Delhi District Court
State vs :-Dinesh @ Budh Ram, on 28 January, 2010
1 IN THE COURT OF SH. BHARAT PARASHAR:ASJ-II (NW DISTT.):ROHINI:DELHI S.C.NO.1111/09 STATE VERSUS:-DINESH @ BUDH RAM, FIR NO.392/06 U/S 376 IPC. PS PASCHIM VIHAR ORDER ON SENTENCE Vide my separate detailed judgment dated 27.1.2010 accused Dinesh @ Budh Ram, S/o Sh. Ramji Lal has been convicted for the offence under Section 376 IPC . I have heard ld. APP for the State and convict Dinesh himself on the point of sentence. It has been submitted by convict Dinesh that he is a young boy, aged about 25 years and has already remained in jail for a period of more than four years during the course of present trial. It was further submitted that he was arrested by the police just 15 days after his marriage and his long incarnation has further destroyed his family life. It was also stated that he is the sole ray of hope of his old aged mother and that his conduct during the course of present trial has completely remained aboveboard. A lenient view was thus prayed for. On the other hand, ld. APP strongly opposed the contentions of the convict stating that allegations against the convict are serious in nature and in the guise of running a placement agency he exploited young innocent girls. It was further submitted that he has been convicted in another similar case by this court and he deserves to be inflicted 2 maximum punishment. I have carefully perused the record. Keeping in view the overall facts and circumstances of the case coupled with the submissions made, I am of the considered opinion that the interest of justice will be suitably met if convict Dinesh @ Budh Ram is sentenced to rigorous imprisonment for a period of 07 years and to pay a fine of Rs.10,000/- for the offence under Section 376 IPC. In default of payment of fine convict shall further undergo simple imprisonment for a period of 04 months. It is however clarified that as convict Dinesh has also been sentenced in another case FIR No.391/2006 of PS Paschim Vihar, u/S 376/354 IPC today itself so for the purposes of clarifications, it is directed that substantiative period of sentence of imprisonment in both the cases shall run concurrently. Benefit of Section 428 Cr.PC shall be given to the convict in both the cases with respect to the period of imprisonment already undergone by him. However, the period of imprisonment in default of payment of fine shall run one after the other, in case the fine amount is not paid and that too after the substantiative period of imprisonment of the convict is over. A copy of the judgment as well as that of Order on Sentence be given free of cost to convict today itself. 3 File be consigned to Record. Announced in the open court on 28.01.2010. (BHARAT PARASHAR) ADDITIONAL SESSIONS JUDGE NW DISTT.: ROHINI COURTS:DELHI *rk 4 IN THE COURT OF SH. BHARAT PARASHAR:ASJ-II (NW DISTT.):ROHINI:DELHI S.C.NO.1111/09 STATE VERSUS:- DINESH @ BUDH RAM, S/O SH. RAMJI LAL, R/O H.NO. D-24, JJ COLONY, SHAKUR PUR, DELHI. FIR NO.392/06 U/S 376 IPC. PS PASCHIM VIHAR DATE OF INSTITUTION IN SESSIONS COURT: 29-7-2009 DATE ON WHICH JUDGMENT RESERVED : 20-1-2010 DATE ON WHICH JUDGMENT PRONOUNCED: 27-1-2010. JUDGMENT
Briefly stated the case of the prosecution as unfolded by the report U/S 173 Cr.PC is as under:-
"On 8-5-2006 one girl "A" (name of the prosecutrix has been changed as it is a case u/S 376 IPC) approached PP Miyawali Nagar, PS Paschim Vihar and lodged a complaint against one Dinesh Kumar @ Budh Ram levelling allegations of rape having been committed with her by him. She stated that on 5-10-2005 she was brought from her village in District Gumla, Jharkhand by someone to work as a maid servant in Delhi and was taken to the placement agency being run by accused Dinesh Kumar in B-3 Ekta Enclave. Dinesh Kumar got her employed in some house but after four months she returned back to the office of Dinesh Kumar from her employers house. However, Dinesh Kumar made her to 5 stay in his office. She further stated that Dinesh Kumar made her to drink liquor and used to get his body massaged from her. She also stated that Dinesh Kumar even committed rape with her for four days and told her to not to disclose about it to anyone. However, in the month of April, 2006 through one sister Phelomena Tirkey, she went to the office of sister Sophia and told her all the facts. They informed her father in Jharkhand about it and after he came to Delhi then they took her to police post Miyawali and where she got recorded her complaint. On the basis of her complaint ASI Urmila Sharma prepared a rukka and got a case registered at PS Paschim Vihar for the offence U/S 376 IPC". She also got recorded her statement u/S 164 Cr.PC".
