IN THE COURT OF SH. [ENTITY] - II, ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA COURTS: DELHI. [CASE NUMBER] Sessions Case No. 75/2011 Assigned to Sessions. 15.11.2011 Arguments heard on 06.09.2012 Date of Judgment 13.09.2012 FIR No. 211/2011 State Vs [ENTITY] s/o Late Sahid, r/o H. No.A 10/711 A Block, S.R. Colony, Delhi 110094. Police Station Khajuri Khas Under Section [SECTION] [ACT] JUDGMENT
1. In the present case Station House Officer of Police Station Khajuri Khas had filed a challan vide FIR No.211/2011 dated 24.08.2011 u/s [SECTION] [ACT] for the prosecution of accused [ENTITY] in the court of ld. Metropolitan Magistrate and [SECTION] [ACT] had already been complied with by Ld. M.M. Since, this court is designated court for trial of the cases pertaining to child victims, hence this case was sent by Ld. District Judge/Incharge, North East District, Karkardooma Courts to this court for trial. Keeping in view of [SECTION] [ACT] and directions of Supreme court in "[PRECEDENT]" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being given in the judgment.
2. In nutshell, case of prosecution is that on 13.07.2011 a DD No.10A Ex.PW12/A was recorded at police station Khajuri Khas regarding rape upon a minor girl at House No.623, ABlock, Gali No.17, Sriram Colony, Khajuri, Delhi. Copy of DD No.10A was assigned to W/ASI [ENTITY]. On receipt of DD, W/ASI [ENTITY] along with W HC [ENTITY] reached at the spot where Smt. [ENTITY], mother of prosecutrix, [ENTITY], brother of victim and prosecutrix, aged about 11 years had met them. W ASI [ENTITY] had recorded statement of [ENTITY] Ex.PW2/A wherein she had stated that accused [ENTITY] had committed rape upon prosecutrix on 11.07.2011 at his House No.10/711, ABlock, Sri Ram Colony, Delhi. Thereafter, W/ASI [ENTITY] had made endorsement Ex.PW4/A upon the same for registration of FIR at PS. Accordingly, FIR No. 211/2011 u/[SECTION] [ACT] Ex.PW4/B was registered against accused [ENTITY]. During the course of investigation police had arrested accused [ENTITY].
CHARGE:
3. On the basis of material available on record this court vide order dated 30.11.2011 framed a charge against accused [ENTITY] for the offence punishable u/s [SECTION] [ACT] to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 14 witnesses namely PW1 Prosecutrix- victim, PW2 Smt. [ENTITY], mother of prosecutrix, PW3 [ENTITY], brother of prosecutrix, PW4 W/[ENTITY], PW5 [ENTITY], PW6 [ENTITY], PW7 Ct. [ENTITY], PW8 W/[ENTITY], PW9 [ENTITY], PW10 Sh. [ENTITY], PW11 Ms. [ENTITY], ld. MM, PW12 W/ASI [ENTITY], PW13 [ENTITY] and PW14 Dr. [ENTITY].
5. PW1 Prosecutrix is a material witness being victim/complainant. This witness has been examined by this court after ascertaining her knowledge and capacity of understanding by putting some questions and after getting reply on being satisfied that this child witness can understand questions and reply the same.
6. This witness has deposed that she has been residing along with her family at the second floor of House No.A564, Gali No.16, Sriram Colony, Khajuri, Delhi, since her childhood. Accused present in the court, is known to her as her neighbour and she used to call him 'Abba'.
7. This witness has further deposed that incident had taken place on 5th day of opening of her school when she was studying in 5th standard in the summer season. On the day of incident, she was wearing yellow colour Salwar and Kameez under her school uniform and at about 12:00 noon, when she was coming to her house from her school, accused [ENTITY] present in court met her standing near the gate of her school. This witness has further deposed that accused asked her that her mother was calling her and he took her in his room at the ground floor of his house in Gali, Delhi Hotelwali, Shriram Colony, Delhi and accused offered her Loaf (roti), Korma and Burfi and after taking meal accused had closed the door of his room from inside. This witness has further deposed that when she asked him why he had closed the door, he shouted to keep her quite.
8. This witness has further deposed that accused thereafter put off his and her clothes. Thereafter, he laid upon her and he lubricated her private part and he inserted his penis into her vagina and she felt pain and she cried on seeing the oozing out blood from her private part. This witness has further deposed that accused shut her mouth with his hands and thereafter, accused left her in the Gali, near her house at about 01:00pm and he had given her Rs.20/ saying that do not disclose anything to anyone about the incident. Thereafter, she reached her house.
