Delhi District Court
State vs 1) Shiv Shankar on 19 December, 2011
In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 80/09
Unique ID No. : 02401R0272562009
State versus 1) Shiv Shankar
S/o Sh. Mojan Mandal
R/o H. No. 2/75 Gali No. 73
Punjabi Bagh, Delhi
2) Geeta
W/o Sh. Gultan Kapoor
R/o Kothi No. 8, Road No. 60
Punjabi Bagh, Delhi
Case arising out of:
FIR No. : 38/09
Police Station : Kamla Market
Under Section : 366A/368/376/34 IPC
Judgment reserved on : 09.12.11
Judgment pronounced on : 19.12.11
JUDGMENT
1. The case of the Prosecution as it unfolds from the chargesheet is that a young girl aged about 17 years came to Delhi from Jharkhand along with her cousin Dashrat who assured to secure a job for her. She was not treated well in that office and was also given beatings due to which she fled away from there on 27.3.09. She met accused Geeta who assured her that she will find a good job for her. On hearing this, the said girl i.e Prosecutrix in the present case went along with accused Geeta who introduced her to the coaccused Shiv Shankar. After sometime, accused Shiv Shankar took her to his room where he established physical relations with her without her consent at night and on the next morning and locked her up in the said room and went outside. He returned in the afternoon and took the Prosecutrix to GB Road. The Prosecutrix realised that she has been brought to GB Road for the purpose of selling her and rushed to a police gypsy which was standing nearby and narrated the entire incident to the police officials on duty.
2. Insp. Bala Sharma, SHO PS Kamla Market who was present on duty along with other police officials recorded statement of Prosecutrix on 28.3.09 wherein she alleged that accused Shiv Shankar had raped her on 27.3.09 and that accused Geeta had aided him in commission of the said offence, the instant case being case FIR No. 38/09 was registered. Both the accused persons were arrested during the course of investigation and duly identified by the Prosecutrix. The statement of the Prosecutrix was also got recorded under Section 164 CrPC and she was further got medically examined. After completion of investigation chargesheet was submitted before the court.
3. Both the accused persons were charged for the offence punishable under Section 366A/368/376/34 IPC vide order dated 06.8.09. During the course of proceedings, having regard to the facts and circumstances of the case, charge against accused Geeta was amended to the extent that charge under Section 376/34 IPC was amended to charge for abetment of offence under Section 376 IPC and accused Geeta was accordingly charged under Section 366A/368/34 IPC r/w Section 109/34 IPC vide order date 21.10.10. It is pertinent to point out at this juncture that during the course of arguments, it was pointed out by Ld. Amicus Curiae appearing for accused persons that inadvertently accused Geeta was charged for offence under Section 109/34 IPC on 21.10.10. However, in all fairness, Ld. Amicus Curiae conceded that considering content of charge framed on 21.10.10 and keeping in view that Section 109/34 is merely a typographical error, there is no dispute about the fact that amended charge framed against accused Geeta on 21.10.10 was for 109 r/w Section 376 IPC, besides other charges as aforesaid, and not under Section 109/34 IPC.
4. The Prosecution as per record has examined as many as ten witnesses to bring home the guilt of the accused persons. The statement of both the accused persons were recorded under Section 313 CrPC on 02.12.11 wherein accused pleaded innocence and alleged false implication in this case.
5. Detailed arguments were advanced by Ld. Amicus Curiae for the accused as well as by Ld. APP for the State.
6. I have considered the same in the light of the evidence on record and the relevant case law which was cited.
7. The case of the Prosecution, as aforesaid is that accused Shiv Shankar and Geeta on 27.3.09 in furtherance of their common intention induced minor girl i.e. Prosecutrix to go along with them with an intention and knowing that the said minor girl will be forced by him to illicit intercourse and thus they committed offence punishable under Section 366A/34 IPC. Secondly, it has been alleged that both the accused persons knowing that Prosecutrix has been kidnapped and wrongfully concealed her and thereby committed offence punishable under Section 368/34 IPC. Besides this accused Shiv Shankar has been charged for offence punishable under Section 376 IPC whereas accused Geeta is alleged to abetment and accordingly charged for offence 109/376 IPC.
