Delhi District Court
St. vs . Jagmohan on 29 September, 2007
-:1:-
S.C. NO. 3/07
St. Vs. Jagmohan
IN THE COURT OF SHRI B. R. KEDIA ; A.S.J.
TIS HAZARI COURTS ; DELHI
S.C. NO. 3/07
FIR NO. 390/06
P.S. Subzi Mandi
U/Sec. 376 IPC
State Versus Jagmohan,
S/O Ram Bharose Tiwari,
R/O Hulena Pur Ghogal,
Post Todar Pur, P.S.
Baheta, Distt. Ghogal Hardoi, U.P.
Date of institution 08.1.07.
Arguments heard on 25.9.07
Judgment delivered on 28.9.07.
J U D G M E N T :-
Accused Jagmohan S/O Ram Bharose Tiwari has been chargesheeted for facing trial in a case bearing FIR NO. 390/06 as registered at P.S. Subzi Mandi, Delhi for offence punishable U/S 376 IPC, on the basic allegation of committing rape upon a minor girl aged about 5 years, who is to be referred, hereinafter, as "prosecutrix". (The name of the -:2:- S.C. NO. 3/07 St. Vs. Jagmohan prosecutrix has not been indicated in this judgment by keeping in view the social object of preventing social victimization or ostracism of victim of a sexual offence for which Section 228A of IPC has been enacted and specifically keeping in mind the guidelines of Hon'ble Supreme Court, for not disclosing the name of such victim in the judgment as reflected in the case cited as 2006 II AD (S.C.) 607 Dinesh @ Buddha Vs. State of Rajasthan.) at 1st Floor, H.NO. 387, Kabir Basti, Malka Ganj, Delhi, at about 6:00 p.m. on dt. 07.10.06.
2. The precise case of the prosecution as found reflected from the chargesheet is that on dt. 08.10.06 on receipt of D.D. NO. 52-B by S.I. Narender Khatri, he alongwith Ct. Raji K.P. reached the spot at H.NO. 387, Kabir Basti, Malka Ganj, Subzi Mandi, Delhi and recorded the statement of complainant Smt. Sunita, which is EX. PW-2/A. As per said statement of complainant Sunita, on 07.10.06 at about 6.00 p.m. while she -:3:- S.C. NO. 3/07 St. Vs. Jagmohan was present at the house, on hearing cry of her minor daughter, aged about 5 years (prosecutrix) from the upper floor, she immediately reached there and saw accused Jagmohan, who was also residing as tenant and known to her, was committing rape upon her minor daughter by lying her on the ground and on raising alarm by her the accused Jagmohan ran away from there. As her husband had gone to his native village on that day and when he came back on 08.10.07 police has been informed about the incident and hence legal action be taken against accused Jagmohan. Thereafter, the prosecutrix was got medically examined and in pursuance of the aforesaid statement of complainant Sunita, EX. PW-2/A, F.I.R. bearing NO. 390/06, U/S 376 IPC was got registered at P.S. Subzi Mandi, copy of which is EX. PW-7/B. During the course of investigation, site plan was prepared, the prosecutrix was further medically examined, clothes of the prosecutrix, which were worn by her at the time of incident were seized, -:4:- S.C. NO. 3/07 St. Vs. Jagmohan statement of the prosecutrix U/S 164 Cr. P.C. was got recorded before the concerned Ld. M.M., accused was also arrested and he was medically examined, relevant case properties were sent to FSL for examination, statement of the relevant witnesses were recorded and after conclusion of the investigation charge sheet was filed against the accused in the court of concerned Ld. M.M., who after compliance of requirements U/S 207 Cr. P.C. was pleased to commit the case to the Court of Sessions. Thereafter, matter was assigned to this court for trial.
3. On hearing both the sides on the point of charge vide order dt. 29/1/07, charge for the offence punishable U/S 376 IPC was framed against accused to which accused pleaded not guilty and claimed for trial.
