Delhi District Court
State vs Vikram Kumar on 12 November, 2010
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 119/07
FIR No. 225/07
P.S. Tilak Nagar
U/s 376 (2) (f)/324/506/377 IPC
State Versus Vikram Kumar
S/o Sh. Bhola Nath
R/o C251, JJ Colony,
Khayala, Tilak Nagar,
New Delhi.
Date of Receipt : 07.11.2007
Date of arguments : 29.10.2010
Date of Decision : 12.11.2010
JUDGMENT :
1. The accused Vikram Kumar has been chargesheeted by Police Station Tilak Nagar for commission of offences under Sections 376 (2)
(f)/324/506/377 IPC.
2. Case of the prosecution, briefly stated is that on 26.03.2007, Arvind Kumar was at his home situated at C272, JJ Colony, Khayala, Delhi. He found that his daughter (hereinafter referred as 'K1') is not at home. She had gone to FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 1 of 32 play in the park at about 5.00 pm. When he asked his wife Phoolmala about K1, she went out and on return told that two more girls are missing. He went out in search of his daughter. At about 9.00 pm, when he reached in front of house no. C251, JJ Colony, Khayala, Delhi i.e the house of Bholanath, he noticed his daughter K1 along with two more girls (hereinafter referred as R1 and R2) getting down from the stair case of House no. C 251, JJ Colony, Khayala and they were weeping at that time. There was blood on the clothes and legs of the girls. He inquired from K1 as to what had happened, on which K1 told him that Vikram uncle called them for giving toffee and took them in the room situated at the top floor of the house and he laid down over them and they started weeping. They were also given beatings and he also had bitten R1. He called at 100 number. PCR van came and removed all the girls to the DDU Hospital. He along with his wife also went to DDU Hospital. He told the police that Vikram had raped all the three girls. All the three girls were medically examined. From their medical examination, it revealed that girls have been subjected to sexual intercourse. Accused Vikram was apprehended on 29.03.2007 from I.S.B.T. He was also medically examined. After completion of the investigation, chargesheet was filed.
3. Learned Metropolitan Magistrate after complying with the provisions of Section 207 Cr.P.C, committed the case to the court of Sessions as the offence punishable u/s 376 (2) (f) IPC is exclusively triable by the Sessions FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 2 of 32 Court.
4. Accused Vikram was charged for the offences punishable under Sections 376 (2) (f)/377/506/324 IPC by my learned Predecessor. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
5. The prosecution in order to prove its case, examined 29 witnesses in all and thereafter, the prosecution evidence was closed.
VICTIMS/EYE WITNESS :
6. K1 was examined as PW1. She was questioned and after satisfying that K1 is able to understand the questions and to give rational reply to the same, the Court proceeded with examination of K1 and she deposed that : "........ I know the accused present in the court. I, Prince and (R1) were playing in a park. The accused took us to his house by giving a Toffee. The house of accused was near the park. I alongwith Prince, (R1) and (R2) went to the house of the accused. Accused took us to a room after climbing the stairs. Accused dropped water on my feet. The accused had put his organ by which he urinate in my mouth and I started bleeding. He started doing "Gandi Baat". I started weeping loudly. He lied down on my private part at the place where undergarments are worn and removed the same. The FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 3 of 32 accused had inserted his organ of urination in my private part from where I urinate. There was bleeding at that time. Accused also inquired from Prince whether he is boy or girl. When Prince replied that he is a boy, accused slapped him and sent him out of the room. The accused also did the wrong act with (R1) . .............."
During crossexamination by the learned defence counsel for the accused, the witness stated that :
"........ I have never been to Vikram's house earlier to this incident. Mother and father of the accused were not present at that time. At that time, some person from the house had come on hearing the voice of weeping and had asked the accused what was he doing and he replied that I am teaching. The accused was alone and there were no other two boys with him. ......."
She denied the suggestion that wrong act had been committed by Moni and Twinkle and not by the accused.
7. R1 was examined as PW2. She was questioned by the Court and after satisfying that she is able to understand the questions and give rational reply, she was examined and she stated that : ".............. I along with (K1), (R2) and Prince were playing in the park. I was five years old at that time. In the evening while we were playing Vikram came and on the pretext of giving toffee to us FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 4 of 32 he took me, (R2), (K1) and Prince to his house which was situated at some distance from the park. There was none at the house of Vikram, when he took us there. Vikram gave one toffee each to all of us. Vikram removed his pant and the underwear. Thereafter he laid down on (K1). He also removed the underwear of (K1). He removed my underwear and laid over me. Thereafter he removed the underwear of (R2) and laid down over her. He also removed the underwear of Prince and also slapped him.........." She also stated that accused also put his male organ in her mouth. She denied the suggestion that police officials told her to name Vikram. She stated that she does not know any Twinkle or Mony. No person except Vikram was present in the room, when he had taken them.
