IN THE COURT OF SH. [ENTITY] - II, ADDITIONAL SESSIONS JUDGE - 0I : NORTH EAST / KARKARDOOMA COURTS: DELHI. FIR No. 185/2010 State Vs [ENTITY], S/o [ENTITY], R/o C2/18, Nand Nagri, Delhi 110093. Police Station Nand Nagri Convicted under section [SECTION] [ACT] ORDER ON SENTENCE: 12.03.2013 Pre: Ld. APP for the state. Convict [ENTITY] produced from [ENTITY]. Ms. [ENTITY], ld. Amicus Curiae for convict. Arguments heard. During the course of arguments, ld. APP for the State submits that prosecution has proved its case against accused [ENTITY] under section [SECTION] [ACT]. Hence, accused [ENTITY] be awarded severe punishment to teach lesson and to put barrier on crime against innocent children in the society. On the other hand ld. Amicus Curiae for convict prayed that convict [ENTITY] is in [ENTITY] since inception of this case and facing trial. Ld. Amicus Curiae further stated that convict belongs to a poor family and having responsibility of his old aged mother who needs the support of convict. Ld. Amicus Curiae has requested for lenient view against convict. State Vs. [ENTITY] SC No.02/2011 1/3 Since prosecution has proved the case against convict for the offence u/s [SECTION] [ACT] beyond reasonable doubt and from the conduct of convict it appears that he has no respect for children in the society whereas person of neighbourhood are expected to take care off of children. In the present case, convict has not did his moral duty rather committed offence upon a minor girl child which is a very heinous in the opinion of this court. The manner in which accused had taken away victim and given teeth bite on her cheek and committed rape shows his malafide intention and create insecurity in the minds of children as well as to the society which is not permissible for any person at any cost. Such activities must be stopped against minor child as children are future of the country and they must be respected and secured at any cost. Hence, convict is not entitled for any lenient view. Accordingly, this court comes to the conclusion that ends of justice will be met if the convict [ENTITY] is sentenced for 07 years rigorous imprisonment for offence u/[SECTION] [ACT] and fine of Rs.2,000/ in default of fine he shall further undergo S.I. for three months, 07 years R.I. for offence u/[SECTION] [ACT] and fine of Rs.2,000/ in default of fine he shall further undergo S.I. for three months, 03 years R.I. for offence u/[SECTION] [ACT] and 10 years R.I. for offence u/[SECTION] [ACT] and fine of Rs.2,000/ in default of fine he shall further undergo S.I. for three months. All above mentioned sentences awarded under section [SECTION] [ACT] shall run concurrently. State Vs. [ENTITY] SC No.02/2011 2/3 Benefit of [SECTION] [ACT] be given to the convict. Accordingly, sentence is awarded. Fine not paid. Copies of the judgment along with sentence order be given to the convict forthwith free of cost. File be consigned to record room. PRONOUNCED IN THE OPEN COURT ON THIS 12.03.2013 ([ENTITY]) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI State Vs. [ENTITY] SC No.02/2011 3/3 IN THE COURT OF SH. [ENTITY] - II, ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA COURTS: DELHI. [CASE NUMBER] Sessions Case No. 02/2011 Assigned to Sessions. 14.01.2011 Arguments heard on 05.03.2013 Date of Judgment 07.03.2013 FIR No. 185/2010 State Vs [ENTITY], S/o [ENTITY], R/o C2/18, Nand Nagri, Delhi 110093. Police Station Nand Nagri Under Section [SECTION] [ACT] JUDGMENT
1. Vide this judgment I shall dispose of this case in which Station House Officer of Police Station Nand Nagri had filed a challan vide FIR No.185/2010 dated 05.09.2010 u/[SECTION] [ACT] for the prosecution of accused [ENTITY] in the court of Ld. Metropolitan Magistrate and Ld. MM after compliance of [SECTION] [ACT] committed this case for trial before this court. Keeping in view of [SECTION] [ACT] and directions of Supreme court in "[PRECEDENT]" and "[PRECEDENT]", the name of prosecutrix is not being given in the judgment.
