Delhi District Court
State vs . (1) V. Mathew Raj Anthony on 18 January, 2010
1 S/v V. Mathew Raj (2) Devender
IN THE COURT OF SHRI. S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
SESSIONS CASE NO. 258/2009
State Vs. (1) V. Mathew Raj Anthony
S/o Vincent Raj
R/o H.No.254, Gali No.2, Village
Munirka, New Delhi
(2) Devender Singh @ David
S/o Surender Singh
R/o 115A, Village Munirka, New Delhi
FIR No. 16/2008
Police Station Vasant Vihar
Under Section 376/506 IPC
Date of Institution
in the Sessions Court : 07/05/08
Date of Institution
in this Court : 30/03/09
Date when arguments
here heard : 23/11/09, 26/11/09,02/01/2010,
06/01/2010 and 08/01/2010
Date of Order : 11/01/2010
JUDGMENT
The SHO of police station Vasant Vihar has challaned the 2 S/v V. Mathew Raj (2) Devender accused persons V. Mathew Raj Anthony and Devender @ David to face trial for the offences under Sections 376/506 IPC. After supplying copies of documents and compliance of provisions of under Section 207 Cr.PC case is committed by learned Metropolitan Magistrate to the Court of Sessions under Section 209 Cr.PC. Keeping in view the provisions of Section 228 (A) IPC and the dicta of the Hon'ble Supreme Court in State of Karnataka Vs. Puttraja (2004 (1) SCC 475) and Om Prakash Vs. State of Uttar Pradesh 2006 Cri.L.J. 2913 the name of prosecutrix is being not given in the judgment.
BRIEF FACTS OF THE CASE The prosecution case, in brief, is that on 15/01/2008 Woman ASI Kailash was present in the Police Station Vasant Vihar. The prosecutrix came to the Police Station with her father Sh. Subhash Chand Sharma and gave her statement to the Woman ASI Kailash that she was th 15 years old and was studying in 9 class. One Mathew Raj Anthony Raj st was tenant on 1 Floor in their house from the period 2000 to 2002 and 3 S/v V. Mathew Raj (2) Devender again during the period of 2005 to 2007. She used to call him 'Bhaiya' (Brother). Slowly he started rubbing his hands on her cheeks and he told that those days all persons are hugging and kissing and it does not matter. She used to call accused Mathew Raj a 'Chhakka' and when she realized that she should not call him 'Chhakka' she went to him to say him sorry and accused stated her that simple sorry would not work and she would have to accept his hug and kiss. Then he stated that he had already kissed her, then they should go for sex, no harm will be done as he would use protective measures, despite her refusal against her wishes, the accused had sexual intercourse with her and threatened her that if she would tell about it to anybody he would kill her and her family members. Thereafter, accused Mathew Raj had sexual intercourse with her several times and he stated that prosecutrix would have to agree for sex with his friend which annoyed her. Thereafter, she left talking with accused Mathew Raj and due to fear she did not tell about the incident to her family members and accused Mathew Raj vacated house in November, 2007. After that he 4 S/v V. Mathew Raj (2) Devender used to meet her outside and used to threaten her. She dared and told about the incident to her father who brought her to the police station for lodging the report. Woman ASI Kailash made endorsement on the statement of prosecutrix on the basis of which FIR was lodged, in this case, under Section 376/506 IPC, the prosecutrix gave another statement on that date i.e. 15.01.08 alleging the commission of rape by coaccused Devender @ David. The investigation was done. The site plan was prepared by the Investigation Officer. The accused persons were arrested, statements of prosecutrix/her parents and other witnesses under Section 161 Cr.PC were also recorded. The medical examination of prosecutrix and both accused were got done. The disclosure statement of accused persons were recorded. The accused persons were arrested. The copy of the birth certificate of prosecutrix was obtained and on completion of investigation the challan was prepared against the accused persons by the Investigation Officer which was filed in the Courts as referred before. CHARGES AND PLEA OF ACCUSED PERSONS 5 S/v V. Mathew Raj (2) Devender The prima facie case for the offences under Sections 376/506 IPC was found made out against the accused persons so the charges were framed accordingly against them on 24.05.08 to which the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case, the prosecution has examined 15 witnesses in all. The brief statements relevant to the charge of the witnesses are given below.
PW1 is the prosecutrix, who stated that on 15.4.07, she used to call accused Mathew as Chakka thereafter she realised that it was not proper and on that day she went to him to say sorry to him. Accused Mathew then present in the court used to reside as a tenant in the same building where they used to reside and which is owned by her father. Accused told her that simple sorry will not suffice and he demanded from her hug and kiss but she refused for the same. Next day, she again went to his room to say sorry and he forced her for hugging and kissing. On that 6 S/v V. Mathew Raj (2) Devender she started crying. Accused told her that since he had kissed her, therefore, she should have sex with him but she refused him for sex and she told him that it will be too much. Thereafter, the accused said to her that this is not a big issue and it is a normal thing. Thereafter, he made her understand and he had also shown her some prone movies. He also told her that if any wrong thing would happen with the sex he shall manage that by providing medicines and he can manage the abortion. Initially, she refused to accept the same but thereafter he started emotionally black mailing her by saying that he will not talk to her though they were friends. He gave her so many examples of other girls in order to get her consent. Accused introduced his some more friends to her. Thereafter, the accused insisted her to have sex with his Sikh friend on the pretext that he was going to be married so he wanted some training. Accused Mathew had a sexual intercourse with her on the eve of his birthday somewhere in the month of August, 2007. Thereafter, he also had sexual intercourse with her twice or thrice but she did not remember the exact date of committing 7 S/v V. Mathew Raj (2) Devender sexual intercourse with her.
After some days, a telephone call was made by accused Mathew and he stated that one of his friends, namely, David wanted to come for sexual relation with her. Accused Mathew Raj and David came in the tenanted room of the accused Mathew Raj in the night. Both the accused called her in said tenanted room by putting pressure emotionally. They were highly drunk. They offered smoke and drink which she refused.
