Delhi District Court
State vs Ashok Kumar on 9 March, 2011
IN THE COURT OF DR. SUDHIR KUMAR JAIN : ASJ-01 (OUTER),
ROHINI, DELHI.
Sessions Case No: 115/09
FIR no: 400/08
PS: Bawana
U/s: 363/366/376/328/34 IPC
State
Versus
1. Ashok Kumar,
S/o Kamal Ram,
R/o Village Guljarpuri,
Poor Banki, District Nainital,
Uttrakhand.
2. Bedo,
W/o Ramphal,
R/o Village Poot Khurd,
Delhi.
3. Ramphal,
S/o Ram Singh,
R/o Village Poot Khurd,
Delhi. ... Accused
Date of Institution : 09.09.2009
Date of Decision: 09.03.2011
JUDGMENT
Zile Singh is having three daughters and two sons including 'P' who was born on 15.4.96. Puja on 17.11.08 along with Aunt (Bua) Bedo has gone to ease herself in the field in the morning time where Ramphal State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 1 of 23 who is the husband of Bedo was also present. Ramphal and Bedo put a hankerchief on the mouth of Bedo as a result of which she became unconscious. 'P' after regaining consciousness found herself in the house of sister of Ashok situated at Nainital.
2. Zile Singh, when 'P' did not return back to home, tried to search her but she could not traced. Zile Singh on 20.11.2008 had gone to the Police Station and filed a complaint wherein suspected Ashok who has enticed away 'P'. On the basis of complaint made by Zile Singh, rukka was prepared. FIR bearing no. 400/08 u/s 363/366/376/328/34 IPC was got registered.
3. Ashok kept 'P' for about one month in the house of his sister situated at Nainital and during said period committed sexual intercourse with the 'P'. 'P' find a mobile phone one day in the house of sister of Ashok and thereafter made a call to her father Zile Singh and informed about the incident. Thereafter ASI Jai Singh, Ct. Jai Kumar, Zile Singh and other relatives went to the village Gulzarpuri, Uttranchal. They found Ashok and 'P' were standing at Bus Stand, village Gulzarpuri Chowk, Uttranchal where both of them were apprehended. Ashok (herein after referred to as " accused") was arrested. 'P' (herein after referred to as "prosecutrix") and the accused were brought back to Delhi. The prosecutrix was sent for the medical examination. During medical examination, the hymen of prosecutrix was found deflorated. The statement u/s State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 2 of 23164 Cr.P.C. of the prosecutrix was recorded on 20.12.2008. Subsequently the Bedo and Ramphal were also arrested. The accused after completion of investigation were charge sheeted for offence u/s 363/366/376/328/34 IPC. The charge sheet was submitted before the court of Metropolitan Magistrate. The accused were put to trail.
4. The accused were supplied with the copies of charge sheet along with annexed documents u/s 207 Cr.P.C. The case was committed to the court of Sessions vide committal order dated 1.9.09 passed by the concerned Metropolitan Magistrate and thereafter the case was assigned to this court for trial in accordance with law.
5. The charge for the offence punishable u/s 328 IPC and u/s 34 IPC was framed against accused Bedo and Ram Phal and the charge for offences punishable u/s 363/366/376/34 IPC was framed against accused Ashok vide order dated 27.10.09. The accused pleaded not guilty and claimed trial.
6. The prosecution examined Kiran Bala as PW-1; Ct. Om Parkash as PW-2; HC Raj Kumar as PW-3; prosecutrix as PW-4; Zile Singh as PW-5; Dr. Vandana Goel as PW-6; Dr. S.K. Aggarwal as PW-7; Shri Sudhanshu Kaushik, MM as PW-8; Ct. Manju as PW-9; Ct. Dhananjay as PW-10; ASI Jai Kumar as PW-11; and HC Sarla as PW-12.
