Delhi District Court
State vs Mr. Ghanshyam Mehto on 2 August, 2010
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE -01, WEST, DELHI
Sessions Case Number : 106 of 2009.
Unique Case ID Number : 02401R0464852009.
State versus Mr. Ghanshyam Mehto
Son of Mr. Yogeshwar Mehto,
Resident of Jhuggi B-64, Sanjay Camp,
Kirti Nagar, New Delhi.
FIR Number 195/2009.
Police Station Kirti Nagar.
Under sections 376 of the Indian penal Code.
Date of filing of the charge sheet before : 18.09.2009.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 09.10.2009.
Arguments concluded on : 02.08.2010.
Date of judgment : 02.08.2010.
Appearances: Mr. Vinod Kumar Sharma, Additional Public
Prosecutor for the State is on leave today.
Mr.Promila Singh, Substitute Additional Public Prosecutor
for the State
Accused has been produced from judicial custody.
Mr. Manish Chauhan, advocate, amicus curie for the accused.
Ms.Vandana and Ms.Raj Kumari Banju, counsel from the
Delhi Commission for Women.
JUDGMENT
1. Incest and child sexual abuse are dark realities in Indian society like in any other nation. 53 per cent of our children are sexually abused, Sessions Case Number: 106 of 2009.
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according to a statistic from a survey done by the Government of India. The Indian legal statutes do not find mention of any specific provisions against incest. Incestuous conduct is almost never consensual. Instead it is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is child abuse by parents and other elders confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds incest in families. The power is multiplied several times over when the relationship between the abuser and the abused is of father and daughter. Disbelief, denial and cover-up to "preserve the family reputation"
are often then placed above the interests of the child and its abuse (Reliance on the material on the internet).
2. Incest is sexual relations between persons who are so closely related that their marriage is illegal or forbidden by custom. The statutory crime of sexual relations with such a near relative is incest.
3. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader Sessions Case Number: 106 of 2009.
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probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
4. This case is a glaring example of the growing menace of sexual abuse of young children. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is a small female child, daughter of the abuser/accused, as in the present case who is subjected to unwanted physical contact by a perverted male adult.
Sessions Case Number: 106 of 2009.
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ALLEGATIONS OF THE PROSECUTION AGAINST THE ACCUSED
5. Mr. Ghanshyam Mehto, the accused, has been charge sheeted by Police Station Kirti Nagar, Delhi for the offence under section 376 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 12.07.2009 at about 12.30 AM and also one month prior to 12.07.2009 at Jhuggi No. B-64, Sanjay Camp, Kirti Nagar, Delhi within the jurisdiction of Police Station Kirti Nagar, he committed rape upon prosecutrix, his own minor daughter, aged 13 years (name withheld to protect her identity).
CHARGE SHEET AND COMMITTAL
6. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 18.09.2009 and after its committal, the case was assigned to this Court vide order dated 09.10.2009 of the learned Sessions Judge, Delhi for 09.10.2009.
AMICUS CURIAE
7. As the accused submitted that he did not have a counsel to defend himself, vide order dated 20.11.2009, Mr. Manish Chauhan, advocate, was appointed as amicus curie for the accused.
Sessions Case Number: 106 of 2009.
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CHARGE
8. After hearing arguments, charge for offence under section 376 of the Indian Penal Code (hereinafter referred to as the IPC) was framed against the accused on 27.10.2009 to which accused pleaded not guilty and claimed trial.
PROSECUTION WITNESSES
9. In order to prove its case, the prosecution has examined as many as 16 witnesses i.e. HC Naresh Kumar, the duty officer who has recorded the formal FIR of the case, as PW1; Ct. Pushpender Singh, who had taken the exhibits of this case to the FSL, as PW2; Mr. Subhash, in whom the prosecutrix had confided about the rape and who informed the police, as PW3; Dr. Pooja, who had medically examined the prosecutrix, as PW4; Mrs.Ved Kumari, Vice Principal, MC Primary, Chuna Bhatti, Delhi, who produced the record of date of birth of the prosecutrix as 01.04.1996, as PW5; PSI Krishan Gopal, the MHC (M), as PW6; Ct. Anita, witness of investigation who had gone to the DDU Hospital with the prosecutrix and the NGO for the medical examination of the prosecutrix, as PW7; Mr.Mohinder Virat, learned Metropolitan Magistrate, Delhi, who has recorded statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.), as PW8; the prosecutrix, as PW9; Ms. Sanju, the sister of Sessions Case Number: 106 of 2009.
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prosecutrix and an eye witness of the crime, as PW10; Ct.Satender, who took the accused to the DDU hospital for his medical examination, as PW11; Ct. Sunl Kumar, witness of investigation and arrest of the accused, as PW12; Dr.Avnish Bhargava, who had medically examined the accused, as PW13; Mr.A.K.Srivastava, Assistant Director (Biology), FSL, who has examined the exhibits of the case, as PW14; SI Manoj Kumar, the first Investigating Officer, as PW15; and ASI Urmil Sharma, second Investigating Officer, as PW16.
