Delhi District Court
State vs . Surender on 7 August, 2012
1 FIR No. 44/2009
PS S.P. Badli
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
Sessions Case No. : 183/09
Unique ID No. : 02404R0122232009
State Vs. Surender
S/o Late Sh. Sohan Lal
R/o H. No. B17, Gali No. 7,
80 Ganj Colony, Jeevan Park,
Siras Pur, Delhi.
FIR No. : 44/2009
Police Station : S. P.Badli
Under Sections : U/S 363/376/328/366/342 IPC
Date of committal to session Court: 27.07.2009
Date on which judgment reserved: 27.07.2012
Date of which judgment announced: 03.08.2012
1 of 36
2 FIR No. 44/2009
PS S.P. Badli
JUDGMENT :
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: That on 08.03.2009 on receipt of DD No. 18/A at 10.05 AM SI Mohd. Nabi (PW10) alongwith Ct. Dharampal reached at Gali No. 12, Jeevan Park, Delhi, where the Smt. Parvesh Kumari W/o Mahesh Kumar, mother of the prosecutrix (name of prosecutrix withheld being a case u/s 376 IPC) met who gave her statement that she is residing in the house of Rajay Jaat at H.No. 487, Gali No. 12, Jeevan Park, Gaon Siraspur, on rent for the last eight months. Her permanent address is village Alipur, Samaspur, PS Islam Nagar, Distt. Badiau, U.P. Her husband does the work of tractor plying. She is having five children in which her eldest daughter prosecutrix is aged 14 years. She works in godown no. 3 of cleaning pulses and rajma at Siras Pur. Her daughter/prosecutrix also works with her. Today 08.03.2009 at about 9.30 AM her daughter/prosecutrix had gone for working in the godown alongwith her younger daughter Rekha, aged 10 years. Her daughter/prosecutrix asked her sister to go to the house from the way. At about 10.00 AM she and her motherinlaw Leelawati when reached at the 2 of 36 3 FIR No. 44/2009 PS S.P. Badli godown and found that her daughter/prosecutrix is not in the godown. Immediately, thereafter, she while searching her daughter/prosecutrix came back to her house and searched her daughter/prosecutrix in the house and in the neighbourhood but could not find her. She suspects that her daughter/prosecutrix has been enticed away by a boy named Surender. The description of her daughter/prosecutrix is ; height 4 feet, whitish colour fair, dwarf body, long hairs, long face and wearing suitsalwar of yellow colour with yellow chunni and is having black colour sandals in her feet. Her daughter/prosecutrix be searched and appropriate legal action be taken. On the basis of the said statement of Smt. Parvesh Kumari, SI Mohd. Nabi finding that a case u/s 363 IPC appears to have been made out, got registered the case by sending a rukka. At the instance of Smt. Parvesh site plan was prepared. Statement of the witnesses were recorded. On 13.03.2009 on the basis of a secret information and at the instance of the mother of the prosecutrix, they (prosecutrix and accused) were apprehended at Bypass while alighting from a bus. Accused Surender was interrogated and was arrested. Prosecutrix and accused Surender were medically examined at BJRM Hospital. The exhibits given by doctors after the examination of the prosecutrix and that of accused were taken into police possession. On 14.03.2009 the age determination test of prosecutrix was got 3 of 36 4 FIR No. 44/2009 PS S.P. Badli conducted and on 16.03.2009 the statement u/s 164 Cr.P.C of the prosecutrix got recorded. Exhibits were sent to FSL Rohini.
Upon completion of the necessary further investigation challan was prepared for the offences u/s 363/376/328/366/342 IPC against accused Surender and was sent to the Court for trial.
2. Since the offences u/s 376/328 IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the court of Session, after hearing on charge prima facie a case u/s 363/366/376 (2) (f)/328 IPC was made out against the accused. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case in fact prosecution has produced and examined eleven witnesses. As at PW6 two witnesses have been examined; PW6 Dr. Rajender Kumar and PW6 Dr. Shipra Rampal.
4 of 36 5 FIR No. 44/2009 PS S.P. Badli PW1 the prosecutrix, PW2 Smt. Parvesh, PW3 Sh. Vishal Singh, Ld. MM, Delhi, PW4 Sh. Mahesh Kumar, PW5 Rekha, PW6 Dr. Rajender Kumar, Assistant Director, FSL, Rohini, Delhi, PW6 Dr. Shipra Rampal, Radiologist, BJRM Hospital, Delhi, PW7 Dr. Shakuntala Rani, CMO, BJRM Hospital, Jahangirpuri, Delhi, PW8 W/HC Sunena, PW9 Ct. Raj Kishore, PW10 Retd. SI Mohd. Nabi.
