Delhi District Court
St. vs . Md. Kamil on 1 June, 2012
FIR no. 62/08 01.06.12 1/13
IN THE COURT OF MS. KIRAN GUPTA
METROPOLITAN MAGISTRATE :MAHILA COURT: DELHI
FIR NO. 62/08
PS Jama Masjid
St. Vs. Md. Kamil
U/s 354 IPC
JUDGEMENT :
1. Sl. No. of the Case : 243/2/08
2. Date of Commission of Offence : 1415 days prior
to 26.08.08
3. Name & Add. Of the Complainant : Smt. Anjum
4. Name & Add. Of the Accused : Md. Kamil
s/o Md. Akil
R/o H.no. 1057,
Gali Madarsa Wali
Matia Mahal, Jama
Masjid, Delhi
5. Offence complained of : U/S 354 IPC
6. Plea of the Accused : Pleaded Not Guilty
7. Final Order : Convicted
8. Date of Order : 01.06.12
Date of Institution of case :09.09.08
Date of hearing Final Argument: 24.05.12
Date of decision of case : 01.06.12
BRIEF FACTS & REASONS FOR SUCH DECISION:
1 Brief facts of the case are that about 1415 days before
26.08.08, while the complainant had gone to toilet at around 4 pm, she suddenly heard the noise of her minor child , when she came out of toilet FIR no. 62/08 01.06.12 2/13 after hearing the noise of the child, she saw that her husband Md. Kamil had put his hand inside the underwear of the minor child and is inserting his finger inside her vagina. She immediately took the child and scolded her husband, however her husband who is accused in the present matter apologized and told her not to report this matter to anyone as the same would defame their family. She immediately went to her parents house along with the minor child and told the entire incident to her mother and brother and finally reported the matter to police on 26.08.08, hence the present FIR and charge sheet.
2 Primafacie, case having been made out, charge for offence U/s 354 IPC was framed on 10.06.09 to which accused pleaded not guilty and claimed trial.
3 In order to prove its case, prosecution has examined eleven witnesses which are as follows : PW1 Anjum is the complainant who has proved her complaint dt. 26.08.08 Ex.PW1/A. PW2 ASI Madan Mohan has proved the FIR Ex.PW2/A and endorsement on rukka Ex.PW2/B. PW 3 Raisa is the mother of complainant. PW4 Jamaluddin is the father of complainant. PW5 Ct. Lalita got the minor child medically examined on 26.08.08 at Lok Nayak hospital. PW6 Ct. Narender is the assisting IO who joined the investigation of case with ASI Kiran Pal and Ct. Lalita. PW7 Ct. N. Laxman is also the assisting IO who joined the investigation with IO SI Ramzan Ali and proved the arrest memo of accused Ex.PW7/A and personal search memo Ex.PW7/B and further deposed that accused was medically examined at JPN hospital. PW8 SI Ramzan Ali is the IO of the FIR no. 62/08 01.06.12 3/13 case who recorded the statement of complainant Anjum and also proved the site plan Ex.PW8/B and conducted investigation of the case. PW9 Dr. Sudha has proved the MLC Ex.PW9/A and stated that since the minor child was victim of sexual assault, she was referred to Gynae department on the same day and also identified the signatures of Dr. Parvez who has countersigned the said MLC as he was working under her. PW10 ASI Kiran Pal Singh has proved the endorsement on the complaint Ex.PW10/A . PW 11 Dr Avantika is SR in Gynae and Obs. Department in LNJP hospital and on being deputed by head of department, she deposed in the court in respect of MLC no. 99125 dt. 26.08.08 as the concerned doctor Astha who has prepared the said MLC has left the hospital. She deposed that she had seen Dr. Astha signing and writing during the said period and identified her signatures and writing at point A on MLC Ex.PW11/A which was already Ex.PW9/A. 4 PE was closed vide order dt. 06.03.12 and thereafter statement of accused u/s 313 Cr.PC was recorded after putting all the incriminating evidence on record. Accused stated without oath that he has been implicated falsely and examined HC Narsi Lal as DW1, Md. Yakub as DW2, himself as DW3 and Md. Aqil as DW4.
5 Heard the arguments addressed by Ld. APP for the state and Ld. Defence Counsel. I have carefully considered the facts and circumstances of the present case. I have gone through the charge sheet, annexures and documents on record and entire material relied upon by the prosecution.
