Delhi District Court
State vs . on 14 March, 2012
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.03/11
FIR NO. 454/08
U/S 376 IPC
PS Narela
Unique Case ID No. : 02404R0131132009
State
Vs.
Shamsher Singh s/o Mahender Singh
r/o H.No.228, Village Bankner, Delhi.
Date when committed to the court of Sessions :09.04.2009
Date when case reserved for judgment : 02.03.2012
Judgment pronounced on : 14.03.2012
JUDGMENT:
1. The case of the prosecution in brief is that on 18.10.2008, an information regarding rape was received at the PS vide DD No.21A from the PCR which was assigned to ASI Karan Singh, who along with Ct. Prem Prakash reached Lampur Road, Bankner, at the Mazar of Peer Baba, Dada Mai Mandir, Narela, where they came to know that PCR vehicle has taken the injured/prosecutrix and her mother to SRHC hospital, Narela and accordingly, the said ASI reached the SC No.3/11 Page 1/37 said hospital and obtained the MLC of the prosecutrix (name and address withheld for secrecy reasons) and in the meantime, W/ASI Raj Bala reached the said hospital, to whom the inquiry was handed over and said W/ASI recorded the statement of the mother of the prosecutrix.
2. As per statement of the mother of the prosecutrix, she was residing at the address given in her statement and was having three children and her husband used to supply drinking water in jugs and at about 3.05 p.m, she was sitting along with her brother in law and children at her house, her daughter, the prosecutrix, aged about 5 years, told her to go for call of nature and went to the vacant adjacent plot for the said purpose and after about 10 or 15 minutes, the prosecutrix came to her weeping, whose clothes were smugged with blood and informed her that one person in black clothes kept his hand over her mouth and lifted her by the side of the heap of dung cakes and committed rape with her and she raised alarm, on which she was threatened and due to the raising of alarm, he left her and ran away towards the fields, who could be identified by her.
3. On the basis of the said statement, the said W/ASI got recorded the FIR and investigation was entrusted to her, she seized the exhibits, recorded the statements of PWs and arrested the accused in the case and medical examination was got conducted and SC No.3/11 Page 2/37 exhibits were sent to FSL Rohini and result was subsequently filed before the court and statement of the prosecutrix was got recorded u/s 164 Cr.PC and the charge sheet was filed against the accused.
4. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 08.06.2009, framed charge against the accused u/s 376(2)(f) IPC, to which he pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case, has produced as many as 14 witnesses, relevant of which have been discussed below.
6. The statement of the accused u/s 313 Cr.PC was recorded wherein he pleaded his innocence and denied the incriminating evidence against him as false and did not prefer to lead any defence evidence.
7. I have heard Ld. APP for the state, Sh. Kundan Kumar, Advocate for the accused and perused the record.
8. PW2, Dr. Manish Kumar prepared the MLC of the prosecutrix which is Ex.PW2/A whereby she was referred for S.R. Gynae. PW3 Dr. Raghunath prepared the discharge slip of the prosecutrix which is Ex.PW3/A, who was admitted to the LNJPN hospital with history of sexual assault with traumatic recto vaginal fistula and in his cross examination, PW3 replied that such type of injury can happen if a SC No.3/11 Page 3/37 danda is inserted inside the vagina forcibly. PW5 Dr. Vijay Thakur from Hindu Rao Hospital identified the handwriting and signatures of Dr. Sachin Mittal on the MLC of the accused and proved the same as Ex.PW5/A.
9. PW8 Dr. Sushma was the concerned S.R. Gynae at SRHC hospital, Narela, Delhi, who examined the prosecutrix vide MLC Ex.PW2/A with the alleged history of sexual assault and she deposed that on internal local examination, bleeding per vagina was present, hymen was torn, vagina admitting one finger, clots present in the vagina and as per rectal examination, recto vaginal communication was present and as advised by Dr. S. Aggarwal, Head of the Department, ODG, two slides were made from vagina and the patient was transferred to LNJPN hospital for complete examination and repair under anesthesia as no emergency OT/anesthesia facility was available in the said hospital and that sealed samples containing two slides of the prosecutrix and one kurta, one underwear, one dupatta were handed over to the IO and she proved her clinical notes encircled in red at point X, which she signed at point Y and Z and she identified the clothes of the prosecutrix including underwear as Ex.P1, dupatta as Ex.P2 and kurta as Ex.P3. Thereafter, a court question was put to the witness to explain the meaning of the term "recto vaginal communication" to which the witness replied that when rectal examination is done, rent SC No.3/11 Page 4/37 was felt which was communicating into vagina which may be the result of any external object's insertion forcibly either through rectum or through vagina. Again a court question was put to the witness that whether the said communication was possible by penetration of penis to which the doctor replied that it could be possible. However, in her cross examination on behalf of the accused, the doctor as PW8 admitted that no bruises, abrasion or any other mark of external injury was noticed over other parts of the body. She further replied that she could not comment upon the age of tearing of the hymen or recto vaginal communication. She further replied that said recto vaginal communication was also possible by accidental insertion of an object like a danda or a pencil.
10. PW9 HC Vijay Tyagi was the official on the PCR van on 18.10.2008, who received a call at about 4 p.m, and he reached the spot and found one girl, namely the prosecutrix, aged 5 years, along with her parents and he took the said prosecutrix and her mother to SRHC hospital and got her admitted in the said hospital and he proved the call record register and relevant extract of the same from 4 p.m to 4.30 p.m dated 18.10.2008 as Ex.PW9/A and he deposed that he cross confirmed the call to the PCR Head Quarter that the call was found genuine and details of information received from the prosecutrix and her parents were also mentioned in the said call register.