4. During the course of investigation, prosecution in -:5:- S.C. NO. 3/07 St. Vs. Jagmohan support of its case got examined 14 prosecution witnesses, namely, Prosecutrix as PW-1, Smt. Sunita, mother of the prosecutrix as PW-2, Ct. Jitender, D.D. Writer, who has proved the D.D. NO. 52-B as EX. PW-3/A, a formal witness as PW-3, Ct. Reji K.P., who had accompanied with S.I. Narender Khatri/I.O. on receipt of the D.D. NO. 52-B to the spot, a formal witness as PW-4, HC Jai Bhagwan, who is a witness to the arrest of the accused, a formal witness as PW-5, HC Jagmohan, who had accompanied with the accused to the Hospital for his medical examination, a formal witness as PW- 6, HC Udey Bhan, Duty Officer, who has recorded the F.I.R. of this case and proved the copy of he same as EX. PW-7/B, a formal witness as PW-7, ASI Kusum Lata, part I.O. as PW-8, Dr. S.K. Prasad, Medical Officer from Hindu Rao Hospital, who has medically examined the accused and proved his MLC as EX. PW-9/A, a formal witness as PW-9, Sh. Anil Kumar Sisodia, Ld. A.R.C. (the then Ld. M.M.), who had recorded the -:6:- S.C. NO. 3/07 St. Vs. Jagmohan statement of the prosecutrix U/S 164 Cr. P.C. and proved the same as EX. PW-10/B has been examined as PW-10, Sh. P.K. Jain, Radiologist from Hindu Rao Hospital, who has proved the Ossification Test Report of the prosecutrix as EX. PW-11/A, a formal witness as PW-11, Sh. D.K. Sharma, Medical Record Technician from Hindu Rao Hospital, who has proved the MLC of the prosecutrix as EX. PW-12/A and further medical examination report as prepared by Dr. Sweta Mishra on the back of said MLC of the prosecutrix as EX. PW-12/B and further medical examination report of the accused as prepared by Dr. Abhishek as EX. PW-12/C has been examined as PW- 12, S.I. Narender Khatri, first I.O. as PW-13 and HC Medha Lal, the then MHC(M) of P.S. Subzi Mandi, who has proved about the relevant entry in register No. 19 regarding receipt and dispatch of the case property relating to this case, a formal witness as PW-14.
5. After examination of aforesaid 14 prosecution -:7:- S.C. NO. 3/07 St. Vs. Jagmohan witnesses, prosecution evidence was closed. Thereafter, statement of accused U/S 313 Cr. P.C. was recorded in which the accused denied the allegation of prosecution and claimed to be innocent and have been falsely implicated in this case. However, accused has not lead any evidence in his defence.
6. I have heard Sh. V.K. Jain, Advocate, Ld. Amicus Curiae for the accused, Sh. Zenul Abedeen, Ld. APP for the state and perused the relevant material as available on case record.
7. It is submitted by Ld. Amicus Curiae that this accused is innocent and has been falsely implicated in this case at the instance of the mother of the prosecutrix due to previous enmity. It is also added by Ld. Amicus Curiae that though the alleged incident of rape is stated to have taken place on 07.10.06 but the police complaint in this respect has -:8:- S.C. NO. 3/07 St. Vs. Jagmohan been made on 08.10.06 and there is considerable delay in the registration of the F.I.R., which is fatal for the case of the prosecution and hence he deserves to be acquitted. It is also added by Ld. Amicus Curiae that no offence of rape is made out as against this accused as PW-1, the prosecutrix has clearly deposed that accused has not removed his underwear. Ld. Amicus Curiae also pointed out several inconsistencies in the depositions of PW-1 Prosecutrix and PW-2 Smt. Sunita, mother of the prosecutrix, PW-8 S.I. Kusum Lata and PW-13 S.I. Narender Khatri and added that the same falsify the case of the prosecution. It is further added by Ld. Amicus Curiae that no independent public witness has been examined by the I.O. and the depositions of PW-1 Prosecutrix, PW-2 Smt. Sunita, mother of the prosecutrix being interested cannot be treated as trustworthy and reliable. It is also added by Ld. Amicus Curiae that the MLC of the prosecutrix reflect no external injury on the body of the prosecutrix and same also -:9:- S.C. NO. 3/07 St. Vs. Jagmohan falsify the case of the prosecution of rape against the accused upon the prosecutrix and hence he deserves to be acquitted. It is also submitted by Ld. Amicus Curiae that the deposition of PW-1 Prosecutrix and PW-2 Smt. Sunita are not trustworthy and reliable being ill motivated and hence this accused deserves to be acquitted.
