Delhi District Court
State vs Binesh Kumar, Fir No.298/11, Sc ... on 13 January, 2014
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IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGE01: NORTH: ROHINI:DELHI
S. C. NO:41/13.
FIR NO:298/11.
PS : SHAHBAD DAIRY.
U/S:376 (2) (F) IPC.
STATE
VERSUS
BINESH KUMAR S/O. SHIV SHIV CHARAN
R/O. H.NO.231 (HOUSE OF ASHOK), VILLAGE
HOLAMBI KALAN, DELHI.
ORDER ON SENTENCE
13.01.2014
Present: Shri A.K. Gupta, ld. Addl. PP for the State.
Convict Binesh Kumar is produced from JC.
Ms. Neelam Singh, Ld. DLSA Counsel for convict.
1. Vide Judgment dated 10.01.2014 Convict Binesh Kumar
has been convicted for offence u/s. 376 (2) (f) IPC.
2. It is submitted by the ld. DLSA Counsel for the convict
that, convict Binesh Kumar is aged about 26 years and having two
minor children aged 5 years and 2 ½. She further submitted that
accused has old aged parents and illiterate and unemployed wife to
look after and he is the only bread winner of his family. He is in JC
STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 1 of page 31
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since 27.08.2011 i.e. more than two years. He is not involved in any
other criminal activities and or convicted previously in any other case.
Now his family have been facing financial problem. Being in Jail he
could not prove his case in his favour. Therefore, lenient view may
kindly be taken.
3. It is argued by the ld. Addl. PP for the State that convicts
has committed rape with a minor girl of less than 10 years of age at the
time of incident, who was cousin sister (daughter of maternal uncle) of
the accused persons and who was brought to their house by the
parents of the accused persons, as her father expired and her mother
remarried. Thus they have not only ruined her life, but has also broken
the sanctity of relationship. Hence, the convicts deserves no leniency
and they should be convicted for maximum sentence under the
statute.
4. I have considered the rival submissions.
5. It has been held by the Hon'ble Supreme Court of India in
para no.17 of the Judgment "State vs Karnataka Vs. Krishnappa AIR
2000 SC 1470"
"........The measure of punishment in a case
of rape cannot depend upon the social status
of the victim or the accused. It must depend
upon the conduct of the accused, the stage
and age of sexually assaulted female and
gravity of the criminal act. Crimes of violence
STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 2 of page 31
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upon women need to be severally dealt with.
Socioeconomic, status, religion, race, caste
or creed of the accused or the victim are
irrelevant consideration in sentencing the
policy. Protection of society and deterring the
criminal is the avowed object of law 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 the 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, therefore, imposition of proper
sentence by the court......."
6. I am agree with the contention of the ld. Addl. PP for the
State that the act of convict are quite grave as he has committed rape
with a young girl of less than 10 years of age and left the scar which
will remain with her throughout her life. Such kind of offence are
increasing in the society, but at the same time, I cannot loose the sight
that, Convict has a wife and old parents to look after, therefore, taking
into accounts aggravating and mitigating circumstances, I sentence
the convict Binesh Kumar for Ten years Rigorous Imprisonment under
Section 376 (2) (f) IPC with fine of Rs.5,000/ and in default of
payment of fine, he shall further undergo Simple Imprisonment for Six
STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 3 of page 31
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months.
8. The convict shall be entitled for benefit of Section 428
Cr.P.C. A copy of Judgment and that of order on sentence be provided
to the Convict. File be consigned to record room.
Announced in the open court (SANJEEV KUMAR)
On 13.01.2014 Addl. Sessions Judge
Rohini Courts: Delhi.
STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 4 of page 31
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IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGE01: NORTH: ROHINI:DELHI
S. C. NO:41/13.
FIR NO:298/11.
PS : SHAHBAD DAIRY.
U/S:376 (2) (F) IPC.
STATE
VERSUS
BINESH KUMAR S/O. SHIV SHIV CHARAN
R/O. H.NO.231 (HOUSE OF ASHOK), VILLAGE
HOLAMBI KALAN, DELHI.
