Delhi District Court
State vs :-Dinesh on 13 October, 2009
1 IN THE COURT OF SH. BHARAT PARASHAR:ASJ-II (NW DISTT.):ROHINI:DELHI S.C.NO.954/08 STATE VERSUS:-DINESH FIR NO.202/08 U/S 376(2)(f) IPC PS NANGLOI. ORDER ON SENTENCE. Vide my separate judgment dated 9.10.2009, accused Dinesh, S/o Sh. Ram Singh has been convicted of the offence u/S 376(2)(f) IPC. I have heard ld. APP for the state and ld. Amicus Curiae Shri Dinesh Sharma for the convict. It has been submitted that the convict is a young man aged about 25 years and is the sole ray of hope of his old aged parents. It was further submitted that convict has no previous criminal record of any nature whatsoever. It was further stated that convict has already remained in jail for a period of more than 18 months during the course of present trial and that his conduct has completely remained above board. A lenient view was thus prayed for. On the other hand, ld APP has strongly opposed the contentions of ld counsel for convict stating that the act of the convict was barbaric in S/V DINESH, FIR NO.202/08, PS NANGLOI 2 nature and he does not deserve any leniency. It was further stated that convict left no chance in spoiling the life of a young girl. Maximum punishment was thus prayed to be inflicted upon him. I have carefully perused the record. Keeping in view the overall facts and circumstances of the present case coupled with the submissions made, I am of the considered opinion that the interest of justice will be suitably met if convict Dinesh is sentenced to rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/- for the offence U/s 376(2)(f) IPC. It is ordered accordingly. In default of payment of fine, convict shall further undergo simple imprisonment for a period of six months. Convict shall get the benefit of Section 428 Cr. P.C. A copy of judgment as well as order on sentence be given to the convict free of cost and another copy be attached with his jail warrant. File be consigned to record room. Announced in the open court on 13.10.2009. (BHARAT PARASHAR) ADDITIONAL SESSIONS JUDGE-II (NW DISTT.) ROHINI COURTS:DELHI *rk S/V DINESH, FIR NO.202/08, PS NANGLOI 3 IN THE COURT OF SH. BHARAT PARASHAR:ASJ-II (NW DISTT.):ROHINI:DELHI S.C.NO.954/08 STATE VERSUS:- DINESH, S/O SH. RAM SINGH, C/O VICKY, R/O VILL. TILANGPUR, KOTLA, DELHI-41. FIR NO.202/08 U/S 376(2)(f) IPC. PS NANGLOI. DATE OF INSTITUTION IN SESSIONS COURT: 11-7-2008 DATE ON WHICH JUDGMENT RESERVED : 23-9-2009 DATE ON WHICH JUDGMENT PRONOUNCED:9-10-2009. JUDGMENT
Briefly stated the case of the prosecution as unfolded by the report U/S 173 Cr.PC is as under :-
"On 22-3-2008 at around 4pm accused Dinesh took one minor girl "A" (name of the prosecutrix has been changed as it is a case u/S 376 IPC), aged about 03 years, who was the daughter of one of his neighbourer to give food to her. The mother of the girl, namely, Birwati did not object to the accused taking her minor daughter as being neighbourers he often used to take her for providing food etc. However, S/V DINESH, FIR NO.202/08, PS NANGLOI 4 after some time Birwati suddenly heard cries of her daughter and she immediately rushed to the room of accused Dinesh and where she found that her daughter was not wearing anything below her waist and accused had also pulled down his pant and underwear and had inserted his penis in the vagina of her daughter and was lying upon her and was moving back and forth. Her daughter was crying. Birwati immediately gave a push to accused Dinesh, who ran away from there and went to another room. Birwati found blood oozing out from the vagina of her daughter. She immediately raised hue and cry. Public persons caught hold of accused Dinesh and gave beating to him. The minor girl was immediately taken to SGM Hospital where Shishpal, the husband of Birwati also joined her as he too in the meantime had received information about the incident. At the hospital, the victim child was medically examined by Dr. Jyoti Bansal, who upon local examination found the posterior vaginal wall torn with bleeding over there. The vaginal swab of the victim child was also collected. In the meantime PCR van had also removed accused Dinesh to SGM Hospital. Upon receipt of information about the incident at PS Nangloi, ASI Abhinandan