Delhi District Court
State vs 1. Usha @ Munni W/O Satpal @ on 26 February, 2011
IN THE COURT OF SH. RAMESH KUMAR - II, LD.
ADDITIONAL SESSIONS JUDGE - 0I : North East /
KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0484902007
Sessions Case No. 245/2007
Assigned to Sessions. 30.07.2007
Arguments heard on 14.02.2011
Date of order. 24.02.2011
FIR No. 331/2007
State Vs 1. Usha @ Munni w/o Satpal @
Satprakash r/o House No.100, B
Block, Gali No.2A, Rajeev
Nagar, Harsh Vihar, Delhi.
2. Suraj s/o Satpal, r/o House
No.100, BBlock, Gali No.2A,
Rajeev Nagar, Harsh Vihar,
Delhi.
3. Rahis s/o Babu Khan, r/o Jhuggi
No.A74, KBlock, Behind ITI,
Jahangir Puri, Delhi.
Police Station Nand Nagri
Under Section 363/376/366 IPC
JUDGEMENT
1. Station House Officer of Police Station Nand Nagari had filed a challan vide FIR no. 331/2007 dated 21.04.2007 u/s 363/366/376/368/120B/34 IPC for the prosecution of accused State Vs. Usha @ Munni and others SC No.245/2007 persons namely Usha @ Munni, Suraj and Rahis in the court of Ld. Metropolitan Magistrate and Ld. MM after compliance of section 207 Cr. P.C. committed this case for trial before this court. Keeping in view of section 228 (A) IPC and directions of Supreme court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix not being given in the judgment.
2. In brief, facts of the case are that on 21.04.2007 complainant Zahir Khan lodged a missing report of prosecutrix Ex.PW9/A at Police Post Harsh Vihar, Delhi. In the meanwhile, the relatives of prosecutrix produced the prosecutrix in PP Harsh Vihar and on the statement of prosecutrix Ex.PW1/A, police had registered the present FIR No.331/07 Ex.PW8/A u/s 363/366/376 IPC dated 21.04.2007. Accordingly, during the course of investigation police arrested accused persons namely Usha @ Munni, Suraj and Rahis and accordingly filed the challan in the court of Ld. MM.
3. On the basis of material available on record ld. predecessor of this court framed a charges vide order dated 29.09.2007 against accused Usha @ Munni and Rahis for the offences punishable u/s 109/376/34 IPC and against accused Suraj for the offences punishable u/s State Vs. Usha @ Munni and others SC No.245/2007 363/366/376 IPC to which accused persons did not plead guilty and claimed trial.
4. In order to prove its case prosecution has examined 16 witnesses namely PW1 Prosecutrix complainant, PW2 Zahir Khan, father of prosecutrix who had gone to get lodged missing report of prosecutrix, PW3 Somwati - hostile witness, PW4 W/HC Vandana, PW5 DR. P. Yadav, PW6 SubInspector Rajni Kant, PW7 Devender Kumar, PW8 SubInspector Rajbir Singh, PW9 HC Prem Pal - formal witness, PW10 Ct. Gyanender Singh, PW11 W/HC Durga, PW12 P.K. Mishra, PW13 ASI Sumitra - formal witness, PW14 Dr. Arifa, PW15 Ct. Mangat Singh and PW16 W/SubInspector Radha Pandey.
5. PW1 prosecutrix - complainant in the present case deposed that one day when she was cooking food at her house, Pooja d/o Usha came to her house and asked that her mother is calling to her along with pair of Pajeb at her house and on reaching there, the mother of Suraj namely Usha told her that Suraj wanted to meet her near Bara School, Mandoli. She further deposed that she straight away went to Bara School and Suraj met her there and he told her that he wanted to have State Vs. Usha @ Munni and others SC No.245/2007 date with her. She further deposed that Suraj took her to Jahangir Puri through bus where he used to work and forced her to remain with him in the night at his factory in Jahangir Puri and accused Suraj slept with her in the factory and in the night forcibly committed rape with her twice. She further deposed that accused threatened her to kill if she raised any alarm that is why she could not raise any alarm. She further deposed that in the morning mother of accused Suraj also reached in Jahangir Puri and asked her to marry with accused Suraj. She further deposed that in the night accused Suraj took a premises on rent and remained with her in the said premises and in the morning time accused Suraj as well as her mother brought her to court for marriage. She further deposed that they took her signatures on some papers and told her that these documents are pertaining to marriage with accused. She further deposed that as accused had threatened her to kill that is why she did not object for signing those documents. She further deposed that from court accused again took her to the said rented premises and she remained in the said rented house for three days and during the said three days accused committed rape with her several times. She further deposed that from there she was going to Police Station and on the way her father met her and they took her to Police Station and in the Police Station, police recorded her statement and then police registered the present State Vs. Usha @ Munni and others SC No.245/2007 case.
