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Delhi District Court

State vs . Harish Chand @ Hari Chand S/O Girdhari ... on 29 January, 2007

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IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS       
           JUDGE : KARKARDOOMA COURTS : DELHI :

Sessions Case No. 293/06

State          Vs.            Harish Chand @ Hari Chand S/o Girdhari Lal,
                              R/o A­106, Street No.3, Ganga Vihar, 
                              Gokalpuri, Delhi.

                              FIR No. 389/04
                              PS Gokalpuri
                              U/S 366/376/506 IPC.

J U D G E M E N T  :

­ Faith and confidence, reposed by the prosecutrix in the accused, were shattered when she was debauched, taken to a lonely place and sexually defiled. Story of violence on physical body and soul of the victim, which emerges out of the report under section 173 of the Code of Criminal Procedure, 1973 (in short the code), is detailed in extanso. Anita was residing with her brother at Gazipur, Delhi. She was in need of some job and was looking for it. For about two and half months ago, she was living in a rented accommodation at Street No.6, Ganga Vihar, Delhi. During this period, she came in contact with Harish Chand @ Hari Chand, who was residing at H.No. 106, Street No.3, Ganga Vihar, Delhi. On 23.08.04 at about 3pm, she was going to meet her landlord at street No.6, Ganga Vihar, Delhi, where Harish Chand @ Hari Chand met and told that he could help her in getting a job. He made her to sit in his maruti car bearing registration No. DL­8C­E 3100. He took her to Surajkund, Haryana. As she became suspicious of his act, she asked him as to where she was being driven. He took her to an isolated place, where he tried to molest her. When she tried to raise an alarm for help, he threatened her of her instant death. After putting her in fear, he ­2­ raped her. Thereafter, Anita got down from the car and went to police post Prahladpur for getting a case registered against Harish Chand @ Hari Chand. Due to dense darkness, she went to house of her friend and lodged her report on very next day. Her statement was recorded, which became bedrock of the case. Investigation was taken up by SI Amul Tyagi. During the course of investigation, accused was arrested on 26.08.04 at the instance of Anita, from his house. Investigation culminated into a charge­sheet against the accused.

2. Charge for offences punishable under sections 366, 376 and 506 of the Penal Code was framed against the accused, to which charge he pleaded not guilty and claimed trial.

3. To substantiate the charges, prosecution has examined Smt. Anita (PW1), Shyam Lal, Constable (PW2), Charan Singh (PW3), Vinod Singh, Head Constable (PW4), Devender Singh, Head Constable (PW5), Kusum Lata (PW6), Sarita ASI (PW7), Jaiveer Singh, Constable (PW8), Desh Pal SI (PW9), Umed Singh ASI (PW10), Bhunesh Sharma, Record Clerk (PW11), Sushil Kumar, Record Clerk (PW12), Vikram Singh SI (PW13) and Amul Tyagi SI (PW14) in the case.

4. Vikram Singh SI was working as duty officer on 24.08.04 at PS Gokalpuri, who recorded formal FIR. He proved copy of FIR as Ex.PW13/A. Umed Singh ASI recorded statement of prosecutrix Anita and proved it as Ex.PW1/A. He detailed all investigative steps, which took place in his presence. SI Deshpal deposed that accused was challaned in the instant case. Jaiveer Singh, Constable, had taken exhibits of the case from MHC(M), vide R.C. No.80/21 to FSL ­3­ Office, Rohini and deposited it there in intact condition. ASI Sarita got the prosecutrix medically examined at AIIMS and detailed those facts in her testimony. Kusum Lata ASI joined investigation of the case. She unfolds that prosecutrix was in her custody, when site plan of place of crime was prepared at her instance. Devender Singh, Head Constable, deposed that accused Harish Chand was arrested vide arrest memo Ex.PW5/C and his personal search was conducted vide memo Ex.PW5/B. He also recorded disclosure statement of accused, which is Ex.PW5/A and got him medically examined. Vinod Singh, Head Constable, had sent exhibits of the case to FSL Rohini through constable Jaiveer Singh. Shyam Lal, Constable, detailed all investigative steps, which took place in his presence. Amul Tyagi, SI, conducted investigation of the case and detailed all investigative steps taken by him. He proved site plan as Ex.PW14/A, which was prepared by him. Witness Charan Singh turned hostile, who opted not to depose true facts of the case.