9. This witness has further deposed that she could not disclose the fact due to the fear but on the next morning when her mother was preparing her for school, she saw blood on her salwar and she asked her, then she narrated her the entire facts of the incident. Thereafter, her mother took her to P.S. where police interrogated her and she narrated the facts of incident to police. Thereafter, police took her to hospital for her medical examination and on the statement of her mother present case was registered.
10.This witness has proved her statement u/[SECTION] [ACT] which bears her thumb impression at points A, B, C and D.
11.In her cross examination by ld. Amicus Curiae for accused, this witness denied that she had not disclosed the fact of incident to her mother as she was not aware who did wrong act with her. This witness voluntarily deposed that accused had committed wrong act with her. This witness denied that she was taken by one [ENTITY] from the gate of her school on the day of incident. This witness further denied that she had tutored by her mother or that she had deposed before the ld. MM, u/[SECTION] [ACT] at the instance of her parents. This witness admits that her father used to take liquor but it is wrong to suggest that there was a quarrel between her father and accused on the fact of liquor.
12.PW2 Smt. [ENTITY], mother of prosecutrix is a material witness being complainant. This witness has deposed that she has been residing at House No. A 564, Gali No.16, Sriram Colony, Khajuri, Delhi, for the last 10 years along with her family including victim( whose name mentioned in FIR) aged about 10 years.
13.This witness has further deposed that in the year 2011, victim was studying in 5th standard and she used to go to MCD Primary School, Shriram Colony, Rajeev Nagar, Khajoori, Delhi. This witness has further deposed that she is a thread cutter in a private factory at Gandhi Nagar, Delhi.
14.This witness has further deposed that on 11.7.2011 at about 7.30 a.m. she made prosecutrix ready for her school in a school uniform. Thereafter, she went to her job place. On next day it was Sunday. This witness has further deposed that when she returned from her work place, she found her sleeping in a room at her house at about 9.00 p.m. and she noticed blood stains on the wearing clothes of victim and she asked about the blood stains and victim told her that [ENTITY] present in the court correctly identified had taken victim from the school to his house and she also told her that accused had offered her sweets and food and thereafter accused after removing clothes of victim had committed rape upon her and she complained of pain. This witness has further deposed that victim had further disclosed that accused had left her in the gali near her house and accused had extended threat to kill her if she would disclose this fact to anyone.
15.This witness has further deposed that accused had accepted his guilt before her, her son and mohalla people and on 13.7.2011 her son [ENTITY] made call at 100 number and police officials came and they had handed over accused to police.
16.This witness has proved her statement Ex. PW2/A which bears her signature at point A. This witness has further deposed that victim was medically examined vide MLC mark 'X' which bears my thumb impression at point A.
17.This witness has further deposed that on next day she had accompanied her daughter/victim when her statement was got recorded by the police u/[SECTION] [ACT] at Karkardooma Courts.
18.This witness has correctly identified yellow suit and salwar alongwith light grey colour dupatta Ex.P1, suit and salwar are the same upon which she had noticed blood stains.
19.In her cross examination by ld. Amicus Curiae for accused, this witness has deposed that her victim daughter is over minded (mote Dimagwali ladki).
20.This witness admits that her daughter/victim used to remain alone at house in her absence and her elder daughter used to go with her at her job place. This witness has deposed that victim is semimentally retarded and she used to play along with other children in the gali as well as inside her house in her absence. This witness has deposed that they had informed to police on third day when she had noticed blood stains on the wearing clothes of victim, before that victim had not told anything to her. This witness denied that there was a quarrel between her and accused before the day of incident or that victim had sustained injury on her private part while playing with children in the gali or that accused had not committed any wrong act upon victim.
21.PW3 [ENTITY] is brother of victim is a hearsay witness. This witness has deposed on the same footings as deposed by PW2 [ENTITY], his mother. This witness had brought accused at his house and made call at 100 number and he had produced accused before police.
22.This witness has proved site plan Ex.PW3/A which was prepared at his instance by the I.O.
23.In his cross examination by ld. Amicus Curiae, this witness has deposed that there was no quarrel between him and accused. This witness has voluntarily deposed that once his mother had warned accused not call children inside his room when he was residing in their neighbourhood. This witness denied that there was a quarrel between him and accused before the day of incident. This witness further denied that victim had sustained injury on her private part while playing with children in the gali.
24.PW4 W/[ENTITY] is formal witness being Duty Officer. This witness has proved copy of FIR Ex.PWPW4/B and she deposed that copy of FIR was assigned to WASI [ENTITY] for investigation.
