Delhi District Court
State vs . (1) Sabhajeet Maurya on 14 September, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE
II (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 43/2012
Unique Case ID No.: 02404R0087532012
State Vs. (1) Sabhajeet Maurya
S/o Sh. Rajdev
R/o 902/290,
Village Shalimar Bagh,
Gali No.4, Near Shish Mahal
Park, Delhi
(Convicted)
(2) Ashutosh Maurya
S/o Sh. Jai Prakash Maurya
R/o Village Chaudah Paras,
PO Ambarpur,
Distt. Ambedkar Nagar,
Uttar Pradesh
(Acquitted)
FIR No.: 281/2011
Police Station: Shalimar Bagh
Under Sections: 313/376 Indian Penal Code
Date of committal to Session Court: 5.6.2012
Date on which orders were reserved: 16.8.2012
Date on which judgment announced: 27.8.2012
St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 1
JUDGMENT:
(1) As per the allegations between 1.4.2011 to 5.8.2011 at House No. 902/290, Gali No.2, Village Shalimar Bagh, Delhi the accused Sabhajeet Maurya continuously committed rape upon his step daughter 'P' (name of the prosecutrix is being withheld as this is a case under Section 376 Indian Penal Code) aged about 15 years. Further, it has been alleged that the accused Sabhajeet Maurya being HIV Positive committed rape upon his step daughter 'P' and infected her with the same disease i.e. HIV/ AIDS with such intention or knowledge and under such circumstances that if by his act he caused the death of 'P' he would have been guilty of murder. It is also alleged that on 5.8.2011 at about 6:00 AM the accused Sabhajeet Maurya gave five tablets to the prosecutrix 'P' thereby caused miscarriage of 'P'.
CASE OF THE PROSECUTION/ BRIEF FACTS:
(2) The case of the prosecution is that on 5.8.2011 at about 4:30 PM Smt. Swati Sharma from NGO Pryas came to the Police Station Shalimar Bagh along with the prosecutrix 'P' and handed over one UPT Positive Kit dated 3.8.2011 with one prescription/ observation of Dr. Anita Harish and four medical documents of BSA Hospital to SI Durga Kapri. Swati Sharma also made an application to the SHO for registration of the case. SI Durga Kapri examined the prosecutrix 'P' who made allegations against her step father about rape.
St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 2 (3) In her statement to the police the prosecutrix 'P' stated that her mother had expired in January 2011 and since April 2011 her step father Sabhajeet had continuously committed rape upon her. According to the prosecutrix, her stepbrother Suraj aged about 6 years was also HIV Positive and was getting treatment from Sneh Sadan, Khera Khurd being admitted there. She has further stated that on 3.8.2011 she was at Sneh Sadan to take care of her brother Suraj when she fell ill and started vomiting on which the Doctors gave her treatment and it was then that she came to know that she was pregnant. The prosecutrix further informed the police that she was admitted for treatment at Sneh Sadan for two days and on 5.8.2011 in the morning at about 6:00 AM her step father Sabhajeet Maurya came to the hospital and gave her five pills/ tablets after which she started bleeding. She further informed the Investigating Officer that her step father Sabhajeet had committed rape on her for the first time in the month of April 2011 when her siblings were sleeping in the room and thereafter he was continuously raping her. The prosecutrix further told the Investigating Officer that she was handed over to Swati Mam who brought her to the Police Station.
(4) On the basis of the statement of the prosecutrix 'P' the present case was got registered after which the medical examination of the prosecutrix was got done from the BJRM Hospital. On 6.8.2011 the Investigating Officer SI Durga Kapri went to the BJRM Hospital and recorded the statement of the prosecutrix 'P' wherein she named one St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 3 Ashutosh Maurya as the person with whom the talks of her marriage were going on. Thereafter on 12.8.2011 Sabhajeet Maurya the step father of the prosecutrix and Ashutosh Maurya came to the Police Station and after taking the permission from the Court, the DNA samples of both the accused were taken. On 23.12.2011 the statement of the prosecutrix was recorded under Section 164 Cr.P.C. wherein she named the accused Ashutosh Maurya as the person with whom she was in love and had made physical relations with her. Thereafter on 29.12.2011 the DNA Finger Printing Report was collected after which she reached the house of the accused Sabhajeet and arrested him. However, the accused Ashutosh Maurya was put in Column No.2. After completion of investigations charge sheet was filed in the Court.
CHARGE:
(5) Charges under Sections 376/307/313 Indian Penal Code were settled against the accused Sabhajeet Maurya to which he pleaded not guilty and claimed trial. Further, charge under Section 376 Indian Penal Code was also settled against the accused Ashutosh Maurya to which he pleaded not guilty and claimed trial.
EVIDENCE:
(6) In order to prove its case the prosecution has examined as many as Fourteen Witnesses as under:
St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 4
Public witnesses/ victim:
(7) PW7 Ms. Swati Sharma has deposed that in the year 2011 she was working as a Project Manager with Child Line, Prayas NGO and on 05.08.2011 at about 11:30 AM she received information from Sneh Sadan, Khera Khurd, NGO, Delhi about admission of a girl aged 15 years 'P' as the doctor informed her that she (prosecutrix) was sexually abused by her step father and thereafter, she immediately went to Sneh Sadan, Khera Khurd, Delhi where Dr. Anita and Dr. Sheela met her there.
She has further deposed that she also talked with the victim 'P' who told her that her mother had already been expired and her step father who was HIV positive sexually abused her. The witness has testified that doctor handed over a UPT kit, prescription slip and report with some documents to her and thereafter, they reached at Police Station Shalimar Bagh where she made a written complaint to SHO Police Station Shalimar Bagh vide Ex.PW7/A. She has also deposed that SI Durga interrogated victim 'P' and recorded her statement and thereafter, police took the victim to the BJRM hospital and she also accompanied them and after her medical examination the victim 'P' was admitted in the BJRM hospital. The said witness has not been crossexamined by the Ld. Counsels and her testimony has gone uncontroverted.
(8) The prosecutrix 'P' has been examined as PW8. She has deposed that the name of her deceased mother was Rita and the name of St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 5 her father was Sanjay who had expired long back and the accused Sabhajeet is her step father. According to the witness, they are two sisters from the first father and her younger sister's name is Aarti whereas her younger brother Sunny was from the step father. She has deposed that her mother expired in January 2011 and at the time of the death of her mother they used to reside with their step father at Village Shalimar Bagh, Shish Mehal Park, Gali No.4 and she used to take care of the household affairs. The witness has also deposed that in April, 2011 after the death of her mother, her step father started doing Jabardasti with her. On a specific Court Question the witness clarified that her step father started making physical relations with her forcibly (Sharirik Sambandh Banane Shuru Kar Diye). According to the prosecutrix, it all started in April, 2011 and since there was no one to support her she initially had not disclosed this fact to anybody but later on she confided it to some neighbours who did not believe her and told her that when Sabahajeet (whom she has correctly identified in the Court) was treating her like a daughter how could he do this (Jab Wo Tumhe Beti Ki Tarah Manta Hai To Aise Kaise Kar Sakta Hai?). The witness has further deposed that in the meanwhile, her younger brother Suraj was detected with HIV disease and Sabhajeet used to take him frequently to the hospital and also got him admitted at Khera Hospital from there he was sent to Sneh Sadan and she was told to accompany Suraj to take care of him. She has also deposed that St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 6 when she was taking care of his younger brother Suraj in the hospital, she suddenly started vomiting there. She has further deposed that she had not told the accused about the same but he came to know that she was vomiting on which he gave her some medicines after two days in the hospital itself. According to the prosecutrix, on 05.08.2011 Swati Mam had come to Sneh Sadan as she had confided this fact to the doctors at Sneh Sadan about what Sabhajeet had done to her and also the fact that he had given her some pills/ tablets and after she was administered the said pills she started bleeding. The witness has further deposed that she also gave them in writing about whatever had happened with her vide Ex.PW6/A and also told the doctors that she did not want to go back home. She has testified that on 5.8.2011 Swati Mam had come to Sneh Sadan after which she told her whatever had happened with her after which she along with Swati Mam went to police station Shalimar Bagh where she disclosed to the police officials what had transpired with her on the basis of which her statement was recorded which statement is Ex.PW8/A. She has further deposed that thereafter she was taken to hospital where she was got medically examined and she remained admitted there for some time where she was given medical treatment and thereafter, she was discharged from the hospital on 09.08.2011. According to her, after her discharge she went along with her Mama (maternal uncle) to his house. The witness has further testified that on 09.10.2011 site plan/ Naksha of the place where they used to stay and where the incident had taken place was got prepared by the Investigating St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 7 Officer on her pointing out after which she went to the village. She has proved that later on in the month of December, she came to the Court and made statement to the Ld. M.M. under Section 164 Cr.P.C. which statement is Ex.PW8/B. The witness has testified that in the said statement she had named Ashutosh as the accused because her Chacha (paternal uncle) had threatened her (Daraya Dhamkaya Tha) and had told her that if she would name Ashutosh, then Sabhajeet would be saved and would marry her with Ashutosh.
(9) This Court told the prosecutrix to state the truth and on this she informed the Court that it was Sabhajeet who had done galat kaam with her and Ashutosh (whom she has correctly identified in the Court) was her friend and there were no physical relations between them. She again informed that she had taken the name of Ashutosh only on the asking of her Chacha/ paternal uncle. On a further Court Question the prosecutrix has explained that she was staying with Ashutosh because her Mama had five children and was unable to take care of her. Further, she informed that she was staying with Ashutosh and they would get married after about two to three years because she was still a minor aged around 16 years. (10) In her cross examination, the witness has admitted that till the time before the death of her mother, Sabhajeet used to take care of her and her other sister and there were no complaints. She has also admitted that even after the death of her mother Sabhajeet used to take care of her and her sister. According to the witness, Mehmood was the neighbour to whom St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 8 she had disclosed about Sabhajeet and has voluntarily explained that at the time of the incident they were staying in two rooms and Mehboob and his family used to reside in the adjoining room and she had disclosed this to his wife and Mehboob knew about the same. The witness has further testified that she had told the police that she had disclosed this fact regarding her sexual exploitation by the accused Sabhajeet to the neighbours but they refused to believe the same. When confronted with her statement Ex.PW8/A this fact was not found recorded in the same but was found mentioned in her statement under Section 161 Cr.P.C. recorded later on which is Ex.PW8/DX1. She has denied the suggestion that she had not disclosed this fact regarding her sexual exploitation to the neighbours and further denied that she was having affair with Ashutosh which was objected to by the accused Sabhajeet on account of which she has falsely implicated Sabhajeet. She has further denied the suggestion that she had named accused Sabhajeet in the present case on the asking of the coaccused Ashutosh and her other family members including Mama. She has further denied that the accused Sabhajeet is innocent. Medical witnesses:
(11) PW6 Dr. Anita Harish Medical Officer of Child Survival India, Sneh Sadan, Community Care Center, Village Khera Khurd, Delhi has deposed that on 03.08.2011 the prosecutrix 'P' aged 15 years, female was brought at said Community Care Center by her step father Sabhajeet St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 9 with complaints of repeated vomiting for last ten days and vaginal warts for three four months and ammonerrhoea for six weeks and the last mensuration date since 23.06.2011. According to her, the girl/ child confided in the nurse attending to her that her step father had been repeating making physical relations with her and sexually abusing her in front of her siblings as they were staying in one room and this he was doing after the death of her mother in the February, 2011 who had expired on account of HIV AIDS. She also told the nurse that her step father used to give her pills for abortion. The witness has testified that while the child was still in community center and they were attending to her, the step father Sabhajeet taking advantage of the absence of nurse who left the child unattended for sometime, slapped her and gave her some pills and left, after which the child (prosecutrix) immediately pointed this out to them. According to the witness, on coming to know of this they immediately informed the Child Line and the child (prosecutrix) also gave these details to them (Child Line) in writing, copy of which they handed over to the representative of the NGO which is Ex.PW6/A. She has also deposed that the UTP of the child was done and the exhibits were collected, sealed with the seal of the hospital which envelop is Ex.PW6/B and which they handed over to Swati Sharma from Child Line. The witness has also deposed that the girl/ child did not want to go back home due to which reason they handed over the child to the St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 10 Child Line/ NGO. She has proved having prepared her detailed report which is Ex.PW6/C. According to her, the prosecutrix 'P' and her step father handed over four documents of BSA Hospital to them and they handed over those documents to Swati Sharma along with her report. The witness has also deposed that the prosecutrix 'P' as well as her younger sister aged eight years were tested for HIV keeping in view the history of the family as the mother of the children had expired on account of HIV/ AIDS and the step father Sabhajeet was also positive along with a younger sibling born out of Sabhajeet and the natural mother of the children. Both 'P' and her younger sister at that time tested negative for HIV. On a specific Court Question the witness has deposed that the prosecutrix 'P' tested negative for HIV but that does not mean that the HIV virus has not infected her and has voluntarily added that she could be in the window period and another HIV testing is required after three months.
