Delhi District Court
State vs . Tara Chand on 24 January, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 71/2012
Unique Case ID No: 02404R0196742012
State Vs. Tara Chand
S/o Til Ram
R/o Chakki Wale ka Makan,
Suraj Park, Badli,
Delhi
Permanent address:
Village Roata, PS Jakh,
Post Office Lacha, Distt. Almora,
Uttrakhand.
(Convicted)
FIR No. 150/12
Police Station: Samay Pur Badli
Under Sections: 376/506 Indian Penal Code
Date of committal to session Court: 25.8.2012
Date on which orders were reserved: 10.1.2013
Date on which judgment announced: 10.1.2013
JUDGMENT:
(1) As per the allegations, the accused Tara Chand is the Mausa of the prosecutrix 'P' (name of the prosecutrix is withheld since this is a case under Section 376 IPC) and was staying along with her family. It is St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 1 alleged that fourfive months prior to 2.5.2012 at House No. B4/66, Suraj Park, Sector18, Rohini, Delhi the accused Tara Chand committed rape upon the prosecutrix 'P' aged about 13 years. It is also alleged that the accused Tara Chand criminally intimated the prosecutrix 'P' that her father would be killed if she discloses the incidents to anyone. BREIF FACTS OF THE PROSECUTION:
(2) The case of the prosecution is that on 3.5.2012 an information was received at Police Station Samaypur Badli from Baba Sahib Ambedkar Hospital, Rohini that a girl 'P' aged about 13 years, unmarried in a pregnant condition was got admitted in the hospital by her father.
The said information was reduced into writing vide DD No.21A which was handed over to ASI Raj Devi who reached the hospital and collected the MLC of the victim and recorded her statement. In her statement to the police, the victim 'P' informed that her father was working as a Cook in a hotel and her mother was working as maid servant in kothies. According to the victim, about fourfive months ago her Mausa (uncle) Tara Chand started residing in their house and started working with her father as Cook. She further informed the police that they were residing in a tenanted room and she used to sleep along with her parents in the said room only and after her parents went off to sleep, her Mausa Tara Chand used to wake her up and took her outside the room near the door where he used to commit rape upon her. She further alleged that Tara St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 2 Chand used to threaten her not to disclose about the incidents to anybody or else he would kill her father. According to the prosecutrix 'P' out of fear she did not raise any alarm nor she informed her parents about the same but on 2.5.2012 she experienced pain in his stomach on which her father took her to Dr. Baba Sahib Ambedkar Hospital where she was treated.
(3) On the basis of the said statement of the prosecutrix 'P' the present case was got registered and investigations were commenced. There was a natural abortion suffered by the prosecutrix and hence the fetus fetus could not be preserved but on account of the complications she was brought to the hospital where dilation and evacuation was completed samples of which product were taken, preserved and handed over to the Investigating Officer which were thereafter sent to FSL for examination. On 4.5.2012 the accused Tara Chand was arrested at the instance of the father of the prosecutrix who on interrogation admitted his involvement in the present case. During investigations the statement of the prosecutrix 'P' was recorded under Section 164 Cr.P.C. before the Ld. MM wherein she stood by her ground. After completion of investigations charge sheet was filed against the accused Tara Chand in the Court.
CHARGE:
(4) Charges under Sections 376 and 506 Indian Penal Code were settled against the accused Tara Chand to which he pleaded not guilty St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 3 and claimed trial.
EVIDENCE:
(5) In order to prove its case the prosecution has examined as many as Thirteen Witnesses as under:
Prosecutrix/ public witnesses:
(6) PW6 Joginder is the father of the prosecutrix who has deposed that he was a Cook by profession and was residing at B78, Gali No.7, Suraj Park, Badli, Delhi along with his wife namely Anju Arya @ Hansi Devi who used to work in the Kothies as a Maid Servant, daughter 'P' aged about 13 years and son Kuldev Arya. He has also deposed that on 1.5.2012 when he returned back to his house in the evening his daughter 'P' complained of pain in her stomach after which in the night he took his daughter to Baba Sahib Ambedkar Hospital, Delhi at about 1:00 (night). Witness has further deposed that there was a bleeding from the private parts of his daughter in the hospital and doctor medically examined her and also treated her. According to him, doctor informed him that she was pregnant and it was a case of rape. He has testified that his daughter remained admitted in the hospital for about nine to ten days where she was medically treated. He has also deposed that after one day of admission of his daughter 'P' in the hospital, police came in the hospital and recorded the statement of his daughter 'P' wherein his daughter 'P' alleged that his Sandhu/ cobrother Tara Chand St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 4 whom the witness has correctly identified in the Court had committed rape upon her. The witness has further deposed that the police conducted their proceedings at his house and prepared the site plan at the instance of his daughter and also prepared the videography.
According to him, lady police officer also took his daughter 'P' to Rohini Court for recording the statement of his daughter before the Ld. MM and her statement was recorded. He has proved that the accused Tara Chand was arrested on 4.5.2012, interrogated him and recorded his disclosure statement vide Ex.PW6/A. He has testified that his daughter 'P' was admitted in MCD Primacy School Rohini in class first in the year 2007 and her date of birth is 2.4.2002. According to him, before 1.5.2012 accused Tara Chand was residing with them for the last seven eight months.
(7) In his cross examination by Ld. Defence counsel, the witness has deposed that he was residing at the abovesaid address on rent and there are only two rooms on the second floor. According to the witness, he along with his family members i.e. his wife, daughter 'P' and son Kuldev and accused Tara Chand used to sleep in the same room. He has testified that he came to know about the pregnancy and the rape of his daughter 'P' from the doctors and it was thereafter that his daughter 'P' also disclosed the same to him. He has admitted that prior to that his daughter never informed him about any kind of misbehaviour by the accused nor he noticed any abnormality in her conduct. Witness has St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 5 admitted that prior to this he had no suspicion on his daughter or on the accused or anybody. He has denied the suggestion that he has enmity with Tara Chand due to which reason he was falsely implicated in this case.
(8) PW7 Smt. Anju Arya @ Hansi Devi is the mother of the prosecutrix who has deposed that she was residing at C78, Gali No.7, Suraj Park, Badli, Delhi along with her husband, daughter 'P' aged 13 years and son Kuldev aged about 9 years. According to her, she used to work in the Kothies as a Maid Servant and her husband used to work in the Hotel as a Cook. She has further deposed that she know accused Tara Chand whom the witness has correctly identified in the Court who is the husband of her younger sister. She has also deposed that accused Tara Chand also used to reside with them for about four to five months prior to the date when her daughter made complaint to them about pain in her stomach. Witness has testified that on the First day of May of 2012, her daughter complained to her about pain in her stomach and at night at about 1011 PM her husband Joginder and accused Tara Chand returned back to the house when she informed her husband about the condition of 'P'. According to her, thereafter her daughter complained severe pain in her stomach on which they took her to a Government Hospital i.e. Baba Sahib Sambedkar Hospital in Rohini where her daughter 'P' was admitted and was medically examined by the doctors. The witness has further deposed that the prosecutrix 'P' remained St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 6 admitted in the hospital for about nine days and the doctor informed them that she was pregnant and had been raped. She has also deposed that police was also informed by the hospital authorities and her daughter 'P' informed to the nurses of the hospital that accused Tara Chand committed rape upon her. The witness has also deposed that she came to know from the nurses that her daughter 'P' was raped by Tara Chand. According to the witness, however, her daughter 'P' did not tell anything to her and Police came to the hospital on 3.5.2012 and made inquires from 'P'. She has also deposed that police recorded her statement wherein she alleged that accused Tara Chand committed rape upon her and after nine days his daughter 'P' was discharged from the hospital.
(9) In her cross examination by Ld. Defence counsel, the witness has deposed that the house where she was residing is on rent. She has also deposed that her daughter 'P' is her eldest child. She has clarified that she was married around 16 years ago in the village. According to the witness, she was around 35 years of age and the prosecutrix 'P' was born at home after three years of marriage in Delhi. Witness has also deposed that no information was given to Anganwari or to the Municipal Corporation and therefore there is no authentic date of birth certificate of her daughter 'P'. She has also deposed that her daughter 'P' was seven to eight years when she was got admitted in the school. The witness has further deposed that her husband had given the information regarding St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 7 the date of birth of 'P' but she is unable to tell what is the date of birth of 'P' mentioned in the school record nor does she recollect in which year the prosecutrix 'P' was born. She has denied the suggestion that she was giving wrong age of her daughter by five to six years or that her daughter is more than 18 years of age. The witness has testified that she was doing the work in the Kothies as a maid and her daughter 'P' did not go with her to help her. She has further deposed that she has two children one daughter and one son. According to the witness she used to leave her house at about 78:00 AM and returned by 56 PM. The witness has also deposed that the prosecutrix 'P' used to leave the house by 8:00 AM and used to return at about 2:00 PM and thereafter left for tuition at 3:00 PM. She has admitted that she was not at home when 'P' used to return from the school and also when she returns from tuition and has voluntarily explained that she used to return at about 4:30 PM. Witness has further deposed that her daughter 'P' used to go to tuition along with one Madam and returned with her husband. She has denied the suggestion that the prosecutrix 'P' goes for tuition alone along with her other friends. She is unable to tell the name of the Madam with whom her daughter 'P' goes for tuition. She has admitted that she cannot tell with whom the prosecutrix 'P' goes in her absence and has voluntarily explained that she only knew that she went for tuitions. Witness has further deposed that prior to the time when they took the prosecutrix to the hospital, she (prosecutrix 'P') never told him about St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 8 anything nor she noticed any abnormality in her behaviour and conduct and has voluntarily explained that she was totally normal. Witness has admitted that she never had any suspicion on the accused or on her daughter till such time she was taken to the hospital for treatment and they came to know that she was pregnant. Witness has denied the suggestion that the accused had been falsely implicated by her and her husband or that the prosecutrix 'P' had named the accused on her tutoring because they were inimical to Tara Chand.