8. R2 was examined as PW3. She was also questioned and after satisfying that she is able to understand the questions and give rational and intelligent reply, she was examined and she stated that : "............. I along with (K1), (R1) and Prince were playing in the park. Vikram uncle came there and took us to his room on the pretext of giving toffee. He removed our underwears and he also removed his pant. He had shown us knife and also the match stick. He threatened us. He put oil and laid over us. Blood came out from the private part of me and (K1). He also bitten on my cheek. Q. Do you know why the blood came from your private part ? FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 5 of 32 Ans. I do not know.
But the blood came out after Vikram laid over (K1) and me. Vikram uncle is present in the court today sitting on the last row correctly identified............"
During crossexamination by the learned defence counsel, she stated that there was no one else in the room except Vikram, when he had taken them. She stated that she does not know any person by the name of Twinkle or Moni. She also stated that police Aunti told her as to what has to depose, but at the same time, she also stated that it has happened as deposed by her and she does not know, why the police aunti told her as to what she has to depose.
9. One more witness namely Prince was also examined as PW4. He being minor, the Court after satisfying that he is able to give rational reply to the questions put to him, the Court proceeded to examine him. He deposed that : "...........I was playing in the park with (K1), (R1) and one more girl, whose name I do not remember. I was at that time in class KGI, but I do not remember the date, month or year. While we were playing, Vikram Uncle came there. Vikram Uncle gave Chewing gum to me and to the girls also. Vikram Uncle took us to his room. Vikram uncle said to me "Bhag ja, nahi to kat dunga". To reach the room of Vikram Uncle, one has to climb three stair cases. After FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 6 of 32 (he) threatened me, I came down and went to my house. The hree girls remained in the room of Vikram uncle. Vikram Unc s today present in the Court. ............."
He was crossexamined, but nothing material favouring the defence came on the record.
PUBLIC WITNESSES :
10. Complainant Arvind was examined as PW5. He supported his complaint and stated that he saw the three girls including his daughter getting down from the house of Bhola Nath and they were crying. He noticed blood on their clothes and on their thighs. He stated that when he asked his daughter K1, she told him that "Vikram uncle had taken me upstairs on the pretext of toffee and he laid upon me and I started crying." This witness stated that K 1 told him that accused also put his private part in the mouth of R2 and also gave a teeth bite on the cheek of R2.
During crossexamination, he stated that Vikram was tenant in the house of Bholanath. He stated that he did not tell the police that incident had taken place at C240241. According to him, children were taken from the house of Bholanath by the PCR.
11. Manju was examined as PW13. She is not a witness to the incident. She is the mother of R2. She stated that her daughter has gone to play along with K1 and R1 and one boy. Her daughter did not return and she went in FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 7 of 32 search of her. During search, she came to know that girls are in the house of Bhola Nath i.e the house no. C251. She noticed that there was a bite mark on the cheek of her daughter and there was blood on her clothes and legs. She came to know that Vikram had raped all the girls.
12. Smt. Phool Mala was examined as PW14 and she also supported the testimony of her husband examined as PW5.
13. Sh. Ram Asrey was examined as PW17. He is the father of R1. He also stated that he went in search of his daughter and other children, who were playing in the park and he came to know that girls have been raped in C251, JJ Colony, Khayala and when he reached there, girls had already been removed to DDU Hospital.
14. Smt. Usha was examined as PW26. She was also a tenant in the in the same building and she also supported the prosecution case. MEDICAL EVIDENCE :
15. Dr. Nirmal, from DDU Hospital was examined as PW6. He proved the MLC of R2 as Ex. PW6/A, of K1 as Ex. PW6/B and of R1 as Ex. PW6/C. He advised the patients to be admitted in the labour room and Gyene Ward.
16. Dr. Anupama was examined as PW7 and he is a DNA Finger Print Experts, FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 8 of 32 AIIMS, New Delhi. She proved that blood samples were taken from the victims and the accused for DNA Profile and proved the forms for collecting the blood sample as Ex. PW7/A, Ex. PW7/B, Ex. PW7/C and Ex. PW7/D. She also proved the report of finger printing test/analysis as Ex. PW7/E.
