Delhi District Court
State vs . Ramphal Page No. 1/21 on 10 August, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
In Unique Case ID No. 02406R0355842015
SC No. : 62/17
FIR No. : 892/14
U/s. : 376(2)(l) IPC
PS : Kalkaji, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
Ramphal
S/o Late Sh. Mahipal
R/o Dharamshala No. 7
Kalkaji Mandir,
New Delhi. ...................Accused
Date of Institution : 30.01.2017
Judgment reserved for orders on : 27.07.2017
Date of pronouncement : 05.08.2017
J U D G M E N T
FACTS
1. On 29.09.2014, the prosecutrix, a blind woman aged about 50 years ( name withheld to protect her identity ) came at the Police Post Kalkaji Mandir, Police Station Kalkaji, New Delhi and got recorded her statement alleging therein that for about 1516 years, she has been living under a tin shed in front of Mehtab Dharamshala, Kalkaji temple. She earns her livelihood by begging. On 28.09.2014, FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 1/21 at about 12 night, there was a rush since the door of the temple had closed. She with her daughter went to Dharamshala No. 7 to sleep. She spread a jute bag in front of the gate of the dharamshala and went for sleep. The accused who lived in the Dharamshala asked her not to sleep there saying that devotees/ yatris come there. He caught her hand and took her inside the Dharamshala. He asked her to sleep there. She slept with her daughter. Due to heavy footfall on account of navratras, she had not slept for three days. After sometime, she felt some sensation on her legs. She felt that someone was lifting her saree and touching her thighs. She caught his hand and said "kaun hae, kya kar raha hae". On this, that person said " Kuch nahi kar raha huin". She recognized that person as Ramphal. She raised alarm. His wife and some persons came. His wife abused her. Since she was helpless, she kept quiet. She then told the incident to some persons. Someone dropped her at the Police Post Kalkaji Mandir. She alleged that the accused with an intention to outrage her modesty lifted her saree and touched her thighs.
2. On this statement, the case u/s 354 IPC was registered. It was found that on the night of 28/29.09.2014, the accused was in his shop. Since then, he did not come at his shop. The statement of the prosecutrix under section 164 CrPC was got recorded on 29.09.2014.
3. On 30.09.2014, the prosecutrix alleged that the accused not only touched her thighs after lifting her saree on the night of 28/29.09.2014 but also committed sexual intercourse with her. At that time, she was in deep sleep. When her sleep broke, the accused was FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 2/21 lifting her saree after committing sexual intercourse. Due to honour, she did not tell about the sexual intercourse. When her husband came from her village, she told him the incident who asked her to go to the police station and tell the whole incident. She alleged that the accused after outraging her modesty committed sexual intercourse with her without her consent and against her wishes.
4. On this statement, section 376 IPC was added. The prosecutrix was sent to AIIMS for her medical examination. Her exhibits were collected. On 18.10.2014, on the directions of the High Court, the accused joined the investigation. On 20.10.2014, he was got medically examined at AIIMS. He was found capable of performing sexual intercourse under normal circumstances. His exhibits were collected. The exhibits of the prosecutrix as well as of the accused were sent to the FSL, Rohini for DNA analysis. After the investigation, the accused was sent for trial for the offences punishable u/s 354 and 376 IPC.
CHARGE
5. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 28.02.2017, prima facie case was made out against the accused for the offence punishable u/s 376(2)(l) IPC. The charge was framed. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. To substantiate its allegations against the accused, prosecution examined as many as nine witnesses.
FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 3/21 PW1 is the daughter of the prosecutrix. PW2 is the prosecutrix. PW3 is the husband of the prosecutrix. I will discuss their testimonies in detail at the time of appreciation of evidence. PW4 Surender used to sell flowers and garlands near Dharamshala No. 7 Kalkaji Mandir since 2008. He stated that he knows the accused. His shop is on the other side of the gate of Dharamshala No. 7. On 28.09.2014, the accused was in his shop. It were the days of Navratras. At about 12 night/1.00 a.m, he heard noise of a lady from the dharamshala. He and some shopkeepers went there and met the prosecutrix who is blind and beggar. She told them that the accused raped her. The accused and his wife were also there. She went to the police station and he came at his shop. He stated that 20 25 persons had gathered at the dharamshala. He stated that he knows the accused since 2007 and the prosecutrix for about 15 years. There are two cases between him and the accused. He denied that he had acrimonious relations with the accused due to ongoing litigations and has used the prosecutrix as a pawn to falsely implicate the accused. He denied that nothing happened with the prosecutrix. PW5 Insp. Anupam Bhushan was on duty at Kalkaji Mandir on 29.09.2014. He stated that there was a temporary police post at the temple on account of mela. At about 10/10.30 a.m, the prosecutrix came and alleged that she was molested. He recorded her statement Ex. PW 2/A and got the case registered. He prepared the site plan Ex. PW 5/B and got recorded her statement before the Magistrate u/s 164 CrPC. He stated that on 30.09.2014, the prosecutrix FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 4/21 again came at the police station with her husband and gave statement where she alleged that she was raped by the accused on the night intervening 28/29.09.2014. She also told him that she did not tell this fact in her statement Ex. PW 2/A because of shame and honour. He added Section 376 IPC and sent the prosecutrix to AIIMS where she was medically examined vide MLC Ex. PW 2/A. He collected the exhibits of the prosecutrix from Ct. Anita and deposited in the malkhana. He also got the accused medically examined vide MLC Ex. PW 5/E and collected his exhibits vide memo Ex. PW 5/F. He deposited the exhibits in the malkhana.
In his crossexamination, he stated that the prosecutrix had come in the police post alone and he recorded her statement Ex. PW 2/A on her narration which he read over to her before he obtained her thumb impression. He stated that the prosecutrix was scared when she came at the Police Post. He stated that on that day, he did not get the prosecutrix medically examined since she did not allege rape nor there were injuries on her person. He stated that he had made enquiry from 2025 persons but did not record their statements. PW6 Ms Archana Beniwal Ld MM recorded the statement of the prosecutrix u/s 164 CrPC Ex.PW 2/C. She stated that the prosecutrix was alone when she recorded her statement in her chamber.
PW7 Dr Kartik was the Senior Resident, Department of Obs & Gynae AIIMS. He stated that on 30.09.2014 at about 6.15 p.m, the prosecutrix was brought by Lady Ct. Anita. She gave the FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 5/21 history of sexual assault by the accused on the night of 28.09.2014 at about 11.45 p.m whom she knew for about 1015 years. She also told him that he recognized the accused from his voice since she is blind from both eyes. He found her hymen torn. He took the samples of pubic hair, vaginal smear, high vaginal swab and cervical swab of the prosecutrix and handed over to Ct. Anita in sealed condition alongwith the sample seal. He stated that he did not notice any external/internal injury on her person nor she was under intoxication.
PW8 W/ASI Renu Sharma proved the recording of FIR Ex. PW 8/A. PW9 SI Sanjeev deposited the exhibits in FSL, Rohini and prepared the chargesheet. He stated that he made enquiry from many persons but recorded the statement of only one person i.e Surender. The accused also admitted his MLC Ex. PW 5/E and its contents vide statement dated 01.05.2017.
STATEMENT OF ACCUSED
7. After the prosecution evidence, statement of the accused u/s 313 CrPC was recorded. He denied all the incriminating evidence against him. He stated that the prosecutrix used to beg in front of Dharamshala No. 7 Kalkaji temple for about 5/6 years. He admitted that he used to run a flower shop at kalkaji mandir but he denied having met the prosecutrix on 28.09.2014. He stated that no incident took place on that day and it was a concocted story made by the prosecutrix at the instance of PW4 who had personal animosity against him because of litigations.
FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 6/21 DEFENCE EVIDENCE
8. In defence, he examined two witnesses. DW1 Kailash stated that he and the accused are of the same village. On 28.09.2014, he had gone to Kalkaji Temple for darshan. He thereafter went to the shop of the accused at about 10.30 a.m and remained there till 2.30/3.00 a.m. The accused during that period was in his shop and did not go anywhere. He stated that he came to know of this case after 15 days. He, however, did not go to the police station to give statement. He stated that the son of the accused had requested him to give statement in the court. DW2 Santosh Kumar stated that on 28.09.2014, he had gone to Kalkaji temple for darshan but due to rush, he could not have darshan. He stayed in the dharamshala overnight. About 4050 persons were sleeping in the dharamshala. He stated that no incident took place on that day in the dharamshala. He admitted that he did not go to the police station in connection with this case. He admitted that he came in the court with the son of the accused. ARGUMENTS AND CONTENTIONS
9. I have heard the arguments advanced by Ld. Counsel Sh. Sandeep Sehgal for the accused and Sh. Mohd. Iqrar, Ld. Addl. PP for the State.
