Delhi District Court
State vs . Meena Devi on 5 December, 2007
-: 1:-
IN THE COURT OF SHRI V.K. BANSAL
ADDL. SESSIONS JUDGE
NEW DELHI
IN RE: Sessions Case No. 87/06
State Vs. Meena Devi
W/o Sh Shiv Nath
R/o C-82, Ranaji Enclave,
Najafgarh, New Delhi
FIR No. 503/03
PS Najafgarh
U/s 376 (g)/ 342 IPC
JUDGMENT
On 08.09.03 prosecutrix was present at home. Her father had gone for duty and her mother had gone to the village in Bihar. Accused went to her house to call her. Prosecutrix went to the house of accused. She found that Sanjay was sitting in the room and husband of Meena Devi accused was also there. Meena Devi pushed the prosecutrix in the room where Sanjay was sitting and bolted the door from outside. Sanjay raped her against her wishes. She raised alarm on which her brother Kanhaiya came there and rescued her. He brought her back. When her father returned from the duty, she narrated the whole story to her father. Her father -: 2:- took her to Tilak Nagar. When mother of the prosecutrix returned from Bihar she told the entire facts to her mother on which she was taken to police station on 20.09.2003. Statement of prosecutrix was recorded and on the basis of which FIR was registered. Prosecutrix was got medically examined. Clothes which the prosecutrix was wearing on the day of incident were seized. Accused Shiv Nath was arrested and statement of prosecutrix was also recorded u/s 164 Cr. P.C. The birth certificate was seized. Lateron accused Sanjay was also arrested but accused Meena Devi could not be arrested. She was declared Proclaimed offender. Charge sheet against accused Sanjay and Shiv Nath was filed while accused Meean Devi was declared Proclaimed offender. Both accused Shiv Nath and Sanjay were convicted by my Ld Predecessor on 09.05.2005 for the offences punishable U/s 376 (2) (g) and U/s 342 IPC and were sentenced to undergo 10 years RI with fine of Rs 5,000/- for the offence punishable U/s 376 (2) (g) IPC in default to undergo SI for one year and were also sentenced to RI for three months for the offence punishable U/s 342 IPC. Thereafter the present accused was arrested on 21.12.2005. supplementary charge sheet was filed against -: 3:- her. Ld M.M. After complying with the provisions of sec 207 Cr. P.C committed the case to the Sessions Court as the offence punishable U/s 376 IPC is exclusively triable by the Sessions court. Accused was charged for the offence punishable U/s 342 IPC and 109 read with sec. 376 of IPC to which she pleaded not guilty and claimed trial. To bring home the guilt of the accused prosecution examined 16 witnesses. Thereafter Ld Addl. P.P closed prosecution evidence. Statement of accused u/s 313 Cr. P.C was recorded wherein she stated that she is innocent. She has been falsely implicated in this case. Her bhanja Sanjay was having love affairs with the prosecutrix PW2 and they were to get married but when Sanjay refused to marry then the prosecutrix falsely implicated all of us and actually she and her husband accused Shiv Nath were not present in Delhi on the day of incident. They had gone to their native place on the demise of her husband's brother. She wished to lead evidence in defence and examined Naresh Kumar as DW1. Thereafter the case was fixed for arguments.