10.On 03.03.2010 the Additional Public Prosecutor stated that the prosecution evidence may be closed as the prosecution does wish to examine Dr.Ritu since the evidence of the doctor (Gynae) has already been recorded and all the prosecution witnesses have already been examined. His statement was recorded and on the basis of the submissions made, the prosecution evidence was closed on 03.03.2010.
Sessions Case Number: 106 of 2009.
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11.Subsequently, the statement of the accused under section 313 of the Cr.P.C. was recorded on 10.03.2010. Vide order dated 06.04.2010 on the application of the prosecution under section 311 of the Cr.P.C., PW4 Dr.Pooja was re-examined. Thereafter, Dr.Pooja was examined again and the statement of the accused under section 313 of the Cr.P.C. was recorded again on 12.04.2010.
STATEMENT OF THE ACCUSED AND HIS DEFENCE
12.In both his statements under section 313 of the Cr.P.C., the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. He has stated the he loves his children very much and he cannot think of doing such a bad act with his own children. One day when he caught his daughter (the prosecutrix) with Mr.Subhash, an official of the NGO, he told his daughter not to go with him in future as he is not a good person. Few days later, he saw Mr.Subhash near his house and trying to get into his house to meet his daughter. Immediately he reached the spot and asked him to go away from the place and warned him never to come again. But unfortunately when he was out of the house, Mr.Subhash used to come to his house to meet his daughter and there is a possibility that they might be having some illicit relations with each other. One day he strongly opposed the coming of Mr.Subhash at his place. Even Sessions Case Number: 106 of 2009.
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his daughter was in favour of Mr.Subhash and told him that she wants to marry Mr.Subhash. That day he had beaten her. Maybe for this reason Mr.Subhash along with other colleagues of the NGO has planned a false case against him and also tutored his daughter against him. He has preferred to lead evidence in his defence and wanted to examine Mr.Anil Kumar, Mr.Puneet Prasad and Mr.Rama Nand. However no defence witness was produced and the defence evidence was closed by the amicus curiae for the accused.
ARGUMENTS
13.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments filed on behalf of the Delhi Commission for Women through the Additional Public Prosecutor.
14.The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under section 376 IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
Sessions Case Number: 106 of 2009.
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15.The advocate, amicus curie for the accused, on the other hand, has requested for his acquittal submitting that there is incriminating evidence against the accused. The hymen of the prosecutrix is intact nor she has any injury on her person. There are several contradictions and discrepancies in the testimonies of the witnesses of the prosecution like the clothes of the accused, name of the person in whom the prosecutrix confided about the alleged crime, number of times the offence was allegedly committed, letter given to Mr.Vijay on 11.07.2009 when the incident is of 13.07.2009, non-
examination of any public witness, etc DISCUSSION, ANALYSIS AND FINDINGS
16.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave Sessions Case Number: 106 of 2009.
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the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
17.It may be observed here that it is a general handicap attached to all eye witnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if the speak to all events very well and correctly their evidence becomes Sessions Case Number: 106 of 2009.
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vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed with broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case an eyewitness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequence in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witness was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequence as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone. Similar observations have also been made by the Supreme Court in the judgment reported as Bhag Singh and Oths. v. State of Punjab, 1997 VII AD SC 507.
18.Under this sphere, I now proceed to test the submissions of both the sides.
PROSECUTION VERSION
19.The criminal action swung into motion on lodging of DD No.39A dated 13.07.2009, Ex.PW15/A, wherein it was reported that Sessions Case Number: 106 of 2009.
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Mr.Subhash who is a Street Co-Ordinator with the NGO Chetna along with Ms.Manjula appeared in the Police Station and reported that Mr.Ghanshyam has done the "wrong act" (galat kaam) with the prosecutrix who is his daughter. On 13.07.2009, on the basis of DD No.39A, SI Manoj, Ct.Sunil, Ct.Anita, Mr.Subhash and Ms.Manjula from Chetna Sanstha had gone to the spot at Chuna Bhatti, Jhuggi No. B 64 where both Mr.Subhash and Ms.Manjula had told that rape has been committed with prosecutrix by her father. The statement of the prosecutrix, Ex.PW9/A, was recorded on which SI Manoj prepared the rukka and sent Ct.Sunil for registration of the FIR which he took to Police Station and he handed over the rukka to duty officer at PS Kirti Nagar and the FIR, Ex.PW1/A was lodged. Ct.Sunil along with ASI Urmil Sharma had gone to the spot. Accused Mr.Ghanshyam Mehato was already at the Police Station. His personal search was conducted but nothing was recovered in the personal search. Personal search memo is Ex.PW12/A. Accused was arrested vide arrest memo Ex.PW12/B. The accused was medically examined vide MLC, Ex.PW13/A. Lady constable Anita took the prosecutrix to hospital for medical examination and had also handed over MLC of the prosecutrix, Ex.PW4/A and pullandas to the IO which were seized vide seizure memo Ex.PW7/A. The IO ASI Urmil Sharma verified the facts from the prosecutrix and her younger brother and sister. On the pointing out of the prosecutrix, Sessions Case Number: 106 of 2009.