10. Ld counsel for the accused vehemently argued that in the complaint Ex. PW 2/A and her statement u/s 164 CrPC Ex. PW 2/C, she did not allege that she was raped by the accused. She made FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 7/21 deliberate improvements in the statement allegedly recorded on 30.09.2014 making the allegations of rape. FSL report and the MLC do not support the allegations of rape as no semen and blood were found on the exhibits of the prosecutrix and there were no external/internal injuries on her person. Ld counsel stated that PW4 is an interested witness. He had animosity with the accused due to prior litigations. Except PW4, the prosecution did not examine any public person though according to the prosecutrix 2025 persons had gathered on the spot. Ld counsel stated that as per the MLC, the prosecutrix was not under intoxication. Coitus is not possible during deep sleep. She did not raise alarm when the alleged offence was committed. Many persons were sleeping in the dharamshala at the time of alleged incident and it is not possible to commit rape at such place. Ld counsel stated that it is a case of false implication of the accused by the prosecutrix at the behest of PW4 who had enmity with the accused. The testimony of the prosecutrix is not creditworthy. In support of his contentions, Ld counsel placed reliance on the case of Munna v. State of M.P Crl. Appeal 2358/2010 decided on 16.09.2014. Ld counsel also referred the order of the Supreme Court in the SLP No. 2696/2016 in bail application no. 2280/2014 of this case.
11. Ld Addl. PP on the contrary argued that the prosecutrix was blind. She used to earn her livelihood from begging. She used to live in front of Mehtab Dharamshala, Kalkaji temple under a tin shed. On the day of incident, there was heavy rush of people on account of Navratras festival. The prosecutrix was sleeping in dharamashala No. FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 8/21 7 with her daughter. The accused used to run flower shop on the side of the dharamshala. He took the advantage of her sound sleep and helplessness, lifted her saree and touched her thighs. He thereafter committed sexual intercourse with her. When she felt sensation, she caught his hand. She identified the accused from his voice as the accused used to live there. She knew him from before. She raised alarm. Many persons gathered but the accused's wife and some persons made her quiet. She was taken to the police post by a person where she made the statement Ex. PW 2/A. She was scared. Because of shame and honour, she did not disclose the complete facts to the police. When her husband came from the village, she told him the whole incident. He took her to the police station where she gave the complete statement. She was medically examined. In the history narrated to the doctor she has stated that she was raped by the accused. Her testimony is cogent and consistent with her statement recorded on 30.09.2014 and the history recorded on the MLC. There was no reason for the prosecutrix to falsely implicate the accused. Ld Addl. PP stated that since the prosecutrix knew the accused very well, she identified him from his voice. Ld Addl. PP stated that DW1 and DW2 are interested witnesses. They made the statement at the instance of the son of the accused. Ld Addl. PP stated that it is not necessary that every incident would result into injuries. Even simple penetration would constitute rape.
FINDINGS
12. I have bestowed my thoughtful consideration on the FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 9/21 contentions raised on behalf of the parties and gone through the statements of the witnesses and the documents on record.
