Delhi District Court
State vs Kartar Singh on 7 September, 2009
:1:
In the Court of Ms. Shalinder Kaur
Additional Sessions Judge-FTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 22/08
State versus Kartar Singh
S/o Surender Singh
R/o 2116, Gali No.7,
Prem Nagar, Delhi.
Case arising out of:
FIR No. : 391/01
Police Station : Patel Nagar
Under Section : 376/506 IPC
Judgment reserved on : 26.08.09
Judgment pronounced on : 07.09.09
JUDGMENT
Case History:
1. On 24.06.01, the police of police station Patel Nagar was alerted by an information received from the Wireless Operator which was recorded in the police station as DD No. 20A to the effect that at 4:02 day time Harpal had informed regarding 'wrong act' committed with a girl aged 8 years in H.No. 2117 B, Prem Nagar, Gali no. 7 and had been apprehended. Thereupon the local police commenced its investigations, SI N.R. Lamba alongwith Ct. Suresh reached the alleged house and he met with SC: 22/08 State vs. Kartar Singh :2: the prosecutrix and her parents. A person namely Kartar Singh S/o Surender Singh, R/o H.No. 2116, Gali no. 7, Prem Nagar was also present there having injuries on his person. In the course of investigation, statement of prosecutrix was recorded.
2. She reported the incident as; she was residing at the above mentioned address and was studying in Class Third. On the said day around 11:30 AM she and her friend were plucking blue berries (jamun) from the roof of Shilpi when Kartar Singh, her neighbor who resided opposite her house had called her. As she went near him, he pulled her to his roof and asked her to stand there quietly or he would beat her. Prosecutrix further stated that he made her stand against the wall and pulled down her underwear upto her legs and after pulling down his own underwear started doing 'wrong act' with her. She started screaming and asked him to leave her but he did not leave. Her urinating part started bleeding and she felt lot of pain. After sometime he left her and ran away from there. She wore her underwear and came back to her house. She prayed for appropriate action as Kartar Singh had committed wrong act forcibly with her.
3. FIR for offence punishable U/s 376/506 IPC was got registered, accused Kartar Singh was arrested. The prosecutrix and accused were taken for medical examination. On the next day, the statement of the prosecutrix was also recorded under SC: 22/08 State vs. Kartar Singh :3: section 164 Cr.PC. Various samples were sent for forensic analysis. Charge sheet was laid on conclusion of investigations.
4. After the case was committed for trial to the sessions, as the accused had raised the plea of being a Juvenile, his age inquiry was referred to Juvenile Justice Board. After holding the age inquiry accused Kartar Singh was found to be 21 ½ years of age on the date of his arrest and vide orders dated 16.03.04 he was transferred back to Sessions Court. Charge for offence punishable U/s 376 and 506 IPC was framed against him to which he pleaded not guilty.
5. The prosecution thereafter examined 15 witnesses in order to substantiate the charges against the accused.
Evidence:
6. Prosecution has examined Sh. Harpal Singh, father of the prosecutrix as PW-1. Prosecutrix has been examined as PW-2 and PW-3 is her mother Harmeet Kaur. PW-4 Dr. Gurpreet Kaur, PW-5 Dr. Monika and PW-10 Dr. Ruchi had examined the prosecutrix after the incident.
7. Before reverting to the testimonies of prosecutrix, her parents and the doctors who had examined her, the depositions of other prosecution witnesses can be adverted to first. Ct. Suresh Kumar has been examined as PW-6. He had accompanied IO, SI N.R. Lamba, after receiving DD No. 20A to H.No. 2117, Gali no. 7, SC: 22/08 State vs. Kartar Singh :4: Prem Nagar, Delhi. There they had met with victim and her parents. Accused Kartar Singh was also present there. After recording the statement of prosecutrix, IO prepared Tehrir which he handed over to him for registration of FIR. PW-6 has further deposed the he went to police station and got the FIR registered and thereafter he came back to the spot and handed over copy of FIR and original tehrir to IO. Then he alongwith accused Kartar Singh went to Ram Manohar Lohia Hospital for medical examination of the accused. Doctor handed over four sealed parcels and MLC report of the accused to him which he handed over to IO which were seized vide seizure memo Ex.PW-6/A by the IO. The witness has further proved arrest of the accused and his personal search which was conducted vide memo Ex.PW-1/A. Nothing much could be brought about from his testimony except when they had reached the house of the prosecutrix, accused had been beaten by 2-3 persons present in the room and was injured.
However, he was not beaten in their presence. The witness could not depose about the part of body of accused which was bleeding.
8. PW-7 Sh. Babulal is UDC from Guru Har Kishan Public School, Punjabi Bagh, who proved the school certificate pertaining to date of birth of prosecutrix as 11.12.83.
9. PW-8 Ct. Suresh Chand deposed that on 24.06.01, he was posted on duty in Lady Hardinge Medical College and he had taken two pullandas duly sealed with the deal of SSK & LMHC from CMO in Lady Harding Medical College alongwith sample SC: 22/08 State vs. Kartar Singh :5: seal. He handed over the same to IO SI Lamba who seized it vide memo Ex.PW-8/A. The witness identified his signatures on the memo at point X.
10. PW-9, HC Mumtaz Ali was the MHC(M) posted in PS Patel Nagar on 24.06.01 when SI NR Lamba deposited four pullandas sealed with seal of Dr. Ram Manohar Lohia Hospital alongwith one sample seal. He also deposited two more pullandas bearing seal of Lady Hardinge Medical College alongwith a sample seal of that hospital. All these articles were deposited by PW-9 in the malkhana vide entry no. 3900 which is Ex.PW-9/A. The witness further deposed that on 25.7.01 six pullandas were sent to FSL Malviya Nagar through Ct. Suresh vide Road Certificate no. 130/21 and entry made in register is Ex.PW-9/B. PW-9 has further testified that on 09.10.01, Ct. Hakim Singh deposited pullandas with seal of RK FSL Malviya Nagar vide entry Ex.PW-9/C. He had also produced a report dated 08.09.01 which was handed over to IO. The witness proved the Road Certificate no. 130/21 as Ex.PW-9/D.
11. PW-11 SI N.R. Lamba is the investigation officer. He deposed that on 24.06.01 while he was posted in PS Patel Nagar he was handed over DD No. 20A, Ex.PW- 11/A, in connection with some wrong act committed with 8 years old girl. He alongwith Ct. Suresh reached Patel Nagar, house of the victim at 4:15 PM and found the victim alongwith her parents and accused Kartar Singh present there. He made inquiries from victim and recorded her SC: 22/08 State vs. Kartar Singh :6: statement Ex.PW-2/A, attested the same, made endorsement vide Ex.PW-11/B and sent the same for registration of the case through Ct. Suresh. PW-11 proved the site plan prepared by him at the instance of the victim with correct marginal notes as Ex.PW- 11/C. He further testified that after sometime Ct. Suresh came back to the spot alongwith Ct. Satender and brought rukka and copy of FIR.
