Delhi District Court
Fir No. 742/05; State vs . Vinod Sharma Page 1 Of 16 on 1 November, 2010
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS
JUDGE-03:NW:ROHINI:DELHI
SESSIONS CASE NO. 85/09.
FIR No. 742/05
U/S: 376 IPC.
P.S. Rajouri Garden
STATE
Versus
VINOD SHARMA
S/o Domee Sharma,
R/o Village Tirashi, PO Chuprem Kothi,
PS Bakhtar Pur, Distt. Saharsha (Bihar).
Date of Institution : 18.10.2005.
Date of Argument : 18.10.2010.
Date of Judgment : 01.11.2010.
JUDGMENT
1. Prosecution case, as contained in the charge sheet, is that on 19.08.2005, Duty Constable from DDU Hospital gave a telephonic information that Kumari "P" (name withheld) was admitted in DDU Hospital after commission of rape, by ASI Jagbir Singh. On receipt of DD No. 19, WSI Vipnesh reached DDU Hospital where Kumari "P" and her mother Reeta met her. SI Vipnesh recorded the statement of Smt. Reeta wherein she stated that she was working as maid in Kothis and that in the morning at about 10.00 am, she left her children including prosecutrix "P" aged about six years at the tea shop of her father. At about 1.30 pm when she returned back at the shop of his father, her FIR No. 742/05; State Vs. Vinod Sharma Page 1 of 16 daughter "P" came crying to her. On asking, she told her "Main Khelti Hui Uncle Ke Paas Gayi Thi, Uncle Ne Mujhe Godi Mein Bithaye Rakha Aur Mere Se Gandi Baatein Ki, Mujhe Godi Se Nahin Utarney Diya Aur Jab Mujhe Dard Hua, to Main Rone Lagi To Usne Mere Ko Godi Se Utaar Diya Aur Kaha Ki Main Tere Liye Campa Lekar Aata Hoon, Baad Mein Main Apne Nana Ki Dukaan Par Aa Gayi." On checking, she found blood on the underwear of her daughter. On questioning, prosecutrix took her to shop No. 8, Block No. 13/81, Subhash Nagar and pointed out towards accused Vinod Sharma as the same uncle who took her in his lap. On seeing her, accused tried to run away. She made noise. On hearing her noise, passers by caught the accused and beat him. In the meanwhile, someone informed the police. PCR van came at the spot and rushed the prosecutrix and her mother to hospital. On the statement of mother of the prosecutrix, FIR under Section 376 IPC was registered. Accused was arrested. After medical examination of the prosecutrix and the accused, doctor handed over the exhibits to the IO. During investigation, exhibits were sent to CFSL. Pending receipt of CFSL result, charge sheet was prepared under Section 376 IPC and accused was sent to court for trial. During the pendency of the case, CFSL result was filed in court.
2. After compliance of Section 207 Cr. PC, case was committed to Sessions Court. Charge under Section 376 IPC was framed against the accused to which, he pleaded not guilty.
3. In order to prove its case, prosecution examined 15 witnesses. PW-1 is Smt. Reeta. She is the mother of the prosecutrix. She proved the statement which she gave to the police as Exbt. PW-
FIR No. 742/05; State Vs. Vinod Sharma Page 2 of 161/A. She has also proved the arrest memo and personal search memo of accused.
PW-2 is Kumari "P." She is the prosecutrix. She deposed as to how the occurrence took place.
PW-3 is Rakesh Kumar. He is the brother of the shop owner. He deposed that accused was working at the shop of his brother Sanjay Chandok. He used to ply rickshaw at the shop of is brother for the supply of building material to the customers. He deposed that on the day of Raksha Bandhan in the month of August, 2005 at about 1.30 pm, his employee told him about some noise at the shop of his brother. He came outside and saw that Smt. Reeta and 2-3 persons were giving beatings to the accused. On enquiry, he was told by Smt. Reeta that accused had committed rape on her daughter. He further stated that a small girl aged about 5-7 years was also present at the spot and Reeta had shown him a garment which was having blood stains. He then immediately rang his brother and called him at the spot. His brother came at the spot and informed the police. PCR van rushed Reeta and her daughter to DDU Hospital.
