Delhi District Court
State vs . on 8 August, 2014
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL SESSIONS
JUDGE02, CENTRAL, DELHI
FIR No.: 378/10
PS: Sarai Rohilla
U/s: 376 IPC
S.C. No.: 15/13
Case ID No. : 02401R0641172011
In the matter of:
State
Vs.
Vijay Shankar S/o Sh. Satya Narayan
R/o House no. 4A, Shastri Nagar, Delhi
Date of Institution : 18.04.2011
Date of Assignment to this court : 16.02.2013
Arguments Heard : 24.07.2014 & 2.08.2014
Date of Judgment : 08.08.2014
JUDGEMENT
Case Of Prosecution:
1. On 13.11.2010 on receipt of DD no. 17A, Ct. Kiran Pal Singh alongwith Ct. Satbir Singh reached at the spot at House no. A5, Shastri Nagar, Delhi where complainant Ramjeevan Yadav met them and produced the prosecutrix as well as accused before them. Complainant further gave his statement with respect to the rape committed by accused upon her daughter. Medical examination of prosecutrix was got conducted S.C. No.: 15/2013 1/20 by the IO as well as clothes of prosecutrix and accused were seized. After registration of FIR u/s 376/511 IPC, site plan was prepared, statements of witnesses were recorded, exhibits were sent to FSL for expert opinion, statement of prosecutrix u/s 164 Cr.P.C. was recorded, and after completion of investigation, instant charge sheet u/s 376 IPC was registered against the accused.
2. Since the offence u/s 376 of IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to court of sessions.
Charge Against The Accused:
3. Prima facie case u/s 376 IPC was made out against the accused. Charge was framed against him accordingly, to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 17 witnesses in all.
5. PW1 is Ct. Kiranpal Singh, PW12 is Ct. Satbir Singh who were with the IO during investigation of the case and proved the memos prepared during the investigation.
6. PW2 is H.C. Anup Kumar , the duty officer who registered the FIR and proved the same as Ex. W2/A.
7. PW3 is Lady Ct. Sanju who on receipt of the information reached at the spot alongwith IO and took the prosecutrix to hospital for S.C. No.: 15/2013 2/20 her medical examination.
8. PW4 is Ct. Sanjay who took the case property to FSL and deposited the same there.
9. PW5 is ASI Nirmala in whose presence statement of prosecutrix u/s 161 Cr.P.C. was recorded.
10. PW6 is Dr. J.K. Ujjania, CMO from Hindu Rao Hospital who proved the MLC of prosecutrix as Ex. PW6/A.
11. PW7 is Smt. Rinku Devi, mother of prosecutrix, PW8 is Prosecutrix and PW9 is father of prosecutrix who all deposed with respect to the incident of rape having been committed upon the prosecutrix by accused.
12. PW10 is Dr. Ashima Vohra, PW11 is Dr. Tarun Kumar and PW13 is Dr. M.K. Panigrahi from Hindu Rao Hospital who proved the MLC of accused as Ex. PW10/A, Ex. PW11/A and Ex. PW13/A.
13. PW14 is SI Satish Kumar, Incharge Mobile Crime Team who inspected the scene of crime and proved the report as Ex. PW14/A.
14. PW15 is Ct. Inderpal, Photographer of Crime Team who took photographs of the spot from different angles and proved the same as Ex. PW15/A1 to Ex. PW15/A7.
15. PW16 is SI Yogesh Kumar, first IO of the case who got the FIR registered, prepared site plan, recorded statements of witnesses and sent the exhibits to FSL for expert opinion.
S.C. No.: 15/2013 3/20
16. PW17 is Sh. Devender Nain, MM, Tis Hazari Courts, Delhi who recorded statement of prosecutrix u/s 164 Cr.P.C. and proved the same as Ex. PW8/DA.
17. Statement of accused u/s 313 Cr.P.C. was recorded wherein he denied the case of prosecution and stated that he is innocent and has been falsely implicated in this case.
