Delhi District Court
State vs Sukhbir S/O Ganpat R/O A4/30 New Kondli ... on 31 January, 2011
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IN THE COURT OF MS SAVITA RAO ADDL.SESSIONS
JUDGE (EAST02) DELHI
SC NO. 42/10
DATE OF INSTITUTION 03.5.2008
DATE OF RESERVE FOR ORDER: 24.1.2011
DATE OF DECISION: : 29.1.2011
State Vs SukhbIr s/o Ganpat r/o A4/30 New Kondli Delhi & Jahan Pur, PS.
Khurja, District, Bulandseher UP.
FIR No. 53/08
P.S. New Ashok Nagar
U/s 376/363/506 IPC
JUDGEMENT
1. The prosecution case is based upon the facts that on on 8.2.2008 at about 7.30am near Govt Girls Senior Secondary School, New Kondli, Delhi, accused Sukhbir kidnapped the prosecutrix aged about 13 ½ years out of her lawful guardianship and took her to Guest house at Vaishno Devi, J&K where she was raped by him on two or three occasions and thereafter the prosecutrix reached back to Delhi on 14.2.2008. She made a telephonic call to her parents and then they recovered the prosecutrix from the house of sister of accused and then she was taken to P.S and thereafter she was got medically examined and her statement was got recorded.
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2. The investigation of the case was conducted and during the investigation, statement of witnesses were recorded, prosecutrix was recovered and thereafter the accused was arrested. Statement of prosecutrix u/s 164 CrPC was also got recorded. After completing the other formal investigation, the charge sheet u/s 363/366/376 IPC was presented before the court for trial.
3. After being heard, the accused was charged u/s 363/366/376 IPC vide order dated. 22.5.2008 to which he pleaded not guilty and claimed trial.
4. In order to substantiate the charge, the prosecution has relied upon the testimonies of thirteen witnesses i.e. Mithlesh Pandey, Kumari Sushma, Smt. Mansa Pandey, Ct. Rakesh Kumar, Ct. Beer Pal, Ct. Puran Chand, Sh. G.N Pandey, W/HC Pista Sharma, Dr. Samta Gupta, Dr. Rajni Lohia, Dr. Vinay Singh and SI Yogender. In fact, the prosecution has examine its all witnesses in support of its case.
5. PW1 Mithlesh Pandey detailed the fact of dropping his daughter at her school as well as of her found missing since 8.2.2008 and the production of his daughter in the P.S on 14.2.2008. He proved the DD No. 47A as well as FIR lodged on 12.2.2008 vide Ex.PW1/F as well as PW1/B. He further deposed about the fact that in the statement given to the police, he had stated that Sukhbir had kidnapped his daughter. He further proved his signature on recovery memo Ex. PW1/C.
6. PW2 Sushma Pandey is the prosecutrix who deposed that she knew the accused Sukhbir Singh present in court who used to reside at House No. A4/30 New Kondli and used to visit her school. On 8.2.2008 her father dropped her in the morning at about 7.20am at her School Govt Girls 3 Secondary New Kondli. At that time, she was studying in class 8th. When her father left the school, accused Sukhbir came there. He enticed her and asked her to go with him to Vaishno Devi. She refused to go to Vaishno Devi but he again enticed her and took her to Vaishno Devi Temple, Jammu & Kashmir. Accused Sukhbir kept her in a room of guest house upto 13.2.08 but she did not remember the name of guest house. In Katra during their stay accused committed rape upon her two/three times. They left Katra on 13.2.2008 and reached at Delhi on 14.2.2008. He took her to the house of his sister in Delhi at Khora. Accused threatened her at the house of his sister that in case she would tell any one he would kidnap her father. At about 4.00pm on 14.2.2008 she informed to her father on telephone. Her parents came there and took her to P.S New Ashok Nagar. Police officials took her to the hospital where she was medically examined. She proved her statement as Ex. PW2/A.
