Delhi District Court
State vs Rajender Kumar on 23 September, 2016
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IN THE COURT OF MS.SHAIL JAIN,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 12/2014.
State
Versus
1. Rajender Kumar
s/o Khushi Ram
resident of L134, Mohan Garden, Uttam Ngar, Delhi.
2.Nisha
of Rajender Kumar
resident of L134, Mohan Garden, Uttam Ngar, Delhi
3. Tarun
son of Suresh Kumar
resident of B46, Sainik Nagar, Navada, Uttam Nagar
Delhi.
4. Sumit
son of Rajender Kumar
resident of L134, Mohan Garden, Uttam Ngar, Delhi
First Information Report Number : 685/2013
Police Station : Uttam Nagar
Under sections 323/354/354A/376/511/509 of the Indian Penal
Code.
Date of receipt of file after committal in : 28.01.2014.
the Sessions Court
Date of judgment :23.09 .2016
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JUDGMENT
1. Accused persons Rajender Kumar, Tarun and Sumit have been charge sheeted by Police Station Uttam Nagar , Delhi for the offences under sections 323//354//354A/376/511/509/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 24/11/2013 at place (as mentioned in the file) accused Rajender Kumar, Tarun and Sumit in furtherance of their common intention along with coaccused Nisha abused the prosecutirx (name mentioned in the file but withheld to protect her identity) and voluntarily gave her beatings and tore her clothes which she was wearing. It is also the case of prosecution that accused Rajender Kumar, Tarun and Sumit along with coaccused Nisha in furtherance of their common intention voluntarily gave beatings to Mr Harish Sabharwal and they attempted to commit rape upon the prosecutrix and uttered abusive words intending to insult the modesty of prosecutrix . It is also the case of prosecution that on the date of incident accused Nisha along with other accused persons abused the prosecutrix (name mentioned in the file but withheld to protect her identity) and voluntarily gave beatings to her as well as to her husband and accused Nisha abetted other accused persons namely Rajender Kumar,
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Tarun and Suresh to tear the clothes of the prosecutrix (name mentioned in the file but withheld to protect her identity) and also abetted them to attempt to commit rape upon her and accused Nisha along with accused Rajender Kumar, Tarun and Suresh in furtherance of their common intention also uttered few abusive words intending to insult the modesty of the prosecutrix
2. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate. The case was committed to the Sessions Court after completion of proceedings u/s 207 Cr.P.C. and was assigned to the Court vide order dated 20/01/2014.
3. After hearing arguments, vide order dated 13/08/2014, accused Rajender Kumar, Tarun and Suresh were charged for offence under sections 323/354/354A/376/511/509/34 of the IPC. Accused Nisha was charged for the offence u/s 323/109/354A/354/376/511/509 IPC. Accused persons pleaded not guilty and claimed trial.
4. In evidence prosecution has examined 9 witnesses to prove the guilt of the accused persons.
5. PW1 HC Shyam Nandan has deposed that on 25.11.2013 SI Brahmparkash had deposited one sealed pullanda in malkhana of PS Uttam Nagar. He had made the entry of the same in register No.19 at serial No. 4612/13. Photocopy of the relevant extract is ExPW1/A .
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6. PW2 is the complainant/prosecutrix of the present case.(name mentioned in the file but withheld to protect her identity). She has stated that she got married with Mr. Harish Sabbarwal on 18.04.2013. It was love marriage. After her marriage, she started living with her parents at her parental home at Uttam Nagar, Delhi and her husband was residing with his parents. Since her marriage with Mr. Harish Sabbarwal was an intercaste marriage her parents were against the said marriage, so she had not disclosed to her parents regarding her marriage with Mr. Harish Sabbarwal and wanted to convince them first to accept her marriage and thereafter she wanted to live with Mr. Harish Sabbarwal in his house. After her marriage, she and Mr. Harish Sabbarwal were frequently meeting each other but not visiting each other houses. On 27.07.2013 she started living with her husband at C1, Janakpuri, Delhi, which was constructed on the upper floor of the office of the employer of her husband. Her parents were not aware about it as she had run away from her parental home. She along with her husband resided at C1, Janakpuri for about 34 days.
