Delhi District Court
State vs . Sanjay on 9 November, 2009
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State Vs. Sanjay
IN THE COURT OF SH.R P PANDEY: ADDL.SESSIONS
JUDGE-OUTER (II): ROHINI COURTS:DELHI
SC No. :501/06
FIR NO. :364/03
PS : Bawana
U/s : 376/511 IPC
State Vs. Sanjay S/o Ganesh Yadav
R/o-H.No.29, Gali No.5E Block
Shahbad Dairy, Delhi
Date of Institution - 02.04.04
Date on which the case - 27.10.09
was reserved for order
Date of Decision - 09.11.09
JUDGMENT:
1. Accused Sanjay has been charge sheeted by Police Station- Bawana to face trial for the offence punishable under Section 376/511 IPC. The criminal law was set into motion on the complaint of prosecutrix (name of prosecutrix, who is victim of sexual offence, has been deliberately not mentioned in view of the legal provisions and mandate of Hon'ble Supreme Court and High Court. She will be referred as 'prosecutrix' or 'victim' in judgment). In her complaint dated -:2:- State Vs. Sanjay 14.11.03, she has stated that she is living with her parents and does the household work and her mother used to make toothpicks at the house itself and on the day of incident she had gone to the market to sell the same and her younger brother and sister had gone outside for playing and she was alone at the house lying on the cot. It was about 4.30 p.m when a boy, namely, Sanjay, who resides in her neighbourhood, came to her house and immediately after entering into the house he (accused) put his hand on the mouth of victim and forcibly removed her underwear and tried to put his penis into her vagina. She tried to raise alarm but accused closed her mouth. She, however, forced away the accused by using her legs. In the meantime mother of victim came over there and accused fled away from the spot.
2. The prosecutrix narrated the entire story to her mother, who along with prosecutrix approached PP:Shahbad Dairy under PS:Bawana and got registered the complaint, on the basis of which present FIR bearing no.364/03 under section 376/511 IPC was registered. She was medically examined at M B Hospital. Accused was arrested, -:3:- State Vs. Sanjay interrogated and after completion of investigation he was charge sheeted under Section 376 IPC.
3. FIR reiterates the same facts as of statement of complainant.
4. Ld.MM complied with the provisions of Section 207 Cr.PC and committed the case to the court of Sessions for trial, which in turn was assigned to the ld.predecessor of this court.
5. Vide order dated 19.04.04, ld.predecessor framed charges against accused for offences punishable under Section 376/511 IPC. Accused Sanjay pleaded not guilty and claimed trial. Later on, during the course of trial, charge was amended, on an application filed by ld.Public Prosecutor and vide order dated 18.03.09 charge was framed under section 376 IPC against accused instead of Section 376/511 IPC , to which he pleaded not guilty and claimed trial. Ld.Amicus Curiae for accused did not wish to again cross-examine any of the witnesses, who -:4:- State Vs. Sanjay were already examined prior to amendment of charge.
6. Prosecution, in support of its case, examined 17 witnesses and the prosecution evidence was closed by Ld.Addl.PP for the State.
7. PW-1/Victim of incident, has deposed that on the day of incident her father was away to his work and her mother went to deliver the toothpicks which she used to make and she was sleeping at her house and her younger brothers and sisters were playing outside house when accused Sanjay came inside and raped her by closing her mouth with his hand. In the meantime her mother and sister arrived and accused managed to escape from there. They reported the matter to the police where her statement was recorded which is marked as Ex.PW- 1/A. She was medically examined and police seized her clothes. She identified her underwear as Ex.P-1, which she was wearing at the time of incident. She however stated that she did not remember the date of incident and that her statement was not recorded in the court. -:5:-
8. As the witness was resiling from her previous statement, she was cross-examined by Ld.Addl.PP for the State after seeking permission from the court.
9. During cross-examination by Ld.APP for State she admitted that her statement was recorded in the court i.e by Ld.MM under section 164 Cr.PC, which was put as Ex.PW-1/B and that the date of incident was 14.11.03.
10. During cross-examination nothing material came out.
11. PW-2/Lal Bahadur, father of prosecutrix has deposed that on 14.11.03 when he came back to his house at about 8.00 p.m, he came to know that his daughter had been taken to hospital. He went to the hospital and came to know that she has been raped by accused-Sanjay and age of his daughter was 13 years at the time of incident.