18. I have heard Ld. APP for the state as well as Ld. counsel for defence and have perused the record.
19. This is a case where prosecution has alleged commission of rape by the accused with a girl of tender age of 7 years who was examined as PW8 before the court. She stated that on the relevant date, in the evening, her mother alongwith her siblings had gone to market to purchase sweets and she was alone at house which was the top floor of the building. One Guddu who had been residing in the other room of the same house and on the same floor came there when she was sleeping in her room and made her to lie down in a washroom/bathroom (peshabwali Jagah) and committed " Ganda Kaam with her ". He took off his brief as well as her panty and did " ChodaChodi" sex with her. Her frock as well as her panty got blood stained. She started crying when said Guddu ran away. Thereafter her father came and since she was weeping, her father asked her about the reason upon which she narrated the entire incident first to her father and thereafter to her mother. She clarified that the blood of which stains were there on her panty and frock were not of hers, rather S.C. No.: 15/2013 4/20 it was of Guddu which was oozing out of his pennis and left blood stains on her frock and panty when he was doing " Ganda kaam" with her. This witness was subjected to the detailed cross examination but she stuck to her testimony and nothing much could be elicited in her cross examination to discredit her version. She was confronted with her statement recorded u/s 164 Cr.P.C. wherein she had stated that she narrated the entire incident to her mother. However, the abovesaid was clarified by the prosecutrix in her chief examination itself that first of all she narrated the incident to her father and then to her mother, which was also so stated by her in her statement given u/s 161 Cr.P.C.. Since it was her father who had arrived at home after about 10 minutes of the incident whereas her mother had reached home subsequently, therefore, one after another, she had informed both of them about the incident.
20. Mother of prosecutrix was examined as PW7 who corroborated the statement of PW8 on the points that on relevant date, she had gone to market to buy sweets alongwith her other children whereas prosecutrix was alone at home. Her husband had also gone to his work and when at about 6 p.m her husband came back from his work, he found prosecutrix crying and he was informed by the prosecutrix that accused had done some wrong act with her. Accused having seen her husband fled away from his house . She herself reached home after 10/15 minutes of arrival of her husband and then she was informed by the prosecutrix about the wrong act by accused. She elaborated regarding sequence of incident S.C. No.: 15/2013 5/20 as was disclosed to her by her daughter while stating that prosecutrix was to made lie on the plastic sheet spread in front of their rooms, her underwear was removed by the accused who after removing his pant and undergarments, inserted his male organ into the private parts of her daughter. Her daughter started bleeding from her private parts when accused went to bathroom and after washing himself, fled away from the spot when her husband reached home. As stated, she had also noticed blood on the underwear of her daughter. The testimony of this witness also remained consistent in the cross examination. It was stated by her that accused had started residing in the neighbouring room about one month prior to the incident and that the landlord though had raised objections with respect to permitting the sharing of room by accused with brother in law of PW7 but he was informed that since accused belonged to their village, so he was sharing the room. She further stated that at the time of incident, no one was present in the adjoining rooms as the occupants had gone to their respective work and one lady had gone to buy vegetables who had left premises alongwith PW7 and she came back after about half an hour of her reaching the house.
21. Father of prosecutrix was examined as PW9 who deposed on the same lines as stated by PW7. He also deposed regarding her daughter being alone in the room on date of incident and at about 6 p.m. when he came back to his home from work, he found his daughter crying and he was informed that accused who was residing in adjoining room made her S.C. No.: 15/2013 6/20 to lie down in the balcony outside the room. He took off her panty and lowered his pant and brief and thereafter committed ' Ganda Kaam" with her. He went out in search of accused after hearing about the incident from prosecutrix . Accused met him in the street who was taken to the house by PW9. His wife had already arrived from the market and when the panty of prosecutrix was checked by his wife, the blood stains were noticed. Call was made at 100 number. Police arrived and accused was handed over to the police.