Date of Institution:12.12.2011
Date of Argument :22.10.2013
Date of Decision :10.01.2014
JUDGMENT
1. The brief facts of the prosecution case are that, on 26.08.2011 an information received from Phone number 69919263 that, rape has been committed with a girl at main road near dispensary near Government School, Holambi Kalan and DD No.26PP, Metro Vihar, PS Shahbad Dairy was recorded in this regard. The said DD was assigned to SI Mahender Pratap, who reached at the spot and met with prosecutrix S (name of the prosecutrix withheld) and she informed that wrong act has been committed with her. SI Mahender Pratap got her medically examined at M.B. Hospital and thereafter recorded statement of the prosecutrix, in which she had stated that on STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 5 of page 31 -:6:- 25.08.2011 at about 8pm, Binesh (accused) her neighbourer came to her house and took her into the bathroom and after pressing her mouth, he committed rape with her. SI Mahender Pratap made endorsement on the statement and recommended for registration of case under Section 376 IPC and accordingly FIR of the present case was registered. He prepared the site plan at the instance of the complainant, seized the cloth of the prosecutrix S, recorded statement of the public witnesses Meena. Thereafter, he arrested the accused Binesh Kumar, accused pointed out the spot where he committed rape with the prosecutrix. During investigation IO recorded statement of the mother of the prosecutrix and other witnesses, collected the age proof from the school of the prosecutrix S and sent the exhibits to the FSL and after completion of the investigations filed the chargesheet u/s. 376 (2) (f) IPC and accused was put to trial.
2. After compliance of provisions of Section 207 Cr. P. C, Ld. MM committed the case to the Sessions Court as the case was exclusively triable by Sessions Court and was assigned to this Court by the Ld. Sessions Judge.
3. Vide order dated 13.01.2012 charge under section 376 (2)
(f) IPC was framed against accused, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined 19 witnesses i.e. PW1/prosecutrix S, PW2 Dr. H.C. Healer, PW3 HC STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 6 of page 31 -:7:- Anand Singh, PW4 Dr. N.S. Khurana, PW5 WCT Sheetal, PW6 ASI Sudesh Pal, PW7 HC Anand, PW8 Dr. Alok goel, PW9 Dr. Sunita Rani, PW10 WCT Sudesh, PW11 Ct. Ram Kishore, PW12 Ct. Dharampal, PW13 Ct. Kashmiri Lal, PW14 SI Ajay Yadav, PW15 Smt. Kazal, PW16 Raghvinder Singh Rana (Principal), PW17 Smt. Sushila, PW18 Smt. Meena and PW19 SI Mahender Pratap.
5. After completion of prosecution evidence, statement of accused was recorded under section 313 Cr. P. C. and all the incriminating evidence was put to him and denied all the incriminating evidence and stated that he has been falsely implicated in this case with malafide intentions to grab away his money Rs.30,000/ of committee by the father of the prosecutrix.
6. Arguments were heard from Sh. A. K. Gupta, Ld. APP for the State and Ms. Neelam Singh, ld. DLSA Counsel for the accused. It is argued by Shri A.K. Gupta, ld. Addl. PP for the State that, from the testimony of PW1 i.e. prosecutrix S, it is proved beyond reasonable doubt that accused had taken her to the bath room of the neighbourer's house and where he committed rape with the prosecutrix. He further argued that his testimony duly corroborated by her MLC as well as testimony of other witness. Therefore, accused is liable to be convicted.
7. On the other hand, ld. DLSA Counsel for the accused has argued that there are log of contradictions in the testimonies of PW1 STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 7 of page 31 -:8:- and other witnesses which creates doubt about the veracity about the statement and further argued that there is delay of two days in registration of FIR, which also proved that, story of the prosecution is concocted to implicate the accused. She further argued that there is no scientific evidence against the accused to connect him with the crime. Therefore, in these circumstances, accused is entitled to be acquitted.