6. PW2 Zahir Khan is the father of prosecutrix. He deposed that prosecutrix is his daughter and had studied upto 5th standard. He further deposed that on 18.04.2007 her daughter had left from the house at around 7:00 p.m. without telling anybody. He further deposed that accused Suraj was residing in his neighbourhood at the time of incident. He further deposed that when his daughter did not return back, he searched for her daughter in the area as well as in the relatives but she was not traceable. He further deposed that at the time of incident his daughter was 14 years of age. He further deposed that he lodged missing report in the Police Station and handed over age proof of his daughter. He further deposed that his daughter told him that she was enticed by Munni as well as accused Suraj. This witness was cross examined by Ld. APP. During his cross examination, he deposed that the date of birth of his daughter is 07.11.1993.
7. PW3 Somwati is a hostile witness. She has deposed that she had not made any statement to the police officials regarding the present case.
8. PW4 W/HC Vandana is a formal witness. She took the prosecutrix for her medical examination at GTB Hospital and handed over the sealed pullanda and sample seal to the Investigating Officer who State Vs. Usha @ Munni and others SC No.245/2007 seized the same vide seizure memo Ex.PW4/A.
9. PW5 Dr. P.Yadav has deposed that on 05.06.2007 he was working as CMO, GTB Hospital and he examined the accused Suraj vide MLC Ex.PW5/A.
10.PW6 SubInspector Rajni Kant is also a formal witness. This witness deposed that a missing report was lodged in PP Harsh Vihar regarding missing of prosecutrix and the DD was handed over to this witness for investigation. She further deposed that during investigation, prosecutrix was produced by her relatives and she informed the SHO who deputed SubInspector Radha Pandey for further investigation.
11.PW7 Devender Kumar, Teacher, MC Primary School, Mandoli Bal I, brought original record of admission of prosecutrix and as per admission record register the date of birth of prosecutrix is 07.11.1993 and the same is Ex.PW7/A. He has also got exhibited admission form Ex.PW7/B and school leave certificate issued on 02.04.2004 of prosecutrix vide Ex.PW7/C.
12.PW8 SubInspector Rajbir Singh is a formal witness being duty officer. He got recorded FIR u/s 363/366/376 IPC Ex.PW8/A on the State Vs. Usha @ Munni and others SC No.245/2007 basis of rukka handed over to him by SubInspector Radha Pandey.
13.PW9 HC Prem Pal is also a formal witness being duty officer. He got recorded DD No.17 Ex.PW9/A on the basis of information given by Zahir and investigation of the DD was marked to SubInspector Rajni Kant.
14.PW10 Ct. Gyanender Singh is the witness of arrest of accused persons. He deposed that accused Suraj was arrested vide arrest memo Ex.PW2/K and his personal search was conducted vide personal search memo Ex.PW2/B in his presence. He further deposed that disclosure statement of accused Suraj vide Ex.PW10/A in his presence and he took the accused Suraj for his medical examination at GTB Hospital and after medical examination of accused he collected one sealed pullanda and one sample seal from doctor which he handed over to Investigating Officer who seized the same vide seizure memo Ex.PW10/B. He further deposed that on 06.06.2007 at the instance of accused Suraj, accused Rahis was arrested vide arrest memo Ex.PW10/C and his personal search was conducted vide memo Ex.PW10/D. He further deposed that pointing out memo of spot Ex.PW10/E was prepared by Investigating Officer at the instance of accused persons.