25.In her cross examination by ld. Amicus Curiae, this witness has deposed that Ct. [ENTITY] had typed FIR in 30 minutes and she took ten minutes in checking the FIR and she was not present in the room of computer operator when FIR was being typed. This witness denied that FIR is antedated and antetime.
26.PW5 [ENTITY]. This witness had taken [ENTITY] to police station and got registered FIR from the police station on the direction of WASI [ENTITY]. In his presence, statement of Smt. [ENTITY] Ex.PW2/A was recorded by WASI [ENTITY].
27.In his cross examination by ld. Amicus Curiae, this witness denied that he had not joined the investigation of the present case at any point of time, or that he had not received any information on his phone to reach at the spot, or that statement of complainant was not recorded in his presence, or that he had not taken [ENTITY] to P.S. for registration of FIR, or that he had not handed over [ENTITY] and copy of FIR to ASI [ENTITY].
28.PW6 [ENTITY]. This is the witness of arrest of accused [ENTITY]. This witness has proved arrest memo Ex.PW6/A and personal search memo Ex.PW6/B of accused [ENTITY]. In his presence, I.O. had recorded disclosure statement of accused [ENTITY] vide Ex.PW6/C, which bears his signature at point A. This witness had got medically examined accused from GTB Hospital vide MLC Mark 'Y' and after medical examination of accused he had received one sealed envelope along with sample seal from the doctor which were produced by him before the I.O. and I.O. had seized the same vide seizure memo Ex.PW6/D. In his presence, I.O. had also prepared site plan Ex.PW3/A on the pointing out of PW [ENTITY] which bears his signature at point A.
29.In his cross examination by ld. Amicus Curiae, this witness denied that he had not joined investigation of this case, or that accused was not arrested in his presence, or that accused had not made disclosure statement, or that statement of Smt. [ENTITY] was not recorded in his presence, or that [ENTITY] was not taken to P.S. by [ENTITY], or that site plan had not been prepared on the pointing out of PW [ENTITY] in his presence.
30.PW7 Ct. [ENTITY]. This witness on 09.08.2011 had taken three sealed parcels containing exhibits of this case along with forwarding letter and sample seal to FSL for analysis from the custody of MHC(M) on the request of I.O and he had deposited the aforesaid sealed parcels vide [CASE NUMBER] to the concerned clerk of the FSL. I returned to Police Station and handed over the receipt to MHC(M). So long as the sealed parcels remained in my custody no one tampered them.
31.In his cross examination by ld. Amicus Curiae for accused, this witness has deposed that he does not remember whether he had put his signature at register No.19 at the time of receiving the sealed parcels.
32.PW8 W/[ENTITY]. This witness had taken victim aged about 11 years to GTB Hospital for her medical examination on the request of Investigating Officer and got her medically examined vide MLC mark X and doctor had delivered two sealed parcels pertaining to examination of victim to her and same was seized by the I.O. vide seizure memo Ex.PW8/A which bears her signature at point A. This witness has deposed that so long as aforesaid sealed parcels and sample seal remained in her custody no one has tampered them.
33.In her cross examination by ld. Amicus Curiae for accused, this witness denied that she had not taken the victim to GTB Hospital or that she had not received the sealed parcels from the Hospital or that she had put her signatures on seizure memo Ex.PW8/A later on at Police Station as per choice of W/ASI [ENTITY].
34.PW9 [ENTITY] is the land lord of accused [ENTITY]. This witness has deposed that on 13.07.2011, accused [ENTITY] was residing alone as a tenant in one of his room @ Rs.1000/ per month and door of the tenanted room of accused opens towards Gali. This witness has further deposed that accused had joined tenancy about 10 days prior to 13.07.2011 and it had come into his notice on the day of arrest of accused that he had committed rape upon victim.
35.In his cross examination by ld. Amicus Curiae for accused, this witness has deposed that at about 02:00pm on 13.07.2011, he had received information about the arrest of accused.
36.PW10 Sh. [ENTITY], School Incharge, Nigam Girls School, Rajiv Nagar I, Shahdara (North), Delhi94. This witness had produced admission register pertaining to admission entry of prosecutrix, d/o Sh. [ENTITY] and as per school record date of birth of prosecutrix is 21.05.2000. This witness has deposed that Smt. [ENTITY] had moved affidavit at the time of admission in respect of age of student and copy of the same is Ex.PW10/A, which is attested by Sh. [ENTITY], their Principal, at point X. This witness has proved age certificate of prosecutrix issued by their school dated 15.09.2011, Ex.PW10/B which also bears signature of aforesaid principal at point X. This witness has also proved age certificate of prosecutrix issued by their school dated 16.07.2011, Ex.PW10/C which also bears signature of Sh. [ENTITY], Principal at point X. This witness had identified writing and signatures of aforesaid both principals in official capacity. This witness has also proved photocopy of admission register vide Ex.PW10/D.
