Delhi District Court
State vs Sandeep on 15 January, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.47/10
FIR No.714/07
U/s 363/376 IPC
PS Lajpat Nagar
State
Vs.
Sandeep s/o Pappu
Mohalla Bajariya
District Farukabad UP
Also at:
Hariya Gujjar ka Makaan
Village Gharoli
Delhi
.......... Accused
Challan filed on : 07.11.07
Received by Fast Track Court on:20.10.10
Reserved for Order on : 04.01.2011
Judgment delivered on : 13.01.2011
JUDGMENT
Briefly stated the facts of the prosecution case are that on 07.07.07 on receipt of DD no.19 copy of which is Ex.PW13/A regarding State Vs.Sandeep FIR no.714/07 Page No. 1 of 29 missing of Pooja, ASI Rakesh Kumar conducted search and flashed messages to all SSPs/DCPs. But Pooja could not be traced. On 16.7.07 Chaman Lal father of Pooja, came to PP Amar Colony and got recorded his statement which is Ex.PW16/A in which he has alleged that he is doing the work of dhobi and in the morning at about 8 a.m on 7.7.07 he gave some pressed clothes to his daughter Pooja to give the same in the neighbourhood. But her daughter did not return. He searched for her but could not trace her. He lodged missing report in the Police Post Amar Colony on 8.7.07. Now on enquiry he came to know that one boy Sandeep s/o Pappu who is resident of the same house where he is also residing as tenant has also gone missing from the same day. He suspects that Sandeep has taken away his daughter without her consent after inducing and luring her as she was 13 years old. She may kindly be searched and legal action be taken. On this statement Investigating Officer made her endorsement Ex.PW16/A on the basis of which the present case was registered vide FIR no.714/07 u/s 363 IPC. The investigation was done. Hue and cry notices were published and information was passed on the CBI Missing person section. On the instance of complainant, Prosecutrix Pooja was recovered from the custody of accused Sandeep s/o Pappu from his house on 18.8.07. Statement of Pooja was recorded in which she alleged that accused Sandeep has committed intercourse with her in Firozabad. Medical of Pooja was got done in AIIMS Hospital and section 376 IPC was added. State Vs.Sandeep FIR no.714/07 Page No. 2 of 29 Bony age of prosecutrix was got done and exhibits were sent to FSL. After completing the investigation accused Sandeep was challaned to the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 04.12.07 and thereafter by the fast track court on 20.10.2010.
3. The charge against the accused Sandeep was framed u/s 363/376 IPC on 08.02.2008 by Ms. Mamta Sehgal, the then, Ld.Additional Sessions Judge to which the accused pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 16 witnesses.
5. The evidence against the accused was put to him in his statement recorded u/s 313 Cr.P.C in which he has pleaded his innocence and deposed that he has been falsely implicated in this case. The accused has stated that he had not kidnapped the prosecutrix. He and the family of prosecutrix are tenants of Haria Gyujjar ka makaan. The place of quarrel is also stated to be the village Gharoli. But the present case has been registered with PS Lajpat Nagar with the connivance of the father of State Vs.Sandeep FIR no.714/07 Page No. 3 of 29 prosecutrix and police. The father of prosecutrix and prosecutrix herself are habitual of implicating the innocent persons in false cases as prior to his case they have also implicated 23 persons in false cases and compromised the same cases after receiving a nice amount. They have also demanded Rs.50,000/ from him. He is a rickshaw puller, hence he was not in a position to give that amount to them, hence they have implicated him in this false case. The accused had opted to lead defence evidence and examined DW1 Insp. Madanpal Bhati. Thereafter the case was fixed for final arguments.
6. I have heard the Ld. APP for the State as well as Ld. counsel for the accused and perused the testimonies of all the PWS and DW and exhibited documents carefully.
7. In view of the arguments advanced by the Ld.APP and ld.counsel on behalf of the accused I have also perused the testimonies of all the PWS.
8. PW1 Pooja is the prosecutrix. She has stated that her statement u/s 164 Cr.PC was recorded. She has levelled the allegations against the accused in her statement.
9. PW2 HC Om Prakash is the FIR recorder and he produced the State Vs.Sandeep FIR no.714/07 Page No. 4 of 29 copy of FIR which is Ex.PW2/A.
10. PW3 Dr.Garima Kachhawa has deposed that on 18.8.07 she had examined prosecutrix Pooja and prepared her MLC which is Ex.PW3/A.