SC No.3/11 Page 5/37
11. As per Ex.PW9/A, the prosecutrix, aged 5 years, had gone for call of nature who was lifted and taken away by one unidentified man after tying cloth on mouth and raped her and the girl was bleeding extensively and she was being taken to the said hospital.
12. PW9, in his cross examination on behalf of the accused, replied that parents of the prosecutrix told him that one unidentified person covering his face with a cloth took the prosecutrix along with him which is mentioned at point X in Ex.PW9/A.
13. PW10 is the concerned Magistrate who recorded the statement of the prosecutrix which is Ex.PW10/B, on the application of the IO and as per statement of the prosecutrix recorded u/s 164 Cr.PC, one day she had gone to the field for call of nature and one boy, whose name was Shamsher, was standing in the field, who asked her to come near to him and thereafter he put off his clothes and also put off her underwear and thereafter he gave a blow with his organ used for urinating in her organ used for urinating and thereafter he slapped her and asked her to beat her in case she tells about the same to anyone and thereafter her uncle came to the field to take her. PW10 was not cross examined on behalf of the accused.
14. PW11 SI Karan Singh deposed regarding receiving of DD No.21A, Ex.PW11/A, on 18.10.2008 and reaching the said spot along with Ct. Prem where he found that the prosecutrix had been SC No.3/11 Page 6/37 removed to SRHC hospital by a PCR van along with her mother and in the meantime, Ct. Jai Kumar also reached at the spot during patrolling, who was left at the spot and he along with Ct. Prem went to the said hospital where W/ASI Raj Bala met him and after medical examination of the prosecutrix, the exhibits given by the doctor were taken into possession by the said W/ASI vide memo Ex.PW11/B. In his cross examination on behalf of the accused, he replied that he did not meet family members of the prosecutrix in the hospital nor he knew if anyone from her family was present there or not. He further replied that he had not seen the house of the prosecutrix and as such, he could not tell about the distance between her house and the spot. He answered that near the spot, there were heaps of dung cakes.
15. PW6 Ct. Jai Kumar deposed regarding reaching the spot and was left to protect the spot, as deposed by PW11 and W/ASI Raj Bala reaching the spot and he was cross examined on behalf of the State by the Ld. Addl. PP as he was resiling from his previous statement wherein he admitted that W/ASI Raj Bala came at the spot and prepared the site plan and in the meantime Ct. Prem Prakash came at the spot and handed over the copy of FIR and rukka to W/ASI Raj Bala. PW6 was not cross examined on behalf of the accused. PW7 HC Sri Krishan deposited the exhibits of the case with FSL Rohini. PW12 HC Ashok Singh was the duty officer who SC No.3/11 Page 7/37 proved the copy of FIR as Ex.PW12/A. PW13 HC Virender Kumar was the MHC(M) who deposed regarding deposit of exhibits in the Malkhana and sending the same to FSL.
16. PW14 W/ASI Raj Bala deposed regarding the investigation conducted by her and she further proved the seizure memo of the earth control, bloodstained earth control vide memo Ex.PW14/A, the site plan prepared by her as Ex.PW14/B and on 19.10.2008, she could not get any clue with regard to the accused and she obtained the discharge slip of the prosecutrix from the hospital which is Ex.PW3/A. She further deposed that on 01.11.2008, she visited the house of the prosecutrix for the search of the accused and from there, she along with the prosecutrix, her mother and Ct. Prem went in search of accused and when they reached near Bus Stand Bankner, the prosecutrix, after looking at a boy standing at bus stand, started shouting and pointed out that he was the same boy who committed rape upon her and mother of the prosecutrix also told her that he was the same boy who had threatened them of dire consequences and she apprehended the accused and arrested him and recorded his disclosure statement which is Ex.PW14/C and thereafter the accused was taken for his medical examination and the doctor handed over some exhibits with regard to accused which were taken into possession by her vide memo Ex.PW14/D and the accused was referred to some expert vide document Ex.PW14/D1 SC No.3/11 Page 8/37 and he was again called on 03.11.2008 and the doctor gave his opinion regarding capability of the accused to perform sexual act vide report Ex.PW14/E and she tendered the FSL results as Ex.PX and Ex.PY and thereafter she deposed regarding getting the statement of the prosecutrix recorded u/s 164 Cr.PC.
