Delhi District Court
State vs Turi Ram on 3 March, 2007
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IN THE COURT OF SH. NARINDER KUMAR
ADDL SESSIONS JUDGE : FAST TRACK COURTS
ROHINI : DELHI
SC No. SC No.169/06 dated 29.07.06
Date of Decision: 03.03.2007
STATE
Versus
TURI RAM
S/o Bansi
R/o Q6-133, Mangolpuri,
Delhi-110 002.
FIR No. 278/06
PS Mangol Puri
U/s. 354,376,377 and 506 IPC
JUDGMENT
1. On 28.04.06 at about 9 a.m, Turi Ram (accused) is alleged to have committed rape on the prosecutrix and also subjected her to carnal intercourse and then criminally intimidated her and her father with death. The occurrence is alleged to have taken place at the house of the accused situated in Mangolpuri, Delhi.
2. Case was registered on the statement made by Sh. Lalta Prasad, father of the prosecutrix. In brief case of prosecution is that on 28.04.06 at about 7.30 am, prosecutrix, female child, aged about 10 years, went to her school. At about 8.30 am, she returned -2- home as her teacher asked her to bring chart paper. The prosecutrix took money and left her house to buy chart paper. When she reached near house of accused, he called her but she refused to go to him. The accused then took the prosecutrix to his house and did commit carnal intercourse - an unnatural offence with her in the room of his house by putting his genital in her mouth. The prosecutrix tried to cry but accused threatened her with a knife and pressed her mouth. Thereafter, once again he did commit unnatural offence with her.
3. Lalta Prashad, father of prosecutrix reached there and witnessed the accused indulging in that unnatural offence with his daughter. He brought his daughter out of the room and asked accused to come out of the house but he made good escape from the street with a towel wrapped around his waist.
4. Lalta Prasad informed PCR staff at No.100 whereupon PCR staff reached there. Police of police station Mangolpuri also received a call from Wireless Operator on 28.04.06 about commission of a wrong act with a girl at H.No. Q5/155, Mangolpuri, Delhi, whereupon DD entry No. 23B was recorded by Ct. Rajnish and assigned to ASI Kewal Singh who accompanied by Ct. Akhtar Ali reached in front of H.No. Q5/155, Mangolpuri, Delhi, where Lalta Prasad, complainant met them in the company of his daughter and made statement. That is how, present case came to be registered. The ASI prepared rough site plan of the place of occurrence at the -3- pointing out of father of the prosecutrix. Lady Head Constable Darshana was called by ASI Kewal Singh to spot. The prosecutrix accompanied by lady HC and Ct. Akhtar Ali reached SGM hospital where she was medico legally examined. Dr. Brij Singh medico legally examined the prosecutrix and submitted report. Dr. Mamta Sharma of SGM hospital also medico legally examined the prosecutrix. Three parcels sealed with the seal of the hospital were handed over by doctor to ASI kewal Singh and the latter seized the same and on return to the police station, deposited the same in the malkhana. The ASI also recorded statements of the prosecutrix and that of her mother and also added offences U/s. 376 and 377 IPC.
6. On 05.05.06 accused was arrested when he surrendered in the court of Mr. Deepak Garg, MM, Delhi. He was then sent to SGM hospital. When he was medico legally examined by Dr. P.C. Prashar. After medico legal examination, doctor handed over to ASI Kewal Singh a parcel containing your blood sample and sample seal and the ASI seized the same and deposited the same with the MHC(M). On 06.06.06, Sh. Bhupesh Kumar, MM recorded statement of the prosecutrix U/s. 164 CrPC. Case property deposited in the malkhana was sent to FSL through SI Uma Dutt vide RC No. 155/21 for analysis whereupon reports were received. Certificate issued by Smt. Mahadevi, Principal, MCD Primary School, Mangolpuri, Delhi, was collected regarding age of the prosecutrix.
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6. After compliance with provisions of Section 207 CrPC, case came to be committed to Hon'ble Court of Session. Charge for offences U/s. 376, 506 part II and 377 IPC was framed against the accused vide order dated 10.02.06. Since the accused pleaded not guilty and claimed trial, prosecution examined following 16 witnesses:
Prosecutrix has appeared in the witness box as PW12 whereas her mother and father have appeared in court as PW6 and PW9 respectively.
Medical evidence is available in the statement of PW2 Dr. Brijesh Singh, PW3 Dr. Neeti Mathur and PW4 Dr. P.C. Prabhakar.
