Delhi District Court
State vs Nanhe Khan S/O Sher Khan on 30 September, 2015
IN THE COURT OF SHRI SANJAY SHARMA:
ADDL. SESSIONS JUDGE - 01 (NORTHEAST) :
KARKARDOOMA COURTS : DELHI
Unique ID No. 02402RO 177842012
SC No. 46/2012
FIR No. 118/2012
PS Seelampur
Under Section 376(2)(f)/511 IPC
State Versus Nanhe Khan S/o Sher Khan
Date of institution of case : 23.6.2012
Date on which judgment reserved : 19.9.2015
Date of judgment pronounced : 29.9.2015
J U D G M E N T :
1. On 29.3.2012, present case FIR No. 118/2012 was registered at PS Seelampur U/S 376/511 IPC, on the statement of victim - a minor girl aged about 11 years, D/o Mushraff, who alleged that she alongwith her family is residing in a tenanted premises at A157 Buland Masjid, Shastri park New Seelampur, Delhi, her father resides in Mumbai and her mother is employed at Gandhi Nagar as Threadcutter. She alleged that on 29.3.2012, at about 3 PM, she was sleeping at her house and her younger sister Muskaan was at the house of her maternal grandmother. Her elder sister Farhin was watching TV in another room. She further alleged that while sleeping, she felt some pressure on her body and on awakening she saw that her landlord, i.e. accused, was lying upon her after removing his pant and he had already SC No. 46/12 FIR No. 118/12 PS Seelampur 1 of 16 removed her wearing pajami and was trying to do wrong act with her on which she got perplexed and when she tried to raise alarms, accused pressed her mouth but somehow she managed to escape and called her sister on which accused ran away from there. She told the entire incident to her maternal uncle Shahnawaz residing in her neighbourhood who then called the police and thereafter, accused was apprehended. Victim and the accused were also got medically examined.
2. After completion of investigation charge sheet was filed against the accused. Case was committed to this Court and vide order dt. 07.11.2012, charge under Section 376/511 IPC was framed against the accused. Subsequently, charge was amended vide order dt. 30.10.2013 and same was framed afresh for the offences punishable under Section 376(2)(f)/511 IPC, to which he pleaded not guilty and claimed trial.
3. In order to establish its case, the prosecution examined 15 witnesses. PW1 was the mother of the victim and was a hearsay witness as she was out at her work at the time of alleged incident.
PW2 Dr. PK Phukan was the doctor who proved the MLC of the accused.
PW3 was the victim who deposed about the incident. PW4 Ct. Geeta Bansal joined the investigation and got the victim medically examined on the instructions of IO.
PW5 Dr. Shipra medically examined the victim and proved her MLC. PW6 Ct. Sanjeev got the accused medically examined on the instructions of IO.
SC No. 46/12 FIR No. 118/12PS Seelampur 2 of 16 PW7 was the sister of victim but was dropped by the prosecution from the list of witnesses.
PW8 HC Anand Kumar was the Duty Officer.
PW9 Shri Mohan Das Gautam was from the school of the victim and he proved her school admission record.
PW10 Ct. Shyam Singh joined investigation with the IO from the very beginning and deposed about it.
PW11 Ct. Mahender Singh was from PCR Head Quarters and he recorded the information about the alleged incident.
PW12 W/SI Suman remained IO of this case only on 15.5.2012. PW13 Ins. Sarita was the IO of this case and she deposed about the investigation carried out by her. She proved all the relevant documents prepared by her.
PW14 HC Narayan Singh was the MHC(M) who proved the entries made in Register No. 19.
PW15 Ct. Pradeep Kumar deposited the exhibits of this case at FSL Rohini.
4. Statement of the accused was recorded under Section 313 Cr. PC and all the incriminating evidence was put and explained to him which he denied. He took the defence that he has been falsely implicated by the police at the instance of mother of victim who was his tenant and was not paying rent regularly and on demanding rental amount, she got the present false case registered. He did not led any evidence in defence.
5. I have heard learned Addl. PP for the State, Shri Mohd. Hasan -
SC No. 46/12 FIR No. 118/12PS Seelampur 3 of 16 Ld. Amicus Curiae for the accused and have carefully gone through the records.
6. Charge in this case 'as amended' was framed under Section 376(2)(f) IPC as it stood before amendment which came into effect on 13.02.2013. As per prosecution, the victim was about 11 years of age at that time. PW9 proved the admission record of the victim and as per the said record, her date of birth has been entered as 16.03.2004. The incident took place on 29.03.2012. Hence, as per the record she was 8 years of age. However, she herself disclosed her age as 11 years in the complaint Ex.PW3/A wherein, she also stated that she was studying in class 3. The date of birth, on record, as proved by PW9 was never questioned by the accused and he was not cross examined. Hence, it has been proved on record that the victim was less than 12 years of age, as on the date of incident.
