded DD No. 25A regarding the rape and after recording, he handed over the copy of the same to SI Ram Kumar for necessary action. On that day, he also recorded DD no. 26A vide which ASI Pushpa was sent at the spot for further investigation regarding DD no.25A. Copy of same are Ex.PW8/A and Ex.PW8/B.
13. PW-9 W/ASI Pushpa has deposed that he was posted as ASI at PS Adarsh Nagar on 12.09.07. On that day at around 10.40 PM, she received the information from the PS regarding DD no. 25A which is regarding the rape and thereafter, she reached at the spot ie. House No. 205/10, dairy of Pashe, Azadpur Delhi where she met SI Ram Kanwar and Ct. Ram Karan who had already reached there after receiving DD no. 25A. On the spot, she met prosecutrix Khushbu aged around 4 years, D/o Kedar Bahadur along with her sister Laxmi. SI Ram Kanwar handed over to her the copy of DD no. 25A and left the spot. Thereafter, she along with Ct. Ram Karan took Khushu along with her sister Laxmi to BJRM hospital for medical examination. Khushbu was medically examined and doctor handed over to her three parcels sealed with the seal of MS BJRM hospital alledged to be containing vaginal SC No. 191/09 14/39 swab, paranial swab, frock of prosecutrix Khushbu along with sample seal which she seized vide memo Ex.PW9/A which bears her signature at point A. The X-ray of Baby Khushbu was also got conducted for the bone age estimation. She collected the MLC of the prosecutrix and thereafter, they came back at the house of Khushbu and she recorded statement of Laxmi which is Ex.PW2/A and attested her signatures at point X. From the statement of Laxmi and other inquiry, she came to know that accused Mithu Rai S/o Shiv Mandir Rai had committed the rape with prosecutrix Khushbu and who is residing as tenant in the same house NO. 205/10, Pashe Ki dairy, Village Azadpur and there on the pointing out of baby Khushbu the accused Mithu Rai present in court was apprehended. She prepared rukka Ex.PW9/B which bears her signatures at point A and handed over it to Ct. Ram Karan for getting the FIR registered who got the FIR registered and came back at the spot and handed over to her the copy of FIR and original rukka. She prepared the site plan Ex.PW9/X which bears her signatures at point A, at the instance of Laxmi. PW Laxmi handed over to her one blood stained bedsheet and one blood stained and washed underwear of baby Khushbu. The same were converted into pullinda and sealed with the seal of PK and seized vide memo Ex.PW2/D bears her signature at point B. Accused Mithu was arrested vide memo Ex.PW2/B bearing her signature at point B and his personal SC No. 191/09 15/39 search memo Ex.PW2/C bearing her signature at point B. Accused was brought to the PS and case property was deposited in Malkhana. In the morning on 13.09.07, accused Mithu Rai was taken to the hospital with the help of Ct. Sushil and there he was medically examined and she collected his MLC and HC Sushil handed over to her three parcels sealed with the seal of MS BJRM hospital alleged to be containing undergarments of accused Mithu Rai, blood stained gauze of accused and blood sample of accused along with sample seal. The same were seized vide memo Ex.PW9/C which bears her signature at point A. Thereafter, accused was produced before the Ld. MM and was sent to judicial custody and the case property was deposited in the malkhana.