22. It was argued by Ld. counsel for defence that MLC of prosecutrix does not reflect commission of rape. As per examination Kit for victim of sexual abuse, hymen was found intact and the history was inconsistent with any recent/old /habitual sexual intercourse. It was also submitted that no injury or any other mark was found on the private parts of prosecutrix and even the deposition of mother of prosecutrix that she was informed by the prosecutrix that she also started bleeding in her private parts is also contrary to the record. Further, as argued, blood stains were allegedly noticed on frock and panty of the prosecutrix but the said frock was never sent for FSL examination and only baniyan and panty of prosecutrix were sent, whereas prosecutrix was not even wearing baniyan on the relevant date as deposed by herself. Though it is correct that as deposed by prosecutrix as well as other witnesses, prosecutrix was wearing frock and panty at the relevant time, whereas two clothes belonging to the prosecutrix which were sent to FSL were Baniyan and S.C. No.: 15/2013 7/20 panty. However, the fact as to where the frock vanished and from where said baniyan appeared does not remain a big question mark after the scrutiny of evidence on record. The frock which was being referred by the prosecutrix and her mother was the same baniyan which had been sent to FSL and had been identified by them in their deposition. As can be easily assessed, because the said frock seemed to be more like a slip which is normally worn by the young girls, same has been termed as baniyan by the other prosecution witnesses since in terms of the examination kit for victims of sexual assault also, the blood stains were found on the underwear and slip.
23. It is also correct that even in terms of medical documents on record, the hymen of prosecutrix was found intact and there was also no bleeding from the private parts of prosecutrix, whereas in terms of deposition of her mother, prosecutrix was bleeding from her private parts. However, the abovesaid was clarified by the prosecutrix herself by submitting that the blood stains which were on her panty and frock were not of her and rather blood was of accused which was oozing out of his pennis which left blood stains upon her frock and panty when accused was doing Galat Kaam with her. Mother of prosecutrix being unaware of any blood having oozed out of pennis of accused and having noticed the blood on panty of prosecutrix obviously would draw the inference with respect to her daughter being bleeding from her private parts. It remained the matter of record that blood because of tear at phrenulum in pennis S.C. No.: 15/2013 8/20 oozed out from the pennis of accused which was also reflected in the medical examination of accused who was brought to the hospital on date of incident itself after his apprehension with the history of alleged assault and with the complaint of bleeding from pennis. There was no occasion for the prosecutrix to know about the bleeding from the private parts of accused had she herself not witnessed the same during the alleged commission of offence.
24. The blood samples of both prosecutrix and accused as well as blood stained garments of accused, prosecutrix and the samples lifted from bathroom were sent to FSL. The blood which was detected on the undergarments of both accused and prosecutrix was found to be human blood, though the result remained inconclusive due to no reaction and the samples having been putrified. The prosecutrix having herself being not bleeding from her private parts, yet her clothes were found to be blood stained coupled with the fact that blood had oozed out from the pennis of accused while in action (though the same should be worded as wrong action) emerges as fact in consonance with the theory of prosecution.
25. The testimony of prosecutrix and her parents have remained cogent, consistent and inspires confidence. The variation in their statements are the natural variations which are bound to occur while the circumstances in such cases are explained by normal human beings . It is justifiable that the prosecutrix had narrated regarding the incident in her own words to her parents, which was narrated by her parents as they S.C. No.: 15/2013 9/20 understood and interpreted the words of prosecutrix. Reliance is placed upon 2010 III AD (Delhi) 34 Gore Lal Vs. State wherein it was observed that " By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. A former statement though seemingly inconsistent with the evidence, need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement,even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness ".
