Delhi District Court
Sc No. 91/11 State vs Kishan Lal Page No. 1/19 on 5 July, 2013
IN THE COURT OF ADDITIONAL SESSIONS JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET COURTS:
NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02406R0196332011
SESSIONS CASE NO. 91/11
FIR NO. 149/11
POLICE STATION SANGAM VIHAR
UNDER SECTION : 376 IPC
STATE
VERSUS
1. KISHAN LAL
S/O SH. KANHAIYA LAL
R/O H.NO. G8/2/31, SANGAM VIHAR,
RATIA MARG, NIHAL MOHALLA, NEW DELHI62.
DATE OF INSTITUTION : 27.07.2011
DATE OF RESERVING ORDER : 24.05.2013
DATE OF DECISION : 05.07.2013
J U D G M E N T
Case of Prosecution:
1. On 03.05.2011 prosecutrix namely 'X' (name withheld to keep her identity confidential) along with her mother came to police station Sangam Vihar and made a complaint regarding rape committed by SC No. 91/11 State Vs Kishan Lal Page No. 1/19 her step father/accused Kishan Lal. After recording the statement of prosecutrix case under section 376 IPC was registered. Prosecutrix was got medically examined at AIIMS Hospital. Statement of witnesses were got recorded. On 04.05.2011 at the instance of Smt. Shakuntla W/o Kishan Lal, accused Kishan Lal was arrested and was got medically examined at AIIMS Hospital. Statement of prosecutrix under section 164 Cr.P.C was got recorded. Prosecutrix was admitted to AIIMS hospital and her abortion was got done there. Foetus and Blood Sample of prosecutrix were submitted for DNA report. DNA report was collected and filed where date of birth is mentioned as 23.09.1998. Subsequently, after completion of investigation, charge sheet was filed under Section 376 IPC against the accused in the court.
2. Since the offence under Section 376 IPC is exclusively triable by the Court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions. Charge against the accused:
3. Prima facie case under section 376 IPC was made out against the accused. Charge under Section 376 IPC was framed upon the accused by my Ld. Predecessor court vide order dated 06.09.2011 to which accused pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined twelve witnesses in all. The brief summary of the deposition of the prosecution SC No. 91/11 State Vs Kishan Lal Page No. 2/19 witnesses is as under: Material Witnesses:
5. PW3 is prosecutrix who deposed that in the year 2011 she along with her family members used to reside at Sangam Vihar. Accused Kishan Lal is her step father. She was studying in 6th class and whenever she used to study in the night or sit with anybody, he did not use to allow her. Whenever her mother used to go for work accused Kishan Lal used to have sexual intercourse with her. Accused has been committing rape with her for last about 2 years prior to reporting the matter to the police. Accused used to insert his pennis into her mouth and also used to rub her body. As she was not feeling well her mother left her to her grandmother's house. There while eating she started vomiting and on asking about the same she narrated the entire incident to her Nani. They brought her to police station and police recorded her statement. Police took her to AIIMS Hospital where the Doctor medically examined her. She was found pregnant and on 10.05.2011 doctor got her abortion done. The Doctor had put the child (fetus) in the box and also took her blood sample.
6. PW5 is Ms. Shakuntala, mother of the prosecutrix who deposed that she along with her children and husband Kishan Lal had shifted as tenant to the house of one Sh. Mahender in Nihal Mohalla, Sangam Vihar about 4 months prior to the incident. Her daughter Shivani was complaining about her illness for last about 4/5 days and when she SC No. 91/11 State Vs Kishan Lal Page No. 3/19 enquired about the same she did not tell her anything and was scared. She left her daughter/prosecutrix at her Nani's house. On 03.05.2011 her mother called her on phone that prosecutrix 'X' is not taking meal and vomiting after eating. She went to her mother's house and enquired from her daughter who told them that last about 2 years accused Kishan Lal has been committing rape with her forcefully. Her daughter told that whenever PW5 used to go for work, accused used to often rape her. Her daughter told her that accused use to threaten her that if she discloses anything he will kill her. Her daughter also told her that accused used to have oral sex with her. Subsequently, PW5 went to the police station from Govindpuri and reported the matter to the police. Police got her daughter medically examined. Doctor informed her that her daughter is pregnant and is carrying fetus of 2 ½ months. Her daughter was aborted in the hospital and her fetus was took into possession vide memo Ex.PW5/A. Accused was correctly identified by the witness in the court.