13. PW2/prosecutrix has stated that she has been living at Kalkaji temple for about 15/16 years. She is blind from both the eyes. She used to beg at the temple and sleep in front of Dharamshala No. 7. On 28.09.2014, at about 12 night, on the fifth day of navratra, the temple had closed. There was a long queue. The police was dispersing the crowd. The police asked her to go to the dharamshala. She lied there with her daughter. The accused, who used to run shop of flowers at the dharamshala, woke her up and asked her to go and sleep at the place near flowers. She slept there. He again woke her up, took her towards the chabutra and asked her to lie down. When she was in sound sleep, she felt some wetness in her saree and sensation on her thighs. She caught the hand of the accused and asked "what are you doing". He said that he was searching his chappal. She then asked him if he was searching his chappal in her saree. He got his hand released and asked her to keep quiet. Her daughter started weeping. His son called his mother who scolded him why he did wrong with her. She stated that the accused committed wrong with her after lifting her saree and when he did the said act, she was in sound sleep. She stated that when he tried to put down her saree, she felt about the wrong committed upon her. She identified him by his voice since she knew him for about 15/16 years as she used to sit in front of his shop. His wife made her quiet. She stated that the accused was saying "I was telling a lie". When she asked him to swear in the name of Kalka FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 10/21 Maa, he became quiet. His wife and son then made him run away from there. By that time, it was morning. She went to the police post and made the complaint. A lady followed her and asked her not to speak anything otherwise they would not allow her to live there. Since she was blind, she was scared. She proved her statements Ex. PW 2/A given to the police and Ex. PW 2/C given to the Magistrate. She stated that someone informed her husband who came from her village on 30.09.2014. She told him the incident and gave statement to the police. She stated that on 30.09.2014 she was taken to the hospital where she was examined vide MLC Ex. PW 2/B but the doctor did not collect her clothes. She correctly identified the accused in the court from his voice.
In her crossexamination, she stated that she lives alone in the temple. Sometimes her daughter lives with her. She did not know that lady who followed her and made her scared. PW4 did not go with him to the police post. She went there alone with her daughter. She did not tell the police that a lady was following her and made her scared. She admitted that the lady did not come in the court when her statement Ex. PW 2/C was recorded. She stated that 23 persons were sleeping in the dharamshala at that time. She admitted that PW4 has a shop in the dharamshala but she does not know that there used to be quarrel between the accused and PW4. She stated that during coitus, she did not feel anything. She stated that since she had not slept for five days and was on fast, she did not feel it. She felt sensation when the accused put down her FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 11/21 saree and touched her thigh. She stated that since her saree was wet, she said that a wrong was committed upon her. She stated that she was wearing the same saree when she went to the hospital and she had not taken bath before that. She said that a person who was sleeping there had told her that some wrong happened with her. Although she asked from that person, why he did not stop the accused but he said, hum kya kar sakte hain . She denied that the accused did not commit any wrong and she gave the false statement at the instance of Surender Singh who gave her money to give the statement.
14. PW1 stated that she knows the accused. Her mother sits in front of the shop of the accused. On that day, the accused had taken her and her mother to the place where coconuts were kept. She and her mother slept there. She got up on hearing the noise of her mother. She saw the accused making her mother quiet. She started weeping. She stated that when she got up, she saw the accused lifting the saree of her mother. She stated that no one came when her mother was weeping.
15. PW3 stated that the prosecutrix lives at Kalkaji temple. She is blind. On 28.09.2014, his wife told him that the accused committed rape upon her. She also told him that when she reported the matter to the police, due to fear, she did not allege that she was raped. He came to Delhi and asked the prosecutrix to tell the truth to the police. He took her to the police station where she gave complete statement to the police. She was also got medically examined. He stated that he reached Delhi on 29.09.2014 at 6.00 a.m and had gone FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 12/21 to the police station on the same day immediately after coming from his village. He denied that he was tutored by PW4 and his wife falsely implicated the accused at the instance of PW4.
16. A bare perusal of the testimony of the prosecutrix/PW2 would show that she was a blind lady. She used to live at Kalkaji temple and beg there. Her family members used to live in her native place. The accused used to run a flower shop outside the dharamshala where the prosecutrix used to beg. On the day of alleged incident,there was a heavy rush of people on account of navratras festival.PW1/daughter of the prosecutrix had come from the village to live with the prosecutrix. On the directions of the police, she went to the dharamshala No.7 and lied there with her daughter. The accused woke her up and made her sleep towards the chabutra of the dharamshala. The prosecutrix knew the accused for many years and could identify him from his voice.
