Delhi District Court
33. Recently Our Own High Court In State vs Jai Hind on 20 March, 2013
1
IN THE COURT OF SH. SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGEI (North): ROHINI COURTS: DELHI
SC No.153/11.
FIR No.213/11.
PSKANJHAWALA.
U/s.376/34 IPC
STATE
VERSUS
1. AFZAL,
2. AASHIK SAIFI @ AFSAR,
3. ASLAM,
All Sons of NISHAR AHMED &
All R/O. H.NO. C1/38, MEER VIHAR,
V&PO MADAN PUR DABAS, DELHI.
Date of Institution: 05.11.2011.
Date of Arguments:14.02.2013.
Date of Judgment:02.03.2013.
JUDGMENT
1. The brief facts of the prosecution case are that on 09.09.2011 SI Ravi Kumar received DD No.19A of PS - Kanjhawala and DD No.26A of PS Nangloi, regarding rape with a 10 year old girl since one year by her relatives, resident of Meer Vihar, Aman Vihar. STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 1 of 40 2 SI Ravi Kumar took the Prosecutrix (hereinafter name of prosecutrix is referred to as "J") her maternal grand parents (nana and nani) to SGM Hospital where "J" was medically examined vide MLC No. 13867. Thereafter SI recorded the statement of the "J". In her th statement "J" stated: "She is studying in 4 class and since three four days she is living in her maternal grand parents house situated in village Barola, Jafarabad. Her father had already died. She has three sisters including herself, her both elder sister were residing at her maternal grand parents house. About three years ago, she was residing in the house of her Fufi namely Naseem. Her fufi has four sons and out of them three elder sons namely are Aashik, Aslam and Afzal. Around one year ago all the said three sons of her Fufi had forcibly done wrong act with her, whenever her Fufa and Fufi were not at the house. All the three sons of her Fufa & Fufi used to do forcibly wrong act with her whenever no body is present at house and they also threatened to beat her if she complained to anyone. She several times told the said fact to her Fufi, but she scolded her. Around one month back during the month of Ramzaan her cousin brother (son of her Tau) namely Bablu brought her to the village Rohana and around 34 days ago she had come to the house of her STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 2 of 40 3 maternal grand father (Nana & Nani) at village Barola and there she told the fact about wrong act done by the sons of her fufa & fufi".
2. On the basis of said statement SI Ravi Kumar prepared the rukka and got registered the present case U/S. 376/34 IPC. He arrested all the three accused persons Aashik, Aslam and Afzal and produced "J" before concerned ld. MM. Ld. MM recorded her statement under Section 164 Cr.P.C. SI Ravi Kumar recorded the statement of the witnesses. He prepared the site plan. Doctor handed over to him exhibits which he seized. Later on investigation was assigned to SI Rajesh Kumar. SI Rajesh Kumar sent all the exhibits to the FSL and thereafter filed the challan in the court under Section 376/34 IPC and all the accused persons were put to trial.
3. After compliance of Section 207 Code of Criminal Procedur the case was committed to the court of Sessions and therefore assigned to this court for trial in accordance with law.
4. Vide order dated 09.12.2011, all three accused individually charged under Section 376 (2) (f) IPC to which they pleaded not guilty and claimed trial.
5. In order to prove its case prosecution examined as many as 14 witnesses.
STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 3 of 40 4 PW1 "J" is the prosecutrix, PW2 Mumtaz, maternal grand mother(naani) of the "J", PW3 Mohd Nizamuddin, maternal grand father (Naana) of "J", PW4 SI Ashwini is duty office and he proved FIR as Ex.PW4/A. He also proved the endorsement on the rukka as Ex.PW4/B and he also proved DD No.19A a as Ex.PW4/C. PW5 Sunil Gupta is the then MM, statement of prosecutrix u/s. 164 Cr.P.C. as Ex.PW1/B. PW6 Ct. Sumit deposed that on 29.9.2011 he took the exhibited to the FSL vide RC No.164/RC/11.
PW7 Dr. Rajesh deposed that on 09.09.2011 he examined "J" and proved her MLC Ex.PW7/A. PW8 HC Pradeep is another duty officer, he proved the DD No.26A Ex.PW4/D. nd PW9 SI Rajesh Kumar is the 2 IO of the case and he has proved the FSL Report as Ex.PW9/A and Ex.PW9/B PW10 SI Satish Kumar deposed that on 09.09.2011 he was posted as SI PS Nangloi, and brought the "J" to the PS Kanjhawala and produced her before the Duty Officer of PSKanjhawala and handed over DD No.26 of PS Nangloi.
STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 4 of 40 5 PW11 SI Ravi Kumar is the first IO.
PW12 Dr. Meenakshi Bansal is Senior Resident Gynae. She proved the finding of the Dr. Puja given on the MLC as Ex.PW12/A. PW13 Dr. Binay Kumar MLC of accused Aslam, Aashiq and Aashiq and proved their as Ex.PW13/A, Ex.PW13/B and Ex.PW13/C respectively.