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the site plan, Ex.PW16/A was prepared. The date of birth proof from the school of the prosecutrix was collected which is Ex.PW5/A. Statement of the prosecutrix under section 164 Cr.P.C., Ex.PW9/B, was recorded by the learned Metropolitan Magistrate on the application of the IO, Ex.PW8/A, and copy was supplied to the IO on the application, Ex.PW8/C. The exhibits of the case were sent to the FSL for examination vide entry Ex.PW6/A and the reports of the FSL is Ex.PW14/A and Ex.PW14/B.
20.The investigation conducted and the documents prepared have been proved by the police witnesses i.e. PWs 1, 2, 6, 7, 11, 12, 15 and 16. PW4 is the doctor who has medically examined the prosecutrix and PW13 is the doctor who had medically examined the accused. PW14 is the FSL expert. The prosecutrix is PW9 and her sister, an eye witness, is PW10. PW3 is from the NGO Chetna who had gone with Ms.Manjula to the Police Station and informed about the offence. PW5 is the Vice Principal of the school and has produced the age proof of the prosecutrix. All the relevant details and the documents have been brought forth in the evidence of the prosecution witnesses.
VIOLENCE AGAINST CHILDREN Sessions Case Number: 106 of 2009.
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21.Violence against children is particularly rampant in India. Every year around 26 million children are born in this country 33 (Mapping India's Children: UNICEF in Action, UNICEF, 2004) which is also home to the world's largest number of children out of school-19 per cent of all children. Sexual abuse cuts across class, religion, caste or ethnicity. Even in educated, high-income families, sexual abuse might be frequent. What has been a matter of deep concern when addressing laws dealing with child sexual abuse is that most forms of sexual abuse that do not amount to rape is dealt with lightly. The most horrific forms of sexual abuse that children are subjected to, such as penetration in other parts of the body or forcing the penis into a child's mouth, is covered under section 354 of the IPC which is about "outrage of modesty". It is a bailable offence with a punishment of imprisonment that may extend to two years or with a fine or with both. Only rape and sodomy can lead to criminal conviction . The word rape does not include boys and sodomy is tagged under 'unnatural offences', while intercourse is often interpreted to mean sexual relationship with an adult. (Pinky Virani, Bitter Chocolate: Child Sexual Abuse in India, New Delhi: Penguin 2000, page 25-26).
22.Child abuse takes various forms. It includes physical injury, negligent treatment or maltreatment , psychological and emotional Sessions Case Number: 106 of 2009.
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harm, sexual abuse, trafficking, and economic exploitation (as in the case of ill-paid, often tortured, child labour)- in short, any action or attitude that causes or may cause harm to the child's development , protection, survival and role in society. Most of these abuses go unreported, including crimes, especially when they happen to children from poor families or those belonging to socially marginalized communities. Even otherwise, cases of serious abuse, such as sexual abuse, may be often swept under the carpet within households, ostensibly to protect " family honour", while lesser abuses may not be considered serious enough to report in a culture that tacitly allows violence towards children, particularly girls. Rape of girl children still goes unreported due to social stigma and fear of harassment, while kidnapping or trafficking cases can often get categorized under missing children, to take just two examples.
23.According to the latest edition of Crime in India, published every year by the National Crime records Bureau (NCRB), Ministry of Home Affairs, the number of crimes committed against children went up by 7.6 per cent to 20,410 in 2007 from 18,967 in 2006, accounting for 1.8 per cent of all crimes reported. Delhi accounts for 9.9 per cent of the crimes against children, ranked fourth after Madhya Pradesh (21 per cent), Maharashtra (13.3 per cent) and Uttar Pradesh (11 per cent) 44 (Crime in India, 2007, National Sessions Case Number: 106 of 2009.
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Crime Records Bureau, Ministry of Home Affairs, Government of India, http://ncrb.nic.in/cii/2007/home/htm.
24.According to the Ministry of Women and Child Development, 40 per cent of India's children, or close to 170 million, are in need of care and protection.
RAPE
25.Section 375 reads as: Rape- A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First--------------Fifthly.
Sixthly.-With or without her consent, when she is under sixteen years of age.
EVIDENCE OF THE PROSECUTRIX
26.Here I would also like to reproduce the important parts of the evidence of PW9, the prosecutrix, who has deposed as follows:
"My father has committed a wrong act (galat kaam) with me when I was living with my father, my brother Amarjeet aged 8 yrs and my sister Sanju aged 9 yrs.........At about midnight it might be 12.00 night, Sessions Case Number: 106 of 2009.
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father came inside he opened string of my salwar and thereafter he came on top of my body (At this stage, witness is shy and is feeling embarrassed. There are tears in her eyes.). Thereafter he had raped me. After opening the string of my salwar he removed my salwar. Thereafter he removed his lungi. Then he put his private part in my private part (apna sosoo karne wala mere sosoo karne wale mai daal diya). I felt pain in my private parts. In the meanwhile my sister woke up and both of us pushed our father out of the room and boolted the room inside. ......I want my father to be released. Even if I am put behind bars my father should be released. My father will not do anything wrong again......."
AGE OF THE PROSECUTRIX
27.Now turning to the facts of the case in hand, the first issue which requires adjudication is regarding the age of the prosecutrix.