PW-4 is HC Bhagat Ram, Duty Officer. He recorded the FIR Exbt. PW-4/A. PW-5 is Constable Naresh. He had assisted ASI Kanhaiya Lal during initial investigation of the case. On receipt of DD No. 18, he visited the spot with ASI Kanhaiya Lal where they saw accused being beaten up by the public. They came to know that accused had FIR No. 742/05; State Vs. Vinod Sharma Page 3 of 16 committed rape of six years old girl, who had already been rushed to DDU Hospital with her mother by the PCR van. He deposed that accused was also taken to DDU Hospital and that at about 5.30 pm, SI Vipnesh gave him Rukka which he took to the police station for the registration of the FIR.
PW-6 is Smt. Kaushalya Arora, Principal, MCD School. She produced the admission record of prosecutrix "P",relevant entry of the admission register is proved as Exbt. PW-6/A. Copy of the admission form and promotion form are Exbt. PW-6/B and Exbt. PW- 6/C. She deposed that as per admission record, the date of birth of prosecutrix "P" was 11.03.1997.
PW-7 is Dr. Babita Gabriyal. She had examined the prosecutrix and after examination, she referred her for Gynae examination. She proved the MLC of the prosecutrix as Exbt. PW-7/A. PW-8 is Sh. Kanwaljeet Arora, the then MM. He had recorded the statement of prosecutrix under Section 164 Cr. PC which is Exbt. PW-2/DA.
PW-9 is SI Vipnesh. She is the IO of this case. During investigation, she recorded the statement of Reeta and made her endorsement Exbt. PW-9/B on the basis of which, FIR was registered. She had got conducted the medical examination of the prosecutrix and accused and seized the exhibits handed over by the doctors. She had arrested the accused and prepared site plan Exbt. PW-9/E. She had recorded the disclosure statement Exbt. PW-9/F given by the accused.
FIR No. 742/05; State Vs. Vinod Sharma Page 4 of 16She had also prepared the pointing out memo Exbt. PW-9/G and got recorded the statement of prosecutrix under Section 164 Cr. PC after filing application in court for the said purpose.
PW-10 is SI Satish Kumar, the then Chowki Incharge of Police Post, MIG Flats, Rajouri Garden. On receipt of information regarding rape, he went at the spot and took the accused to DDU Hospital and got him medically examined. Thereafter, SI Vipnesh came at the hospital and took over the investigation. On 15.09.2005, case was again entrusted to him as SI Vipnesh was on leave. On 13.10.2005, he recorded the statements of Smt. Sarla, Principal, MCD School and maternal grandfather of the prosecutrix. He had sent the exhibits to FSL Rohini. He proved the FSL result Exbt. PW-10/A and Exbt. PW-10/B respectively.
PW-11 is HC Vijay Singh, DD Writer. He had recorded DDs No. 9A and 18.
PW-12 is Sh. Sanjay Chandok, shop owner. He deposed that accused was his employee, who used to deliver building material at the site in his rickshaw. He stated that on 19.08.2005, he had gone to market. At about 2.00 pm, he received a telephone call from his brother Rakesh Chandok that accused Vinod Sharma had raped a child in his shop. He came back and found that accused was beaten up by the public. He informed the PCR. Victim was a 5-6 years old girl and her mother was also present there. He saw blood on the underwear of the girl. He further deposed that the accused had confessed before him that he had taken the girl inside the shop and FIR No. 742/05; State Vs. Vinod Sharma Page 5 of 16 raped her by taking her on his lap after pulling down half of the shutter of the shop. He stated that accused was arrested by the police and his disclosure statement was also recorded.
PW-13 is SI Jagbir Singh from PCR. He deposed that on receipt of call, he reached at the spot where the shop owner met him and informed that his servant had raped a child. The child in the lap of her mother, was also found at the spot. She was bleeding. He took the accused and girl to the hospital. He was declared hostile and was subjected to cross examination by the learned Additional PP. He admitted in cross examination that shop owner Sanjay Chandok and his brother Rakesh Chandok met him at the spot. He admitted that the child was perplexed and he noticed blood on her underwear.
