Delhi District Court
State vs . Sharvan Kumar Rai on 26 February, 2013
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 42/11)
Unique ID case No. 02404R0249362010
State Vs. Sharvan Kumar Rai
FIR No. : 314/2010
U/s : 376(2)(f)/377/376 IPC
P.S. : Saraswati Vihar
State Vs. Sharvan Kumar Rai
S/o Sh. Ishwar Lal
R/o C845/846, 3rd Floor,
J.J. Colony, Shakurpur,
Delhi.
Permanent Address :
Village Kadihar, P.S. Ghoghdiha,
District Madhubani, Bihar.
Date of institution of case 30.09.2010
Date on which, judgment has been reserved26.02.2013
Date of pronouncement of judgment 26.02.2013
SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 1 of 29
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JUDGMENT:
1 The case of the prosecution is that on 18.08.2010 complainant Anita went to Police Station Saraswati Vihar along with her grand daughter (daughter's daughter) aged about 9 years and made complaint Ex.PW3/A wherein she stated that she was residing at 771, 2nd Floor, J.J. Colony, Shakurpur, Delhi, and that her daughter Jyoti, who was a widow, was also residing with them along with her 9 years old daughter i.e. the prosecutrix and one year old son. She further deposed that her husband Suraj Pal was doing work of Polishing utensils in a steel factory and that accused Sharvan Kumar Rai, who was residing in their neighbourhood, was also doing the same work and that accused was on regular visiting terms to their house. On 17.08.2010 also accused Sharvan Kumar Rai came to the house of complainant. On 18.08.2010 complainant found that prosecutrix was lying down in a dull and disturbed condition. When complainant asked her about it, she told complainant that on the day before in the evening accused Sharvan Kumar Rai had taken her to the roof of the house and had removed her 'nicker' and had also removed his clothes and committed wrong act with her. On coming to know all these facts, complainant brought prosecutrix to Police Station. The complainant and prosecutrix were sent along with Police staff to Bhagwan Mahavir Hospital and on return back complainant further stated in her complaint that last night accused Sharvan Kumar Rai had come to their house at about 8:00 PM and that he had already consumed liquor at that time and that he told Suraj Pal, husband of complainant, that he would stay back for the night at their house and that Suraj Pal told accused that they both would sleep on the roof and that accused should go to the roof with a blanket and that he would follow. Thereafter husband of complainant went out.
SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 2 of 29 3 Accused Sharvan Kumar Rai asked prosecutrix to show him the roof and on this prosecutrix went with accused, at about 8:30 PM, to the roof. At about 9:00 PM, complainant's husband returned back and at that time accused Sharvan Kumar Rai came down from the roof and said that he was going to his own house. Complainant stated that after prosecutrix had disclosed about the incident to her, she could make out that accused Sharvan Kumar Rai had committed wrong act with her grand daughter on the roof between 8:30 and 9:00 PM. She further stated that prosecutrix had told her that she had not told about the incident to anyone out of fear. On this complaint made by Smt. Anita case FIR No.314/10, Ex.PW4/A, was registered at PS Saraswati Vihar u/s. 376/377/376(2)(f) IPC against the accused Sharvan Kumar Rai. 2 During the course of investigations, IO prepared the site plan Ex.PW19/B at the instance of complainant and also seized the exhibits i.e. the blanket and the clothes of the prosecutrix. Accused Sharvan Kumar Rai was arrested in the case. Prosecutrix was also got examined at Bhagwan Mahavir Hospital for determination of her medical age. Exhibits of the case were sent to FSL Rohini. The statement of prosecutrix was also got recorded u/s.164 CrPC. After completion of the investigation, the charge sheet was prepared and filed in the court for trial.
3 Upon committal of this case to the court of Sessions, charges for the offence under Sections 376(2)(f) IPC was framed against the accused Sharvan Kumar Rai. However, accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 3 of 29
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4 In order to prove its case, prosecution has examined 21 witnesses.
5 The PW2 is the prosecutrix. Since the witness was aged about 9 years
when she appeared to depose in the Court, learned Predecessor put certain questions to the witness to ascertain her capability to understand the question and to answer the question reasonably and after ascertaining the competence of witness to answer the question, recorded her statement wherein the witness stated that she knew accused Sharvan Kumar Rai as he was friend of her Nana and that on 17.08.2010 she was playing at her residence where she was living with her Nana, Nani and her mother as her father had expired. Everybody else was also present in the house at that time. The PW2 further deposed that accused instigated her "Chhat (roof) Dhikha La Beta"
and that PW2 took accused to the roof of their house and that on the roof accused removed her clothes and also removed his clothes and committed sexual intercourse with her and that it was night time and that she started weeping and came downwards. The PW2 also stated that accused had threatened her not to disclose about the said incident to anyone. The prosecutrix was shown her statement u/s.164 CrPC, after the same was taken out from a sealed parcel sealed with the seal of 'VA'. She identified her signatures thereupon and the statement was exhibited as Ex.PW2/A. 6 During her crossexamination, PW2 stated that she had not disclosed the fact about rape being committed upon her by the accused to anyone prior to that day. She also deposed that they were residing in one room in the rear portion of the house and that there was another room in the front portion of the house where someone else SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 4 of 29 5 was residing. In response to the specific question PW2 stated that she had deposed whatever had happened with her and nobody had forced her to depose in the Court. PW2 denied that some other male member had accompanied her on the roof of the house on that day and that it was not accused. During her further cross examination prosecutrix stated that her Nana Suraj Pal was doing work of polishing utensils. She could not state about the trade of accused Sharvan Kumar Rai. She also stated that accused Sharvan Kumar Rai used to visit at their residence prior to the incident every Wednesday as it was a holiday of the factory and that during his visits, he used to consume liquor with her Nana and sometimes quarrel ensued between them. She further stated that on the day of incident, no quarrel took place between accused and her Nana and that quarrel had taken place on the previous day of the incident between them and that at that time accused Sharvan Kumar Rai had said that "Maine Aapko Paise De Rakhey Hai" due to which Nana of PW2 got angry. PW2 denied that accused had been falsely implicated in the case as her Nana had borrowed some money from the accused and was unable to repay the same.