State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 3 of 237. PW-1 Kiran Bala brought the relevant school record pertaining to the prosecutrix. PW-2 Ct. Om Parkash deposited the exhibits collected during the investigation to FSL, Rohini. PW-3 HC Raj Kumar on the basis of rukka produced by ASI Jai Kumar got recorded the FIR and also made endorsement on rukka. PW-4 is the prosecutrix. PW-5 Zile Singh is the complainant as well as father of prosecutrix. PW-6 Dr. Vandana Goel proved the gynaecological opinion of prosecutrix done by Dr. Ritu Aggarwal. PW-7 Dr. S.K. Aggarwal medically examined the prosecutrix as well as the accused on 17.12.08 at MB Hospital. PW-8 Shri Sudhanshu Kaushik, MM recorded the statement of prosecutrix u/s 164 Cr.P.C. PW9 Ct. Manju has taken the prosecutrix to MB Hospital for medical examination. PW-10 Ct. Dhananjay on 16.12.2008 went to village Guljarpuri along with Investigating Officer Jai Kumar in search of accused as well as prosecutrix and participated in the investigation at the time of arrest of accused and recovery of the prosecutrix on 17.12.08. PW11 ASI Jai Kumar being the Investigating Officer conducted the investigation. PW-12 HC Sarla on 17.12.08 has taken the prosecutrix to MB Hospital for medical examination but on that day medical examination was not conducted due to the non availability of the doctor.
8. The prosecution proved relevant school record of the prosecutrix showing the date of birth as 15.4.96 as Ex. PW 1/A to Ex. PW 1/E;
State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 4 of 23photocopy of the relevant entries in register regarding the deposition of exhibits at FSL, Rohini as Ex. PW 2/A and Ex. PW 2/B; computerized copy of FIR as Ex. PW 3/A; endorsement made by PW-3 HC Raj Kumar on rukka as Ex. PW 3/B; statement of prosecutrix u/s 164 Cr.P.C. as Ex. PW 4/A; photograph of prosecutrix as Ex. PW 4/B; complaint made by PW-5 Zile Singh as Ex. PW 5/A; arrest memo of accused as Ex. PW 5/B; personal search memo of accused Ashok as Ex. PW 5/C; arrest memo of accused Bedo as Ex. PW 5/D; personal search memo of accused Bedo as Ex. PW 5/E; MLC of prosecutrix as Ex. PW 6/A; MLC of accused Ashok as Ex. PW 7/A; emergency card as Ex. PW 7/B; an application for recording the statement u/s 164 Cr.P.C. of prosecutrix as Ex. PW 8/A; seizure memo of exhibits collected after the medical examination of prosecutrix as Ex. PW 9/A; recovery memo of prosecutrix as Ex. PW 10/A; seizure memo of exhibits collected after medical examination of accused Ashok as Ex. PW10/B; the arrival entry made by IO PW-11 ASI Jai Kumar at PS Guljarpuri, Uttranchal as Ex. PW 11/X; arrest memo of accused Ramphal as Ex. PW 11/A; FSL Reports as Ex. PW 11/B and Ex. PW 11/C; the departure entry i.e DD no.8A made by ASI Jai Kumar when he left the Police Station for visiting PS Kaldungi, village Guljarpuri as Ex. PW 11/D. Prosecutrix also identified the salwar seized during the investigation as Ex. P1.
9. The respective statements of accused were recorded u/s 313 State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 5 of 23Cr.P.C. wherein the accused pleaded innocence and denied the incriminating evidence. The accused Ashok stated that he had never gone to village Guljarpuri, Nainital and was falsely implicated in the case; he advanced a loan of Rs.20,000/- to PW-5 Zile Singh, father of the prosecutrix and when he asked to return the money then he was implicated in this case by PW-5 Zile Singh in collusion with the prosecutrix; he was apprehended by the police from the place where he was working at Delhi. The accused preferred not to lead defence evidence.
10. Shri R.A. Yadav, APP for the State and Shri Jagdish Singh, Advocate for accused Ashok and Shri Jitender Singh, Advocate for accused Bedo and Ramphal heard. Record perused.