PW7 HC Suraj Singh has been examined to prove FIR Ex.PW7/A. PW1 HC Darshan, PW5 SI Uma Dutt, PW8 Ct. Rajnish, PW10 Ct. Virender Kumar, PW13 Ct. Akhtar Ali, PW15 ASI Kewal Singh and PW16 HC Surender Kumar have deposed about investigation part of the prosecution story.
PW11 Sh. Bhupesh Kumar, concerned judicial officer has been examined to prove recording of statement of prosecutrix U/s. 164 CrPC on 06.06.06.
PW14 Smt. Maha Devi, Principal of MCD Primary School, Phase I, Mangolpuri has been examined to prove date of birth of the prosecutrix as available in the school record. -5-
7. When examined U/s. 313 CrPC, the accused denied all the incriminating circumstances appearing in evidence against him and pleaded false implication.
Defence plea put forth by the accused is reads as follows:
"Lalta Prasad had borrowed Rs. 10,000/- from me two months prior to registration of this case. Marriage of my daughter was to solemnise in May,2006. Lalta Prasad was to return the money prior thereto but he did not return. On 28.04.06, I was going for my job. The prosecutrix met me on the way and I asked her to remind her father for re- payment of the loan amount. Since I demanded the re-payment of loan amount, I have been falsely implicated."
8. Arguments heard. File perused.
9. On behalf of the State, it has been argued that prosecutrix has supported the case of prosecution and her father has corroborated her statement to an extent; that the case was registered without delay; that medical evidence also supports the version narrated by the prosecutrix, and as such accused is liable to be convicted and sentenced.
10. On the other hand on behalf of the accused, it has been argued that there are material improvements and contradictions in the statements of the prosecutrix, her parents and the statements of police officials on material aspects of the case i.e. place of -6- occurrence, the person who informed the police, the place where their statements were recorded, which make the prosecution version highly doubtful, particularly when no person from the public was associated by the Investigating Officer during the investigation and medical evidence does not support the case of prosecution.
It has also been submitted that friend of the prosecutrix, who allegedly accompanied her from school to her house has not been examined and there is no reference in the FIR lodged by father of the prosecutrix that the prosecutrix was accompanied by any friend at the time she returned from the school.
It has also been urged that no knife was recovered from the house of the prosecutrix and as such prosecution version that the accused threatened the prosecutrix and her father does not stand established.
Commission of Unnatural intercourse
11. Occurrence is alleged to have taken place on 28.4.2006 at about 9 a.m. at the house of the accused. While appearing in Court as PW12, the prosecutrix deposed that on 28.4.2006 at about 8.30 a.m, her school teacher-Madam asked her to bring chart- paper, whereupon she came to her house, collected money from her mother and accompanied by another girl named Archna started moving in street No.6. On the way, Archna left her company so as to collect money saying that her father had come. While she was -7- moving slowly in the street, the accused called her, but she did not go to him. The accused then caught hold of her hand and took her inside the house, started undressing her and then put his penis in her mouth. She tried to cry, but the accused showed her knife and shut her mouth. He again put his penis in her mouth and at that time some white liquid came in her mouth.
It is also in her statement made in Court that her father came there, whereupon the accused pushed her away; that her father asked the accused to come out and while coming out he ran away when a bike came in between.
The witness also deposed about her having made statement before Metropolitan Magistrate and her check up at Sanjay Gandhi Hospital where she was taken by her parents.
The prosecutrix has successfully stood the test of cross- examination. In her cross-examination she stated that Ms.Raj Bala, Madam, had asked her to bring Chart Paper; that she had left the school after the prayer which is over by 8 a.m. and that she reached her house at about 8.30 a.m. She further stated in her cross-examination that at the time she reached her house, her mother, father and brother Mahinder were present there; that Mahinder, student of 4th standard, used to go to school at about 1 a.m. As regards her companion Archna, the prosecutrix replied in her cross-examination that she had told her name while -8- making statement to the police. Learned defence counsel has rightly submitted that name of Archna does not find mentioned in statement Ex.PW12/A made before the police. But this fact does not throw any doubt on the statement of the prosecutrix doubtful, firstly because it is not case of prosecution that crime was committed in presence of said girl, and secondly, because in her statement Ex.PW11/A recorded under Section 164 Cr.PC on 6.6.2006 she specifically deposed about presence of a girl in her company while she was going to buy chart paper. Accused could take steps to summon attendance register of the school to show that the prosecutrix actually remained in the school on that date, but no such step was taken. Accused could also take steps to summon Madam Raj Bala-the concerned teacher of the school who had sent the prosecutrix from the school to bring chart paper. But even in this respect, no step was taken by the accused.