PW14 W Ct. Suman had participate in the investigation with the IO.
6. The main witness of the prosecution case is the prosecutrix "J" who was examined as PW1. In her testimony "J" has deposed that, her father had died before her birth. When she was very young her mother had left her as her mother remarried. Therefore, she started living with her maternal grand parents along with her two other sisters. She further testified that when she was running in six years, her fufi Naseem had come to her grant parents house at Meer Vihar, Delhi. After about 23 days of bringing her to Delhi, the sons of her fufi namely Afzal, Aslam and Ashiq started raping her. She identified all the accused persons correctly. She further testified that when she was sleeping in the room with all other family members, they took her to the roof of the said house where accused persons put cloth on her mouth and threatened her with STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 5 of 40 6 knife and had sexual intercourse with her (woh sab kaam kiya Jo mian bibi karte hain). She further deposed that they continued to do same things regularly almost for four years. She further deposed that in between she made complaint to her fufi 23 times but her fufi did not pay any attention to it rather she scolded her and asked her not to told the same to anyone. "J" further testified that she warned the accused persons that she would tell the said facts to the police, but they said that nothing will happen (kuch no hoga). When her Nana came to attend the marriage of the daughter of her fufi namely Rani, at that time accused persons used to encircled her so that, she could not tell about their acts to her Nana. She further stated that one day some years ago her uncle's (tau) son Babloo came to her Fufi's house and with him she went to her uncle's house in Rohini and started living with them. After sometimes her fufi made a call to her Nana house to send her back, but she refused as all the accused persons used to commit sexual intercourse (galat kaam) with her. After two days of receiving the said phone, she told her elder sister namely Zeba and Zeenat about the entire incident and they told the said fact to her mausi (Maternal Aunt) and they told the said facts to their Nana. Then her nana asked her what has happened and she STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 6 of 40 7 told the entire incident to her nana. Her nana nani came to Delhi and made a complaint to the police in Delhi. Police recorded her statement which is Ex.PW1/A. She further stated that she also gave statement before a Judge and said statement is Ex.PW1/B and bears her signatures at point A. In her cross examination she denied the suggestion that she was deposing falsely at the instance of her nana and nani. She had also stated that she told the incident to her grand mother (Dadi) but her Dadi told that what she could do. She further stated that she told to her fufi but her fufi did not pay any heed to it. She admitted that she did not send any letter to her NanaNani as accused persons did not allow her to do that. She stated that when they used to take her on roof they also offered her money and later on when she came to know that their act is illegal thing then she resisted but they kept cloth on her mouth and also threatened her after putting knife on her. She further stated that all the three accused persons offered money for doing said act. She used to study in school in Delhi and was in fourth class. She did not tell any of her school friends about the galat kaam of the accused persons as she has apprehension that she will be beaten by the accused persons. STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 7 of 40 8
7. PW2 Smt. Mumtaz had testified that Saira Bano is her daughter. "J" is the daughter of Saira Bano. Husband of Saira Bano namely Rafik Mohd had expired about 7/8 years ago, before the birth of "J". Saira Bano had again married and her three daughters Zeba, Jeenat and "J" were residing at our house at Barola. Three years back "J" was taken by her Fufa Nissar Ahmad (husband of Naseem Bano) to Delhi at their residence. He told that since he had sons, therefore, one of the daughter of Saira Bano be given to him. They will treat her as their daughter. Thereafter, "J" started residing with them for about three years. About four/five months back during the month of Ramzan, Noor Jahan the younger Fufi brought "J" to her house. At that time she was ill and was having cough and fever and she was not taking proper meal and she was very disturbed. Then they inquired from her about her condition, then "J" told to them that accused Aslam, Akram and Ashik had committed rape with her.
In her cross examination she stated that, three years back Nisar Ahmad came at their house and took "J" with the assurance that he will keep "J" in good condition, will provide proper education and get her married at proper stage. J had come to their house in the month of Ramzan from the house of her Dadi. They STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 8 of 40 9 brought "J" to Delhi and met with the police and police recorded statement of "J" and also took her to the hospital for medical examination. "J" was also taken before the Magistrate for recording her statement. Her husband used to visit the house of Naseem Bano from time to time, but, "J" did not make any complaint to him. They took "J" to doctor, when she returned back at their house. The father of "J" was not having any property in his name. She used to visit to meet "J" when she was residing at the house of her bua. At that time she had not disclosed anything to her. They had taken "J" to the doctor when she came to our house. She does not know the name of that doctor but his clinic is near their house. First of all "J" narrated the incident to her nana. "J" has also told her that she had also narrated the incident to her dadi. She had called her dadi to inquire about the fact but she did not come. She admitted the suggestion that "J" had gone to the house of Noor Jahan (other bua) from the house of her dadi. She denied the suggestion that "J" had stayed at the house of Noor Jahan for about one and half month. She had brought "J" at Delhi after about 8 days when she disclosed above facts to her. Her husband was also with her when they had gone to PS. She admitted that "J's" father was having a house. She had STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 9 of 40 10 never visited the house of Naseema Bua of "J". She denied the suggestion that one Mamta and Anita were also residing at the house of Nasim or that "J" had told her that she had also narrated about the incident to her teacher and neighbour. She had not made any inquiry from them. She denied the suggestion that since she was aware that father of "J" was having immovable property, that is why she had falsely implicated the accused persons to grab the same.