17. In her cross examination on behalf of accused, PW14 as the IO, replied that on inquiry from the public persons she came to know that the agricultural field belonged to the accused and there were heaps of dung cakes where the incident took place but she did not mention this fact in the case diary as well as in the charge sheet. She replied that she had no knowledge if the accused was permanent resident of Village Daryapur in Haryana but she volunteered that she came to know that accused was relative of a native person of Village Bankner but she did not investigate about the nature of relation of accused with the said person. She further replied that the spot was not got photographed nor the crime team was summoned nor she can assign any reason for not summoning the crime team and the photographer at the spot. She replied that at the time of recording of the statement of the mother of the prosecutrix at the hospital, no other person from the village or the husband of mother of the prosecutrix was present. She replied that she met the father of the prosecutrix and his statement was also recorded by her but his name is not mentioned in the list of witnesses, but his statement was SC No.3/11 Page 9/37 annexed with the charge sheet and it was observed by the court that there is no statement of the said witness on the judicial record nor on the police file. She admitted that on the MLC of the prosecutrix the doctor had opined the patient unfit for making statement at point A1 on MLC Ex.PW2/A and she recorded the statement of the prosecutrix after her discharge from the hospital. She did not recollect if Ex.PW9/A was collected by her during investigation from HC Vijay, the PCR official. She answered that she searched for the accused in the nearby houses but this fact was not mentioned by her in the case diary. She did not search the house of Kuldeep. She replied that the TIP of the accused was not got conducted as the accused was arrested on the identification of the prosecutrix. She replied that prosecutrix was aware of the name of the accused before her statement u/s 164 Cr.PC was got recorded as it was told to her (the prosecutrix) by her (the witness) after the arrest of the accused. She further answered that she made the prosecutrix understand as to what statement was to be given to the Magistrate as well as in the court. She denied the suggestion that she had asked the prosecutrix to name the accused present in the court at the time of her statement and deposition. The PW14, IO was reexamined by the Ld. APP on behalf of the State for certain clarifications wherein she replied that on 18.10.2008, she first visited the spot at about 4.30 p.m after receiving the DD and thereafter, she again visited the spot after SC No.3/11 Page 10/37 coming from the hospital at about 8 p.m. She replied that she had not narrated or tutored the prosecutrix as to what she was to depose before the Magistrate and in her deposition before the court. She admitted that statement of the father of the prosecutrix was never recorded by her.
18. Coming to the deposition of the mother of the prosecutrix who appeared as PW4, who deposed that at the time of incident, she used to reside at Village Bankner, Delhi, along with her family and she had three children and her husband was having a job of supply of water jugs and thereafter she deposed the facts on the lines on which the FIR was got recorded, as reproduced above and proved her complaint Ex.PW4/A. She further deposed that she cannot identify the accused as she had not witnessed the incident and that once she was called by the police and as such, she along with her daughter reached at PS Narela and there, accused present in the court namely Shamsher Singh, was shown to her and to the prosecutrix along with four or five other persons but the prosecutrix was unable to identify any of the said persons or accused Shamsher Singh being responsible for the incident and she clearly told the police that none of the said persons including Shamsher Singh had done "Gandi Baat" with her (the prosecutrix). PW4 was put with some leading questions by the Ld. Addl. PP wherein she denied the suggestion as wrong that on 01.11.2008, she informed the police that accused SC No.3/11 Page 11/37 present in court Shamsher had threatened her some days prior to 01.11.2008 and that she raised suspicion over him for raping her daughter or that on 01.11.2008 itself, she along with prosecutrix joined the investigation and on the pointing out of the prosecutrix, accused was arrested from Bus Stand of Village Bankner. She further identified the clothes of the prosecutrix including one chunni, one baby shirt, one baby's underwear, which the prosecutrix was wearing at the time of incident and which were retained by the doctor at the time of her medical examination. At this stage, PW4 was declared hostile by the prosecution and was cross examined on behalf of the State by the Ld. Addl. PP wherein she admitted that her statement Ex.PW4/B bore her thumb impression at point A. Thereafter she denied to have made any such statement to the police but admitted that arrest memo and personal search memo of accused Shamsher Singh Ex.PW4/C and Ex.PW4/D bear her thumb impression. Thereafter she was confronted with her statement u/s 161 Cr.PC dated 01.11.2008, Ex.PW4/E, which she denied to have made to the police and disowned the identification of the accused by the prosecutrix on 01.11.2008 or the disclosure statement of the accused recorded in her presence.
19. In her cross examination on behalf of the accused, PW4 admitted that her daughter had met with an accident prior to the present incident in which she sustained injuries on her private parts SC No.3/11 Page 12/37 and huge bleeding occurred at the time of incident and she further admitted that thereafter, very often, the prosecutrix used to bleed while passing stool etc and her treatment was going on for this problem. She further admitted that after 1½ month of the present incident, her daughter had informed her that the same person in the black clothes had chased her in the agricultural field while she was passing stool and this information was given by her to her neighbours and all of them went to the PS and informed the police that the same person who committed rape upon her daughter on 18.10.2008 had again chased her in the agricultural field but the police officials informed them that the person was in custody and how he could chase her daughter and asked them to leave the PS. She admitted that her thumb impressions were obtained on blank papers on 01.11.2008. She denied the suggestion that on 22.10.2009, she had asked the prosecutrix to identify the accused Shamsher Singh in the court and she volunteered that police official had asked the prosecutrix to identify accused Shamsher Singh in the court.