8. The most material witness of the Prosecution being the Prosecutrix herself, it would be appropriate to firstly deal with her deposition. The Prosecutrix was examined as PW6. She deposed that she is illiterate and about two years ago, her cousin Dashrath brought her to Delhi for getting her employed as a maid and she worked in a office for about one month. She deposed that her employer used to ill treat her and beat her and due to this reason she left that job and ran away from there. She further deposed that on the way, she met accused Geeta and one more boy whom she identifies as accused Shiv Shankar and also correctly identified accused Geeta and Shiv Shankar in court. She deposed that both of them induced her saying that they could arrange a job for her and on their assurance, she accompanied them. She further deposed that she was taken to a room by accused Shiv Shankar at the instance of accused Geeta where she was kept for the whole night while accused Shiv Shankar also stayed with her.
9. The accused had committed "GALAT KAAM' with me during night. He opened my salwar and climbed upon me and did galat kaam with me without my consent and forcibly".
10. The Prosecutrix also deposed that on the next day accused Shiv Shankar took her to some place to sell her. When she realised that accused wanted to sell her, she saw some police officers in a police vehicle and told them about the whole story and accused Shiv Shankar was apprehended at her instance. She identified her thumb impression on her statement Ex. PW6/A and deposed that she was kept by the police in Nari Niketan.
11. Besides the Prosecutrix, the Prosecution also relied upon deposition of PW8 Dr. Uma K. Sr. Medical Officer, DDU Hospital who exhibited her report as regards physical examination of the Prosecutrix in order to determine her age. The said report is Ex. PW8/A and as per the report, upon her medical examination for the purpose of age assessment, it was opined that age of the Prosecutrix was more than 15 years and less than 16 years on the date of examination i.e. 01.4.09.
12. PW8 Dr. J. Dayal who was Head of Department Radiology, DDU Hospital and Chairman of the Medical Board on 01.4.09 also corroborated deposition of PW7 and exhibited as his report Ex. PW8/A. He deposed that as per medical examination of the Prosecutrix by the Board, final opinion regarding age of the Prosecutrix was opined as more than 15 years and less than 16 years. PW9 Dr. Vikas Sharma deposed that on 28.3.09, he was posted at LNJP Hospital as CMO and medically examined the Prosecutrix vide MLC Ex. PW9/A and had referred her to Gynae/forensic casualty for examination and expert opinion. PW9 also deposed that she was sexually assaulted by Shiv Shankar on that day itself. PW9 also exhibited MLC as Ex. PW9/C which was prepared after medical examination of accused Shiv Shankar.
13. PW2 Dr. Garima, Sr. Resident, LNJP Hospital deposed that Prosecutrix was examined on 29.3.09 by Dr. Sushma. She identified the report of Dr. Sushma as Ex. PW2/A stating that it bears her signatures at point A. She also deposed that on the said date, Prosecutrix was referred from main causualty to Gynae Department with alleged history of sexual assault done to her by accused Shiv Shankar on 28.3.09. She also deposed that after examination by Dr. Sushma, no external mark of any injury was found and hymen was found deflorated (broken).
14. The statement of the Prosecutrix recorded under Section 164 CrPC was proved by PW3 Sh. Deepak Dabas, Ld. MM/THC/Delhi.
15. Besides the aforesaid witnesses, the members of the police party who were present at patrolling duty along with SHO Insp. Bala Sharma (PW10) were also examined by Prosecution namely PW4 Ct. Darshan, PW5 Ct. Randhir Singh and PW10 Insp. Bala Sharma herself. All the said witnesses namely PW4, 5 and 10 have deposed that on 28.3.09 Prosecutrix came towards their gypsy at GB Road and started weeping and informed them that accused Shiv Shankar had raped her. They deposed regarding recording of statement of Prosecutrix and the arrest of accused Shiv Shankar vide arrest memo Ex. PW4/A and his personal search was conducted vide memo Ex. PW4/B. They also deposed that on 29.3.09 accused Geeta was apprehended at the instance of Prosecutrix and arrested vide memo Ex. PW4/C. IO PW10 also deposed that after recording of statement of Prosecutrix Ex. PW6/A, she prepared rukka Ex. PW10/A for registration of FIR and handed over the same to Ct. Darshan who took the same to PS. IO further deposed that accused was interrogated and his disclosure statement was recorded which is Ex. PW10/B.