26. The prosecutrix herself referred the incident only as ' Ganda Kaam' though in her statement recorded u/s 161 Cr.p.C. slight elaboration can be found where in she mentioned that accused put his urinary organ upon her urinary part (peshab wali Jagah) because of which she got scared and started crying when accused rushed to the bathroom and thereafter left home. Probably the abovesaid is also the reason for slight variation with respect to the place of incident in deposition of prosecutrix since in her statement recorded u/s 161 Cr.P.C. it was stated by her that accused made her to lie in the balcony where as in statement u/s 164 Cr.P.C. it was stated that she was made to lie over a paper which was clarified to be a sheet by the other prosecution witnesses which was spread in front of their room. In the deposition of prosecutrix before this court, she made S.C. No.: 15/2013 10/20 reference regarding her having been made to lie down which is washroom/bathroom in English but as "Peshab Wali Jagah" in Hindi. The said reference by prosecutrix in these circumstances was towards the place of incident or to the organ used in commission of alleged crime, though is not very clear on record, but reading the same while trying to construe the same harmoniously with her other statements as well as statements of other prosecution witnesses, it comes to the fore that alleged commission of crime was committed outside the room of prosecutrix and the inconsistencies whatsoever noted in otherwise coherent deposition of prosecutrix while referring to commission of "
Ganda Kaam" with her by the accused, are not of that much magnitude so as to discredit her deposition which otherwise has remained unimpeached, cogent and trustworthy. Reliance is placed upon 2010 III AD(DELHI) 504 titled as Hari Om Vs. State where in it was observed that " Minor variance in the testimony of mother, father and prosecutrix cannot be said to be material to discard the testimony of the prosecutrix which has otherwise stood the test of the cross examination. If the impression formed by the courts is that the witness appears to be truthful and trustworthy, his/her evidence needs to be scrutinized taking into consideration the discrepancies and infirmities pointed out in his/her evidence and the court should then evaluate the testimony of the witness, to decide whether the evidence given by him/her in the court stands impeached or shaken, in the light of the discrepancies of infirmities S.C. No.: 15/2013 11/20 pointed out in his/her testimony " .
27. This fact also cannot be lost sight that prosecutrix in the instant case was a Maithili Speaker, though her parents were able to speak and understand Hindi. Her statement u/s 164 Cr.P.C was also recorded with the help of an interpretor as is noted by Ld. Judge in the statement u/s 164 Cr.P.C. As deposed by PW5 in whose presence statement u/s 161 Cr.P.C. was recorded, prosecutrix was speaking in Hindi and few words which she was not able to tell in Hindi and was speaking them in Maithili were translated by her mother in Hindi to the IO. Statement of prosecutrix u/s 164 Cr.P.C. was also recorded after different questions were put in Hindi to her but with the help of interpretor. However, with regard to her deposition before the court, it is submitted by Ld. counsel for defence that the prosecutrix did not know Hindi and the interpretor who was deputed was not even present on the date of recording of her statement before the court, therefore statement of prosecutrix cannot be read in evidence. It may be noted that in terms of order dated 16.8.2012, prosecutrix was examined with the assistance of interpretor brought by her father namely Ganesh with the consent of counsel for accused in the chamber and cross examination was also conducted with the assistance of one Ms. Babita, Dak Peon in ACJ office, Tis Hazari Courts, Delhi. Therefore now it is not open for the counsel for defence to raise this objection after himself having given consent in this respect, besides the fact that in terms of record, prosecutrix was put questions in Hindi and where she was not S.C. No.: 15/2013 12/20 able to answer only those words were translated by the interpretor.
28. The next argument put forth by Ld. counsel for defence that the prosecutrix was a child and there exists every likelihood of she being tutored whose testimony alone cannot form basis of conviction is also not sustainable in view of the legal position relating to evidence of child witness which has been dealt with by the Apex Court in catena of judgments while interpreting section 118 of Indian Evidence Act. As observed, all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those question, by tender age, extreme old age, disease, whether of body or mind, or any other cause of the same nature. No particular age has been specified in section 118 of the Indian Evidence Act as at what age a person would be considered of a tender age and the whole test is whether the witness has sufficient intelligence to depose and in position to give rational answers to the question asked. In Suryanarayan Raina Vs. State of Karnataka 2001 (9) SCC 129 and Dattu Rama Rao Shakare Vs. State of Maharashtra 1997 (5) SCC 341 interalia the apex court took a view that evidence of child witness is not to be rejected per se, but the court as a rule of prudence resolved to consider such evidence with close scrutiny and only on being convinced about the quality therefore and its reliability may record conviction based thereon ". In the instant matter, as discussed above, after close scrutiny, the statement of prosecutrix appear to be cogent, consistent and trustworthy S.C. No.: 15/2013 13/20 who did not seem to be a tutored witness and had deposed very innocently whatever happened with her.
