Delhi District Court
State vs . Samay Singh on 15 July, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 87/12)
Unique ID case No. 02404R0315572012
State Vs. Samay Singh
FIR No. : 360/12
U/s : 376(2)(f) IPC r/w Section 511 IPC
& u/s. 323/506 IPC
P.S. : Mangolpuri
State Vs. Samay Singh
S/o Chukhan Singh,
R/o A19, Mangolpuri,
Delhi.
Date of institution of case - 22.11.2012
Date on which, judgment has been reserved 05.07.2014
Date of pronouncement of judgment - 05.07.2014
JUDGMENT :
1 Briefly stated the case of the prosecution is that the accused Samay Singh, who is father of victim child K, aged about 7 years, attempted to commit rape upon his own daughter on the night of 23 / 24.09.2012 and thereafter caused hurt to complainant Smt. Malti, wife of accused Samay SC No. 87/12 State Vs. Samay Singh Page No. 1 of 46 2 Singh and step mother of child K, by slapping her several times when she confronted the accused and tried to talk to him about the incident. He also criminally intimidated victim K as well as complainant Smt. Malti not to disclose about the incident to anyone by threatening to kill both of them. The matter was reported to the police on 24.09.2012 by Smt. Malti, the stepmother of the victim child K, vide her complaint Ex.PW7/A pursuant to which present case was registered against the accused. During the course of investigations, IO took the victim K for medical examination but the mother of the victim child refused for her gynecological examination. The victim K also pointed out the place of incident to the IO who prepared the site plan at her pointing out. The accused Samay Singh was arrested on the same day i.e. 24.09.2012 itself. He too was got medically examined and samples collected from him by the concerned doctor were seized by the IO. During the course of further investigations, IO got the statement of victim child recorded u/s.164 CrPC and also produced the victim child K before the concerned CWC from where she was handed over in custody of her stepmother / complainant Smt. Malti. The exhibits of the case were got sent to FSL Rohini. After completion of investigation, charge sheet was prepared and filed in the Court of learned MM through the SHO concerned. 2 After hearing arguments, charge for the offence under Section 376 (2)(f) IPC r/w Section 511 IPC and u/s. 323/506 IPC was framed against the accused. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. SC No. 87/12 State Vs. Samay Singh Page No. 2 of 46 3 3 In order to prove its case, prosecution has examined 13 witnesses.
Victim and her mother 4 The PW1, K, is the victim child. Her statement shall be discussed at length in the following paragraphs of the judgment. 5 The PW7, Smt. Malti, is the mother of the victim child K and wife of accused Samay Singh. She did not support the prosecution case and merely deposed that she had two children i.e. prosecutrix / victim child K and one son namely Rishabh and that the victim child was her stepdaughter and that she (PW7) had brought up victim child K since the age of 2 years and was presently aged about 7 ½ years.
6 At this stage of the examination of the witness, learned Additional PP pointed out and it was also observed that the witness was crying continuously and was hesitant while giving her statement. She was asked if she was unwell or otherwise under some threat or pressure. The witness nodded her head in affirmation when she was asked whether she was under
threat or pressure.
7 Thereafter specific question was asked from the witness as to whether she wanted to state anything against her husband and whether the accused / her husband had committed any wrong act with victim K as per her SC No. 87/12 State Vs. Samay Singh Page No. 3 of 46 4 knowledge (knowledge of PW7). The witness replied in negative to both the questions. The PW7 deposed further and stated that she had signed her statement / complaint Ex.PW7/A at the instance of police and that she and her daughter K were taken to SGM Hospital where her signatures were obtained on some documents and that she did not want to say anything else. 8 Since the witness failed to support the prosecution case, she was declared hostile by learned Additional PP and was crossexamined at length. During her said crossexamination, the witness admitted that accused was a habitual drunkard. She, however, denied having stated in her complaint Ex.PW7/A that the accused used to watch blue films during night hours. She further denied having stated to the police, in her complaint, that on the intervening night of 23 / 24.09.2012 when she (PW7) was sleeping along with her children and her husband (accused), she heard the cry of victim child K and when she (PW7) got up, she saw that the television was switched on and that accused / her husband had taken off the clothes from the lower body of her daughter and had also opened his pajama. She also denied having stated to the police, in her complaint Ex.PW7/A, that she (PW7) immediately rushed towards her daughter and took her (victim K) in her lap and that victim child K told PW7, while weeping, that 'mummy papa gande hai, apni susu karnewali jagah meri susu karnewali jagah me laga rahe hai.' She further denied that on hearing this, she (PW7) tried to talk to accused, however, he slapped her several times and threatened to kill her (PW7) and victim K in case they disclosed about the said incident to anyone. The PW7 further denied having stated in complaint Ex.PW7/A that SC No. 87/12 State Vs. Samay Singh Page No. 4 of 46 5 a few months prior to the said incident also accused had tried to commit a wrong act with victim child K and that when she (PW7) talked to accused about it, he apologized and due to this reason she did not disclose about the acts of accused to anyone.
9 The PW7 further deposed that she had not given a call to the Police at 100 number. She, however, stated that she had given a call at number 1091. The PW7 identified her signatures on site plan Ex.PW7/B but denied that the same was prepared at her instance by the Police. The PW7 expressed her lack of knowledge about the arrest of the accused though she stated that police had obtained her signatures on some papers i.e. arrest memo Ex.PW7/C, personal search memo Ex.PW7/D and disclosure statement Ex.PW7/E of the accused. The PW7 admitted having handed over Ex.PW7/F i.e. the age proof of victim K to the police vide memo Ex.PW7/G. 10 The PW7 denied that she was deposing under fear and pressure of her husband and inlaws. The PW7 termed it correct that she was not working and that the house where she was residing belonged to her husband / accused. She further termed it correct that if she was turned out of her husband's house, then she would not have any place to reside and that she did not have any means to sustain herself and her two minor children. She also termed it correct that her son's name had been struck off the rolls of the school due to nonpayment of fee. It was also brought out from further crossexamination of PW7 that she had come to the Court on that day with SC No. 87/12 State Vs. Samay Singh Page No. 5 of 46 6 her inlaws and that her inlaws had their permanent residence in Bulandshehar and in Ghaziabad.
11 Considering the demeanor of the witness, she was asked whether she was deposing falsely under threat of her son being taken away or she being killed. The witness stated that she did not want to comment on it but she started weeping again.
12 During her crossexamination by learned defence counsel, the PW7 termed it correct that she had gone to her brother's house about 8 - 10 days prior to the incident. She volunteered to state that she had not gone voluntarily and that accused had sent her forcibly saying "Ja apne bhai ke ghar ghoom kar aaja". She also termed it correct that accused had made call at 100 number and that she had gone to P.S. Sangam Vihar and that her brother was residing in the area of P.S. Sangam Vihar. The PW7 further stated that she had studied upto 3rd class only and that she did not know reading and writing.
Doctor witnesses 13 The PW3, Dr. Binay Kumar, had conducted general medical examination of victim vide MLC Ex.PW2/A and he deposed that after the general examination of the victim child, he referred the patient to gynecology department for further examination.
SC No. 87/12 State Vs. Samay Singh Page No. 6 of 46 7 14 The PW2, Dr. Geeta Aggarwal, SR Gyne, was referred victim K for her gynecological examination, on 24.09.2012, vide MLC Ex.PW2/A. She deposed that the mother of the victim child refused for external and internal examination of the child vide her statement recorded on the MLC Ex.PW2/A. A specific Court question was put to the witness whether any samples were taken or clothes of the victim were seized, which was replied to in negative by the witness.
15 The PW11, Dr. Brijesh, had examined the patient - accused vide MLC Ex.PW11/A and he deposed that after examining the patient, he opined that "there was nothing to suggest that the patient could not perform the act of sexual intercourse".
Investigating Officer and other police witnesses, who had joined investigation 16 The PW10, SI Paramjeet Singh, is the first investigating officer in the case and he deposed that on 24.09.2012 at about 7:15 AM, he received DD No.9B i.e. Ex.PW8/A regarding teasing of 7 years old girl by her father for inquiry and that the caller was the mother of the girl, who was standing near a juice shop. He further deposed that he reached at the said juice shop, which was just outside PS Mangol Puri, and talked to the caller whose name was revealed as Malti Devi and that her daughter i.e. the prosecutrix aged about 7 years was also present with her. He then deposed that he made inquiries from them and after coming to know that the child had SC No. 87/12 State Vs. Samay Singh Page No. 7 of 46 8 been sexually assaulted by her father, he informed about this fact to the SHO and that after sometime SI Suman reached there and that he handed over DD No.9B and produced prosecutrix and her mother, before her (SI Suman). 17 During his crossexamination by learned defence counsel, the PW10 deposed that he reached at the said juice shop within 2 - 3 minutes of receiving the DD No.9B. He then deposed that he remained at the juice shop for about 1 ½ - 2 hours as W/SI Suman Kumari took some time to reach there and that he had made inquiry from the complainant at the said juice shop. He denied that the complainant never told him that her daughter had been sexually assaulted by her father (father of the victim). 18 The PW13, W/SI Suman, is the main investigating officer of the present case and she deposed regarding the investigations carried out by her and the documents prepared by her during the course of investigations. She deposed that on 24.09.2012 on receiving intimation regarding a call in the present case, she left for PS Mangol Puri from PS South Rohini and that on the way, she met SI Paramjeet, ASI Krishna, complainant Smt. Malti Devi and her daughter i.e. the prosecutrix, near PS Mangol Puri and that SI Paramjeet handed over DD No.9B Ex.PW8/A to her and that he also narrated about the facts of the case to her and that thereafter she (PW13) went to SGM Hospital along with the complainant, prosecutrix and ASI Krishna for the medical examination of the prosecutrix. The PW13 then deposed that ASI Krishna got the victim medically examined and produced the MLC of prosecutrix Ex.PW2/A before her and that she recorded the SC No. 87/12 State Vs. Samay Singh Page No. 8 of 46 9 statement of Smt. Malti Devi, mother of prosecutrix, Ex.PW7/A in the room of Duty Constable of the hospital. She further deposed that in the meanwhile, Ct. Karan, whom she called through ASI Krishna from PS, also reached there and that she prepared rukka Ex.PW4/A and handed it over to Ct. Karan for getting the case FIR registered and that thereafter she went to the spot with the complainant and the prosecutrix and that Smt. Nazma Khan, counselor from NGO, also reached at the spot to counsel the prosecutrix and her mother and that PW13 recorded the statement of prosecutrix u/s.161 CrPC and prepared the site plan Ex.PW7/B at the instance of complainant. The PW13 further deposed that she made local inquiries from the neighbourers, who did not disclose anything in the case, it being a family matter and that she came to know that accused had been missing from his house since morning. The PW13 then deposed that Ct. Karan came back after registration of case FIR and handed over the original rukka and computerized copy of FIR to her and that thereafter they made efforts to search for the accused and that after 5:00 PM, she came to know that accused had reached his home and that she along with Ct. Karan raided his house and apprehended the accused, interrogated him and thereafter arrested him vide his arrest memo Ex.PW7/C and that personal search of accused was conducted by Ct. Karan vide personal search memo Ex.PW7/D and that accused made his disclosure statement vide Ex.PW7/E. 19 The PW13 further deposed that accused was taken to SGM Hospital where he was got medically examined vide his MLC Ex.PW11/A SC No. 87/12 State Vs. Samay Singh Page No. 9 of 46 10 and that after his medical examination, sealed blood samples and underwear of the accused were produced by Ct. Karan before her and the same were taken into possession by her vide seizure memo Ex.PW9/A. 20 The PW13 further deposed that on 25.09.2012, she got statement of victim child recorded u/s. 164 CrPC. The PW13 proved her application for the same as Ex.PW13/A and her application for obtaining the copy of statement u/s.164 CrPC, of the prosecutrix, as Ex.PW6/B. 21 The PW13 further deposed that on 04.10.2012, she obtained the birth certificate of prosecutrix i.e. Ex.PW7/F from her mother and took the same into possession vide memo Ex.PW7/G and that date of birth of victim was mentioned as 26.09.2005 in the said certificate. 22 During her crossexamination by learned defence counsel, the PW13 deposed that the house where the incident took place was built on a 22 sq. yards plot and that there were two rooms constructed on ground floor and that there was one room also on the first floor of the house at that time. She then deposed that she was not aware if the room on first floor had been rented out to some tenant or not.
23 During her further crossexamination the PW13 gave details of household articles lying in the two rooms on the ground floor and also specified the position of bed, whereupon the alleged offence was committed in one of the rooms.
SC No. 87/12 State Vs. Samay Singh Page No. 10 of 46 11 24 A specific Court question was put to the witness regarding exact position on the bed where the victim child stated that she was sexually abused by the accused and in response to which the witness has pointed at side "Z2" of the bed to state that this was the side where the victim child stated that she was sleeping on the bed when she was sexually abused by the accused and that at point "Z3" was the door from which accused used to enter inside the room where prosecutrix used to sleep with her mother. 25 During her further crossexamination, the PW13 deposed that on the day of incident, mother of the victim was sleeping next to the wall and that the younger brother of prosecutrix was sleeping in the middle between the mother of the prosecutrix and the prosecutrix and that she was told about this by the prosecutrix and her mother. The PW13 admitted that she had not specifically mentioned the position where the prosecutrix and her mother were sleeping in the site plan.
26 The PW9, Ct. Karan Singh, had joined the investigation of the case with IO W/SI Suman Kumari and had further got accused medically examined at hospital, on instructions of the IO, and deposed regarding the same. He proved his signatures on seizure memo vide which IO seized the samples taken from accused, as Ex.PW9/A 27 The PW9 further deposed that he went to PS and got the case registered in the present case and returned back to the spot and handed SC No. 87/12 State Vs. Samay Singh Page No. 11 of 46 12 over the copy of FIR and original rukka to W/SI Suman Kumari. He proved his signatures on the arrest memo Ex.PW7/C and personal search memo Ex.PW7/D of the accused.
28 During his crossexamination by learned defence counsel, the PW9 deposed that he had gone to house of accused i.e. the spot at about 5:00 - 6:00 PM on 24.09.2012 for the first time and that the prosecutrix was taken to the hospital thereafter and that the medical examination of accused was got conducted at about 8:00 - 9:00 PM on 24.09.2012. The PW9 then deposed that he did not remember the time when rukka was taken to PS and that he had first taken the accused to hospital for medical examination and thereafter he took the rukka for registration of case FIR and that it took about 45 minutes in hospital for medical examination of the accused. 29 During his further crossexamination, the PW9 could not recollect as to how many times he had visited the house of accused on that day and stated that he had remained in the investigation of the present case with the IO after receiving the call from Police Control Room till the time the accused was put inside the lockup i.e. at about 10:00 - 10:30 PM. He further deposed that he remained at the spot for about 15 - 20 minutes after the arrest of accused.
Formal witnesses 30 The PW8, Ct. Jagdish Prasad, was posted as DD Writer at PS SC No. 87/12 State Vs. Samay Singh Page No. 12 of 46 13 Mangol Puri at the relevant time. He deposed that on 23 / 24.09.2012 at about 07:11 AM, Wireless Operator informed him that one lady had called at PS and told him that she was standing in front of juice shop and that her husband had committed wrong act with her 7 years old daughter and that he (PW8) reduced the said information into writing vide DD No. 9B. He produced the original DD register and proved the attested true copy of DD No.9B as Ex.PW8/A. 31 The PW4, HC Meenakshi, was posted as duty officer at PS Mangol Puri at the relevant time and had recorded the case FIR in the present case. She proved the endorsement made by her on the rukka as Ex. PW4/A and computerized copy of FIR as Ex. PW4/B. 32 The PW5, ASI Krishna, gone for the medical examination of the victim child K on 24.09.2012, on instructions of SI Paramjeet, and deposed regarding the same.
33 During the crossexamination by learned defence counsel, the PW5 deposed that they reached the hospital within 10 - 12 minutes and that at that time the victim child was talking normally with her mother. 34 The PW6, Ms. Rajani Ranga, learned MM, had conducted the proceedings u/s.164 CrPC and proved the same as Ex.PW6/A to Ex.PW6/D i.e. the application filed by IO for recording of statement of victim child u/s.164 Cr.P.C as Ex.PW6/A ; statement of victim child u/s.164 CrPC SC No. 87/12 State Vs. Samay Singh Page No. 13 of 46 14 as Ex.PW6/B ; the certificate given by PW6 as Ex.PW6/C and application for supply of copy of said statement, filed by IO, as Ex. PW6/D. 35 The PW12, HC Vijender, was posted as MHCM at PS Mangolpuri at the relevant time. He produced the original register No.19 and proved the relevant entries regarding deposit of the case property at Malkhana of police station as Ex.PW12/A. 36 After closing of the prosecution case, statement of accused was recorded u/s.313 CrPC. Accused termed all the incriminating evidence against him to be incorrect. He deposed that he was innocent and had been falsely implicated in this case after being lifted him from his house. He further stated that his signatures were obtained forcibly by the police on some blank papers and printed proformas and later on those papers were converted into various memos against him. He further stated that he had entered into agreement to sell off his mango orchard and had received sale consideration amount which was given by him to his wife for safe keeping and that when he asked his wife to return the said amount, she told him that she has given that money to her mother. He further stated that on his repeated asking, his wife left the matrimonial home and she also took both the children with her and that he approached the police and that complainant was also called to PS and that in order to avoid payment of his money, complainant tutored victim child K and got him falsely implicated in the present case. The accused examined himself as DW1 in his defence. SC No. 87/12 State Vs. Samay Singh Page No. 14 of 46 15 37 The DW1, accused Samay Singh, deposed that he had married twice and that his first wife namely Anju Devi expired due to illness and that he had one female child i.e. prosecutrix, born to him from his wedlock with his first wife and that he married again 5/6 years ago to Malti Devi and that he had one son namely Rishabh born from his wedlock with Malti Devi. He then stated that initially, his relations with his wife Malti were normal and that mother of Malti used to remain unwell and that Malti used to ask him for money for her treatment, which was given by him to her and that he also got mother of Malti treated at his expenses at his house and that Malti had four brothers, all of whom were married and had children but none of the brothers of Malti stayed with her ailing mother. 38 The DW1 further stated that he was having property in Bulandsahar, which he had to sell 10/12 prior to the incident as he needed money and that he had received a sum of Rs. 50,000/ towards his share of the sale amount and that he brought the said money and gave it to his wife Malti for safe custody and that there was some money, from before, also lying with Malti as he used to give her money as and when, he brought money home and that Malti gave the entire sum of Rs. 50,000/ as well as the other money lying with her to her parental family (mayke walo ko de diye). He further stated that she must have given it to her mother as her mother used to visit them. The DW1 further stated that he had a heated quarrel with Malti over the said money, which she had given without his permission, and that he had also slapped her and that Malti gave a telephonic call to her mother and called her mother and brothers to their SC No. 87/12 State Vs. Samay Singh Page No. 15 of 46 16 house and that his motherinlaw and brotherinlaw took Malti and both the children to a house at Sangam Vihar i.e. Sasural of his brotherinlaw, where he (brother of Malti) is residing as GharJamai. He then stated that he (accused) went to Sangam Vihar to bring back Malti and his children as prosecutrix was to appear in her examinations 2/3 days prior to the incident and that at that time, the mother and Manojbrother of Malti assured him that they would arrange for return of the money within few days, however, when he went to Sangam Vihar, they both as well as Smt. Malti refused to send children with him (accused) even though he told them (Malti, her mother and brother) that they could send the money later on, but they should send his daughter immediately as she was due for her examination in 2/3 days time and that thereafter an altercation took place between them. He further stated that he gave a call at 100 number and that the police arrived and took him (accused), Malti, his motherinlaw and brotherinlaw, his children and other relatives of Malti to PS Sangam Vihar and that the police told him not to take children with him as it was night time and assured him that Malti would bring both the children to him in 2/3 days time and that thereafter, he returned back to his home.
39 The DW1 further stated that in the evening of 23.09.2012, Malti and her mother brought back both his children to his house and that he again had quarrel with Malti when he asked her to return his money and that his motherinlaw returned back to her house,when she saw them quarreling. He then stated that at night, he brought food from a hotel while Malti and children ate food cooked by Malti, in the house, and that he slept in the SC No. 87/12 State Vs. Samay Singh Page No. 16 of 46 17 outside room, while Malti and children slept in the inside room. He further stated that in the morning, Malti dressed the children for school and that at that time, he was still sleeping in the outside room and that she asked him as to where he had kept the shoes of children as he had kept them safely in the absence of Malti and children and that he told her the place, where the shoes were kept and after that, Malti took children to school. He then stated that he did not know what happened thereafter, but she filed a false complaint against him with the police and that he was arrested by the Police and that she also made his daughter give a wrong statement against him that he had tried to commit a wrong act with her.
40 The DW1 further stated that he was doing the work in Subzi Mandi as Muneem and that he also used to give money on loan to vegetables vendors on daily wages and that he had his own house, which was having ground floor and first floor and that on the ground floor, there were two rooms and that he stayed in the outside room of the house, while Malti and two children used to stay in the inside room and that on the first floor, there was one room, which had been rented out. 41 The DW1 further stated that Malti had been visiting him regularly in Jail and that her mother (motherinlaw of accused) had also come to meet him 2/3 times and that Malti and her mother repeatedly apologized to him for the wrong committed by them and that Malti also came to meet him during the court hearings and had written letters Ex.DW1/2 and Ex.DW1/3 to him.
SC No. 87/12 State Vs. Samay Singh Page No. 17 of 46 18 42 During the crossexamination by learned Additional PP, the DW1 stated that his first wife died due to tuberculosis and that he got her treated privately as well as in a government hospital and that he got married with Anju Devi (first wife of accused) in the year 2000 and that initially his wife could not conceive and it was after considerable treatment that she could give birth to his daughter / victim child, who was born after four - five years of their marriage and that his first wife expired when his daughter was 2 - 2 ½ years old. He admitted that he had received a sum of Rs.1 lac from insurance after death of his first wife. He further stated that he married Malti after about 8 - 9 months of death of his first wife but he could not tell the exact date of his marriage with Malti. He also stated that at that time he was working as Munim at Sabzi Mandi and that he was earning about Rs.8,000/ per month at that time and that he did not demand any dowry in the marriage but the parents of Malti had given one sofa set, some utensils and a dressing table and that they also gave one gold ring to him and some jewelery to Malti. He denied that at the time of his marriage with Malti, he was maintaining two cars or that the same were disposed off by him or that he used to demand cash amount from his motherinlaw, from time to time, or that he had taken a sum of Rs.20,000/ from his motherinlaw after about six months of his marriage with Malti.
43 The DW1 further stated that the property which was sold in Bulandshehar was in his name and that the total property comprised of 9 bighas and which was owned by his father and his brother and that only 4 ½ SC No. 87/12 State Vs. Samay Singh Page No. 18 of 46 19 bighas of property came to the share of accused, his two brothers and his mother and proceeds thereof were divided in four shares one of which was taken by accused and that the earnest money of 9 bighas property was about Rs.4 lacs and ultimately he received a sum of Rs.50,000/ as his share of the sale proceeds out of consideration amount of Rs.2,13,000/ per bigha. He further stated that he was not an income tax assessee and had not shown the mango orchard in any of his income document till date and that prior to the alleged incident, he was doing work of money lending and that he also used to work as agent for supply of tomatoes and that he used to arrange for tomatoes from Mandi for the customers and took payment from them.
44 The DW1 then deposed that he did not get executed any document from the persons to whom he gave money on loan and that he used to maintain his own record of the money loaned by him and the persons to whom he had given the said loan. He further deposed that at the time of alleged incident, he was earning about Rs.5,000/ to Rs.10,000/ per month from his business and that he had a saving bank account in SBI, Jawalapuri but had not been operated by him for months together prior to the alleged incident and that he did not deposit the sum of Rs.50,000/, received by him from the sale of the property, in the bank. He volunteered to state that he had gone to his village in the morning and returned in the evening with the money which he had given to his wife Malti and when he (accused) asked her after two days, she did not return the money to him as she had given it to her parental family. The DW1 admitted that for two days the said money SC No. 87/12 State Vs. Samay Singh Page No. 19 of 46 20 remained in his house and that Mangol Puri area is prone to crime and there had been incidents of theft etc in the area and it was risky keeping a sum of Rs.50,000/ in house. He denied that he had not brought a sum of Rs. 50,000/ to his house or that he had not handed over any such money to Malti or that he had taken a false defence of giving Rs.50,000/ to Malti to create some defence from himself in the present case. 45 The DW1 further deposed that Malti did not give any big amount to her parental family prior to giving them abovesaid sum of Rs. 50,000/. He volunteered to state that she used to give Rs.2,000/ to Rs. 4,000/ sometimes to her mother and sometimes to her brothers whenever needed by them. The accused then deposed that she used to give Rs.2000
- Rs.4,000/ to her parental family after every three months. He volunteered to state that she used to give said money whenever her mother was ill and not otherwise. He further deposed that the mother of Malti was not suffering from any recurrent or chronic illness which required her to take medicines regularly and that she had once suffered from dengue. He denied that Malti never gave any sum of money to her parental family. The DW1 further deposed that he used to bring ration for his family and that he did not give any fixed sum of money to Malti but whatever was left with him after expenses was handed over to her and that neither he nor Malti kept count of said money. He denied that his entire earning were not kept in custody of Malti at home. He admitted that since about 1 ½ years prior to the alleged incident, he had suffered loss in his money lending business. He denied that due to the said loss, he had pressurized Malti to bring money from her SC No. 87/12 State Vs. Samay Singh Page No. 20 of 46 21 parental house.
46 During his further crossexamination, the DW1 deposed that the house at Mangol Puri, which was in his name, was owned by him and that he had rented out part of the house at the monthly rent of Rs.1200/ per month about 3 / 4 years ago and that he had increased the rent subsequently due to increase in electricity and water charges but he did not know what was the existing rate of rent as Malti was receiving rent of the same after the alleged incident and that prior to that sometimes he and sometimes Malti used to take rent. He denied that Malti never took rent of the said room prior to the alleged incident.
47 During the further crossexamination by learned Additional PP, the DW1 deposed that they were three brothers and two sisters and that he also had a mother and that his parental family was residing in the village with their respective families and that his sisters visited his house at Mangol Puri on festivals only and that his mother and brothers used to visit him occasionally whenever he needed them.
48 During further crossexamination, the DW1 deposed that he did not remember the date when Malti called her brother and mother to their house and went with both the children to the house at Sangam Vihar. He volunteered to state that it happened 2 - 3 days after his return from the village with Rs.50,000/. He then deposed that he had not filed any complaint in writing with the police that his wife had gone away with Rs. SC No. 87/12 State Vs. Samay Singh Page No. 21 of 46 22 50,000/. He volunteered to state that he had given a call at 100 number and there a compromise was effected at the PS. He denied that he did not lodge any complaint in writing against his wife as he never gave Rs.50,000/ to her and that she did not give the said amount to her parental family or that prior to the alleged incident also he had tried to outrage the modesty of his daughter 3 - 4 times or that Malti had strongly objected to the same or that she had complained to his mother or his brothers about his conduct or that she was scolded by his family members or that she (Malti) was given beatings by him or that because of the favour given by his family members to him, he had gone to the extent of committing rape upon his daughter. 49 He further deposed that Malti had been visiting him in Jail but she had not come to visit him since past 2 - 3 weeks. He denied that Malti used to visit him due to pressure from his family members or that Malti was made to visit him to create defence in his favour. He further deposed that his wife had studied upto fourth class only. He denied that Malti was unable to read and write in Hindi or that she could only sign in Hindi. He denied that Malti was enrolled in Adult Education Programme and was studying in class first as a part of rehabilitation order issued by this Court. He volunteered to state that since he was in jail, he was unaware of such things. 50 He admitted that he consumed alcohol daily. He volunteered to state that he used to take drinks with dinner but not to such an extent that he became inebriated and that he used to watch news and match on TV and no other programmes. He denied that he used to watch pornographic SC No. 87/12 State Vs. Samay Singh Page No. 22 of 46 23 movies on television at night, at times, at his house. He denied that on the night of 23 / 24.09.2012 at about 2:00 AM, he took prosecutrix to another room and committed rape upon her or that when his wife Malti heard voice of prosecutrix crying, she came there and quarreled with him for his acts or that he gave beatings to Malti also. He denied that when his wife Malti told him to lodge a complaint against him, he threatened to kill her and the prosecutrix or that due to the said threats given by him to his wife, she kept quite at that time or that in the morning also she behaved in a normal manner or that she took the prosecutrix for school also in her school uniform. He further deposed that he did not know if after leaving the house at about 7:11 AM, his wife Malti called the police by dialing 100 number from a nearby juice shop. 51 During further crossexamination, the DW1 deposed that he came to know after the alleged incident that on one occasion each his mother and brotherinlaw Ram Avtar had visited his house (as told to him by Malti) and that as per his information they had stayed for one night in the house and that Malti did not tell him that 4 5 days prior to the deposition of prosecutrix as well as her own deposition in the Court, all his family members came and stayed with Malti at his house (house of accused) at Mangol Puri and kept on pressurizing her to depose in the Court in his favour. He denied that he was aware of the said conduct of his family members or that due to the pressurize tactics adopted by his family members on Malti, she had turned hostile in the Court or that his family members had threatened his wife Malti that they would snatch away her son from her in case she did not depose in his favour.
SC No. 87/12 State Vs. Samay Singh Page No. 23 of 46 24 52 Arguments have been addressed by learned Additional PP for State as well as learned defence counsel.
53 Learned Additional PP has contended that from the statements of PW1 victim child K, prosecution has succeeded in proving its case against the accused beyond reasonable doubt. She has further stated that even though Smt. Malti, mother of the victim child, has failed to support the prosecution case, it is evident from her testimony that she has deposed under threats of being rendered shelterless / homeless and her son being taken away from her. It is also contended that the falsity of the plea of the defence that Smt. Malti had been visiting the accused in the jail and had written letters to him repenting filing of the present case is brought out from the fact that the defence has elicited a response from Smt. Malti, during her crossexamination, that she is unable to read and write. It is accordingly prayed that accused be convicted for the charged offences. 54 On the other hand, learned counsel for accused has contended that accused is innocent and has been falsely implicated in the present case at the instance of Smt. Malti / complainant, who was having matrimonial disputes with the accused. It is further contended that the complainant herself has failed to support the prosecution case and hence, prosecution has failed to prove its case. It is then contended that the incident as alleged could not have taken place as the victim child K used to sleep on same bed as her mother and younger brother and that she used to sleep on the inner SC No. 87/12 State Vs. Samay Singh Page No. 24 of 46 25 side of bed, next to the wall, at a place which could not have been approached by accused without disturbing / waking the complainant Malti and that due to this reason the IO has deliberately not shown the place where the victim K was sleeping in the site plan Ex.PW7/B. As regards the demeanor of PW Malti i.e. her nervousness and hesitation while deposing before the Court, it is contended that the same was out of fear of khakhi (police) and fear of the Court and not due to any alleged threats or pressure from the accused and / or his family. The medical report of the victim has also been relied upon to contend that the same does not support the allegations of attempt to rape and that the present case was filed at behest of complainant, who has used the victim child K as a tool to vent her vengeance against the accused. Learned counsel for accused has relied upon judgment in case of Atinder Yadav Vs. State of Government of NCT of Delhi, 2013 (4) JCC 2962, in this regard. He has lastly contended that if at all only allegations of outraging the modesty of the victim child can be considered against the accused and that prosecution has failed to make out a case of attempt to rape / rape against accused. He has relied upon judgments in following cases : 1 State Vs. Sunil Gupta 2 Lal Singh Vs. State of MP 3 Cycil s/o Markose Vs. State It is accordingly prayed that the accused be acquitted of the charged offence.
SC No. 87/12 State Vs. Samay Singh Page No. 25 of 46 26 55 I have heard the arguments put forward by ld. Addl. PP as well as learned counsel for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
56 In the present case, accused Samay Singh, who is father of victim child K, aged about 7 years, is alleged to have attempted to commit rape upon the victim child K and also criminally intimidated victim K and his wife Malti by threatening to kill them in case they disclosed about the incident to anyone. The accused is further alleged to have voluntarily caused hurt to his wife / complainant Malti by slapping her several times when she confronted the accused about the incident.
57 In the present case the incident has stated to have taken place on the night of 23 / 24.09.2012. The case FIR was registered on 24.09.2012 on statement Ex.PW7/A made by Smt. Malti. Thereafter the IO recorded the statement of the victim child K u/s.161 CrPC on 24.09.2012 in question answer form. Some preliminary questions were put to the witness by the IO and thereafter her statement was recorded. In the relevant portion of her statement victim K stated as under : "Q. Apke sath papa ne kuch kiya ?
Ans. Ha, jab raat ko hum sab so rahe the mujhe susu karnewali jagah dard hua toh mein jor se roi Papa SC No. 87/12 State Vs. Samay Singh Page No. 26 of 46 27 apni susu karnewali cheez meri susu karnewali jagah me laga rahe the. Mummy ne uthakar light jalai aur mummy papa ki ladai hui.
(The IO has given her observation that while recording the statement of victim K, the child pointed towards her private part and stated "yaha laga rahe the" and thereafter victim K turned her neck downwards and became quiet. No further query was made from the victim child K, by the IO thereafter.) 58 The statement of victim child K Ex.PW6/B u/s.164 CrPC was recorded on 25.09.2012, wherein she deposed as under : "Bolo K apko kya kehna hai.
Parso raat ko mein so rahi thi, mujhe achanak se laga ki mere papa apna toilet mere toilet par laga rahe the. Aap toilet kisse keh rahi hai ?
Toilet jaha se susu karte hai. Maine mumma se bola ki papa apna toilet mere toilet par laga rahe the. Jab maine mumma ko bataya toh mumma ne thane me police ke paas phone kar diya. Police subah aayi aur mere papa ko pakadkar le gayi.
Police ne mujhe aur meri mummy ko apni gadi me bithaya. Papa ko bhi bithaya. Do police wale the, lekin gadi ek hi thi. Papa ko jail me bandh kar diya SC No. 87/12 State Vs. Samay Singh Page No. 27 of 46 28 tha. Maine papa ko jail me bandh dekha tha. Maine policewali aunty se papa ki shikayat ki thi ki papa apna toilet mere toilet par laga rahe the.
Aur kuch kehna hai apko ?
Nahi."
59 The statement of victim child K was recorded on 09.04.2013 as PW1. Some preliminary questions were put to the witness to ascertain whether she was capable of understanding questions and that she understood the importance of speaking truth and answering the questions put to her reasonably. After being so satisfied with the capacity and capability of the witness to give statement, her version / deposition was recorded and the same is reproduced in toto so that the essence of her deposition is clearly brought out.
"Q. Aap batao kaya hua tha ?
Ans. Mere papa ne mere toilet ki jagah me
apna toilet lagaya tha.
Q. yeh kab ki baat hai?
Ans. Aunty yaad nahi hai.
Q. Yeh kis samay ki baat hai?
Ans. Raat Ki.
Q. Aap us samay kya kar rahe the ?
Ans. Me so rahi thi, jab meri aankh khuli maine
dekha, mere papa meri toilet ki jagah me apna toilet ki SC No. 87/12 State Vs. Samay Singh Page No. 28 of 46 29 jagah laga rahe hai.
Q. phir kya hua ?
Ans. Maine mummy ko bataya, mummy meri
rone ki awaz sunkar jag gai, mummy papa ki jhagada ho gaya.
Q. phir kya hua ?
Ans. Mummy ne police ko phone kar diya.
Q. Phir kaya hua?
Ans. Policewali gadi aaye, papa ko lejakar jail
me bandh kar diya.
Q. Aap roye kyu ?
Ans. Kyonki papa ne meri toilet ki jagah par
apni toilet laga di, mujhe thodi si dard hui.
60 During her crossexamination by learned defence counsel the
PW1 deposed as under :
"Q. Aap ke ghar me kitne kamare hai ?
Ans. Do (2).
Q. aap ke ghar me kaun kaun raheta hai?
Ans. Mein, mummy, bhaiya (chota), papa.
Q. Aapke ghar me kaun kaha kaha sota hai ?
Ans. Mein, mummy or bhaiya andar ke kamare
me sote hai. Papa bahar ke kamare me sote hai.
At this stage, the witness whispered
SC No. 87/12 State Vs. Samay Singh Page No. 29 of 46
30
stating that "Jab meri toilet me papa ne toilet gahi toh woh palang ke paas the".
Q. Aap kis chiz par sote ho?
Ans. Mein, mummy or bhaiya palang par sote
hai aur papa khat par.
Q. aap palang pe sote ho toh bich me kaun
sota hai ?
Ans. Beech me bhaiya sota hai, mummy ek
side soti hai aur mein dusari side soti hu.
Q. mummy darwaje ki taraf soti hai?
Ans. Ha.
Q. kya mummy papa me roz ladai hoti hai?
Ans. Jab papa daru pite hai toh ladai hoti hai.
Q. Aap ko kaun acha lagata hai?
Ans. Mummy.
Q. Aap ko papa kyu nahi ache lagate hai ?
Ans. Kyonki papa daru pite hai.
Q. kya aapki Mummy ne apko bataya ki papa
daru pite hai, ya apne khud dekha ?
Ans. Maine dekha.
Q. Yeh jo apne aaj bataya, apki mummy ne
apko sikhaya ?
Ans Nahi.
At this stage, importance of speaking truth was reinforced by asking witness following question : SC No. 87/12 State Vs. Samay Singh Page No. 30 of 46 31 Court ques. Sach bolana achi bat hoti hai yah jhut bolana ?
Ans. Sach bolana.
The witness was further examined as under :
Q. aaj aapko mummy ne kaya kaha tha ?
Ans. Mummy ne khuch nahi kaha tha.
Q. Aap ko mummy ne bataya tha ki court me
aana hai?
Ans. Nahi.
Q. mummy ne school ki chhutti kyu karai thi ?
Ans. Mummy ne kuch nahi kaha tha. The
witness now states "mujhe pata tha court aana hai". Again Court question was asked from the witness to ascertain how she had became aware that she was to come to Court and in response to the question the witness deposed : Court Ques.: Aapko kaise pata court aana tha ?
Ans. Policewale uncle do ( 2 ) tariq ko aakar
parchi degaye the, ki court me aana hai.
The witness further deposed :
Q. Parchi kisko de kar gaye the ?
Ans. Mummy ko de kar gaye the.
At this stage, following Court questions were asked from witness to ascertain if she had come to Court earlier for her statement u/s. 164 CrPC : SC No. 87/12 State Vs. Samay Singh Page No. 31 of 46 32 Court ques.: aap pehele bhi court aaye the ?
Ans. Ha, tab aunty ne mujhse pucha tha.
Court Ques.: kya puchha tha ?
Ans. Aapke papa ne kuch kara hai (the witness
is referring to her statement u/s.164 CrPC).
During her further crossexamination witness deposed that, Q. Aaj aap jhoot bol rahe ho?
Ans. Jhoot nahi bol rahi.
Q. Aap apni mummy ke kahane par jhoot bol
rahe ho?
Ans. Nahi.
Q. Police ko bhi apne mummy ke kahane par
jhoot bola tha ?
Ans. Nahi.
Q. Aap ki mummy aapko sikhati hai ?
Ans. Nahi."
61 The issue which arises for consideration before the Court is
whether the victim child K is a trustworthy witness or not. In this regard, it has been held 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 SC No. 87/12 State Vs. Samay Singh Page No. 32 of 46 33 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."
62 In case of Pancchi Vs. State of U.P., AIR 1998 SC 2726, it was further 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." 63 It has been further held by Hon'ble Supreme Court in case titled as State of UP Vs. Krishan Master, AIR 2010 SC 3071, that : SC No. 87/12 State Vs. Samay Singh Page No. 33 of 46 34 "There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A Child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature."
64 Moreover there is no hard and fact rule that the conviction cannot be based on sole testimony of the victim / injured. The testimony of prosecutrix in the present case clearly bring out the traumatic experience she suffered at the hands of her father/accused. In the case of State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, the Supreme Court held that in SC No. 87/12 State Vs. Samay Singh Page No. 34 of 46 35 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 case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
65 In the present case, when the testimony of the victim child K is evaluated, in the facts and circumstances of the case, it is found trustworthy and reliable. Despite her tender age the victim child K has narrated the manner in which the accused i.e. her father attempted to commit rape upon her. Further victim K has been consistent in her narration of these facts in SC No. 87/12 State Vs. Samay Singh Page No. 35 of 46 36 her statement u/s.161 CrPC dated 24.09.2012, her statement u/s.164 CrPC i.e. Ex.PW6/B dated 25.09.2012 and her deposition as PW2 recorded on 09.04.2013.
66 Learned counsel for accused has contended that accused has been falsely implicated in the present case at the instance of Smt. Malti / complainant, who was having matrimonial disputes with the accused and that she has used the victim child K as a means of settling scores with the accused. The contention raised by learned counsel for accused cannot be sustained for simple reason that the complainant Malti is the stepmother and not the real mother of the victim child K and in these circumstances it is difficult to comprehend that she (complainant) would have such influence over the victim child to be able to tutor her. Even assuming that complainant Malti is feigning her love and affection for victim child K and is trying to tutor her, there is no reason why child K would be so influenced by her to depose against her real biological father. Though it is alleged that the accused and complainant Malti were having matrimonial disputes, nothing has been brought on record, except a bald statement made by accused himself, that he was having such strained relationship with complainant as would have driven her to use child K to settle scores with him. It is noteworthy that accused and complainant have one son born to them from their wedlock and incarceration of accused has had a direct effect on the upbringing of the said child as well. Being the natural mother of the son of the accused, it is difficult to comprehend why the complainant would choose to support her stepdaughter / victim child K in utter disregard of interest of her own son. SC No. 87/12 State Vs. Samay Singh Page No. 36 of 46 37 Though learned defence counsel has contended that complainant had written letters Ex.DW1/2 to Ex.DW1/3 to accused admitting that she had got the accused falsely implicated in the case and had apologized to him for her mistakes, it is noteworthy that though both the letters are claimed to have been written in the year 2012 i.e. on 20.11.2012 and 28.11.2012 respectively, the same were never put to PW7 during her cross examination. Moreover during the crossexamination of PW7, conducted on behalf of accused, a specific question was put to PW7 regarding lack of her reading and writing skills which was responded to in affirmative by the witness. Once the accused has himself disputed the fact that complainant Malti could read and write, it does not lie with him to rely upon Ex.DW1/2 and Ex.DW1/3, alleged to have been written by complainant, confessing the alleged false implication of the accused, specially when the PW7 was never confronted with the said letters and was not given an opportunity to admit or deny having written the alleged letters.
67 The learned counsel for accused has relied upon judgment in case of Atinder Yadav Vs. State of Government of NCT of Delhi, 2013 (4) JCC 2962 to contend that victim child K had been influenced by complainant Malti and hence deposed against the accused and that her testimony cannot be relied upon. However, in the judgment cited by learned defence counsel, it was brought from the record that the victim child was under total influence of her mother, who was her real / biological mother. There were other material contradictions, discrepancies and improvements in the testimony of prosecution witnesses whereas the testimony of defence witnesses SC No. 87/12 State Vs. Samay Singh Page No. 37 of 46 38 remained unrebuted. The parties in that case were also having a history of matrimonial discord and the alleged accused father had already remarried when the case was filed against him. To the contrary no such tutoring and / or influence of the complainant Malti, stepmother of victim child K, could be brought out from the face of record by the learned defence counsel. The plea of strained matrimonial disputes between the complainant Malti and the accused due to alleged inclination of complainant to give financial support to her mother / parental family also does not inspire confidence as these facts have not been put to PW7 Smt. Malti during her crossexamination or to the IO W/SI Suman. No proof that the consideration amount of Rs.50,000/ from the sale of the land was handed over by accused to complainant Malti could be brought on record by the accused. In fact accused could not bring on record anything to show that he was in such dire need of money that he was compelled to sell his share of the ancestral plot. He could also not specify any previous occasion when he had entrusted his wife Malti with such huge amount of money. He could even not spell out the alleged disease with which his motherinlaw was suffering as would have required her to have regular treatment and / or medication. Even otherwise no such suggestions were put to PW7 Malti that any amount of Rs.50,000/ was handed over to her by the accused two days prior to the incident or that she handed over said amount to her mother or that in the past she had given amounts of 2000 to 4000 rupees to her mother. Moreover the record of alleged call at 100 number made by accused at PS Sangam Vihar pursuant to which a compromise is claimed to have been arrived at between the complainant Malti, motherinlaw and the brotherinlaw of the accused, has also not been SC No. 87/12 State Vs. Samay Singh Page No. 38 of 46 39 brought on record to prove these facts about which accused disclosed in his statement u/s.313 CrPC for the first time.
68 Moreover the onus of proving the facts asserted by the accused in his defence lies upon the accused himself. In the case of Rajkumar vs. State of M.P, 2014 III AD (S.C.) 257, Hon'ble Supreme Court relied upon the earlier judgments in (i) Prithipal Singh & Ors. vs. State of Punjab & Anr., (2012), 1 SCC 10 and (ii) State of W.B. vs. Mir Mohammad Omar, AIR 2000 SC 2988, and held that : ".... if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused, beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the SC No. 87/12 State Vs. Samay Singh Page No. 39 of 46 40 accused."
In the present case also, accused has failed to discharge the burden of proving inimical relations between him and the complainant. 69 The next contention raised by learned defence counsel is that since complainant has herself failed to support the prosecution case, the prosecution has no legs to rest its case on. In this regard from the testimony of PW7 it is clearly brought out that she had deposed under considerable pressure when she appeared to give her statement on 10.04.2013 and there is specific Court observation about the demeanor of the witness who had been crying throughout her deposition. Though the witness denied that she was under any threat or pressure, she did not give any specific reply to question about deposing falsely due to threats of her son being taken away and she being killed, she started weeping again. It is noteworthy that at that time the complainant was a mere housewife with two children i.e. the victim child K, aged about 7 year, and her son, aged about 3 years. She was not having any source of income and name of her son had already been struck off the rolls of the school due to nonpayment of fee. The complainant was staying in the house owned by accused. It further appears from record that the day PW7 Malti appeared to depose in the Court, she was accompanied by her inlaws. It is apparent that PW7 was under considerable pressure from the family of the accused to depose in the manner she did before the Court as PW7 on 10.04.2013. Though learned counsel for accused has contended that it was so because of the fear of Khakhi and / or fear of the Court, no such suggestion was put to the witness during her cross SC No. 87/12 State Vs. Samay Singh Page No. 40 of 46 41 examination and thus this submission made by learned counsel for accused also does not inspire any confidence.
70 The next contention of the learned defence counsel is that the incident as alleged could not have taken place as the victim child K used to sleep on same bed as her mother and younger brother and that she used to sleep on the inner side of bed, next to the wall, at a place which could not have been approached without disturbing / waking the complainant Malti and that due to this reason the IO has deliberately not shown the place where the victim K was sleeping in the site plan Ex.PW7/B. In this regard it is seen that specific questions were put to the victim child K by learned defence counsel, during her crossexamination, and the response given by victim child K clearly brings out that when the accused attempted to sexual assault the victim child, he was standing by the bed side near the victim child. The relevant portion of the testimony of victim child are as under : "Q. Aapke ghar me kaun kaha kaha sota hai ?
Ans. Mein, mummy or bhaiya andar ke kamare me sote hai. Papa bahar ke kamare me sote hai.
The witness whispered stating that "Jab meri toilet me papa ne toilet gahi toh woh palang ke paas the".
Q. Aap kis chiz par sote ho?
Ans. Mein, mummy or bhaiya palang par sote hai aur papa khat par.
SC No. 87/12 State Vs. Samay Singh Page No. 41 of 46
42
Q. Aap palang pe sote ho toh bich me kaun sota
hai ?
Ans. Beech me bhaiya sota hai, mummy ek side soti hai aur mein dusari side soti hu.
Q. mummy darwaje ki taraf soti hai?
Ans. Ha."
71 The learned defence counsel has next relied upon the medical report of the victim to contend that the same does not support the allegations of attempt to rape. It is true that though the victim child K was taken for her medical examination, the complainant refused for her gynecological examination as is reflected from MLC Ex.PW2/A. It is matter of record that the victim child K was merely seven years old at the time of the incident and in these circumstances it is quite possible that considering the tender age of the victim child as well as keeping in mind her future prospects of marriage, the mother of the victim child K refused for her gynecological examination. It is also possible that since the victim child K had made allegations that accused had merely touched her private parts (vagina) with his private part (penis), the complainant deemed it appropriate not to give consent for her gynecological examination. However this by itself is not sufficient to discard the cogent and reliable testimony of the victim child K. 72 The learned defence counsel has lastly contended that if at all only allegations of outraging the modesty of the victim child can be considered against the accused and that prosecution has failed to make out SC No. 87/12 State Vs. Samay Singh Page No. 42 of 46 43 a case of attempt to rape against accused. In this regard, it would be relevant to refer to some authorities on this point.
73. In Sittu v. State, 1967, Crl. L.J. 920, it was held that forcibly making a girl naked and repeatedly trying to force the male organ into her private parts despite strong resistance from her amounts to attempt to commit rape and not merely indecent assault.
74. In Bhartu v. Emperon AIR 1933 Lah 1002 (II) : 193435 Cri LJ 432, the accused caught hold of a girl, threw her down, put sand in her mouth, got on her chest and attempted to have intercourse with her. The accused could not succeed on account of resistance offered by the prosecutrix and the witnesses having attracted by the screams of the prosecutrix, whereupon, the accused ran away. It was held that the accused had gone much beyond the stage of 'preparation', and his act clearly amounted to an attempt to commit rape and not merely an offence under Section 354, I.P.C.
75 In Maria raj Din v. Emperor AIR 1927 Lah 222 : 192728 Cri LJ 244, a boy of 18 stripped of the trousers of a female child of five and a half years arid seated her on his naked thighs; there was no bleeding from the private parts of the prosecutrix, but there was fresh redness at the entrance of the vagina; there was no other mark of injury and her hymen was intact. It was held that the act of the accused had gone beyond an, indecent assault and amounted to an attempt to effect penetration, though unsuccessfully and SC No. 87/12 State Vs. Samay Singh Page No. 43 of 46 44 hence the offence was an attempt to commit rape.
76 In Kishen Singh v. Emperor AIR 1927 Lah 580 : 192728 Cri LJ 663, the accused caught hold of the girl, sat on to the charpoy of the prosecutrix, having undone the string of her Pyjama and was seen struggling with her when the witnesses came up in answer to the prosecutrix's cries, whereupon the accused ran away; it was held that the facts rightly attracted conviction under Sections 376/511 of the Indian Penal Code. 77 In Khadam v. Emperor (1910) 11 Cri LJ 611 (Punj), the girl's statement as to penetration was not found safe to be acted upon, but the evidence proved that the accused had stripped her nearly naked and was lying upon her when her cries attracted people to the spot. It was held that offence fell under Sections 376/511 and not merely under Section 354, I.P.C..
78. In Shankar Tukaram Ursal v. State of Maharashtra 1977 Cri LJ 476 (Bom) also the statement of the prosecutrix as to penetration in the vulva was discarded, yet, it was found that the accused had already proceeded in the action and hence his act was punishable as an attempt to commit rape.
79. Further, it has been observed by Hon'ble Supreme Court in case of Abhayanand Mishra v. State or Bihar, AIR 1961 SC 1698 that : "There is a thin line between the preparation for and an SC No. 87/12 State Vs. Samay Singh Page No. 44 of 46 45 attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. A person commits the offence of "attempt to commit a particular offence," when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission, such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence."
80 Whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. In the present case, the testimony of victim child K has been found to be reliable and cogent. The SC No. 87/12 State Vs. Samay Singh Page No. 45 of 46 46 victim child K has withstood the test of crossexamination, despite her tender age and has clearly narrated the manner, in which, her father/accused attempted to commit rape upon her. The acts of the accused in the present case have apparently gone beyond the stage of preparation to the stage of attempt.
81 The learned counsel for accused has relied upon the judgement
(i) State vs. Sunil Gupta (ii) Lal Singh vs. State of MP and (iii) Cycil s/o Markose vs. State, however, the same are not applicable in the facts and circumstances of the present case as well as the case law discussed herein above.
82 The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has successfully proved the guilt of the accused Samay Singh on record, beyond the reasonable doubt. Accordingly, I hold guilty accused Samay Singh for the offences punishable u/s 376/511 IPC and he is convicted accordingly. The prosecution has however, failed to prove the case under Section 323/506 IPC on the accused.
(Announced in the open Court ) (Illa Rawat)
(Today on 05.07.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi.
SC No. 87/12 State Vs. Samay Singh Page No. 46 of 46
47
FIR No. 360/12
PS Mangolpuri
01.07.2014
Present: Ld. Additional PP for the State.
Accused produced from JC with counsel.
Clarifications provided.