8. PW3 Mohd Nizamuddin is the maternal grand father (Nana) of the "J". He deposed that he has three sons and three daughters. Saira Bano is his one of the daughter. She was married to Mohd. Rafiq in the year 1995 and she was having three daughters from the said wedlock. Mohd. Rafiq expired in the year 2003 or 2004. In the year 200607 Saira Bano got married with Raju. All three daughters of Saira Bano remained with him. About 33 ½ years back fufi of "J" namely Nasim came at their house along with her husband Nisar and they took "J" to Delhi Meer Vihar at their home. He had conversation with "J" on phone while she was residing with her fufi and she was weeping on the phone but they do not understand why she was weeping. 45 months back "J" was taken to her parental house situated at Rohna, Singhpur, District Aligarh to STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 10 of 40 11 meet her grant mother by Babloo S/o her Tau. Thereafter, after one month, on the occasion of meethi Id in the year 2011, "J" was brought at their house Barola. They found "J" was not in a good condition and she was not talking with anyone and found her depressed. "J" told all the facts to her sisters and thereafter to his wife and they told all the facts to him. Thereafter he asked "J" what has happened to her. "J" told him that sons of her fufi namely Asif, Aslam and Afzal put clothes in her mouth and committed sexual intercourse with her since many days and months. "J" further told that she had made complaint to her fufi Naseema but she also gave beatings to her and threatened her not to told these types of facts to anyone. He was shocked after hearing these facts from the "J". He contacted SSP of Aligarh but he told him that incident took place at Delhi so he has to make complaint at Delhi. Thereafter, he along with his wife Mumtaz and "J" came at Delhi and contacted the police. Police examined "J" and recorded her statement vide ExPW1/A. Police also took "J" to SGM Hospital, Mangolpuri, Delhi and her medical examination was conducted there. Police also took "J" to Rohini Court, Delhi and her statement was recorded before a Magistrate. Accused Ashiq, Aslam and Afjal were arrested by the STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 11 of 40 12 police. He proved arrest memos of accused Aashiq as ExPW3/A, accused Aslam as ExPW3/C and accused Afzal as ExPW3/E. He further deposed that the birth of "J" was taken place in the year 2002 and stated that "J" is now aged about 11 years.
In his cross examination he stated that the two of his grand daughters are twins and their age is 14 years. Her grand daughter "J" started living with her Bua (fufi) about three years ago. At that time she was studying. He twice visited the house of fufi of "J". No other person of his family had visited the house of fufi of "J". He admitted that he used to talk with "J" on phone occasionally. "J" had never told him about the galat kaam by the accused persons on phone. The father of "J" was not having any property, however, her grand father was having 2 bigha of land. "J" had come to his house with her cousin brother (Tau's son). "J" had told about the incident of sexual intercourse by the accused persons to her paternal grand mother (Dadi) first. The paternal grand mother of "J" had not told the said fact to us. During those period when "J" was residing in the house of her Fufi, she never visited to our house. The "J" had gone to the house of her Tau (Paternal uncle) from the house of her Fufi and there she resided about a month and thereafter, her Tau's son STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 12 of 40 13 brought her to our house. After two days of coming to know about the incident, they reported the matter to the police. In between he had not talked with the "J's" Fufa and Fufi. He denied the suggestion that no sexual intercourse was committed with "J" by the accused persons in her Fufi's house or that since he want to call back his maternal grand daughter "J", but same was refused by her Fufa and Fufi that is why accused persons have been falsely implicated in this case or that he made a false complaint to the police.