Thereafter, they started living at L134, Mohan Garden, Uttam Nagar, Delhi where her husband and his parents had shifted. She resided with her husband, fatherinlaw Mr. Rajinder Kumar, step motherinlaw Ms. Nisha, brotherin law (dever) Mr. Sumit and sisterinlaw (nanad) Ms.
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Priyanka. No dowry articles were given to her by her parents in the marriage as it was love marriage. Her parentsinlaw were annoyed with her as she had not brought anything in marriage from her parental side. She was not allowed to enter the kitchen and was being harassed by her in laws.Since she had not brought any thing in the marriage, on 24.11.2013 her fatherinlaw, motherinlaw & Sumit fought with her and gave her beatings. Cousin of her husband Mr. Tarun was also present in their house at that time, he also gave her beatings. All the four accused persons started abusing her and accused Rajinder, Tarun & Sumit had torn her cloths which she was wearing and forcibly made her lie down on the ground and they all came on top of her. Accused Nisha was helping all the three accused persons at that time. All accused persons used abusive language towards her. When her husband tried to intervene to save her, accused persons had beaten him also. When the accused persons were beating her husband, she could manage to come out of the room and telephoned the police at 100 number.After some time police reached the spot. Till the arrival of the police she did not enter the room where all the accused persons were beating her husband. Even police had also seen the incident when accused persons were beating her husband. Police made inquiry from her and narrated the entire facts to the police. When police reached her
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matrimonial home she was wearing the torn TShirt and police asked her to change the same. The TShirt was taken by the police in its possession. She along with her husband was taken by the police to PS Uttam Nagar, from where they were sent to DDU, Hospital for the medical examination and from the hospital she was again brought to PS Uttam Nagar. Her statement was recorded by the police & same is Ex.PW2/A. The seizure memo of the TShirt is Ex.PW2/B. Her statement U/s 164 Cr.P.C. was recorded by Ld Metropolitan Magistrate, which is Ex.PW2/C. All the accused persons were arrested by the police in her presence vide arrest memos Ex.PW2/D to Ex.PW2/G. The personal search memos of all the accused persons are Ex.PW2/H to Ex.PW2/K.
7. Witness has further stated that she was being pressurized by the accused persons for withdrawing this case and not giving evidence against them. She had already made two complaints dated 14.06.2014 & 16.08.2014 to the police, but no action was taken by the police.
8. PW3 Ct Subhash Chander is the duty officer, who has recorded the FIR of the present case and proved the same as Ex.PW3/A.
9. PW4 W/Ct Praveen Kumar has stated that on 25.11.2013 she joined the investigation of the present case along with IO/ASI Brahm Parkash . On that day on receipt
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of DD no. 3B at around 12.00 midnight she reached the spot where prosecutrix met them in torn clothes. She asked the prosecutrix to change her clothes. The prosecutrix was taken to DDU hospital for her medical examination and the torn T shirt of the prosecutrix was seized vide seizure memo (Ex.PW2/B). The accused persons were arrested in her presence vide arrest memos exhibited as Ex. PW2/D, Ex.PW2/E , Ex. PW/2F and Ex. PW2/G . The personal search of all the accused persons is already exhibited as Ex.PW2/H, Ex. PW2/I, Ex. PW2/J and Ex. PW2/K .
10. PW5 Ct Ankit has stated that on 25/11/2013 on receipt of information regarding quarrel through wireless operator, he made entry vide DD no 3 B and proved the DD as Ex.PW5/A.