5. In brief the witnessography of the prosecution witnesses is under: PW1 Prosecutrix, who deposed regarding the incident and proved her statement u/s 164 Cr.P.C Ext. PW1/A, her recovery memo Ext. PW2/F, arrest and personal search memo of the accused Ext. PW2/B & Ext. PW2/C respectively, disclosure statement of the accused Surender Ext. PW2/D, pointing out memo of the place from where accused Surender had taken the prosecutrix in a rickshaw Ext. PW2/E. PW2 Smt. Parvesh, is the mother of the prosecutrix, who proved 5 of 36 6 FIR No. 44/2009 PS S.P. Badli her report made to the police regarding the taking of her daughter prosecutrix by accused Surender Ext. PW2/A. She also proved the arrest memo and personal search memo of accused Ext. PW2/B, Ext. PW2/C respectively, disclosure statement of accused Ext. PW3/D (also Ext. PW2/D), Pointing out memo of the place from where accused Surender had taken the prosecutrix in a rickshaw Ext. PW2/E, memo regarding the recovery of the prosecutrix Ext. PW2/F (also Ext. PW4/A). She also proved her consent given for the gynaecological examination of the prosecutrix at PointA on the MLC Ext. PW2/G. PW3 Sh. Vishal Singh, Ld. MM, Delhi, who recorded and proved the statement of the prosecutrix u/s 164 of the Cr.P.C Ext. PW3/A (also Ext. PW1/A). His endorsement Ext. PW3/C on the statement of the prosecutrix, identification of the prosecutrix by the IO SI Mohd. Nabi (PW10) vide his endorsement Ext. PW3/B, the application for recording the statement of the prosecutrix u/s 164 Cr.P.C Ext. PW3/A, certificate regarding the correctness of the proceedings Ext. PW3/E and the endorsement regarding sending of the statement in sealed cover to the concerned court Ext. PW3/F. The endorsement regarding the supply of the 6 of 36 7 FIR No. 44/2009 PS S.P. Badli copy of statement Ext. PW3/G. PW4 Mahesh Kumar is the father of the prosecutrix, who deposed regarding the missing of her daughter the prosecutrix. He deposed on the same lines as deposed by her wife PW2 Smt. Parvesh and proved memos from Ext. PW2/B to Ext.2/F and the memo Ext. PW4/A (also Ext. PW2/F) regarding the custody of the prosecutrix given to him, photographs Mark X & X1 having the photographs of her daughter/prosecutrix also.
PW5 Rekha, aged about 8 years is the sister of the prosecutrix whose statement was recorded after putting preliminary questions to her and after testing her competency as a witness being a child witness, who has deposed that on the date of incident she was accompanying her sister, the prosecutrix and when they reached near Dharam Kanta accused slapped her (PW5) and was told by him to return to her house and had taken her sister prosecutrix with him in a rickshaw.
PW6 Dr. Rajender Kumar, Assistant Director, FSL, Rohini, Delhi, who proved the FSL reports Ext. PW6/A & Ext. PW6/B. PW6 Dr. Shipra Rampal, Radiologist, BJRM Hospital, who 7 of 36 8 FIR No. 44/2009 PS S.P. Badli conducted the ossification test of the prosecutrix and opined that the bony age of prosecutrix is between 14 to 16 years and proved the report Ext. PW6/A. PW7 Dr. Shakuntala Rani proved the gynaecological examination of the prosecutrix as was conducted by Dr. Anjali at PointB on MLC Ext. PW2/G, signed by Dr. Anjali at PointC. She further proved the potency report of accused Surender examined by Dr. Neerja at PointA on MLC Ext. PW7/A signed by Dr. Neerja at PointA wherein mentioned as there was nothing to suggest that the patient cannot perform sexual act.
PW8 W/HC Sunena, who joined the investigation on 13.03.2009 with the IO and deposed on the investigational aspects and besides proving the other memos also proved the seizure memo of the exhibits given to her after the medical examination of the prosecutrix seized by the IO vide seizure memo Ext. PW8/A. PW9 Dr. Raj Kishore, who deposed that he handed over the DD No. 18A dated 08.03.2009 Ext. PW9/A to the IO SI Mohd. Nabi (PW10).
