Delhi District Court
Fir No. 157/06 , P.S Welcome , ... vs Fammu on 15 January, 2010
1
FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU
IN THE COURT OF SH. B. S. CHUMBAK, ADDITIONAL
SESSIONS JUDGE:3 NE DISTRICT: KKD DELHI.
Case ID Number 02402R03126...2006
Session Case No. 12/08/10
Assigned to Sessions 19/07/06
Arguments heard on 08/01/10
Date of order 15/01/10
FIR NO. 157/06
Police Station Welcome
Under Section 376/506 IPC
Out come of decision Convicted
IN THE MATTER OF:
STATE VS. FAMMU S/O NIZAMUDDIN
R/O FAZAR KA MAKAN GALINO.1
BABBAR PUR, CHAJJU PUR
DELHI.
PRESENT: Ms. Neelam Narang, Ld. Addl. PP for State.
Sh. A.K TIWARI Advocate on behalf of accused.
JUDGMENT
1. On 14.4.06 a case u/sec. 363/376/511/506 IPC was registered at P.S Welcome vide FIR No. 157/06 on the basis of complaint/statement 1 2 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU made by Kumari Anjali d/o Brijesh Kashyap r/o 681-E, Gali No.4 Sanjay Gandhi Nagar Babbar Pur against Fammu s/o Nizamuddin r/o Gali no.1, Babbar Pur, Chajjur Pur, Delhi.
2. The brief facts of prosecution case are that on 14.4.06 on receipt of DD no. 38B ASI Raj Pal Singh reached at gali no. 4 Sanjay Gandhi Nagar, Babbar Pur Delhi. On reaching there he met Anjali d/o Brijesh Kashyap, her mother Laxmi Devi and many public persons were also present there. Kumari Anjali and her mother Laxmi Devi produced accused Fammu s/o Nizamuddin and also got recorded the statement of prosecutrix which is as follows:
" On 13.4.06 a Bhandara ceremony was organized on on the eve of Hanuman Jayanti. At 2 P.M when she was going their for taking Parsad, in the way one boy met her, whose name was revealed as Fammu s/o Nizamuddin, caught hold of her hand and forcibly took her near transformer at Chajju Gate i.e an isolated place. He removed his and her undergarments and attempted to commit rape upon her. When she developed pain she started crying. He 2 3 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU closed her mouth by putting his hand and also extended threat of killing her while throwing upon the electric wire of the transformer in case she would raise alarm. He also detained her while saying that he shall left her after an hour. In the mean time her mother Smt. Laxmi Devi reached there on a rickshaw, she raised alarm.
Accused run away from the spot. "
3. After registration of the case the investigation was initiated,prosecutrix was got medically examined vide MLC No. 1390/06 under the supervision of SI Beena Thakur and the mother of the prosecutrix. Accused was arrested,he was got medically examined vide MLC A- 1663/06. All the exhibits were sent to CFSL, result of CFSL was obtained, statement of all witnesses were recorded and after completion of all the necessary investigation challan u/s 173 Cr.P.C was presented to the court of Ld. MM.
4. Ld. M.M after taking cognizance of the offences u/sec. 363/376/368/506 IPC against the accused, supplied the copies of the report u/sec. 173 3 4 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU Cr.P.C to the accused, as required u/s 207 IPC, committed the case to the court of Sessions and on turn allocated to this court for trial therefore, case was fixed for consideration of charge.
5. Arguments on the point of charge heard. After hearing arguments and on perusal of the material placed on record and the statements of witnesses recorded by the IO a prima facie case u/sec. 363/366/376/506 IPC was made out against the accused Fammu s/o Nizamuddin, charge framed accordingly by the then Ld. ASJ vide order dt. 2/9/06 to which he pleaded not guilty and claimed trial, therefore, case is fixed for prosecution evidence.
6. Prosecutrix Anjali d/o Brijesh Kashyap was examined as (PW1), Smt. Laxmi Devi w/o Sh.Brijesh Kashyap (mother of the prosecutrix) as (PW2), Const. Sanjeev as (PW3), ASI Saheb Singh as (PW4), Ct. Pathan Rashid as(PW5), Dr.Nikhil Aggarwal as (PW5A), ASI Virender Singh as (PW6), Ct. Venu Gopal as (PW7), ASI Bhanu Partap as 4 5 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU (PW8), SI Beena Thakur as (PW9), ASI Bhanu Pratap was again examined as (PW10), Sh.Harish Chander Sub Registrar Birth and Death, City Zone as (PW.11), Dr. Kanika Aggarwal as (PW 12) and ASI Raj Pal Singh as (PW 13). Thereafter no witness left to be examined therefore prosecution evidence was closed and case was fixed for recording the statement of accused u/sec. 313 Cr.P.C.
7. Brief testimonies of all the witnesses are as follows:
i) Prosecutrix is examined as PW1, she was of tender age therefore, she was examined after ascertaining her veracity to understand the court proceedings.
