Delhi District Court
State vs . Sonu on 16 February, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 47/11
Unique Case ID No.: 02404R020832001
State Vs. Sonu
S/o Sh. Lalman
R/o N12C/146,
Jhuggi Kabir Nagar,
Delhi
(Convicted)
FIR No.: 116/11
Police Station: Bharat Nagar
Under Section: 376 (2) (f) Indian Penal Code
Date of committal to session Court: 12.8.2011
Date on which orders were reserved: 30.1.2012
Date on which judgment announced: 4.2.2012
JUDGMENT
As per the allegations, on 8.6.2011 between 8 PM and 8:30 PM at Gali Kabir Nagar Jhuggis within the jurisdiction of Police Station Bharat Nagar the accused Sonu committed rape upon the child prosecutrix 'B' (name of the child is withheld since it is a case under Section 376 (2) (f) IPC).
Case of the Prosecution in brief:
The case of the prosecution is that on 09.06.2011 on the receipt of DD No. 14A SI Sandeep Kumar along with Ct. Kailash reached at Hindu St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 1 of 38 Rao Hospital where the child prosecutrix 'B' was found admitted and her grand mother Smt. Munni Devi also met them. He collected the MLC of victim and also received the exhibits of victim handed over by doctor concerned. He recorded the statement of Smt. Munni Devi who informed him that on 8.4.2011, her daughter Soniya who used to reside in the same locality, left her daughter (i.e. prosecutrix 'B') aged six months, at her jhuggi as she had to go to the market to make some purchase of ice (Baraf). Smt. Munni Devi further told to the IO that at about 8 PM, the accused Sonu came to her jhuggi and asked her to give him the child stating that he would leave the child with her daughter Soniya at her jhuggi and having no suspicion on him as he was previously known to her, she handed over the child to the accused. After about 15 to 20 minutes the accused Sonu came back to her jhuggi and handed over the child 'B' to her saying that Soniya was not at her jhuggi. The complainant further told the police that the child was crying very loudly and accused simply put the child on her lap and went away, while she held the child on her shoulder near her chest. After about 1012 minutes, her daughter Soniya came and took the child back but immediately returned after about five minutes and asked her if the child had fallen down somewhere which she denied. Munni Devi further told to the police that Soniya asked her to remove the underwear of the child and when she removed the underwear of the child she saw that it was totally smeared with blood and it was then that she noticed that the child was bleeding from the vagina. On this, she immediately rushed to the jhuggi of accused and St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 2 of 38 found him out side of his jhuggi and she asked Sonu as to what had happened to the child on which he fell on her feet and sought forgiveness as he had committed a wrong. When the accused repeatedly asked Munni Devi for forgiveness, thinking that the child was a female and it would affect her future, she (complainant) did not raise any alarm and kept quite. Next day when they saw that the bleeding of the child had not stopping, they rushed the child to the Hospital in the afternoon and on the basis of the statement made by the complainant Smt. Munni Devi, a rukka was prepared and an FIR was got registered. During investigations, the accused was arrested and after completing the investigations, the charge sheet was filed in the court.
CHARGE:
Charges under Section 376 (2) (f) Indian Penal Code were settled against the accused Sonu to which he pleaded not guilty and claimed trial.
EVIDENCE:
In order to discharge the onus upon it, the prosecution has examined as many as ten witnesses.
Public Witnesses:
PW9 Smt. Munni Devi has deposed that she knew the accused Sonu as they are both residing in the same locality and her daughter Soniya is residing at Kabir Nagar. According to the witness, on 8.4.2011, her St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 3 of 38 daughter Soniya left her daughter 'B' (prosecutrix) aged six months at her (witness's) jhuggi as Soniya had gone to the market to make some purchase of ice (Baraf). The witness has deposed that at about 8 PM, the accused Sonu came to her jhuggi and asked her to give him the child stating that he would leave the child with her daughter Soniya at her jhuggi. According to the witness, having no suspicion on him as Sonu was previously known to her, she handed over the child to Sonu and after about 15 minutes, Sonu came back to her jhuggi and handed over the child 'B' to her. The witness has further deposed that the child was crying very loudly and Sonu simply put the child on her lap and went away after which she put the child on her shoulder near her chest. According to the witness, after about 1012 minutes her daughter Soniya came and took the child back but immediately returned after about five minutes and asked her if the child had fallen down somewhere which she denied ("usne mujhe poocha kya bachi kanhi gir gai thi, mai boli na"). On this Soniya asked her to remove the underwear of the child. When she (witness) removed the underwear of the child she saw that it was totally smeared with blood and it was then that she noticed and realized that the maxi which she was wearing was also smeared with blood at the place where she had held the child. The witness has deposed that she found that the child was bleeding from vagina. (pesab ke raste se khoon aa raha tha) and on this she immediately rushed to the jhuggi of Sonu and called him to her jhuggi. (maine Sonu ko apni jhuggi mie bulaya). She asked him what had happened to the child on which Sonu fell on her feet St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 4 of 38 and sought forgiveness as he had committed a wrong. (maine us sae poocha toh wo mere paron me gir gaya aur bola mujhse galti ho gai hai mujhe maaf kar do.) According to the witness, when Sonu repeatedly asked her for forgiveness, thinking that the child was a female and it would affect her future, she did not raised any alarm and kept quite. On the next day, when they saw that the bleeding of the child had not stopping, they rushed the child to Bara Hindu Rao Hospital in the afternoon. According to the witness, earlier she had no money for treatment of the child and when she went to the hospital and disclosed to the doctor what had happened, the doctor called the police and her statement was recorded by the police which is Ex.PW9/A bearing her thumb impression at point A wherein she had told the police whatever had transpired. The witness has deposed that on the same day in the evening the police came with her to her jhuggi and she took them to the jhuggi of Sonu and pointed him out to them after which he was arrested by the police vide memo Ex.PW6/C bearing her signatures at point C. The witness has deposed that accused was also personally searched in her presence by the police officers and in her presence the accused Sonu told the police that he had committed a mistake. Further, according to the witness on the same day the police took into possession her maxi and the underwear/ kacha of the child which they put into a white cloth and converted it into pullanda vide memo Ex.PW6/B and Ex.PW6/B1 both bearing her thumb impression at point C. St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 5 of 38 On leading questions by the Addl. PP with the permission of the Court the witness has deposed that it was summer season when the incident took place and whatever month is written in the FIR was correct th th though she is unable to tell whether it was 4 month or 6 month being totally illiterate but has clarified that the FIR was registered on the same month. It was observed by the Court that the FIR was registered in the month of June 2011 (8.6.20110).