On 14.09.07, she took baby Khushbu to BJRM hospital and there doctor had obtained blood sample of Baby Khushbu and thereafter, Dr. Ms. Mani Deepa handed over to her one parcel sealed with the seal of MS BJRM hospital along with sample seal which she seized vide seizure memo Ex.PW9/D which bears her signatures at point A. The case property was deposited in the malkhana. A sealed envelope sealed with the seal of VS was taken out from the judicial file. Same was opened and from inside it, proceedings of recording statement of prosecutrix Khushbu U/S 164 Cr.PC are taken out. On 18.09.07, she moved an application Ex.PW9/E for recording the statement of prosecutrix Khushbu U/S 164 Cr.PC before Ms. Rekha, Ld. MM and the SC No. 191/09 16/39 same was marked to Sh. Vijay Shankar, Ld. Link MM and thereafter, the same was fixed for 22.09.07 and on 22.09.07, statement of prosecutrix Khushbu was recorded and she moved an application Ex.PW9/F for obtaining the copy of statement and she received the copy of vide her endorsement Ex.PW9/G, which bears her signature at point A. The statement proceedings are collectively mark A. On 1.10.07 on her instructions, Ct. Sriniwas took sealed parcels along with FSL form from the MHCM for depositing in the FSL Rohini and accordingly he deposited the same there and thereafter, deposited the receipt with the MHCM. She recorded their statement. She recorded statement of witnesses and after completing the investigation challan was prepared by the then Inspector SHO Shri Kali Ram and filed in the court. Thereafter, she collected the FSL result Ex.PX-1 and filed the same in court. Parcel no. 3 sealed with the court seal is produced and opened and from inside it, one frock of black colour of Baby Khushbu is taken out and shown to the witness and witness identified the correctly. Frock is Ex.P-1. One another court sealed parcel no. 5 produced and same is opened. It contained one blood stained bed-sheet and one blood stained baby underwear of light grey colour. Same was shown to the witness and witness identified the same as correctly which were seized by her. Underwear is Ex.P-2 and bed-sheet is Ex.P-3.
SC No. 191/09 17/3914. She has deposed in her cross examination that she reached at the spot within ten minutes from receiving the information. SI Ram Kumar along with Ct. Ram Karan also reached at the spot simultaneously. She reached at the spot along with her cousin brother on two wheeler scooter. Her cousin brother is the resident of nearby PS who had took her on the spot at her request. When she received information she was present at the house of her MASI in Keval Park, Azad Pur. Prosecutrix with her sister were found present at spot ie. Inside the house in 3rd from the main gate of the house know as Pasa ki Dairy, when they police official reached there. The prosecutrix was residing at first floor of Pasa Ki Dairy as tenant. Accused was residing at the aforesaid Dairy and he was employed with the same dairy. Accused used to provide food to the buffallows at the aforesaid dairy. During course of investigation it came on record that the accused along with other 2-3 workers of the dairy used to sleep at the dairy. There were six rooms at the first floor of dairy. One room which was nearby staircase was occupied by prosecutrix and her elder sister and other five rooms were lying vacant. Parents of prosecutrix were not present at the spot and they were working as labour. She did not record statement of parents. No public persons were present at the spot when she recorded the statement of prosecutrix. When accused came and identified by Khushbu then Mittu Rai had told me that parents of prosecutrix SC No. 191/09 18/39 are not paying rent to the landlord. She did not ask anyone when who used to collected rent amount from the tenant of dairy owner, however accused Mitthu Rai had told her that he used to collect money from the tenant on behalf of dairy owner. It is wrong to suggest that the parents of prosecutrix got falsely involved the accused in present case when accused demanded rent from them on behalf of dairy owner. It is wrong to suggest that as the case is false case that is why parents of prosecutrix knowingly were absent from the spot on that day or that they did not give any statement to her knowingly on that day. It is correct that that the aforesaid dairy is surrounded by some house. No occupant from those houses were interrogated by her on her all visits. The accused was arrested from Pasa Ki Dairy at about 3.30 AM on the same day in presence of Ct. Ram Karan, prosecutrix and her elder sister. She had taken the accused to PS on foot. Accused, Ct. Ram Karan and she went to the PS. One chadar (bed-sheet) having blood stains and dirty marks and one undergarment having some blue and red colour dots have been seized by her on being produced by the elder sister of prosecutrix. Underwear had already been washed when it was seized. The aforesaid chadar and undergarment had been produced to her on her arrival from the hospital at the spot. It is wrong to suggest that as the case is false that is why the landlord and neighbour had not joined the proceedings in this case. It is wrong to suggest that she had not SC No. 191/09 19/39 conducted fair investigation in this case. It is wrong to suggest that she had not recorded statement of the owner of the dairy just to conceal the true facts. The statement of prosecutrix and her sister was recorded at the spot. It is wrong to suggest that she prepared the false criminal case against the accused. It is wrong to suggest that all the documents were prepared by her while sitting in the PS. It is wrong to suggest that she is deposing falsely.