11. PW4 Chaman Lal is the complainant and father of the prosecutrix in this case. He has stated that police recorded his statement which is Ex.PW4/A. He further deposed that accused Sandeep was arrested vide memo Ex.PW4/B. His daughter was recovered vide memo Ex.PW1/B. He had handed over the age proof of his daughter to the police which was seized vide memo Ex.PW1/A and birth certificate of Pooja is Ex.P1.
12. PW5 Narender, Sub Registrar, Birth and Death had deposed that as per record the birth date of Pooja is 2.3.97. The photocopy of the entry is Ex.PW5/A. The birth certificate is Ex.P1.
13. PW6 Dr. Jitesh Ahuja has appeared for Dr. Poonam Yadav who prepared the Xray report which is Ex.PW6/A.
14. PW7 HC Virender is the MHCM who made entry in register no.19 regarding depositing of exhibits in malkhana. The entry is State Vs.Sandeep FIR no.714/07 Page No. 5 of 29 Ex.PW7/A. He has also stated that the exhibits were sent to FSL.
15. PW8 HC Amit has deposed that he has deposited the case property in FSL Rohini.
16. PW9 Ct. Vineet has deposed that he took accused Sandeep to AIIMS for medical examination and after his medical, doctor handed over a pullanda containing underwear and blood sample of accused which were seized by the IO vide memo Ex.PW9/A. He identified the underwear Ex.P1.
17. PW10 SI Joseph has deposed that on 19.8.07 he prepared the site plan on the pointing out of prosecutrix which is Ex.PW10/A. He got recorded the statement u/s 164 Cr.PC and prosecutrix was sent to Nirmal Chaya. He seized the birth certificate of Pooja vide memo Ex.PW1/A. He sent the exhibits to FSL and on 27.9.07 he collected the bone age certificate from AIIMS and placed the same on file.
18. PW11 Dr. Raghvendra Kumar has examined accused Sandeep and prepared his detailed report which is Ex.PW11/A.
19. PW12 L/Ct Lalita has deposed that she took prosecutrix Pooja for medical examination and after medical doctor handed over her sealed State Vs.Sandeep FIR no.714/07 Page No. 6 of 29 pullanda containing vaginal swab and MLC. The same was taken into possession by the IO vide memo Ex.PW12/A.
20. PW13 Ct. Hemant Kumar has deposed that he recorded DD no.19 copy of which is Ex.PW13/A.
21. PW14 Sh.Satish Kumar, Ld.MM has deposed that he recorded the statement of prosecutrix Pooja u/s 164 Cr.PC, the same is Ex.PW14/B.
22. PW15 ASI Ved Prakash has deposed that on 17.8.07 he went to Firozabad in search of girl namely Pooja alongwith ASI Rakesh Kumar. They came to know that Pooja had left with Sandeep in the morning for Delhi and then they came back and at Sarai Kale Khan Bus Stand on the pointing out of Chaman Lal, accused Sandeep was arrested vide memo Ex.PW4/B and his personal search was conducted vide memo Ex.PW15/A.
23. PW16 ASI Rakesh Kumar is the IO of this case and he has deposed that on receipt of DD no.19 he flashed the messages regarding missing of Pooja. He recorded the statement of Chaman Lal Ex.PW4/A, made his endorsement Ex.Pqw16/A and got the case registered. He has further deposed that complainant suspected that Sandeep had kidnapped State Vs.Sandeep FIR no.714/07 Page No. 7 of 29 his daughter who was found absconding. He came to know that both are in Firozabad. He went to Firozabad and reached in the house of maternal uncle who told that Sandeep and Pooja had left for Delhi. They came back to Delhi and apprehended accused Sandeep on the pointing out of Chaman Lal at Sarai Kale Khan Bus Stand. He prepared the recovery memo of girl vide memo Ex.PW1/B. Prosecutrix and accused were medically examined where exhibits were seized vide memo Ex.PW9/A & Ex.PW12/A. He deposited the case property in malkhana.
24. I have also considered the defence evidence adduced on behalf of the accused. DW1 Insp.Madanpal Bhati has deposed that FIR no. 160/04 copy of which is Ex.DW1/A was registered on 6.5.04 against accused Baleshwar and complainant is Pooja, neighbourer of Baleshwar and place of incident is Hariya ka makaan village Gharoli and that the challan Ex.DW1/B was compromised in the court. He denied that complainant Chaman Lal wrongly implicated the accused Baleshwar in that case as he was in the habit of extracting money by filing false cases.