8 of 36 9 FIR No. 44/2009 PS S.P. Badli PW10 Retd. SI Mohd. Nabi, is the investigation officer of the case, who deposed on the investigational aspects and besides proving other memos also proved his endorsement Ext. PW10/A on the statement of PW2 Smt. Parvesh, mother of the prosecutrix Ext. PW2/A, site plan Ext. PW10/B, the seizure memos of the sealed pullandas which were given by the doctor after the medical examination of accused Surender Ext. PW10/C and the copy of FIR Ext. PW10/D. The testimonies of the material prosecution witnesses shall be dealt with in detail during the course of the appreciation of the evidence.
6. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
7. Statement of accused Surender was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and did not opt to lead 9 of 36 10 FIR No. 44/2009 PS S.P. Badli any defence evidence.
8. Ld. counsel for the accused submitted that the prosecutrix eloped with the accused on 08.03.2009 at about 9.00 AM and recovered on 13.03.2009 at 7.00 PM. She further submitted that no birth certificate was on record regarding the age determination according to PW6 Dr. Shipra Ram Pal. She further submitted that no fresh injuries or external injuries were seen at the time of medical examination of prosecutrix. She further submitted that the prosecutrix travelled with the accused but nothing was disclosed to any passenger/person, it shows she was in love with the accused and prosecutrix had gone with the accused of her own and she was the consenting party and prayed for the acquittal of the accused.
9. While Ld. Addl. PP for the state, on the other hand submitted that prosecution has proved its case beyond reasonable doubt against the accused.
10. I have heard the Ld. Addl. PP for the State and Ms. Sadhana Bhatia, Ld. Amicus Curiae for the accused and have also carefully perused the entire record.
11. The charge against accused Surender is that on 08.03.2009 at 10 of 36 11 FIR No. 44/2009 PS S.P. Badli about 9.30 AM he kidnapped the Prosecutrix D/o Mahesh (a minor girl aged about 14 years) when she was going to the godown in which she was working from her house no. 487, Gali No. 12, Jeewan Park, Village Siraspur, Delhi, out of lawful guardianship of her father Sh. Mahesh Kumar without his consent and he kidnapped the Prosecutrix with intention or knowledge that she may be forced to illicit intercourse with him and on 08.03.2009 and thereafter in his house at Village Gayani, District Bareli, U.P he forcibly repeatedly raped her by repeatedly administering her certain unknown poison or some stupefying intoxicating or wholesome drug with intent to commit an offence knowing it to be likely that he will thereby cause hurt to her.
AGE OF PROSECUTRIX:
12. PW1 prosecutrix has proved her statement recorded on 16.03.2009 u/s 164 Cr.P.C Ext. PW1/A (also Ext. PW3/B) in which she has stated her age to be 14 years in the preliminary questions put to her. PW2 Smt. Parvesh, mother of the prosecutrix in her examination in chief has deposed that the age of the prosecutrix as about 14 years. PW4 Sh. Mahesh Kumar, father of the prosecutrix in his examination in chief has deposed that the prosecutrix was 13 years of age at that time. PW6 Dr. Shipra Rampal, 11 of 36 12 FIR No. 44/2009 PS S.P. Badli Radiologist, BJRM Hospital has deposed that she has seen the XRay plates of both elbow, both shoulders both wrists and pelvis AP view of the prosecutrix who was referred to BJRM Hospital for bone age estimation. She has further deposed that after going through the XRay plates she has given the report regarding the bone age of the prosecutrix is between the 14 to 16 years. Her report is Ext. PW6/A signed by her at PointA. From above, it is clearly indicated that PW6 Dr. Shipra Ram Pal has opined the age of PW1 prosecutrix already giving benefit of margin of two years i.e more than 14 years and less than 16 years.
There is nothing in the crossexamination of PW1 prosecutrix, PW2 Smt. Parvesh, mother of the prosecutrix, PW3 Sh. Mahesh Kumar and PW6 Dr. Shipra Rampal, Radiologist, so as to impeach the creditworthiness of the said witnesses.
The deposition made by PW2 Smt. Parvesh, PW4 Sh. Mahesh Kumar regarding the age of the prosecutrix and by PW1 prosecutrix in her statement u/s 164 Cr.P.C Ext. PW1/A, (also Ext. PW3/A) is also sufficiently corroborated by the bone age opinion given by PW6 Dr. Shipra 12 of 36 13 FIR No. 44/2009 PS S.P. Badli Rampal. In the circumstances, the age of the prosecutrix was between 14 to 16 years on the date of the incident. Undisputably, no evidence to the contrary has been proved and led by the accused on the record.
In the circumstances, it stands established on the record that the prosecutrix was aged about 14 to 16 years on the date of incident and thus was a minor.