7 The PW3, Smt. Anita, is the grandmother of the prosecutrix. She deposed as per averments made in her complaint Ex.PW3/A with some improvements in as much as she stated that on 18.08.2010 prosecutrix was not getting up in normal course to bring milk from the nearby shop and that PW3 again requested her to bring milk as her mother was go to work and that on her asking prosecutrix brought milk but again lay down on the bed and that after mother of prosecutrix left, PW3 asked her reason for her discomfort and she narrated that the accused Sharvan Kumar Rai, who had visited their SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 5 of 29 6 house on previous night, had committed rape with her on the roof of the house and that she also told PW3 that accused removed his clothes as well as her clothes and thereafter committed rape and that she took prosecutrix to Police Station and filed her complaint Ex.PW3/A. The PW3 identified her signatures on the seizure memo of the blanket and clothes of the prosecutrix and the same was exhibited as Ex.PW3/B. She also identified her signatures on the arrest and personal search memo of the accused i.e. Ex.PW3/C and Ex.PW3/D respectively. The case property was shown to the witness. She identified the blanket (having some oval shape cut marks made by examining authority) as the same which had been handed over by her to the Police and the said blanket was exhibited as Ex.P1. She also identified the top and underwear of the prosecutrix and the same were exhibited as Ex.P2 and Ex.P3 respectively. 8 The witness was crossexamined by learned Additional PP on the point of consuming of liquor by accused and husband of the witness and on being cross examined by learned Additional PP, the witness stated that both her husband and accused had taken liquor on the day of incident. She denied the suggestion that only accused was in drunken condition on that day when he came to their house. During her crossexamination, PW3 denied that on the day of incident a quarrel had taken place between her husband and accused on account of money which was lent by accused to husband of PW3. From further crossexamination of PW3 it is brought out that they had a house constructed in the area of 25 sq. yards with one room constructed in front and second room on its back and that the second room was let out to tenants, who slept in their own room. During her subsequent crossexamination PW3 stated that she had never seen any of her neighbours sleeping on the roof of the house. She volunteered to SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 6 of 29 7 state that there was boundary wall on the roof of neighbouring house (Diwaren Khari Huai Hain) and that they themselves never slept on the roof and slept inside the room. She then stated that her statement was recorded in Police Station by the Police on 18.08.2010 and that inquiries were also made from her husband but she was not sure if his statement had been recorded by the Police. From further crossexamination of PW3 it is brought out that accused had not slept in their house on previous occasion nor did they permit any of their neighbour to stay overnight on previous occasion and that her husband was not having any other friend, who used to take liquor with him and that PW3 herself did not object when accused was asked to sleep in their house. The PW3 also stated that she had handed over clothes of prosecutrix to the Police on 18.08.2010 at her house and that the said clothes were sealed at Police Station in her presence when she was called there in the evening and that she had told about the address of accused to the Police in the evening at 7:30 - 8:00 PM on the same day. She also stated that mother of prosecutrix used to leave for work at about 8:45 AM and that on 18.08.2010 it was a holiday for her husband being Wednesday and that her husband and accused used to have holiday on every Wednesday and on 18.08.2010 accused was also on leave. PW3 denied that accused had been falsely implicated in the case. 9 PW18, Ms. Vandana, learned MM, had recorded the statement of prosecutrix u/s.164 CrPC. She proved the proceedings conducted by her in this regard as Ex.PW18/A to Ex.PW18/C i.e. application u/s.164 CrPC as Ex.PW18/A ; statement of prosecutrix u/s.164 CrPC as Ex.PW2/A ; certificate given by her on the statement as Ex.PW18/B and endorsement on application of the IO for supply of copy as Ex.PW18/C. SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 7 of 29 8 10 PW5, Dr. Pankaj Shah, had examined the prosecutrix on 18.08.2010 vide MLC Ex.PW5/A and referred the patient for gynaecological examination and deposed regarding the same. During his crossexamination PW5 stated that he was told about the assault by the grandmother of the victim child and that no history was disclosed to him by the child and that there was no physical injury found on the child. 11 The gynecological examination of prosecutrix was conducted by PW1 Dr. Yukti Wadhavan, who deposed that on 18.08.2010 she was referred prosecutrix aged about 9 years for gynecological examination vide MLC No.1239 and that she prepared a detailed examination kit of the victim wherein she recorded her observations. She proved the observations made by her on MLC, Ex.PW1/A, of the victim at point "B", the emergency card of the patient, which was in the handwriting of PW1, as Ex.PW1/B and further proved the observations made by her in the kit for examination of victims of sexual abuse as Ex.PW1/C and stated that the findings made by her were consistent with recent sexual intercourse / assault. She further stated that she had advised for bone age determination of the prosecutrix. This witness was not crossexamined on behalf of accused.