11. In the adversarial system, every person accused of an offence is always presumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt that all the ingredients of the offence with which the accused is charged are made out. The accused enjoys the right to silence and cannot be compelled to reply. In a criminal trial the charge against the accused must be proved beyond all reasonable doubts and the requirement of proof does not lie in the realms of surmises and conjectures.
12. Section 361 IPC deals with keeping from lawful guardianship. It State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 6 of 23reads as under :
361. Kidnapping from lawful guardianship.
Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation --
Exception --
The gist of offence of kidnapping is taking or enticing away of a minor within the specified age limits or of a person of unsound mind out of the keeping of a lawful guardian. The essential ingredients of the offence under S.361 IPC are as follows :
i) The accused took or enticed away a minor or a person of unsound mind;
ii) Such minor, if male, must be under 16 years of age and, if female, under 18 years of age;
iii)The act must be one of taking or enticing out of the keeping of the lawful guardian of such minor or person of unsound mind;
iv)The act of taking or enticing away must be done without consent of the lawful guardian.
13. Section 366 IPC deals with kidnapping, abducting or inducing woman to compel her marriage, etc. It reads as under :--
366. Kidnapping, abducting or inducing woman to State V Ashok & Ors.FIR no. 400/08 PS Bawana Page No. 7 of 23
compel her marriage etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine.
To bring home the guilt of the accused under S.366 IPC, it is necessary for the prosecution to prove that the accused induced the prosecutrix or compelled her by force to go from any place; that such inducement was by deceitful means; that such kidnapping or abduction took place with the intent that the prosecutrix may be seduced to illicit intercourse and/or that the accused knew it to be likely that the prosecutrix may be seduced to illicit intercourse as a result of her abduction or kidnapping. The essential ingredients of the offence under S.366 IPC are as follows:
i) The accused kidnapped or abducted a woman;
ii) The accused intended or knew it likely that--
(a)the woman abducted or kidnapped would be compelled to marry any person against her own will, or
(b)she would be forced or seduced to illicit intercourse.
State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 8 of 2314. The offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for "Sexual offences", which encompass Sections 375, 376, 376- A, 376-B, 376-C and 376-D, IPC. "Rape" is defined in Section 375, IPC Section 375 and 376 IPC have been substantially changed by Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act, i.e 376A, 376-B, 376-C and 376-D. The fast sweeping changes introduced reflect the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is 'the ravishment of a women, without her consent, by force, fear and fraud', or as 'the carnal knowledge of a woman by force against her will'.
15. Section 375 IPC provides that a man is said to commit rape who has sexual intercourse with a woman under circumstances as described in section itself. Section 375 IPC reads as under :--
375.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 State V Ashok & Ors.FIR no. 400/08 PS Bawana Page No. 9 of 23
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 age.
Explanation. --Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception -Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Section 376 IPC prescribed punishment for rape.
16. The accused Ramphal and Bedo have been charged with the allegations that on 17.11.2008 the prosecutrix along with Bedo has gone to ease herself in the field during morning time where the accused Ramphal was also present and both of them put a hankerchief on the mouth of prosecutrix and thereafter she became unconscious. As per the prosecution, PW-5 Zile Singh, father of the prosecutrix on 20.11.2008 has State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 10 of 23lodged a complaint Ex. PW 5/A wherein accused Ashok was suspected as the person who has enticed away the prosecutrix. The prosecutrix was recovered on 17.12.07 at Bus Stand village Guljarpuri vide recovery memo Ex. PW 10/A. The statement of prosecutrix u/s 164 Ex. PW 4/A was recorded by PW-8 Shri Sudhanshu Kaushik, concerned MM on application Ex. PW 8/A. In the statement Ex. PW 8/A, the prosecutrix stated that on 17.11.08 during the morning time when she had gone to ease herself along with accused Bedo then accused Bedo and Ramphal who was also present at that place put a hankerchief on his mouth as a result of which she became unconscious. Accused Ramphal and Bedo are the husband and wife and are related to PW-5 Zile Singh, father of prosecutrix.