11. PW6 Mr Harish is husband of prosecutrix. He has deposed in detail about the incident dated 24.11.2013.
12. PW7 SI Braham Parkash is IO of the case. He has deposed that on 25.11.2013 on receipt of DD no. 3 B (Ex.PW5/A) regarding quarrel, he along with Ct. Subhash Chander and W/Ct. Parveen went to the spot. He met the prosecutrix and her husband Mr. Harish as well as the accused persons at the spot. Prosecutrix reported that the accused persons had beaten her, torn her clothes and tried to rape her. He recorded her statement which is exhibited as Ex. PW2/A. He prepared the rukka on same, which is Ex. PW7/A. He sent Ct. Subhash Chander with the complaint and the rukka to the
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PS for registration of the FIR. After the registration of the FIR (Ex.P10), Ct. Subhash Chander returned at the spot with the complaint and rukka as well as copy of the FIR. IO prepared the site plan at the instance of the prosecutrix, which is Ex. PW7/B. The prosecutrix was wearing her torn clothes when he had reached the spot. He had asked prosecutrix to change the same. The prosecutrix had handed over her torn clothes which were seized by witness vide seizure memo (Ex.PW2/B).
13. The prosecutrix and her husband were sent with Ct.
Parveen to DDU hospital for their medical examination. All the accused persons were arrested in the presence of the prosecutrix vide arrest memos Ex. PW2/D to Ex. PW2/G. The personal search of all the accused persons was conducted vide personal search memos Ex. PW2/H to Ex. PW2/K. All the accused persons were taken to DDU hospital where they were medically examined vide MLCs Ex.P2, Ex.P3, Ex.P4, Ex. P 5, Ex.P6. Ex. P7, Ex. P8, and Ex. P9. The MLC of Mr. Harish Kumar, husband of the prosecutrix is as Ex.P1. The statement of the prosecutrix under section 164 Cr.PC was got recorded, which is Ex.PW2/C. The application requesting for recording the statement is Ex. PW7/C. During investigation, the statement of all the witnesses were recorded and all the evidence was collected. The chargesheet was prepared and filed in the Court.
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14. PW8 Dr Nishu Dhawan, SMO, DDU hospital has proved the MLC of prosecutrix as Ex.PW8/A.
15. PW9 Dr Pallavi, SR, DDU hospital has also proved the MLC of prosecutrix as Ex.PW8/A.
16. Thereafter prosecution evidence was closed.
17. Ld counsel for accused persons Sh Amit Chauhan has admitted the evidence of Ms Colette Rashmi Kujur Ld MM, Ms Magdleen Marin, Dr Manjit Kumar, Dr Kohli, Dr Archana, Dr Dhanjay, Dr Richa Singh, Dr Nishit, HC Vijay Kumar duty officer, hence these witnesses were not examined.
18. Thereafter, statements of all accused persons u/s 313 Cr.P.C was recorded wherein they have denied the allegations. They have submitted that they have been falsely implicated in the present case. Accused persons had stated that they do not want to lead evidence in defense.
19. I have heard arguments from Sh Amit Chauhan, Ld counsel for accused persons as well as from Sh Subhash Chauhan, Ld Additional P.P for the State.
20. During the course of arguments, it is argued by Ld counsel for accused persons that there was some matrimonial dispute between accused persons and prosecutrix, which has been given the colour of criminal offence. It was also submitted by Ld defence counsel that prosecutrix is daughter in law of accused Nisha and Rajinder and sister in law of accused Sumit and Tarun as she has married to son of
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accused Nisha and Rajinder namely Harish. It was also submitted by Ld defense counsel that on petty matters, dispute arose between the family, on which present allegation of attempt of committing rape has been levelled by the prosecutrix but the prosecution has not been able to substantiate the offence. It is further submitted by Ld defence counsel that husband of prosecutrix (Harish Sabharwal), PW 6 has not supported the case of the prosecution as he has specially stated in his examination in chief that dispute had arisen because of shifting of one almirah and there was no demand of dowry. PW6 had also stated that prosecutrix was also abusing her parents in law, due to which scuffle took place between the family members present there and in that scuffle Tshirt of prosecutrix got torn. It is therefore prayed that all accused persons be acquitted.