On 23.12.07, accused David came at Tagore International School and he took her to McDonald near Priya Cinema, Vasant Vihar at around 8 am. They sat in the McDonald for a short while. She did not know as to where accused David would take her from Donnald. On the way accused David told her that she was being taken to Simon's place. They reached Simon's house. Both David and Simon took out liquor and offered to her also but she did not take liquor but she took the juice. David and his office friends were going to Goa. But she informed him that she did not have any passport. David told her that he will arrange her ticket for 8 S/v V. Mathew Raj (2) Devender Goa. But she refused to go to Goa as her examinations were to be commenced in February, 2008.
One day accused David came there and took her to his room in Munirka. Accused David had sex with her in his room. Accused David asked her if she was having any friend who may join him. But she refused saying that she have no such friend. After some time the room mate of accused David came there and told her to leave his room. He dropped her near Uddupi Restaurant, Munirka. She reached back at her house. After that accused David used to telephone her but she stopped attending the said phones.
PW2 is Dr. Shamma Kapoor, Senior Resident, Obs and Gynae, Safdarjung Hospital who has stated that she examined prosecutrix aged 15 years on 15/01/08 who gave history of rape by a man named Mathew who was their tenant and his friend for at least 4 to 5 times in the month of August, September and October, 2007. She proved MLC as Ex.PW2/A and the OPD slip of Namita Ex.PW2/B. 9 S/v V. Mathew Raj (2) Devender PW3 is Ct. Rama Krishan who has stated that on 18/01/2008 accused Devinder Singh @ David, then present in the court was taken to Safdarjung Hospital for medical examination where he was examined by the doctor and after medical examination MLC of the accused and one report and exhibits in sealed condition were given along with sample seal of the hospital which were produced before the IO and were taken by him into possession vide memo Ex.PW3/A. Thereafter, accused was produced before the court and was remanded to the judicial custody and thereafter accused was put in New Delhi lock up at Patiala House Courts.
PW4 is Ct. Mahesh Chand who in his examinationinchief has stated that on 15/01/08 four sample seal of Safdarjung Hospital were deposited with CFSL, Rohini and receipt copy was handed over to the MHC (M). Witness was cross examined by learned Addl. Public Prosecutor as he was resiling from his previous statement. In the cross examination he denied that he had deposited the sample on 18/02/2008 and volunteered he had deposited the samples on 15/01/2008 and again 10 S/v V. Mathew Raj (2) Devender said, he had deposited the samples on 18/02/2008. He was on on the night duty upto 5.00 am., because of this reason he could not tell the correct date i.e. 18/02/2008.
PW5 is Subhash Chand Sharma, father of the prosecutrix. He has stated that he is owner of H. No. 1B, Vasant Village. His wife and his daughter used to reside in the house at the time of incident and he was residing in Lucknow as he was working there with NPCC as Assistant Administrative Officer, Ministry of Water Resources. He has stated that accused Mathew used to reside in his house in the year 2000 till 2002 alongwith his parents and his maternal uncle. Thereafter they went and again came to reside at his above house in the year 2005. Two rooms of his house on the second floor were given to them on rent. His wife Saroj Bala Sharma used to supervise the construction of his side house as she was house wife and his daughter used to remain alone during that period whenever his wife used to be away for the above said purpose and accused Mathew and accused David, then present in the court, took 11 S/v V. Mathew Raj (2) Devender advantage of this fact that his daughter used to stay alone and they both had raped his daughter which fact was told to him by his daughter when he came back to Delhi in the year 2008 in the month about February. Before his arrival to Delhi, in the month about February, 2008, about one week prior to his arrival the parents of the accused Mathew had vacated his house with his family including the accused Mathew and they shifted to nearby Munirka village. He received a call from mobile Number, the number of which he did not remember then though the same was written with him and which he could produce and the said number had also been shown by him to the SHO, PS Vasant Vihar and the said number had also been written in his complaint. The caller of the said phone demanded Rs. 11 lac other wise they will display the C.D. of rape of his daughter, made by them to the villagers. A computer was installed in the house of accused Mathew during their stay in his house as tenant. Thereafter, he lodged a complaint with police. His daughter also told him that both the accused persons namely Mathew and David, then present in the Court had raped 12 S/v V. Mathew Raj (2) Devender her forcibly and also threatened her that they would kill her and her entire family if she dared to disclose this fact of rape to anybody. The accused persons also blackmailed him by demanding Rs. 11 lac or else they will display the C.D. of rape of his daughter. He was also informed by his daughter that accused persons wanted to take his daughter to Goa and only then his daughter disclosed the factum of rape by accused persons on her. The accused persons were having forcible rape with his daughter since last about 11½ year prior to the date when he was informed by his daughter, as she had been threatened to be killed by accused persons and they had also threatened that they will kill his son also if she disclosed this fact to anybody. Accused David is friend of accused Mathew and he used to come to the house of Mathew to see him and on being inquired by him about the purpose of his visit to the house of Mathew, he was told by Mathew that he was learning operation of computer by David. The witness proved the arrest memo of accused Mathew Raj and David (Devinder) Ex.PW1/C and Ex.PW1/E and the personal search memos of the accused 13 S/v V. Mathew Raj (2) Devender persons as Ex.PW1/G and Ex.PW1/F. The witness was cross examined by learned Addl. Public Prosecutor as he was resiling from his earlier statement. In the cross examination he identified his signatures on the document Ex.PW1/B. PW6 is Ms. Saroj Bala Sharma, the mother of the prosecutrix. She has stated that her daughter was aged 1415 years in the year 2008 th and was student of class 9 . The prosecutrix was residing with her. They were constructing another house in the same street just two houses ahead of her house and she used to go to look after the construction work of their new house after her daughter Namita used to go to school. When her husband came to Delhi in 2008 the prosecutrix told him that both the accused had developed "Galat Sambandh" ( physical relationship ) with the prosecutrix.
