Delhi District Court
In Case Titled As Raj Singh vs . State Of Haryana And Another on 24 May, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE,WEST DISTRICT, DELHI
SC No. 76/01/08
State
Versus
Ashutosh Vishwash
s/o Sh. Hiralal Vishwash
R/o Jhuggi No. E-502, Group
in front of A-43, Shahid Sukhdev Nagar
Wazirpur Industrial Area, Delhi
Permanent Address:
R/o Gali No. 10, D- Block, Khasra no. 1156,
Nathupura, Delhi
Case arising out of :
FIR No. 273/07
u/s 377/376 IPC
PS: Ashok Vihar
Date of FIR : 20/04/07
Date of Institution : 18/07/07
Date of Final Arguments : 05.05.10
Judgment reserved on : 14.05.10
Date of Judgment : 14.05.10
Judgment:
The case of the prosecution are summarized as under:
That on 20/04/07 a DD No. 12 at police post Wazir pur,
Industrial Area about some misbehave took place with minor girl. SI
Rajbala was assigned with the case file through ASI Ram Babu. ASI
Rambabu initially visited the spot along with Ct. Ashok ,who informed that
a girl and her mother had gone to BJRM Hospital. SI Rajbala reached at
the BJRM Hospital where the girl Rajnandini was got medically examined.
Ct. Ashok received two sealed pulandas with the seal of hospital. From the
Hospital SI Rajbala recorded the statement of Rekha PW1 i.e. mother of
victim same is Ex.PW1/A and SI Rajbala prepared a Tehrir Ex.PW17/A
and given to Constable Ashok for registration of FIR. She also seized two
S.C. No.76/1/08 Page1/24
pullandas i.e. cloth undergarments of the prosecutrix vide seizure memo
PW1/D. SI Rajbala along with prosecutrix Rajnandini PW9 also came to
the spot at Jhuggi No,. E-502, Shahid Sukhdev Nagar, Wazirpur Industrial
Area, Delhi and PW9 Raj Nandani Victim pointed out towards the person
sitting in the jhuggi and his name was found as Ashutosh. SI Rajbala
prepared the site plan as Ex.PW 17/B. Accused Ashutosh Vishwash
arrested vide arrest memoPW1/C. His personal search was also conducted
vide memo Ex. PW1/D the disclosure statement of the accused was
recorded vide Ex.PW15/A. SI Rajbala also made quarry from the public
persons. Accused was sent for the medical examination at BJRM Hospital
through Ct. Ashok, doctor conducted the medical examination of the
accused Ashutosh Vishwash and handed over three sealed pullandas
vide seizure memo vide Ex. PW 15/B. SI Rajbala produced the victim
before the Ld. MM for recording her statement u/s 164 Cr.PC and
accordingly in view of the submission, statement of victim Raj Nandani
PW9 was recorded on 26.04.07. Investigation Officer SI Rajbala obtained
the copy of that statement mark 'X' She also obtained the opinion of the
doctor vide Ex.PW17/C and the doctor had opined as fresh hymen torn on
the MLC of prosecutrix 12/05/07. The victim has also got examined for her
aged determination and had obtained the report Ex.PW9/A. SI Rajbala
recorded the statement of witnesses. The case property was sent to the
FSL , Rohini through ct. Sunil vide application Ex.PW17/D. and the result
of the FSL is EX.PW17/E was obtained and placed in court also got the
photographs of the place of incident and its positive which collectively
mark as 17/A1 to A5 and negatives are mark 17/D collectively. SI Rajbala
also add the section 376 IPC after obtaining the second opinion from the
doctor. She also made an application to BJRM Hospital which is ex. PW
17/F. and the opinion of the doctor is mark as Ex. PW17/C.
Initially on receipt of DD No. 12, PW16 ASI Ram Babu who
along with PW15 Ct. Ashok reached at the jhuggi, where the PW1 Rekha
along with her daughter Rajnandini informed that some wrong act done by
one Ashuotsh. ASI Ram Babu sent Rajnandini for medical examination
and in charge of police post SI Vinay Malik who informed SI Rajbala to
come at the spot for taking over the investigation.
PW-15 Ct. Ashokan had taken the Tehrir from the IO and gone
S.C. No.76/1/08 Page2/24
police station for registration of the FIR. PW 15 Ct. Ashokan reached at
the spot along with the copy of FIR and original Tehrir.
PW1. Smt. Rekha, mother of the victim Rajanandini made
allegations against the accused Ashutosh that on 19/04/07at about 4 PM
her daughter Rajnandini aged about 5½ years came from school and went
to purchase some toffees. She has gave two rupees to her. After 15-20
minutes her daughter came back with full of blood stains underwear.
Initially Rajnandini did not speak, but when she persuaded her daughter
told that when she has gone to purchase toffee, Bangali Doctor called her
inside the clinic which was adjacent to his shop where she had to get
toffee. Bangali Doctor asked her where her mother was to which she
replied that her mother was at home. At this Bangali Doctor called her
inside the clinic and committed sodomy and sexually assaulted her private
parts which started bleeding. Rekha washed the blood stained underwear
of her daughter being ashamed of the incident. She narrated the incident
to her husband next day who informed the police . Her statement Ex.