21. On the other hand, Sh Subhash Chauhan, Ld Additional P.P for State had submitted that there are specific allegations of attempt to commit rape on the part of the accused Rajinder, Tarun and Sumit, whereas the allegation of abatement of offence has been levelled against accused Nisha, who is mother in law of the prosecutrix. It was also submitted by Ld Additional P.P that prosecutrix had specially levelled allegations of outraging her modesty against accused Rajinder, Tarun and Sumit and had proved the allegation by producing her torn Tshirt during evidence and the same was
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exhibited as Ex.P1. Hence Ld Additional P.P had prayed that accused persons be convicted for the offence committed.
22. I have considered the arguments advanced by Ld counsel for the parties and gone through the file. I have also considered the relevant provisions of law.
23. In the present case, accused Nisha, who is mother in law of prosecutrix has been charged for the offence u/s 323 IPC for causing simple injuries on the person of prosecutrix. She has also been charged for offence u/s 354/354A/376/511 IPC read with section 109 IPC, as it is alleged against accused Nisha that she had abated the commission of these offences and has also abused prosecutrix with the intention to insult her. Hence she has also committed the offence u/s 509 IPC.
24. As regards accused Rajinder, Tarun and Sumit, they have also been charged for the offence u/s 323 IPC ie for giving beatings to prosecutrix; they have been also charged for the offence u/s 354/354A IPC ie for tearing clothes of prosecutrix which the prosecutrix was wearing and all three accused persons have also been charged for the commission of offence u/s 376/511 IPC of attempting to commit rape upon prosecutrix and section 509 IPC for abusing prosecutrix.
25. Prosecution has examined 9 witnesses in all. Out of that PW2 being prosecutrix and PW6 husband of prosecutrix are material witnesses as these two persons were only persons present at the spot, while other witnesses examined by the
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prosecution are either police officials, who had taken part in investigation of present case or are doctors, who have medically examined the parties to the case.
26. In this case, accused persons have tried to take two way defense; firstly they have stated that no such dispute or incident had taken place inside the house of in laws of prosecutrix. Secondly, it was also tried to be proved by the defense that prosecutrix herself had created quarrel and had given beatings to her in laws, due to which father in law ie accused Rajinder Kumar had suffered fracture in his hand. Considering the same, I am of the opinion that this two way, defense taken by the accused persons itself had weaken the defense taken by the accused persons. Rather it proves the occurrence as alleged by prosecutrix. Once it is admitted by accused persons that during quarrel accused Rajinder Kumar had sustained injuries, it cannot be further considered that no such incident had taken place. Thus, first step of occurrence of incident has been admitted by accused persons.
27. Now coming to the second step, which is, proving the role of each and every accused person and proving particularly each of the offence committed by accused persons against prosecutrix, if any.
28. Offence u/s 509 IPC which is alleged against all accused persons, taking the testimony of PW2 and PW6 together, I am of the opinion that PW1 had specially levelled allegations
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that accused Nisha, Rajinder Kumar, Sumit and Tarun, all had used abusive words against her and language as stated by prosecutrix in her examination in chief clearly proves that these were abusive language used for insulting the modesty of prosecutrix.
29. In the entire cross examination of the prosecutrix, no suggestion had been given to her that no such abuses were used by the accused persons in order to insult her. Rather the defense had tried to prove that accused Tarun was not present at the spot, at the time of incident. This fact has been denied and disproved by PW6 ie husband of prosecutrix, who had specially stated that while the quarrel was going on between the parties, accused Tarun had also reached the spot. PW6 had specially stated that all the accused persons were shouting and quarreling with prosecutrix and all accused persons had given beatings to PW 2 and himself. Considering the fact that no suggestion has been given by accused persons to prosecutrix that no such abuses were given by accused persons to insult her & considering the words used against prosecutrix as mentioned in her complaint and examination of chief, I am of the opinion that prosecution has been able to prove beyond reasonable doubt that the offence under section 509 IPC, was committed by all accused persons.