16. It has been submitted by Ld. APP on the basis of the aforesaid evidence that allegations against the accused persons stand duly proved on record. It has been argued that deposition of Prosecutrix categorically spelt out that alleged offences were committed by both the accused persons and that both the accused persons be convicted.
17. On the other hand, Ld. Amicus Curiae opposed the case of the Prosecution stating that case against both the accused persons is fabricated. He pointed out that from the deposition of Prosecution the allegations of rape as defined under Section 375 IPC are not made out. He further argued that as per the MLC Ex. PW2/A no external injury was found upon the person of Prosecutrix and her clothes were not torn, thereby belying the entire case of the Prosecution that accused had established physical relations with the Prosecutrix forcibly and without her consent. It was also argued that as per MLC and deposition of PW2, hymen of the Prosecutrix was found to be deflorated (broken) and it is not the case of the Prosecution that the hymen was freshly torn. It was argued that in these circumstances, since medical evidence does not corroborate the deposition of the Prosecutrix, accused persons are entitled to benefit of doubt.
18. Insofar as age determination of the Prosecutrix is concerned, Ld. Amicus Curiae submitted that as per settled law there is margin of plus (+) minus () two years while considering the age of the Prosecutrix after ossification test. He submitted that since age of Prosecutrix, as per report of Medical Board Ex. PW8/A, was opined to be more than 15 years but less than 16 years, considering a margin of +2 years, the Prosecutrix was 18 years of age at the time of alleged incident.
19. It was thus argued by Ld. Amicus Curiae while relying upon the judgment of Hon'ble Supreme Court titled as Jai Mala Vs Home Secretary, Govt. of Jammu and Kashmir and Others AIR 1982 Supreme Court 1297 wherein it has been observed by Hon'ble Supreme Court that margin of error in age ascertained by radiological examination two years on either side. Relying on the said judgment, Ld. Amicus Curiae argued that if margin of +2 years is taken in case of Prosecutrix, certainly it cannot be said that she was minor on the date of the alleged incident.
20. Ld. Amicus Curiae further pointed out towards the various discrepancies in the deposition of PW4, 5 and 10. It was also argued that Prosecutrix herself has taken varying stands as regards her age in her complaint Ex. PW6/A dated 28.3.09, her age has been mentioned as 17 years whereas in the statement under Section 164 CrPC Ex. PW3/C recorded by Ld. Metropolitan Magistrate dated 31.3.09, Prosecutrix herself has stated her age to be 16 years. However, when she was examined in court on 18.1.11, Prosecutrix mentioned her age approximately 20 years. He submitted that going by the varying stands taken by the Prosecutrix as regards her age, it is apparent that at the time of the alleged incident, she was above 18 years of age and the case of the Prosecution is completely false.
21. On the other hand, Ld. APP opposed this argument and pointed out that as per the report of the Medical Board Ex. PW8/A, age of the Prosecutrix at the time of her medical examination was more than 15 years and less than 16 years.
22. Moreover, it is not the case of the Prosecution that offence of rape was committed by accused Shiv Shankar with the consent of the Prosecutrix. It was pointed out by Ld. APP that it is never the case of the Prosecution that the sexual intercourse between the Prosecutrix and the accused was consensual.
23. I have considered the rival submissions in the light of evidence on record and on considering the same, I am inclined to accept the submissions made by Ld. APP.
24. A bare perusal of deposition of Prosecutrix reveals that she categorically deposed that accused had committed alleged offence forcibly and without her consent. It is also pertinent to note that report of the physical examination of the Prosecutrix Ex. PW8/A which was proved by PW8 Dr. Uma K. was not disputed by the accused, inasmuch as PW8 was not crossexamined at all. The medical opinion Ex. PW8/A was thus not contradicted by defence at the time of examination of PW8 Dr. Uma K. Testimony of Dr. J. Dayal (inadvertently also examined as PW8) though cross examined by Ld. Defence Counsel, remained unimpeached despite his lengthy cross examination.
