Delhi District Court
25. In Madan Gopal Kakkad vs . Naval Dubey (1992) 3 Scc on 4 May, 2011
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE01, NORTH, DELHI.
FIR No.: 325/2009
PS: Kotwali
U/s: 328/376 (2) (G) IPC
S.C. No.: 56/2010
Case ID No.02401R1296512008
In the matter of:
State
Versus
1. Babloo S/o Mohd. Salim
R/o Village Tilak Maindan Road,
Distt. Mujaffar Pur, Bihar.
2. Chhotu S/o Nathu
R/o VillageUncha Mohalla Tehsil Faridpur,
Distt. Bareli, UP.
Date of receiving in Sessions Court : 15.03 .2010
Arguments Heard : 21.04.2011
Date of Judgement : 04.05.2011
JUDGEMENT
Case Of Prosecution:
1. On 26.11.2009 on receipt of DD no. 12A WASI Beena alongwith Lady Constable Santosh reached at the spot at Company Bagh where SI Satyaprakash and Constable Vipin produced the prosecutrix FIR No.: 325/2009 1/18 (name withheld to keep her identify confidential) and accused Babloo and Chhotu alongwith one cycle rickshaw before the IO and the prosecutrix gave her statement that her father remarried after the death of her mother and she was adopted by one of her relative namely Sh. Shabbir Hussain. She used to do all the household works but the behaviour of her family members were not good towards her. The complainant further stated that on 23.11.2009 he left for Bhajanpura from her house at Kanpur and on 24.11.2009 at about 8 a.m. she reached at New Delhi Railway Station where she met accused Babloo, the rickshaw puller and told him to take her to Bhajanpura. She told the accused that she was not having any money on which accused Babloo assured her to take her to Bhajanpura without charging any fare. Thereafter she boarded the rickshaw of accused Babloo who kept on roaming here and there for the whole day and in the evening, accused Babloo took her to a place near Old Delhi Railway Station and made her sit on a patri. After sometime coaccused Chotu also came there. They both gave her some pills alongwith her meal and thereafter she became unconscious. When she woke up in the morning she felt pain in her vagina and her Pajami and undergarments were stained with blood. Thereafter accused persons purchased some new clothes for her and took her to the bank of a river type place where she took bath and changed her clothes and accused Babloo threw away her handkerchief alongwith her blood stained clothes.
Accused again kept on roaming here and there with her for the whole day FIR No.: 325/2009 2/18 on the pretext of taking her to her sister's home and in the evening, they again raped her. Again on the next morning, when both the accused were taking her for bath, she saw the police and gathered some courage and told the police officials about the incident. On the statement of prosecutrix case U/s 328/376 (2) (G) IPC was registered at P.S. Kotwali and during investigation, IO prepared site plan, took the cycle rickshaw into possession, got the medical examination of accused as well as prosecutrix conducted from Aruna Asaf Ali Hospital and arrested both the accused. Bony age examination of prosecutrix was got conducted from concerned doctors, her statement U/s 164 Cr.P.C. was recorded, exhibits of the case were sent to FSL for expert opinion and after completion of investigation, challan against both the accused were filed in the court.
2. Since the offence U/s 376 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case U/s 328/ 376 (2) (g) IPC was made out against the accused persons. Charges were framed against them to which they pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 13 witnesses in all.
5. The brief summary of the deposition of the prosecution FIR No.: 325/2009 3/18 witnesses is as under:
Formal witnesses:
6. PW1 is Head Constable Pradeep Kumar, the MHC (M) who proved the entries regarding deposition of case property in malkhana.
7. PW4 is SI Pawan Yadav, the duty officer who recorded the FIR and proved the same as Ex.PW4/A.
8. PW5 Lady Constable Santosh has been dropped by APP for the state being repetitive witness.
9. PW7 is Constable Shakil Ahmed who took the sealed pullandas to FSL, Rohini and deposited the same there.
10. PW10 is Dr. Manisha Upadhyay who examined the exhibits of the case and proved the report as Ex.PW10/A. Material Witnesses:
11. PW3 is the prosecutrix (name withheld to keep her identity confidential) who has duly supported the case of prosecution and has also identified both the accused persons present in the court.
12. PW8 is Constable Vipin Kumar who was on patrolling duty alongwith SI Satpal when the prosecutrix met them and told them about the incident and he took the rukka to police station for registration of FIR.