15. PW-10 Dr. Neeraj Choudhary, CMO has deposed that he has seen MLC no. 19192 of Mithu Rai S/o Shiv Mandir Rai age 45 years male who was brought to hospital on 13.09.07 with the alleged history of committing sexual assault and he was examined by Dr. Rafiq Akhtar. As per MLC there was nothing to suggest that patient was incapable to do sexual intercourse. After examination, the undergarments, the blood sample gauze and blood sample were sealed with the hospital seal and handed over to IO. The MLC which is in the handwriting of Dr. Rafiz Akhtar is Ex.PW10/A and bears his signature at points A & B. He has also seen the MLC No. 22277 of Khushbu D/o Kedar Bahadur, age 4 years, female who was brought to hospital for medical examination on 13.09.07 with the alleged history of rape (sexual assault on 12.09.03 at 10.00 PM) and she was initially examined by Dr. Akhilesh and on local examination, no external injury was seen on upper and lower limbs, chest, abdomen, back and head SC No. 191/09 20/39 and thereafter, the patient was referred to SR (Gynae) for further examination. The finding of Dr. Akhilesh on the MLC is Ex.PW10/B bears his signature at point A. He has also seen M.E. No. 74299 dated 14.09.07 of Khushbu D/o Kedar Bahadur who was brought to hospital for request for preserving blood sample as her MLC no. 22277 was made on 12.09.07 with the alleged history of sexual assault and blood was taken, sealed and handed over to IO, ASI Pushpa. The M.E. Is in the handwriting of Dr. Manideepa. Same is Ex.PW10/C which bears her signature at point A.
16. PW-11 Sh. Vijay Shankar, Ld. MM, Dwarka Courts has submitted that he was posted as MM in Rohini Courts on 18.09.07. On that day, an application for recording statement of Khushbu D/o Kedar Bahadur U/s 164 Cr.PC was marked to him by Ld. Link MM, Ms. Rekha and he fixed the application for 22.09.07 and accordingly on 22.09.07, he recorded statement of Khushbu D/o Kedar Bahadur, aged 4 years. The witness was identified by IO, ASI Pushpa. He had satisfied himself as to the capability and mental attitude of the witness towards narration of true facts. He had also satisfied himself that she was making statement voluntarily and without and without any force or pressure or threat. The statement of the prosecutrix recorded by him is Ex.PW11/A and the certificate given by him is Ex.PW11/B SC No. 191/09 21/39 and both bear his signature at points A and B.
17. PW-12 SI Ram Kumar has deposed that he was posted at PS Adarsh Nagar on 12.09.07. On that day, he received DD no. 25A regarding rape committed on a girl Kusam/Khushbu, aged about 4 years D/o Dedar Bahadur, who is resident of 205/10, Passe Ki Dairy, Azad Pur. He along with Ct. Ram Karan went to the spot where during inquiry WASI Pushpa reached and he handed over the said DD to her for further investigation.
18. PW-13 Ct. Sushil Kumar has deposed that he was posted at PS Adarsh Nagar on 13.09.07. On that day, he joined the investigation with the IO WASI Pushpa and accused Mithu Rai, was in his custody and he was taken to BJRM hospital where he was medically examined by the MLC and the doctor after examination handed over three pullindas ie. Undergarments, blood stained gauze and sample seal of the hospital. He handed over the same pulindas to the IO which was seized by him vide seizure memo Ex.PW9/C and bears his signature at point B.