12. The witness deposed that after conducting personal search of the the accused, he arrested him vide arrest memo Ex.PW-11/D and thereafter sent him for medical examination to RML Hospital with Ct. Suresh and Ct. Satender. He also contacted Members of Rape Victim Crises Board who reached the police station. Thereafter he alongwith victim and her parents reached the police station and the Member of Rape Victim Crises Board took the victim and her parents to Lady Hardinge Medical College. On his request, a board of three doctors for medical examination of victim was constituted and victim was examined. PW-11 has testified that he collected the MLC Ex.PW-4/A of the victim. PW8, Duty Constable Suresh Chand had handed over to him two sealed pullandas alongwith sample seal which he seized vide memo Ex.PW-8/A. After recording statement of duty constable he returned to police station. He further seized the MLC of the accused and sealed pullandas obtained by PW6, Constable Suresh Kumar from the hospital vide memo Ex.PW-6/A and deposited all the pullandas in malkhana. It has further come in the testimony of PW-11 that he and victim alongwith her parents SC: 22/08 State vs. Kartar Singh :7: visited the spot for minute inspection but could not find anything incriminating there. Thereafter he recorded the statements of parents of victim. Next day Sh. Deepak Garg, Learned Metropolitan Magistrate recorded the statement of the prosecutrix U/s 164 Cr.P.C. On 25.07.01 all the exhibits of the case were sent to FSL Malviya Nagar through Ct. Suresh Kumar and after the results Ex.PW- 11/E & F were received same were placed on the file and he also recorded the statement of the witnesses.
13. The witness was cross examined on behalf of accused. He deposed that the prosecutrix in presence of her parents while making the statement had used the word ''galat kaam'' and the witness reproduced it without adding anything from his side or substituting the word used by her. The witness testified that the prosecutrix did not use the words 'Kartar Singh ne apni peshab Karne wali jagah meri peshab karne wali jagah mein daal di'. Father and mother of the prosecutrix also did not use these words in their statements recorded by him. He deposed that he correctly recorded the statement Ex.PW- 1/DA of Harpal Singh and Ex.PW- 3/DA of Harmeet Kaur included the marked confronted portion therein. PW-11 stated that he had recorded only one statement of the prosecutrix which formed the basis of FIR. He denied the suggestion that FIR was recorded after medical examination of the prosecutrix and the accused was got conducted.
14. PW-11 deposed that when he arrested the accused, he had swelling on his lips and blood was also coming. He denied the SC: 22/08 State vs. Kartar Singh :8: suggestion that accused had severe injuries on his body and he played down the injuries of the accused. The witness testified that he did not prepare separate injury sheet but in his application for the medical examination of accused he had mentioned this fact. He denied the suggestion that he knew at the time of sending the rukka that doctors had not made it case of rape but only of sexual assault. He further denied that accused was bleeding and his condition was very serious due to the beatings given by the family of the prosecutrix and the present case was got registered at the instance of father of the prosecutrix only because of serious condition of the accused.
15. PW-12 Sh. Deepak Garg. Learned Metropolitan Magistrate had recorded the statement of the prosecutrix U/s 164 Cr.PC on 25.06.06 on the application Ex.PW- 12/A moved by IO. He proved the said statement as Ex.PW-2/B. The witness also proved the certificate regarding correctness of the statement recorded by him as Ex.PW-12/B. He testified that on the application moved by the IO he allowed the copy of the statement to him vide order Ex.PW- 12/C.
16. PW-13 Sh. N.C. Bishwas and PW-14 Surender Singh Record Clerks, RML Hospital had identified the handwriting and signatures of Dr. M. Kaushik on the MLC No. 71857 Ex.PW- 11/DA.
SC: 22/08 State vs. Kartar Singh :9:
17. PW-15 Ct. Suresh Kumar deposed that on 25.07.01 he was posted at police station Patel Nagar and on that day MHC(M) had handed over six pullandas, four with one seal and two with another seal alongwith 2 sample seals of SSK and LHMC with FSL form which he took to FSL Malviya Nagar vide Road Certificate and he deposited these pullandas there. The witness deposed that so long the pullanda and sample seal remained in his custody, they were not tempered with.
18. Reverting to the testimonies of the main witnesses. PW-1, Harpal Singh is the father of the prosecutrix. He has deposed that on 24.06.01, on the day of Sunday, when he came from his office he found his daughter aged about 7 years was about to weep and her wife saw her underwear was blood stained. On their asking, the daughter disclosed that accused Kartar Singh had taken her on the roof of his house. Thereafter the accused had removed her underwear and also removed his clothes and had done 'galat kaam' with her. She informed him that he had put his urinating part into her vagina. He tried to search for the accused and when he apprehended him, he called the police on 100 number. Police came and recorded statement of his daughter and also recorded his statement and statement of his wife. His daughter was taken to Lady Harding Hospital where she was medically examined. Underwear of his daughter was seized by doctor and the accused was arrested in his presence. The witness further deposed that IO prepared the site plan in his presence and the statement of her daughter was recorded U/s 164 Cr.P.C. He produced the original SC: 22/08 State vs. Kartar Singh :10: date of birth certificate of his daughter stating her date of birth as 11.12.93.
19. The witness was cross examined at length on behalf of accused. He deposed, he, his daughter, one police person and a woman of some samiti who was called by the SHO, had gone to the hospital for medical examination of his daughter. He admitted that in her statement, his daughter had told the police that 'galat kaam' was done with her. He further admitted that he had also told the police that 'galat kaam' was done with his daughter and police had recorded his statement. He stated that he had said to the police that accused Kartar Singh has put his urinating part into the urinating part of his daughter as told to him by his daughter. The witness was confronted with his previous statement Ex.PW- 1/DA recorded by the police wherein the said fact has not been recorded. He deposed that he had stated to the police that his daughter had said that after calling her on the roof, the accused had removed her undergarment as well as his own undergarment. The witness was again confronted with his statement Ex.PW- 1/DA, where removal of undergarments is not mentioned. He stated that his daughter had told him only the accused had done 'galat kaam' with her.
20. The witness deposed that the accused was present in his house when the police came and he did not have a single injury on his person. No beating was given to the accused in his presence. He stated that he had caught the accused from near SC: 22/08 State vs. Kartar Singh :11: the gurudwara and had brought to his house. The witness deposed that his brother Mahender Singh was also called by him at his house and there was no enmity between his brother and the accused. The witness admitted that his brother is a Treasurer in local gurudwara. He denied the suggestion that he and his brother had given beatings to the accused Kartar Singh and due to these beatings he fell unconscious and thereafter police was informed. He further denied that the accused was bleeding due to the beatings given by them and the blood which came out from his wounds was put on the underwear of the accused as well as of his daughter.
