Delhi District Court
State vs . Vijay Kumar on 16 January, 2007
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IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA,
ADDITIONAL SESSIONS JUDGE, DELHI.
SC No. 85/05
FIR No. 161/05
PS Bara Hindu Rao
U/s 342/376 IPC
State Vs. Vijay Kumar
S/o Late Sh. Ram Dular
R/o Village Dhanak Ka
Purva, PO Tilay Bangar,
Mauza Bhim Pur, PS
Mahuima, Distt. Allahabad
(UP).
JUDGMENT
In brief the case of the prosecution is that on 12.6.05 at about 1.00/1.30 pm prosecutrix Saraswati had gone to play outside the house and at about 2.00 pm her mother Urmila went 2 to search her but she could not be found and then she went towards the toys' factory and found the door of the factory lying closed and thereafter prosecutrix came out of the factory and on asking of her mother that as to what she was doing inside the factory she told that accused after enticing her on the pretext to give her toffee had taken her in the factory and shut her inside the room and removed her underwear and committed rape with her and also wet her underwear because of his discharge and she further told that accused also wiped his penis from her underwear and the underwear and Ghagri and private parts of the prosecutrix were all wet. Someone informed the police and IO SI Satnaraian reached at the spot and recorded the statement of complainant i.e. mother of the prosecutrix as Ex. PW5/A and got the case registered vide FIR as Ex. PW1/A, prepared the site plan Ex. PW12/B at the instance of the complainant, arrested the accused, got done medical 3 examination of the accused and prosecutrix.
2. IO after completion of the investigation filed the charge sheet against the accused U/s 342/376 IPC. Charge was framed against the accused 342/376 IPC to which the accused pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution has examined 15 witnesses. Statements of accused was recorded U/s 313 Cr. P.C. wherein he has denied the case of the prosecution and had not led any evidence in his defence.
4. I have heard Ld. APP and Ld. Counsel for the accused and perused the evidence on record.
Formal Withnesses PW1 HC Rajbir Singh has proved the FIR as Ex. 4 PW1/A. PW6 Ct. Nand Kishore had deposed that after medical examination of the accused concerned doctor had handed over him two sealed parcels containing undergarments of the accused, and blood sample of the accused along with sample seal which he handed over to the IO who seized the same vide memo Ex. PW6/A. PW10 HC Rajender is the MHC(M) and has proved the entries regarding the deposit of personal search articles of the accused and deposit of sealed parcels and sending the same to FSL Rohini for expert opinion.
PW11 Ct. Jagmohan had deposed that after medical examination of the prosecutrix the concerned doctor had handed over to him two sealed parcels duly sealed and sample seal which he handed over to the IO of the case who seized the same vide memo Ex. PW4/A. 5 PW15 W/ASI Abha had deposed further investigation of the case was handed over to her and during investigation she sent the sealed parcels to FSL Rohini for examination and recorded the statement of SI Satnarain and MHC(M).
PW4 L/Ct. Nirmal had deposed that on 12.6.05 she went to the spot and on the request of the IO where the accused was produced to the IO by the public persons and the prosecutrix was produced before her. Accused and prosecutrix were brought to Hindu Rao Hospital for their medical examination. After medical examination of the prosecutrix the concerned doctor had given her one sealed parcel stated to be containing undergarments and one more sealed parcel stated to be containing vaginal swab of the prosecutrix which was seized vide memo Ex. PW4/A. Medical Witnesses PW7 Dr. M.K. Panigrahi had deposed that on 13.6.05 6 he had medically examined the accused and has proved his opinion as Ex. PW7/A and as per his opinion and deposed that blood sample and the undergarments of the accused were also sealed by the CMO.
PW8 Dr. Rohit Singhal had deposed that on 12.6.05 he had examined the prosecutrix Saraswati and referred her to EMO Gynae and has proved her report in this regard as Ex. PW8/A. PW9 Dr. Preeti Mour had deposed that she has examined the prosecutrix and proved her report as Ex. PW9/A and had deposed that slide of thin discharge was made, undergarments of the prosecutrix were sealed with her seal.