2. I have heard Ld Addl. P.P for the state, ld defence -: 4:- counsel for the accused and perused the record.
3. Ld Addl. P.P submitted that in the present case prosecution had examined prosecutrix as PW2. She had stated on oath that the accused came to her house and called her. She went along with her. Accused Sanjay was sitting in the room. The present accused pushed her inside the room and closed the door. Inside the room accused Sanjay removed her suit and thereafter committed rape. She raised alarm but nobody came forward to save her. Ld Addl. P.P submitted that this testimony of PW2 clearly show that it was the accused who had taken the prosecutrix to her house and pushed her inside the room where co-accused Sanjay was there and closed the door and inside the room the prosecutrix was raped. The fact that she was raped is established by the medical evidence which has been proved as Ex. PW8/A and according to the MLC the doctor has opined that the hymen does not appear to be intact. Ld Addl. P.P submitted that in the light of the testimony of PW2 prosecutrix that she had been raped and that she was pushed inside the room by the accused herein, it stands proved that it was the accused -: 5:- herein who had abated the commission of offence of rape. She had pushed PW2 inside the room knowing that Sanjay is there and then closed the door. She was there and she did not open the door even after the prosecutrix raised alarm. All these facts clearly establish that she had wrongfully confined Kumari prosecutrix and abated the commission of offence of rape. So far as age of the prosecutrix is concerned, prosecution had proved on record the school certificate of the prosecutrix which is Ex. PW7/A. The witness had also proved the admission register record which is Ex. PW13/B. According to this her date of birth was 10.12.88. The offence has been committed on 08.09.2003. The prosecutrix was only 15 years on the day of commission of offence. She was not able to give consent as she was 15 years as per law. Even otherwise there was no consent as deposed by the prosecutrix that she was raped by the accused Sanjay. Even the defence does not say that it was by consent. Ld Addl. P.P submitted that prosecution has proved its case beyond doubt and prayed that the accused be convicted.
4. Ld defence counsel submitted that in the present case -: 6:- according to the story of prosecution this offence has been committed on 08.09.2003 but the FIR of the case has been registered on 20.09.2003. There is delay of 12 days. No plausible or reasonable explanation has been given to explain the delay in lodging of FIR. Ld counsel submitted that according to the prosecution case the factum of rape was told by the prosecutrix to her brother who told this fact to her father on the same day but surprisingly no FIR was lodged by the father of the girl on the same day. He has stated that he firstly called his wife and then lodged the complaint. He had stated that he made a telephone call to his wife after 2-3 days of the incident. She returned after 4-5 days thereafter. If this is to be believed then PW3 probably informed his wife on 11.09.2003 and on 16.09.2003 his wife reached Delhi. Even thereafter there was no FIR or complaint to the police till 20.09.2003. There is no explanation as to what they were doing in between and why FIR was not lodged. PW3 and PW4 has also contradicted each other. According to PW3 she had not gone to Bihar to bring back his wife and already informed her on telephone to PW4 while appearing in the court stated that her husband came to the village and told her that her -: 7:- daughter had been raped. Thereafter she came to Delhi along with her husband, went to the police station and lodged the report. Ld counsel submitted that infact no such incident has taken place. They have concocted the story and lodged the report. The present false complaint was lodged at the instance of PW3 as there was complaint made by Shiv Nath in the police station against PW3, PW4 and PW2. This fact is stated by PW3 himself. Ld counsel submitted that delay in lodging of FIR creates doubt about the truthfulness of the story of prosecution. Benefit of the same be given to the accused and she be acquitted. Ld counsel in support of his arguments relied upon the judgment cited as Ram Rai Vs. State of Rajasthan, 2002 (2) Criminal Court Cases 238 (Rajasthan) and State of Rajasthan Vs. Toma Ram & others, 2003 (3) Criminal Court Cases 368 (Raj.).
5. Ld defence counsel further submitted that the age of the prosecutrix is not proved. There is no evidence on record that the prosecutrix was only 15 years of age on the day of commission of offence. The onus was on the prosecution to establish the same but no document has been placed on -: 8:- record. The certificate Ex. PW7/A is a procured document. Even otherwise while taking admission the father of the prosecutrix has not placed any document regarding birth of prosecutrix before the school authorities. Witness from the school has also contradicted the testimony of father. According to the school record prosecutrix was admitted in the village school and photocopy of the register is proved as PW13/B. According to PW13 the date of birth was mentioned on the basis of the affidavit. Witness has also stated that there was change in the date from 10.02.88 to 10.12.88. Ld counsel submitted that in the absence of the document on the basis of which the date of birth was entered in the register. This cannot be taken as true. Father examined as PW3 has clearly stated that no affidavit was given in the school at the time of admission. The source of information on the basis of which date of birth was recorded is not disclosed. PW3 and PW4 have also contradicted each other about the date of birth of prosecutrix. According to mother her eldest son was 25 ½ years. Prosecutrix is 3 ½ years younger to her eldest son. All this evidence makes it clear that the prosecutrix was major on the date of commission of offence. She was able to give the -: 9:- consent being more than 16 years of age. Ld counsel submitted that prosecutrix was in love with accused Sanjay. She had written letters to Sanjay which prosecutrix has deliberately refused to have written by her. Handwriting expert has proved these letters bears her signatures. Keeping in view these facts the testimony of PW2 does not inspire confidence and no reliance can be placed upon the same as she had deliberately told lie before the court. The handwriting expert report Ex. PW3/DA clearly show that document Ex. D1, D2 and D3 bears signature of the prosecutrix. It is prayed that keeping in view the facts that she was in love with Sanjay and she had relations with her of her own consent, accused herein cannot be held guilty for abatement of commission of offence. There are also contradictions in the testimony of PW2 and brother of PW2 examined as PW5 who stated that he had gone to the house of accused at 3 pm or in the afternoon whereas according to the prosecutrix this incident had taken place at about 10.30 am which clearly show that no such incident had taken place and infact the prosecutrix is deposing falsely. Ld counsel submitted that the onus was on the prosecution to prove the guilt of the accused beyond doubt which has not -: 10:- been done. Ld counsel in support of his arguments relied the following judgments K. Laxman Rao Vs. State of A. P., 1999 (2) Crimes 48, wherein it has been held that:-
"Evidence as to date of birth based on school record could not be believed unless corroborated by other evidence".