VIRILITY OF ACCUSED SURENDER:
13. PW7 Dr. Shakuntala Rani, CMO, BJRM Hospital, Jahangirpuri, Delhi, has deposed that accused Surender was examined by Dr. Neerija about his potency and she proved the report of Dr. Neerija at PointA on the MLC Ext. PW7/A signed by Dr. Neerija at PointA and as per the report there was nothing to suggest that the patient/accused Surender cannot perform sexual act.
There is nothing in the crossexamination of PW7 Dr. Shakuntala Rani so as to impeach her creditworthiness on the aspect of the potency of accused Surender.
13 of 36 14 FIR No. 44/2009 PS S.P. Badli In view of above, it stands clearly established on the record that accused Surender was capable of performing sexual intercourse.
MEDICAL EVIDENCE:
14. PW7 Dr. Shakuntala Rani, CMO, BJRM Hospital, Jahangirpuri Delhi in her examination has deposed that prosecutrix had come to the hospital on 13.03.2009 and after her initial examination she was referred to S.R Gyane. Dr. Anjali examined her and gave her expert opinion at PointB on MLC Ext. PW2/G signed by her at PointC. She has further deposed as per abdominal examination there was no (fresh) external injury of the patient. On local examination per vagina - no external injury of external genetalia, hymen was torn, admitting one finger, no bleeding. Her vaginal smear was taken from posterial fornix, slide made and handed over to the police. Patient was advised for long bone XRay for age determination. Patient's salwar was also seized and handed over to the police after sealing.
There is nothing in the crossexamination of Dr. Shakuntala Rani so as to impeach her creditworthiness on the gynaecological opinion given 14 of 36 15 FIR No. 44/2009 PS S.P. Badli by Dr. Anjali.
BIOLOGICAL AND SERIOLOGICAL EVIDENCE:
15. As per FSL Report Ext. PW6/A the description of articles contained in parcel and the results of analysis reads as under: DESCTRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel 'A1' : One sealed cloth parcel sealed with the seal of "MS BJRMH J PURI DELHI" containing exhibits 'A1a' & 'A1b'. Exhibit 'A1a' : Two microslides having faint whitish smear. & 'A1b' Parcel 'A2' : One sealed cloth parcel sealed with the seal of "MS BJRMH J PURI DELHI" containing exhibit 'A2'.
Exhibit 'A2' : One salwar having dirty stains. Parcel 'B1' : One sealed cloth parcel sealed with the seal of "MS BJRMH J PURI DELHI" containing exhibit 'B1'.
Exhibit 'B1' : One pants.
Parcel 'B2' : One sealed cloth parcel sealed with the seal of "MS BJRMH J PURI DELHI" containing exhibit 'B2'.
15 of 36 16 FIR No. 44/2009 PS S.P. Badli Exhibit 'B2' : Dark brown foul smelling liquid described as 'Blood sample'.
Parcel 'B3' : One sealed cloth parcel sealed with the seal of "MS BJRMH J PURI DELHI" containing exhibit 'B3'.
Exhibit 'B3' : Yellowish, white, viscous, foul smelling liquid described as 'Semen'.
RESULTS OF ANALYSIS
1. Blood was detected on exhibit 'B2'.
2. Blood could not be detected on exhibits 'A2' & 'B1'.
3. Human semen was detected on exhibit 'A2'.
4. Semen could not be detected on exhibits 'A1a', 'A1b' & 'B1'.
5. XX XX XX As per FSL Report Ext. PW6/B the serological analysis reads as under:
Exhibits Species of ABO
Origin Grouping/Remarks
Blood Stains:
16 of 36
17 FIR No. 44/2009
PS S.P. Badli
'B2' Blood sample Sample blood putrefied hence no opinion.
Semen Stains:
'A2' Salwar No reaction
'B3' Semen sample Sample semen putrefied hence no opinion.
On careful perusal and analysis of the biological and serological evidence on record as reproduced and discussed hereinabove it clearly indicates: absence of human semens on Ext. A1a, A1b (of the prosecutrix) and B1(of the accused).
Human semen was detected on Ext A2 on the salwar, of the prosecutrix but after the serological analysis species of origin could not be detected and the ABO grouping gave 'no reaction'.
The incident is of 8.03.2009 and the prosecutrix was recovered by the police on 13.3.2009 vide recovery memo Ext. PW2/F. Thus, in the meantime, the prosecutrix must have answered the call of the nature and took bath resulting in destruction of corroborating evidence, as indicated by the FSL report Ext. PW6/A, of nondetection of human semen on exhibits 17 of 36 18 FIR No. 44/2009 PS S.P. Badli 'A1a', 'A1b', as detailed hereinabove.