17. Section 328 IPC deals with causing hurt by means of poison etc with intent to commit offence. It provides that whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person or with intent to commit or to facilitate the commission of offence of knowing it to be likely that he will thereby cause hurt, shall be liable for imprisonment as per section itself. There is nothing on record that any poison or intoxicating drug was administered by the accused Bedo and Ramphal as a result of which the prosecutrix became unconscious. The accused Bedo and Ramphal for the first time were State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 11 of 23implicated by the prosecutrix in her statement u/s 164 Cr.P.C. Ex. PW 4/A. The bald allegations made by the prosecutrix that the accused Bedo and Ramphal had put a hankerchief on her mouth when she had gone to ease herself along with Bedo on 17.11.08 does not inspire any confidence and is not supported or corroborated by any other evidence. The prosecution could not prove the offence u/s 328 IPC against accused Bedo and Ramphal.
18. The main allegation against the accused Ashok is that he enticed the prosecutrix on 17.11.08 and has taken the prosecutrix to the house of her sister situated at Nainital where the prosecutrix was kept for about one month and during the said period she was subjected to sexual intercourse by the accused. As per the prosecution, the prosecutrix on the date of incident was a minor i.e less than 16 years as as per the school record, the date of birth of the prosecutrix is 15.4.96. The prosecution to prove its case examine the prosecutrix as PW-4 who supported the case of the prosecution. As per the testimony of prosecutrix on 17th day of March in the year 2008 she had gone to ease herself in the morning hours along with Bedo where accused Ramphal was also present there; accused Bedo and Ramphal put a hankerchief on her mouth and thereafter she became unconscious and when she regained consciousness then she found herself in the house of sister of accused Ashok situated at Nainital. PW-4 prosecutrix also deposed that accused Ashok committed sexual intercourse State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 12 of 23during the period when she was remained in the house of sister of accused Ashok. PW-4 prosecutrix further deposed that one day she find a mobile phone in the house of sister of accused Ashok and thereafter she gave a call to her father PW-5 Zile Singh who reached at that place along with the police. The prosecution also examined PW-5 Zile Singh who deposed that on 17.11.08 her daughter i.e prosecutrix had gone to ease herself in the morning but did not return back and thereafter he made complaint Ex. PW 5/A on 20.11.2008 wherein he suspected the accused as the person who had taken away the prosecutrix. PW-5 Zile Singh also deposed that on 16.12.08 he had gone to Nainital PS Kaladungi along with police party and on 17.12.08 at about 3.30 pm the prosecutrix as well as accused Ashok were found present at PS Kaladongi. The prosecuting also examined the Investigating Officer ASI Jai Kumar who on 17.12.08 found the accused Ashok and prosecutrix standing at the Bus Stand of village Guljarpuri near the chowk. The accused Ashok was arrested vide arrest memo Ex. PW 5/B and the prosecutrix was recovered vide recovery memo Ex. PW 11/A. The prosecutrix was sent for medical examination and she was medically examined by the PW-7 Dr. S.K. Aggarwal vide MLC Ex. PW 6/A and referred the prosecutrix for gynecological examination. The prosecutrix was gynecologically examined by Dr. Ritu Aggarwal and as per the gynecological examination, the hymen was found deflorted meaning thereby the intercourse was done with the prosecutrix. The exhibits were also collected during investigation and were sent to FSL. As State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 13 of 23per the FSL Reports, the semen was detected on the salwar Ex. P1 of the prosecutrix as well as in the micro slides having faint whitish smear collected during the medical examination of the prosecutrix.