5. Bhunesh Sharma, record clerk, AIIMS, entered the witness box and proved MLC of Anita as Ex.PW11/A, which was prepared by Dr. Deepa. Sushil Kumar, record clerk, GTB Hospital, entered the witness box and proved MLC of accused Harish Chand @ Hari Chand as Ex.PW12/A, which was prepared by Dr. Yogesh.

6. Anita, the star witness of the prosecution, entered the witness box to detail ocular facts. She deposed that on 23.08.04 at about 3pm, accused Harish Chand @ Harichand took her to Surajkund in his car on pretext of getting a job for her. He took his car to an isolated ­4­ place, where he threatened her of instant death. After putting her in fear, he raped her, which incident took place between 4 to 5pm on that very day. Thereafter, she went to police post Prahlad pur, where her statement was recorded. At her instance, accused was arrested from his house.

7. In order to afford an opportunity to explain circumstances appearing in evidence against him, the accused was examined under section 313 of the Code. He denied all allegations levelled against him. He pleads that he has been falsely framed in the case by Smt. Anita. However, he unveils that Inspector P.L. Suri was inimical qua him. He pleads that Smt. Anita was procured by inspector Suri, who made a false statement at the instance of the latter. He further pleads that neither he knows driving nor the vehicle, alleged to be involved in the crime, belongs to him. He has examined Ashok Kumar (DW1) and Santosh Kumar (DW2) in support of his defence.

8. Arguments were heard at the bar. Sh. R.K. Pandey, Ld. Prosecutor, had presented facts on behalf of the State. Sh. S.K. Sharma, Advocate, had advanced arguments on behalf of the defence. I have given my careful considerations to the arguments advanced at the bar and cautiously perused the record. My findings on the issues involved in the controversy are as follows :­

9. Sh. S.K. Sharma, Advocate, submits that testimony of Anita is not worthy of credence. According to him, Anita was sexually defiled on 23.08.04, as detailed by her. She had not lodged a report promptly. He highlights that there is delay in lodging the FIR. Anita presents ­5­ that she went to police post Prahladpur to lodge a report on the night of 23.08.04, but opted not to lodge a report due to odd hours of night. She reached there again on 24.08.04 and lodged a report. Anita claims that she stayed at the house of her friend, namely, Sabiya, during that night. Sh. Sharma argued that statement of Sabiya was not recorded to establish that Anita made complaint to her regarding sexual assault made on her by the accused. He presents that since Sabiya was her friend, with whom Anita stayed for whole night, behavioural probabilities demand that Anita ought have narrated facts before her. No such story has been projected nor Sabiya was brought in the witness box, argued Sh. Sharma. He further presents that neither it is established that car No. DL­8C­E 3100 was registered in the name of accused, nor it is shown that accused knew driving. There are many loop holes in the case of prosecution, which makes story untenable, argued Sh. Sharma. He presents that accused is entitled for acquittal. Facts presented by Sh. Sharma are dispelled by the Ld. Prosecutor, who argued that testimony of Anita is above­board and reliable. According to Sh. Pandey, prosecution could prove its case for an offence of abduction with intent to compel the victim for illicit intercourse as well as for an offence of rape.