8. To the contrary it is submitted by Ld. APP for the State that by examining 14 prosecution witness, prosecution have successfully established its case as against accused for the charged offence and therefore the accused deserves to be convicted accordingly. It is also submitted by Ld. APP that the deposition of PW-1 Prosecutrix and PW-2 Smt. Sunita, complainant, mother of the prosecutrix are clinching in nature and there is no reason to disbelieve them and as the same are found corroborated from the depositions of other connected PWs and hence the accused deserves to be convicted -:10:- S.C. NO. 3/07 St. Vs. Jagmohan accordingly. It is also added by Ld. APP that some sort of discrepancies in the depositions of various PWs, which are normal and usual in nature and cannot be treated as fatal for the case of the prosecution and the accused deserves to be convicted for the charged offence.
9. The first question that arises having significant bearing on the fate of this case is, "What was the age of the prosecutrix on the date of the incident i.e. on 07.10.06?" So far as this aspect is concerned, Prosecutrix, who has been examined as PW-1 before this court has deposed regarding her age as about 5 years old. Further more, in the statement of the prosecutrix U/S 164 Cr. P.C. as recorded by the concerned Ld. M.M. on dt. 10.10.06, which is EX. PW-10/B, the age of the prosecutrix is found mentioned as 5 years. Besides that in the MLC of the prosecutrix, which EX. PW-12/A, the age of the prosecutrix is found mentioned as 5 years. Further more, in -:11:- S.C. NO. 3/07 St. Vs. Jagmohan the police statement dt. 08.10.06 of Smt. Sunita, mother of the prosecutrix, which is EX. PW-2/A, forming the basis of the F.I.R. of this case, the age of the prosecutrix is also found mentioned as 5 years. From the deposition of PW-13 S.I. Narender Khatri/I.O. also the age of the prosecutrix is reflected as 5 years. In the light of the aforesaid material as found available on the case record, I have no hesitation to safely conclude that the age of the prosecutrix was about 5 years at the time of the incident i.e. 07.10.07.
10. Now the next question that arises having significant bearing on the fate of this case is, "Whether this accused Jagmohan can be held liable for offence punishable U/S 376 IPC for committing rape upon the prosecutrix?" So far as this aspect is concerned, the prosecutrix, who has been examined as PW-1 has deposed in the court that she knew accused Jagmohan and correctly identified the accused in the court. -:12:- S.C. NO. 3/07
St. Vs. Jagmohan One day evening, while she was playing on the terrace and her mother was working on the ground floor, accused Jagmohan came and lied her down on the floor, took off her underwear and he removed his pant and committed wrong act upon her. She further added that she was feeling pain in her privae part while accused committed wrong act upon her and her frock was also stained with blood. She also added that when she cried, her mother came to the terrace and accused Jagmohan ran away from there. In the cross-examination of Ld. Amicus Curiae the material part of the deposition of the prosecutrix could not be demolished. In the cross-examination of Ld. Amicus Curiae prosecutrix has clearly deposed that no body has tutored her for deposing in the court and added that accused Jagmohan was residing at the room on the terrace of their house and except accused Jagmohan and herself no other person was present at the terrace at that time. She has specifically denied the suggestion of Ld. Amicus Curiae tht the -:13:- S.C. NO. 3/07 St. Vs. Jagmohan accused Jagmohan had not committed any wrong act with her or that she has been deposing falsely at the instance of her parents due to previous enmity between her parens and Ajay, brother of accused Jagmohan. The material part of the aforesaid deposition of prosecutrix is also fund corroborated from her earlier statement U/S 164 Cr. P.C. as recorded by PW-10 Sh. Anil Kumar Sisodia, Ld. A.R.C. (the then Ld. M.M.), who has proved the said statement of the prosecutrix as EX. PW-10/B. From the perusal of said statement U/S 164 Cr. P.C., which is EX. PW-10/B, it is reflected that the prosecutrix has stated before the Ld. M.M. to the effect that the accused Jagmohan, whom she knew earlier lied her down on the floor and removed her underwear as well as his clothes and committed wrong act upon her on which she felt pain in her private part and her frock also got stained with blood. She cried loudly, on hearing her noise her mother reached there and Jagmohan ran away from there. The aforesaid deposition -:14:- S.C. NO. 3/07 St. Vs. Jagmohan of PW-1 Prosecutrix is also found corroborated from the deposition of PW-2 Smt. Sunita, who is complainant/mother of the prosecutrix. As said PW-2 Smt. Sunita deposed in the court that she knew accused Jagmohan as he was residing as a tenant in the said premises in which they