along with Ct. Satish initially went to the spot and from there he went to SGM Hospital. At the hospital, he collected MLC of victim child and recorded statement of Birwati. Accused Dinesh was also got medically examined S/V DINESH, FIR NO.202/08, PS NANGLOI 5 at SGM hospital by Dr. Brijesh Singh. On the basis of the statement of Birwati, ASI Abhinandan prepared a rukka and got a case registered at PS Nangloi for the offence U/S 376(2)(f). He also collected the sealed pullandas containing the vaginal swab of the victim child and the blood sample and underwear of the accused which were also collected by the doctors. After registration of the case, the subsequent investigation was taken over by W.SI Sunita. She prepared the site plan of the place of incident on the pointing out of Birwati. Accused was also arrested by her. She also recorded statement of the victim child in question answer form. The various case property articles were later on sent to FSL-Rohini through Ct. Gulab Singh. 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(2)(f) IPC was framed against accused Dinesh to which he pleaded not guilty and claimed trial.
Prosecution thereafter in order to prove its case examined 10 witnesses. Accused was thereafter examined U/S 313 Cr. PC. He thereafter examined himself as DW1 in his defence.
PW3 Smt. Birwati was the mother of the victim child and the complainant on whose statement the present case came to be registered. In her deposition, she reiterated the prosecution story while S/V DINESH, FIR NO.202/08, PS NANGLOI 6 proving her statement Ex.PW3/A lodged with the police.
PW4 Shishpal was the father of victim child, who had come to know about the incident later on through his wife and had also accompanied his wife and the victim child to the hospital where his daughter was medically examined.
PW2 "A" was the victim child herself. The statement of this witness was not recorded by the then ld. Predecessor of this court as he found her to be unable to respond to any queries.
PW1 HC Narender Kumar was the MHC(M), PS Nangloi with whom the various case property articles were deposited by the IO and later on he had sent them to FSL, Rohini through Ct. Gulab Singh vide RC No.90/21/08.
PW5 HC Jai Bhagwan was the duty officer, PS Nangloi, who had recorded FIR Ex.PW5/A in the present matter.
PW8 Dr. Jyoti Bansal had medically examined the victim child vide her MLC Ex.PW8/A. PW9 Dr. Brijesh Singh had medically examined the accused vide MLC Ex.PW9/A. He found nothing in his medical examination which could suggest that accused was not capable of having sexual intercourse.
PW7 ASI Abhinandan was the initial IO of the case. In his S/V DINESH, FIR NO.202/08, PS NANGLOI 7 deposition, he reiterated about the investigation so carried out by him besides proving the various documents/memos prepared during the course of investigation.
PW10 WSI Savita took over the investigation of the case after registration of the case. She also reiterated the investigation so carried out by her besides proving the various documents/memos prepared during the course of investigation.
PW6 Ct. Satish Kumar had remained associated with both ASI Abhinandan and WSI Savita in the investigation of the case and thus corroborated their deposition in material particulars.
Ld. Defence counsel also made a statement stating that the correctness or veracity of the factum of recording of DD No.39B dated 22-3-08 vide which information about the incident was initially received at PS Nangloi was not disputed by him and accordingly the said DD No.39B was taken on record as proved as Ex.PZ1.
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. He further stated that he had not committed rape with the victim child and had merely inserted a finger in her vagina.
As DW1 accused again reiterated the aforesaid plea of defence stating that he had merely inserted a finger in the vagina of the S/V DINESH, FIR NO.202/08, PS NANGLOI 8 victim child but, when she cried and blood started oozing out from her vagina then, he left her at her house. He further stated that after seeing blood coming out from the vagina of the girl her mother thought that he had committed rape upon her and raised alarm and thereafter people gathered and gave beating to him.