20. The PW4 was put with a question by the court to the effect as to with whom the prosecutrix was residing to which she replied that she was residing with her (the witness). Again court put a question to tell about the name of the police official who asked the prosecutrix to implicate the accused falsely in the case or could she SC No.3/11 Page 13/37 identify him by face to which she replied in negative. Again the court question was put to her as to why the police official would be interested in telling the prosecutrix to name the accused, to which she replied that she did not know. Again a court question was put to her as to when did the police officials met the prosecutrix and asked her to name the accused in the court to which PW4 replied that after about 1½ month of the incident, they met the prosecutrix and asked her to name and identify the accused Shamsher. She volunteered that she had gone to take medicine and the prosecutrix was alone in the house and in her absence, police official, who had visited her house, asked the prosecutrix to name Shamsher as an accused and when she came back to her house, the prosecutrix told her this fact to which she replied to the prosecutrix that they should not name any person when they did not know about him. She was again asked a question as to whether she witnessed the occurrence to which she replied in negative. Again when she was asked to say if accused did not rape her daughter, the prosecutrix, to which she replied that she could not say as she was not present. Again a question was put to her that her daughter had identified the accused before the court and as to whether she (the witness) wanted to say anything in this regard to which she replied that she did not know and only the prosecutrix knew about it and that she could not say as to whether accused Shamsher raped her or not and only the prosecutrix could tell about SC No.3/11 Page 14/37 the same. She further answered that police official first visited her house when she had gone to purchase medicine and second time he met the prosecutrix in her presence in the court when her statement was to be recorded in the chamber and on that day also he asked the prosecutrix to name Shamsher Singh in her statement and that on 22.10.2009 also the same police official again asked the prosecutrix in the court to identify Shamsher and to name him in the court. At this stage, again at the request of Ld. Addl. PP, he was permitted to further cross examine the witness wherein she admitted that she never made a complaint to the court or to the Ld. MM who initially recorded the statement of the prosecutrix regarding the alleged conduct of the said police official who pressurized her and the prosecutrix to name Shamsher Singh.
21. Coming to the deposition of the prosecutrix who appeared as PW1 and was aged about 6 or 7 years, and it was observed by my Ld. Predecessor before recording the deposition that prosecutrix was of very tender age and thereafter certain questions were put to her. It was inferred by the Ld. Predecessor that she was capable of giving rational and coherent answers but she could not understand the sanctity of the Oath and as such, Oath was not administered to her.
22. The prosecutrix deposed that she did not remember the date but on the fateful day, she had gone to a field outside her house for SC No.3/11 Page 15/37 call of nature and there one boy, who used to visit that area frequently, came to her and pressed her mouth with his hand, lifted her and took her behind a "Bitora" (a heap of cow dung cakes) and there he put off his garments and also put off her underwear and had done "Galat Kaam" and "Ganda Kaam" with her and that by "Galat Kaam" and "Ganda Kaam" she meant that he put his male organ into her vagina and blood came out and that boy had given beatings to her also on which she started crying and tried to raise a noise and that she could identify the accused and thereafter the witness specifically pointed out towards the accused stating that he did the Galat Kaam with her and that she was medically examined and treated by doctor. At this stage, Ld. Addl. PP sought permission to put a leading question regarding her statement recorded u/s 164 Cr.PC, which was allowed and in her answer to the leading question, she admitted it that apart from the day of deposition, she had also come to the court earlier along with her brother and one Judge Sahib in her room had asked her regarding the present incident and she had told her (the Judge) about the incident and afterwards she put thumb impression on the said statement which is Mark A.
23. After that, the witness stated that she did not excrete/pass stool from the anus because she received severe injuries due to which the doctor gave some treatment and now she passes the stool from an artificial passage made by the doctors on the left side of the SC No.3/11 Page 16/37 abdomen and the photograph was marked B which belonged to her in this regard. She further deposed that after some days of the incident, accused present in court Shamhser Singh, was arrested on her pointing out and she further identified her undergarments as Ex.P1, dupatta as Ex.P2 and kurta as Ex.P3.
24. In her cross examination on behalf of the accused, she denied the suggestion that prior to the offence committed on her person, she had received injury on her person from any other source and she volunteered, "Isi Ne Mujhe Chote Mari Thi" (the accused has caused injury to her). She further replied that now she was able to pass her stool properly. She further denied the suggestion that 15/20 days prior to the occurrence, she had received any injury on her body. She admitted that due to the injury, she used to have blood in her stool. She denied the suggestion that she had identified the accused on the asking of her mother and police officials. She replied that she identified the accused on her own and that her mother had not asked her to name the accused. She replied that police officials did not ask her to name the accused and she volunteered, that accused committed "Galat Kaam" with her and she herself had identified the accused in the court. She replied that she did not remember the colour of clothes worn by accused at the time of incident and she had seen that person after 1 or 1½ month from the incident. She replied that she had told the police that he was the same person who SC No.3/11 Page 17/37 had done the wrong act with her. She replied that thereafter police uncle sent him to jail and thereafter she had also seen him in the fields and that she had told her mother that she had seen him in the fields and thereafter she again went to PS along with her mother. She replied that she had stated in her statement recorded by Judge Sahib that "I mean that he put his male organ into my vagina and blood came out" and she was confronted with statement Mark A where it was not found so recorded but it was recorded that accused hit on her private part with his private organ. Similarly, the fact of passing the stool from artificial passage due to receiving severe injuries was not found mentioned in her said previous statement Mark A. She replied that prior to the incident, blood never came out from the place from where stool came out. She denied the suggestion that she sustained said injury due to pencil or danda. She volunteered that it was the accused who caused the injury (Muljim Ne Mari Thi). She further answered that incident took place in the morning time and they went to the PS on the same day where they remained for 5 minutes and after that, they went to their house and thereafter they did not went to the PS. She answered that police uncle had also come to their house and police aunty had also come and that police officials remained at their house up to 3 p.m and that she was taken to PS by the police officials and thereafter she was not taken anywhere by the police officials. She replied that at the time SC No.3/11 Page 18/37 of incident, she used to go to school and at that time, she was student of IIIrd class. She answered that when police came at her house, her mother had gone to purchase medicines. She admitted that police officials told her the name of the accused as Shamsher in PS. She denied the suggestion as wrong that as per the instructions of police persons, she identified the accused before the court.