17. Dr. Ruchi from DDU Hospital was examined as PW10. She proved the discharge summary of R1, which was prepared by her and according to the discharge summary, R1 was admitted in the hospital on 26.03.2007 and was discharged on 28.03.2007. The discharge summary is proved as Ex. PW 10/A.
18. Dr. Neeta Bindal, CMO of DDU hospital was examined as PW11. She proved the discharge summary of R2 and other papers as Ex. PW11/A. During crossexamination, she stated that injuries sustained by R2 were due to sexual assault unless proved otherwise. There is unlikelihood of any internal vaginal injury as in this case except in a case of sexual assault, unless proved otherwise. In reply to a court question, she stated that II degree perineal tear means a tear involving mucosa, skin and underneath muscle also of the perineum.
19. Dr. Ajay Sharma from DDU Hospital was examined as PW12 in place of Dr. Ramit and Dr. Manjari. He proved the record of victim K1 and also the MLC of the accused Vikram. In the MLC of accused Vikram proved as Ex. PW FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 9 of 32 12/A, it was observed that there was nothing to suggest that he cannot perform sexual act.
20. Dr. Aruna Singh was examined as PW20. He was examined in place of Dr. Ajay Sharma and proved that Dr. Ajay Sharma was CMO at that time and he proved the report about blood grouping of the accused as Ex. PW20/A and in the report, it is mentioned that blood group of the accused is 'AB Positive.
21. Dr. Nishu Dhawan was examined as PW22 and she also proved the summary sheet regarding K1. She deposed that K1 under went repair of virginal and rectal tear under general anesthesia exploratory laparotomy with end sigmoid colostomy under general anesthesia. Her testimony has also gone unchallenged and uncontroverted.
FORMAL WITNESS :
22. HC Bal Kishan was examined as PW8. He was working as Incharge of Power 45. On receiving the information about the rape at about 9.30 PM, he along with his staff reached at Cblock, JJ Colony, Khayala, where he found three minor girls aged about 5years i.e. R2, K1 and R1 and they told him about the commission of rape and he removed them to DDU Hospital and admitted them there.
23. HC Pawan Kumar was examined as PW9. He was working as Duty officer FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 10 of 32 and recorded the FIR on the basis of rukka received. Copy of FIR is proved as Ex. PW9/A.
24. HC Surender was examined as PW16. He was Finger Print Proficient and he stated that no chance print could be found on the scene of crime.
25. Ct. Devender, who was working in Central Police Control Room, PHQ on 26.03.2007 was examined as PW21 and he proved the copy of PCR Form as Ex. PW21/A. On that day, he received the information that rape has been committed with a three year old girl at House no. 240/241, Cblock, JJ Colony, Khayala, Delhi and his testimony has gone unchallenged and uncontroverted.
26. Ct. Satya Pal, DD writer was examined as PW23. He recorded DD no. 30 on receipt of information from the Distt. Control Room, which was assigned to ASI Madan Lal and same was sent to him through Ct. Om Parkash. He proved the attested copy of that DD as Ex. PW23/A.
27. HC Madan Singh was examined as PW27. He was working as MHCM in PS Tilak Nagar and he deposed that the case property of this case was deposited with him.
WITNESS OF INVESTIGATION : FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 11 of 32
28. HC Ranveer Singh was examined as PW18. He along with ASI Madan Lal reached the spot i.e. C251, JJ Colony, Khayala. Many public persons were there. They came to know that three girls had raped and PCR van had removed them to DDU Hospital. He also stated that Ct. Om Parkash also arrived there and ASI Madan Lal leaving him on the spot, went to DDU Hospital along with Ct. Om Parkash. According to him, there was a construction on the top floor of C251, where the offence was committed. It was got photographed and from the scene of crime, one scissor, one khanjar numa knife, a pair of tops and one blood stained pant were lifted and same were sealed with the seal of RC and were seized vide memo Ex. PW18/A, Ex. PW18/B, Ex. PW18/C and Ex. PW18/D. He also proved the arrest of the accused on 29.03.2007 from I.S.B.T.
29. HC Om Parkash was examined as PW19, who was in investigation along with ASI Madan Lal and he also supported the prosecution case.
30. SI Anil Kumar was examined as PW24. He was Incharge of Mobile Crime Team. He stated that he along with his team reached at house no. C251, Top Floor, JJ Colony, inspected the scene of crime and submitted his report proved as Ex. PW24/A.