were residing as a tenant. On 07.10.06 while she was present at her house, on hearing cry of her daughter, she went upstairs and saw accused Jagmohan committing rape upon her daughter (prosecutrix). On her raising alarm, the accused ran away from there. She further deposed that as her husband had gone to his native village on that day and came back on 08.10.06 and on 08.10.06 she lodged the complaint with the police and identified her T.I. at point-A on complaint EX. PW- 2/A. She further deposed that thereafter her daughter was got medically examined in Hindu Rao Hospital. She further added that she handed over red colour underwear and cream colour frock of her daughter, which she was wearing at he time of he -:15:- S.C. NO. 3/07 St. Vs. Jagmohan incident to the police, which were seized vide seizure memo EX. PW-2/B, bearing her T.I. at point-A. She further deposed that on 24.10.06 accused Jagmohan was arrested by police from Old Delhi Railway Station on her identification vide arrest memo EX. PW-2/C and his personal search EX. PW-2/D, bearing her T.I. at point-A. Said PW-2 Smt. Sunita have duly identified red colour underwear and cream colour frock as EX. P-1 (Collectively) which her daughter was wearing at the time of the incident. The material part of the deposition of said PW-2 Smt. Sunita also found remained intact in her cross- examination by Ld. Amicus Curiae. Said PW-2 Smt. Sunita has specifically denied the suggestion of Ld. Amicus Curiae that due to enmity she has been deposing falsely as against the accused and that accused had not committed any offence as against her daughter. The substantive part of the deposition of PW-1 Prosecutrix and her mother PW-2 Smt. Sunita also found corroborated from the other material as -:16:- S.C. NO. 3/07 St. Vs. Jagmohan found available on the case record. In the medical report of the prosecutrix, which is EX. P-12/B at the back of MLC EX. PW-12/A it is found mentioned "Hymen torned". Further more, as per seizure memo of underwear and kameez (frock) of the prosecutrix, which is EX. PW-2/B, it is reflected that red colour underwear of the prosecutrix was having semen stains and cream colour kameez (frock) of the prosecutrix was having blood stains, which were stated to have been worn by the prosecutrix at the time of the incident.
11. The substantive part of the deposition of the PW-1, the prosecutrix and PW-2 Smt. Sunita, the mother of the prosecutrix could not be demolished in their cross- examination. No doubt some sort of discrepancies have been brought on record in the cross-examination of PWs but I am of the considered view that the said discrepancies are bound to occur in the deposition of various witnesses being usual and -:17:- S.C. NO. 3/07 St. Vs. Jagmohan natural and even otherwise as they are found to be formal in nature without striking at the root of the matter and the same cannot be treated as fatal for the prosecution. In the case reported as, "JT 1999 (9) SC 43 State of H.P. Vs. Lekhraj and another", it was observed by Hon'ble Supreme Court of India as under :-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to laps of time, due to mental disposition such as shock and horror at the time of occurrence, and the like."
It was further observed in the said judgment as under
:--:18:- S.C. NO. 3/07
St. Vs. Jagmohan "The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
In recent case reported as, "JT 2006 (1) SC 645 "Surender Singh Vs. State of Haryana", it was observed by Hon'ble Supreme Court of India as under :-
"It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
12. I also do not find any force in the submission of Ld. Amicus Curiae that no external injury was found on the -:19:- S.C. NO. 3/07 St. Vs. Jagmohan private part of the prosecutrix and same negate the allegation of the commission of rape as against the prosecutrix. As I am of the considered view that mere absence of external injury on person of prosecutrix cannot be treated as conclusive ground to falsify the stand of commission of rape as against prosecutrix. I do not find any reason to disbelieve the deposition of the prosecutrix about the commission of rape upon her by this accused. My view in this regard is also found supported from the judgment as rendered by Hon'ble Supreme Court of India in the case reported as 1998 (8) SCC 635, "Ranjit Hajarika Vs. State of Assam." Similar view was also held by Hon'ble Supreme Court of India in the case reported as 2006 VI AD (SC) 115, "State Tamil Nadu Vs. Ravi @ Nehru."
Further more, relying upon the judgment cited as "State of U.P. Vs. Ashok Dixit & Anr., 2000 II AD (SC) 1 = (2000) 3 SCC 70 in "State of Rajsthan Vs. Om Prakash" (2002) -:20:- S.C. NO. 3/07 St. Vs. Jagmohan 5 SCC 745, it was observed by Hon'ble Supreme Court of India as under :-
"There is no force in the contention that if there was any forcible sexual intercourse it would have resulted in some injury upon the prosecutrix.