PW7 is Dr. Yogesh Tyagi who conducted the medical examination of accused Devender Singh and proved his report Ex.PW7/A. PW8 is Dr. Ajay Kumar who conducted medical examination of 14 S/v V. Mathew Raj (2) Devender accused V. Mathewraj and proved the report Ex.PW8/A. PW9 is HC Ishwar Singh. He has stated that as per Malkhana Register No. 19, the exhibits were deposited in the Malkhana by Woman ASI Kailash on 16/01/08, 18/01/08 and on 18/02/08. He sent the exhibits of this case (four exhibits) two sealed with the seal of Safdarjung Hospital & two sealed with the seal of Department of Forensic Medicine, Safdarjung Hospital, New Delhi along with the sample seal vide RC No. 89/21/07 through Ct. Mahesh Chand to deposit in FSL, Rohini, New Delhi. He also proved the copy of the Register No. 19 containing relevant entries as Ex.PW10/A, A1 to A4 and copy of RC Ex.PW10/A5, copy of the receipt of FSL Ex.PW10/A6.
PW 10 ASI Sunita, No. 4769 D, Police Station Vasant Vihar. She has stated that on 15/01/08, she received a rukka by ASI Kailash at about 1.45 p.m. for registration of FIR. She had registered the said FIR on DD No. 20 A, case FIR No. 16/08 u/s 376/506 and she handed over the rukka to ASI Kailash, after registration of FIR Ex.PW10/1. The rukka was 15 S/v V. Mathew Raj (2) Devender already exhibited PW1/A. PW11 Ct. Rajender Kumar, No. 834, Police Station Vasant Vihar. He has stated that on 15/01/08 he was posted in the Police Station Vasant Vihar and he was associated with the ASI Kailash in the investigation of FIR No. 16/08 u/s 376/506 IPC. He went to Sufdarjang Hospital with ASI Kailash and prosecutrix of this case for medical examination of the prosecutrix. IO has also recorded his statement on that day. On the identification of the parents of prosecutrix Namita ASI Kailash arrested accused V Mathewraj then present in the Court, in his presence. The doctor handed over two pulandas and one sample seal which was taken into possession by IO ASI Kailash vide memo Ex. PW1/B. On 16/01/08, accused V Mathewraj was taken from lockup of Police Station Vasant Vihar and was interrogated by IO and his disclosure statement Ex.PW11/A was recorded. Thereafter, accused V. Mathewraj was taken to Saffdarjang Hospital for his medical examination. After his medical examination doctor gave one pulanda and one seal which was 16 S/v V. Mathew Raj (2) Devender taken into possession by the IO vide memo Ex.PW11/B. Thereafter, the accused was taken to the court of Ld. MM by the IO and on the request of the IO the LD. MM gave one day police remand of accused Mathew to IO. He was also with IO and accused Mathew during police remand. The accused Mathew took the IO here and there and during the police remand the co accused could not be arrested.
On 17/01/08, coaccused Devender who was then present in the Court was arrested from Munirka. The arrest memo of accused Methew is Ex. PW1/C and arrest memo of accused Devender is Ex. PW1/E. The personal search of the accused Devender was conducted vide memo Ex. PW 1/F. Accused Devender was produced in the Court and was sent to lockup. After the arrest accused V Mathewraj was interrogated, he made a disclosure statement Ex.PW11/A. Accused Devender also made disclosure statement Ex.PW11/B. PW12 is SI Sandeep Sharma. He has stated that on18/02/08 he sent the case property i.e. four sealed pulandas and two FSL to Rohini 17 S/v V. Mathew Raj (2) Devender through Ct Mahesh Chand. He recorded statement of Ct. Mahesh and MHCM Ishwar Singh. Thereafter he prepared the challan.
PW13 is W. ASI Kailash Kain. She has stated that on 15.1.08 she was present in police station Vasant Vihar. On that day prosecutrix came to police station along with her father. She recorded her statement Ex PW1/A. She made her endorsement Ex PW13/A and produced the rukka to Duty Officer in her room. After registration of the case, she along with Ct Rajender took the prosecutrix to Safdarjung hospital along with father of prosecutrix and got medically examined the prosecutrix. After medical examination doctor on duty handed over her two sealed pulandas containing vaginal swab, pubic hair, underwear and sample seal. These were taken into possession vide memo Ex PW1/B. Thereafter they had gone to the place of occurrence and prepared site plan Ex PW13/B. Site plan was prepared at the instance of prosecutrix. She searched the accused and went to house no. 254, Munirka village, Delhi. Accused Matthew Raj was arrested from his house vide arrest memo Ex PW1/C. At 18 S/v V. Mathew Raj (2) Devender that time constable, prosecutrix and her father were present. Personal search memo of accused Matthew is Ex PW1/D. Accused Matthew was arrested and he made disclosure statement Ex PW11/A. Thereafter they came to Police Station. She recorded the statement of witnesses and deposited the pulandas in the malkhana.
On 16.1.08, she and Ct Rajender took accused Matthew Raj to Safdarjung hospital for his medical examination and got him examined. After medical examination doctor on duty handed over him one sealed pulanda containing blood sample and one sample seal. These were taken into possession vide memo Ex PW11/B. Accused was produced in the court and his one day police remand was obtained. On 17.1.08 accused Matthew Raj took them to house no. 115A, Munirka village from where accused Devender Singh @ David was arrested, at that time Ct Devender, prosecutrix and her father were present. Arrest memo of accused Devender is proved by the witness as Ex PW1/E, his personal search memo as Ex PW1/F. He (accused 19 S/v V. Mathew Raj (2) Devender Devender) made a disclosure statement Ex PW11/B. On 18.1.08 they took accused Devender to Safdarjung hospital and got him medically examined. After medical examination doctor on duty handed over her a sealed pulanda containing blood sample of accused Devender and sample seal. These were taken into possession vide memo Ex PW3/A. Pulanda was deposited in the malkhana.