13. PW11 is W/ASI Beena, IO of the case who conducted the investigation of the case and proved the memos etc.
14. PW12 is SI Satpal who was on patrolling duty alongwith FIR No.: 325/2009 4/18 Constable Vipin Kumar when the prosecutrix met them. Thereafter he joined the investigation of the case alongwith the IO and has proved the memos etc. Medical Witnesses:
15. PW2 is Dr. S. Lal Specialist Forensic Medicine, Aruna Asaf Ali, Hospital who examined accused Babloo and proved the MLC as Ex. PW2/A.
16. PW6 is Dr. Ravi Kanta, Medical Officer from Aruna Asaf Ali Hospital who examined the prosecutrix in casualty and proved the MLC as Ex. PW6/A.
17. PW9 is Dr. Sonia Aggarwal, S.R. Gynae from Aruna Asaf Ali Hospital who examined the prosecutrix in Gynae department and proved the MLC as Ex. PW9/A.
18. PW13 is Dr. Rakesh Kumar, Chief Medical Officer from Deen Dayal Upadhyay Hospital who has proved the bony age report of prosecutrix as Ex. PW13/A.
19. Statement of both the accused U/s 313 Cr.P.C. was recorded wherein they denied the case of prosecution and stated that they are innocent and have been falsely implicated in the present case.
20. I have heard Ld. defence counsels for the accused and Ld. APP for the State and have carefully perused the record. FIR No.: 325/2009 5/18 CONCLUSION:
21. Ld. counsel for accused Babloo argued that the character of the prosecutrix can be guessed from the fact that she ran away from her house and thereafter it is not known as to how many people she blackmailed during her journey from Kanpur to Delhi. In Delhi she lived with the accused for two days as per her testimony and thereafter when the accused did not accede her demand, she falsely implicated them in this case. Counsel for accused Chhotu argued that no case under section 328 of IPC is made out against the accused persons as in the MLC doctor has nowhere opined that prosecutrix was found under the influence of some intoxicating substance and also stomach wash of the prosecutrix was never sent to FSL to detect any intoxicating substance. He further argued that from the testimony of prosecutrix, it seems that she was a consenting party and later on falsely implicated the accused persons.
22. On the other hand Ld. APP for the state as well as Ld. counsel for DCW (Delhi Commission for Women) argued that prosecutrix is a minor girl and she is even not able to tell the address of her home at Kanpur and the accused took the advantage of this fact and therefore, raped her. At the first opportunity when the prosecutrix met the police officials, she told the whole incident to them and the testimony of prosecutrix alone is sufficient to convict the accused persons.
23. In the case in hand, the prosecutrix has been examined as PW3. She has stated that she was aged about 5 years when her mother FIR No.: 325/2009 6/18 expired. During her examination in the court she has given her age as 14 years. According to the prosecutrix, she came from Kanpur to Delhi after running from her home. As she was not able to tell the address of her parents even at Kanpur and there was no evidence with the IO regarding her age, therefore, prosecutrix was sent for medical examination for assessment of her age. PW13 is Dr. Rakesh Kumar, Chief Medical Officer from DDU hospital. He has stated that patient (name withheld to keep her identity confidential) was brought by ASI Veena for her bony age determination and as per the report, the age of the prosecutrix as opined by the doctor Shailender was more than 12 years but less than 14 years. He further proved the report as Ex. PW13/A. As per Ex. PW13/A, the age of the patient has been opined as more than 12 years but less than 14 years. The testimony of PW13 has remained unchallenged and unshattered. Prosecutrix when she was produced in the court, she has given her age 14 years at the time of her examination. She deposed that she was aged about 5 years when her mother expired. Her father married again. Her step mother had two kids and she never used to love her and one of her relative Sabir Hussain adopted her but the behaviour of her relative was also not good towards her. One of the daughter of her relative Sabir Hussain used to reside in Bhajanpura in Delhi. About 10 months ago she boarded the train for Delhi from Kanpur and came to railway station in the next morning. When she deboarded the train at the railway station and came out, one rickshaw puller met her. She correctly FIR No.: 325/2009 7/18 identified the accused Babloo in the court. She further stated that she told the accused that she does not have any money and she has to go to Bhajanpura. Accused got her to sit in his rickshaw and thereafter on the pretext that he was taking her to Bhajanpura he kept on moving with the rickshaw here and there. At one place he told her that that road is closed and took her to other road which was also closed. By that time, it became dark and thereafter accused told her that he would take her to Bhajanpura on the next morning. He took her to the patri/railway line. Accused Babloo brought the Aloo Parantha for her. After sometime other accused namely Chhotu who has been also correctly identified by the witness in the court, came there. Accused Babloo fed her Parantha by his own hand. She stated that in the Parantha accused gave her some pills/tablets on eating it was bitter, so she drank water. Accused