It will be worthwhile to mention over here that at the same time one other girl was also brought by sister Sophia and sister Phelomena to PP Miyawali Nagar, who was also allegedly rescued by them from the office of said Dinesh Kumar and with whom also Dinesh Kumar had committed rape. A separate case was registered at PS Paschim Vihar vide FIR No.391/06 on the basis of the complaint of said girl against accused Dinesh Kumar and the said case is though being decided today itself but by a separate judgment as the trial of the two cases was carried out separately.
Prosecutrix was got medically examined to SGM Hospital. Accused Dinesh Kumar was called for from his office and after interrogation he was arrested. He allegedly made a disclosure statement and it was reduced into writing. He was also got medically examined. The 6 doctors had collected the semen sample of accused and his blood sample besides the vaginal swab and blood sample of the prosecutrix and the same were later on sent by the IO to CFSL- Kolkatta. Thus, upon completion of necessary further investigation challan was prepared and was filed in the court for trial".
Upon committal of the case to the court of sessions, charge for the offence U/S 376 IPC was framed against accused Dinesh Kumar to which he pleaded not guilty and claimed trial.
Prosecution thereafter in order to prove its case examined 12 witnesses.
Accused was thereafter examined U/S 313 Cr. PC. He however did not lead any evidence in his defence.
PW1 'A' was the prosecutrix herself. In her deposition she reiterated the prosecution story while proving her complaint Ex.PW1/A. PW2 Dr. Manoj had entered the witness box to prove the MLC of prosecutrix Ex.PW2/A which was in the hand of Dr. Savinder Singh, who was no longer available.
PW3 HC Jai Singh was the duty officer, PS Paschim Vihar, who had recorded the FIR Ex.PW3/A in the present case on 9-5-06.
PW4 Phelomena was an animator in Chetnalya Institute in the area of Punjabi Bagh. She stated that being an animator associated with Chetnalya Institute, she used to visit various placement agencies to inquire about the welfare of the girls and during one of her such visit the prosecutrix met her in the office of accused Dinesh Kumar and told her 7 about her plight. She accordingly brought her to the office of sister Sophia and upon coming to know about the entire incident they also informed her parents in Jharkhand and her father came to Delhi. Thereafter, they took her to PP Miyawali Nagar to get a case registered.
PW5 Ct. Satyawan had taken the sealed pullandas in the present case to CFSL-Kolkatta on 12-6-06 vide RC No.91/21.
PW6 Sister Sophia also corroborated the deposition of PW4 Phelomena and that of prosecutrix in material particulars while deposing almost on identical lines.
PW7 ASI Dev Singh was the MHC(M), PS Paschim Vihar with whom the various exhibits of the case were deposited.
PW8 Sh. Puran Chand was the then ld. MM, Rohini, who had recorded statement u/S 164 Cr.PC of the prosecutrix.
PW9 Dr. VK Jha was the Chairman of a Board of Doctors constituted to carry out the bone age .x-ray examination of the prosecutrix and upon examination they opined her age to be more than 18 years vide their report Ex.PW9/A. PW10 Dr. Kirti Srivastav proved the medical examination notes made on the MLC of prosecutrix by one Dr. Monika, who too was no longer available.
PW11 Ct Sanjay had accompanied IO/ASI Urmila Sharma in the investigation of the matter and corroborated her deposition in material particulars.
8
PW12 ASI Urmila Sharma was the IO of the case. In her deposition she reiterated about the investigation so carried out by her besides proving the various documents/memos prepared by her during the course of investigation.
As the present case and case FIR No.391/06 were registered simultaneously at PS Paschim Vihar against accused Dinesh on the statement of two different prosecutrix so, they were investigated together by the same IO and accused was arrested in both the cases together. Thus, accused Dinesh was got medically examined at SGM Hospital during the course of investigation of both the cases simultaneously and his original MLC was placed in the charge sheet of case FIR No.391/06 and its photocopy was placed in case FIR No.392/06. Similarly, after the vaginal swab of both the prosecutrix were collected by the doctors in the two cases, they were sent together for examination to CFSL-Kolkatta along with the blood sample and semen sample of accused and they were examined vide a common report. Thus, the original CFSL report was placed in case FIR No.391/06 and a copy thereof was placed in case FIR No.392/06.
Ld. Defence Counsel accordingly made a statement dated 15- 10-06 that as the said MLC of accused Dinesh has already been proved in case FIR No.391/06 so, it may be treated as proved in case FIR No.392/06 also and the said doctor need not be examined again. Similarly, as regards the CFSL report also he stated that as the same stands proved in case FIR No.391/06 so, it may be treated as proved in case FIR No.392/06 9 also. The MLC of accused Dinesh and the CFSL report were thus taken on record in the present case as proved and were exhibited as Ex.PZ1 and Ex.PZ2 respectively.