21. PW-2 is the prosecutrix herself. She has deposed her age to be 9 years. The Learned Predecessor of this Court had put certain questions to the said child witness to ascertain whether she can depose in the Court and can give rational answers to the said questions. After being satisfied by the answers given by the child, her statement was recorded on oath. The witness deposed that at the time of the incident she was studying in third class. She could not recall the day of the incident but stated that it had happened in day time as it was not dark at that time. She also could not recall the exact time and deposed that she was playing on the roof of house of her friend Shilpi. They were playing hide & seek and her friend Shilpi had gone down to hide. It was her turn to search her and she was giving her 'done' when the accused came there and called her on the roof of his house. Roof of his house was adjacent to the roof of the house of Shilpi. Accused SC: 22/08 State vs. Kartar Singh :12: had a dog with name Toffee who was also there. The accused asked her to play with his dog. When he had called her, he made her stand against the wall. He removed her underwear and also removed his own underwear and had put his urinating part in her urinating part. When she started crying, he told her to stand there quietly. When she said that she wanted to go to her mother but he was not allowing her to go. He left her after sometime. She deposed that blood had come from her urinating part and she also suffered pain. When he had left her then she wore her underwear and while crying came to her mother. She narrated all these things to her mother and thereafter to the police. They recorded all these things and obtained her signatures. The witness proved the complaint made by her to the police as Ex.PW- 2/A.
22. The prosecutrix further deposed that the police took her to the hospital but she could not recall the name of the hospital and stated that the doctor had examined her. She had shown to the police the place where the accused had done dirty thing with her and her blood soaked underwear was seized by the doctor. She identified her underwear in the Court as Ex.P-1. She further proved her statement recorded U/s 164 Cr.P.C. as Ex.PW-2/B. She deposed that when she had started crying at the time of incident, the accused had put his hand on her mouth and threatened to kill her if she disclosed this incident to anyone or cried.
SC: 22/08 State vs. Kartar Singh :13:
23. The witness was cross examined at length on behalf of accused. During cross examination she admitted that the roof of the house of Kartar Singh is higher than the roof of the house of Shilpi and there is a wall in between. She further admitted that she herself cannot climb the wall between the two roofs to go to the roof of the accused. She also admitted that the accused had pulled her up from the other side of the wall to his roof and in this process she had received an injury on her right arm from brick and her left arm also pained during the process. The accused had dropped her back on the roof of the Shilpi over the wall in the same way as he had pulled her over the wall to his roof. The witness could not state whether her father had gone in search of accused or that her Tayaji Mahender Singh was called to their house after the incident. She could not remember whether accused Kartar Singh had came to their house after the incident or her father and her Tayaji had beaten him in her house. The prosecutrix deposed that she had told the doctor that ''muljim ne apni pishab karne wali jagah meri pishab karne wali jagah me daal di''. She was confronted with her statement recorded by the doctor on her MLC from portion A to A where it is not so recorded. She also deposed that she did not tell the doctor that accused had put his hand inside and she denied the suggestion that she had told the doctor that the accused had put his hand inside. She was again confronted with her statement recorded by doctor on her MLC from point A to A wherein it is so recorded.
SC: 22/08 State vs. Kartar Singh :14:
24. The witness testified that they had gone to police station before going to the hospital. Her mother had given her fresh underwear at the police station and the underwear which she was wearing was taken by the police. She could not remember whether her father had accompanied her to the police station and hospital. Neither she could depose that whether the doctor had asked her about the incident from her parents and whether her parents were present when the doctor had asked her about the incident. She deposed that she had not told the doctor that Kartar Singh had committed 'galat kaam' with her. She stated that whatever had happened with her and was committed upon her while standing against the wall. The prosecutrix also could not remember that how far the accused had pulled down her underwear whether up to knees or not. She admitted that she had told the police in her statement that he had pulled down her underwear up to legs but she could not remember exactly up to what point of leg he had pulled it down. She deposed that she was not made to lie down on the floor. She also could not remember whether she had told the police that the accused had done 'galat kaam' with her or whether she had told that 'he had put his pishab karne wali jagah inside'. She was confronted with her statement Ex.PW-2/A where the word 'galat kaam' is only mentioned. She has denied that her underwear was not blood stained and when she came back home her parents had put the blood of accused on her underwear as well as on his underwear.
SC: 22/08 State vs. Kartar Singh :15:
25. She admitted that 3 years back she did not know the name of place from where men urinate and from where women urinate. She admitted that she had told her parents that accused had committed 'galat kaam' with her and did not tell them that he put his part inside her as she did not know this thing. She admitted that she knew what is meant by hand when she was medically examined by doctor. The witness denied the suggestion that nothing substantial had happened with her and it was a play thing between the children and no urinary organ was thrust inside her urinary part. She also denied that she was tutored by her parents to make a serious case as they had made a small incident into a public issue and were using her for getting a false conviction of accused Kartar Singh.
26. PW-3, Smt. Harmeet Kaur, mother of the prosecutrix deposed that on 24.06.01 her daughter had gone to the house of her friend Shilpi for playing she came back to her house at 12 Noon and was weeping. She told her that the accused Kartar Singh had committed rape upon her. She also told her that her underwear was removed by accused and he also removed his underwear and put his urinating part into her. She disclosed this incident to her husband and thereafter he went in search of accused and after searching him, inquired regarding the incident. The accused agreed and then her husband telephoned the police on 100 number. The police reached at their house and took the accused to police station. Her daughter was also taken to the police station. At that time her daughter was studying in third class. The SC: 22/08 State vs. Kartar Singh :16: witness was cross examined and she deposed that her daughter had not used the word rape when she disclosed the incident to her and she also did not state it to the police. She denied the suggestion that she had made a story on her own that the accused had put his urinary part in urinary part of her daughter. Her daughter had only told her that 'galat kaam' (wrong act) had been done to her but did not specify the same. She again said that her daughter had specified the entire act to her. The witness was also confronted with her previous statement Ex.PW-3/A where the act has not been specified and the word 'galat kaam' is mentioned.
27. Now we come to the testimonies of the doctors who had examined the Prosecutrix. PW-4, Dr. Gurpreet Kaur, Sr. Resident, Lady Harding hospital deposed that on 24.06.01, she was working as post graduate student in the said hospital. The prosecutrix aged 8 years was brought to the hospital by the police for her examination alongwith her father Harpal Singh. The child was examined by 3 lady doctors including her. The other doctors were Dr. Monika and Dr. Ruchi. The MLC Ex.PW-4/A is in the handwriting of Dr. Monika and bears her signatures. She had signed at point B on the MLC. The victim child was examined at about 7.20 PM. The alleged history as given by the child was of having been sexually assaulted by a boy named Kartar Singh, aged 17 years on the said date at 11:30 AM while she was playing at her friend's house at the terrace. She also alleged in the history that Kartar Singh had called her and lifted her across cemented SC: 22/08 State vs. Kartar Singh :17: wall and then after taking off her undergarment he put his hand inside. The witness deposed that she could not correctly read whether it was the word hand or hard written on the MLC. She further deposed that the history was revived at about 8:15 PM according to which history of sexual intercourse and history of ejaculation was not there. The general condition of the child was that she was fully conscious, there were bruise marks over left forearm, her general appearance was good, there were no axillary hair found on her, breast was not developed. She was not having pubic hair on her private part. There was no bruises, no sign of local trauma, hymen was torn freshly and there were no fresh bleeding from vagina. Specimens of two high vaginal swabs were taken, one slide of vaginal smear was made. The blood stained under garment was also preserved. There was no hair sticking to the undergarment. The opinion given was that sexual assault could not be ruled out. She was referred to Forensic department for her smear examination and evidence of sperms. The child was in mental trauma when she was examined in her presence.