Presence of injuries are not always sine qua non to prove the charge of rape. It has to be kept in mind that a case under consideration is one of rape on a girl of eight years and not on grown up woman"
13. I also do not find any force in the submission of Ld. Amicus Curiae that as there is considerable delay of more than 24 hours in registration of the F.I.R. the same is fatal for the case of the prosecution. From the perusal of the complaint dt.
08.10.06 of the mother of the prosecutrix Smt. Sunita, which is EX. PW-2/A, forming the basis of the F.I.R., it is clearly -:21:- S.C. NO. 3/07 St. Vs. Jagmohan reflected that though the incident of rape upon the prosecutrix by the accused had taken place on 07.10.06 at about 6:00 p.m. but as Ram Nihal, the father of the prosecutrix, who is the husband of the complainant had gone to his native village and came back on 08.10.06 and thereafter complaint has been lodged to the police. The complainant Sunita, who has been examined as PW-2 in her deposition in the court also stated that her husband had gone to his native village and came back on 0810.06 and thereafter she lodged complaint to the police, which is EX. PW-2/A, bearing her T.I. at point-A. In view of the aforesaid material as available on the case record, I have no hesitation to safely conclude that delay of one day in lodging the complaint in the present matter cannot be treated as fatal for the case of the prosecution and my said view is also found supported from the following judgment as rendered by Hon'ble Supreme Court of India as under :--:22:- S.C. NO. 3/07
St. Vs. Jagmohan
1) 1991 Supp (1) SCC 372, "Zahoor & Ors. Vs State of U.P."
2) 1991 Supp (1) SCC 536, "Tara Singh & Ors Vs State of Punjab."
14. I also do not find any force in the submission of Ld. Amicus Curiae that this accused has been falsely implicated in this case due to previous enmity between the parents of the prosecutrix and Ajay, brother of the accused as no material has been placed on record on behalf of accused regarding any such prior enmity or the cause for any enmity between the parents of the prosecutrix and Ajay, brother of accused. Further more, I do not see any reason as to why PW-1 Prosecutrix, who is a girl of aged about 5 years and her mother Smt. Sunita would go to the extent of making such serious allegation as against the accused, in case the accused had not committed any such offence of rape against the prosecutrix. Further more, the deposition of PW-1 Prosecutrix and PW-2 -:23:- S.C. NO. 3/07 St. Vs. Jagmohan Smt. Sunita, mother of the prosecutrix coupled with other attending evidence fully negate the stand of the accused that he has been falsely implicated due to prior enmity with the parents of the prosecutrix. Further more, I am of the considered view that a lady in the tradition bound non- permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her daughter's chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated.
15. Further more, I am of the considered view that in criminal trial, the finding of conviction can be based even on the strength of deposition of single PW, in case it is found trust worthy and reliable as it is quality and not quantity of the -:24:- S.C. NO. 3/07 St. Vs. Jagmohan evidence that count and my said view is found supported from the judgment as rendered by Hon'ble Supreme Court of India, In the case reported as JT 1999 (8) S.C. 537, "Sheelam Ramesh and another Vs. state of A.P." it was observed by Hon'ble Supreme Court of India as under :-
"Courts are concerned with the quality and not quantity of evidence and in a criminal trial, conviction can be based on a sole evidence of a witness, if it inspire confidence."
Further more, in "State of M.P. Vs. Dayal Sahu, VII(2005) SLT 364 = IV (2005) CCR 101 (SC) = 2005 Crl.L.J. 4375, the Hon'ble Apex Court had an occasion to deal with the question as to whether the testimony of the prosecutrix, before it could be acted upon, require corroboration or not and while considering the said question, it was held as under :- -:25:- S.C. NO. 3/07
St. Vs. Jagmohan "Once the statement of prosecutrix inspires confidence and accepted by the Court, as such, conviction can be passed only on solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Non - examination of doctor and non - production of doctor's report would not be fatal to the prosecution case, if the statement of the prosecutrix and other prosecution witnesses inspire confidence."
Further more, in (2004) 1 SCC 421, "State of -:26:- S.C. NO. 3/07 St. Vs. Jagmohan Punjab Vs. Ramdev Singh," it was held by Hon'ble Supreme Court of India as under :-
"Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman ie. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in " Bodhisattwa Gautam Vs. Subhra -:27:- S.C. NO. 3/07 St. Vs. Jagmohan Chakraborty" (1996) 1 SCC 490 : 1996 SCC (Cri) 133 : AIR 1996 SC 922 the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the fundamental rights, namely, the right to life contained in Article 21 of the Constitution of India (in short "the constitution"). The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions.