I have heard ld. APP as well as learned Amicus Curiae-Sh. Dinesh Sharma for accused at length and also perused the written submissions filed by Ms. Madhulika Mehta, learned counsel for Delhi Commission for Women.
It has been submitted by learned defence counsel that the accused had merely inserted a finger in the vagina of the victim child and this fact was clearly evident from the nature of injuries as were found on her person. He further stated that when a full grown-up male will commit rape with a minor child, aged about 3-4 years then, the injuries would have been much more severe than the one as were found on the person of victim child in the present case. Relying upon certain observations made in LYON'S Medical Jurisprudence For India by Shri S.N. Gour, Advocate, 10th Edition 2002, he stated that the injuries as were found on the person of victim child were possible only in case of insertion of some foreign body in the vagina of the child and thus finger was one such foreign body. He thus stated complainant Birwati to be deposing falsely S/V DINESH, FIR NO.202/08, PS NANGLOI 9 and sought acquittal of the accused for the offence U/S 376(2)(f) IPC and stated that accused can at the most be held guilty of the offence U/S 354 IPC only.
On the other hand, ld. APP strongly opposed the contentions of learned Amicus Curiae stating that the deposition of PW8 Dr. Jyoti Bansal besides that of PW3 Smt. Birwati was sufficient in itself to prove that accused did commit rape upon the victim child. 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 thus prayed to be convicted.
I have carefully perused the record.
At the outset, I may state that not only from the deposition of PW3 Smt. Birwati but, also from the plea of defence taken by the accused all during the course of trial, it stands clearly proved on record that the minor girl "A" was indeed taken by accused Dinesh on the pretext of providing her food etc. In view of the contention of accused that he only inserted a finger in the vagina of the minor girl, it is also clear that the intention of the accused in taking away the minor child away from her mother was to sexually assault her. It is also clear that he had pulled down the underwear of the minor girl with a view to sexually assault her. The only issue which is now left to be considered is as to whether S/V DINESH, FIR NO.202/08, PS NANGLOI 10 accused committed sexual intercourse with the minor girl by inserting his penis into her vagina or he merely inserted his finger into her vagina.
Ld defence counsel has sought to rely upon the nature of injuries as were found on the person of the minor girl to support his contention that the accused had only inserted his finger into the vagina of the minor girl and not his penis. Before I advert on to this contention of learned defence counsel vis-a-vis the deposition of PW8 Dr. Jyoti Bansal, I may state that PW3 Smt. Birwati, the mother of the girl has categorically stated in her deposition that when she pushed open the door of the room in which accused and her daughter were there then, she found accused lying upon her daughter. She also stated the clothes of her daughter from waist down were not there and accused had also pulled down his own underwear. She also specifically stated that accused was moving to and fro on her daughter and was committing rape. All the suggestions put to the contrary by learned defence counsel were vehemently denied by this witness. Moreover, nothing material could be elicited from her deposition which could favour the case of the accused or may lead me to disbelieve her deposition in this regard. Moreover, a mother will be the last person to exaggerate such kind of allegations involving her own daughter and there was no reason for her to say that accused was committing rape if accused was actually not doing so. In fact in her S/V DINESH, FIR NO.202/08, PS NANGLOI 11 cross-examination, it was not even suggested that accused had not pulled down his underwear. It was also not suggested that accused was not lying upon the minor girl.
Coming now to the medical evidence, I may state that ld. defence Counsel relied upon certain observations made in LYON'S Medical Jurisprudence For India by Shri S.N. Gour, Advocate, 10th Edition 2002 stating that in case of rape by an adult on an immature female usually considerable amount of local injury will be caused. Severe injuries may be followed by inflammation and sloughing of the parts. It has been observed that injuries to the genitals of immature females resembling those resulting from rape, have also been caused in certain cases when there is introduction of foreign bodies other than the penis.