28.As per the claim of the prosecution, the age of the prosecutrix is 13 years on the date of alleged offence i.e. 12.07.2009 and one month prior to 12.07.2009 and her date of birth is 01.04.1996. The age and the date of birth of the prosecutrix are not disputed by the accused as he has neither controverted the same in the evidence of PW5 and PW9. It is also not suggested that the prosecutrix is of any other age. Therefore, it is clear that the prosecutrix was aged 13 years at Sessions Case Number: 106 of 2009.
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the time of alleged incident.
EVIDENCE OF PWS 9 AND 10
29.The contention of the advocate, amicus curie for the accused that the details have not been furnished by the prosecutrix also does not hold any force as much importance cannot be given to this contention as it must be remembered that the shock of this defilement must have been so great and she must have been overtaken by the trauma of the incident, she cannot be expected to know exactly what was happening around her and what were the exact details. Even otherwise, when the prosecutrix has deposed "Then he put his private part in my private part (apna sosoo karne wala mere sosoo karne wale mai daal diya)." Nothing more than this part of the deposition is required for convicting the accused when the prosecutrix has so deposed.
30.The contention of the advocate, amicus curie for the accused that the prosecutrix did not raise any alarm when the alleged offence was committed by the accused does not shatter the prosecution story as the perpetrator of the crime is the father of the prosecutrix who is a young minor female motherless child and she may not even understood the gravity of the offence and it is also clear from her Sessions Case Number: 106 of 2009.
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evidence that she had resisted her father and both the prosecutrix and her sister had pushed their father out of the room.
31.It can be seen from the evidence of PWs 9 and 10 that they have fully supported the prosecution case that the accused has raped the prosecutrix. Their evidence is consistent and corroborative in all material aspects. The statement of the prosecutrix is reliable and trustworthy and the statement of the prosecutrix is corroborated by that of her younger sister, the child witness in all material aspect. It is not unusual for neighbours to be oblivious to the happenings in the adjoining quarters. It is to be noted that in the present case victim was facing sexual assault by her own father in these circumstances there could be hardly in struggle when the accused her own father is the perpetrator of the crime.
32.The argument of the defence that the prosecutrix has not deposed about the exact date of incident does not help the accused as it cannot be ignored that the prosecutrix started going to school after being associated with the NGO Chetna only two years prior to the incident, as deposed by PW3 which shows that she is practically illiterate and is young minor child. Even otherwise, the date of incident can be ascertained from the evidence of the other Sessions Case Number: 106 of 2009.
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prosecution witnesses i.e. PW3 as well as police witnesses who were part of the investigation and it is clear that the date is the intervening night of 11.07.2009 and 12.07.2009 at about 12.30 am.
33.There is nothing in the evidence of the prosecutrix which could shatter the veracity of her testimony.
PW10 INTERESTED WITNESS
34.It is argued by the counsel for the accused that PW10 is an interested witness being the sister of the prosecutrix but I am of the considered opinion that this claim is baseless. She is not only the sister of the prosecutrix but is also an eye witness besides being the daughter of the accused.
35.Usually, it is seen that in cases of rape there is no eye witness. However, in the present case, there is an eye witness who was sleeping in the room with the prosecutrix and had woken up to witness the offence being committed by the accused upon the prosecutrix. It cannot be said that she is an interested witness as she is also a daughter of the accused and there is no reason shown as to why she would depose falsely against the accused, if he did not Sessions Case Number: 106 of 2009.
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actually commit the crime.
RAPE NOT POSSIBLE
36.The defence counsel has raised the plea that it is not possible to commit rape upon a child while the other children were also in the room. However, I am of the opinion that this contention is not tenable especially in view of the testimony of PW9 when she has deposed that she and her brother and sister were sleeping when her father had entered the room, raped her when her sister woke up and both pushed their father out of the room.
MENS REA / MOTIVE
37.Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
38.The motive has to be gathered from the surrounding circumstances Sessions Case Number: 106 of 2009.
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and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
39.In the present case there is sufficient evidence on record to show that the accused did have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person Sessions Case Number: 106 of 2009.
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against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
40.In the present case, a story has been projected that the accused has raped his minor daughter and this version appears to be true as the accused in a planned manner entered the room in the middle of the night where the prosecutrix was sleeping with her siblings and committed the offence. There was criminal intention and mens rea on the part of the accused.
41.Therefore, I am of the considered opinion that the prosecution has successfully shown the mens rea on part of the accused in commission of the alleged offence.
DELAY IN FIR
42.The contention of the advocate, amicus curie for the accused that there was a delay in lodging of the FIR which is fatal to the case is Sessions Case Number: 106 of 2009.
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not tenable as the prosecutrix confided in the officials of the NGO which had got her admitted in school. It is also clear from the evidence of the prosecutrix as well as her sister who is also a minor like the prosecutrix and it cannot be expected from the prosecutrix and her sister that they would go to the police for action immediately as they may not have even been aware that the act of the accused is an offence. It was only when a major and mature person i.e. Mr.Subhash, PW3, came to know about the act of the accused, that the criminal action was set into motion. This was the first opportunity for the prosecutrix to disclose about the act of the accused to the person in whom she could confide and in whom she may have reposed trust as PW3 is from the NGO supporting her.