Accused in his statement U/S 313 Cr.PC however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely.
I have heard ld. APP as well as learned counsel Sh. Yogender Chaudhary for accused at length.
It has been submitted by learned defence counsel that accused has been falsely implicated in this case at the instance of sister Sophia, sister Phelomna and one other placement agency owner out of business rivalry. It was also submitted that sister Sophia and sister Phelomena were stock witnesses of the police and as admitted by sister Sophia herself and IO/ASI Urmila Sharma that she has been a witness in 5- 6 similar other case. It was further submitted that the prosecutrix was misled by the rival placement agency owner in connivance with sister Sophia and sister Phelomena to blackmail the accused and when accused refused to yield to their illegal demands then he was got falsely implicated in this case. A number of contradictions were sought to be highlighted in the deposition of the various prosecution witnesses so as to show that they were not deposing the truth. It was further submitted that there was unexplained delay of about one month in the lodging of the FIR by the prosecutrix. It was thus stated that the prosecution has been unsuccessful in proving its case against the accused beyond shadows of 10 all reasonable doubts. He was thus prayed to be acquitted.
On the other hand, ld. APP strongly opposed the contentions of learned counsel for the accused stating that the sole deposition of the prosecutrix was sufficient to bring home the guilt of the accused. It was further submitted that the contradictions so pointed out by learned defence counsel were minor in nature and prosecutrix being an illiterate girl of a remote village in Jharkhand could not be expected to gather sufficient courage to raise her voice against the atrocities of accused. It was stated that the matter was reported after the father of prosecutrix came to Delhi. It was thus stated that the prosecution has been successful in proving its case against the accused beyond shadows of all reasonable doubts. He was accordingly prayed to be convicted.
It will be worthwhile to mention that one counsel Ms. Madhulika Mohta from Rape Crises Cell, Delhi Commission for Women also appeared during the course of trial and submitted her written submissions in support of the prosecutrix.
I have carefully perused the record as well as the written submissions filed by ld. counsel for Delhi Commission for Women.
At the outset, I may state that the present prosecution case basically revolves around the deposition of prosecutrix. No-doubt, leearned defence counsel has tried to point out certain contradictions in the deposition of PW4 sister Phelomena and PW6 sister Sophia but, in my considered opinion before I advert on to the said contradictions, it will be appropriate to first analyze the nature of deposition of the prosecutrix. 11
It will be also important to note that prosecutrix in the present case is an illiterate minor girl belonging to a remote village in Jharkhand, who had come to Delhi to work as a maid servant. This fact has not been disputed by the accused at all during the course of entire trial. It is also not in dispute that she had come to Delhi a few months prior to the incident. The accused has also not disputed that the prosecutrix had indeed come to his placement agency and that he had got her employed her in some house as a maid servant. He has also not disputed that the prosecutrix had come back to his office of placement agency a few months after working in the said house. Thus, the deposition of the prosecutrix has to be seen and analyzed keeping in mind her aforesaid profile.
The prosecutrix in her deposition has given vivid details of the entire series of incident in which she was sexually exploited by the accused. Certain suggestions were put to her in her cross-examination stating that no such incident of sexual exploitation took place but, she vehemently denied all the suggestions stating them to be false. Accused on the other hand merely stated that he is being falsely implicated by PW4 sister Phelomena and PW6 sister Sophia in connivance with another placement agency owner. He further stated that they used to blackmail him. However, I may mention that during the course of entire trial nothing has come on record as to on what ground PW4 sister Phelomena and PW6 sister Sophia used to blackmail the accused. All such suggestions put to them were also denied by them. In fact, a perusal of the deposition of 12 the prosecutrix along with the long arduous cross-examination which she underwent clearly shows that she did not give any vague or evasive answers. She clearly stated that the matter was reported to the police after about one month. Had there been any intention of falsely implicating the accused then all such incidents could have been stated to have taken place a few days prior to lodging of complaint. She clearly stated that she narrated the incident to PW4 sister Phelomena only when she came to the agency of accused to inquire about the welfare of the girls living over there. She further stated that thereafter when she was taken to PW-6 sister Sophia then her father was informed at Jharkhand and who then came to Delhi and thereafter she went to the police station to lodge the report.