25. Analyzing the testimonies of witnesses, it is revealed that PW1 Pooja is the prosecutrix and PW4 Chaman Lal is the father and complainant. PW1&4 are the main star witnesses of the prosecution. Infact they are the backbone of the prosecution case. The testimony of PW1 prosecutrix is very relevant in this case because she is the victim. State Vs.Sandeep FIR no.714/07 Page No. 8 of 29 Before discussing the testimonies of star witnesses of the prosecution I would like to reproduce the definition of 'rape' because this case was registered u/s 363/376 IPC.
Rape - A man is said to commit rape who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First - Against her will.
Secondly - Without her consent Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under sixteen years of State Vs.Sandeep FIR no.714/07 Page No. 9 of 29 age.
26. In rape cases, the court must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim's version. The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. Considering the evidence available on file, the most important evidence to be looked into is the age of the prosecutrix at the time of her alleged rape because her age plays a decisive role in relation to the charge framed in this case u/s 363/376 IPC. According to section 376 IPC there should be material to establish that either the alleged marriage or intercourse has taken place without the consent of the girl, if she is above the age of 18 years or 16 years as the case may be. Section 376 IPC has now two sub sections, namely sub section (1) and sub section (2) and for the offence of rape committed by the accused as specified in sub section (1) is different from that provided under sub section (2) of section 376 IPC. Therefore, there is an essential difference between the offences under sub section (1) and those under sub section (1) of section 376 IPC. In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence. Coming to the testimonies of PW1 &4 it is revealed that PW1 prosecutrix has deposed her age at the time of recording of her statement as 14 years. She State Vs.Sandeep FIR no.714/07 Page No. 10 of 29 has further stated that police has taken her date of birth certificate which was seized vide memo Ex.PW1/A. PW4 Chaman Lal who is father of the prosecutrix has stated that his daughter studied upto 6th class and he had handed over the age proof of his daughter to the police which was seized vide memo Ex.PW1/A. The Birth Certificate is Ex.P1. Pw5 Sh Narender, Sub Registrar, Birth and Death has appeared and he produced the birth record of prosecutrix Pooja which was registered at sr.no.723 and date of birth has been mentioned as 2.3.97. He proved copy of said entry Ex.PW5/A. He has also stated that birth certificate is Ex.P1. Pw6 Dr. Jitesh Ahuja, Sr. Resident has stated the Dr.Poonam Yadav has prepared the Xray report Ex.PW6/A. Dr. Poonam has left the hospital. I have also perused the said Xray report. As per the Xray report, the bone age of prosecutrix has been opined between 13 to 14.3 years. I have also perused the cross examination of PW5 who produced the birth record of prosecutrix. But his testimony could not be shattered by the ld. Defence counsel. Pw4 Chaman Lal who is the father of the prosecutrix has stated in cross examination that Pooja was delivered in the house itself whereas his other two children were delivered in a hospital. He did not note down the birth of his daughter Pooja on any paper. He had gone to the dispensary himself which was near Kalyanpuri to inform about birth of his daughter Pooja. He does not remember what is the date written of his daughter in her birth certificate. He had gone to the MCD office on the next day of the birth of his daughter Pooja. He denied that his daughter State Vs.Sandeep FIR no.714/07 Page No. 11 of 29 was eighteen and half year old at the time of incident. He denied that he had given false certificate of date of birth of his daughter to the police. I have also perused the birth certificate of Prosecutrix Pooja Ex.P1. The same has been seized by the police vide seizure memo Ex.PW1/A. The birth certificate shows registration no. 723 date of registration 13.4.97 and date of birth as 2.3.97. Even the name of prosecutrix Pooja has been mentioned specifically on the said certificate. As per the bone age confirmation the age of prosecutrix has also been opined between 13.0 to 14.3 years. The birth certificate has been issued by Govt. of NCD of Delhi. So, the date of birth mentioned in the certificate is the true and correct date of birth of the prosecutrix. As per allegation the rape has been committed by the accused on 7.7.07. Considering the date of birth of prosecutrix and date of alleged offence, it is crystal clear that the age of the prosecutrix was 10 years 4 months. Even if the bone age confirmation is considered the age has come between 13 to 14 years. The accused has led defence evidence and adduced DW1 Insp.Madanpal Bhati who has denied the suggestion of defence counsel that the age of Pooja was 13 years as on 27.9.07. By putting this suggestion it has been admitted even by the defence that prosecutrix Pooja was 13 years old. Considering both the proofs regarding age of the prosecutrix, it can be safely held that the prosecutrix was minor at the time of rape.