43.The accused and the amicus curiae have submitted that there is a delay in lodging of the FIR. As per the allegations, the incident has occurred at about 12.30 am on 12.07.2009 and also one month prior to 12.07.2009 while the FIR has been lodged at 08.15 pm P.M. On 31.07.2009 and the delay in lodging of the FIR has been not explained by the prosecution.
44.The Additional Public Prosecutor on the other hand submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion on the receipt of DD No.39 A which is Ex.PW Sessions Case Number: 106 of 2009.
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15/A.
45.The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
46.I find on perusal of the record that indeed the criminal action was swung into motion on recording of the Ex.PW15/A, DD No.39 A dated 13.07.2009 at 07.05 pm when the rape was reported by Mr.Subhash and Ms.Manjula and information was given to SI Manoj Kumar. Whatever a small child of 13 years could have told immediately was told by her and to the person in whom she could confide. The victim who is a minor child of 13 years may not have even understood the gravity of the offence which was committed Sessions Case Number: 106 of 2009.
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upon him.
47.It may be also mentioned here that there is so called delay in lodging of the FIR has been very logically explained by the prosecution. Therefore, it cannot be said that the FIR was lodged after a delay which is fatal to the prosecution story.
48.In the case reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, the Hon'ble Supreme Court has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
49.Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been Sessions Case Number: 106 of 2009.
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offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
EVIDENCE OF PW3
50.Further, the contention of the advocate, amicus curie for the accused that the case has been lodged against him only at the instance of Mr.Subhash who had illicit relation with the prosecutrix does not appear to be believable.
51.The accused has neither put the suggestion to PW9, the prosecutrix, that she has made a false allegation against him at the instance of Mr.Subhash nor there is any evidence led by the accused to substantiate his claim. Even no such suggestion has been given to PW3 by the accused. These facts show the malafide intention of the accused to even defame and humiliate his own minor daughter to Sessions Case Number: 106 of 2009.
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free himself. Further there is no reason shown by the accused as to why his own daughter would level allegation of rape against him at the instance of Mr.Subhash, if the accused has not committed the gruesome act.
52.The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting man, even from an NGO, would come forward in a Court just to make a humiliating statement against a minor female child's honour such as is involved in the commission of rape on her by her own father. 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.
53.The claim of the accused, in his statement under section 313 of the Cr.P.C. that one day when he caught his daughter (the prosecutrix) with Mr.Subhash, an official of the NGO, he told his daughter not to go with him in future as he is not a good person. Few days later, he Sessions Case Number: 106 of 2009.
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saw Mr.Subhash near his house and trying to get into his house to meet his daughter. Immediately he reached the spot and asked him to go away from the place and warned him never to come again. But unfortunately when he was out of the house, Mr.Subhash used to come to his house to meet his daughter and there is a possibility that they might be having some illicit relations with each other. One day he strongly opposed the coming of Mr.Subhash at his place. Even his daughter was in favour of Mr.Subhash and told him that she wants to marry Mr.Subhash. That day he had beaten her. Maybe for this reason Mr.Subhash along with other colleagues of the NGO has planned a false case against him and also tutored his daughter against him.
54.However, I find that the accused has neither given any such suggestion to the PW3, Mr.Subhash nor led any evidence of his own in his defence to prove his claim. The only suggestion put to PW3 by the accused is that no such incident had taken place and that to show their importance in the eyes of Delhi Government, they created a false case and provoked the prosecutrix to make statement against her father. This suggestion has been denied by PW3. It is argued by the defence counsel that PW3 of the prosecutrix, was not having good character and had enmity with the accused who had caught him with the prosecutrix and had pressed the false charge Sessions Case Number: 106 of 2009.
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against him in order to exploit his daughter who wanted to marry PW3, but I do not find any evidence led by the accused to substantiate this preposition. There is nothing brought forth in the cross examination of PW3 which could indicate that he has manipulated this case against the accused or that he is in illicit relations with the prosecutrix. It is also absurd that an officer of an NGO would falsely involve a minor female child in rape case against her father only to get importance from the Delhi Government.
55.In AIR 2004 Supreme Court 4404, in para 3 Supreme Court observed as under :
Sexual violence apart from the being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity- it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty (AIR 1996 SC
922), the entire psychology of a woman and pushes her Sessions Case Number: 106 of 2009.
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into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the Constitution) the Courts, are therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A society sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions.
DISREPANCIES
56.I do not find any force in the submission of the counsel for throwing out the case of the prosecution merely on the ground of certain discrepancies/contradictions in the deposition of various PW9 when she has stated in her examination in chief that her father was wearing a lungi and her father had opened the string of her salwar while in her statement under section 164 of the Cr.P.C., she has deposed that her father had opened her string and then opened his string. It is contended that a lungi does not have a string. In her statement under section 164 of the Cr.P.C., she has deposed that she raised alarm (shor machaya par kyonki sab so rahe the koi utha nahi) while in her evidence she has not so deposed. Further, there is a discrepancy in the name of the officer of the NGO to whom the prosecutrix has told about the offence. There is a discrepancy in the Sessions Case Number: 106 of 2009.