She has explained that the HIV virus starts showing up after about three to six months and also depends upon the immunity level of the victim. In her cross examination, the witness has deposed that the alleged history was given to them by the victim 'P'.
(12) PW11 Dr. Meenakshi Bansal has deposed that on 05.08.2011 she was posted at BJRM Hospital and on that day the prosecutrix 'P' d/o Sabhajeet Maurya, aged 15 years female was brought at BJRM Hospital by WCt. Parul and Swati Sharma of Prayas NGO. According to her, Dr. Meet St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 11 medically examined the prosecutrix at the Casualty of the hospital and prepared the MLC No. 29636 which is Ex.PW11/A and referred the prosecutrix for Gyane department for medical examination and for further management. She has also deposed that in the Gyenae department she medically examined the above said prosecutrix 'P' with alleged history of repeated sexual assault by her step father since three months and last assault was about 20 days back. The patient further informed her that the step father was VcTc positive (HIV) and that her mother was also VcTc positive (HIV) and had expired in January 2011. She has further deposed that the patient also disclosed that she has a step brother who was VcTc positive and was admitted in the hospital. According to the doctor after the medical examination of the patient she gave her detailed observations from point X to X of Ex.PW11/A and Swati of NGO of Prayas and Lady Ct. Parul put her signatures. According to the witness, during examination of the prosecutrix her last menstrual period was on 23.06.2011 and UPT was positive on 03.08.2011 which had been done in Sneh Sadan. She has testified that on examination the vitals of the patient were stable and on local examination hymen was torn. The witness has also deposed that there were no sign of injuries seen and introits admitted two fingers and on perspeculam examination; there was no bleeding and on per vaginal examination uterus was ante verted just bulky to normal size and the examining finger was stained with blood but os was closed. The witness St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 12 has testified that the patient 'P' was admitted in the ward for further management. PW11 Dr. Meenakshi Bansal has also proved the handwritings and signatures of Dr. Kalpana which are at encircled portion from point Y to Y1 of Ex.PW11/A according to which observations the patient underwent dilatation and evacuation on 09.08.2011. She has further deposed that the products of conception were obtained and sent for histopathological examination and forensic examination on 09.08.2011 and the patient was discharged on 09.08.2011 at about 7.00 PM and samples were handed over to HC Usha. She has also proved the discharge summary Ex.PW11/B prepared by Dr. Kalpana.
(13) PW12 Dr. Seema has proved the MLC No. 29636 of the prosecutrix 'P' d/o Subhajeet Maurya, 15 years, female dated 05.08.2011 prepared by Dr. Meet in the Casualty according to which MLC the prosecutrix 'P' was brought at the hospital with alleged history of sexual assault and no fresh injury was seen at the time of examination. She has also deposed that the patient was referred to Gynae Department for further examination and management. According to her, the MLC No. 36146 of Sabhajeet S/o Raj Dev, 40 years, male, dated 29.12.2011 was prepared by Dr. Subhash Singh at the Casualty as he was brought for the medical examination by Ct. Vergil and Dr. Subhash Singh prepared the MLC Ex.PW12/A and the patient was examined under supervision of Dr. Meet according to which no fresh external injury seen. There was amputation of St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 13 left forearm and the patient was referred to the surgery department for further examination. She has testified that in the Surgery Department Dr. Shailesh Kumar medically examined the patient Sabhajeet and gave his observation from point X to X1 according to which MLC no fresh external injury were seen. She has also deposed that Dr. Shailesh opined that there was no external genitalia infirmity suggestive to rule out that the patient was not capable of sexual assault. She has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard and her testimony has gone uncontroverted.
Forensic (Expert) Witness:
(14) PW13 Dr. A. K. Srivastava Deputy Director (Biology), DNA Unit, FSL, Rohini has deposed that on 11.08.2011 one sealed cloth parcel sealed with the seal of MS BJRM H J PURI DELHI was received in connection with FIR No. 281/11 dated 05.08.2011 under Section 376 Indian Penal Code, Police Station Shalimar Bagh which parcel was containing two small pieces of flesh which were marked as Ex.1A and some flesh marked as Ex.1B. He has further deposed that on 12.08.2011 blood sample of Sabhajeet and Ashutosh Maurya were collected in FSL, DNA Unit in presence of SI Durga Kapri, Investigating Officer of the case and Ct.
Pradeep with the consent of both the persons which were marked as Ex.2 and Ex.3 respectively. According to the witness, Ex.1A, Ex.1B, Ex.2 and Ex.3 were subjected to DNA Isolation and DNA was isolated from the St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 14 source of Ex.1A, Ex.1B, Ex.2 and Ex.3 after which DNA profile was prepared of these exhibits. He has proved that STR (Short Tendum Repeat) Analysis was used for the samples and data was analysed by using Gene Mapper IDX Software. The witness has also proved that one set of alleles from the source of Ex.2 (blood sample of Sabajeet) were accounted in the alleles from the source of Ex.1A (two small piece of flesh) and one Ex.1B(some flesh). However the alleles from the source of Ex.3 (blood sample Ashutosh Maurya) were not accounted in the alleles from the source of Ex.1A and Ex.1B. According to the witness, the DNA finger printing performed on the exhibits was sufficient to conclude that the source of Ex.2 (blood sample of Sh. Sabhajeet) is the biological father of the source of Ex.1A (two small pieces) and Ex.1B (some flesh). He has proved his detailed DNA Finger Printing Report which is Ex.PW13/A. The witness has also proved the identification form of Sabhajeet which is Ex.PW13/B and identification form of Ashutosh Marya which is Ex.PW13/C which were prepared during the above said DNA Finger Printing Test. The said witness has not been crossexamined by the Ld. Defence Counsels and his testimony has gone uncontroverted. Police/ Official witnesses:
(15) PW1 HC Usha is a formal witness who has been examined by way of affidavit as per the provisions of Section 296 Code of Criminal St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 15 Procedure which affidavit is Ex.PW1/1. She has deposed that on 9.8.2011 when she was posted at Police Station Shalimar Bagh she was entrusted the duty of taking care of the prosecutrix 'P' who was admitted in the Gynae Ward of BJRM Hospital. According to the witness, the doctor discharged the prosecutrix and handed over to her the discharge slip along with one sample PO C's duly sealed with the seal of MS BJRM H J PURI DELHI and one sample seal. The witness has further deposed that she accordingly informed the Investigating Officer SI Durga Kapri who came to the hospital and she (witness) handed over the Discharge Slip of the prosecutrix along with sample PO C's duly sealed to the Investigating Officer which were seized by the Investigating Officer vide memo ExPW1/A. She has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard and her testimony has gone uncontroverted.
(16) PW2 HC Pawan Kumar is also a formal witness being the Duty Officer who has been examined by way of affidavit as per provisions of Section 296 Code of Criminal Procedure which affidavit is Ex.PW2/1.
He has deposed that on 5.8.2011 when he was posted as Duty Officer, at about 8:00 PM SI Durga Kapri handed over a rukka to him. According to the witness, on the basis of the said rukka he recorded the Kayami in Daily Diary Register vide DD No. 25A and got the FIR register through Computer Operator vide FIR No. 281/11, under Section 376 IPC copy of St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 16 which is Ex.PW2/A. He has proved having made an endorsement on the rukka which is Ex.PW2/B. The witness has further deposed that after registration of the FIR, he sent the original rukka and computerized copy of the FIR to SI Durga Kapri through HC Dalbir. He has not been cross examined by the Ld. Defence Counsels and his testimony has gone uncontroverted.
(17) PW3 HC Mukesh Chand is also a formal witness being the MHCM who has been examined by way of affidavit as per provisions of Section 296 Code of Criminal Procedure which affidavit is Ex.PW3/1. He has deposed that on 9.8.2011 when he was posted as MHCM at Police Station Shalimar Bagh, Investigating Officer SI Durga Kapri deposited one sealed exhibit with the seal of MS BJRM Hospital along with the sample seal in the Malkhana pursuant to which he made an entry bearing No. 3753/11 in Register No.19 copy of which is Ex.PW3/A (running in two pages). He has further deposed that on on 11.8.2011 he handed over the above said exhibit with sample seal to SI Durga Kapri vie RC No. 63/21/2011 to deposit the same in the FSL Rohini for DNA Test, copy of which RC No. 63/21/11 is Ex.PW3/B. According to him, SI Durga Kapri handed over to him the copy of RC No. 63/21/11 along with the copy of FSL acknowledgment slip which is Ex.PW3/C. He has proved that he kept the exhibit in his safe custody till they remained in the Malkhana. The witness has also testified that on 29.12.2011 SI Durga Kapri handed over to St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 17 him the Jamatalashi articles and he made an entry in this regard in the Register No.19 vide Mud No. 4222/11 as per the seizure memo. He has not been crossexamined by the Ld. Defence Counsels and his testimony has gone uncontroverted.
(18) PW4 HC Dalbir Singh is a formal witness who has been examined by way of affidavit as per provisions of Section 296 Code of Criminal Procedure which affidavit is Ex.PW4/1. He has deposed that on 5.8.2011 when he was posted at Police Station Shalimar Bagh, the Duty Officer HC Pawan Kumar handed over him one original rukka and computerized copy of FIR which he handed over to SI Durga Kapri at the place of occurrence i.e. Gali No.4, Plot No.902/290, Shalimar Bagh, Delhi at about 8:50 PM. According to the witness, thereafter he joined the investigations of the case along with the Investigating Officer during which they made search of the accused Sabhajeet Maurya, the step father of the prosecutrix but he could not be found present at the said address. According to him, on local inquiry it was revealed that the accused Sabhajeet was sick and had gone somewhere to take his medicine. The witness has further deposed that the Investigating Officer gave directions to some public persons and returned back to the Police Station along with staff.
(19) In his cross examination, the witness has deposed that some public persons informed him that Sarabjeet Maurya was sick and had gone somewhere for medical treatment but he is unable to tell the name of the St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 18 public persons who gave their statements. He has further deposed that the Investigating Officer had not recorded the statements of the public persons in his presence. He has denied the suggestion that he had filed the affidavit of evidence in routine or that he was not present at the spot. (20) PW5 Ms. Rita Jain School Incharge, MCD Primary School, Shalimar Bagh, Delhi has brought the summoned record pertaining to the admission of prosecutrix 'P' D/o Sabhajeet and Smt. Reeta. She has proved that the prosecutrix was admitted in the school on 20.07.2007 in class II and her date of birth as per the school record is 14.08.97. According to her, thereafter she passed her class V in 2010 and was issued the transfer certificate from the school on 23.07.2010. She has placed on record the copy of the admission register which is Ex.PW5/A showing the relevant entry at point A; copy of the admission form given by the mother which is Ex.PW5/B and copy of the declaration which is Ex.PW5/C. She has further deposed they had issued the certificate to the Investigating Officer which is Ex.PW5/D which has been signed by the principal Smt. Roshni Devi whose signatures she identified having seen her writing and signing in official course. On a specific Court Question the witness has explained that the date of birth mentioned in school record, was on the basis of the declaration made by the mother of the child.
(21) PW9 W Ct. Parul is a formal witness having joined the investigations with the Investigating Officer who has been examined by St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 19 way of affidavit as per provisions of Section 296 Code of Criminal Procedure which affidavit is Ex.PW9/1. She has deposed that on 5.8.2011 when she was posted at Police Station Shalimar Bagh, as per the direction of the Investigating Officer she took the prosecutrix for her medical examination to BJRM Hospital in her safe custody. She has testified that on the request of the Investigating Officer the medical examination of the prosecutrix was conducted by the doctor in the presence of Ms. Swati Sharma representative of the NGO and after medical examination the doctor advised to admit the prosecutrix in Gynae Ward of the hospital. She has also deposed that she handed over the MLC of the prosecutrix to the Investigating Officer SI Durga Kapri who as per the directions of the Doctor admitted the prosecutrix 'P' in the Gynae Ward. She has further deposed that on the directions of the Investigating Officer she remained in the hospital for the care and protection of the prosecutrix in the intervening night of 56.8.2011.