8. I have heard the arguments and also gone through the record. The case of the prosecution is that accused committed rape with 'S'. Proseution has examined 19 witnesses to prove the case. Their brief testimonies is discussed as under:
PW1 is the prosecutrix S. She has testified that on 25.08.2011 she alongwith her younger sisters were present in the house and her elder had gone to the shop run by her mother. Her father was not well and he was admitted in the hospital and her mother has also gone to look after her father in the hospital and at about 8pm her uncle Binesh Kumar i.e. accused, who resides in the next gali of her house came to her house and took her in his lap after putting a patti on her mouth and took her in the bathroom, where he removed her panty and put his urinating organ inside her urinating organ and bleeding started in her private part. Accused threatened her that if she will raise alarm, he will kill her. When she raised alarm her mouth was pressed by the accused. She further testified that because of the STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 8 of page 31 -:9:- bleeding her pant was stained and she tried to washed off the stains.
Accused has left her in her house. In the meanwhile her aunty Meena came to her house, but she did not state to her anything due to fear. Next day, she narrated the entire incident to her mother and who reported the matter to the police thereafter, she alongwith Mausi went to the PS where police recorded her statement Ex.PW1/A and police took her to the hospital and got her medically examined. Her cloth was also taken by the concerned doctor. Later on, she gave her panty and frock to the police and police also seized the same. She further identified her shirt as Ex.P1 and shirt as Ex.P2 and her frock as Ex.P3. She was cross examined at length by ld. DLSA Counsel for accused.
In her crossexamination she stated that she was alone in the house on the day of incident. Her mother has left in the morning. Incident happened at 7pm. She further stated that her sister came back to the house after some time of the incident and other two sisters were at the shop. She further stated that she had told to her elder sister about the incident, when she returned to the home. Her mother came to the house on next morning.
PW2 Dr. C. Healer deposed that on 27.08. 2011 he examined the prosecutrix S and prepared wrote portion of MLC from point A to A1 of Ex.PW2/A. PW3 HC Anand Singh is the MHC(M).
PW4 Dr. N.S. Khurana has deposed that on 27.08.2011 he STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 9 of page 31 -:10:- medically examined the accused Binesh Kumar and prepared his MLC Ex.PW4/A. PW5 WCT. Sheetal is a formal witness and she deposed that on 26.08.11 she was posted in PHQ and at about 7.30 pm received information of rape with a girl near dispensary Govt. School, Holambi Kalan and she recorded the information in the computer and she proved PCR Form Ex.PW5/A in this regard. In her cross examination she stated that she do not know name of caller as she did not ask nor caller told.
PW6 ASI Sudesh Pal is the duty officer and is formal witness ae he only recorded FIR of the present case as Ex.PW6/A. PW7 HC Anand in also PW3 and examined twice inadvertently.Se proved register containing entry of deposit of case property as EXPW7/A,EXPW7/B,EXPW7/C and entry of sending the case property to FSLas EXPW7/D and acknowledgment receipt of deposit of case property as EXPW7/E. PW8 Dr. Alok goel is a formal witness as he only proved the documents of the admission of the father of the prosecution S into the Sharda hospital at Narela from 23.8.11 to 27 as EXPW8/B to EXPW8/D. PW9 Dr. Sunita Rani had appeared on behalf of Dr. Vinita and deposed that MLC of the prosecutrix Ex.PW2/A is prepared by Dr. Vinita.
STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 10 of page 31 -:11:- PW10 WCT Sudesh had participated in the investigations with the IO. She deposed that on 27.08.2011 she was called at PP Metro Vihar, where a girl/prosecutrix S was found alongwith her Maushi Sushila and she alongwith IO took her for her medical examination at M.B. Hospital, where S was medically examined. She procured her MLC and handed over to IO. In her crossexamination she stated that she received information at 8.30 pm and prosecutrix was medically examined at 12.26 am.