9. PW11 SI Ravi Kumar is the first IO of the case. He deposed that on 09.09.2011 he was posted as SI and on that day at about 7pm, he received DD No.26A of PS Nangloi and DD No.19A of PS Kanjhawala from the duty officer and duty officer also produced "J" and her maternal grand parents. He made initial interrogation from the "J". Thereafter he along with W/Ct. Suman took the "J" to the SGM Hospital, where "J" was medically examined. Doctor also handed over to him one envelop, which was seized vide memo Ex.PW11/A. He recorded the statement of the "J" Ex.PW1/A and prepared rukka Ex.PW11/B at about 1.30am (midnight) and gave to the duty officer to register the FIR. He further stated that on 10.09.2011 "J" along with her maternal grand parents were called at STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 13 of 40 14 C1/38, Meer Vihar and at the instance of complainant prepared the site plan Ex.PW11/C and arrested all the three accused persons at her instance. On 12.09.2012 he had filed an application for recording the statement of "J" u/s. 164 Cr.P.C. and her statement was recorded and received copy of the statement on his application Ex.PW11/"J". He also collected the photocopy of the school leaving certificate of the "J", which is seized vide memo Ex.PW11/K. In his cross examination he stated that PSI Satish handed over to him DD Entry. "J" and her maternal grand parents came to the PS at about 7pm. He further stated that he cannot say why he has not recorded statement of Aunt, parental grand mother (dadi) and Parental uncle (Tau) of "J". He further stated that Gyne doctor had examined the "J" at about 12/12.30 am (night) and she was examined for about four hours and doctor handed over him one envelop and one sample seal. He further stated that he arrested the accused persons Aasif at 3pm, Aslam at about 3.20pm and accused Afzal at about 3.45pm in the presence of "J" and her NanaNaani and Ct. Mahesh. He admitted that the statement of "J" was recorded u/s.164 Cr.P.C. He further admitted that when statement of the "J" was recorded u/s. 164 Cr.P.C. she came with her NanaNaani. He STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 14 of 40 15 further deposed that he did not inquire about the properties left by the father.
10. In their statement u/s. 313 Cr.P.C. all the accused persons have denied all the incriminating evidence put to them and they specifically denied of committing rape with "J". They further stated that "J" was under the influence of her maternal grand parents and there was also some property disputes and her maternal grand parents went to bring back the "J", who was residing with their parents and they were not agreed to it.
11. In support of their defence they have examined as many as four defence witnesses. DW1 Anita had stated that she along with her sister reside in the house of accused from 2008 to 2011, as there was nobody to look after them in their house as her mother was convicted in a case u/s.304IPC. "J" also used to reside in the said house. After six months "J" started residing there. "J" was admitted in the school, she was never ill treated in any manner in her presence and "J" had never complained anything against the accused persons. She further stated that there were two rooms in the house where they were residing. Accused persons and his brother used to sleep in the outer side room whereas she, her sister, STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 15 of 40 16 "J" and her Bua used to sleep in the inner room. She further stated that "J" remained in the said house, she never fallen ill. "J"'s grant parents used to visit in the house and "J" used to talk with them on hone. Accused persons has always treated the "J" as their sister. "J" had gone with the Babloo who is cousin (Mama's son) of the accused persons on 02.07.2011 to the house of her grandmother (dadi) and thereafter "J" did not return back. "J" was very happy when she was going to her grand parents home. In her cross examination she stated that she had talking terms with the "J" and "J" used to indulge in household work. She denied the suggestion that accused persons used to take the "J" on the roof in the night time and after threatening her with knife and putting clothes in her mouth they raped her many times. She also denied the suggestion that "J" has complained about raping by the accused persons to her Fufi, but Naseema Khatoon did not give her any active assistance and as such accused persons keep on raping the "J" many months while she was residing in the house. She denied the suggestion that she is deposing falsely against the accused persons as she had no good relations with the accused persons. She further denied the suggestion "J" remained dim and dull in the house most of the time, STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 16 of 40 17 because of the doing wrong act upon her by the accused persons. She further denied the suggestion that accused persons have also threatened over to depose in the court in their favour.
12. DW2 Babloo son of maternal uncle (mama) of the accused persons. He stated that he came at the house of his bua Naseem Bano about 1 ½ year ago where he reside with accused persons. "J" is the daughter of his uncle (chacha). "J" was studying in the school and used to go to school everyday. Aasif is a carpenter, Aslam is a plumber and Afzal is a student. Mamta and Anita were also residing in the said house with his bua. Her bua, Mamta, Anita and "J" used to sleep in one room. "J" never got ill. She used to play like a normal child of her age. She was quite happy in the family. Nananani of "J" used to visit in their house and used to talk with "J" and they also used to talk with her on phone. He took "J" to her to the house of her grand parent (dadi) on 2.7.11. She remained there for 1 ½ month. She did not tell anything about the sexual harassment by accused persons to him.
In cross examination he stated that he cannot say whether anybody is going out of the room in night hours. He do not know whether "J" complaint of rape by accused persons to her bua. STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 17 of 40 18 He denied the suggestion that he knew the said fact but denying the same as he had good relation with accused persons.
13. DW3 Rahisan is the grandmother (dadi) of "J" and maternal grandmother (nani) of accused persons. She deposed that "J" resided in the house of her nananani till she was 56 years old and Naseema brought her from there and thereafter she resided at the house of her daughter Naseema. She used to visit meet "J" when she was residing in the house of Naseema. "J" came to reside with her prior to Id of last year. She was quite fine at that time and used to play with children. She did not complaint anything against the accused persons.