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evidence of the prosecutrix regarding the accused doing "galat kaam" with her sister and another discrepancy regarding the number of times the "galat kaam" was done with the prosecutrix.
57.It must not be ignored that the prosecutrix is a small minor child and when the offence was committed and when her evidence was recorded, she may be under great mental stress and strain to even note the details. The prosecutrix must have made a lot of effort for speaking about the offence committed by her father against her for which she would have needed to muster a lot of courage and strength as no child would want her father to be punished. Needless to mention here that even in her evidence, the prosecutrix deposed that her father may be released and that he will not do the "galat kaam" again.
58.I find that, even otherwise, these discrepancies are too immaterial to be even taken into consideration as they do not effect the merits of the case. I am of the considered view that such discrepancies are bound to occur in the deposition of various witnesses being usual and natural and even otherwise as they are found to be formal in nature without striking at the root of the matter and the same cannot be treated as fatal for the prosecution.
Sessions Case Number: 106 of 2009.
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59.In the judgment reported as, State of H.P. v. Lekhraj and another, JT 1999 (9) SC 43, it was observed by the Supreme Court of India as under :-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like................The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
60.In the judgment reported as, Surender Singh v. State of Haryana, JT 2006 (1) SC 645, it was observed by the Supreme Court of India as under :-
"It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
61.As far as minor inconsistencies are concerned in the statement of the witnesses minor variations in the accounts of the witnesses are Sessions Case Number: 106 of 2009.
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often the hallmark of the truth of their testimony. When the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
62.Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non-discrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for Sessions Case Number: 106 of 2009.
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judicial scrutiny.
63.The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment reported as Bharwada Boginbhai Hijri Bhai v. State of Gujarat, 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their Sessions Case Number: 106 of 2009.
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estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
64.Due to suddenness of the offence, the mental faculty of such a minor child cannot be expected to be attuned to observe the details. The psychology of victim of rape was discussed by Supreme Court in Shri Bodhisattwa Gautm v. Miss Subhra Chakraborty, AIR 1996 SC 922, wherein the Supreme Court held that:-
"The entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most Sessions Case Number: 106 of 2009.
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cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the 'Constitution'). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions."
65.Supreme Court in 2004 IX AD (S.C.) 5 held in para 3 as under :-
Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity.
66.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 Sessions Case Number: 106 of 2009.
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outrage of sexual aggression are factors which the Courts should not overlook.
67.In AIR 2004 Supreme Court 4404, in para 3 Supreme Court observed as under :
Sexual violence apart from the being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity- it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty (AIR 1996 SC 922), the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the Constitution) the Courts, are therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A society sensitized judge, in our opinion, is a better statutory armour in cases of crime against women Sessions Case Number: 106 of 2009.
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than long clauses of penal provisions, containing complex exceptions and provisions.
68.Therefore, in view of the reasons discussed above and the settled position of law, as elaborated above, the discrepancies are immaterial and do not strike at the root of the prosecution case.
CHARACTER OF ACCUSED
69.The contention of the defence that the accused is a man of high character and has been taking care single handedly after the death of his wife of his two daughters and one minor son does not appear to be tenable especially in view of the testimony of PWs 9 and 10 that there father drinks liquor. There is no cross examination of PWs 9 and 10 regarding this part of the deposition which indicates that he has impliedly admitted the same to be correct.
70.It also cannot be ignored that inspite of the crime, PW9, the prosecutruix still wanted her father to be released which only reflects the love and affection which a daughter has for her father. She has deposed that "I want my father to be released. Even if I am put behind bars my father should be released. My father will not do anything wrong again......."
Sessions Case Number: 106 of 2009.
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71.However, it is also certain that no daughter would level the allegation of rape against her own father if such a crime is not committed.
DEFENCE OF THE ACCUSED
72.The accused has claimed in his defence that he has been falsely implicated in this case. He has claimed the he loves his children very much and he cannot think of doing such a bad act with his own children. One day when he caught his daughter (the prosecutrix) with Mr.Subhash, an official of the NGO, he told his daughter not to go with him in future as he is not a good person. Few days later, he saw Mr.Subhash near his house and trying to get into his house to meet his daughter. Immediately he reached the spot and asked him to go away from the place and warned him never to come again. But unfortunately when he was out of the house, Mr.Subhash used to come to his house to meet his daughter and there is a possibility that they might be having some illicit relations with each other. One day he strongly opposed the coming of Mr.Subhash at his place. Even his daughter was in favour of Mr.Subhash and told him that she wants to marry Mr.Subhash. That day he had beaten her. Maybe for this reason Mr.Subhash along with other colleagues of the NGO has Sessions Case Number: 106 of 2009.
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planned a false case against him and also tutored his daughter against him.
73.However, the accused has neither led any evidence in his defence to substantiate his claim nor even put any such suggestions to PWs 3 and 9 to prove his defence and these facts indicate that he is putting up a false defence. The accused has not only attempted to mislead the Court but has also scandalized and humiliated his minor daughter, the prosecutrix, in the process.