30. As regards the offence u/s 323 IPC it is admitted by
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PW2 and PW6 that quarrel had taken place between the parties, due to which, injuries were sustained by prosecutrix. It is also admitted by PW6 that during scuffle prosecutrix had sustained injuries. It was specifically stated by PW2 ie prosecutrix that during arguments/quarrel accused Rajinder, Sumit and Tarun had pushed her due to which she fell down. PW6 had also stated that all accused persons except accused Nisha gave beatings to him and the prosecutrix, though being son and brother of accused persons, he had stated in his evidence, that, he had given beatings to accused Sumit during scuffle & he does not remember exactly what happened, when quarrel got intensified. Therefore, I am of the opinion that it is proved by testimonies of PW2 and PW 6 that accused Rajinder Kumar, Tarun and Sumit had inflicted injuries on the person of prosecutrix & accused Sumit had given beatings to PW6 also. As regards accused Nisha, prosecutrix had specially stated that her mother in law was only abusing her and had not given any beatings to her. Hence accused Nisha is acquitted for the offence u/s 323 IPC. Accused Rajender Kumar, Tarun and Sumit are convicted for the offence u/s 323 IPC.
31. Now coming to the offence u/s 354 IPC and 354A IPC, it is necessary to consider the provisions of section 354 and 354A IPC. Section 354 and 354 A IPC are reproduced as below:
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32. Section 354 IPC is reproduced as under:
Section 354 IPC: 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 shall not be less than one year but which may extend to five years, and shall also be liable to fine.
33. Section 354 A IPC is reproduced as under:
"Sexual harassment and punishment for sexual harassment (1) A man committing any of the following acts
(i) Physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
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(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub section (1) shall be punished with rigorous imprisonment for a term which may extent to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
34. From bare reading of section 354 IPC and section 354 A IPC, it is clear that section 354 IPC is attracted when assault or criminal force is used with either intention or knowledge that by such an act, accused will outrage the modesty of the girl/woman. Whereas Section 354A IPC provides about the sexual harassment. A person is said to have committed the offence u/s 354 A IPC if he physically contacts or makes advances with explicit sexual overtures. In the present case, as per the allegation of prosecutrix, accused persons have abused her and pushed her on the ground and thereafter they came on top of her. The only allegation levelled by the prosecution against accused Rajinder, Tarun and Sumit is that they had pushed her on the ground and had come on top of her. She had not stated anywhere in her complaint, statement
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u/s 164 Cr.P.C, statement u/s 161 Cr.P.C or in the examination in chief that any "explicit sexual overt act" was committed or advances were made by any of the accused persons towards her. Therefore, I am of the opinion that allegation levelled against accused persons may fall within the definition of 354 IPC but not within the purview of section 354 A IPC. Although in the examination in chief, prosecutrix had stated that all three accused persons ie Rajinder, Sumit and Tarun had torn her Tshirt but in cross examination she had specially stated that it was accused Sumit who had torn her T shirt. Therefore charge of tearing Tshirt and by that to outrage the modesty of woman has also been proved against accused Sumit only and not against other accused persons. Need not to say that no suggestion was given to prosecutrix that accused Sumit had not done any such act as alleged. Rather, it was suggested to PW2 that the quarrel had taken place between her and her husband, ie PW 6, and no such incident as alleged has taken place. And, on the other hand, it is suggested to prosecutrix that due to beatings given by her to her father in law, accused Rajinder, he sustained injury in his right hand. Thus it is clear from these suggestions that occurrence of incident and presence of accused persons has been indirectly admitted by defense. Even testimony of PW6 corroborates the testimony of PW2.
35. As regards the allegation against accused Nisha that she
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has abated the commission of offence u/s 354 IPC, I am of the opinion that there is no such evidence led by the prosecution, which could prove abatement for offence to any extent by accused Nisha. In the examination in chief prosecutrix had not assigned any role to accused Nisha except that she had abused her. It is only in cross examination, prosecutrix had stated that accused Nisha was helping other three accused persons. But, here again, the testimony of prosecutrix is silent to the aspect as to how, accused Nisha had helped/abated accused persons to commit offence u/s 354 IPC. Hence, I am of the opinion that allegation of abating of commission of offence u/s 354 IPC or 354 A IPC has not been proved against accused Nisha.