Naravan @ Naran Vs. State of Rajasthan, 2007 (2) JCC 1202 wherein it has been held that:-
"Evidence of prosecutrix herself, if acceptable, is sufficient to establish charge of rape against accused-But where her evidence is so artificial and full of material contradictions-same cannot be accepted and conviction based thereon cannot be sustained."
and Radhu Vs. State of Madhya Pradesh, 2007 (4) JCC 2603.
Ld counsel further submitted that for establishing abatement prosecution has to prove that the accused has instigated the commission of offence or that the accused had intentionally aided or actively participated in the commission of offence. Mere presence of accused on the spot or not coming forward to help the victim does not amount to abatement. Ld -: 11:- counsel in support of his arguments relied upon the judgment Ranganayaki Vs. State by Inspector of Police, 2005 (1) Criminal Court Cases 564 (SC) and Pardeep Kumar Vs. Union Administration Chandigarh, 2006 (3) JCC 1347.
6. Ld defence counsel further submitted that infact the accused herein along with her husband was not in Delhi. They have gone to Bihar as brother of Shiv Nath, the co-accused had died. They had gone to Bihar on 12.08.2003 which fact is admitted by the witness PW3. They had returned from there after about one and a half month and were not in Delhi. Ld counsel submitted that as they were not in Delhi the question of committing any offence does not arise. This fact is admitted by the prosecution witnesses themselves. Even PW4 had admitted that Meena Devi and Shiv Nath had gone to the village as the brother of Shiv Nath had died. Ld counsel submitted that keeping in view all these contradictions and the testimony of the witnesses and the fact that prosecutrix was in love with accused Sanjay which is evident from the fact that she had written letters Mark D1 to D7 to Sanjay which bears signature of prosecutrix as is evident from the report of -: 12:- the handwriting expert proved as Ex. PW3/DA coupled with the fact that accused was not in Delhi on the day of commission of offence, accused is liable to be acquitted.
7. After hearing the arguments and going through the record, it is pertinent to mention that in the present case the accused herein was earlier Proclaimed Offender and the trial of the co-accused Sanjay and Shiv Nath continued where they were held guilty. In the present case prosecutrix was examined as PW2. She had fully supported and corroborated the prosecution case. She had stated that accused came to call her. She went along with her in the house. In the room Sanjay was sitting. She was pushed inside the room by the accused. Accused thereafter closed the door from outside. Sanjay removed her clothes in the room and raped her. She raised alarm but the accused did not open the door. Her brother came and opened the door. No doubt brother says that he had gone there in the afternoon but he also says that he had gone there as he had heard the cries of her sister Soni but when he reached there he found the room bolted from outside. He opened the door. He found that her sister Soni -: 13:- was there. Thereafter he took his sister to his house. Ld counsel has strongly argued that PW5 does not support the prosecution case as according to him he had gone in the afternoon whereas this incident has taken place at about 10.30 am according to the prosecutrix. Meaning thereby that he had not gone there at the time of alleged commission of offence and has been introduced lateron. Keeping in view the fact that witness PW5 was only 18 years of age in the year 2007 when his statement was recorded and the incident had taken place in the year 2003 and that his statement was recorded after a gap of four years, certain contradictions were bound to occur. The difference in time is not such a major contradiction keeping in view the fact that he was only 14 years of age when the incident had taken place and also the time gap in recording his statement.