2. In brief, facts of the case are that on 04.09.2010 a DD No.29A Ex.PW9/A was State Vs. [ENTITY] recorded at police station Nand Nagri regarding commission of wrong act upon a minor girl and thereupon ASI [ENTITY] along with [ENTITY] had reached at the spot where they came to know that victim had already been shifted to GTB Hospital and public persons/mohalla people had produced accused before them and accused was apprehended by ASI [ENTITY] and they had taken accused to GTB Hospital. [ENTITY] also received information through telephone from police station regarding rape with a child at House No. C2/16, Nand Nagri, Delhi and he had reached there and came into his notice that victim had already been taken by PCR officials to GTB Hospital. Thereafter, [ENTITY] gone to GTB Hospital in Gynae Department where victim and her mother were present and [ENTITY] forwarded a request for medical examination of victim to doctor upon which she was medically examined vide MLC Ex. PW14/A. Thereafter, [ENTITY] recorded statement of mother of victim vide Ex.PW4/A and made endorsement upon the same vide Ex.PW2/A and gave it to [ENTITY] for registration of case. Accordingly, FIR No. 185/2010 dated 05.09.2010 u/[SECTION] [ACT] Ex.PW2/DX 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 framed a charges vide order dated 01.02.2011 against accused [ENTITY] for the offences punishable u/s [SECTION] which accused did not plead guilty and claimed trial. On 13.07.2012, an amended charge for offence u/[SECTION] State Vs. [ENTITY] (2) (f) [ACT] was also framed against accused [ENTITY] to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 16 witnesses namely PW1 L/Ct. [ENTITY], PW2 [ENTITY], PW3 [ENTITY], PW4 Smt. [ENTITY], PW5 [ENTITY], PW6 Sh. [ENTITY], PW7 Smt. [ENTITY], PW8 [ENTITY], PW9 ASI [ENTITY], PW10 Sh. [ENTITY], ld. MM, PW11 Ct.
[ENTITY], PW12 Smt. [ENTITY], PW13 [ENTITY], PW14 Dr. [ENTITY], PW15 Dr. [ENTITY] and PW16 [ENTITY].
5. PW1 L/Ct. [ENTITY]. This witness along with SHO/Inspector [ENTITY] reached at GTB Hospital on 04.09.2010 and she had got medically examined the victim from the hospital and after medical examination of victim, one kit containing evidence of sexual assault was handed over to her by the GTB Hospital Staff along with sample seal. This witness had delivered the same to S.I. [ENTITY] in GTB Hospital who had seized the same vide seizure memo Ex.PW1/A.
6. In her cross examination by ld. defence counsel, this witness denied to the suggestion that he had not joined the investigation of this case or that he had not put her signature on the seizure memo later on at police station. State Vs. [ENTITY]
7. PW2 [ENTITY] is a formal witness being duty officer. This witness has proved the copy of FIR vide Ex.PW2/B which was recorded by him through computer operator on the basis of rukka Ex.PW2/A presented by [ENTITY].
8. In his cross examination by ld. defence counsel, this witness has deposed that he cannot tell that how many FIR were recorded by him during his duty without going through the record.
9. PW3 [ENTITY]. This witness has deposed that on 30.11.2010, further investigation of this case was assigned to him as previous investigating officer of this case was on leave and he had collected the present file from MHC(R). This witness had taken some formal steps during the course of interrogation of accused and completed challan.
10.In his cross examination by ld. defence counsel, this witness admits that he had not visited the spot of present case and that he had not recorded statement of any witness of this case and that he had not sent the exhibits of this case to FSL.
11.PW4 Smt. [ENTITY], mother of victim is a material witness being complainant. This witness has deposed that she is house wife and her husband is driver by profession and she have four daughters.
12.This witness has further deposed that on 04.09.2010, at about 5:00 p.m. her daughter - victim, aged about 7 years had gone from her house to a park, near State Vs. [ENTITY] temple, for playing and when she did not return to her house till late evening then she and her sisterinlaw, Smt. [ENTITY] went to the park in search of her daughter. This witness has further deposed that during search, they found that victim was weeping in gali, near the House No. C2/18, Nand Nagri and noticed white mark on cheek of her daughter and on asking from her, victim replied that one uncle had taken her inside his house and caused teeth bite on her cheek.
13.This witness has further deposed that victim had taken them inside the house No. C2/18 and when they were taking entry inside the aforesaid room then accused present in court came out from his house and run away and her daughter pointed out towards accused saying that he is the same uncle who had caused tooth bite to her. This witness has further deposed that accused present in court (correctly identified) was caught hold by her brotherinlaw (devar) [ENTITY] while running and several mohalla people gathered in front of house of accused and some persons had given beatings to the accused. Name of accused [ENTITY] came into her notice when he was being given beatings. This witness has further deposed that victim had told her that accused had put off her clothes inside his house and had done wrong acts upon her. This witness had also noticed teeth bite marks on the private part ( pesab karne wali jagah) of victim.
14.This witness has proved her statement vide Ex.PW4/A. This witness has also proved arrest memo Ex.PW4/B and personal search memo Ex.PW4/C of accused. This witness has proved photocopy of birth certificate of victim mark vide X, photocopy of school progress report vide mark Y, photographs of victim vide State Vs. [ENTITY] mark Z1 to Z3.
15.This witness has correctly identified clothes of victim. This witness has identified frock of victim vide Ex.P1, panty of victim vide Ex.P2 and one maroon small ladies purse having two pencils, one plastic piece in the shape of heart of victim vide Ex.P3 collectively.