19. PW-14 HC Ram Karan has deposed that he was posted at PS Adarsh Nagar on 12.09.10. On that day, he was on emergency duty from 8.00 PM to 8.00 AM. on receipt of DD no. 25A, he along with SI Ram Kumar went to H. No. 205/10, Passe Ki Dairy, SC No. 191/09 22/39 Azad Pur Village and met Laxmi and her sister Khushbu. After some time WASI Pushpa reached the spot and he along with Khushbu, her sister Laxmi and IO went to BJRM hospital for the medical examination of the girl Khushbu. Khushbu was medically and doctor handed over three parcels duly sealed and he signed seizure memo of the same Ex.PW9/A. They came back to the spot. Statement of Laxmi was recorded by IO and IO made endorsement on the same. The accused Mitthu Rai was caught on the identification of Khushbu and IO had handed over the rukka to him at 2.00 AM. He went to the PS and came back with a copy of FIR and original rukka and handed over the same to the IO. The accused was arrested vide personal search memo and arrest memo Ex.PW2/B and Ex.PW2/C. From the personal search of the accused Rs. 4,500/- were recovered. From the spot where the offence took place one white chadar having blood stains and one washed underwear having blood stains. The same was seized vide seizure memo Ex.PW2/D. The accused was brought to the PS. In his cross examination he has deposed that after some time of the incident they reached at the spot, but he cannot tell the time of incident. They reached after 10.00 PM. Khushbu and Laxmi met them. He cannot tell how much time he remained there. He went to the spot on foot. Accused was not when they reached there. Thereafter, they went to the hospital. He cannot SC No. 191/09 23/39 tell the time when they went to the hospital. He went twice to the spot of incident. When he went on second time, ASI Ram Kumar was present at the spot. No investigation was made by ASI Ram Kumar. No public persons were present at the spot except Laxmi and Khushbu. After returning from the hospital the accused was arrested. The land lord was not present at the house at the time of incident. He went to the spot twice only in the night. Two clothes were recovered from the spot. The prosecutrix was not wearing the same but the same were recovered at that time. It is wrong to suggest that the accused was not arrested in my presence. It is wrong to suggest that the accused has nothing to do with the case. It is wrong to suggest that he is deposing falsely and he did not go to the spot.
20. The accused was examined u/s 313 Cr.PC and all the material evidence were put to him and he refuted all the allegations leveled against him and submitted that he is an innocent person and he has been falsely implicated in this case. He used to get rent from the tenants on behalf of owner at Pase Ki Dairy, Azad Pur Village, Delhi but the complainant never paid rent to him on his repeated request and also got registered this false case against him. The parents of the prosecutrix has also not turned up for evidence. Accused has also examined 4 witnesses in his defence.
SC No. 191/09 24/3921. DW-1 Sh. Suchit Rai has deposed that he was working in Pase Ki Dairy and his work was to look after the buffalows. He was permitted by the owner of dairy to reside in dairy. Accused Mithu Rai was working to supply the milk and collect the rent of the tenanted rooms. 12 rooms of the dairy were on rent which were on the first floor of the dairy. The complainant did not pay the rent of the tenanted premises from the last two months and when the accused demanded rent on behalf of owner, the complainant did not pay and for the last one month from the date of lodging the false FIR, there was quarrel regarding the rent demanded by the accused from the complainant. The parents of the complainant were also present. The parents of the complainant did not go to the PS to lodge the FIR as this is a false case. The accused has been falsely implicated in this case. He was present on 12.09.07 in the dairy. He, accused Mithu Rai, Ramayan and Rama Shankar were present in the jhuggi on the day of the alleged incident. In his cross examination, he has deposed that he has no documentary proof regarding his employment in Pase Ki Dairy. Accused Mithu Rai is his co- villager. It is wrong to suggest that he is deposing falsely at the instance of the accused being his co-villager.
22. DW-2 Bhagwan Das has deposed that he was residing as SC No. 191/09 25/39 tenant @ Rs. 600/- per month in Pase Ki Dairy, Azad Pur Village, Delhi. He was residing on the first floor in one room. The complainant was also residing in a tenanted room there. He was present on 12.09.07 in the dairy. There was quarrel with the accused Mithu Rai as the complainant did not pay rent for the last two months. He had not seen any incident as alleged. Accused has been falsely implicated in this case by the complainant. In his cross examination, he has deposed that he has been residing as tenant in the first floor of Pase Ki Dairy along with his family member but he could not produce any rent receipt. It is wrong to suggest that he has come to the court with the family or friend of accused Mithu Rai or he is deposing falsely at their instance.