8. So far as the delay in lodging of FIR is concerned it is known fact that generally cases of sexual assault are not reported to the police to save the honour of family and report is made only after due considerations and consultations as to whether it is to be reported or not. In the present case when -: 14:- the offence was committed mother of the prosecutrix was not in Delhi. She had gone to her village as has come in the testimony of PW2, PW3 and PW4. The matter was brought to the notice of PW3 immediately after commission of offence and he waited for his wife to return. However, he reported the matter to his wife on telephone according to PW3 and according to PW4 he had himself gone to the village and told her the entire facts. Thereafter she came to Delhi and reported the matter. In my opinion this explanation of PW2 and PW3 itself is sufficient to explain the delay in lodging of FIR and I do not find any reason to disbelieve the prosecution case simply on this ground.
9. So far as the date of birth is concerned according to the ld counsel PW3 and PW4 were not able to give satisfactory reply about the age and they had contradicted each other. In my opinion once the school record is there according to which her date of birth is 10.12.88. Even if overwriting is taken into consideration her date of birth is 10.02.88. This incident has taken place on 08.09.2003. Even then she was less than 16 years of age on the date of commission of offence and was not -: 15:- in a position to given consent. Even otherwise there is nothing on record that PW2 had sexual relations with Sanjay with her consent. Witness had specifically stated that she was raped and she raised alarm but nobody came forward to save her. Only after sometime her brother reached there and PW5 her brother had stated that he heard the shouts of her sister, he went to the house of accused, the door was found bolted from outside. He opened the bolt and there in the room prosecutrix was with the accused Sanjay. Keeping in view all these facts there is nothing on record to suggest that the prosecutrix had sexual relations with the accused Sanjay of her own free will. The defence has placed on record certain letters showing the intimacy of PW2 prosecutrix with accused Sanjay, but in my opinion, having proximity or relations with the boy does not in any manner permit a person to have sexual intercourse with the girl against her wishes. In the light of testimony of PW2 that she was raped and that she raised alarm but nobody came forward clearly show that she was not a consenting party to the rape. I do not find any reason to disbelieve PW2 on this count. There is no reason as to why PW2 and her parents would falsely implicate the accused and put the entire -: 16:- future and honour of PW2 on stake.
PLEA OF ALIBI
10. So far as the plea of alibi is concerned no such document has been placed on record by the accused that she was not in Delhi. Nodoubt PW3 has admitted that accused has gone to Bihar due to death of brother of Shiv Nath on 12.08.2003 but that does not mean that they have not returned thereafter. It was for the accused to show that she was not in Delhi or at the spot of commission of offence when the offence was committed. PW2 and PW5 have specifically stated that accused was there in the house and according to PW2 it was she who had called the prosecutrix, pushed her in the room of Sanjay where she was raped. The onus was on the accused to prove the plea of alibi which she was not able to prove.
11. It is well settled principle of law that simply because there is no injury on the person of prosecutrix does not mean that rape has not been committed. In the present case the prosecutrix was raped on 08.09.2003. She was medically -: 17:- examined on 20.09.2003 after 12 days of commission of offence. Therefore, in the circumstances absence of any injury on the person of prosecutrix is not fatal. Even otherwise absence of injuries on private parts of the victim will not by itself falsify the case of rape. In having this opinion I am fortified by the case cited as Radhu Vs. State of Madhya Pradesh 2007 (4) JCC 2603.