In order to support the statement of the prosecutrix, her father has appeared as PW9 and her mother as PW6. According to PW9, on 28.4.2006 at about 8 a.m,his daughter returned home to take chart paper as directed by her teacher; that she took one rupee from him and left the house to buy chart paper; that at that time she was accompanied by school mate Archna; that Archna returned 15/20 minutes after having departed in the company of his daughter and enquired about his daughter. It was at that time that his wife asked him to look for their daughter and as such he left in her -9- search. According to PW9, on reaching the shop, he found that his daughter was not present there and that she was not available anywhere in the street. Then, as suggested by his wife, he went to the house of accused and on entering his house he found that his daughter was sucking the genitals of the accused standing there.
Learned defence counsel has referred to statement Ex.PW9/A made by Lalta Parshad before the police wherein he stated that having come to know that his daughter had not returned home, he straightway went to the house of the accused bearing No.Q 6/133 situated in street No.6, and then referred to his statement made in Court as PW9, and pointed out that this is a material contradiction between the two, and argued that it is beyond comprehension as to why he straightway went to the house of the accused.
It is true that whereas in his chief-examination the witness deposed that he had paid one rupee to his daughter, but in cross- examination he deposed that coin was paid by his wife, whereas his wife PW6 deposed that she had paid the money to her daughter, but this contradiction cannot be said to be material. It is in the cross- examination of PW9 that at the time her daughter left the house, he was taking bath outside the house. Even according to the prosecutrix, at that time her father was taking bath in front of their house.
It is also true that under his signatures put by PW15 ASI -10- Kewal Singh while attesting statement Ex.PW9/A made by father of the prosecutrix, the ASI initially appears to have put the date as 27.4.2006, and lateron converted digit 7 of the date to digit 8, but no adverse inference against the prosecution can be drawn when it is not case of prosecution that the occurrence took place on 27.4.2006. Occurrence took place on 28.4.2006 at about 9 a.m. Statement of Lalta Parshad was recorded at about 10.05 a.m and on its basis FIR Ex.PW7/A came to be recorded at about 10.20 a.m. There is no doubt that in his statement Ex.PW9/A, Lalta Parshad stated to have gone to the house of the accused having come to know that his daughter had not returned home, but only while appearing in Court he deposed that firstly he went to the shop and having not found her there or in the street, he came back and then as suggested by his wife, he went to the house of the accused. So the witness has improved upon his previous statement on this aspect. This improvement adversely affects the version narrated by PW9, in view of his reply in the cross-examination that he never visited the house of the accused earlier and it was only the accused who used to visit their house, but to the contrary his wife-PW6 replied that accused and her husband were on visiting terms with each other even prior to her marriage and further that her husband used to visit the house of accused occasionally and similarly, the accused used to visit their house occasionally and sit at their house for about 5/10 minutes.
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According to PW9, when he entered the house of the accused, he found one plank of the door of the room lying completely closed but the other plank was not completely lying closed and there was space between the two planks. Further, according to him, on entering the room he saw his daughter having the genitals of the accused in her mouth. Had he so seen his daughter and the accused, he would have so stated before the police while making statement Ex.PW9/A, but this fact does not stand recorded therein. The witness did not furnish any explanation as to why this fact does not stand recorded therein. What stands recorded therein is that on entering the house of the accused, he found the accused fondling his daughter and indulging in Badtamizi. Surprisingly, in his cross-examination, the witness denied to have stated before the police that the accused was fondling his daughter and misbehaving with her. Rather, he expressed ignorance as to how the Investigating Officer had so written in his statement. This fact further creates doubt about visit and presence of Lalta Parshad at the house at the time of commission of the offence or his having seen the accused running away.
Further according to PW9, on seeing him the accused drew himself back; that his daughter looked behind and at that time he found whitish liquid in her mouth which she spit there. PW9 stated that he did not say anything to the accused. He then brought his daughter out of the room, called the accused out, but he ran away -12- when some persons including a motor cycle passed by that side. This conduct of PW9 makes the version narrated by him somewhat doubtful. It is not believable that a father, on seeing a culprit indulging in such a crime with his daughter, would quietly tolerate all this. Rather, in the given situation PW9 would have gone to the extent of giving beatings to the accused. But PW9 wants the Court to believe that he did not say anything to the accused except that he should come out, and that in that process the accused ran away. It is not believable that he did not say anything keeping in view that marriage of the accused was to be solemnized. Accused is aged about 65 years. It is not believable that after having come out of his house, the accused succeeded in running away. PW9, in his forties, could easily chase the accused and catch hold of him. According to PW9, he raised hue and cry, whereupon Avdesh tenant in the adjoining room of the house of the accused came out of the room alongwith his wife. He further stated that on his raising hue and cry, many persons from the public and neighbourhood came in front of the house of the accused. PW6-wife of PW9-is also stated to have reached there following her husband. In the given situation, PW9 or even Avdesh or anyone from other persons allegedl to have gathered there would have chased the accused and apprehended him, as PW6 would have been still behind to take care of her daughter. But prosecution has not examined Avdesh or any other person from the locality to lend corroboration to the statement of -13- PW9. Even according to the prosecutrix, one tenant was present in one of the tenanted rooms of the house of accused. According to her, none tried to catch hold of the accused. All this creates doubt about presence of Lalta Parshad on the given date and time at the house of the accused.