28. PW-5 Dr. Monika, Sr. Resident, who had also examined the prosecutrix on 24.06.01 deposed that the prosecutrix was brought by Ct. Suresh Chand with alleged history of sexual assault by boy named Kartar Singh, aged 17 years old on the same day at 11:30 AM. She had taken the alleged history of the patient from her only. PW-5 testified that after half an hour the history was reviewed from the girl and she gave clear history of the sexual intercourse and history of ejaculation was not given. The MLC SC: 22/08 State vs. Kartar Singh :18: prepared by her in her handwriting is Ex.PW-4/A which bears her signatures. The clinical impression of PW-5 was that the sexual assault cannot be ruled out and it depends upon the forensic examination of the specimen taken from vagina for evidence of sperms. She also deposed that the prosecutrix had a bruise mark of 2 cm over her left forearm.
29. She was cross examined at length on behalf of accused. The witness was shown Modi's Medical Jurisprudence and Toxicology (21 edition) containing table no. 2 at page no. 108. After consulting the said table which is Ex.JX, PW-5 admitted that in case one of the parent has O+ve blood group, the child cannot possibly have blood group AB. She deposed that no fresh bleeding as mentioned in MLC implies that there was no bleeding at the time of examination. The witness admitted that the word 'Freshly' was not written when the words ''hymen torn'' had been written. She also admitted that this word is in a different ink but is in her hand writing. She deposed that opinion ''sexual assault cannot be ruled out'' was given after complete examination. She had first signed the MLC Ex.PW- 4/A at 7.20 PM at portion mark A after completing local examination of the girl and after having taken the samples. She also admitted that Dr. Ruchi and Dr. Gurpreet had not signed the MLC at that time and they had signed the MLC for the first time at 8:15 PM but she volunteered that they were present with her when the patient was examined by her. She also admitted that Dr. Ruchi and Dr. Gurpreet have themselves not internally examined the genitals of the patient and had SC: 22/08 State vs. Kartar Singh :19: witnessed her doing the same. They had signed as the patient was required to be examined by three doctors. She denied the rest of the suggestions that the revised history was written as the earlier history and report did not make out any case against the culprit. She further denied that the word 'freshly' was written after revised history had been prepared. She deposed that after completing the examination and writing the MLC during course of revising the MLC the word 'freshly' was written as it was left out earlier.
30. Learned counsel for accused Sh. Dhanvir Singh drew the attention of the witness to Taylor's principles and practice of Medical Jurisprudence. The witness was in agreement with portion mark A to A mentioned on page no. 60 of the 12th edition of the said book which mentions that :
It is impossible to conceive that forcible intercourse should take place in childhood without bruising, effusion of blood, or a laceration of the private parts. The size of an adult male organ must necessarily cause some local injury in the attempt to enter the vagina of a child. If the violation has taken place within 2 or 3 days the appearances presented by the parts may be as follows : (1) Reddening or frank inflammation with abrasion or tearing of the lining membrane, introitus or of the vagina. (2) Muco-purulent discharge from the vagina of a yellowish or greenish-yellow colour, staining the clothing; the urethra mya possibly share in the inflammation. (3) In recent cases blood may SC: 22/08 State vs. Kartar Singh :20: be oozing from the injured parts or clots of blood may be found in the vulva. (4) The hymen may be entirely destroyed, or may show lacerations. Owing to their inflamed state, a proper examination of the parts is often difficult- any attempt to separate the thighs of this purpose causing great pain. For this reason also, the child walks with difficulty and complains of pain in walking.'' PW5 further showed her agreement with the observation made by the author at point B to B at page no. 61-62 wherein it is mentioned that :-
When there are no marks of violence or physical injury, because none originally existed or had disappeared in the course of time, a medical witness must leave the proof of rape to other evidence. The absence of marks of violence on the genitals of the child, when an early examination has been made, is strong evidence that rape has not been committed. A false charge might easily be made and sustained if medical opinions were hastily given on the statements of the mother and the child in the absence of physical appearance to corroborate the accusation. If there has been considerable delay before examination, inflammation may have developed and this may obscure the original character of the injuries."
31. The witness opined that touch of breast, genitals or putting finger in vagina of a girl would be termed as sexual assault. Her clinical impression was that 'sexual assault cannot be ruled out' was not dependent on the report of chemical examiner which SC: 22/08 State vs. Kartar Singh :21: were to be received subsequently. She stated that the report of examiner regarding smear, swab and specimen taken from vagina for evidence of sperm is necessary to form opinion regarding sexual intercourse having taken place. The witness categorically deposed that on perusal of the FSL report and MLC prepared by her it can only be said that no ejaculation appears to have taken place and it cannot be said that no intercourse took place. She stated that she had not re-examined the private parts of the prosecutrix between 7:20 PM to 8:15 PM. She admitted that hymen can be ruptured by insertion of finger in the vagina. She could not opine whether sexual intercourse could have been done with the prosecutrix while standing. PW-5 further admitted that hymen can get ruptured while climbing stairs, playing, climbing walls etc. She denied the suggestion that her MLC report is not correct or fair or was made under pressure of parents of prosecutrix and the police.
32. PW-10 Dr. Ruchi, Sr. Resident, Lady Harding Medical College is the 3rd doctor is alleged to have examined the prosecutrix on 24.06.01. She deposed that she had examined the patient on the same day after she was examined by Dr. Monika, PW-5. After examination and going through the observation of Dr. Monika on MLC she had also endorsed the same. She had taken the samples of smear and swab and handed over the same to accompanying officer and the blood stained garments were also preserved. She proved her signatures at point X on the MLC Ex.PW- 4/A. During cross examination, the witness deposed that SC: 22/08 State vs. Kartar Singh :22: no fresh bleeding means that there was no bleeding from the vagina for the last 6-8 hours. No sign of local trauma means there was no sign of any sexual activity in or around the private parts (genitals) of the girl. She deposed the penetration of penis in the genitals of the girl can be ruled out in view of the record of the MLC.
33. This is the entire evidence oral as well as documentary evidence brought on record by the prosecution as noted above. Statement of the accused was recorded U/s 313 Cr.PC. He pleaded innocence and stated that there was a misunderstanding with the parents of the prosecutrix that he misbehaved with her. They gave him beatings as a result of which he received injuries and started bleeding. When the parents of the prosecutrix apprehended that a case would be registered against them they filed the present false case against him. The accused examined only one witness in defence i.e. Dr. M.S. Lakshmi as DW-1. She proved the blood test report Ex.DW- 1/A of the accused reporting his blood group as AB negative.