29. Last but not least the argument of Ld. counsel for defence was that since the hymen of prosecutrix was found intact, there was no question of commission of any rape upon her by anyone, much less to talk about accused. However, this fact cannot be lost sight first of all that the prosecutrix has specifically stated about accused having put his urinary organ upon her urinary parts when she started crying and blood started oozing out from the pennis of accused after which he rushed to bathroom . The obvious conclusion which can be drawn, in these circumstances, is that before the accused could be able to penetrate deeply, he himself started bleeding due to tear of phrenulum in pennis and rushed to bathroom. As has emerged from record, accused put his urinary/sex organ upon the private parts of prosecutrix, which act itself falls within the definition of rape as defined in section 375 of IPC, in terms of which, a man is said to have committed rape , if he: (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person ; (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person ; (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person ; or (d) applies S.C. No.: 15/2013 14/20 his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person. Even otherwise in terms of medical jurisprudence if a minor girl is raped there can be or cannot be injury marks. In small children, the hymen is not usually ruptured. It may become red and congested with the inflammation and bruishing of the labia. If considerable force is used, there is often laceration of fourchette and perinaeum, which is not the case here since before any force could be used by the accused, he himself started bleeding from his pennis.
30. As was observed by Justice Verma Committee in their reports that " It is crucial to underscore that the size of the vaginal introituses has no bearing on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal muscles which is commonly referred to as the two finger test must not be conducted. On the basis of this test observations/conclusions such as' habituated to sexual intercourse' should not be made and this is forbidden by law. Routinely, there is a lot of attention given to the status of hymen. The ' finger test' is also conducted to note the dispensability of the hymen. However, it is largely irrelevant because the hymen can be torn due to several reasons. An intact hymen does not rule out sexual assault, and a torn hymen does not prove previous sexual intercourse. Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual assault ".
31. It was further opined in the Journal of the Forum of Medical S.C. No.: 15/2013 15/20 Ethics Society as was noted by Hon'ble High Court in Crl. Appeal No. 1340/2010 titled as Atender Yadav Vs. State of Govt of NCT of Delhi "
this is a contrary scientific evidence that the presence of an intact hymen does not rule out sexual assault, and the fact of a torn hymen does not prove previous sexual intercourse, as the hymen can be torn due to many other activities like cycling, horseriding, masturbation etc ".
32. In Pappu Vs. State of Delhi, 2010 (1) Cril.L.J. 580, Delhi also the Division Bench after placing reliance upon medical jurisprudence (5th Edition by Dr. R.M. Jhala and B.B. Raju) observed that " The reason is obvious from medical jurisprudence evidences that in adolescent girls the hymen is situated relatively more posteriorly and for said reason, there is a possibility of rape being committed without the hymen being torn; the converse whereof would be that if the hymen of an adolescent girl is torn due to rape, the penetration has to be a deep penetration. The medical jurisprudence guides that the labia majora are the first to be encountered by the male organ and they are subjected to blunt forceful blows, depending on the vigour and the force used by the accused and counteracted by the victim. The narrowness of the vaginal canal makes it inevitable for the male organ to inflict blunt, forceful blows on the labia and such blows lead to contusion because of looseness and vascularity. The feature of such contusion is revealed against the pink background of the mucous membrane dark red contusion being evident to the naked eye".
S.C. No.: 15/2013 16/20
33. Further, the mere fact that there was no injury on the private parts of prosecutrix is not sufficient to discredit her testimony and conviction can be based on the basis of sole testimony of prosecutrix, as was held in 2009 IV AD (DELHI) 743 titled as Karan Singh Vs. State. In the said authority, it was further held that " the plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix". Reliance is further placed upon Ranjit Hazarika Vs. State of Assam (1998) 8 SCC 635, wherein it was observed by Hon'ble Supreme Court that " The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of prosecutrix".