(10) The Prosecutrix 'P' has been examined as PW8 wherein she has deposed that she is a student of Class 6th studying in Sarvodaya Kanya Vidyalaya, Samaypur Badli, Delhi and her father is a cook in a hotel and her mother is doing the work of chowkabartan in the kothies. According to her, the accused Tara Chand (whom the witness has correctly identified by the prosecutrix in the Court) is her Mausa being the husband of her real Mausi. She has further deposed that about four to five months prior to the incident, the accused Tara Chand had come to Delhi and started staying at their house on the asking of her Mausi. She has testified that Tara Chand was unemployed and her Mausi pleaded with her father to get him employed somewhere on which her father got him employed in the same hotel as a cook and Tara Chand started staying at their house. She has further deposed that they are residing on rent in one room and they all used to sleep together in that room. She has has explained that there are two rooms in the house and while they St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 9 were residing in one room on rent, whereas the other room remained vacant because nobody was residing there.
(11) This Court observed that suddenly during her examination the prosecutrix stopped speaking and was quiet. On great persuasions from the Court to inform as to what had happened, she then continued to depose that the accused Tara Chand used to commit gandi harkat with her. The witness was thereafter examined by the Court in Question Answer form in vernacular during which she explained that when her parents went off to sleep, Tara Chand used to wake her up and asked her to come outside and there he used to commit rape upon her (Jab mere papa mammi so jate thye, Tara Chand mujhe neend se utha kar kahta that ki bahar aa aur fir mujhe bahar bula kar mere sath galat harkat karta tha). On being asked whether she informed about this fact to anybody, the prosecutrix responded that she did not tell anybody since Tara Chand used to threat her not do disclose the incident to anybody or else he would stab her father (Tara Chand kehta tha ki yadi maine iss ghatna ke baare mei kisi ko bataya toh mere papa jo rat ko uske sath aate jate hain, woh unko (her father) chaku mar dega). (12) According to her, one day she felt pain in her abdomen on which her father took her to the hospital where she was examined and the doctor came to know of everything. She has deposed that initially she did not tell anything to the doctor in the hospital but when the Doctor questioned her, she told everything to her (Doctor) about what St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 10 Tara Chand had done with her on which the Doctor informed the police. She has also deposed that Police came to the hospital and recorded her statement which is Ex.PW8/A bearing her signatures at point A. She has proved that after some days she was produced before the Ld. MM when her statement under Section 164 Cr.P.C. was recorded which is Ex.PW8/B. On a specific Court Question on how many occasions did the accused made physical relations with her, to which the accused responded that Tara Chand made physical relations with her almost daily for a period of two to four months.
(13) In her crossexamination the witness has admitted that she, her parents, her brothers and the accused Tara Chand used to sleep in one room. She has further deposed that the accused used to do galat kaam with her in the room which is on the front side and has voluntarily explained that the said room remained vacant as nobody used to reside in the same. It was observed by this Court that the witness has explained that she and her family were residing as tenants in one room whereas the other room was vacant and nobody was residing there. She has also deposed that when the accused used to wake her up in the night, nobody from her family had ever came to know of the same and has voluntarily explained that her mother used to take sleeping pills during the night for her depression treatment and therefore she (mother) did not ever come to know what was happening. According to the witness, her father did not ever realize what was going on during the St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 11 night and has voluntarily explained that her father and the accused Tara Chand used to take alcohol together before sleeping and therefore he (her father) never came to know what had happened during the night (sone se pehle mere papa aur Tara Chand sarab piya karte thye isliye mere papa ko sone ke baad kuch pata nahi chalta tha). She has testified that she did not raise any alarm when the accused used to take her out and has voluntarily explained that she was extremely scared because whenever she tried to object, the accused used to show her a knife. The witness has further deposed that she did not tell any of her friends in the school or her class teacher or any other teacher, as to what Tara Chand was doing with her and has voluntarily explained that at that time she was new in the school and did not know anybody there. According to the prosecutrix, on one occasion she had tried to tell her mother about the incident but her mother refused to believe stating that he (Tara Chand) used to love her and take good care of her because Tara Chand used to give her chocolates and chaumin to eat [meri mammi ne vishwas nahi kiya aur kaha ki wo (Tara Chand) mujhe (witness) itna pyar karta hai uspe aisa ilzaam nahi lagana. Tara Chand mujhe khane ki liye chocolates aur chaumin diya karta tha jiske kaaran meri mammi ko wiswas nahi hua ki wo aisa galat kaam karta hoga aur issi karan mai kisi ko nahi bata pai]. The witness has also deposed that the accused Tara Chand used to leave to her school in the morning and in the evening she used to go for tuition and has voluntarily explained St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 12 that she used to go tuition alone. She has denied the suggestion that she had made physical relations with some other person and when her parents came to know about the same, in order to save their honour, they have falsely implicated Tara Chand. She has also denied the suggestion that she has deposed falsely to implicate the accused at the instance of her parents.
(14) PW9 Nitin Kumar has deposed that he is a photographer by profession and he is running a shop of photography under the name and style of Jeet Photo Studio, Main Market, Samaypur, Delhi. According to him, in the month of May 2012, date he does not recollect, he had received a call from Police Station Samaypur Badli for reaching C78, Suraj Park and on receipt of this information he reached the spot where he met ASI Madam and on her directions he took three photographs from his digital camera which photographs are Ex.PW9/A to Ex.PW9/C. He has testified that again on 14.7.2012 he was called to the same premises i.e. C78, Suraj Park by one Inspector Madam from Police Station Samaypur Badli on which he reached the spot and on her directions he conducted the videography of the spot as pointed out by her and converted the same into CD which is Ex.PW9/D. According to the witness, he handed over the aforesaid photographs and the CD to the Investigating Officer who recorded his statement. (15) In his cross examination by Ld. Defence counsel, the witness had denied the suggestion that he did not take any photographs or St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 13 conduct the videography as aforesaid or that the same has been manipulated on the directions of the police officers. Medical witnesses:
(16) PW4 Dr. Hemlata has deposed on behalf of Dr. Roshini Aggarwal. She has proved the MLC No. 1718/12 dated 2.5.2012 in respect of the prosecutrix 'P' D/o Joginder, female 13 years which is in the handwriting of Dr. Roshini Aggarwal which MLC is Ex.PW4/A. According to the MLC, the prosecutrix 'P' was brought to the hospital by her father Joginder at about 1:30 AM as she was complaining of pain in abdomen and bleeding pervagina from five days and history of passage of some fleshy mass per vagina at home. Witness has further deposed that Dr. Rohini Aggarwal medically examined the prosecutrix 'P' in the Labour Room of the hospital during which her UPT was found positive but her parents did not give any history pertaining to the sexual or physical assault. According to the witness, on local examination slight bleeding per vagina was found positive, her hymen was torn, cervical OS was closed and uterus was found anteverted, normal size. She has also deposed that the patient 'P' was admitted in the hospital for further dilation and evacuation which evacuated material was preserved and handed over to the Investigating Officer.
She has also deposed that the patient was found fit for statement on St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 14 2.5.2012 at about 1:34 AM and the endorsement of Dr. Roshini Aggarwal is at point B on the MLC.