Contentions:
34. According to Learned Addl. PP there is sufficient evidence on record to convict the accused. PW-2 the prosecutrix was aged 8 years at the time of the incident, however, she has narrated the complete incident on the day of occurrence itself to the Investigation Officer. She has given history of the incident to the SC: 22/08 State vs. Kartar Singh :23: doctor again on the same day. Thereafter her statement was recorded U/s 164 Cr.PC on the next date and finally she deposed in the Court about the incident. Throughout in all the statements, made by her, she has deposed about the same act though she may have used different words to explain the act. Her testimony also stands corroborated by the testimony of her parents as well as the medical evidence. PW-5 Dr. Monika had categorically deposed that it was a case of sexual intercourse but without ejaculation. It was contented that the testimony of Dr. Gurpreet is not of much assistance to the prosecution as she was in the ward while the prosecutrix was medically examined by Dr. Monika. Therefore she herself did not examine the prosecutrix. It was also argued from the MLC as well as the doctors who had examined her have consistently deposed that the prosecutrix had scratch marks on her arm and it is also the case of the prosecution that these scratches were caused on her arm in the process when the accused lifted her from the roof of her neighbor to bring her to his own roof which was at a higher level and after committing rape on her, he again lifted her down the roof. Thus, the entire prosecution case has been sufficiently proved. In support of the contentions, the prosecution has relied upon the judgments, pronounced by the Apex Court reported as Tarkeshwar Sahu vs. State of Bihar 2006 (4) RCR (Crl.) 603 and State of Himachal Pradesh vs. Asharam 2006 (1) RCR (Crl.) 139.
35. Sh. Dhanvir Singh, Learned Counsel on behalf of the accused submitted that there are major variations in the evidence of the SC: 22/08 State vs. Kartar Singh :24: prosecutrix and her parents. He pointed out that a general trend cannot be ruled out that there is a certain category of parents who would like to involve a person to face a trial in a rape case may be to satisfy their ego or for some other reason suited to them. The Learned counsel did not dispute with the legal preposition that a conviction can be based on an uncorroborated testimony of prosecutrix but stated that if the said testimony is doubtful then for corroboration medical evidence or the other evidence adduced on the record is to be seen. Reliance has been placed upon the judgment Lali Ram & Another vs. State of M.P. SC 2008(4) JCC 2813 wherein it has been held that 'However, if the Court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial'. It is further held that 'If the prosecution version is not credible then there should be need for corroboration. Learned Counsel contended that in the present case, there has been material improvements in the testimony of the prosecutrix, therefore, same requires to be corroborated by the medical evidence. He has further clarified that on the fateful day, the accused was beaten blue & black by the father of the prosecutrix and his other relatives to such an extent that he was badly injured and profusely bleeded. Apprehending that they may be arrested for their such act and in order to save themselves they have falsely implicated the accused for rape charges.
36. He stated that the MLC of the prosecutrix Ex.PW-4/A further casts a doubt on the prosecution version as the alleged history of SC: 22/08 State vs. Kartar Singh :25: the incident was given by the prosecutrix herself to the doctor who had examined her. She was examined at 7:20 PM when she gave the history of sexual assault to the doctor alleging that the accused after removing her undergarment had put his hand inside. However, the same history had been revised at 8:20 PM by the same doctor mentioning a clear case of sexual intercourse without ejaculation. It was contented that the revised history can only be considered if the prosecution is able to show that what where the exact words told by the child to the doctor conveying about sexual intercourse done with her by the accused. Otherwise the said history cannot be relied upon as the Court has not to apply its judicial mind to the words uttered by the doctor but has to consider the words or the act as stated by the victim to the doctor. It was further contented that the MLC has been further manipulated by the doctor in connivance with the police and the parents of the child, may be the doctor adopted a sympathetic approach towards the child as earlier in the MLC it has been mentioned ''Hymen torn'' but the same has been manipulated by adding ''Freshly'' after the words 'hymen torn' and that too in a different ink.
37. The next argument raised in defence of the accused was that according to version of prosecutrix, the undergarments of both were merely slipped down and not completely removed, therefore, sexual intercourse cannot be done without completely removing the undergarments and that too in a standing position. The Learned Counsel thereafter pointed out the contradictions SC: 22/08 State vs. Kartar Singh :26: appearing in the statements of the prosecution witnesses and it was contended that the words regarding 'penetration' have been put in the mouth of the child by the parents as per their own presumptions. The other discrepancies pointed out in the prosecution case on behalf of defence are that the undergarment of the prosecutrix was already changed by her in the police station and she wore a fresh undergarment before going to hospital for her medical examination which casts a doubt on the blood-stained undergarment preserved by the doctor and handed over to the police. It was argued that the FSL report totally negates the prosecution case of rape as the blood found on the underwear of the prosecutrix as well as of the accused is of AB Group which is his blood group. Same was planted by the parents of prosecutrix on both the undergarments. To substantiate the said argument, reliance was placed on Ex.JX.
38. It was also argued that even though the prosecution has placed reliance on the testimony of PW-5 Dr. Monika who has testified that it cannot be said that no intercourse took place whereas PW-10 Dr. Ruchi had deposed that penetration of penis in the genitals of the girl can be ruled out. Thus, when there are two versions deposed by the prosecution witnesses then the one which favours the accused is to be relied upon by the Court and testimony of PW10 clearly belies 'penetration'.
39. The Learned Counsel argued that in the absence of any sign of local trauma in or around the private parts of the prosecutrix SC: 22/08 State vs. Kartar Singh :27: who is a child, as per medical jurisprudence, it cannot be case of rape. It was argued that the testimony of the prosecutrix that she bleeded per vagina and suffered pain shows that it has been portrayed as a case of 'full penetration' and not 'slightest penetration' but the same does not gets substantiated by the medical evidence led by it as no signature of male organ can be seen in private parts of prosecutrix. Therefore, it is not a case of rape and not even an attempt because the said case never proceeded beyond the preparation stage. It was contended that the hymen can be torn as admitted by the doctors even while climbing a wall etc and in this case the prosecutrix was lifted over the wall and then was lowered down over the wall which may have torn her hymen. It was vehemently argued that in view of the inherent contradictions appearing in the testimony of prosecution witnesses, medical evidence adduced by it, no injury found on the male organ of the accused and moreover no opinion given about his potency, the accused cannot be held guilty on flimsy evidence for the offence punishable U/s 376 IPC. To support the contentions, reliance has been placed upon the judgments :
Aman Kumar & Anr. vs. State of Haryana (SC) 2004 (1) JCC 409, Rahim Beg vs. State of UP 1972 Crl.LJ 1260 and Jai Chand vs. State 1996 Crl.LJ 2039.
Findings:
40. The testimony of the prosecutrix was recorded after almost three years of incident. At that time, she was studying in Class VI SC: 22/08 State vs. Kartar Singh :28: whereas at the time of the incident, she was a student of Class III. The fact that the accused had pulled up the prosecutrix on his roof from the roof of Shilpi has not been denied on behalf of the accused. Rather it has been admitted by suggesting to the prosecutrix during her cross-examination that the roof of his house is higher than the roof of house of Shilpi and it has a wall in between. It is also admitted that the accused had pulled up the prosecutrix from the other side of the wall to his own roof and in this process, she had received injury on her right arm from brick. It has also been admitted that a small incident had occurred on the said day. The further deposition of the prosecutrix to the effect that the accused thereafter made her to stand against the wall, removed her underwear and also removed his own underwear, has not been challenged while cross-examining the prosecutrix. Even she has not been suggested that the accused did not pull down the underclothes of both of them.