PW-14 is Kanhaiya Lal. He visited the spot with Constable Naresh Kumar and then from there, to the hospital and remained associated in the investigation with SI Vipnesh.
PW-15 is Dr. Poonam Laul. She proved the gynae observations on the MLC. She stated that as per MLC, superficial tear was found present below vagina and above anus.
4. Accused admitted FSL result and his own MLC. His statement was recorded under Section 313 Cr. PC wherein he stated that he was innocent. According to him, he had given a loan of Rs. 10,000/- to the maternal grandfather of the prosecutrix but he was not returning the same despite repeated requests and also quarrelled with him whenever he used to demand money and threaten to get him FIR No. 742/05; State Vs. Vinod Sharma Page 6 of 16 implicated in a false case to teach him a lesson. Accused refused to lead any evidence in his defence.
5. I have heard the learned Additional PP for the State and Sh. Aseem Bhardwaj, Advocate, Amicus Curiae for the accused. The learned defence counsel has mainly argued that medical evidence does not support the testimony of the prosecutrix and completely rules out the commission of rape. It is stated that as per MLC Exbt. PW-7/A, hymen was found to be intact and therefore the rape is ruled out. It is also argued that semens have not been found either in the vaginal swab nor on the underwear of the prosecutrix. It is thus argued that offence under Section 376 IPC is not proved. The learned Additional PP, however, has argued that to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen.
6. So far as the legal position is concerned, explanation to Section 375 IPC makes it clear that penetration is sufficient to constitute sexual intercourse necessary to the offence of rape. To constitute penetration it must be proved that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. The only thing to be ascertained is whether the private parts of the accused did enter into the person of the woman. It is not necessary to decide how far they entered. It is not essential that the hymen should be ruptured, provided it is clearly proved that there was penetration even though partial. For the offence of rape to be committed, it is not necessary that there should be complete penetration. Similarly, seminal emission is not necessary to FIR No. 742/05; State Vs. Vinod Sharma Page 7 of 16 establish rape. What is necessary is that there must be penetration. Absence of spermatozoa cannot negative rape. Slightest degree of penetration with or without ejectment attracts the ingredients of Section 375 IPC. Thus, absence of spermatozoa cannot negative rape. Modi in his well known work "Medical Jurisprudence & Toxicology" states "thus to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
7. Thus, the argument of the defence that gynae opinion given by the doctor rules out the commission of rape is not acceptable.
8. The evidence of the victim of sexual assault has great probative force and the conviction of the accused on the basis of the testimony of the prosecutrix alone is permissible where the evidence of the prosecurix inspires confidence and appears to be natural and truthful. A plethora of decisions by Hon'ble Supreme Court would show that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the courts for the corroboration of her statement. The testimony of the prosecutrix is to be appreciated on the principle of probability just as FIR No. 742/05; State Vs. Vinod Sharma Page 8 of 16 the testimony of any other evidence. In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat 1983 (3) SCC 217, it was held that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. The Hon'ble Court further held that we must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values; and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile."
9. Similarly, in the case of State of Maharashtra Vs. Chandraprakash Kewal Chand Jain 1990 (1) SCC 550, the court held that a prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act FIR No. 742/05; State Vs. Vinod Sharma Page 9 of 16 nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence....... What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration........... If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted."