FIR no. 62/08 01.06.12 4/136 PW1 is the complainant and mother of the victim who deposed that the incident took place 1415 days prior to 26.08.08. She deposed that she was present in her matrimonial house along with accused who is her husband and minor daughter. At about 4 pm, she went to toilet, then she heard the crying of her child who is the victim . She came out from the toilet and found that her husband was putting finger in the vagina of her daughter after removing her panty. Thereafter, she scolded her husband, who fell down on her leg and requested her to forgive him. Since her daughter was weeping, she stopped her and went to her parental house. After one week, she took her to the doctor and thereafter on 26.08.08 filed the complaint to the police which is Ex.PW1/A. Complainant during her examination in chief has deposed the contents of her initial complaint Ex.PW1/A in substratum .
7 It is argued by Ld. Defence counsel that there is no specific date of the alleged incident and moreover as per testimony of PW1 Anjum, the incident relates to 1415 days prior to 26.08.08 on the basis of which present FIR has been lodged. It is further argued that considering the said delay in lodging the complaint and FIR, it is established that no such incident had taken place and complainant has falsely implicated the accused due to her marital discord. It is further argued that there is no explanation for delay in lodging FIR, hence accused is entitled to be acquitted on this ground alone.
Admittedly, there is delay of 1415 days in lodging of the FIR, FIR no. 62/08 01.06.12 5/13 but, what has to considered is whether the said delay is fatal to the case of prosecution or not. In Dildar Singh Vs. State of Punjab AIR 2006 SC 3084, Hon'ble Supreme Court has held that "delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report. Delay has the effect of putting the Court on guard to search if any explanation has been offered for the delay and if offered, whether it is satisfactory".
Further, in State of Punjab Vs. Gurmit Singh in AIR 1996 SC 1393, Hon'ble Supreme Court has held that "the Courts cannot over look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged".
In the instant case, victim is the daughter of accused himself and complainant is none other than wife of accused. PW1 has categorically deposed that she fight with her husband ie accused when she saw him misbehaving with minor daughter. Accused immediately apologized her and told her not to disclose the same in order to protect honour of family. Partially convinced by accused who happens to be her husband, she quietly went to her parents house and disclosed everything to her brother and mother. PW3 and PW4 who are parents of the FIR no. 62/08 01.06.12 6/13 complainant in their cross examination have admitted that when the complainant narrated about the acts of her husband to them, they complained about the same to the parents of the accused but they denied that any such incident had occured. PW4 further admitted that his relatives suggested to get the minor child medically examined and to report the matter to the police. But they did not took any steps as suggested by relatives as the condition of minor child was not well. They got her treated from private doctor but did not disclose about the incident . They called the family members of accused to their house, however they did not come to their house . The fact that the minor child was taken to the doctor is also corroborated with the testimony of PW1. In normal course of human conduct, wife who is indirectly victim of such heinous act of her husband with regard to their own daughter, would not go publicly or give publicity to such traumatic experience she had undergone. She would terribly feel embarrassed in relation to the incident to narrate such incident . Over powered, as she may be, by feeling of shame her natural inclination would be to avoid talking to anyone, lest the family name and honour is brought into controversy. Even at that stage, she could not gather the courage to report the matter against her husband to the police. She thought for the same many times and finally when her conscience did not allow her to conceal the said heinous act by her husband and that too against his daughter, she gathered the courage to file her complaint before police. There is no suggestion about the delay in lodging the complaint and FIR in the entire cross examination by the Ld. Defence counsel. Applying the dictum of the above mentioned pronouncements in the factual matrix of the case, I FIR no. 62/08 01.06.12 7/13 am of the view that delay in lodging the FIR is not fatal to the case of prosecution and entire prosecution story cannot be nullified only due to the fact that matter was reported after 1415 days of the incident. In the present case, the accused being the father has ravished his own minor daughter of 4 years . In the present day society also, people are afraid of lodging complaint about such incidents as they value the reputation of the family as most sacred.