(17) In her cross examination by Ld. Defence counsel, the witness has denied the suggestion that the MLC is false. She has admitted that the said MLC was not prepared in her presence and that 'P' was not medically examined by Dr. Roshini Aggarwal in her presence. (18) PW11 Dr. Vineet Popli has deposed that on 29.6.2012 the prosecutrix 'P' was produced before the Medical Board comprising of Dr. Rajeev Ranjan (Radiologist), Dr. Jitender Singh (Ortho Surgeon), Dr. Vijay Dhankar (HOD, Deptt. of Forensic Medicine) and Dr. Kunwar Sanjay Kumar (Dental Surgeon) for her age determination/ ossification test. According to the witness, after examining the prosecutrix 'P' , the Medical Board gave its report which is Ex.PW11/A according to which the approximate bone age of the prosecutrix 'P' was more than 14 years but less than 16 years. He has proved having forwarded the said report vide forwarding letter Ex.PW11/B. In his cross examination by Ld. Defence counsel, the witness has admitted that the prosecutrix 'P' was not medically examined by the Medical Board in his presence. Forensic Experts:
(19) PW13 Sh. A.K. Shrivastava Deputy Director (Biology), DNA Fingerprinting Unit, FSL, Delhi has deposed that on 18.12.2012 two samples duly sealed with the seal of DS FSL DELHI were marked St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 15 to him for examination. According to the witness, the parcel No.1 was opened and it found to contain blood sample of the accused which was marked as Exhibit 1a and blood in gauze of accused which was marked as Exhibit 1b. He has further deposed that on opening the parcel No.2 it found to contain the POC kit of the victim which was marked as Exhibit 2a and three pads in normal saline of victim. The witness has proved that the source of exhibit 1a, 1b, 2a & 2b were subjected to DNA isolation and DNA was isolated from the source of exhibit 1a, 1b, 2a & 2b and DNA profile was generated for the exhibits 1a, 1b, 2a & 2b by suing AmpFL STR Identifier Plus PCR Amplification kit. He has also deposed that STR analysis was used for each of the sample and Data was analysed by using Gene Mapper IDX software. According to him, on examination one set of alleles of the source of exhibit 1a (Blood of accused), 1b (blood in gauze of accused) are accounted in the alleles of the source of exhibit 2a (POC of victim) and exhibit 2b (pads in normal saline of victim). The witness has proved having concluded that the DNA Profiling (STR Analysis) performed on the exhibits provided is sufficient to conclude on set of alleles from the source of exhibit 2a (small quantity of dark liquid i.e. POC of victim) and exhibit 2b (pads in normal saline of victim) are similar with one set of alleles of the source of exhibit 1a (blood of accused) and 1 b (blood in gauze of accused). He has proved his detail report in this St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 16 regard which is Ex.PW13/A and the Genotype Data Table which is Ex.PW13/B. In his crossexamination the witness has denied the suggestion that he has given the DNA report on the asking of the Investigating Officer.
Police/ official witnesses:
(20) PW1 Ct. Ashwini is a formal witness who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the arrest memo of the accused Tara Chand which is Ex.PW1/A; his personal search memo which is Ex.PW1/B and the seizure memos of the exhibits of the accused taken by the doctor which are Ex.PW1/C and ExPW1/D. He has been cross examined on the aforesaid aspects and has stood by his version.
(21) PW2 HC Om Prakash is also a formal witness who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the copy of FIR which is Ex.PW2/A and his endorsement on rukka which is Ex.PW2/B. He has been crossexamined Ld. Defence counsel on the aforesaid aspects and has stood by his version.
(22) PW3 Ct. Krishan Pal is a formal witness who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having taken the rukka to Police Station Samaypur Badli and having got the FIR registered. St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 17 (23) In his cross examination by Ld. Defence counsel, the witness has deposed that the statement of the prosecutrix 'P' was recorded by ASI Raj Devi at BSA Hospital but he does not remember the exact time and has voluntarily explained that it was evening time. According to him, the Investigating Officer recorded the statement of 'P' in a room of the hospital while he was present outside the room and he did not hear the statement given by 'P' and has voluntarily explained that he had read over the statement of 'P' when he took the rukka to Police Station. The witness has further deposed that he left the hospital with rukka at about 10:00 PM and reached Police Station by auto at about 10:30 PM and returned to the hospital at about 11:00 - 11:15 PM and handed over the copy of the FIR and original rukka to ASI Raj Devi.
(24) PW5 Smt. Renu Bhatnagar Principal of MC Primary School, Sector18 Rohini has brought the Admission Register and the relevant documents pertaining to the prosecutrix 'P' D/o Joginder and Hansi Devi. She has proved that as per the admission record, the prosecutrix 'P' was admitted in their school on 6.7.2007 vide serial no. 5936 in class 1st. and her date of birth is 2.4.2002. She has placed on record the copy of the admission register which is Ex.PW5/A. She has testified that the Admission Form was filed by Joginder in respect of admission of the prosecutrix 'P' copy of which Admission Form is Ex.PW5/B. The witness has also deposed that Sh. Joiginder had submitted his affidavit in respect of the date of birth of the child copy of St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 18 which affidavit is Ex.PW5/C. She has proved having issued a certificate regarding the date of birth of the prosecutrix 'P' which is Ex.PW5/D. (25) In her cross examination by Ld. Defence counsel, witness has admitted that Joginder did not submit any date of birth certificate of the prosecutrix 'P' from any local authority at the time of her admission and that admitted that the date of birth of the prosecutrix 'P' was written on the school record on the basis of the affidavit filed by her father Joginder.
(26) PW10ASI Raj Devi is the Investigating Officer who has deposed that on 3.5.2012 she was posted as ASI at Police Station Samaypur Badli and on that day at about 2:10 PM she received an information from Duty Officer of Police Station to reach BSA Hospital where a girl was admitted. She has also deposed that accordingly she reached BSA Hospital where she met PSI Sanjay and Ct. Krishan Pal. According to her, in the meanwhile Inspector Investigation Police Station Samaypur Badli Inspector Dubey also reached the Hospital and made inquiries from the doctors regarding the samples preserved by the doctors but they informed them that the fetus of the prosecutrix was aborted on 2.5.2012 itself and they did not preserve the aborted fetus. Witness has further deposed that thereafter she met the girl 'P' D/o Joginder, R/o B4/66, Suraj Park, Rohini and made inquiries from her and she also obtained the MLC of the prosecutrix after which she recorded St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 19 the statement of the girl in the presence of her parents, which statement is Ex.PW8/A. According to her, she attested the same at point B and prepared a rukka Ex.PW10/A and Ct. Krishan Pal was sent to the police station along with the original rukka for registration of the FIR. She has testified that in the meanwhile, she informed the representative of NGO namely Nazma and also recorded the statements of the parents of the prosecutrix. According to the witness, at about 11:1511:20 PM Ct. Krishan Pal returned to the hospital and handed over to her the copy of FIR and original rukka and thereafter they returned back to the Police Station. She has deposed that on the next day morning at about 7:00 AM she along with Ct. Ashwini and father of the prosecutrix namely Joginder tried to search the accused Tara Chand and when they reached near Railway Line Suraj Park Joingder pointed out towards the accused Tara Chand who was apprehended and interrogated. She has also deposed that during interrogation the accused revealed that he was residing with the family of Joginder and was raping the prosecutrix 'P' for the last many days during night hours after taking the prosecutrix to other room and had threatened the prosecutrix not to disclose to anybody. She has proved that after being satisfied, the accused Tara Chand was arrested vide memo Ex.PW1/A; his personal search was also conducted vide memo Ex.PW1/B and recorded his disclosure statement which is Ex.PW6/A. She has testified that the accused was thereafter got medically examined at BSA Hospital through Ct. Ashwini and St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 20 according to her Joginder was relieved from the spot itself after which she returned back to the Police Station. The witness has also deposed that at about 12:00 Noon Ct. Ashwini also returned to the Police Station and handed over her two MLCs and six envelops (exhibits) duly sealed with the seal of Deptt. of FM Dr. BSA Delhi Govt. along with the sample seal. According to her, the aforesaid samples were seized vide memo Ex.PW1/C and Ct. Ashwini also handed over to her a box containing twothree pads (kit containing POC) which was seized by her vide memo Ex.PW1/D. According to her on the same day the accused Tara Chand was produced before the Ld. MM and was sent to judicial custody. She has further proved that on 10.5.2012 she moved an application before the Ld. MM for recording the statement of the prosecutrix under Section 164 Cr.P.C. which application is Ex.PX4, pursuant to which the proceedings under Section 164 Cr.P.C were conducted which are Ex.PX3 and statement of the prosecutrix 'P' was recorded under Section 164 Cr.P.C. which is Ex.PW8/B. Witness has further deposed that thereafter she moved an application for obtaining the copy of the proceedings which application is Ex.PX2 which was allowed pursuant to which she obtained the copy of the proceedings under Section 164 Cr.P.C. According to her, she came to know that the actual address of the prosecutrix is C78, Suraj Park and the address of B4/66, Suraj Park was of the working place of the mother of the prosecutrix. She has testified that on 11.5.2012 she got the spot of St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 21 incident photographed through a private photographer Nitin and also prepared the site plan of the spot at the instance of the prosecutrix which site plan is Ex.PW10/B. She has also deposed that on 17.5.2012 she herself took the exhibits of this case and got deposited the same to FSL Rohini and thereafter she was transferred from Police Station Samaypur Badli. She has correctly identified the accused Tara Chand in the Court. (27) In her cross examination by Ld. Defence Counsel the witness has deposed that she received the information at about 2:10 PM and reached the hospital within five to ten minutes and at the time she reached the hospital only the parents of the child were present with her. She has admitted that she recorded the statement of the prosecutrix after the representative of the NGO had counselled her and that the child had first disclosed the incident to the doctors. The witness has also admitted that in the first information which was received by them the name of the accused was not mentioned. She has denied the suggestion that when she questioned the prosecutrix she did not disclose the name of the accused to her or that the prosecutrix had mentioned the name of the accused in her statement on the basis of which the FIR was registered on the tutoring of the parents of the prosecutrix. The witness has also denied the suggestion that the statement under Section 164 Cr.P.C. was recorded after a delay to enable and assist the parents of the prosecutrix so that in the meanwhile they has sufficient time to tutor her. Witness has admitted that the doctors from the BSA hospital did not handed over St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 22 any exhibit to her regarding the alleged aborted fetus. She has testified that she had asked the doctors regarding the exhibits of the alleged aborted fetus but they informed them that they did not preserve the same. The witness has admitted that the prosecutrix was a minor and on the face of it appeared to be below 16 years of age and it was necessary for the doctors to has immediately informed the police about the incident and preserved the evacuated material/ aborted fetus as case property. According to her, she did not initiate against the erring doctors in this regard but she cannot confirm if any action was taken by her successor. She has denied the suggestion that the said material was deliberately not collected or preserved at the instance of the prosecutrix as it would has proved the innocence of the accused or that that she did not carry out the free and fair investigations or that the investigations were motivated at the instance of the parents of the prosecutrix.