7. The only material witnesses, cited by the prosecution to prove the incident, were PW1 the mother of the victim, PW3 victim herself and PW7 sister of the victim who was present at the time of incident. Admittedly, PW1 was not an eyewitness to the incident and she was informed about it by the victim herself. She herself deposed in her examination that she had left for her work at about 09:30am and she had only reached at PS Seelampur where the victim alongwith other family members had already arrived. Similarly PW7, though cited as a witness to the incident, could not be examined because of her inability to depose in Court and she was dropped from the list of witnesses by the Ld. Predecessor of this Court vide order dated 16.10.2014. Thus, the only material witness to the SC No. 46/12 FIR No. 118/12 PS Seelampur 4 of 16 incident remains - the victim herself.
8. Ld. Counsel for the accused submitted that there are material contradictions in the testimony of the victim from her statements which were recorded under Section 161 and 164 CrPC, respectively; hence these statements are required to be evaluated.
9. The FIR was registered on the complaint of the victim herself, Ex.PW3A wherein, she alleged that on the date of incident, her mother and brother had gone for their work and her younger sister had gone to the house of maternalgrandmother while her elder sister Farhin (PW7) was watching television in the adjacent room at about 03:00pm. While she was sleeping in her room, she felt some weight over her body and got awoke. On waking up, she found that the accused, her landlord, was lying over her with his pant removed and he had already removed her Pajami. She further stated that the accused was pressing her breast and was trying to commit wrong act with her. When she tried to raise an alarm, the accused closed her mouth but somehow she got herself released from the accused and called her younger sister on which, the accused fled away. Thereafter, she complained to her maternal uncle Shahnawaj who called the police.
10. In the statement recorded under Section 164 CrPC, the victim deposed that at time of incident her sister Farhin was at the house while her mother had gone for her work. She deposed that her sister had asked her to take rest and she accordingly slept but suddenly got awoke and found the accused inside the house who had closed the door from inside; he then put off her Salwar and his pant and thereafter tried to insert his penis into her SC No. 46/12 FIR No. 118/12 PS Seelampur 5 of 16 vagina on which she got awoke and when she tried to raise alarm, the accused closed her mouth. She again deposed that when the accused had entered her room, she was sleeping and when her sleep broke, the accused had already taken off her Salwar and his pant and was trying to insert his penis into her vagina which he had touched; when she called for her sister, the accused tied his pant and went away.
11. She was examined in the Court as PW3 wherein, she also deposed that on 23.03.2013 she had gone to the nearby house of her maternal grandmother where her sister Farhin was already present and was watching television. She fell asleep in her house and woke up on feeling some weight upon her and saw that the accused was lying over her. She deposed that she somehow removed the accused from her body and tried to raise alarm but the accused closed her mother who was trying to commit wrong act with her. She further deposed that the accused had removed her Pajami and also his pant and was trying to commit sexual intercourse with her. She clarified that the accused had removed her Pajami while she was asleep and further deposed that she somehow got herself freed and raised alarm to call her sister on which the accused fled away after wearing his pant and she narrated the incident to her uncle who called the police.
12. Certain Court questions were also put to the victim wherein, she answered that the accused had touched her private parts with his finger. She was crossexamined by the Ld. Counsel for the accused, but nothing material came on record so as to discredit her testimony. She was also not confronted with her previous statements as aforesaid and therefore no contradictions SC No. 46/12 FIR No. 118/12 PS Seelampur 6 of 16 were recorded. Hence, the accused cannot seek the benefit of contradictions, if any. Even otherwise, as can be seen, there had been no material contradictions in the testimony of the victim with her previous statements and as per the settled law, minor contradictions are not to be considered, that too when the victim/witness is of a tender age, which are quite natural.
13. Reference can be made to the judgment in State of Punjab Vs. Gurmit Singh & ors, AIR 1996 SC 1393, wherein it was observed that "the Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars".
14. It is also to be observed that the first information was made to the PCR and the PCR form (proved by PW11) on record also stated that the information was received regarding rape of a girl. Ld. Counsel for the accused pointed out that as per deposition of PW3 as also of PW1 who also deposed in her cross examination by the Ld. Addl. PP - police/PCR was informed by the maternal uncle of the victim, namely, Shahnawaj, however he was neither cited as a witness nor examined by the prosecution. This is a fact on record. However, it may be a lapse on the part of prosecution, but in my opinion, it is only a minor lapse which in no way can discredit the SC No. 46/12 FIR No. 118/12 PS Seelampur 7 of 16 otherwise acceptable and trustworthy testimony of the victim. It was further observed in Gurmit Singh's case (supra) that "the prosecutrix had no control over the investigating agency and the negligence of an Investigating Officer could not affect the credibility of the statement of the prosecutrix".