Here Ld. Counsel for accused has relied upon a Judgment Jitender Kumar Sharma Vs. State and Anr., WP (CRL) 1003/2010 and 1992 State Vs.Sandeep FIR no.714/07 Page No. 12 of 29 CRI. L.J. 4073 Chidda Ram Vs. State. In case law 1992 CRI LJ 4073 it is stated in head note that : (B) Penal code (45 of 1860), S. 366,376 - Rape on minor girl - Proof of age - School certificate, not a conclusive evidence and ossification test, not a sure test - No birth certificate filed with the school - Age of prosecutrix revealed from her mother's version to be above 16 years and from the Doctor's opinion below 16 years - neither direct proof of age produced nor reliable evidence adduced - Drawing of conclusion that age of the prosecutrix was below 16 at the time of commission of offence - Not justified'.
27. In the present case in hand, the date of birth certificate has been filed on record which has been issued by Registrar of Birth and Deaths. Even PW5 Sh Narender, Sub Registrar has also been examined by the prosecution. In another case Jitender Kumar Sharma Vs. State, the prosecutrix got married with the accused and her age was 16 years. Even prosecutrix has herself stated that she would like to live with her husband accused Jitender. So, with due respect, both the above stated cases relied upon by the Ld. Defence counsel are not applicable to the present case.
28. In this case PW1 Pooja is the prosecutrix and in his statement she has stated that on 7th August, year she cannot tell, she was residing in a house owned by Haria gujjar at village Gharoli. Her father is doing the job of ironing the clothes. On the day of incident her father had sent her to the house of neighbourer for delivering the clothes, while she was returning and reached near ganda nala, her neighbourer Sandeep met her State Vs.Sandeep FIR no.714/07 Page No. 13 of 29 and he took her in an auto after inducing her by saying that he would provide her so many things and he would keep her apart from her parents. She was taken to Jahangirpuri at the house of his sister and kept there for two days. From there, Sandeep took her to his brother at Ferozabad and told his brother and his wife that he has married with her. Thereafter accused made illicit contact with her 23 times. He did wrong act with her i.e. he raped her. Accused brought her to Delhi on 18th and they reached Sarai Kale Khan bus stand and police alongwith her father Chaman Lal apprehended them. She told everything to her father on enquiry. She and accused were taken to PS and then to AIIMS for medical examination.She had given statement before the court but she was under influence and threat from the brother of the accused so she had made a wrong statement in the court before Ld. Magistrate. Accused Sandeep had sex with her forcefully without her consent or will. Her signatures bears on statement u/s 164 Cr.PC. The clothes which she was wearing at that time were lost in the bus and were not given to the police by her or her parents. In cross examination she has stated that there were 1213 rooms in the house of Hariya Gujjar and all were occupied by tenants. Accused Sandeep was also residing in one of the room at 3rd floor. Her family was having cordial relations with the family of accused. She had not made any report before this case nor she is involved in any other case. There is no case FIR no.160/04 related to her. She denied that her father had obtained money and compromised with one Balkishan in FIR no.160/04. She State Vs.Sandeep FIR no.714/07 Page No. 14 of 29 denied the suggestion that she told the accused to come to ganda nala. Her statement was recorded by the police. She had told the doctor whatever was asked on her own will. She was produced on the next day of her recovery with accused. She had given statement to the Magistrate on her own will. She had told before the Ld. MM that she went with accused on his own and married with him on account of threat given by accused that he would kill her and her family members. It is correct that no written complaint has been made against the accused and his family members by him or his family members after his statement recorded before the Magistrate. She had told before the Ld. MM that she had married with the accused of her own free will and wanted to live with accused Sandeep which she told to the Judge because the accused had asked her to state like that. She had told her age to doctor as 14 years and to Judge as 15 years which she was instructed by the accused to state like that. She denied the suggestion that she had accompanied accused of her own will. She denied that she also had sex with accused of her will about one month prior to this incident while accused was alone in his room. PW4 Chaman Lal is the father of the prosecutrix and he has also stated that on 7.7.07 his daughter Pooja was sent by him to deliver the clothes at 8 a.m but she did not return. He reported the matter to police. He suspected Sandeep who used to keep bad eyes on his daughter. His statement is Ex.PW4/A. He has further deposed that his daughter was got recovered from Ferozabad by the police. He had seen his daughter at Sarai Kale Khan bus stand and State Vs.Sandeep FIR no.714/07 Page No. 15 of 29 accused Sandeep was also there. Arrest memo is Ex.PW4/B. His daughter was recovered vide memo Ex.PW1/B. On enquiry his daughter disclosed that accused Sandeep had taken her. In cross examination he has stated that there was no case of Pooja related to one Balkishan of Ashok Nagar. There was a case regarding eve teasing relating to his daughter and it is correct that there was one boy involved namely Baleshwar. He denied that he had taken money from Baleshwar for settling the case. He denied that his daughter Pooja is in the habit of making friendship with different boys in the locality. He denied the suggestion that his daughter Pooja had gone with Sandeep on her own will. His wife is a housewife. There was no visiting terms of the accused's family with his family. He denied that his daughter had love affair or intimacy with accused. He did not know if accused Sandeep and Pooja used to meet in the room of that teacher very often. He denied the suggestion that Sandeep married to Pooja. When his daughter met him at Sarai Kale Khan she was wearing a jeans pant, a chunni and a top. He denied that she was wearing sari and having sindoor in her maang. He was present when his daughter was taken for statement before the magistrate.