She deposed that on 13/4/06 a Bhandara ceremony was taking place in the gali on the eve of Hanuman Jayanti. At about 2.P.M when she was going to take Parsad, accused present in the court, took her through a gali to a transformer near Chajju gate. He pushed her on the wires and extended threats to kill her by throwing on the transformer, in case she would raised alarm. She further stated that accused removed her 5 6 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU nicker (undergarments), removed his nicker (undergarments) and penetrated his male organ into her female organ. She further stated that in the mean time one boy reached there, but accused also extended threats of killing him if he dare to take a note of his acts. In the mean time her mother Laxmi reached there in a rickshaw and on seeing her mother, accused fled away from the spot. She narrated entire incident to her mother. Her mother took her to her house. Her family members searched the accused and on the next day evening accused was apprehended near the transformer giving beatings to another person. Her mother and maternal uncle caught hold the accused and brought him at her home. Public persons gathered there and gave beatings. Police also reached at the spot and got her statement recorded which is Ex.PW 1/A bearing her signatures at point 'A'. When public persons were beatings to the accused, he again fled away and hide himself in a toilet of some other persons in the nearby vicinity. He was chased and then police arrested the accused from the toilet . She was taken to the hospital and was got medically examined. 6 7
FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU During her cross-examination she only confronted from her statement Ex.PW 1/A to the extent that she stated to the police that one boy was also watching the activities of the accused where it was not so mentioned. She also denied the suggestion that accused used to play cricket in the gali before the incident and in that process her sister was got injured and due to this reason accused has been falsely implicated in this case. Rest of her testimony is reiterated as submitted by her during her examination in chief.
ii) PW 2 is the mother of the prosecutrix and she deposed that she has two daughters namely Anjali(prosecutrix) and Priyanka. Anjali is elder to Priyanka and Anjali has completed ten years in the month of June 2007. She further deposed that on 13/4/06 there was Bhandara at Babbar Pur on the eve of Hanuman Jayanti. She had gone to the weekly market to purchase some clothes, after leaving her husband and two daughters at home. At about 2/2.30 P.M when she was returning from the market on rickshaw and entered in Chajju gate 7 8 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU she saw her daughter Anjali was being caught hold by one boy. She got down from the rickshaw and rescued her daughter from the clutches of that boy. Many persons gathered there. Her daughter started crying and narrated the whole incident to her and stated that accused took her forcibly at the point of broken glass for committing sexual assault with her ( attempt to commit rape). He also extended threats of throwing her on wires in case she would raise objection against his desire. Her daughter also narrated that accused committed 99 offences of sexual assault earlier and she was the 100th target. She further stated that the accused took her near the transformer, removed her kachi(underwear) and try to commit rape with her and also extended threats of killing her. Next day she took her daughter at the spot. The boy who had committed sexual assault on her daughter was found present there, accused was apprehended and took him to a gali and was beaten by the public persons but he again managed to fled away from the spot in the next Gali and hide himself in a toilet. Police was informed, accused was apprehended and was taken to the police 8 9 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU station. Statement of her daughter was recorded in her presence. She was taken to GTB hospital and name of boy was revealed as Fammu. She also identified the accused present in the court who committed offence of sexual assault with her daughter.
During her cross-examination she stated that place of occurrence was near Chajju gate situated on the main road on which rickshaws were regularly being plied and on both the sides of the road, there were residential houses. But this road is not being used for buses and heavy vehicles. She further stated that she did not inform the police on the day of incident as she was quite disturbed and on the next day police was informed at about 5 P.M. She also confronted from her statement on the following facts:
a) That she stated to the police that accused extended threats of throwing her on wires of transformers in case she would not yield her consent.
b) That she had stated to the police that accused told her daughter that he had 9 10 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU done 99 incident of such nature and this would be the 100th.
c) That she had stated to the police that accused managed to fled away to the next gali and hide himself in a toilet and was caught by the police from there. But these aforesaid facts i.e., a,b and c were not mentioned in her statement recorded by the IO u/sec. 161 Cr.P.C She also stated that she had disclosed this incident to her mother on the very first day of the incident(maternal grand mother of the prosecutrix). She also denied the suggestion that the boys of the vicinity used to play cricket in her gali and accused also used to play cricket and once or twice ball struck to their window and with the aim to deter him to play cricket and also in retaliation accused case has been falsely implicated in this case. Rest of her testimony is reiterated as given by her during her examination in chief.
Iii) PW3 is formal witness and deposed that on 14.4.06 he was 10 11 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU posted as constable at police station Welcome and on that day at about 6.40 P.M he received an information from PCR which was recorded by him vide DDNo. 38B. The copy of the DD was sent to ASI Raj Pal through constable Narender. He also brought the DD registered and copy of the DD No.38B is Ex.PW 3/A(OSR).
iv) PW4 again formal witness. He deposed that on 14/4/06 he was posted as Duty Officer at police station Welcome from 5 p.m to 1 a.m. On that day constable Narender brought one rukka sent by ASI Raj Pal , on the basis of said rukka, he recorded the FIR No. 157/06 u/sec. 363/366/376/506 IPC, copy of the FIR is Ex.PW 4/A bearing his signatures. (OSR) He also deposed that he made endorsement Ex.PW 4/B bearing his signatures at point A.