State Vs. Usha @ Munni and others SC No.245/2007
15.PW11 W/HC Durga is also a witness of arrest. She deposed that accused Usha @ Munni was arrested vide arrest memo Ex.PW11/A, her personal search was conducted vide her personal search memo Ex.PW11/B and her disclosure statement Ex.PW11/C was recorded by Investigating Officer in her presence.
16.PW12 P.K. Mishra, Jr. Scientific Officer, Biology, CFSL, Kolkata proved his report vide Ex.PW12/A.
17.PW13 ASI Sumitra is a formal witness. She deposed that on 21.04.2007 custody of prosecutrix was given to her during night and she kept prosecutrix in her supervision throughout the night and on 22.04.2007 during morning hours she handed over custody of prosecutrix to the SubInspector Radha Pandey.
18.PW14 Dr. Arifa got conducted medical examination of prosecutrix proved the MLC of prosecutrix vide Ex.PW1/B.
19.PW15 Ct. Mangat Singh is the witness of arrest of accused Rahis who was arrested at the instance of accused Suraj.
20.PW16 W/SI Radha Pandey is the most material witness being the State Vs. Usha @ Munni and others SC No.245/2007 Investigating Officer. This witness deposed that on 21.04.2007 she was posted at PS Nand Nagari and on that day copy of DD No.17 Ex.PW9/A of Police post Harsh Vihar was assigned to Sub Inspector Rajni Kant which was connection of missing of prosecutrix. This witness reached at PS on the direction of SHO and recorded statement of prosecutrix Ex.PW1/A and directed lady Ct. Vandana to take prosecutrix to GTB Hospital for her medical examination along with written request of medical examination and after her medical examination lady Ct. Vandana produced prosecutrix before her along with MLC Ex.PW1/B and one sealed parcel along with sample seal. This witness seized the same vide seizure memo Ex.PW4/A. Thereafter, this witness made endorsement Ex.PW16/A for registration of FIR and presented rukka before duty officer ASI Rajbir Singh for registration of FIR and after recording the FIR Ex.PW8/A u/s 363/366/376 IPC, investigation of this case was assigned to her. This witness deposited sealed parcels along with sample seal to the MHC(M) in the intact condition. This witness recorded statement of PW Zahir Khan at Police Station. This witness also recorded supplementary statement of prosecutrix. This witness also recorded statement of lady Ct. Vandana and SI Rajni Kant and SI Rajni Kant handed over copy of DD No.17 Ex.PW9/A to her. State Vs. Usha @ Munni and others SC No.245/2007
21.This witness on 29.04.2007 along with Lady HC Durga and Ct. Gyanedner reached at the house of accused Suraj where accused Usha @ Munni met them and disclosed that her son Suraj has married with prosecutrix and she also produced documents pertaining to marriage i.e. Photocopy of document mark X and Y upto six pages. This witness arrested the accused Usha @ Munni on the ground of her involvement in the present case. She was arrested vide arrest memo Ex.PW11/A and her personal search was conducted by Lady HC Durga and personal search memo Ex.PW11/B was prepared. This witness brought on record school leaving certificate of prosecutrix Ex.PW7/C which was produced by PW Jahir vide seizure memo Ex.PW2/A and as per school leaving certificate, the date of birth of prosecutrix is 07.11.1993.
22.On 05.06.2007 this witness formally arrested accused Suraj in the court with the permission of Ld. MM vide arrest memo Ex.PW2/K and his personal search was conducted vide memo Ex.PW2/B and recorded his statement Ex.PW10/A. Accused Suraj was identified by PW Jahir at the time of arrest. This witness and Ct. Gyaneder took the accused Suraj to GTB Hospital where he was medically examined vide MLC Ex.PW5/A and after his medical examination she took into State Vs. Usha @ Munni and others SC No.245/2007 possession one sealed parcel containing blood of accused Suraj as sample and one sample seal vide seizure memo Ex.PW10/B which were handed over to them by the doctor. This witness has prepared pointing out memo Ex.PW10/E of place of occurrence at the instance of accused Suraj.
