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2007 DIGILAW 903 (DEL)

DUDAN SAHU v. STATE OF (G. N. C. T. ) OF DELHI

2007-05-01

H.R.MALHOTRA, R.S.SODHI

body2007
R. S. SODHI, J. ( 1 ) CRIMINAL Appeal Nos. 812 of 2005 and 168 of 2006 are directed against the judgment and order of the Additional Sessions Judge, Delhi in sessions Case No. 103 of 2002 arising out of F. I. R. No. 164 of 2002, registered at police Station Narela Industrial Area, whereby learned judge vide his judgment and order dated 11. 05. 2005 has held the appellants, Dudan Sahu and Munna Sahu, guilty for an offence under Section 376 (2) (g) IPC for committing rape of meena, a child under 12 years. Further by his order dated 16. 05. 2005, has been pleased to award sentence of Rigorous Imprisonment for life to both the accused together with fine of Rs. 5,000/- each and in default, Simple Imprisonment for five months. Benefit of Section 428 of Code of Criminal Procedure was also awarded to the appellants. ( 2 ) BRIEF facts of the case as have been narrated by the learned additional Sessions Judge are as under :- ". . . . . . that on 20-4-02, at about 9. 15 PM, a report was lodged by Jagan Nath, father of Meena that his daughter Meena aged 8 years is missing since 1 PM and he suspects that somebody had kidnapped her after inducing and alluring her. An fir bearing No. 164/2002 under Section 363 IPC was recorded in this regard. It is further the case of the prosecution that search for Meena was conducted and Meena was found in injured condition on 21-4-2002 and she pointed the place and at her instance and pointing out, accused Dudan Sahu and Munna Sahu were arrested and Meena reported that both of them have committed rape upon her person and Meena as well as both the accused persons were got medically examined and medical examination of Meena confirmed rape and as such, both the accused persons were arrested. It is further the case of the prosecution that the exhibits handed over by the doctor in respect of Meena as well as the accused persons were deposited in the malkhana and later on were sent to FSL which were not received back till the filing of the challan and bone age X-rays of Meena was got conducted and her statement under Section 164 Cr. P. C. was got recorded. P. C. was got recorded. " ( 3 ) THE prosecution in order to establish its case, examined as many as 14 witnesses. Of these, PW-6, Shyam Lal, is the factory owner where both the accused used to work and at whose premises the rape was committed. PW-8 is Atul kumar Garg, Metropolitan Magistrate, who recorded the statement of the prosecutrix under Section 164 of Code of Criminal Procedure which is Exhibit PW 8/b. PW-12 is Dr. S. Narang, who proved the MLC dated 21. 04. 2002 prepared by dr. S. S. Raza in respect of accused Dudan Sahu which is Exhibit PW 12/a as also of accused Munna Sahu which is Exhibit PW 12/c. As per the doctor, both the persons were capable of performing sexual intercourse and their sexual secondary characters were well developed. This witness also proved the MLC of Meena dated 21. 04. 2002 which is Exhibit PW 12/b prepared by Dr. Raza according to which meena had suffered an injury on the right eye and multiple bruises on her neck. She was referred to Gyanecologist. ( 4 ) PW-14, Dr. Kanupriya Singhal, proved the MLC prepared by dr. Garima Singh in respect of Meena, who conducted the gynaecological examination on 21. 04. 2002. The same is Exhibit PW 14/a. On examination, she found right eye swollen, a small sub conjunctivial haemorrhage present on right eye, multiple bruises over neck and one wound over sacral region. She further found the under garments of Meena stained with blood mixed with foul smelling discharge present over vulva, perianul laceration present, labia majora swollen and congested, labia minora torn and congested, hymen ruptured and vagina/vulva swollen. This witness was not cross-examined. PW-1, Dr. Shipra Rampal, is radiologist who opined the bony age of Meena to be between 7 years to 9 years. ( 5 ) PW-5, Jagan Nath, father of prosecutrix Meena, deposes to the effect that Meena is his daughter and that at the time of incident, she was eight years of age. On 20th, about two and a half years ago, he had gone to his work. On return at 10 p. m. , he found that Meena was not at home. On 20th, about two and a half years ago, he had gone to his work. On return at 10 p. m. , he found that Meena was not at home. He lodged a report with the police regarding missing of his daughter, copy of which is exhibit PW 5/a. He went out in search and on return found Meena at home at about 5 a. m. She was having injuries on her neck and private parts which was also seen by his wife. Recovery memo of his daughter was prepared by the police vide memo Exhibit PW 5/b. His daughter was medically examined. PW-3, Sheela, is the mother of Meena. She states that Meena is her daughter who was about seven years of age at the time of the incident. She states that her daughter went missing and her husband lodged a missing report. The police accompanied them in search of their daughter but she could not be traced. When she came back to the jhuggi, she found Meena in jhuggi. Her daughter had taken bath which was given by her devrani at about 6 a. m. She did not support the prosecution's case regarding the arrest of the accused and therefore, was declared hostile. ( 6 ) PW-6, Shyam Lal, is the factory owner who deposes that both the accused persons used to work in his factory and used to stay there at night. PW-2, Meena, is the prosecutrix. She was first put questions about her being of understanding the case and on being satisfied that the witness understands the questions and is able to depose was examined. She states that she was eating shehtoot near her house. Both the accused persons, correctly identified in court, lifted her and took her to a factory. There they both did 'ganda kaam' with her. The witness explained that they did 'ganda kaam' with her after removing her ghagri and underwear. Thereafter, she was thrown somewhere and she came back to her house weeping. She narrated the incident to her mother. She was then taken to Narela and was also taken to the police station and thereafter to the hospital. In cross-examination on 24. 11. 