19. The APP argued that from the evidence led by the prosecution it is proved that on the date of incident, the prosecutrix was less than 16 years and referred the testimony of PW-1 Kiran Bala, Teacher Raja Ram Mohan Roy Sarvodaya Vidyalaya, Pooth Khurd where the prosecutrix has studied up to the 6th class and also argued that the testimony of prosecutrix PW-4 is sufficient to prove the guilt of the accused Ashok in accordance with law. The defence counsel for accused Ashok primarily argued that the accused Ashok has never taken away the prosecutrix to village Guljarpuri, Nainital as alleged but the accused Ashok had been falsely implicated as the PW-5 Zile Singh, father of the prosecutrix did not return back Rs.20,000/- taken by him from accused Ashok on earlier occasion.
20. The prosecution to prove the age of the prosecutrix examined the concerned teacher from Raja Ram Mohan Roy Sarvodaya Vidyalaya where the prosecutrix has studied up to 6th class who proved the relevant school record as Ex. PW 1/A to Ex. PW 1/E in which the date of birth of prosecutrix is mentioned as 15.4.96. The incident pertains to 17.11.08. PW-1 Kiran Bala deposed that as per the register, the prosecutrix was admitted on 2.4.07 in class VI-A and her name was entered at Sr. No.3299 State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 14 of 23and as per the school record, the date of birth of the prosecutrix is 15.4.96. PW-1 Kiran Bala further deposed that the name of the prosecutrix was struck off from the school on 31.4.08 due to her long absence. As per the testimony of PW-1 Kiran Bala, the prosecutrix was admitted in the school on the basis of Application Form for admission Ex. PW 1/C and School Leaving Certificate Ex. PW 1/D issued by M.C. Primary Girls (Old) School, Poot Khurd, Delhi-39. The PW-5 Zile Singh, father of the prosecutrix also deposed that the date of birth of the prosecutrix is 15.4.96. The perusal of relevant school record Ex. PW 1/A to Ex. PW 1/E proved that the date of birth of the PW-4 prosecutrix is 15.4.96.
21. It was observed in case of Gurmit Singh V State, 2000 (3) CC Cases HC 36 that the date of birth given in the school leaving certificate be taken as authentic unless the evidence contrary is produced. It was observed in case of Manjeet V State, 2006 VII AD (Delhi) 224 by the High Court of Delhi that there is no reason why the school leaving certificate should not be given due weightage. It was further observed that entry on the birth and death register maintained by the Corporation or the Chowkidar of the village would have added to the authenticity of the school leaving certificate but in the absence of the same, school leaving certificate indicating the age of the accused ought not be discarded. It was held that there is a presumption that the age mentioned in the school State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 15 of 23record is correct unless shown to be otherwise. It was also held in case Ravi-Ul-Islam V State, 2006 (2) CC Cases (HC) 157 that in absence of any proof to the contrary, the school leaving certificate must be given due weightage and ossification test is not a sound test and there is possibility of variation of 2 years on either side. It was observed in case of State of Maharashtra V Gajanan @ Hemant Janardhan Wankhede, 2008 (3) SCC Cri 418 that the school leaving certificate and school register revealed the age of prosecutrix must be relied upon. The similar observations were earlier also made in Shahzad V State, 2007 (1) CC Cases (SC) 186. The prosecution is able to prove that the prosecutrix was minor at the time of incident i.e on 17.11.08.
22. The main component of the offence u/s 361 IPC is taking or enticing away of minor out of the keeping of lawful guardianship. The essential ingredients of the Section 361 IPC is that the accused must have taken or enticed away a girl under the 18 years of age and the act must be taking or enticing away a girl out of the lawful guardianship of the family and it should be taken without the consent of the lawful guardianship. The prosecutrix was minor and below the age of 18 years. The prosecution to prove that the accused has taken away the PW-4 prosecutrix out of the lawful guardianship of her father i.e PW-5 Zile Singh relied upon testimony of PW-5 Zile Singh. PW-5 Zile Singh deposed that on State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 16 of 2317.11.08 prosecutrix had gone to ease herself along with accused Bedo but did not return back. PW-5 Zile Singh made a complaint Ex. PW 5/A to the police on 20.11.2008 wherein the accused was suspected as the person who had taken away the prosecutrix. As per the testimony of PW-12 Investigating Officer ASI Jai Kumar and PW-3 HC Raj Kumar, PW-10 Ct. Dhananjay and PW-5 Zile Singh prosecutrix was found and recovered in the company of accused on 17.12.08 at village Guljarpuri, PS Kaladoungi, District Nainital and recovery memo of the prosecutrix Ex. PW 11/A was also prepared.