25. Even if the contention of Ld. Defence Counsel is accepted and the margin of +2 years is taken while estimating the age of the Prosecutrix, yet the fact would remain that her age cannot be said to be more than 18 years on the date of the alleged incident. As per report of the Medical Board Ex PW8/A, age of the Prosecutrix was said to be more than 15 years and less than 16 years and even after taking margin of +2 years, her age would still be less than 18 years on the date of the incident in question. Thus, viewed from any angle, Prosecutrix cannot be said to be more than 18 years of age on the date of the alleged incident.
26. Further, I also find no force in the submissions of Ld. Amicus Curiae that since the Prosecutrix cannot be said to be above 16 years of age, the allegations of offence punishable under Section 376 IPC cannot be made out against the accused. A perusal of Section 375 IPC which defines rape would reveal that as per this provision 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 following descriptions...
...With or without her consent, when she is under sixteen years of age.
27. It is in the light of these provision, deposition of Prosecutrix must now be considered. PW6 deposed before the court while correctly identifying the accused that accused Shiv Shankar had committed "galat kaam with me during night. He closed the door of the room. We mere sath so gaya. He opened my salwar and climbed upon me and did galat kaam with me without my consent and forcibly." The Prosecutrix thus in categorical terms stated before the court that accused Shiv Shankar had raper her and the said act, cannot by any stretch of imagination, be said to be consensual keeping in view the deposition of Prosecutrix. The judgment of Hon'ble Supreme Court cited by Ld. Amicus Curiae titled as State of Karnataka Vs Suresh Babu Puk Raj Porral 1994 Cr. L. J. 1216, in these circumstances, cannot be said to be applicable to the facts of the present case.
28. It is noteworthy that in the said judgment, Prosecutrix had only deposed to the effect that accused had done something to her which he should ought not to have done and it is in this backdrop that the Hon'ble Supreme Court observed that it cannot be inferred that accused had intercourse with her. The facts of the present case totally stand on a different footing. I am convinced on going through the deposition of Prosecutrix that she has, in categorical terms, deposed that accused had raped her without her consent and forcibly.
29. Extending the same argument, Ld. Amicus Curiae further argued that the fact that no external injuries were found on the person of Prosecutrix as per MLC Ex. PW8/A also falsifies her deposition. It was submitted that had the alleged rape been committed by the Prosecutrix forcibly by the accused, there would have certainly be some injuries upon her person. I am afraid that this argument of Ld. Amicus Curiae is contrary to the well settled law with regard to offence under Section 376 IPC. It has been held in catena of judgments that mere fact that no injuries were found on the private parts of the Prosecutrix or her hymen was intact does not bely the statement of Prosecutrix. In this regard, reference may be made to judgment titled as Ranjit Hazarika Vs State of Assam 1998 8 SCC 635.
30. It may also be mentioned at this juncture that Ld. Apex Court has also laid down in several judgments that in case of Section 376 IPC, conviction can be based merely on the sole testimony of the Prosecutrix, if the same is found credible and trustworthy. In this regard, reference may be placed on Aman Kumar and another Vs State of Haryana AIR 2004 SC 1497 wherein it has been held that Prosecutrix's evidence needs no corroboration. She stands at higher pedestal than injured witness and if her testimony is doubtful, court may search for assurance short of corroboration.
31. Ld. APP also relied upon judgment of Hon'ble Supreme Court titled as Rajinder @ Raju Vs State of H. P. 2009 Cr.L.J. 4133 wherein it has been held that absence of injuries on person of Prosecutrix does not lead to an inference that she consented for sexual intercourse. It has also been held in Rajinder @ Raju Vs State of H. P. (supra) that testimony of Prosecutrix is sufficient to base convictionLook for corroborationNot necessary except in cases of high improbability. In the context of Indian Culture, a womanvictim of sexual aggressionwould rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime.
