Delhi District Court
State vs . Lav Kush S/O Sh. Bhoora Prasad, on 20 September, 2007
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IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS
JUDGE : KARKARDOOMA COURTS : DELHI :
SC No.155/06
Date of institution of case: 01.08.2006
Date of reserved for order: 12.09.2007
Date of delivery of judgment: 20.09.2007
State Vs. Lav Kush S/o Sh. Bhoora Prasad,
R/o Village Khichri Manik Pur,
Chitrakoot, Dham Karvi, U.P.
FIR No. 214/06
PS Anand Vihar
U/s 376 IPC.
J U D G M E N T:
Arti, a girl aged about 9 years, was sleeping over roof of her house on night intervening 1011.04.2006. Her brother Sanjay was unwell that day. He had consumed medicine and was also sleeping over the roof of his house. At about 9:30 pm, Luv Kush approach Arti. He caressed her body and removed her clothes. He started having sex with her. The girl started weeping. He put a cloth piece in her mouth. Arti could not raise an alarm. Luv Kush had sex with the girl and thereafter went away. Arti went down stairs and narrated facts before her mother.
2. Meena, mother of Arti, approached Usha, the sister of Luv Kush and made complaint to her. Usha defended Luv Kush. Meena 2 narrated facts before Ram Gopal, brother of the accused. Ram Gopal tried to pacify her saying that he would bring Luv Kush before her. She waited till 11:00 am, but Luv Kush was not produced before her. She went to PS along with her daughter. Arti lodged her report, which became bedrock of the case. Arti was sent to SDN Hospital for medical examination. Luv Kush was arrested and he was also sent to SDN Hospital for medical examination. Ossification test was got done to ascertain bone age of Arti. Her school record was also collected. Investigation culminated into a charge sheet against the accused.
3. Charge for an offence punishable under section 376 of the Penal Code was framed against the accused, to which charge he pleaded not guilty and claimed trial.
4. To substantiate the charge, prosecution has examined Santosh Kumar HC (PW1), Meena (PW2), Arti (PW3), Mukesh Kumar Constable (PW4), Dr. Sakshi Arora (PW5), Harpal Singh HC (PW6), Dr. L. Uprethi (PW7), Veera Sharma ASI (PW8), and Ajay Gupta MM (PW9) in the case.
5. Santosh Kumar HC was working as duty officer on 11.04.2006. He recorded formal FIR, on receipt of rukka from Veera Sharma ASI. He proved copy of FIR as Ex.PW1/A. Mukesh Kumar Constable remained associated in the investigation. He detailed that he 3 accompanied ASI Veera Sharma to the spot. They went in search of the accused, who was arrested at a place near Subzi Mandi. Accused was sent to SDN Hospital for medical examination. He brought three parcels from the hospital, which were seized by the investigating officer. Herpal Singh HC was working as mohrer malkhana, who had proved link evidence. Dr. Sakshi Arora had handled Arti in hospital on 11.04.2006. After her general examination, she was referred by her to Dr. Namrata, who conducted her gynaecological examination. She had proved her MLC as Ex.PW5/A. Dr. L. Uprethi had examined skiagram of Arti and opined that she was between 89 years of age. Ajay Gupta MM had recorded statement of Arti under section 164 of the Code of Criminal Procedure 1973 (in short the Code). He had proved her statement so recorded as Ex.PW3/B. Veera Sharma ASI had conducted investigation of the case and detailed investigative steps taken by her. She detailed that Arti got her statement recorded, on which case was registered. Accused Luv Kush was arrested by her from Subzi Mandi, Karkardooma, Delhi. He was sent to SDN Hospital for medical examination. Arti was also sent to hospital for medical examination. After conclusion of the evidence, she got the accused challaned. Meena, mother of Arti had testified that Arti came down stairs and lodged a complaint against Luv Kush, saying that Luv Kush 4 had sexually defiled her. Arti is the star witness of the prosecution, who narrated facts relating to her sexual exploitation by the accused. She unfolds that the accused had removed her undergarments and had sex with her.
6. Accused has not disputed his MLC, prepared at SDN Hospital on 11.04.2006. Hence, the said MLC has been exhibited as Ex.PA.
7. In order to afford an opportunity to explain circumstances appearing in evidence against him, the accused was examined under section 313 of the Code. He admits that on 11.04.2006, he was residing as a tenant in house of one Bhawar Singh at village Karkardooma, Delhi. However, he denied that Artil was sleeping on roof of the said house that night. He further denied that he reached near Arti and caressed her body. He also denied that he removed her undergarments and had sex with her. According to him, an altercation took place between him and her mother, two days prior to the incident. Meena had tutored Arti and thereafter he was framed in this case. He claims himself to be innocent. He has examined Smt. Tulsa (DW1) and Chander Kali (DW2) in support of his defence.
8. Arguments were heard at the bar. Sh. R.K. Pandey, Addl. PP had presented facts on behalf of the state. Sh. B.L. Katiar, Adv. had advanced arguments on behalf of the defence. He has filed written 5 submissions too. I have given my careful considerations to the arguments advanced at the bar and cautiously perused the record. My findings on the issues involved in the controversy are as follows.