23.This witness further deposed that accused Suraj led the police party at the house of coaccused Rahis i.e. No.K74, EBlock, Jhugis of Jehangirpuri as he was witness of marriage as he had put his signatures on marriage documents mark X and Y. This witness interrogated Rahis and arrested the accused Rahis vide arrest memo Ex.PW10/C and his personal search was conducted vide memo Ex.PW10/D. This witness recorded statement of Ct. Mangat, lady HC Durga, Ct. Gyanender and Smt. Somwati etc. and prepared documents for sending to FSL, Rohini and same were handed over to MHC (M) to send the sealed parcels after getting forwarding letter by SHO from concerned DCP.
24.This witness had moved an application before ld. MM to get recorded statement of prosecutrix u/s 164 Cr.P.C. But her request was declined. This witness also placed on record one certificate Ex.PW16/C showing the age of prosecutrix issued by MC Primary School, Mandoli, Dehi.
State Vs. Usha @ Munni and others SC No.245/2007
25.This witness submitted expert opinion Ex.PW12/A along with written request Ex.PW16/B and on completion of investigation, this witness prepared charge sheet against three accused persons and same was sent to the court by SHO.
26.After prosecution evidence, statement of accused persons u/s 313 Cr.P.C. was recorded where all the accused persons denied all these evidence and circumstances put to them. In their statement u/s 313 Cr.P.C. accused Usha @ Munni deposed that brother of prosecutrix and her daughter were in love affairs and on this ground she has been falsely implicated in this case. They had led the evidence of defence witnesses in his defence. Accused Munni has examined herself as DW1 as defence witness u/s 315 Cr.P.C. and she had deposed that Shokeen brother of prosecutrix had taken away her daughter Mamta without her consent. She further deposed that she lodged a complaint in the police post harsh Vihar but police had not taken any action against Shokeen. She further deposed that Shokeen was residing opposite her house and known to us. She further deposed that she produced prosecutrix and accused Suraj to the police. She further deposed that prosecutrix told to her father that she will not got with him and she has already married with accused Suraj. She further State Vs. Usha @ Munni and others SC No.245/2007 deposed that the present case falsely implicated against them only to save Shokeen.
27.After recording of defence evidence, case was fixed for final arguments.
ARGUMENTS
28.Ld. APP for state, Sh. Zenual Abedeen argued that accused Suraj had enticed the prosecutrix with intention to commit rape upon her and in this regard a complaint was made by prosecutrix in the Police Station. Accordingly case under section 363/376/366/368/ 120B IPC was registered against accused Suraj and his associates Munni @ Usha and Rahis. Ld. APP further argued that on 05.02.2008 in her statement before the court she had deposed her age was 14 years on the date of commission of offence. Ld. APP further submits that as per school leave certificate date of birth of prosecutrix is 07.11.1993 which clearly shows that at the time of incident prosecutrix was minor and on MLC Ex.PW1/B age of prosecurtix is also written as 14 years old. Ld. APP for state submits that prosecutrix was taken by the accused Suraj without the consent of the guardian and according to medical report accused had committed rape upon the prosecutrix hence, he has committed the offence punishable 376 & 363 IPC. Ld. APP for state relies upon the statement of prosecutrix wherein the State Vs. Usha @ Munni and others SC No.245/2007 prosecutrix has stated that accused had committed rape upon her and threatened her to kill. Ld. APP further submits that since the statement of prosecutrix support the case of prosecution, therefore, the present case is squarely covered under the ingredients of 363/366/376 IPC. Ld. APP for state further argued that statements of PW1 to PW16 have supported the case of prosecution, so these statements are sufficient to convict the accused persons for offence charged as prosecution has proved its case beyond reasonable doubt.