12 It appears from the record that prosecutrix was again taken to hospital on 25.08.2010 for determination of her medical age. At that time she was examined by Dr.Pradeep, who had left the services of the hospital by the time matter came up to the stage of trial. The MLC of the prosecutrix was proved as Ex.PW14/A and handwriting and signatures of Dr. Pradeep thereupon were proved by PW15 Dr. Rajesh Satija and SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 8 of 29 9 PW20 Dr. Gopal Krishna, who were conversant with handwriting and signatures of Dr. Pradeep.
13 PW14, Dr. Abhilasha, had given findings from the dental side after examining the prosecutrix and she proved her findings on the MLC from point "X" to "X".
14 PW16, Dr. Shipra Rampal, had examined the Xray plates of the prosecutrix vide MLC No.14315 and stated that after examining the prosecutrix, she opined her estimated bone age to be between 10 - 12 years as on the date of examination. She proved her report in this regard as Ex.PW16/A. 15 PW13, Dr. Bhavana Gupta, had prepared the MLC of accused on 18.08.2010 and proved the same as Ex.PW8/A. Subsequently the accused was examined by Dr. Pawan. His handwriting and signatures on the MLC Ex.PW8/A were proved by PW8 Dr. Sanjay Kumar Dosar, who was deputed in this regard. 16 PW9, L. Babyto Devi, is the Senior Scientific Officer from Biology Division of FSL. She had examined the exhibits in the case. She proved the report of biological examination as Ex.PW9/A and that of serological examination as Ex.PW9/B and stated that the said reports were forwarded to SHO PS Saraswati Vihar vide forwarding letter Ex.PW9/C sent by Director FSL.
17 PW4, ASI Om Prakash, was posted as Duty Officer at P.S. Saraswati Vihar on 18.08.2010. He deposed that on that day PW3 Anita w/o Suraj Pal came to the SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 9 of 29 10 Police Station along with prosecutrix aged about 9 nine years and PW3 lodged a report in the PS which was reduced into writing in DD register vide DD No.13A and handed over to SI Anil Kumar for investigation. He proved true copy of the said DD as Ex.PW4/A. 18 PW17 SI Anil Kumar is the IO of the case. He deposed that on 18.08.2010, he was posted at PS Saraswati Vihar and that on that day, he received DD no. 13A i.e. Ex. PW4/A from the duty officer. He further deposed that prosecutrix and her maternal grandmother were present at the Police Station and he took the prosecutrix to Bhagwan Mahavir Hospital along with lady Ct. Anita and maternal grandmother of the prosecutrix and got the prosecutrix medically examined at hospital, after which, concerned doctor handed over three sealed parcels sealed with the seal of Bhagwan Mahavir Hospital, Pitam Pura, as well as sample seal to Ct. Anita and she in turn, handed them over to PW17, who seized the same vide seizure memo Ex. PW6/A and that after medical examination, prosecutrix was brought back to the Police Station and PW17 handed over the parcels, sample seal and MLC of the prosecutrix to the IO SI Poonam Tyagi. 19 During his crossexamination, PW17 deposed that he did not remember the exact time, when he had received DD no. 13A or the time of their departure from PS or the time, when they reached the hospital. He further stated that they remained in the hospital for 1/11/2 hours and that he did not remember the time, when they had returned back to the hospital. PW17 denied that he had not taken the prosecutrix to the hospital for medical examination on that day.
SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 10 of 29 11 20 PW19 ASI Poonam Tyagi had taken over the investigation of the case after the medical examination of the prosecutrix. She deposed that on 18.08.2010, she was posted at PS Maurya Enclave and was called to PS Saraswati Vihar by the SHO of the said PS and accordingly she went there at about 2.30 pm and that at about 3.00 pm, SI Anil Kumar, lady Ct. Anita, prosecutrix and her nani reached at PS Saraswati Vihar from Bhagwan Mahavir Hospital and further investigation of the case was assigned to PW19. The PW19 further deposed that SI Anil Kumar handed over medical kit Ex. PW1/C, MLC of the prosecutrix Ex. PW1/A and the seizure memo of the Evidence Collection Kit Ex. PW6/A and a sample seal to her and also produced prosecutrix and her nani before her and that PW19 made inquiry from Smt. Anita (Nani) of the prosecutrix, recorded her statement vide Ex PW3/A, whereupon, she prepared rukka vide Ex.PW19/A and handed the same to the duty officer for registration of the case FIR. The PW19 further deposed that thereafter, she along with prosecutrix, her nani and lady Ct. Anita went to the house of the prosecutrix, where, she was handed over one blanket of black colour, one top of white colour and one underwear of prosecutrix and that she was told that blanket was used while committing the offence/rape by the accused. Prosecutrix proved the seizure memo of the said clothes as Ex. PW3/B and she also proved the site plan of the place of incident as Ex. PW19/B and stated that same was prepared by her at the instance of the complainant. PW19 then deposed about the manner, in which, the accused was apprehended at the pointing out of the complainant. She proved the arrest and personal search memo of the accused as Ex. PW3/C and Ex PW3/D respectively and his disclosure statement as Ex. PW10/A. During her further deposition, PW19 deposed about the medical examination of the accused at Bhagwan Mahavir Hospital SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 11 of 29 12 through PW10 Ct. Ashwani and PW12 Ct. Suresh vide MLC Ex. PW8/A and about seizing of the pullandas, handed over by the concerned doctor to the said constables vide seizure memo Ex. PW10/B. The PW19 further deposed about getting the statement of the prosecutrix recorded u/s 164 Cr.P.C on 21.08.2010 and also obtaining the opinion regarding the age of the prosecutrix by getting her ossification test conducted. She proved the statement of prosecutrix u/s 164 Cr.P.C as Ex PW2/A and her ossification report as Ex. PW16/A, wherein, the age of the prosecutrix was opined to be between 10 to 12 years. PW19 then deposed that on 13.09.2010, she got the exhibits of this case sent to FSL through Ct. Natwar and that after the FSL result was received, she collected the same from MHCM and filed it in the court. FSL result on record was proved as Ex PW9/A and Ex. PW9/B respectively. The case property i.e. blanket, top and underwear of the prosecutrix were proved as Ex. P1 to P3. 