PW1/A was recorded at PS. Her daughter was medically examined at
BJRM Hospital some parcels of undergarments were seized by
Investigating Officer vide Ex.PW1/B. Accused Ashutosh was arrested two
days after the incident took place vide memo Ex.PW1/C and personal
search of the accused vide Ex.PW1/D.
PW-2 Rajesh Kumar, father of the victim Rajnandini, stated that
he was informed by his wife Rekha on 20/04/07 at about 1-1:30PM when
he came to his house that her daughter had gone to the shop to purchase
toffee on 19/04/07 where the accused committed sexual assault on her
daughter. He immediately informed the police . Police came to his house.
His wife and his younger brother and her daughter Rajnandini went to
BJRM Hospital. The case was registered against the accused Ashutosh
Vishwash.
PW9 Rajnandini in her deposition stated that "the accused
took off her undergarment and did "galat kam from behind.......".
PW18 Dr Sanjay Kumar examined the PW9 Rajnandini and
prepared her MLC vide Ex.PW 4/A. The girl after examination referred to
Gynae and surgery department for further examination PW18 identified His
writing and endorsement on MLC are at portion A1.
S.C. No.76/1/08 Page3/24
PW4 Dr. Anjali Vaish testified that the victim was examined by
Dr. Anjali Gupta and MLC bears signatures at point A and the same is
ex.PW4/A.
PW14 Sh. Pratap Singh Malik the then Ld. MM who recorded
the statement of the prosecutrix vide Ex.PW14/A which bears his
signatures at point A on each page.
PW-6, Sh. Sanjay Kumar also examined the patient on
20/04/07. The MLC no. 29135/07 bears his endorsement/signatures at point A1.
PW-8 Sh. Deepak has stated that on 19/04/07, Rajnandini (PW9) came to his shop to purchase toffee and she went. Thereafter, he got busy in dealing with the other customers.
The other witnesses are police officials who deposed about the documents prepared during the course of investigation and proved the same by exhibiting.
After compliance of proceeding u/s 207 Cr.P.C a charge was framed against the accused Ashutosh Vishwash for the offence u/s 376/377 IPC as prima facie case is made out with the allegation that on 19/04/07 at about 4:20 PM at jhuggi no. A-42, Shaheed Sukhdev Nagar, Wazirpur Industrial Area. He has committed a rape to a minor girl aged about 5 ½ years and also commit unnatural sexual assault with the victim thereby committed an offence punishable u/s 376/377 IPC. For which the accused pleaded not guilty and claim trial, vide order dated 06/10/07.
In order to establish the case by the prosecution, prosecution cited 19 witnesses in the list of witnesses and almost 18 witnesses are examined. The deposition made by the witnesses are discussed in the preceding paras of the judgment.
PW1 Rekha, mother of the victim Rajnandini who stated that accused has committed sodomy with her daughter and also sexually assaulted her private parts by Bangali Doctor resulted which started bleeding.
PW-2 Rajesh Kumar , husband of Pw-1 Rekha and father of the victim Rajnandini (PW-9) had received the information from his wife about for the sexually assault committed on her daughter. He called police on dial of number 100.
S.C. No.76/1/08 Page4/24PW-3 Dr. Shakuntala Rani deposed that the accused Ashutosh was examined by Dr. Prashant, Jr. Resident and prepared the MLC under his supervision which were signed by the Dr.Prashant which she identifies having worked with him.
PW-4 Dr.Anjali Vaish, she also identifies the signatures and handwriting of Dr. Anjali Gupta and prepared her MLC no. E-24973 and the MLC is Ex.PW4/A. PW-5, HC Tribhuvan posted as duty officer on 20/04/07 and lodged the FIR after making in DD entry on the basis of Rukka brought by Ct. Ashokan endorsed by WSI Rajbala . The same is Ex.PW5/A, and endorsement on the rukka is EX.Pw5/B. PW-6, Sanjay Kumar also examined the patient Rajnandini at about 1:30 PM and made endorsement on the MLC at point A. PW-7. Ct. Rajesh deposited five pulandas brought by WSI Rajbala with the seal of MS BRM Hospital which he entered at Sl. no. 3518 in register no. 19. On 15/05/07, the sealed pulandas were deposited in the FSL, Rohini through Ct. Sunil vide RC no. 54/21 and the said pulandas were received in the Malkhana on 27/09/07. The photocopy of the relevant entries of register no. 19 are Ex.Pw7/A to C. PW-8, Deepak running a grocery shop where the victim came to his shop to purchase toffees on 19/04/07.
PW-9, Rajnandini victim deposed that the accused committed rape on her and accused did galat kam from behind..
PW10, Dr. Shipra Rampal, Radiologist conducted the bone age of Rajnandini and opined that the age of the victim is 5-6 years. The report to this effect is Ex.PW9/A. PW-11 Ct. Sunil Dutt received five pulandas and deposited the same to the FSL , Rohini on 15/05/07 vide road certificate 54/21 and deposited back copy of road certificate as token of receipt till the parcels remained with him. .