(28) PW12 Inspector Parvati Devi has deposed that on 29.5.2012 while she was posted as Inspector at Police Station South Rohini, she was handed over the investigations of the present case. According to her, on 29.6.2012 during her investigations she got the ossification test/ age determination test of the prosecutrix conducted from BSA Hospital and she obtained the ossification test report which is Ex.PW11/A according to which the estimated age of the prosecutrix 'P' was more than 14 years and less than 16 years. Witness has further deposed that on 14.7.2012 she got the spot of incident videographed through the private St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 23 photographer Nitin who thereafter handed over the CD of the video recording to her and he recorded the statement of Nitin. She has testified that after discussing with the senior officers, the provisions of Section 506 IPC were added. She has proved having recorded the statements of the witnesses and after completion of investigations, the charge sheet was filed in the Court through SHO Police Station Samaypur Badli. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
(29) The accused Tara Chand has admitted his MLC which is Ex.PX5. On 5.12.2012 the Ld. Addl. Public Prosecutor for the State has requested for sending the exhibits for reexamination pursuant to which the SHO concerned was directed to ensure that the exhibits were sent to the FSL and the fresh DNA examination was got conducted. STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(30) After completion of prosecution evidence the statement of the accused Tara Chand was recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to him which he has denied. He has denied having made any disclosure statement and has stated that he has been arrested on false allegations. According to him, the date of birth given in the school record is incorrect. He has further stated that he is innocent and has been falsely implicated.
St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 24 (31) Today, an additional statement of the accused was recorded wherein the DNA Fingerprinting Report was put to the accused to which he stated that the said report is incorrect.
FINDINGS:
(32) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the material on record and the written memorandum of arguments filed on behalf of the accused. My findings are as under:
Identity of the accused:
(33) In so far as the identity of the accused Tara Chand is concerned, the same is not disputed. He has been specifically named in the FIR. He is closely related to the family of the victim being her Mausa (husband of mother's sister) and has also been correctly identified by the prosecutrix/ victim in the Court. In view of the above, I hold that the identity of the accused Tara Chand stands established.
Age of the prosecutrix:
(34) The case of the prosecution is that the victim 'P' is aged about 13 years and in her testimony before this Court as well she has given her age as 13 years. According to the school record the date of birth of the prosecutrix is 2.4.2002. However, the said date of birth of the St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 25 prosecutrix was recorded only on the basis of the affidavit filed by her father Joginder. Therefore, there being no authentic document showing the date of birth of the prosecutrix, her ossification/ age determination test was got conducted. As per the ossification/ age determination test report which is Ex.PW11/A the estimated age of the prosecutrix 'P' was opined to be more than 14 years but less than 16 years as on 29.6.2012 thereby showing that at the time of the incident she was between 1416 years of age. In view of the above, I hereby hold that at the time of the incident the prosecutrix 'P' was between 1416 years of age not even having attained the age of consent and her consent, if any, becomes immaterial.
Medical evidence:
(35) PW4 Dr. Hemlata has proved the MLC of the victim 'P' which is Ex.PW4/A showing that the victim had been brought to hospital by her father Joginder at 1:34 AM on 2.5.2012 as she was complaining of pain in abdomen and bleeding per vagina from 5 days and history of passage of some fleshy mass per vagina at home. She has proved that Dr. Rohini Aggarwal medically examined the prosecutrix 'P' in the Labour Room and UPT was found positive but the parents did not give any history pertaining to the sexual or physical assault. On further examination of the prosecutrix 'P' she observed slight bleeding per vagina, hymen was torn, cervical OS was closed and uterus was found St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 26 anteverted & normal size. According to Dr. Hemlata it is on account of the aforesaid reasons that the prosecutrix 'P' was admitted in the hospital for further dilation and evacuation. Thereafter the Product of Conception of the prosecutrix 'P' was collected by the doctor, sealed and handed over to the Investigating Officer which was seized vide memo Ex.PW1/D. It is evident from the record that though there was a natural abortion suffered by the prosecutrix 'P' yet the complete dilation and evacuation could only take place in the hospital with medical assistance and supervision.
(36) The medical record of the victim 'P' shows that a sexual assault had been committed on her as a result of which she had conceived and thereafter the dilation and evacuation was was carried out in the hospital and Product of Conception (POC) was collected and preserved by the doctor and handed over to the Investigating Officer.
The MLC of the victim confirms that the minor had been subjected to sexual exploitation and I hold that the medical evidence on record is compatible to the history of sexual offence (Rape) upon the minor prosecutrix 'P'.
Forensic Evidence:
(37) It is evident from the record that the exhibits of the prosecutrix which comprises of the Product of Conception after dilation and evacuation were collected at the BSA Hospital which were thereafter St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 27 sealed and handed over to the Investigating Officer by the doctors were sent to FSL for DNA examination. Initially on 31.10.2012 analysis was conducted by Analyst Sh. Dhruv Sharma, Assistant Director (Biology) and he reported that the DNA could not be amplified from the exhibits of the victim. However, not being satisfied by the manner in which the said report was given the Director FSL and HOD (DNA) were again vide order dated 5.12.2012 directed to conduct the fresh analysis of the exhibits with specific directions that the Analysis should be carried out by the HOD himself. On 9.1.2013 the fresh DNA Fingerprinting Report was received from FSL wherein Sh. A.K. Shrivastava HOD (DNA Fingerprinting) reported that he could amplify the DNA from the said exhibits of the Product of Conception (i.e. POC collected by the doctor pursuant to dilation and evacuation) by using AmpFL STR Identifier Plus PCR Amplification Kit. Sh. A.K. Shrivastava (PW13) has proved the said report which is Ex.PW13/A and the Genotype Data which is Ex.PW13/B. According to the DNA Report Ex.PW13/A the DNA Profiling (STR Analysis) performed on the exhibits provided was sufficient to conclude that one set of alleles from the source of exhibit 2a (Product of Conception) and exhibit 2b (three pads in normal saline of victim) were similar with one set of alleles of the source of exhibit 1a (blood of accused) and 1b (blood in gauze of accused). In view of the above, I hereby hold that the forensic evidence on record is compatible to the prosecution case and conclusively St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 28 establishes that the aborted fetus of the prosecutrix has been fathered by accused Tara Chand and hence connects the accused with the offence.
Allegations against the accused Tara Chand:
(38) The case of the prosecution is that the accused who is the maternal uncle/ Mausa of the child prosecutrix had been exploiting her sexually. The entire prosecution case revolves around the testimony of the prosecutrix 'P'. The prosecutrix 'P' belongs to an extremely poor strata of the society and the accused Tara Chand had come to Delhi to earn his livelihood. The parents of the prosecutrix in the background of their close relationship and taking pity on accused, not only helped him by getting him an employment at the same place (hotel) where the father of the prosecutrix was working but also permitted him to stay in their house which was a one room tenancy on the first floor. The father of the child was a habitual alcoholic and her mother was a patient of depression. The accused Tara Chand taking advantage of the situation daily consumed alcohol with the father while her mother consumed sleeping pills for her depression before settling down at night. It was then that he used this opportunity to sexually exploit the prosecutrix after taking her out to the adjoining room which was vacant. Ironically, the prosecutrix had even told her mother on one occasion about the accused Tara Chand but she refused to believe her in view of their close relationship. The relevant portion of the testimony of the prosecutrix 'P' is as under:St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 29
"....... I am a student of Class 6th and studying in Sarvodaya Kanya Vidyalaya, Samaypur Badli, Delhi. My father is a cook in a hotel and my mother is doing the work of chowkabartan in the kothies.