36. Coming to the allegation of commission of offence u/s 376 read with section 511 IPC, prosecutrix had alleged that after making her fall on the ground, all the three accused persons ie Rajinder, Sumit and Tarun had come on top of her and had attempted to commit rape. In the entire evidence ie examination in chief as well as in cross examination, prosecution had no where explained as to what accused persons had done or tried to be done in order to commit the attempt of rape.
37. A case to fall under section 376 r/w section 511 IPC, will have to meet the requirements of definition of "rape' given in section 375 IPC. Offence of rape is the gravest form of sexual
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attack, which could be committed on a person of lady. Considering the serious nature of offence and the consequences thereto, it is very important to consider, whether the allegations levelled against accused falls under section 376 read with section 511 IPC, ie the gravest sexual offence.
38. In order to appreciate the same, it is necessary to consider the definition of "Rape" provided under section 375 IPC. As per section 375 IPC in order for an act to fall within the definition of rape, the penetration to any extent into the vagina, mouth, urethra or anus of a woman is required. As per clause (a) and (b) of section 375 IPC, there has to be penetration of any object or genitalia of accused to any extent into the vagina, mouth, urethra or anus of a woman, which is not the facts as alleged in the present case. The only clause which could be attracted in this case is the clause (c) of section 375 IPC, which describes that, " manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so, with him or any other person".
39. In order to appreciate the requirements of section 375
(c) IPC, it is necessary to consider that as per clause (c) of section 375 IPC Manipulation of any part of the body of a woman, should be with the motive/intention or effect to cause penetration into the vagina, urethra, anus or any part of body
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of such woman. In case, the act of accused, alleged by complainant/prosecutrix does not fall in this category the manipulation of body, by itself, will not fall, within the definition of section 375 (c) IPC. In the entire statement of the prosecutrix, recorded either in section 161 Cr.P.C or under section 164 Cr.P.C or in her examination in chief, she has not stated anywhere that accused Rajinder Kumar, Sumit and Tarun had tried to manipulate any part of her body so as to cause penetration, as is required under section 375 IPC . Therefore, I am of the opinion that allegation of prosecutrix that the accused persons had come on her top and had torn her Tshirt will fall within the definition of " assault or use of criminal force to woman with intent to outrage her modesty", and cannot be considered to fall in definition of Rape, as provided under section 375 IPC. Therefore, the case falls within the definition of section 354 IPC and not under section 376 read with section 511 IPC. As even section 511 IPC provides that attempt to commit an offence can be said to begin when the preparations are complete and culprit commences to do something with the intention of committing the offence and which is a step towards the commission of offence. The moment culprit commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined in the Indian Penal Code, and must, therefore, be taken in its ordinary
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meaning.
40. In the present case, it is not the case of prosecution that if PW2 would not have run from the spot, she would have been raped. As, there is no allegation against accused persons Rajinder, Tarun and Sumit to have completed "preparation" to commit rape. Further, it is utmost important to appreciate that, it is admitted case of prosecutrix ( PW2) and PW6 that at the time of incident, sister of accused Sumit & Tarun and daughter of accused Rajinder namely 'Priyanka, was also present at the spot. It is highly improbable that accused persons will try to commit 'rape' of prosecutrix in presence of her husband and in presence of their sister/daughter 'Priyanka'. Hence, I am of the opinion that prosecution has failed to prove the allegation of commission of offence u/s 376/511 IPC, beyond reasonable doubt.
41. In view of my above discussion, I am of the opinion that prosecution has proved its case u/s 509 IPC against accused Nisha. Prosecution has also proved its case u/s 323/354/509 IPC against accused Sumit. Prosecution has also proved its case u/s 323/509 IPC against the accused Tarun and Rajinder. Hence, accused Nisha is convicted for the offence u/s 509 IPC. Accused Sumit is convicted for the offence u/s 323/354/509 IPC. Accused persons Tarun and Rajinder are convicted for the offence u/s 323/509 IPC. Prosecution has not been able to prove its case u/s 376/511 IPC, hence all
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accused persons are acquitted for the offences u/s 376/511 and section 354 A IPC.
Announced in the open Court on (SHAIL JAIN) this 23rd September , 2016 Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi.
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