16.In her cross examination by ld. defence counsel, this witness has deposed that victim had left her house at about 5:00 p.m. on the day of incident to go to park and at that time, victim was playing in the park with some other minor children and when victim did not return, they made her search for about 30 or 45 minutes. This witness has deposed that victim had met them at about 6:30 p.m. or 6:45 p.m. near the house of accused. This witness has further deposed that she and her sisterinlaw ([ENTITY]) had seen victim coming near the house of accused in Gali No.C2, Nand Nagri, Delhi during search and there was walking distance of two minutes between her house and house of accused.
17.This witness has deposed that victim was not in a condition to say any word at that time and she had noticed tooth bite mark on left cheek of victim. This witness has further deposed that victim was medically examined in her presence by the doctor there and victim was wearing same clothes at the time of her medical examination. Police had recorded her statement as well as of victim at police station on the same day. This witness has further deposed that she had handed over the birth certificate of victim to police during her interrogation and State Vs. [ENTITY] she had not delivered any photograph of victim to police at any point of time.
18.This witness had denied to the suggestion that she had not seen accused while running from his house at about 7:30 p.m. This witness had further denied to the suggestion that accused did not commit any wrong act upon the person of victim or that police did not come at her house for investigation or that accused was not arrested in her presence.
19.PW5 [ENTITY] is a material witness being victim. 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, this witness was examined.
20.This witness has deposed that on the day of incident she was in 3rd standard, in the afternoon she was playing outside her house with her friends. This witness has deposed that when she was playing, accused present in court (correctly identified) came there and picked her purse, chocolate coloured having four clips, accused had taken her in a house at some distance from park and accused had given his teeth bite on her private part and on her cheeks.
21.This witness has further deposed that firstly, accused had opened her hair and removed her clothes and he had also removed his clothes and then he had given teeth bites on her cheeks and oiled her private part and spread powder two times and slapped her and then he put his private part into her private part. Thereafter, State Vs. [ENTITY] she cried, then two four uncles and one aunty came there and her mother and aunty also came there and they dressed her up.
22.This witness has further deposed that one person out of aforesaid 2 - 4 uncles had caught hold the accused [ENTITY] and police had reached there on cry of her mother and then accused was handed over to police. Thereafter, she was taken to GTB Hospital for her medical examination by police accompanied by her aunties.
23.This witness has proved her statement u/[SECTION] [ACT] vide Ex.PW5/A. This witness has correctly identified one chocolate colour purse having four hair clips belong to her, two pencils, one bindi strip and one plastic item which belong to her sister vide Ex. P3 collectively.
24.In her cross examination by ld. defence counsel, this witness has deposed that she has not been tutored by her parents regarding the facts of this case and she had not deposed her statement before the court of Ld. MM at the instance of her parents.
25.This witness had denied to the suggestion that aunty in the house where incident had taken place had gone to leave her at her house. This witness had stated that [ENTITY] and [ENTITY] are her buas (paternal aunties) and she has three uncles namely [ENTITY], [ENTITY] and [ENTITY]. This witness denied to the suggestion that her father or any of uncle had given beatings to accused on the day of incident. This witness State Vs. [ENTITY] has deposed that accused was beaten by her uncle [ENTITY] and then by police. This witness has further deposed that accused had not given her teeth bites on her cheeks prior to the incident. This witness had denied to the suggestion that accused had not removed her clothes or that accused had not removed his own clothes. This witness had denied to the suggestion that accused had not committed any wrong act with her and that accused has been implicated in this case due to enmity with her family.
26.PW6 Sh. [ENTITY] is uncle of victim. This witness has deposed that on 04.09.2010 at about 7:00 p.m. he was going to park from his house and when he had reached at park known as C1 park, he saw victim, aged about 6 years, coming from the park weepingly and at that time, his two sisterinlaws (bhabhis) Smt. [ENTITY] and Smt. [ENTITY] had noticed teeth bite marks on the cheek of victim and victim told that one uncle had taken her at his house where he had outraged her modesty by putting off her clothes and accused had caused teeth bite marks. In his presence, victim had identified accused [ENTITY] and said that he had committed crime with her.
27.This witness has further deposed that they had bolted the door of house of accused from outside as public persons gathered at his house and they were aggressive to beat him and someone called police at 100 number. This witness had produced accused before the police in the presence of victim.
28.PW7 Smt. [ENTITY]. This witness has deposed on the same footing as deposed by State Vs. [ENTITY] PW4 Smt. [ENTITY], mother of victim.
29.PW8 [ENTITY]. This witness on 27.10.2010 had taken three sealed parcels, forwarding letter etc. to FSL for analysis from the custody of MHC(M) on the direction of I.O. vide [CASE NUMBER].
30.In his cross examination by ld. defence counsel, his statement Ex.PW8/DA was confronted.