(22) In his cross examination, the witness has deposed that apart from the representatives of the NGOs there was no other persons from the family of the prosecutrix when she was taken to the hospital. She is unable to tell the time when they reached the hospital and has voluntarily deposed that it was in the evening. She has further deposed that they stayed in the hospital throughout the night and has voluntarily stated that the prosecutrix was discharged after two to three days as per her knowledge but she is not sure. The witness has also deposed that during the time she stayed in the St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 20 hospital nobody from the family of the prosecutrix came. (23) PW10 Ct. Varjil has deposed that on 29.12.2011 he was posted as Constable at Police Station Shalimar Bagh and on that day he joined the investigation in the present case along with Investigating Officer SI Durga Kapri when they went to Shalimar village in a gatta factory situated at Gali No.4. He has further deposed that on the third floor, Sabhajit Maurya was residing and they went to his room where they found the accused after which the accused was arrested vide memo Ex.PW10/A and his personal search was conducted vide memo Ex.PW10/B. According to the witness, the Investigating Officer interrogated the accused wherein he admitted his involvement in this case and disclosed that he had purchased the pills/ tablets from Om Medicos and administered the same to his daughter 'P' which disclosure statement of the accused is Ex.PW10/C. He has testified that thereafter the accused was taken to the BJRM hospital where his medical examination was got conducted. He has correctly identified the accused Shabhajit in the Court.
(24) In his cross examination, the witness has deposed that the prosecutrix was not present at the time of the arrest of accused Sabhajit and it was the Investigating Officer who had identified the accused Sabhajit. He has denied the suggestion that the accused Sabhajit had not made any disclosure statement or that the same had been recorded by the Investigating Officer of her own only to work out the present case. He has St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 21 denied the suggestion that accused Sabhajit had been falsely implicated. (25) PW14 SI Durga Kapri is the Investigating Officer of the present case who has deposed that on 05.08.2011 she was posted in the Sub Division, Shalimar Bagh in the Rape Cell and on that day at about 4.30 PM she was present at Police Station Shalimar Bagh when one Swati Sharma of NGO Prayas came to the police station along with prosecutrix 'P'. According to the witness, Swati Sharma handed over one UPT positive kit dated 03.08.2011 Ex.PW6/B of 'P' with one prescription/ observation of Dr. Anita Harish Ex.PW6/C and four medical documents of BSA Hospital Ex.PW14/A1 to Ex.PW14/A4 to her. She has testified that Swati Sharma also made an application to the SHO Police Station Shalimar Bagh and handed over to her after which she examined the prosecutrix wherein she made allegations against her step father Sabhajeet Maurya about rape. The witness has has further deposed that she recorded the statement of the prosecutrix in detail vide Ex.PW8/A. According to her, thereafter she along with the prosecutrix 'P' in the custody of lady Ct. Parul and Swati Sharma reached at BJRM Hospital, Delhi where her medical examination was conducted and was admitted in the hospital after which she obtained the MLC of the prosecutrix. She has proved having prepared the rukka which is Ex.PW14/B and on her direction Duty Officer recorded FIR No. 281/11 on the basis of above said statement of prosecutrix and rukka. She has testified that thereafter she reached at the place of incident where she St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 22 came to know there that Sabhajeet had gone to take his medicine as he was sick and meanwhile HC Dalbir came there who handed over copy of FIR and original rukka to her after which they returned back to the police station and she recorded statement of witnesses. The witness has also deposed that on 06.08.2011 she again went to the BJRM Hospital and recorded statement of the prosecutrix in the hospital. She has stated that on 09.08.2011 the prosecutrix was discharged from the hospital after which she (witness) reached the Hospital where Lady HC Usha handed over the discharge slip and exhibits POC along with sample seal to her in sealed condition with the seal of MS BJRM H J PURI DELHI which she seized vide seizure memo Ex.PW1/A. She has further deposed that the prosecutrix was handed over to her Mama Rajender Maurya vide Ex.PW14/C and thereafter she returned back to the police station where she deposited the exhibits in the Malkhana. According to her, on 11.08.2011 she took exhibits from the MHC(M) and deposited the same in the FSL Delhi in the DNA Unit. The witness has also deposed that on 12.08.2011 Sabhajeet step father of the prosecutrix and Ashutosh (boy friend of the prosecutrix) came at the police station and thereafter she took both of them to DNA Unit, FSL Delhi for DNA Finger Printing Test with the permission of the court on her application which is Ex.PW14/D. She has also deposed that in the DNA Unit of FSL the identification form of Sabhajeet was prepared vide Ex.PW13/B and identification form of St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 23 Ashutosh Maurya was also prepared which is Ex.PW13/C after which the blood samples of both the accused persons were collected by the officials of FSL, Delhi. She has testified that on 23.12.2011 she moved an application for recording of the statement of the prosecutrix 'P' vide Ex.PW14/E and on that day the statement of the prosecutrix under Section 164 Code of Criminal Procedure was recorded by the Ld. MM Ms. Vandana at Rohini Courts. She has proved having obtained the copy of statement on her application Ex.PW14/F. The witness has also deposed that on 29.12.2011 she collected the DNA Finger Printing Test Report which is Ex.PW13/A and thereafter she reached at the house of Sabhajeet along with Ct. Verjil where she arrested the accused Sabhajeet Maurya step father of the prosecutrix vide Ex.PW10/A and his personal search was taken vide Ex.PW10/B. According to her, she interrogated the accused and recorded his confessional statement which is Ex.PW10/C wherein the accused confessed that he had committed rape with the prosecutrix 'P' and he had also given pills to her forcibly for abortion which pills he had purchased from the chemist. The witness has further deposed that thereafter the accused Sabhajeet Maurya was taken to BJRM Hospital for his medical examination and she collected his MLC. The Investigating Officer SI Durga Kapri has further deposed that during her investigations on 12.08.2011 she along with the prosecutrix reached at the spot of incident at the H.No. 902/290 Gali No.4, Village Shalimar Gaon where she St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 24 prepared the site plan Ex.PW14/G at the instance of the prosecutrix. She has proved that during her investigation she also collected the age documents Ex.PW5/D and other documents in respect of the prosecutrix on her application Ex.PW14/H. The witness has also deposed that during investigations the prosecutrix 'P' produced some age documents in respect of her age of primary school at Tohari, District Ajamgarh but the principal of the school informed her that the documents Marked A and Marked B had not been issued by them vide Ex.PW14/I. She has proved that she recorded statement of witnesses and after completion of investigations she filed the charge sheet against accused Sabhajaeet and also filed the charge sheet against Ashutosh Maurya without his arrest. She has correctly identified both the accused Sabhajeet and Ashutosh in the Court. (26) In her cross examination the witness has denied the suggestion that she had not made any inquiries from the maternal family of the prosecutrix and has voluntarily stated that she had made inquiries from maternal uncle/ Mama of the prosecutrix but he refused to believe the allegations made. She has further deposed that she had also made inquiries from the neighbour Mehboob but he too refused to believe the allegations. The witness has admitted that during investigation she came to know that the prosecutrix was having an affair with accused Ashushosh to which accused Sabhajeet objected to and has voluntarily stated that it is only after the DNA Finger Printing Report that the allegations against against St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 25 Sabhajeet were found to be correct and they arrested him. She has denied the suggestion that she tampered with the exhibits handed over to her by the hospital which were sent to FSL for DNA examination or that the accused Sabhajeet had not made any disclosure statement and she recorded the same of her own only to work out the present case. She has further denied the suggestion that accused Sabhajeet had been falsely implicated by her at the instance of coaccused Ashutosh.
STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(27) After completion of the prosecution evidence, the statements of both the accused were recorded under Section 313 Code of Criminal procedure wherein all the incriminating evidence was put to them which they have denied. The accused Sabahajeet Maurya has stated that he is innocent and has been falsely implicated in the present case. According to him, he had done nothing wrong to the prosecutrix 'P'. The accused Ashutosh Maurya has stated that he is innocent and has been falsely implicated in the present case. According to Ashutosh, the prosecutrix 'P' has not said anything against him and he has nothing to do with the alleged incident. Both the accused have preferred not to lead any defence evidence.
FINDINGS:
(28) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also gone St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 26 through the written synopsis/ memorandum of arguments filed on behalf of the accused persons and the evidence on record. My findings are as under:
Identity of the accused:
(29) In so far as the identity of both the accused Sabhajeet Maurya and Ashutosh Maurya is concerned, the same is not disputed. Sabhajeet Maurya is the step father of the prosecutrix and had been specifically named in the FIR. Ashutosh Maurya is the friend of the prosecutrix with whom the prosecutrix is presently residing and is likely to marry. Further, both the accused Sabhajeet Maurya and Ashutosh Maurya have been correctly identified by the prosecutrix in the Court. In view of the above, I hereby hold that the identity of both the accused stands established.
Age of the prosecutrix:
(30) PW5 Mr. Rita Jain, School Incharge, MCD Primary School, Shalimar Bagh has duly proved the school record according to which the prosecutrix was admitted in the school on 20.7.2007 in Class 2nd and her date of birth is 14.08.1997. She has proved the admission register which is Ex.PW5/A; copy of the admission form given by the mother which Ex.PW5/B; copy of the declaration which is Ex.PW5/C and the certificate issued to the Investigating Officer which is Ex.PW5/D. The aforesaid school record has gone uncontroverted and therefore, it has been proved that the date of birth of the prosecutrix is 14.08.1997 thereby showing that St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 27 the prosecutrix 'P' was aged around 14 years at the time of the incident, which aspect has not been otherwise disputed by the accused. Medical Evidence:
(31) PW6 Dr. Anita Harish, Medical Officer of Child Survival India, Sneh Sadan, Community Care Center, Village Khera Khurd, Delhi is the most important witness of the prosecution who was the first in whom the prosecutrix had confided and it was with her initiative that the present case could be registered against the accused.
(32) She has proved that on 03.08.2011 the prosecutrix 'P' aged 15 years, was brought to her by her step father Sabhajeet with complaints of repeated vomiting for about ten days and vaginal warts for three four months and ammonerrhoea for six weeks and the last mensuration date since 23.06.2011. She has also proved that the prosecutrix 'P' confided in the nurse attending to her that her step father had been repeatedly making physical relations with her and gave her pills for abortion after the death of her mother in February, 2011 on account of HIV AIDS.
She has further proved that while they were attending the prosecutrix at the Community Center, the accused taking advantage of the absence of Nurse forcibly administered pills to her (prosecutrix) which fact was immediately brought to their notice by the prosecutrix (also in writing) on which they immediately got in touch with the Child Line after which Ms. Swati Sharma came from NGO Prayas and after speaking to the St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 28 prosecutrix, took her to the Police Station. Dr. Anita Harish has also proved that the UPT of the prosecutrix was done after which the exhibits were collected and sealed in the hospital vide envelope Ex.PW6/B which was handed over to the Child Helpline. She has further proved that keeping in view the family background of the prosecutrix since her mother had expired of HIV/ AIDS and her step father as well as step brother Suraj were HIV Positive, the HIV examination of the prosecutrix and her younger sister was also got done but they both tested negative for HIV. On a specific question by the Court she has explained that merely because the prosecutrix tested negative for HIV does not mean that HIV virus has not infected her and it is possible that she could be in the window period. She has further explained that another HIV testing would be required since the HIV virus starts showing up after about three to six months or even more depending upon the immunity level of the victim. (33) PW11 Dr. Meenakshi Bansal has proved the MLC of the prosecutrix 'P' which is Ex.PW11/A. She has proved that on 05.08.2011 she had medically examined the prosecutrix who had been repeatedly sexually assaulted by her father since three months and last assault was about 20 days back and the patient further informed that the step father is VcTc positive (HIV); her mother was also VcTc positive who died in January, 2011 and her step brother was VcTc positive and was admitted in the hospital. She has also proved her detailed observations from point X to St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 29 X of Ex.PW11/A. She has further proved that during examination of the prosecutrix, her last menstrual period was on 23.06.2011 and UPT was positive on 03.08.2011 done in Sneh Sadan and on examination patients vitals were stable and on local examination hymen was torn. She has further deposed that there were no sign of injuries seen and introits admitted two fingers and on perspeculam examination there was no bleeding and on per vaginal examination uterus was anteverted just bulky to normal size and the examining finger was stained with blood but os was closed. She has further proved that the patient 'P' was admitted in the ward for further management where the prosecutrix was examined by Dr. Kalpana. The witness has further deposed that according to the observations of Dr. Kalpana the patient underwent dilatation and evacuation on 09.08.2011; the products of conception were obtained and sealed and thereafter sent for histopathological examination and forensic examination on 09.08.2011 and the patient was discharged on 09.08.2011 at about 7.00 PM and samples were handed over to HC Usha. She has also proved the Discharge Summary prepared by Dr. Kalpana which is Ex.PW11/B. (34) Further, Dr. Seema (PW12) has proved the MLC of the accused Sabhajeet which MLC is Ex.PW12/A according to which MLC no fresh external injury were seen and amputation of left forearm and the patient was referred to the surgery department for further examination. According St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 30 to Dr. Seema in the Surgery Department Dr. Shailesh Kumar medically examined the accused Sabhajeet and gave his observation from point X to X1 according to which there was no external genitalia infirmity suggestive of ruling out that the patient was not capable of sexual assault. (35) In view of the evidence of the medical witnesses (doctors) who are independent experts, it stands established:
➢ That the mother of the prosecutrix had expired on account of HIV/ AIDS (not disputed by the accused).