He collected the date of birth certificate of prosecutrix from her father. Pulandas were sent to FSL by SI Sandeep Sharma. She collected FSL reports and the same are Ex PW13/C and D. Both the accused were then present in the court and identified by the witness.
PW14 is Abhay Ram, Record Clerk, Safdarjung Hospital, New Delhi. He proved the MLC of V Mathew Raj Ex.PW14/A. PW15 is Shiv Kumar. He has stated that as per the record of MCD the date of birth of the prosecutrix is 17/01/1993 which was registered on 19/01/1993. He proved the copy of record brought by him as Ex. PW15/A. 20 S/v V. Mathew Raj (2) Devender PLEA AND DEFENCE OF ACCUSED PERSONS In the statements under section 313 CrPC the accused persons have either denied the incriminating evidence emerging from prosecution case and put to him or have expressed their ignorance about the same.
Accused Mathewraj stated that he was innocent and all allegations are false and fabricated. But he admitted that he was tenant in the house in question but he vacated the same in June, 2007.
Accused Devender Singh stated that he is innocent and all allegations are false and fabricated. He further stated that his name is Devender Singh and he was not known as David as alleged for otherwise. He was Sikh and David is Christian name. He was not at all acquainted with Mathew Raj. He had been falsely implicated in this case.
The accused persons did not lead any evidence in their defence.
ARGUMENTS AND FINDINGS The learned Additional Public Prosecutor for the State assisted 21 S/v V. Mathew Raj (2) Devender by the learned counsel for the complainant has argued that the date of birth of the prosecutrix as per municipal record is 17/1/1993 which shows that at the time of commission of offence she was below 16 years of age and her consent does not matter though the prosecution has been able to prove that she was forcibly subjected to intercourse by the accused persons several times. It is argued that although in the FIR the name of accused Devender is not given but on the same day, i.e., 15/1/2008 a supplementary statement of the prosecutrix was recorded by the investigating officer in which she has named the accused Devender also who has committed rape on her. It is also argued that accused Devender was arrested at the instance of the prosecutrix. The parents of the prosecutrix have made supporting statement to the statement of the prosecutrix. Therefore, the prosecution has been able to prove its case against the accused persons beyond reasonable doubt and they are liable to be convicted on the charges framed against them. Reliance is placed upon the authorities: State of Maharashtra Vs. Chandraprakash 22 S/v V. Mathew Raj (2) Devender Kewalchand Jain AIR 1990 Supreme Court 658; Vishnu Alias Undrya Vs. State of Maharashtra (2006) 1 Supreme Court Cases 283; and State of Maharashtra Vs. Gajanan Hemant Janardhan Wankhede (2008) 8 Supreme Court Cases 38.
The learned counsel for accused V Matthew Raj has argued that PW 13 woman ASI Kailash stated in the crossexamination in response to question put to her that the father of the the prosecutrix stated only about the harassment, torture and blackmailing and nothing else. Therefore, the allegation of commission of rape and extending threat to kill are false. It is argued that in the cross examination, the prosecutrix, has stated in the crossexamination that after developing the physical relationship with Devender @David she had no physical relationship with Matthew Raj after August, 2007. It is also argued that in the cross examination the prosecutrix PW1 on page No.9 has stated that it was correct that accused Matthew Raj never met her while going to school or coming back from school and did not threaten her during that time.
23 S/v V. Mathew Raj (2) Devender Therefore, the charge against the accused for the offence under section 506 IPC is not proved by the prosecution. The further argument is that PW5 has stated that accused and his parents vacated the house of the complaint in February 2008 while the prosecution case is that accused Matthew vacated it in October 2007. The suggestion is given on behalf of the accused Matthew that he vacated the tenancy premises in June 2007. He also stated so in his statement under Section 313 Cr.PC. It is argued that the prosecutrix was a student of 9th class, the municiple certificate relied upon by the prosecution is false certificate. It is also argued that the mother and father of the prosecutrix has stated that only law there were tenants living with their families it is not possible that accused persons committed forcible sexual intercourse upon the prosecutrix. Therefore, accused Matthew Raj is entitled to be acquitted.
The learned counsel for accused Devender @David has argued that the prosecutrix in the examinationinchief in the last paragraph has stated that incident is of 23/12/2007 while as per her supplementary 24 S/v V. Mathew Raj (2) Devender statement dated 15/1/2008 the incident is shown to have occurred in August 2007. The disclosure statement of accused Devender shows the incident of October 2007. It is argued that there was delay in recording of the FIR which is not explained by the prosecution. It is also argued that in the FI R the name of accused Devender is not given only coaccused Matthew Raj is named in it. The further argument is that in the examinationinchief the prosecutrix has stated that accused Devender had sex with her and she did not state that accused Devender had forcibly had sexual intercourse with her.
The learned counsel for accused Devender has vehemently argued that the date of birth record produced from municipality by PW 15 is not reliable as the name of the prosecutrix is mentioned in it. It is argued that the witness PW 15 could not tell under whose direction and authority the name of prosecutrix was added in the record. Therefore, the date of birth of the prosecutrix is not proved by convincing evidence. She was above 16 years of age as on the date of incident. It is argued that in the 25 S/v V. Mathew Raj (2) Devender examinationinchief the prosecutrix has expanded her statement made to police and even the age of the prosecutrix does not matter the question is whether the rape was committed in the manner stated by the prosecutrix. Reliance is placed upon Shyam and another versus State of Maharashtra AIR 1995 SC 2169 and State versus Babloo MANU/DE/1776/2009 decided on 12/8/2009 by our Hon'ble High Court.
I have heard the learned Additional Public Prosecutor for the State assisted by learned counsel for the complainant, learned counsel for accused V Matthew Raj, learned counsel for accused Devender @David and have gone through the record of the case, the authorities produced and the relevant provisions of law.