32. In the light of aforesaid case law, I am not inclined to accept the arguments of Ld. Amicus Curiae that merely because the MLC of the Prosecutrix shows absence of any external injury upon her person the court should outrightly reject her deposition made on oath. On going through the testimony of the Prosecutrix in its entirety, I find that the same is completely trustworthy and does not deserve to be rejected on account of minor contradictions sought to be pointed out by Ld. Amicus Curiae bearing his arguments. It must be kept in mind that the Prosecutrix in this case was an illiterate girl who hailed from Jharkhand and came to Delhi in search of a job. As admitted by her in her crossexamination, accused persons were not known to her and she had no reason to depose falsely against them in court.
33. Though it is being submitted by Ld. Amicus Curiae while relying on judgment of Hon'ble High Court titled as Radha Raman Vs State 2010 [3] JCC 1764 wherein it has been held that it is equally difficult for the accused to prove motive for witnesses to falsely depose against him, I am of the opinion that the fact of the said case cited by Ld. Amicus Curiae are entirely different from facts of the present case. The overall facts and circumstances of this case clearly show that Prosecutrix who had come to Delhi barely two months prior to incident in question and was in search of a job after being harassed by erstwhile employer was induced by the accused persons on the pretext of securing a good job for her. In these circumstances, I find that observations made in the judgment titled as Radha Raman Vs State (supra) cannot be held to be applicable in this case, inasmuch as it cannot be stated that the Prosecutrix had either any reason to falsely implicate the accused persons or to depose against them falsely before the court.
34. In this regard, reference may be made to Radhu Vs State of Madhya Pradesh (2007) 12 SCC 57 wherein it has been specifically laid down by Hon'ble Apex Court that the evidence of the Prosecutrix should not be rejected on the basis of minor discrepancies and contradictions if the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. In this judgment Hon'ble Apex Court also observed that it is also well settled that absence of injuries on the private part of the victim will not by itself falsify the case of rape in order to corroborate the evidence of consent.
35. It may also be pertinent to mention at this juncture that although Defence has sought to raise an argument that the absence of external injuries upon the person of the Prosecutrix implies that alleged act was consensual, not even a single suggestion to this effect was given to Dr. Vikas Sharma (PW9) who proved the MLC of the Prosecutrix Ex. PW9/A.
36. On going through the deposition of the Prosecutrix coupled with her categorical deposition as regards commission of the alleged offence by the accused Shiv Shankar at the instance of coaccused Geeta and the report of her medical examination in addition to the fact that she also told the examining doctor that she was sexually assaulted by accused Shiv Shankar, I find that the allegations against accused stand proved on record beyond reasonable doubt.
37. During the course of arguments, Ld. Amicus Curiae also pointed out that as per the crossexamination of IO (PW16) itself apparently date and time of the commission of offence of rape was recorded on the basis of the statement of Prosecutrix. However, IO admitted that the time of 2 PM as mentioned in Ex. PW10/A at point X was not mentioned in the complaint Ex. PW6/A. It was submitted that entire case has been fabricated by the IO, inasmuch as even date and time of the alleged incident has not been clearly brought out on record.
38. I have given my thoughtful consideration to these submissions. However, it cannot be disputed that merely because of lapse in the investigation on the part of the Investigating Agency, entire statement of the Prosecutrix must be thrown outrightly or that Prosecutrix must be totally disbelieved for the reason that IO failed to conducted the proceedings in a proper manner.
39. On the basis of evidence on record, I find that the Prosecution has been able to establish beyond reasonable doubt that accused Shiv Shankar had committed rape upon the Prosecutrix. The Prosecutrix has also deposed that accused took her to a room at the instance of accused Geeta. This deposition of the Prosecutrix has not been rebutted despite lengthy crossexamination of the Prosecutrix. Although in her statement under Section 164 CrPC Ex. PW3/B Proscutrix did not allege anything against accused Geeta, yet keeping in view the fact that she has deposed on oath the role of accused Geeta and has also correctly identified her in court coupled with the fact that the deposition of the Prosecutrix remained unimpeached despite her lengthy crossexamination is sufficient to establish that accused Geeta is guilty for offence punishable under Section 109/376 IPC. The testimony of the Prosecutrix is completely worthy of reliance requiring no corroboration whatsoever. It was further pointed out by Ld. Defence Counsel that there is no record to establish from as to when Prosecutrix know them, inasmuch as admittedly she did not know them prior to alleged incident.