➢ That Sabhajeet Maurya (accused) step father of the prosecutrix and Suraj the step brother of the prosecutrix are both VcTc Positive with Suraj receiving treatment from Sneh Sadan (not disputed by the accused).
➢ That on 3.8.2011 the accused Sabhajeet Maurya brought the prosecutrix 'P' to Dr. Anita Harish with a history of vomiting. ➢ That the prosecutrix was detected with ammonerrhoea for six weeks.
➢ That the prosecutrix was also detected with vaginal warts (Sexually Transmitted Disease caused by Human Papillomavirus, a highly contagious disease spread on account of unprotected sex and direct skin to skin contact).
➢ That the prosecutrix confided in the Nurse attending to her that her step father Sabhajeet had been forcibly making relations St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 31 with her after the death of her mother on account of HIV/ AIDS and was also administering pills to her.
➢ That while the doctors at Sneh Sadan were still attending to the prosecutrix, Sabhajeet taking advantage of the absence of the nurse forcibly administered pills to the prosecutrix which fact she immediately brought to the notice of Dr. Anita Harish who in turn informed the Child Line and the matter was brought to the notice of the local police.
➢ That with the initiative of the doctors and the NGO the FIR was registered against the accused and prosecutrix was examined at BJRM Hospital on 5.8.2011 by Dr. Meenakshi Bansal when her hymen was found to be torn. It was also observed that on Per Vaginal examination the uterus of the prosecutrix was found ante verted just bulky to normal size and the examining finger was stained with blood but os was closed on which she was referred for further management.
➢ That on 9.8.2011 the prosecutrix underwent dilatation and evacuation after which the products of conception were obtained and sealed and thereafter sent for histopathological examination and forensic examination on the same day.
➢ That the MLC of the accused Sabhajeet Maurya proves that there was no external genitalia infirmity suggestive of ruling out that the patient was not capable of sexual assault.
St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 32 HIV status of the accused Sabhajeet Maurya stands proved:
(36) The case of the prosecution is that the accused Sabhajeet Maurya was himself HIV Positive and his wife had also expired on account of HIV/ AIDS in January 2011 and after her death had made sexual relations with his minor step daughter (prosecutrix 'P'). (37) The fact that the accused Sabhajeet Maurya was HIV Positive has not been disputed by the accused Sabhajeet Maurya. At the very outset I may observe that on 5.6.2012 when the case was received by this court, the accused himself informed the Court that he was HIV Positive.
Pursuant to the said information given to this Court by the accused Sabhajeet, a detail report was called from the Superintendent Jail. On 8.6.2012 a report was received from the Medical Officer in Charge, Central Jail No.03 Dispensary, Tihar, New Delhi wherein it has been reported that the accused Sabhajeet Maurya is a known case of HIV (SIDS) with Pulmonary Koch's and is receiving treatment for the same. Secondly the prosecutrix in her testimony before the Court has specifically alleged that her step father i.e. the accused Sabhajeet Maurya was HIV Positive, which aspect has not been controverted by him and stands established. Lastly it stands established from the testimony of the prosecutrix that the mother of the prosecutrix had expired in January 2011 on account of HIV/ AIDS and her stepbrother Suraj (borne out of the accused Sabhajeet and the deceased mother of the prosecutrix) is also HIV Positive for which he is receiving St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 33 treatment from Khera Hospital and is under the care of Sneh Sadan, which aspect again has not been disputed or controverted by the accused Sabhajeet Maurya.
(38) The status of the accused Sabhajeet Maurya as a patient of HIV (SIDS) with Pulmonary Koch's (Tuberculosis) both of which are highly contagious and endanger human life stands established. Forensic Evidence:
(39) PW13 Dr. A.K. Srivastava, Deputy Director (Biology) DNA Unit, FSL Rohini has proved the DNA Finger Printing Report which is Ex.PW13/A according to which two small pieces of flesh Ex.1A and some flesh Ex.1B (pieces of aborted fetus) were sent to him on 11.8.2011. On 12.8.2011 blood sample of Sabhajeet Maurya and Ashutosh Maurya were collected in FSL, DNA Unit which were marked as Ex.2 and Ex.3 respectively. The witness has proved that Ex.1A, Ex.1B, Ex.2 and Ex.3 were subjected to DNA Isolation and DNA was Isolated from the source of Ex.1A, Ex.1B, Ex.2 and Ex.3 and DNA profile of these exhibits were prepared. According to the witness, STR (Short Tendum Repeat) Analysis was used for the samples and the Data was analyzed by using Gene Mapper IDX Software. The witness has further proved that one set of alleles from the source of Ex.2 (blood sample of Sabhajeet) were accounted in the alleles from the source of Ex.1 A (two small piece of flesh) and one Ex.1B (some flesh) but the alleles from the source of Ex.3 (blood sample of St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 34 Ashutosh Maurya) were not accounted in the alleles from the source of Ex.
1A and Ex.1B. He has proved having concluded that the source of Ex.2 (blood sample of accused Sabhajeet) is the Biological Father of the source Ex.1A (two small pieces of flesh) and Ex.1B (some flesh). (40) It, therefore, stand conclusively established that Sabhajeet Maurya is the Biological father of the aborted fetus (not the accused Ashutosh Maurya) and I hereby hold that the Forensic Evidence confirms the allegations made by the prosecutrix that it was Sabhajeet Maurya who had been making physical relations with her.
Prosecutrix is a reliable witness:
(41) The case of the prosecution is that the accused Sabhajeet Maurya is the step father of the prosecutrix 'P', the natural father Sanjay having expired long back. They are two sisters from the first father and one brother Sunny from the step father (Sabhajeet Maurya). The mother of the prosecutrix 'P' had expired in January 2011 being the patient of HIV/ AIDS. It is further the case of the prosecution that after the death of the mother of the prosecutrix, the accused Sabhajeet Maurya started making relations with the prosecutrix as there was nobody else in the family to support and save her. Though, the prosecutrix confided with one of her neighbours but she was not believed considering her close relation with the accused (accused being her stepfather and treating her like a father). In the meanwhile the younger brother of the prosecutrix namely Suraj was St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 35 also detected with HIV disease and was getting treatment from Khera Hospital/ Sneh Sadan and the prosecutrix was left there to take care of him.
It was at Sneh Sadan that the prosecutrix suddenly fell sick and started vomiting and Sabhajeet Maurya took her to Dr. Anita Harish. There the prosecutrix confided in a Nurse and informed her that it was the accused Sabhajeet who was sexually abusing her and giving her pills after the death of her mother which information was thereafter communicated to Dr. Anita Harish who in turn informed the Child Line. The UTP of the prosecutrix was done and she was physically examined when it was revealed that she was detected Ammonerrhoea for six weeks and was also suffering from Vaginal Warts (A Sexually Transmitted Disease caused by Human Papillomavirus, a highly contagious disease spread on account of unprotected sex and direct skin to skin contact). While the doctors at Sneh Sadan were still attending to the prosecutrix, Sabhajeet taking advantage of the absence of nurse in the early morning hours forcibly administered pills to the prosecutrix which fact the prosecutrix immediately brought to the notice of Dr. Anita Harish in writing vide Ex.PW6/A. In the said note the prosecutrix has specifically mentioned that while she was sleeping, at about 5:45 AM her father came and forcibly put the pills into her mouth after slapping her (Hum so rahe they. Karib 5:45 samay tha Papa aaye aur dava khilai. Papa subhah aaye they unhone mujhe davaiyaan khilai. Jab main nahin kha rahi thi to mujhe thappar maar diye aur mere munh St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 36 mein jabardasti khila di). It was on receipt of this information that the matter was immediately brought to the notice of Child Line after which the representative of the NGO namely Ms. Swati Sharma met the prosecutrix on 5.8.2011 after which they went to Police Station Shalimar Bagh where the prosecutrix made a specific complaint against the accused Sabhajeet Maurya on the basis of which the present case was got registered. (42) The main witness of the prosecution is the prosecutrix 'P' who in the Court has stood by her version given to the doctors at Sneh Sadan vide Ex.PW6/A in her first statement and also given to the police vide Ex.PW8/A on the basis of which the FIR was registered. The relevant portion of her testimony is as under:
The name of my deceased mother was Rita. The name of my natural father was Sanjay. He expired long back. The accused Sabhajeet is my step father. We are two sisters from the first father. My younger sister's name is Aarti who is aged 8 years whereas my younger brother Sunny is from the step father. My mother expired in January, 2011. At the time of death of my mother, we used to reside with our step father at Village Shalimar Bagh, Shish Mehal Park, Gali No. 4. After the death of my mother, I used to take care of the household affairs. In April, 2011 after the death of my mother my step father Sabhajeet present in the court(correctly identified) started doing Zabardasti with me.
Court question : What do you mean by Jabardasti?
Ans. Sharirik Sambandh Banane Shuru Kar Diye.
St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 37
It all started in April, 2011. Since there was no one to support me I initially did not disclose this fact to anybody. Later I confided about this to my neighbours who were staying in the adjoining room as we used to stay in the company's flat but they did not believe me and told me that since Sabahajeet was treating me like a daughter how could this be possible. (Jab Wo Tumhe Beti Ki Tarah Manta Hai To Aise Kaise Kar Sakta Hai?) In the meanwhile, my younger brother Suraj was detected with HIV disease and Sabhajeet used to take him frequently to the Khera hospital and got him admitted at Sneh Sadan and left me there to take care of him. At Sneh Sadan when I was taking care of my younger brother Suraj I suddenly fell sick and started vomiting. I did not tell Sabhajeet about it but he came to know that I was vomiting and after two days when he came to Sneh Sadan in the morning he gave me some pills/tablets and forced me to take the same. After I was administered the pills, I started bleeding. Thereafter, I confided about this fact to the doctors and nurses at Sneh Sadan and told them what Sabhajeet had done to me and also the fact that he had forced me to take some pills/tablets. I also gave them in writing what had happened with me which is already Ex. PW6/A bearing my signatures at point A. I also told the doctors that I did not want to go back home. On 05.08.2011 Swati Mam had come to Sneh Sadan and I had told her whatever had happened.
Thereafter, I alongwith Swati Mam went to police station Shalimar Bagh where I disclosed to the police officials what had transpired and my statement Ex. PW8/A bearing my signatures at point A . Thereafter, St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 38 I was taken to the hospital where I was got medically examined . I remained admitted in the hospital for some time where I was provided medical treatment after my abortion and was discharged from the hospital on
09.08.2011. After my discharge from the hospital, I went alongwith my Mama to his house.
On 09.10.2011 site plan /Naksha was got prepared by the IO Ms. Durga on my pointing out of the place where we used to stay and where the incident had taken place and I went to the village only thereafter.
Later on in the month of December, I also came to the court and made statement to the Ld. M.M. u/s 164 CrPC which statement is Ex. PW8/B bearing my signatures at point A. In the said statement I put the name of Ashutosh because my Chacha had threatened me (Daraya Dhamkaya Tha) and had told me that if I had named Ashutosh, Sabhajeet will also be saved and he will marry me with Ashutosh.
On court question: What are the true facts now tell the court?
Ans. It was Sabhajeet who had done the galat kaam with me. Accused Ashutosh(correctly identified by the witness in the court) was only my friend and there was no physical relations between us. I had taken his name only on the asking of my Chacha.