16. I also do not find any force in the submission of Ld. Amicus Curiae to the effect that no rape has been committed -:28:- S.C. NO. 3/07 St. Vs. Jagmohan by the accused upon the prosecutrix as prosecutrix at one stage deposed that accused has not removed his pant and underwear. No doubt, from the deposition of PW-1 Prosecutrix, there reflect some discrepancy in this respect but since the prosecutrix was found to be of merely 5 years old, said discrepancy cannot be over emphasised. Further more, the prosecutrix has deposed in the court that the accused Jagmohan lied her down on the floor and took off her underwear and committed wrong act upon her on which she felt pain in her private part and her frock was also stained with blood and on hearing cry, her mother came to terrace and accused Jagmohan ran away from there. The prosecutrix in the cross-examination by Ld. APP have admitted it to be correct that accused Jagmohan had removed his pant. It is further revealed that the prosecutrix had denied the suggestion of Ld. Amicus Curiae that accused had not done any wrong act upon her and she has been deposing falsely at -:29:- S.C. NO. 3/07 St. Vs. Jagmohan the instance of her parents. Further more, from the statement of the prosecutrix as recorded U/S 164 Cr. P.C. by concerned Ld. M.M., which is EX. PW-10/B, it is clearly found reflected that the prosecutrix has stated before Ld. M.M. that the accused Jagmohan had made her to lie down on the floor and removed her underwear as well as his clothes and done wrong act with her on which she felt pain in her private part and her frock also got stained with blood and on hearing cry, her mother came there and accused Jagmohan ran away from there. The said deposition of PW-1 prosecutrix is also found corroborated from the deposition of PW-2 Smt. Sunita, mother of the prosecutrix, which is further found corroborated from the medical report of the prosecutrix, EX. PW-12/B, in which there is mention of torn of hymen of the prosecutrix. Further more, from the perusal of the FSL Report EX. PW-8/D, it is found reflected that Human semen was found detected on Ex. '1a' (underwear of the prosecutrix) and Ex. '1b' (one baby -:30:- S.C. NO. 3/07 St. Vs. Jagmohan laides kurta). In the light of the aforesaid material as found available on the case record I do not find any force in the submission of Ld. Amicus Curiae that no rape was committed by the accused upon the prosecutrix -:31:- S.C. NO. 3/07 St. Vs. Jagmohan
17. In the light of the aforesaid material as found available on the case record and keeping in mind the deposition of the prosecutrix PW-1 and PW-2 Smt. Sunita, who is mother of the prosecutrix coupled with the statement of he prosecutrix recorded U/S 164 Cr. P.C. EX. PW-10/B and medical record of the prosecutrix EX. PW-12/A and EX. PW- 12/B and other connected attending evidence, I have no hesitation to safely conclude that this accused Jagmohan can be held liable for commission of rape upon the prosecutrix, who is a minor girl aged about 5 years on dt. 07.10.06 and consequently this accused is found guilty for offence punishable U/S 376 IPC and he is convicted accordingly. Let, this convict be heard separately on the point of sentence. ANNOUNCED IN THE OPEN COURT (B.R. KEDIA) On 28th September, 2007. Addl. Sessions Judge Tis Hazari Courts Delhi.
-:32:-S.C. NO. 3/07 St. Vs. Jagmohan IN THE COURT OF SHRI B. R. KEDIA ; A.S.J. TIS HAZARI COURTS ; DELHI S.C. NO. 3/07 FIR NO. 390/06 P.S. Subzi Mandi U/Sec. 376 IPC (Convicted) State Versus Jagmohan, S/O Ram Bharose Tiwari, R/O Hulena Pur Ghogal, Post Todar Pur, P.S. Baheta, Distt. Ghogal Hardoi, U.P. ORDER ON SENTENCE :-
In pursuance of judgment dt. 28.9.07 as passed by this court whereby convicting the accused Jagmohan for offence punishable U/S 376 IPC. I have heard Sh. V.K. Jain, Advocate, Ld. Amicus Curiae for the convict, Sh. Zenul Abedeen, Ld. APP for the State and perused the case record for passing this order on sentence.-:33:- S.C. NO. 3/07
St. Vs. Jagmohan
2. It is submitted by Ld. Amicus Curiae for the convict that this convict is a young boy aged about 20 years and is the first offender and is not a previous convict. It is further added that he hails from poor family and he is already in custody since 24.10.06 and hence urge for taking lenient consideration.