There is material contradiction in the statements of parents of the prosecutrix about presence of persons from the public near or in front of the house of the accused soon after the commission of the crime. According to PW9, father of prosecutrix, on his raising hue and cry, many persons from the public and neighbourhood came in front of the house of the accused. On the other hand, PW6, mother of the prosecutrix, deposed that she did not find any of the tenants of the accused nearby at that time. 2 minutes after departure of her husband in search of their daughter, she too is stated to have followed her husband. According to PW6, at that time, none from the public was present inside the room or in front of the house of the accused. This material contradiction makes presence of parents of the prosecutrix on the given date, time and place doubtful.
In the course of arguments, it has been argued that as stands recorded in the ruqqa, ASI Kewal Singh reached H. No. 155 in Q Block, Mangolpuri and according to PW8 Ct Rajnish, call received by him on 28.04.06 at about 9 a.m was about commission of a wrong act with a girl in H. NO. 155, Street No.5, Q Block, Mangolpuri and DD No. 8A was recorded in this respect, which -14- shows that the offence did not take place at H.No. Q6/133 i.e. the house of the accused and as such the version narrated by the prosecution witnesses regarding the occurrence at H.No. Q6/133 creates a doubt in the prosecution story.
It is true that the call was about commission of wrong act with a girl at H.No. 155, street No.5, Q Block, Mangolpuri and ASI Kewal Singh admittedly reached the said place, but this does not adversely affect the case of prosecution, particularly when there is nothing in Ex.PW8/A i.e. the DD entry to suggest as to who had told the wireless operator about the aforesaid address, and secondly, that ASI Kewal Singh reached in front of H.No. 155, in Q Block and not at H.No. 155 of that block. Rough site plan Ex.PW15/B prepared by ASI Kewal Singh is in respect of H.No. Q6/133. Therefore, I do not find any merit in this contention of learned defence counsel.
Although, this court has not believed the prosecution version regarding presence of parents of the prosecutrix on the given date, time and place, but this does not mean that this court has doubted the version narrated by the prosecutrix.
It stands recorded in statement Ex.PW11/A recorded under Section 164 Cr.PC that the prosecutrix was giving rational answer to the questions put to her and making statement voluntarily, without any kind of threat. When examined in Court as PW12, this court also put preliminary questions to the witness and found that -15- she was understanding the questions and giving rational answers. Oath was administered to the prosecutrix when she replied that one should speak the truth and that the one who tells a lie commits a sin. Had the prosecutrix been tutored, against the accused, she could very easily level allegation of commission of rape on her. But the prosecutrix did not level any such allegation against him even after she was put leading questions by the Addl. Public Prosecutor. From the material available on record, I find a ring of truth around the statement of the prosecutrix, even though she is a child witness of 10 years of age, in respect of the allegation of commission of the unnatural offence by the accused, as narrated above.
Accused has come forward with the defence plea of false implication on th ground that Lalta Prasad was to repay Rs. 10,000/- borrowed from him about two months prior thereto and he asked the prosecutrix to remind her father that he was to repay the loan amount. In this respect, accused has not led any evidence in defence. There is nothing in the statements of the prosecution witnesses to support this defence plea. Therefore, it is held that accused has failed to substantiate the defence plea. Criminal Intimidation
12. Case of prosecution is that the accused threatened the prosecutrix while indulging in the crime and then threatened her father. According to PW12-the prosecutrix-the accused threatened -16- her with a knife, when she tried to cry at his house. But she did not state anywhere that the accused had threatened her father as well. In this respect, Addl. Public Prosecutor put leading questions to the prosecutrix, but she denied the suggestion that the accused had threatened her father with knife. In her cross-examination, the prosecutrix replied to have stated before the police that the accused had threatened her with knife. But, it is significant to note that this fact does not stand recorded therein. Had she been threatened by the accused, she would not have omitted to state about the same in her statement made before the police. Even at the time the accused took the prosecutrix to his house by catching hold of her hand, admittedly, she did not raise hue and cry. From all this, possibility of the prosecutrix having been allured by the accused to his house cannot be ruled out, but it cannot be said that she or her father was threatened by the accused.