10. Before dwelling any further, it would be appropriate to deal with the testimony given by the prosecutrix. Prosecutrix Kumari "P" appearing as PW-2 deposed that on 19.08.2005, her mother left her and her two brothers at the shop of her grand maternal uncle and then went for her work. Accused came at the shop of her Nana (grand maternal uncle) for taking tea and after taking tea in a glass, he went to his shop which is at a small distance from the shop of her Nana. She then went to the shop of the accused for picking up empty glass. Accused was alone at the shop. Accused called her "Beta Mere Paas Aao" and then made her to sit in his lap. He then pulled down both the FIR No. 742/05; State Vs. Vinod Sharma Page 10 of 16 shutters of the shop and removed her nicker and lifted her Ghagra. She further stated that "Mulzim Ne Apni Peshaab Karne Wali Cheez Ko Meri Pishaab Karne Wali Jagah me Ghusad Diya, Aur Mere Ko Dard Hone Laga." She further stated that accused then told her that he would bring Campa Cola for her. She then started weeping outside the shop. Her mother reached there and took her at her Nana's shop and asked her the reason for weeping. She narrated the whole facts to her mother. Her mother took her at the shop of the accused where she pointed out towards accused as the same person who had raped her. Accused then tried to run away but her mother raised alarm and the accused was apprehended by the public persons. She stated that police came at the spot and accused was apprehended. She was taken to the hospital by the police where the nicker, which she was wearing, was taken by the police. She identified her nicker as Exbt. P-
1. In cross examination, she stated that she was studying in third standard at the time of commission of offence and had not gone to the school on the day of occurrence as it was a holiday on account of Rakhi festival. She further stated that there are 4-5 shops between the shop of her Nana and accused and that they were open at that time.
11. The learned defence counsel has argued that there are improvements in the testimony of prosecutrix, in as much as, she had stated in her statement before the learned MM that when she was weeping outside the shop, her mother came there, she had not stated before the learned MM that accused had told him "Beta Mere Paas Aao Aur Mereko Apni godi Mein Bitha Liya" and had also not told in the previous statement that accused had left the shop of her Nana with a glass of tea. She had also not told before the learned MM that her FIR No. 742/05; State Vs. Vinod Sharma Page 11 of 16 mother accompanied her to the shop of accused and she had pointed out towards accused as the same person who had committed wrong act with her. On the basis of these improvements, it is argued that it shall be unsafe to rely on the testimony of the prosecutrix.
12. Minor contradictions or insignificant discrepancies in the testimony of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. In so far as certain inconsistencies or minor contradictions in the narration or embellishment are concerned, the Apex Court in the case of Randhir Basu Vs. State of West Bengal AIR 2000 SC 908 held that some inconsistencies of a minor nature in the evidence of the witness can be regarded as natural giving more details while disposing before the court are not to be treated as improvements by such a nature as would create any doubt regarding the trustworthiness of a witness. Minor discrepancies are possible even in the version of truthful witnesses and such minor discrepancies only add to the truthfulness of their evidence. The main thing to be seen is whether the inconsistencies go to the root of the matter or pertain to insignificant aspect thereof. The discrepancies which do not go to the root of the matter and shake the basic version of the witness, cannot be annexed with undue importance. More so, when all the important probability factors echoes in favour of the version narrated by the witness. In the case of Jamir Ahmad Vs. State 1996 Crl. L. J. 2354, the Hon'ble Court held that embellishment, exaggeration, contradictions and inconsistencies are bound to creep in with the passage of time. If witnesses are not tutored, they would come out with a natural and spontaneous version of their own. Similarly, in the case of Kanwar Singh Vs. State of Rajasthan 1996, Crl. L. J.
FIR No. 742/05; State Vs. Vinod Sharma Page 12 of 164056, it has been held that there is bound to occur contradictions and inconsistencies in the statement of witnesses with the passage of time or for any other reasonable cause, but on account of this, by itself, benefit of doubt cannot be extended to the accused. In the case of Markandaya Naik Vs. State 1993 Crl. L. J. 3328 (Orissa) it has been held that there is tendency amongst the witnesses in our country to back up a good case by false or exaggerated version. The witnesses also add embroidery to Prosecution version, perhaps for the fear of being disbelieved. But that is no ground to throw the case over board, if truth in the main. If there is a ring of truth, the case should not be rejected.
13. The discrepancies pointed out by the defence are not major discrepancies or material improvements which may affect the core of testimony of the prosecutrix which being that accused had raped her. Prosecutrix has withstood the test of cross examination. Her testimony is cogent. The MLC of the prosecutrix proves a tear below the vagina and above the anus which may have resulted due to the force applied by the accused. The defence has taken the plea that accused has been falsely implicated because of the reason that he had given a loan of Rs. 10,000/- to the maternal grandfather of the prosecutrix, who did not want to return the same and due to this reason, he got the accused falsely implicated. However, the defence put to PW-1 Smt. Reeta, mother of prosecutrix is that it was she who had taken a sum of Rs. 10,000/- as loan from the accused and did not want to repay. Thus, accused himself is not clear of his defence. He has put defence to PW-1 which is different from what he took in his statement under Section 313 Cr. PC. Moreover, in the traditional non-
FIR No. 742/05; State Vs. Vinod Sharma Page 13 of 16permissive bounds of society of India,no girl or woman of self respect and dignity would depose falsely, implicating somebody of ravishing her chastity by sacrificing and jeopardising her future prospect. Not only this, the family of the girl would invite the wrath of being ostracised and cast out from the society to which it belongs. It appears highly improbable that the mother of the prosecutrix would get the accused falsely implicated by making her daughter a tool and spoil her life only because she or her father owed Rs. 10,000/- to the accused. Accused himself has not led any evidence to prove that he had made the payment of Rs. 10,000/- either to the mother or to the Nana of the prosecutrix. The defence taken by the accused is therefore not acceptable.
14. The learned Amicus Curiae has also argued that there is no whisper in the testimony of PW-1 regarding the presence of Sanjay Chandok at the spot and she has also not deposed that she had left her other two children also at the shop of her father. In my opinion, merely on account of this reason, testimony of PW-1 cannot be disbelieved. Prosecutrix has deposed that she had narrated the incident to her mother and PW-1 has also stated that her daughter told her that accused had committed rape with her. The statement made by the prosecutrix to her mother immediately after the incident is admissible under Section 157 of the Indian Evidence Act and has a corroborative value. In sexual offences against minors, there is no valid or tangible reason why parents will tender false evidence against the accused unless the same is thoroughly truthful.
15. The learned counsel of accused has also argued that FIR No. 742/05; State Vs. Vinod Sharma Page 14 of 16 prosecutrix is a child witness whose testimony cannot be accepted without corroboration. As per the mother of prosecutrix, the age of prosecutrix, at the time of alleged occurrence, was eight years. The admission record proved by PW-6 also proves that the date of birth of the prosecutrix, as per school record, is 11.03.1997 meaning thereby that prosecutrix was aged about eight years at the time of the alleged occurrence. Thus, the rape has been committed on a child of tender year but there is no rule of law requiring corroboration from an independent source of the evidence of the child witness. In taking this view, I am supported by the case of Rameshwar Vs. State of Rajasthan AIR 1952 SC 54 (1), wherein the Hon'ble Supreme Court held as under:-
"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except, where the circumstances make it safe to dispense, with it, must be present to the mind of the Judge and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child which is the victim of a sexual offence, coupled with other circumstances appearing in the case such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessarily but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."
16. In this case, prosecution is also relying on the evidence of extra judicial confession given by accused before his shop owner Sanjay Chandok (PW-12). An extra judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting FIR No. 742/05; State Vs. Vinod Sharma Page 15 of 16 the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. It is for the Court having regard to the credibility of the witness to accept the evidence or not. When the Court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence. In taking this view, I am supported by the judgment of Hon'ble Supreme Court in the case of Baldev Raj Vs. State of Haryana, AIR 1991 SC 37 . In this case, PW-12 Sanjay Chandok has deposed that accused had confessed before him and that he had taken the girl inside the shop and raped her by taking her on his lap after pulling down half of the shutter of the shop. No question has been put in cross examination to PW-12 regarding extra judicial confession made by the accused. There is not even a suggestion that he gave no such confession. Accused was an employee of PW-12. There is no reason why he would depose falsely against the accused. I therefore have no reason whatsoever to disbelieve the testimony of PW-12 Sanjay Chandok with regard to extra judicial confession regarding the rape given by the accused.
17. Hence, in my view, the testimony of prosecutrix not only finds corroboration from the testimony of her mother to whom, she narrated the incident but also from the extra judicial confession given by accused to Sanjay Chandok (PW-12). I am therefore of the opinion that prosecution has been able to prove its case against the accused beyond doubt. I therefore hold the accused guilty and convict him under Section 376 IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE: NORTH-WEST:03:ROHINI:DELHI. ANNOUNCED IN THE OPEN COURT 01.11.2010.
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