9. Sh. Katiar had argued that Arti is not a reliable witness. According to him, Arti was sleeping over the roof along with her brother. He agitates that in case Arti was sexually defiled by the accused and she attempted to raise an alarm, in that situation her brother would have certainly come to know about sexual assault on the girl. He argued that no such story has been projected that Sanjay came to know about the incident. He agitates that these facts castigate testimony of Arti. he further argued that facts projected by Smt. Meena are also not reliable. According to him, Meena had a motive to frame the accused in the case, since she had an altercation with him two days prior to the incident. On these counts Sh. Katiar argued that case projected by the prosecution is based on improbable facts. ld. PP dispels facts presented by Sh. Katiar and argued that events unfolded by Arti are worthy of credence. She made a complaint to her mother about her sexual defilement, which fact bring her conduct over the record, which is relevant. He agitates that the prosecution has been able to establish its case against the accused beyond the shadow of reasonable doubts.
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10. Testimonial potency of version of a victim of rape cannot be put on part with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must be attached in evaluation of her evidence as in the case of an injured complainant or a witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the out come of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act, which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for corroboration required in the case of an accomplice. The nature of evidence required in to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her 7 evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. Law to this effect was laid by the Apex Court in Chander Prakash Keval Chand Jain (1990(1) SCC 550).
11. The Apex Court in Gurmeet Singh (1996 (2) SCC 384) has held that Trial Court should take into consideration the fact that a girl, in a traditionbound nonpermissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized or being looked down by the society. Her not informing the incident to anyone else till the person in whom she can repose confidence, under circumstances cannot detract from her reliability. In normal course of human conduct, a young girl would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to anyone else, overpowered by a feeling of shame and her natural inclination would be to avoid talking about it to anyone, lest the family name and honour is brought into controversy. The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no 8 selfrespecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation supposed considerations, which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix, should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness and tendency to conceal outrage of sexual aggression are factors which the court should not overlook. The testimony of the victim in such case is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.
12. In the present controversy, testimony of Arti would be appreciated on the principles of law laid above, while assessing as to whether she is reliable witness and no corroboration is needed to adjudicate accountability of the accused. She unfolds that in those days her school examination were over. She was sleeping at roof top of her house during night hours. Her brother Sanjay was also sleeping 9 on the roof. On that day, Sanjay was down with fever. Sanjay has taken his meal and thereafter he took medicines. He was sleeping over roof thereafter. Luv Kush was also sleeping over the roof, who is known to her since he hails from her native village. Luv Kush came to her. He applied spit over his penis and started doing an act with her. Luv Kush had removed her underwear before doing that act with her. She uttered that she would narrate facts before her mother. At that juncture, Luv Kush put a cloth on her mouth. She felt pain in her private parts. She cried at that time. Thereafter, Luv Kush ran away. Her mother came there and she narrated facts before her. Her mother called Luv Kush, who did not came there. She was taken to PS, where she lodged her report, which is Ex.PW3/A.
13. Much hue and cry was made by the defence pleading that when Sanjay was sleeping over the roof and Arti has allegedly cried for help, Sanjay ought have awaken. Sh. Katiar, Adv. contends that it is not the case of the prosecution that Sanjay woke up and saw the accused mounting over Arti. Submissions advanced by Sh. Katiar are untenable. A girl aged about 9 years was sexually exploited, who was not mature enough to resist advances of the accused. When accused had removed her undergarments, by that time, the girl was not in a position to understand as to what episode would take place with her.
10 When, accused applied spit over his penis and started penetration, at that juncture she felt pain in her private parts. She cried for help and the accused had put cloth in her mouth at that juncture. Thus it is emerging over the record that when the girl tried to make hue and cry, her voice was throttled by the accused by putting a cloth in her mouth. In such a situation, hue and cry of Arti could not invite attention of Sanjay or her mother, who was sleeping down stairs. Arguments advanced by Sh. Katiar are found to be untenable. He has also contended that Smt. Meena was inimical qua the accused and had framed him in this case. Had Meena being inimical, it has not been explained by the accused as to why she had made her young daughter a target. What prevented Meena in implicate the accused of her own, without using her daughter as a bait. Consequently, it is crystal clear that contentions advanced by the defence do not stand to reason. There is no grain of truth in facts projected by Sh. Katiar.
14. Dr. Sakshi Arora had proved MLC Ex.PW5/A, which was prepared in respect of the victim. This MLC was prepared around 6:10 pm, on 11.04.2006. It has been reported therein that hymen of the victim was ruptured. However, no external injuries or blood was present on her private parts. As unfolded by the girl, she was taken by surprising when accused reached near her and removed her clothes.
11 She could not offer any resistance. Even otherwise her tender age and weak physique came in her way. These facts explains as to why there were no external injuries on her person. Since, incident of rape occurred on previous night, hence absence of bleeding from her private part nowhere substantiate anything in favour of the defence. Rupture of her hymen is suggestive that she was subjected to sexual assault. These facts reaffirm events unfolded by the girl. Therefore, it is evident that physically examination of Arti substantiate her ocular testimony.