Coming now to certain contradictions as pointed out in the deposition of PW4 sister Phelomena and PW6 sister Sophia, I may state that all those contradictions are by and large minor in nature and are bound to occur when the witnesses enter the witness box after a gap of some time and deposes as per their memory. In fact in the cross- examination of PW4 sister Phelomena, it was nowhere denied that she had not gone to the office of accused or had not brought the prosecutrix from over there. She was merely put a suggestion that she along with one Joseph used to blackmail the accused which she denied. In the cross- examination of PW6 sister Sophia also it was nowhere disputed by the accused that prosecutrix was brought from his office by PW4 sister Phelomena or that she was not taken to the office of sister Sophia by 13 sister Phelomena. Again she was also put certain suggestions that she used to blackmail the accused and which suggestions she also vehemently denied.
Thus, from the aforesaid nature of deposition of prosecutrix coupled with that of sister Sophia and sister Phelomena, it stands proved that prosecutrix was indeed rescued from the office of accused by sister Phelomena and was taken to the office of sister Sophia and from there she was taken to police post Miyawali Chowki. As regards the other contradictions stated to by learned defence counsel regarding the manner in which accused came to be arrested or the place and time where all the writing work was carried out, I may state that the same does not affect the evidentiary value of the witnesses in any manner and rather goes to show that the witnesses were not tutored witnesses and have deposed as per their memory.
As regards the contention of learned Defence Counsel that sister Sophia has appeared in 4-5 similar other cases also as a witness, the same in my considered view does not affects the credibility of the prosecution case. Firstly, she and sister Phelomena were stated to be involved with Chetnalya Institute to help such like girls. It also cannot be denied that such kind of incidents with such girls brought from remote areas do take place leading to their exploitation. Secondly, what is of importance is the testimony of the prosecutrix herself. If it is found to be cogent, convincing and reliable then irrespective of the deposition of sister Sophia or sister Phelomena, who have merely deposed about the 14 subsequent proceedings which took place after the actual incident of rape, the prosecution case cannot be made to suffer simply because sister Sophia has deposed in 4-5 similar other cases. No-doubt her deposition needs to scrutinized with care and caution.
The Hon'ble Supreme Court in State of Himachal Pradesh Vs. Kehraj (2000) 1 SCC 247 has made it ample clear that minor embellishments or variations should not render the evidence of the victim of crime unbelievable. To quote :-
"that in support of the impugned judgment the learned Counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are dis- favoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement". 15
Once again coming to the aspect of delay in lodging of the FIR, I may state that the background of the prosecutrix as mentioned above and the trauma which she underwent in the office of accused cannot be overlooked and an explanation has come that the father of prosecutrix was informed in Jharkhand and after he came to Delhi then the matter was reported to the police.
It was observed in Tulshidas Kanolkar Vs. The State of Goa (2003) 8 SC 590 by the Hon'ble Apex Court that :-
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case".
In case State of Rajasthan Vs. Om Prakash, (2002) 5 SCC 745 the Hon'ble Supreme Court has held that in a case where delay is explained by the prosecution in registering the case the same could be 16 condoned, moreover when the evidence of the victim is reliable and trustworthy.
As regards the contention of learned defence counsel as to whether the conviction of accused can be based on the sole deposition of the prosecutrix, I may state that in a catena of judgments, it has been held that if the deposition of the prosecutrix is found to be reliable and trustworthy then, no corroboration is required for the same.
In the case ARSHAD VS. STATE 2009 VI AD (DELHI) 37, it was observed by Hon'ble High Court that the conviction of an accused can be based solely on the testimony of a rape victim may be a child provided it inspires confidence of the court. It was further observed that in rape cases, the testimony of the victim is vital and seeking corroboration to her statement for relying upon the same as, a rule would amount to adding insult to injury unless the court finds compelling reasons requiring corroboration of her statement. Similar view was taken by Hon'ble Supreme Court of India in the case MADAN GOPAL VS NAVAL DUBEY & ANOTHER (1992) 3 SCC 204.
Thus, in the present case the deposition of the prosecutrix as discussed herein above is cogent, convincing and reliable. Minor variations in the examination or cross-examination are natural as with lapse of time memory is bound to fade a little. Her deposition inspires complete confidence to the court.
Thus, in view of my aforesaid discussion, I am of the considered opinion that the prosecution has been successful in proving its case 17 against accused-Dinesh @ Budh Ram that he committed rape upon prosecutrix, aged about 14 years while she was staying in his office.
I accordingly hold accused Dinesh @ Budhram guilty of the offence U/S 376 IPC and convict him thereunder.
ANNOUNCED IN THE OPEN COURT ON 27-1-2010.
(BHARAT PARASHAR) ASJ:NW-II, ROHINI COURTS:DELHI *rk