Delhi District Court
State vs Man Singh Thapa S/O. Late Dost Ram Thapa, on 14 December, 2012
IN THE COURT OF SHRI SANJAY GARG : ADDITIONAL SESSIONS JUDGE -
01 (EAST) :KARKARDOOMA COURTS : DELHI
SC No. 140/11
FIR No. 352/11
PS Mandawali
Under Section : 376 IPC
State Versus Man Singh Thapa S/o. Late Dost Ram Thapa,
R/o. 28, Bhure Ka Makan, Bara Chowk,
Mandawali, Delhi.
Date of Institution of Case : 11.11.2011
Date on which Judgment Reserved : 30.11.2012
Date on which Judgment Delivered : 10.12.2012
J U D G M E N T
1. In brief, the case of the prosecution is that on 19.8.11 PW4 (hereinafter mentioned as prosecutrix) visited PS Mandawali and made a complaint stating that she is residing with her father alongwith her sister,. She is studying in 6th standard. Her mother died five years back. Her father is teasing her for the last many months. For the last two months he does "Galat Kaam" with her. He had put his penis in her vagina number of times. When she refuses, he beats her and threatens to beat her in case she will tell it to anyone. Being fedup with the conduct of her father she told about it to the neighbourers and they asked her to go to police station. She had come to PS with her sister. She was taken to LBS Hospital and there doctor did her internal examination. SI Naveen Kumar and lady Ct. Poonam took prosecutrix to hospital. IO PW8 SI Ramo Devi also reached in the hospital. Suman Gosia, who is member of NGO also met her there. SI Naveen handed over sexual kit bearing seal of the hospital to IO PW8. He also handed over one envelope containing clothes of the prosecutrix to her. IO PW8 prepared rukka on the complaint and got the FIR registered. Prosecutrix with her sister was dropped at Nirmal Chhaya. Next day prosecutrix was produced before Ld. M.M and her statement u/s. 164 CrPC was got recorded. On FIR No. 352/11 page 1 of page 10 20.8.11 accused was arrested. Accused was taken to LBS Hospital and there his medical examination was got done. Exhibits were sent to FSL. After investigation police filed chargesheet against the accused u/s. 376 IPC.
2. Charge u/s. 376 IPC was given to accused, to which he pleaded not guilty and claimed trial.
3. To prove its case prosecution examined 11 witnesses. PW1 Ms. Pushpa Chaudhary, Teacher, MCD Primary School proved copy of the admission form of prosecutrix, the copy of the affidavit of prosecutrix and admission record of the school as Ex.PW1/A to PW1/C. She also proved certificate Ex.PW1/D given by her regarding age of the prosecutrix. PW2 Smt. Vidhya Devi is the owner of the house No.28, Bara Chowk, Mandawali. She deposed that accused used to reside as a tenant in her house with his two daughters aged about 1012 years. PW3 (hereinafter mentioned as sister of prosecutrix). PW4 is the prosecutrix, she proved her complaint Ex.PW4/A and identified her signatures on her statement u/s. 164 CrPC Ex.PW4/B. PW5 ASI Yash Pal Singh was duty officer, he proved FIR Ex.PW5/A and endorsement on rukka Ex.PW5/B. PW6 Deepak Singh is the son of accused and elder brother of the prosecutrix and her sister. PW7 WCt. Poonam accompanied SI Naveen on 18.8.11 to hospital alongwith prosecutrix. She proved Ex.PW7/A vide which sexual assault kit was taken into possession and Ex.PW7/B vide which another pulanda bearing seal of the hospital was taken into possession. PW8 SI Ramo Devi is the IO, she proved rukka Ex.PW8/A, arrest memo and personal search memo of accused Ex.PW8/B and PW8/C. PW9 Dr. Poorti Channana, Senior Resident, LBS Hospital proved MLC of the prosecutrix Ex.PW9/A. PW10 Retired Dr. B.D. Singh proved MLC of the accused Ex.PA1. PW11 Dr. Vinay Kumar Singh proved medical report of accused regarding his capability to perform sexual inter course as Ex.PW11/A.