41. However, the deposition made by the prosecutrix that after removing the undergarments, the accused had put his urinating part in the urinating part of prosecutrix, has been sterneously challenged by arguing that this part of the testimony of the prosecutrix is nothing but glaring improvement over her statement Ex.PW2/A. Moreover, all the statements made by her during the entire process i.e from investigation phase to trial are not consistent. In the statement Ex.PW1/A made to police on the day of the incident, she had stated 'galat kaam' only. However, to the doctor PW5 who had conducted her medical examination at 7.20 SC: 22/08 State vs. Kartar Singh :29: PM on the same day, the prosecutrix narrated that accused had put his hand after removing her underwear which got changed to insertion of 'Poonch' before the Learned MM in her statement Ex.PW2/B and the same was exaggerated to an act of sexual intercourse in her deposition made before the Court. It was also argued that same is fate of the testimony of parents of the prosecutrix. Elaborating the arguments, it was stated that a 'galat kaam' could even be an 'indecent touch' which is corroborated by MLC of prosecutrix by way of alleged history given by her to doctor at 7.20 PM and by observations of doctor that no local trauma or injury found. Therefore, the prosecution version is unreliable and the testimony of PW10 and FSL result favours the accused.
42. Before marshelling the evidence brought on the record, let us first consider the law laid down by Hon'ble Supreme Court to evaluate the testimony of a prosecutrix in a rape case. In Aman Kumar and Anr. vs. State of Haryana AIR 2004 SC 1497, it is held as under :-
" It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that here testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and SC: 22/08 State vs. Kartar Singh :30: emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice.
It is further held that penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virle member of the accused was within the labia of the pudendum of the workman, no matter how little. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without vilence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more form, less elastic and gets stretched and lacerated earlier. Thus, a relatively less forceful penetration may SC: 22/08 State vs. Kartar Singh :31: not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia mojora. These, viz. labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the females for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC.
43. In this background, now let us examine the statement of prosecutrix Ex.PW1/A which cannot be read in isolation. She has stated that after removing undergarments of both of them, the accused started doing 'wrong act'. She started screaming and asked him to leave her but he did not. She started bleeding from her urinating part and also felt pain. After sometime, he left her and ran away from there. The prosecutrix repeated the same statement and explained this 'wrong act' on the next day to the Learned MM, PW12 who recorded her statement U/s 164 Cr.P.C. She stated that after removing the undergarments of both, the accused had put his 'poonch' inside her. From this statement, it is SC: 22/08 State vs. Kartar Singh :32: apparent that prosecutrix was not tutored at all as alleged by the defence. Had she been tutored, she would have named the male organ but would not have labelled it as 'poonch'. She has also stated that she did not know the 'Name'. To an innocent child of 8 years, something appearing on the lower part of the body may look like a 'Tail'. Thus, she comprehended the male organ as 'poonch'. Moreover, in her cross-examination, she has admitted that three years back, she did not know the names of places from where men and women urinate but she knew them now.
44. PW12 has mentioned in the proceedings that the child appeared to be very intelligent and was capable of understanding the questions nicely and of giving rational answers to them. Moreover, when prosecutrix has been examined as PW2 she has not contradicted her previous statement Ex.PW2/A but has merely explained the 'galat kaam' by deposing that accused had put his urinating part inside her urinating part which she has already explained to PW12 on the very next day.
45. The argument raised on behalf of accused that the first alleged history of 'putting hand inside', mentioned on the MLC of the prosecutrix, cannot be ignored which is the 'galat kaam', stated by her in her statement Ex.PW1/A. However, the said argument does not find any support from the statement of prosecutrix Ex.PW1/A. She has stated that accused started doing the 'galat kaam' after removing the undergarments of both. Had the accused been indulging in 'galat kaam' only by putting his SC: 22/08 State vs. Kartar Singh :33: hand or finger then there was no necessity for him to remove his undergarment. Prosecutrix has not been cross-examined and not even suggested that the accused did not remove his undergarment. What thus, emerges from the statement Ex.PW2/A is that it is apparent that by 'galat kaam', the prosecutrix was stating about 'penetration' which she has explained in her subsequent statements i.e. recorded by Learned MM Ex.PW2/B and her deposition made in the Court as PW2. It is not a case of improvement over previous statements or making inconsistent statements but merely explaining the act more clearly. During cross-examination, the prosecutrix has not been asked that what she meant by 'galat kaam'.
46. Now, we come to the much controversial 'Revised History' given in the MLC of the prosecutrix. PW5 has deposed that prosecutrix gave her brief alleged history before she was examined by her. After half an hour, the history was reviewed from the girl then she gave clear history of sexual intercourse. However, PW5 could not remember the words used by the prosecutrix during the course of revised history which appears to be true as PW5 was examined as a prosecution witness after more than five years since she had examined the prosecutrix. PW5 also deposed that the pen used in writing about 'revised history' and word 'freshly' appears to be same. She has clarified that perhaps the ink of her pen had dried out and hence another pen was used.
SC: 22/08 State vs. Kartar Singh :34:
47. It cannot be overlooked that prosecutrix being a child of 8 years was unable to comprehend the unfortunate incident. It would have been tormenting for her, on the same day to suffer this incident, to be inquired by the police and thereafter to be medically examined. That is from 11.30 AM to 8.20 PM, she underwent this trauma. This state of mind of the prosecutrix gets substantiated from the testimony of PW4, Dr. Gurpreet who has deposed that the child was in mental trauma when she was examined in her presence. Therefore, in such a state of mind, she gave the first alleged history but after her internal examination and finding freshly torn hymen, the history may had been reviewed from the child and then she gave a clear history of sexual intercourse. Moreover, no motive can be imputed on the doctor for making a grave offence if it was not so as the prosecutrix and accused were strangers for her. Further more PW1, Sh. Harpal Singh has categorically deposed that he did not know as to what was told by his daughter to the doctor in the room and the doctor also not told him later on as to what was told by his daughter to her. His daughter was not medically examined in his presence and he was outside the room. On the other hand, no cross- examination of the prosecutrix has been done on the revised history given by her. It has not even been suggested to her that she did not give the revised history to the doctor.
48. In Udai Singh vs. State 2009(1) AD (Delhi) 14, Hon'ble Delhi High Court has observed that the doctors are normally concerned with the injuries and their treatment and not with SC: 22/08 State vs. Kartar Singh :35: the fact as to who had caused the same. In these circumstances, there is no ground to disbelieve the revised history, given by the prosecutrix to PW5 and to assume that it has been manipulated. PW5 has also explained that why words 'freshly' and 'revised history' were written in different ink. She has clarified that the word 'freshly' was written during the course of revising the MLC as it was earlier left out.