17. PW2/prosecutrix has stated that when she was in sound sleep, she felt wetness in her saree and sensation on her thigh. She caught the hand of the accused and asked him what he was doing. He got his hand released and asked her to keep quiet. She stated that the accused did wrong with her after lifting her saree. When he was putting down her saree, she felt about the wrong committed upon her. She identified the accused from his voice. PW1 has stated that she got up on hearing the noise of her mother and saw the accused lifting the saree of her mother. PW2 has stated that the accused and his wife made her quiet and abused her. When the accused said that she was FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 13/21 telling a lie, she asked him to swear in the name of Kalka Maa but he kept quiet. His wife then made him run away from there. She continued weeping and came down. By that time it was morning. She went to the Kalkaji Police Post and made complaint Ex. PW 2/A. She has stated that a lady followed her and asked her not to speak otherwise they would not allow her to live there. Since she was blind, she got scared. She admitted that she did not know that lady and that lady did not go to the court when she gave her statement Ex. PW 2/C. She however admitted that she did not tell the police that a lady was following her and had asked her not to speak against the accused. She has admitted that her statement was read over to her. She stated that since her saree was wet, she could say that a wrong was committed upon her.
It is pertinent to mention that in the complaint Ex. PW 2/A and the statement recorded u/s 164 CrPC Ex. PW 2/C, she did not allege that a wrong was committed upon her or she felt wetness in her saree. She had stated that when she was in sound sleep, she felt sensation on her legs and someone lifting her saree and touching her thighs. She caught the hand of that person i.e the accused. In both the statements she did not allege that a lady was following her and had asked her not to speak otherwise they would not allow her to live there. In the statement made to the police i.e on 30.09.2014, she alleged rape for the first time. No external/internal injuries were observed during her medical examination vide MLC Ex. PW 2/B.
18. In the instant case, the exhibits of the accused and of the FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 14/21 prosecutrix were collected and sent to FSL but nothing incriminating came in the report. As per the report no blood and semen were detected on the pubic hair, vaginal swab, high vaginal swab and cervical smear of the prosecutrix. It is true that it is not necessary that every sexual assault would result into injuries or there should be discharge of semen to constitute rape and simple penetration is sufficient to constitute rape but since in the instant case when the complaint Ex. PW 2/A was made and the statement of the prosecutrix u/s 164 CrPC Ex. PW 2/C was recorded, the prosecutrix did not allege rape and had only alleged molestation/outraging of her modesty, it becomes significant. I agree with the contention of Ld. Defence counsel that had there been coitus, she would have woken up and raised alarm which she did not do in the instant case. She has deposed that a wrong was committed upon her. She has stated that since her saree was wet, she said that a wrong was committed upon her however during coitus she did not feel anything because of deep sleep.
19. I do not agree with the submissions of Ld Addl. PP that since the prosecutrix was scared and due to shame and honour she did not allege in her complaint Ex. PW2/A that she was raped and it was only after her husband came from the village, she mustered courage and made the statement that she was raped. Perusal of the testimony of PW3 would reveal that he had come from his village on 29.09.2014 at 6.00 a.m. Her statement before the Magistrate u/s 164 CrPC was recorded during day time on 29.09.2014. Had there been the incident of rape or sexual intercourse, she would have told to the Magistrate FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 15/21 that the rape was committed upon her. In the said statement, she had alleged molestation and outraging of her modesty. That being the position, it cannot be conclusively held that the accused had committed rape upon the prosecutrix. What is proved beyond reasonable doubt is the offence u/s 354 IPC which defines assault or use of criminal force to a woman with intent to outrage her modesty. It was held in the case of Nanak Chand (1962) Crl. Law Journal 843 that the offence under section 376 IPC must from the very nature of the things include the lesser offence under section 354 IPC.
20. As regards the contention that it is not possible to commit such an offence at that place where many persons were sleeping, the testimony of the prosecutrix/PW2 would show that she was sleeping on the floor of the dharamshala. She was in deep sleep. The accused was present in the dharamshala at that time which fact the accused never disputed, so the possibility of the accused taking advantage of this situation and deep sleep of the prosecutrix cannot be ruled. On this very ground, the testimony of the prosecutrix cannot be disbelieved.
