Delhi District Court
State vs :Brahama Nand Sharma, on 10 April, 2008
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IN THE COURT OF SH. BHARAT PARASHAR, ASJ:FTC:ROHINI:DELHI
SC NO.: 1/07
STATE VERSUS :BRAHAMA NAND SHARMA,
FIR NO.: 171/04
PS : ROHINI.
U/S 354, 376, r/W Section 511 IPC and 506 (II) IPC
ORDER ON SENTENCE
Vide my separate detailed judgment dated 7-4-08 accused
Brahama Nand Sharma has been convicted of the offence U/S
354/506(II), r/W Section 376/511 IPC.
I have heard ld. APP for the State, convict himself and ld.
Counsel/Amicus Curiae Sh. Dhirender Singh for convict on the point of
sentence.
It has been submitted by learned defence counsel for convict
Brahama Nand Sharma that convict is aged about 51 years. It was further
submitted that the conduct of convict during the course of a long
protracted criminal trial, which spanned for a period of about four years
has completely remained aboveboard. It was further submitted that
during the course of trial, convict has already remained in jail for a period
of about ten months. It was further submitted that he has no previous
criminal record of any nature whatsoever. A lenient view was thus prayed
for.
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On the other hand ld. APP strongly prayed for imposition of a
severe sentence in view of the grave nature of allegations which now
stands conclusively proved against him.
I have carefully perused the record.
Keeping in view the overall facts and circumstances of the
case coupled with the submissions made and the deprivating nature of
allegations which now stands conclusively proved against the convict, I
am of the considered opinion that the interest of justice will be suitably
met if convict Brahama Nand Sharma is sentenced to rigorous
imprisonment for a period of two years and to pay a fine of Rs.2,000/- for
the offence U/S 354 IPC. It is ordered accordingly. In default of payment
of fine, the convict shall further undergo simple imprisonment for a period
of one month.
I further sentence convict Brahama Nand Sharma to rigorous
imprisonment for a period of two years and to pay a fine of Rs.2,000/- for
the offence U/S 506(II) IPC. In default of payment of fine, the convict
shall further undergo simple imprisonment for a period of one month.
I also sentence convict Brahama Nand Sharma to rigorous
imprisonment for a period of five years and to pay a fine of Rs.6,000/- for
the offence U/S 376/511 IPC. In default of payment of fine, the convict
shall further undergo simple imprisonment for a period of three months.
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Benefit of Section 428 Cr.PC shall be given to the convict.
It is further directed that the substantiative period of sentences
of imprisonment of convict Brahama Nand Sharma shall run concurrently.
A copy of the judgment as well as that of order on sentence
be given free of cost to the convict and another be attached with his jail
warrants.
File be consigned to Record Room.
Announced in the open court on 10-4-08.
(BHARAT PARASHAR)
ADDITIONAL SESSIONS JUDGE
FAST TRACK COURT
ROHINI:DELHI
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IN THE COURT OF SH. BHARAT PARASHAR,
ASJ:FTC:ROHINI:DELHI
SC NO.: 1/07
STATE VERSUS : BRAHAMA NAND SHARMA,
S/O SH. GANGA DUTT SHARMA,
R/O 147, SAWAN ASHRAM, NAGIA PARK,
SHAKTI NAGAR,
DELHI.
FIR NO.: 171/04
PS : ROHINI.
U/S 354, 376, r/W Section 511 IPC and 506(II) IPC
DATE OF INSTITUTION IN SESSIONS COURT:2-1-2007.
DATE ON WHICH JUDGMENT RESERVED:26-3-2008.
DATE ON WHICH JUDGMENT PRONOUNCED 7-4-2008.
JUDGMENT
Accused Brahama Nand Sharma was charged for the offence U/S 354/506(II) IPC read with Section 376/511 IPC on the allegations that for the past four/five years prior to 21-2-2004 he used to outrage the 5 modesty of her minor daughter "A" (name of the prosecutrix has been changed since it is a case U/S 376 IPC) by removing her clothes and also his own clothes and on 22-2-2004 he attempted to commit rape upon her and thereafter threatened her and her minor brother Shiva with threat to kill in case they stated about his acts to anyone. Accused however pleaded not guilty to the charge and claimed trial.
Prosecution thereafter in order to prove its case examined sixteen witnesses. Accused was thereafter examined U/S 313 Cr.P.C. He thereafter examined ASI Rajdevi as DW1, Dr. DK Sharma as DW2 and Naib Subedar Surendra as DW3, in his defence.