31.PW9 ASI [ENTITY]. This witness has deposed that on 04.09.2010, he was on day emergency duty from 08:00am to 08:00pm and during his duty at about 07:40pm, copy of DD no.29A, Ex.PW9/A was assigned to him to take action into the matter, which was in connection that one boy had committed wrong act upon a minor girl at C2/16, Nand Nagari, Delhi. This witness along with [ENTITY] reached at aforesaid address and there it came into their notice from the public that victim had already been removed to GTB Hospital by PCR officials and accused [ENTITY], present in court (correctly identified), was produced before them by the public. It had come into his notice that he had been beaten by public. This witness had taken accused to GTB Hospital for his medical examination and informed to SHO.
32.This witness has further deposed that in GTB Hospital [ENTITY] along with lady Ct. [ENTITY] had met them there and SHO also reached there. This witness has further deposed that accused [ENTITY] was medically examined vide State Vs. [ENTITY] MLC Mark X and one small size ladies purse had been recovered from the dub of wearing pant of accused by doctor and same was delivered to him and he had checked the same and found some hair clip and Bindi and some other small articles in aforesaid purse. I had produced the same before [ENTITY] and he had seized the same vide seizure memo Ex.PW4/E.
33.This witness had produced accused before [ENTITY] as SHO had assigned the investigation of this case to him. I had also handed over the DD no.29A.
34.This witness has correctly identified one small ladies purse containing two pencils, two hair clips and one small sheet of bindi and one plastic item in heart shape which was found in the possession of accused vide Ex.P3 collectively.
35.In his cross examination by ld. defence counsel, this witness has deposed that he does not remember the name of the informant in respect of DD No.29A and he had received the information through telephone. This witness has deposed that when he had reached there he had noticed that public persons were gathered there and some of them were beating to accused and he had taken the accused to GTB Hospital on his private motorcycle for his medical examination. This witness has further deposed that he had not recorded statement of any public person at the spot as he had saved the accused from aggressive public persons and he had informed to SHO at some distance after leaving the spot. This witness has further deposed that accused was not examined in his presence as he was behind State Vs. [ENTITY] the curtain. This witness has further deposed that [ENTITY] had prepared site plan in his presence and seizure memo of purse was prepared in his presence by [ENTITY].
36.This witness denied to the suggestion that he had not participated in the investigation of this case, or that he had not received information in respect of DD No.29A, or that he had not reached at the spot. This witness further denied to the suggestion that he had not taken the accused in GTB Hospital for his medical examination, or that he had not informed to SHO, or that he had not come in GTB Hospital, or that [ENTITY] had not prepared site plan in his presence, or that aunty of victim was not present at that time.
37.PW10 Sh. [ENTITY], ld. MM. This witness had recorded statement of prosecutrix u/[SECTION] [ACT] This witness has proved statement of prosecutrix u/[SECTION] [ACT] vide Ex.PW5/A. This witness has also proved the certificate Ex.PW10/A regarding correctness of statement of prosecutrix.
38.PW11 Ct. [ENTITY]. This witness on 04.09.2010, along with ASI [ENTITY] had reached at C2/18 Block, Nand Nagari, Delhi and on reaching there, they saw that one boy was being beaten by gathering. This witness along with ASI [ENTITY] rescued that boy who is accused [ENTITY] present today in the court. (Witness has correctly identified the accused). This witness has further deposed that accused was medically examined vide MLC mark X. This witness has proved seizure memo vide Ex.PW11/A. State Vs. [ENTITY]
39.This witness had taken the rukka to get the FIR registered at P.S. In his presence, accused was arrested and his personal search was conducted and I.O. had prepared site plan at the instance of PW Smt. [ENTITY].
40.Ld. substitute Addl. PP, requests to put a leading question to this witness on the fact of place where accused had been found being beaten by public. Heard. Allowed.
41.In his cross examination by Ld. APP for the State, this witness has deposed that he along with I.O. had reached near C2/16, where, he had seen accused being beaten by public. This witness admits that earlier he had stated C2/18 instead of C2/16 due to confusion.
42.In his cross examination by ld. defence counsel, this witness has deposed that he had received information over telephone at about 07:32pm outside the P.S. and they had left police station on private motorcycle of I.O./ASI [ENTITY] at about 07:40pm and they had reached at the the spot withing 7/8 minutes. This witness has further deposed that many public persons had gathered over there and he does not know any person personally who had beaten accused. This witness has further deposed that he does not remember today the dress worn by the victim in the hospital. This witness has further deposed that SHO was already aware with the facts of incident and he had reached in GTB Hospital and he stayed there four about hour and he had conversed with [ENTITY]. This witness has further State Vs. [ENTITY] deposed that he had returned at GTB Hospital after registration of FIR at about 12:35 a.m. and he had seen [ENTITY] in the GTB Hospital when he had gone there. This witness has further deposed that so far as he remember, doctor had handed over him three sealed parcels after medical examination of accused and doctor had sealed the parcels in his presence.