15. Ld. Counsel for the accused further submitted that the accused was of the age of the maternal grandmother of the victim and it was highly unlikely for a person of that age to commit such an offence with a minor girl. In my opinion, this is only a hypothetical argument. Age cannot be bar for commission of offence including the present one. It may be noted that during the medical examination, the accused was found to be capable of performing sexual intercourse and hence this argument is not sufficient to disbelieve the testimony of the victim.
16. It was also agitated by Ld. Counsel for the accused that the accused has been falsely implicated since he wanted the mother of the victim to vacate the tenanted premises which she was retaining and on this issue, the accused has been falsely implicated.
17. No prudent mother would like to put her minor daughter to defame only to protect her tenancy. It was again observed in Gurmit Singh's case (supra) that "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 SC No. 46/12 FIR No. 118/12 PS Seelampur 8 of 16 honour such as is involved in the commission of rape on her".
18. The accused examined one witness in his defence, namely, DW 1 Smt. Sabra, the neighbour of the accused. She deposed that due to some dispute over rent between the accused and the mother of the victim a quarrel had taken place due to which this case has been falsely registered against the accused who is a respectable person of the society. In her cross examination by the Ld. Addl. PP, she deposed that she had good relations with the family of the accused and had come to the Court on his asking. She knew nothing about rent amount between the accused and the mother of the victim and admitted that she had not made any complaint to the police regarding the said quarrel. She also admitted that she had not gone to the police station after the arrest of the accused to disclose said facts. It shows that she was an interested witness and also a tutored one and no reliance can be placed on her testimony.
19. It was also pointed out by the Ld. Counsel that as per the prosecution case there were many public persons when the accused was apprehended but none of them had been examined. No purpose would have been served in citing or examining any such public person when the offence was committed inside a closed room and there was no eyewitness to it. Hence, this argument also does not find any favour of this Court.
20. It may be also noted that the victim gave the same version to the doctor who examined and prepared her MLC who has been examined as PW
5. It has been recorded in the MLC History of attempt of sexual intercourse SC No. 46/12 FIR No. 118/12 PS Seelampur 9 of 16 by landlord Nanhe at 03:00pm. Hence, the version of the victim stands corroborated at each stage.
21. Furthermore, the testimony of the victim stands corroborated from the medical evidence. The Pajami of the victim was seized by the police. The blood samples of the accused were also taken and a DNA profiling was got conducted. As per the DNA fingerprinting test report Ex.PW13/H, the alleles from the source of exhibit 3 i.e. blood sample of the accused, were accounted in the alleles from the source of the exhibit '1a' i.e. Pajami of the victim. It was concluded that the DNA profile from the source of exhibit '1a' is similar with DNA profile of exhibit '3'. It is a matter of record that during medical examination, the accused could not ejaculate and therefore his semen samples could not be collected. Hence, the argument of the Ld. Counsel that it could have been planted upon the victim's Pajami is ruled out. There is no explanation for the source of the alleles of the blood of the victim being found on the source of the Pajami of the victim and only conclusion which can be drawn is that because the accused attempted sexual assault upon the victim, the same were found on the Pajami of the victim. The MLC of the victim further mentions "vulva slightly moist". The possibility of accused having ejaculated at the time of incident cannot be, thus, ruled out.
22. It is thus seen that the ocular evidence in the form of testimony of the victim is corroborated by the medical evidence and they both point out that the accused tried to commit rape upon the victim. The testimony of the victim is trustworthy and could not be shaken during her crossexamination.
SC No. 46/12 FIR No. 118/12PS Seelampur 10 of 16 She maintained that while she was sleeping, the accused entered the house, took off his pant as also her Pajami and tried to commit penetrative sexual assault upon her. Ld. Counsel submitted that in the given facts, at best it can be a case under Section 354 IPC.
23. The Hon'ble High Court of Gauhati, in the judgment delivered in Ainul Hoque @ Inul Hoque Vs. State of Assam (MANU/GH/0107/2008), cited the case of Rex Vs. James Lloyd reported in (1836) 7C and P 817 :
173 ER 141, in which while summing up the charge to the jury, Justice Patterson observed as follows :
"In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold the prosecutrix not only desired to gratify his passions upon her person but that he intended to do so at all events and notwithstanding any resistance on her part".
24. In another case, the Hon'ble High Court of Gauhati (Agartala Bench), in the judgment delivered in The State of Tripura, Represented by the SecretarycumCommissioner, Home Department, Government of Tripura, Agartala (MANU/GH/0215/2012) observed that "accused laid prosecutrix on bed, put off her pant and he himself laid on prosecutrix and tried to penetrate his penis in her vagina, it was enough to hold that accused made an attempt to commit rape".