23. The defence counsel for the accused Ashok argued that the accused Ashok had never taken the prosecutrix out of Delhi i.e out of the lawful guardianship of PW-5 Zile Singh and police has made a concocted story that the accused and prosecutrix was recovered from District Nainital. The defence counsel has referred the cross examination of PW-4 prosecutrix, PW-5 Zile Singh, PW-10 Ct. Dhananjay and PW-11 Investigating Officer ASI Jai Kumar. He further argued that there are material discrepancies in their respective testimonies regarding how they have gone to village Guljarpuri, District Nainital and how they came back to Delhi. There appears to be a minor contradictions in the respective testimonies of PWs as referred herein above regarding the mode and manner in which they had gone to village Guljarpuri District Nainital and came back to Delhi after the recovery of prosecutrix and arrest of the State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 17 of 23accused. However the PW-11 Investigating Officer proved important documents to establish that all of them had gone to village Guljarpuri PS Kaladongi, District Nainital on 16.1.2008. PW-11 Investigating Officer made the DD no.8A Ex. PW 11/D when he left the Police Station in search of prosecutrix along with Ct. Dhananjay and the arrival entry Ex. PW 11/X at PS Kaladongi. The perusal of DD No.8A Ex. PW 11/D reflects that Investigating Officer along with PW-10 Ct. Dhananjay had gone to out of station i.e District Nainital and perusal of arrival entry Ex. PW 11/X reflects that Investigating Officer along with PW-10 Ct. Dhananjay went there in search of prosecutrix as well as accused Ashok. The arguments advanced by the defence counsel that accused Ashok had never gone to village Guljarpuri Nainital along with the prosecutrix does not inspire any confidence.
24. The prosecution has proved that the accused Ashok had taken away the PW-4 prosecutrix out of the lawful guardianship of PW-5 Zile Singh without his consent. The defence counsel cross examined PW-4 prosecutrix and PW-5 Zile Singh at length but there is nothing in their respective testimony which can falsify the respective testimonies of PW-4 prosecutrix and PW-5 Zile Singh. The respective testimonies of PW-4 prosecutrix and PW-5 Zile Singh inspire confidence and there is no reason to disbelieve their respective testimonies.
State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 18 of 2325. To constitute offence u/s 366 IPC, the prosecution has to prove that the accused kidnap any woman or compelled her by force to go from any place. A woman should be kidnapped or abducted with the intention that the woman may be seduced to illicit intercourse or that the accused knew it to be likely that the woman may be seduced to illicit intercourse or that woman would be compelled to marry any person against her own will. The defence counsel has argued that the prosecution has failed to prove the offence u /s 366 IPC as there is nothing in the testimony of PW-1 prosecutrix that she was kidnapped by the accused with a view to marry her. The testimony of PW-4 prosecutrix reflects that when she regained consciousness, she found herself present in the house of sister of accused Ashok where the accused Ashok had committed sexual intercourse with her against her wishes and consent. Even otherwise also the consent is immaterial as at that time, the prosecutrix was below the age of 16 years. The testimony of PW-4 prosecutrix reflects that she was taken away by the accused Ashok with the purpose to commit sexual intercourse.
26. The prosecution to prove the offence u/s 376 IPC, relied upon the testimony of PW-4 prosecutrix. The APP argued that it is ample clear from the testimony of PW-4 prosecutrix that the accused had committed sexual intercourse within the definition of Section 375 IPC against the wishes and consent of the prosecutrix. The defence counsel as stated hereinabove argued that accused Ashok Kumar had never taken the prosecutrix to village Guljarpuri, Nainital.