The accused Tara Chand who is present in the court (correctly identified by the witness) is my mausa being the husband of my real mausi. About 4 to 5 months prior to the incident, Tara Chand had come to Delhi and was staying at our house on the asking of my mausi. Tara Chand was unemployed and my mausi pleaded with my father to get him employed somewhere. My father who is a cook in a hotel, got him employed in the same hotel as a cook and Tara Chand started staying at our house. We are on rent in one room and we all used to sleep together in that room. At this stage, the witness has explained that there are two rooms in the house and they are staying in one room on rent whereas the other room remains vacant as nobody is residing there.
Now at this stage, the witness has suddenly stopped speaking and has kept quiet. On persuasions from the Court to inform as to what had happened, she has then slowly stated 'Tara Chand mere sath gandi harkat kiya karta tha'.
Court question : Tara Chand apke sath kya gandi harkat karta tha ?
Ans. Jab mere papa mammi so jate thye, Tara Chand mujhe neend se utha kar kahta that ki bahar aa aur fir mujhe bahar bula kar mere sath galat harkat karta tha.
Court question: Galat Harkat se aapka kya matlab hai?
Ans.: Wo upna pesab karne wala meri pesab karne wale mie dalta tha. (He used to put his private part St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 30 into my vagina).
Court question: Eh baat aapne kisi ko batai thi ? Ans.: Nahi, kyonki Tara Chand mujhe dhamki deta tha.
Court question: Kya dhamki deta tha?
Ans.: Tara Chand kehta tha ki yadi maine iss ghatna ke baare mei kisi ko bataya toh mere (witness's) papa jo rat ko uske sath aate jate hain, woh unko (her father) chaku mar dega.
Court question: Uske baad kya hua tha ?
Ans.: Ek din mere pet mie dard hua tha aur tab maine Papa ko bataya ki pet mie bahut dard hai toh woh mujhe hospital le gaye thye toh wahan jab mera illaz hua toh doctor ko pata sab pata chal gaya tha. Court question: Kya pata chal gaya tha ? Kya aapne doctor ko kuch bataya tha ?
Ans.: Pehle maine doctor ko kuch nahi bataya tha par baad mei jab doctor ne mujhse poocha toh maine unko saari baat batai thi ki Tara Chand kya karta tha aur uske baad doctor sahab ne police ko hospital mie hi bulaya aur police ne mera bayan likha tha jo bayan Ex.PW8/A hai jis par mere signatures bhi hain point A par. Uske kuch din baad mujhe court mie bhi pesh kiya gaya tha jahan maine MM sahab ko saari bat batai thi aur mera bayan likha gaya tha jo bayan Ex.PW8/B hai jis per mere signatures bhi hain at point A. Court question: Tara Chand ne tumhare sath kitni baar saaririk sambandh banye thye? (On how many occasions did the accused made physical relations with you).
Ans.: Do - char mahine se roj karta tha. (Tara Chand made physical relations with me daily for a St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 31 period of 2 to 4 months)....."
(39) In her crossexamination the prosecutrix has explained that they were residing as tenants in one room whereas the other room remained vacant and nobody was residing in the same. She has further explained that the accused used to wake her up at night and nobody came to know of the same because her mother used to take sleeping pills for her depression treatment and her father and the accused Tara Chand used to consume alcohol before sleeping and hence her parents never came to know of it. According to her, she never raised any alarm when the accused used to take her to the other room because she was extremely scared as the accused used to show her a knife. She has admitted that she did not tell any of her friends in the school or her class teacher or any other teacher as to what Tara Chand was doing with her and explained that at that time she was new in the school and did not know anybody there. The prosecutrix has also explained that on one occasion she had tried to tell her mother but her mother refused to believe her on the ground that the accused Tara Chand used to love her and used to take good care of her. The relevant portion of her cross examination in this regard is as under:
"........ On one occasion, I had tried to tell my mother about the incident, but my mother refused to believe stating that he (Tara Chand) used to love me and take good care of me becauss Tara Chand used to give me chocolates and chaumin to eat. (meri mammi ne St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 32 biswas nahi kiya aur kaha ki wo (Tara Chand) mujhe (witness) itna pyar karta hai uspe aisa ilzaam nahi lagana. Tara Chand mujhe khane ki liye chocolates aur chaumin diya karta tha jiske kaaran meri mammi ko wiswas nahi hua ki wo aisa galat kaam karta hoga aur issi karan mai kisi ko nahi bata pai...."
(40) A specific suggestion has been made to the child victim that she had made physical relations with some other person and when her parents came to know about the same, in order to save their honour, they have falsely implicated the accused Tara Chand.
(41) Before evaluating the above statements of the prosecutrix on the touch stone of truthfulness and credibility, it is necessary to briefly discuss the guiding principles of law as laid down by the various Courts. I may observe that the Hon'ble Supreme Court has in the case of State of Rajasthan Vs. Biram Lal reported in 2005 AIR (SC) 2327 has held that:
"........It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the court is satisfied that the evidence of prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases , the Court may look for corroboration from independent sources or from the circumstances of the case before recording an order of conviction. In the St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 33 instant case the allegations were that the accused during night entered the prosecutrix room and committed rape on her, the evidence of the prosecution was found worthy of credit and implicitly reliable....."
(42) In the year 2006 the Hon'ble Apex Court in the case of State of Himachal Pradesh Vs. Asha Ram reported in AIR 2006 SC 381 had observed that:
"...... The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of a victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty in acting on the testimony of a victim of sexual assault and to convict an accused where her testimony inspires confidence and is found to be reliable. It is settled law that corroboration is a condition for Judicial Reliance on the testimony of the prosecutrix and is not a requirement of law but a guidance of Prudence under the given circumstances. Even minor contradiction or insignificant discrepancies in the statement of the prosecutrix cannot be a ground for throwing out, an otherwise reliable prosecution case.
(43) It was further observed by the Hon'ble Court that:
"..... No girl of self respect and dignity who is conscious of her chastity having expectations of married life and livelihood would accuse falsely against any other person of rape, much less against St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 34 her father, sacrificing thereby her chastity and also expose the entire family to shame and at the risk of condemnation and ostracization by the society. It is unthinkable to suggest that the mother would go to the extent of inventing a story of sexual assault of her own daughter and tutor her to narrate a story of sexual assault against a person who is no other than her husband and father of girl, at the risk of bringing down their social status and spoil their reputation in the society as well as family circle to which they belong to....."
(44) Further, in the case of Vishnu Vs. State of Maharastra reported in 2006 AIR (SC) 508 it was observed by the Hon'ble Apex Court that:
"..... In the traditional nonpermissive bounds of society of India, no girl or woman of selfrespect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only she would be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracized and outcast from the society she belongs to and also from her family circle. From the statement of the prosecutrix, it was revealed that the accused induced her to a hotel by creating an impression that his wife was admitted in the hospital and that he would see her first and then drop the prosecutrix at her residence whereas, in fact, she was not admitted in the hospital. On the pretext of going to Hospital, he took her to a hotel, took her inside a room, closed the door of the St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 35 room, threatened her to finish her if she shouted and then forcibly ravished her sexually. A clear case of rape, as defined under Section 375 Clause third of IPC was found established against the accused...."
(45) Also in the case of Bharwada Boginbhai Hirji Bhai Vs. State of Gujarat reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) it was observed by the Hon'ble Supreme Court that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complaints of rape or sexual molestation be viewed with doubt, disbelief or suspicion? To do so is to justify charge of male chauvinism in a male dominated society.
(46) Applying these settled principles of law to the facts of the present case Firstly it is writ large that the victim/ prosecutrix is a minor aged about 1416 years (not even achieved the age of consent). She was sexually exploited over a period of time and had even conceived. (47) Secondly the prosecutrix who was hardly 14 years of age has been most specific and categorical in so far as the aspect of consent is concerned. She has stated that the accused had been making relations with her under threat. Even otherwise, the prosecutrix being a minor (less than 16 years of age) the question of her consent under the given circumstances does not arise.
St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 36 (48) Thirdly the prosecutrix is again very consistent in her deposition regarding the manner in which she had been sexually used by the accused (her uncle). She has in her first statement to the Investigating Officer on the basis of which the FIR was registered and her later statement to the doctor and then to the Ld. MM under Section 164 Cr.P.C. and then in the Court has specifically named the accused Tara Chand and has been most consistent thereafter. She has explained how Tara Chand took advantage of the addiction of her father to alcohol and mother to sleeping pills and hence sexually exploited her for almost two to three months. Understandably the prosecutrix was hardly 12 - 13 years age at that time and was not even aware of the consequences. In fact she was not even aware that she had conceived and that when she fell sick it was because of the abortion which had taken place. It was only when she was taken to the hospital while she complained of severe stomach pain and bleeding per vagina that the doctors realized what had happened and she disclosed to them what the accused was doing to her. The sequence of events as narrated by the prosecutrix appear to be natural and probable. The prosecutrix 'P' being of immature age and understanding neither raised any alarm nor told anybody of the acts of the accused except that on one occasion when she did try to tell her mother, the mother refused to believe her in view of their close relationship with the accused and this, of course, is the biggest mistake which any parent can commit. I find the testimony of the prosecutrix 'P' St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 37 credible, reliable & truthful because it finds due corroboration and support from the report of DNA Fingerprinting.