In her cross examination by Ld. Defence Counsel, the witness has deposed that the first time she met the police was in the hospital and she remained in the hospital till evening i.e. 89 PM. She has admitted that in the vicinity of her jhuggi, there are large number of jhuggis which are spread over an area of half kilometer. She has deposed that police must had remained at her jhuggi for about three hours but she is unable to tell if the police had made any inquiries from the neighbourhood or recorded anybody's statement. According to her only the madam from police (i.e. lady police officer) had come to her two times after the said day and no other police officer approached her. She ahs also deposed that she is residing in this jhuggi at Kabir Nagar for four years and she knew the accused Sonu since then and before the incident she had good visiting terms with the family of accused Sonu and has voluntarily added that this is the reason she did not doubt him. She has denied that that Soniya resides along with her husband in the same area and has voluntarily added that she (Soniya) resides separately. She has further deposed that she is not aware if St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 6 of 38 the husband of Soniya was present at his jhuggi on the day of incident and has voluntarily added that Soniya simply rushed back after five minutes. According to the witness, there was no one else with Sonu when he came to her jhuggi and took the child and has voluntarily added that he was alone. The witness has further deposed that after she came back from the hospital along with the police officials, she remained at her jhugi and has voluntarily added that she accompanied the police to the jhuggi of Sonu and thereafter came back to her jhuggi and did not go anywhere else. She deposed that Sonu used to come to her jhuggi virtually everyday and has voluntarily added that he is residing in the same jhuggi cluster and was on good terms with them. Witness has deposed that she never seen Sonu visiting the jhuggi of her daughter Soniya or having meals at her jhuggi as there were no such terms with her husband. According to the witness, the police officers had read over the statement recorded by them in the hospital before she signed them. She also deposed that Sonu did not try to run away when the police went to his house and has voluntarily added that he rushed inside his jhuggi and had hidden himself at one corner when he was apprehended by the police. She admits that she did not take the child to any doctor nor she raised any alarm when she noticed the blood on the undergarments of the child and also on her maxi. She has denied the suggestion that the child had fallen down accidentally from the hands of her daughter on account of which the she had sustained injuries and has voluntarily added that the child had been violated by the accused Sonu (Sonu Nae Galat Kaam Kiya Tha). St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 7 of 38 She has denied that she has deposed falsely to implicate the accused Sonu at the instance of her counsel and has voluntarily added that she has deposed on the basis what had happened and nobody has tutored her. Witness has denied that she had any financial dealings with the accused Sonu and has voluntarily added that there were no financial dealings with accused. She has further denied that she asked the accused Sonu for Rs.5,000/ to purchase the TV and when he refused to give money, she got him implicated in this false case and has voluntarily added that she never asked anybody for loan. She has denied that Sonu never asked forgiveness and she has falsely implicated him in this case.
PW10 Smt. Soniya is the mother of the child victim who has deposed that she is totally illiterate and she can only put thumb impression. According to her, she is residing in the this Jhuggi along with her husband and two children and 'B' is her daughter who is now aged about more than 11 months and at the time of incident 'B' was aged around 6 months. The th witness has deposed that on 8 month she does not remember, this year (2011) about 45 months ago, she had gone to market to purchase ice (baraf) and she left her daughter 'B' with her mother Munni Devi who is also residing in the same jhuggi cluster. The witness has deposed that after 1015 minutes, she returned to the jhuggi of her mother and took her daughter 'B' who was crying very loudly and when she took her daughter to her jhuggi, she saw a very big blood clot on her underwear and she was bleeding profusely from her vagina. She immediately went back to the St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 8 of 38 jhuggi of her mother and asked her if the child had fallen down on which her mother told her that a boy by name of Sonu, who is residing in the same jhuggi cluster had taken the child with him. Thereafter, they went to the jhuggi of Sonu whom she saw outside his jhuggi. They asked Sonu if the child had fallen down on which he hesitantly said 'no' and thereafter, she returned to her jhuggi. According to the witness, she did not provide any treatment to her daughter in the night and on the next day when the condition of the child deteriorated, in the morning at about 10 AM, she took her daughter to the Bara Hindu Rao Hospital where initially they were not admitting her daughter. The witness has deposed that it was only after 4 PM when the local police came that her daughter was admitted in the hospital.
She has further deposed that thereafter her mother came came home while she remained in the hospital.
On leading questions the witness has admitted that the date of incident was 8.6.2011 and that she took the child to the hospital on next day.
In her cross examination by Ld. Defence Counsel, the witness has deposed that her husband was doing the work of polishing. She has denied the suggestion that Sonu was having good terms with her husband and used to frequently visit her jhuggi and has voluntarily added that he only used to come sometime to her jhuggi on a casual visit as her Mama'a daughter is married in his family. The witness has further added that they are not on visiting terms with accused Sonu. Witness admits that the entire incident has not taken place in her presence and she only noticed the injuries St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 9 of 38 on her child and saw that she was bleeding from her vagina. The witness has admitted that the accused Sonu was not interrogated in her presence. She has also admitted that the accused Sonu did not seek forgiveness from her mother in her presence nor he pleaded his guilt to her mother in her presence. She has denied that her mother had asked for Rs.5,000/ from Sonu and when he refused for the same, she implicated him in this false case. The witness has further denied that her daughter had slipped from her hand and sustained injuries. She has also denied that she has deposed falsely only to implicate the accused Sonu and extort money from him. Medical Evidence:
PW5 Dr. Neha, GDMO, Hindu Rao Hospital, has deposed that on 09.06.2011 the patient Baby 'B' D/o Arvind aged about 6 months female was examined by Dr. Shipra Singh vide MLC Ex.PW5/A who was working as EMO at Hindu Rao Hospital but has now left the services from the said hospital and her whereabouts were not known (the witness has deposed being conversant with the handwriting and signature of Dr. Shipra Singh having seen her while writing and signing in due course of his official duty). The witness has identified the signatures of Dr. Shipra at point A on the MLC. According to the witness, Dr. Shipra Singh referred the patient to LR and since she (witness) was working as Medical Officer (Gynae) therefore she examined the patient with alleged history of assault one day prior to 09.06.2011 with the prosecutrix aged about 6 months brought by her St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 10 of 38 mother. On examination, she found no signs of external injuries and on local examination no fresh bleeding was present, the fourchette was torn, vertical tear of .5cms in fourchetted, edges were raw but not bleeding.