12. During cross-examination he admitted that father of -:6:- State Vs. Sanjay accused had constructed a chabutara in front of his house. He denied to the suggestion that a quarrel had taken place between him and father of accused or that he had threatened him to teach him a lesson or that a false case has been registered at the instance of one Jahoor, who is a politician.
13. PW-3/Smt.Lal Mani, mother of prosecutrix, who has stated that Sunita is her daughter. She deposed that she did not remember the year but on that day of incident she was out of her house and when she came back, she knocked at the door of her house and accused Sanjay came out and fled away by pushing her. She made noise. She stated that her daughter had told her that she was raped by accused.
14. During her cross-examination she admitted that a chabutra was got constructed by Ganesh Yadav, father of accused. She denied suggestion that they threatened him to implicate in a false case or that all of them were present at her house and accused did not do anything or that a false case has been registered against him. She stated that -:7:- State Vs. Sanjay accused is known to her being her neighbour.
15. PW-4/Madan Lal has deposed that accused as also complainant party are known to him as he used to reside in P-Block, Shahbad Dairy in the month of October/November, 2003 and accused is innocent and he has been falsely implicated.
16. As the witness was not supporting the prosecution, he was cross-examined by Ld.Addl.PP for the State after seeking permission from the court.
17. During cross-examination he admitted that police recorded his statement on 14.11.03.
18. PW-5/HC Rajvir Singh Khatri has deposed that while he was working as duty Head Constable at M B Hospital, on 14.11.03, prosecutrix was examined by one lady doctor, who had handed over to him, two sealed parcels with one sample seal and the same were handed -:8:- State Vs. Sanjay over by him to SI-Harjinder Rana. They were taken into possession vide memo, Ex.PW-5/A. During cross-examination nothing material came out.
19. PW-6 Dr.Anuadha, Sr.Resident, M B Hospital, had medically examined prosecutrix brought by SI-Yograj with alleged history of sexual assault and proved MLC as Ex.PW-6/A.
20. PW-7/HC Champa Toppo has deposed that while working as duty officer he recorded FIR of the instant case and proved the same as Ex.PW-7/A. He also deposed that he recorded DD No.18A regarding registration of FIR.
21. PW-8/L/Ct.Bala Devi has deposed that on the day of incident i.e. 14.11.03, at about 6.30 p.m., she was called at PP:Shahbad Dairy by SI-Yog Raj. On reaching there she found that prosecutrix and her mother were present. She had taken the victim to hospital for her medical examination. SI-Yograj and mother of prosecutrix also reached -:9:- State Vs. Sanjay in the hospital with her. Later on W/SI-Harjinder Rana also reached in the hospital and further investigation was carried out by her.
22. During cross-examination she stated that statement Ex.PW- 8/DA is her statement but the same does not bear her signatures. She further stated that she does not know the exact time as to when they left the police post along with prosecutrix for hospital. She further deposed that her statement was recorded by IO at police post on the same day in the evening. She denied to the suggestions that she did not go to the hospital and signatures were obtained on the memo at the police post or that SI-Harjinder Rana herself collected the parcel from hospital.
23. PW-9/SI-Yog Raj has deposed that on 14.11.03 after receiving DD no.25 regarding rape, he went to the house of prosecutrix where he came to know that prosecutrix has been raped by her neighbour/accused-Sanjay. He deposed that prosecutrix was medically examined at M B Hospital and further investigation was carried out by W/SI-Harjinder Rana.
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24. During cross-examination he deposed that DD in question was assigned to him at about 6.10 p.m. He stated that he left the police post for hospital for medical examination of prosecutrix after arrivalof lady constable at the police post.
25. PW-10/Dr.Yudhvir Singh has deposed that on 19.11.03, he had examined the accused and proved MLC in this respect as Ex.PW- 10/A. Despite opportunity granted, witness was not cross-examined.