However, I may state that PW8 Dr. Jyoti Bansal, who had medically examined the minor girl was categorical in her deposition that upon examination, she found tear in posterior vaginal wall. She further stated that the tear in posterior vaginal wall cannot be caused merely on account of insertion of finger inside the vagina. She specifically stated that there is difference between penetration caused by finger as compared to that by penis. She also stated that though in case of forceful and vigorous sexual intercourse with a three year old child by a fully grown male, the damage may extend to perineum, anus or even S/V DINESH, FIR NO.202/08, PS NANGLOI 12 the muscle. She however stated that in case of lesser penetration or lesser use of force there may not be any damage or much less extensive damage as above. She also denied the suggestion put forth by learned defence counsel that her opinion was contrary to the medical literature. She also specifically stated that on account of insertion of finger tear in the posterior vaginal wall or bleeding cannot occur. In fact in the extract of the book relied upon by learned defence counsel also, it is mentioned that in case of rape by an adult on an immature female considerable amount of local injury is usually caused but, it is also mentioned that injury may also amount simply to bruising with laceration of the parts.
Thus, from the deposition of PW8 Dr. Jyoti Bansal coupled with that of PW3 Smt. Birwati, it is crystal clear that accused did commit rape upon the minor girl by inserting his penis into her vagina. The medical evidence also cogently supports the aforesaid conclusion. Moreover, it is well settled that even partial or slightest penetration of the male organ even with or without any admission of semen is sufficient to constitute the offence of rape. The depth of penetration is completely immaterial in this regard. Reliance in this regard can be placed upon the STATE OF UP VS BABUL NATH (1994) 6 SCC 29 & AMAN KUMAR VS STATE OF HARYANA, AIR 2004 SC 1497.
Thus, in view of my aforesaid discussion the other lapses S/V DINESH, FIR NO.202/08, PS NANGLOI 13 pointed out by learned defence counsel that the IO did not collect the blood from the spot etc ceases to have any significance. Even accused himself stated about blood oozing out of the vagina of the victim girl when he stated that from the blood coming out of the vagina, the mother of the child thought that rape has been committed with the child. The deposition of PW3 Smt. Birwati is clearly cogent, convincing and reliable and in the light of the medical evidence as led on record by the prosecution no room whatsoever for any doubt is left that accused did commit rape with the minor girl.
The prosecution in my considered opinion has thus been completely successful in proving its case against accused-Dinesh beyond shadows of all reasonable doubts.
Accordingly, accused Dinesh is hereby held guilty of the
offence under Section 376(2)(f) IPC and is
convicted thereunder.
ANNOUNCED IN OPEN COURT
TODAY i.e. ON 9-10-2009.
(BHARAT PARASHAR)
ADDL. DISTRICT & SESSIONS JUDGE
S/V DINESH, FIR NO.202/08, PS NANGLOI
14
*rk NW DISTT.: ROHINI COURTS: DELHI
FIR NO.202/08
U/S 376(2)(f) IPC.
PS NANGLOI.
9-10-09
Pr. Addl. PP for the State.
Accused is present in JC.
Vide my separate detailed judgment dated 9-10-09 accused has been convicted of the offence U/S 376(2)(f) IPC.
Case is now adjourned for Arguments on Sentence to 13/10/2009 at 2pm.
(BHARAT PARASHAR) ADDL. DISTRICT & SESSIONS JUDGE NW DISTT.: ROHINI COURTS: DELHI *rk S/V DINESH, FIR NO.202/08, PS NANGLOI 15 FIR NO.202/08 U/S 376(2)(f) IPC.
PS NANGLOI.
13-10-09 Pr. Addl. PP for the State.
Convict is present in JC along with Amicus Curiae Sh. Dinesh Sharma. Vide my separate detailed Order dated 13-10-09 Order on Sentence has been announced.
File be consigned to record room.
Announced in the open court on 13-10-09.
(BHARAT PARASHAR) ADDL. DISTRICT & SESSIONS JUDGE NW DISTT.: ROHINI COURTS: DELHI *rk S/V DINESH, FIR NO.202/08, PS NANGLOI