7. PW12 is SI Tika Ram, Investigating officer who recorded the statement of prosecutrix, got the prosecutrix and accused medically examined, arrested the accused, got recorded the statement of prosecutrix u/s 164 Cr.P.C, procured the DNA result, got conducted the ossification test of the prosecutrix, deposited the Fetus in the Department of Forensic Medicine and has proved the exhibits Ex.PW12/A to Ex.PW12/B. Formal Witnesses:
8. PW6 is Constable Rupesh Kumar who deposed that he SC No. 91/11 State Vs Kishan Lal Page No. 4/19 joined the investigation of the case along with IO. They went to the House No. G8/2/31, Nihar Mohalla, Sangam Vihar, apprehended the accused Kishan Lal. He stated that IO got the accused medically examined and after that case property was deposited in Malkhana. Witness has duly proved on record Ex.PW6/A i.e. arrest memo, Ex.PW6/B i.e. personal search memo, Ex.PW6/C i.e. disclosure statement and Ex.PW6/D i.e. four pullandas duly sealed from the hospital.
9. PW7 is Ms. Garima, Counselor in Prayatan (NGO) who deposed that after receiving a call from SI Teeka Ram from PS Sangam Vihar she went there and found the prosecutrix 'X'. She personally spoke to prosecutrix who told her that her step father/accused Kishan Lal has regularly been raping her for the last about 2 years. Whenever her mother was away from home accused used to send her younger sister out of home and used to have sexual intercourse with the prosecutrix. Accused also used to intimidate prosecutrix not to reveal anything to her mother. Her mother sent the prosecutrix to her grandmother's place as she was not feeling well. Prosecutrix then narrated the incident to her mother and grandmother who got her pregnancy test done. The report of PW7 is Ex.PW7/A.
10. PW8 is SI Bharat Singh who stated that on 03.05.2011 after receiving rukka he recorded the formal FIR Ex.PW8/A and made endorsement on rukka Ex.PW8/B and handed over the rukka and copy of the FIR to Ct. Sandeep who submitted the same to IO SI Teeka Ram. SC No. 91/11 State Vs Kishan Lal Page No. 5/19
11. PW9 is W/Ct. Chanchal who stated that on 03.05.2011 she was posted at PS Sangam Vihar. She took the prosecutrix to AIIMS Hospital and got her medically examined in the presence of her mother and handed over the MLC to IO.
12. PW11 is Ms. Mona Tardi Kerketta, Metropolitan Magistrate who deposed that she recorded the statement under section 164 Cr.P.C of the prosecutrix and proved Ex.PW11/A to Ex.PW11/D. Medical Witnesses:
13. PW1 Dr. S. Murali who has medically examined the prosecutrix and prepared the MLC Ex.PW1/A. On examination, he found that hymen of the prosecutrix ruptured. No other injury was found on external genital. In Urine pregnancy test the prosecutrix was found to be pregnant and in the ultrasound pregnancy of 12 weeks was detected.
14. PW2 is Dr. Munish Sharma who medically examined the accused Kishan Lal and opined that there is nothing to suggest that the accused is incapable of performing sexual intercourse under normal circumstances.
15. PW4 is Dr. Anupama Raina who conducted the DNA, finger printing test on the exhibits and concluded that the fetus is the biological offspring of prosecutrix and Mr. Kishan Lal as per Mendelian Law of Inheritance and has duly proved on record Ex.PW4/A and Ex.PW4/B.
16. PW10 is Dr. Prashant Kundu who deposed that the Xray plates of the prosecutrix were radiologically examined on 06.05.2011 by SC No. 91/11 State Vs Kishan Lal Page No. 6/19 Dr. Yashwant who prepared detailed report Ex.PW10/A. PW10 stated that on examination, doctor determined the age of the prosecutrix/patient to be above 14 years and below 14.9 years.