29.On the other hand, Ld. counsel for accused submits that since the case of prosecution is that accused Suraj has taken away the prosecutrix without the consent of her guardian and committed rape upon her without her consent. Ld. Counsel submits that since the accused Suraj and prosecutrix are living in same locality and there was some dispute with them as brother of prosecutrix had taken away the sister of accused Suraj and as accused Suraj has threatened him that he will take legal action against him that is why present case has been imposed by the father of prosecutrix and police officials. On question of proving of charge ld. Counsel submits that mere saying that accused had committed rape upon prosecutrix is not sufficient unless it is corroborated by some other evidence. Further on question of charges against Munni and Rahis, Ld. Counsel submits that neither State Vs. Usha @ Munni and others SC No.245/2007 accused Munni nor accused Rahis had committed an offence as they have been implicated only being mother and friend respectively of accused Suraj. Since prosecution is relying its case against accused Munni and Rahis only on the basis of alleged document of marriage in the form of affidavit on which both the accused persons had put their signature as witness to the marriage of prosecutrix and accused Suraj. Ld. Counsel further states that there is no evidence against accused Munni and Rahis to convict under the section as for they have been charged. Ld. counsel for accused prayed to acquit the accused persons from the charges.
30.Arguments heard. Record perused. On perusal of record it is revealed that present case was registered on the complaint dated 21.04.2007 Ex.PW1/A of prosecutrix in which she had stated that on the day of incident she was in love affair with accused Suraj and she offered to marry with accused Suraj. On this accused Suraj took her to Jehangirpuri at the house of one of his friend and introduced himself and prosecutrix as husband and wife and on next day prosecutrix and accused Suraj solemnized their marriage. In this regard, the father of prosecutrix had also lodged a report of missing of prosecutrix at PP Harsh Vihar on 21.04.2007. During registration of complaint with PS prosecutrix appeared and made his statement to State Vs. Usha @ Munni and others SC No.245/2007 the police and police had got her medically examined at GTB Hospital vide her medical examination as Ex.PW1/B wherein alleged history shows that prosecutrix running away with Suraj on 18.04.2007 at 7:00 p.m. with her will and wish to place in Delhi. Name of which is not known and they got married on 20.04.2007 evening in the court and in the temple on 19.04.2007 further medical examination of prosecutrix shows there is history of physical contact with accused Suraj twice on 20.04.2007 and changing of clothes but medical examination of prosecutrix does not show any external injury on her person neither on her private part and medical examination of accused Suraj was conducted on 05.06.2007 and his medical report shows that Smegma was present on the day of his medical examination but in opinion of this court this cannot be a good ground for defence as accused was medically was examined on 05.06.2007 and incident had taken place on 20.4.2007.
31.For the purpose of offence of rape it would be relevant to discuss the definition of rape has been given under section 375 IPC. Section 375 IPC is being reproduced as under: "375. Rape - A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse State Vs. Usha @ Munni and others SC No.245/2007 with a woman under circumstances falling under any of the six following descriptions: First. Against her will.
Secondly. Without her consent.
Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. With or without her consent, when she is under sixteen years of age.
Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Explanation. Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
Section 376 IPC which is reproduced hereunder:
Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
State Vs. Usha @ Munni and others SC No.245/2007 Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii)in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii)on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution' or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) Commits rape on a woman when she is under twelve years of age; or
(g) Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which State Vs. Usha @ Munni and others SC No.245/2007 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.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Explanation 2 "Women's or children's institution"
means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]
32.It is also very important to look into the observations made in the judgment '2009 III AD (Cr.) DHC 219 CRL. APP. 294/1999 Karan Singh Vs. State' wherein the following observation was made:
"17. Having gone through the records of this case and the law on the subject, I have no hesitation but to hold that in the present case the testimony of the prosecutrix alone was sufficient to bring home the guilt and to prove the charges of rape against the appellant.
18. As regards the submissions made by learned Amicus Curaie that being no injuries were found on her private State Vs. Usha @ Munni and others SC No.245/2007 parts, reference can be made to the judgment delivered in case of 'B C Deva Vs State of Karnataka 2007 VII AD (S.C.) 143 = 2007 12 SCC 122', where it has been held that merely because no injury was found on the private parts of the prosecutrix would not negate her testimony about the rape committed on her.
"18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."