43.PW12 Smt. [ENTITY], Principal, MC Primary School, Nand Nagri, Delhi. This witness has brought admission register pertaining to admission entry of prosecutrix and admission form along with affidavit of prosecutrix. This witness has deposed that as per school record, [ENTITY], father of prosecutrix, had come in their school at the time of her admission and admission form and affidavit were filled up as per the direction of [ENTITY] and date of birth was mentioned in the admission form and admission register as 07.05.2003. This witness has proved photocopy of admission register having entries of aforesaid student at serial No. 4714 vide Ex.PW12/A. This witness has also proved admission form vide Ex.PW12/B, affidavit vide Ex.PW12/C and photocopy of progress of the year 20092010 of prosecutrix vide mark 'Y'.
44.PW13 [ENTITY] is MHC(M). This witness has brought register No.19 and RC book pertaining to entries of present case. This witness has proved the entries on behalf of [ENTITY] then MHC(M). This witness has deposed that as per record, on 05.09.2010, [ENTITY] had deposited three sealed parcels containing exhibits of this case along with sample seal in the malkhana and [ENTITY] had taken the custody of same and made entry at serial No.5053 in register State Vs. [ENTITY] No.19. This witness has proved same vide Ex.PW13/A.
45.This witness has further deposed that on 27.09.2010 aforesaid parcels and sample seal had been sent to FSL along with forwarding letter and road certificate No.108/21 through Ct. [ENTITY]. This witness has proved the entries of the same vide Ex.PW13/B and copy of RC vide Ex.PW13/C.
46.This witness has further deposed that on 31.01.2011 expert opinion in sealed envelope was received along with sealed parcel and endorsement to this effect was also made by [ENTITY] vide Ex.PW13/D.
47.PW14 Dr. [ENTITY], S.R. GTB Hospital, Delhi. This witness has proved MLC of prosecutrix vide Ex.PW14/A on behalf of Dr. [ENTITY].
48.PW15 Dr. [ENTITY], CMO, GTB Hospital. This witness has proved MLC Ex.PW15/A of accused [ENTITY] on behalf of Dr. [ENTITY].
49.In his cross examination by ld. defence counsel, this witness has deposed that Dr. [ENTITY] had worked under his supervision in GTB Hospital and aforesaid MLC was prepared by him when he was on duty as CMO.
50.PW16 [ENTITY] is a material witness being I.O. This witness has deposed that on 04.09.2010 at about 07:45 p.m. he had received information through telephone from police station regarding rape with a child at House No. C2/16, State Vs. [ENTITY] Nand Nagri, Delhi and he reached there and came to know that victim had already been taken by PCR officials to GTB Hospital and accused was apprehended by ASI [ENTITY] who had reached before him there and he had taken accused to GTB Hospital. Thereafter, this witness had gone to GTB Hospital in Gynae Department where victim and her mother were present. This witness had forwarded a request for medical examination of victim to doctor upon which she was medically examined vide [CASE NUMBER][CASE NUMBER] vide Ex.PW14/A.
51.Thereafter, this witness had recorded statement of mother of the victim namely [ENTITY] vide Ex.PW4/A and put his endorsement Ex.PW2/A on the statement and gave it to [ENTITY] for registration of case. This witness has further deposed that the call was vide DD No.29A Ex.PW9/A was regarding House No. C2/16 but after recording the statement of PW [ENTITY] she had disclosed the spot as C 2/18.
52.This witness has further deposed that lady Ct. [ENTITY] had given sexual assault evidence collection kit regarding victim and sample sealed which he had seized the same vide seizure memo Ex.PW1/A.
53.During the course of investigation, this witness had enquired from the victim about the incident and recorded her statement u/[SECTION] [ACT] ASI [ENTITY] had handed over him one pink hand pursue saying that same was recovered from the possession of accused and on checking the same he had noticed it was containing one pencil, small hair clip etc. This witness had converted the same into a cloth State Vs. [ENTITY] parcel and sealed the same with the seal of MM and seized the same vide seizure memo Ex.PW4/E.
54.This witness has proved arrest memo Ex.PW4/B, personal search memo Ex.PW4/C and disclosure statement Ex.PW4/D of accused [ENTITY]. This witness has also proved seizure memo Ex.PW11/A.
55.During the course of investigation, this witness had prepared site plan, Ex.PW16/A at the instance of PW [ENTITY]. This witness had recorded supplementary statement of PW [ENTITY] and this witness had also recorded statement of PW [ENTITY] ([ENTITY] of PW [ENTITY]) and of [ENTITY].
56.During the course of investigation, this witness had produced the victim and accused before duty MM in Karkardooma Courts, where, he had moved two separate applications, one for recording of statement of victim u/[SECTION] [ACT] and the other for two days PC of accused and on that day, court had allowed the application of two day PC of accused vide Ex.PW16/B.