PW12, Ct. Kashinath posted at Police Head Quarter received a call at 12:24 PM from PW Rajesh through phone no. 9891359515 with respect to the some event has took place with the adolsense girl. The said message has been recorded by him and the information of the same was sent through wireless message at police post Wazirpur. The copy of S.C. No.76/1/08 Page5/24 message th rough DD entry is Ex. Pw12/A. PW-13, HC Dharambir Singh was Duty Officer at PP Wazirpur Industrial Area. n 20/04/07 he received a call vide DD no. 12PP at 12:30 PM from North-West control room through a wireless message from Ct. Kashi Ram that in front of house no. A-43 Wazirpur Industrial Area some event has happened with minor girl. A SI Ram Babu along with Ct. Ashokan reached at spot.
PW14 Sh. Pratap Singh, Ld. ASJ, North East, recorded the statement of victim Rajnandini u/s 164 Cr.P.C which is Ex.Pw14/A and the statement given to the IO is Ex.Pw14/B. Ct.15 Ashokan went to the spot along with ASI Ram Babu at jhuggi no. E-442, where Rekha told some wrong act was committed with her daughter by on Bengali Doctor namely Ashutosh. SI Rajbala also reached at the spot.
PW16 ASI Ram Babu was on emergency duty at PS Wazirpur Industrial Area. On receipt of DD no. 12PP I along with Ct. Ashokan reached at the spot where the mother of the victim Rajnandini informed that some wrong act done with her daughter by one Ashutosh. He sent the victim for medical examination and I/C PP SI Vinay Malik reached the spot, who informed SI Rajbala to come at the spot for taking over the charge investigation.
PW17, SI Rajbala stated that on receipt of DD no. 12, she reached the spot where Rekha mother of the prosecutrix pointed out towards a person sitting in a jhuggi and informed that he had done a wrong act with her daughter and his name found as Ashutosh. SI Rajbala prepared the site plan which is Ex.Pw17/B and arrest memo PW1/C and personal search Ex.Pw1/D conducted.
PW-18, Dr. Sanjay Kumar, also examined the victim five and half years old and made endorsement on MLC at point A1. He also identifies the signatures and handwriting of Dr. Satish on the MLC at portion B,C and F. After examination of all the prosecution witnesses, the statement of the accused u/s 313 Cr.P.C was recorded to which the accused contended that the case is false one and he has been framed in a false case. Allegations made in the statement of Rajanandini recorded by S.C. No.76/1/08 Page6/24 the Ld. MM U/S 164 Cr.P.C are incorrect. He is falsely implicated in collusion with the police.
In defence, accused examined DW-1 Smt. Rekha, w/o Sh. Yadram who testified that her jhuggi is on the back side of the jhuggi of the accused Ashutosh and residing in the said jhuggi for the last 10 years. She know both the parties. The accused was arrested from the Bank from where he has gone to take out the money . So far she know the accused, has never been involved in any offence nor has ever indulged in any kind of such act about which the accused has been alleged. She also know that the accused has constructed a house at Nathu Pura. She also heard from Rekha, mother of the victim, that she has been demanding one of the house or house at Nathu Pura at a lesser price which was not agreed by the accused. No other witness was examined by the defence.
I have heard the submissions of the Ld. APP and the counsel for the accused and also carefully gone through the material on record and citation cited.
Ld. Public Prosecutor agitating the plea in the manner that the prosecution witness have deposed and gave true version and they have supported the case of prosecution. The accused has committed the heinous crime of rape and sodomy to the minor girl aged about 5 ½ years which is duly supported by the medical evidence and the deposition of prosecutrix Rajnandini and her parents. The Gynae and physical examination that there was a fresh hymen torn and sexually assault of the minor girl. There may be some contradictions , exaggeration and development in the deposition of the prosecution witnesses. The deposition of the statement of the victim Rajnandini and her mother Rekha are reliable and trustworthy. It is also a matter of record that there are some lacuna/flaw in the investigation as pointed out by the defence counsel. In view of the ocular evidence of the prosecution witness including the victim who is aged about 5-6 years, the minor defect in the investigation can be ignored . The accused id doctor by profession and his duty to cure ailment of patient but he has taken undue advantage of his profession and committed the crime which damaged the image of the his profession and he is liable to be severely punished as per the charges.
Per contra, Ld. counsel for the accused submitted that the S.C. No.76/1/08 Page7/24 allegation of the prosecution is based on the complaint and the statement. It has came on record that the accused allegedly closed the mouth of the victim and opened the Zip of his pant and the put his penis at anus of victim. It has also come on record that because of the alleged act, blood came out and there was blood at the underwear of the victim. The same was washed by PW-1 Rekha mother of the victim/prosecutrix Raj Nandani PW9..
PW-9 Rajnandini appeared before the Ld. M.M and in statement u/s 164 Cr.P.C she stated that she has been made to lie on a sofa and accused put penis to two times and committed the alleged act at anus. Thereafter it revealed that PW1 Rekha, PW2 Rajesh and PW9 Rajnandini had not mention allegations of sexually assault on the front private part and as the section 376 IPC is ruled out.