49. Thus, the testimony of the prosecutrix is reliable and consistent. Same is corroborated by the testimony of her parents PW1 & PW3 as immediately after the incident, she had told them about it. Thereafter PW1 had apprehended the accused and police was also informed by 4.02 PM.
50. Even though the testimony of the prosecutrix being cogent now does not require corroboration still let us revert back to the medical evidence to ascertain whether it corroborates her testimony or not. In support of the argument that in the absence of 'local injury' found on the private parts of the prosecutrix, a case of rape is not made out, the accused has relied upon 'Taylor's Medical Jurisprudence' which speaks about forcible intercourse in a child which is impossible without bruising; effusion of blood or a lacceration of private parts. However, it further provides that when there are no marks of violence or physical injury because none originally existed or had disappeared in course of time, a medical witness must leave the proof of rape to other evidence.
SC: 22/08 State vs. Kartar Singh :36:
51. In Madan Gopal Kakkad 1993(1) BLJR 129, the Hon'ble Supreme Court has relied upon Modi on Medical Jurisprudence and Toxicology and held as under :-
We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical and Toxicology (Twenty First Edition) at page 369 which reads :
Thus, 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 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 that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.
In Parikh's Textbook of Medical Jurisprudence and Toxicology, the following passage is found :
Sexual intercourse : In law, this terms 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 SC: 22/08 State vs. Kartar Singh :37: legally the offence of rape without producing any injury to the genitals or leaving any seminal stains.
In Encyclopedia of Crime and Justice (Vol.4) at page 1356, it is stated:
.... even slight penetration is sufficient and emission is unnecessary.
The First Explanation to Section 375 of Indian Penal Code which defines 'Rape' reads thus:
Explanation:- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
52. Thus, the medical jurisprudence by 'Taylor' and 'Modi' both can be reconciled. 'Taylor' is talking about forcible intercourse in a child. It has also clarified that in absence of marks or violence or physical injury, other evidence should be seen. On the other hand, Modi propounds the opinion that partial or even an attempt at penetration is quite sufficient to constitute the offence of rape which is quite possible without producing any injury to the genitals or leaving any seminal stains. From the cogent testimony of PW2, it is evident that it is a case of 'mere penetration' and not forceful intercourse resulting in local injuries. PW2 has deposed only to the effect that the accused had put his urinating part inside her urinating part. This also explains the fresh tearing of her hymen.
53. Further, the accused has relied upon the testimony of PW10, Dr. Ruchi as it has been found that her deposition is favourable to SC: 22/08 State vs. Kartar Singh :38: him. To give this benefit to the accused, first it is to be ascertained whether testimony of PW10 can be relied upon or not. PW10 has deposed that the penetration of penis in the genitals of the girl can be ruled out in view of the record of MLC.
54. PW5 during cross-examination has admitted the suggestion that Dr. Ruchi and Dr. Gurpreet had themselves not internally examined the genitals of the prosecutrix but had only witnessed her doing the same. She also admitted that they had signed the MLC as the patient was required to be examined by three doctors and they had not examined the patient themselves. PW10 has deposed that on that day, she was in the wards. Dr. Monika, PW5 was in casualty and must have examined the victim. It is, thus, apparent that PW4 & PW10 did not themselves examine the prosecutrix but she was examined only by PW5. Therefore, prosecutrix had narrated the alleged history to PW5 in presence of PW4 and revised the history to PW5 & PW10. PW10 has deposed in response to a Court question that there was no possibility of penetration of penis because the reports have come out negative. Thus, her opinion is not based on the self examination of the prosecutrix but on FSL report. On the other hand, PW5, Dr. Monika had examined the prosecutrix after taking alleged history and thereafter formulated her opinion on the basis of MLC prepared by her and FSL reports that it was a case of no ejaculation but it cannot be said no intercourse took place. The Hon'ble Supreme Court in Madan Gopal Kakkad (supra) has observed as under :-
SC: 22/08 State vs. Kartar Singh :39: A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court.
Nariman, J. in R.V. Ahmed Ali 11 WR Cr.25 while expressing his view on medical evidence has observed that the evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular combination of circumstants, however, confidentialy, he may speak, is ordinarily a matter of mere opinion.
55. Therefore, the testimony of PW10 is not acceptable as she herself did not examine the prosecutrix but has formulated her opinion only on the basis of FSL reports whereas PW5 Dr. Monika had seen and examined the prosecutrix and thereafter formulated her opinion on the basis of MLC and reports. The testimony of PW5 is corroborated by the testimony of PW4, Dr. Gurpreet. It emerges from her testimony that bleeding found as a result of tearing of the hymen can be seen for seconds or even for days. Bleeding can spontaneously stop after hymen is ruptured. She SC: 22/08 State vs. Kartar Singh :40: emphasized on the fact that there was no fresh bleeding seen in the child but hymen torn was fresh. It, thus, emerges that even the medical evidence further lends support to the cogent and consistent testimony of the prosecutrix.
56. It was also argued that the blood found on the undergarments of the prosecutrix and the accused has been planted by the parents of the prosecutrix. Evidence of DW1 Dr. M.S. Laxmi was referred to. It was contended that DW1 has proved that accused had AB blood group. FSL report proves that blood found on the undergarments of the prosecutrix as well as the accused had AB blood group. Moreover, on the undergarment of the prosecutrix, there could not have been the blood of prosecutrix as her father has deposed that he had O+ve blood group. According to medical jurisprudence, if one of the parent has O+ve blood group, a child can never have AB blood group, therefore, it strengthens the defence of accused that after he was beaten by the father and uncle of the prosecutrix, blood which oozed from his injuries was put on the undergarments of both.
57. Ex.PW11/DA is the MLC of the accused. It shows that even though the alleged history has been mentioned as 'involvement in sexual intercourse' yet he was not examined for the said purpose to rule out whether he had any injury on his private parts or not. However, the defence of accused that his blood has been put on undergarments gets belied by the cross-examination of PW1. He has deposed in answer to querry raised on behalf of accused that SC: 22/08 State vs. Kartar Singh :41: when his daughter told him that 'galat kaam' had been done with her and he saw her underwear then he presumed that she must have been raped. This fact established that there was blood on the undergarment of the child even before the accused was apprehended by the father of the prosecutrix. If the blood was already there then later on, it could not have been put there from the wounds of the accused.
58. Although a faint argument was raised that in the absence of medical opinion that accused is not incapable of performing sexual intercourse which opinion is must to bring home the charge of rape, therefore, he cannot be held guilty for the same. This argument is not sustainable as the accused has not taken the defence that he is incapable of performing sexual intercourse. Therefore, even the absence of such opinion in this case, is not fatal to the prosecution case.