v). PW5 corroborated the testimony of PW 4 and deposed that on receipt of an information vide DD No. 38B, he along with ASI Raj Pal he reached at the spot i.e at Babbar Pur and found many persons, 11 12 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU gathered there. One boy who had already been beaten by the public was also present. ASI Raj Pal made enquiries from the public and during enquiry one girl whose name was revealed as Anjali and her mother Smt. Laxmi came forward. The statement of girl was recorded by the IO, he made endorsement on the same and handed over to him for registration of the case. Accordingly he went to the police station and got the FIR registered and returned back at the spot with the with the copy of FIR and rukka and handed over the same to the IO. He further deposed that on the direction of the IO he took the accused to GTB hospital for medical examination and identified the accused correctly in the court. Accused was arrested vide memo Ex.PW 5/A, his personal search Ex.PW 5/B was taken, bearing his signatures at point A. After medical examination of the accused doctor also handed over two samples including one sample seal of GTB hospital which he handed over to the IO. Seizure memo of exhibits was prepared by the IO which is Ex.PW 5/A bearing his signatures at point A. 12 13 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU During his cross-examination he deposed that when they reached at the spot they saw some swelling on the face of the accused due to beatings given by the public but no blood was oozing from the person of accused. Rest of the his testimony is reiterated as given by him during his examination in chief.
vi) PW5A is Dr.Nikhil Aggarwal who only identified the handwriting of Dr. Deepak on the MLC No. A-1663/06 of accused Fammu s/o Nizamuddin about 19 years old. The MLC is Ex.PW 5/A bearing the signature of Dr. Deepak at point A. He clearly stated that the present whereabouts of Dr. Deepak were not known to the hospital administration. He had seen him while writing and signing documents therefore, he can identify the handwriting of Dr. Deepak on MLC Ex.PW 5/A. He also stated that as per the opinion given on the MLC 'there is nothing to suggest that patient is not capable of performing the sexual intercourse.' During his cross-examination he reiterated his testimony as submitted by him during his examination 13 14 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU in chief.
Vii) PW6 deposed that on 14.4.06 he was posted as PCR Backer 31 and on that day he received a call about a quarrel at Sanjay Gandhi Marg, Babar Pur. He reached there and found that the accused Fammu was already apprehended by the public persons. He also correctly identified the accused Fammu present in the court and he further deposed that public persons told him that on 13/4/06 accused committed rape on a girl namely Anjali. ASI Raj Pal also reached at the spot. During the cross-examination by Ld. counsel for the accused he further clarified that he received the aforesaid information at about 6.35 P.M and he reached there with Const. Ram Kumar and Rajender/driver. He also stated that accused was apprehended and mother of the prosecutrix told him that accused had committed rape upon her daughter on 13/4/06 and public persons handed over the custody of the accused to ASI Raj Pal. Rest of his testimony is reiterated as submitted by him during his examination in chief. 14 15 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU Viii). PW 7 is formal witness. He only deposed that on 27/5/06 MHC(M) delivered him one exhibit/ parcel of this case vide R/C No. 27/21/06 which he took to CFSL Rohini and deposited the same. He further deposed that so long as the exhibits remained in his possession, no body tampered with it. During cross-examination he reiterated his testimony as submitted by him during examination in chief.
ix)PW 8 deposed that on 15.4.06 he was working as MHC(M) in the P.S Welcome and on that day ASI Raj Pal had deposited four sealed pullandas with the seal of hospital in the Malkhan. He made entry of all the items at srl. No. 1665. He further deposed that on 23/5/06 all the four sealed pullanda were sent to CFSL Rohini through Const. Venu Gopal vide R/C No. 27/21/06. He further deposed that on 24/5/06 he received two sealed pullandas along with the report. He made entry in register No. 19. The relevant entry is Ex.PW 8/A(OSR).
x)PW.9 SI Beena Thakur deposed that on 14/4/06 he was posted as SI 15 16 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU in CAW Cell N/E from 8 p.m to 8 a.m. On that day on receipt of call from control room, she went to police station Welcome and from there she went to GTB Hospital with prosecutrix Anjali with her mother and got the prosecutrix medically examined. Doctor handed over sample seal and a pullanda containing vaginal swab, which she handed over to IO and IO seized the same vide memo Ex.PW 9/A which bears his signatures at point A. Ex.PW 9/A was prepared in the presence of mother of prosecutrix and other police officials and the prosecutrix was sent with her mother in her presence. Rest of her testimony is reiterated by her as given by her during her examination in chief.
xi) PW 10 is formal witness. He only deposed that on 15/4/06 he was posted as MHC(M) and on that day ASI Raj Pal Singh deposited two sealed parcels along with two sample seals. He made entry in register No. 19 at srl. No. 1665. He further deposed that on 23/5/06 he handed over two sealed parcels along with two sample seals to Const. Venu Gopal for depositing the same in FSL Rohini along with FSL form vide 16 17 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU R/C no. 27/21 and after depositing the same he handed over the copy of the receipt to him. He also made entry in this regard in register No. 19 at srl. No. 1665. Copy of the said entry is Ex.PW 10/A. He also brought the original register No.19 (OSR). During cross-examination he stated that he did not remember the date when IO inquired from him regarding the aforesaid entry.
Xii) PW11 brought the original birth registration register pertaining to prosecutrix Anjali. As per record the date of birth of prosecutrix Anjali is shown as 24.6.95. The photo copy of the birth certificate of the female child is Ex.PW 1/A bearing his signatures at point A and B respectively (OSR).