33.It is also very important to look into the observations made by Hon'ble Apex Court in judgment '(1993) 2 Supreme Court Cases - State of Himachal Pradesh Vs Raghubir Singh':
"There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate her veracity. In the present case the evidence of the prosecutrix is found to be reliable and trustworthy. No corroboration was required to be looked for, though enough was available on the record......"
In judgment titled as 'Suresh Kumar v. State of Haryana, (P&H) 2004(4) R.C.R.(Criminal) 204 : 2004(4) AICLR 574, PUNJAB AND HARYANA HIGH COURT observed that:
State Vs. Usha @ Munni and others SC No.245/2007 "14 15 . After hearing the rival contentions of both sides and rescanning the entire evidence minutely, I am of the considered view that the prosecution has been able to bring home guilt to both the appellants to the hilt. My reasoning is set down as under : Much has been said on age of the prosecutrix by learned counsel for the appellants. No doubt, when the prosecutrix stepped into the witness box, she stated her date of birth as 11121980. The oral statement of the prosecutrix loses its effect in the light of the statement of Smt. Pushpa Devi, Head Teacheress, who has categorically deposed that the date of birth of the prosecutrix in the school record is 5.3.1981. Ex.PK is the certificate in this regard. No doubt, she has stated that she had brought the application which was made at the time of admission of the prosecutrix but that fact by itself would not make much difference. The certificate Ex.PK has been issued by a Government Official in the discharge of his official duty and there is no reason to disbelieve the same on account of presumption attached to it under Section 35 read with Section 114(e) of the Indian Evidence Act. Baldev Singh Malik, Statistical Assistant, General Hospital, Adampur (PW10) has deposed that the birth register of police station City Hansi for the year 198081 was not available in the record of Chief Medical Officer, Hisar. Although no entry regarding date of birth of the prosecutrix from the office of Registrar Births and Deaths has been produced in this case yet the school record produced in this case clearly indicates that her age was less than 16 years on the date of occurrence. In Umesh Chandra v. State of Rajasthan, 1982 SCC (Crl.) 36, their Lordships of the Hon'ble Apex Court have held that the entries in the school register and admission forms regarding the date of birth constitute good proof of age and where these entries are antelitem mortem, there was no reason to disbelieve them. In the instant case, it is not disputed that the certificate Ex.PK relates to the prosecutrix. There is no suggestion from the side of the appellants to the contrary. The fact remains that the prosecutrix was got admitted in the school on 2.4.1987 when her date of birth was recorded as 5.3.1981 as is evident from the statement of Smt. Pushpa Devi, Head Teacheress (PW8). A stray statement given by the prosecutrix, who was hardly of the age of 14 years, takes us no where. Even otherwise, she states that she was born in 1980. The occurrence is of May, 1994. In that eventuality also, she can be considered to be less than 16 years of age at the time of occurrence. No State Vs. Usha @ Munni and others SC No.245/2007 doubt, as per ossification test, her age was between 15 to 161/2 years, but in my considered view, there is no reason to disbelieve the school certificate Ex.PK. In Bhoop Ram v. State of Uttar Pradesh, 1989 SCC(Crl.) 486 : 1989(1) RCR(Crl.) 573 (SC), the Hon'ble Apex Court has reiterated that the entries in the school certificate cannot be rejected on the basis of surmises that usually parents understate the age of their children at the time of admission to school. In other authoritative judgments, the Hon'ble Apex Court has also held that the evidence of the doctor regarding age as occurs in the ossification test can be said to be an opinion based on estimate and there can be every possibility of error creeping into the said opinion."