Court question: As on date where are you staying?
Ans. I am staying with Ashutosh because my Mama had five children and is unable to take care of me. I am staying with Ashutosh and will get merry after 23 years because still I am a minor aged around 16 years.
St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 39 (43) The above testimony of the prosecutrix also finds due corroboration from the testimony of Swati Sharma (PW7) Project Manager of Child Line, NGO Prayas. She has proved that on receipt of information from Sneh Sadan, Khera Khurd regarding the admission of a young girl aged about 15 years who had been sexually assaulted by her step father, she went to Sneh Sadan, Khera Khurd and spoke to the victim 'P' who informed her that her mother had already expired and her step father who was HIV positive sexually abused her and thereafter they came to Police Station Shalimar Bagh where the prosecutrix 'P' made a complaint to the SHO. (44) Dr. Anita Harish (PW6) Medical Officer, Child Survival India, Sneh Sadan, Community Care Center has independently corroborated the version given by the prosecutrix. She was the first doctor who had examined the prosecutrix when she was taken ill and brought to her by Sabhajeet while the prosecutrix was already present in Sneh Sadan attending to her ailing brother Suraj who had been admitted there after being detected with HIV. The relevant portion of her testimony is as under:
On 03.08.2011 prosecutrix 'P' aged 15 years, female was brought at above said Community Care Centre by her step father Sabhajeet with complaints of repeated vomiting for last ten days and vaginal warts for three four months and ammonerrhoea for six weeks and the last mensuration date since 23.06.2011. The girl/child confided in the nurse attending to her that her step father had been repeating making physical relations with her and sexually abusing her in front of her St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 40 siblings as they were staying in one room and this he was doing after the death of her mother in the February, 2011 who had expired on account of HIV AIDS. She also told the nurse that her step father used to give her pills for abortion. Here I want to point out that while the child was still in community centre and we were attending to her the step father Sabhajeet taking advantage of the absence of nurse who left the child unattended for sometime , he slapped her and gave her some pills and left which the child immediately pointed out to us. On this we immediately informed the Child line. The child also gave these details to us in writing, copy of which we handed over to the representative of the NGO. I have brought the original today. The same is Ex. PW6/A (copy supplied to the counsels for the accused). The UTP of the child was done and the exhibits were collected, sealed with the seal of the hospital which envelop is Ex. PW6/B and handed over to Swati Sharma/Child Line. The girl /child did not want to go back home and hence, we handed over the child to the Child Line/NGO. I prepared my detailed report vide Ex.PW6/C which bears my signatures at point A. prosecutrix 'P' and her step father handed over four documents of BSA Hospital to us and we handed over those documents to Swati Sharma alongwith my report.
The prosecutrix 'P' as well as her younger sister aged 8 years were tested for HIV keeping in view the history of the family as the mother of the children had expired on account of HIV aids and the step father Sabhajeet was also positive alongwith a younger sibling born out of Sabhajeet and the natural mother of the children and both prosecutrix 'P' and her younger sister St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 41 at that time tested negative for HIV. On court question : prosecutrix 'P' has tested negative for HIV but that does not mean that the HIV virus has not infected her vol. she could be in the window period and another HIV testing is required after three months. The HIV virus starts showing up after about three to six months and also depends upon the immunity level of the victim.
(45) The prosecutrix 'N' has been subjected to lengthy cross examination but the substance of her statement remains totally un impeached. The suggestion to the extent that a false case has been foisted against the accused Sabhajeet as he was averse to the relationship of the prosecutrix with Ashutosh has not only been denied by the prosecutrix but also stands demolished by the DNA report which is Ex.PW13/A. It stands established that the prosecutrix 'P' was detected Ammonerrhoea for six weeks and on 9.8.2011 the prosecutrix underwent dilatation and evacuation after which the products of conception were obtained and sealed and thereafter sent for histopathological examination and forensic examination on the same day and the blood samples of the accused Sabhajeet Maurya and Ashutosh Maurya were also collected collected in the FSL Rohini in DNA unit after which from the blood samples of both the accused and the products of conception were isolated and DNA finger print profiles were prepared. It was found that one set of alleles from the source of Ex.2 (blood sample of Sabhajeet) were accounted in the alleles St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 42 from the source of Ex.1 A (two small piece of flesh) and one Ex.1B (some flesh) but the alleles from the source of Ex.3 (blood sample of Ashutosh Maurya) were not accounted in the alleles from the source of Ex.1A and Ex.1B and hence, it was concluded that the source of Ex.2 (blood sample of accused Sabhajeet) is the Biological Father of the source Ex.1A (two small pieces of flesh) and Ex.1B (some flesh). The DNA profiling (STR analysis) performed on the exhibits prove that the accused Sabhajeet Maurya is the biological father of aborted fetus of the prosecutrix. (46) It is settled law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out the testimony of a reliable prosecutrix (Ref: State of Himachal Pradesh Vs. Asha Ram reported in 2005 (4) Crime 269).
(47) The accused Sabhajeet Maurya has raised a desperate argument that the prosecutrix had been a consenting party. He has St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 43 submitted that the prosecutrix had never complained anybody of the fact that he had raped her without her consent and submits that the prosecutrix was throughout residing with him in the same house. I have considered the above argument put forth by the accused which on the face of it is indefensible. A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance or passive giving in, when volitional faculty is either crowded by fear or vitiated by duress, cannot be deemed to be consent in the definition of law. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntarily participation, not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but after having fully exercised the choice between the resistance and assent. Submission of the body under the influence of fear or terror is no consent. There is a subtle difference between consent and submission. The relationship between the accused and prosecutrix in the present case is that of the father and the daughter (stepdaughter). She has in her examination specifically alleged that after the death of her mother from HIV/AIDS her father started making physical relations with her and also administered pills to her and this fact that the accused Sabhajeet had unprotected sex with the prosecutrix stands established from the fact that she had conceived and the Forensic Evidence establishes Sabhajeet as the Biological father of the aborted fetus. The prosecutrix in her testimony has specifically explained that there was nobody in the family who could support her and on one St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 44 occasion she even informed the wife of her neighbour Mehboob but she did not believe her keeping in view the relationship between the prosecutrix and the accused (accused used to treat the prosecutrix like a daughter) which explanation is credible and convincing. Even otherwise, keeping in view the close relationship between the accused and the prosecutrix, the question of consent does not arise, more so in view of the provisions of Section 114 A of the Indian Evidence Act which provides that in a prosecution for rape under sub section 2 of Section 376 of the Indian Penal Code where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
(48) Therefore, in view of the aforesaid I hereby hold that the prosecution has been able to conclusively establish that it was the accused Sabhajeet Maurya who had been making physical relations with the prosecutrix 'P' against her wishes and when she conceived he forcibly administered pills to her as a result of which the prosecutrix 'P' underwent dilatation and evacuation on 9.8.2012.
Spreading infection of disease dangerous to life/ Act done with the knowledge that it is so eminently dangerous that it must in all probability cause such bodily injury as is likely to cause death:
(49) The case of the prosecution is that the accused Sabhajeet Maurya was a patient of HIV (SIDS) and Pulmonary Koch's (Tuberculosis) St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 45 both of which are highly contagious and endanger human life. He had been receiving treatment for the same and was fully aware of his medical condition as evident from the fact that even his wife Rita/ natural mother of the prosecutrix had expired in January 2011 of HIV/ AIDS and his son from her namely Suraj had been detected positive for HIV and was getting treatment from Khera Hospital/ Sneh Sadan. In this background Sabhajeet Maurya by indulging into unprotected sex with his minor stepdaughter being aware of his HIV positive status and having knowledge that by doing so was likely to transmit a deadly disease endangering human life had done an act which was so eminently dangerous that it must in all probability cause such bodily injury as is likely to cause death and hence, in this background a specific charge under Section 307 Indian Penal Code was settled against the accused Sabhajeet Maurya (not under Section 270 Indian Penal Code because the word "malignantly" as used therein refers to a kind of general malice which was primafacie absent in the instant case). The issue now is to what extent accused Sabhajeet can be made liable for the same.
(50) The question of whether "having sex while knowingly infected" should be criminalized is far from simple. Governing legal principle in our society is that we have a duty to avoid causing an unreasonable risk of harm to others. This implies that one should not do something which one knows would hurt someone." In most World Jurisdictions this duty extends to sexual partners. A partner who knows or St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 46 should have known that he/ she is infected with a sexually transmitted disease is increasingly being held liable for transmitting the disease to an unknowing partner which includes diseases like herpes, AIDS, gonorrhea, syphilis, genital warts and crabs. World over there is a wide spread acknowledgment of the importance of practicing safer sex and of disclosing their HIV Positive status to sexual partners and this principles also applies to all cases involving STI transmissions. Since HIV and STDs are mainly spread through sexual activity, therefore, new infections are generally preventable through personal choices and it is because of this, many World Jurisdictions have passed laws requiring persons who are HIV positive or have an STD to either refrain from sex or to inform their partners prior to sexual activity. Number of Jurisdictions all over have already criminalized unprotected sex when it is done knowingly and maliciously. (51) In India, the number of persons suffering from Sexually Transmitted Diseases (STDs) and Sexually Transmitted Infections (STIs) are rapidly increasing thereby adversely affecting individual health and National Health Index. It is the pressing need of the hour to prosecute the Sexually Transmitted Disease transmission in situations like when a person knowingly, maliciously or negligently infects one or more partners or when someone engages into unprotected sexual activity by not disclosing his STD status or lies about it (as opposed to not volunteering the information) or when the goal in engaging into an unprotected sexual activity is to spread an STD/ STI. The Indian Penal Code Section 269 (providing maximum St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 47 punishment for six months) and 270 (providing maximum punishment for two years) makes an act of spreading infection of disease dangerous to life, intentionally or negligently punishable but there is a need for tougher the criminal laws regarding disclosure by a person to the sexual partner regarding the STD/STI which the said person may have. This is required to be done to save the partner from avoidable health risks until it is too late. (52) Infected persons have a Right of Privacy, but partners of infected persons too is at health risk. The sexual partners of infected persons have an equally powerful claim of right to know or right to information which right to know developed from the social movement of the early 1900s under the law of torts according to which a person has a duty of care toward his sexual partner. Under the tort concept duty is a legal obligation to conform to a certain standard of conduct towards another person. This duty makes an obligation to disclose an STD to a sexual partner or to protect the partner from avoidable health risks (Reference in this regard is made to the observations of the Hon'ble Apex Court in the case of Mr. X Vs. Hospital Z, reported in 1998 (8) SCC 296: 2003 (2) SRJ 235 SC). Unfortunately the law on the above issue has not much developed in India as in other Jurisdictions keeping in view the social aspects of Indian culture which discourage people for coming forward to discuss their private issues connected with their sexual life. Hence, till such time our Legislators give a serious though on these aspects so as to bring about specific legislation to deal with the issues relating to Disclosure of Sexually Transmitted St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 48 Disease/ Sexually Transmitted Infection status; of recklessly endangering life of another; of depraved indifference to the life of another and Aggravated Sexual Assault, it has become necessary for the Courts of Law to meet these growing challenges within the existing legal paraphernalia.
(53) The Courts of England, Wales, US and Canada have been dealing with similar issues relating to transmission of STDs/ STIs (Sexually Transmitted Diseases/ Sexually Transmitted Infections) and have been uniformly holding the violators guilty under various penal provisions such as Grievous Hurt, Recklessly causing serious body harm etc. which include cases wherein a person has full knowledge of his HIV Positive status. The sole exemption has been made in cases where the other partner consents to risk, provided it has been proved to be an informed consent (requiring prior disclosure of the STD status to the other partner). (54) On evaluation of the existing legal position in the various jurisdictions the broad principles of law finding a common and collective acceptance world over are briefly culled out as under:
➢ Human life is precious and has to be protected at any cost. No person can be permitted to put the life of another at risk by his reckless/ negligent act.
➢ Right to Life includes Right to Healthy Living which is a basic human right (postulated under Article 21 of Constitution of India). St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 49 ➢ This Right to Life also includes right to be informed about the STD/STI (Sexually Transmitted Disease/ Sexually Transmitted Infection) status of the sexual partner (Right of Information) and overrides Right of Privacy in case of conflict (between Right of Information of one partner vis a vis Right of Privacy of the other sexual partner).
➢ Persons who suppress or conceal their Sexually Transmitted Disease/ Sexually Transmitted Infection status from their sexual partners and violation of the right to be informed about the STD/STI (Sexually Transmitted Disease/ Sexually Transmitted Infection) Status are liable for both Civil and Criminal actions there being a duty to disclose [Ref.: Mr. X Vs. Hospital Z, reported in 1998 (8) SCC 296: 2003 (2) SRJ 235 SC].
➢ Most of the Jurisdictions world over either directly or indirectly criminalize intentional, malicious and negligent transmission of Sexually Transmitted Disease/ Sexually Transmitted Infection making it punishable under various heads such as Aggravated Sexual Assault, Grievous Hurt, Recklessly Endangering Life of Another, Depraving Indifference to Life of Another, Negligently Transmitting the Contagious Disease etc. ➢ Accidental transmission of Sexually Transmitted Disease/ Sexually Transmitted Infection entail civil (tortuous liability) in most World Jurisdictions and also entail a criminal liability under St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 50 specified circumstances in some of the World Jurisdictions. ➢ Attempt to transmit a deadly disease endangering Human Life (including HIV) is an assault on Human Life and has to be punished. ➢ Knowingly transmitting or attempting to transmit Sexually Transmitted Disease (including HIV) which is a disease endangering human life entails a punishment for Life in most developed Jurisdictions of the world (even if the other party has consented unless the consent of the other party is an informed consent). ➢ In India, when a person being aware and knowing his HIV status has unprotected sex with another, he attempts to endanger the life of another, by exposing such other sexual partner to the danger of being infected with this deadly disease (whether or not the disease is actually transmitted to the other sexual partner) and for this act he is liable to attempting manslaughtering/ attempt to murder. In case if the other person/ sexual partner actually gets infected by such a disease (including HIV) and adversely affect the quality and span of his life or in the event where death is a direct consequence thereof, the person so infecting the other may even be made liable for Homicide.
➢ In a case of sexual assault or rape where the attacker exposes his or her victim to Sexually Transmitted Disease, particularly where the victim is a child or a minor or where it is a case of an intra familial rape (Incest), the Courts of Law are required to take a strict St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 51 view and an additional punishment has to be given for the same. (55) In the present case, at the first instance when the prosecutrix was medically examined she was found to be suffering from Vaginal Warts a Sexually Transmitted Disease caused by Human Papillomavirus which is highly contagious disease and one of the common causes for the same is indulging into unprotected sex. Sexual contact is the most common way of transmitting Vaginal Warts which are transmitted by a direct skin to skin contact.
(56) The assaulter Sabhajeet Maurya was aware and had full knowledge of his HIV positive status for which he was receiving treatment;
his wife having expired of HIV/ AIDS in January 2011 and soon thereafter his son Suraj having been detected of the same. It stands conclusively established that Sabhajeet was indulging into unprotected sex with his minor daughter despite being aware of his HIV Positive status because the prosecutrix had even conceived and the FSL Report proves Sabhajeet to be the Biological Father of the aborted fetus. In the present case, the question of consent in the present case does not arise, firstly the victim being a minor and secondly keeping in view the close relationship between them as that of father and daughter.
(57) Fortunately, till date the victim has not been detected to be HIV Positive but the medical experts have explained that this could a window period. The prosecutrix 'P' being already infected with Vaginal Warts who St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 52 else but Sabhajeet could have been responsible for infecting her with the same. I may observe that it is not essential that the bodily injury capable of causing death should have been actually inflicted. An attempt in order to be criminal need not be the penultimate act foreboding death. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so fact that it would have been complete but for the extraneous intervention which frustrated it consummation (Ref.: Sagayam Vs. State of Karnataka reported in AIR 2000 SC 2161). Hence, I hereby hold the accused Sabhajeet Maurya guilty of doing an act of causing bodily injury (transmitting Sexually Transmitted Disease dangerous to life) which act causes such bodily injury as is likely to cause death and hold him guilty of the offence under Section 307 Indian Penal Code (not under Section 270 Indian Penal Code because the word "malignantly" as used in Section 270 Indian Penal Code refers to a kind of general malice which is absent in the present case).
Allegations against the accused Ashutosh Maurya not established:
(58) Ashutosh Maurya has been made an accused in the present case because the prosecutrix in her statement to the Ld. MM under Section 164 Cr.P.C. had implicated Ashutosh Maurya as the person who had committed rape on her alleging that she had conceived on account of the same.
However, when she appeared in the Court to depose she informed the St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 53 Court that she was staying with the family of Ashutosh Maurya who were taking good care of her. She also informed the Court that she would marry Ashutosh when she comes of age (18 years of age). She has also explained that after the registration of the present case against her stepfather Sabhajeet Mauyra, her paternal uncle/ Chacha (brother of Sabhajeet Maurya) threatened and compelled her to name Ashutosh Maurya as the person who had committed the wrong on her and also assured her that in case if she did so, she would be married to Ashutosh while at the same time Sabhajeet would also be saved. It is in this background that she had shifted the entire blame on Ashutosh Maurya when she made a statement to the Ld. MM under Section 164 Cr.P.C. However, when the prosecutrix made a deposition before this Court she had been most consistent in her deposition and has specifically identified Sabhajeet Maurya as the person who had been making regular physical relations with her. The explanation given by her that she had done so under the threats and pressure of her paternal uncle/ chacha who had told to shift the entire blame on Ashutosh Maurya so that Sabhajeet Maurya should be saved and she would be married to Ashutosh Maurya, appears to be convincing. It is a matter of common knowledge that in cases involving allegations of incest, the family including close relations, are inclined to hushup the case least it gives a bad name to their family. The DNA Finger Printing Report conclusively nails Sabhajeet Maurya and hence there is no reason to disbelieve the prosecutrix when she states that it was Sabhajeet Maurya who had been St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 54 making physical relations with her and she had taken the name of Ashutosh on account of the threats issued to her by her uncle/ chacha (brother of the accused Sabhajeet). This being the background I hold that the allegations against the accused Ashutosh Maurya do not stand substantiated and proved.
FINAL CONCLUSION:
(59) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 55
(60) Applying the settled principles of law to the facts of the present case it is evident that the identity of both the accused stands established. It stands established that the prosecutrix 'P' is the step daughter of the accused Sabhajeet Maurya and that the prosecutrix 'P' and her sister are from the first marriage of Rita and Sanjay (deceased natural father of the prosecutrix) and after the marriage of Rita with Sabhajeet Maurya a son namely Suraj was borne from the said wedlock. It also stands established that the mother of the prosecutrix had expired on account of HIV/ AIDS and after her death even Suraj was detected as HIV Positive. It further stands established that at the time of death of her mother the prosecutrix 'P' was 14 years of age and used to take care of the household affairs. It also stands established that after the death of the mother of the prosecutrix, the accused Sabhajeet Maurya (step father of the prosecutrix) forcibly started making physical relations with her and gave her pills. There was nobody in her family to support her or to whom she could confide. Initially the prosecutrix did not disclose this fact to anybody but later she informed the wife of their neighbour Mehboob who did not believe what she was saying since she felt that the accused Sabhajeet used to treat her like a daughter. It further stands established that after the younger step brother of the prosecutrix 'P' namely Suraj was detected with HIV, he was admitted at Khera Hospital/ Sneh Sadan for treatment in July 2011 and the prosecutrix was left there to take care of him. It also stands established St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 56 that while the prosecutrix was at Sneh Sadan taking care of her younger brother Suraj she suddenly felt sick and started vomiting. It stands established that on 3.8.2011 the accused Sabhajeet Maurya brought the prosecutrix 'P' to Dr. Anita Harish with a history of vomiting and on examination the prosecutrix was detected with ammonerrhoea for six weeks and also with vaginal warts a Sexually Transmitted Disease caused by Human Papillomavirus, a highly contagious disease spread on account of unprotected sex and direct skin to skin contact. It further stands established that the prosecutrix thereafter confided in the Nurse attending to her and told her that her step father Sabhajeet had been forcibly making relations with her after the death of her mother on account of HIV/ AIDS and was also administering pills to her. It also stands established that while the doctors at Sneh Sadan were still attending to the prosecutrix, Sabhajeet taking advantage of the absence of the nurse in the early morning hours forcibly administered pills to the prosecutrix which fact she immediately brought to the notice of Dr. Anita Harish in writing who in turn informed the Child Line and the matter was brought to the notice of the local police. (61) It stands established that it was with the initiative of the doctors and the NGO that the FIR was registered against the accused and prosecutrix was examined at BJRM Hospital on 5.8.2011 by Dr. Meenakshi Bansal when her hymen was found to be torn. It was also observed that on Per Vaginal examination the uterus of the prosecutrix was found ante verted just bulky to normal size and the examining finger was stained with St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 57 blood but os was closed on which she was referred for further management. It further stands established that on 9.8.2011 the prosecutrix underwent dilatation and evacuation after which the products of conception were obtained and sealed and thereafter sent for histopathological examination and forensic examination on the same day.
(62) The medical examination report of the accused Sabhajeet Maurya has been duly proved in the Court and it stands established that there was no external genitalia infirmity suggestive of ruling out that the accused Sabhajeet Maurya was not capable of doing sexual assault. The Forensic Examination/ DNA Finger Printing of the various exhibits i.e. blood samples of both the accused Sabhajeet Maurya and Sabhajeet Maurya and flesh pieces of the aborted fetus was got conducted by using Gene Mapper IDX Software and it has been established that one set of alleles from the source of blood sample of Sabhajeet were accounted in the alleles from the source of aborted fetus and the alleles from the source of blood sample of Ashutosh Maurya were not accounted in the alleles from the source of aborted fetus. It has been conclusively established that Sabhajeet Maurya is the Biological father of the aborted fetus (not the accused Ashutosh Maurya) and hence, the Forensic Evidence confirms the allegations made by the prosecutrix that it was Sabhajeet Maurya who had been making physical relations with her.
(63) The status of the accused Sabhajeet Maurya as a patient of HIV St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 58 (SIDS) with Pulmonary Koch's (Tuberculosis) both of which are highly contagious and endanger human life, stands established. It also stands established that Sabhajeet Maurya was fully aware and had full knowledge of his HIV positive status for which he was receiving treatment; his wife having expired of HIV/ AIDS in January 2011 and soon thereafter his son Suraj having been detected of the same. It further stands conclusively established that Sabhajeet was indulging into unprotected sex with his minor daughter despite being aware of his HIV Positive status because the prosecutrix had even conceived and the FSL Report proves Sabhajeet to be the Biological Father of the aborted fetus. The question of consent in the present case does not arise, firstly the victim being a minor and secondly keeping in view the close relationship between them as that of father and daughter.
(64) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (65) In so far as the accused Sabhajeet Maurya is concerned, the St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 59 prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLC, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by forensic evidence and the witness of the prosecution have been able to built up a continuous link.
(66) In view of the above discussion, I hereby hold the accused Sabhajeet Maurya guilty of having committed rape upon the prosecutrix 'P'; having caused miscarriage of the prosecutrix 'P' by administering her pills and also of doing an act of causing bodily injury (transmitting Sexually Transmitted Disease dangerous to life) which act causes such bodily injury as is likely to cause death. Therefore, I hereby hold the accused Sabhajeet Maurya guilty of the offence under Sections 376, 313 and 307 Indian Penal Code and accordingly convicted. (67) However, in so far as the accused Ashutosh Maurya is concerned, in her testimony before the Court the prosecutrix has made no allegations against him. Earlier, for the first time she had taken the name St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 60 of Ashutosh in her statement under Section 164 Cr.P.C. on the basis of which the accused Ashutosh was charge sheeted. However, now the prosecutrix has explained that she had taken the name of Ashutosh and shifted the blame on him on the asking and on account of the threats issued to her by her uncle/ chacha (brother of the accused Sabhajeet) who wanted to save Sabhajeet. The explanation given by the prosecutrix has been found to be convincing and truthful, more so because the FSL/ DNA Finger Printing report nails the accused Sabhajeet and exonerates the accused Ashutosh Maurya. This being the background I hold that the allegations against the accused Ashutosh Maurya do not stand substantiated and proved. Therefore, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The materials brought on record by the prosecution are insufficient so as to hold that the accused Ashutosh Maurya was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Ashutosh Maurya. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to record a finding of guilt of an St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 61 accused, particularly in cases based on circumstantial evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Ashutosh Maurya, beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 376 Indian Penal Code. (68) Case be listed for arguments on sentence qua the convict Sabhajeet Maurya on 3.9.2012.