PW11 Ct. Ram Kishore had deposed that on 27.08.2011, he went to M.B. Hospital where he collected one sealed pullanda sealed with the seal of MS MV Hospital belonging to the prosecutrix and handed over to the IO and IO had seized the same vide memo Ex.PW11/A. PW12 Ct. Dharampal is also participated in the investigations with the IO. He deposed that on 27.08.2011 he alongwith IO SI Mahender Pratap went to the spot, there one girl namely S alongwith her maternal aunty met them and informed that, she was raped by one Binesh Kumar. They called lady Ct. Sudesh and she took S for medical examination at MB Hospital. They took accused Binesh Kumar at MB Hospital and got him medically examined thereafter they returned to the PS. In the meanwhile Ct. Sudesh also returned there. Thereafter accused Binesh was arrested by the IO and at the spot frock of the prosecutrix was seized by the IO vide memo Ex.PW12/A. STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 11 of page 31 -:12:- Statement of the prosecutrix was recorded in the PS after returning from hospital and thereafter IO got registered the FIR and thereafter they reached at the spot and IO prepared the site plan, accused was apprehended and interrogated and he made disclosure statement as Ex.PW12/B. He identified the frock of the prosecutrix S as Ex.P3.
In his cross examination, he stated that in his presence, IO had recorded statement of the Nazma at the spot and had not recorded statement of any other person in the PS in his presence.
PW13 Ct. Kashmiri Lal is formal witness as his DD writer at PP metro Vihar and deposed that he recorded DD no.26 EXPW13/A on 26.08.2011.
PW14 SI Ajay Yadav is the subsequent IO of the case. He deposed that on 16.11.2011 the exhibits of the present case have been deposited in the FSL through Ct. Ram Kishore and after completion of the investigation he had filed the chargesheet. He was not cross examined.
PW15 Smt. Kazal is the mother of the prosecutrix S. She deposed that on 26.08.2011 in the morning, she came to her house from hospital where her husband was admitted and her daughter Chanda Rani had told to her that accused Binesh committed rape with her daughter. She made inquiries from S and she told that accused took her in the bathroom and had committed rape with her on 25.08.2011. thereafter, she told the said facts to her sister and her STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 12 of page 31 -:13:- sister made a call to police on 100 number and since her husband was admitted in the hospital.
In her cross examination, she had stated that she is not aware whether her husband was putting/organizing any committee (pooling of the money by the members) and she also not aware that under the committee, accused Binesh Kumar was to take the money of his committee amounting to Rs.30,000/ from her husband and her husband refused to give his committee money. She was also not aware that accused Binesh had put two committees of Rs.30,000/ each. She denied the suggestion that she was deposing falsely.
PW16 Raghvinder Singh Rana is the Principal of the Government school where prosecutrix S was studying and he deposed that, Prosecutrix S D/o. Sh. Bechan Paswan and Smt. Kajal Devi was admitted in the school and as per school on 22.7.07 vide admission st No. 1952 in class 1 and as per their record date of birth of prosecutrix S is 10.01.2002. He proved the photocopy of the Admission Register as Ex.PW16/A and photocopy of affidavit is Ex.PW16/B and photocopy of admission record Ex.PW16/C. PW17 Smt. Sushila is the maternal aunt of the prosecutrix S and she had deposed that in the month of August 2011 she had gone to house of her sister Kajal and when she reached there she saw that lot of public persons gathered outside the house of her sister and public persons had apprehended accused Binesh and daughter his STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 13 of page 31 -:14:- sister namely S was lying unconscious condition and people stated that accused has committed wrong act with S on the previous day in the evening. They made a call to police on 100 number and police came there and interrogated S and also inquired from the people gathered there. Police took her and S to the PS and got medically examined S from MB Hospital and she had also accompanied S. Thereafter they were sent to their house. Accused was also taken to the PS by the police. Police investigated the spot where S was sexually assaulted by the accused. Police took the from of the S from the bathroom of the house of her sister.
In her cross examination, she denied the suggestion that she had gone to the house of her sister 23 days prior to the incident. She also denied the suggestion that she had gone there to cook food for the children in absence of her sister as all the children were school going and minor and they do not know how to cook or that in connivance of her sister and brother in law falsely implicated the accused. She further denied the suggestion that accused and parent of prosecutrix S were having disputes over amount of Rs.34,000/ of accused which he had put in the committee and due to said reason they are falsely implicated the accused in this case.