In her cross examination she stated that she did not visit to PS or any senior police official regarding the present case nor she made complaint to them.
14. DW4 Noor Jahan is the another aunt (Fufi) of "J" and maternal aunt (mausi) of accused persons. She deposed that "J" visited to her house along with her grand mother on mithi Id and stayed for about 45 days. "J" was behaving like a a normal child.
"J" asked she wanted to visit to the house of her maternal grandmother (nani), so she took "J" to the house of her nani. STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 18 of 40 19 In cross examination she stated that "J" was behaving normally when she visited to the house of her sister Naseema Khatoon. She denied the suggestion that she is not disclosing the true facts of rape by the accused persons because of the influence of the accused persons.
15. Arguments were heard from Shri A.K. Gupta, Ld. Add.
PP for the State and Shri Manobal Gupta and Shri Vimal Puggal, Ld. Advocates for all accused persons. Ld. Add. PP for the State has argued that from the testimony of "J" it is proved that accused persons have committed rape with "J" during the period she resided in their house. He further argued that her testimony is corroborated by other PWs and MLC ExPW12/A. Hence prosecution has been able to prove the offence of rape against the accused persons.
16. On the other hand, Ld. Counsels for accused persons have contended that testimony of "J" is highly unreliable as same is full of improvement and contradictions. Ld. Counsel further contended that due to the enmity between the grandparents (nana nani) of "J" and parents of accused persons, accused were falsely implicated in the present case.
17. Accused have been charged for committing rape with a STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 19 of 40 20 minor girl of less than 12 years of age. Relevant provision of law is as under: 375 IPC Rape.- A man is said to commit "rape"
who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First--Against her will.
Secondly-Without her consent.
Thirdly-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly-With her consent, when, at the time of giving such consent, by personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly-With or without her consent, when she is under sixteen years of age.
Since in this case the prosecutrix is less than 16 years of age. In fact, as per her testimony, she was 11 years of age at the time of incident. Therefore, sixth clause of section 375 IPC will apply in this case. Hence, if it is proved that accused has committed sexual intercourse with her, than it would be sufficient to prove rape charges as in this case her consent is immaterial. Further prosecutrix is less than 12 years of age, therefore, the offence will be covered u/s. 376 (F) IPC, if prosecutrix able to prove the sexual STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 20 of 40 21 intercourse by accused. Section 376 (f) IPC is as under:-
376 (2) (f) IPC:- commits rape on a woman when she is under twelve years of age.
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the Judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
18. To prove the age of "J", prosecution had relied upon school leaving certificate of "J" ExPX issued by Prathmik Balika Vidhyalaya Madanpur Dabas. Said certificate has been admitted by accused persons. As per said certificate date of birth of the "J" is 11.2.2002 and the incident is prior to 20.03.2011. Hence, it is proved that she was less than 12 years of age.
19. PW11 SI Ravi Kumar has testified that he took "J" for medical examination in SGM Hospital where she was medically examined.
No suggestion has been given to the witness that "J" was not medically examined. Hence, it is proved that "J" was medically examined. He collected the MLC. PW12 Dr. Meenakshi Bansal has proved the MLC of the prosecutrix as Ex.PW12/A, she has deposed STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 21 of 40 22 that she came to depose in place of Dr. Pooja, who examined the prosecutrix. She further deposed that since Dr. Pooja had left the hospital and her present whereabouts are not known but she can identify the handwriting and signature of Dr. Pooja.
She has deposed that "J" was examined vide MLC Ex.PW12/A. And as per MLC patient was conscious and cooperative. Her secondary sexual characters were not well developed. She was febrile, temperature 101.0 degree F. on local examination there was no bleeding per vaginum. No public hairs were present. Hymen was torn (there was old tear present). In her cross examination PW12 stated that as per MLC hymen was found torn (old torn), therefore possibility of sexual intercourse cannot be ruled out. Hence, it is proved from MLC ExPW12/A that "J" was subjected to sexual intercourse.
20. Since "J" was minor and it is proved from her MLC that she was subjected to sexual intercourse, therefore, now prosecution has only to prove that, accused had committed the sexual intercourse with her.
21. In this regard testimony of "J" who was examined as PW1 is most important. Her three statements have been recorded. STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 22 of 40 23 First time her statement Ex.PW1/A was recorded by PW11 SI Ravi. Then her statement ExPW5/A u/s 164 Cr.P.C was recorded by PW5. Third time her testimony was recorded in the court.
22. In her testimony PW1/ "J" had testified that when she was running in six years, her fufi (mother of all accused) came to her grandparent's house and brought her to her house at Meer Vihar after promising her grandparents (nananani) that she would keep her well. There accused Afzal, Aslam and Ashiq started raping her when she was sleeping in the room with other family members. They took her to the roof of the house where accused put cloth on her mouth and threatened with knife and committed sexual intercourse with her (woh sab kaam kiya Jo mian bibi karte hain) they continued to do the same things regularly for four years.