31. Ms. Rekha, Ld. Metropolitan Magistrate was examined as PW25 and she proved the statements of the witnesses recorded u/s 164 Cr.P.C as Ex. PW FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 12 of 32 25/B, Ex. PW25/F, Ex. PW25/K, Ex. PW25/O and Ex. PW25/S.
32. ASI Madan Lal was examined as PW28, who on receipt of DD no. 30, visited the spot. He also fully supported the prosecution case.
33. SI Rajni Chopra, IO of the case was examined as PW29. She also fully corroborated and supported the prosecution case. Thereafter, the prosecution evidence was closed and the case was fixed for recording the statement of the accused.
34. Statement of the accused was recorded u/s 313 Cr.P.C, wherein in reply to the most of the questions, he answered "I do not know". He wished to lead evidence in his defence, but closed the defence evidence without examining any witness. Thereafter, the matter was fixed for final arguments.
35. I have heard ld. Addl. PP for the State, ld. Defence counsel for the accused and have perused the record.
36. Ld. Addl. PP for the State submitted that in the present case, the three girls K1, R2, R1 and one boy Prince were allured by the accused while they were playing in the park on the pretext of giving them toffee. He took them to the top floor of his house, in a huttype construction. In that room, he raped K1, R2 and attempted to rape R1. Ld. Addl. PP submitted that K1 was FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 13 of 32 examined as PW1 and she has specifically stated that accused had inserted his organ of urination in her private part, from where she urinate. There was bleeding at that time. She also stated that accused put his organ in her mouth. She stated that accused also did wrong act with R1. R1 was examined as PW2. She also stated that accused removed her underwear and laid over her. R2 was examined as PW3. She stated that she put oil over them. The blood came from the private part of her and K1. She also stated that accused had bitten on her cheek. Prince was also examined as PW4 and he also corroborated the supported the testimony of PW1, PW2 and PW3. All the four witnesses specifically stated that they were playing in the park, when the accused came there, took them to the room on the pretext of giving them toffee. Thereafter, he asked Prince to ran away. PW4 came from there and three girls were left with the accused in the room. Three girls told as to what had happened with them. Medical evidence is there. According to the discharge summary of K1 proved on record as Ex. PW 22/A, there was vaginal, rectal tear following alleged sexual assault and she was operated by the doctor for repair of vaginal & rectal/anal tear under general anesthesia and exploratory laparotom, end sigmoid colostomy and hartomar procedure was carried out, which clearly shows that there was a vaginal and rectal/anal tear due to sexual assault. Similarly, R2 was found to be having II decree perineal tear and she was operated under general anesthesia. Ld. Addl. PP submitted that in both these cases, injuries which were found could be there only due to the sexual assault. Doctor examined FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 14 of 32 as PW11 has specifically stated that injuries sustained by R2 could not be caused except in a case of sexual assault. Similarly, the tear of vagina as well as rectal cannot be there except in a case of sexual assault. It is important to note that age of the girls was only 51/2 years and 5 years and accused was matured one. The girls were put under threat. According to PW3, He also applied oil and thereafter he forced his male organ into her private part and she started bleeding. She suffered second degree perineal tear and it was the accused, who caused these injuries to her. Similar is the case of K1. She also stated that accused laid over her and inserted his male organ into her private parts and she started bleeding and also crying. PW2 and PW3 also stated that they were threatened on the point of knife and even by matchstick. R2 also stated that she was bitten on her cheek by the accused. No doubt, it cannot be established that the teeth bite on the cheek of R2 was of the accused as no such evidence was collected, but there is no such crossexamination of R2 that teeth bite was not given by the accused. Ld. Addl PP submitted that there are some contradiction in the timing of arrival of the crime team on the spot. According to the Incharge of crime team examined as PW24, they reached the spot at about 11.15 pm and left the spot at about 12.15 am, whereas according to PW18, crime team reached the spot at about 2.00 or 2.30 am. According to SI Rajni Chopra examined as PW29, the crime team was already present, when she reached the spot, but that does not make a difference as to at what time, the crime team reached on the spot. Photographs of the scene of crime were FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 15 of 32 taken and same were proved on record as Ex. PW15/A1 to A8 and crime team report was also prepared, which is proved on record Ex. PW24/A. The photographs establishes the presence of scissor, knife and match stick on the spot. Victim have already been stated that they have been threatened by using the knife by the accused. Ld. Addl PP submitted that keeping in view all these facts, it is clearly established that the accused allured the girls K1, R2 and R1 on the pretext of giving them toffees, took them to his room and committed rape upon K1 and R2 and also attempted to commit rape upon R1. He had also bitten on the cheek of R2. Medical evidence also supports the same. No doubt, witnesses are children, but a conviction can be based on the testimony of the children, if they are trust worthy and reliable. In the present case, there is nothing on record that children were subjected to tutoring or they had any reason to falsely implicate the accused in this case. There is no reason to disbelieve their testimonies. It is prayed that as prosecution has established its case against the accused beyond doubt, the accused be held guilt and convicted.