21. It was contended by Ld defence counsel that the prosecutrix made the false allegations at the behest of PW4 who had enmity with the accused. I find this contention sans merit. It is not the case that PW4 was the relative of the prosecutrix. She knew both accused and PW4 for a long time as they used to run flower shop in the temple. There is no evidence or material to indicate that PW2 had enmity with the accused or was interested in his false implication. She FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 16/21 reported the matter immediately after the incident. She reiterated the allegations in the statement Ex. PW 2/C. She had given the history of incident to the doctor during her medical examination vide MLC Ex. PW 2/B. Her testimony is consistent with her statement Ex. PW 2/A and Ex. PW 2/C. Why the prosecutrix would put her reputation in peril at the instance of someone else who has animosity with the accused. She has denied that she has deposed at the instance of PW4. She correctly identified the accused from his voice being the person who did the said offence. I do not find any material inconsistency or improvement in her testimony. She was crossexamined at length but she remained consistent and cogent as to the incident happened on 28.09.2014 night qua her assault and outraging her modesty. DW1 and DW2 appear to be interested witnesses. They knew the accused from before. They had come in the court at the instance of the son of the accused. They did not tell the police during investigation that it is a case of false implication of the accused and at that time, they were present in the dharamshala.
22. It is well settled law that a woman's complaint that she has been molested must be taken at face value in a conservative society like India where indelible stigma is attached to the victim unless of course there appears to be a blatant flaw in the case. It is relevant to quote the observations of the Apex Court in the case of FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 17/21 Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat AIR 1983 SC 753:
(1) A girl or a woman in the tradition bound non permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had every occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours.
(3) She would have to brave the whole world.
(4) It would almost inevitably and almost invariably
result in mental torture and suffering to herself. (5) The fear of being taunted by others will always haunt her.
(6) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is a taboo. (7) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy and disrepute.
(8) The reluctance to face interrogation by the investigating agency, to face the court, to face the crossexamination by counsel for the culprit, and the risk of being disbelieved, act as a deterrent.
23. The important thing that the court has to bear in mind is that what is lost by a victim of sexual assault is face. The victim loses value as a person. In examining the evidence of the prosecutrix, the court must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 18/21 assault. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman roping in somebody falsely in the crime of sexual assault. An Indian woman traditionally will not concoct an untruthful story and bring charges of sexual assault for the purpose of blackmail, hatred, spite or revenge. It must therefore be realized that a woman who is subjected to sex violence would always be hesitant about disclosing her plight.
24. In the case of Om Prakash v. State of U.P(2006) 9 SCC 787, it was held that if the totality of circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.
25. In the case of Munna v. State supra, there were major discrepancies in the version of the prosecutrix. Initially two persons were named but during trial only the appellant was named. After three days, she gave an affidavit disowning the version and exonerating the appellant. PW3 had admitted that husband of the prosecutrix had enmity with the appellant. Her statement had inherent infirmities creating doubt about its veracity. The Supreme Court held that the circumstances taken as a whole create doubt about the correctness of the prosecution version and a case is made out for giving benefit of doubt to the accused. In the instant case, the prosecutrix is cogent and consistent in her testimony. She did not have enimity with the accused.
FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 19/21 There was no reason for her to falsely implicate the accused. She had reported the incident immediately after the incident. CONCLUSION
26. Facts and circumstances of the present case show that the prosecutrix used to live at Kalkaji Mandir and earn her livelihood by begging. She had been living there for 14/15 years and knew the accused since then. He used to run flower shop. She used to beg in front of his shop. She identified him from his voice. On the days of navratras, there was heavy rush of people. The prosecutrix was sleeping in the dharamshala where the accused used to run the shop. It was around 12 mid night, when the prosecutrix was in sound sleep, the accused came to her, lifted her saree and touched her thighs with an intention to outrage her modesty. On feeling sensation, she got up and caught the hand of the accused. She identified him from his voice. When his wife came to know of this fact, she made her quiet. In the morning, she went to the police and lodged the complaint. In her statement u/s 164 CrPC, she reaffirmed that it was the accused who committed the said act. She is consistent and cogent as to the complicity of the accused in the said offence. There was no reason for the prosecutrix to falsely implicate the accused.
27. In the light of above observations and findings, it can safely be held that the testimony of the prosecutrix being truthful and credible can be relied upon as being of sterling worth for the purpose of the conviction of the accused. It was when the prosecutrix was sleeping in the dharamshala with her daughter, the accused came to FIR No. : 892/14 PS : Kalkaji State Vs. Ramphal Page No. 20/21 her, assaulted her to outrage her modesty, lifted her saree and touched her thighs. Thus, I find no hesitation in concluding that the prosecution has proved the guilt of the accused beyond reasonable doubt qua his committing the offence punishable u/s 354 IPC. I, therefore, hold the accused guilty of the offence punishable under section 354 IPC and convict him thereunder.
28. Let the accused be heard on the point of sentence on the date as fixed by the Court.
Announced in the open
court today i.e 05.08.2017 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
FIR No. : 892/14
PS : Kalkaji
State Vs. Ramphal Page No. 21/21
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK COURT : SAKET COURTS: NEW DELHI.
In Unique Case ID No. 02406R0355842015 SC No. : 62/17 FIR No. : 892/14 U/s. : 354 IPC PS : Kalkaji, New Delhi. State (Govt. of NCT of Delhi) ................... Complainant Versus Ramphal S/o Late sh. Mahipal R/o Dharamshala No. 7 Kalkaji Mandir, New Delhi. ................... Convict Date of Institution : 30.01.2017 Date of order on sentence : 10.08.2017 ORDER ON SENTENCE
1. Vide separate judgment, Ramphal has been convicted of the offence punishable under section 354 IPC.
2. I have heard Shri Sandeep Sehgal, Ld counsel for the convict and Ld. Addl. PP Sh. Mohd. Iqrar for the State on the point of sentence.
3. It is submitted by Ld. counsel that the convict is aged about 63 years. He is in custody since 19.01.2017. He does not have any criminal antecedent. He has a family comprising of his wife and three sons and one daughter. His two children are unmarried and school going. Ld. counsel stated that convict earns his livelihood by FIR No. : 892/14 State Vs. Ramphal PS : Kalkaji Page No. 22 of 25 running a flower shop in Kalkaji Mandir. He is the sole bread earner in his family. Ld. counsel stated that keeping in view the antecedents of the convict, his family circumstances and his conduct during the course of trial, leniency be shown while awarding the sentence.
4. Ld. Addl. PP on the contrary argued that the convict does not deserve any leniency and his case does not fall under special circumstances. The prosecutrix is a blind lady aged about 50 years. She used to live at Kalkaji mandir and earn her livelihood from begging. She had been living there for about 1415 years. She knew the accused since then as he used to run a flower shop. On the day of incident, she was sleeping in the dharamshala with her daughter. The convict came to her and outraged her modesty.
5. I have considered the submissions.
6. The Apex Court in Ankush Maruti Shinde & Ors. Vs. State of Maharashtra 2009 AIR SCW 4022 has observed:
"Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice or "order" should meet the challenges confronting the society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was committed. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, and all other attending circumstances are relevant facts which would enter into the area of consideration.
The social impact of the crime e.g. where it relates to offences against women, dacoity, FIR No. : 892/14 State Vs. Ramphal PS : Kalkaji Page No. 23 of 25 kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats.
7. The convict in this case has committed the vile act of outraging the modesty of the prosecutrix, a blind lady. It is true that the convict is aged about 63 years and has a family to support but on the other hand we must see the plight of the prosecutrix, whose modesty was outraged, which is universally considered to be amongst the most morally and physically, reprehensible crime in society and assault on the body, mind, privacy and the entire fabric of the victim. Her dignity is shredded.
8. Keeping in view his antecedents, age and the facts and circumstances of the case, I sentence the convict to undergo rigorous imprisonment for a period of two (02) years and to pay fine of Rs.25,000/, in default thereof to undergo simple imprisonment for a period of four months for the offence punishable under section 354 IPC. He be given benefit of section 428 CrPC.
FIR No. : 892/14 State Vs. Ramphal PS : Kalkaji Page No. 24 of 25 The fine amount if realized be paid to the prosecutrix after the expiry of period of appeal.
9. I also recommend that appropriate compensation under section 357A CrPC be awarded to the prosecutrix. A copy of this order be sent to the Secretary, Delhi Legal Service Authority, South District, New Delhi for deciding the quantum of compensation to be awarded under the scheme referred to in sub section 1 of section 357A CrPC.
10. Attested copy of the judgment, order on sentence, copy of charge, evidence, statement under section 313 CrPC, exhibited documents be given to the convict, free of cost.
11. File be consigned to record room.
Announced in the open court today i.e. 10.08.2017 (Sanjiv Jain) ASJSpl. FTC / South East Saket Courts, New Delhi. FIR No. : 892/14 State Vs. Ramphal PS : Kalkaji Page No. 25 of 25