37.In his cross examination by ld. amicus curiae for accused, this witness has deposed that he had not made entry in the school register pertaining to admission of prosecutrix and he has no personal knowledge about the age of prosecutrix.
38.PW11 Ms. [ENTITY], ld. MM. This witness has proved statement of prosecutrix u/[SECTION] [ACT] Vide Ex.PW1/A. This witness has also proved appened certificate regarding correctness of statement vide Ex.PW11/A.
39.PW12 W/ASI [ENTITY] is a material witness being I.O. This witness has deposed that on 13.07.2011, at about 09:50am, copy of DD No.10A, Ex.PW12/A was assigned to her which was in connection of rape upon a girl at H.No. 623, ABlock, Gali No.17, Sriram Colony, Khajuri, Delhi. She along with WHC [ENTITY] reached at the spot as mentioned in DD and beat [ENTITY] and HC [ENTITY] had met them at the spot. Smt. [ENTITY], mother of victim, [ENTITY], brother of victim and victim, aged about 11 years had met them and some public persons were also present at the spot. This witness had recorded statement of [ENTITY] Ex.PW2/A wherein she has stated that accused [ENTITY] had committed rape upon victim on 11.07.2011 at his house No.10/711, ABlock, Sri Ram Colony, Delhi. This witness had prepared [ENTITY] already Ex.PW4/A and send the same to Police Station through HC [ENTITY] for registration of FIR and victim was sent to GTB Hospital for medical examination in custody of Lady/HC [ENTITY] and complainant. This witness along with [ENTITY] at the instance of PW [ENTITY] made search of accused [ENTITY] and reached at his house No.10/711, A Block, Sri Ram Colony, Delhi and arrested him at about 2:15 p.m. vide arrest memo Ex.PW6/A and personal search memo Ex.PW6/B.
40.During the course of investigation, this witness had interrogated accused and he made disclosure statement Ex.PW6/C. This witness and [ENTITY] had taken accused to GTB Hospital for his medical examination where he was medically examined vide MLC mark 'Y". Doctor had handed over blood as sample of accused along with sample seal to [ENTITY] which were seized vide seizure memo Ex.PW6/D.
41.During the course of investigation, W/[ENTITY] and complainant had produced victim before her along with her MLC mark X and W/[ENTITY] had also produced sexual assault evidence collection kit and one sealed parcel containing outer clothes of victim along with sample seal which were seized by this witness vide seizure memo Ex.PW8/A. This witness has deposed that victim had identified accused [ENTITY] as rapist before her in the hospital.
42.During the course of investigation, complainant, PW [ENTITY] and victim had led them at the spot i.e. tenanted room of accused which was pointed out by the victim where accused had committed rape upon her. This witness had prepared site plan Ex.PW6/A.
43.This witness has deposed that on next day, she had produced accused before concerned court and he was sent to JC on the same day. This witness had also produced victim before Ld. MM to get recorded her statement u/[SECTION] [ACT] along with written request Ex.PW12/B which bears my signature at point X. Ms. [ENTITY], ld. MM, recorded statement of victim u/[SECTION] [ACT] Ex.PW1/A. This witness had also moved application to get copy of statement of victim Ex.PW12/C and same was allowed by the Ld. MM. This witness has deposed that victim was released in favour of her parents by the court.
44.During the course of investigation, on 16.07.2011, this witness had collected age proof of victim from her school vide Ex.PW10/C. Again, This witness had also collected age proof of victim from her school on 15.09.2011 vide Ex.PW10/B. This witness had also collected photocopy of affidavit Ex.PW10/A from the school record in connection of age of victim. This witness had moved application to school administration to collect age proof of victim from the school vide Ex.PW12/D.
45.During course of investigation, sealed parcels of this case along with sample seal were sent to FSL Rohini through Ct. [ENTITY] for analysis. This witness had recorded statements of aforesaid constable and MHC(M). This witness had also recorded statement of [ENTITY], house owner of accused. This witness completed investigation of this case and prepared chargesheet against accused [ENTITY] which was sent to court for trial.
46.During course of trial this witness had submitted FSL reports, dated 27.12.2011, Ex.PW12/E and Ex.PW12/F respectively along with forwarding letter, Ex.PW12/G through supplementary chargesheet before court.
47.In her cross examination by ld. amicus curiae for accused, this witness has deposed that she had received information about the incident through DD entry No.10A at about 09:55am and they had reached at the house of complainant at about 10:15am and approximately, 1015 public persons had met them in front of the house of complainant. This witness has further deposed that she had recorded statement of complainant after interrogation from her and victim there.