According to the witness, the vaginal and rectal swabs were taken. Her findings on the aforesaid MLC is at point B and bearing his signatures at point C. In her cross examination by Ld. Defence Counsel, the witness has deposed that he did not know if the address of Dr. Shipra Singh was available in the hospital or not and has clarified that Dr. Shipra Singh was working on the ground floor whereas her (witness) office was situated on the third floor of the hospital. She has denied the suggestion she had never seen Dr. Shipra Singh while writing and signing in due course of her official duties or that Dr. Shipra Singh has not been produced intentionally to depose in this case. Witness has admitted that there were no blood stains on the clothes of the prosecutrix when she examined her. She has admitted that such like injuries were possible due to fall. On a court question as to what was the basis or substance on which it could be concluded that the injuries were possible on account of fall, the witness has explained that this was (i.e. fall) was less lightly and it is only her guess work. On further question whether any specific substance or circumstance brought to her knowledge on the basis of which she has inferred that the injuries were possible due to fall, she denied the same. On further court question, as to what was the history as informed to her, the witness has stated that the St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 11 of 38 history was that the child had been taken by some relative Sonu and assaulted when returned after one hour.
Police / Official Witnesses:
PW1 HC Suraj Bhan has been examined way of affidavit which is Ex.PW1/1. He was working as duty officer and on receipt of the rukka brought by Ct. Kailash he recorded the FIR in the present case copy of which is Ex.PW1/A. He has proved the endorsement made by him on rukka which is Ex.PW1/B bearing his signature at point A. In his cross examination by Ld. Defence Counsel, the witness has deposed that Ct. Kailash brought the rukka at about 5:05 PM and he took about 2025 minutes in reducing the FIR into writing through a lady constable who typed the FIR on computer. He admits that he did not sign the FIR as he forgotten. He has denied the suggestion that since the FIR does not bear his signatures and therefore he has no role in getting the FIR recorded. He has denied that he did not ask Ct. Kailash to take SI Urmila Sharma to the spot.
PW2 HC Sanjay Kumar has been examined by way of affidavit which is Ex.PW2/1. He was working as MHC (M) and has proved the relevant entires made by him in register no. 19 and 21. He has relied upon the documents i.e. entry in register no. 19 vide No. 284/11 copy of which is Ex.PW2/A, RC No. 33/21/11 in register no.21 copy of which is Ex.PW2/B bearing his signature at point A and receipt of FSL copy of St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 12 of 38 which is Ex.PW2/C. In his cross examination by Ld. Defence Counsel, the witness has denied that he had reduced the contents of the seizure memo in the relevant column of register No. 19. He has admitted that he did not take signatures of SHO in the relevant entry, however the same was got checked by SHO. Witness has denied that he did not take the case property of this case or that the aforesaid entries with regard to depositing of the case property was manipulated later on.
PW3 Ct. Om Pal has been examined by way of affidavit which is Ex.PW3/1 bearing his signatures at points A and B. He had taken the exhibits of this case from MHC(M) to the FSL. In his cross examination by Ld. Defence Counsel, the witness has deposed that he does not remember the time when he took the exhibits from MHC(M) and has voluntarily added that it was morning hours. According to him, he left for FSL on his personal motorcycle and departure entry to this effect was made in the rojnamcha. He does not remember the exact time when he got the exhibits deposited in the FSL but it was between 12PM and 1 PM. The witness does not remember the name of the concerned clerk to whom he handed over the exhibits. He handed over the receipt of FSL to MHC(M) at about 3 PM. He has denied the suggestion he did not go to the FSL along with the exhibits and not deposited the same there or that he had tampered the seal and the case property during the period the exhibits remained in his possession. St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 13 of 38 PW4 W/ASI Sushila has also been examined by way of affidavit which is Ex.PW4/1. According to her, on 09.06.2011 he was working as as DD writer and had recorded the DD No. 14A copy of which is Ex.PW4/A. She has not been cross examined on behalf of the accused despite opportunity.
PW6 Ct. Kailash has deposed that on 09.06.2011, he was posted at Police Station Bharat Nagar and on that day SI Sandeep Kumar received DD No. 14A and on the receipt of said DD, he along with SI Sandeep Kumar reached at Hindu Rao Hospital where victim 'B' was found admitted. According to him, IO / SI Sandeep Kumar collected the MLC of victim 'B' and the doctor concerned also handed over one box to him containing exhibits of the prosecutrix 'B' which were duly sealed with the seal of HRH along with the sample seal with the same seal and taken into possession vide seizure memo Ex.PW6/A bearing signatures of this witness at point A. The witness has deposed that SI Sandeep Kumar recorded the statement of Smt. Munni Devi and prepared a rukka which rukka he handed over to him (witness) for registration of the FIR. According to the witness, he was directed by the duty officer to take SI Urmila Sharma to the spot as further investigations of this case were handed over to her. He along with SI Urmila Sharma reached the spot and handed over the copy of FIR and original rukka to SI Urmila Sharma who met SI Sandeep and collected the MLC, the documents prepared by him and the case property from him. The witness has deposed that thereafter SI Urmila Sharma recorded the St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 14 of 38 statement of SI Sandeep, Smt. Sonia, mother of the prosecutrix and thereafter he along with SI Urmila Sharma and grand mother (nani) of the prosecutrix reached at Jhuggi Kabir Nagar where SI Urmila Sharma prepared the site plan. According to the witness, Smt. Muni Devi had produced one blood stained kachhi (undergarments) and one maxi which were also having blood stains and the IO SI Urmila Sharma converted the same into parcel and sealed the same with the seal of US and took it into possession vide seizure memo Ex.PW6/B and Ex.PW6/B1. The witness has further deposed that thereafter he along with SI Urmila Sharma and Smt. Muni Devi left for the search of the accused and reached at his jhuggi situated at Kabir Nagar. He deposed that the gate was opened by mother of the accused Sonu on which Smt. Munni Devi, nani of the prosecutrix pointed out towards the accused Sonu as the same person who took her grand daughter/ prosecutrix from her and committed the rape. According to the witness, he was interrogated and arrested in this case vide memo Ex.PW6/C and his personal search was also conducted vide memo Ex.PW6/D and his disclosure statement was also recorded vide Ex.PW6/E. The witness has deposed that the accused Sonu took the police party to the place of incident and the IO prepared the memo to this effect which is Ex.PW6/F. Thereafter the accused was taken to BJRM hospital where his medical examination was got done vide MLC Ex.PW6/G and the doctor concerned handed over the exhibits of the accused in the sealed parcel along with the sample seal duly sealed with the seal of MS BJRM hospital and IO St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 15 of 38 SI Urmila Sharma took the same into possession vide seizure memo Ex.PW6/H. The witness has identified in the court the accused as well as the case property i.e. printed maxi as same as produced by Smt. Munni Devi which is Ex.P1; brown color kachhi as the same as produced by Smt. Munni Devi which is Ex.P2.