(49) Fourthly a suggestion has been made that the prosecutrix 'P' had made relations with some other person and even conceived and her family in order to save their honour implicated the accused Tara Chand. The said suggestion is on the face of it without any basis. In fact the DNA Fingerprinting Report has conclusively nailed the accused Tara Chand. Initially the DNA could not be amplified from the exhibits of the victim but later a fresh DNA examination of the exhibits was directed to got conducted pursuant to which DNA profile was generated by using AmpFL STR Identifier Plus PCR Amplification kit and the DNA could be successfully amplified. The fresh DNA Fingerprinting Report which is Ex.PW13/A establishes that one set of alleles from the source of exhibit 2a (Product of Conception) and exhibit 2b (three pads in normal saline of victim) were similar with one set of alleles of the source of exhibit 1a (blood of accused) and 1b (blood in gauze of accused). It is this DNA Fingerprinting Report which confirms that it was in fact the accused Tara Chand who had been sexually exploiting the victim and the aborted fetus of the victim/ prosecutrix had been fathered by the accused Tara Chand.
(50) Lastly the prosecutrix 'P' has specifically deposed that on account of the threats executed by the accused Tara Chand who kept a knife on her that she did not disclose about the incident to anybody. St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 38 There is no reason to disbelieve the prosecutrix in this regard. She has been most specific and consistent in her allegations against the accused with regard to the threats being executed to her and it is apparently on account of the same that she did not disclose about the same to anybody. (51) In view of the above, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Tara Chand of having committed rape upon the prosecutrix 'P' and having criminally intimidated her for which the accused Tara Chand is held guilty of the offence under Section 376 and 506 Indian Penal Code.
FINAL CONCLUSION:
(52) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 39
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(53) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the evidence on record the following facts stand established:
➢ That the prosecutrix 'P' belongs to a very poor family who were residing in one room tenancy.
➢ That the father of the prosecutrix 'P' is working in a hotel as Cook and the mother of the prosecutrix is working as maid servant in Kothies.
➢ That at the time of the incident the prosecutrix was aged about 1314 years and was studying in Sarvodaya Kanya Vidyalaya, Samaypur Badli, Delhi in class 6th. ➢ That the accused Tara Chand is the Mausa (husband of mother's sister) of the prosecutrix.
➢ That about four to five months prior to the incident, the accused Tara Chand had come to Delhi for earning his St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 40 livelihood.
➢ That since the accused Tara Chand was unemployed the Mausi of the prosecutrix pleaded with her father to get him employed somewhere on which the father of the prosecutrix got the accused employed in the same hotel as a Cook and Tara Chand started staying at their house.
➢ That the prosecutrix and her family used to sleep together in one room only.
➢ That before sleeping the father of the prosecutrix 'P' and the accused Tara Chand used to consume alcohol daily and the mother of the prosecutrix 'P' was addicted to sleeping pills on account of her depression.
➢ That when the parents of the prosecutrix 'P' went off to sleep, the accused Tara Chand used to wake her up and asked her to come outside and used to commit rape upon the prosecutrix.
➢ That the prosecutrix 'P' did not tell anything about the incident to anybody since Tara Chand used to threat her not do disclose the incident to anybody or else he would stab her father.
➢ That on one occasion the prosecutrix 'P' told about the incident to her mother but she refused to believe her. St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 41 ➢ That on 1.5.2012 the prosecutrix 'P' started complaining her father about pain in her abdomen on which she was taken to Baba Sahib Ambedkar Hospital with a history of complaining of pain in abdomen and bleeding per vagina from 5 days and history of passage of some fleshy mass per vagina at home.
➢ That on medical examination it was found that the prosecutrix 'P' was pregnant (her UPT was positive), slight bleeding per vagina was found positive, her hymen was torn, cervical OS was closed and uterus was found ante verted & normal size .
➢ That it was thereafter that the prosecutrix 'P' informed the doctors about being sexually exploited by her Mausa Tara Chand.
➢ That on the basis of the statement of the prosecutrix 'P' the present case was got registered and the accused Tara Chand was arrested.
(54) The medical evidence on record establishes that a sexual assault had been committed on her as a result of which she had conceived and there was a natural abortion and in the hospital dilation and evacuation had been carried out after which the Product of Conception (POC) was presented and handed over to the Investigating St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 42 Officer. The DNA Fingerprinting Report establishes that one set of alleles from the source of exhibit 2a (Product of Conception) and exhibit 2b (three pads in normal saline of victim) were similar with one set of alleles of the source of exhibit 1a (blood of accused) and 1b (blood in gauze of accused), which confirms that it was in fact the accused Tara Chand who had been sexually exploiting the victim and the aborted fetus of the victim/ prosecutrix had been fathered by the accused Tara Chand. (55) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (56) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLC, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 43 trustworthy and corroborated by medical and forensic evidence and the witness of the prosecution have been able to built up a continuous link. (57) In view of the above, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Tara Chand of having committed rape upon the prosecutrix 'P' and having criminally intimidated her for which the accused Tara Chand is held guilty of the offence under Section 376 and 506 Indian Penal Code and accordingly convicted.
(58) Be listed for arguments on sentence on 14.1.2013.
Announced in the open Court (Dr. KAMINI LAU) Dated: 10.1.2013 ASJII(NW)/ ROHINI St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 44 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 71/2012 Unique Case ID No: 02404R0196742012 State Vs. Tara Chand S/o Til Ram R/o Chakki Wale ka Makan, Suraj Park, Badli, Delhi Permanent address: Village Roata, PS Jakh, Post Office Lacha, Distt. Almora, Uttrakhand. (Convicted) FIR No. 150/12 Police Station: Samay Pur Badli Under Sections: 376/506 Indian Penal Code Date of conviction: 10.1.2013 Arguments concluded on: 22.1.2013 Date of sentence: 24.1.2013 APPEARANCE: Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Convict Tara Chand in judicial custody with Sh. Rajeev Kaul Advocate/ Amicus Curiae.
St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 45
ORDER ON SENTENCE:
Child sexual abuse are dark realities in Indian society like in any other nation. 53 per cent of our children are sexually abused, according to a statistic from a survey done by the Government of India. A 1985 study by the Tata Institute of Social Sciences reveals that one out of three girls and one out of 10 boys had been sexually abused as a child. 50% of child sexual abuse happens at home. In 1996, Samvada, a Bangalore based NGO, conducted a study among 348 girls. 15% were used for masturbation mostly by male relatives when they were less than 10 years old. 75% of the abusers were adult family members. A report from RAHI, (Recovering and Healing from Incest), a Delhi based NGO working with child sexual abuse titled Voices from the Silent Zone suggests that nearly threequarters of upper and middle class Indian girls are abused by a family member often by an uncle, a cousin or an elder brother.
This case relates to intra familial sex abuse (Incest) of a minor aged about 12 years by her maternal uncle as a consequence of which she conceived. The offence was only exposed when the victim suffered a natural abortion and was hospitalized for treatment of stomach pain when the sexual abuse of the child became knowledge to the doctor and to the family of the victim child. The accused Tara Chand is the maternal uncle/ Mausa of the child prosecutrix 'P' who belongs to an extremely poor strata of the society. He had come to Delhi to earn his St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 46 livelihood and the parents of the prosecutrix in the background of their close relationship and taking pity on accused, not only helped him by getting him an employment at the same place (hotel) where the father of the prosecutrix was working but also permitted him to stay in their house which was a one room tenancy on the first floor. The father of the child was a habitual alcoholic and her mother was a patient of depression. The accused Tara Chand used to consume alcohol daily with the father of the victim while her mother was addicted to sleeping pills for her depression. The accused taking advantage of this situation sexually exploited the prosecutrix after taking her out to the adjoining room which was vacant. Ironically, the prosecutrix had even told her mother on one occasion about the bad intentions of the accused Tara Chand but she (mother) refused to believe her in view of their close relationship.