Xiii) PW 12 is doctor who identified the signatures of Dr.Richa Aggarwal who had medically examined the prosecutrix. She deposed that she had seen the MLC of Kumari Anjali d/o Brijesh aged about 10 years who was brought at GTB Hospital by SI Beena Thakur at about 17 18 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU 1.15 a.m on 15/4/06 with the alleged history of being absconded by an unknown person named Fammu on 13.4.06 at 1.30 P.M. It is also alleged that she was taken to some isolated/lonely place and was subjected to sexual assault. It is also mentioned in the history that patient has taken bath and changed her clothes after assault. Patient was medically examined by Dr. Richa Aggarwal who has left the services of the hospital and her present where abouts were not known as per hospital record. She identified the signatures of Dr. Richa Aggarwal as she had seen her while signing and writing. She identified the signature of Dr.Richa Aggarwal on the MLC prepared by Dr. Richa Aggarwal, Ex.PW 12/A bearing the signatures of Dr. Richa Aggarwal at point A. She also stated that on examination of prosecutrix there was no external injuries seen on the person of Anjali, she was conscious oriented and her vitals were stable. Her breast was under developed, axillary & pubic hair were absent. She further stated that on local examination hymen was found intact but congested which means 18 19 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU hymen was inflamed. She also stated that area between the vulva and anus was congested and tender. The vaginal smear taken with the tip of finger and handed over to SI Beena Thakur. Patient was also advised for ossification test.
Xiv) PW 13 is the Investigating officer and he deposed that on 14/4/06 on receipt of DD No. 38B he along with Const. Pathan Rashid reached at the spot i.e Gali No. 4, Sanjay Gandhi Marg, Babar Pur Delhi where many public persons were gathered. Prosecutrix along with her mother was present and PCR van was also reached there at the spot. One boy namely Fammu was produced before him at the spot. Statement of Kumari Anjali was recorded by him which is already Ex.PW 1/A. He made an endorsement on the same which is Ex.PW 13/A and got the case registered through Const. Pathan Rashid, true copy of DD No. 38B is Ex.PW 4/A. He prepared the site plan at the instance of prosecutrix Anjali which is Ex.PW 13/B bearing his signatures at point A. He further deposed that Const. Pathan Rashid came at the spot and handed over 19 20 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU the rukka and copy of FIR to him. SI Beena was called at the spot and he sent the prosecutrix to GTB Hospital for medical examination with SI Beena. Accused was arrested and interrogated, his arrested memo and personal search memo Ex.PW 3/A and Ex.PW 3/B prepared by him which bears his signatures at point B. Accused was sent for medical examination at GTB Hospital with Const. Pathan Rashid and he also accompanied him. Const. Pathan Rashid also handed over the test tube containing the blood of accused duly sealed with the seal of hospital along with sample seal. MLC of the accused was also handed over to him which was seized vide memo Ex.PW 5/C. He also taken on record the MLC of prosecutrix along with the sample seal of hospital, one vaginal swab slide which were handed over to him by SI Beena , and which were seized vide memo Ex.PW 9/B. The statement of prosecutrix was recorded. The birth certificate of prosecutrix was collected and the exhibits were sent to FSL through Const. Venu Gopal and the result of the same is placed on record which is Ex.PW 13/B. Report of serological analysis is Ex.PW. 13/C and after completion of all the necessary investigation, he 20 21 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU presented the challan to the court for trial. During his cross-examination he reiterated his testimony as submitted by him during his examination in chief. He also admitted that he had not conducted the ossification test of prosecutrix despite the direction given by the doctor. Vol. Stated that birth certificate of prosecutrix was produced by her parents therefore, no necessity was felt to get her ossification test. Thereafter no prosecution witness was left to be examined, therefore, PE was closed. Case was fixed for recording of statement of accused u/sec 313 Cr.P.C .
8. During the course of recording the statement of accused u/sec. 313 Cr.P.C he controverted all the allegations as alleged against him except the fact that there was Bhandara ceremony on 13/4/06 in gali No. 4 on the eve of Hanuman Jayanti. He further stated that he used to play cricket in the street and while playing cricket several times ball hit with the mother of prosecutrix and once a time plastic pipe affixed in the wall of the house of prosecutrix was also broken. Quarrel had taken place between his mother therefore, the mother of PW.1/prosecutrix 21 22 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU and prosecutrix in collusion with each other falsely implicated him in this case, however, he was innocent and no offence of rape was committed by him. He did not desire to lead defence evidence, therefore, defence evidence was closed and case was fixed for final arguments.
9. I have heard Ld. Addl. PP for the state and Ld. Counsel for the accused persons.
10.Ld. Counsel for the accused submitted that before convicting the accused under any penal law it is the duty of the prosecution to prove its case beyond reasonable doubt and in the present case as per prosecution version the offence was committed on 13/4/06 and FIR was lodged on 14/4/06. It is further submitted that there are improvements in the statements of prosecutrix which raises serious doubt upon the credibility of the testimony of the prosecutrix which are as follows : 22 23
FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU
a) prosecutrix in her examination in chief stated that accused put a knife on the right side of his abdomen and blood started oozing but on perusal of the MLC it is no where mentioned that blood or any external bodily injury was seen and this fact was also not mentioned by the prosecutrix in her statement recorded by the IO or in FIR.
b) prosecutrix stated that one other boy was roaming near the place of commission of offence and accused extended threat upon him not to disclose the incident to any one and that boy was not made a witness.