In his cross examination by Ld. Defence Counsel, the witness has deposed that he had left the police station along with SI Sandeep Kumar at about 2:35PM2:40 PM but he had not made any separate departure entry before leaving the police station and he reached at the police station within half an hour. He deposed that when they reached the hospital he found Munni Devi, Sonia and the prosecutrix in the hospital. He admits that he has not stated in his statement to the IO that SI Urmila Sharma had accompanied him to the hospital. According to him he went to the hospital along with original rukka and copy of the FIR in TSR and reached the police station along with rukka at about 5 PM and reached at the hospital along with original rukka and copy of FIR at about 66:30 PM. His statement was recorded by SI Urmila Sharma in the police station on the same day. Witness has denied the suggestion that he had not joined the investigations along with IO and is deposing falsely at the instance of IO only to connect the accused with the present case.
PW7 SI Sandeep Kumar has deposed that on 09.06.2011, he was posted at Police Station Bharat Nagar and on that day he received DD No. 14A and on the receipt of said DD, he along with Ct. Kailash reached at St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 16 of 38 Hindu Rao Hospital where victim 'B' was found admitted and her grand mother Smt. Munni Devi also met them and collected the MLC of victim 'B'. According to the witness, the doctor concerned handed over one box to him which was containing exhibits of the prosecutrix 'B' which he sealed, seized and took into possession vide memo Ex.PW6/A. He thereafter recorded the statement of Smt. Munni Devi vide Ex.PW7/A bearing thumb impressions of Smt. Munni Devi at point A attested by him (witness) and bearing his signatures at point B. Thereafter he prepared rukka Ex.PW7/B bearing his signatures at point A and got the FIR registered through Ct. Kailash took the same to the police station and got the case registered and Ct. Kailash and SI Urmila Sharma reached the spot along with copy of FIR and original rukka and further investigations was handed over to SI Urmila Sharma.
In his cross examination by Ld. Defence Counsel, the witness has deposed that he received the DD No. 14 A at about 2:30 PM, but he did not make separate entry regarding his departure and departure of Ct. Kailash from the police station. He did not move any application for obtaining the exhibits of the prosecutrix before the doctor. He prepared the seizure memo of exhibits vide Ex.PW6/A in the hospital itself. He does do not remember if any other relative of Smt. Munni Devi came to the hospital or not. According to him he remained in the hospital till 7 PM and Ct. Kailash brought the rukka and the copy of FIR in the hospital at about 6:30 PM. He has denied that he did not conduct the investigations properly. He St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 17 of 38 has further denied that Munni Devi has not given any statement to him.
PW8 SI Urmila Sharma has deposed that on 09.06.2011, she was posted in Sub Division Ashok Vihar and on that day Ct. Kailash met her at the gate of the police station as she was asked by the SHO to conduct the investigations of the present case. She received the copy of FIR and original rukka from Ct. Kailash at the gate of the police station and thereafter she along with Ct. Kailash reached at HRH hospital where they met SI Sandeep. She collected the MLC, the documents prepared by SI Sandeep Kumar and the case property and recorded the statement of SI Sandeep, Smt. Sonia, mother of the prosecutrix and thereafter she along with Ct. Kailash and Smt. Munni Devi, grand mother (nani) of the prosecutrix reached at Jhuggi Kabir Nagar where she prepared the site plan at the instance of Smt. Munni Devi vide Ex.PW8/A. According to the witness, Smt. Muni Devi had produced one blood stained "kachhi" (undergarments) and one maxi of Smt. Munni Devi which was also having blood stains before her which she converted into parcel and sealed the same with the seal of US and took into possession vide seizure memo Ex.PW6/B and Ex.PW6/B1. She also prepared the site plan at the place of incident at the instance of the accused vide Ex.PW8/B. The witness has further deposed that thereafter she along with Ct. Kailash and Smt. Muni Devi left for the search of the accused and reached at his jhuggi situated at Kabir Nagar. She has deposed that the gate was opened by mother of the accused Sonu. Smt. Munni Devi, nani of the prosecutrix pointed out St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 18 of 38 towards the accused Sonu as the same person who took her grand daughter/ victim from her and committed the rape. Thereafter the accused was interrogated and arrested in this case vide memo Ex.PW6/C and personally searched vide memo Ex.PW6/D and his disclosure statement was recorded vide Ex.PW6/E. According to the witness the accused Sonu took them to the place of incident and she prepared the memo to this effect which is Ex.PW6/F after which he was taken to BJRM hospital where his medical examination was got done vide MLC Ex.PW6/G where the doctor concerned handed over the exhibits of the accused in the sealed parcel along with the sample seal duly sealed with the seal of MS BJRM hospital which she took into possession vide seizure memo Ex.PW6/H. According to the witness, on 15.06.2011 she send the exhibits of this case to FSL Rohini through Ct. Om Pal vide RC No. 33/21/11. She thereafter recorded the statements of the witnesses and prepared the charge sheet. The witness has identified the accused Sonu in the court as well as the case property i.e. printed maxi as same as produced by Smt. Munni Devi which is Ex.P1; brown color kachhi as the same as produced by Smt. Munni Devi which is Ex.P2.
In her cross examination by Ld. Defence Counsel, the witness has deposed that she left the police station at about 66:30 PM and remained in the hospital for about 1 ½2 hours. She has deposed that she recorded the statements of SI Sandeep and Smt. Sonia in the hospital and that except St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 19 of 38 Munni Devi and Sonia nobody was present there at the hospital. According to the witness, she along with Munni Devi and Ct. Kailash went to the jhuggi of Munni Devi but she did not record the statement of the neighbours of Munni Devi. She admits that the place of incident is surrounded by many jhuggies and people are living in the jhuggies. She deposed that the distance between the jhuggi of Munni Devi and Sonia is about 4050 sq. yards and the distance of jhuggi of Sonu is about 200 sq. yards. She had recorded the statement of Sonia in the hospital. She admits that the place of occurrence is surrounded by many jhuggies and people are residing there. She did not record the statement of husband of Sonia. She admits that there are jhuggies around the jhuggi of accused Sonu. Witness has denied that the photocopy of birth certificate of accused has not been supplied by the father of the accused. She has further denied that the accused was minor at the time of incident. According to the witness, Ct. Kailash handed over the seal to her on the next day when the case property was deposited in the malkhana. She has denied the suggestion that the accused has not given any disclosure to her or that she has not properly investigated the matter or that she has falsely implicated the accused in the present case at the instance of Munni Devi and Sonia. The witness has further denied that Munni Devi had demanded rupees five thousand from the accused Sonu and when Sonu has refused to give the money then Munni Devi and Sonia has made this false case against the accused Sonu on the next day.
St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 20 of 38 Statement of Accused and Defence Evidence:
After completing the prosecution evidence, statement of accused was recorded under Section 313 Code of Criminal Procedure wherein all the incriminating material was put to the accused which he has denied. According to him he is innocent and has been falsely implicated and has done nothing wrong to the child. He has stated that he is aged about 17 years and his date of birth is 17.2.1994 and had shown his date of birth certificate issued by the MCD to the police but they have not placed the same on record. The accused has further stated that he had not made any extra judicial confession (i.e. Hath jor kar mujhse maafi magne laga aur kahne laga ki mujhse galti ho gai jo maine chhoti bacchi ke sath galat kam kiya) before the mother and Nani of the child prosecutrix or to the police.