I have considered the said submissions. However, in view of the fact that Prosecutrix clearly identified the accused persons before the court, I find no force in this contention particularly in view of the fact that deposition of the Prosecutrix has been found to be completely trustworthy and credible. In this regard, reliance may be placed on judgment titled as Rajinder @ Raju Vs State of H. P. (supra) wherein it has been held that fact neither stated in her statement under Section 161 CrPC nor in the FIR, yet contradictions are not sufficient to disbelieve her evidence.
40. However, insofar as charge under Section 366A IPC is concerned, I find force in the submissions of Ld. Amicus Curiea that keeping in view the fact that Section 366A IPC would apply when the minor is taken for the purpose of illicit intercourse with "another person", the offence under Section 366A IPC cannot be said to be made out against accused Shiv Shankar. Moreover, on going through the deposition of the Prosecutrix, it is apparent that she only suspected that accused Shiv Shankar wanted to sell her and the conviction of accused Shiv Shankar for offence under Section 366A cannot be based merely on this piece of evidence. In this regard, reference may also be placed on a judgment titled as Mohd. Nisar Riyaz Khan & etc. Vs State of Maharashtra 2007 Crl. L. J. 562.
41. The record of the case further reveals that during the course of proceedings i.e. on 15.12.11, Ld. APP filed an application under Section 216 CrPC for framing additional charge under Section 366 IPC against accused persons. The application was not opposed by Ld. Amicus Curiae appearing for accused persons and accordingly, on the basis material on record charge under Section 366/34 IPC was also framed against accused Shiv Shankar and Geeta. It was further submitted by the Prosecution as well as accused that they did not wish to lead any further evidence.
42. In the light of the aforesaid facts and circumstances, case now must be analysed for offence 366 IPC. On going through the deposition of Prosecutrix, I find that she has categorically deposed that accused Shiv Shankar along with Geeta had induced her to come with them on the promise of securing a job for her. She was taken to a room at the instance of accused Geeta and was raped by accused Shiv Shankar at the instance of accused Geeta.
43. From the deposition of Prosecutix, I am thus of the considered opinion that the allegations of offence under Section 366 IPC stands duly proved against accused Shiv Shankar. The factum of commission of rape upon the Prosecutrix by accused Shiv Shankar as aforesaid, has duly established beyond reasonable doubt. It is also borne out from the material on record that accused Shiv Shankar kidnapped the prosecutrix with an intention that she may be compelled to illicit intercourse and he thereby committed an offence punishable under Section 366 IPC.
44. In the light of the above discussion, I am of the considered opinion that Prosecution has proved its cse under Section 376 and 366 IPC against accused Shiv Shankar, whereas against accused Geeta, case under Section 366A and 109/376 have been proved beyond reasonable doubt.
46. From the foregoing discussion, accused Shiv Shankar is hereby convicted for offence punishable under Section 376/366/34 IPC and accused Geeta is convicted for offence punishable under Section 366A r/w Section 109/376 IPC while they are acquitted for offence under Section 368/34 IPC and accused Shiv Shankar is also acquitted for offence under Section 366A IPC. Let both the accused persons be heard on the point of sentence.
Announced in the Open Court on December 19, 2011 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
In the Court of Ms. Kaveri Baweja Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 80/09
Unique ID No. : 02401R0272562009
State versus 1) Shiv Shankar
S/o Sh. Mojan Mandal
R/o H. No. 2/75 Gali No. 73
Punjabi Bagh, Delhi
2) Geeta
W/o Sh. Gultan Kapoor
R/o Kothi No. 8, Road No. 60
Punjabi Bagh, Delhi
Case arising out of:
FIR No. : 38/09
Police Station : Kamla Market
Under Section : 366A/368/376/34 IPC
Judgment pronounced on : 19.12.11
ORDER ON SENTENCE:
1. The above named accused persons have been convicted vide judgment dated 19.12.2011. Accused Shiv Shankar has been convicted for the offence punishable under Section 376 & 366 IPC whereas accused Geeta has been convicted for the offence under Section 109 r/w Section 376 IPC and Section 366A IPC.