8 The second argument of Ld. Defence counsel is that the complainant has filed the false case due to marital discord as there was serious dispute between the complainant and her husband and in order to teach him lesson, complainant has filed this false case against the accused who is her husband and has relied upon the cross examination of complainant. Let the said argument be viewed in light of cross examination of complainant itself. PW1 in her cross examination has admitted that she was married with accused on 25.03.07. Her husband used to drink and also used to assault her physically. The parents of her husband used to favour him and further harassed and beat her without any reason and same was daily routine. Her husband did not pay the daily house hold expenses. The walking distance between her parents house and matrimonial home is about 15 minutes and her mother used to come to intervene in the matter. She further admitted that there were regular quarrels before the present incident. She further admitted that she is residing with her mother and she went to her mother's house at 4.30 pm on the day of incident. When her mother and brother inquired about her informal coming, then she narrated the said incident to her FIR no. 62/08 01.06.12 8/13 mother and brother.
She further admitted that on the date of incident, accused did not go to his work and they all took their lunch at about 3 pm together. When she went to the toilet, accused was resting on bed and she came back in 2 minutes. Toilet is situated at 10 steps from her room and there are four rooms on the floor where her room is situated. No one came in her room from the premises after hearing the crying of her daughter. She quarreled with her husband for about 510 minutes. However, no inmates of the house came after hearing the noise of quarrel. She went to the house of her mother on the same day and immediately narrated the incident to her mother, father, brother and sister. She further admitted that she did not call any person or did not disclose the incident to anyone except her parents.
9 It is evident from the testimony of PW1 that while she had gone to the toilet, accused who is her husband and father of victim, was resting on bed after taking lunch with them in the said afternoon. While the complainant was in toilet, she heard the cries of her daughter. When she came in the room, she saw that accused has removed the underwear of victim and was inserting his finger inside her private part. Minor fight/marital discord does not seems to be the motive of false implication as alleged by Ld. Defence counsel. No mother would level such allegations against her husband due to some marital discord.
Even if it is assumed that there was marital discord to such a FIR no. 62/08 01.06.12 9/13 great extent that complainant would falsely implicate her husband, however the same is belied by MLC Ex.PW9/A and also Ex.PW11/A wherein it is stated that alleged history of sexual assault by father 15 days back and doctor concerned, after examining the victim opined that hymen appears torn. She further opined that there is no visible tear seen however hymen appears torn.
Admittedly, victim was around 4 years on the date of incident. It is highly improbable that hymen of child of such a tender age would be torn or even appear to be torn. PW11 Dr. Avantika has proved the MLC Ex.PW11/A and categorically deposed that as per MLC, history suggesting of fever and burning sensation in urine was found. On examination, the presence of torn hymen was found which is suggestive of sexual assault. She further deposed that one of the reasons of fever and burning sensation in urine of child aged 4 years might be that since the vagina is sterile and any invasion to vagina by ungloved fingers as per MLC can cause infection of the lower genital tract causing above symptoms. On being questioned by Ld. Defence counsel, about the difference between hymen appears torn and hymen torn, concerned doctor stated that four year old girl child has no sense of importance of the examination. The child would not co operate, so there is difficulty in examination. Moreover, if history is of suggestive fingering( rather than complete genital organ), complete comment on the status of hymen cannot be done. The genitalias of the child are small, so examination becomes difficult. She further deposed that meaning of question mark at point B in the MLC Ex.PW11/A is that there is doubt that hymen is FIR no. 62/08 01.06.12 10/13 completely or partially torn but volunteered that from MLC, it is visible that hymen is not intact. Moreover, it is not the case of accused that the said condition as opined by the doctor in the MLC was the result of other extraneous conditions. Hence, the argument of Ld. Defence counsel is untenable as the MLC Ex.PW9/A, also exhibited as Ex.PW11/A is clear and the testimony of PW1 is specific in this regard.
10 At this stage, Ld. Defence counsel was critical about the fact that the testimony of complainant is not corroborated with any other independent witness, hence no reliance can be placed on the same. He has also highlighted the admission by PW3 Raisa in her cross examination that complainant came to their house 20 days prior of lodging the report with the police . It is argued that as per the testimony of complainant and Ex.PW1/A, the incident occured 1415 days prior to 26.08.08 whereas PW3 who is the mother of complainant has herself admitted that complainant came to their house 20 days prior, hence no reliance can be placed on the testimony of PW1 and accused be acquitted accordingly as he has been falsely implicated by the complainant. As per Ex.PW1/A and examination in chief of PW1, she has categorically stated that incident occured 1415 days prior to 26.08.08. PW3 in her examination in chief has also categorically deposed that the incident took place 1415 days prior to the lodging of complaint. The said fact is corroborated with the testimony of PW4. All the witnesses have stood the test of cross examination. Mere deposition of PW3 that complainant came to their house 20 days prior of lodging the report with the police is not fatal to the case of prosecution. It is settled law that there is no bar to accept the sole testimony of the FIR no. 62/08 01.06.12 11/13 witness, if it is reliable and trust worthy. In the present case, the substratum of the allegations made in the complaint have been reiterated in evidence by complainant. Minor improvements, if any, are bound to happen with the passage of time and no witness can depose in verbatim. The testimony of the complainant is corroborated with MLC Ex.PW9/A and also Ex.PW11/A. 11 Ld. Defence counsel is also critical about the fact that none of the other person who were residing on the same floor as is evident from testimony of PW1 came on the spot after hearing the noise of either of the child nor the complainant. PW1 has categorically deposed that she heard the crying of her child. It cannot be inferred that the neighbours would come on each and every cry of the child as to why she is crying when the complainant and her father were present along with child, at that time. Moreover, the complainant had not gone very far but had gone only to toilet which is at the distance of 10 steps from her room. PW1 has categorically deposed that when she saw her husband doing the said act, she scolded him and he fell down on her leg and requested her to forgive him. No where in the testimony of complainant , it has come that she shouted for help or made noise for help to afford the opportunity to other people who were residing on the same floor in the other rooms to come. When she scolded the accused, he immediately fell down in her legs and requested her to forgive him . PW1 in her cross examination has admitted that she quarreled with her husband for about 510 minutes. No inmates of the house came after hearing their noise of quarrel. The defence of the accused is that complainant has falsely implicated him FIR no. 62/08 01.06.12 12/13 due to marital discord which resulted in the daily quarrel. Even, if, we go by said defence, no one would come every day to witness the quarrel of the parties and when the same is a daily routine. Moreover, PW1 in her cross examination has admitted that she did not call any person or did not disclose this fact to any one except her parents and went to her mother house on the same day.
12 The accused in his defence has examined himself and three other witnesses. HC Narsi Lal who has been examined as DW1 has proved the DD no. 17 A dt. 27.05.05 as Ex.DW1/A regarding the complaint filed by father in law of the complainant. Md. Aqil who is father of accused has been examined as DW4 and has proved complaint Ex.DW4/A, 4/B and 4/C which are dt. 27.08.08. Even, if it is assumed that the complainant was quarrel some lady and her husband and her in laws were fed up with her, she could even implicate her father in law in the present matter. The motive behind false implication of her own husband and father of victim is not evident. She could easily implicate her father in law who from time to time was filing complaints against her. The complaint Ex.DW1/A relates to year 2005 whereas offence has been committed somewhere in August 2008. As per document Ex.DW1/B placed on record by accused himself, is the complaint dt. 27.08.08 by father in law of complainant against complainant. The inquiry report pursuant to said complaint clearly states that allegations of rape found baseless, however, case FIR no. 62/08 u/s 354 IPC has been registered on the complaint of Anjum. The said document Ex.DW1/B and Ex.DW1/A does not proves the defence of accused. Also , the reference by Ld. FIR no. 62/08 01.06.12 13/13 Defence counsel that there was some fight between the complainant and accused for a pepsi cola, dt. 27.05.05 does not repose confidence regarding ill motive for false implication as the offence complained of is in August 2008. It is not that the complainant waited for so many years of marriage to falsely implicate the accused and that too for such type of offence against their own daughter. DW2 is not eye witness of the present case and has merely deposed about the character of accused. The witnesses which have been examined by accused does not destroy the case of prosecution to lead to the inference that he has been falsely implicated by complainant who is his wife. Accused has failed to show the motive behind the false implication by complainant. The motive attributed by accused ie marital discord does not repose any confidence considering the nature of allegations and relationship between the victim, accused and complainant.
13 In light of the above discussion and absence of any material from which any inference may possibly be drawn that the accused has been falsely implicated in the present case, I am of the opinion that the fact that accused outraged the modesty of his own daughter by inserting his finger into her vagina has been duly proved from the testimony of PW1 and MLC Ex. PW9/A and also Ex.PW11/A. Hence, accused is hereby convicted for the offence u/s 354 IPC.
Announced in the open court (Kiran Gupta)
on 01.06.12. Metropolitan Magistrate, Delhi
FIR no. 62/08 01.06.12 14/13