4. On the basis of the incriminating evidence against the accused, his statement u/s. 313 CrPC was recorded wherein accused denied the entire FIR No. 352/11 page 2 of page 10 evidence against him. Accused took the defence of false implication stating that he is aged 70 years and because of age he is impotent and unable to do sexual intercourse for the last 10 years. Pappu S/o. Abbas Alam wanted to marry her daughter. His daughter was also interested to marry with Pappu but since Pappu was Muslim and his daughter was very young he did not agree for it. When she insisted, he had beaten her. Thereafter at the instance of Pappu and his father, his daughter made this false complaint.
5. Accused led defence evidence and examined three witnesses. DW1 Sh. Rajender Singh is the neighbourer of the accused. DW2 Sh. Shankar Sharma has worked with accused for painting jobs and DW3 Smt. Roopa Devi is motherinlaw of the son of accused.
6. Heard arguments of Sh. Abdul Aleem, Ld. APP for State and Sh. Abdul Sattar, Ld. Amicus Curiae for accused. Perused the case file.
7. Ld. APP submitted that prosecutrix has made clear and specific allegations of rape against accused and same has got support from the MLC of the prosecutrix. It is stated that PW3, who is also real daughter of the accused used to reside in the same house alongwith prosecutrix and accused, she has also supported the allegations made by prosecutrix. It is stated that statements of both PW3 and PW4 are consistent and there are no reasons to disbelieve their statements. It is stated that defence witnesses examined by accused are his friends or relatives and their statements does not inspire confidence.
8. Sh. Abdul Sattar, Ld. Amicus Curiae for accused submitted that prosecutrix was in love with one Muslim boy named Pappu and when accused objected she lodged this false complaint. It is stated that PW6, who is brother of the prosecutrix has supported the defence taken by accused. It is stated that the three defence witnesses examined by accused have also supported the defence taken by the accused. It is stated that DW3 who is motherinlaw of the son of accused being female has also supported the defence taken by the accused. It is stated that PW3 and PW4, both are FIR No. 352/11 page 3 of page 10 residing at Rose Child Home, Dwarka and PW3 being the younger sister and under the influence of PW4 is also making false allegations against the accused.
9. Prosecutrix was examined as PW4. Her statement was recorded in camera. Before proceeding to record her statement she was examined in general, to be satisfied that she is not under any fear or pressure and is competent to depose. Only after being satisfied about her competency to depose her statement was recorded. She deposed same facts as mentioned by her in complaint Ex.PW4/A. She was asked to explain that what does she means with "Galat Kaam". She stated that his father used to put his penis inside the place from where she urinates. In reply to specific question that how many times her father did this act with her, she stated that whenever he used to feel like he used to do so. She further stated that she told this to the ladies residing in her neighbourhood but they did not help her, having left with no other option she alongwith her sister went to PS Mandawali. She stated that her date of birth is September'1999. She identified her signatures on statement Ex.PW4/B recorded u/s. 164 CrPC by Ld. M.M Sh. Satish Kumar Arora. She also identified her pyjami, pink colour top and an underwear which are collectively Ex.P1. During cross by accused, she stated that she had seen her date of birth in the file of doctor in Rose Home. The witness kept mum to the specific question put by Ld. Amicus Curiae that who told her date of birth to the doctor. She again kept mum to the question that if she told her date of birth to the doctor in hospital. She again kept mum and did not answer the question that if anyone from the NGO accompanied her to the hospital. She denied knowing any boy named Pappu S/o. Abbas Alam. She denied the suggestion that she was having any affair with Pappu and her father used to restrain her from meeting Pappu. She stated during her cross that she, her sister and her father used to sleep in the same room. Her brother is residing separately in Delhi but she does not know in which area he is residing. She does not remember the date and time FIR No. 352/11 page 4 of page 10 when her father first time did "Galat Kaam" with her. She does not remember the exact date when she told this act of her father to the neighbourers. She does not remember the name of those ladies to whom she had told about this act of her father. She denied the suggestion that her father had not done any "Galat Kaam" with her and she made false statement before Judge Sahib (during recording statement u/s. 164 CrPC) at the instance of Pappu and her other neighbourers. After answering this suggestion witness started speaking angerly stating that she still loves her father, her father has done a lot for her, her brother and sister ; she is punishing her father since he has done a wrong thing and she also punishes her sister if she does anything wrong.