37. Learned Defence counsel submitted that it is a false case. Accused has been falsely implicated in this case. No offence was committed by him. In fact, there were four other boys, who committed this offence. It is evident from the report of NGO, which is on record as Ex. PW29/D1 and it is given by Swanchetan dated 15.05.2007. In the report, it is clearly mentioned in para 2 that : FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 16 of 32 "..... A joint counseling session was conducted with (R1) and (R2) in their home. (K1) was still in the hospital and Prince has left for the village. According to all of them there were four people who abducted them and kept in the captivity. All the children were reportedly threatened with knife and scissor to slit their throats by these men. The accused also physically assaulted them by kicking and holding their throat. They were subsequently sexually by the accused. ....."
Ld. Defence counsel submitted that in view of the report of the Independent Agency i.e. N.G.O coupled by the DNA Test Report Ex. PW 7/E, according to which, the DNA of the accused was not found or matched with any of the incriminating evidence, clearly shows that this offence was not committed by the accused and in fact there were other boys, who committed this offence. Learned defence counsel submitted that keeping in view the report of the NGO Ex. PW29/D1 that offence was committed by four persons and the fact that DNA of accused was not detected on the vaginal swab of the victim or on the clothes of the victims, the benefit be given to the accused and he be acquitted.
38. After considering all these facts and also the statement u/s 164 Cr.P.C of R 1, which is proved on record as Ex. PW25/F, there also she stated that there were three boys on the roof and one of them put his male organ in the mouth of R2, I found that substantial evidence, which has come on record is the FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 17 of 32 statements of the victims recorded in the court and there they all specifically stated that it was the accused, who took them to that room and committed offence. The suggestion was given to the victims that there were two other boys namely Twinkle and Mony, but the witnesses stated that there were no other boys. Even PW4 Prince, when appeared in the witness box, stated that it was only accused Vikram, who took them to the room and when he left, only Vikram and the girls were there in the room. He also denied the suggestion that there were four other boys and not the accused Vikram. It is important to note that besides this evidence, there is evidence of one more witness namely Usha examined as PW26. She stated that she also went upstairs on hearing the cries of the children and found the door of the room bolted. She found that son of the landlord was there on the fourth floor. She asked him to open the door and accused told her that he is taking the tuition. This witness also stated that even the sister of the accused also came there and she also asked him to open the door, but he stated that he is taking tuition and refused to open the door. There is no crossexamination of this witness on the point that she had not heard the cries of the children or that she had not gone to upstairs or that accused did not tell him that he is taking tuition. This testimony of PW26 also found corroboration from the testimony of PW1. During crossexamination, she stated that : "....... At that time, some person from the house had come on hearing the voice of weeping and asked the accused what was he doing and he replied that I am teaching...."
FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 18 of 32 This witness has also stated that accused was alone and there were no other two boys with him. In view of the testimony of this witness and of PW26, I do not find any merit in the contention of the learned defence counsel that there were other boys, who committed the offence and not the accused. So far as DNA report is concerned, nondetection of DNA of accused in the vaginal swab is concerned, in my opinion in view of the statements of the witnesses that accused put his male organ in their private parts and there is nothing on record that there was any seminal discharge, it is of not much importance.
39. Ld. Defence counsel further submitted that police received the information about the commission of offence vide DD no. 30. It was recorded on the basis of the information received by the PCR and the PCR form has also been proved on record as Ex. PW21/A. According to Ex. PW21/A, the call was attended by PW21 Ct. Devender and the call received was that a three year old girl raped at House no. 240241, Cblock, JJ Colony, Khayala. In DD no. 30 also that information was that a three year girl had been raped at C240241, CBlock, Khayala. PCR official, who reached the spot and appeared in the witness box as PW8 stated that they reached at House no. 511 and does not mention house number 251. Learned defence counsel submitted that in fact, some offence was committed at C240241 and that information was received. The police had gone there and later on, implicated FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 19 of 32 the accused and planted the evidence upon him.