16. Now let the testimonies of PW1 prosecutrix, PW2 Smt. Parvesh, mother of the prosecutrix, PW4 Sh. Mahesh Kumar, father of the prosecutrix and PW5 Rekha, sister of the prosecutrix be perused and analysised.
PW1 prosecutrix in her examination in chief has deposed which is reproduced and reads as under: "At the relevant time, I alongwith my mother Parvesh and my grandmother Leelawati used to do the job of cleaning Chana and Rajma at a godown nearby my said house. Accused Surender present in the court today (correctly identified) used to run a machine in the said godown.
On 08.03.2009, at about 9.00 am, I alongwith my sister Rekha was going towards the said godown bearing no. 3 on foot from my said residence. On the way, accused Surender met me and asked to accompany him which I complied. My sister Rekha also wanted to accompany me as she used to daily accompany me to my workplace. However, the accused Surender did not want Rekha to accompany and slapped her and asked her to go back to the house. My sister Rekha left crying. The accused asked me to sit in a rickshaw to which I protested but he forced me and threatened me to beat me and accordingly the accused forcibly made me to sit in a cycle 18 of 36 19 FIR No. 44/2009 PS S.P. Badli rickshaw and took me to by pass GT Karnal Road, Delhi. On my asking, he told that he was taking me for roaming/Ghumanafeerana. At bypass GT Karnal Road Delhi, the accused offered me and made me eat "Pakodi" due to which, I started feeling some dizziness and giddiness and also felt some unconsciousness as well.
Thereafter, the accused stopped an auto rickshaw/tempo and took me to Anand Vihar, Delhi. Thereafter, from Anand Vihar, he took me in a bus but I asked him as to where he was taking me for which accused stated that after some time he bring me back at which point of time also I was feeling some unconscious. When I regained consciousness, I found myself at a roadside Dhaba and from one person at Dhaba on enquiry, I came to know that it was Bareilly U.P. and the buses which were plying on the road seemed to be of U.P. Roadways. I asked the accused as to why he had brought to Bareli to which he threatened me that I should keep mum else he would beat/kill me so out of fear I did not raise any noise. We had taken breakfast/meals at the Dhaba as it was early hours of the morning. From there he took me in a house situated at village namely "Gaina" U.P. He kept me there and he used to provide me some rice to eat which was mixed up with some intoxicating substances and after consumption, I would loose my senses. The accused did Galat Kaam with me after undressing himself and me to which I opposed and cried but accused did not pay any heed. He did Galat kaam with me for three days. By galat kaam I mean that the accused would insert his male organ/penis into my vagina. He would also put a chunni on my eyes and would tie my hands with the cot. When I repeatedly requested accused to leave me to my house and he refused then I told her that I would go on my own thereafter accused took me back and when we reached at GT Karnal Bypass, Delhi, my father, mother and some police officials met me and the accused was apprehended. My statement was also 19 of 36 20 FIR No. 44/2009 PS S.P. Badli recorded by Ld. MM in the court and the same is Ex. PW1/A signed by me at PointA."
From the aforesaid narration of PW1 prosecutrix it is clearly indicated that on 08.03.2009 at about 9.00 AM when prosecutrix alongwith her sister Rekha (PW5) was going towards the godown on foot from her residence, on the way accused met her and asked to accompany him which she complied as accused was also working in the same godown and used to ran a machine in the said godown. Her sister Rekha (PW5) also wanted to accompany her as she (Rekha) used to accompany her to her work place but the accused did not want Rekha to accompany and slapped her (Rekha) and asked her (Rekha) to go back to the house. Her sister left crying. The accused forced the prosecutrix to sit in a cycle rickshaw with a threat to beat her despite her protest and took her to bypass G.T. Karnal Road, Delhi, on the pretext of roaming and at bypass G.T. Karnal Road offered her to eat "Parkroi" due to which she started feeling some dizziness and giddiness and also felt some unconsciousness. On regaining consciousness and finding her at Bareilly, U.P at a roadside dhaba, the prosecutrix asked accused as to why he had brought to Bareilly. On which he threatened her to keep mum else he would beat/kill her so out of fear she did not raise any noise. Accused took her in a house at village 'Gaina', U.P. where he kept her there and he used to 20 of 36 21 FIR No. 44/2009 PS S.P. Badli provide her some rice to eat mixed with some intoxicating substances after consumption of which she would loose her senses and thereupon accused committed rape upon her for three days after undressing her and himself and after putting a chunni on her eyes and tying her hands with cot, despite opposition and crying by the prosecutrix to which he did not pay any heed.