Commission of Rape
13. Occurrence is alleged to have taken place on 28.4.2006 at about 9 a.m. at the house of the accused. Version of prosecution is that the accused subjected the prosecutrix to rape. But while appearing in Court the prosecutrix nowhere deposed that she was subjected to rape by the accused. In this respect, Addl. Public Prosecutor put leading questions to the witness after seeking permission from the Court, but she denied the suggestion that she -17- was subjected to rape by the accused. She categorically denied the suggestion put by Addl. Public Prosecutor that on this aspect she was deposing falsely. PW2 Dr.Brijesh Singh referred the prosecutrix to Gynae department vide MLC Ex.PW2/A. The prosecutrix was subjected to gynae examination by Dr.Mamta Sharma. As per medical evidence available in the statement of PW3 Dr.Neeti Mathur, who has proved report in the handwriting and bearing signatures of Dr.Mamta Sharma,on local examination no pubic hair was seen; redness was seen on the inner aspect of labia minora; hymen appeared to be torn; oral cavity was also examined; no redness or laceration was seen. But as noticed above, the prosecutrix nowhere stated that she was subjected to rape. Even father of the prosecutrix nowhere stated that his daughter was raped by the accused. At the time, the prosecutrix was brought to PW2 Dr.Brijesh Singh for medico legal examination and at that time the prosecutrix told the doctor about insertion of genitals in her mouth at knife point. The doctor witness accordingly recorded it in the MLC. When the prosecutrix has categorically denied that she was subjected to rape, I do not find any merit in the contention of counsel for State that the accused did commit rape on the prosecutrix.
Conclusion
14. In view of what has been discussed above, even when presence of parents of the prosecutrix on the given date and time of -18- occurrence at or in front of the house of the accused is doubtful and this Court has not believed the prosecution version that father of the prosecutrix witnessed the accused indulging in crime, from the convincing and trustworthy statement of the prosecutrix, this Court comes to the conclusion that charge for commission of an offence under Section 377 IPC stands fully established against the accused. However, other two charges for the offence under Section 376 IPC and 506 IPC do not stand proved on record.
Consequently, Turi Ram accused is acquitted of the charge under Section 376 IPC and 506 Part II IPC, but he is held guilty of the third charge for the offence under Section 377 IPC and convicted thereunder.
Announced in Open Court on 3rd of March, 2007 [NARINDER KUMAR] ADDL SESSIONS JUDGE FAST TRACK COURT ROHINI: DELHI -19- IN THE COURT OF SH. NARINDER KUMAR ADDL SESSIONS JUDGE : FAST TRACK COURTS ROHINI : DELHI SC No.169/06 dated 29.07.06 STATE Versus TURI RAM S/o Bansi R/o Q6-133, Mangolpuri, Delhi-110 002.
FIR No. 278/06 PS Mangol Puri U/s. 377 IPC ORDER ON SENTENCE 03.03.2007 Present. Convict in J.C. with counsel Sh. S.K. Srivastava and Sh.
Sanjay Sharma.
I have heard learned counsel for the convict and the convict on the point of setence. They have prayed for leniency keeping in view that the convict is an old man of about 65 years of age and that he has been suffering from Tuberculosis.
It is true that the convict is an old man aged about 65 years. But there is nothing on record to suggest that he is suffering from Tuberculosis. No medical record has been placed before the court in support of this submission.
As noticed above, the convict has been held guilty of -20- commission of the offence with a female child when lust deluded his wisdom. Record reveals that the convict has been facing trial in judicial custody. He is in custody in this case with effect from 05.05.06. Keeping in view all the facts and circumstances of the case, I hereby sentence the convict to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 5000/- or in default of payment of fine, he shall further undergo rigorous imprisonment for two months, for the offence U/s. 377 IPC. The period of detention already undergone by the convict during enquiry, investigation and trial shall be set off against the sentence awarded today, in view of provisions of Section 428 CrPC . The amount of fine, if deposited/realised, shall be paid to the prosecutrix by way of compensation.
A copy of this order as well of judgment be given to convict free of cost. File be consigned to record room. Announced in Open Court on 3rd of March, 2007 [NARINDER KUMAR] ADDL SESSIONS JUDGE FAST TRACK COURT ROHINI: DELHI -21-