persons asked her to sleep and she became unconscious. When she regained her consciousness, she felt some pain in her stomach and vagina. She found her salwar blood stained. Accused gave her new clothes and took her to a place under a tree where water had gathered. She took bath there and changed her clothes. Her blood stained clothes were disposed off by the accused at that place. Next day accused took her on rickshaw and they kept on moving the rickshaw here and there and did not take her to Bhajanpura. Again it became night and both the accused took her to a dark place near the patri. In the night both the accused persons committed intercourse with her forcibly. In the following morning when the accused persons FIR No.: 325/2009 8/18 were taking her in their rickshaw, she saw police persons on the road. She gathered some courage and told the whole facts to the police persons. Both the accused persons were thereafter apprehended by the police. The witness has given the detailed version of whatever happened with her during the two nights. She has duly identified both the accused persons in the court. Moreover, both the accused persons were caught red handed with the prosecutrix by the police officials as deposed by the police officials also. She has also been subjected to a lengthy cross examination but nothing material has come out of her cross examination. No suggestion has been given to this witness by the accused persons that it was not the accused persons who committed rape with her or that she has falsely implicated them. In her cross examination she has clearly stated that she boarded the train at Kanpur alone and and the train left the station in the noon and thereafter the train reached Delhi in the evening on the same day. When she came out from the station at Delhi, accused met her in the evening. Whether accused met prosecutrix in evening or morning is immaterial. The fact remains that she met the accused persons and they both have been duly identified by her. She in her cross has stated that accused Babloo met her with his rickshaw. In her chief she first identified the accused Babloo as the rickshaw puller. There is no reason to disbelieve the testimony of PW3. Testimony of PW3 inspires confidence and is trust worthy. It is possible that for first time she was raped, she was unconscious but on the second day, when she was raped then she was not under the influence of any intoxicating substance and clearly saw both the accused persons.
24. Ld. defence counsel for the accused Babloo has assailed the FIR No.: 325/2009 9/18 character of prosecutrix and has stated that prosecutrix being of a loose character falsely implicated the accused persons. The prosecutrix is only a small girl aged between 12 to 14 years. She ran away from her house due to maltreatment given by her step mother as well as by her relative who later on adopted her. There is no reason shown as to why she would falsely implicate the accused persons in the present case if the accused had not committed any wrong act with her. She herself stated that on the first day she did not tell the incident to anybody but later on when she saw the police officials, she gathered some courage and told the facts to the police officials. Prosecutrix is a small girl. She came to a complete new city i.e. Delhi and met the strangers there i.e. both the accused here. She believed them and placed her faith on the accused persons and thereafter it was the accused only who raped her. Initially it seems she was afraid being in a new city as she was in the company of two strangers but subsequently again in the night when the accused committed sexual intercourse with her against her wishes then on the very first opportunity after finding the police officials, she disclosed the facts to them. From her cross examination, it is clear that she does not know anything about Delhi and also about her sister's home at Bhajanpura for whom she came from Kanpur to Delhi. Ld. counsel for DCW argued that till date prosecutrix is not able to tell the address of her parents at Kanpur or of her sister at Bhajanpura and failed to furnish them any address due to which she is still living in children's home. From the testimony of PW3 and from her FIR No.: 325/2009 10/18 answers in cross examination, it is clear that witness is trustworthy witness. She herself has stated that accused Babloo kept on moving the rickshaw here and there and on the first day she did not make any complaint to anybody. After hiring rickshaw when accused assured her to take Bhajanpura then being new in the city, she did not make any complaint to anybody. At first, she was not aware about the intention of the accused and had no inclination about the same, but subsequently when accused committed wrong act with her then she complained to the police officials. She was taken for her medical examination on 26.11.2009 and to the doctors also she told about the history of sexual assault of 24.11.2009 and 25.11.2009 by the two persons. Her MLC has been proved on record as Ex. PW6/A and Ex. PW9/A. In the casualty, the doctors have made remarks that there is no fresh injury over the body of the prosecutrix. Thereafter she has been referred to senior resident in gynae department. Ld. counsel for accused argued that there is no fresh injury on the body of prosecutrix which falsifies the case of rape.