2. Detailed arguments have been advanced by learned Amicus Curiae as well as ld. APP for the State on the point of sentence which have been considered in the light of facts and circumstances of the case.
3. It is submitted by ld. Amicus Curiae on behalf of convict Shiv Shankar that he is merely 24 years of age and has no previous involvements. It is also submitted that accused Shiv Shankar is working as a painter and is the sole bread earner of his family which is comprising of old aged parents, wife and younger brother. He has remained in custody during investigation, inquiry and trial in this case for little more than one year. A prayer for a lenient view is accordingly made on behalf of convict Shiv Shankar on the basis of the aforesaid circumstances.
4. As regards convict Geeta, ld. Amicus Curiae submits that she is 33 years of age having three minor children. It is further submitted that her husband has left her and has remarried. It is also submitted that there are special reasons in case of convict Geeta for which she may be awarded a lessor punishment than 7 years viz., firstly she is a lady and secondly she was not present at the time of commission of the offence under Section 376 IPC by coaccused Shiv Shankar.
5. On the basis of the aforesaid submissions, learned Amicus Curiae submits that the aforesaid mitigating circumstances are sufficient for awarding a lesser punishment to convict Geeta.
6. On the other hand ld. APP for the State submits that the offences committed by both the above named convicts are grave in nature and have been proved beyond reasonable doubt. He submits that no adequate and sufficient reasons exist in this case which may warrant exercise of discretion in favour of the convicts or may lead to awarding of lessor sentences to either of the convicts and that considering the nature of offfences committed by both the convicts, both the accused persons should be awarded maximum prescribed sentence.
7. After considering the facts and circumstances of the case, I find no force in the arguments of ld. Amicus Curiae that merely because convict Geeta happens to be a lady or that she was present at the time of commission of offence under Section 376 IPC by accused Shiv Shanker, she deserves any leniency in the matter.
8. I have considered the rival submissions in the light of evidence on record. I find that no special or adequate reason exist for exercise of any discretion in favour of accused Shiv Shankar or convict Geeta for that matter. Further, having regard to the seriousness of allegations against the convicts which have been duly established on record beyond reasonable doubt, both the above named convicts are sentenced as under:
a) for the offence punishable under Section 376 IPC, convict Shiv Shankar is directed to undergo RI for a period of 7 years in addition to payment of fine of Rs. 3500/, which shall be paid by way of compensation to the prosecutrix within 10 days from today and in default of payment of the fine the convict shall further under go SI for 3 months.
At this stage ld. Amicus Curiae submits that the prosecutrix was traced with much difficulty at the time of recording of evidence and may not be possible to trace her at this stage. Accordingly, upon deposit of fine by accused Shiv Shankar, directions be issued to the SHO concerned who shall make necessary efforts for tracing the prosecutrix. In case the prosecutrix is not available despite best efforts by the SHO concerned, the aforesaid amount shall be forfeited to the State.
b) for the offence punishable under Section 366 IPC, the convict Shiv Shanker is sentenced to undergo RI for a period of 7 years in addition of payment of fine of Rs.1500/ in default whereof he shall undergo SI for one month. Further, convict Geeta is sentenced as under:
a) for the offence punishable under Section 109 r/w Section 376 IPC, she is sentenced to RI for a period of 7 years in addition to payment of fine of Rs.2000/ in default whereof she shall undergo SI for two months.
b) for the offence punishable under Section 366A IPC the convict Geeta is sentenced to RI for a period of 7 years in addition to payment of fine of Rs.1000/ in default whereof she shall undergo SI for one month.
The aforesaid sentences for each of the convict shall run concurrently and benefit of section 428 Cr.PC be given to both the convicts. Copies be given free of cost to both the convicts.
Announced in the Open Court on 21st Day of December, 2011 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.