57.During the course of investigation, on 06.09.2010, this witness had produced accused in GTB Hospital and also called victim and her mother there to get matched the tooth bite mark on the cheek of victim, where, photographs of tooth bite marks on the cheeks of victim were taken by the doctors and tooth impression of accused was also taken.
State Vs. [ENTITY]
58.During the course of investigation, on 07.09.2010, this witness had produced the victim before the concerned court to get recorded her statement u/[SECTION] [ACT] which was recorded by Sh. [ENTITY], Ld. link MM vide Ex.PW5/A.
59.During the course of investigation, this witness had sent sealed parcels of the present case through Ct. [ENTITY] to FSL Rohini for examination on 27.09.2010 vide [CASE NUMBER] vide Mark PW16/A.
60.This witness has proved the copy of the birth certificate of the victim vide Mark X and the progress report of the school reflecting her date of birth as Mark Y. This witness has also proved the FSL reports vide Ex.PW16/C and Ex.PW16/D respectively.
61.This witness has proved one maroon colour ladies purse containing two pencils, one plastic piece in the shape of heart, hair clips and Bindis vide Ex.P3 which ASI [ENTITY] had handed over to him, recovered from the possession of accused during his medical examination.
62.In his cross examination by ld. defence counsel, this witness has deposed that he was on reserve emergency duty being the division officer. This witness has further deposed that as per the call spot was recorded as 2/16 but in the statement of PW [ENTITY], spot was told by her as 2/18. This witness has further deposed that he had seized approximately five sealed parcels through different seizure memos. This witness has further deposed that ASI [ENTITY] had told him that doctors State Vs. [ENTITY] had recovered the purse from accused during his medical examination. This witness has further deposed that he had taken 56 hours in the completion of proceeding at GTB Hospital. This witness has further deposed that he had mentioned in the site plan address of the spot as C2/1617 as it was two joint house of 25 square yards each on the pointing out of PW [ENTITY] at the spot. This witness has further deposed that he cannot say about the floors of the house of the spot but the offence was committed at first floor of C2/1617 and he had not recorded the statement landlord of the house.
63.This witness admits that neither the date nor his signature are there on the statement of Ct. [ENTITY], Ex.PW8/DA and he had not placed any negatives of the photographs Mark Z1 to Z3. This witness has further deposed that he had taken these photographs from his mobile phone. This witness has further deposed that he had not recorded the statement of either the victim or her mother regarding the taking of photographs.
64.This witness denied to the suggestion that he had not conducted the investigation of this case in a fair manner; or that accused had been falsely implicated in this case due to enmity between the complainant and him; Or that accused did not commit any wrong act upon the victim; Or that since the accused had refused to put his signature on his disclosure statement, therefore, he had not committed any offence; Or that he did not visit the spot; Or that for this reason he had not seized anything from the spot; Or that offence was committed upon the victim by the brotherinlaw of the complainant. Thereafter, P.E. Was closed and case was State Vs. [ENTITY] fixed for recording of statement of accused u/[SECTION] [ACT] STATEMENT OF ACCUSED U/[SECTION] [ACT]:
65.After prosecution evidence, statement of accused u/[SECTION] [ACT] was recorded where accused had denied all these evidence and circumstances put to him. Accused in his statement u/[SECTION] [ACT] has deposed that he is innocent and falsely implicated in the present case. Accused further stated that [ENTITY] had entered inside his room and PW [ENTITY] had called the public persons in front of his house and at that time, he was sleeping inside his room and he had not done any wrong act with the victim. Accused has preferred to lead D.E. But he could not produced defence witnesses, hence, D.E. was closed and case was fixed for arguments.
ARGUMENTS
66.Ld. APP for State, Sh. [ENTITY] submitted that prosecution has proved its case. On the statement of PW Smt. [ENTITY], Ex.PW4/A, FIR Ex.PW1/A was registered against accused [ENTITY]. Prosecution has examined 16 witnesses and proved its case beyond reasonable doubt on fact of kidnapping by accused while playing and raped. PW4 prosecutrix is the most material witness. She has supported the case of prosecution.
67.As per statement of prosecutrix, accused had taken her to his tenanted room while she was playing in park near her house and committed wrong act upon her. Aforesaid sole testimony of victim is sufficient to convict the accused and State Vs. [ENTITY] statement of prosecutrix is trustworthy. Further, MLC of prosecutrix shows teeth bite mark on her cheek. Other witnesses are officials witnesses. Ld. APP for the State further submits that since the statement of prosecutrix support the case of prosecution, therefore, the present case is squarely covered under the ingredients of 363/366/324/377/376 (2) (f) [ACT].
68.On these grounds, Ld. APP for the State has submitted that prosecution has proved its case beyond reasonable doubt and prayed for conviction of accused.