25. Thus in my opinion, it was not a case of simple criminal assault with intention to outrage the modesty, as defined in Section 354 IPC but SC No. 46/12 FIR No. 118/12 PS Seelampur 11 of 16 clearly a case of attempt to rape a girl less than 12 years of age. As such, it is held that the prosecution has been able to prove its case against the accused beyond reasonable doubt. Accordingly, accused Nanhe Khan is held guilty for the offence punishable under Section 376(2)(f)IPC read with Section 511 IPC and is convicted accordingly.
ANNOUNCED IN OPEN COURT ON 29th day of September 2015 (Sanjay SharmaI) Addl. Sessions Judge01 (NE) Karkardooma Courts, Delhi SC No. 46/12 FIR No. 118/12 PS Seelampur 12 of 16 IN THE COURT OF SHRI SANJAY SHARMA:
ADDL. SESSIONS JUDGE - 01 (NORTHEAST) :
KARKARDOOMA COURTS : DELHI Unique ID No. 02402RO 177842012 SC No. 46/2012 FIR No. 118/2012 PS Seelampur Under Section 376(2)(f)/511 IPC State Versus Nanhe Khan S/o Sher Khan ORDER ON QUANTUM OF SENTENCE :
1. Vide judgment dated 29.9.2015, accused Nanhe Khan was convicted for the offences punishable under Sections 376(2)(f) IPC read with Section 511 IPC.
2. I have heard Ld. Addl. PP for the State and Ld. Legal Aid Counsel - for the convict on the point of sentence.
3. Ld. Counsel for the convict submitted that convict is an old man, aged about 65 years and is ailing with several diseases and awarding him a substantive sentence may ruin his health and on these grounds, he prayed for a lenient view.
4. On the other hand, Ld. Addl. PP submitted that convict was involved in a heinous crime against a minor girl and therefore he deserves no mercy.
5. I have considered the mitigating and the aggravating circumstances as presented before me.SC No. 46/12 FIR No. 118/12
PS Seelampur
13 of 16
6. The crime of the convict has gone deep into the mind and soul of the victim for which no amount of imprisonment or compensation is sufficient.
7. According to Section 511 IPC, whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment... ... shall, where no express provision is made by this court for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to onehalf of the imprisonment for life or, as the case maybe, onehalf of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.
8. The convict has been held guilty for the offence punishable under Section 376(2)(f) IPC as it stood before the amendment. The said Section provides that such convict shall be punished with rigorous imprisonment which shall not be less than 10 years but which maybe for life and shall also be liable to fine. The proviso to this Section says that provided, the Court may, for adequate reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years.
9. It is clear from the reading of the above provision that though for the offence punishable under Section 376(2)(f) IPC, the punishment should not be less than 10 years but which may extend to life, however, the Court can, for reasons to be recorded, impose a punishment less than 10 years. A combined reading of this provision and Section 511 IPC would mean that the convict has to be imposed a punishment of onehalf period of the punishment SC No. 46/12 FIR No. 118/12 PS Seelampur 14 of 16 provided for the offence which is longest in term. In the instant case, it would be life imprisonment. However, the proviso attached to Section 376 IPC also gives power to the Court to impose a sentence lesser than 10 years.
10. The convict at present is 65 years of age and is not keeping good health. He also does not hail from a rich background. In my opinion, the age and the health of the convict is a sufficient ground to impose a sentence lesser than the minimum provided under Section 376 IPC. However, the embargo has been put by Section 511 IPC which makes it mandatory to impose half the sentence of the maximum sentence provided. The maximum sentence under Section 376(2)(f) IPC is life imprisonment. According to Section 511 IPC, if that is the case, the convict has to be imposed half of the life imprisonment.
11. Considering the above provisions and balancing the two sides, this Court is of the view that the convict be sentenced to Rigorous Imprisonment for a period of 7 years and also to pay a fine of Rs.25,000/ for the offence punishable under Section 376(2)(f) IPC read with Section 511 IPC. In default of payment of fine, he shall further undergo Simple Imprisonment for 2 months.
12. As per record, the convict was arrested on 29.3.2012 and was released on bail on 17.10.2014. Thus, he has already remained in custody for a period of about two years, six months. Accordingly, benefit of Section 428 Cr.PC be extended to the convict.
13. It was submitted on behalf of the convict that he belongs to a very poor family and therefore, he is unable to pay compensation. In view therof, the SC No. 46/12 FIR No. 118/12 PS Seelampur 15 of 16 DLSA is directed to pay compensation of Rs.1,00,000/ to the victim.
Let a copy of this order alongwith the copy of judgment be given free of cost to the convict. File be consigned to the Record Room after completion of due formalities.
ANNOUNCED IN OPEN COURT ON 30th day of September 2015 (Sanjay SharmaI) Addl. Sessions Judge01 (NE) Karkardooma Courts, Delhi SC No. 46/12 FIR No. 118/12 PS Seelampur 16 of 16