40. In this case, no doubt, the record shows that the information received was of a rape of three years old at C240241, that is not substantiative evidence, but that was the information received to put the police machinery in motion to investigate the matter. When the police reached at the spot i.e. PW28 ASI Madan Lal and PW19 HC Om Parkash and PW18 HC Ranveer Singh and they came to know that in fact the incident had taken place at C251 and not at C240241. Even victims stated that incident was committed in the house of Vikram. PW26 also stated that it was in the house of Vikram. Under these circumstances, I do not find any merit in the contention of the ld. Defence counsel that offence was not committed in the house of Vikram. Even PW26 specifically stated that she heard the cries of the children coming from the room situated on the top floor of C251. She also saw the accused going down stairs after commission of offence. PW5 Arvind stated that he also reached there and he saw the children coming down stairs from the C251. Under the circumstances, when the victims stated that this offence was committed by Vikram. Other link evidence also show that it was accused Vikram, who committed the offence and PW26, who is tenant in C 251 stated that she saw the accused coming down along with children from the top floor, in my opinion, the entry in the DD that offence was committed at C240241 looses its importance and that also is not the substantive evidence.
FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 20 of 32
41. Ld. Defence counsel submitted that witnesses have been tutored as they are child witnesses and PW3 specifically stated that police aunti told her about the incident and as to what she had to depose in the court. Under these circumstances, when the witnesses are children, the possibility of tutoring them cannot be ruled out, hence no reliance shall be placed on their testimonies and benefit of the same be given to the accused and he be acquitted.
42. As pointed out earlier, the court before proceeding to record the testimony of the child witnesses ascertained that the witnesses are not under any threat or pressure or tutored and were able to understand the questions and give a rational reply. It is important to note that child witnesses have also stood through the scrutiny of crossexamination. So far as PW3 is concerned, she no doubt stated that police aunti told her about her statement, but this witness had also stated that she had deposed whatever had happened with her and she does not know, why the police aunti told her as to what she had to say in the court. This clearly shows that she had deposed about the incident, which had taken place with her and not according to the police aunti. It is well settled principle of law that the child witnesses can be relied upon for convicting the accused, if the such witnesses are reliable. The Hon'ble Supreme Court after discussing the law on the point of child witness, in a case titled as State of Karnataka v. Shantappa Madivalappa FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 21 of 32 Galapuji, AIR 2009 SC 2144 held that :
1. Evidence Act does not prescribe any particular age as a determinative factor to treat a witness to be a competent one.
2. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto.
3. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction based thereon. 2000 (1) RCR (Criminal) 602 (SC)
4. Even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof.
5. Decision on the question whether the child witness has sufficient intelligence primarily rests with the trial judge who notices his manners, his apparent possession or lack of intelligence.
6. Though, it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted nor that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 22 of 32 in the way of accepting the evidence of a child witness. 1997 (3) RCR (Criminal) 227 (SC) The Hon'ble Supreme Court in a case titled as Suryanarayana vs. State of Karnataka, AIR 2001 SC 482 held that :
(i) Evidence of child witness cannot be rejected per se, but court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of statements and its reliability, base conviction.
(ii) Some discrepancies in the statement of child witness cannot be made the base for discarding the testimony. Discrepancy in deposition if not in material particulars, would lend credence to the testimony of child.
(iii) While appreciating the evidence of child witness, courts are required to rule out possibility of the child being tutored.
Here, there are four child witnesses. In the present case, there is nothing on record to disbelieve them. The witnesses had no animosity with the accused. They described the commission of offence in detail and stood through the test of crossexamination. All the child witnesses were able to understand the question and give rational reply. There is nothing on record that child witnesses were tutored. Their testimonies also found corroboration from the testimony of PW26, who is an independent witness. She also FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 23 of 32 heard the crimes of the children, went upstairs and when asked accused to what is going on, he replied that he is teaching. Thereafter, she also saw the accused going down stairs with the children i.e. Victims. Even PW5 Arvind also saw the victims coming down stairs from the house of the accused. Under these circumstances, when there is nothing on record that the parents of the victim had any reason to implicate the accused falsely and there is nothing on record to disbelieve the testimonies of the child witnesses, I found no reason to disbelieve the child witnesses examined as PW1, PW2, PW3 and PW4.
43. Learned defence counsel further submitted that no chance prints were fond on the spot, though Finger Print Proficient inspected the scene of crime. In my opinion, simple because no finger prints were found on the spot, does not mean that offence was not committed by the accused. Nonfinding of the finger print does not raise any such presumption under law.