10. Ex.PW4/B is the statement of prosecutrix recorded by Sh. Satish Kumar Arora, Ld. M.M, wherein she has made similar statement as made by her before this Court.
11. PW3 is the sister of the prosecutrix and she was residing in the same house with prosecutrix and accused being her father. Before recording her statement she was examined in general to evaluate her competency in making statement. After being satisfied that she got rational understanding and can make statement, her statement was recorded without oath. She deposed that her mother passed away five years back. She, her sister and accused used to live together. Her father used to do work of whitewashing. During night her father used to keep her and her sister detained in the room after bolting the door from inside and did not allow them to go out from the room. He did not use to permit them to visit neighbourers in the adjoining rooms. During night he used to do "bura kaam" with her sister. In reply to the Court question she explained "bura kaam" stating that her father used to lie down on her sister, he also used to kiss her sister on her cheek. Her sister used to ask him not to do this but he used to do the same. He used to drink daily. She did not use to feel good with all this and asked him not to do this, on this he used to scold her and FIR No. 352/11 page 5 of page 10 asked her to go to sleep. One day she and her sister went to PS and made a complaint there. During cross by accused she stated that she alongwith her sister and accused used to sleep in one room ; she and her sister told the bad acts of her father to the locality ladies ; their father used to beat them mercilessly and when neighbourers used to intervene, he used to abuse them also. She stated that she does not know any Mukim or Pappu. She denied the suggestion that Pappu was a bad boy and her sister used to play with Pappu and was also having an affair with him.
12. Statements of both prosecutrix PW4 and her sister PW3 are consistent on all the material particulars. During cross Ld. Amicus Curiae for the accused failed to shatter their credibility or arouse any suspicion on the veracity of their statements.
13. PW6 Deepak Singh is the son of the accused and step brother of prosecutrix and her sister. He deposed that he is residing in Kondli, House No. 7 alongwith her parentsinlaw, wife and children. His father used to reside with his sisters (prosecutrix and her sister). On 17.10.11 he went to Nirmal Chhaya, Janak Puri where both her sisters were lodged, her elder sister i.e. prosecutrix, told him that her father had committed rape upon her. During cross he stated that he is living separately from his father and sisters for the last 10 years. His real mother had expired when he was aged about 2 ½ years and thereafter his father again married with one lady. Second wife of his father also expired. Prosecutrix and her sister are his step sisters. He admitted that he did not use to visit house of his father. He admitted to have heard that prosecutrix used to like a boy as his father had told him 23 times before the incident. He denied of having any knowledge if prosecutrix was having affair with Pappu S/o. Abbas Alam.
14. PW8 SI Ramo Devi is the IO. She deposed that on 19.8.11 prosecutrix came in the PS and handed over the complaint to SI Navin Kumar. SI Naveen Kumar with a lady Constable reached LBS Hospital. She also reached LBS Hospital on the instructions of SHO. There Suman Gosia, FIR No. 352/11 page 6 of page 10 who is member of NGO met her with prosecutrix. SI Navin Kumar handed over her MLC of prosecutrix and one pulanda duly sealed with the seal of hospital and same was seized. SI Naveen Kumar also handed over the sexual kit and one envelope belonging to the clothes of the prosecutrix. She prepared rukka and gave it to duty officer for registration of the FIR. She took prosecutrix to Nirmal Chhaya and lodged her there.
15. Ex.PW9/A is the MLC of the prosecutrix, as per which lesions were present in both labia minora and hymen was not intact. Even in the history mentioned on the MLC given by prosecutrix, it is mentioned "according to prosecutrix - she was habitually sexually assaulted by her father since 2 months. She was also physically abused since 2 months. Last time she was sexually assaulted on 18.8.11 at about 10.30 p.m."
16. Ex.PW11/A is the MLC of accused. After examining the genitals of the accused doctor has given the following report : "There is nothing that is suggestive at that patient is incapable to perform sexual intercourse/Impotent."