25. From the said evidence on record and as per contentions raised by the Ld. Defence Counsel, it seems that all the forces are against the prosecutrix who is of tender age and who was so brutally raped resulting into traumatic recto vaginal fistula, as deposed by her. The mother of the prosecutrix, PW4, has gone hostile to the fact that it was at the instance of the prosecutrix that the accused was apprehended. She, in her cross examination, admitted that the prosecutrix had met with an accident prior to the present incident in which she sustained injuries on her private parts and huge bleeding occurred at that time and thereafter she used to bleed often while passing stool and her treatment was going on for this problem. The mother has created altogether a new story in her cross examination that the same person in black clothes, who initially raped the prosecutrix, had again chased her after about 1½ month of the present incident. She tried to uproot the deposition of the prosecutrix by saying that it was at the instance of and under the pressure of police officials that she and the prosecutrix named the SC No.3/11 Page 19/37 accused as rapist.
26. The doctor, who examined the prosecutrix on 18.10.2008, on the day of incident, i.e. PW8, admitted in her cross examination that recto vaginal communication was possible by accidental insertion of an object like a danda or pencil, although on a court question she replied that it was also possible due to penetration of the penis. PW3, again a doctor, who prepared the discharge summary Ex.PW3/A, admitted that such type of injury could happen if a danda is inserted inside the vagina forcibly.
27. Coming to the police officials, PW9 HC Vijay Tyagi, who was posted at the PCR van and reached the spot at the first instance and proved the call register as Ex.PW9/A, answered in his cross examination that parents of the prosecutrix told him that one unidentified person, covering his face with a cloth, took the prosecutrix along with him, as mentioned at point X in Ex.PW9/A. PW14 W/ASI Raj Bala was again against the prosecutrix when she replied in her cross examination that she made the prosecutrix understand as to what statement was to be given to the Magistrate as well as in the court. The IO was blowing hot and cold in the same breath when she denied the suggestion in her cross examination, as wrong that she had asked the prosecutrix to name the accused present in the court at the time of her statement and deposition. In SC No.3/11 Page 20/37 her reexamination on behalf of the State by the Ld. Addl. PP, she replied that she had not narrated or tutored the prosecutrix as to what she was to depose before the Magistrate and in her deposition before the court.
28. Besides the said opposition of the prosecutrix by the said forces, the very fact that prosecutrix was hardly of 5 or 6 years of age and she appeared for her deposition on 22.10.2009 and on 20.01.2011 whereas the incident was dated 18.10.2008, are further the weaknesses of the case requiring a close scrutiny and corroboration.
29. So far as law is concerned, it does not require any corroboration of the victim of rape whose deposition is sufficient to convict the accused, if reliable otherwise, but in the present case, since the witness besides being the victim of the rape is also the child of a tender age, her deposition necessarily requires a corroboration as a matter of prudence, though not under the law. The law with regard to appreciation of the deposition of child witness has been very well settled in the judgments of the Hon'ble Supreme Court and that of Hon'ble High Court of Delhi in the cases titled The State of Bihar & Ors. Vs. Kapil Singh and anr. reported as AIR 1969 SC 53; Bharvad Bhikha Valu and others Vs. State of Gujarat, reported as AIR 1971 SC 1064; Zafar Vs. State of UP reported as SC No.3/11 Page 21/37 2003 (2) Crimes 93 (SC) and Shama Parveen Vs. State of Delhi reported as 2011 VII AD (Delhi) 449.
30. The deposition of PW4, the mother of the prosecutrix, although hostile on certain aspects, can be utilized for corroborating the deposition of PW1, the prosecutrix. Her examination in chief, as reproduced above, is supporting the deposition of PW1 and also demolishing the answer in cross examination of PW9 with regard to the rapist having covered his face with a black cloth, who lifted the prosecutrix, as allegedly narrated to him by the parents of the prosecutrix, as answered by PW9 in his cross examination, when she deposed that when the prosecutrix came back after call of nature, she was weeping and her clothes were stained with blood and the prosecutrix informed her that "one man, who was wearing black clothes, gagged her mouth with his hand, lifted her and took her behind the heap of cow dung and had done 'Gandi Baat' with her at her urine passing place and on her raising alarm, he threatened the prosecutrix and after leaving her there, he ran towards the agricultural fields to whom the prosecutrix could identify." She further corroborated the deposition of the prosecutrix by identifying her clothes in the court as the same which the prosecutrix was wearing on the day of incident. So far as tutoring of the prosecutrix by her is concerned, has been ruled out by her when she denied the SC No.3/11 Page 22/37 suggestion as wrong that on 22.10.2009, she had asked the prosecutrix to identify the accused Shamsher Singh in the court and she volunteered that police official had asked the prosecutrix to identify the accused. She further corroborated the prosecutrix and demolished her own stand of tutoring of the prosecutrix by the police when she answered to the court questions put to her that she did not know the name of the said police official nor she could tell any reason as to why the police official was interested in asking the prosecutrix to name the accused. She further corroborated the prosecutrix when she answered that police officials had come once when she had gone to take the medicine and prosecutrix was alone in the house. Although later part of her answers are again to the effect that police officials asked the prosecutrix to name the accused. She again demolished her stand by answering that she never made a complaint to the court or to the concerned Magistrate against the alleged conduct of the said police official in pressurizing her and the prosecutrix to name the accused. Further, if at all the prosecutrix had suffered injury on her private parts prior to the date of incident from which there was often a bleeding, nothing had stopped the mother of the prosecutrix to tell about the said facts to the concerned doctor preparing the MLC, but the name of the mother has been mentioned by the doctor as the person who told the alleged history of sexual assault (rape) with the prosecutrix. This all go to suggest SC No.3/11 Page 23/37 that mother of the prosecutrix PW4, when turned hostile qua the identity during her examination in chief and thereafter her stand that it was due to some accident in which the prosecutrix sustained injuries on the private parts, was nothing but a futile attempt to save the accused for the reasons best known to her.