25. In Madan Gopal Kakkad vs. Naval Dubey (1992) 3 SCC 204 it has been held that: "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the FIR No.: 325/2009 11/18 law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is a crime and not a medical"
26. In Ranjit Hazarika vs. State of Assam (1988) 8 SCC 635 it has been held that: "That non rupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix. 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 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 offender is entitled to great weight, absence of corroboration notwithstanding."
27. Prosecutrix thereafter was examined by PW9 Dr. Sonia Agarwal, S. R. Gynae. She has deposed that she examined the patient and gave her notes Ex. PW9/A. She found her hymen torn and there was fresh bleeding and she herself told that she was raped by rickshaw puller on 24.11.2009 and 25.11.2009. Not only to the police but to the doctor also who examined the prosecutrix, the prosecutrix told about the factum of rape. From the MLC Ex. PW9/A it stands proved that hymen was found torn and there was fresh bleeding. The presence of fresh bleeding from the prosecutrix alongwith torn hymen also proved the factum of rape FIR No.: 325/2009 12/18 despite the fact that prosecutrix had taken bath after the rape as told by her not only in the court but to the doctors also. Doctor was still able to find the signs of fresh bleeding which proves the factum of rape upon her.
28. PW10 is Dr. Manisha Upadhyay who proved the FSL report Ex. PW10/A. This witness examined the exhibits sent to her by the police officials. In Ex. PW10/A, the blood has been detected on Ex.1, 2p,5, 9, 11b and 11d. Ex.1contains the clothes which was provided by the accused persons to prosecutrix after committing the first rape. PW3 has duly deposed about this fact in the court. Ex.11b and 11d contains the clothes which according to the prosecutrix she was wearing when she came from her village and these clothes were worn by her at the time of incident. Both the clothes were also detected with blood on them. Not only this but human semen has also been detected on Ex. 1 i.e. jeans which was provided by the accused person to prosecutrix after committing the first rape and Ex. 11b is pajama (lower) which according to the prosecutrix she was wearing when she came from her village. The human semen has been further detected on Ex. 7, 3a. Ex. 7 is the pant worn by one of the accused and it gives the blood group as A group. Though this A group is not found on jeans or pajama 11b of prosecutrix and same tested for AB group but the fact cannot be ignored by the court that as per the prosecutrix she was raped by both the accused persons. If on her jeans and pajama ( lower) AB group was found whereas A group was found on the pant of the one of the accused but the fact cannot be FIR No.: 325/2009 13/18 ignored by the court that semen stains on the pajama of the other accused had given no reaction. The blood sample of the victim as well as both the accused persons has been petrified and therefore, no opinion about the blood group can be given. The presence of human semen on the jeans as well as pajama of the prosecutrix further points out the factum of rape. The Pajama which the prosecutrix was wearing at the time commission of first rape when she came from her village to Delhi and the jeans was given to her by the accused persons to change when her clothes were blood stained after the first rape. Both on the jeans and the pajama, human semen has been found.
29. So far as the contention of the counsel for accused Babloo that prosecutrix during her way from Kanpur to Delhi have indulged in the wrong activity then in their statements, none of the accused persons have stated anything like this. Neither during cross of prosecutrix nor during cross of other police officials this suggestion has been given by the counsel for the accused persons. It is only during arguments that counsel for accused has unsuccessfully tried to blemish the character of prosecutrix. It is generally seen that in such type of cases finding no other defence, the character of a girl is always easy to target and in the present case also, counsel for the accused Babloo has tried to take this plea, though unsuccessfully. Rest of the witnesses examined by the prosecution are the police officials who are either the duty officer or either the police officials who were with the IO during the investigation of the case. Minor FIR No.: 325/2009 14/18 contradictions here and there in their testimony during their cross examination does not go to the root of the case and does not shatter the case of the prosecution. In the present case, the testimony of prosecutrix alone is sufficient to convict the accused persons.
30. In Khem Chand vs. State of Delhi 2008 (7) AD (Delhi) 199:
2008 (4) JCC 2497 it has been held that : "Penal Code, 1860 Section 376 (2) (f) Conviction - False implication, no other grounds except, when unsustainable Rape on minor - Victim aged only 8 years -
Prosecution case supported by prosecutrix as well as by medical evidence Apart from plea of appellant being falsely implicated as part of vendetta for non return of loan by father of prosecutrix no other ground urged by appellant - Plea found to be devoid of substance Conviction liable to be confirmed."