In cross examination she denied the suggestion that due to enmity she had falsely stated that accused persons had committed rape with her. Rather she categorically stated that accused persons used to take her on roof and they also offered her money and later on when she came to know that their act is illegal thing then she resisted but they kept cloth on her mouth and also threatened her after putting knife on her mouth. She also explained STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 23 of 40 24 in the cross examination that she did not disclose the said fact to her school friends because she had apprehension that she would be beaten by accused persons.
23. In her statement ExPW1/A, "J" had also stated that since one year, all the accused persons separately, on different occasions had forcefully committed wrong act with her. She further stated that whenever, out of three accused persons any accused would have been at home, he used to commit wrong act with her. Undoubtedly, as contended by Ld. Defence Counsel, in her statement u/s 164 Cr.P.C. ExPW5/A prosecutrix/"J" had stated that all the three accused tried to put their urinating part into her urinating part but she did not allow them to put their complete urinating part into her urinating part (ve apne peshab wali Jagah meri peshab wali Jagah mein dalne ki koshish karte the par maine kabhi unhe pura nahin dalne diya. Main haath pair chalakar kisi bhi tarah unhe pura apne ander nahin dalne deti thi.) But in my view that statement of prosecutrix do not harm the case of the prosecution because as per explanation of Section 375 Cr.P.C. penetration is sufficient to constitute the sexual intercourse necessary to the commission of rape. As per Modi Book titled as Medical Jurisprudence and STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 24 of 40 25 Toxicology, Twenty Second (student) Edition "partial penetration of the penis within the labia majora or valva or pudenda is sufficient to constitute the offence of rape".
24. From the MLC of prosecutrix, it is evident that her hymen was found torn and as per PW12 when hymen was torn, possibility of sexual intercourse cannot be ruled out. It is not the case of the accused persons that due to any reason hymen of the "J" was torn. She not a sports person. Hence, in this circumstances it can be presumed that "J" hymen was torn due to sexual intercourse with her. As per testimony of "J", she was just between six years to ten years old girl when accused persons have done sexual intercourse with her. Such a young girl even may not knowing the meaning of sexual intercourse so could say with certainity whether complete sex has been done with her or not. Hence, even if she had stated in her examination u/s. 164 Cr.PC. That she did not allow complete sexual intercourse that is not fatal to the prosecution.
25. It is very unlikely that "J" will indulge in such kind of sexual activities of her own without being forced or lured as stated by "J" in her testimony. She was residing in the house of accused persons under the guardianship of parents of accused persons. If she had sex with some other person then accused persons or their STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 25 of 40 26 parents must have known and would have objected to it, but no such defence has been taken. As stated above, hymen of "J" was old torn which means sexual intercourse with her was done quite prior to the incident reported to the police, which corroborated the testimony of "J" that, accused persons have committed sexual intercourse with her for a long period.
26. Ld. Counsel for accused also argued that there are number of contradictions in the statement of "J" therefore same cannot be relied upon. Undoubtedly there are some contradictions in the statement of "J" such as in her testimony she has stated that after 23 days of her bringing to Delhi accused persons raped her whereas in her statement ExPW1/A she stated that after one year accused persons have committed rape with her and in her statement u/s 164 Cr.P.C. she has stated after two years accused persons started committing wrong act with her. Further in her testimony she stated that accused persons committed rape with her after showing her knife and putting cloth in her mouth. The fact which she has not stated in her other two statements i.e ExPW1/A and ExPW1/B.
27. In my view on the basis of aforesaid contradictions testimony of "J" cannot be disbelieve. "J" is just 12 years old, hence, STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 26 of 40 27 she is not as mature as an adult. It cannot be ruled out that she may have added the fact of putting knife or putting cloth in her mouth because so she could defend herself that she was not consented party to the said illicit act. More ever the contradictions pointed by Ld. Defense counsel had not confronted, so that "J" could explain the same. Hence, in such circumstances no benefit of contradictions can be given to accused persons. Moreover, the contradictions are minor in nature. It is not the defense of the accused that somebody else has done sex with her. Hence it is immaterial when first time she was raped or whether accused person committed sex with her after showing the knife or they committed sex with her consent. "J" has categorically stated that accused persons committed sexual intercourse with her.
28. In their statement u/s 313 Cr.P.C. accused persons have stated that "J" has deposed against them because she was under
the influence of her maternal grandparents and there was also some property dispute and her nananani wanted to bring her back but their parent were not agreed to it. Despite the fact that accused persons examined four witnesses in their defense but they have failed to prove the aforesaid defense. On perusal of the testimony of STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 27 of 40 28 defense witnesses it is evident that their main stress is that since "J" was living as normal child in the house of accused persons and she had not complaint to them about the said ill act of accused person, therefore, no rape was committed with her. But no witness had testified that there was any property dispute between the parents of the accused persons and grand parents (NanaNaani) of "J". No details of property left by either father or grand father of "J" has been given by the PWs. Moreover, if any property was left by "J" grandfather, I failed to understand how property can be taken by "J" by falsely implicating the sons of bua of "J". Further no witness had deposed that there was any enmity between the parents of accused persons and maternal grandparents of "J" over any other issue. Hence accused persons have failed to prove that there was any enmity between parents of accused persons and grandparents of "J" due to which "J" levelled false allegations of rape against them on the instigation of her grand parents.