c) Prosecutrix and her mother stated that accused disclosed at the time commission of offence that he had already committed 99 such type of cases and this one would be his 100th case.
d) Prosecutrix stated that Bobby her maternal uncle was also present at the time of arrest of accused but he was not made a witness and mother of prosecutrix has not 23 24 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU admitted that Bobby was maternal uncle of the prosecutrix.
e) prosecutrix in her examination in chief stated that when accused was apprehended he run away from the spot and hide himself in a toilet of another person and this fact was not disclosed by the prosecutrix during her examination u/sec. 161 Cr.P.C. However, PW.2 mother of the prosecutrix stated that Bobby was her servant and not the maternal uncle of prosecutrix. All these improvements in the testimony of prosecutrix raises a serious doubt upon the creditability of testimony of prosecutrix as well as of PW.2 ( mother of prosecutrix).
11. Ld. counsel for the accused placed his reliance on a decided case cited as " TRIBHUVAN PRASAD SHUKLA & ANR. VS STATE OF M.P I (1994) CCR 548" wherein it is observed as under:24 25
FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU "Improvement in story by the prosecutrix at the time of filing FIR- Complete absence of medical evidence - Implication of accused on account of earlier dispute. In such circumstances it was held that Taking into consideration the totality of the evidence, The offence committed by the accused persons would be one u/sec. 354 IPC and not u/sec. 376 IPC."
12. Ld. counsel for accused relied upon a decided case reported as "
PIARA SINGH & ORS. VS STATE OF HARYANA RCR 1992 (2) wherein it is observed as under:
"That allegation that accused kidnapped the prosecutrix from her parental home and took her on foot through thickly populated business places like bazars- . It had not legs to stand upon."
13. Ld. counsel for accused relied upon a decided case reported as "
RAM DITU VS STATE OF HIMACHAL PRADESH 1989 CRL.L.J 25 26 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU 2557" wherein it is observed as under:
" When it appears that complainant had inimical relations with the accused as explained by the accused in his statement u/sec. 313 Cr.P.C. Besides their appears to be business rivalry between Kanhaya (PW2) and and the accused. In case they witnessed the incident, naturally and reasonably, they should have taken the prosecutrix right up to her house and narrated the incident to her mother but instead of doing so they went to their respective houses. They did not narrate the incident to anyone else. Such a conduct assails their version and renders it unworthy of credence. "
14. Despite of aforesaid fact ld. counsel for accused further submitted that prosecutrix during the examination in chief stated that accused removed her nicker (underwear) and also removed his nicker and penetrated his male organ into her female organ. But on perusal of 26 27 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU the medical report no sympton of penetration are disclosed. On the other hand PW 12 Dr. Kanika Aggarwal who identified the signature of Dr. Richa Aggarwal who had medically examined the prosecutrix, clearly stated that hymen was found intact and no external injury was seen and patient was concious oriented and as per Modi's Jurisprudence in case of complete penetration at the age of 10-12 years of female, possibility of presence of injury on the private part can never be ruled out and healing time of such type injury is 6-15 days but no such kind of injury was opined by the doctor, this fact alone is sufficient to disbelieve the testimony of prosecutrix.
15. During her cross-examination PW 1 stated that she had gone to Bhandara with her younger sister Priyanka. The priest was in side the temple and she stayed with her sister for ten minutes. Panditji gave parsad to them and when they were in the way to their home from Bhandara, accused caught hold of her and forcibly took her at an isolated place but these facts were not disclosed by the prosecutrix in 27 28 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU her statement Ex.PW 1/A. The factum of presence of her younger sister Priyanka was not disclosed by her in her statement Ex.PW1/A on the basis of which FIR was lodged. She also admitted that there were residential houses surrounding the spot. During her cross-examination she stated that at the time of incident she was wearing Kurta of Pink colour and Jeans Pant of black colour. During further cross-
examination she again stated that accused removed her black colour pant and then Nicker but she failed to tell the colour of Nicker.
On the other hand during her examination chief she stated that accused removed her Nicker and his nicker and no where stated that she was wearing the black colour jeans pant. During her cross-examination she further stated that when accused was removing her clothes, he extended threats upon her by putting a broken glass on her neck in case she would try to make noise. But these facts were not stated by her in her statement Ex.PW 1/A. She also stated that her Nicker was not blood stained during the incident. Aforesaid contradictions and confrontation/improvements in the testimony of prosecutrix, clearly 28 29 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU raises a doubt upon the credibility on the testimony of prosecutrix. The evidence ofPW2 mother of the prosecutrix is hearsay evidence and she deposed only on the basis of narration of her daughter PW.1.
16. PW3 is formal witness. He only recorded the DD No. 38B on receipt of information from PCR and copy of the same was sent to ASI Raj Pal through Const. Narender.
17. PW4 is again a formal witness. He also recorded the FIR Ex.PW 4/A.
18. PW5 is police official, he joined the investigation with the IO/ASI Raj Pal on 14.4.06 and took the accused to GTB hospital for medical examination.
19. PW5A is Dr.Nikhil Aggarwal who only identified the handwriting of Dr. Deepak on the MLC No. A-1663/06 which clearly goes to show that doctor who examined the accused has not been examined , only his 29 30 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU signatures were identified by another doctor.