31. In Arshad vs. Stated 2009 VI AD ( Delhi) 37 it has been held that : "In a rape case conviction of the offender can be based on the sole testimony of the rape victim may be a child provided it inspires confidence of the court. In a rape case the testimony of the victim is vital and seeking corroboration of her statement relying upon the same as a rule would amount to adding insult to injury unless the court finds compelling reasons requiring corroboration of her statement.''
32. Thus so far as the ingredients of section 376 (2 (g) of IPC are FIR No.: 325/2009 15/18 concerned, then prosecution has been fully able to prove the factum of rape upon the prosecutrix by both the accused persons.
33. So far as section 328 of IPC is concerned, then as per the prosecutrix when for the first time accused met her and took her with them then thereafter, accused Babloo gave her Prantha to eat. He mixed some pills in the Parantha due to which they were bitter in taste and she had to take water also. After eating Parantha she became unconscious. In the MLC Ex. PW6/A of the prosecutrix proved on record it has been clearly mentioned that patient is conscious and cooperative. It is nowhere mentioned that prosecutrix is under some intoxicating substance. Even the prosecutrix herself has not stated that after two days when she met the police officials then she was feeling giddiness or was not a in conscious state of mind. Ld. APP for the state argued that it is possible that after two days the effect of intoxicating substance must have worn out and therefore, same could not be detected in her MLC. No doubt it is possible that after two days rather on the next day the effect of the intoxicating substance must have worn out but it is not possible that some intoxicating substance also could not be detected in the body of the prosecutrix after two days. In the case in hand, neither there is MLC to substantiate the testimony of PW3 prosecutrix that she was given some intoxicating substance and after eating the same she became unconscious nor there is any FSL report i.e. stomach wash of the prosecutrix was also never sent to FSL to detect any intoxicating substance in the body of the FIR No.: 325/2009 16/18 prosecutrix.
34. In 2008 (4) JCC 2919 titled as Santosh Kumar vs. State it has been held by our own Hon'ble High Court that: "Penal Code1860 Secs. 328, 379 Appeal against conviction According to the statement of victim accused gave him biscuit and after taking the biscuit he became unconscious Simply on the basis of the statement of victim alone it could not be concluded that he had become unconscious because of eating the biscuit or drinking tea offered to him by the accused There had to be medical evidence to the effect that victim had became unconscious because of consuming any drug or intoxicative substance etc, mixed in tea or biscuit."
35. It has been further held in 2010 (1) JCC 750 titled as Mukesh Chand & Ors. vs. State (Govt. of NCT of Delhi) that: "Penal code, 1860Sec. 328 Case of poisoning No chemical report about the 'Stomach wash' has been proved on record Conviction can't be sustained as it is well settled that in order to prove poisoning the prosecution is required to prove that the substance in question was a poison."
36. In 2008 VII AD (Delhi) 151 titled as Sanjay Singh & Anr. vs. State, it has been further held that: "Indian Penal code, 1860 Sec. 328 Causing hurt by means of poison etc., with intent to commit an offence Appeal against conviction for offence under section 328/34 of Indian Penal codeHeld, in absence of evidence of doctor who examined victims FIR No.: 325/2009 17/18 after they were brought to hospital and stomach wash not being able to be sent for examination, it was extremely unsafe for trial court to convict Appellants for offence under Section 328 IPCThis court cannot be determinative on whether what was administered was poisonous in order to attract the offence under Section 328 IPC Appellants acquitted Appeal disposed of.''
37. In the case in hand also neither there is any medical evidence on record that the prosecutrix was under influence of some intoxicating substance nor stomach wash of the prosecutrix was sent to FSL for its medical examination to prove the fact that some intoxicating substance was administered to the prosecutrix. In view of these authoritative pronouncements, the sole testimony of the prosecutrix without being corroborated by her medical or any other evidence that she was administered some intoxicating substance by the accused, it cannot be said that prosecution has been able to prove the ingredients of section 328 of IPC against the accused.
38. In view of the abovesaid discussion, both the accused are acquitted of the offence u/s 328/34 IPC. However, they are held guilty and convicted for the offence u/s 376 (2) (g) of IPC.
(MADHU JAIN) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 04.05.2011. FIR No.: 325/2009 18/18