69.On the other hand, Ld. Amicus Curiae for accused submits that as per prosecution case date of incident is 04.09.2010 and prosecution has examined 16 witnesses and as per story of prosecution, accused had taken, victim aged 07 years when she was playing in the park near her house to his tenanted room and committed wrong act upon her.
70.Ld. Amicus Curiae for accused further submits that PW9 ASI [ENTITY] and PW11 [ENTITY] have deposed in their testimonies that public persons were beating accused when they had reached at the spot but victim in her statement u/[SECTION] [ACT] has deposed that her [ENTITY] uncle had apprehended the accused and confined him in a room after locking.
71.Ld. Amicus Curiae for accused further submits that statement of victim is contradictory to her statement u/[SECTION] [ACT] and as per MLC of accused, no mark of external injury found.
State Vs. [ENTITY]
72.Ld. Amicus Curiae for accused further submits that no public persons is witness of site plan.
73.Ld. Amicus Curiae for accused further submits that MLC of victim has not supported to the case of prosecution. As per MLC, hymen torn but not bleeding which throw doubt upon the case of prosecution.
74.Ld. Amicus Curiae for accused further submits that as per FSL report, human semen was detected on exhibit 'l' i.e. underwear of accused and semen could not be detected on exhibits '4a', '4b', '4g', '4k(a)', '4k(b), '4k(c)', '4l', '4m', '4n', '4o(a)', '4o(b), '4p(a)', '4p(b)' and '4p(c)'.
75.Ld. Amicus Curiae for accused further submits that there is no signature of accused on his disclosure statement.
76.Ld. Amicus Curiae for accused further submits that MLC of accused does not show that accused was under the influence of liquor at the time of incident and there is no injury on the penis of accused. Aunty who had dressed up the victim has not been examined.
77.Ld. Amicus Curiae for accused further submits that I.O. not had collected powder, oil etc. from the spot which were allegedly to be used in crime. State Vs. [ENTITY]
78.Ld. Amicus Curiae for accused further submits that PW4 and PW7 have deposed in their testimonies that victim and accused were taken to hospital whereas PW ASI [ENTITY] and PW11 [ENTITY] have deposed that they had taken accused to the hospital.
79.Ld. Amicus Curiae for accused further submits that witnesses says that their statements were recorded at police station whereas I.O. says that their statements were recorded at spot.
80.Ld. Amicus Curiae for accused further submits that dentist report is not on judicial file.
81.Ld. Amicus Curiae for accused further submits that I.O. states that he had taken photographs by his mobile phone whereas PW4 states in her cross examination that he had given photograph. Photographs are doubtful.
82.Ld. Amicus Curiae for accused further submits that there are no signature on the statement of PW [ENTITY] and Ct. [ENTITY]. On these grounds, ld. counsel for accused has prayed for acquittal of accused [ENTITY] from the charges. PERUSAL OF RECORD:
83.Arguments heard. Record perused. On perusal of record it is revealed that on 04.09.2010, DD No.29A was recorded at police station Nand Nagari regarding rape upon a girl and same was assigned to ASI [ENTITY]. On receipt of DD, ASI State Vs. [ENTITY] [ENTITY] along with [ENTITY] reached at the spot and came to know that victim had already been shifted to GTB Hospital by PCR officials and public persons/mohalla people had produced accused before ASI [ENTITY].
84.On perusal of record, it is further revealed that ASI [ENTITY] had taken accused to GTB Hospital for his medical examination and he was medically examined at GTB Hospital vide MLC Ex.PW15/A and during medical examination one small size ladies purse Ex.P3 was recovered from his possession and same was seized vide seizure memo Ex.PW4/E. Samples collected during medical examination of accused by the doctor were seized vide seizure memo Ex.PW11/A.
85.On perusal of record, it is further revealed that [ENTITY] got the victim medically examined in GTB Hospital vide MLC Ex.PW14/A and samples collected by the doctor during medical examination of the victim, were seized vide seizure memo Ex.PW1/A. MLC shows that hymen torn.
86.On perusal of record, it is further revealed that [ENTITY] recorded statement of victim vide Ex.PW4/A and put his endorsement vide Ex.PW2/A on the same and gave it to [ENTITY] for the registration of FIR and FIR Ex.PW2/B was registered.
87.On perusal of record, it is further revealed that I.O. has proved arrest memo Ex.PW4/B, personal search memo Ex.PW4/C and disclosure statement Ex.PW4/D of accused [ENTITY].
State Vs. [ENTITY]
88.On perusal of record, it is further revealed that [ENTITY] prepared the site plan vide Ex.PW16/A at the instance of PW4 Smt. [ENTITY].
89.On perusal of record, it is further revealed that Sh. [ENTITY], Ld. MM has proved statement of victim u/[SECTION] [ACT] vide Ex.PW5/A.
90.On perusal of record, it is further revealed that samples collected during medical examination of accused as well as of victim were sent to FSL vide RC Ex.PW13/C.