74.The accused has failed to show any motive or malafide intention on the part of PW9 or even PW3 for implicating him in a false case. Mere allegation of illicit relationship of PW9 with PW3 does not appear by any stretch of imagination to result in the false implication of the accused in a criminal case and that too of rape of his own minor daughter which is of very serious nature.
75.Therefore the possibility of false implication of accused by PW9 and PW3 stands ruled out. There is no reason as to why the PW9 would make false allegations against the accused and then why PW9 would depose against her own father. The accused failed to assign any malafide motive to PW9 that she would get him falsely implicated in a rape case. In any event no girl of tender age would Sessions Case Number: 106 of 2009.
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like to jeopardize her entire future by falsely implicating her own father alleging forcible sexual intercourse.
FSL REPORTS
76.The argument of the defence that the FSL reports do not support the case is also not tenable as the exhibits were taken by the doctor after about 48 hours of the rape, as per the MLC, Ex.PW4/A, and it may not be possible to have any forensic evidence of rape on the same after so many hours. Even otherwise, the forensic evidence is used only for the purpose of corroboration and is not a substantive evidence as the material evidence is the evidence of the prosecutrix.
77.The argument of the amicus for the accused that there was no semen found on the vaginal swab of the prosecutrix as per the FSL reports and therefore there was no rape is also not tenable as the alleged incident has occurred about 2 days prior to her medical examination and it is probable that there may have been no detection of semen. Even otherwise, it may be possible that there was no ejaculation as for constituting the offence of rape, penetration is sufficient.
Sessions Case Number: 106 of 2009.
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78.In the judgments reported as Madan Gopal Kakkad v. Narain Dubey and anr., (1992) 3 SCC 204 and Ranjit Hazarika v. State of Assam, 1998 (8) SCC 635 that to constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with the emission of semen. Even slight penetration is sufficient to cause the offence of rape. It is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains.
MLC OF THE PROSECUTRIX
79.The MLC of the prosecutrix, Ex.PW4/A, shows that the prosecutrix had told the doctor that she had been raped by her father twice-once 2 days back 48 hours back-2nd yeaterday at 12.30 am on 13.07.2009. When the prosecutrix has categorically named her father as the perpetratror of the offence of rape to the doctor, the evidence of PW9 stands corroborated by the evidence of PW4 about the culprit.
NON-EXAMINATION OF MR.VIJAY, MS.MANJULA AND CHACHI Sessions Case Number: 106 of 2009.
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80.The amicus curiae for the accused has argued that the prosecution has failed to examine Mr.Vijay and Ms.Manjula, officers of the NGO Chetna, to whom and in whose presence the prosecutrix has stated that he had been raped by her father. The prosecution has also not examined the Chachi with whom the prosecutrix used to go to the market, as deposed by PW10.
81.However, I am of the considered opinion that the non-joining of these three persons cannot be fatal to the prosecution case as it is the testimony of the prosecutrix which is the most material evidence and the rest is only for the purpose of corroboration. The accused was at liberty to produce them in his defence, if he considered their evidence important but he has also failed to produce and examine them. The accused has also failed to show how he is prejudiced by their non-examination. Therefore, I do not find any force in this contention of the amicus curiae.
DOCTOR'S EVIDENCE WITH PROSECUTRIX'S
EVIDENCE
82.The prosecution has requested for conviction of the accused under section 376 of the IPC submitting that medical evidence conclusively proved that rape has been committed upon the Sessions Case Number: 106 of 2009.
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prosecutrix.
83.However, the amicus curiae of the accused, on the other hand has submitted that the offence of rape has not been committed in nor the act is complete as is clear from the evidence of PW4.
84.PW4 is the doctor who had medically examined the prosecutrix vide the MLC, Ex.PW4/A wherein she has opined that the hymen is intact and the patient does not have injuries. She has deposed that full intercourse can break the hymen and partial penetration may not rupture the hymen. It is not necessary that only mere penetration on upper portion of vagina can damage the hymen. She has admitted that there is possibility of sexual intercourse having taken place without rupturing the hymen may be inferred if the vaginal orfice is capacious enough to admit easily passage of two fingers. She has admitted in a girl in 14 yrs of age the vaginal orfice is usually so small that it would hardly allow the passage of the little finger through the hymen. She has further admitted in all probability there would be local injury on a girl aged about 13 years if the size of adult male organ is attempted to enter the vagina. After spat of questions, PW4 has admitted under the situation it can be incurred there is no penetration and she did not find any foreign hair, semen Sessions Case Number: 106 of 2009.
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scratches, grasping and bruises on thigh of the prosecutrix. She has stated that swelling and redness in case of rape upon a minor female girl age about13 years may remain for 2-3 days and except for an abrasion on left cheek of the prosecutrix, there is no other marks on the body of prosecutrix. PW-4 has categorically submitted that it can be inferred by seeing the MLC that the vaginal intercourse did not occur.
85.Considering the evidence of PW4 it is clear that the act of rape was not complete against the prosecutrix. Further, it is also clear that the accused had suddenly made an attempt to rape the prosecutrix. The abrasion on the cheek of the prosecutrix which shows that the accused by trying to force himself upon the prosecutrix but was not able to complete the act.