It is further contended by the defence counsel that in order to prove the allegations u/s 377 IPC admittedly the allegations made are to be proved beyond all reasonable doubt. The shopkeeper PW-8 has not stated anything against the accused. PW1 Rekha and PW2 Rajesh are parents of the victim are hearsay witness and does not have much evidentiary value . Pw-1 Rekha stated that she washed the clothes of the victim before giving it to the police on 20/04/07. She had not told her husband about the alleged incident on 19/04/07 because she felt ashamed. She intentionally denied that her daughter was not having anus problem and her daughter do not made any complaint in the anus she only complaint about the bleeding from the anus portion.. It is also stated in the cross- examination of the PW1 Rekha Verma that her daughter Raj Nandani victim made a complaint in anus for about a week after this incidence for which she got medicines for her from Chottu doctor i.e. accused who is having a clinic near her residence. Her daughter did not make any complaint about the rape.
The testimony does not inspire the confidence as there are various contradictions. PW-2 has concealed the factum that the victim is suffering from Piles and also getting treatment from Sunder Lal Jain Hospital. The said fact has been admitted by PW-9 Raj Nandani victim. There is no corroborative evidence alleged offence u/s 377 IPC. Even in the medical evidence it has been recorded initially on the MLC of the victim S.C. No.76/1/08 Page8/24 and same has been tampered. This fact has come in the statement of the IO as well as statement of the Doctor, as to they are not aware about the insertion of the word fresh hymen torn. The word fresh clearly admitted by the IO to have been inserted but she is not aware that who has inserted the said word and at what time and accordingly the said MLC of the victim has been tampered with. On the MLC mentioned that unnatural sexual assault, L/E-multiple mucosal, anal canal, painful, no active bleeding, anal tone increased" Thereafter the report on 12/05/07 states "fresh hymen torn there was no anal injury. In view of this possibility of sexual assault is there but it has to be related to chemical examination. The MLC compared with the two dates report clearly shown the manipulation and fabrication.
It is further contended that on 20/04/07 various observations are found on the anal portion and the said observation are contradictory to the observation on 12/05/07. There is no explanation why and how the observation dated 12/05/07 has been recorded when the patient was only examined on 20/4/07. In the light of the said fact the allegations made by PW-1, PW2 and PW9 also before the Ld. M.M u/s 164 Cr.P.C and it is clear that there is no offence is made out u/s 377 IPC and PW-9 admitted that she was being treated for the piles from SLJ Hospital. There is no injury and there is no such explanation as well.
It is further contended that looking at the finding of the MLC of accused, it has been recorded that no fresh injury seen. No marks of injury/aberration/brushes on penis seen. Primary and secondary sexual character traits are fully developed. From the said observations of the doctor it clearly shows that the accused is capable of committing sexual intercourse and there was no mark of injury that the accused committed intercourse with the anal side because of the fact that tender age of the victim which would have been definitely had injury on her anus and similarly injuries on penis because of the well developed penis of the accused. However, there are no such marks of any kind of external injury on the private part of the victim. The prosecution story is not supported by any medical evidence.
Accused also been contended that there is no investigation on the allegations u/s 376 IPC. There is no explanation nor there is any material on record which call for investigation to bring the charges against S.C. No.76/1/08 Page9/24 the accused u/s 376 IPC. It may be perhaps that the investigating agency finding that no case can be sustained u/s 377 IPC as there has been made as manipulation and fabrication and got an opinion dated 12/05/07 contradictory to the opinion of 20.04.07 and also on the basis of a tampered MLC came out of the set of charges when no allegation by PW1, Pw2 and PW9 have been made out . It is the psychology of PW1 and PW2 it has been pointed out that the accused have been framed and falsely implicated by the said witnesses with a view to extort money and taken the house as made by the accused. The said allegation are made against the accused he would be implicated with a view to fulfill the illegal demand. They were apprehensive that in case if they make allegation u/s 376 IPC there is chance of carrying stigma and it is because of said fact both PW-1 and PW2 dared not to make allegation u/s 376 IPC. Both PW1 and PW2 stuck to the same allegation at the time of cross-examination of alleged assault on the anus and there is no allegation for any assault on the front private part of their daughter. They have never complained any assault on the front private part of her daughter and even when on asking categorically she stated that " My daughter did not make any complaint on the front side of the private part nor I got treated her for the same."
PW2 in his cross-examination stated that " My daughter never told me about the pain on her private parts on the front side or on the back side" Besides this there is no allegation of any sexual assault u/s 376 IPC. Prosecution firstly proved that , there must be allegation of PW-1, PW2 and PW9 that there was a sexual assault in order bring out charges u/s 376 IPC secondly the said allegation must be corroborated by the medical evidence. However here is a case where none of the witness have made any allegation of alleged offences u/s 376 IPC but the IO proceeded on to get medical opinion that too by somehow tampering the MLC and even when the victim was not taken to the hospital on 12/05/07 when there is alleged report of fresh hymen torn. It is quit impossible to make such report when the victim was not there. on the other hand the said MLC of the victim on 20/04/07 clearly show that there is no evidence of the injury and on separation hymen torn but by interpolating the word fresh it has been made as if it looks like on separation fresh hymen torn. The said interpolation and manipulation is not only disproving but also show doubt S.C. No.76/1/08 Page10/24 kind of the interpolation which have been made on the MLC for alleging u/s 376 IPC. even when none of the witnesses including prosecutrix has made allegation u/s 376 IPC.
PW4 Dr. Anjali Vaish appears to testify the signature of Doctor Anjali Gupta appears for the cross examination that to what extent the medical record does not even support the allegation of the prosecution either u/s 377/376 IPC. Though it has been objected that she can at best tell that Dr. Anjali Gupta could have written but she could not be a witness to the physical examination of the victim. Pw 4 Dr. Anjali Vaish was not present at the time of medical examination and preparation of MLC by Dr. Anjali Gupta. She has not told that how many occasions the victim has come to the hospital. She was not representing the hospital and she had not seen the patient nor her mother. She also stated that here was no injury around the anal area of the patient. The MLC does not suggest that whether the anal area was hit by soft or hard object or by any human organ. This clearly shows that there was no injury which could have brought the accused with the purview of section 377 IPC. When there is no sexual assault on the front private part, the question of making allegation against the accused u/s 376 IPC itself false on this ground itself. It is further contended that the IO PW-17 SI Rajbala, in her cross examination stated that at the time she received MLC recording at point B were already existing there at the portion C was also recorded on the MLC. As per noting of portion B and C there were no allegation of rape. It is also correct that as per statement of PW1 there was no allegation of rape at that time. It is also correct that as per portion A1 of the MLC there are no observations regarding the rape at the portion D and E on the MLC the fresh word was not there earlier when received the MLC. The same has been added.
It is further submitted by Ld. Defence counsel that PW17 SI Raj Bala stated in her cross examination that as per the noting of Portion B and C on MLC Ex. PW4/C there were no allegation of rape made by PW1 Rekha, PW2 Rajesh and PW9 Raj Nandani victim. It is also admitted that at portion A 1 of the MLC t here was no observation regarding the rape and at portion D and E on the MLC the fresh word was not there earlier when received the MLC and the same has been added later on by the S.C. No.76/1/08 Page11/24 doctor but she could not say as which doctor has added the word at portion in circle E and in what circumstances. There was no mark of external injury near vagina was found. It is also not possible to ascertain from the MLC as to how long before examination the hymen could have been torn. No injury was found on the levia majora and levia minora. It is not always necessary that hymen can torn only by penetration. And if a female child takes high jump or long jump there is possibility of hymen torn. Nothing has been mentioned in the MLC about pain being complained by the patient in or about the vaginal or anal area. There is no mention of oozing or flowing of any liquid from vaginal or anal portion. It is also not mentioned in the MLC as to which part of the hymen was torn with a linear or posterior or posterolateral. T he doctor who does not corroborate the allegation of the prosecution witnesses regarding the rape and insertion of word fresh mentioned in the MLC which created doubt in the preparation of the MLC and could not opined on 12.5.2007 since PW17 did not produce victim before the got her medical examination which create a reasonable doubt on the prosecution story.
It is further contended that there are material contradictions in the deposition of prosecution witnesses. PW1 and PW9 at no point of time has alleged that the accused has bolted the room from the inside at the time of alleged occurrence. There is no explanation as to how the delay of 26 hours has occurred in lodging the FIR. None of the doctor has alleged that there is any kind of assault on the front private part or that there is any penetration. As such the prosecution has failed to bring home charges under any of the offences which has been framed upon the accused as such the accused is entitled for the acquittal.
Having heard the submission of Ld. Public Prosecutor and Ld. Defence Counsel and also gone through the material placed on record as well as the citation filed.
'Intention' is a matter of inference from the circumstances of the case and the subsequent conduct of the accused after the abduction has taken place. Ordinarily it is not possible for the prosecution to establish the 'intention' except by proving the conduct of the accused. Human nature being what it is, whenever one finds a young man abducting a girl of marriageable age, the first and natural presumption must be that he had S.C. No.76/1/08 Page12/24 abducted her with the intention of having sexual intercourse with her either forcibly or with her consent after seduction or after marrying her. If he has any intention other than that which is suggested by the natural circumstances of the case, the burden lies upon him under section 105, Indian Evidence Act to prove that intention. This view is also taken in Haidar Shah AIR 1930 Lah 52.
In case titled as Raj Singh Vs. State of Haryana and another 2002 (3) CC1(P&H), it has been held that " .... In every criminal case, there is tug of war which goes on between the accused and the prosecution, accused trying to win over witnesses; prosecution trying to see that they support the prosecution and do not resile."
In case of defective investigation, the court has to be circumspect in evaluating the evidence but it would not be correct to acquit the accused solely on account of defect in investigation. To do so would tantamount to playing into the hands of the Investigation Officer even if the investigation is designedly defective. This view is taken in State Vs Gurmit Singh AIR 1996 SC 1393.
So far as the contradictions or discrepancies pointed out by Ld. Defence Counsel are concerned, they are bound to occur in the statement of prosecution witnesses when they appear to depose after lapse of certain period. Guidelines on how to appreciate the testimony of natural witnesses were laid down in the case Zamir Ahmed Vs. the State 1996 Cri. L.J 2354 where while discussing the provisions of Section 3 of the Evidence Act, it was held that " It would be a hard nut to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnesses with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in h is own words according to his own perception and in proportion to his intelligence power of observation.