PW18 Smt. Meena had also deposed that, she was residing in the tenant house at Holambi Kalan as S is residing in her neighbourhood, who was 8 years old girl. She further deposed that on STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 14 of page 31 -:15:- 25.08.2011 at 8pm, she saw accused Binesh Kumar who was residing in her neighbourhood house coming out from the bathroom of her house, the bathroom in her house is common, as the same was used by all the tenants and he was tying his pant and he ran away towards his house. After few second, S also came out from the said bathroom and she was wearing frock and she was not wearing her panty at that time. She further deposed that on 26.08.2011 mother of the prosecutrix S met her and told that, accused Binesh had committed sex with her. Then ,she also told her that, she had seen accused and prosecutrix S were coming out from the bathroom of her house. Police came and inquired from her and again on 27.08.2011 police came and recorded her statement. She further stated that accused was arrested at her instance vide memo Ex.PW12/A and his personal search was taken vide memo Ex.PW18/A. In his cross examination, she had stated that she had given twice statement to the police on 26.08.2011 and 27.08.2011. She further stated that police came in morning again said in the evening at 7pm. She was confronted with her statement told to the police that, she further stated prosecutrix S was wearing frock but not wearing her panty.
PW19 SI Mahender Pratap is the IO of the case.
9. The accused has been charged for offence under section. 376(2)(f) IPC i.e. committing a sexual intercourse with a girl of less than 12 years of age. So first of all it would be appropriate to see STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 15 of page 31 -:16:- whether prosecutrix was less than 12 years on the day of incident or not. As per judgment of Jarnail Singh Vs. State of Haryana, 2013 VII AD (SC) 313 it is held that the rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 to determine the age will be applicable in cases of victim also where victim is a child. The relevant portion of the judgment is reproduced as below:
20. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The afore stated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred herein above read as under:
"12. Procedure to be followed in determination of age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 16 of page 31 -:17:- available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) The matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee for the reasons to be recorded by them, may, if considered necessary, given benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 17 of page 31 -:18:- as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regard such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any or the conclusive proof specified in subrule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in subrule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those dispose off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 18 of page 31 -:19:- interest of juvenile in conflict with law."
Even though, rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW - PW6
10. PW16 Ravinder Singh Rana, Principal, MC Primary School, Holambi Kalan had testified that, S daughter of Bechan Paswan and Kajal Devi was admitted in their school on 22.06.2007 st vide admission register at serial no. 1952 in 1 class and as per their record her date of birth is 10.01.2002. He proved the admission register as Ex.PW16/A, affidavit of the father of the S as Ex.PW16/B and admission form of the prosecutrix as Ex.PW16/C. In all these three documents age of the prosecutrix S is mentioned as 1001.2002. Nothing much has come out in her cross examination. I do not see any reason why the wrong date of birth is to be given by the father of the prosecutrix at the time of her admission, which was done away back in the year 2002. Hence, in view of aforesaid fact, I held that prosecution has been able to prove that age of the prosecutrix was 10.01.2002 and the date of incident was 25.08.2011 and thus age of the prosecutrix STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 19 of page 31 -:20:- comes to 9 years, 7 months and 15 days and she was below 12 years of age on the day of incident.
11. The rape has been defined under Section 375 IPC is as under:
375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse 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.
12. Star witness of the case is PW1 / prosecutrix S who is a child witness. She has testified that on 25.08.2011 she alongwith her younger sister were present in the house and her elder had gone STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 20 of page 31 -:21:- to the shop run by her mother. Her father was not well and he was admitted in the hospital and her mother has also gone to look after her father in the hospital and at about 8pm her uncle Binesh Kumar i.e. accused, who resides in the next gali of her house came to her house and took her in his lap after putting a patti on her mouth and took her in the bathroom, where he removed her panty and put his urinating organ inside her urinating organ and bleeding started in her private part. Accused threatened her that if she will raise alarm, he will kill her.