17. It is stated on behalf of the accused that he was 70 years of age and was unable to do sex because of age. It is stated that prosecutrix wanted to marry Pappu S/o. Abbas Alam who were residing in their neighbourhood, accused did not agree as the boy was Muslim and prosecutrix was very young, due to this reason at the instance of Pappu and his father Abbas Alam prosecutrix has made this false complaint. To prove his defence accused examined three witnesses. DW1 Sh. Rajender Singh deposed that accused is known to him for the last 10 years being his neighbourer. Accused is a gentleman like a Saint. His daughter was having love affair with Pappu who is Muslim in the same locality but accused did not agree for this marriage and slapped her but she insisted that she will reside with Pappu and will marry him. At the instruction of Pappu and his parents prosecutrix made this false complaint against her father. Accused used to work as painter and was having good reputation in the area. He is aged about 70 years. During FIR No. 352/11 page 7 of page 10 cross by Ld. Addl. PP he denied the suggestion that he is deposing false to save the accused being his friend. DW2 Sh. Shankar Sharma deposed that he knows accused for the last 2 ½ years as he had worked with him for painting jobs. His daughter used to love a neighbourhood boy Pappu who was Muslim. Accused was not happy with this relationship and he asked prosecutrix not to indulge in this relationship. One day, accused scolded and slapped prosecutrix and at the instigation of Pappu and his family, prosecutrix made this false complaint. Accused is a man of good character and is very religious. During cross by Ld. Addl. PP DW2 stated that accused belongs to his native place. He does not remember the exact date when in his presence accused had slapped his daughter. DW3 Smt. Roopa Devi is motherinlaw of the son of the accused. She deposed that accused is a man of good character and very religious. His daughter started loving Pappu, a muslim boy who was residing in his neighbourhood but accused did not agree and one day he slapped her. Thereafter family of Pappu quarreled with accused and at their instigation prosecutrix made this false complaint. Prosecutrix was aged 1516 years at the time of this incident. During cross DW3 stated that her soninlaw Deepak asked her to depose in the Court. She did not make any complaint regarding quarrel between accused and family of Pappu.
18. Accused has claimed that he is impotent and aged about 70 years. As per record i.e. conviction slip, his age is mentioned as 55 years, the report of the doctor Ex.PW11/A is contrary to the claim of the accused that he is impotent. As per report Ex.PW11/A genitals of accused were found normal and doctor has specifically opined that there is nothing suggestive that accused is incompetent to perform sexual intercourse or is impotent. PW6 Deepak Singh is the son of the accused and he is aged 27 years. It is not the plea of the accused if he has any other child other than PW6, prosecutrix and sister of the prosecutrix. It cannot be believed that in his late 40s accused fathered PW6. Even from his appearance age of the accused FIR No. 352/11 page 8 of page 10 appears to be around 5560 years. No documentary proof has been filed on record by the accused to establish his age. The statements of the defence witnesses examined by accused does not inspire confidence, as they are neighbourer, coworker and relative of the accused. As already discussed statements of prosecutrix and her sister are consistent regarding their allegations against the accused and I find no reason to disbelieve their statements. It is very difficult to visualize that prosecutrix and her sister who are just aged 12 and 10 years could make such allegations against their biological father, who was maintaining and taking care of them and was the only person on which they were dependent for their day to day care especially when their mother is no more.
19. Inter alia one of the main contention raised on behalf of accused is that prosecutrix and her sister have made false allegations at the instance of Pappu. Even PW6, who is son of the accused and step brother of the prosecutrix has also deposed about relations between said Pappu and prosecutrix. Though prosecutrix has denied of having any relations with Pappu and there is no evidence if any person with the name of Pappu do exists, but even if for the sake of arguments it is assumed that Pappu was residing in the neighbourhood of accused, the pertinent question to be considered is, was she and her sister deposed in the Court under influence of him. Both prosecutrix and her sister were produced from Rose Home, Dwarka, at the time of recording of their statements before this Court. Since their mother was not alive, accused being father was in J/C, due to this reason since beginning both were lodged in Rose Home at Dwarka. Both had come to depose in the Court after about 8 months of the incident and by no stretch of imagination it can be said that while deposing before this Court, prosecutrix as well as her sister were under the influence of said Pappu.