It has to be borne in mind that the approach required to be S.C. No.76/1/08 Page13/24 adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.
Seduction is a comprehensive expression and does not exclude the possibility of deceitful means being used in order that seduction may be practiced with effect. The words 'illicitintercourse'means merely sexual intercourse between a man and a woman who are not husband and wife. It is not confined to sexual intercourse by a man with a married woman but includes such intercourse between two unmarried persons. If the intention to kidnap a girl in order to seduce her to illicit intercourse is present, the fact that the accused had illicit intercourse with the girl before she was kidnapped is wholly immaterial. Similar view has been observed in case titled as Prem Narain AIR 1929 All 82 (1929) 30 Cri LJ 218 (All).
No doubt there was a delay in lodging the FIR but it is also the matter of fact that the victim and the complainant has not made any delay to inform to the police and the information has been given in time as and when he got received and positive action has been taken to this effect after due verification of the allegation FIR was recorded and delay to lodge the FIR for 26 hours is not a delay.
Mere delay in filing First Information Report is no ground to doubt the case of the prosecution that the evidence given by victim and complainant should not be accepted. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the First S.C. No.76/1/08 Page14/24 Information Report. Delay has the effect of putting the court in its guard to search if any explanation has been offered for the delay, and if offered whether it is satisfactory or not. There may be various reasons for filing a complaint after some delay. The accused may be related to the prosecutrix, that the prosecutrix may be a young girl and she might have been threatened; she might be worrying about her future; she might have been frightened and may be in traumatic state of mind. No strait jacket formula can be evolved in such matters, and each case must rest on its own facts. As observed in case titled as Ramdas AIR 2007 SC 155:
2006(4) Crimes 329 (SC).
In the instant case PW9 Raj Nandani stated that the accused took out off my undergarment and did " galat Kam" from behind. In cross examination it is denied that " she and her parents had taking medicine fro Bengali Doctor. It is correct that she was being treated for her disease (piles) from Sunder Lal Jain Hospital". She further deposed in her cross examination that " She had felt pain in her anus even after eight or ten days of the incident. But she did not go to any doctor for her pain. It is correct when she used to feel pain in her anus blood also used to come from that portion. It is correct that she had also pain and bleeding of the diseased which she have been treated from Sunder Lal Jain Hospital. This was continue regularly during the treatment. "
PW1 Rekha Verma stated that " PW Rajnanadani is her daughter ..... came from the school and went to purchase come toffee. She gave her two rupees. After 15-20 minutes she came back. Her clothes were full of blood stains. Initially she did not speak, but when she persuaded her she told her that when she gone to purchase toffee, Bangali doctor called her inside clinic which was adjacent to shop, where from she had to get toffee, Bangali doctor asked her where her mother was to which she replied that her mother was at home. At this Bangali doctor called her inside his clinic. She further told her that Bangali doctor has committed sodomy and also sexually assaulted her as a result her private parts and anus started bleeding. She washed the blood stained clothes of her daughter being ashamed of the incident. As her anus started bleeding , she narrated the S.C. No.76/1/08 Page15/24 incident o her husband next day who informed the police. In cross examination PW1 Rekha Verma has denied the suggestion given by Ld. Defence Counsel.
PW2 Rajesh Verma has stated that " on 20.4.2007 his wife informed him that "his daughter Raj Nandani had gone to a shop to purchase toffee on 19.4.07 where accused who was running a clinic in the neighborhood committed sexual assault on his daughter. HE immediately informed to the police on dial number 100." The deposition of the witnesses has also been corroborated by the medical evidence in the deposition of PW6 Dr. Sanjay Kumar , PW4 Dr. Anjali Vaish who proved the MLC Ex. PW4/A prepared by Dr. Anjali Gupta.
Statement of prosecutrix was recorded u/s 164 Cr.P.C where in she also alleged that she has been sexually assaulted from her back portion. The undergarments of accused blood and semen samples were also seized. Semen stained underwear Ex. 1 of the prosecutrix is found and the underwear of the accused found to be "O" group of semen. The result of the chemical analysis is Ex. PW17/A which was found to human semen on Ex. 1 and 6 i.e. undergarment of the victim and undergarments of accused. The blood was also detected on undergarments of the victim tallied with the blood sample of the accused. PW8 Deepak also admitted the fact that he know the Raj Nandani aged about 5-6 years living nearby jhuggi of his shop. He also know the accused also who is running a medical clinic and he is known by the name of Bengali Doctor. About 1 ½ years ago on the date of 19th April Raj Nandani came to his shop to purchase a toffee and she went. Thereafter , she got busy in dealing with other customers present at the shop. Victim Raj Nandani was present there at the relevant time this fact has been proved by PW8 Deepak. In these circumstances the testimony of the prosexutrix Raj Nandani PW9 was found to be truthful and her testimony was corroborated on material points by PW1 Rekha i.e. her mother and the medical evidence as she was subjected to carnal intercourse by the accused. However as regarding to the sexual intercourse from the frontal private part of Raj Nandani same has not been proved by ocular evidence since neither the Raj Nandani has stated before the Ld. Magistrate in her statement recorded u/s 164 Cr.P.C/c or made in her deposition before the court and the facts with S.C. No.76/1/08 Page16/24 respect to the incident made in the MLC dated 12.5.2007 are seems to be related in absence of the prosecutrix that she was sexually intercourse by accused on that day. Therefore, ingredients of section 376 IPC is not found available under the facts and circumstances and depositions of the witnesses.