44. Learned defence counsel submitted that there is contradiction about the timing, when the crime team reached the spot. According to the report of the crime team, the crime team visited the spot at about 11.15 pm, according to PW18, Crime team reached the spot at 2.00 or 2.30 am and according to PW19, crime team reached the spot at about 2.30 or 2.45 am, which clearly shows that crime team did not visit the spot and even these witnesses were also not there on the spot and the record was manipulated, benefit of the FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 24 of 32 same be given to the accused and he be acquitted.
45. After hearing the arguments and going through the record, I found that there is contradiction as to at what time the crime team visited the spot. Incharge of Crime Team examined as PW24 stated that they reached the spot at about 11.15 pm and left at about 12.15 am, whereas PW18 and PW19 stated that they reached at about 2.00 am or 2.30 am, but in my opinion, this is a minor contradiction and does not go to the root of the case.
46. In the present case, the four victims have been examined as PW1, PW2, PW3 and PW4 and all the four have identified the accused as the person, who committed the offence. PW1 stated that accused put his male organ in her mouth and also inserted his organ of urination in her private parts and she started bleeding. PW2 stated that accused removed underwear of K1 and laid over her and blood started coming out from the private parts of K1. He also did the wrong act with her and also with R2. She also stated that accused had shown them the knife and threatened. PW3 also supported the case and stated that accused laid over her and blood came out of her private parts. She also stated that accused had bitten on her cheek. It is important to note that there is no crossexamination of PW3 that accused had not bitten on her cheek, though the defence counsel has argued that there is no evidence on record that teethbite found on the cheek of R2 were of the accused. The fact that it was only the accused and none else, is also FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 25 of 32 supported by PW4, who stated that accused slapped him and asked him to run away, otherwise, he would cut him. Testimony of PW4 also finds corroboration from the PW26, who stated that she was a tenant in the room at the first floor of the same house. She heard the cries of the children and on hearing the cries, she went upstairs. When she asked what is going on, the accused replied that he is taking tuition. Thereafter, she also saw the accused going down stairs with 3/4 children. This testimony of PW26 clearly proves that it was the accused only, who was there in the room situated on the top floor of the house with the victims. PW5 also stated that he saw the victims getting down the stairs of the house no. C251.
47. The plight of the victims can be clearly understood from the MLC and the medical record. According to the discharge summary of K1, it is clear that there was a vaginal and rectal tear and is a case of sexual assault. The doctor who proved the medical summary of R2 also stated that this is a case of sexual assault and in the case of R2, second decree perineal tear was found, which was repaired.
48. There is no such suggestion or evidence on the record that injuries sustained by the victims was not due to the sexual assault, but under some other circumstances. The doctor has specifically stated that injuries sustained by R2 were only due to sexual assault and under such circumstances. The witness has categorically and specifically stated that it FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 26 of 32 was the accused, who committed this offence with them and none else. There is nothing on record to show that victim or their parents have any reason to falsely implicate the accused in this case. There is nothing on record to show that parents of the victims or family of the accused had any previous history of enmity, giving any reason to them to falsely implicate the accused. As pointed out earlier, the victims are trustworthy and there is no reason to disbelieve them.
49. So far as the age of the victims is concerned, same is not disputed by the defence and according to the evidence and their parents, all the victims were in the age group of 5 to 51/2 years. The accused was got medically examined vide MLC Ex. PW12/A. In the MLC, the doctor opined that there is nothing to suggest that he i.e accused cannot perform sexual act. There is no crossexamination of this witness on this point.
50. The record itself shows that all the victims have specifically stated that accused had sexually assaulted K1 and R2 and he put his male organ in the mouth of K1 and R1 and also threatened them on the point of knife and had also bitten on the cheek of R2, I found that prosecution has fully proved its case and discharged the onus placed upon it that accused raped on K1 and R2 and attempted to rape R1 as accused laid over R1 after removing her clothes but there is no evidence of penetration and had also bitten on the cheek of R2 and put his male organ in the mouth of K1 and R1 and FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 27 of 32 threatened them on the point of knife.
51. R2 has stated that accused had given a teeth bite on her cheek. As pointed out earlier, there is no crossexamination of R2 on this point. The Hon'ble Supreme Court in the case titled as Shakeel Ahmad vs. State, 2004 (X) SCC 103 held that teeth of a human being cannot be considered as a deadly weapon. In view of this judgment of Supreme Court, in my opinion, Section 324 IPC is not attracted and only Section 323 IPC is made out.
52. I, therefore, hold the accused Vikran guilty u/s 376 (2) (f) IPC, 377 IPC, 376 IPC read with 511 IPC, 506 IPC as well as 323 IPC and he is convicted accordingly.