48.This witness admits that victim had told her in her statement that she had washed her clothes before her medical examination. This witness has deposed that accused was arrested from his tenanted room. This witness denied that she had not investigated this case fairly and properly. This witness further denied that during investigation, it had come into her notice that victim had sustained injury on her private part while playing on cycle in front of her school when she had purchased eatable i.e. Churan. This witness further denied that it had also come into her notice that there was dispute between the family of accused and complainant as many people used to visit tenanted room of accused and they disturbed the peace of locality.
49.PW13 Dr. [ENTITY], S.R., Obs. & Gynae, GTB Hospital, Delhi. This witness has proved MLC of prosecutrix vide Ex.PW13/A. This witness has deposed that on examination patient was conscious, alert and cooperative. General condition was fair. Afebrile, pulse 86, B.P. 110/70, per/abdomen : soft. On local examination : mild bleeding pervaginum +. No pubic hair, hymen ruptured.
50.PW14 Dr. [ENTITY], CMO, GTB Hospital, Delhi. This witness has proved MLC of patient [ENTITY] vide Ex.PW14/A on behalf of Dr. [ENTITY], the then J.R. GTB Hospital.
STATMENT OF ACCUSED U/[SECTION] [ACT]:
51.After prosecution evidence, statement of accused u/[SECTION] [ACT] was recorded where accused [ENTITY] denied all allegations, evidence and circumstances put to him. In statement u/[SECTION] [ACT] accused [ENTITY] deposed that he is innocent and falsely implicated in the present case by [ENTITY] and his mother Smt. [ENTITY] as they had inimical relations with him when he was residing in their neighbourhood earlier and a quarrel in those days had taken place between them on the issue of gathering of other mohalla people in front of his tenanted room as they used to meet for religious aspects. Accused has not preferred to lead any D.E.
52.Thereafter, case was fixed for final arguments.
ARGUMENTS
53.Ld. APP for State, Sh. [ENTITY] argued that there is charge against the accused [ENTITY] for offence u/s [SECTION] was framed on 30.11.2011.
54.Ld. APP for the State further argued that there are three material witnesses i.e. PWs prosecutrix, [ENTITY] and [ENTITY].
55.Ld. APP for the State further argued that age of prosecutrix about 11 years is not disputed.
56.Ld. APP for State submits that prosecutrix was taken by the accused [ENTITY] without the consent of the guardian of prosecutrix and according to medical report accused [ENTITY] had committed rape upon the prosecutrix hence, he has committed the offence punishable [SECTION]. [ACT]. Ld. APP for state relies upon the statement of prosecutrix wherein the prosecutrix has stated that accused had committed rape upon her and extend threat not to disclose the fact of this case otherwise he would kill her. Further, Ld. APP for the State rely his case on the statement of PW2 [ENTITY], mother of prosecutrix. Ld. APP for the State submits that since the statement of prosecutrix and statement of PW2 [ENTITY] support the case of prosecution, therefore, the present case is squarely covered under the ingredients of [SECTION] & [SECTION] [ACT] as the statement of prosecutrix before the court is sufficient to convict the accused for offence charged as prosecution has proved its case beyond reasonable doubt.
57.On the other hand ld. Amicus Curiae for accused argued that there is a false allegation of rape against accused [ENTITY] and accused has been falsely implicated in the present case due to previous enmity.
58.Ld. Amicus Curiae for accused further argued that whereas date of incident is 11.07.2011 and complaint has been made on 13.07.2011 which clearly shows 02 days delay, so there is longer delay in lodging the FIR. Delay in lodging FIR create doubt on the case of prosecution. On these grounds, ld. amicus curiae for accused has prayed for acquittal of accused from the charges.
PERUSAL OF RECORD:
59.Arguments heard. Record perused. On perusal of record it is revealed that on 13.07.2011 a DD No.10A Ex.PW12/A was recorded at police station Khajuri Khas regarding rape upon a minor girl at House No.623, ABlock, Gali No.17, Sriram Colony, Khajuri, Delhi. Copy of DD No.10A was assigned to W/ASI [ENTITY]. On receipt of DD, W/ASI [ENTITY] along with WHC [ENTITY] reached at the spot where Smt. [ENTITY], mother of prosecutrix, [ENTITY], brother of victim and prosecutrix, aged about 11 years had met them.