The accused made defence, in his statement u/s 313 Cr.P.C by stating that it is a false case, he is innocent. Parents of Raj Nandani has falsely deposed against the him and they were blackmailing for giving him house/jhuggi to them and when he did not agree for the same they have implicated him in collusion with the police in this matter.
Accused in his defence also examined DW1 Smt. Rekha, who deposed that her Jhuggi is on the back side of Jhuggi of the accused and they are residing in the said Jhuggi for the last ten years. She know the family of Ashutosh Vishwash and his wife as well. She also know Smt. Rekha Verma who resides in the same vicinity near her Jhuggi. The accused was arrested from the Bank where he has gone to take out the money and has not been arrested from the Jhuggi. So far she know the accused has never been involved in any offence nor has ever indulged in any kind of such activities about which he has been blamed. So far she know that he cannot do such acts which has been alleged against him. She also know that accused has constructed a house at Nathu Pura. She also heard from Rekha Verma that she has been demanding one of the house or house at Nathu Pura at a lesser price which was not agreed by the accused.
In cross examination DW1 Rekha stated that she has not stated that she was present at the relevant time along with the accused at his clinic or the accused was somewhere else and there is no motive to implicate the accused falsely in this case. The allegation of the blackmailing by the parents of the victim has come after ward in the mind of the accused after the incident when the FIR was lodged and some negotiation for compromise was being held between the parties. To this effect that there was no enmity or any litigation with the family members of the victim. Hence the allegation made against the accused have been clearly established, it is by no means incumbent on the prosecution to show what particular motive actuated the criminal'smind and induced him S.C. No.76/1/08 Page17/24 to commit the particular crime. However , however, the prosecution puts forwarded a substantive case as to the motive for the crime.
Keeping in view the facts and circumstances of the case it reveals that the testimony of prosecution witnesses including the deposition of the prosecutrix are free from any blemish or infirmity. She had come out totally unscathed from the test of cross examination, there was no reason why complainant should try to falsely implicate the accused with whom she had no enmity. The testimony was fully corroborated by the medical evidence and lodging of the First Information Report without any unexplained delay eliminated the chances of any falsehood in the prosecution story. The accused is liable to be convicted for the charges of sodomy. In a charge of sodomy stains of semen constitute important evidence. Great weight must, therefore, be attached to the Chemical Examiner's report.
If the persons suffering a piles ailment can also be subjected to sodomized. There is no restriction or barrier for committing the unnatural offence. Even through the victim may suffers of ailment on her anus.
In case titled as Kerala Vs. M.M. Mathew and another, AIR 1978 SC 1571, it was observed that " The evidence of the IOs cannot be branded as highly interested on ground that they want that the accused are convicted. Such a presumption runs counter to the well- recognized principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case."
The PW1 Rekha is the mother of the victim is in close relation which is not a factor to affect the credibility of the witness of close relative i.e. mother, who first of all observed the blood on undergarments of PW9 Raj Nandani and victim first of all narrated the event happening with her to PW1 Rekha Verma i.e. her mother. There is no ground to discard her evidence. The evidence of the victim and her mother PW1 Rekha is unimpeached in cross examination and corroborated by medical evidence, then their evidence are reliable to prove occurrence with incident. Their S.C. No.76/1/08 Page18/24 evidence are consistence with the FIR and medical evidence. Their evidence cannot be discarded. It cannot be said that they are interested or tutored witnesses.
In view of the above discussion the prosecution brought home the guilt of the accused u/s 377IPC. The testimony of the prosecution witnesses are reliable, trustworthy and corroborative. The deposition of victim and complainant corroborated with the medical and scientific evidence and inspired confidence and there is no major dent in the investigation. Therefore, accused Ashutosh Vishwash S/o Sh. Hiralal Vishwash is hereby convicted for offence punishable u/s 377 IPC.
ANNOUNCED IN THE OPEN COURT TODAY ON 14.05.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI S.C. No.76/1/08 Page19/24 IN THE COURT OF SH. SATINDER KUMAR GAUTAM, ADDITIONAL SESSIONS JUDGE,WEST DISTRICT, DELHI SC No. 76/01/08 State Versus Ashutosh Vishwash s/o Sh. Hiralal Vishwash R/o Jhuggi No. E-502, Group in front of A-43, Shahid Sukhdev Nagar Wazirpur Industrial Area, Delhi Permanent Address:
R/o Gali No. 10, D- Block, Khasra no. 1156, Nathupura, Delhi FIR No. 273/07 u/s 377/376 IPC PS: Ashok Vihar ORDER ON SENTENCE:
Present: Sh. Mukul Kumar, Additional Public Prosecutor for State.