PW1 "A" was the prosecutrix herself. She deposed that she along with her brother Shiva and mother Smt. Bhavana Sharma used to reside along with the accused, who was her father. She further stated that for the past four/five years prior to 22-2-2004 accused has been committing wrong acts with her by trying to place his urinating portion at her urinating place. She further stated that her mother had met with an accident and on account of which she along with her brother and mother had gone to live at her maternal grandfather's house. Accused however used to bring the two children to his house usually on Saturdays and Sundays. She further stated that on all such occasions, accused used to indulge in wrong acts with her. She also stated that similarly on the night of 21-2-2004 when accused tried to commit rape upon her after removing 6 her clothes and his own clothes also then she started crying. However, her brother Shiva, who was sleeping nearby woke-up upon hearing her cries and saw all this being done to her by accused. However, accused threatened her as well as her brother Shiva with threat to kill in case they disclosed about it to anyone and accused also threatened to kill their mother. Thereafter, on the next day i.e on 22-2-04 both the children went to the house of their maternal grandfather and where they disclosed about the wrong activities of the accused to their 'mausi' i.e Rachna, who in turn informed about the same to Smt. Bhavana Sharma, the mother of the children. Smt. Bhavana Sharma thereafter again made inquiry from the two children and she thereafter took her to DDU Hospital and from where the matter was also reported to the police. She was got medically examined over there and subsequently, her statement was recorded by IO/SI Sudesh Dahiya. Later on, her statement U/S 164 Cr.PC was also got recorded.
PW2 Shiva, PW3 Bhavana Sharma and PW8 Rachna Kapil were respectively the brother, mother and 'mausi' of the prosecutrix. They all deposed almost on identical lines corroborating her testimony in material particulars.
PW4 Dr. Raj Mohan Trivedi had medically examined accused Brahama Nand Sharma vide MLC Ex.PW4/A on 23-2-04 after he was arrested by the police. He opined that accused was not incapable of 7 performing sexual intercourse.
PW5 Dr. Shipra Gupta had medically examined the prosecutrix vide MLC Ex.PW5/A. PW6 Sh. Raj Kapoor, the then ld. MM had recorded the statement U/S 164 Cr.PC of the prosecutrix and also that of her brother Shiva.
PW7 HC Vinod was the duty officer, PS Rohini, who had recorded FIR Ex.PW7/A in the present matter.
PW9 Kamla was allegedly the owner of the house in which accused Brahama Nand Sharma was living as a tenant. She however claimed complete ignorance as to the present case and despite having been cross-examined by ld. APP, nothing could come out from her mouth which could assist the prosecution in any manner.
PW10 Ashok Gupta was a Clerk of Kendriya Vidyalya, Sector-3, Rohini where the prosecutrix used to study and he proved her date of birth viz '25-8-1993' as per the records of the school.
PW12 Ct. Rajinder was the duty constable, who had conveyed the information to PS Rohini after Bhawna Sharma had brought the prosecutrix for medical examination to DDU Hospital.
PW14 HC Jagbir Singh was the MHC(M), PS Rohini with whom the various case property articles were deposited with by the IO. Subsequently, on 26-3-04 he had sent various exhibits to FSL through Ct. 8 Vinod Kumar.
PW15 Ct. Vinod Kumar had taken the various case property articles in the present case from MHC(M), PS Rohini to FSL.
PW16 SI Sudesh Dahiya was the IO of the case. Upon receipt of information from DDU Hospital, she had gone over there and had recorded statement of the prosecutrix. She thereafter prepared a rukka and got a case registered at PS Rohini. She also recorded statement of brother, mother and 'mausi' of the prosecutrix and also inspected the spot. At the spot, she prepared the site plan and also arrested accused Brahama Nand Sharma. She also took into possession the cover of mattress where the incident had allegedly taken place. Later on she got the statement U/S 164 Cr.PC of the prosecutrix as well as that of her brother Shiva recorded. Subsequently, upon completion of necessary further investigation, she prepared the challan and submitted the same to court for trial.
Accused was thereafter examined U/S 313 Cr.PC wherein he however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely. He further stated that his wife i.e Smt. Bhavana Sharma, the mother of prosecutrix was suffering from 'schizophrenia' and on that account even her services as "Major" in Indian Army were terminated. He further stated that because of her said mental ailment, she has got him falsely implicated in this case. 9
DW1 ASI Rajdevi produced the record of a complaint which was lodged by Bhawana Sharma on 19-1-01 in the Crime against Women Cell against the accused. The copy of the said complaint was placed on record as Ex.DW1/A. DW2 Dr. DK Sharma was the doctor working in Medical College, Kota, Rajasthan, who at an earlier point of time had medically examined Bhawana Sharma and had diagnosed her to be suffering from 'schizophrenia' with post psychotic depression.