29. As far as testimony of DWs are concerned, DW1 has deposed that she was residing in the house of accused persons along with her sister because her mother was in Jail as she was convicted u/s 304B IPC and "J" has never complaint anything STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 28 of 40 29 against the accused persons. First of all there is no evidence that DW1 was residing in the house of accused persons because in her testimony she has given her address as C1/89 Mir Vihar whereas address of accused persons is C1/38 Mir Vihar. Hence at the time of recording evidence DW1 was not residing at the house of accused persons. She has not stated that her mother was released from Jail and due to which she left accused house and started residing in her own house. Hence her statement does not appear to be reliable. She is neighbour of accused persons hence due to said fact she may have deposed falsely in favour of accused persons to save them.
30. DW2 Babloo is the cousin of accused persons (mama's son). He also deposed that 1/ 1 ½ year ago he used to reside in the house along with the accused persons and "J" was also residing there and used to play like a normal child. But he is the cousin of accused persons hence it cannot be ruled out that he is deposing falsely to save them. Similar is the position of DW3 Rahisan and DW4 Noor Jahan. They deposed that when "J" came to their house she was quite happy and did not complaint anything against the accused persons but they are (nani) and (mausi) of accused STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 29 of 40 30 persons and it cannot be ruled out that to save the accused persons they are falsely deposing. Hence in my view, defense witnesses have failed to shake the testimony of "J".
31. In view of the aforesaid facts, Accused persons have failed to prove why "J" had falsely deposed against them. She is a child witness. Accused persons are just like her elder brothers with whom she resided in the same house for almost four year. I fail to see any reason why she will level false allegation of rape against them to spoil her own prestige and honour, therefore, I do not find any reason to disbelieve the testimony of "J".
32. It is settled law that testimony of prosecutrix if found reliable and sufficient for conviction without any corroboration, as prosecutrix is not an accomplice. As held in In the case Madho Ram and another V The State of U.P., AIR 1973 SC 469 as under : [T] the prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasized that Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 30 of 40 31 not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand.
Further in case Bharwada Bhoginbhai Hirjibhai V State of Gujrat, AIR 1983 SC 753(1) as under : Corroboration is not the sine qua non for a conviction in a rape case. 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 complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society.
On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration not withstanding. And while corroboration in the form of eyewitness account of an independent witness may often be forthcoming. STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 31 of 40 32 Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self- preservation, or when the 'probabilities factor' is found to be out of tune.
33. Recently our own High Court in State Vs Jai Hind Crl.LP.288/2011 dt 13.7.12 has discussed the importance of testimony of prosecutrix in a sexual harassment case. In this Honble Judge quoted the relevant para of Judgment of Supreme Court titled as State of Punjab Vs Gurmit Singh & others AIR 1996SC1393, which is as under: "The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix which are not of a fatal nature, to trow out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the entire case and the trial court STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 32 of 40 33 must be alive to its responsibility and be sensitive while dealing with case involving sexual molestations."
34. Hence, in view of the aforesaid judicial pronouncement, I am of the view testimony of "J" is itself sufficient for conviction and no corroboration is required, as I found her testimony consistent, cogent and trustworthy.
35. Even otherwise testimony of "J" is corroborated by her grandparents. The grandparents of "J" i.e PW2 Mumtaz and PW3 Mohd. Nizamuddin have testified that five months back, during the month of Ramzan, Noor Jahan fufi of "J" came to their house and at that time "J" was disturbed and they inquired from her about her condition, then she told that accused Aslam, Akram and Aasif had raped her. Nothing has come out in their cross examination. The contention of Ld. Defense counsel that PW2 and PW3 had admitted that they visited to the house of accused persons during the stay of "J", hence if rape had been committed with "J" then she would have disclosed the said fact to them. But I do not find any force in the said argument because she was a very young child going with such a trauma. She has explained that accused persons used to encircle her whenever her grandparents used to visit to meet STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 33 of 40 34 her due to said reason, she did not informed to them. "J" was residing in the house of accused persons, therefore she may was frightened with the accused persons that they will beat her if she will disclose the fact of rape and that may be the reason why "J" did not disclose the factum of rape to them during her stay at the house of accused persons. Further both the PWs in their cross examination have specifically denied that since father of "J" had left immovable property that is why they have falsely implicated the accused persons. No details of said immovable property left by the father of "J" had been given by accused persons either in their cross examination of PW2 & PW3 or in their defence. Further, PW3 has also specifically denied that he want to call back "J", but same was refused by her Fufa and Fufi that's why he falsely implicated the accused persons. No suggestion has been given to PW2 & PW3 when they asked the parents of the accused persons to sent back the "J". Further, it is difficult to believe that due to aforesaid reason or due to any enmity with parents of the accused persons PW2 & PW3 will instigate their grand daughter "J" to level false allegation of rape against the accused persons. Hence, I do not find any reason to disbelieve the testimony of PW2 & PW3.
STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 34 of 40 35
36. Further from the MLC of accused persons Ex.PW13/A, Ex.PW13/B and Ex.PW13/C it is proved that they were not incapable in performing sexual intercourse. Even otherwise, this is not the defense of accused persons.
37. In view of aforesaid facts and circumstances and considering the testimonies of "J" duly corroborated by the testimonies of PW2 and PW3, the police officials, medical evidence, I am of the view that the prosecution has been able to prove beyond reasonable doubt that all the three accused persons separately (not at the same time or with their common intention) on different occasions committed rape with "J" during her stay at their house. Hence I convict all the three accused for the offence u/s 376(2)(f) of IPC.
Announced in the open court (SANJEEV KUMAR)
On 02.03.2013 ASJ01: North: Rohini: Delhi
STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 35 of 40
36
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(NORTH): ROHINI COURTS: DELHI SC No.153/11.
FIR No.213/11.
PSKANJHAWALA.
U/s.376/34 IPC STATE VERSUS
1. AFZAL,
2. AASHIK SAIFI @ AFSAR,
3. ASLAM, All Sons of NISHAR AHMED & All R/O. H.NO. C1/138, MEER VIHAR, V&PO MADAN PUR DABAS, DELHI.
ORDER ON SENTENCE
20.03.2013
Present: Shri , ld. Addl. PP for the State.
Convicts Afzal, Aashiq and Aslam are produced from JC. Shri Manobal Gupta, ld. Counsel for all the convicts.
1. Vide Judgment dated 02.03.2013 Convicts Afzal, Aashiq and Aslam were convicted for offence u/s. 376(2) (f) IPC. STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 36 of 40 37
2. It is submitted by the ld. Counsel for the convict that, convict Afzal is aged about 21 years and he was studying in class th 12 . Accused Aashik is aged about 26 years old and he was working as a carpenter. Accused Aslam is aged about 24 years and he was working as a plumber. All the three accused persons are real brothers and the accused persons have old aged parents and one unmarried sister and one married sister. He further submitted that accused has old aged parents to look after and he is the only bread winner of his family. Therefore, lenient view may kindly be taken.
3. It is argued by the ld. Addl. PP for the State that convicts have committed rape with a minor girl of just 610 years of age at the time of incident, who was cousin sister (daughter of maternal uncle) of the accused persons and who was brought to their house by the parents of the accused persons, as her father expired and her mother remarried. Thus they have not only ruined her life, but has also broken the sanctity of relationship. Hence, the convicts deserves no leniency and they should be convicted for maximum sentence under the statute.
4. I have considered the rival submissions.
5. It has been held by the Hon'ble Supreme Court of India STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 37 of 40 38 in para no.17 of the Judgment "State vs Karnataka Vs. Krishnappa AIR 2000 SC 1470"
"........The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the stage and age of sexually assaulted female and gravity of the criminal act.
Crimes of violence upon women need to be severelly dealt with. Socioeconomic, status, religion, race, caste or creed of the accused or the victim are irrelevant consideration in sentencing the policy. Protection of society and deterring the criminal is the avowed object of law that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 38 of 40 39 impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in the heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection, therefore, imposition of proper sentence by the court......."
6. I am agree with the contention of the ld. Addl. PP for the State that the act of convicts are quite grave as they have committed rape with a young girl of less than 12 years of age and thus not only spoiled the life of a child but also they have broken the trust of the "J" and shattered the sanctity of the relationships on which our society relies. However, at the same time I cannot loose the sight that all the convicts are the real brothers and are of young age and they have old parents to look after.
7. Therefore, taking into accounts aggravating and mitigating circumstances, in my view proper sentence in this case would be all the convicts are sentenced for Ten years Rigorous STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 39 of 40 40 Imprisonment under Section 376 (2) (f) IPC with fine of Rs.5,000/ each, in default of payment of fine, they shall further undergo Simple Imprisonment for Six months.
8. The convicts shall be entitled for benefit of Section 428 Cr.P.C. A copy of Judgment and that of order on sentence be provided to the Convicts. File be consigned to record room.
Announced in the open court (SANJEEV KUMAR)
On 20.03.2012 Addl. Sessions Judge
Rohini Courts: Delhi.
STATE V Afzal & Ors. SC No.153/2011 FIR No.213/2011 PSKan"J"hawala page 40 of 40