It is true that PW 13 woman ASI Kailash has stated in the cross examination that father of the prosecutrix stated about harassment, torture and blackmail and nothing else. But this answer was given by her in response to question as to whether she asked about delay from father of the prosecutrix for registration of FIR after getting the information from her 26 S/v V. Mathew Raj (2) Devender daughter about one week before. Therefore, the question asked was about the delay in FI R and not about rape and the answer given by the father of the prosecutrix PW5 Subhash Chand Sharma about harassment, torture and blackmailing and nothing else is to be understood in the light of explanation for delay in FI R and it cannot be taken as that father of the prosecutrix stated that no rape is committed on her daughter or he omitted to state anything about rape on her daughter. The statement of PW5 Subhash Chand is to be read as a whole.
The learned counsel for accused persons have pointed out some contradictions in the statement of the prosecutrix. These contradictions, in my view, are bound to occur as the prosecutrix was subjected to a very lengthy crossexamination. While her examinationin chief runs into about five pages but her crossexamination runs into about six pages on behalf of the accused Devender besides about 10 pages on behalf of accused V Matthew Raj.
In Sukhdev Yadav v.State of Bihar AIR 2001 SC 3678, it was 27 S/v V. Mathew Raj (2) Devender held that minor variations may be there but if on a perusal of the evidence in its entirety, it appears to be otherwise trustworthy, question of the evidence being nontrustworthy would not arise. It was further observed as follows:
"It is now well settled that the Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence. This Court in Leela Ram (dead) through Duli Chand v. State of Haryana (1999) 9 SCC 525 : 1999 AIR SCW 3756 : AIR 1999 SC 3717, relying upon an earlier decision of this Court in State of U.P. v. M. K. Anthony (1985) 1 SCC 505 : AIR 1985 SC 48: 1985 Cri LJ 493 observed :
"......There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reasons therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."
28 S/v V. Mathew Raj (2) Devender It was further observed:
"In Rammi v. State of M. P. (1999) 8 SCC 649, this Court further observed : 1999 AIR SCW 3546: AIR 1999 SC 3544: 1999 Cri LJ 4561 "24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."
This Court went on to state (SCC pp. 65657, paras 2527):
"25. It is a common practice in trial Courts to make out contradictions from the previous statement of a witness for confronting him during crossexamination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt S. 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements
29 S/v V. Mathew Raj (2) Devender are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below :
'155, Impeaching credit of witness.The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him (1) and (2) (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted:'
26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be 'contradicted' would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross examiner to use any former statement of the witness, but it cautions that if it is intended to 'contradict' the witness the crossexaminer is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the crossexaminer to use the previous statement of the witness (recorded under S. 161 of the Code) for the only limited purpose i.e. to 'contradict' the witness.
To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P., AIR 1959 SC 1012.""
30 S/v V. Mathew Raj (2) Devender The Court held as follows:
"15. True, as noticed above there are lapses, but the question that arises for consideration is whether any prejudice has been caused by reason of such a lapse, if the answer thereto is in the affirmative obviously it will have a serious impact on to the trial but if in the event however, it is on the negative, no prejudice can be said to have been caused and correspondingly question of the trial being vitiated would not arise. The eyewitnesses account as available on record cannot but be termed to be trustworthy and by reason therefor, the lapses stand overshadowed by the testimony of the eyewitnesses. The observations above obtain support from the decision of this Court in Baleshwar Mandal v. State of Bihar, AIR 1997 SC 3471."
The question arises what is the evidential value of the statement of the prosecutrix and how it is to be evaluated?
About legal aspect with respect to appreciation of evidence of prosecutrix, the same can be summarised in the following manner:
(1) That the main evidence in all such cases is that of victim herself.
(2) That corroboration of the testimony of the prosecutrix in rape case is
31 S/v V. Mathew Raj (2) Devender not required as a rule of law. But, corroboration should ordinarily be required in the case of a woman having attained majority and who is habitual to sexual intercourse and is found in a compromising position, as in such cases there is likelihood of her having levelled such an accusation on account of instinct of self preservation or when the probabilities factor is found to be out of time.
(3) That corroboration may be by facts and circumstances. (4) That the injury on the person of the victim, especially her private parts, had corroborative value.
(5) That if the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. {See Jogi Dan Vs. State of Rajasthan 2004 CrLJ 1726 (Raj)} It is hardly possible that any self respecting woman would come 32 S/v V. Mathew Raj (2) Devender forward in a court of justice to make a humiliating statement against her honour, such as is involved in rape on her, unless it is absolutely true. {See Labh Singh Vs. Emperor 24 CrLJ 877, AIR 1923 Lah 291} Therefore, the evidence of the prosecutrix should carry more weight than the evidence of an ordinary witness. {See Bhagwat Prakash Vs. State 1956 CrLJ 4, AIR 1956 All 22}.