60.On perusal of record, it is further revealed that WASI [ENTITY] had recorded statement of [ENTITY] Ex.PW2/A wherein she had stated that accused [ENTITY] had committed rape upon prosecutrix on 11.07.2011 at his house No.10/711, ABlock, Sri Ram Colony, Delhi. Thereafter, W/ASI [ENTITY] had made endorsement Ex.PW4/A upon the same for registration of FIR at PS. Accordingly, FIR No. 211/2011 u/[SECTION] [ACT] Ex.PW4/B was registered against accused [ENTITY].
61.On perusal of record, it is further revealed that prosecutrix was medically examined through W/[ENTITY] from GTB Hospital vide mark 'X' and W/[ENTITY] had produced sexual assault evidence collection kit and one sealed parcel containing outer clothes of victim along with sample seal which were seized by I.O. vide seizure memo Ex.PW8/A.
62.On perusal of record it is further revealed that MLC Ex.PW13/A shows that mild bleeding pervaginum + and hymen ruptured.
63.On perusal of record, it is further revealed that in MLC alleged history was told to doctor by prosecutrix that she was sexually assaulted three days back by a person, namely, [ENTITY]. She had not attained menarche and complained of bleeding pervaginum since sexual assault. She had not taken bath but she changed clothes twice including undergarments after assault. She further states that she was lured by the man after school and that the person took her to secluded place after school where he forced himself upon her.
64.On perusal of record, it is further revealed that age of prosecutrix is below 16 years on the date of commission of offence which is proved by age certificate Ex.PW10/B and Ex.PW10/C issued by Principals of school.
65.On perusal of record, it is further revealed that accused [ENTITY] was arrested vide arrest memo Ex.PW6/A and his personal search was conducted vide personal search memo Ex.PW6/B and accused has made disclosure statement vide Ex.PW6/C.
66.On perusal of record, it is further revealed that accused was medically examined vide MLC mark 'Y' and doctor handed over blood as sample of accused along with sample seal to [ENTITY] which were seized vide seizure memo Ex.PW6/D.
67.On perusal of record it is revealed that FSL report Ex.PW12/E shows that on examination blood was detected on exhibits '1a', '1f(iii)', 'lg', 'lh', 'li', 'll(i), 'll(i)', 'll
(iii)', 'lm(i)', '2b', and '4'.
68.Before reaching at any conclusion let the relevant sections i.e. 363/366/354/[SECTION](2)
(f)/[SECTION] [ACT] be reproduced, which are as under : [SECTION] [ACT]: "Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
[SECTION] [ACT]:
"Kidnapping, abducting or inducing woman to compel her marriage, etc - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to find, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
[SECTION] [ACT] "Assault or criminal force to woman with intent to outrage her modesty Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both."
[SECTION] [ACT]:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,
(f) Commits rape on a woman when she is under twelve years of age; or shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
[SECTION] [ACT]:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
69.It is very important to look into the observations made in the judgment '[PRECEDENT]' wherein the following observation was made:
"17. Having gone through the records of this case and the law on the subject, I have no hesitation but to hold that in the present case the testimony of the prosecutrix alone was sufficient to bring home the guilt and to prove the charges of rape against the appellant.
18. As regards the submissions made by learned Amicus Curiae that being no injuries were found on her private parts, reference can be made to the judgment delivered in case of '[PRECEDENT]', where it has been held that merely because no injury was found on the private parts of the prosecutrix would not negate her testimony about the rape committed on her.
"18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."