3. On the contrary, it is submitted by the Ld. P.P. for the State that since this convict Jagmohan is found to have committed rape upon the prosecutrix, who is a minor girl aged about 5 years, he does not deserve any leniency and maximum dose of punishment be awarded against him.
4. While dealing with punishment aspect in the case of rape upon a victim aged about 10 years old, it was observed by our Hon'ble Delhi High Court in a recent case reported as 134 (2006) DLT 119 (DB) Mohd. Alam Vs. State (NCT) of Delhi at -:34:- S.C. NO. 3/07 St. Vs. Jagmohan Para - 48 as under :-
"What then is the punishment that is required to be given. As mentioned above, in the absence of any guidelines in this regard, we can only go by some recent precedents set by the Supreme Court. In " Dinesh @ Buddha Vs. State of Rajasthan (supra)", where the victim was 8 years old, the Supreme Court awarded the minimum punishment of 10 years imprisonment. In " State of Karnataka Vs. Krishnappa, III (2000) SLT 228 = 1 (2000) CCR 338 (SC) - (2000) 4 SCC 75", the victim was again 8 years old and the Supreme Court awarded the minimum penalty of 10 years imprisonment. In -:35:- S.C. NO. 3/07 St. Vs. Jagmohan " Bantu @ Naresh Giri Vs. State of M.P., VII (2001) SLT 557 = IV (2001) CCR 252 (SC) = (2001) 9 SCC 615", the victim was only 6 years old and the Supreme Court awarded the minimum sentence of 10 years imprisonment. Similarly, in " State of M.P. Vs. Santosh Kumar, V (2006) SLT 506 = III (2006) CCR 142 (SC) = (2006) 6 SCC 1"
the victim was 6 years of age and the Supreme Court awarded the minimum sentence of 10 years imprisonment."
5. In view of above, I consider it appropriate to impose upon the convict Jagmohan R.I. for 10 years and fine of Rs. 2000/- and in default of payment of fine, additional R.I. for 2 months for his conviction for offence punishable U/S 376 IPC. However, it is made clear that the convict will be entitled for -:36:- S.C. NO. 3/07 St. Vs. Jagmohan the benefit U/S 428 Cr. P.C. and the period of his detention which is reflected from the case record (from 24.10.06 till date) shall be set off against the aforesaid substantive sentence period. Concerned Jail Superintendent, Central Jail, Tihar be intimated accordingly.
6. Let, a copy of the judgment dt. 28.9.07 and copy of this order on sentence be given free of cost to the convict Jagmohan immediately.
ANNOUNCED IN THE OPEN COURT (B.R. KEDIA) On 29th September, 2007, Addl. Sessions Judge Tis Hazari Courts Delhi.
-:37:- S.C. NO. 3/07 St. Vs. Jagmohan State Versus Jagmohan S.C. NO. 3/07 FIR NO. 390/06 P.S. Subzi Mandi U/Sec. 376 IPC 29.9.2007 Present. Sh. Zenul Abedeen, Ld. Addl. P.P. for the State.
Convict Jagmohan is produced from J.C. with counsel Sh. V.K. Jain, Adv. Ld. Amicus Curiae.
I have heard arguments from both the sides on the point of sentence. Vide separate order pronounced in the open court today, I have imposed upon the convict Jagmohan R.I. for 10 years and fine of Rs. 2000/- and in default of payment of fine, additional R.I. for 2 months for his conviction for offence punishable U/S 376 IPC. However, it is made clear that the convict will be entitled for the benefit U/S 428 Cr. P.C. and the period of his detention which is reflected from the case record (from 24.10.06 till date) shall be set off against the aforesaid substantive sentence period. Concerned Jail Superintendent, Central Jail, Tihar be intimated accordingly.
Let, a copy of the judgment dt. 28.9.07 and copy of the order on sentence be given free of cost to the convict Jagmohan immediately and after doing the needful by the Ahlmad of this court, this case file be consigned to -:38:- S.C. NO. 3/07 St. Vs. Jagmohan Record Room.
(B.R. Kedia) A.S.J./Delhi/29.9.07