15. Smt. Meena, her mother tells that at about 2:30 am, on the night of 10.04.2006, Arti came down stairs. She unfolds that that night Arti was sleeping on roof top of her house. Her son Sanjay was also sleeping there. He was unwell that night. Arti came down stairs and knocked at the door. She opened the door. Arti complained to her that Luv Kush had removed her undergarments and tried to rape her. He applied spit over her private part and started having a coitus with her. When, she raised an alarm, he put cloth in her mouth. she further told that she was feeling pain, when she went for micturition. Thus, it is emerging over the record that soon after the incident, Arti made a complaint to her mother. Conduct of the girl is relevant under section 8 of the Evidence Act, when she makes a complaint of sexual 12 assault by the accused to her mother.
16. Arti, a girl aged about 9 years, entered into the witness box to detail her tail of woe. Her testimony was purified by way of ordial of cross examination. It was not at all suggested to her that she was inimical qua the accused or there were feelings of enmity between her parents and the accused. She was not at all confronted with facts that her mother had tutored her and at her instance she had deposed facts before the court. Not even a whisper of fact was made suggesting the girl that she was biased against the accused to implicate him in a crime. No efforts were made to suggest that the girl was mature enough to fabricate a story and then to present facts before the court. It is not the case of the defence that Arti was not a person of veracity. When, her testimony was closely perused, it came to light that facts testified by her are consistent and above board. No flaw is noticed in her deposition, which may persuade the court to brand her as unreliable witness. A probable story emerge out of the facts testified by this witness, which is laced with bashful tendency of a feminine. An ordinary prudent man would find that Arti had presented facts before the court with certain hesitations, since she was reluctant to publishes the trama, which was under gone by her at the hands of the accused. However, she was confident enough to unfold the incident in a lucid 13 manner. The impact which one perceives out of her testimony, satisfies anvil of standard of veracity. This child witness was intelligent enough then persons of her age. She had unfolded facts, which were not at all laced with embellishment. These circumstances persuade me to opinion that Arti is worthy of credence and her testimony can safely be used in adjudicating accountability of the accused. When, facts unfolded by the girl are scanned, it emerged over the record that she portraited a picture of the incident in which she was sexually exploited by the accused.
17. MLC Ex.PA is not a matter of dispute. It has been opined in this document that there was nothing to suggest that the accused Luv Kush was not capable of sexual intercourse. Consequently, on the strength of document Ex.PA, the prosecution has been able to establish that the accused was competent to have sex. That fact bring a circumstance over the record against the accused.
18. Ossification report Ex.PW7/A has been proved by Dr. L. Uperati. He opined that bone age of Arti was 89 years. That fact makes it clear that on the day of incident Arti was a child and not competent to consent for sex. Therefore, it is evident that prosecution has been able to establish that Arti was sexually defiled by the accused on the night of 10.04.2006.
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19. Tulsa speaks that about 1½ year ago, it was 10 day of English Calender month, when Luv Kush had an altercation with Meena, who resides in her neighbourhood. Meena criminally intimidated Luv Kush saying that she will see him in future. She made it known that she will implicate Luc Kush in a case. Tulsa, the sister of the accused admits that when her brother was arrested by the police, she had not narrated factum of altercation before police, which took place between Meena and her brother. She further admits that she not made any complaint to superior authorities, when her brother was arrested in the case. Out of facts unfolded by Tulsa, it is emerging over the record that this lady had not put law into action when her brother was allegedly arrested, as claimed by her. She had not explained as to why she kept silence for a period of more than 1½ year. Her long silence over the matter speaks volumes about her veracity. It is evident that with a view to save her brother from legal punishment, Tulsa had entered the witness box. Her testimony is of no avail to the defence.
20. Chander Kali, the other sister of the accused had also entered the witness box. She also testified that about one year ago, an altercation took place between her brother and Meena and the latter criminally intimidated Luv Kush of his implementation in a false case. She also projects that next day her brother was arrested in the case.
15 This lady had also adopted a posture of silence for a period of 1½ year and one fine morning entered the witness box to narrate facts. She could not explain as to why she had not made efforts to make higher authorities known about arrest of her brother. It is evident that with a motive to see her brother coming out of net of the prosecution, this lady entered the witness box and testify false facts. His testimony is also of no avail to the prosecution.
21. In view of forgoing reasons, it is evident that Arti was sexually exploited by the accused on the night intervening 1011.04.2006, when she was sleeping at the roof of her house. She made a complaint to her mother, who took her to PS where a report was lodged. On being medically examined, the facts of her sexual exploitation were confirmed. Accused has failed to raise any doubt in the case of the prosecution. Evidence brought over the record is sufficient to hold him accountable to the charges. Consequently, he is held guilty and convicted for an offence punishable under section 376 of the Penal Code.
Announced in the Open Court th On this 20 day of September, 2007. (Dr. R.K. Yadav) Additional Sessions Judge :
Karkardooma Courts, Delhi. 16