State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 19 of 2327. PW-4 prosecutrix deposed that the accused kept her for about one month at the house of his sister situated at Nainital and during said period, the accused Ashok committed sexual intercourse with her. The statement of prosecutrix Ex. PW 4/A u/s 164 Cr.P.C. was also recorded and in the said statement the prosecutrix stated that the accused Ashok had established physical relations with her on one or two occasions. The defence counsel argued that in the statement u/s 164 Cr.P.C. Ex. PW 4/A the prosecutrix did not implicate accused Ashok and only implicated accused Bedo and Ramphal. As mentioned herein above at the time of alleged incident, the prosecutrix was below the age of 16 years, as such, the consent, if any, on the part of prosecutrix was immaterial. The testimony of PW-4 prosecutrix established that accused Ashok had committed sexual intercourse with her during the period w.e.f. 17.11.08 to 17.12.08. The testimony of PW-4 prosecutrix also find support from gynecological opinion given by Dr. Ritu Aggarwal on MLC Ex. PW 6/A in which Dr. Ritu Aggarwal stated that the hymen at the time of gynecological examination of prosecutrix was found to be florated which means she was subjected to sexual intercourse. In FSL report Ex. PW 11/C human semen was also found on salwar Ex. P1 of the PW-4 prosecutrix seized during the investigation.
28. It is well settled that in rape cases the conviction can be solely State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 20 of 23based on the evidence of the victim, provided such evidence inspires confidence in the mind of the Court. The victim is not treated as accomplice, but could only be characterised as injured witness. It is also reasonable to assume that no woman would falsely implicate a person in sexual offence as the honour and prestige of that woman also would be at stake. However, the evidence of the prosecution shall be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that evidence of the victim may be supported by such corroborative material.
29. It was held in the case Madho Ram and another V The State of U.P., AIR 1973 SC 469 as under :--
[T] the prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasised that Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand.
State V Ashok & Ors.FIR no. 400/08 PS Bawana Page No. 21 of 23
30. It was held in case Karnel Singh V State of M.P., (1995) 5 SCC 518 as under :--
A woman who is a victim of sexual assault is not an accomplice to the crime but is a victim of another person's lust and therefore her evidence need not be tested with the same amount of suspicion as that of an accomplice. She is not in the category of a child witness or an accomplice and therefore the rule of prudence that her evidence must be corroborated in material particulars has no application; at the most the court may look for some evidence which lends assurance.
31. This legal proposition was also reasserted in case Dinesh @ Buddha V State of Rajasthan, AIR 2006 SC 1267 (1).
32. There is no reason to disbelieve the testimony of PW-4 prosecutrix to the fact that at District Nainital in the house of her sister, the accused Ashok committed sexual intercourse with her and the said part of testimony of prosecutrix appears to be cogent, consistent, clear and narrative of all facts. The testimony of PW-4 prosecutrix is also supported by the medical and forensic evidences. The prosecutrix in statement Ex. PW 4/A recorded by PW-8 Shri Sudhanshu Kaushik, concerned Metropolitan Magistrate after being satisfied the voluntariness, also stated that accused Ashok has established physical relation with her State V Ashok & Ors.FIR no. 400/08 PS Bawana Page No. 22 of 23
on one or two occasion at the house of his sister. The accused during his medical examination vide MLC Ex. PW 7/A was also found capable of performing sexual intercourse.
33. In view of above discussion, the prosecution proved that accused Ashok has taken away the prosecutrix out of the lawful guardianship of her father i.e PW-5 Zile Singh with the intention to commit sexual intercourse and also committal sexual intercourse during the period w.e.f. 17.11.08 to 17.12.08 at the house of his sister situated at Nainital. Accordingly, the accused Ashok is convicted for offence u/s 363/366/376 IPC. However, accused Bedo and Ramphal are acquitted for offence u/s 328/34 IPC.