23. DW3-Ram Lochan has deposed that he was residing as tenant at the room of first floor of Pase Ki Diary. No incident took place on 12.09.2007 in Pase Ki Dairy as alleged in the FIR. This is a false case. Accused Mithu Rai used to get rent from the tenants and used to give it to the landlord. If any such kind of incident might have taken place there, I definitely would have come to know about it, as I was present there on that day. In his cross examination, he has deposed that it is correct that he could not produce any documentary proof regarding tenancy at Pase Ki Dairy. On the day of the incident he was on leave and was present at his tenanted room. It is wrong to suggest that he is SC No. 191/09 26/39 deposing falsely at the instance of family and friends of the accused Mithu Rai.
24. DW-4 Sh. Ramayan Rai has deposed the same sequence of happening as deposed by the aforesaid Dws. He has also deposed in his cross examination that the accused was apprehended by the police in his presence. It is correct that he do not make any complaint to the concerned court in connection of false implication of the accused. It is correct that he is real brother of accused Mithu Rai. It is wrong to suggest that he has been tutored by his accused brother to depose before the court in order to save him.
25. Ld. Counsel for the accused Mitthu Rai has submitted that the accused has been falsely implicated in this case as the accused used to collect rent from the complainant on behalf of owner of the Dairy and the complainant has not paid any rent to the accused on his repeated demands. Instead of paying the rent, the complainant has falsely implicated the accused in the present case. The prosecutrix who is around 4 years of age has been tutored by her elder sister Laxmi. Therefore, it is, prayed that since it is a false case, testimony should not be believed and the accused may be acquitted of the charge by giving him benefit of doubt in the interest of justice.
SC No. 191/09 27/3926. On the contrary, Ld. APP for the State has submitted that the prosecution has successfully established the case against the accused Mitthu Rai for the offence u/s 376 IPC and contradictions and improvements, if any, are not fatal to the prosecution case. The testimony of the prosecutrix is quite trustworthy which is supported by the medical evidence. Hence, it is, prayed that the accused may be convicted accordingly.
27. I have heard Ld. Counsel for the accused and Ld. Addl. P.P. for the State and perused the material on the record carefully. Ld. Counsel for the accused has also relied on the case law namely V (2010) SLT 90 Supreme Court of India, Baij Nath Sah Vs. State of Bihar and I have perused the same also.
28. On the careful scrutiny of the testimony of the witnesses reveals that PW-1 Khushbu has deposed without oath that her name is Khushboo. His father's name is Kedar Bahadur. She resides at Azadpur. she does not remember the date, month and year, however on one day accused Mithu who was present in the court on that day (correctly identified by the witness) who was working with Bhains Wala near our house, called her when she was playing with other children. She earlier knew the accused Mithu. He took her to his house. He gave her some money and SC No. 191/09 28/39 put his finger on her private part (witness says "PESHAB KARNE WALI JAGAH PAR HATH DALA"). Blood started oozing from her private parts (PESHAB KARNE WALI JAGAH). He removed her underwear. He also removed his clothe. After putting his finger on her private parts put his urinating part into her urinating part and committed GALAT KAAM (APNA PESHAB KARNE WALA HAMARI PESHAB KARNE WALI JAGAH MEIN DALA). There accused gave her money. She told this fact to Laxmi Didi. Her father cleaned the blood stains with water. She was taken to hospital, Jahangirpur where she was medically examined. At the time of incident she was wearing frock and underwear. Her frock was sealed by the doctor at the time of her medical examination. Her statement was also recorded by Ld. MM. Police Wali Aunty made inquiry from her. She stated that she can identify the frock and underwear which she was wearing at that time. MHC(M) PS Adarsh Nagar produced one sealed pulinda duly sealed with the seal of FSL, Rohini, Delhi. It was opened and contained one baby frock in black colour and shown to her and she has correctly identify the same frock which she was wearing at time of incident. The said frock is Ex.P1. MHC(M) PS Adarsh Nagar produced another sealed pulinda duly sealed with the seal of FSL, Rohini, Delhi. It was opened and found containing one chaddar (bed sheet) and baby underwear of light grey colour. Underwear shown to her and SC No. 191/09 29/39 she correctly identified the same which was wearing at time of incident. The said undewear is Ex.PW.P2.