Convict/accused from J/C with counsel Sh. K.Sunil. The accused/convict has been convicted for offence punishable u/s 377 IPC vide separate detailed judgment dated 14.05.2010.
I have heard submission of Ld. APP for State and counsel for accused on the point of sentence and carefully gone through the material on record.
Ld. APP for state argued that the prosecution proved its case against the accused beyond all reasonable doubts. The testimony of victim/PW9 Raj Nandani, complainant/PW1 Rekha Verma, father of victim i.e. PW2 Rajesh/complainant and other material witnesses are trustworthy, corroborated and believable. There is no rebuttal to the deposition of the prosecution witnesses. The victim Raj Nandani categorically stated that "the accused took off her undergarment and did "galat kam from behind......."" Ld. defence counsel only made suggestions that no wrong act has been committed by accused and he has been wrongly identified in the court.
It is further submitted that the testimony of the PW9 Rajnandani S.C. No.76/1/08 Page20/24 in itself is enough to convict the accused. It need not to be corroborated by any other evidence as she is the best witness and she is not likely to exculpate the real offender. This view is also taken by catena of judgment by the Apex court as well as hon'ble Hight Court of Delhi.
It is further contended by the Ld. APP for state that the measurement of punishment in a case of sodomy/unnatural act should not depend on the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted male and the gravity of the criminal act. Crimes of violence upon male need to be severely dealt with. The socio-economic status, religion, race, cast or creed of the accused or the victim are irrelevant considerations in sentencing policy. The courts must hear the loud cry for justice by society in cases of the heinous crime of unnatural act on innocent helpless person 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.
Ld. defence counsel submitted that the case of the prosecution is tagged with the statement of the PW9 Rajnandani recorded u/s 161 Cr.P.C. and deposed before this court which has been corroborated by statement of PW1 Rekha Verma and PW2 Rajesh as well as other circumstantial evidence including the medical evidence. The accused is having responsibility to feed his family being sole bread earner of his family and if he will be kept behind the bars, it will not only punish him but it would be a punishment to his family members. The Ld. defence counsel further submitted that accused has suffered physically and mentally a lot and also remained in J/C for a sufficient period i.e. for about 3 years and one month In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. 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 to the judge in arriving at a S.C. No.76/1/08 Page21/24 sentence in each case, presumably to permit sentences that reflect more subtle considerations of 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 sentence 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. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, cannot be lost sight of and perse require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offence will be result wise counter productive in the long run and against social interest which needs to be cared for an strengthened by string of deterrence inbuilt in the sentencing system. Ld. counsel for accused submitted that accused is innocent and falsely implicated in this case and he has nothing to do with the offence. Therefore, he may be released to undergone imprisonment.
In view of the aforesaid submission of Ld. APP for state and Ld. defence counsel, I am of the view that it has been very aptly indicated in Dennis Councle MCG Dautha Vs State of California (402 US 183: 28 L.D. 2d 711) that no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs State of Madhya Pradesh, it has been held that, "in operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the S.C. No.76/1/08 Page22/24 accused, nature of weapons used and all other attending circumstances are relevant in award of sentence. Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. .......... In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner.
The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
In Sevaka Perumal etc. Vs State of Tamil Nadu (1991 (3) SCC 471 "It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. 2008 X AD SC 648, in this case, the accused's lustful acts have indelible scar not only physically but also emotionally on the victim. No sympathy or leniency is called for.
In view of the facts and circumstances of the case, the punishment for the offence u/s 377 IPC is imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Therefore, such sentence should be passed in case as proved by the prosecution, which serve the purpose of law and also to the victim.
The sentence u/s 377 IPC an offender under this section must be awarded a deterrent sentence and no mercy need to be shown in the matter of sentence. Fact that imprisonment for a lesser term can also be awarded for offence under section 377 would not take it out of category of offence punishable with imprisonment for life and consequently the accused offender cannot be released on probation of good conduct in view of section 6 of Probation of Offenders Act 1958. The act of accused S.C. No.76/1/08 Page23/24 momentary lack of control over feelings- sufficient social ostracisation and humiliation likely to have been suffered by accused. In case 1998 Cr.LJ 2587 (2592) it has been observed that " accused found guilty of committing unnatural offence upon the female of 5 years. Accused aged about 20/21 years and not a previous convict. The sentence reduced to three year RI and fine of Rs. 1000/-."
Considering the nature of offence and facts and circumstances and judicial custodial period of convicted i.e. more than three years the convicted Ashutosh Vishwash S/o Sh. Hira Lal Vishwash is hereby sentenced to Rigorous Imprisonment for the period already undergone by him and fine Rs. One Lakh, in default of payment of fine, he shall undergo SI for one years u/s 377 IPC. Out of the fine amount sum of Rs. 50,000/- will be payable to the parents of victim Raj Nandani as compensation u/s 357 Cr.P.C. The sentence awarded to the convicted shell meet the end of justice. Copy of this order be given to the convicted free of cost forthwith.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT TODAY ON 24.05.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI S.C. No.76/1/08 Page24/24