He has denied having made any disclosure statement. FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the memorandum of arguments filed on behalf of the accused and the evidence adduced by the prosecution. My findings are as under:
Identity of the accused:
In so far as the identity of the accused is concerned, the same is not disputed. He has been specifically named in the FIR since he was known to the family of the victim prior to the incident. Even otherwise he has been specifically identified in the court by the mother Soniya (PW10) St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 21 of 38 and maternal grandmother of the victim Smt. Munni Devi (PW9) as the person who had taken the child with him. In fact Smt. Soniya (PW10) has identified the accused Sonu who is residing in the same Jhuggi Cluster and had taken the child with him. I may further observe that the name of the accused has also been mentioned in the MLC in the history noted by the doctor as the known person who had taken the child (prosecutrix) and thereafter returned the baby to her parents after one hour. Therefore, under these circumstances, I hereby hold that the identity of the accused stands established.
Age of the child:
The case of the prosecution is that the victim was aged about Six Months at the time of incident, a fact which stands established from the MLC of the child and has not been disputed by the accused. Delay in registration of FIR:
It is evident from the record that the present FIR has not been registered on any private complaint but on the information given to the police from the hospital when the child/ infant aged about six months had been brought to them for treatment on 9.6.2011 at 1:30 PM her condition had deteriorated.
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 St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 22 of 38 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 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....."
Applying the settled principles of law to the facts of the present case, Firstly it is evident that family of the child/ infant is totally illiterate living in a slums cluster. Secondly admittedly the accused is residing in the neighbourhood of the nani/ maternal grand mother of the victim and was St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 23 of 38 previously known to the family of the victim due to which reason the child was handed over to him without Smt. Munni Devi having suspicion on him. Thirdly when the child had been returned to them initially the mother and maternal grandmother of the child did not realize what had happened and it was only when Smt. Soniya (PW10) changed the undergarments of the child that she realized that it was smeared with blood and the child was bleeding from her private parts and even the maxi which Smt. Munni Devi (PW9) was wearing had been smeared with blood at the place where she had hold the child and found that the child was bleeding from the vagina (Peshab ke raste se khoon aa raha tha) on which they went to the accused Sonu and confronted him on which he fell on her feet and sought forgiveness. Lastly Smt. Munni Devi has explained that when Sonu repeatedly asked her to forgive him, she thinking that the child is a female and would affect her future, she did not raise an alarm but on the next day when they saw that the bleeding of the child had not stopped, they rushed the child to Bara Hindu Rao Hospital in the afternoon. She has also explained that earlier she had no money for treatment of the child and it was when she went to the hospital and disclosed to the doctor what had happened, when the doctor called the police and his statement was recorded by the police which is Ex.PW9/A. It is the harsh reality in the society that sexual offences particularly relating to infant and child are normally suppressed by the family thinking that it would adversely affect the future of the child as has happened in the present case. The explanation offered is natural and St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 24 of 38 probable and under no circumstances delay if any can be read in favour of the accused since it has been validly explained. This FIR has been registered on the information given by the doctor and not because of any complaint on behalf of the family of the infant. I may observe that both Munni Devi and Soniya are totally illiterate and belong to extremely poor family due to which reason it was not possible to secure immediate medical relief for the infant and she was rushed to the hospital late next day. Medical Evidence:
Dr. Neha (PW5) has proved the MLC of the child/ infant which MLC is Ex.PW5/A and had been prepared by Shipra Singh whose signatures she had identified being her associate. She has proved that on 9.6.2011 she was working as Gynecologist at Hindu Rao Hospital when the victim 'B' aged about six months had been brought to the hospital with alleged history of sexual assault and there was no bleeding on local examination. She has proved that fourchette was torn; vertical tear of .5 cm in fourchette; edges were raw but not bleeding. In her cross examination she has admitted the suggestion that the injury as aforesaid was possible due to fall but on a specific query she has explained that the chances form the same were less likely and it was only her guess work.
Further, a categorical question was put to her whether any specific substance or circumstance brought to her knowledge on the basis of which she had inferred that the injuries were possible to fall, she clarified that no St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 25 of 38 such circumstance were brought to her knowledge. She has also explained that the first history given to her was that the child was taken by one relative Sonu and assaulted when returned after one hour. It is writ large from the above medical record that the hymen of the child/ infant was perforated and there were bruises over genitalia thereby establishing the aggravated sexual assault/ rape upon the child.
Forensic Evidence:
It is evident from the record that on the date of incident the child was not medically examined and it was only on the next date when her bleeding did not stop and her condition deteriorated that she was taken to Hindu Rao Hospital where she was medically examined and samples were taken. The samples taken by the doctors at the hospital and the underwear of the accused were sent to FSL. The FSL report Ex.PX1 which is admitted by the accused and even otherwise admitted in evidence under Section 293 Cr.P.C. shows that blood of human origin of 'O' Group was detected on the underwear of the child.
Allegations against the accused:
As per allegations the accused Sonu was residing in the same Jhuggi cluster where the maternal grandmother of the victim is residing and on the date of incident i.e. 8.6.2011 the infant/ child 'B' had been left by her mother Soniya (PW10) at the house of her grandmother Smt. Munni Devi (PW9) and she herself went to the market when at about 8:00 PM the St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 26 of 38 accused Sonu came to her house and asked him to give him child on the pretext that he would leave the child with her daughter Soniya at her Jhuggi.