29. Conjointly reading both the statements of PW1 prosecutrix and her father PW4 Chaman Lal both have corroborated regarding doing the job of ironing by PW4 and that on 7.7.07 PW1 Pooja was sent by PW4 to deliver the clothes in neighbourhood. PW4 has stated that Pooja State Vs.Sandeep FIR no.714/07 Page No. 16 of 29 did not return back and PW1 has stated that her neighbourer Sandeep met her and he took her in an auto after inducing her by saying that he would provide her so many things and would keep her apart from her parents. Pw4 has also suspected Sandeep in taking away his daughter. Both PW1 & 4 have corroborated the versions of each other. PW1 has further stated that accused took her to Jahangirpuri and kept there for two days and then he took her to Ferozabad. She assigned the role to accused Sandeep that he made illicit contact with her 23 times and she clearly stated that he raped her. Thereafter Sandeep brought her to Delhi and they were arrested from Sarai Kale Khan. In cross examination, the testimonies of PW1&4 could not be shattered by the Ld. Defence counsel. Even no suggestion has been put to PW1 that accused did not took her to Ferozabad or that he did not rape her. Also no suggestion has been put to PW4 that he did not lodge any complaint or that he did not send his daughter to deliver ironed clothes or that his daughter was not recovered from the possession of accused Sandeep or that accused was not arrested in his presence. So, PW1 prosecutrix has assigned the specific role to accused Sandeep that he had taken her away after inducing and alluring her that he will give her many things and he committed rape upon her. I have also perused the statement recorded u/s 164 Cr.PC by PW14 Satish Kumar, Ld. MM. In the said statement she has stated that on 7.7.07 at about 8 a.m she accompanied Sandeep on her own will and wish and married to Sandeep. She lived with Sandeep in Ferozabad and Sandeep State Vs.Sandeep FIR no.714/07 Page No. 17 of 29 did not do any wrong act with her against her wish. On 18.8.07 they were apprehended from Sarai Kale Khan when they were roaming there. Here the age of prosecutrix will play important and decisive role. In the present case the prosecutrix has made allegations against the accused in her statement recorded before the court but in her statement recorded u/s 164 Cr.PC she has stated that she went with accused on her own will and accused did not do any wrong act with her against her wish. Considering her deposition made before the court as PW1 she has stated that police official had brought her in the court where she had given statement but she was under the influence and threat from the brother of the accused so she had made a wrong statement in the court before the Ld. Magistrate. Accused Sandeep had sex with her forcefully without her consent or will. In cross examination she has stated that she had told before the Ld. MM that she went with accused on her own and married with him on account of threat given by accused that he would kill her and her family members. Accused could not produce and prove any marriage certificate. She denied the suggestion that her parents wanted to get her married with an old person of 45 years of age vol. Accused told her to say like this whenever somebody asks her about her relations with accused. From the version of prosecutrix it is crystal clear that she deposed before the Ld.MM under threat. Even otherwise the age of the prosecutrix is approx. 11 years as on the date of incident. Being minor even if she had given her consent in fleeing away with accused or having sex with him, would not State Vs.Sandeep FIR no.714/07 Page No. 18 of 29 weigh in favour of accused. It is stated in case law titled Naresh Vs. State of Haryana, (1997) 2 Crimes 587 (P&H) that : 'when the prosecutrix is a minor age below 16 years, the question of her being a consenting party to the sexual intercourse does not arise or is of no consequence'.