70.In judgment titled as '[PRECEDENT], PUNJAB AND HARYANA HIGH COURT observed that:
"14 15 . After hearing the rival contentions of both sides and rescanning the entire evidence minutely, I am of the considered view that the prosecution has been able to bring home guilt to both the appellants to the hilt. My reasoning is set down as under : Much has been said on age of the prosecutrix by learned counsel for the appellants. No doubt, when the prosecutrix stepped into the witness box, she stated her date of birth as 11121980. The oral statement of the prosecutrix loses its effect in the light of the statement of Smt. [ENTITY], Head Teacheress, who has categorically deposed that the date of birth of the prosecutrix in the school record is 5.3.1981. Ex.PK is the certificate in this regard. No doubt, she has stated that she had brought the application which was made at the time of admission of the prosecutrix but that fact by itself would not make much difference. The certificate Ex.PK has been issued by a Government Official in the discharge of his official duty and there is no reason to disbelieve the same on account of presumption attached to it under [SECTION] read with [SECTION] of the [ACT]. [ENTITY], Statistical Assistant, General Hospital, Adampur (PW10) has deposed that the birth register of police station City Hansi for the year 1980 81 was not available in the record of Chief Medical Officer, [ENTITY]. Although no entry regarding date of birth of the prosecutrix from the office of Registrar Births and Deaths has been produced in this case yet the school record produced in this case clearly indicates that her age was less than 16 years on the date of occurrence. In [PRECEDENT], their Lordships of the Hon'ble Apex Court have held that the entries in the school register and admission forms regarding the date of birth constitute good proof of age and where these entries are antelitem mortem, there was no reason to disbelieve them. In the instant case, it is not disputed that the certificate Ex.PK relates to the prosecutrix. There is no suggestion from the side of the appellants to the contrary. The fact remains that the prosecutrix was got admitted in the school on 2.4.1987 when her date of birth was recorded as 5.3.1981 as is evident from the statement of Smt. [ENTITY], Head Teacheress (PW8). A stray statement given by the prosecutrix, who was hardly of the age of 14 years, takes us no where. Even otherwise, she states that she was born in 1980. The occurrence is of May, 1994. In that eventuality also, she can be considered to be less than 16 years of age at the time of occurrence. No doubt, as per ossification test, her age was between 15 to 161/2 years, but in my considered view, there is no reason to disbelieve the school certificate Ex.PK. In [PRECEDENT], the Hon'ble Apex Court has reiterated that the entries in the school certificate cannot be rejected on the basis of surmises that usually parents understate the age of their children at the time of admission to school. In other authoritative judgments, the Hon'ble Apex Court has also held that the evidence of the doctor regarding age as occurs in the ossification test can be said to be an opinion based on estimate and there can be every possibility of error creeping into the said opinion."
18. She has also stated in her statement Ex.PM that blood started oozing out and her clothes got smeared with blood but the appellants had got her clothes washed. The learned counsel for the appellants has also made an attempt to demolish the case of the prosecutrix in the light of the medical evidence where no bleeding per vagina was noticed by the lady Dr. [ENTITY]. However, the medical evidence and the report of the Forensic Science Laboratory establish that the rape has been committed upon her. On the basis of condition of hymen, Dr. [ENTITY] (PW1) had initially stated that the possibility of the intercourse could not be ruled out, but at the same time it has come in her evidence that confirmatory report would be given after perusing the Chemical Examiner's report of posterior vaginal swab. After perusing the said report, she found that human semen on salwar and posterior vaginal swab showed that intercourse had taken place. Nondetection of blood on the clothes would be of no consequence as for constituting the offence of rape as only penetration is sufficient. No doubt, there is no injury noted by the doctor on the person of the prosecutrix, yet this fact again would not demolish the statement of the prosecutrix. Absence of injury on the person of prosecutrix is not necessarily an evidence of falsity of allegation as held in [PRECEDENT]. In the light of the evidence discussed above, there is nothing to disbelieve the statement of the prosecutrix made before the Sub Divisional Judicial Magistrate on 27.5.1994.
Again the observation made in [PRECEDENT] that:
" It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex of crimes. We must remembers that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a 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 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 in nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecution inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration, required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
71.Since the present was registered on the statement of mother of prosecutrix and in her examination before the court prosecutrix had stated herself to be of 11 years old and admission register also shows her age below 16 years and she had further deposed that accused had committed rape upon her. Even medical reports shows that accused had committed intercourse with prosecutrix and hymen of prosecutrix was found reputured. Since, the date of birth of prosecutrix as per Ex.PW10/B and Ex.PW10/C is 21.05.2000 which shows that prosecutrix was below 16 years and statement of prosecutrix is corroborated with medical evidence and evidences of other witnesses. Hence, this court does not find any ground to discard their testimonies.
72.Since into the fact of present case, fact of medical evidence are consistent with evidence of prosecutrix and other witnesses. As prosecutrix has stated in her examination that accused had taken her from her school and committed rape upon her. Since fact of taking out the prosecutrix without the consent of her parents has been proved. In any case it may presumed that prosecutrix being the minor and belongs to a poor family due to fear might not have told this fact to her parents and when this fact disclosed matter was reported to police.
73.Further, it has also come on record that victim was taken by accused at his tenant house where he had committed rape upon the victim. In the present case, age of accused is about 65 years and victim was below 16 years. Non detection of blood on the clothes of accused be of no consequences as for constituting the offence of rape only penetration is sufficient. No doubt there is no injury noted by doctor on the person of prosecutrix yet this fact again would not demolish the statement of prosecutrix. Act of rape has also been proved from the statement of victim. Statement of prosecutrix who was 11 years of age has identified the accused before this court who had kidnapped and committed rape upon her. Even otherwise she states that she was of 11 years on the day of incident and had been studying in 5th standard. PW10 [ENTITY] who has proved date of birth of prosecutrix as 21.05.2000 and incident had taken place on 11.07.2011. In that eventuality, she can also be considered to be less than 16 years at the time of occurrence. Hence, there is no reason to disbelieve her testimony.