Announced in the open court (Dr. KAMINI LAU) Dated: 27.8.2012 ASJII(NW)/ ROHINI St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 62 IN THE COURT OF Dr. KAMINI LAU: ADDITIONAL SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 43/2012 Unique Case ID No.: 02404R0087532012 State Vs. (1) Sabhajeet Maurya S/o Sh. Rajdev R/o 902/290, Village Shalimar Bagh, Gali No.4, Near Shish Mahal Park, Delhi (Convicted) (2) Ashutosh Maurya S/o Sh. Jai Prakash Maurya R/o Village Chaudah Paras, PO Ambarpur, Distt. Ambedkar Nagar, Uttar Pradesh (Acquitted) FIR No.: 281/2011 Police Station: Shalimar Bagh Under Sections: 313/376 Indian Penal Code Date of conviction: 27.8.2012 Arguments concluded on: 11.9.2012 Date of sentence: 14.9.2012 St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 63 APPEARANCE: Present: Sh. Sanjay Kumar, Addl. Public Prosecutor for the State.
Convict Sabhajeet Maurya in judicial custody with Sh. Rajiv Kaul Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
Child sexual abuse are dark realities in Indian society like in any other nation. 53 per cent of our children are sexually abused, according to a statistic from a survey done by the Government of India. A 1985 study by the Tata Institute of Social Sciences reveals that one out of three girls and one out of 10 boys had been sexually abused as a child. 50% of child sexual abuse happens at home. In 1996, Samvada, a Bangalore based NGO, conducted a study among 348 girls. 15% were used for masturbation mostly by male relatives when they were less than 10 years old. 75% of the abusers were adult family members. A report from RAHI, (Recovering and Healing from Incest), a Delhi based NGO working with child sexual abuse titled Voices from the Silent Zone suggests that nearly threequarters of upper and middle class Indian girls are abused by a family member often by an uncle, a cousin or an elder brother.
This unfortunate case relates to one such case of a minor 'P' who after the death of her mother in January 2011 on account of HIV/AIDS was subjected to regular sexual abuse by her step father himself a patient of HIV and Pulmonary Koch's. As per allegations the accused St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 64 Sabhajeet Maurya step father of the prosecutrix despite knowing his HIV Positive status and also knowing that he was suffering from Pulmonary Koch's (Tuberculosis) and receiving treatment for the same, was indulging into unprotected sex with the prosecutrix 'P' and was also administering pills to her. However, during this period the stepbrother of the prosecutrix namely Suraj was also detected as HIV Positive and was admitted for treatment at Khera Hospital (Sneh Sadan) where the prosecutrix was left to take care of him. It was thereafter that when she fell sick and started vomiting and was examined by the attending doctor (Dr. Anita Harish), that she was found to be ammonerrhoea for six weeks and was also detected with Vaginal Warts (a Sexually Transmitted Disease of dangerous nature). The prosecutrix confided in the nurse and doctors at Sneh Sadan about what her stepfather Sabhajeet had been doing with her. The accused Sabhajeet Maurya having come to know of her medical condition came to Sneh Sadan in the early morning hours, while the prosecutrix was under the care of the doctors and taking advantage of the absence of Nurse forcibly administered pills to her which fact the prosecutrix 'P' immediately brought to the notice of doctors in writing. The doctors immediately contacted the Child Helpline and on 5.8.2011 the representative of the NGO Prayas came to Sneh Sadan and took the prosecutrix to Shalimar Bagh Police Station where the statement of the prosecutrix was got recorded after which the present case was registered St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 65 and the accused Sabhajeet was arrested.
On the basis of the testimonies of the prosecutrix 'P', Dr. Anita Harish from Child Survival India, Khera Khurd and Ms. Swati Sharma Project Manager of Child Line, Prayas NGO, this Court vide a detailed judgment 27.8.2012 held that it stands established that the prosecutrix 'P' is the stepdaughter of the accused Sabhajeet Maurya and that the prosecutrix 'P' and her sister are from the first marriage of Rita and Sanjay (deceased natural father of the prosecutrix) and after the marriage of Rita with Sabhajeet Maurya a son namely Suraj was born from the said wedlock; that the mother of the prosecutrix had expired on account of HIV/ AIDS and after her death even Suraj was detected as HIV Positive; that at the time of death of her mother the prosecutrix 'P' was 14 years of age and used to take care of the household affairs; that after the death of the mother of the prosecutrix, the accused Sabhajeet Maurya (step father of the prosecutrix) forcibly started making physical relations with her and gave her pills; that there was nobody in her family to support her or to whom she could confide; that initially the prosecutrix did not disclose this fact to anybody but later she informed the wife of their neighbour Mehboob who did not believe what she was saying since she felt that the accused Sabhajeet used to treat her like a daughter. This court also held that the prosecution was able to successfully establish that after the younger stepbrother of the prosecutrix 'P' namely Suraj was detected with HIV, he was admitted at Khera Hospital/ Sneh Sadan for treatment in July 2011 and the prosecutrix St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 66 was left there to take care of him; that while the prosecutrix was at Sneh Sadan taking care of her younger brother Suraj she suddenly felt sick and started vomiting; that on 3.8.2011 the accused Sabhajeet Maurya brought the prosecutrix 'P' to Dr. Anita Harish with a history of vomiting and on examination the prosecutrix was detected with ammonerrhoea for six weeks and also with vaginal warts a Sexually Transmitted Disease caused by Human Papillomavirus, a highly contagious disease spread on account of unprotected sex and direct skin to skin contact; that the prosecutrix thereafter confided in the Nurse attending to her and told her that her step father Sabhajeet had been forcibly making relations with her after the death of her mother on account of HIV/ AIDS and was also administering pills to her; that while the doctors at Sneh Sadan were still attending to the prosecutrix, Sabhajeet taking advantage of the absence of the nurse in the early morning hours forcibly administered pills to the prosecutrix which fact she immediately brought to the notice of Dr. Anita Harish in writing who in turn informed the Child Line and the matter was brought to the notice of the local police; it was with the initiative of the doctors and the NGO that the FIR was registered against the accused and prosecutrix was examined at BJRM Hospital on 5.8.2011 by Dr. Meenakshi Bansal when her hymen was found to be torn; that on Per Vaginal examination the uterus of the prosecutrix was found anteverted just bulky to normal size and the examining finger was stained with blood but os was closed on which she was referred for further management; that on 9.8.2011 the prosecutrix St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 67 underwent dilatation and evacuation after which the products of conception were obtained and sealed and thereafter sent for histopathological examination and forensic examination on the same day.
This Court further held that medical examination report of the accused Sabhajeet Maurya has been duly proved in the Court and it stands established that there was no external genitalia infirmity suggestive of ruling out that the accused Sabhajeet Maurya was not capable of doing sexual assault; that the Forensic Examination/ DNA Finger Printing Report conclusively established that Sabhajeet Maurya is the Biological father of the aborted fetus (not the accused Ashutosh Maurya) and therefore the Forensic Evidence confirmed the allegations made by the prosecutrix that it was Sabhajeet Maurya who had been making physical relations with her.
Vide the judgment dated 27.8.2012 it has also been observed by this Court that the status of the accused Sabhajeet Maurya as a patient of HIV (SIDS) with Pulmonary Koch's (Tuberculosis) both of which are highly contagious and endanger human life, had been established and also that Sabhajeet Maurya was fully aware and had full knowledge of his HIV positive status for which he was receiving treatment; his wife having expired of HIV/ AIDS in January 2011 and soon thereafter his son Suraj having been detected of the same. It has also been conclusively established that Sabhajeet was indulging into unprotected sex with his minor daughter despite being aware of his HIV Positive status because the prosecutrix had even conceived and on coming to know of it he forcibly St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 68 administered pills to her resulting into abortion of the fetus. The FSL Report confirms Sabhajeet to be the Biological Father of the aborted fetus.
In view of the above background, this Court held the accused Sabhajeet Maurya guilty of having committed rape upon the prosecutrix 'P'; having caused miscarriage of the prosecutrix 'P' by administering her pills and also of doing an act of causing bodily injury (transmitting Sexually Transmitted Disease dangerous to life) which act causes such bodily injury as is likely to cause death. Therefore, the accused Sabhajeet Maurya has been held guilty of the offence under Sections 376, 313 and 307 Indian Penal Code and accordingly convicted.
Heard arguments on the point of sentence. Ld. Amicus Curiae appearing on behalf of the convict has prayed that a lenient view be taken against the convict. He has argued that the convict Sabhajeet Maurya is aged about 42 years of age having a family comprising of three elder brothers, one elder daughter, one son aged 7 years and two daughters (including prosecutrix). He is totally illiterate and was working as Security Guard. The convict has already remained in judicial custody for about nine months and nineteen days. According to the Ld. Amicus Curiae, the convict is not involved in any other case and is a first time offender.
On the other hand, the Additional Public Prosecutor for the State has requested for the maximum sentence to be imposed upon the convict submitting that the convict Sabhajeet Maurya who is the stepfather St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 69 of the prosecutrix 'P' who has committed "intra familial child sexual abuse" upon the prosecutrix 'P' despite being aware of his HIV status and had caused the abortion of her fetus thereby compounding the offence and therefore, deserves no leniency.
I have considered the rival contentions. The Delhi High Court in the case of Khem Chand Vs. State of Delhi reported in 2008 (IV) JCC 2497 enumerated the principle factors to be taken into account by the courts while assessing as to what could be the appropriate sentence in a given case. Some of the factors enumerated are (i) Criminal and Crime,
(ii) Manner of Commission of offence, (iii) Violence involved, (iv) Whether the offender or accused was in a position of fiduciary, trust or exploited a social or family relationship, (v) State of victim, impact of crime on the victim.
The Hon'ble Supreme Court while considering the question of quantum of sentence in the case of State of Rajasthan Vs. Gajender Singh reported in 2008 (III) JCC 2061 observed as under:
"... the law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property for the people is an essential functions of the state. It could be achieved through the instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet these challenges. The contagion of lawlessness would St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 70 undermine social order and lay it in ruins...."
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175).
The Hon'ble Supreme Court has in the judgment of State of Andhra Pradesh Vs. Gangula Satya Murthy reported in JT 1996 (10) SC 550, observed as under:
"Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.."
It has been held by the Hon'ble Supreme Court in the case reported in AIR 2000 Supreme Court 1470 that:
Socioeconomic, status, religion, race caste or creed o the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 71 commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court.
It was also observed by the Hon'ble Court that it is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. (Ref:
Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78).
The object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent. The hon'ble Supreme Court has while considering the sentencing policy in the case of Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78 has observed that:
"........law regulates social interests, arbitrates conflicting claims and demands. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 72 undermine social order and lay it in ruins. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be a decisive reflection of social unconsciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the move 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 Hon'ble Court has further observed that:
"...........The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion the the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 73 and create cases of apparent injustice that are serious and widespread......"
"......Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crime with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is through then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment had some very undesirable practice consequences.." The offence of rape is barbaric in nature where the victim is ravished like an animal for the fulfillment of desire and lust of another man. As observed by Hon'ble Mr. Justice Arijit Pasayat a murderer destroys the physical frame of the victim whereas the rapist degrades and defiles the soul of a helpless female. As per the official statistics a total number of 568 cases of rape have been reported in Delhi alone in the year 2011 out of which only 2% have been committed by strangers. The figure would be much high but most of the cases are not reported by the victims because of the various reasons such as family pressure, behaviour of the St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 74 police, the unreasonably long and unjust process and application of law and resulting consequences thereof.
The prosecutrix 'S' in the present case was a soft and vulnerable target being a motherless child with no family support particularly because the assaulter was none else but her step father who himself was a patient of HIV and Pulmonary Koch's. The possibility of the convict having transmitted some infection and disease to the victim while committing the ghastly act cannot be ruled out (which infection can manifest itself at a later stage the prosecutrix being in a window period). When she sought help from her neighbours and confided in them, she was not believed and she had nobody else in the family to support her. She was thereafter pressurized by her paternal uncle/ Chacha (brother of the convict Sabhajeet Maurya) to name Ashutosh Maurya with whom the prosecutrix was in love after which she named Ashutosh Maurya in her statement under Section 164 Cr.P.C. This was done by the family members of the convict Sabhajeet to save their own honour. No action, legal or otherwise, was taken against the convict. It is the primary duty of each adult member of the family particularly the males to identify, expose and act against persons exhibiting perverse sexual tendencies and aberrations. Timely familial and societal intervention can certainly prevent incidents of sexual abuse against women and children. It is indeed deplorable that, for the family of convict Sabhajeet Maurya, his liberty was more crucial to them than the life of his daughter which he had destroyed. We as a nation have St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 75 failed to protect our daughters at every step. If safety and security of women is a matter of national concern then why is that we as a nation are unable to provide a safe and secured environment for them.