10. Smt. Anita entered the witness box to unfold facts. She details that on 23.08.04, she was taken by the accused to forest area towards Surajkund, Haryana. On back seat of the car driven by accused, she was raped. He threatened her of death, in case she resists his advances. She became afraid, when she was raped by ­6­ the accused at about 5pm that day. Accused brought his car to main road, where she got down and went to police post, Prahladpur. In police post Prahladpur, she made her statement, which is Ex.PW1/A. When Ex.PW1/A was perused, it surfaced that when she reached police post Prahladpur, it were odd hours of night. Hence, she went to house of her friend. On next morning, she reached police post Prahladpur and lodged a report there. Rukka Ex.PW10/A was prepared by Umed Singh ASI for getting a case registered. In this document, Umed Singh ASI details that on night of 23.08.04, Anita visited police post Prahladpur to lodge a report. She unfolded that she was raped. It has been mentioned therein that on account of odd hours of the night, she did not made her statement at that juncture. Therefore, out of statement Ex.PW1/A and rukka Ex.PW10/A, it emerged over record that on the night of 23.08.04, Anita reached police post Prahladpur to lodge a report. Umed Singh ASI admits in his testimony that she came to police police at 11 or 12pm. Consequently, it emerges over record that Anita went to lodge a report in police post Prahladpur on night of 23.08.04 itself.

11. During the course of her cross­examination, Anita announced that she was left at the house of her friend by police on the night of 23.08.04. She explains that on that night neither she was interrogated by police nor her statement was recorded. These facts ordain that police put Anita off that night, since it was going to cause inconvenience to them in odd hours of night. To shrug off their responsibility, an excuse was made that owing to odd hours of night ­7­ Anita opted not to make a statement. Her conduct of approaching police post Prahladpur and reporting to ASI Umed Singh that she was raped, clinches that she was prompt to initiate an action. Therefore, it is crystal clear that there was no delay on her part in lodging the report. Assuming that there is some delay in lodging a case, it stands explained by the facts detailed above. Even otherwise the delay, so occasioned, is not fatal to the prosecution. Reliance can be placed on precedent in Harpal Singh (1981 (1) S.C.C. 560), wherein Apex Court announced that delay of ten days was not fatal.

12. Eerie silence is there over the issue as to whether Anita detailed facts before Sabiya. Whether that silence projects a strange behaviour of the victim. She presents that she reached house of Sabiya with police. Reaching a friend' s house with police is an uncommon behaviour. Host is expected to question her abut that unusual conduct. In such a situation, Anita ought have detailed facts before Sabiya also. Why Sabiya was not examined by the investigating officer, is a proposition, which was beyond control of this poor lady. Further more, testimony of Sabiya could have brought conduct of Anita, subsequent to the events over record. That conduct has been reflected through contents of Ex.PW1/A and Ex.PW10/A. Consequently, the fact that Sabiya was not interrogated or examined by the investigating officer is not going to cast any aspersions on testimony of Smt. Anita.

13. Defence had not tried to castigate testimony of Anita on the count that she was inimical qua the accused and motivated to frame him in ­8­ false case. Anita tells that accused met her at corner of street No3, Ganga Vihar, Delhi, and gave assurances to her that he will get a job for her. On his assurances, she boarded his car and was driven to forest area near Surajkund, Haryana. From her testimony, it is evident that accused was known to her and she was having cordial relations with him. Defence had not made any effort to dispute that Anita was known to the accused, she met him in Ganga Vihar, Delhi, and was swayed by his assurances of getting a job for her. In such a situation, it crystallizes that accused exploited the lady on account of his previous acquaintance with her. No efforts were at all made by the accused to castigate her testimony on the count that she entered witness box on receipt of bribe or some offer of extraneous considerations of temporal gain. When her testimony was meticulously perused, it surfaced over record that no inherent infirmity or defect was there in her testimony. It is not the case of defence that Anita was a lady of easy virtue and seduced the accused to fall in her trap. Not even a whisper was made to suggest that she was not a lady of veracity and entered witness box with a motive to frame the accused. When her testimony was scrutinized, it emerged that story projected by her is consistent and above­board. Her demeanour was not found to be abnormal when she faced ordeal of cross­ examination. Events unfolded by the lady satisfy standards of ordinary human behaviour, natural course of events and tenets of veracity. Consequently, I am constrained to conclude that Anita is worthy of credence.

