Delhi District Court
State vs . Sanjeet Sahni on 15 February, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI
Sessions Case No. 1188/2010
Unique Case ID: 02404R0341892009
State Vs. Sanjeet Sahni
S/o Tunni Sahni
R/o Village Deeh Buchauli
PS Jandaha, Distt. Vaishali
Bihar.
FIR No. : 57/2009
Under Section : 376 (2) (f) Indian penal Code.
Police Station : Adarsh Nagar
Date of committal to Sessions Court: 11.2.2010
Judgment reserved on: 1.2.2011
Judgment pronounced on: 1.2.2011
JUDGMENT
That on 19.3.2009 at about 11:00 PM at Jhuggi No. 116, Sarai Pipal Dhala, Adarsh Nagar, the present accused namely Sanjeet Sahni committed rape upon minor girl aged nine years namely 'A' (name withheld being case under Section 376 IPC).
CASE OF PROSECUTION/ BRIEF FACTS:-
The case of the prosecution in brief is that on 20.03.2009 SI Mukesh Devi received a call from police station Adarsh Nagar regarding rape case and came to know that the call was already marked to ASI Mahavir Singh who had gone to BJRM Hospital for medical examination of prosecutrix and she therefore reached at BJRM Hospital and recorded the statement of prosecutrix who was St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 1 present there alongwith her father Sanjay Sahni. The prosecutrix was got medically examined and the exhibits were taken from the doctor which were duly sealed.
The prosecutrix in her statement to SI Mukesh Devi stated that she was residing at C-116, Jhuggi Sarai Pipal Thala alongwith her father and brother Gautam while her mother was in the village. She further told the police that Sanjeet Sahni had come from village in search of job and in the night he used to sleep in her house for the last one week. She further told the police that on 19.03.2009 when her family members were sleeping, the accused Sanjeet Sahni came to her and removed her undergarments and also removed his pant and thereafter he started doing 'galat kaam' with her. The victim further told the police that the accused put his hand on her mouth and when he removed his hand she raised an alarm and on which the accused ran away. She further informed the police that in the meantime her father woke up and started chasing the accused Sanjeet Sahni who could not be apprehend. She further told the police that her father also tried to search the accused during the whole day who could not traced him out. She further told the police that her father took her to BJRM hospital where she was medically examined. SI Mukesh Devi after recording the aforesaid statement of the victim / prosecutrix, made an endorsement upon the same and prepared the rukka and registered the present case. During investigation the accused was arrested from Bihar and was produced before the court and after completion of the investigation, charge sheet was filed before the court.St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 2
CHARGE:
On the basis of the charge sheet, charge under Section 376 (2) (f) Indian Penal Code was settled against the accused to which had pleaded not guilty and claimed trial.
EVIDENCE:
In order to discharge the onus upon it the prosecution has examined as many as thirteen witnesses.
Complainant / Victim:-
PW1 Sanjay Sahni is he father of the child prosecutrix who has in his deposition deposed that he is the resident of C-116, Sarai Peepal Thala Jhugi, Adarsh Nagar, Delhi where he is residing with his daughter (prosecutrix) and son and his wife is residing at the village. He has deposed that on the intervening night of 19/20.3.09 accused Sanjeet Sahni who is his nephew by the village relation had come to stay with them. After taking meals/dinner they were sleeping in their jhuggi. He was sleeping on the cot whereas his daughter 'A' who was aged about nine years at that time was sleeping on the floor. Sanjeet Sahni was also sleeping on the floor while his son was on the first floor with his nephew. According to the witness, while he was sleeping, he heard the cries of his daughter when he woke up and immediately on seeing him the accused Sanjeet Sahni ran away. He found his daughter soaked in blood. After seeing his daughter in this condition he immediately called the babhi of Sanjeet Sahni namely Rekha Sahni who is residing on the first floor and handed over his daughter to her whereas he himself went in search for the accused St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 3 Sanjeet Sahni. He has further deposed that on following day he made a telephone call to the police and informed them of what had happened when the police told him that they would be coming and asked him to remain at the gate of the hospital. Thereafter police official came to the hospital and met him and he gave his statement to the investigating officer, who also made oral inquiries from him. The witness has also deposed that the police got his daughter medically examined and thereafter she (prosecutrix) was handed over to him and the investigating officer went to the Police Station. He has also deposed that his signatures were not taken anywhere and Smt. Rekha Devi, babhi of accused Sanjeet Sahni took his daughter to the hospital when he also accompanied her. The age of his daughter who was studying in Nigam Prathmik Balika Vidyalya, Civil Lines, Delhi at the time of this incident is ten years. The medical of his daughter was got done and the cloths worn by her at the time of incident were seized vide seizure memo Ex.PW1/A bearing his signatures at point A. This witness was cross examined by Ld. defence counsel and during the cross examination he has deposed that his wife was in the native village since the "Chat" of the year 2008 and was not available and the accused had come to him about a week-ten days before the incident. According to the witness, he makes his living by selling biri cigrattes in the mandi and leaves his house at about 8.30 a.m. and comes back at 9 p.m. According to him, the accused used to leave the house early morning by about 5-6 a.m. and come back by 8/8.30 p.m. with him and they both used to cook dinner. He has St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 4 stated that the incident took place before 12 midnight but he is unable to tell the exact time as he was sleeping. According to the witness, when his daughter screamed and he got up the accused was still there but immediately ran away and could not run behind him being handicapped. He has further deposed that his jhuggi is one storey and he is staying on the ground floor and his nephew has constructed a "chappar" on the first floor where he was staying. The witness has stated that when he woke up his daughter was terrified and there was blood on the floor. He has further stated that he had not taken her to the doctor immediately since it was midnight. He denied the suggestion that since no incident had taken place and therefore, it is for this reason that he did not take her to the doctor. He deposed that he took his daughter to the hospital in the next day morning at about 8.30 a.m. in a rickshaw. He denied the suggestion that he has falsely implicated the accused and that infact the accused used to stay with his babhi on the first floor. According to him, he used to sleep with them on the ground floor. He has further deposed that when he went to the hospital the doctors did not start her treatment immediately and asked them to first call the police and he thereafter called the police from the hospital STD public booth who reached the hospital after about half an hour. He has also deposed that his statement was recorded by the police in the hospital where he put his signatures on 2-3 papers. He stayed in the hospital for the whole day and came back from the hospital at night to his home. According to him, his daughter was with him throughout the day and she did not go anywhere else. He denied the suggest that he had a dispute with St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 5 Sanjeet Sahni or that he has falsely implicated the accused through his daughter.