29. PW-2 Kumari Laxmi has deposed that baby Khushbu is her younger sister. She is about five year of age. She is working as maid in the nearby flats. On 12.09.07, she along with her family were residing at H.No. 205/10, Pase Ki Dairy, Azadpur, Delhi and on that day at about 10.00 PM when she was coming to her house after finishing her work, she found her sister Khushbu present at her house. She noticed blood oozing out from her vagina. Khushbu told her that accused Mithu (correctly identified by the witness) who is present in the court who was working at Pashe Ki Dairy, Azadpur situated on the ground floor took her to his room and comitted galat kam with her and she also told her that Mithu/accused called her on the pretext of giving Rs. 2/- to her. Khushbu was carrying her underwear in her hand at that time as the same was washed by her father. Khushbu was weeping at that time. She told this fact to one Lal Bahadur who is known to them, who is residing near their house. He informed the police in this regard. Thereafter, police from PS Adarsh Nagar reached at their house. Her sister Khushbu was taken to BJRM hospital by police in her presence where she was medically examined and her frock was sealed by the doctor at that time. Thereafter, she along with Khushbu and police officials came back to their house where SC No. 191/09 30/39 IO-W/ASI Pushpa Rani who met them in the hospital, recorded her statement Ex.PW2/A which bears her signature at point A. Thereafter when IO was conducting proceedings at their house, accused Mithu also reached in front of their house and on the pointing out of Baby Khushbu and herself accused Mithu was arrested by the IO in this case vide arrest memo Ex.PW2/B which bears her signature at point A. personal search of the accused was also taken vide memo Ex.PW2/C which bears her signature at point A. Accused was interrogated by the police in this case. IO prepared site plan of the place of occurrence at the instance of Baby Khushbu in her presence. Accused was also apologizing them before the police for his said act. The prosecutrix was wrapped in the chadar when bleeding was going on at their house and blood also fallen on the same due to this fact. She handed over the blood stained chadar and underwear of her sister Khushbu which were taken into possession by the IO with the seal of PK and were taken into possession vide memo Ex.PW2/D which bears her signature at point A. During the course of investigation the statement of her sister Khushbu was also recorded by Ld. MM. The bone age X-ray test of her sister was also conducted at BJRM hospital during course of investigation. Police has also recorded the statement of her sister Khushbu. When white colour dirty chadar blood stained which was already taken out from the pulinda along with the underwear of SC No. 191/09 31/39 prosecutrix shown to the witness, then witness correctly identified the same chadar in which the prosecutrix was wrapped and the underwear which was in the hand of Khushbu and she was wearing at the time of incident. Chadar is Ex.P-3 and baby underwear is Ex.P-2. When a baby frock which is Ex.P-1 is shown to the witness, then witness correctly identified the same which baby Khushbu was wearing at the time of incident.
30. PW-3 Dr. Pooja, Sr. Gynae has deposed that she had seen the MLC No. 22277 of Khushbu D/o Kedar Bahadur, aged about 4 years female. The patient was brought to hospital with alleged history of rape on 12.09.07. Initially the patient was examined by the CMO and thereafter, she was referred to Sr. Gynae for further opinion and thereafter, patient was examined by Dr. Indira, Sr. Gynae. There was not history of changing clothes and taking bath after the incident. On local examination, there was no external injury seen on face, neck breast (chest), abdomen, thigh, back and upper and lower limb. Hymen torn, margins were fresh and was not bleeding at the time of examination. Slight bleeding was present on perineal and vulval region. No fresh and active bleeding was present at the time of examination. Vaginal laceration was present which was not bleeding. Swab was taken from perineal and vulval region which was sealed and handed over to the IO. A swab was also taken from vagina and it was also SC No. 191/09 32/39 sealed and handed over to IO. Blood stained frock of patient was taken, sealed and handed over to IO. The finding of Dr. Indra on the MLC is Ex.PW3/A which bears signatures of Dr. Indira at point A. She identified her handwriting and signatures as she had seen her while writing and signing during the course of her duties.