Prosecutrix cannot be considered to be an accomplice; her testimony cannot be equated with that of an accomplice. {See Gurcharan Singh Vs. State of Haryana 1973 CrLJ 179, AIR 1972 SC 2661; Rameshwar Vs. State of Rajashthan AIR 1952 SC 54; Sidheswar Ganguly Vs. State of West Bengal AIR 1958 SC 143, 1958 CrLP 273; State of Maharashtra Vs. Chandraprakash Kewalchand Jain AIR 1990 SC 658, 1990 CrLJ 889 (SC)}. Similarly, there is no rule of law which may require that there should be corroboration before conviction can be based on the sole testimony of the prosecutrix. {See Gurcharan Singh Vs. State of Haryana, AIR 1972 SC 2661; Sitaram Vs. State of Maharashtra 1974 33 S/v V. Mathew Raj (2) Devender CrLJ 82, p 84 ; Rafiq Vs. State (1980) 4 SCC 262, p 265, 1980 SCC 947 (Cr); Rameshwar Vs. State of Rajasthan AIR 1952 SC 54, 1952 CrLJ 547; Satoakalias Satnam Singh Vs. State of Rajasthan 2001 CrLJ 564 (Raj) } The prosecutrix should be treated as an injured witness. { See Satendra Kumar Kushwaha Vs. State of Bihar 2003 CrLJ 392 (Pat)} Corroboration is not the sine qua non for a conviction in a rape case. In the initial setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration, as a rule is adding insult to injury. Why should the evidence of the woman who complains of rape/sexual molestation be viewed with doubt, disbelief or suspicion? To do so would justify the charge of male chauvinism in a male dominated society. {See Bharoada Bhoginbai Hirjibha Vs. State of Gujarat AIR 1983 SC 753, 1983 CrLJ 1096 (SC)}. To insist on corroboration except in the rarest of rare case is to equate a woman who is a victim of lust of another, with an accomplice to a crime, and thereby insult to womanhood. It would be adding insult to injury to tell a woman that her story of woe will 34 S/v V. Mathew Raj (2) Devender not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissible society as in some of the Western and European countries. Our standard of decency and morality, in public life is not the same as in those countries. Decency and morality in public life can be promoted and protected only if the courts deal strictly with those who violate societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by leveling a false charge concerning her chastity. {See State of Maharashtra Vs. Chandra Prakash Kewalchand Jain AIR 1990 SC 658, 1990 CrLJ 889 (SC); State of Himachal Pradesh Vs. Lekh Raj & Anor 2000 CrLJ 44 (SC)} It is open to the court to base its conviction of the offence solely on the evidence of the prosecutrix, if it is satisfied that the 35 S/v V. Mathew Raj (2) Devender evidence is worthy of credence. {See Motiram Krishnmao Vs. State of Madhya Pradesh 1955 CrLJ 819, AIR 1955 Nag 121; Kishanlal Vs. State of Haryana (1980) 3 SCC 159, AIR 1980 SC 1252; Narayana Dutta Vs. State 1980 CrLJ 264, p 265 (Cal) (DB); Satendra Kumar Singh Kushwaha Vs. State of Bihar 2003 CrLJ 392 (Pat)} .
The law in this regard has been authoritatively stated by Hon'ble Supreme Court in State of Maharashtra v. Chandraprakash Kewalchand Jain, A.I.R. 1990(SC) 658 relied upon on behalf of State, as follows:
"15. It is necessary at tile outset to state what the approach of the Court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sexoffences. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the Court basis a conviction on her testimony ? Does the rule of prudence demand that in all cases save the rarest of rare the Court should look for corroboration before acting on the evidence of the prosecutrix ? Let us see if the Evidence Act provides the clue. Under the said statute 'Evidence' means and includes all statements which the Court permits or requires to be made before
36 S/v V. Mathew Raj (2) Devender it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that section all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in the case of an accomplice Section 133 provides that he shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section. 114, which lays down a rule of practice, says that the Court 'may' presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Sections 133 and 114, illustration
(b).
16. A prosecutrix of a sexoffence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated 37 S/v V. Mathew Raj (2) Devender in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration
(b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds 38 S/v V. Mathew Raj (2) Devender that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage :
"It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."
With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.
17. We think it proper, having regard to the increase in the number of sexviolation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be 39 S/v V. Mathew Raj (2) Devender believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eveteasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."
Therefore, the minor contradictions in the statement of witnesses and the prosecutrix have to be ignored particularly when there is lengthy crossexamination of the prosecutrix which leads to inevitable contradictions pointed out by learned counsel for accused persons in their 40 S/v V. Mathew Raj (2) Devender arguments.
In the present case reading the statement of the prosecutrix as a whole it appears that the sexual intercourse between her and the accused persons was the consent affair so the age of the prosecutrix assumes importance for the simple reason that as per definition of rape as given in section 375 IPC the sexual intercourse by the woman of the age of 16 years or above does not fall within the definition of rape.
In Vishnu @ Undrya v. State of Maharashtra, (SC) 2006(1) R.C.R.(Criminal) 201 relied upon by learned Additional Public Prosecutor it was held:
"19. In the case of Madan Gopal Kakkad v. Naval Dubey and Anr., 1992(3) RCR(Crl.) 461 (SC) :
(1992)3 SCC 204 44425. this Court has considered a similar question and pointed out in paragraph 34 at page SCC 221 as under :
"34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data 41 S/v V. Mathew Raj (2) Devender which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court."
20. We are of the opinion that this contention of the counsel for the appellant will be of no assistance in the face of evidence of fact from the mouth of PW1 father and PW13 mother, well corroborated by the register of the date of birth of Bombay Greater Municipal Corporation and the evidence of Dr. Shashikant Awasare, who is one of the proprietors of Dr. Kashibai Nursing Home, Santa Cruz (West), Mumbai, produced by him which shows that PW4 Pushpa was born on 29.11.64.
21. In the case of determination of date of birth of the child, the best evidence is of the father and the mother. In the present case, the father and the mother PW1 and PW13 categorically stated that PW4 the prosecutrix was born on 29.11.64, which is supported by the unimpeachable documents, as referred to above in all material particulars. These are the statements of facts. If the statements of facts are pitted against the so called expert opinion of the doctor with regard to the determination of age based on ossification test scientifically conducted, the evidence of facts of the former will prevail over the expert opinion based on the basis of ossification test.