I may further observe that Rape is just one facet of an Aggravated Sexual Assault. There are many facets which unfortunately the Investigating and Prosecuting Agency and Courts in India tend to overlook. Transmission of a Sexually Transmitted Disease/ Sexually Transmitted Infection (herein after referred to as STD/STI) is another facet which equally requires due attention. Issues relating to spreading of STD/STI appears to have received a little official attention and lakhs of people all over our Country particularly women and children tend to suffer these diseases/ infections so transmitted to them either accidentally or negligently or even deliberately/ maliciously in silence for the fear of social ostracization and shame. In India, the number of persons suffering from STDs/ STIs are rapidly increasing thereby adversely affecting individual health and National Health Index (more than four million persons are HIV Positive in India as per official figures). It is the pressing need of the hour to prosecute the transmission of STD/STI in situations like when a person knowingly, maliciously or negligently infects one or more partners or when someone engages into unprotected sexual activity by not disclosing his STD status or lies about it (as opposed to not volunteering the information) or when the goal in engaging into an St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 76 unprotected sexual activity is to spread an STD/ STI. The Indian Penal Code Section 269 (providing maximum punishment for six months) and 270 (providing maximum punishment for two years) makes an act of spreading infection of disease dangerous to life, intentionally or negligently punishable but there is a need for tougher criminal laws connected with non disclosure by a person to the sexual partner regarding the STD/STI which the said person may have. This is required to be done in order to save the partner from avoidable health risks before it is too late.
The question of whether "having sex while knowingly infected" should be criminalized is far from simple. Governing legal principle in our society is that we have a duty to avoid causing an unreasonable risk of harm to others. This implies that one should not do something which one knows would hurt someone. In most World Jurisdictions this duty extends to sexual partners. A partner who knows or should have known that he/ she is infected with STD is increasingly being held liable for transmitting the disease to an unknowing partner which includes diseases like herpes, AIDS, gonorrhea, syphilis, genital warts and crabs. World over there is a wide spread acknowledgment of the importance of practicing safer sex and of disclosing their HIV Positive status to sexual partners and this principles also applies to all cases involving STI transmissions. Since HIV and STDs are mainly spread through sexual activity, therefore, new infections are generally preventable St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 77 through personal choices and it is because of this, many World Jurisdictions have passed laws requiring persons who are HIV positive or have an STD to either refrain from sex or to inform their partners prior to sexual activity and have criminalized unprotected sex when it is done knowingly and maliciously. Infected persons have a Right of Privacy, but partners of infected persons too are at a health risk. Sexual partners of infected persons have an equally powerful claim of right to know or right to information which right to know developed from the social movement of the early 1900s under the law of torts according to which a person has a duty of care toward his sexual partner. In torts concept duty is a legal obligation to conform to a certain standard of conduct towards another person. This duty makes an obligation to disclose an STD to a sexual partner or to protect the partner from avoidable health risks (Reference in this regard is made to the observations of the Hon'ble Apex Court in the case of Mr. X Vs. Hospital Z, reported in 1998 (8) SCC 296: 2003 (2) SRJ 235 SC). Unfortunately the law on the above issue has not much developed in India as in other Jurisdictions keeping in view the social aspects of Indian culture which discourage people from coming forward to discuss their private issues connected with their sexual life. Hence, till such time our Legislators give a serious thought on these aspects so as to bring about a direct legislation to deal with the issues relating to Disclosure of STD/STI Status; of recklessly endangering life of another; of depraved St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 78 indifference to the life of another and Aggravated Sexual Assault, it has become necessary for the Courts of Law to meet these growing challenges within the existing legal paraphernalia.
The Courts of England, Wales, US and Canada while dealing with similar issues relating to transmission of STDs/ STIs have uniformly held the violators guilty under various penal provisions such as Grievous Hurt, Recklessly causing serious body harm etc. (which include cases wherein a person has full knowledge of his HIV Positive status). The sole exception in these cases have been made only in those cases where the other partner consents to risk and where it has been proved to be an informed consent (requiring prior disclosure of the STD status to the other partner).
On evaluation of the existing legal position in the various jurisdictions the broad principles of law finding a common and collective acceptance world over are briefly culled out as under:
➢ Human life is precious and has to be protected at any cost. No person can be permitted to put the life of another at risk by his reckless/ negligent act.
➢ Right to Life includes Right to Healthy Living which is a basic human right (postulated under Article 21 of Constitution of India).
➢ This Right to Life also includes right to be informed about the St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 79 STD/STI status of the sexual partner (Right of Information) and this Right of Information overrides Right of Privacy (in case of conflict between Right of Information of one partner vis a vis Right of Privacy of the other sexual partner).
➢ Persons who suppress or conceal their STD/STI Status from their sexual partners and violation of the right to be informed about the STD/STI Status are liable for both Civil and Criminal action there being a duty to disclose [Ref.: Mr. X Vs. Hospital Z, reported in 1998 (8) SCC 296: 2003 (2) SRJ 235 SC].
➢ Most Jurisdictions world over either directly or indirectly criminalize intentional, malicious and negligent transmission of STD/STI making it punishable under various heads such as Aggravated Sexual Assault, Grievous Hurt, Recklessly Endangering Life of Another, Depraved Indifference to Life of Another, Negligently Transmitting the Contagious Disease etc. ➢ Accidental transmission of STD/STI not only entails civil (tortuous liability) in most World Jurisdictions but also a criminal liability under specified circumstances in some of the World Jurisdictions.
➢ Attempt to transmit a deadly disease endangering Human Life (including HIV) is an assault on Human Life and has to be punished.
St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 80 ➢ Knowingly transmitting or attempting to transmit STD (including HIV) which is a disease endangering/ threatening human life entails a punishment for Life in most developed Jurisdictions of the world (even if the other party has consented unless the consent of the other party is an informed consent). ➢ In India, when a person being aware and knowing his HIV status has unprotected sex with another, he by this act attempts to endanger the life of another, by exposing such other sexual partner to the danger of being infected with this deadly disease (whether or not the disease is actually transmitted to the other sexual partner) and is hence liable for attempting man slaughtering/ attempt to murder under the Indian Penal Code. ➢ In case if the other person/ sexual partner actually gets infected by an STD of a deadly nature such as HIV which not only affects the quality of his life but also its duration and span or where death is a direct consequence thereof, then the person so infecting the other can even be made liable for Homicide under the Indian Penal Code.
➢ In a case of sexual assault or rape where the attacker exposes his or her victim to STD, particularly where the victim is a child or a minor or where it is a case of an Intra Familial Rape (Incest), the Courts of Law are under a legal duty to award an St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 81 additional punishment for the same.
This being the background, let it be known to all that there can be no leniency for a person who knowingly does an act so negligent or reckless or even deliberate so as to endanger the life of another by concealing his own STD/STI status and indulges into unprotected sex with such other, that he shall be not be spared. All such cases of rape or sexual assault where the offender is aware of his STD/STI Status while committing the offence then it involves an additional charge/ punishment and there can be no leniency whatsoever. In the present case the depravity of the convict Sabhajeet was not only confined to the post sexual assault of a hapless girl who was none else than his own daughter but also got compounded by the fact that despite being in the know of his HIV Positive status he committed this offence of rape by indulging into unprotected sex with the prosecutrix as a result that she conceived. As if this was not enough; he on coming to know of her conception, forcibly administered pills to her resulting into abortion of the fetus, once again endangering her life. It is this which disentitles the convict Sabhajeet Maurya to any leniency and I hereby award the following punishment to the convict Sabhajeet Maurya:
1. The convict Sabhajeet Maurya is sentenced to Rigorous Imprisonment for a period of 10 (Ten) years and fine to the tune of Rs.2,000/ for the offence under Section 376 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 82 Imprisonment for a period of one month.
2. Further, the convict is sentenced to Rigorous Imprisonment for a period of 5 (Five) years and find to the tune of Rs.2,000/ for the offence under Section 313 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one month.
3. For the offence under Section 307 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment for a period of 10 (Ten) years and find to the tune of Rs.2,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one month.
All the sentences shall run consecutively. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period undergone by him during the trial, as per rules.
Coming now to the aspect of compensation to the victim, I may observe that rape of a child not only affects her alone but such an incident leaves a devastating impact on her entire family who equally suffer in silence. The victim at the time of the incident was hardly aged about 14 years. It is cases like these which the Ministry of Women and Child development needs to target for Restorative Justice so that the medical and legal assistance, professional psychological counselling, shelter and other St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 83 support is provided to the victim. The Hon'ble Apex Court has time and again observed that the subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. It has been so observed by Hon'ble Mr. Justice S. Saghir Ahmed and Justice Kuldip Singh (Ref: Bodhisattwa Gautam Vs. Subhra Chakraborty reported in AIR 1996 SC 922) that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
Therefore in order to provide Restorative and Compensatory Justice to the victim who requires medical attention and rehabilitation, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant an compensation to the tune of Rs.2,00,000/ (Rs. Two lacs) to the victim 'P' daughter of Late Sh. Sanjay and step daughter of Sabhajeet Maurya, presently residing at Village Chodahpras, Post Office Ambedkar Nagar, Police Station Jaitpur, Uttar Pradesh which amount shall be used by her for her welfare and rehabilitation under the supervision of Welfare Officer so nominated by the Government of NCT of Delhi, Department of Women and Child Development [Ref.: Hari Kishan & State of Haryana Vs. Sukhbir Singh & Ors. reported in AIR 1988 SC 2127 and Bodhisattwa St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 84 Gautam Vs. Subhra Chakraborty reported in AIR 1996 SC 922].
At the time of arguments on the aspect of sentence the prosecutrix was called to the Court and given a hearing. She has informed the Court that after the arrest of her stepfather (convict Sabhajeet), her maternal uncle/ mama had taken her to the native village but since her Mama himself was having a big family comprising of five children, he was unable to take care of her and hence she is now residing with the family members of Ashutosh Maurya who are residents of the same village and are taking care of her. She has also expressed her desire to join a stitching course in order to help her to stand on her own legs so as to become financially independent. In view of the above I hereby direct the Director, Department of Social Welfare (Women and Child Development), GNCT of Delhi to take up the issue with their counter parts in the Government of Uttar Pradesh to assist in the rehabilitation of the prosecutrix 'P'. Further, keeping in view the preferences of the prosecutrix and her interest in learning a stitching course in order to help her to become financially independent, which course according to her is also available at Mahila SilaiKadhai Prashikshan Kendra, Ambarpur, Police Station Jaitpur, Post Office Ambarpur, Distti. Ambedkar Nagar, Uttar Pradesh (the place where she is presently residing); necessary steps should be taken to ensure that the needful is done within a month under intimation to this Court.
I may further note that the prosecutrix has a younger sister and a St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 85 step brother (who is HIV Positive) and after the death of her mother she was the one who was taking care of them. Now the father being convicted and the prosecutrix herself being under the care the family of Ashutosh Maurya the younger sister and step brother (both juveniles) it appears are on their own. They are juveniles in need of care and protection and hence under the given circumstances, I direct the SHO Police Station Shalimar Bagh to immediately produce these juveniles before the Child Welfare Committee for necessary intervention in accordance with law.
Before parting, I may further observe that urgent steps are required to be taken both by the Administration and the Investigating Agency so as to ensure that in all cases of sexual assault the Medical examination of the accused is not only confined to examining his sexual capability but also a detail examination to ascertain the sexual status of the accused regarding any Sexually Transmitted Diseased or Sexually Transmitting Infection with which he may be suffering, is conducted. This is required to be done so as to make sure that in case of the accused/ violator suffering from any STD/STI, he is appropriately charged for the same and also to protect the victim and provide the necessary treatment for the same at the earliest wherever required.
A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi; Chief Secretary, GNCT of Delhi; Director, St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 86 Department of Social Welfare (Women and Child Development), GNCT of Delhi; Commissioner of Police, Delhi and Station House Officer Police Station Shalimar Bagh for information and necessary action under intimation to this Court.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 14.9.2012 ASJ (NW)II: ROHINI
St. Vs. Sabhajeet Maurya & Anr. FIR No. 281/11, PS Shalimar Bagh Page No. 87