31. PW-4 Dr. Shipra Rampal, Radiologist has deposed that she examined the X-ray plate of Khushboo aged about 4 years, female vide MLC No. 22277 and X-ray plate No. 2762 dated 13.09.07 for bone age estimation. After examination of X-ray plate, she opined the estimated bone age of the patient to be between 5 to 6 years on that day. Her detailed report is Ex.PW4/A which bears her signatures at point A and four X-ray plates are collectively Ex.PW4/B.
32. PW-5 HC Balraj Singh was a duty officer on 13.09.07. On that at about 2.15 AM, he received a rukka from Ct. Ram Karan which was sent to him by W/ASI Pushpa and on the basis of which the present FIR No. 447/07 U/S 376 IPC was registered. Copy of FIR is Ex.PW5/A which bears his signature at point A. PW6- Ct. Shriniwas took sealed pulindas which were sealed with the seal of PK and seal of BJRM hospital, along with sample seal and FSL form from MHCM and deposited the same in the FSL Rohini vide RC no. 121/21/07. The same pulindas remained intact SC No. 191/09 33/39 during his custody. PW-7 HC Mukesh Kumar was MHCM and he had deposited three parcels sealed with the seal of MS BJRM hospital. Entry in this regard was made by him at Serial No. 5089. He neither interfere with them nor he allowed anybody to interfere with them. PW-8 HC Surender Kumar was posted as duty officer on 12.09.07. On that day at about 10.30 PM, he recorded DD No. 25A regarding the rape and after recording, he handed over the copy of the same to SI Ram Kumar for necessary action. Copy of said DD are Ex.PW8/A and Ex.PW8/B. PW-10 Dr. Neeraj Choudhary, CMO has deposed that he has seen MLC no. 19192 of Mithu Rai S/o Shiv Mandir Rai age 45 years male who was brought to hospital on 13.09.07 with the alleged history of committing sexual assault and he was examined by Dr. Rafiq Akhtar. As per MLC there was nothing to suggest that patient was incapable to do sexual intercourse. He identified the writing and signing of Dr. Rafiq Akhtar and Dr. Manideepa as he has seen them writing and signing during official course of his duty. He has also seen M.E. No. 74299 dated 14.09.07 of Khushbu D/o Kedar Bahadur who was brought to hospital for request for preserving blood sample as her MLC no. 22277 was made on 12.09.07 with the alleged history of sexual assault and blood was taken, sealed and handed over to IO, ASI Pushpa. The M.E. Is in the handwriting of Dr. Manideepa. Same is Ex.PW10/C which bears her signature at point A. PW-11 Sh. Vijay Shankar, Ld. SC No. 191/09 34/39 MM, Dwarka Courts has recorded statement of prosecutrix Khushbu D/o Kedar Bahadur, aged 4 years U/S Cr.PC. The statement of the prosecutrix recorded by him is Ex.PW11/A and the certificate given by him is Ex.PW11/B and both bear his signature at points A and B. PW-12 SI Ram Kumar has received DD no. 25A regarding rape committed on a girl Kusam/Khushbu, aged about 4 years D/o Dedar Bahadur. He along with Ct. Ram Karan went to the spot where during inquiry WASI Pushpa reached and he handed over the said DD to her for further investigation. PW-13 Ct. Sushil Kumar has taken accused to BJRM hospital where he was medically examined and the doctor after examination handed over three pullindas ie. Undergarments, blood stained gauze and sample seal of the hospital. PW-14 HC Ram Karan was on emergency duty on 12.09.07. On receipt of DD no. 25A, he along with SI Ram Kumar went to H. No. 205/10, Passe Ki Dairy, Azad Pur Village and met Laxmi and her sister Khushbu. After some time WASI Pushpa reached the spot and he along with Khushbu, her sister Laxmi and IO went to BJRM hospital for the medical examination of the girl Khushbu. Khushbu was medically and doctor handed over three parcels duly sealed and he signed seizure memo of the same Ex.PW9/A. They came back to the spot. Statement of Laxmi was recorded by IO and IO made endorsement on the same. The accused Mitthu Rai was caught on the identification of Khushbu and IO had SC No. 191/09 35/39 handed over the rukka to him. He went to the PS and came back with a copy of FIR and original rukka and handed over the same to the IO. The accused was arrested vide personal search memo and arrest memo Ex.PW2/B and Ex.PW2/C. One dirty chadar having blood stains and one washed underwear having blood stains of the prosecutrix were shown to the witness and witness correctly identified the same. PW-9 W/ASI Pushpa is the IO who is conducted necessary investigation in this case. After completed the investigation, challan was prepared by the Then Inspector SHO Kali Ram and filed in the court.