The prosecutrix 'P' had appeared in the Court and made specific allegations against the accused Tara Chand. On the basis of the testimonies of the various prosecution witnesses particularly the prosecutrix 'P' and her parents and also on the basis of the medical and forensic evidence which has come on record, this Court vide a detailed judgment dated 10.1.2013 held the accused Tara Chand guilty of the offence under Section 376 and 506 Indian Penal Code and accordingly convicted. It has been observed by this Court that it stood established that the prosecutrix 'P' belongs to a very poor family who were residing in one room tenancy; that the father of the prosecutrix 'P' is working in a St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 47 hotel as Cook and the mother of the prosecutrix is working as maid servant in Kothies; that at the time of the incident the prosecutrix was aged about 1314 years and was studying in Sarvodaya Kanya Vidyalaya, Samaypur Badli, Delhi in class 6th; that the accused Tara Chand is the Mausa (husband of mother's sister) of the prosecutrix; that about four to five months prior to the incident, the accused Tara Chand had come to Delhi for earning his livelihood; that since the accused Tara Chand was unemployed the Mausi of the prosecutrix pleaded with her father to get him employed somewhere on which the father of the prosecutrix got the accused employed in the same hotel as a Cook and Tara Chand started staying at their house; that the prosecutrix and her family used to sleep together in one room only; that before sleeping the father of the prosecutrix 'P' and the accused Tara Chand used to consume alcohol daily while the mother of the prosecutrix 'P' was addicted to sleeping pills on account of her depression; that when the parents of the prosecutrix 'P' went off to sleep, the accused Tara Chand used to wake her up and asked her to come outside and used to commit rape upon the prosecutrix; that the prosecutrix 'P' did not tell anything about the incident to anybody since Tara Chand used to threat her not do disclose the incident to anybody or else he would stab her father; that on one occasion the prosecutrix 'P' told about the incident to her mother but she refused to believe her; that on 1.5.2012 the prosecutrix 'P' started complaining her father about pain in her abdomen on which she was St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 48 taken to Baba Sahib Ambedkar Hospital with a history of complaining of pain in abdomen and bleeding per vagina for five days and history of passage of some fleshy mass per vagina at home; that on medical examination it was found that the prosecutrix 'P' was pregnant (her UPT was positive), slight bleeding per vagina was found positive, her hymen was torn, cervical OS was closed and uterus was found anteverted & normal size; that it was thereafter that the prosecutrix 'P' informed the doctors about being sexually exploited by her Mausa (Maternal Uncle) Tara Chand; that on the basis of the statement of the prosecutrix 'P' the present case was got registered and the accused Tara Chand was arrested.
It has also been observed that the medical evidence on record established that a sexual assault had been committed on her as a result of which she had conceived and there was a natural abortion and in the hospital Dilation and Evacuation had been carried out after which the Product of Conception (POC) was preserved and handed over to the Investigating Officer. Further, the DNA Fingerprinting Report established that one set of alleles from the source of exhibit 2(a) (Product of Conception) and exhibit 2(b) (three pads in normal saline of victim) were similar with one set of alleles of the source of exhibit 1(a) (blood of accused) and 1(b) (blood in gauze of accused), which confirms that it was in fact the accused Tara Chand who had been sexually exploiting the victim and the aborted fetus of the victim/ prosecutrix had St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 49 been fathered by the accused Tara Chand. In view of the above the accused Tara Chand has been held guilty of the offence under Section 376 and 506 Indian Penal Code and accordingly convicted.
Heard arguments on the point of sentence. The convict Tara Chand is stated to be aged about 29 years, having a family comprising of aged father, wife and one son aged about three years. He is 5th class pass and is a Cook by profession. Ld. Amicus Curiae has vehemently argued that the convict is the only earning member of his family and all his family members are dependent upon him. He requests that a lenient view be taken against him.
On the other hand, the Additional Public Prosecutor for the State has requested for the maximum sentence to be imposed upon the convict submitting that the convict Tara Chand who is the Mausa of the prosecutrix 'P' has committed "intrafamilial child sexual abuse" upon the prosecutrix and hence, deserves no leniency. The prosecutrix and her family were also heard on the aspects of present status and rehabilitation of the victim. The prosecutrix has informed me that she has again started her studies and presently she is studying in class 6th at Sarvodaya Kanya Vidyalya, Badli. Her father has submitted that he is working as a Cook at Jai Vaishno Rasoi, BBlock Market, Prashant Vihar at a monthly salary of Rs.8,000/ and is having three children including the prosecutrix two of whom are studying and the youngest is still aged about 2 ½ years. His wife (mother of the prosecutrix) is a St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 50 chronic patient of Depression who was previously working as a part time domestic help but is now confined at home. He has further informed that after her testimony was recorded in the Court he has now again got the prosecutrix admitted in class 6th so that she can continue with her studies. However, being a poor person he is not very optimistic as to how long he will be able to bear the financial burden relating to the studies of the prosecutrix.
I have considered the rival contentions. The Delhi High Court in the case of Khem Chand Vs. State of Delhi reported in 2008 (IV) JCC 2497 enumerated the principle factors to be taken into account by the courts while assessing as to what could be the appropriate sentence in a given case. Some of the factors enumerated are (i) Criminal and Crime, (ii) Manner of Commission of offence, (iii) Violence involved, (iv) Whether the offender or accused was in a position of fiduciary, trust or exploited a social or family relationship,
(v) State of victim, impact of crime on the victim.
The Hon'ble Supreme Court while considering the question of quantum of sentence in the case of State of Rajasthan Vs. Gajender Singh reported in 2008 (III) JCC 2061 observed as under:
"... The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property for the people is an essential functions of the state. It could be achieved through the instrumentality of criminal law. Undoubtedly, St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 51 there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet these challenges. The contagion of lawlessness would undermine social order and lay it in ruins...."
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the crime and responding to the society's cry for justice against the criminal. (Ref. Rajiv Vs. State of Rajasthan reported in 1996 (II) SCC 175).
The object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent. The hon'ble Supreme Court has while considering the sentencing policy in the case of Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78 has observed that:
"........law regulates social interests, arbitrates conflicting claims and demands. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins.
Friedman in his "Law in Changing Society" stated St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 52 that, "State of criminal law continues to be as it should be a decisive reflection of social unconsciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the move for commission of the crime, the conduct of the accused, and all other attending circumstances are relevant facts which would enter into the area of consideration......"
The Hon'ble Court has further observed that:
"...........The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion the the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread......" St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 53
"......Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crime with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is through then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment had some very undesirable practice consequences.."
The offence of rape is barbaric in nature where the victim is ravished like an animal for the fulfillment of desire and lust of another man. Hon'ble Mr. Justice Arijit Pasayat (Judge Supreme Court of India) had rightly observed that a murderer destroys the physical frame of the victim whereas the rapist degrades and defiles the soul of a helpless female. As per the official statistics a total number of 568 cases of rape have been reported in Delhi alone in the year 2011 out of which only 2% have been committed by strangers. The figure would be much high but most of the cases are not reported by the victims because of the various reasons such as family pressure, behaviour of the police, the unreasonably long and unjust process and application of law and St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 54 resulting consequences thereof.
Of late instances of young girls of impressionable age being sexually exploited are on a rise and this, I may observe, is a matter of national concern. The primary obligation of the Courts is to ensure that minors are protected from all kind of exploitations. The convict Tara Chand is closely related to the family of the prosecutrix 'P' being her real mausa (husband of the mother's sister). The prosecutrix 'P' was hardly aged 1314 years at the time of the incident. The convict Tara Chand had come to Delhi for earning his livelihood and being a close relative the parents of the prosecutrix got him employed at the same hotel where the father of the prosecutrix was working and also permitted him to stay in their house which was a one room tenancy on the first floor. The convict Tara Chand taking advantage of the faith of the parents of the prosecutrix 'P' exploited the prosecutrix sexually as a result of which at a young age of 1314 years when the prosecutrix 'P' should have been seriously involved into studies and preparing for herself for a good future, she conceived from the convict. Assuming that all this happened with the consent of the minor prosecutrix 'P' yet the law of this Country protects the minors and her consent is inconsequential and immaterial. What the convict has done with the minor prosecutrix 'P' is unpardonable and under these circumstances, no leniency can be shown to the convict.
Another argument raised by the convict Tara Chand while St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 55 pleading for lesser punishment is that by reason of intoxication he was incapable of knowing the nature of the act or that what he was doing was wrong or contrary to law and hence he has pleaded for leniency. The argument so advanced though deserves outright rejection but looking at the present scenario where day in and day out sexual abuse of women and children is happening and is on the rise, I feel constrained to deal with this argument with certain facts and figures based on Global Scientific Research which proves that there are linkages between patrons of alcohol abuse and crime. Alcohol is by a wide margin, the biggest law enforcement problem worldover. The data supplied by National Institute on Alcohol Abuse and Alcoholism, National Institute of Mental Health - USA and Task Force Report: Drunkenness, President's Commission on Law Enforcement and Administration of Justice - USA shows that most of the crimes including Homicide, Domestic Violence and Sexual Abuse are alcohol related crimes. According to Center for Disease Control and Prevention, Alcohol and Public Health Fact Sheet
- Binge Drinking (extreme alcohol consumption) is becoming an increasing problem in most countries. Alcohol is a great contributory to psychological as well as physical damage and most of the time alcohol is an easy excuse for a domestic abuser. Research material also shows the incidents of domestic abuse in households, where there is alcohol abuse is a lot higher and the abusers name the effects of alcohol as their main cause of violence.
St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 56
Alcohol is a mind altering drug which can cause an individual to do something which they would not have done otherwise. This does not refer to loosened inhibitions, but also extends to harmful acts against themselves and others. Research conducted by Dr. Richard H. Blum concludes that alcohol plays a causal role as one of the necessary and precipitating elements for violence. Such a role is in keeping with the most probable effects of alcohol as a depressant of inhibition control centers in the brain, leading to release of impulses. Increase alcohol abuse is associated with clean and significant increasing rates of violent crimes. As a society we cannot ignore the casual association between alcohol abuse and Juvenile offence.