It is stated in case titled Harpal Singh Vs. State of Himachal Pradesh, AIR 1981 SC 361 that : 'If once it is proved that girl was below 16 years of age, the question of consent becomes wholly irrelevant'.
30. I have also perused the medical evidence. PW11 Dr.Raghvendra Kumar has examined the accused and prepared his MLC which is Ex.Pw11/A. In the said MLC it has been mentioned that there is nothing found suggestive of that the person examined is incapable of performing sexual intercourse under normal circumstances. PW3 Dr. Garima has prepared the MLC of prosecutrix Ex.PW3/A. I have also perused the MLC. It is mentioned on the MLC that hymen was found ruptured and one finger could be passed easily. No sign of external injury on the genital part of Pooja were noticed. MLC also suggest that intercourse has also been performed with prosecutrix Pooja. It is stated in case law Manga Vs. State of Haryana, AIR 1979 SC 1194 that : 'Where there was an eyewitness evidence as to the time and date of the occurrence of rape and the doctor examining the victim of the fact found that hymen of the victim was torn and ruptured, the mere circumstance that the doctor did not find redness or inflammation around bruises would not be sufficient to put the prosecution case out State Vs.Sandeep FIR no.714/07 Page No. 19 of 29 of the court because the fact that there was a rupture of the hymen and a bruise around the hymen was sufficient to prove the act of rape'.
31. On perusal of the cross examination it is revealed that Ld. defence counsel has not put any suggestion to PW1 as well as PW4 that accused has not committed rape upon PW1. So, I am of the view that the prosecution has established beyond any reasonable doubt that prosecutrix PW1 was raped by accused Sandeep against her will and consent. However, I have found some contradictions in the statements of PW1&4 but those are of trivial nature which can be natural and possible due to lapse of time and these contradictions can be ignored rightly by the court in view of the observation of case law Asha @ Ashananad & Ors.etc. Vs. The State of Rajasthan, 1997 (2) CC Cases SC 155. In view of the corroborative and supportive evidence of PW1&4 I have also considered the testimonies of other official witnesses in this case.
32. PW13 Ct. Hemant Kumar recorded DD no.19 copy of which is Ex.PW13/A and it was handed over to PW16 IO/ASI Rakesh. PW13 has not been cross examined. So, Copy of DD no.19 has been proved by the prosecution. PW16 ASI Rakesh has stated that he flashed messages and made search for missing girl. He recorded statement Ex.PW4/A, made endorsement and got the case registered through Ct. Satender. PW2 HC Om Prakash has recorded the FIR, copy of which is Ex.PW2/A. I have also perused the FIR. It was recorded on 16.7.07. The present case State Vs.Sandeep FIR no.714/07 Page No. 20 of 29 incident is 07.07.07. However, DD no.19 Ex.PW13/A has been lodged on 8.7.07. Ld. Defence counsel has stated that there is delay in recording the FIR. No doubt that there is delay in recording the FIR in the present case. But in the Social Indian Setup it is generally seen that the complaints about the Sexual Offences are not made due to fear of social stigma. However, PW4 has lodged DD no.19 regarding missing of his daughter on 8.7.07 itself. It is held in Harpal Singh Vs. State of Himachal Pradesh, AIR 1981 SC 361 that : 'Where the prosecutrix explained the delay of 10 days in lodging the FIR by stating that as honour of the family was involved, its members had to decide whether to take the matter to the court or not, it was held that it is not uncommon that such considerations delay action on the part of the near relations of a young girl who is raped.'
33. In my opinion also the prosecution has explained the delay in lodging the FIR in the present case in hand and the delay in the present case will not affect the case of the prosecution in any way. The copy of FIR stand proved without reasonable doubt.