DW3 Naib Subedar Surendra produced record from military hospital, Meerut, UP vide which it was sought to be proved on record that Bhawana Sharma had remained admitted in military hospital from 28-3- 1998 till 30-3-1998 and as per the record produced by the said witness, she was decommissioned from the army on account of invalidating report by the Medical Board.
I have heard ld. Counsel Sh. Dhirender Singh for accused as well as ld. APP for State at length.
It has been submitted by learned defence counsel that the present case has been falsely got registered against the accused by the wife of accused as she was an acute patient of 'schizophrenia'. It was further stated that even the allegations leveled by the prosecutrix do not find support from the medical evidence led on record by the prosecution. It was further stated that the doctor i.e PW5 Dr. Shipra Gupta found the 10 hymen of the prosecutrix to be intact with no injury whatsoever of any nature. It was further stated that if the conduct and intention of accused was to spoil the life of his daughter then, Bhawana Sharma i.e the wife of accused would not have allowed the children to stay with the accused. It was thus stated that the accused has been falsely implicated in this case purely on account of the mental ailment of his wife and which clouded even the wisdom of the two minor children, who deposed as per the dictate of their mother. The prosecution was thus stated to have been unsuccessful in proving its case against the accused. The accused was thus prayed to be acquitted.
On the other hand, ld. APP strongly opposed the contentions of learned defence counsel stating that in the entire cross-examination of the prosecution witnesses, nothing has come on record which could show that prosecutrix or her brother Shiva were in any manner deposing falsely. It was stated that the prosecution has led cogent and convincing evidence on record to bring home the guilt of the accused beyond shadows of all reasonable doubts. The accused was thus prayed to be convicted.
I have carefully perused the record.
At the outset, I may state that we have on record the deposition of two child witnesses primarily in support of the case of the prosecution viz. that of the prosecutrix and her brother Shiva. No doubt, 11 the testimony of child witnesses, as these two are, has to be approached with great care and caution. We have to be careful to see that the child witnesses are witnesses of truth and not witnesses of imagination as most of the children of that age generally are. However, while the court does look for corroboration to the testimony of child witnesses while being on its guard to place reliance upon their testimony but at the same time the evidence of a child witness is not required to be rejected per se. The court, as a rule of prudence considers such evidence with close scrutiny and only upon being convinced about the quality of such evidence and its reliability, basis the conviction by accepting the deposition of the child witnesses.
It is in the light of the aforesaid well settled principles governing the testimony of child witnesses that the evidence of the prosecutrix and that of her brother Shiva, both aged about 11 years and 10 years respectively has to be seen and analysed. The only contention of accused has been that the two child witnesses have deposed at the instance of their mother who not only was suffering from 'schizophrenia' but the marital life between them was also not good.
No doubt, it has come up on record that the relations between the accused Brahama Nand Sharma and his wife Bhawna Sharma have not been smooth. Copy of a complaint earlier lodged by Bhawna Sharma with the CAW Cell against accused Brahama Nand Sharma and 12 his other family members has also been placed on record by the accused himself. Even PW3 Bhawana Sharma herself has also not disputed the said fact. However, we need not to go into the reasons for the said marital discord between the two as the same are not necessary over here but it is clear from the overall facts and circumstances as are emerging out from the records of the present case that either because of the nature of job of Bhawna Sharma who was working as a nurse in Army or on account of her mental state of health or still on account of her having met with an accident, the relations between the two were not normal. We also need not to analyze as to in which sequential order the aforesaid reasons must have been responsible for the souring of the relations between accused Brahama Nand Sharma and his wife Bhawna Sharma.
However, I may also state that the fact that Bhawna Sharma was also suffering from a psychiatric disorder viz. 'schizophrenia' stands well established from the evidence led in defence by the accused. DW Dr. D.K. Sharma, Professor and Head, Department of Psychiatry, Medical College, Kota, Rajasthan stated about her having treated Bhawana Sharma for the said disorder. The record of discharge of Bhawna Sharma from her services in Army as was produced by DW3 Naib Subedar Surender Singh also corroborates the aforesaid fact. In fact Bhawna Sharma also admitted in her deposition of her having treatment for the same from Army Hospital. It thus clearly stands proved on record that 13 Bhawana Sharma did suffer from some psychiatric disorder and the same even resulted in her discharge from her services in Army as a nurse.
It is in the light of the aforesaid facts and circumstances that I now propose to analyze the deposition of the two child witnesses viz. the prosecutrix and her brother Shiva, for it has been the sole contention of accused that the two children have deposed against him purely on account of having been tutored by their mother Bhawna Sharma. Thus, the deposition of the two child witnesses needs to be seen and analyzed in the light of the said peculiar facts and circumstances of the case.