18. She has also stated in her statement Ex.PM that blood started oozing out and her clothes got smeared with blood but the appellants had got her clothes washed. The learned counsel for the appellants has also made an attempt to demolish the case of the prosecutrix in the light of the medical evidence where no bleeding per vagina was noticed by the lady Dr. Urmil Dhattarwal. However, the medical evidence and the report of the Forensic Science Laboratory establish that the rape has been committed upon her. On the basis of condition of hymen, Dr. Urmil Dhattarwal (PW1) had initially stated that the possibility of the intercourse could not be ruled out, but at the same time it has come in her evidence that confirmatory report would be given after perusing the Chemical Examiner's report of posterior vaginal swab. After perusing the said report, she found that human semen on salwar and posterior vaginal swab showed that intercourse had taken place. Nondetection of blood on the clothes would be of no consequence as for constituting the offence of rape as only penetration is sufficient. No doubt, there is no injury noted by the doctor on the person of the prosecutrix, yet this fact again would not demolish the statement of the prosecutrix. Absence of injury on the person of prosecutrix is not necessarily an evidence of falsity of allegation as held in State of Rajasthan v. N.K.The Accused, 2000(2) RCR(Crl.) 471 (SC). In the light of the evidence discussed above, there is nothing to disbelieve the statement of the prosecutrix made before the SubDivisional Judicial Magistrate on 27.5.1994.
19. Another clinching factor is that within just only a span of one day she comes out with factum of rape committed on her.
She was examined by the doctor on 26.5.1994 and by that time the doctor had not given any inclination regarding rape and waited for the report of Forensic Science Laboratory, which reached subsequently after many days. There was no time with State Vs. Usha @ Munni and others SC No.245/2007 the complainant side to coin a story of rape in the short period of 24 hours. This rather indicates that even if in Ex.DA the initial statement recorded by SI Mange Ram, the factum of rape has not been brought forward by the prosecutrix, this would not be taken as a circumstance to throw out the case of the prosecution in its entirety so far as charge of Section 376 IPC is concerned. At the same time, it can be very well comprehend that the prosecutrix, who was just a child of 1314 years, could not describe the entire incident to the police or even to her father when she was apprehended with Prem Singh appellant at the bus stand. She could be perturbed also at that time. The prosecutrix might have disclosed everything to her father subsequently and thereafter the Investigating Officer took her to the SubDivisional Judicial Magistrate for getting recorded her statement under Section 164 Cr.P.C. This probably appears to be the reason that the factum of rape could not appear in the initial statement Ex.DA. The judgment cited by the learned counsel for the appellants in State of Haryana v. Matru alias Ved Parkash's case (supra) is distinguishable on facts and does not come to the rescue of the appellants at all.
20. It is a well known fact and well recognized by judicial pronouncements that in our Indian society, any such occurrence of rape casts a stigma on the woman and her family members. So, in our society, it is highly improbable that the father of any girl or woman would make false imputation that she has been raped. An unmarried girl is always aware that it would be difficult to find a suitable match from the respectable family once the allegation of rape has been publicised. Wild allegations of rape cannot be raised just for nothing. They inevitably lead to mental torture and sufferings of the woman and her family involved. The victim would feel extremely embarrassed or ashamed on account of upbringing in a traditional bound society where by and large sex is a taboo. It is also clear by now on the basis of authoritative judgments that the testimony of the prosecutrix in a rape case carries considerable weight and there is no rule that her testimony cannot be acted upon without corroboration in material particulars."
Again the observation made in AIR 1996 Supreme Court 1393 (1) that:
".......It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex of crimes. We must remembers that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as State Vs. Usha @ Munni and others SC No.245/2007 physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal in nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecution inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration, required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
In another case of S. Ramakrishna Vs. The State 2008 (11) JT 635, the Apex Court while delivering this judgment also observed:
"10. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Indian Evidence Act, 1872 (In short "the Evidence Act") nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence "
34.Since the present was registered on the complaint of prosecutrix and in her examination before the court prosecutrix had stated to be age of 14 years and school leaving certificate also shows date of birth of prosecutrix as 07.11.1993 and she further deposed that accused had State Vs. Usha @ Munni and others SC No.245/2007 committed rape upon her. Even medical reports shows that prosecutrix was running with accused Suraj and this report further suggest that there is history of physical contact with accused Suraj twice. Since, the age of prosecutrix is 14 years as per school leaving certificate. Hence, I find that accused Suraj has committed rape upon prosecutrix without her consent.
35.Accused Usha @ Munni has examined in her defence herself as DW1 wherein she had deposed that the present case was registered on the fact that brother of prosecutrix had taken away her daughter Mamta. Her examination has no relevance as case belongs to rape on prosecutrix aged below 16 years.