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14. When testimony of Anita was tested on acid test of natural human conduct of a female, it gave imprimatur for veracity. A lady, in a tradition­bound non­permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of being ostracised by the society. In normal course of human conduct, a lady would not give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to others overpowered by a feeling of shame and her natural inclination would be to avoid talking about it to anyone lest family name and hour is brought into controversy. No self respecting woman would come forward in a Court just to make a humiliating statement against her honour, such as is involved in the commission of rape on her. Inherent bashfulness of females generates a tendency to conceal outrage of sexual aggression. As held above, defence could not assign any reason as to why Anita made such a humiliating statement castigating her own honour and character. In case her statement is discarded on unrealistic assumptions, it would be adding insult to her injury, for her evidence stands all rigours of truth and honesty.

15. Anita deposed that on 23.08.04 at about 3pm, she had gone to Ganga Vihar, Delhi, where she used to reside in house No. 106, Street No.3, Ganga Vihar, Delhi, at earlier point of time. Accused met her at corner of street No.3 in Ganga Vihar, Delhi, who assured her of getting an employment for her. He made her to board his red colour car. He took her to a long distance to Surajkund, Haryana. On ­10­ reaching Surajkund, Haryana, he drove his car on kacha road. When she asked as to where he is going, he told that she will come to know shortly. He had taken his car to some distance in forest area. He stopped his car at a place. All doors of the car were closed. She was sitting on back seat of the car, while accused was driving it. Accused came to back seat of the car and put off his pant. He had threatened her of death, in case she would resist his advances. He lifted her sari and raped her. After committing rape on her, accused brought his car to main road, where she alighted it. Accused drove his car from there.

16. Facts detailed by Anita bring it over the record that she was taken to a forest area near Surajkund by the accused in his maruti car of red colour. She was induced by accused by deceitful means to board his car on assurances that he would get a job for her. It was so done by the accused with an intention to force her for illicit intercourse. Ultimately, she was raped by the accused on back seat of his car in a forest area near Surajkund, Haryana, at about 5pm. These facts make out that a lady was abducted with an intention to force her for illicit intercourse criminally intimidated of her death, and was ultimately raped by the accused.

17. Facts unfolded by Anita get confirmation from circumstances brought over record through MLC Ex.PW10/A. This MLC was prepared by Dr. Deepa at AIIMS on 24.08.04, when Anita was taken there for medical examination. Since, Dr. Deepa had left service of hospital, it was proved by Bhunesh Sharma, record clerk, who was ­11­ conversant with her handwriting and signatures. Perusal of MLC Ex.PW11/A makes it clear that when Anita appeared before the doctor, she told her that she was sexually assaulted at about 5pm last light at Surajkund by her neighbour, named, Harish Chand @ Hari Chand. Dr. Deepa records in MLC that two children were born to the lady and both delivery were of full term and normal. She was married about 11 years back and last child was born to her about four years back. She was living with her husband. It has further been detailed therein that her menstruation cycle was regular. Last menstruation occurred on 03.08.04. On examination, doctor reports that external genitalia were healthy. No complaint of external injury was made. There was no discharge or bleeding. Hymen was absent. Small abrasion with dimension of 1cm X 1cm on her left knee was noted by Dr. Deepa in MLC Ex.PW11/A. Therefore, out of facts detailed in this document, it is evident that at the first possible opportunity, she told the doctor that she was sexually assaulted by Harish Chand @ Hari Chand on previous day around 5pm near Surajkund. This fact also brings her conduct, subsequent to the event, over the record. Since the lady was mother of two children, doctor found hymen absent. No external injury was complained of by the lady before the doctor. External genitalia were healthy. When the lady is overawed and sexually assaulted, there cannot be possibility of resistance as testified by Anita. Evidently, no external injuries were found except a small abrasion on her left knee. That fact comes to substantiate the story projected by Anita in her testimony.