33. After hearing arguments, on the critical analysis of the testimony of the witnesses and on the perusal of material on the record, I am of the considered opinion that the prosecution has successfully established the case against the accused for the offence U/S 376 (2) (f) of the IPC as the testimony of the witnesses are quite coherent, probable and trustworthy. The testimony of prosecutrix / PW-1 Khushbu aged about 5 years is quite coherent and trustworthy and inspire the confidence of the court. She categorically deposed that on one day accused Mittu (witness correctly identified the accused Mithu who was present in the court) was working with Bhains wala at his house. He called her when she was playing with other children and she knew the accused Mitthu Rai earlier. He took her to his house. He gave SC No. 191/09 36/39 her some money and put his finger on her private part (witness says "PESHAB KARNE WALI JAGAH PAR HATH DALA").
Blood started oozing from her private parts (PESHAB KARNE WALI JAGAH). He removed her underwear. He also removed his clothes. After putting his finger on her private parts put his urinating part into her urinating part and committed GALAT KAAM (APNA PESHAB KARNE WALA HAMARI PESHAB KARNE WALI JAGAH MEIN DALA). There accused gave her money. She told this fact to Laxmi Didi. Her father had cleaned the blood stains with water. She was taken to hospital, Jahangirpur where she was medically examined. At the time of incident she was wearing frock and underwear. Her frock was sealed by the doctor at the time of her medical examination. Her statement was also recorded by Ld. MM. Police Wali Aunty made inquiry from her. She can identify the frock and underwear which she was wearing at that time. The testimony of the witness Laxmi who is elder sister of the prosecutrix is also quite coherent, probable and trustworthy and inspire the confidence of the court. The testimony of PW-1 Khushbu and PW-2 Laxmi have also been fortified by medical evidence as PW-3 Dr. Pooja, Sr. Gynae, has categorically deposed that she had seen the MLC No. 22277 of Khushbu D/o Kedar Bahadur, aged about 4 years female who was brought to hospital with alleged history of rape on 12.09.07. As per MLC, hymen was torn. Other witnesses have also deposed SC No. 191/09 37/39 as per their role in this case and chain of witnesses is also complete. Nothing material in favour of the accused has come in the cross examination of the witness also. The law on the aspect is crystal clear that the penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape and as per MLC hymen was torn, meaning thereby the offence of rape is committed.
34. The testimony of DWs do not inspire the confidence of the court as nothing substantial and convincing has come on the record in favour of accused as one of the witnesses is the brother of the accused and one witness is the co-villager of the accused. Nothing substantial has come on the record on the testimony of the other defence witnesses also. The defence witnesses have deposed just to save the accused as they have been summoned by the accused only. The submissions on the behalf of accused that the accused has been falsely implicated in this case as the accused used to collect rent on behalf of the owner from the complainant who were tenant and the complainant has not paid any rent, rather falsely implicated him in this case, is also not convincing as this is beyond the comprehension of this court why a four year girl child will speak lie in the court or will falsely implicate the accused on the behest of her elder sister. I have highest regard for the case law cited on behalf of the accused but the same is not SC No. 191/09 38/39 suited to the facts and circumstances of the present case.
35. Under the aforesaid discussion, I am of the considered opinion that the prosecution has successfully established the case against the accused Mitthu Rai for the offence u/s 376 (2) (f) of the IPC and I am left with no other option but to hold the accused guilty for the aforesaid offence and consequently, the accused Mitthu Rai is convicted for the offence u/s 376 (2) (f) of the IPC.
36. Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof.
Announced & dictated in the open court on 24.09.10 R.B. SINGH ASJ, 03 (Outer) Rohini Courts, Delhi/24.09.10 SC No. 191/09 39/39