42 S/v V. Mathew Raj (2) Devender Even as per the doctor's opinion in the ossification test for determination of age, the age varies. In the present case, therefore, the ossification test cannot form the basis for determination of the age of the prosecutrix on the face of witness of facts tendered by PW1 and PW13, supported by unimpeachable documents. Normally, the age recorded in the school certificate is considered to be the correct determination of age provided the parents furnish the correct age of the ward at the time of admission and it is authenticated. In the present case, as already noted, the parents had admitted to have given an incorrect date of birth of their daughter, presumably with a view to make up the age to secure admission in the school. Apart from this, as noticed earlier, the school certificate collected by PW15 S.I. Bagal was not an authenticated document. No body was produced to prove the date of birth recorded in the school certificate. The date of birth recorded in the school certificate as 29.6.63 is, therefore, belied by the unimpeachable evidence of PWs. 1 & 13 and contemporaneous documents like date of birth register of Greater Bombay Municipal Corporation and the register of the Nursing Home where the prosecutrix was born and proved by Dr. Shashikant Awasare, as noted above. "
The birth registration certificate issued by the municipal corporation is the primary evidence where an employee of the municipal
43 S/v V. Mathew Raj (2) Devender corporation deposes that concerned birth entry has been made on the basis of information received by the corporation from the concerned hospital, it means that it is a basic information which has been received by corporation through proper channel and, therefore, it cannot be said to be an insufficient proof to prove the age of the victim. When a child is admitted in a school, parents of the child usually submit a form on the basis of cogent evidence on record which will be either the certificate from the hospital where the child is born or the birth registration certificate. When the original evidence which has been produced by the official of the corporation and proved by him, is there on record, there is no reason to discard the said evidence. But as per the settled principles of law, the certificate issued by the doctor conducting the ossification the ossification test is not to be treated as scientific proof which can surpass the actual evidence which are on record wherein also, there can be a variation of two years. { See Rafik Khan Asgarkhan Pathan Vs. State of Gujarat 2005 CrLJ 1284 (Guj) (DB) } 44 S/v V. Mathew Raj (2) Devender In the present case the prosecution has examined PW 15 Sivakumar, Record Clerk: MCD, Green Park, New Delhi who as per record of the MCD brought by him i.e. birth register for the year 1993 has stated that the date of birth of prosecutrix is 17/1/1993 which was registered on 19/1/1993. He has proved the copy of the record as ExPW 15/A which corroborates with his above statement regarding date of birth of the prosecutrix. It is true that normally at the time of the registration of birth of the child the name of the child is not given but nothing prevents the parents of the child to get the name of child introduced in the record of MCD by move an application, afterwards. In the crossexamination PW 15 has stated that in few entries the name of child is written and in few entries it is not written. Although in the crossexamination this witness has stated that as per the record the name was added later on and he could not say the name of the prosecutrix is added after registration of FIR but he also stated that as per record the name was added later on vide receipt No.1610 81. He could not tell on which date this receipt was issued. But the non 45 S/v V. Mathew Raj (2) Devender production of the record regarding entry of the name of the prosecutrix in the birth register of MCD, in my view, does not matter as her date of birth 17/1/1993 was registered on 19/1/1993 and in the light of Vishnu's case (supra) and Rafik Khan's case (supra) the date of birth recorded in the record of the municipality is authentic evidence. Further the mother of the prosecutrix PW6 has also stated that and her daughter was aged 1415 years in the year 2008 and was student of ninth class. The prosecutrix at the time of her medical examination on 15/1/2008 has given her age as 15 years. Therefore, as on the date of incident of alleged rape the prosecutrix was below 16 years of age and her consent for sexual intercourse does not matter at all.
Shyam's case (supra) relied upon on behalf of accused Devender @ David does not pertain to rape case, it was a case pertaining to abduction of the prosecutrix in which the question where Section 366 IPC was attracted or not. In the present case, there is no charge against the accused persons for the offence under Section 366 IPC. In Shyam's 46 S/v V. Mathew Raj (2) Devender case (supra) there was no charge under Section 376/506 IPC, therefore, Shyam's case (supra) relied upon by accused Devender is not applicable to the present case.
In Babloo's case (supra) relied upon by accused Devender, the finding of the trial court that prosecutrix could not be raped in her house in the night when all members of her family are accepted to be present but in the present case all members of family of prosecutrix were not present at home nor the rape in question was committed in the premises in occupation of her parents but in the tenanted portion in occupation of accused V. Mathew Raj and also in the place where accused Devender took her. The fact that there were tenants in other portions of the building were also not deterrent for commission of rape by accused persons upon prosecutrix, she apparently being a consenting party though she was below 16 years of age, therefore, Babloo's case (supra) does not help the accused Devender or the accused V. Mathew Raj.
As regards involvement of accused Devender though his name 47 S/v V. Mathew Raj (2) Devender is not mentioned in the FIR but in the FIR based on the statement of prosecutrix Ex.PW1/A it is indicated that accused Matthew wanted prosecutrix to have sexual relations with his friend. On the same day the FIR was lodged , i.e., 15/1/2008 she gave a supplementary statement implicating accused Devender @David. At the time of her medical examination while narrating history of the case to the doctor as recorded in the MLC of prosecutrix ExPW 2/23 she has stated that she was ravished at least 4 to 5 times by accused Matthew and his friend. The accused Devender was arrested in her presence and both the accused were identified by the prosecutrix in the court in her statement recorded on oath. Accused Matthew has admitted in his statement under Section 313 Cr.PC that he was living as the tenant in the house of prosecutrix which is also the case of the prosecution though there is difference in the stand taken by prosecution and accused Matthew as regards the month of vacation of tenancy premises by accused Matthew. In the given facts and circumstances of the case which show that father of prosecutrix was 48 S/v V. Mathew Raj (2) Devender posted out of station, mother of prosecutrix was busy in construction of another house and offence of rape seems to be a constant affair by prosecutrix aged below 16 years and perhaps surfaced only when phone call was received by father of prosecutrix to shell out Rs.11 lac failing which CD of rape with prosecutrix shall be shown to the villagers of locality, the delay in FIR stood properly explained by the prosecution. Therefore, looking at the evidence on record as a whole produced by the prosecution and keeping in view the law stated above regarding appreciation and evidential value the statement of prosecutrix which has corroboration with the statements of her parents examined as witnesses for prosecution which evidence is admissible under Section 6 of Indian Evidence Act, I hold that prosecution has been able to prove its case against both the accused persons for the charge under section 376 IPC.