The accused being known to Munni Devi an aged lady of 60 years, she did not suspect him or his intentions and handed over the child to him. However, after about 15 minutes the accused came back to the Jhuggi and handed back the child to her who was crying loudly at that time by simply putting the child on the lap of Smt. Munni who put the child on her shoulder near her chest. Thereafter Smt. Soniya came and took the child but soon returned after about five minutes and inquired Smt. Munni if the child had fallen down somewhere which Smt. Munni denied and thereafter when they removed the underwear of the child they noticed that it was totally smeared with blood and the child was bleeding from her vagina. On this Smt. Munni Devi immediately rushed to the jhuggi of accused Sonu and confronted him with what had happened to the child on which Sonu fell on her feet and sought forgiveness as he had committed a wrong with the child. Therefore, thinking that since the child was a female and such an incident would affect her future, they did not raise an alarm and kept quite. However, next day when the bleeding of the child had not stopped the child and her condition deteriorated she was taken to Hindu Rao Hospital which was in the late afternoon because earlier they had no money for treatment of the child. Smt. Munni Devi (PW9) has proved that she disclosed to the doctor what had happened to the child on which the doctor immediately called the police and it was then that she disclosed the details about the incident to the police. St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 27 of 38 The relevant portion of the testimony of Smt. Munni Devi (PW9) is as under:
".......The accused Sonu present in the court (correctly identified by the witness) is also residing in the same area. My daughter Soniya who is also residing at Kabir Nagar. On 8.4.2011, my daughter Soniya left her daughter 'B' aged six months at my jhuggi as she had gone to the market to make some purchase of ice (Baraf). At about 8 PM, the accused Sonu came to my jhuggi and asked me to give him the child stating that he would leave the child with my daughter Soniya at her jhuggi. Having no suspicion on him, as Sonu was previously known to me I handed over the child to Sonu. After about 15 minutes, Sonu came back to my jhuggi and handed over the child 'B' to me. The child was crying very loudly and Sonu simply put the child in my lap and went away. I put the child on my shoulder near my chest. After about 1012 minutes, my daughter Soniya came and took the child back but immediately returned after about five minutes and asked me if the child had fallen down somewhere on which I told her no. ("usne mujhe poocha kya bachi kanhi gir gai thi, mai boli na") Soniya told me to remove the underwear of the child and when I removed the underwear of the child I saw that it was totally smeared with blood and it was then that I noticed and realized that the maxi which I was wearing was also smeared with blood at the place where I had hold the child. I found that the child was bleeding from vagina (pesab ke raste se khoon aa raha tha). On this, I immediately rushed to the jhuggi of Sonu and called him to my jhuggi. (maine Sonu ko apni jhuggi maie St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 28 of 38 bulaya). I asked him what had happened to the child on which Sonu fell on my feet and sought forgiveness as he had committed a wrong. (maine us se poocha toh wo mere paron me gir gaya aur bola mujhse galti ho gai hai mujhe maaf kar do.) When Sonu repeatedly asked me for forgiveness, thinking that the child was a female and it would affect her future, I did not raised any alarm and kept quite.
On the next day, when we saw that the bleeding of the child had not stopping, then we rushed the child to Bara Hindu Rao Hospital in the afternoon. Earlier I had no money for treatment of the child.
When I went to the hospital and disclosed to the doctor what had happened, the doctor called the police and my statement was recorded by the police which is Ex.PW9/A bearing my thumb impression at point A, wherein I had told the police whatever had transpired. On the same day in the evening the police came with me to my jhuggi and I took them to the jhuggi of Sonu and pointed him out to them after which he was arrested by the police vide memo already Ex.PW6/C bearing my signatures at point C....."
Smt. Munni Devi (PW9) an aged lady and totally illiterate, has been crossexamined at length and in her crossexamination she had reaffirmed that her daughter (mother of the child/ victim) within five minutes of taking the child as asked her what had happened the child. She has admitted that Sonu was residing in the vicinity and was on visiting terms with her and had good terms with her but at the same time she had never seen him visiting the jhuggi of her daughter Soniya. She has admitted St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 29 of 38 that the accused had not tried to run away when the police came to his house and states that he had hidden himself in one corner when he was apprehended.
Smt. Soniya the mother of the child victim who has been examined as PW10 has corroborated the testimony of Munni Devi (PW9) to the extent that she left her daughter with her mother Munni Devi and when she returned she noticed that she was bleeding from her private parts. The relevant portion of her testimony is as under:
".......On 8th month I do not remember, this year, it is about 45 months ago, I had gone to market to purchase ice (baraf) and I left my daughter 'B' with my mother Munni Devi who is also residing in the same jhuggi cluster. After 1015 minutes I returned to the jhuggi of my mother and took my daughter 'B' who was crying very loudly. When I took my daughter to my jhuggi, I saw a very big blood clot on her underwear and she was bleeding profusely from her vagina. I immediately went back to the jhuggi of my mother and asked her if the child had fallen down on which my mother told me that a boy by name of Sonu, present in the court today (correctly identified by the witness) who is residing in the same jhuggi cluster had taken the child with him. Thereafter, we went to the jhuggi of Sonu whom I saw outside his jhuggi. We asked Sonu if the child had fallen down on which he hesitantly said 'no'. Thereafter, I returned to my jhuggi. I did not provide any treatment to my daughter in the night. On the next day when the condition of the child deteriorated, in the morning at about 10 AM, I took my daughter to the Bara Hindu Rao St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 30 of 38 Hospital where initially they were not admitting my daughter. It was only after 4 PM when the local police came that my daughter was admitted in the hospital. Thereafter my mother came came home while I remained in the hospital....."
In her crossexamination Smt. Soniya has admitted that Sonu has good terms with her husband and often used to come on a casual visit since her Mama's daughter is married in his family. According to her, the entire incident had not taken place in her presence and she only noticed the injuries on her child and saw that she was bleeding from her vagina. The witness has denied the suggestion that Smt. Munni had asked Rs.5,000/ from the accused Sonu and when he refused for the same, she implicated him in this false case.
The 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the victim were last seen together and the time the victim is found with injuries is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).
Applying the settled principles of law to the facts of the present case, Firstly it stands established that the infant/ child 'B' had been left by St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 31 of 38 Smt. Soniya at the house of her mother Munni Devi while she was going to the market. Secondly it stands established that accused Sonu a resident of the area is on visiting terms with Smt. Munni Devi (aged 60 years) and well known to her. Thirdly it stands established that on 8.6.2011 accused Sonu had come to the Jhuggi of Smt. Munni and took the child with him on the pretext that he would leave the child at the house of Smt. Soniya. Fourthly it stands established that after about fifteen minutes the accused came back to the house and hurriedly left the child with Smt. Munni Devi (PW9) and at that time the child was crying loudly. Fifthly it is also established that Smt. Munni Devi (PW9) not being suspicious put the infant on her shoulder and held her to her chest after which the child stopped crying after sometime. Smt. Soniya (PW10) came to the house of Munni Devi after sometime and took the child. Sixthly it also stands established that Soniya immediately returned back within five minutes and asked her mother Smt. Munni Devi if the child had fallen down which Munni Devi denied and it was only thereafter that Munni Devi realized that the child was bleeding from her private parts (pesab ke raste se khoon aa raha tha) and even the maxi which she was wearing had got smeared with blood from the place where she had held the child. Seventhly it also stands established that immediately thereafter Smt. Munni Devi went to the jhuggi of Sonu and confronted him with what had happened to the child and they observed that the accused Sonu was perplexed and he admitted having committed a wrong act with the St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 32 of 38 child and sought forgiveness by falling at her feet. Eighthly it also stands established that in order to protect the honour of the child and exposing her, thinking she was a female child, Munni Devi did not raise any alarm and brought the child back. Lastly it stands established that next day when the bleeding of the child did not stop and her condition deteriorated she was taken to Hindu Rao Hospital when Munni Devi disclosed the doctor as to what had happened and it was on the information given by the doctors that the present case had been registered.