59. To deal with the argument raised on behalf of the accused that without laying down the prosecutrix on the floor, the accused could not have performed sexual intercourse with her in standing position, I rely upon the judgment passed by Hon'ble Supreme Court in Ranjit Hazarika vs. State of Assam (1998) 8 SCC 635, wherein it is held as under :-
The mere fact that no injury was found on the private parts of the prosecutrix or her hyment was found to be intact does not belie the statement of the prosecutrix as she nowhere SC: 22/08 State vs. Kartar Singh :42: stated that she bled per vagina as a result of the penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private parts. To constitute the offence of rape, penetration, however slight, is sufficient.
Thus, the posture is immaterial to perform the act.
60. Another argument raised by the Learned Counsel for the accused does not impress upon that after the incident, he was beaten black & blue by father and uncle of the prosecutrix, he was injured and fearing that they may not be apprehended, they falsely implicated him in a grave offence. The MLC Ex.PW11/DA shows that accused had bruises on back, abrasion on right leg approximately 4 cm, bruise mark on left leg and swelling due to abrasion on chin before his arrest. Although no medical opinion has been given about the nature of these injuries yet on the face of it, these injuries appar to be simple in nature and would not have in any manner terrorized the father and uncle of the prosecutrix to get as alleged a minor offence converted into major offence in order to save themselves from any prosecution. Moreover, there is nothing on record to suggest that why the prosecutrix and her parents would falsely implicate the accused who has been their neighbour and put their own reputation and honour of their daughter at stake.
SC: 22/08 State vs. Kartar Singh :43:
61. In State of Punjab vs. Gurmit Singh & Ors. (1996) 2 SCC 384, the Apex Court observed as under :
The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with dobut, disbelief or suspicion ? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there SC: 22/08 State vs. Kartar Singh :44: is no requirement of law to insist upon corroboration of her statement to base conviction of an accused.
It was further held that inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.
62. The prosecutrix had alleged that while committing the offence, the accused had threatened her to stand there quietly or he would beat her. Although when she was examined as PW2, she has stated that the accused had told her to stand there quietly but subsequently also deposed that he had threatened to kill her if she revealed the act to anyone or cried. The fact cannot be ignored that the prosecutrix has been examined after three years of the incident and minor contradictions are bound to appear in her testimony. Nevertheless, it emerges from her testimony that the accused had threatened her at the time of incident and thereby criminally intimidated her.
63. In the judgment Rahim Beg vs. State of UP (supra), the Hon'ble Supreme Court has observed that :
Rape alleged to have been committed by a fully developed man on a girl of 10 or 12 years who SC: 22/08 State vs. Kartar Singh :45: was virgin and whose hymen was intact - Absence of injuries on the male organ of accused would point to his innocence.
However, the said judgment is of no help to the accused as it is an admitted case that the private parts of the accused were not examined by the doctor.
64. The Hon'ble Supreme Court in Jai Chand vs. State (supra) has dealt with the offences punishable U/s 376/5511 IPC and 354 IPC. It has been observed that :
Accused forcibly laid prosecutrix on bed and broken strik of her pyjama but made no attempt to undress himself - Prosecutrix pushed him away and accused made no effort to grab her again - Offence under S.354 and no attempt to commit rape made out.
However, the facts of this case are distinguishable from the facts of the present case.
65. The judgments cited on behalf of State Tarkeshwar Sahu vs. State of Bihar (supra) and State of Himachal Pradesh vs. Asharam (supra) laid down the law in rape cases of minor children. In Tarkeshwar Sahu vs. State of Bihar (supra), the Hon'ble Supreme Court has held as under :-
The important ingredient of the offence under Section 375 punishable under Section 376 IPC was penetration to some extent. The other important ingredient is penetration of the male SC: 22/08 State vs. Kartar Singh :46: organ within the labia major or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would be enough for the prupose of Sections 375 and 376 IPC.
66. In State of Himachal Pradesh vs. Asharam (supra), the Hon'ble Supreme Court has held as under :-
Conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration.
Opinion of doctor that no rape was committed cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix.
67. In the present case, the evidence of the prosecutrix inspires confidence, it is corroborated by the testimonies of her parents PW1 & PW3 and the doctors PW4 & PW5. Her testimony covered with all the surroundings and circumstances, is proved beyond reasonable doubt. The accused is held guilty for offences punishable under Section 376 IPC and Section 506 IPC.
Announced in the Open Court On 07.09.2009.
(Shalinder Kaur) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 22/08 State vs. Kartar Singh :47: State Vs. Kartar Singh FIR No. 391/01 PS : Patel Nagar SC No. : 22/08 2:15 PM 07.09.2009 Present : Sh. Masood Ahmed, Learned APP for State.
Accused on bail with Counsel Sh. Dhanveer Singh.
Vide judgment announced of even date on separate sheets, the accused is held guilty for offences punishable under Section 376 IPC and Section 506 IPC and is convicted.
Put up for Order on Sentence on 09.09.2009.
(SHALINDER KAUR) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 22/08 State vs. Kartar Singh :48: In the Court of Ms. Shalinder Kaur Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 22/08 State versus Kartar Singh S/o Surender Singh R/o 2116, Gali No.7, Prem Nagar, Delhi.
Case arising out of:
FIR No. : 391/01 Police Station : Patel Nagar Under Section : 376/506 IPC Judgment pronounced on: 07.09.09 ORDER ON SENTENCE:
1. Heard on the point of sentence. The Learned Counsel for the convict relies upon the proviso to section 376 (2) IPC and prays that there are sufficient adequate and special reasons in his favour thus SC: 22/08 State vs. Kartar Singh :49: the sentence maximum up to a period of 5 years may be imposed. It is contended that during the trial the accused had been living with his old aged grand mother in their native village Bilga in District Ludhiana and that his father is living in Dubai and his mother is being looked after by his two brothers. So there is no one to look after the grand mother. Moreover, at the time of commission of the offence the convict himself was a young boy and had maintained a good conduct during the time he had been in judicial custody for a period of about 11 months as well as during the trial. He has not repeated the said offence and the offences of this nature are reformatory. It is also contended that giving a maximum sentence to the convict shall spoil his life and other future prospects. Per contra Learned Addl. P.P. states that the convict does not deserve any leniency as he has committed a gruesome offence with a minor girl aged 8 years and had also threatened her while committing the offence.
1. Section 376 (2) IPC provides that the convict shall be punished with RI for a term which shall not be less than 10 years but which may be for life and shall also be liable to fine. The proviso to the section gives a discretion on finding adequate and special reasons to impose imprisonment less than 10 years. However, the SC: 22/08 State vs. Kartar Singh :50: submissions made on behalf of the convict does not favour for any adequate and special reasons in his favour. Thus I sentence him for offence punishable under section 376 IPC to RI for 10 years and to pay fine of Rs. 5,000/-, in default SI for 6 months and RI for 6 months for the offences punishable U/s 506 IPC and to pay a fine of Rs. 1000/-, in default SI for one month. The sentence is to run concurrently and benefit of section 428 Cr.PC be given. Copies be given free of cost to the convict.
Announced in the Open Court On 09.09.09 (SHALINDER KAUR) ASJ (FTC) CENTRAL:DELHI SC: 22/08 State vs. Kartar Singh