34. As was held in catena of judgments, in a case of rape, the evidence of prosecutrix must be given predominant consideration and in certain cases even without any corroboration, testimony of prosecutrix should be given due credence and weight as in all the rape cases, prosecutrix suffers a great stress, trauma, humiliation. Though at the same time, it cannot be denied that false allegation of rape can cause equal damage, humiliation, embarrassment , harassment, disgrace and agony to the accused as well. In the instant matter, defence taken by accused was that he was not even present at home at the time of alleged incident and was away at Laxmi Nagar, Delhi when he was called back on the pretext of arrival of guests at home. When he came back and was in his room, S.C. No.: 15/2013 17/20 PCR call was made. As stated by accused, the date of incident i.e. 13.11.2010 was second Saturday and CHHAT PARV was being celebrated on that day & the entire family of prosecutrix was at home as well as all the neighbours were also present in their respective rooms. According to him, he had cordial relations with Chacha of PW9 but since PW9 himself was not at good terms with him, therefore, he used to remain annoyed with the accused and was also jealous of accused because he was growing financially, whereas the defence which was put to the prosecution witnesses was that the accused was falsely implicated at the instance of landlord as the landlord had raised objection with respect to uncle of PW8 having permitted the accused to share his room. It is too far fetched to presume and highly improbable that merely because the landlord was objecting for accused to stay in premises, which was permitted by cousin brother of PW9 himself, the parents of prosecutrix would decide to use their daughter as pawn by imposing false charges of rape against the accused. Reliance is again placed upon 2010 III AD(DELHI) 504 titled as Hari Om Vs. State (supra) wherein it was further observed that " it is inconceivable that the mother of prosecutrix would implicate the person with whom she had a minor dispute on parking of vegetable cart, in a case of such nature and that too at the cost of staking the future and welfare of her own daughter" . Reliance placed upon by Ld. counsel for defence upon Radhu Vs. State of Madhya Pradesh 2007 Cri. L.J. 4704 has no significance considering the facts of S.C. No.: 15/2013 18/20 instant case wherein it was observed that " the courts should bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case".
35. The defence taken by the accused in his statement u/s 313 Cr.P.C. , remained unproved on record for the failure of defence to lead any evidence to show his presence at far off place and not at the place of incident at the relevant point of time and again at the cost of repetition, it may be stated that the defence has not projected or assigned any such motive for the parents of prosecutrix to falsely implicate the accused in such a heinous crime like rape which comes with the cost of exploiting the mental faculties of themselves as well as their own child who not only have to bear the distress during the investigation but are also subjected to social and mental ramifications. Merely because the father of prosecutrix was allegedly jealous that accused was growing financially or that accused was at good terms with his Chacha with whom PW9 himself was not at good terms, itself cannot be considered a reason sufficient for false implication of accused in such a heinous crime.
36. The falsity of defence is rather apparent on record since accused stated that the day of incident was second Saturday when Chath Puja was being celebrated and all the family members of prosecutrix were S.C. No.: 15/2013 19/20 present at home. However, in terms of record and particularly calendar for the year 2010, Chath Puja was to be celebrated on 6th Day from Diwali which was on 5th November 2010 and therefore Chath Puja was performed on 11th of November 2010, whereby the defence of accused that the family members of prosecutrix were present at home on the date of incident due to celebration of Chath Puja which had fallen on 13th November 2010 is falsified.
37. In view of the discussion made herein above, I have no hesitation to conclude that prosecution has been able to prove its case against accused beyond any shadow of doubt. Accordingly, accused is held guilty and convicted for the offence u/s 376 IPC.
38. Let he be heard on point of sentence.
(SAVITA RAO) Additional Sessions Judge02 (Central) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 08.08.2014 S.C. No.: 15/2013 20/20