PW13 Dr. J.K. Ujjania has proved the MLC of the accused as Ex. PW13/A which was prepared by Dr. Prakash Borah who has left the services of the hospital and his present whereabouts are not available in the hospital. 7 Material Witnesses PW5 Urmila is the complainant and has deposed that on 12.6.05 her daughter Saraswati (prosecutrix) at about 1.00 pm had gone to play outside the house. At about 2.00 pm she went to search the prosecutrix and went towards the toys factory and found the door of the factory lying closed and thereafter prosecutrix came out of the factory and on her asking that as to what she was doing inside the factory she told that accused after enticing her on the pretext to give her toffee had taken her in the factory and after closing the door accused had got taken off her underwear and committed rape with her and also wet her underwear due to discharge and accused had also wiped his private parts from her Ghagri worn by her. She had personally checked her underwear, ghagri and private part of the prosecutrix and found that these clothes as well as the private part was wet. She made the alarm and someone informed the 8 police. Police came at the spot. She made the complaint before the police which is Ex. PW5/A. Accused was arrested. She had not told the type of clothes which prosecutrix was wearing at the time of occurrence. Underwear, skirt and shirt of the prosecutrix were shown to the witness to which she deposed that she do not remember if the the prosecutrix was wearing these clothes at the time of occurrence.
In cross-examination by the Ld. APP for the state she has admitted that the concerned doctor had examined her daughter and the concerned doctor had taken the aforesaid clothes and the seized the same in a parcel. Due to lapse of time she was unable to identify the clothes.
In cross-examination by the defence counsel she has deposed that her daughter had not told her that the accused had committed rape with her. Police had obtained her thump impressions on blank papers. Accused had committed no rape 9 or sexual assault upon the prosecutrix. Mohall people had told her that the accused had committed rape upon the prosecutrix.
PW2 Ram Din is the husband of the PW5 and had deposed that at about 2.00 pm he along with PW5 went outside the house for the search of the prosecutrix. The prosecutrix has told about the incident to PW5. Accused was handed over to the police.
In cross-examination he had denied the suggestion that the accused had lend him money and when he refused to return the same and due to that reason they had levelled false allegations against the accused. His wife went to his shop in between 1.30 to 2.00 pm and told him that the prosecutrix was missing. From the shop he came to his wife for the search of the prosecutrix. He went inside the toys' factory and the accused was alone in the toys' factory.
PW3 Kamal Kishore had deposed that Ramdin who is 10 PW2 used to work in his shop. He was present at his shop and at about 2.00 pm he heard the noise of a lady. After hearing the noise he came down and saw tht Ramdin and few public persons had caught hold of accused Vijay Kumar. He made telephonic call to the police. Accused was apprehended. In cross-examination he had deposed that prosecutrix had not disclosed him about the occurrence.
PW12 Satnarain is the Investigating Officer of the case and had deposed that at about 2.30/2.45 pm on receiving a call he went to the spot where the public persons were apprehending the accused and he had recorded the statement of Urmila as Ex. PW5/A and made endorsement thereon as Ex. PW12/A and got the case registered. He had prepared the site plan Ex. PW12/B at the instance of the complainant. Accused was arrested. Accused and the prosecutrix were taken to Hindu Rao Hospital for their medical examination. He had seized the 11 sealed paracels duly sealed with the seal of HRH.
PW14 Ct. Manbir Singh had gone to the spot along with the IO who is PW12 and has taken the rukka for the registration of the case. He has supported the testimony of PW12 on all material points.
5. Ld. counsel for the accused has argued that accused has been falsely implicated in the case because father of the prosecutrix, who is PW2, has borrowed an amount of Rs. 1,500/- from the accused and he does not want to pay back this amount and on account of this he has falsely implicated the accused in this case. Prosecution witnesses has not supported the case of the prosecution. There are contradictions in the testimonies of the prosecution witnesses. Accused is entitled to be acquitted.
On the other hand Ld. APP for the state has argued 12 that from the evidence on record prosecution has proved its case beyond reasonable doubt against the accused.
In this case the prosecutrix is a child aged about 4 years and the prosecution case rests upon the statement made by the prosecutrix regarding the incident to her mother Urmila in the presence of Ramdin, who is father of the prosecutrix. FIR was registered on the statement of Urmila.
Complainant Urmila has been examined in the court as PW5 and she in her examination in chief has supported the case of the prosecution except on the point of identification of the clothes of the prosecutrix.