20. PW6 is again a formal witness and on 14.4.06 only on receipt of a call about a quarrel at Sanjay Gandhi Marg, Babar Pur. He reached there and found that the accused Fammu was already apprehended by the public persons and public persons told him that on 13/4/06 accused committed rape on a girl namely Anjali.
21. PW 7 is formal witness. He only deposited the exhibits handed over to him by MHC(M) to CFSL Rohini.
22.PW 8 is MHC(M) in the P.S Welcome and he only deposited four sealed pullandas sealed with the seal of hospital in the Malkhan and sent all the exhibits to CFSL Rohini through Const. Venu Gopal vide R/C No. 27/21/06.30 31
FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU
23. PW.9 SI Beena Thakur got medically examined the prosecutrix and handed over the sealed pullanda containing vaginal swab with the seal of hospital to the IO.
24. PW 10 is again formal witness. PW11 produced the date of birth certificate of prosecutrix Anjali. PW 12 is doctor who identified the signatures of Dr.Richa Aggarwal who had medically examined the prosecutrix, which again admitted fact that PW. 12 has not examined the prosecutrix personally and she only identified the signatures of Dr. Richa Aggarwal, which clearly goes to show that the reasons of presence of congestion and tenderness on the private part of the prosecutrix could not properly explained which might be done to various other reasons.
25. PW 13 is the Investigating officer who had corroborated the testimony of all the other PWs and on over all appreciation of the evidence collected by him during investigation which have been discussed above 31 32 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU it has become clear that prosecution could not succeed in proving its case against the accused beyond reasonable doubt and Ld. counsel for accused requested for acquittal of the accused.
26.On the contrary Ld. Addl.PP for the state submitted that prosecution placed sufficient corroborative evidence on record with regard to the commission of offences as alleged against him and discussed all the evidence in support of her contention which are as follows :
27. PW.1 Ms. Anjali/ prosecutrix clearly stated that on 13.4.06 when she reached near the Bhandara, accused threatened her by putting a knife on her right side abdomen in case she would raise alarm. Accused made her lie on the wire, removed his and her undergarments and penetrated his male organ in her female organ and the instances of penetration is further corroborated by P\w 12 Dr. Kanika Aggarwal, She specifically stated that at the time of examination of prosecutrix, by Dr. Richa Aggarwal prosecutrix disclosed her age as ten years, she was 32 33 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU brought by SI Beena Thakur on 15.4.06 with the alleged history of being absconded by unknown person named Fammu on 13.4.06 at 1.30 p.m from near her house. She was taken to secluded place and attempt to rape was committed on her. It was also stated by the prosecutrix before the doctor that she had taken bath and changed her clothes after commission of the offence,therefore, no semen was detected on the exhibits. However, it was opined as under :
a) No external injury on the person of Anjali, but on local examination hymen was found intact but congested /inflamed and the area between vulva and anus was also congested and tender. It was further explained that there was inflammation and pain on touch, which clearly goes to show the instance of forceful penetration within the private part of the prosecutrix and both these evidence alone are sufficient to prove the case of the prosecution.
b) The plea taken by the Ld. counsel for the accused that hymen of the prosecutrix was found intact and no semen was detected on the slide of the vaginal smear which was taken by the doctor at the time of 33 34 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU medical examination of the prosecutrix is not the condition precedents to the proof of commission of rape with the prosecutrix and also placed her reliance on decided case cited as " WAHID KHAN VS STATE OF MADHYA PRADESH 2009 V AD(Crl.) (S.C) 713" in deciding the aforesaid the case expressed by Modi's Medical Jurisprudence and Toxicology ( Twenty Second Edition) 495 was also considered by their Lordships which is as under:
" To constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia Majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore, quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but 34 35 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is legal conclusion, not a medical one."
28. In Parikh's Text bood of Medical Jurisprudence and Toxicology, sexual intercourse has been defined as under:
"Sexual intercourse- In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."35 36
FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU
29. It is further observed that " It is also a mater of common law that in Indian society any girl or woman would not make any 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 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."
30. Ld. Addl. PP for the state further pleaded that age of the prosecutrix is not disputed however, it is duly proved by PW 11 Harish Chander Sub Registrar Birth and death, City Zone, Delhi who produced the photo 36 37 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU copy of the birth certificate Ex.PW 11/A mentioning therein the date of birth of prosecutrix as 24.6.95. She has specifically testified that she has been raped. The place of commission of rape is corroborated vide site plan Ex.PW 13/B wherein mark A is shown as place of commission of offence i.e near the transformer in Gali as stated by the prosecutrix herself in her statement Ex.PW 1/A. The testimony of PW.1 is further corroborated by her mother Smt. Laxmi (PW2) where she disclosed that on 13.4.06 there was a Bhandara at Babar Pur on the eve of Hanuman Jayanti and she had gone to weekly market(Thursday Market) to purchase some clothes etc., by leaving her husband and two daughters at home and at about 2/2.30 p.m when she was returning from the market on rickshaw and when the rickshaw entered in Chajju Gate she saw her daughter Anjali was caught hold by one boy. She got down from the rickshaw by leaving her articles and rescued her daughter from the clutches of the accused. Accused pushed her and run away from the spot. Many people gathered there. Her daughter narrated the incident to her. She also deposed that next day the accused was 37 38 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU apprehended and she along with other public persons took him to their gali and was given beating by the public persons. Someone informed PCR, accused was again apprehended from the toilet and statement of her daughter Ex.PW.1/A was recorded in her presence. She was got medically examined. All these facts were corroborated by the IO PW 13 ASI Raj Pal and PW 9 SI Beena Thakur. The factum of taking vaginal swab and handed over the same to the IO is further proved by SI Beena Thakur and PW8 Bhanu Pratap who deposited the said pullandas in the Malkhana and sent the same to the office of FSL for its chemical examinations. This fact is proved by PW7 Const. Venu Gopal. The factum of arrest of accused on 14.4.06 is further proved byPW 6, PCR incharge and ASI Raj Pal/IO of this case and this face is not even denied by the accused.
PW5 Dr. Nikhil Aggarwal also identified the signatures of Dr. Deepak who conducted the medical examination of accused vide MLC Ex.PW 5/A and in the MLC it is opined by the doctor that "there is nothing to suggest that patient is not capable to perform sexual intercourse." All 38 39 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU these facts collectively produced unbreakable chain of circumstances with regard to the commission of offence by the accused. In view of the aforesaid submissions Ld. Addl. PP for the state requested for conviction of the accused.
31. In view of the submissions of ld. counsels for both the parties, I carefully perused the evidence adduced by the prosecution and observations given by their Lordship in the aforesaid decided cases wherein it is established as under:
a) On 13.4.06 prosecutrix reached at Bhandara held on the eve of Hanuman Jayanti and she was forcibly and under threat was taken at a secluded place i.e near transformer, Chajju Gate and made her to lie on the wire. Accused removed his and her undergarments and penetrated his male organ into her female organ from where she used to urinate. The medical evidence shows that her hymen was intact, but congested, area between vulva and anus congested and tender. The medical evidence appears to be in corroboration of the testimony of 39 40 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU prosecutrix. I also placed my reliance in support of this observations on a decided case cited as " MADAN GOAPL KAKKAD VS NAVAL DUBEY & ORS 1992 AIR SC (2) 1480"
a) In this case a minor girl aged about 8 years, on examination of victim after five days, medical officer found the abrasion on the medial side of the labia majora and redness around the labia minora with white discharge, but the hymen was intact and was admitting the tip of the little finger and in view of the absence of signs of full penetration, the medical officer opined hat there was an attempt to rape. The trial court convicted the accused for the offence of rape but the concerned Hon'ble High Court in appeal changed the conviction from u/sec. 376 IPC to u/sec. 354 IPC. However, Hon'ble Supreme Court on appeal held that under the basis of the medical findings, it could be safely concluded that there was partial penetration within the labia majora or vulva or pudenda, which in legal sense is sufficient to contribute to rape, and convicted the accused for the offence of rape." Indications of Penetration has been discussed by their lordships in the following 40 41 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU decided cases:
Re Anthony AIR 1960 Madras 308 and Bhydan Lal Sharma Vs. State (1961) 1 Cr LJ 689 wherein it is observed that :
"Where the girl, aged seven and a half years, had lacerations over the edges of the hymen, which was also tender, though the membrane had not been ruptured, and smegma was present in the organ of the accused."
Ghanshyam Misra vs. State AIR 1957 Orissa 78, 1957 Cr.LJ 469 wherein it is observed that :
"Where, even though there was no dilation of the vaginal canal, there was injury to the hymen, a tear 1/5" long posteriorly with bruising of the commissure."
State Vs. Kundumkara Govindan 1969 CrLJ 818, 1969 Ker LJ 485 wherein it is observed that :
"Where the hymen was lacerated and its edges were red and swollen, the fourchette being also lacerated, the labia minora red, oedematous and tender to touch, the wall of the vagina sowing abrasions which were infected and the vagina being roomy and admitting two fingers easily."
Das Bernard vs. state 1974 CrLJ 1098 (Goa) wherein it is observed that : 41 42
FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU "Where the hymen, the posterior commissure and fourchette were intact, but there was congestion of the vaginal wall outside the hymen and there was redness underneath the labia majora, though no contusions."
Jagannath Vs. State 1952 CrLJ 1200 wherein it is observed that :
"Where, with the exception of some redness of the entrance to the vagina, the girl of five and a half years bore no other mark of injury."
Natha Vs. Crown AIR 1923 Lah 536, 26 Cr LJ 1185, 88 IC 705 wherein it is observed that :
"Where the hymen of a girl of six or seven years had not been ruptured, but there were stains of blood on both the legs from the vagina down to the ankles and congestion of the orifice of the vagina, it was held, on medical evidence, that partial penetration had taken place."
b) The contradictory pleas taken by the accused during trial that he used to pay cricket in the Gali and in the process the sister of prosecutrix was injured and during cross-examination of PW2 Smt. Laxmi, he took the plea that accused used to play cricket in the gali with the other boys and once or twice cricket ball struck the window of the house of prosecutrix and another plea taken by the accused in his statement u/sec. 313Cr.P.C, that while playing cricket in the Gali, 42 43 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU cricket ball several times hit with the mother of the prosecutrix and once a time struck with the plastic pipe affixed in the wall of the house of the prosecutrix due to which it was broken appears to be false as no evidence in support of these pleas are brought on record.