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18. Amul Tyagi SI took up investigation of the case. He unfolds that on 26.08.04, accused Harish Chand @ Hari Chand was arrested and at his instance seat cover of car was taken into possession vide memo Ex.PW5/E. Car No. DL­8C­E 3100 was also seized vide memo Ex.PW5/D. When this witness had undergone ordeal of cross­ examination, it was not at all suggested to him that aforesaid car was not seized from possession of the accused. I.O. never tried to ascertain as to who was registered owner of the said car. Therefore, it is evident that through testimony of Amul Tyagi SI prosecution could establish that car No. DL­8C­E­3100 was seized in the case, vide memo Ex.PW5/D. Document Ex.PW5/D highlights that said car was seized from a place in front of house of the accused. This event goes to substantiate testimony of Smt. Anita, when she testified that accused drove her away in his car. Contention of the accused that he is not owner of the said car and does not know driving is an afterthought. It was not suggested to the victim that the accused does not know driving. In case he is not the registered owner of the car that would not mean that he cannot possess it, after borrowing it from registered owner. Consequently, submissions made by Sh. Sharam in that regard are found to be untenable, hence discarded.

19. Sarita ASI deposed that on 24.08.04, Anita was taken by her to AIIMS for medical examination. After her medical examination, one sealed parcel and sample seal were handed over to her, which were seized by IO vide memo Ex.PW1/B. Vinod HC admits that on 24.08.04, one parcel and a sample seal were deposited with him in ­13­ Malkhana. Ex.PW11/A highlights that vaginal smear slides were prepared and handed over to police. Therefore, out of testimony of Sarita ASI coupled with statement of Vinod Singh, Head Constable, it emerged over record that sealed parcel along with sample seal were obtained by police, after medical examination of Anita. Amul Tyagi SI deposed that exhibits of the case were sent to FSL and report Ex.PW14/D and Ex. PW14/E were obtained. When report Ex.PW14/D was perused, it came to light that human semen was detected in vaginal smear slides of prosecutrix. That fact goes to establish that Anita was sexually defiled on 23.08.04, as testified by her. Hence, it emerged over the record that testimony of Anita gets confirmation through her complaint Ex.PW1/A, contents of MLC Ex.PW11/A and Ex.PW14/D.

20. Whether testimony of Anita can be made basis for conviction of the accused? As detailed above, Anita had given lucid account of the incident. Picture painted by her details horrid episode. Without being over­awed by the Court atmosphere and piercing cross­examination, she details the incident clearly, which is likely to reflect on her chastity. In detailing the incident, she braved the whole word, being conscious of the danger of being ostracised by the society or being looked down upon by her near and dear ones, including her relatives, friends and neighbours. It was in her mind that she would face the risk of losing love and respect of her own husband and near relatives, and her matrimonial home and happiness being shattered. A lady would feel extremely embarrassed in narrating the incident to others, ­14­ overpowered by a feeling of shame, on account of her upbringing in a tradition bound society where by and large sex is taboo. Over powering all situations and emotions, she narrated facts, which give guarantee for her veracity. Substratum of her story is consistent with other evidence, which appears to be flawless and free from suspicion. Since perfection in this imperfect world is seldom found, evidence of a witness is sometimes fringed with embellishment and exaggerations, however true in main, the Court may accept it, without seeking corroboration from any other source. Law to this effect was laid in Rafiq (1980 (4) S.C.C. 262), Bharwada Bhoginbhai Hirjibhai (1983 (3) S.C.C. 217), Chander Prakash Kewalchand Jain (1990 (1) SCC

350), Raghbir Singh (1993 (2) SCC 622), Gurmeet Singh (1996 (2) SCC 384) and Padam Lal Pradhan (2000 (10) SCC 112). Precedents in Kuldeep K. Mehta (1998 (2) JCC (S.C.) 70), Sudhansu Sekhar Sahoo (2003 (1) JCC 154) and Vimal Suresh Kamble (2003 (1) JCC 164) are based on distinct and different facts, hence do not provide crutches to the accused to walk out of the net of the prosecution. Hence, in view of the law laid by the Apex Court, it is concluded that evidence of Smt. Anita is worthy of credence, since it satisfies standards of veracity and human probabilities.

21. Sushil Kumar, record clerk, proves MLC Ex.PW12/A prepared by Dr. Yogesh. When Ex.PW12/A was perused, it emerged that on 26.08.04, accused was examined by Dr. Yogesh, who was of the opinion that accused was competent to have sexual intercourse. That fact facilitates case of prosecution and substantiate testimony put ­15­ forward by Smt. Anita.