36.Since accused Usha @ Munni and Rahis are only the witness to the marriage of prosecutrix and accused Suraj and no role towards these accused persons have been assigned either by prosecution or by prosecutrix, no further evidence could come on record to hold these State Vs. Usha @ Munni and others SC No.245/2007 two accused persons guilty under the charges of section 109/376/34 IPC. Accordingly, accused persons namely Usha @ Munni and Rahis are acquitted from the charges. In terms of directions of Hon'ble High Court of Delhi accused persons namely Munni @ Usha and Rahis are directed to execute bail bond in sum of Rs.20,000/ each with one surety in the like amount for the period of six months.
37.Accordingly, this court hold that prosecution had proved its charges u/s 363/366/376 IPC against accused Suraj. Accordingly, this court convict accused Suraj for the offence u/s 363/366/376 IPC. ANNOUNCED IN THE OPEN COURT ON THIS 24.02.2011 (RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI State Vs. Usha @ Munni and others SC No.245/2007 IN THE COURT OF SH. RAMESH KUMAR - II, LD.
ADDITIONAL SESSIONS JUDGE - 0I : North East / KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0484902007
Sessions Case No. 245/2007
FIR No. 331/2007
State Vs Suraj s/o Satpal, r/o House
No.100, BBlock, Gali
No.2A, Rajeev Nagar, Harsh
Vihar, Delhi.
Police Station Nand Nagri
Under Section 363/376/366 IPC
ORDER ON SENTENCE:
26.02.2011
Pre: Ld. APP for the state.
Convict Suraj is in JC.
Sh. H. Rehman, counsel for convict.
Arguments heard. Ld. APP submits that since accused has committed rape upon minor girl has damaged the reputation of her family and spoiled the life of minor girl. Ld. APP further submits that since prosecution has proved its case against convict Suraj. He be awarded severe punishment to teach lesson to such rapists and to put barrier on crime against woman in the society.
On the other hand ld. Counsel for convict prayed that convict Suraj is State Vs. Usha @ Munni and others SC No.245/2007 in JC since inception of this case and facing trial. Ld. Counsel further stated that convict belongs to a poor family and is young boy of 24 years and having responsibility of his old aged mother who needs the support of convict in this age and Ld. Counsel request for lenient view and request for minimum sentence against the convict.
Keeping in view the present scenario and the fact that the accused was of 20 years old at the time of commission of offence and since prosecutrix has also been married somewhere else and convict is having responsibility of his old aged mother and conviction of seven years shall meet the ends of justice for offence u/s 376 IPC and five years for offence u/s 363 IPC and five years for offence u/s 366 IPC.
Accordingly, convict is sentenced to undergo five years simple imprisonment for the offence u/s 363 IPC ; first two years of rigorous imprisonment and thereafter, five years of simple imprisonment for the offence u/s 376 IPC and five years simple imprisonment for offence u/s 366 IPC and to pay a fine of Rs.1000/ and in default further to undergo one month simple Imprisonment.
All above mentioned sentences awarded under section 376/366/363 IPC shall run concurrently. Benefit of Section 428 Cr. P. C. be given to the convict. Fine Paid. Orders accordingly.
File be consigned to record room.
ANNOUNCED IN THE OPEN
COURT ON THIS 26.02.2011 (RAMESH KUMARII)
ADDL. SESSIONS JUDGE01/NORTH EAST
KARKARDOOMA COURTS: DELHI
State Vs. Usha @ Munni and others
SC No.245/2007
Accordingly, I sentence the convict for the
offence u/s 363 IPC to undergo 3 years R.I.
and to pay a fine of Rs.3000/- in default he
shall further to undergo one month R.I.
I sentence the convict for the offence u/s
354 IPC to undergo 1 ½ years R.I.
I sentence the convict for the offence u/s
342 IPC to undergo 3 months R.I.
I sentence the accused for the offence u/s
506 IPC to undergo 6 months R.I.
Benefit of section 428 Cr. PC be also given to
the convict.
All the sentences shall run concurrently.
State Vs. Usha @ Munni and others
SC No.245/2007