c) Another plea that the quarrel had taken place with his mother and mother of the prosecutrix and due to this enmity he was falsely implicated by the family members of the prosecutrix, is not proved and not even a single witness to prove either of the fact discussed above, is placed on record. Therefore, the pleas contradictory in itself are not tenable in law and are unworthy of credit.
d) The factum of presence of accused on 14.4.06 in the Gali where house of the prosecutrix is situated and factum of information vide DD No. 38B and on receipt of information reaching of PCR officials as well as ASI Raj Pal along with Const. Narender is also proved and factum of registration of case on the basis of said information is proved by PW 4 ASI Saheb Singh who recorded the FIR Ex.PW 4/A.
e) The factum of capability of performing the sexual intercourse by Dr. 43 44 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU PW5 Nikhil Aggarwal. The lodging of FIR one day after commission of offence is properly explained, therefore, all the ingredients requires to establish the case of rape as defined u/sec. 375 IPC read with explanation appended with the section are proved by the prosecution.
32.In view of the aforesaid established fact and taking into consideration the observations given by their Lordship in the aforesaid decided cases , I am of the considered view that prosecution has succeeded in proving its case against the accused beyond reasonable doubt for the offences punishable u/sec. 376(2)(f) r/w sec.506 IPC. Accordingly accused Fammu s/o Nizamuddin is hereby convicted for the said offences. Let the convict Fammu be heard separately on the point of sentence.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 15th day of Jan 2010.
44 45
FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU IN THE COURT OF SH. B. S. CHUMBAK, ADDITIONAL SESSIONS JUDGE:3 NE DISTRICT: KKD DELHI.
STATE VS. FAMMU S/O NIZAMUDDIN
R/O FAZAR KA MAKAN GALINO.1
BABBAR PUR, CHAJJU PUR
DELHI.
FIR NO. 157/06
P.S WELCOME
U/SEC. 376(2)(F)/506 IPC
ORDER ON THE POINT OF SENTENCE:
PRESENT: Ms. Neelam Narang, Ld. Addl. PP for State.
Sh. A.K TIWARI Advocate on behalf of accused.
Arguments on point of sentence heard.
1. Ld. Counsel for the convict pleaded that the convict is young man of age about 20 years, unmarried, illiterate and belongs to a poor family. The father of accused expired on2.10.08. There are four brothers, five sisters and his ailing widow mother in his family and being eldest member of the family he has to look after the welfare of all his family members.
2. It is further pleaded that accused has no past antecedents of any sort of criminal activity and not is a previous convict. It is further that at the time 45 46 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU of commission of alleged offence, convict was below 21 years of age and requested for releasing the convict on probation as provided u/sec. 360 of Cr.P.C r/w Sec. 3 and 4 of the Probation of Offenders Act. Section 360 (1) Cr.P.C reads as under:
"When any person not under twenty one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life and no previous conviction is proved against the offender, if it appears to the court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with or without sureties, to appear and receive the sentence when called upon during such period(not exceeding three years) as the court may direct and in the meantime to keep the peace and be of good behaviour."46 47
FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU
3. It is further pleaded that accused has been appearing from jail since 14.4.06 and his conduct during the trial remained unblemished and requested for granting him the benefit of section 428 Cr.P.C and also requested for taking lenient view at the time of awarding sentence.
4. ,On the contrary Ld. Addl. PP for the state Submitted that leniency in matters involving serious offences is not only understandable but also against public interest. Such type of offences are to be dealt with severity and with iron hands. Showing leniency in such matters would be really a case of misplaced sympathy. The acts which led to the conviction of the accused are not only shocking but outrageous into their contours.
5. It is further pleaded that in the present case prosecutrix/victim was of about ten years old at the time of commission of offence and in view of her medical examination instances of forceful penetration is proved as there were congestion and tenderness were diagnosed in the area between vulva and anus as well as in the hymen and in such type of henious crime maximum 47 48 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU sentence is to be awarded to the convict as the offence of rape is violation with violence of the private person of the victim, an abominable outrage by all canons and in such type of cases, court should impose the punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the criminal but also the right of the victim of the crime and society at large while considering the imposition of appropriate punishment.
6. In view of the contention of ld. Counsel for both the parties I also gone through the observations given by their Lordships in the aforesaid decided case and also analysed the facts and circumstances of the case and the circumstances under which the offence was committed and also on considering the tender age of the victim, I am of the considered view that it is not a fit case to take lenient view on the point of sentence. I am also not inclined to accept the contention of ld. Counsel for convict to release the convict on probation.
7. In view of the above discussion, the convict Fammu s/o 48 49 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU Nizammuding is sentenced to the term of RI for ten years and to pay a fine of Rs.3000/- in default of payment of fine he shall further undergo SI for three months for the offence u/se. 376(2)(f) of the IPC and RI for six months and to pay a fine of Rs.500/- in default of payment of fine further SI for one month, for the offence u/sec. 506 IPC. Both the sentences shall run concurrently. Fine not paid.
8. The benefit of section 428 Cr.P.C shall be given to the convict as per law. Copy of the judgment and order on sentence be given to the convict, free of cost. File be consigned to Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 19th day of Jan 2010.
49 50 FIR NO. 157/06 , P.S WELCOME , U/SEC.363/366/376 IPC ST. VS FAMMU 50