31. Coming to the aspect of the identity of the accused, PW9 HC Vijay Tyagi has answered in cross examination that parents of the prosecutrix told him that one unidentified person covering his face with a cloth took the prosecutrix along with him, which he mentioned at point X in the register Ex.PW9/A of the PCR van. This fact has been controverted by the mother of the prosecutrix when she deposed in her examination in chief as "one man, who was wearing black clothes, gagged her (the prosecutrix) mouth with his hand, lifted her and took her behind the heap of cow dung". Thus, according to the mother of the prosecutrix, what the prosecutrix told her that the person who lifted her was wearing black clothes but the prosecutrix did not tell her at all soon after the incident that he was covering his face. Again, the version given by PW9 is not supported by the document Ex.PW9/A, which was the concerned call record register of the PCR wherein at 4.07 p.m dated 18.10.2008, it is mentioned that the call was true and the prosecutrix, aged about 5 years, had gone for call of nature outside, who was taken away after lifting by an unidentified man tying cloth on the mouth and raped SC No.3/11 Page 24/37 her. Firstly, in this call record register, which was written in present continuous tense, it is nowhere mentioned that the said facts were told to PW9 by the parents of the prosecutrix, as answered by him in his cross examination. Secondly, "tying cloth on the mouth" does not make it clear as to whether mouth of the prosecutrix was tied or whether the accused was tying a cloth over his mouth. Thus, this aspect of the person covering his face with a cloth, has not been established at all and the facts, as recorded in Ex.PW9/A and as deposed by the mother of the prosecutrix, go to corroborate the deposition of PW1, who nowhere deposed in her examination in chief that the boy who committed rape with her was covering his face with a cloth. In her extensive cross examination on behalf of the accused, nothing could be elicited from the prosecutrix suggesting that the person who committed rape with her was covering his face. Thus, the version given by the prosecutrix finds full corroboration from Ex.PW9/A also. Again, PW4 tried to put a story in her cross examination on behalf of the accused that after about 1½ month of the incident, the prosecutrix had informed her that same person in the black clothes had chased her in the agricultural fields while she was passing stool and this information was shared by PW4 with neighbours and all went to the PS and informed the police that the same person, who committed rape with the prosecutrix on 18.10.2008, had again chased the prosecutrix in SC No.3/11 Page 25/37 the agricultural fields, to which the police officials replied that the said person was in custody and how he could chase the prosecutrix and thus, asked them to leave the PS. This is just an unbelievable story in view of the fact that on 18.10.2008, as per Ex.PW9/A, the police from PCR was summoned by someone, as per deposition of PW4 and thus, the parents of the prosecutrix were very well knowing about giving a call to the PCR and if the same person was again chasing the prosecutrix, as alleged by PW4, what stopped the PW4 or the said alleged neighbours to give a call at phone number 100 to the PCR. Thus, this story is nothing but a futile attempt to support the accused in order to shield him from the legal consequences of the act committed by him.