Announced in open Court
on today i.e. 12.11.2010 (V.K. BANSAL)
ADDL. SESSION JUDGE : ROHINI : DELHI
FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 28 of 32
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 119/07
FIR No. 225/07
P.S. Tilak Nagar
U/s 376 (2) (f)/324/506/377 IPC
State Versus Vikram Kumar
S/o Sh. Bhola Nath
R/o C251, JJ Colony,
Khayala, Tilak Nagar,
New Delhi.
ORDER ON SENTENCE :
18.11.2010
Present : Ld. Addl. PP for the State.
Convict is produced from J/C with counsel Sh.N.K Dev.
Arguments heard on the point of sentence. Record perused. Learned counsel for the convict submitted that convict was only 19 years of age on the date of commission of the offence. He has no previous involvement and no previous criminal record. He will improve himself. He is of young age. There are chances of his rehabilitation He is having three sisters and two brothers. He belongs to a respectable family having no criminal background. His conduct during trial was also good. He remained in FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 29 of 32 custody for about three and half years during the trial. It is prayed that he has already suffered a lot and he be sentenced for the period already undergone. Ld. Counsel in support of his arguments relied upon judgment cited as T.K.Gopal Vs. Karnatka AIR 2000 Supreme court 1670 and State Vs. N.K. 2000 Supreme court 1812.
Learned Addl. PP for the State submitted that if the convict of the present case is sentenced only for the period already undergone it will give a wrong message, it is prayed that keeping in view the gravity of the offence no leniency be shown and he be awarded maximum punishment.
Considering the submissions and the facts of the case that the convict raped two helpless victims /girls aged only about five/five and half years who were not able to resist or defend themselves . The rape was with so much force and brutality that one of the victim suffered vaginal and rectal tear and the other victim suffered second decree perineal tear. The convict had not shown any mercy on those helpless girls. He attempted to rape the third one and fourth one was threatened and sent outside as he was a boy. He had bitten on the face of one of the victim, threatened at the point of knife while committing offence and perhaps that also did not fulfill his lust. He even had carnal intercourse against the order of nature by inserting his FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 30 of 32 male organ in the mouth of helpless victims. Keeping in view all these facts that he in order to fulfill his lust even did not spare five and five and half years old girls and even done unnatural offence I do not find any reason to show any leniency. So far as the young age of the victim is concerned Supreme court said time and again that young age is no consideration and cannot be mitigating circumstance to reduce the sentence. Reliance can be placed upon the judgment cited as Ram Deo Chauhan Raj Nath Chauhan Vs. State of Assam AIR 2000 (Supreme Court) 2679 and State of Madhya Pradesh Vs. Santosh Kumar AIR 2006 Supreme court 2648.
Ld. Counsel has relied upon two judgments so far as the judgment cited as T.K. Gopal Vs. Karnatka is concerned there the convict raped one and half years old girl in which Supreme court sentenced the accused to ten years RI. So far as the other judgment is concerned there the prosecutrix was above 16 years of age and there the Supreme court reduced the sentence to the period already undergone.
In the present case as the rape is committed on the girls who were barely five and five and half years of age and legislature in its own wisdom prescribed that the convict in such cases shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. Keeping in view all these facts I sentence the convict to undergo R.I., for 14 years for the FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 31 of 32 offence punishable u/s 376(2) (f) IPC with a fine of Rs.1 Lacs. in default of payment of fine he shall further undergo RI for two years.
I further sentence the convict to undergo R.I., for 10 years for the offence punishable u/s 377 IPC with a fine of Rs.50,000/ in default of payment of fine he shall further undergo RI for six months.
I further sentence the convict to undergo R.I., for ten years for the offence punishable u/s 376/511 IPC with a fine of Rs.30,000/ in default of payment of fine he shall further undergo RI for six months.
I further sentence the convict to undergo R.I., for one year for the offence punishable u/s 506 IPC. He also sentenced to undergo RI one year for the offence punishable U/s 323 IPC.
Benefit of Section 428 Cr.P.C be given to him.
The amount of fine if realized Rs.75000/ each be given to K1 & R2. Rs.30,000/ be given to R1.
Copy of judgment and copy of order on sentence be given to the convict free of cost. File be consigned to Record Room.
Announced in open Court
on today i.e.18.11.2010 (V.K. BANSAL)
ADDL. SESSION JUDGE
ROHINI : DELHI : 18.11.10
FIR No. 225/07 : PS Tilak Nagar : State Vs. Vikram Page 32 of 32