Be listed for remaining arguments, if any, otherwise for judgment on 05.07.2014.
ASJ/NW01
Rohini/Delhi
01.07.2014
05.07.2014
Present: Ld. Additional PP for the State.
Accused produced from JC with counsel.
Arguments heard.
Vide separate judgment announced today in the open Court, accused Samay Singh has been convicted u/s. 376/511 IPC.
Be listed for arguments on the point of sentence on 08.07.2014.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 05.07.2014 SC No. 87/12 State Vs. Samay Singh Page No. 47 of 46 48 08.07.2014 Present: Ld. Substitute Additional PP for the State.
Accused produced from JC.
Accused prays for an adjournment on the ground that his counsel is not available today. Regular Additional PP is also on leave today.
In the interest of justice, be listed for arguments on the point of sentence on 10.07.2014.
ASJ/NW01
Rohini/Delhi
08.07.2014
10.07.2014
Present: Ld. Additional PP for the State.
Accused produced from JC.
The undersigned has gone to Hon'ble High Court of Delhi. Be listed for the purpose fixed on 11.07.2014.
ASJ/NW01
Rohini/Delhi
10.07.2014
11.07.2014
Present: Ld. Additional PP for the State.
Accused produced from JC with proxy counsel.
Proxy counsel prays for adjournment on the ground that the main counsel is busy in some other Court.
The undersigned is busy in recording statement of victim children in two cases bearing FIR No.151/13 PS Mangolpuri and FIR No.206/14 PS SC No. 87/12 State Vs. Samay Singh Page No. 48 of 46 49 Subhash Palace.
Be listed for the purpose fixed on 14.07.2014.
ASJ/NW01
Rohini/Delhi
11.07.2014
14.07.2014
Present: Ld. Additional PP for the State.
Accused produced from JC with counsel.
Arguments on the point of sentence heard.
Be listed for orders on the point of sentence on 15.07.2014.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 14.07.2014 SC No. 87/12 State Vs. Samay Singh Page No. 49 of 46 50 IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 87/12) Unique ID case No. 02404R0315572012 State Vs. Samay Singh FIR No. : 360/12 U/s : 376/506/511 IPC P.S. : Mangol Puri State Vs. Samay Singh S/o Chukhan Singh 15.07.2014 Present : Ld. Addl. PP for the State.
Convict produced from J.C with counsel ORDER ON THE POINT OF SENTENCE In the present case, the convict - Samay Singh has been convicted u/s 376/511 IPC for having attempted to commit rape upon his own daughter/victim K. I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. Amicus Curie for the convict.
2. It has been submitted by the Ld. Addl. PP that in the present case, convict attempted to rape his own daughter/victim child K, a minor girl aged about seven 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. SC No. 87/12 State Vs. Samay Singh Page No. 50 of 46 51
3. On the other hand, it has been submitted by the Ld. Defence counsel that the convictSamay Singh is a middle aged man and is the sole bread earner of the family. It is further submitted that convict is having clean antecedents and belongs to a lower strata of society and is first time offender and he remained in custody for a period of about two years and he prays that a lenient view may be taken in this case and he be given a chance of rehabilitation. It is further stated that convict shall be ready abide by any condition imposed by the court in this regard and some suggestions as to the conditions, which may be imposed upon the convict have been submitted in writing by learned counsel for convict.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. defence counsel and have carefully gone through the record of the case as well as suggestions regarding rehabilitative orders, which may be passed, in case, the convict is released on probation.
5. In the present case, the convict Samay Singh has been convicted for committing the offence punishable u/s- 376/511. The convict had attempted to commit rape upon his own daughter, a minor girl aged about seven years. It is relevant to mention that the victim child K was born from the first wife of the convict, who died at an early age leaving behind her 21/2 year old daughter in care and custody of the convict. The convict remarried complainant Malti and had a son from his wedlock with said Malti. These circumstances, which destiny forced upon the victim child K, ought to have made convict more sensitive and protective towards victim SC No. 87/12 State Vs. Samay Singh Page No. 51 of 46 52 K, his minor dependent daughter, but it was not so. Convict acted in utter disregard of his duty as father and sexually abused the child, who had blind faith in him and trusted him for her security and protection. The act of convict, is not only gruesome, but has had far fetched and irreparable consequences on the psychology of the victim child. In a similar situation, the Hon'ble Supreme Court in case of State Vs. Asha Ram, report in 2006 Crl.L.J. 139, has held that : "There can never be more grave and heinous crime than the father being charged of raping his own daughter. He not only delicts the law but it is a betrayal of trust. The father is the fortress and refuge of his daughter in whom the daughter trusts. Charged of raping his own daughter under his refuge and fortress is worst than the gamekeeper becoming a poacher and treasury guard becoming a robber."
6. In the above mentioned case of Asha Ram, the father Asha Ram was convicted for having raped his daughter by the trial court, but was acquitted by the Hon'ble High Court. His acquittal by Hon'ble High Court was challenged before Hon'ble Supreme Court, which set aside acquittal of accused with following observation on the quantum of punishment : ".........Here is the case where the crime committed by the respondent not only delicts the law but it has a deleterious effect on the civilized society. Gravity of the crime has to be necessarily assessed from the nature of crime. A crime SC No. 87/12 State Vs. Samay Singh Page No. 52 of 46 53 may be grave but the nature of the crime may not be so grave. Similarly, a crime may not be so grave but the nature of the crime may be very grave. Ordinarily, the offence of rape is grave by its nature. Moreso, when the perpetrator of the crime is the father against his own daughter it is more graver and the rarest of rare, which warrants a strong deterrent judicial hand. Even in ordinary criminal terminology a rape is a crime more heinous than murder as it destroys the very soul of hapless woman. This is more so when the perpetrator of the grave crime is the father of the victim girl. Father is a fortress, refuge and the trustee of his daughter. By betraying the trust and taking undue advantage of trust reposed in him by the daughter, serving food at odd hours at 12.30 a.m., he ravished the chastity of his daughter, jeopardized her future prospect of getting married, enjoying marital and conjugal life, has been totally devastated. Not only that, she carries an indelible social stigma on her head and deathless shame as long as she lives."
7. In the present case, the testimony of the victim child K clearly brings out her plight and agony. It is noteworthy that due to the acts of the convict, the victim child has not only suffered irreparable loss and mental agony, but also had her faith and trust in a person closest to her shaken, thus, no leniency is called for in the matter. I hereby sentence convict SC No. 87/12 State Vs. Samay Singh Page No. 53 of 46 54 Samay Singh to undergo rigorous imprisonment of 5 (five) years for having committed offences punishable u/s 376/511 IPC. I further impose a fine of Rs. 5,000/ on convict, in default of payment of fine to further undergo simple imprisonment for three month, for the offence punishable, u/s 376/511 IPC.
Benefit u/s 428 Cr.PC be also given to the convict.
8. Coming now to the aspect of compensation to the victim, perusal of the record shows that interim compensation of Rs. One lakh, has already been awarded to the victim by this court on 10.04.2013. The compensation amount of Rs. 1,00,000/ (Rs. One lacs only) stands disbursed to the victim K, through the concerned Distt. Child Protection Unit. The rehabilitative process of the victim and her family had already commenced, pursuant to the order dated 10.04.2013 passed by this court and her brother has also been admitted to school. The mother of victim K is received vocational training and has already been enrolled in Adult Education Program. In these facts and circumstances, the compensation of Rs. 1,00,000/, which has already been granted to the victim and other rehabilitation measures directed for the aid of and having availed by the victim are considered sufficient in the facts and circumstances of the case and hence, no further compensation is required.
9. 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, SC No. 87/12 State Vs. Samay Singh Page No. 54 of 46 55 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 15.07.2014) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
SC No. 87/12 State Vs. Samay Singh Page No. 55 of 46