I may however state that a bare reading of the deposition of prosecutrix as well as that of her brother Shiva clearly shows that they have very vividly given the details of the incident. There has been a searching cross-examination and the two witnesses courageously withstood the same. I have been unable to find any circumstance in the cross-examination of either of the two witnesses which could show that they have been tutored in any manner by any person much less by their mother. No doubt, in the Medical Examination Report of the prosecutrix, doctor did not find presence of any external injury. She also found the hymen to be intact. However, I may state that the accused in the present case is being tried for the offence of having attempted to commit rape upon his daughter. In these circumstances nothing adverse against the case of the prosecution can be inferred simply on the ground that the 14 doctor examining the prosecutrix did not found any external injury on her body or found her hymen to be intact. It will be also worthwhile to note over here that PW5 Dr. Shipra Gupta in her medical examination notes made on MLC Ex.PW5/A stated that patient told her that her father had tried to sexually abuse her. This witness was not at all cross-examined on behalf of the accused. In these circumstances, we have on record three instances where the prosecutrix has leveled similar allegations against her father i.e. accused Brahama Nand Sharma.
Firstly, at the time of her medical examination, she stated about the alleged acts of her father to Dr. Shipra Gupta. Thereafter, she again reiterated the said allegations against the accused in her statement u/S 164 Cr.P.C. recorded by PW6 Sh. Raj Kapoor the then Ld. MM, who too was not cross-examined at all by the accused. Again, at the time of deposition during the course of trial, the prosecutrix reiterated the said allegations. On this occasion she was put to extensive cross examination which I have discussed herein above she withstood boldly.
Thus, the absence of external injuries on the body of the prosecutrix or her hymen having been found to be intact is clearly of no help to the accused.
It was observed by Hon'ble Supreme Court in the case M ADAN GOPAL KAKKAR V S. N A W A L D U B E Y , 15 1992 (3) JT (SC ) 270 while referring to the definition of sexual intercourse as defined in PA R IK H 'S TE X T B O O K O F M E D IC A L JU R ISP R U D E N C E A N D TO X IC O L O G Y as under :-
"Sexual intercourse - In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains".
Also while referring to the observations of Modi in his Book Medical Jurisprudence & Toxicology (21 edition), it was quoted as under :
"Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is 16 a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one".
The aforesaid observations were also reiterated by Hon'ble Supreme Court in the case R A JE N D R A D A TTA Z A R E K A R VS. STATE OF GOA, AIR 2008 SC 572 .
Thus, in view of the aforesaid circumstances, the non-rupture of hymen or absence of external injuries on the body of prosecutrix was not of any consequence which may go against the case of the prosecution or may favour the accused.
Thus, as I find the deposition of the prosecutrix as well as that of her brother Shiva to be cogent, convincing and reliable and to be inspiring confidence so, I am of the considered opinion that the prosecution has been successful in proving that accused Brahama Nand Sharma has been ravishing the modesty of the prosecutrix for the past many years prior to the incident dated 21-2-04 and on 21-2-04 he attempted to commit rape upon her. It is also clear that he thereafter threatened prosecutrix and her brother Shiva with threat to kill in case 17 they disclosed about his activities to anyone.
The prosecution has thus been successful in proving its case against accused Brahama Nand Sharma beyond shadows of all reasonable doubts for the offence U/S 354/506(II) IPC besides for the offence U/S 376/511 IPC.
I accordingly hold accused Brahama Nand Sharma guilty for the said offences and convict him thereunder.
ANNOUNCED IN THE OPEN COURT ON 7-4-2008.
(BHARAT PARASHAR) ASJ:FTC:ROHINI:DELHI 18 FIR NO.: 171/04 PS : ROHINI.
7-4-08 Pr. Addl. PP for the State.
Accused is present on bail.
Vide my separate detailed judgment dated 7-4-08 accused Brahama Nand Sharma has been convicted of the offence U/S 354/506(II) IPC, r/W Section U/S 376/511 IPC.
He be taken in custody and remanded to JC.
Case is now adjourned for Arguments on Sentence to 9-4-08.
(BHARAT PARASHAR) ASJ:FTC:ROHINI:DELHI 19 10-4-08 Pr. Addl. PP for the State.
Convict is present in JC with ld. A/Curiae Sh. Dhirender Singh. Arguments on the point of sentence heard.
Vide my separate detailed order dated 10-4-08, Order on Sentence has been announced.
File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 10-4-2008.
(BHARAT PARASHAR) ASJ:FTC:ROHINI:DELHI