34. PW16 ASI Rakesh Kumar has further stated that the complainant suspected the name of Sandeep and he searched for him but he was found absconding on 17.8.07 and came to know that he and Pooja are in Firozabad UP. He alongwith ASI Ved Prakash went to Firozabad where he contacted SI P Shukla in local Police Station and then went to the house of maternal uncle of Sandeep where Raghuvansh Prasad State Vs.Sandeep FIR no.714/07 Page No. 21 of 29 Rathore told that Sandeep and Pooja had left for Delhi and they came back to Delhi and at Sarai Kale Khan bus stand they apprehended Sandeep and Pooja on the pointing out of Chaman Lal. Pw15 ASI Ved Prakash had accompanied PW16 to Firozabad and he corroborated the version of PW16 in this respect. PW4 Chaman Lal, father of the prosecution has also stated about arrest of accused Sandeep from Sarai Kale Khan vide arrest memo Ex.PW4/B and PW15 proved the personal search memo vide memo Ex.PW15/A. The arrest memo and personal search memos of accused are available on file. In cross examination PW15 has stated that they met the maternal uncle of accused at Firozabad and he denied the suggestion that mother of accused met them at Firozabad. By putting this suggestion it has been admitted by the defence that police officials had visited Firozabad in search of accused. He has further stated that no ticket or articles were recovered from the accused at Sarai Kale Khan bus stand. Pw16 has stated in cross examination that prosecutrix was not having sindoor on her head and bangle of marriage when she was recovered from Sarai Kale Khan bus stand. So, it has been admitted by the defence that prosecution alongwith accused Sandeep were apprehended at Sarai Kale Khan bus stand. So, arrest memo Ex.PW4/B and personal search memo of accused Ex.Pw15/A have successfully been proved by the prosecution. Pw16 ASI Rakesh Kumar has further stated that he prepared the recovery memo of girl Pooja which is Ex.PW1/B. He sent prosecutrix and accused Sandeep for medical examination. PW9 State Vs.Sandeep FIR no.714/07 Page No. 22 of 29 Ct.Vineet has corroborated the version of PW16 that he took accused Sandeep for medical to AIIMS and that he was handed over sealed pullanda which he handed over to IO vide seizure memo Ex.PW9/A. Pw12 L/Ct. Lalita took the prosecutrix for medical examination and she has also corroborated the version of PW16 that he took into possession the pullanda vide memo Ex.PW12/A after examination of prosecutrix. The testimony of both these witnesses PW9 and 12 could not be shattered in cross examination. The MLCs of prosecutrix and accused are available on file and proved by PW3 Dr. Garima and PW11 Dr. Raghvendra Kumar. So, it has been proved by the prosecution that prosecutrix as well as accused were examined in the hospital and that vaginal swab of prosecutrix and underwear of accused were taken into possession. PW16 has stated that he deposited the case property in malkhana. PW7 HC Virender made entry in register of MHCM and proved the same as Ex.PW7/A and PW8 HC Amit deposited the same in FSL, Rohini vide RC n o. 66/21/07. Both Pw7 and Pw8 have corroborated the versions of each other. So, it has been proved that the case property had been deposed in the malkhand and thereafter sent to FSL for analysis. PW10 SI Josepha is the second IO and she has stated that she prepared the site plan Ex.PW10/A. She got recorded statements u/s 164 Cr.PC and sent the prosecutrix to Nirmal Chayya. In view of the above discussions the testimonies of official witnesses could not be shattered by the Ld. Defence counsel in cross examination. However, I have found some State Vs.Sandeep FIR no.714/07 Page No. 23 of 29 contradictions in their testimony but those are of trivial nature and can be possible due to lapse of time.
35. I have also considered the defence taken by the accused by examining DW1. From the testimony of DW1 has stated that FIR no. 160/04 Ex.DW1/A has been recorded against Baleshwar and complainant is Pooja and that it was compromised. He denied the suggestion that age of Pooja was 13 years at the time of 27.9.07. He denied that Chaman Lal is in the habit of extracting money by filing false cases. I have also perused the said FIR. It was recorded U/s 354 IPC and later on compromised on 27.9.07. The present case in hand is u/s 366/376 IPC. In his statement u/s 313 Cr.PC accused has stated that as the father of prosecutrix came to know about the affair of him and Pooja, hence he implicated him in this case. The place of quarrel is stated to be village Gharoli but the present case has been registered in PS Lajpat Nagar with the connivance of father of the prosecutrix. The father of prosecutrix is habitual in implicating the innocent persons in false cases as prior to this case they have also implicated 23 persons in false cases and compromised the same cases after receiving a nice amount. They have also demanded Rs.50,000/ from him. He is a rickshaw puller, hence he was not in a position to give that amount to them. The accused has brought on record one such case which is u/s 354 IPC. No evidence has been led by the accused to prove that prosecutrix or her father had State Vs.Sandeep FIR no.714/07 Page No. 24 of 29 demanded Rs.50,000/ from him. So, the plea regarding extracting money cannot be considered. Another plea of accused that this case was registered in PS Lajpat Nagar while the incident took place in village Gharoli also cannot be considered because he had taken away the prosecutrix from the area of Lajpat Nagar. Further by stating above version in his statement us/ 313 Cr.PC he has admitted that he took the prosecutrix and that he committed rape upon prosecutrix.