21 During her crossexamination, PW19 stated that she was not aware as to from which portion of the house, blanket and other belongings were taken out by the complainant before, she handed over the same to her. PW19 termed it correct that she had not recorded the statement of any neighbour of the prosecutrix. She also stated that she had gone to the house of the prosecutrix only once i.e. 18.08.2010 and thereafter, she never visited the house of the prosecutrix and that she had also not recorded the statement of Sh. Suraj Pal (Nana) of prosecutrix.
22 During her further crossexamination, PW19 stated that she had been told by the Nani of the prosecutrix that at the time of incident, mother of the prosecutrix had gone to the market. However, she admitted that she had not recorded this fact in the SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 12 of 29 13 statement of the complainant. During her further crossexamination, she further stated that on the day of incident, mother of the prosecutrix was in the house looking after one year old younger brother of the prosecutrix and despite knowing the fact that mother of the prosecutrix was in the house at the time of incident, she still did not record her statement. The PW19 termed it correct that she had not asked tenant living in the house, whether the accused had come to the spot on the day of incident or not, when asked about the dispute between the grandparents of the prosecutrix and the accused over money transaction, PW19 stated that she was not aware any of such dispute. PW19 denied that accused has been falsely implicated in the case. 23 PW6 Lady Ct. Anita had taken the prosecutrix along with her nani and IO SI Anil Kumar to Bhagwan Mahavir Hospital on 18.08.2010 for the medical examination of the prosecutrix and deposed regarding the same. She proved her signatures on the seizure memo Ex. PW6/A, vide which, the samples taken from the prosecutrix were seized by the IO.
24 PW10 Ct. Ashwani Kumar and PW12 Ct. Suresh Kumar had joined the investigations with PW19 ASI Poonam Tyagi on 18.08.2010 and deposed regarding the same. They also deposed about the manner in which, the IO had seized one blanket and clothes of the prosecutrix from the house of nani of the prosecutrix and about the manner, in which accused was arrested by the IO and was got medically examined at Bhagwan Mahavir Hospital.
25 PW11 Ct. Natwar Singh deposed that on 13.09.2010, he took the exhibits of SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 13 of 29 14 the present case, in sealed condition, along with FSL Form to FSL, Rohini vide RC no. 144/21/2010 and deposited the same there and on return, he handed over the receipt thereof to MHCM. He further stated that so long as the exhibits remained in his custody, same remained intact and were not tampered with by anyone. 26 PW21 HC Vikram Singh deposed that he was working as MHCM at PS Saraswati Vihar on 18.08.2010 and he proved different entries made by him in register no. 19 regarding deposit of exhibits of the present case in Malkhana by the IO as Ex. PW21/A and Ex. PW21/B respectively. He further deposed that as per record brought by him, exhibits of the present case were sent to FSL through Ct. Natwar Singh by HC Ravinder Nath, the then MHCM and later on, said MHCM received the FSL report and remnants of the exhibits and he proved the different entries in this regard as Ex. PW21/C to Ex. PW21/E. 27 PW7 Smt. Keli is the owner of the house, where the accused was residing. She deposed that she had let out one room of her house to Sanjeev and one another person, who used to pay her Rs. 1,800/ per month as rent and that accused Sarvan had been residing with them since three months prior to the date of incident and that she never issued any receipt to her tenants.
28 After closing of prosecution evidence statement of accused was recorded u/s 313 CrPC. The accused stated that he is innocent and had been falsely implicated in the case at the instance of Maternal grandparents of the prosecutrix. He further stated that no such incident as alleged had ever taken place and he was falsely implicated in SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 14 of 29 15 this case at the instance of Nana of the prosecutrix. He further stated that he and nana of the prosecutrix were doing work of polishing of utensils and that nana of the prosecutrix had borrowed a sum of Rs. 9,000/ from him, but he was not returning back the said amount despite his repeated requests and demands and as such, he was falsely implicated in the present case to evade the debt. Accused wished to lead defence evidence and examined DW1 Sh. Jawahar and also examined himself as a witness u/s 315 Cr.P.C to support his abovementioned contentions. 29 DW1 Sh. Jawahar stated that he and accused Sharvan used to reside in the same room on rent and that accused Sharvan had given Rs. 9,000/ to Sh. Suraj Pal (Nana of the prosecutrix) and Sh. Suraj Pal was to return the said amount to the accused after some time and that whenever, Sharvan used to go to Suraj Pal to take back his money, Surajpal used to make excuses and did not return the same and as such, a quarrel took place between Suraj Pal and accused. He further stated that after two days, police came and took Sharvan with them.
30 Accused examined himself u/s 315 Cr.P.C in his defence and reiterated the facts/defence as taken by him in his statement u/s 313 Cr.P.C. He further stated that instead of returning his money, Suraj Pal, nana of the prosecutrix was demanding more money from him, but he refused for the same and demanded back his money given earlier. He further stated that on 16.08.2010, he went to the house of Suraj Pal to take his money back and that at that time, prosecutrix and her mother were not present and as Suraj Pal did not return his money, a quarrel ensued and in the said quarrel, Suraj Pal threatened him to implicate in a false case and on return, he narrated all these facts to SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 15 of 29 16 DW1. He further stated that on 18.8.10, he was lifted by the police from his house at the instance of Suraj Pal and was falsely implicated in the present case. 31 During his crossexamination by learned Addl. PP, he stated that he had not obtained the receipt of the amount given by him to Suraj Pal and that he did not make any complaint to the President of RWA as well as to the police regarding nonreturn of his money by Suraj Pal and about his false implication in the present case. However, he denied the suggestion that he had not given the money of Suraj Pal. 32 Ld. Addl. PP has contended that in view of the testimony of the prosecutrix and her maternal grandmother (Nani), the prosecution has succeeded in proving its case against the accused persons beyond reasonable doubt and it is prayed that accused be convicted and sentenced. On the other hand, ld. Counsel for the accused has contended that there are material discrepancies in the testimonies of the witnesses and that accused has been falsely implicated in the present case as the accused had given a loan of Rs. 9,000/ to Suraj Pal, nana of the prosecutrix and when Suraj Pal failed to return the same amount to the accused, despite repeated requests, a quarrel took place between Suraj Pal and the accused regarding return of the said money and thereafter, the accused was falsely implicated in the present case. It is further submitted that accused has not committed the alleged offence and as such, it is prayed that he be acquitted of the charged offence.
33 I have heard the arguments and also perused the record carefully. SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 16 of 29 17 34 In the present case the victim child is uneducated and there is no document like birth certificate of her age etc. available on record. However, the age of victim child has been proved to be between 10 to 12 years by PW16 Dr. Shipra Rampal, who examined Xray plates of the victim child / prosecutrix on 26.08.2010. There is nothing on record to doubt the medical age of the victim child / prosecutrix as determined by PW16 Dr. Shipra Rampal and hence, prosecution has succeeded in proving the victim child / prosecutrix was between 10 to 12 years of age as on the date of incident. 35 Further the incident in the instant case is alleged to have taken place on 17.08.2010 between 8:30 PM to 9:00 PM. The case was registered on 18.08.2010 at about 5:00 PM on complaint made by PW3 Anita, Nani (maternal grandmother) of the prosecutrix. Before registration of the case prosecutrix was taken to hospital for her medical examination also. The statement of the victim child was recorded by IO W/ASI Poonam Tyagi u/s.161 CrPC on 18.08.2010 wherein she deposed that,: " Q. Tumhara naam kya hai ?
Ans. Mera Naam x x x x x (prosecutrix) hai.
Q. Tumhari Umar kitni hai ?
A. Meri Umar Karib Nau Saal (9 years) hai.
Q. Tumhare mummy papa ka kya naam hai ?
A. Mere Papa ka naam Kapil Kumar or Mummy Ka naam Jyoti hai. Q. Tum kaha rehti ho?
A. Me HBlock, Shakurpur me apni maa Jyoti or apne Nana Nani ke sath rehti hu.
SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 17 of 29 18 Q. Kya tum school jati ho?
A. Nahi me school nahi jati, me anpad hu.
Q. Tum paiso ko pehchanti ho jaise 5 rupaiye, 10 rupaiye, 50 rupaiye, 100 rupaiye aadi ?
A. Ha me paise ko pehchanti hu.
Q. Kal raat tumhare sath kya hua tha ?
A. Kal raat hamare ghar mere Nana ka dost Sarvan Kumar aaya tha, jo pehle bhi hamare ghar aata jaata rehta hai. Weh mujhe apne sath chhaat par le gaya tha, waha jakar usne meri nicker uttar kar, waha apne kapade bhi uttar kar mere sath zabardasti galat kam kiya."
36 The witness child / prosecutrix gave her statement u/s.164 CrPC i.e. Ex.PW2/A before learned MM on 21.08.2010 wherein she deposed that, " Mera naam x x x x x (prosecutrix) hai ; mera ek chhota bhai bhi hai, jiska naam Aryan hai ; me school nahi jati hu, isliye mujhe padna nahi aata ; mere papa ki death ek sal pahele ho chuki hai ; uske bad se me Nana - Nani ke pas rehne lagi ; jab me Bhudhwar 18 August, 2010 apne ghar me khel rahi thi tab mere Nana ka dost Sarvan Kumar aaya aur bola, "mujhe apne ghar ki chhat to dhikao beta" ; jab me upar chhat par gayi toh whah badatmiji karane laga, waha zabardasti mere kapade uttarne laga aur jaldijaldi apne kapade bhi uttarne laga aur phir mere sath galat kam kiya ; me SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 18 of 29 19 uske bad rote hue niche aa gayi. "
37 The aforesaid statement of witness was recorded after putting some preliminary questions to her to ascertain if she was capable of making a statement.
During her examination before the learned Predecessor, as PW2, the victim child / prosecutrix deposed that, "I know accused Sharvan Kumar. He is friend of my Nana. On 17.08.2010, I was playing at my residence and was living with my Nana Nani. My mother also used to stay in the house of my Nana Nani because my father had expired. When I was playing at the home, everybody was present in the house. The accused instigated me "Chaat (roof) Dhika La Beta". I took the accused on the roof of our house. On the roof accused removed my clothes and the accused also removed his clothes and he committed sexual intercourse upon me and it was night time. Thereafter I started weeping and came downwards. The accused threatened me not to disclose the said incident to any body."
38 During her crossexamination before the learned Predecessor as PW2 the victim child / prosecutrix deposed that, "I had not disclosed the fact about committing rape upon me by the SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 19 of 29 20 accused to anybody prior to today. We were residing in one room in the said house. There is one room in the rear portion and one room in the front portion of the said house. Somebody else was residing in the second room. My mother had not remarried. Today I have deposed whatever had happened with me and nobody had forced me to depose in the Court. Accused Sarwan was not residing in our neighbourhood. Accused was residing at HBlock, Shakurpur, Delhi. The name of my Nana is Suraj Pal and he is doing the work of polishing of steel utensils. I do not know about the trade of Sarvan Kumar. The polishing of steel utensils are done at the factory at GBlock, Shakurpur, Delhi. Accused Sharvan Kumar used to visit at our residence prior to the incident every Wednesday because it was a holiday of the factory. It is correct that I had not disclosed about this incident to my Nani. When accused used to come every Wednesday, he used to consume liquor with my Nana and sometimes quarrel ensued between them. On the day of incident, no quarrel took place between the accused and my Nana. The quarrel took place on the previous day of the incident with my Nana. The quarrel took place because accused Sharvan Kumar has said that, "Maine aapko paise de rakhey hai" and due to this my Nana got angry.
She denied the suggestion that some other male member has accompanied her on the roof of the house or that the accused had not accompanied her on the roof. She denied the suggestion that SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 20 of 29 21 accused has been falsely implicated in the present case as her Nana had borrowed some money from accused or that her Nana was unable to repay the said money. She further denied the suggestion that she was deposing falsely as per the directions of her Nani."
39 Though the victim child could not elaborate as to what she meant by "galatkam", a word used by her to describe the acts of accused, the observations made by PW1, Dr. Yukti Wadhawan, in Ex.PW1/C i.e. detailed examination kit for victim of sexual abuse and her opinion that the "findings are consistent with recent sexual intercourse / assault" bring out clearly what the innocent victim meant by said word. In Ex.PW1/C, the PW1 observed as under : " Local examination of genital parts :
A Public hair combing - No pubic /axillary pair present B Hymen . Injury - fresh / recent/old - Hymen intact but inflamed ; small red spots noted on hymen.
. Type of hymen (Shape - annular / crescent/cribriform/elongated / microperforate/septate/sleeve like) - Red inflamed . Hymenal orifice size - small, admitting tip of finger. . Scarring in hymen - no.
. Posterior wall tear - Redness.
C. Vagina, Cervix & Uterus SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 21 of 29 22 i Labia Majora - Any swelling, adhesions, tears, edematous, bruises or abrasion ii Labia Minora - Scratch, bruising, fingernail marks tear, infection, and adhesion, B/L tears + nt, not bleeding iii Fourchette - infection, bleeding, tears, Redness + nt iv Vulva Any injury, infection, bleeding, NA v External opening - Vaginal growth, hypertrophy, pigmentation, smoothness of surface, signs of delivery, episiotomy scar, size, discharge if any - N vi Vaginal introitus Narrow, roomy, old tears - small vii Cervix - Mucus plug, erosions, growth, bleeding, dilation viii Uterus - size, shape, position, any other significant finding like pregnancy - Not seen ix Posterior commissure x Fossa navicularis D. Anus (encircle the relevant) Red & inflamed . Dribbling, bleeding, mucopurulent discharge from anus, incontinence . Findings in Anal ampulla /Anal rugae (skin fold)/Anal verge . Tags (skin tag after injury or trauma) . Piles (dilation or bulging of the veins around anus) . External sphincter strength / dilation . Tears (shape and extent) vertical tear arnd 0.5 cm SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 22 of 29 23 ( The observations tick marked or handwritten by the doctor in Ex.PW1/C have been typed in bold letters.)
40 The conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court after careful scrutiny of its evidence is convinced about the quality and reliability of the same. In case of State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"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 throw 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 prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual modestations."
41 Coming to the law with respect to the testimony of child witness it is settled SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 23 of 29 24 law that in case of Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341, it was held that, " A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his / her demeanor must be like any other competent witness and there is no likelihood of being tutored."
42 In case of Pancchi Vs. State of U.P., AIR 1998 SC 2726, it was held : "It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence if a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and this a child witness is easy prey to tutoring."
SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 24 of 29 25 43 The ratio of abovecases is that the testimony of child witnesses is attributed the same kind of credibility that it attached to the statement of any other witness if the testimony is consistent. In the present case the prosecutrix has been consistent on the material particulars with regard to the incident when she was raped. That she had injury on her hymen labia majora, labia minora, Fourchette and Anus, has been corroborated by her medical examination and by the doctor who conducted her examination. Her Nani also substantially corroborated the incidents that occurred prior to and subsequent to her rape.
44 In case of State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"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 throw 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 took for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 25 of 29 26 case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
45 In the present case, the testimony of the child prosecutrix, who was about 910 years of age, is consistent and could not be shaken during the crossexamination. The child's act of not informing her relatives on the night of incident itself and her Nani and mother not noticing discomfort of child after incident cannot be isolated from the fact that the accused had threatened her of dire consequences, in case she revealed about the incident to anyone. She could share her agony only, when her Nani patiently inquired from her.
46 Further in order to prove the exclusive presence of accused with the prosecutrix, at the time of incident, prosecution has examined PW3 Smt. Anita, Nani (maternal grandmother) of the victim child /prosecutrix. From the testimony of PW3, as briefly reproduced foregoing paras, it is brought out that on the day of incident i.e. 17.08.2010 accused had gone to house of grandparents of victim child / prosecutrix inebriated (drunken) condition and sought permission of Nana of victim child / prosecutrix to stay overnight and when he was granted said permission with condition that he (accused) and Suraj Pal (Nana of victim child / prosecutrix) would sleep on roof, the accused asked prosecutrix to show him the roof and thus managing to isolate himself with prosecutrix accused unleashed sexual assault upon her. 47 Learned counsel for accused has contended that victim child / prosecutrix is a tutored witness and that accused has been falsely implicated in the case due to quarrel SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 26 of 29 27 with Suraj Pal, Nana of victim child / prosecutrix, over return of money which accused had lent to him. She has also referred to inconsistencies in statements made by PW2 i.e. victim child / prosecutrix and PW3 Smt. Anita, Nani of victim child / prosecutrix and non joining of the mother and Nana of the victim child / prosecutrix in investigations by the Police to contend that version put forth by prosecutrix is not correct and that a false case has been planted upon the accused.
48 No doubt there are certain improvement in statements of PW2 i.e. victim child / prosecutrix in as much as in her statement u/s.164 CrPC Ex.PW2/A, she mentioned the date of incident as 18.08.2010 and in her statement before Court as PW2, she stated that accused had threatened her not to disclose about the incident to anyone. There are also inconsistencies in statement of PW2 victim child / prosecutrix and PW3 Smt. Anita, her Nani, since the victim child stated that after the incident she came down from the roof crying but PW3 stated that she did not notice anything as victim child / prosecutrix was sleeping quietly at night. There is further contradiction whether a quarrel had at all taken place between accused and the Nana of victim child / prosecutrix on the day of the incident, however, these improvements and inconsistencies apart, the testimony of victim child / prosecutrix, with relation to the incident of rape is convincing, as she has been consistent throughout in describing what the accused did to her. Her narration of incident is as accurate and precise as a 9 - 10 years child of her age would normally have. One can easily understand how the difficult socioeconomic circumstances of this victim child / prosecutrix made her so vulnerable. Firstly it brought out from record that the father of victim child / prosecutrix had died about a year ago and since then she, her one year old brother and mother had started staying with her Nana SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 27 of 29 28 and Nani (maternal grandparents). Secondly, the economic condition of family of victim child / prosecutrix was such that her parents did not send her to school and after death of her father also she was not sent to school. Thirdly, the fact that the entire family of maternal grandparents of prosecutrix were managing their day to day activities from one room, out of two rooms constructed on their 25 sq. yds. plot, and had let out the other room to tenants also reflects that economic condition of victim child / prosecutrix was not good. Fourthly the mother of victim child / prosecutrix was working and was also having one year old child (brother of victim child / prosecutrix) to look after and hence, could not have given her much time. Fifthly, the maternal grandfather (nana) of victim child / prosecutrix was in habit of drinking liquor in the house despite the fact that there were two small children, or widow daughter and his own wife in the house. Lastly the accused was a familiar face / visitor to the house of grandparents of victim child / prosecutrix and due to this proximity the victim child / prosecutrix trusted him and there was no occasion for the victim child / prosecutrix or the other family members i.e. her nana, nani or widow mother to suspect accused of any foul play. All these circumstances made victim child / prosecutrix a very vulnerable victim. For such a child it would be indeed very difficult to narrate her traumatic experience to anyone specially if she was threatened, intimidate or otherwise filled with a sense of shame, hurt and pain due to the acts of the accused. 49 The fact that the mother and Nana of the victim child / prosecutrix were not joined in investigation or cited as witnesses cannot be a ground to discard the cogent and convincing testimony of victim child / prosecutrix. Even otherwise it has been held in Abu Thakir & Ors. vs. State, 2010 [2] JCC 1503, that criminal justice should not be made a casualty for the wrongs committed by investigating officer and if the Court is SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 28 of 29 29 convinced that the testimony of a witness to the occurrence is true, the Court is free to act on it albeit the investigating officer's suspicious role in the case. 50 Lastly coming to defence taken by accused, that he had loaned a sum of Rs. 9,000/ to Nana of victim child / prosecutrix and when asked to be repay the said amount, he was implicated in present case, the same does not inspire much confidence. Firstly the DW1 did not support the defence case of quarrel over the loaned amount and stated that he had not seen the quarrel himself but was told about it by the accused. Even otherwise it is unbelievable that the grandmother of a girl aged about 9 - 10 years would level false allegations of rape against a neighbour simply of deter him their recovering money loaned by him to her husband. It is also difficult to believe that in such an event the mother of the child would not protest at her child being used in this manner specially when she herself is a widow and such allegations would not only put reputation of the family to stake but also affect the future of the girl child. 51 Considering the totality of facts and circumstances of the case I am of the considered opinion that the prosecution has successfully proved the guilt of the accused Sharvan Kumar Rai on record, beyond the reasonable doubts. Accordingly, I hold guilty accused Sharvan Kumar Rai for the offences punishable u/s. 376(2)(f) IPC and he is convicted accordingly.
(Announced in the open Court ) (Illa Rawat)
(Today on 26.02.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 29 of 29
30
FIR No. 314/10
P.S. Saraswati Vihar
26.02.2013
Present : Ld. Substitute Addl. PP for the State.
Accused Sharvan Kumar Rai produced from JC with counsel Ms. Neelam Singh, LAC.
Remaining arguments heard.
Vide separate judgment announced today in the open Court, accused Sharvan Kumar Rai has been convicted u/s.376 (2)(f) IPC.
Be listed for arguments on the point of sentence on 28.02.2013.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 26.02.2013 28.02.2013 Present: Ld. Addl. PP for the State.
Accused Sharvan Kumar Rai produced from JC with counsel Ms. Neelam Singh, LAC.
Arguments on the point of sentence heard.
Be listed for orders on the point of sentence on 04.03.2013.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 28.02.2013 SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 30 of 29 31 IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 42/11) Unique ID case No. 02404R0249362010 State Vs. Sharvan Kumar Rai FIR No. : 314/2010 U/s : 376(2)(f)/377/376 IPC P.S. : Saraswati Vihar 05.03.2013 ORDER ON THE POINT OF SENTENCE In the present case, the convict - Sharvan Kumar Rai has been convicted u/s 376 (2) (f) IPC.
I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. defence counsel for the convict.
2. It has been submitted by the Ld. Addl. PP that in the present case, convict raped a minor girl aged about nine years and in view of the serious nature of offence, the convict does not deserve any leniency and she prays that maximum sentence prescribed by the law may be imposed upon the convict.
3. On the other hand, it has been submitted by the Ld. Legal Aid counsel SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 31 of 29 32 that the convictSharvan Kumar Rai is a married man having three children, out of whom, eldest is aged about 10 years and youngest is aged about 6 years and a wife to look after. It is further stated that convict also has responsibility of his old parents and that wife of the convict is uneducated and that convict is only bread earner of the family. It is also submitted that convict belongs to a low strata of society and is first time offender and he has been in custody from the date of his arrest i.e.18.08.2010. It is further submitted that convict is not a previous convict and is not involved in any other case and she prays that a lenient view may be taken in this case and sentence for the period already undergone by him may be awarded and he be given a chance of rehabilitation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. Legal aid counsel and have carefully gone through the record of the case.
5. In the present case, the convict Sharvan Kamar Rai has been convicted for committing the offence punishable u/s- 376 (2) (f) IPC. The convict, who was the friend of Nana of the prosecutrix, took her to the roof of the house on the pretext "Chaat (roof) Dhika La Beta" and there, he committed sexual intercourse upon her. It is a matter of record that the act of convict, though on face of it, is not gruesome, but has had far fetched and irreparable consequences on the life of a minor girl child. The acts of the convict can only be concluded to be most cruel now considering the submissions that he has three children of his own. As a person SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 32 of 29 33 having children, he ought to have refrained from such a conduct, which has spoiled entire life of a young fatherless girl child. The instances of minor girls being victim to such nefarious acts and deeds, which transforms their innocent and happy lives into a ditch of hell and miseries are on rise and thus, no leniency is called for in the matter. I hereby award rigorous imprisonment of 10 (ten) years along with a fine to the tune of Rs. 5,000/, in default of payment of fine, to further undergo simple imprisonment for three month, u/s 376 (2) (f) IPC.
Benefit u/s 428 Cr.PC be also given to the convict.
Coming now to the aspect of compensation to the victim, who is a fatherless minor girl. The Hon'ble Apex Court has time and again observed that that subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. In a case titled as Bodhisattwa Gautam vs. Subhra Chakraborty, AIR 1996 SC 922, it has been held by Hon'ble Supreme Court that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape, which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
Therefore, in order to provide Restorative and Compensatory Justice to the victim i.e prosecutrix, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant compensation to the tune of Rs. 1,00,000/ (Rs. One lac only) to the prosecutrix. The said amount shall be used for her welfare and SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 33 of 29 34 rehabilitation, under the supervision of Welfare Officer, so nominated by the Government of NCT of Delhi.
A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi, Chief Secretary, GNCT of Delhi, Principal Secretary (Social Welfare), GNCT of Delhi and Director, Department of Social Welfare (Women and Child Development), GNCT of Delhi, for information and necessary action under intimation to this Court.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 3437, Lawyer Chamber Block, High Court of Delhi, New Delhi.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Illa Rawat)
(Court on 05.03.2013) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
SC No.42/11 State Vs. Sharvan Kumar Rai Page Nos. 34 of 29