It is vehemently argued by the Ld. Defence Counsel that keeping in view the material contradictions in the testimonies of the material witnesses and other material on record, it does not stand established beyond doubt that the offence of rape has been committed. He has in this regard placed his reliance on the authorities of Daya Shanker Vs. State of Delhi reported in 2011 (2) JCC 1249 and Lala Ram @ Lal Vs. The State (NCT) reported in 1999 (2) JCC (Delhi) 594. In this regard, I may observe that there are no chances of false implication of the accused in view of the time period involved as the accused Sonu had returned with the child and handed over the child to Smt. Munni Devi within a gap of fifteen minutes and there are no chances of any other person being the author of crime. The infant aged six months was with the accused during this period and it is writ large from the testimony of Munni Devi that it was the accused who took the child and left her back when after about five to seven minutes they noticed her bleeding and child was crying loudly. Had it been the St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 33 of 38 intent of the family of the child/ infant to falsely implicate the accused, they would have done so at the first instance which they did not do. They were not the one's who raised the issue of assault on the child by the accused with the police. Rather, it was the hospital authorities who on seeing the nature of injuries had come to know that an offence had been committed in view of which they informed the police and Munni Devi disclosed the name of the accused at the first instance. The question of false implication of the accused by the family of child/ infant under these circumstances, does not arise. The background of the family of the victim is that they are totally illiterate living in slums. The maternal grandmother being about 60 years of age, is extremely poor so much so that they had no money to secure the medical treatment for the child. These are all relevant factors which explain not only the delay in registration of case but also rule out of false implication of the accused and leading credibility to the story put forward by Munni Devi.
Further, the accused Sonu has not been able to explain what happened to the child at that time when the infant was in his custody and when the testimony of Smt. Munni Devi (PW9) was specifically put to him during the recording of his statement under Section 313 Cr.P.C. he simply denied the same as being incorrect and has stated that he has been falsely implicated. The time gap between the point of time when the accused Sonu took the child with him and the child found bleeding from her private parts, is so small that possibility of any person other than the accused being the St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 34 of 38 author of the crime becomes impossible.
In view of the above I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Sonu of having committed rape upon the prosecutrix 'B' aged 6 months. Defence of the accused:
In his statement under Section 313 Cr.P.C. the accused Sonu for the first time has raised a defence that he is a minor aged about 17 years and his date of birth is 17.2.1994 and that he had shown his date of birth certificate issued by the MCD to the police but the police has not placed the same on record. Despite having made such a statement the accused has failed to lead any evidence in his defence nor has he placed on record his date of birth certificate showing his date of birth as 17.2.1994. Even otherwise, this Court has observed that from the physical appearance of the accused he does not appear to be a minor and is certainly above 18 years of age. In the absence of any evidence I hereby hold that this plea as raised by the accused being an after thought, is hereby rejected. FINAL CONCLUSION:
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 prerequisites before conviction should be recorded, which are as under:
St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 35 of 38
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
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 identity of the accused Sonu is a resident of the same Jhuggi cluster where the grandmother of the prosecutrix is residing. It stands established that the infant/ child 'B' had been left by Smt. Soniya at the house of her mother Munni Devi while she was going to the market. It also stands established that accused Sonu a resident of the area is on visiting terms with Smt. Munni Devi (aged 60 years) and well known to her. It further stands established that on 8.6.2011 accused Sonu had come to the Jhuggi of Smt. Munni and took the child with him on the pretext that he would leave the child at the house of Smt. Soniya. It further stands established that after about fifteen minutes the accused came back to the St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 36 of 38 house and hurriedly left the child with Smt. Munni Devi and at that time the child was crying loudly. It also stands established that Smt. Munni Devi not being suspicious put the infant on her shoulder and held her to her chest after which the child stopped crying after sometime. Smt. Soniya came to the house of Munni Devi after sometime and took the child. It also stands established that Soniya immediately returned back within five minutes and asked her mother Smt. Munni Devi if the child had fallen down which Munni Devi denied and it was only thereafter that Munni Devi realized that the child was bleeding from her private parts (pesab ke raste se khoon aa raha tha) and even the maxi which she was wearing had got smeared with blood from the place where she had held the child. It further stands established that immediately thereafter Smt. Munni Devi went to the jhuggi of Sonu and confronted him with what had happened to the child and they observed that the accused Sonu was perplexed and he admitted having committed a wrong act with the child and sought forgiveness by falling at her feet. It also stands established that in order to protect the honour of the child and exposing her, thinking she was a female child, Munni Devi did not raise any alarm and brought the child back and on the next day when the bleeding of the child did not stop and her condition deteriorated she was taken to Hindu Rao Hospital when Munni Devi disclosed the doctor as to what had happened and it was on the information given by the doctors that the present case had been registered. The medical evidence on record proved that the hymen of the child/ infant was perforated and there were St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 37 of 38 bruises over genitalia thereby establishing the rape upon the child.
The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLC, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. 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 and the witness of the prosecution have been able to built up a continuous link.
In view of my aforesaid discussion, I hereby hold that the prosecution has been able to prove and substantiate the charge against the accused Sonu of having committed rape upon the prosecutrix 'B' aged six months for which he is hereby held guilty of the offence under Section 376 (2) (f) Indian Penal Code and convict him accordingly.
Case be listed for arguments on sentence on 10.2.2012.
Announced in the open court (Dr. KAMINI LAU) Dated: 4.2.2012 ASJII(NW)/ ROHINI St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 38 of 38
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 47/11 Unique Case ID No.: 02404R020832001 State Vs. Sonu S/o Sh. Lalman R/o N12C/146, Jhuggi Kabir Nagar, Delhi (Convicted) FIR No.: 116/11 Police Station: Bharat Nagar Under Section: 376 (2) (f) Indian Penal Code Date of conviction: 4.2.2012 Arguments heard on: 10.2.2012 Date of sentence: 16.2.2012 APPEARANCE:
Present: Ms. Raj Rani, Substitute Addl. Public Prosecutor for the State.
Convict Sonu in judicial custody with Sh. I.S. Barnala Advocate.
ORDER ON SENTENCE:
Child sexual abuse are dark realities in Indian society like in any other nation. 53 per cent of our children are sexually abused, according St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 39 of 38 to a statistic from a survey done by the Government of India. A 1985 study by the Tata Institute of Social Sciences reveals that one out of three girls and one out of 10 boys had been sexually abused as a child. 50% of child sexual abuse happens at home. In 1996, Samvada, a Bangalore based NGO, conducted a study among 348 girls. 15% were used for masturbation mostly by male relatives when they were less than 10 years old. 75% of the abusers were adult family members. A report from RAHI, (Recovering and Healing from Incest), a Delhi based NGO working with child sexual abuse titled Voices from the Silent Zone suggests that nearly threequarters of upper and middle class Indian girls are abused by a family member - often by an uncle, a cousin or an elder brother.