However, in her cross-examination she made some inconsistent statement as she has deposed that prosecutrix has not told her that the accused had committed rape with her. Police had obtained her thump impressions on the blank papers. She had told in her examination in chief whatever the Mohalla people had 13 told her. Accused has committed no rape or sexual assault upon the prosecutrix.
However, the PW2 who is the father of the prosecutrix and in whose presence the prosecutrix has told about the incident to PW5 has supported the case of the prosecution.
PW2 and PW5 are consistent in their evidence on the point that door of the factory was lying closed and the prosecutrix came out of the toy'sfactory. PW2 and PW5 has not been cross-examined on this point. It is proved from the testimonies of PW2 and PW5 that when they went for the search of the prosecutrix, prosecutrix was found to be coming out of the toy's factory.
6. As per the case of the prosecution the clothes of the prosecutrix namely underwear, Ghagri and shirt all were wet with semen discharge of the accused.
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In evidence of PW5, when these clothes were shown to the PW5, she has deposed that she do not remember if the prosecutrix was wearing these clothes at the time of occurrence. However, in cross-examination by the Ld. APP for the state she has deposed that due to lapse of time she was unable to identify these clothes. PW5 had admitted that doctor who has medically examined the prosecutrix has seized the clothes of the prosecutrix in a parcel. PW4 Ld/Ct. Nirmal has also supported the testimony of PW5 on the point that after the medical examination of the prosecutrix concerned doctor had given one sealed parcel containing undergarments of the prosecutrix which she has handed over to the IO who seized the same vide memo Ex. PW4/A. PW10 who is the MHC(M) has deposed that this sealed parcel was deposited with him and he sent the same to FSL, Rohini.
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In my view from the evidence of these witnesses it is proved that the clothes of the prosecutrix which were produced in the court and sent to the FSL are the same which the prosecutrix was wearing at the time of incident.
Undergarments of the accused were also seized and sealed in a pulanda by the concerned doctor at the time of his medical examination and the same was seized by the police vide memo Ex. PW6/A and sent to the FSL, Rohini for examination.
As per the FSL report human semen was detected on the underwear, skirt and top of the prosecutrix and semen was also detected on the underwear of the accused. It is opined that group of the semen found on all these clothes was of "AB" group. So, this FSL report corroborates the case of the prosecution that it is the accused who has discharged his semen on the garments of the prosecutrix.
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7. PW9 Dr. Preeti Mour is the another material witness of the case as she has medically examined the prosecutrix. As per MLC Ex. PW 8/A of the prosecutrix Vulva appears normal. No injury marks. There is no injury suggesting the rape. Thin discharge on the Labia Minora. Slide of thin discharge was made and which was sent to the FSL for examination.
As per FSL report the semen had not been detected in the discharge.
8. No direct evidence has been come on record to prove that accused has committed the rape with the prosecutrix and from the MLC Ex. PW8/A and CFSL result it is also not proved that rape was committed with the prosecutrix.
9. The Ld. counsel for the accused has pointed out the contradictions in the testimonies of the prosecution witnesses on 17 the point when the accused was apprehended, number of public persons present at the spot but in my view these contradictions are minor in nature and does not affect the case of the prosecution on merits.
10. Accused has also not led any evidence in his defence to prove that he has been falsely implicated in the case because father of the prosecutrix does not want to repay the amount of Rs. 1,500/- which he has borrowed from the accused. So this defence of the accused is also not proved.
11. In view of the above discussions I am of the opinion that prosecution has been able to prove its case that the accused has wrongfully confined the prosecutrix in the toy's factory and had discharges his semen on the clothes of the prosecutrix intending to outrage her modesty. So, prosecution 18 has successfully proved its case beyond any reasonable doubt against the accused U/s 342 IPC and U/s 354 IPC. However, prosecution has failed to prove its case U/s 376 IPC against the accused. Accordingly, accused is acquitted for the offence punishable U/s 376 IPC and accused is convicted for the offence punishable U/s 342 IPC and 354 IPC. Announced in the open court (RAJNEESH KUMAR GUPTA) today i.e on 16.1.07 Additional Sessions Judge, Tis Hazari Courts, Delhi.