2003, the judge noticed that the witness was trembling and was unable to speak though she was accompanied by her mother. She narrated the incident to her mother. She was then taken to Narela and was also taken to the police station and thereafter to the hospital. In cross-examination on 24. 11. 2003, the judge noticed that the witness was trembling and was unable to speak though she was accompanied by her mother. Questions put by the advocate were not being understood by the child as she was trembling and frightened. The judge tried to pacify her and again put the question asked by the advocate to which she replied 'yeh nahi mile the'. The judge further records that even at that time he felt her trembling and shivering and found that she was so frightened and unable to depose. Hence, her further cross-examination was deferred. On 12. 04. 2004, she was recalled and in cross-examination she states that the police met her at police chowki. They took her to the factory. Both the accused persons, present in court, met her in the factory. Police was also with her when she was taken to the factory. She herself took the police to the factory. Her mother was also with her. Both the accused met her for the first time when they did 'ganda kaam' with her and then she saw them when she went to the factory with the police and she reiterates that both the accused, present in court, did 'ganda kaam' with her. She denies that she was deposing falsely. PW-14, ASI Dharambir Singh is the Investigating officer. He has related the nature of investigative steps taken by him, i. e. , taking into possession the blood stained clothes, a chappal having blood stains and also some torn dirty cloth pieces. ( 7 ) FROM the material on record, the trial court came to the conclusion that Meena was a reliable witness and that her statement stands corroborated by the medical evidence and therefore, went on to hold the appellant guilty for committing an offence under Section 376 (2) (g) IPC. Aggrieved by this order, the appellants have preferred the present appeal. ( 8 ) IT is contended by learned counsel for the appellant, Munna sahu, that the appellant has been wrongly implicated and that he did not do any such act for which he has been charged. He submits that scientific results do not show that he had taken part in the rape of Meena. ( 8 ) IT is contended by learned counsel for the appellant, Munna sahu, that the appellant has been wrongly implicated and that he did not do any such act for which he has been charged. He submits that scientific results do not show that he had taken part in the rape of Meena. He also contends that the medical evidence does not support the case of Meena since no injuries were found on his penis. Learned counsel for the appellant, Dudan Sahu, contends that this accused was neither identified nor arrested at the pointing of Meena and that he was identified for the first time in the court after a long gap, therefore, this identification, according to the counsel, is of no consequence. He further contends that Meena is a child witness, capable of being tutored, and relying upon the judgment of Supreme Court in Bhagwan Singh and Ors. Vs. State of M. P. ; jt 2003 (3) SC 599, contends that this child witness evidence should not be relied upon. ( 9 ) LEARNED counsel for the State, on the other hand, contends that meena has consistently supported her statement made under Section 161 of Code of criminal Procedure as also has not deviated from her statement made to the police and her examination in chief has merely been got reiterated. Learned counsel also contends that the version of Meena is corroborated by the medical evidence which shows that the child has been sexually brutalized. ( 10 ) WE have heard learned counsel for the parties and with their assistance have gone through the record of the case. We find that the testimony of Meena is reliable in all respects. She has neither, at any point of time, deviated nor appears to be confused or tutored and that her statement is corroborated by medical evidence and therefore, can be relied upon for the purposes of this case. We also find that the prosecutrix has identified Munna sahu, at the first instance, at the factory itself and there is nothing to suggest in cross-examination that Munna Sahu was not identified by this witness correctly in the factory or in the court. We also find that the prosecutrix has identified Munna sahu, at the first instance, at the factory itself and there is nothing to suggest in cross-examination that Munna Sahu was not identified by this witness correctly in the factory or in the court. As regards Dudan Sahu, although there is material to show that he was arrested subsequently yet, there is nothing to suggest that he has ever been shown to the prosecutrix which should enable the prosecutrix to falsely implicate him while identifying him in court. ( 11 ) THE categoric nature of the statement of the prosecutrix coupled with the medical evidence leaves no doubt that the appellants are the persons responsible for raping Meena. The trial court has carefully examined the evidence as also the medical evidence and has given cogent reasons for coming to the conclusion that the appellants are guilty for the offence under section 376 (2) (g) IPC. We find no reason to interfere with the well reasoned order of the trial court. However, on the question of sentence it is brought to our notice that both the appellants are exceedingly poor and poverty stricken. It is submitted that they are at the threshold of their life, perform casual labour and are married and that their continued incarceration will only further compound the misery of their families. It is also pointed out that there is no other case pending against them. ( 12 ) TAKING the above facts into consideration and also taking into consideration their conduct in jail which has been good, we think ends of justice would be met if the sentence imposed by the trial court is modified to seven years Rigorous Imprisonment with fine of Rs. 1,000/- (rupees one thousand)each and in default of payment of fine, further Rigorous Imprisonment for six months. Benefit of Section 428 of Code of Criminal Procedure shall also be afforded to the appellants. Criminal Appeal Nos. 812 of 2005 and 168 of 2006 are disposed of in the above terms.