12. Keeping in view the above discussion and the facts of the case, I am of the opinion that it was the accused who had called the prosecutrix PW2 from her house and she had pushed her inside the room where Sanjay was sitting and there prosecutrix PW2 was raped by Sanjay. She raised alarm but the door was bolted from outside. When PW5 reached, at that time Meena Devi was also there and door was found bolted. This fact also clearly show that even after hearing the shouts of PW2, Meena Devi did not open the door or helped in saving her from the co-accused Sanjay who had already been held guilty and convicted. She by bolting the door did not allow the prosecutrix to leave the room and confined her in the room thus facilitated the abatement of commission of -: 18:- crime of rape. The contention of ld counsel that she was merely present is not tenable in the light of evidence available on record. The evidence clearly shows that accused had actively participated and facilitated the commission of offence of rape. In my opinion, the prosecution has fully discharged its onus. I, therefore, hold accused guilty for the offence punishable U/s 376 read with sec. 109 of IPC and 342 of IPC.
Announced in open court ( V.K. BANSAL)
dated : 28.11.2007 ADDL. SESSIONS JUDGE
NEW DELHI
-: 19:-
IN THE COURT OF SHRI V.K. BANSAL
ADDL. SESSIONS JUDGE
NEW DELHI
IN RE: Sessions Case No. 87/06
State Vs. Meena Devi
W/o Sh Shiv Nath
R/o C-82, Ranaji Enclave,
Najafgarh, New Delhi
FIR No. 503/03
PS Najafgarh
U/s 376 (g)/ 342 IPC
ORDER ON SENTENCE
Sh Ahmad Khan Addl. P.P for the state.
Convict Meena Devi produced from JC.
Heard on the point of quantum of sentence.
Ld Addl. P.P for the state submitted that convict has taken prosecutrix from her house to her house and pushed her in the room where her co-accused was waiting for her, bolted the door from outside, in the room she was raped, she raised alarm but she was not allowed to come out. Convict has therefore participated in the offence and thereby abated the commission of offence of rape. It is prayed that keeping in view the conduct of the convict she be given severest punishment.
Ld defence counsel submitted that convict is a lady. She -: 20:- is not having any previous criminal record. She is having three minor children aged about 17-1/2, 16 and 12 years respectively. All are school going and there is nobody to look after them. Convict belongs to a lower strata of the society. It is prayed that a lenient view may kindly be taken.
Keeping in view the facts and circumstances of the case and the fact that it was she who was instrument in the commission of offence of rape. She called her from her home pushed her into the room where her nephew was waiting for her, there she was raped while the convict was standing outside with the door bolted. Keeping in view all these facts I sentence her to undergo Seven Years RI with fine of Rs 10,000/- in default to undergo Six Months RI for the offence punishable U/s 376 read with 109 of IPC. She is also sentenced to undergo One Year RI with fine of Rs 1,000/- in default to undergo One Month SI for the offence punishable U/s 342 IPC. Benefit of section 428 Cr. P.C is given to the convict. Both the sentences shall run concurrently. Fine realised, same be given to the prosecutrix.
File be consigned to record room.
Announced in open court ( V.K. BANSAL) -: 21:- dated : 05.12.2007 ADDL. SESSIONS JUDGE NEW DELHI -: 22:- State Vs. Meena Devi FIR No 503/03 PS Najafgarh 05.12.2007
Present: Sh. Ahmad Khan Addl.P.P for State Convict produced from JC.
Sh C.S. S. Tomar defence counsel for the convict. Vide separate order on sentence of even date, convict is sentenced to undergo Seven Years RI with fine of Rs 10,000/- in default to undergo Six Months RI for the offence punishable U/s 376 read with 109 of IPC. She is also sentenced to undergo One Year RI with fine of Rs 1,000/- in default to undergo One Month SI for the offence punishable U/s 342 IPC. Benefit of section 428 Cr. P.C is given to the convict. Both the sentences shall run concurrently. Fine realised, same be given to the prosecutrix.
File be consigned to record room.
( V.K. BANSAL ) ASJ:NEW DELHI -: 23:- FIR No. 503/03 PS Najafgarh 28.11.2007 Present: Sh Ahmad Khan Addl. P.P for the state.
Accused produced from JC.
Sh C.S. S. Tomar counsel for the accused.
Vide separate judgment of even date accused is convicted for the offence punishable U/s 376 read with sec. 109 of IPC and 342 of IPC.
Case is now to come up on 01.12.2007 for arguments on point of sentence.
( V.K. BANSAL ) ASJ:NEW DELHI