32. Coming to the aspect of answers given by the doctors PW3 and PW8 with regard to the fact that recto vaginal communication may be caused by insertion of a danda or other such type of object. Although PW8 Dr. Sushma, who internally examined the patient, has also specifically answered to a court question that such injury could be possible by penetration of penis also, but on behalf of accused, when she was put with a question, the doctor replied that it was possible by accidental insertion of an object like a danda or pencil. The doctor who appeared as PW3, prepared the discharge slip Ex.PW3/A, which mentioned in detail the injury suffered by the prosecutrix and the treatment given. Nothing has stopped the SC No.3/11 Page 26/37 doctors, who were technically expert, to opine either in the MLC of the prosecutrix Ex.PW2/A or the discharge summary Ex.PW3/A, against the alleged history of sexual assault. None of the doctors dared to say in their respective examinations in chief that such type of injury could be possible by insertion of an object like a danda but they conveniently answered the same in their respective cross examination. Dr. Sushma as PW8 has further answered in her cross examination that she could not comment upon the age of tearing of the hymen or recto vaginal communication which is a surprising answer from a doctor and not appealable to the common sense because she herself mentioned in the MLC Ex.PW2/A that patient was referred for the repair of the said injury suffered by the prosecutrix and in her examination in chief, she herself deposed that bleeding as per vagina was present, then why the doctor failed to give comment upon the age of tearing of the hymen or recto vaginal communication. However, medical opinion is to be corelated with the facts of the case. This court has the opportunity of observing the accused who is certainly a well built and a person of youth and on the other hand, this court could see the photograph of the prosecutrix Mark B, who is of very tender age, soft in stature and certainly disproportionate to the accused in the body built and act of inserting erected penis of a person like accused into the body of the child, such as prosecutrix, could certainly cause the rupture of the female SC No.3/11 Page 27/37 organs resulting into creation of a hollow pipe thereby joining the vagina with the anus, what has been described by the doctors as traumatic recto vaginal fistula. There is otherwise no evidence on record, though the mother of the prosecutrix has made a futile attempt to prove the same by her bald statement, to infer the insertion of any other object like danda by way of accident causing recto vaginal communication. In her cross examination on behalf of the accused, the mother of the prosecutrix has specifically answered that the prosecutrix was being treated for the said accidental injury. What stopped the mother to produce the said treatment record in order to show that the injury was accidental. Moreover, the mother as PW4, nowhere explained in her bald statement as to how the accident happened or the manner in which the prosecutrix suffered alleged injury on her private parts prior to the date of incident. Thus, the opinion in the cross examination on behalf of the accused, given by the said two doctors that the injury on the person of the prosecutrix could be caused by insertion of a danda like object, is not tenable particularly in view of the prompt reporting of the incident to the police and noticed by the police official, the PW9 that the girl was bleeding profusely as rape was committed with her and same is also mentioned in Ex.PW9/A. The disproportionate body structures of the accused and prosecutrix further explains as to why the prosecutrix did not suffer any other bruises, external injury or SC No.3/11 Page 28/37 abrasion on any other part of her body during the forced act of sexual intercourse.
33. Coming to the aspect of tutoring of a child witness. The mother of the prosecutrix as PW4 has blown hot and cold in the same breath regarding the tutoring of the prosecutrix. When my Ld. Predecessor put specific questions to PW4, she admitted that she did not witness the occurrence nor she could say that accused did not rape the prosecutrix and that only the prosecutrix can tell about the accused raping her. Thus, she disowned the fact that she ever tutored the prosecutrix. She further negated the theory of police officials tutoring the prosecutrix by answering that she never made a complaint to the court or to the concerned Magistrate who initially recorded the statement of the prosecutrix regarding the alleged conduct of said police official who pressurized her and the prosecutrix to name the accused Shamsher.
34. Similarly, the W/ASI Raj Bala although in her cross examination on behalf of the accused affirmed that she made the prosecutrix understand as to what statement was to be given to the Magistrate as well as in the court, but in the next suggestion and in the reexamination on behalf of Ld. Addl. PP, she wriggled out of her said stand and answered that she had not narrated or tutored the prosecutrix as to what she was to depose before the Magistrate and SC No.3/11 Page 29/37 in her deposition before the court. Naturally PW14, the IO, was very well knowing the consequences of the said answer given by her in the cross examination conducted on behalf of the accused that she tutored the prosecutrix and thus, she reformed herself.
35. Coming to the deposition of the prosecutrix herself as PW1, whether it can be inferred that the victim child was deposing under tutoring or under some pressure or command or at the dictation of someone else. Her examination in chief is coherent, rational and intelligible and the manner of deposition was a natural flow and as per ordinary human nature, particularly that of a child of tender age. In her cross examination on behalf of the accused, when she was put with a suggestion that prior to the incident she received injury on her person from any other source, the child not only denied the suggestion as wrong but retaliated by saying "Isi Ne Mujhe Chote Mari Thi" (the accused caused injury to her). She further denied the suggestion that she had identified the accused on the asking of her mother and police officials and again she volunteered that she identified the accused of her own and that her mother had not asked her (the prosecutrix) to name the accused nor the police officials asked her to name the accused and again she volunteered that it was the accused who committed "Galat Kaam" with her and she herself had identified the accused in the court. The confrontation which the Ld. Counsel for the accused has put forth which have come on the SC No.3/11 Page 30/37 surface by confronting the prosecutrix with her previous statement recorded u/s 164 Cr.PC Mark A (Ex.PW10/B in original), is nothing but the different words of vernacular language used by the child as in her statement u/s 164 Cr.PC "I mean that he put his male organ into her vagina and blood came out" were not recorded in the said manner wherein the same fact has been mentioned in different words of the language "Thereafter he put off his clothes and put off her underwear and thereafter he hit his organ used for urinating into her organ used for urinating". With regard to the fact of non passing of stool through anus, as deposed in her examination in chief, the statement u/s 164 Cr.PC was recorded on 19.12.2008 and she was discharged from the hospital on 27.10.2008. The artificial passage created for passing of the stool was a consequence of the offence and consequences of the offences may be far reaching much more than that and merely a consequence was not got recorded in her statement u/s 164 Cr.PC and deposed for the first time before the court, was nothing but a subsequent development which may have been brought to the knowledge of the court as a consequence of the offence and it cannot be termed as "improvement" known under the Law of Evidence. Moreover, we do not know specifically as to when the said artificial passage was created as no doctor has specifically deposed before the court to that effect. Thus, the said alleged confrontations from her previous statement do not come to SC No.3/11 Page 31/37 the help of the accused.
36. In the natural flow of things, again she was put with a suggestion after the said two confrontations in her cross examination, that she sustained said injury due to pencil or danda, which she not only denied as wrong but volunteered that accused had caused the same. Thus, from her deposition, while reading it as a whole, nothing came on the surface to draw an inference that the prosecutrix was deposing under some tutoring or pressure. Rather she uprooted the attempts of the said forces who were bent upon favouring the accused in one way or the other, by her spontaneous answers to the questions put to her in her entire deposition.