PW2 is the victim / prosecutrix 'A' (name withheld being the case under Section 376 IPC). She in her deposition has stated that she is studying in Sarai Pepal Thala School in Class 3B. She has identified the accused Sanjeet Sahni as the person who came from her village and was used to sleep in her house. According to the witness on 19.03.2009, when all were sleeping, the accused Sanjeet Sahni came to her and removed her undergarments and also removed his pant and thereafter he did 'galat kaam' with her.
The court has asked as question to the witness as to what 'galat kaam' the accused did with her, on which the child victim has explained by saying Vaha mere upper leet gaya aur mere andar apna lund daal diya. (He lay on me and put his private parts inside me). It may be necessary to observe here that the victim is a child who at the time of the incident was hardly 8 to 9 years of age and had not attained the puberty as evident from the MLC of the victim.
The prosecutrix has further deposed that the accused put his hand on her mouth and when he removed his hand she raised an alarm, on which the accused ran away from the spot. She has further deposed that she was bleeding at that time ad her father chased the accused Sanjeet Sahni. According to the victim, her Bhabhi namely Rekha who used to reside at first floor came to her and applied some medicine upon her private parts. The victim /PW2 has further deposed that on the next morning her father took her to BJRM hospital where she told the entire thing to the doctor after which the St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 6 police was called by her father who also informed the entire incident to the police. She was treated by the doctor and police recorded her statement. She has also identified her signatures at point A on her statement recorded by the police under section 161 Cr.P.C. Ex.PW2/A. The witness has also correctly identified her signatures on her statement under Section 164 Cr.P.C. recorded by the Ld. MM. (Ld. defence counsel has not disputed the correctness of the proceedings conducted by Ld. MM under Section 164 Cr.P.C. which proceedings are collectively Ex.PW2/B (running into 5 pages, including the application of the IO). The statement of the prosecurtix is at point 'A' to 'A' bearing her signatures at point 'X'.
During cross examination by Ld. Defence Counsel, the child victim has deposed that the accused Sanjeet Sahni and her mother belong to the same village namely Debichole Gaon, Bihar. She has further testified that Sanjeet Shani used to leave the house at 4-5 AM in the morning and return by about 6-7 PM in the evening. According to the prosecutrix, the accused Sanjeet Sahni was not having good terms with his Bhabhi Rekha due to which reason he used to sleep with them at ground floor. The child victim has further deposed that on the next day at about 4-5 AM, she was taken to the hospital but she is unable to tell the exact time. According to her when she went to hospital she was in a position to walk as the bleeding had stopped by that time. She further deposed that when she went to the hospital, her brother, father and Rekha Sahni had accompanied her and stayed there for one to two hours after which they went to police station. She has denied the suggestion that St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 7 Sanjeet Sahni has not done any galat kaam with her. She has further denied the suggestion that due to some dispute between her father and Sanjeet Sahni, she has falsely implicated the accused in the present case.
Medical Evidence:-
PW3 Dr. Rajeev Kumar Singh has deposed that on 20.3.2009 he was working as SR (Medicine). On that day Dr.Murtaza Khan was working as Jr. Resident who examined the patient 'A' Kumari D/o Sh. Sanjay Sahni aged about 9 years, female who was brought by one Rekha Devi and police official with alleged history of sexual assault. The MLC of 'A' is Ex.PW3/A bearing the signatures of Dr. Murtaza Khan at point A. According to this witness, Dr.Apram was working as CMO under whom Dr. Murtaza Khan was working and examined the aforesaid patient and the MLC also bears the signatures of Dr. Apram. The witness has identified the signatures of Dr. Mutaza Khan and Dr. Apram as he is well conversant with their handwriting and signatures of as he has seen them while signing and writing during the course of his official duties. The witness was not cross examined on behalf of the accused.
PW4 Dr. Shakuntala Rani has deposed that on 20.3.2009 Dr. Gangotri was working as Sr. Resident (Gyne) who examined the patient 'A' Kumari D/o Sh.Sanjay Sahni aged about 9 years female, with alleged history of sexual assault vide MLC Ex.PW3/A bearing the signatures of Dr. Gangotri at point C. According to the witness, the patient has told that she was student of St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 8 class 3rd and as per MLC on 20.3.2009 at about 12:30 AM, when she was sleeping, she was raped by Sanjeet Sahni, after that she washed her private parts. Th witness has also proved that the undergarments which were used at/ after immediate incident had been brought by the patient. The witness has further deposed that, on general examination she was conscious and well oriented and further on local examination per abdomen, encircled at point D, no fresh external injuries seen. On vaginal examination no external fresh injury, no bleeding was found and vaginal cavity admitted little finger, vaginal swab was taken and slide made. Both undergarments and slide were sealed and handed over to SI Mukesh Devi and the patient was advised for UPT and X-ray long bone for age determination. This witness has deposed that she is well conversant with the handwriting and signatures of Dr. Gangotri as she has seen her while signing and writing during the course of her official duties.
The witness was cross examined by Ld. defence counsel. On a Court Question, the witness has deposed that in this case the final opinion with regard to the rape cannot be given on the basis of the local examination. A further Court Question was put to the witness, whether she could rule out the possibility of the rape having been committed upon the child 20 hours ago, on which the witness has deposed that the possibility of rape having been committed 20 hours ago cannot be ruled out. According to the witness, after 20-24 hours the bleeding in case of a child aged nine years can stopped if administered home treatment. In her cross- examination by the counsel for the accused the witness has further St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 9 deposed that even in ordinary circumstances where the rape has not been committed the local examination as reflected at point encircled 'D' on the MLC similar symptoms would be reflected.
PW5 Dr. Vinayak Siddarth has deposed that on 4.11.2009 he was posted at BJRM hospital as SR (Surgery) and Dr. Brij Bhushan was also working as Jr. Resident (Casualty) who examined the patient Sanjeet Sahni S/o Tunni Sahni aged about 25 years, male brought by Ct. Kushal Pal vide MLC Ex.PW5/A which bear the signatures of Dr. Brij Bhushan A. According to the witness, Dr. Ajay was also working in the said hospital as CMO (Casualty) under whom Dr. Brij Bhushan examined the patient Sanjeet Sahni. The MLC Ex.PW5/A also bears the name of Dr. Ajay at point D which the witness had identified being well conversant with the handwriting and signatures of Dr. Brij Bhushan and Dr. Ajay having seen them while writing and signing during the course of my official duties. According to the witness, the patient was referred to SR (Surgery). The witness has deposed that the patient was referred to him for medical examination who was accused of sexual assault about seven months back. He examined him and found that there was nothing to suggest the incapability of sexual intercourse by the accused Sanjeet Sahni. The said MLC bears his signatures at point C and his opinion is at point encircled D. The witness was not cross examined by the accused.
Police / Official Witnesses:-
PW6 HC Prahlad has proved the entires made by him in Register No.19 and Register No.21, vide Ex.PW6/B and Ex.PW6/C. St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 10 The witness was not examined by the accused.
PW7 HC Laxmi Narain has recorded the present FIR which he has proved vide Ex.PW7/B. This witness has also proved the endorsement made by him upon the rukka vide Ex.PW7/C. The witness was not examined by the accused.
PW8 Ex Ct. Reea has proved the RC No. 129/21/09 vide which she took three pullandas from Malkhana to FSL Rohini vide Ex.PW6/C and the copy of receipt which is Ex.PW9/A. In her cross examination by Ld. defence counsel, this witness has deposed that when she left the police station for FSL Rohini with the exhibits of this case, an entry was made however she was unable to tell the entry number. According to her the pullanda remained intact during her custody.
PW9 HC Rakesh Kumar has deposed that on 07.12.2009 he was posted as constable in the police station Adarsh Nagar. On that day on the instruction of IO/ SI Mukesh Devi he took three pulandas and two sample seals from Malkhana vide RC No. 129/21/09 which is Ex.PW6/C and deposited the same with the FSL, Rohini Delhi. Thereafter he deposited the receipt issued by FSL regarding receiving of Pulanda and sample seal with the MHC(M).
The copy of the receipt is Ex. PW9/A. According to him the pulandas and sample seals were intact during his custody.
In his cross examination by Ld. defence counsel, the witness has deposed that when he left the police station for FSL with the exhibits of this case, an entry in this regard was made but he does not remember its number. He has denied the suggestion that the St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 11 pulandas were tempered with during his custody.
PW10 Ct. Mukesh has deposed that on 30.03.2009 he was posted at police station Adarsh Nagar. On that day he joined the investigation of this case with IO WSI Mukesh Devi and went to the house of prosecutrix at C-116, Jhuggi Sarai Peepal Thala, Adarsh Nagar, Delhi. The father of the prosecutrix handed over the copy of the School Certificate of the child prosecutrix issued by the Principal, reflecting her date of birth as entered into the school record, which certificate was seized vide memo Ex.PW10/A bearing his signatures at point-A. According to this witness, on 24.10.2009 HC Ved Pal was handed over the NBWs issued against the accused Sanjeet Sahni and he joined investigations with HC Ved Pal and accompanied him to Silchar, Assam for search of the accused but they could not traced him there. The witness has deposed that at Silchar they met with one Baleshwar Sahni who was the relative to the accused and who informed them that accused Sanjeet Sahni had come there a long back but now he was somewhere Samastipur, Bihar and was a rickshaw poller near the railway station. On receipt of this information they requested Baleshwar Sahni who was also related to the prosecutrix to accompany them and thereafter they went to Samastipur Bihar. According to the witness, on 03.11.2009 they reached railway station Samastipur, Bihar where at the railway station they found a large number of rickshaw pullers and made enquiries from them but could not get any assistance. Thereafter, Baleshwar Sahni pointed out towards one rickshaw pullers and identified him as Sanjeet Sahni and on his pointing out they St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 12 apprehended Sanjeet Sahni who was thereafter arrested vide memo Ex.PW10/B and personally searched vide memo Ex.PW10/C both bearing his signature at point A, the signatures of Baleshwar Sahni at point B and signature of HC Ved Pal at point C. According to the witness, Baleshwar Sahni who was present with them and who was related to the accused, was informed about the arrest of the accused and he undertook to communicate the same to the family of the accused. Thereafter, they came back to Delhi alongwith the accused and he was put into the lock up and the IO was accordingly informed and IO recorded his statement on the same day. According to this witness, he can identify the accused. (the Ld. Amicus Curaei did not dispute the identity of the accused Sanjeet Sahni who was not produced on the said day on account of the 15th August arrangements).
In his cross examination by Ld. defence counsel, the witness has deposed that they left Delhi on 25.10.2009 by train after making the departure entry in the police station and from Guwahati they took a bus to Silchar and on 28.10.2009 reported to the local police at PS Sadar Silchar but he does not remember the number of DD entry. According to the witness, the Chowki Incharge of the chowki Rampur had accompanied them for investigations. He along with HC Ved Pal were on auto where the Sub-Inspector of the local police was on motorcycle. They reached the house of Baleshwar Sahni at about 11.00-12.00 Noon and stayed with him only for one hour and brought him to the police station for interrogation and Baleshwar Sahni had sought one day time to find out the details and St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 13 the whereabouts of the accused Sanjeet Sahni and therefore they stayed there for the night.
According to the witness they left for Bihar on the next day in the evening by train from Lamding Railway Station, Assam and from there came to Guwahati and boarded another train for Quel, Bihar from where they boarded another train for Samastipur Bihar but they did not report to any of the police stations during the transit nor they report to PS Samastipur. According to the witness, the accused was arrested in the after noon around 3.00 PM. He has denied the suggestion that they did not go to Samastipur and it is for this reason that there is no entry made with the local police by them. The witness has further deposed that he did not go to the school of the prosecutrix to verify the school certificate handed over to him by the father of the prosecutrix and only handed over the same to the IO.
PW11 HC Kushal Pal Singh has deposed that on 4.11.2009, he was posted as a Constable at PS Adarsh Nagar and on that day at about 10.00AM, he joined the investigation of this case and took the accused Sanjeet Sahni from the lock up and produced him before the investigating officer who interrogated the accused. According to this witness, the disclosure statement of the accused Sanjeet Sahni was recorded by the IO vide Ex.PW11/A bearing his signature at point A. He thereafter took the accused to the BJRM Hospital where his medical examination was got conducted where the doctor on duty handed over to him one pulanda sealed with the seal of the hospital and a sealed bottle bearing the seal of the hospital, which pulanda he further handed over to the IO in the St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 14 hospital itself and brought the accused to the court and produced him before the Ld. MM. According to this witness, he can identify the accused. (the Ld. Amicus Curaei did not dispute the identity of the accused Sanjeet Sahni who was not produced in the court on account of the 15th August arrangements).
In his cross examination by Ld. defence counsel, the witness has deposed that there was no public person present in the police station at the time when disclosure statement of the accused was recorded in the morning at about 10.00-10.15AM. According to the witness, the accused was taken to the hospital and thereafter to the court in a TSR. He is unable to tell the number of the TSR or the amount he paid as the fare.
PW12 Ct. Suresh Kumar has deposed that on 20.03.2009 he was posted as constable at police station Adarsh Nagar and on that day he joined the investigations of this case with ASI Mahavir Singh and on receipt of DD No. 31A, which is Ex.PW12/A and reached at BJRM Hospital Jahangirpuri where prosecutrix 'A' D/o Sh. Sanjay Sahni and her father met them. According to the witness, the Prosecutrix was examined and during her examination SI Mukesh Devi came there who got the medical examination of the prosecutrix done. According to this witness, the Doctor had handed over the exhibits of prosecutrix to WSI Mukesh Devi in his presence. IO seized the same vide memo already Ex.PW1/A after which WSI Mukesh Devi prepared rukka and handed over to him for registration of FIR and he after registration of the FIR handed over the copy of FIR and original rukka to WSI Mukesh Devi at the gate of the police St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 15 station where she met him and she recorded his statement.
In his cross examination by Ld. defence counsel, the witness has deposed that the information was received at about 8.30 PM and he along with ASI Mahavir Singh had reached the hospital at about 8.45 PM by a TSR but he is unable to tell the TSR Number. According to the witness, WSI Mukesh Devi reached the hospital at about 9.15 PM but is unable to tell the time when the doctor handed over the pulandas to the IO and according to him the pulandas were not sealed in his presence. The witness has also deposed that the rukka was handed over to him at about 11.50 PM and he went to the police station with rukka on a TSR but cannot tell its number. According to him, his statement was recorded in the police station at about 1.00-1.15AM (midnight). The witness has denied the suggestion that he did not join the investigation of this case or that all the paper work was done while sitting in the police station or he is deposing falsely at the instance of the IO.
PW13 SI Mukesh Devi has deposed that on 20.3.2009 she was posted at Sub Division Model Town and on that day she had received a call from police station Adarsh Nagar regarding a rape case and when she reached at Police Station Adarsh Nagar, she came to know that the call was already marked to ASI Mahavir who had already gone to BJRM hospital for medical examination of the prosecutrix. She thereafter reached BJRM hospital and recorded the statement of prosecutrix 'A' who was present there alongwith her father Sanjay Sahani which is Ex.PW2/A bearing the signature of 'A' at point A and bearing her (PW13) signature at point B. She also got St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 16 the prosecutrix medically examined and thereafter prepared the rukka Ex.PW13/A bearing her signatures at point A. She sent Ct. Suresh to the PS with rukka for getting the case registered who came back with the copy of FIR which is Ex.PW7/B and original rukka and handed over the same to her. She made efforts to trace the accused but in vain. Thereafter, she collected two sealed parcel/ exhibits of the prosecutrix alongwith one sample seal duly sealed with the seal of MS BJRM hospital from the concerned doctor and seized the same vide memo Ex.PW1/A bearing her signature at point B and same was deposited in Malkhana.
The witness has further deposed that on 21.3.2009, she again started the investigation and took the prosecutrix 'A' and reached at the spot and prepared the site plan at the instance of 'A' vide EX.PW13/B bearing her signatures at point A. On 27.3.2009, she moved an application before Sh. Neeraj Gaur Ld. MM for recording the statement of prosecutrix which is Ex.PW2/B bearing her signatures at point A which was allowed and on the same day the statement of prosecutrix was recorded which is Ex.PW13/C bearing her signature at point B. She moved an application for supply of copy of statement vide application Ex.PW13/D bearing her signatures at point A which was allowed. Thereafter, she obtained the copy of the statement of prosecutrix. On 30.3.2009, she collected school certificate from father of the prosecutrix namely Sanjay Sahani vide seizure memo Ex.PW10/A, the certificate is Ex.PW13/E. She also collected the MLC of prosecutrix which is Ex.PW3/ and thereafter, obtained the NBWs against the accused Sanjeet Sahani. According to St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 17 the witness, on 11.6.2009, she sent HC Vedpal and Ct. Mukesh to the village of accused Sanjeet at Samastipur, Bihar, who came back on 15.6.2009 with the report that the accused was not traceable. According to the witness, on 2.11.2009, aforesaid two police officers namely HC Vedpal and Ct. Mukesh were again sent to Samastipuri, Bihar, who brought the accused at Delhi on 4.11.2009 and the accused was got medically examined by her alongwith Ct. Kushal. She collected the MLC of the accused and his exhibits i.e. one pullanda and seized the same vide memo Ex.PW13/F. According to witness PW13, on 7.12.2009, she sent the exhibits of the prosecutrix and the accused to the FSL Rohini through Ct. Rakesh Kumar and thereafter, she collected results which are Ex.PW13/G (running into two pages) and submitted the same before the court vide application Ex.PW13/H. The witness has correctly identified the accused Sanjeet Sahani In her cross examination by Ld. defence counsel, PW13 has deposed that on 20.3.2009 she reached the police station at about 9 PM and went to BJRM hospital at 9:30 PM, and prepared rukka at about 11:50 PM and Ct. Suresh handed over the FIR to her after about one hour. According to the witness, on 21.3.2009 when she reached at the spot, some public persons from the nearby houses were present but they expressed their ignorance about this case as they were not present at the time of incident and she, therefore, did not record the statement any of them. She had verified the school certificate from the concerned school. She did not take in wiring from school authorities regarding genuineness regarding the same.
St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 18According to the witness, she sent Ct. Rakesh to FSL Rohini at about 10 AM. The witness has denied the suggestion that she did not conduct the investigation fairly or that the accused has been falsely implicated in this case.
Statement of Accused and Defence Evidence:-
After completing the prosecution evidence, statement of accused under Section 313 Cr.PC was recorded putting him all the incriminating evidence against him which he has duly denied and pleaded that he is innocent and has been falsely implicated in this case. He did not lead any defence evidence.
FINDINGS:
I have gone through the testimony of various witnesses, and other material on record. I have also gone through the written synopsis of arguments filed on behalf of the accused and duly considered the same.
Age of the prosecutrix:
The age of the prosecutrix 'A' (name of the prosecutrix is withheld as this is a case under Section 376 Indian Penal Code) is not disputed. At the time of the incident, the child was reported to be nine years of age and was studying in Class third in Nigam Prathmik Balika Vidyalya, Civil Lines. The certificate issued by the Principal of the School dated 30.3.2009 shows her date of birth as 3.6.2009 proving that on the date of incident the child was hardly nine to ten years of age to which there is no rebuttal. Also there is due St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 19 corroboration from the MLC of the child Ex.PW3/A which shows that she had not even received menarchy.
Delay in registration of FIR:
The incident in the present case has occurred in the intervening night of 19.3.2009/ 20.3.2009 and the DD No.31A was recorded on 20.3.2009 at about 8:20 pm pursuant to which FIR was registered on 21.3.2009 at 00:15 hours (i.e. 12:15 midnight), showing that there was a delay of almost twenty four hours in registration of FIR.
The Hon'ble Apex Court in the case of State of Rajasthan Vs. Om Prakash reported in (2002) 5 SCC 745, has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
In the case of Tulshidas Kanolkar Vs. The State of Goa reported in (2003) 8 SCC 590, the Hon'ble Supreme Court has observed as under:
"..... The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstances for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 20 the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle."
It is evident from the record that the prosecutrix and her family who are totally illiterate, come from very poor strata of the society. Her father Sanjay Sahni who is physically handicap, makes his earnings by selling biris and is totally unaware of the legal procedures. The mother of the prosecutrix was not at home when the incident took place and the father Sanjay Sahni (PW1) has duly explained the causes for delay. According to him, when he heard the screams of the child and woke up, he saw his daughter soaked in St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 21 blood and the accused running away. On this he left his child in the care of Rekha Sahni, the Bhabhi of the accused who is residing in the same jhuggi on the first floor who provided her home treatment wheres he himself went in search of the accused. It is evident from the record that the child was taken to the hospital on the next date and according to the testimony of prosecutrix 'A' the doctor had asked them to first inform the police and it was for this reason that her father thereafter informed the police after which the local police came and the prosecutrix was medically examined. This aspect also finds due corroboration from the fact that the child prosecutrix was taken to BJRM Hospital by Rekha Sahni w/o Sh. Ranjeet Sahni and was medically examined on 10:45 pm. The MLC also shows that the information was recorded vide DD No.31A dated 20.3.2009 and the investigating officer SI Mukesh Devi had already reached the hospital when the child was examined. Therefore, under these circumstances, the delay if any, is validly explained and I hold that it will not be fatal to the case of the prosecution.
Identity of the accused:
The accused was known to the family of the victim/ prosecutrix being the nephew of the father of prosecutrix namely Sanjay Sahni in village relation. He was staying with them as he had come to Delhi in search of work. Further, the accused Sanjeet Sahni has been duly identified in the court by the child prosecutrix 'A' (PW2) and the father of the prosecutrix Sanjay Sahni (PW1). The record also reveals that the accused had absconded from the spot St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 22 after the incident and thereafter he was arrested on the pointing out of one Baleshwar Sahni from Samastipur Railway Station. Hence, the identity of the accused stands established.
Doctor's evidence along with the evidence of prosecutrix 'A':
In the present case, the prosecution has prayed for conviction of the accused under the provisions of Section 376 (2) (f) Indian Penal Code submitting that the statement of the prosecutrix coupled with the medical evidence conclusively prove that the offence of rape has been committed upon the child prosecutrix. Ld. counsel appearing on behalf of the accused has, however, submitted that the accused has been falsely implicated and no wrongly act has been committed by him. In fact the defence of the accused is that he was not even staying with the family of the prosecutrix but was residing separately a fact which he has not proved. PW3 Dr. Rajeev and PW4 Dr. Shakuntala have duly proved the MLC of the prosecutrix which reveal that the prosecutrix 'A' was a child of almost nine years who at the time of the incident was studying in class three. When she was produced before the doctor she had specifically named the accused and told the doctor that she was raped by Sanjeet Sahni after which her private parts had been washed. Though, it was observed in the MLC that there was no fresh injuries and no bleeding, yet in her cross examination of PW4 Dr. Shakuntala and on being asked by the Court, if the possibility of the rape having been committed upon the child 20 hours ago, the witness has clarified that the possibility of rape having been committed 20 hours ago cannot be ruled out. She further clarified that after 20-24 St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 23 hours the bleeding in case of a child aged nine years can stop if administered home treatment. I may observe that the father of the child and also the prosecutrix herself have specifically deposed that Rekha Sahni who was the Bhabhi of the accused, had immediately administered home treatment to her after the incident and it is, therefore, for this reason that there was no fresh injury or bleeding. I may add that the child had not yet achieved menarchy/ puberty and therefore, under these circumstances the fact that the vaginal cavity admitted small finger proves that the child had no previous sexual experience and her hymen was broken. Further, PW4 Dr. Shakuntala has duly proved that at the time when the prosecutrix was brought to the hospital, she also brought her undergarments which she was wearing at the time of incident. The investigating officer SI Mukesh Devi (PW13) has proved that she had seized the undergarments of the prosecutrix which aspects have gone unrebutted.
Coming now to the statement of the prosecutrix 'A'. She had in her first statement to the investigating officer specifically named the accused and also described the entire incident. The relevant portion of her statement on Ex.PW2/A is as under:
"...... Hamare ghar mein mere gaon ka larka aaya hua tha, jo ek saptah se naukri ke liye ghoom raha tha aur raat ko hamare ghar mein hi sota tha jiska naam Sanjeet Kumar S/o Shree Tunni Sahni R/o Gram Deeh Buchouli Thana Jandah Jila Vaishaili Bihar hai. 11 baje jad kal raat ko sab soye hue they, to St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 24 Sanjeet ne mere pehni hui kachchi utari aur apni pant utarkar mere saath ganda kaam karne laga. Main chillane lagi to mere munh par haath rakh diya. Eitne mein meri aawaaj sunkar mere pitaji uth gaye, jo mere pitaji ko dekhkar ekdum bhaag gaya......"
The child was taken to the hospital on the following day where she similarly disclosed to the doctor on duty that she was raped by the accused. After the registration of the case the prosecutrix was also produced before the Ld. Metropolitan Magistrate and her statement under Section 164 Code of Criminal Procedure was recorded which is Ex.PW2/D and has been duly proved in the court. It is evident from her statement that she has not only named the accused but has also explained the alleged act and described the incident, which statement is reproduced as under:
"mere aas paas ke gaon ka ladka Sanjeet tha.
hum khana kha kar so gaye. Sanjeet ne aakar mere kapde utare aur mere saath galat kaam kiya. usne mera muh bund kar diya. Fir mein chillai toh mere papa aa gaye. lekin vo bhag gaya.St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 25
The aforesaid statement of prosecutrix under Section 164 Cr.PC finds due corroboration from her testimony made by her before the court, wherein she has specifically deposed that :
"Sanjit Sahni mere paas aya aur meri chaddi utaar di aur apni pant bhi nikal di. Usne Mere saath galat kaam kiya.
Court question : Kya Galat Kaam kiya?
Ans.: Vaha mere upper leet gaya aur mere andar apna lund daal diya.
Usne apna haath mere munh par rakh diya tha Jaise hie usne apna haath mere munh se haataya, main joor se chillai to vaha vahan se bhaag gaya tha. Mujhe khoon nikal aaye. Mere papa Sanjeet Sahni ke piche bhaage. Rekha b habhi jo us samay hamare kamre ke upar pehli manji par rahti thi, mere paas aai aur soune mujhe dawai laga di. Agle din mere papa mujhe. BJRM haspatal le gaye. Vahan unhone doctor ko saari baat bata di, to doctor sahib ne unse kaha ki pehle police to bataoo. Mere papa ne police of saari baat batai. Uske baab doctgor ne mere ilaj kiya".
The aspect of sexual assault having been committed upon the child prosecutrix as alleged by her in his testimony finds a due St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 26 corroboration from the medical and FSL evidence on record and there is no reason to disbelieve the child. In the case of Bantu Vs. State of UP reported in 2008 (11) SCC 113, it was held by the Hon'ble Supreme Court that:
"....... For a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission.
The offence can be proved by circumstantial evidence also. The principal fact or factum probandum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed....."
Applying the settled principals of law to the facts of the present case, it stands established from the oral testimony of the child prosecutrix which finds due corroboration from the FSL and medical evidence on record that the offence has taken place. More so, as the child prosecutrix 'A' who has not only specifically identified the accused but has specifically explained the wrongful act/ Galat Kaam St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 27 done by the accused and there is no reason to doubt or disbelieve the same.
FSL/ Forensic Evidence:
The prosecution has also proved that at the time of her medical examination the prosecutrix 'A' had brought her undergarments which she was wearing at the time of the incident which she handed over to the doctor who handed over the same to the investigating officer SI Mukesh Devi. It has been duly proved that the said undergarment was duly sealed and seized and thereafter sent to the FSL for examination and there has been no tampering in the same till such time it remained in the possession of the investigating agency. The prosecution has further successfully proved that the exhibits were duly sent to FSL Rohini in respect of which the FSL report Ex.PW13/G was received (admissible in evidence as per Section 293 Code of Criminal Procedure). Perusal of the FSL report shows that the presence of the human semen was detected on Ex.1 and the presence of the blood on Ex.3, though no serological report could be given in respect of Ex.3 as the sample was putrefied, whereas there was no reaction in so far as the Ex.1 concerned. The statement of the prosecutrix coupled with the report of the FSL Ex.PW13/G proves the incident having taken place and duly connects the accused with the commission of offence.
Subsequent conduct of the accused:
It is evident from the material on record that the accused who was related to the father of the prosecutrix in village relation, St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 28 was an unemployed youth and was staying with the family of the prosecutrix in a small single room jhuggi. It is further evident from the testimony of the prosecutrix 'A' (PW2) which finds a due corroboration from the testimony of Sanjay Sahni (PW1) her father who was sleeping in the same jhuggi, that after committing the act when the prosecutrix raised alarm and screamed, her father Sanjay Sahni woke up on which the accused ran away from the spot while the child lay bleeding. Sanjay Sahni first handed over the child to the care of Smt. Rekha Sahni, Bhabhi of the accused Sanjeet Sahni who provide her with the home treatment whereas he himself went in search of the accused but could not succeed being handicapped himself on account of Polio, a fact which was even observed by this court during his examination since he could only walk with the help of a stick. It is evident from the record that the accused Sanjeet Sahni absconded from Delhi and during the investigations, the investigating officer had even gone to the native village at Bihar from where they came to know that the accused had gone to Guwahati and subsequently he was arrested from Samastipur Railway Station on the identification and pointing out of one Baleshwar Sahni, a relative to the accused.
As per the provisions of Section 8 of the Indian Evidence Act the conduct of any party, or of any agent to any party, to any suit or proceeding, in reference of such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 29 influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Applying these principles to the facts of the present case, it is evident that the subsequent conduct of the accused in running away from the spot is a relevant fact. The accused who had come to Delhi in search of work and was staying with the family of the prosecutrix had run away from the place of incident and had been shifting from one place to another. There was no occasion for the accused Sanjeet Sahni to have absconded in case if he was innocent. This conduct of the accused raises a suspicion for which no explanation has been given by him in his statement under Section 313 Code of Criminal Procedure wherein he has simply denied the fact that he had run away and was apprehended from Samastipur.
This being so, I hereby hold that the conduct of the accused raises a presumption against him to the extent of his criminal liability and guilt on account of which an adverse inference is being drawn against him.
No motive to falsely implicate the accused:
Motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 30 submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive. In a case where the accused alleged false implication, the motive of the complainant would become relevant and the proof of motive would only strengthen the case of the accused and fortify the court in its ultimate conclusion.
The accused in the present case has tried to impute motive to the father of the prosecutrix by alleging that he had been falsely implicated and according to him, he had borrowed some money from Sanjay Sahni the father of the prosecutrix which he could not return to him due to which reason he was falsely implicated in the present case. The defence so put forward is totally unconvincing and vague. The accused has not produced any document on record to prove that he himself had borrowed some amount from the father of the prosecutrix which he could not return. Even otherwise, it does not appeal to mind that a father would put his child's reputation to stake only to seek return of the borrowed amount and that too under the circumstances when he is aware that the accused himself has no paying capacity. The entire story regarding taking of loan and not returning the same, on the face of it appears to be concocted as an after thought.
Contradictions and discrepancies:St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 31
Ld. counsel appearing on behalf of the accused has pointed out towards a number of discrepancies and contradictions in the testimonies of the various witnesses. It has been vehemently argued that the police officers have made no entires in the Police Station either at Bihar/ Samastipur to prove their visit. Further, she has pointed out that the number of TSR by way of which the investigating officer along with the prosecutrix had reached BJRM Hospital has not been given nor they have been able to provide any details thereof. Apart from the aforesaid, Ld. counsel for the accused has also pointed out various discrepancies occurring in the testimonies of the witnesses regarding the time at which the prosecutrix was brought to the police station and when she was taken to the hospital and the time when the accused was arrested. In this regard, I may observe that as far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese Vs. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish Vs. State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that When the discrepancies are comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 32 and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non-discrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. (Ref.: State of H.P. Vs. Lekhraj & Anr. reported in JT 1999 (9) SC 43; Surender Singh Vs. State of Haryana reported in JT 2006 (1) SC 645 and Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC).
Applying the settled principles of law to the facts of the present case, it is evident that not only the prosecutrix 'A' (PW2) but also her father Sanjay Sahni (PW2) have proved the incident and sequence of events as narrated above, appears to be natural. The identity of the accused has been established and no motive has been attributed to the prosecutrix and her family why they would falsely St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 33 implicate the accused. The discrepancies even otherwise, are too immaterial to be even taken into consideration as they do not effect the merits of the case and I am of the considered view that they are bound to occur in the deposition of various witnesses being usual and natural and even otherwise they are found to be formal in nature without striking at the root of the matter and the same cannot be treated as fatal to the case of the prosecution.
FINAL FINDINGS:-
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ' must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 34
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the settled principles of law to the facts of the present case, it is evident that the investigation conducted including the documents prepared in the present case has been substantially proved by the police witnesses including the investigating officer. The witnesses of the police have proved having gone to BJRM Hospital where the child prosecutrix was taken for her medical examination. They have also proved the arrest of the accused; that the documents pertaining to his arrest were prepared; that the undergarment of the prosecutrix was seized in the hospital; that the medical report of the prosecutrix and the parcels were collected from the doctor and sent to the FSL for examination etc. There is nothing on record to show that their testimonies are false or not reliable.
It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of the child prosecutrix 'A' (PW2) then the investigation becomes less important as PW2 has not only deposed regarding the manner of commission of the crime but has also elaborated all the details and has assigned a clear and specific role to the accused.
St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 35There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
The manner in which the offence has been committed is clearly deposed by the child prosecutrix 'A' (PW2) and there is nothing material in her cross-examination which could shatter the veracity of her testimony which is found trustworthy and reliable.
It may also be observed here that the accused has also failed to show that he is not the person who had committed rape the prosecutrix. He has also failed to lead any evidence to substantiate his claim of innocence or falsify the prosecution version or show that the evidence of the prosecution witnesses is not reliable and credible.
There is nothing on the record which can shatter the veracity of the testimonies of the prosecution witnesses or falsify the prosecution version.
The identity of the accused, the identity of the prosecutrix, the age of the prosecutrix, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, medical legal report etc. have been duly proved by the prosecution. It has also been proved that the accused at the time of incident was present in the Jhuggi of the St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 36 prosecutrix 'A' and was sleeping in the same place where the prosecutrix 'A' aged nine years was sleeping. The prosecution has proved that the accused had committed rape upon the prosecutrix. It is also proved that after the incident when the father of the prosecutrix heard the crises of the child, he found her soaked in the blood and saw that the accused Sanjeet Sahni was running from spot. The prosecution has also proved that Sanjay Sahni who is physically handicapped, ran after the accused but could not apprehend him and the child prosecutrix was given/ provided home treatment and was medically examined after twenty hours. The prosecution has further proved that the undergarments of the prosecutrix were seized and sent to FSL for examination and that human semen and blood was detected on her undergarments. It has also been proved that there was no previous history of animosity between the family of the prosecutrix and the accused and there is no reason to falsely implicate the accused.
All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence. The prosecution has been able to successfully prove that on the intervening night of 19.3.2009 and 20.3.2009 the accused Sanjeet Sahni raped the child prosecutrix 'A' aged nine years.
St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 37In view of the foregoing reasons, the conscience of this court is completely satisfied that the prosecution has been able to successfully bring home the charge against the accused regarding the commission of offence punishable under Section 376 (2) (f) Indian Penal Code.
Accordingly the accused, Sanjeet Sahni is hereby convicted under Section 376 (2) (f) Indian Penal Code for having committed the offence of rape upon the child prosecutrix 'A' aged about nine years.
Be listed for arguments on the point of sentence on 7.2.2011.
Announced in the open court (Dr. KAMINI LAU) Dated: 1.2.2011 ASJ (NW)-II: ROHINI St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 38 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI Sessions Case No. 1188/2010 Unique Case ID: 02404R0341892009 State Vs. Sanjeet Sahni S/o Tunni Sahni R/o Village Deeh Buchauli PS Jandaha, Distt. Vaishali, Bihar FIR No.: 57/2009 Under Section: 376 (2) (f) Indian Penal Code Police Station: Adarsh Nagar Date of Conviction: 1.2.2011 Arguments heard on: 7.2.2011 Date of Sentence: 15.2.2011 Appearance:
Present: Sh. Taufiq Ahmed, Addl. PP for the State.
Convict Sanjeet Sahni has been produced from judicial custody with Legal Aid Counsel Ms. Usha Rani Advocate.
ORDER ON SENTENCE:
Pursuant to the judgment dated 27.9.2010 passed by this court, the accused namely Sanjeet Sahni has been convicted for the offence punishable under Section 376 (2) (f) Indian Penal Code.
This is a case where the accused Sanjeet Sahni who was closely related to the family of the prosecutrix being nephew in village relation to the father of the prosecutrix, had come to Delhi in St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 39 search of work and was staying in the jhuggi of the prosecutrix and used to sleep in the same one room jhuggi. The father of the prosecutrix namely Sanjay Sahni physically handicapped suffering from Polio and can walk only with the help of a stick. The mother of the prosecutrix stays at her native village at Bihar. On the intervening night of 19.3.2009 and 20.3.2009 the accused Sanjeet Sahni committed rape upon the child prosecutrix 'A' aged about nine years by shutting her mouth with his hand. However, when the child prosecutrix screamed, her father Sanjay Sahni woke up and found her daughter (prosecutrix 'A') soaked in blood and the accused Sanjeet Sahni running away from the spot. The father of the prosecutrix handed over her daughter (prosecutrix) to Smt. Rekha Sahni, the only lady present in the house who is the Bhabhi of the accused residing on the first floor of the Jhuggi, who immediately washed the child and provided her home treatment while Sanjay Sahni chased the accused but could not apprehend him on account of his physical disability. The accused thereafter is reported to have absconded and was ultimately arrested from Samastipur Railway Station, Bihar on 3.11.2009 on the identification of one Baleshwar Sahni where he used to ply a rickshaw. The child prosecutrix 'A' has duly identified the accused as the person who had committed rape upon her and her testimony finds a due corroboration from the medical and forensic evidence on record on the basis of which the accused has been held guilty of the offence under Section 376 (2) (f) Indian Penal Code and convicted accordingly.St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 40
I have heard the Additional Public Prosecutor for the State as well as the Ld. Counsel for the convict on the point of quantum of sentence to be awarded to the convict and also perused the case record.
Ld. Counsel appearing on behalf of the convict has argued that the convict is a young boy of 25 years of age having a family comprising of his aged father, wife, son (two and a half years of age) staying in the village, one elder brother and two younger sisters. It is also submitted that the convict is 4th class pass and is a rickshaw puller by profession. According to the Ld. Counsel, the convict is a first time offender and has no previous involvements and is in judicial custody w.e.f. 4.11.2009. She requests that a lenient view be taken against the convict.
Sh. Taufiq Ahmed. Ld. Addl. PP for the State has on the other hand prayed for a strict view against the convict keeping in view the fact that the crime committed by the convict was against the small child who at the time of incident was about nine years. He has requested for the maximum sentence to be imposed upon the convict submitting that he does not deserve any leniency keeping in view the offence committed by him.
Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is a small female child, a four year old child, as in the present case who is subjected to unwanted physical contact by a perverted male adult.
Section 376 (2) (f) Indian Penal Code reads that whoever-
St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 41..................
..................
commits rape on a woman when she is under twelve years of age;
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: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Considering the aforesaid submissions from both the sides, the family circumstances of the convict and perusing the case record, I consider it proper to award a substantive sentence upon the convict. Keeping in view the offence committed by the convict, I am not inclined to take a lenient view against him. He has raped a minor nine year old female child who was helpless, defenceless, vulnerable and an easy prey.
I am of the considered opinion that the convict should be awarded a substantive, stern and firm sentence because he misused the liberty and indulgence granted to him by the father of the prosecutrix who gave him shelter in his home while the convict had come to Delhi and he taking the advantage defiled the child. Social morality attaches highest importance to the chastity of a woman and the outrage and breach of her privacy and modesty is a heinous St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 42 offence.
I am of the opinion that in the present case, keeping into consideration the fact that the act of rape on a nine year old child is an act of a perverted man, the minimum sentence provided of ten years or a lesser imprisonment should not be awarded to to the convict. It has been held by the Hon'ble Supreme Court in the case reported in AIR 2000, Supreme Court, 1470 that:
Socio-economic, status, religion, race caste or creed o the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. In the present case, the convict has committed rape on a nine year old girl child. Due to her tender age, neither the body of the child was fully developed so much so that she had not even St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 43 received menarchy, nor she was in a position to offer any resistance to the convict. The convict has taken advantage of a helpless and defenceless child who could not even try to escape or express herself and was an easy and vulnerable prey. She must have undergone immense physical pain and agony when the offence was committed. Inspite of the tender age of the child, the convict went on to commit the ghastly, abominable, inhuman and barbaric act of rape, violating the person of the child and giving a lifelong trauma to her family.
This being the background, the ghastly, inhuman act of the convict cannot be condoned and a substantive, stern sentence is required to be imposed upon the convict so that it is not only in commensuration with the gravity of the crime but also serves as an example for the others who might also venture on the same forbidden path. The convict in my view does not deserve any leniency. Therefore, I award the following sentence to the convict Sanjeet Sahni:
The convict Sanjeet Sahni is sentenced to Rigorous Imprisonment for a period of 12 (Twelve) years with fine to the tune of Rs.10,000/- for the offence under Section 376 (2) (f) Indian Penal Code. In default of payment of the convict shall further undergo Simple Imprisonment for a period of two months.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 44 cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached with his jail warrants.
File be consigned to Record Room.
Announced in open court (Dr. Kamini Lau)
Dated: 15.02.2011 ASJ(NW)-II: ROHINI
St. Vs. Sanjeet Sahni, FIR No. 57/2009, PS Adarsh Nagar Page No. 45