When she raised alarm her mouth was pressed by the accused. She further testified that because of the bleeding her pant was stained and she tried to washed off the stains. Accused has left her in her house. In the meanwhile her aunty Meena came to her house, but she did not state to her anything due to fear. Next day, she narrated the entire incident to her mother and who reported the matter to the police thereafter, she alongwith Mausi went to the PS where police recorded her statement Ex.PW1/A and police took her to the hospital and got her medically examined. Her cloth was also taken by the concerned doctor. Later on, she gave her panty and frock to the police and police also seized the same. She further identified her shirt as Ex.P1 and shirt as Ex.P2 and her frock as Ex.P3.
13. Though, ld. DLSA Counsel has pointed out contradictions in her testimony as in her examination in chief, such as th she was studying in class 4 class then in her cross examination, STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 21 of page 31 -:22:- th she had stated that she was studying in class 5 at the time of incident. But, in my, that is not material contradiction as witness is a small child and forget to calculate in which class she was studying as she was cross examined after two years. The another contradiction pointed out by Ld. Counsel that she had stated in her examination in chief that, she alongwith her younger sister were at house, but in her cross examination she stated that she was alone in the house at the time of incident but in my view she has explained in her cross examination that her younger sister gone to the shop in the afternoon and came back to the shop in the afternoon. As far as the contradiction that that accused came at 8pm where in her cross examination she had stated that accused came at 7pm or that she stated that, Meena aunty came to her house, but in her cross examination, she stated that no aunty had come to her house or that she stated that accused had never visited to her house prior to the day of incident, but she was confronted with her statement Ex.PW1/A where she had deposed that accused used to visit their house to meet her father are in my view are minor contradiction. As far as the contention of Ld. Defense Counsel that victim had stated that on the next day of incident i.e. 26.08.2011 she had gone to the school, which means nothing has happened with her, otherwise, she would not have gone to the school I do not find any anything unusual in it. If she had gone to school on next morning of incident it cannot be said that no STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 22 of page 31 -:23:- rape is committed with her.
14. As far as the contention of Ld. DLSA Counsel that prosecution has not examined her elder sister in evidence to prove that she told the said facts to her but in my view though prosecution should have examined her sister and that is a lapse on the part of IO but in my view on this ground testimony of PW1 cannot be discarded. As far as another contention that S told that when she told the incident to her elder about the incident, one Krishan uncle came alongwith Ashok Bhaiya and Billu uncle have come, but those persons have also not been cited as witness to corroborate her testimony but in my view examination of those witness was not necessary had not told them about the incident. Hence, in these circumstances, in my view nothing much has come out in the crossexamination to disbelieve her testimony. All most similar fact has been deposed by her in his statement EXPW1/A. Hence I found testimony of the prosecutrix cogent, trustworthy and reliable no good reasons to discard the testimony of the prosecutrix.
15. I am agree with the contention of Ld. APP that in a rape case, conviction can be made on the sole testimony of victim. In this regard, I rely upon Madho Ram and another V The State of U.P., AIR 1973 SC 469 wherein it was held as under : [T] the prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasized that STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 23 of page 31 -:24:- Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand.
16. It was further held in case Bharwada Bhoginbhai Hirjibhai V State of Gujarat, AIR 1983 SC 753(1) as under : Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society.
STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 24 of page 31 -:25:- On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sexoffence is entitled to great weight, absence of corroboration not withstanding. And while corroboration in the form of eyewitness account of an independent witness may often be forthcoming.
Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having leveled such an accusation on account of the instinct of self
- preservation, or when the 'probabilities factor' is found to be out of tune.
17. The Supreme Court in case State of Maharashtra V Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 summarized the legal position in following words : "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 Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 25 of page 31 -:26:- competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 26 of page 31 -:27:- circumstances appearing on the record of the false case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence".
18. Law relating to the testimony of prosecutrix is also discussed in the case of 'Wahid Khan Vs. State of Jharkhand' (2010) 2 SCC 9. "The law on the point is now too well settled. No doubt, it is true that Dr. B. Biswas, who had initially conducted the medical examination of the prosecutrix, has not appeared on behalf of the prosecution to depose. But, that alone is not sufficient to discard the prosecution story. Corroboration is not the sine qua non for conviction in a rape case".