37. In his statement u/s 313 Cr.PC, the accused has answered that he had no knowledge of the said facts as deposed by the witnesses and the documents proved on record and he had submitted that they were false and interested witnesses and deposing falsely against him and that he has been falsely implicated in the case and that he was innocent and that he came to Village Bankner on 23.10.2008 at the residence of his relative to give customary things known as "Sida" on the occasion of festival of Diwali and he was taken to the PS and detained there along with 45 other boys and was falsely implicated in the present case despite the prosecutrix not identifying any person in the PS. But no defence evidence was preferred to be tendered on SC No.3/11 Page 32/37 behalf of the accused, as mentioned in the order dated 19.09.2011, although initially he wished to lead defence evidence as mentioned in his statement dated 14.09.2011. Now the question arises as to what motive could be imputed to the prosecutrix to falsely implicate or raise her finger towards the accused. Some plausible explanation should have come from the mouth of the accused if at all we say that onus was not on him to prove the motive with the prosecutrix. Bald denial of everything is not sustainable under the law. When there was a duty to speak and one fails to speak, the inference goes against him. There is no other reason proved on the record to disbelieve the testimony of the prosecutrix which is also corroborated on the material particulars, as discussed above. Hence, I am of the considered opinion that accused did rape the prosecutrix, as mentioned in the charge, which has been proved beyond reasonable doubt and accordingly, the accused is held guilty and convicted of the offence u/s 376(2)(f) of the IPC.
(Announced in the open court on 14.03.2012) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.3/11 Page 33/37 IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER), ROHINI COURTS, DELHI SC NO.03/11 FIR NO. 454/08 U/S 376 IPC PS Narela Unique Case ID No. : 02404R0131132009 State Vs. Shamsher Singh s/o Mahender Singh r/o H.No.228, Village Bankner, Delhi.
ORDER ON THE POINT OF SENTENCE:
Present: Ld. Addl. PP for the State.
Sh. Kundan Kumar, Ld. Counsel for the convict.
1. Heard on the point of sentence. It has been submitted on behalf of the convict that convict is in JC for the last 3 years and 4½ months and he is the eldest child of his family and is of young age of 23 years and is unmarried and a lenient view may be taken considering his youth.
2. On the other hand, Ld. Addl. PP has submitted that manner in which the rape has been committed and consequence of the same on a minor girl, do not allow any such leniency nor there is any SC No.3/11 Page 34/37 justification for the same.
3. The case has been proved to the effect that not only the prosecutrix was raped but her very femininity, which she possesses by virtue of her birth as a female, has been destroyed by the convict.
He even did not realize, in order to satisfy his perverted lust, that there was disproportionate body structures of himself and that of the victim child which resulted into a serious kind of injury which may affect the whole life of the minor girl, who may not utilize her body as such a female and more so, she has been rendered incapable of using her another organ i.e. anus, for the purpose for which the almighty has provided the same in the human body.
4. Further, from the point of view of the victim, she was even not in a position to defend herself and even she was not knowing as to what for she was being ravished. Her tender age may not allow her even to understand the meaning of the word "rape" much less the consequences of the same when she will grow up as a female. Life long trauma has been given to her by the convict by his said conduct and a stigma, incapable of being removed, at least from the minds of the persons who are concerned with the prosecutrix, has been affixed on her face.
5. The convict has no repentance for his said conduct as he continued to win over the witnesses and took all care to demolish the SC No.3/11 Page 35/37 case of the prosecutrix, as has been commented upon by this court in the judgment itself. Even the doctors, who are supposed not only to help the victims and patients but to depose before the court about their truthful opinion, have not supported the case of the prosecutrix, but she maintained her case before this court only because of the age old dictum of law that a man may tell a lie but circumstances and documents do not.
6. In the said circumstances, any leniency shown to the accused will give a wrong message to the society that a person, even after sexually abusing and ravishing a female child of tender age, is getting lessor punishment. Hence, I am of the considered opinion that the convict should not be allowed to remain free and roam in the society having the chances at his command to commit again such an offence by directing him to remain behind the bars for few years and accordingly, the convict is sentenced to undergo imprisonment for life and he is further sentenced to pay a fine of Rs.3 lacs and in default of payment of fine, he is further sentenced to undergo SI for a period of two years. Benefit of section 428 Cr.PC is also extended to the convict.
7. Out of the said fine, a compensation u/s 357 Cr.PC, of Rs.2,50,000/ be given to the prosecutrix after the expiry of the prescribed limitation period of appeal, revision etc and subject to the SC No.3/11 Page 36/37 decision of the appellate court, if any, and the said amount may be fixed with any recognized financial institution by way of deposit till she attains the age of majority, subject to realizing the interest of the same monthly or quarterly. I am conscious of the fact that injury caused to the body, mind and soul of the prosecutrix cannot be compensated by the said meager amount but this has been awarded as a token so that such kind of convicts may not be allowed to go scoot free from their liability towards society and it shall also act as deterrent to other such criminals in the society.
8. A copy of this order as well as order convicting the convict be given free of cost to the convict forthwith. The file be consigned to the Record Room.
(Announced in the open court on 14.03.2012) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.3/11 Page 37/37