During her crossexamination PW1 prosecutrix has admitted that four photographs shown to her Mark A, B, C & D are that of her and volunteered that the girl shown in photographs MarkA had taken her to get her photograph with her but accused was already there and he got the photographs clicked with her despite her refusal. She negated the suggestions that her parents tutored her to depose against the accused or that she was having affair with the accused and he never taken her at any place and not even raped her.
Inspite of incisive crossexamination of PW1 prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box, she has withstood the test of cross examination and her testimony is consistent throughout.
21 of 36 22 FIR No. 44/2009 PS S.P. Badli The testimony of PW1 Prosecutrix on perusal and analysis is found to be natural clear, cogent, convincing, trustworthy and inspires confidence. There is nothing in her statement to suggest that she had an animus against the accused to falsely implicate him in the case.
The testimony of PW1 prosecutrix has been corroborated with regard to her taking by accused, by PW5 Rekha, sister of the prosecutrix. PW5 Rekha in her examinationinchief has deposed that she used to accompany her sister to the godown where she was working. Her mother was also going to the godown later on as she was also working there. She has further deposed that on the day of incident when they reached near Dharam Kanta the accused met them, slapped her (PW5) and told her to return to her house and had taken her sister/prosecutrix with him in a rickshaw. She has further deposed that after returning to the house she had narrated all the facts to her mother. She does not remember the date and the year.
There is nothing in the crossexamination of PW5 Rekha so as to impeach her creditworthiness. During her crossexamination she negated the suggestion that she is deposing falsely at the instance of her parents.
22 of 36 23 FIR No. 44/2009 PS S.P. Badli PW2 Smt. Parvesh, mother of the prosecutrix and PW4 Sh. Mahesh Kumar, father of the prosecutrix have deposed regarding the missing of their daughter/prosecutrix and on the aspects of investigation which they joined. Nothing material has been elicited in their crossexamination so as to impeach their creditworthiness. PW2 Smt. Parvesh negated the suggestions that the accused had not kidnapped/abducted the prosecutrix or raped her or that she is deposing falsely. PW4 Sh. Mahesh Kumar, father of prosecutrix negated the suggestion that he is deposing falsely or that accused has been falsely implicated in this case.
17. As far as the plea of the Ld. Counsel for accused that the prosecutrix eloped with the accused as she was in love with him and was the consenting party and for this reason she did not disclose to any passenger/person that she has been kidnapped, on the way when travelled with the accused, is concerned is found to be without any substance.
When a minor girl is made to sit in a cycle rickshaw with a threat to beat her despite her protest and was taken to Bypass G.T. Karnal Road, 23 of 36 24 FIR No. 44/2009 PS S.P. Badli Delhi on the pretext of roaming and on the Bypass G.T. Karnal Road the minor girl is made unconscious by offering to eat "Pakroi" containing a stupefying substance due to which she started feeling some dizziness and giddiness and also felt some unconsciousness, one is left wandering as to how it is expected that she would gather courage in such adverse circumstances to raise hue and cry and disclose to any passenger or person. Even otherwise, if she was a consenting party as contended then where was the necessity of making her unconscious by offering stupefying substance laced 'Pakroi'. PW1 prosecutrix in her examinationinchief has categorically deposed that the accused forced her to sit in a cycle rickshaw with a threat to beat her despite her protest and took her to G.T. Karnal Road bypass, Delhi on the pretext of roaming/ghumanafeerana and at the bypass G.T. Karnal Road offered her to eat 'Pakroi' due to which she started feeling some dizziness and giddiness and also felt some unconsciousness.
Further failure on her part to raise hue and cry while being taken to Bareilly U.P and village 'Gaina', U.P. the reason for the same has been explained by the prosecutrix in her examinationinchief when she deposed that On regaining consciousness and finding her at Bareilly, U.P at a roadside dhaba, the prosecutrix asked accused as to why he had brought her to Bareilly. On which he threatened her to keep mum else he would beat/kill 24 of 36 25 FIR No. 44/2009 PS S.P. Badli her so out of fear she did not raise any noise. Accused took her in a house at village 'Gaina', U.P. where he kept her there and he used to provide her some rice to eat mixed with some intoxicating substances after consumption of which she would loose her senses and thereupon accused committed rape upon her for three days after undressing her and himself and after putting a chunni on her eyes and tying her hands with cot, despite opposition and crying by the prosecutrix to which he did not pay any heed.