22. Evidence of Santosh Kumar, LDC, bring it over record that on 23.08.04, Harish Chand @ Hari Chand obtained certified copy form copying agency branch, pertaining to case titled as Devki Vs. P.L. Suri. However, It has not been detailed by this witness as to at what point to time Harish Chand @ Hari Chand was present in Karkarooma Courts, Delhi, that day. Therefore, his testimony is not going to espouse cause of defence.

23. Ashok Kumar, record clerk, bring it over record that car No. DL­ 8C­E­3100 was registered in the name of M/s Sher­E­Punjab Garments, located at 7022, Ashok Gali, Gandhi Nagar, Delhi. That fact nowhere bring accolades to the accused, since it cannot be concluded that he was not in possession of the said vehicle on 23.08.04. Even otherwise, accused failed to confront testimony of Smt. Anita, when she testified that accused was driving said car that day. Therefore, facts unfolded by these witnesses nowhere lead the accused to its destination.

24. Prosecution has been able to establish its case against the accused beyond shadow of reasonable doubt. Evidence adduced by prosecution establishes guilt of the accused for offences punishable under section 366, 376 and 506 of the Penal Code. Consequently, he is held guilty and convicted for the said offences. Announced in the Open Court On this 23rd day of January, 2007.

(Dr. R.K. Yadav) Additional Sessions Judge :

Karkardooma Courts, Delhi. ­16­ IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :

State Vs. Harish Chand @ Hari Chand S/o Girdhari Lal, R/o A­106, Street No.3, Ganga Vihar, Gokalpuri, Delhi.

FIR No. 389/04 PS Gokalpuri U/S 366/376/506 IPC.

ORDER ON THE POINT OF SENTENCE :­ Leniency in punishment has been claimed by Sh. Arun Sharma, Advocate, pleading that convicted is saddled with responsibility of his wife, two daughters of marriageable age and a teenage son. He further argued that it is first offence committed by the convict. According to him, in case convict is sentenced to custodial sentence then his daughters would not get suitable matches for them. He presents that it is a fit a case where benefit of Probation of offenders Act may be extended to the convict.

2. Anita was residing in a house at street No.6, Ganga Vihar, Delhi, and as such came in contact with the convict. She left that rented accommodation and went to reside in Gazipur along with her brother.

In the month of August, 2004, she was looking for a job. On 23.08.04 at about 3pm, she was going to meet her landlord. In Ganga Vihar, Delhi, she met the convict, who gave her assurances for getting a job. He made her to sit in his car bearing registration No. DL­8C­E­3100, drover her to forest area, Surajkund, and tried to molest her. When she resisted his advances, he criminally intimidated her of her instant death and raped her. These facts make out an alarming offence ­17­ committed on the person and soul of the victim. These facts project that no case of leniency is there in the matter of sentence. Taking into account all these facts, nature of offence and mitigating circumstances surrounding the convict, he is hereby sentenced to undergo RI for six years and to pay a fine of Rs.10,000/­ for an offence punishable under section 366 of the Penal Code. In default of payment of fine, he would further undergo RI for one and half years. He is also sentenced to undergo RI for two years and to pay a fine of Rs.2000/­ for an offence punishable under section 506 of the Penal Code. In default of payment of fine, he would further undergo RI for six months. He is also sentenced to undergo RI for 10 years and pay a fine of Rs.10,000/­ for an offence punishable under section 376 of the Penal Code. In default of payment of fine, he would further undergo RI for one and half years.

3. substantive sentences awarded to the convict shall run concurrently. Convict shall get benefit of period already undergone in detention during trial and investigation of the case. Out of the fine, if recovered, a sum of Rs.15,000/­ be paid to the victim as compensation. A copy of judgment and order on sentence be supplied to convict free of cost.

Announced in the Open Court On this 29th day of January, 2007.

(Dr. R.K. Yadav) Additional Sessions Judge :

Karkardooma Courts, Delhi.