Statement & Defence of accused:
17. Statement of accused under Section 313 Cr.P.C was recorded wherein he denied the case of prosecution and stated that he is innocent and has been falsely implicated in the present case. Accused further chose to lead evidence in his defence and examined DW1 Smt. Tohfa Devi who deposed that mother of prosecutrix used to reside in their neighbourhood. Sometime she used to call her son Kishan Lal for some mechanical problem in the house. She stated that her son never married with mother of the prosecutrix. The mother of the prosecutrix used to call his son at her place and when DW1 objected she threatened her to teach a lesson. His son has been falsely implicated in this case as DW1 used to be reluctant to join the company of the mother of the prosecutrix. She stated that prosecutrix age is 16 to 17 years. She stated that there is monetary transactions between the mother of the prosecutrix and the accused but there was no relationship of husband and wife between mother of prosecutrix and her son.
18. I have heard Ld. Counsel for accused as well as Ld. APP for state ad have carefully perused the record.
Arguments of Ld. APP for state:
19. It is argued by the Ld. Additional Public Prosecutor for the SC No. 91/11 State Vs Kishan Lal Page No. 7/19 state that prosecutrix is minor and from her deposition coupled with the medical evidence case under section 376 of IPC is made out against the accused Kishan Lal.
Arguments of Ld. Counsel for accused:
20. On the other hand, Ld. Defence counsel for accused argued that there are contradictions in the statement of prosecutrix. The prosecutrix has falsely implicated the accused at the instance of her mother who is the second wife of the accused. It is stated that the mother of the prosecutrix did not want the accused to meet the children of his first wife and when he did not adhere to the wishes of the mother of the prosecutrix, she got him falsely implicated through her daughter who is having relations with other boys.
Conclusion:
21. Before appreciating the facts of this case, it is necessary to know the ingredients of the offence by resorting to the provisions of sec. 375 read with sec.376 IPC. Section 375 Rape provides: " 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 SC No. 91/11 State Vs Kishan Lal Page No. 8/19 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 reason of unsoundness of mind or intoxication or the administration by him 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 under sixteen years of age.
Explanation Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
22. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from ten to eighteen years.
The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal SC No. 91/11 State Vs Kishan Lal Page No. 9/19 knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
23. In MANU/SC/7825/2008 Moti Lal vs. State of M.P., the Apex Court had observed that : "a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity."
24. The two issues to be determined on the basis of evidence adduced by the prosecution are the age of the prosecutrix and whether she SC No. 91/11 State Vs Kishan Lal Page No. 10/19 was a consenting party to the incident or not.
25. Age of the prosecutrix: In the present case, accused has been charged under Section 376 IPC for committing rape upon the prosecutrix aged about 14 years without her consent. As per the prosecution case, the accused is the step father of the prosecutrix. With regard to the age of the prosecutrix, the prosecutrix has herself produced the original birth certificate issued from MCD, the copy of which is placed on record as Ex.PW3/B. As per this birth certificate the date of birth of the prosecutrix is 23.09.1998. No document is produced by the accused to challenge the authenticity of the date of birth certificate given by the prosecutrix. However, Ld. Counsel for the accused has argued that the concerned official who had issued this birth certificate has not been examined and the authenticity of the same is doubtful as it is recently issued in the year 2010. So far as this argument is concerned, no witness from MCD has been examined to prove the date of birth certificate . Further, this document is registered on 14.09.2010 only and not at the time of birth of the prosecutrix and as such, it was required to be proved by producing the MCD official who had issued this certificate. Hence, Ex PW3/B is not duly proved.
However, the prosecution has also placed on record the bone age XRay report of the prosecutrix which is proved by PW10 Dr. Prashant Kundo. As per this report of bone age Ex.PW10/A, the age of the prosecutrix was opined above 14 years but below 14.9 years. Giving the margin of two years, as per the settled law in the case titled as SC No. 91/11 State Vs Kishan Lal Page No. 11/19 Jaimala Vs Home Secretary, Govt. of J&K ( 1982) SCC 1296, Hon'ble Supreme court of India, I hold that the age of the prosecutrix was more than 16 years but below 16.9 years at the time of registration of the FIR.
26. Consent of the prosecutrix and other ingredients of the offence: The entire foundation to bring home the charge of rape rests on the statement of the prosecutrix. It needs no elaboration that a conviction can be based on the uncorroborated evidence of the prosecutrix if the same inspires confidence. It will be useful to refer to the observations of Apex Court in the case titled as Radhu Vs State of Madhya Pradesh 2007, Crl. Law Journal 4704 wherein Hon'ble Supreme court has held that: " It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is SC No. 91/11 State Vs Kishan Lal Page No. 12/19 under 16 years of age.