Announced in open court (Dr.Sudhir Kumar Jain) on 9.3.2011 ASJ-01 (Outer) Rohini, Delhi. State V Ashok & Ors. FIR no. 400/08 PS Bawana Page No. 23 of 23
IN THE COURT OF DR. SUDHIR KUMAR JAIN : ASJ-01 (OUTER), ROHINI, DELHI.
Sessions Case No: 115/09 FIR no: 400/08 PS: Bawana U/s: 363/366/376/328/34 IPC State Versus Ashok Kumar, S/o Kamal Ram, R/o Village Guljarpuri, Poor Banki, District Nainital, Uttrakhand. ... Convict ORDER ON SENTENCE Shri R.A. Yadav, APP for the State and Shri Jagdish Singh, Advocate for convict heard on quantam of sentence.
2. The counsel for convict stated that convict is aged about 26 years and is married having two children aged about 6 years and 3 years; the convict is the sole bread earner in his family; no any other criminal case is pending against him and the antecedents of the convict are clear. The APP State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 24 of 23stated that considering the facts and circumstances of the case, the convict be awarded maximum punishment.
3. It was held in case Jashubha Bharatsing Gohil V State of Gujarat, (1994) 4 SCC 353 that the protection of the society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence.
4. In case State of Punjab V Prem Sagar and Ors. (2008) 7 SCC 550 it was observed that whether the court while awarding sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality would depend upon the facts and circumstances of each case and while doing so nature of offence said to have been committed by the accused plays an important role. A wide discretion is conferred on the court but said discretion must exercise judicially while sentencing an accused. It would depend upon the circumstances in which the crime has been committed and the mental state and the age of the accused is also relevant.
5. In State of Punjab V Gurmit Singh, (1996) 2 SCC 384 it was observed as under :--
Of late, crime against women in general and rape in particular is on the increase. It is an irony that State V Ashok & Ors.FIR no. 400/08 PS Bawana Page No. 25 of 23
while we are celebrating women's rights in all spheres, we show little or no concern for her honor. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but also inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault-it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim; a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a greater responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.
6. PW-4 prosecutrix at the time of commission of offence was minor and was taken away by the convict out of the lawful guardianship of her father PW-5 Zile Singh. The prosecutrix was taken to District Nainital where she was subjected to sexual intercourse by the convict. The convict is aged about 26 years and has to maintain his family comprising his wife and two children. The convict belonged to the lower strata of society. The convict is in JC since 17.12.2008. The antecedents of the convict are clear. The proviso clause attached to Section 376 IPC provides that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a period less than seven State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 26 of 23years.
7. After considering, particularly the facts pertaining to the socio-
economic condition of the convict, the convict is sentenced to RI of two years along with fine of Rs.2000/- in default one month SI for offence u/s 363 IPC; and RI for a period of 3 years along with fine of Rs.3000/- in default 2 months SI for the offence punishable u/s 366 IPC; and RI for 3½ years along with fine of Rs.3000/- in default 2 months SI for offence punishable u/s 376 IPC. All the sentences shall run concurrently. The benefit of Section 428 Cr.P.C. be given to the convict. Case property is confiscated to the State. The Committal warrant be issued against the convict. A copy of the judgment along with order on sentence be supplied to the convict free of cost. File be consigned to the record room.
Announced in open court (Dr.Sudhir Kumar Jain) on 9.3.2011 ASJ-01 (Outer) Rohini, Delhi. State V Ashok & Ors. FIR no. 400/08 PS Bawana Page No. 27 of 23
34.It was observed by the Supreme Court of India in case Bhoop Ram V State of Uttar Pradesh, 1989 SCC (Cri) 486 that the school certificate cannot be rejected only on the surmises that it is not unusual for the parents to understate age of their children. It was further observed that rather medical certificate is based on estimate and slip of error in it cannot be ruled out.
State V Ashok & Ors.
FIR no. 400/08 PS Bawana Page No. 28 of 23