Ld. Counsel for the accused referred to the cases, and reported as
1). Jasmeer Singh Vs. State of Haryana 2003 (1) CC cases (HC) 108, 2). Naresh Kumar Vs. State of Punjab 2004 (3) C.C. Cases (HC) 140, 3). Roshan Khan & Ors. Vs. State of Rajasthan 2004 (1) C.C. Cases (HC) 176,
4). Bhira Singh & Anr. Vs. State of Haryana 2007 (4) C.C. Cases (HC) 449. I have carefully gone through the same. Jasmeer Singh's case (Supra) and Naresh Kumar's case (Supra), pertain to the aspect that the prosecutrix was in love with the accused and regarding the age of the prosecutrix. Roshan Khan's case (Supra) and Bhira Singh's case (Supra) pertain to the aspect of the age of the prosecutrix. With due respect the cases referred to are wholly distinguishable in view of the peculiar facts & nature of evidence adduced in the instant case and do not render any assistance to the accused. In case 25 of 36 26 FIR No. 44/2009 PS S.P. Badli titled, Sunil Kumar Vs. State 181 (2011) DLT 528 (DB), it was held by the Hon'ble Division Bench of the Delhi High Court that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, the decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage.
In the circumstances, it does not lie in the mouth of the accused to contend that the prosecutrix eloped with the accused as she was in love with him and was a consenting party and there was failure on her part to raise a hue and cry.
18. In view of above and in the circumstances, I am of the considered opinion that the prosecution has categorically proved beyond shadows of all reasonable doubts that PW1 prosecutrix, a minor girl of age about 14 years was kidnapped by accused Surender after offering her and made her to eat pakori containing some stupefying intoxicating substance due to which she felt dizziness and giddiness and 26 of 36 27 FIR No. 44/2009 PS S.P. Badli unconsciousness, from her lawful guardianship without consent of her guardian, knowing that she will be forced to illicit intercourse by him.
I accordingly, hold accused Surender guilty for the offences punishable u/s 363/366/328 IPC and convict him thereunder.
19. As far as the part of the testimony of PW1 prosecutrix that the accused did 'galat kam' with her after undressing himself and her to which she has opposed and cried but accused didn't pay any heed. He did 'galat kam' with her for three days. By 'galat kam' she means that accused would insert her male organ (penis) in her vagina. He would also put a chunni on her eyes and would tie her hands with the cot. When she repeatedly requested accused to leave her to her house and he refused then she told him that she will go of own, thereafter, accused took her back and when they reached at G.T. By Pass Delhi, her father, mother and some police officials met them and accused was arrested. Her statement was also recorded in the court Ext. PW1/A (also Ext. PW3/D) signed by her at PointA, is concerned, the same besides being found to be in consonance with her statement recorded u/s 164 Cr.P.C Ext. PW1/A, is also found to be 27 of 36 28 FIR No. 44/2009 PS S.P. Badli natural, clear, cogent, convincing and trustworthy and also corroborated by the material on the record. In the witness box, she has withstood the test of crossexamination and her testimony is consistent throughout.
20. While analysing the testimonies of PW1 Prosecutrix, her mother PW2 Smt. Parvesh, her father, PW4 Sh. Mahesh Kumar and her sister PW5 Rekha as discussed hereinabove, inspite of incisive crossexamination nothing has come out in the statements of PW1 Prosecutrix, PW2 Smt. Parvesh, PW4 Sh. Mahesh Kumar and PW5 Rekha which may throw a slightest doubt on the prosecution version of the incident. Though the suggestion by defence to PW1 Prosecutrix regarding tutoring by her parents to depose against the accused, and the suggestion to PW2 Smt. Parvesh and PW4 Sh. Mahesh Kumar regarding deposing falsely and false implication of accused in the case and the suggestion to PW5 Rekha regarding deposing falsely at the instance of her parents, have been put which have been denied by the said PWs, but the same has not at all being made probable much established by any evidence. Further there is no iota of evidence or even a suggestion that the accused has been falsely implicated because of animosity.
It is now well settled principle of law that conviction for rape can 28 of 36 29 FIR No. 44/2009 PS S.P. Badli be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. (Ref. State of H.P. Vs. Asha Ram AIR 2006 SC 381).
Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].
In view of above and in the circumstances, I am of the considered opinion that prosecution has proved beyond shadows of all reasonable doubts that accused Surender forcibly repeatedly committed rape upon the prosecutrix, a minor girl of age about 14 years after 29 of 36 30 FIR No. 44/2009 PS S.P. Badli undressing her and himself and after putting a chunni on her eyes and tying her hands with cot, despite opposition and crying by her to which he did not pay any heed.