19. It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 27 of page 31 -:28:- society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are. In Lal Babu Sahni vs State (Govt. of NCT of Delhi) Crl. Appeal no.1149/2012 dt.30.01.2013 Hon. Ble Justice SP Garg has held " in a case of rape, testimony of a prosecutrix stands at par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible.". In the case of 'Bhupinder Sharma vs. State of Himachal Pradesh' AIR2003 SC 4684, it was held, To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell woman that her chain of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. (See State of Maharashtra Vs. Chandra Prakash Kewalchand Jain, AIR 1990 SC 658).Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance."
20. Even if we look for corroboration, the MLC of the STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 28 of page 31 -:29:- S Dr. C. Healer, the prosecutrix S was examined by him on 27.08.2011 and he referred her to Senior Gynae. Further, Dr. Vinita, SR has examined her and gave her finding on the MLC from point C to C1 which is deposed by PW9 Dr. Sunita Rani. As per the finding of Dr. Vinita, prosecutrix's hymen was found ruptured (torn). It cannot be ruled out that her hymen was torn due to sexual intercourse.
21. Further, as per the FSL Report Ex.PX they human blood was found on her underwear (panty). The report of the FSL has not been disputed by the ld. DLSA counsel. Hence, FSL Report corroborate testimony of PW1 that when accused had committed rape with her, blood came out from her vaginal portion.
22. PW18 Smt. Meena has also corroborated testimony of PW1. PW18 had testified that on 25.08.2011 at about 8pm, she saw accused Binesh Kumar coming out from the bathroom of her house. Accused was having opened/untied pant at that time and he ran away towards his house and further stated that after sometime complainant also came out from the said house and she was wearing frock and was not wearing panty at that time and she wore the same and went away. Nothing much has come out in her cross examination. She is an independent STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 29 of page 31 -:30:- witness. I do not see any reason why she will depose falsely against the accused, who is also her neighbourer like the prosecutrix's mother.
23. Further her testimony also corroborated with statement of PW15 Smt. Kajal, mother of the prosecutrix, who had deposed that on 26.08.2011 when she had gone to home, her elder daughter had told her that accused had committed rape with her daughter/prosecutrix S on 25.08.2011 and she made inquiries from the S and S also told the same fact. She called her sister who informed to the police. Nothing much has come in her cross examination to disbelieve her testimony.
24. PW17 Smt. Sushila, maternal aunt of the prosecutrix S also deposed that in the month of August 2011, she came to house of her sister and found that daughter of her sister lying unconscious and she came to know that accused had committed wrong act with S on the previous day. They made a call to police on 100 number and police came and took the prosecutrix to M.V. Hospital. She also accompanied and where prosecutrix was medically examined and thereafter accused was taken to the PS by the police.
Nothing much has come out in her cross examination. She has specifically denied that she was present at STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 30 of page 31 -:31:- the house 23 days prior to the incident came there to cook food for the children of her sister in her absence. PW10 WCT. Sudesh, PW12 Ct. Dharampal and PW19 SI Mahender Pratap are not material witnesses and their testimonies are only formal in nature as they had participated in the investigation.
25. As far as contention of ld. DLSA Counsel that, in lodging the FIR is concerned, in my view, same is fully explained because mother of the S was not at home and she came on the next morning and informed her sister i.e. PW17 Sushila, who came in the evening. Hence, in my view delay of one day in lodging complaint is not fatal to the prosecution.
26. Hence, considering the testimony of Prosecutrix 'S', which is duly corroborated by testimony of other witnesses, I held that prosecution has been able to prove beyond reasonable doubt that accused had committed rape with prosecutrix S, a girl less than 12 years of age. Therefore, Accused Binesh Kumar stands convicted for offence punishable u/s. 376 (2) (f) IPC. Now to come up for order on sentence.
ANNOUNCED IN OPEN COURT (SANJEEV KUMAR)
ON 10.01.2014. ADDL. SESSIONS JUDGE 01
(NORTH):ROHINI:DELHI.
STATE VS BINESH KUMAR, FIR NO.298/11, SC NO.41/13, PS - SHAHBAD DAIRY, U/S. 376 (2) (F) IPC page 31 of page 31