The prosecutrix 'B' in the present case is aged about six months was raped by the accused Sonu who was residing in the same Jhuggi Cluster where the maternal grandmother (nani) of the prosecutrix namely Smt. Munni Devi was residing. On 8.6.2011 the infant/ child 'B' had been left by her mother Smt. Soniya at the house of her mother Munni Devi while she was going to the market. The accused Sonu a resident of the same area is on visiting terms with Smt. Munni Devi (aged 60 years) and well known to her. Accused Sonu had come to the Jhuggi of Smt. Munni and took the child with him on the pretext that he would leave the child at the house of Smt. Soniya. After about fifteen minutes the accused came back to the house and hurriedly left the child with Smt. Munni Devi and at that time the child was crying loudly. Smt. Munni Devi not being suspicious put the St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 40 of 38 infant on her shoulder and held the child to her chest after which the child stopped crying. Smt. Soniya came to the house of Munni Devi after sometime and took the child and immediately within five minutes Soniya returned back and asked her mother Smt. Munni Devi if the child had fallen down which Munni Devi denied and it was only thereafter that Munni Devi realized that the child was bleeding from her private parts (pesab ke raste se khoon aa raha tha) and even the maxi which she (Munni Devi) was wearing had got smeared with blood from the place where she had held the child. Immediately thereafter Smt. Munni Devi went to the jhuggi of Sonu and confronted him with what had happened to the child and they observed that the accused Sonu was perplexed and admitted having committed a wrong act with the child and sought forgiveness by falling at her feet. In order to protect the honour of the child and from exposing her, thinking she was a female child, Munni Devi did not raise any alarm and brought the child back. On the next day when the bleeding of the child did not stop and her condition deteriorated she was taken to Hindu Rao Hospital when Munni Devi disclosed the doctor as to what had happened and it was on the information given by the doctors that the present case had been registered.
The medical evidence has proved that the fourchette of the child was torn; there was a vertical tear of .5 cm in fourchette; edges were raw; hymen of the child/ infant was perforated and there were bruises over genitalia thereby establishing the rape upon the child. Further, the forensic report established that blood of human origin of 'O' Group was detected on St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 41 of 38 the underwear of the child.
On the basis of the testimony of the various witnesses examined by the prosecution particularly the mother of the infant namely Smt. Soniya and the maternal grandmother of the child namely Smt. Munni Devi and also on the basis of medical and forensic evidence on record, this Court vide a detailed judgment dated 4.2.2012 held that the prosecution has successfully proved the allegations against the accused Sonu of having committed rape upon the prosecutrix 'B' and has been held guilty for the offence under Section 376(2)(f) Indian Penal Code and accordingly convicted.
Heard arguments on the point of sentence. The convict Sonu a th young boy of 18 years is 6 class pass and is a labour by profession. He has a family comprising of aged parents, two younger brothers and one younger sister who all are studying. Ld. Counsel for the convict has vehemently argued that the convict is a first time offender and has no criminal background. He submits that the convict is the helping hand of his family and is in judicial custody since 10.6.2011. He requests that a lenient view be taken against the convict.
On the other hand the Ld. Addl. PP for the State has prayed for strict view upon the convict Sonu keeping in view the fact that the victim in the present case is an infant of six months.
Coming now to the aspect of quantum of sentence, the Delhi High Court in the case of Khem Chand Vs. State of Delhi reported in 2008 St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 42 of 38 (IV) JCC 2497 enumerated the principle factors to be taken into account by the courts while assessing as to what could be the appropriate sentence in a given case. Some of the factors enumerated are (i) Criminal and Crime, (ii) Manner of Commission of offence, (iii) Violence involved, (iv) Whether the offender or accused was in a position of fiduciary, trust or exploited a social or family relationship, (v) State of victim, impact of crime on the victim.
The Hon'ble Supreme Court while considering the question of quantum of sentence in the case of State of Rajasthan Vs. Gajender Singh reported in 2008 (III) JCC 2061 observed as under:
"... the law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property for the people is an essential functions of the state. It could be achieved through the instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet these challenges. The contagion of lawlessness would undermine social order and lay it in ruins...."
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the crime and responding to the society's cry for justice against the criminal. (Ref. Rajiv Vs. State of St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 43 of 38 Rajasthan reported in 1996 (II) SCC 175).
The Hon'ble Supreme Court has in the judgment of State of Andhra Pradesh Vs. Gangula Satya Murthy reported in JT 1996 (10) SC 550, observed as under:
"Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.."
It has been held by the Hon'ble Supreme Court in the case reported in AIR 2000 Supreme Court 1470 that:
Socioeconomic, 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. It is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 44 of 38 expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. (Ref: Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78).
This case is a glaring example of the growing menace of sexual abuse of young children. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is a small female child, a five months infant, 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 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.
The offence of rape is barbaric in nature where the victim is ravished like an animal for the fulfillment of desire and lust of another man. As observed by Hon'ble Mr. Justice Arijit Pasayat a murderer destroys the physical frame of the victim whereas the rapist degrades and defiles the soul of a helpless female. As per the official statistics a total number of 568 cases of rape have been reported in Delhi alone in the year 2011 out of which only 2% have been committed by strangers. The figure would be St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 45 of 38 much high but most of the cases are not reported by the victims because of the various reasons such as family pressure, behaviour of the police, the unreasonably long and unjust process and application of law and resulting consequences thereof.
The infant 'B' aged six months in the present case was a soft and vulnerable target. 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 infant, the convict went on to commit the ghastly, abominable, inhuman and barbaric act of rape, violating the person of the infant and giving a lifelong trauma to her family. The extent of brutality which the convict inflicted upon the child is evident from the medical evidence on record which shows that hymen of the child/ infant was perforated and there were bruises over genitalia.
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. The convict Sonu is hereby sentenced to Rigorous Imprisonment for a period of 10 (ten) years and a fine to the tune of Rs.10,000/. In default of payment of fine, he shall undergo simple imprisonment for a further period of one month. The entire amount of fine, if paid, be released to the mother St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 46 of 38 of the child/ infant as compensation under Section 357 Code of Criminal Procedure for the benefit of the child and shall remain deposited in the form of FDR till the attainment of majority by the prosecutrix without the facility of advance/ loan or withdrawal. However, the mother of the child will be entitled to monthly or quarterly interest, as applicable.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him as per rules.
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 Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, 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 the open court (Dr. KAMINI LAU) Dated: 16.2.2012 ASJ (NW)II: ROHINI St. Vs. Sonu, FIR No. 116/11, PS Bharat Nagar Page No. 47 of 38