74.A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The [ACT] (In short "the [ACT]") nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under [SECTION] and her evidence must receive the same weight as is attached to an injured in cases of physical violence.
75.Since accused has taken victim against her wish and without the consent of her parents and had kidnapped a victim with intention that victim may be seduced to illicit intercourse and committed rape and outrage modesty of the victim following threat.
76.From the testimony of victim it had also come on record that accused had threatened her not to disclose the fact of incident to anyone otherwise he would have killed her. Testimony of prosecturix had been made voluntarily. Hence, her testimony inspired the confidence of this court.
77.It is equally settled that if testimony of child witness is a voluntarily expression and is an accurate impression of the same, no corroboration of testimony is required. Hon'ble Apex Court in judgment [PRECEDENT]' where it has held that :
"There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate her veracity. In the present case the evidence of the prosecutrix is found to be reliable and trustworthy. No corroboration was required to be looked for, though enough was available on the record "
78.After considering the fact and circumstances of the case and relying on the testimony of prosecutrix, this court comes to the conclusion that prosecution has proved its case against accused [ENTITY] beyond reasonable doubt for the offences u/s [SECTION] [ACT]. Accordingly, this court held guilty accused [ENTITY] for the offences u/s [SECTION] [ACT].
PRONOUNCED IN THE OPEN COURT ON THIS 13.09.2012 ([ENTITY]) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI IN THE COURT OF SH. [ENTITY] - II, ADDITIONAL SESSIONS JUDGE - 0I : NORTH EAST / KARKARDOOMA COURTS: DELHI.
State Vs [ENTITY] s/o Late Sahid, r/o H. No.A 10/711 A Block, S.R. Colony, Delhi 110094. Police Station Khajuri Khas Convicted under Section [SECTION] [ACT] ORDER ON SENTENCE: 19.09.2012 Pre: Ld. APP for the State. Convict [ENTITY] produced from JC. Sh. [ENTITY], ld. Amicus Curiae for convict.
Arguments heard on point of sentence. Ld. APP for the State submits that since prosecution has proved its case against convict 363/366/354/[SECTION] (2)(f)/[SECTION] [ACT]. He further submits that convict be awarded severe punishment as he had committed a heinous crime against a minor child. Hence, he has prayed for maximum sentence to the convict.
On the other hand ld. Amicus Curiae for convict prayed that convict is a senior citizen and he is 65 years old and is facing trial regularly. Ld. Amicus Curiae for convict further submits that convict [ENTITY] is in JC since inception of the case and stated that convict belongs to a poor family and he is having responsibility of his family. Ld. Amicus Curiae for convict has requested for lenient view and requested to release the convict for a period already undergone.
Arguments heard. Record perused. From perusal of record, it is revealed that convict was 65 years of age at the time of incident and it has been proved that he had committed rape upon a minor girl after kidnapping her and it has also been proved that convict had put the victim under threat to kill if she had disclosed the fact. It has also not disputed that accused had also been held guilty u/[SECTION] [ACT] along with sections [SECTION] [ACT].
Since convict is 65 years old and victim used to call him 'Abba' meaning thereby victim was under the faith that convict would treat her like a father but from the act of convict it appears that he had committed rape not only the victim but also the faith of humanity by doing such immoral act. Convict has caused public and social disorder among the public, and the society expect from such person like the age of convict that they would take care of such minor children but convict had been failed in doing so.
After considering the fact and circumstances of the present case, perusal of case and considering the age of convict and responsibility of his family, this court comes to the conclusion that ends of justice will be met if the convict [ENTITY] is sentenced for 10 years R.I. for the offence u/[SECTION] [ACT] and fine of Rs.5,000/ in default R.I. for two months, and is sentenced for 07 years R.I. for the offence u/[SECTION] [ACT] and fine of Rs.2,000/ in default R.I. for one month, and is sentenced for 07 years R.I. for the offence u/[SECTION] [ACT] and fine of Rs.2,000/ in default R.I. for one month, and is sentenced for 02 years R.I. for the offence u/[SECTION] [ACT] and fine of Rs.1,000/ in default R.I. for one month, and is sentenced for 03 years R.I. for the offence u/[SECTION] [ACT].
All the sentences shall run concurrently against convict qua offences against for which he has been convicted. Benefit of [SECTION] [ACT] be also given to the convicts. Accordingly, sentence is awarded. Fine not paid.
Copies of the judgment along with sentence order be given to the convict forthwith free of cost.
PRONOUNCED IN THE OPEN COURT ON THIS 19.09.2012 ([ENTITY]) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI