Delhi District Court
State vs . 1. Dalbir Singh S/O Shyam Lal Singh, on 2 May, 2007
1
IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS
JUDGE : KARKARDOOMA COURTS : DELHI :
Sessions Case No. 02/07
State Vs. 1. Dalbir Singh S/o Shyam Lal Singh,
R/o Village Tikampura, PS Mehrera, Distt.
Etah, U.P.
2. Sukhbir Singh S/o Chhedi Lal,
R/o Village Tikampura, PS Mehrera, Distt.
Etah, U.P.
FIR No. 545/06
PS Mandawali
U/S 376/452/342 IPC.
J U D G E M E N T : Om Prakash resides at house No. 609/87, Pandit Mohalla, Talab Chowk, Mandawali, Delhi, along with his wife and daughters. Since his family is from lower strata, his wife and daughters work as maid at the houses of affluent people. His daughters, namely, Rakhi and Asha were working as maid servants in nearby vicinity. Ram Singh was residing in neighbourhood of Om Prakash. Dalbir Singh and Sukhbir Singh, who are relations of Ram Singh, were having an evil eye on Rakhi and Asha. On 01.11.06 at about 12 noon, Rakhi and Asha returned home from their respective jobs. Asha was present at the gate of her house, while Rakhi was inside. Dalbir Singh and Sukhbir Singh reached there. They dragged Asha inside the house and bolted door from inside. Dalbir Singh overpowered Asha and untied her salwar. Sukhbir Singh overpowered Rakhi and untied her salwar. They raped the girls and thereafter ran away. For three days, Rakhi and Asha remained in dilemma. Ultimately, Asha broke out and narrated facts before her mother. They were taken to police station, where Rakhi lodged a report.
2 On account of bashful nature, she narrated that the accused persons tried to rape them. A case was registered and both girls were sent to LBS Hospital for medical examination. Dr. Renu Gupta examined Rakhi and Asha. She found their hymen torn. She was of the view that findings are suggestive of sexual assault on these two girls.
2. Accused persons were arrested. They were sent for medical examination. Dr. Sucheta Tripathi opined that there was nothing to suggest that accused persons were incapable of performing sexual acts or intercourse. Investigation culminated into a chargesheet against the accused persons.
3. Charges for offences punishable under sections 376, 452 and 342 of the Penal Code were framed against the accused persons, to which charges they pleaded not guilty and claimed trial.
4. To substantiate the charges, prosecution has examined Rakhi (PW1), Asha (PW2), Shanti (PW3), Om Prakash (PW4) and Alka Azad, Inspector (PW5) in the case.
5. Accused persons were examined under section 313 of the Code of Criminal Procedure, 1973 in order to give them an opportunity to explain circumstances appearing in evidence against them. They have denied all the allegations against them and claimed that they have been framed in the case. They had not adduced any evidence in their defence.
6. Arguments were heard at the bar. Sh. R.K. Pandey, Ld. Prosecutor, had presented facts on behalf of the State. Sh. Anurag Dubey, Advocate, had advanced arguments on behalf of the defence.
3 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 :
7. Shanti is mother of the aforesaid two hapless girls. She narrates that her daughters made a complaint to her that accused persons used to tease and whistle on them. She took Asha and Rakhi to police station. Her husband had also accompanied them. She feigned ignorance as to whether their report was lodged by the police or not. She denied any knowledge that her daughters were taken to hospital for medical examination. Since Shanti opted not to support prosecution's case, she was crossexamined by the Ld. Prosecutor. During the course of her crossexamination, nothing incriminating was taken out of her mouth. Thus, from facts testified by Shanti, it emerged that Rakhi and Asha made complaint to their mother to the effect that they were being teased by the accused persons. It has not been testified by her that the girls made complaint to her that accused persons had sexually exploited them. Consequently, it is evident that testimony of Shanti nowhere provides accolades to the prosecution.
8. Om Prakash, father of the girls, has adopted same posture. He testified that his wife told him that accused Dalbir Singh and Sukhbir Singh used to tease his daughters. He accompanied his daughters to police station. Since Om Prakash had suppressed facts, he was also crossexamined by the ld. Prosecutor. Though efforts were made to take out truth from his mouth, yet it proved futile. Om Prakash insisted that his wife told that his girls were teased by the accused persons.
4 According to him, girls were not sent for medical examination nor their clothes were seized. These facts make it clear that for extraneous considerations, Om Prakash had given wings to truth and made it to fly away. His testimony is also of no avail to the prosecution.
9. Alka Azad, Inspector, conducted investigation of the case. She unfolds that on 05.11.06, she went to house of Om Prakash and prepared site plan at the instance of Rakhi. Clothes of Rakhi and Asha were seized by her, vide memos Ex.PW5/B and Ex.PW5/C respectively. Accused persons were arrested, vide memos Ex.PW5/D and Ex.PW5/E respectively. Exhibits were sent to CFSL Kolkata. She got bone age of victims ascertained. From facts testified by Alka Azad, Inspector, investigative steps have been brought over the record. No circumstances came over the record through her deposition, which may show nexus of the accused persons with the crime charged. Consequently, testimony of Inspector Alka Azad nowhere establishes charges against the accused persons.
10. Rakhi deposed that she works as a maid servant. Her sister Asha is younger to her, who is aged about 13 years. She was working in the house of one Ram Singh for last 34 days. Accused Sukhbir Singh and Dalbir Singh are relations of Ram Singh and known to her. They used to visit house of Ram Singh. One day at about 12 noon, she was present at her house. Her sister was also present there in the house. She denied that accused persons had sexually assaulted her or her sister. She unfolds that accused persons used to laugh and tease her, while whistling on her back. She felt annoyed and narrated those facts 5 before her mother. She was crossexamined by the Ld. Prosecutor, since she opted not to support prosecution's case. During the course of her crossexamination, she took stand that accused persons had not entered her house on 01.11.06 during noon hours. She denied that accused persons dragged Asha inside the house and bolted door from inside. She denied that Sukhbir Singh untied her salwar, while accused Dalbir Singh opened salwar of Asha. She denied that accused persons had sexually assaulted them. She denied that her sister narrated facts before her parents on 04.11.06. She denied that she was taken to LBS Hospital, Khichiripur, Delhi, for medical examination. She also denied that her clothes were taken into possession. Therefore, it emerged over the record that Rakhi had suppressed facts for extraneous considerations.
11. Question for consideration comes as to whether testimony of Rakhi stands effaced altogether or facts testified by her can be relied by the prosecution. It is settled proposition of law that cross examination of witnesses by the party who calls him, would not efface his testimony completely. It is open to the Court to consider the evidence and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused. Law to this effect was laid down by the Apex Court in Bhagwan Singh (AIR 1976 S.C. 202), Satpal (AIR 1976 S.C. 294) and Ravinder Kumar Dey (AIR 1977 S.C. 170). Testimony of a witness cannot stand effaced if he has been cross examined by the party calling him. Same proposition of law was laid by the Apex Court in Sayed Akbar (AIR 6 1979 S.C. 1848) which proposition was again reiterated by the Supreme Court in Khujji @ Surender Tiwari (1991 Cr.L.J. 2653). Also see Laxman Bhai (AIR 2000 S.C. 210) and Lella Srinivasa Rao (AIR 2004 S.C. 1720). Even otherwise subsection (2) of section 154 of the Evidence Act permits the Court to rely on evidence or part of evidence of such a witness. Hence, it is held that deposition of Rakhi cannot be discarded altogether and same can be used, if it finds corroboration from some other independent piece of evidence, whether direct or circumstantial.
12. As detailed above, Rakhi speaks that she was working in the house of Ram Singh for last three or four days, where accused persons were residing. She further deposed that accused persons used to laugh and tease her, while whistling on her back. She felt annoyed and narrated those facts before her mother. She had gone to police station to lodge a report. From these events, it is emerging over the record that Rakhi speaks that accused persons made remarks and gestures on her with intent to insult her modesty. Her testimony get supports from the fact that she went to police station and lodged a report. Alka Azad, Inspector, deposed that site plan was prepared at the instance of Rakhi. These facts further strengthen circumstances unfolded by Rakhi.