36. I have also given my thoughtful consideration on the case laws relied upon by the Ld. Defence counsel i.e Baldev Singh Vs. The State of Punjab, Reepik Ravinder Vs. State of A.P 1991 CRI. L.J. 595, Sribatcha Khamari Vs. State of Orissa, Harish Kumar Vs. State 2010 (3) LRC 203 (Del), baldeo Vs. State of UP 1993(1) Crimes 1009, 1981 CRI. L.J NOC 47 (ALL.), Neetu Singh Vs. State & Ors., I (1999) DMC 634(DB), Seema Devi @ Simran Kaur Vs. State of HP 1998(2) Crimes 168, SK Niamat Ali Vs. State 78 Crimes IX1993(3). Considering the observations taken in the above cited cases, with due respect I am of the view that these case laws are not applicable to the present facts and circumstances of the case.
37. In view of the above discussions of all the Pws, I am of the view that the prosecutrix PW1 Pooja has assigned the role to accused Sandeep that he had taken her away from the lawful guardianship of her parents and thereafter committed rape upon her. Prosecutrix was minor. State Vs.Sandeep FIR no.714/07 Page No. 25 of 29 Her version has further been strengthened by the medical evidence. So, the prosecution has successfully established its case and proved the charge against accused Sandeep.
38. As a sequel to my findings above, I am of the view that the prosecution has left no stone unturned to prove its case against accused Sandeep. I, therefore hold accused Sandeep guilty for the commission of offence punishable u/s 363/376 IPC and convict him thereunder. Announced in the open Court on 13.01.2011.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI State Vs.Sandeep FIR no.714/07 Page No. 26 of 29 IN THE COURT OF SH.SURESH CHAND RAJAN ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT, (New Delhi & South East District) PATIALA HOUSE COURTS, NEW DELHI SC No.47/10 FIR No.714/07 U/s 363/376 IPC PS Lajpat Nagar State Vs. Sandeep s/o Pappu Mohalla Bajariya District Farukabad UP Also at:
Hariya Gujjar ka Makaan Village Gharoli Delhi .......... Accused ORDER ON THE POINT OF SENTENCE Accused Sandeep has been held guilty for the commission of offence punishable u/s 363/376 IPC and convicted thereunder vide Judgment dated 13.01.2011.
2. I have heard the Ld. counsel for the convict as well as accused/convict on the point of sentence. During the course of arguments State Vs.Sandeep FIR no.714/07 Page No. 27 of 29 it has been submitted on behalf of the convict that he is unmarried aged about 21 years. He is the first offender. There is no other case registered against him in any court of law nor he has been convicted earlier. He is the elder son in the family and all the responsibility of family are upon his shoulders. He is only the bread earner in the family and entire family is dependent upon him. It is further submitted that the father of the convict is aged about 60 years and his mother is aged about 55 years. It is further submitted that accused is languishing in jail since his arrest and therefore lenient view may be taken against him and he be released on the period already undergone.
3. Keeping in view the facts and circumstances of the case and the act done by the convict, I am of the view that he is not entitled to any leniency and there is no room for sympathy or pity since the accused had committed rape upon a minor girl.
4. In view of this convict Sandeep is ordered to undergo RI for seven years and to pay fine of Rs.2000/ u/s 376 IPC and in default of payment of fine to further undergo SI for six months.
5. Convict is further ordered to undergo RI for five years and to pay fine of Rs.1000/ u/s 363 IPC and in default of payment of fine to further undergo SI for three months.
State Vs.Sandeep FIR no.714/07 Page No. 28 of 29
6. The benefit of sec.428 Cr.P.C be given to the convict. Both the sentence of convict shall run concurrently. Copy of this order on the point of sentence and copy of Judgment be given to the convict free of cost. It is ordered accordingly. File be consigned to record room. Announced in the open Court on 15.01.2011 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI State Vs.Sandeep FIR no.714/07 Page No. 29 of 29