26. PW-11/Ct.Dharmender Khatri, has deposed that on 19.11.03, he had accompanied W/SI-Harjinder Rana in search of accused, on receipt of secret information received by IO. He deposed that on the pointing out of victim accused Sanjay was apprehended. He then deposed that he had taken the accused to the hospital for his medical examination and his statement was recorded by IO. -:11:-
27. Despite sufficient opportunity granted to accused by ld.predecessor of the court PW-11 was not cross-examined.
28. PW-12/Smt.Dashrath Devi has deposed on the same lines as of PW-4/Madan Lal.
29. PW-13/Ct.Vijender Singh has deposed that he accompanied SI-Yograj Singh in connection with investigation of DD No.25 and got registered the case on the basis of rukka handed over to him by W/SI- Harjinder Rana.
30. PW-14/W-SI-Harjinder Rana, IO of the case has proved the entire investigation including statement of prosecutrix as Ex.PW-1/A; rukka as Ex.PW-14/A; site plan of the place of occurrence as Ex.PW- 14/B; pointing out memo as Ex.PW-14/C; taking of possessions the parcels produced by L/HC-Bala Devi as Ex.PW-5/A; arrest memo of accused as Ex.PW-11/A; Personal search memo of accused as Ex.PW- 11/B; taking into possession two sealed parcels vide memo, Ex.PW- -:12:-
State Vs. Sanjay 11/C and FSL result received from FSL as Ex.PW-14/D-1 and Ex.PW- 14/D-2.
31. PW-15/Ms.Anu Grover Baliga, Ld.MM has proved her report as Ex.PW-15/A and proceeding as Ex.PW-15/B.
32. PW-16/Dr.Lalit Madan, Specialist, M B Hospital has proved the report prepared by Dr.Anil Khari as Ex.PW-16/A as Dr.Anil Khari left the services of the hospital and his present wareabouts are not known. As per Ex.PW-16/A bone age of prosecutrix was determined as not less than 12 years and not more than 14 years.
33. PW-14, 15 & 16 were not cross-examined despite due opportunity granted to accused. Therefore, their cross-examination was treated as nil.
34. PW-17/HC Rajender Singh, who was MHC(M), has deposed that W/SI-Harjinder Rana had deposited two sealed parcels and -:13:- State Vs. Sanjay one sample seal of M B Hospital with him, on 14.11.03 and he made entry in respect of deposit of these articles in register no.19 at sl.no.399/03. She again deposited two sealed parcels along with sample seal, on 19.11.03 and he made entry in respect of deposit of these articles in register no.19 at sl.no.406/03. He further deposed that on 15.12.03, case property of this case was sent to FSL, Malviya Nagar through road certificate no.151/21/03 and he proved the photocopy copy of the entry of deposit as Ex.PW-17/A and Ex.PW-17/B and that of road certificate as Ex.PW-17/C.
35. Nothing material had come on record during cross- examination of this witnesses.
36. Entire incriminating evidence which had come out against accused Sanjay was put to him under section 313 Cr.PC and he has denied all the material put to him as incorrect and when he was asked as to why PWs deposed against him, he has stated that they are false witnesses and he has been implicated in a false case due to some -:14:- State Vs. Sanjay political enmity. He further stated in his statement that he is innocent and he was not present at the spot and did not commit any rape upon prosecutrix. Accused did not lead any evidence in defence.
37. I have heard the arguments advanced by Sh.Ram Pyara, Ld.Addl.PP for the State and Ms.Sadhna Bhatia, Ld.Amicus Curiae for accused and carefully gone through the entire records of the case.
38. It has been submitted by ld.Amicus Curiae for accused that accused has been falsely implicated for the reason that there was a dispute between the families of prosecutrix and accused as the father of accused had constructed a chabutara in front of the house of prosecutrix. She has also drawn attention of the court towards the statement of prosecutrix recorded before Ld.MM under section 164 Cr.PC, wherein she has stated that there was enmity between her parents and parents of accused/Sanjay and for that reason only he had committed the said act, which show a motive on the part of prosecutrix for implicating accused in false case. She has also submitted that one -:15:- State Vs. Sanjay neighbour of the accused and prosecutrix, namely, Jahoor was instrumental in getting FIR registered against accused and exaggerated the dispute between the parties. She has drawn attention of the court to the testimony of PW-4-Madan Lal, who was declared hostile by prosecution. She has submitted that PW-Madan Lal was the only independent and impartial witness who did not support the prosecution case.
39. On the other hand, Ld.Public Prosecutor has submitted that no responsible person of the society would like to put on stake prestige of her own daughter to falsely implicate the accused.
40. I have considered the rival contentions and in my considered view the motive as suggested by Ld.Amicus Curiae for implicating the accused in this case is not well founded, although there is evidence on record that family of accused and prosecutrix did not share cordial relationship with each other but merely because they had no cordial relationship with each other, would not lead the prosecutrix -:16:- State Vs. Sanjay or her family members to falsely allege rape by the accused upon victim. To accept the proposition put forth by accused would be against common knowledge and ordinary prudence. Further not supporting of prosecution case by PW-4/Madan Lal does not weaker the case of the prosecution as there is no reason to disbelieve prosecutrix.
41. The next contention of the Ld.Amicus Curiae is that at the best the acts proved against accused in this case would have fallen under section 354 IPC and not under section 376 IPC because the medical and scientific evidence brought on record by the prosecution do not support the case of the prosecution that there was a rape upon victim.
42. Ld.Amicus Curiae has drawn attention of the court towards the complaint which was got registered by the complainant at the first instance and put as Ex.PW-1/A, wherein she has stated that accused Sanjay had entered into the house of the prosecutrix at about 4.30 p.m on the day of incident and closed her mouth and after overpowering her, -:17:- State Vs. Sanjay he removed her underwear and tried to put his penis on her vagina, upon which, she pushed away the accused by using her legs and also tried to raise alarm also. In the meantime her mother came in and accused ran away from there.
43. She has further drawn attention of the court towards statement of mother of prosecutrix, namely, Smt.Lalmani, who made statement to the police under section 161 Cr.PC, wherein she had also stated that when she came back from her work, she called her daughter from outside her house, upon which accused Sanjay came out from her house and went to his own house and her daughter had told her that accused Sanjay had tired to do wrong act with her (GALAT KAAM KARNE KI KOSHISH KI) and when she complained to the mother of accused, she started shouting in loud voice and people collected over there and after that her neighbour-Kallo brought accused Sanjay, out of his house and gave him two slaps and also tried to catch him but he fled away and thereafter she called the police over phone and made statement.
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44. It has been thus submitted by Ld.Amicus Curiae that the Prosecutrix and her mother have deliberately and materially improved upon their statements to the extent that they exalted the offences from attempt to complete rape. She has further submitted that earlier the FIR was registered under section 376 read with section 511 IPC but subsequently the challan was filed under section 376 IPC by removing section 511 IPC from it. She has submitted that initially Ld.Predecessor of this court had framed charge under section 376/511 IPC but subsequently the prosecutrix had exaggerated her statement and went to the extent of saying that the accused had committed rape with her, therefore, the charge was amended subsequently on 18.03.09 by making it under section 376 IPC only. She has submitted that at no stretch of imagination, it can be said that the act of accused falls under section 376 IPC.
45. Ld.Public Prosecutor, on the other hand, has drawn attention of the court towards the statement of prosecutrix recorded before the court as PW-1, who stated that rape has been committed -:19:- State Vs. Sanjay upon her and, therefore the act committed by accused Sanjay falls within the ambit of Section 376 IPC and not under section 354/376 IPC read with section 511 IPC.
46. I have carefully perused the testimonies of prosecution witnesses and entire records of the case.
47. PW-1 i.e prosecutrix has deposed that when she was sleeping in her house and her younger brothers and sisters were playing outside and her door was closed but not locked, accused Sanjay came inside and closed her mouth with hand and also tied her hands, upon which she started feeling breathlessness and thereafter accused raped her and in the meanwhile mother and sister arrived there and accused ran away from there after opening the door, whereupon she went to the police station and police recorded her statement, Ex.PW-1/A which bears her signature at point A. She also identified her underwear which she was wearing at the time of incident as Ex.P-1. However, she has stated that her statement was not recorded in the court and she did not -:20:- State Vs. Sanjay remember the date of incident also. With the permission of the court, she was allowed to be cross-examined by Ld.APP for the State and during her cross-examination she admitted that she made statement before Ld.MM which bears her RTI at point A. She also admitted that incident had occurred on 14.11.03.
48. During her cross-examination, the prosecutrix has admitted that one chabutara was made in front of her house but she did not know as to who made the said chabutara and she denied the suggestion that said chabutara was got constructed by father of accused and on which a quarrel had taken place between her father and father of accused or that her father had threatened father of accused that he will teach him a lesson by getting a false case registered. She also denied suggestion that her hands were not tied and her mouth was not closed. She also denied the suggestion that one Jahoor, who is a politician had got a false case registered against accused.
49. If we compare the testimony of prosecutrix recorded before -:21:- State Vs. Sanjay the court with her deposition before Ld.MM under section 164 Cr.PC, we find that in her statement before Ld.MM, she stated that accused had done a dirty act and spoiled her prestige (MERE SATH GANDI BAAT KI AUR MERI IJJAT LOOTI). In her statement recorded before police, put as Ex.PW-1/A, she had stated that accused had come inside her house, shut her mouth, removed her underwear and tried to put his penis on her vagina, upon which she tried to raise alarm and also forced him away by using her legs and in the meanwhile her mother had come over there and accused ran away. Thus, there is material contradictions between 3 statements of prosecutrix, one made before police under section161 Cr.PC; another made before Ld.MM under section164 Cr.PC and third one made before this court.
50. Age of the prosecutrix is 13-14 years as is clear from her MLC and bone age report respectively put as Ex.PW-6/A and Ex.PW- 16/A and, therefore, it is also possible that when prosecutrix was saying before court that a rape had been committed upon her by accused, she was not fully aware as to what constitutes a rape and that penetration -:22:- State Vs. Sanjay was necessary to constitute offence of rape. The question ought to had been put to her at the time of her examination to know as to did she mean by rape but no such question was put to the prosecutrix.
51. MLC of the prosecutrix put as Ex.PW-6/A show that on her internal examination her hymen was found intact with two orifices seen in hymen and only one finger could be inserted in her vagina with difficulty. Therefore, the medical examination of the prosecutrix also does not support case of rape.
52. As held by Supreme court in "Arjun Singh Vs. State of HP, 2009 (1) RCR (Criminal) 969" even slightest degree of penetration is sufficient. But penetration is sine qua non for constituting offence of rape. It was held by Hon'ble Supreme Court in "Koppula Venkat Rao Vs. State of AP, 2004 (3) JT 328" that even where there was only ejaculation but no penetration, the offence was not rape but attempt to commit rape.
53. Although, the complete penetration is not required for -:23:- State Vs. Sanjay constituting an offence of rape but the prosecutrix ought to have narrated before the court as to what act was actually done with her by accused instead of telling that rape had been committed by accused with her. Rather, Ex.PW-1/A explains as to what, exactly, had been done by accused with her. Even in her statement under section 164 Cr.PC, she has not explained as to what did she mean by rape because in common language even attempt of rape amounts to do a wrong act and spoiling chastity of a girl.
54. In a recent judgment cited as "Pandharinath vs.State of Maharashtra, 2009 (3) RCR (Criminal) 596", it was held by Hon'ble Supreme Court that where accused has been charged with an offence under section 376 IPC and during trial he has been found guilty of attempt to commit rape, he could be convicted through no charge under section511 IPC was framed. In this case the trial court had convicted accused for rape under section 376 IPC and sentenced him to undergo RI for 5 years and to pay fine of Rs.1,000/-. But Hon'ble Bombay High Court held appellant/convict guilty of offence punishable under section 511 IPC for attempt to commit rape and sentenced him to undergo RI -:24:- State Vs. Sanjay for one year and pay fine of Rs.1,000/-, which was upheld by Hon'ble Supreme Court.
55. Thus, I find that acts committed by accused-Sanjay against prosecution, as proved by prosecution do not constitute offence as defined under section 375 IPC and made punishable under Section 376 IPC, but at the same time, it is also not purely case of outraging the modesty of a woman as defined under section 354 IPC as it has been sufficiently proved on the basis of testimony of the prosecutrix and testimony of her mother and other witnesses that accused Sanjay had attempted to commit rape upon the prosecutrix.
56. I, accordingly hold accused-Sanjay guilty of offence punishable under section 376 read with section 511 IPC. Accused Sanjay is accordingly convicted of an offence punishable under section 376/511 IPC.
Announced in the open (R P PANDEY)
Court on 09.11.09 ADDL. SESSIONS JUDGE-OUTER(II)
ROHINI COURTS:DELHI