91. On perusal of record, it is further revealed that age of prosecutrix is below 12 years on the date of commission of offence which is proved by admission register Ex.PW12/A, admission form Ex.PW12/B and affidavit Ex.PW12/C.
92.On perusal of record, it is further revealed that charge u/[SECTION] [ACT] had been amended to charge u/[SECTION] [ACT] upto fact of that victim was below 12 years on the day of incident and other charges remained same. The options to recall the witnesses is given to ld. APP for State and to cross examine to this effect both the parties had submitted that they adopt the same who have already been examined and they do not want either to recall them or to cross examine them.
93.On perusal of record it is revealed that FSL report Ex.PW16/C shows that on examination blood was detected on exhibits '2', '4q(a)' and '4q(b)' and semen was State Vs. [ENTITY] detected on exhibit 'l' which is the underwear of accused.
94.Before reaching at any conclusion let the relevant sections i.e. [SECTION] [ACT] be reproduced, which are as under : [SECTION] [ACT]: Punishment for kidnapping. "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] : Voluntarily causing hurt by dangerous weapon or means:
"Whoever, except in the case provided for by [SECTION], voluntarily causes hurt by means of any instrument for shooting, stabbing, or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to State Vs. [ENTITY] inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
[SECTION] [ACT]:
"Unnatural offence : whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with ( imprisonment for life ), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
[SECTION] [ACT]:
Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to onehalf of the imprisonment for life or, as the case may be, onehalf of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, 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 State Vs. [ENTITY] 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.
95.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 State Vs. [ENTITY] 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."
96.In judgment titled as '[ENTITY] Kumar v. State of Haryana, (P&H) 2004(4) R.C.R.(Criminal) 204 : 2004(4) AICLR 574, 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 198081 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 State Vs. [ENTITY] 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 ante litem 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 Bhoop Ram v. State of Uttar Pradesh, 1989 SCC(Crl.) 486 :
1989(1) RCR(Crl.) 573 (SC), 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 State Vs. [ENTITY] 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 SubDivisional 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 State Vs. [ENTITY] 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."
97.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 08 years old and admission register of school also shows her age below 12 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 torn. 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 12 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.
98.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 park to his tenanted room and committed rape upon her. Since fact of taking out the prosecutrix without the State Vs. [ENTITY] consent of her parents has been proved.
99.Further, it has also come on record that victim was taken by accused at his house where he had committed rape upon the victim. In the present case, age of accused is about 33 years and victim was only six years old. 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 case of prosecution. Act of rape has also been proved from the statement of victim. Statement of prosecutrix, who was 06 years of age has correctly identified the accused before this court who had kidnapped and committed rape upon her. PW12 Smt. [ENTITY], Principal, MC Primary School, Nand Nagari, D4, 1st shift, Delhi, who has proved date of birth of prosecutrix as 07.05.2003 and incident had taken place on 04.09.2010. In that eventuality, prosecutrix can also be considered to be less than 12 years at the time of incident. Hence, there is no reason to disbelieve her testimony.
100.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.
State Vs. [ENTITY]
101.Even accused in his statement u/[SECTION] [ACT] could not explain as to why he has been implicated in the present case. In his defence he states that he was sleeping in his room. Further, he could not prove evidence in his defence after giving him an opportunity. Claim of accused is not sufficient to presume his innocence specifically when the facts and circumstances proved his guilt.
102.Since it has been proved that 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.
103.In reference to the arguments of ld. Amicus Curiae for accused that the lady who had dressed up the victim had not been examined by the prosecution.
104.It is not important that which person has not been examined as witness but more important is that the witness who has been examined should be believed or not. Into the facts and circumstances of the present case, from the testimony of prosecutrix and her mother, it had also come on record that accused had committed wrong act upon her. Testimony of prosecturix had been made voluntarily. Hence, her testimony inspired the confidence of this court.
105.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 '(1993) 2 Supreme Court Cases - State Vs. [ENTITY] State of Himachal Pradesh Vs Raghubir Singh' 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 "
106.Since after considering the facts available on record and testimony of PWs. MLC of victim also had proved that accused had caused teeth bite on her cheek and committed rape after kidnapping the victim from lawful guardianship.
107.Taking into the consideration the circumstances of this case, this court comes to the conclusion that prosecution has proved its case beyond reasonable doubt against accused [ENTITY] for offence punishable u/s [SECTION] [ACT]. Accordingly, this court held guilty accused [ENTITY] for the offences u/s [SECTION] [ACT].
108.Fact in respect of [SECTION] [ACT] read with 511 [ACT] could not be proved by prosecution. Hence, accused [ENTITY] is acquitted from [SECTION] [ACT] read with 511 [ACT] by giving him benefit of doubt.
PRONOUNCED IN THE OPEN COURT ON THIS 07.03.2013 ([ENTITY]) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI State Vs. [ENTITY]