20. Ld. Amicus Curiae has further vehementally urged that as per the prosecutrix and her sister, accused raped prosecutrix number of times as and when he felt to do so but never before prosecutrix had made any FIR No. 352/11 page 9 of page 10 complaint, which shows that she is not telling truth. Both prosecutrix and her sister have stated that accused used to rape prosecutrix as and when he desired. Why prosecutrix did not make complaint earlier, prosecutrix herself has explained stating that his father used to beat her and her sister and did not permit them to go outside their house. Both these girls are minor, their mother is no more alive. Except their father who is accused in this case, they are having one step brother who is living in Kondli at the considerable distance from them. Their cognitive and social emotional development and the environment in which both were residing is also required to be kept in mind while appreciating their statements. The mental trauma which prosecutrix as well as her sister might have suffered because they were abused and prosecutrix was raped by their own father also needs to be kept in mind. Prosecutrix has specifically stated that she told her plight to ladies residing in her neighbourhood but no one helped her and having left with no other option she alongwith her sister went to PS Mandawali and made complaint there.
21. In view of the aforesaid discussion, I find no reason to disbelieve the statements of prosecutrix and her sister. Their statements are consistent and stand corroborated from the MLC of the prosecutrix which is Ex.PW9/A. Accordingly, it is held that prosecution has been able to prove its case against accused beyond reasonable doubt for the commission of offence punishable u/s. 376 IPC. Accused is convicted accordingly.
ANNOUNCED IN OPEN COURT ON 10.12.2012 (SANJAY GARG) ADDL. SESSIONS JUDGE(EAST) I KARKARDOOMA COURTS : DELHI FIR No. 352/11 page 10 of page 10 IN THE COURT OF SANJAY GARG : ADDITIONAL SESSIONS JUDGE -
01 (EAST) :KARKARDOOMA COURTS : DELHI
SC No. 140/11
FIR No. 352/11
PS. Mandawali
US. 376 IPC
State Vs. Man Singh Thapa S/o. Late Sh. Dost Ram Thapa,
R/o. 28, Bhure Ka Makan, Bara Chowk, Mandawali,
Delhi.
ORDER ON QUANTUM
1. I have heard argument of Sh. Abdul Aleem, Ld. Addl. PP for the State and Abdul Sattar, Ld. Amicus Curiae for convict on quantum of sentence.
2. Ld. APP submits that keeping in view gravity of the offence maximum punishment be awarded to the convict.
3. Ld. Amicus Curiae for convict submits that the convict is first offender, not involved in any other criminal case. It is stated that he is aged and is in J/C since beginning. It is stated that either he be given benefit of Probation of Offenders Act or released on the period of imprisonment already undergone.
4. The convict is in J/C since 20.08.11. It is a case of incest as prosecutrix is real daughter of the convict. As per prosecutrix, the convict had raped her number of numbers as and when he wished to do so. The convict, who is father and custodian of the prosecutrix, kept on raping prosecutrix at his pleasure. It is not a case of isolated incident rather the convict sexually abused his daughter as and when he got opportunity.
5. In view of the facts and circumstances of this case, the case of FIR No. 352/11 page 11 of page 10 convict cannot be considered under the Probation of Offenders Act and the convict deserves no leniency. Accordingly, he is sentenced as under :-
-2-For the offence punishable u/s. 376 IPC he is sentenced to undergo RI 8 years and shall also be liable to pay fine of Rs. 2,000/- in default to undergo SI for two months.
6. Prosecutrix, who is a child of 12 years of age, deserves to be suitably compensated. In view of Section 357 A of Cr.P.C, prosecutrix is ordered to be compensated from Delhi Victims Compensation Scheme 2011, notified by Govt. of NCT of Delhi vide notification F. No.11/35/2010/HP II dated 02.02.12. As per this scheme, copy of this order be sent to Secretary, DLSA, East District for following procedures for awarding suitable compensation to her.
7. Benefit of section 428 Cr. PC be given to the accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
ANNOUNCED IN OPEN COURT
ON 14.12.2012 (SANJAY GARG)
ADDL. SESSIONS JUDGE(EAST) - 01
KARKARDOOMA COURTS : DELHI
FIR No. 352/11 page 12 of page 10