86.The contention of the amicus curiae that neither any rape nor any attempt to rape is made out is not tenable as it is clear from the evidence of the PW4 that rape has not been committed but it is further crystal clear form the evidence of the PW9 who has categorically deposed that her father had come into her room where she and her siblings were sleeping and had open the string of her salwar and removed it, removed his clothes and committed the act.
Sessions Case Number: 106 of 2009.
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The evidence of PW9 is fully corroborated by the evidence of PW10 who had woken up when the act was committed.
87.For children as small as 13 and 9 years i.e. PW-9 and 10 respectively, the act of accused removing clothes of the prosecutrix, removing his own clothes and putting his private part in the private part of the prosecutrix even without any penetration would be termed as "galat kaam" or rape as such a small child of aged 13 years may not be able to distinguish between the actual rape and attempt to rape. Even otherwise mentioning of expression "galat kaam" by PWs 9 and 10 shows that there was a overt of the accused to committed the offence.
88.n Bantu v. State of UP, 2008 (11) SCC113, it was held that, "For a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the Sessions Case Number: 106 of 2009.
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principal fact can be legally inferred or presumed."
89.Further, it can be seen from the unshatterred evidence of PW9, the prosecutrix, that the accused has committed the offence of attempting rape on his daughter. She has categorically deposed about the manner in which the crime was committed. PW-10 has fully supported the version of PW-9 by specifically deposing that she has seen her father committing the "galat kaam" with the prosecutrix and thereafter she along with prosecutrix had pushed their father out of the room.
90.It is clear from the testimony of PW9 that the accused has actually committed the offence of attempt to rape. I do not find anything material in her lengthy cross examination by the accused. The accused has even failed to give a suggestion to the PW9 that the accused had not come into the room of the prosecutrix nor removed his own clothes nor removed her clothes nor raped her. This part of the testimony of PW9 remains uncontroverted. The only suggestion given is that the accused has not raped the child.
FINAL FINDING
91.The investigation conducted including the documents prepared in Sessions Case Number: 106 of 2009.
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the present case has been substantially proved by the police witnesses including the first and the second IOs. They have clearly deposed that they had gone to the spot of incident where they were informed about the rape of the prosecutrix, the accused as well as the prosecutrix were taken to the hospital for their medical examination, accused was arrested, documents pertaining to his arrest were prepared, clothes of the accused and the prosecutrix seized, medical documents were taken, parcels were collected from the doctor and sent to the FSL for examination, etc. There is nothing on the record to show that their testimonies are false or not reliable.
92.It is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of PW9, then the investigation becomes less important as PW9 has not only deposed regarding the manner of commission of the crime but has also elaborated all the details and has assigned a clear and specific role to the accused.
93.There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the Sessions Case Number: 106 of 2009.
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investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
94.I also do not find any force in the submission of the amicus curiae for this accused that as the prosecution has not established any motive as against this accused for committing the offence and same is fatal for the case of prosecution.
95.The manner in which the offence has been committed is clearly deposed by PW9 and there is nothing material in her cross examination which could shatter the veracity of her testimony which is found trust worthy and reliable
96.It may also be observed here that the accused has also failed to show that he is not the person who had attempted to rape the prosecutrix. He has also failed to lead any evidence to substantiate his claim of innocence or falsify the prosecution version or show that the evidence of the prosecution witnesses is not reliable and credible.
Sessions Case Number: 106 of 2009.
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97.There is nothing on the record which can shatter the veracity of the testimonies of the prosecution witnesses or falsify the prosecution version.
98.Therefore, it is clear that the accused has committed the offence of attempt to rape punishable under section 376/511 IPC.
99.All the prosecution witnesses have materially supported the prosecution case and have assigned a clear and specific role to the accused. The testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction which is material and are consistent and corroborative. The prosecution has been able to successfully prove that on the intervening night of 11.07.2009 and 12.07.2009 at 12.30 am (early morning of 12.07.2009) the accused has attempted to rape the prosecutrix, his minor daughter aged 13 years, at his residence.
100.The identity of the accused, the identity of the prosecutrix, the age of the prosecutrix, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, medical legal report, etc. have been properly proved by the prosecution. There is nothing which Sessions Case Number: 106 of 2009.
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could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and have assigned a clear and specific role to the accused. The testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence.
101.In view of the foregoing reasons, the conscience of this Court is completely satisfied that the prosecution has been able to successfully bring home part of the charge against the accused regarding the commission of offence under section 376/511 IPC.
102.Accordingly, the accused, Mr.Ghanshyam Mehto, is hereby convicted under section 376/511 IPC for having committed the offence of attempt to rape of his minor daughter who is aged 13 years.
103.Let him be heard of the point of sentence.
Sessions Case Number: 106 of 2009.
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104.Before parting, I would also like to observe that Mr.Manish Chauhan, advocate, who has been appointed as amicus curie in this case was made very sincere and laborious efforts in this case with his very able assistance and regular appearance, thereby enabling the Court to dispose the matter expeditiously.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 02nd day of August, 2010. ASJ-01, West, Delhi.
Sessions Case Number: 106 of 2009.
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