I accordingly, hold accused Surender guilty for the offence punishable u/s 376 IPC and convict him thereunder.
21. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Surender in the commission of the offences u/s 363/366/328/376 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Surender beyond Shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Surender guilty for the offences punishable u/s 363/366/328/376 IPC and convict him thereunder.
Announced in the open Court today on 3rd Day of month of August, 2012 (MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
30 of 36 31 FIR No. 44/2009 PS S.P. Badli IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI Sessions Case No. : 183/09 Unique ID No. : 02404R0122232009 State Vs. Surender S/o Late Sh. Sohan Lal R/o H. No. B17, Gali No. 7, 80 Ganj Colony, Jeevan Park, Siras Pur, Delhi.
FIR No. : 44/2009 Police Station : S. P.Badli Under Sections : U/S 363/376/328/366/342 IPC ORDER ON SENTENCE : 1. Vide my separate detailed judgment dated 03.08.2012
accused Surender has been convicted for the offences punishable
31 of 36 32 FIR No. 44/2009 PS S.P. Badli u/s 363/366/328/376 IPC.
2. Ms. Sadhana Bhatia, Ld. Amicus Curiae for convict Surender submitted that the convict Surender is aged about 23 years and is unmarried and was working as a labour. She further submitted that his father has expired and is having the aged mother to lookafter. He is having five bothers out of which two are married and three are unmarried and has one sister who has since been married of. She further submitted that he is a poor person and is not a previous convict and is running in JC since 14.03.2009. She further submitted that he is not involved in any other case and is the victim of circumstances and is having clean antecedents and his conduct during the course of trial was very cooperative and prayed for leniency.
3. On the other hand, Ld. Addl. PP for state submitted that convict be dealt with strictly and severest punishment be given to deter him from committing the same offence in future and no leniency be shown to him. He further submitted that the accused had committed very serious and grave offences of committal of rape on a minor girl aged about 14 years after kidnapping her and of the administration of stupefying intoxicating substance.
32 of 36 33 FIR No. 44/2009 PS S.P. Badli
4. I have heard the Ld. APP for the state and the Ld. Counsel for the convict Surender at length on the quantum of sentence. Prosecutrix a minor girl of aged about 14 years was kidnapped by convict Surender after offering her to eat 'pakroi' containing a stupefying or intoxicating substance due to which she felt dizziness and giddiness and unconsciousness, from her lawful guardianship without consent of her guardian, knowing that she will be forced to illicit intercourse by him. He forcibly repeatedly committed rape upon her after undressing her and himself and after putting a chunni on her eyes and tying her hands with cot despite opposition and crying by her to which he did not pay any heed.
5. It has been held by the Hon'ble Apex Court in Sahdev Vs. Jaibar @ Jai Dev & Ors. 2009 V AD (S.C.) 515 that: "After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task".
33 of 36 34 FIR No. 44/2009 PS S.P. Badli
6. It has been held in State of Karnataka Vs. Murlidhar 2009 IV AD (S.C.) 1 that: "The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
7. In Mulla and another Vs. State of Uttar Pradesh (2010) 3 SCC 508, after considering various earlier decision, the Hon'ble Supreme Court held as under: "It is settled legal position that the punishment must fit the crime. It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to improse such punishment. As a measure of social necessity and also as a means of deterring other potential 34 of 36 35 FIR No. 44/2009 PS S.P. Badli offenders, the sentence should be appropriate befitting the crime".
8. Having regard to all the facts and circumstances of the case coupled with the submissions made on behalf of the convict, I am of the considered opinion that the ends of justice can be met by sentencing convict Surender to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs. 5,000/ in default thereof to further undergo Rigorous Imprisonment for a period of one year u/s 363 IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs. 5,000/ in default thereof to further undergo Rigorous Imprisonment for a period of one year u/s 366 IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs. 5,000/ in default thereof to further undergo Rigorous Imprisonment for a period of one year u/s 328 IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs. 10,000/ in default thereof to further undergo Rigorous Imprisonment for a period of two years u/s 376 IPC. All the substantive sentences shall run concurrently. The period already undergone by the convict Surender during the inquiry/investigation/trial of this case shall be set off under section 428 Cr.P.C.
35 of 36 36 FIR No. 44/2009 PS S.P. Badli A copy of judgment as well as that of order on sentence be given to the convict free of costs.
Announced in the open Court today on 7th Day of month of July, 2012.
(MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
36 of 36