As regards the charge under section 506 IPC the prosecutrix has in the examinationinchief not specifically alleged of any threat extended by accused persons to criminally intimidate her to attract the 49 S/v V. Mathew Raj (2) Devender offence under section 506 IPC. The learned counsel for accused Matthew has pointed out that in the crossexamination the prosecutrix PW1 on page No.9 has stated that it was correct that accused Matthew Raj never met her while going to school or coming back to school and did not threatened her during that time. Therefore, the statement of prosecutrix is not sufficient, if read as a whole, to prove the charge under section 506 IPC framed the accused persons. Although the father of the prosecutrix PW5 Subhash chand Sharma has stated that the accused persons had forcible rape with his daughter since last about 11 1/2 year prior to date when he was informed by his daughter, the prosecutrix had been threatened to be killed by accused persons and they had also threatened that they will kill his son also if she disclosed this fact to anybody. But the statement of PW5 does not find support from and is against the above statement of the prosecutrix made in the crossexamination as pointed out by learned counsel for accused Matthew and is, therefore, not worth believing. Hence I hold that the prosecution has not been able to prove the 50 S/v V. Mathew Raj (2) Devender charge under section 506 IPC against the accused persons in this case. RESULT OF THE CASE In view of the above discussion the prosecution has been able to prove its case against the accused persons for the charge under section 376 IPC beyond reasonable doubt but has failed to prove the charge under section 506 IPC. Both the accused are convicted under section 376 IPC but acquitted of the charge under section 506 IPC. Let they be heard on the point of sentence. The judgment be sent to the server (www.delhidistrictcourts.nic.in).
Announced in the open Court on 11/01/2010 (S. K. SARVARIA) Additional Sessions Judge Patiala House Courts/New Delhi 51 S/v V. Mathew Raj (2) Devender IN THE COURT OF SHRI. S.K. SARVARIA ADDITIONAL SESSIONS JUDGE01/SOUTH PATIALA HOUSE COURT/NEW DELHI SESSIONS CASE NO. 258/2009 State Vs. (1) V. Mathew Raj Anthony S/o Vincent Raj R/o H.No.254, Gali No.2, Village Munirka, New Delhi (2) Devender Singh @ David S/o Surender Singh R/o 115A, Village Munirka, New Delhi FIR No. 16/2008 Police Station Vasant Vihar Under Section 376/506 IPC ORDER ON SENTENCE By my judgment dated 11/01/2010 both convicts/accused persons were convicted for the offence under Section 376 IPC.
Learned Additional Public Prosecutor has argued for deterrent punishment against convicts/accused persons , keeping in view the serious nature of the crime committed by them.
52 S/v V. Mathew Raj (2) Devender Learned counsel for convict Devender Singh has argued that convict was arrested on 17/1/08 and is in custody for the last about two years. No other criminal case is pending against him and he belongs to poor family and is sole bread earner of his family. There is shaking evidence of prosecutrix against convict/accused Devender Singh and he was 20 years of age at the time of incident. So he should be sentenced to the imprisonment already undergone by him.
Learned counsel for the convict/accused Matthew Raj has argued that convict Matthew Raj was 20 years of age at the time of incident and he is the only son of his parents and he has to lookafter his parents. There was delay in six months in lodging of FIR so lenient view may be taken against him.
I have heard the learned Additional Public Prosecutor and learned counsel for the convicts/accused persons and have gone through the case file.
It is an obligation of the sentencing court to consider all relevant 53 S/v V. Mathew Raj (2) Devender facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the gravity of the offence. The sentencing court must hear the loud cry for justice by society and more particularly, in case of the heinous crime of rape of innocent helpless children, as in this case, of the victim of crime and respond by imposing a proper sentence. ( See State of Andhra Pradesh Vs Polamala Raju 2000 Cr.L.J. 4014 (SC)) .
The punishment prescribed under sub Section (1) of Section 376 IPC so far is relevant is imprisonment of either description for a term which shall not be less then 7 years but which may be for life or for term which may extend to 10 years and the convict is also liable to pay fine. However, as per proviso of sub Section (1) of Section 376 IPC for adequate and special reason to be mentioned in judgment, the court may impose a sentence of imprisonment for a term of less than 7 years.
In order to exercise the discretion of reducing the sentence, the statutory requirement is that the court has to record adequate and special 54 S/v V. Mathew Raj (2) Devender reasons in the judgment and not fanciful reasons which would permit the court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate, but also special. What is adequate and special would depend upon several factors and no straitjacket formula can be indicated ( See State of Madhya Pradesh Vs Santosh Kumar 2006 Cr.L.J. 3636(SC)).
The circumstances also must be special in the sense that they should be different from the normal. While using the circumstances for imposing a lenient sentence, the primary consideration should be whether the circumstances are special to the case. The special circumstances should be of such a nature which should have relation to the offence and not to the offender. ( See Union of India Vs V P Selvarajan 1976 Mad LW (Cri) 50 (Mad.), 1976 JSCTL 97 (Mad.) .
The fact that convict persons found guilty for the offence under Section 376 IPC are the only son and are in custody for the last about two years or were aged about 20 years at the time of commission of offence or 55 S/v V. Mathew Raj (2) Devender there was delay in lodging of the FIR are not in my adequate or sufficient reasons for awarding lessor than minimum imprisonment provided under sub section 1 of Section 376 IPC.
In view of the above, I sentence both the convicts under Section 376(1) IPC to undergo rigorous imprisonment for 7 years each. In addition, they are directed to pay fine in the sum of Rs.1,000/ each. In default of payment, the convicts shall undergo simple imprisonment for three months.
The period of detention already undergone by the convicts during investigation and trial of this case shall be set off against the term of imprisonment imposed against them by this order, as provided under Section 428 Cr.P.C. The judgment and order on sentence be sent to server (www.delhidistrictcourts.nic.in).
Copy of judgment and copy of order on sentence be supplied to the accused free of cost. File be consigned to record room.
56 S/v V. Mathew Raj (2) Devender
Announced in the open
court on 18/01/2010 ( S K Sarvaria )
Additional Sessions Judge01/South
Patiala House Court
New Delhi