27. In 2010 III AD (DELHI) 448 titled as Shanker Sahai Vs. State it has been held that:
"Indian Penal Code, 1860Sec.376RapeTestimony of prosecutrixSole basis for convictionTestimony of prosecutrix, if believed, can be sole basis of conviction in rape caseNo rule of law or of practice requires corroboration before her testimony can be expected and acted upon."
28. Similar view has been taken in 2009 VI AD (DELHI) 37 Arshad Vs. State wherein it has been held that:
"Conviction of the offender in rape case is based on sole testimony of rape victim may be a child provided if it inspires confidence of the court."
Hence, there are iota of judgments on the point that the conviction of the accused can be based upon the sole testimony of the prosecutrix, if it inspires confidence and no independent corroboration is required.
29. So far as the competency of a child to testify as a witness is concerned, the court in India have relied on the proposition formulated by Justice Brewer in Wheeler Vs. United States 159 US 523 (1895) who had opined that the evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.......... SC No. 91/11 State Vs Kishan Lal Page No. 13/19 30 The reservation expressed with regard to evaluating the testimony of a witness is based on apprehensions that children may be vulnerable and susceptible to be swayed by what others tell and the child witness is an easy pray to tutoring and therefore their evidence must be evaluated carefully and with greater circumspection. (Ref: Panchi Vs. State of U.P. MANU/SC/0530/1998: 1998 Cri. L. J 4044). 31 It is equally well settled that if satisfied that the testimony of the child witness is a voluntary expression of what transpired and is an accurate impression of the same, no corroboration of the testimony is required. The Supreme Court has repeatedly ruled that there is no rule of practice that the evidence of a child witness needs corroboration and stated that conviction can be based on it. It is only as a rule of caution and prudence that the court may require that it would be desirable to have corroboration from other dependable evidence. (Ref: Dattu Ramrao Sakhare & Ors. Vs. State of Maharashtra MANU/SC/1185/1997: (1997) 5 SCC 341 : Suryanarayana Vs. State of Karnataka MANU/SC/0001/2001 :
2001 Cri. L.J.705).
32. In the present case, PW3 is the prosecutrix who has specifically deposed that her step father i.e. the accused used to have sexual intercourse with her whenever her mother used to go to hospital where she was working as Attendant of the patients. She has deposed that the accused has been committing rape with her for the last about two years prior to reporting the matter to the police and was also inserting his SC No. 91/11 State Vs Kishan Lal Page No. 14/19 penis into her mouth and also used to rub her body. She has also stated that sometimes the accused used to have sexual intercourse with her after taking liquor and lastly he committed rape 15 days prior to reporting the matter to the police.
33. The incident was reported by the prosecutrix to her Nani only when she enquired from her as she was vomiting after taking meals. Her Nani had thereafter informed her mother. Then, they took her to the police station. She was got medically examined vide MLC Ex. PW1/A and during her medical examination, she was found pregnant. PW3 has further deposed that the doctor advised her to come on 10.05.2011. She again visited the hospital where she was got aborted (doctor ne mere pait se bachcha nikala tha) and then the doctor put the child (fetus) in the dabba/box and her blood sample was also taken. Nothing adverse came out in the cross examination of PW3 so as to doubt her statement.
34. Further, her mother i.e, PW5 Smt. Shakuntala has also corroborated the statement of the prosecutrix who has stated that her previous husband Sh. Khoon Bahahdur died in a long illness and her three children including the prosecutrix were born from her wedlock with Khoon Bahahdur. She further stated that she is from Nepal and her husband i.e, the accused belongs to Rajasthan. It is also stated that her daughter i.e, the prosecutrix was complaining that she was not feeling well for the last 4/5 days but she did not disclose anything to her. She was scared so PW5 left her at the place of her mother on 03.05.2011. Her SC No. 91/11 State Vs Kishan Lal Page No. 15/19 mother made a phone call to PW5 that the prosecutrix is not taking food and is vomiting and she went there and on inquiry, the prosecutrix stated that the for the last 2 years the accused was committing rape with her forcefully whenever, PW5 was out for her duty. PW5 has also stated that accused used to intimidate her by threatening to kill PW5 if she would report the matter to PW5. She further stated that the prosecutrix has told her that the accused also used to have oral sex with her. She further deposed that she was medically examined where she was found to be carrying fetus of 2 ½ months and thereafter, she was got aborted. Nothing adverse also came out in her statement.
35. Accordingly, nothing has come out in the statement of the prosecutrix as well as in the statement of her mother so as to doubt the veracity of their statements which inspire confidence. The late reporting of the matter by the prosecutrix is fully explained by her mother that she was threatened by accused who was her own step father. The tender age of prosecutrix, the threats given by him and the relationship in which the accused stand with the prosecutrix may certainly have a terrifying effect on her due to which she could not disclose the incident earlier to her mother. From the statement of the prosecutrix it is duly proved that the accused was committing rape with her forcefully without her consent and against her wishes.
36. Medical Evidence: As per the MLC of the prosecutrix Ex.PW1/A which is duly proved by the concerned doctor S. Murali, the SC No. 91/11 State Vs Kishan Lal Page No. 16/19 hymen of the prosecutrix was ruptured. It is stated by PW1 Dr. S. Murali that in urine pregnancy test the prosecutrix was found to be pregnant and thereafter in the ultrasound the pregnancy of 12 weeks was detected. The fetus of the prosecutrix after abortion was preserved and sent for DNA examination. The DNA report is duly proved by PW4 Dr. Anupama Raina which is Ex.PW4/B. She has deposed that the result of the DNA finger printing test concluded that the fetus is the biological offspring of the prosecutrix and the accused. The testimony of PW4 is also not shattered in the cross examination. After the proving of DNA report as well as the MLC of the prosecutrix and the accused and in view of the convincing and cogent statement of the prosecutrix and her mother, it is proved beyond doubt that the prosecutrix was raped by the accused forcefully and without her consent.
37. Defence of the accused: As per the statement of the accused recorded under Section 313 Cr.P.C, he has denied the prosecution case. It is stated that the statement of the prosecutrix is tutored to her by her mother. It is also stated that the prosecutrix was having physical relations with other boys and for that reason she was rusticated from the school. It is also stated that the accused started staying with the kids of his first wife. His second wife Shakuntala, i.e, the mother of the prosecutrix came to his office and insisted upon him that he should come and stay with him and has also consumed sleeping pills. When he refused, she got him framed in this case through her daughter.
Accused has examined his mother as DW1. In her cross SC No. 91/11 State Vs Kishan Lal Page No. 17/19 examination in chief DW1 has stated that there is some monetary transaction between the mother of the prosecutrix and the accused and there was no relationship of husband and wife with the mother of the prosecutrix and her son. But in the cross examination she has admitted his son was residing with the mother of the prosecutrix from the last 10 years without getting married to her. She has denied any knowledge about medical report of the prosecutrix wherein it is reported that prosecutrix was carrying fetus of the accused out of the relations with the accused. The testimony of DW1 has no relevance so far as the factum of rape with the prosecutrix is concerned except this much that she stated that her son is falsely implicated, but her statement could not shatter the statement of prosecutrix, DNA report and MLC. Moreover, from the statement of DW1 the statement of the prosecutrix and her mother is rather corroborated to prove that the accused was living with the mother of the prosecutrix and was having relationship with her. Thus, statement of DW1 cannot prove the Defence of the accused that he has been falsely implicated at the instance of the mother of the prosecutrix who was raising objection to the accused living with the children of his first wife. No such statement is made by mother of the accused DW1 that the mother of the prosecutrix was raising objection to the accused living with the children of his first wife rather, she has put a new story that the mother of prosecutrix used to call her son and whenever she was objecting, the mother of prosecutrix used to threat DW1 to teach a lesson. No person shall falsely implicate other person at the cost of the SC No. 91/11 State Vs Kishan Lal Page No. 18/19 reputation of the family or a girl child. There is no reason with the prosecutrix to falsely implicate the accused. Hence, statement of DW1 is not believable in view of the trustworthy and cogent testimony of the prosecutrix which is duly corroborated by the statement of her mother as well as by the medical evidence and the report of DNA.
38. In view of the above discussion, the prosecution has proved its case beyond doubt against the accused that he had been committing rape with the prosecutrix without her consent and wishes. Hence, the accused Kishan Lal is held guilty and convicted for the offence under Section 376 IPC.
ANNOUNCED IN THE OPEN COURT ON 05.07.2013.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI SC No. 91/11 State Vs Kishan Lal Page No. 19/19