13. I am confronted with situation as to whether Rakhi is a reliable witness. As detailed above, Rakhi suppressed facts and testified that she was not sexually exploited by the accused persons. She further declined that her sister Asha was also sexually exploited by them. It is 7 a matter of common knowledge that on account of bashful nature, womenfolk details facts in brief. In detailing the incident of sexual assault, a lady has to brave whole world, being conscious of danger of being ostracized by the society or being looked down upon by her near and dear ones, including relatives, friends and neighbours. She is reminded that she would face risk of loosing love and respect of her parents and near relatives and there is chance of her matrimonial home and happiness being shattered. A lady feels extremely embarrassed in narrating the incident to others, overpowered by a feeling of shame on account of her upbringing in a tradition bound society where by and large sex is taboo. These circumstances and emotions overpowered Rakhi and she suppressed facts. Substratum of her story makes it clear that Rakhi concealed many events only with a view to keep her honour up. She was conscious of the fact that in case she admits the incident of sexual exploitation, she may not get a good match. With these ideas, she suppressed the incident and detailed facts to this effect that she was being teased by the accused persons, who used to laugh and whistle on her back. Taking into considerations all facts in entirety, I am of the view that these events are true, while many circumstances have been buried by Rakhi in her heart. Therefore, these facts are to be accepted, while adjudicating accountability of the accused persons. Even otherwise, accused persons had not assailed these facts by way of crossexamination of this witness.
14. Asha testified that accused Dalbir Singh and Sukhbir Singh used 8 to whistle and teased them. Neither she nor her sister detailed facts before her mother for three days. Thereafter, she unfolded facts before her mother. However, she testified that neither she nor her sister were sexually exploited by the accused persons. She was also crossexamined by the Ld. Prosecutor, but nothing incriminating, substantiating charge for offence of rape, could be brought over the record. As detailed above, Asha concealed facts due to fear of being looked down upon by her near and dear ones. Dreams of future life persuaded the girl not to unfold incident of sexual assault on her person, since such a girl is rarely accepted by the society. It emerges over the record that Asha suppressed facts only with a view to have a better future life. Consequently, facts unfolded by Asha cannot be discarded altogether, since she speaks that her modesty was insulted by the accused persons by gestures and spoken words. Her testimony also remained unassailed on that count. Therefore, it is crystal clear that these two girls could bring it over the record that accused persons had insulted their modesty by overtures and gestures. Ingredients for an offence punishable under section 509 of the Penal Code stands established over the record.
15. Accused persons were charged for offences punishable under sections 376, 452 and 342 of the Penal Code. No evidence came over the record to adjudicate accountability of the accused persons for said offences, since Asha and Rakhi had buried truth in their hearts. However, offence punishable under section 509 of the Penal Code stands established against the accused persons. An offender can be 9 punished for a lesser offence, without being charged for the same, when he faces trial for a graver offence. Therefore, I am of the considered view that accused persons can be held accountable for an offence punishable under section 509 of the Penal Code.
16. In view of the foregoing discussions, accused persons are acquitted of the charges for offences punishable under sections 376, 452 and 342 of the Penal Code. However, they are held guilty and convicted for an offence punishable under section 509 of the Penal Code.
Announced in the Open Court (Dr. R.K. Yadav) On this 1st day of May, 2007. Additional Sessions Judge :
Karkardooma Courts, Delhi. 10 IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :Sessions Case No. 02/07
State Vs. 1. Dalbir Singh S/o Shyam Lal Singh, R/o Village Tikampura, PS Mehrera, Distt. Etah, U.P.
2. Sukhbir Singh S/o Chhedi Lal, R/o Village Tikampura, PS Mehrera, Distt.
Etah, U.P. FIR No. 545/06 PS Mandawali U/S 509 IPC.
ORDER ON THE POINT OF SENTENCE : I have heard Sh. Anurag Dubey, Advocate, on the point of sentence. He submits that applicants are not previous convicts. According to him, an opportunity may be given to them to reform themselves. He claims leniency in the matter.
2. Applicants used to tease and whistle Rakhi and Asha with intent to insult their modesty. Offence committed by them is of alarming complexion. I do not find it to be a case for release of convict persons on probation. Considering facts and circumstances of the case and mitigating circumstances surrounding the convict persons, they are sentenced to undergo RI for six months for an offence punishable under section 509 of the Penal Code. Period undergone in detention during investigation and trial be set off. A copy of judgment and order on sentence be supplied to convict persons free of cost.
Announced in the Open Court (Dr. R.K. Yadav) On this 2nd day of May, 2007. Additional Sessions Judge:
Karkardooma Courts, Delhi