Scientific Research have also proved that Alcohol with coverage of Nicotine and Caffeine have an extremely harmful effect on human body. Consumption of certain alcohol beverages (particularly laced with Caffeine) cause an aggressive behaviour by exacerbate preexisting propensities for aggressivity. Eriksson & C.J. Peter in the year 2008 confirmed by research the role of alcohol on aggressive human behaviour and sex abuse (Ref:The Role of Alcohol on Physical and Cognitive Functions). Researcher Eriksson also explored how sex hormones mediate aggressivity. (Ref: Hormones and Social behaviour edited by Donald W. Pfaff, Claude Kordon, Philippe Chanson and Yves Christen).
Based on the above research prohibition on alcohol has St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 57 become a serious policy issue world over and has been favourably recognized both from humanitarian as well as societal point of view. Many States have acknowledged that it is useless to prohibit other drugs including heroin so long as alcohol remains freely available but at the same time it has been felt that a total ban / prohibition on alcohol is impracticable. Currently a few countries have given a serious thought to this problem and have devised various policies relating to alcohol sale and consumption which include a policy of 'High Price', 'Increasing Age of Consumption', 'Quality (contents of alcoholic drinks being sold and consumed) of as well as Quantity (amount of alcohol available in free market) Check and Control, or even 'ban' (partial / complete). In the year 2011 a few Islamic countries like Saudi Arabia, Kuwait, Qatar, the United Arab Emirates, Iran and Gaza have imposed a ban on alcohol consumption. Ban on alcohol has an impact on health of every individual. Recently four States in Obama Administration i.e. Washington, Michigan, Utah and Oklahoma have banned many beverages containing high alcohol contents and other States are also considering a similar action. Food and Drug Administration in USA have notified a number of caffeinated alcoholic beverages and has banned them because addition of caffeine to alcohol is unsafe and has to be outlawed. Caffeinated alcoholic drinks such as Four Loko, Joose and Tilt were the most popular. Their consumption was associated with increased risk of serious injury, drunken driving, sexual assault and St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 58 other abnormal behavior and hence there is a total Ban on caffeinated alcoholic beverages in the West.
It is neither for the Government nor for the Court to indulge into moral policing but since the question is of life, liberty, safety and security of individuals on account of abuse of freedom by a section of persons and it is the Government who has been entrusted a duty to make informed decisions instead of the individuals and to protect the individuals, then it is right to allow them (Government) to take all decisions necessary to bring about prohibition of beverages, drinks and drugs which are harmful by suitable policies. The state is obligated, when the health, safety and security of the citizens is on the line, to pass laws and regulations that protect them. The right of a citizen is not to have drugs but the right is to be protected from harmful effects of substances, not merely on their own bodies but on the society as a whole. Governments would be derelict in their duties if they do not act to remove such harmful substances from the society. Interestingly in India contrary to the Constitutional Mandate (Article 47 of Constitution of India) providing that the endeavor of the State is to bring about prohibition of the consumption, only four States i.e. Gujarat, Manipur, Mizoram and Nagaland as well as Union Territory of Lakshadweep prohibit manufacture, sale and consumption of alcohol whereas all other Indian states permit manufacture, sale and consumption of alcohol. Gujarat has a sumptry law in force that prescribes the sale, purchase and St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 59 consumption of alcoholic drinks. The legislation has been in force since May 1, 1960 when the Bombay State dissolved into Maharastra and Gujarat. Gujarat is the only state in India that has the death penalty for those found guilty of making and selling spurious liquor which causes death [Bombay Prohibition (Gujarat Amendment) Bill, 2009]. This linkage of drug abuse and crime has also been widely acknowledged by a large number of political parties and it is for this reason that in the year 1996, the Haryana Vikas Party (headed by Bansi Lal) after being elected to the Legislative Assembly made it illegal to buy, sell, consume or produce alcohol in the state of Haryana and imposed a total prohibition in the entire State. However, on account of political compulsions this ban was later lifted.
It has to be acknowledged that there is a definite link between the consumption of alcohol particularly caffeinated alcohol i.e. Substance Abuse and rise in crime including those relating to aggressive sexual behaviour and the State cannot shyaway from its responsibility. The situation in India is still emerging and substance abuse is common in slum clusters in all urban localities. Most violent crimes, including crimes of sexual nature, have witnessed concomitant Substance Abuse (consumption of alcohol with coverage of Nicotine, Caffeine or other substances which is much more dangerous than Alcohol Abuse alone). In view of the above discussion, it would be imperative for the Authorities to check the demand and supply of illicit liquor in the St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 60 country. A city like Delhi needs special attention as a large number of 'Professional' bootleggers are flourishing here. The idea that they might be spiking their drinks with substances like Caffeine & Nicotine (being cheaply available) to enhance the 'Kick' associated with the drink, cannot be ruled out. The issue relating to alcohol consumption does not appear to be high on the priority of the State and perhaps it is for this reason that manufacture, sale and consumption of alcohol falls within the direct purview and jurisdiction of Department of Industries (Department of Entertainment in some states) whereas the Food & Drugs Department or even Home Department appears to be having nothing or very little to do with the same and this I am pained to observe, is despite all serious concerns being raised regarding health, safety and security of the citizens (Law and Order). No doubt, the drinks Industry is an enormous global industry providing employment to thousands and large revenue to the Government and any Prohibition / Ban to alcohol (either partial or total) would adversely affect major source of funding for public services and tax revenues but this cannot be permitted at the cost of Public Health, Security, Safety and Morality. It is necessary for the State to recognize this as an important health and safety issue and perhaps to revisit the existing governmental policies in this regard, least it is these people themselves (one's who are indulging into Alcohol and Substance Abuse) who start blaming the Government for their condition.
St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 61
Coming now to the case in hand, let me now justify my earlier observations where I have said that the argument of the convict deserves outright rejection, I need not to go very far. The answer to the argument can be found in the provisions of Sections 85 Indian Penal Code which provides that Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will. Further, the provisions of Section 86 of Indian Penal Code provide that in cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will. It is clear from the above that the statutory law of this land protects only such offenders who have been intoxicated without their knowledge or against their will. Impliedly the sections do not come to the aid of such an offender who voluntarily consumes alcohol and then commits the offence. These provisions are based upon the sound principle of Justice for a person cannot be allowed to take advantage of his own wrong and hence the convict Tara Chand cannot turn around to claim that his acts were outcome of whatever he St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 62 was consuming being freely available in the market. Here is a case where the convict Tara Chand aged about 29 years had been regularly and unashamedly raping his own niece hardly aged 1314 years after voluntarily consuming alcohol. Not only did he violate the body of child / minor but he also tormented her mentally and played treachery with the family of the child who had given him shelter. Let alone leniency he deserves exemplary punishment and hence I award the following sentences to the convict Tara Chand:
1. For the offence under Section 376 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.10,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a further period of One Month.
2. For the offence under Section 506 Indian Penal Code the convict is sentenced to Rigorous Imprisonment a period of Two Years.
Both the sentences shall run concurrently. Benefit of Section 428 Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules.
Coming now to the aspect of compensation to the victim, I may observe that rape of a minor not only affects her alone but such an St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 63 incident leaves a devastating impact on her entire family who equally suffer in silence. The victim at the time of the incident was hardly aged 1314 years. It is cases like these which the Ministry of Women and Child development needs to target for Restorative Justice so that necessary support is provided to the victim. The Hon'ble Apex Court has time and again observed that the subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. It has been so observed by Hon'ble Mr. Justice S. Saghir Ahmed and Justice Kuldip Singh (Ref: Bodhisattwa Gautam Vs. Subhra Chakraborty reported in AIR 1996 SC 922) that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
Therefore in order to provide Restorative and Compensatory Justice to the victim who requires medical attention and rehabilitation, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant a compensation to the tune of Rs.1,00,000/ (Rs. One Lac) to the victim 'P' daughter of Sh. Jogender Arya, R/o B486, Gali No.7, Suraj Park, Rohini Delhi which amount shall be used for her welfare and rehabilitation under the supervision of Welfare St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 64 Officer so nominated by the Government of NCT of Delhi, Department of Women and Child Development [Ref.: Hari Kishan & State of Haryana Vs. Sukhbir Singh & Ors. reported in AIR 1988 SC 2127 and Bodhisattwa Gautam Vs. Subhra Chakraborty reported in AIR 1996 SC 922].
A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi; Chief Secretary, GNCT of Delhi; Principal Secretary (Social Welfare), GNCT of Delhi and Director, Department of Social Welfare (Women and Child Development), GNCT of Delhi for information and necessary action under intimation to this Court.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 24.1.2013 ASJ (NW)II: ROHINI
St. Vs. Tara Chand, FIR No. 150/12, PS S.P. Badli Page No. 65