7. PW3 W/HC Pista Sharma is the duty officer and she proved the copy of FIR as Ex. PW3/A as well as endorsement there on as Ex. PW1/B. PW4 Ct. Veer Pal deposed that on 14.2.2008 she had taken the prosecutrix Sushma to LBS Hospital for her medical examination. They got her medially examined. She further deposed that after medical examination doctor handed over four sealed pullandas alongwith sample seal which were taken into possession vide memo Ex. PW4/A. PW5 HC Mukesh is the witness who had brought the register NO. 19 and proved the relevant entries of this case at serial No. 1755 and 1756 and he proved the copy of the relevant entries as Ex. PW5/A.
8. PW6 Dr. Rajni Lohia deposed the fact of examination of accused Sukhbir brought by the police and collecting of semen, pubic hair, blood and 4 under garments. On local examination, there was no external fresh injury found on the person of accused. His semen, blood samples were collected, pubic hair and under garments were sealed in separate pullanda with the seal of hospital and the pullanda were handed over to police. The patient was referred to forensic expert for the opinion of impotency. She proved the MLC prepared by her as Ex. PW6/A which bears her signature at point A. PW7 Dr. Samta Gupta deposed that on 14.2.2008 she had examined the prosecutrix. On local examination her pubic hair was found normally developed. Labia Majora, labia minora normal. Clitoris normal. Posterior forehette normal. Hymen not intact. Admits one finger easily. There was no injury mark on genitalia. Her pubic hair, vaginal slides, vaginal swab and under garments were sealed separately and thereafter sealed in a pullanda with the seal of hospital and handed over the same to the police. She proved the MLC prepared by her as Ex. PW7/A. She opined that possibility of rape cannot be ruled out.
9. Ct. Rakesh Kumar is also examined as PW7 in the instant matter. He deposed that on 12.2.2008 duty officer had handed over the copy of FIR and original rukka with the instruction to deliver the same to the IO of the case and accordingly, he took the same and delivered both the documents to the IO.
10. PW9 Sh. G.N Pandey, Senior Civil Judge/SCJ Karkardooma Courts, Delhi had recorded the statement of prosecuctrix u/s 164 CrPC and proved the same as Ex. PW2/A. He also proved his certificate regarding the true and correctness of the statement recorded by him as Ex. PW9/A. PW10 Ct Puran Chand is the witness of the arrest of accused from Mangal Bazar Chowk where he was waiting for the bus . He has proved his signature on 5 the arrest memo Ex. PW10/A and personal search memo Ex. PW10/B. He further deposed that the accused had confessed his guilt vide Ex. PW10/C. He further deposed that the doctor handed over the exhibits to the IO alongwith sample seal which were seized vide seizure memo Ex. PW10/D. PW13 Ms. Anita Chhari being the senior Scientific Assistant, Biology, examined the contents found in the parcel. Her detailed report to this effect is Ex. PW13/A and report of biology division was also furnished by her in this matter after examination and she proved the same as Ex. PW13/B.
11. PW11 SI Yogender is IO of the present case. He deposed that he had received the DD NO. 47 B on 8.2.2008 regarding missing of a girl namely Sushma Pandey which was got lodged by her father Mithlesh Pandey. He further deposed that on 12.2.2008 Mithlesh Pandey came to PS and got recorded his statement vide Ex. PW1/B. He prepared the tehrir Ex. PW11/A and got the case registered from duty officer. He deposed that on 14.2.2008 proseuctirx Sushma was brought in the P.S by her mother and father and handed over the prosecutrix to him and he prepared a recovery memo in this regard which is Ex. PW1/C. He further deposed that he had recorded the statement of prosecutrix u/s 161 CrPC. Thereafter, he got medially examined the prosecutrix from LBS hospital. He further deposed that the doctor handed over him the pullanda sealed with the seal of hospital alongwith sample seal, stated to be containing under garments, vaginal slide, vaginal swab and pubic hair which were seized vide seizure memo Ex. PW4/A. He further deposed that on 15.2.2008 the prosecutrix was brought in the court by her mother and he also reached in the court and on his request her statement u/s 164 CrPC was recorded by Ld. MM and the copy of same was given to him at his request. He further 6 deposed that when he along with Ct. Puran Chand was conducting the search of accused, a secret informer informed him that accused was present at Mangal Bazar Chowk, New Kondli Delhi and he alongwith Ct. Puran Chand and secret informer reached at Mangal Bazar and at the instance of informer he apprehended the accused. He proved the arrest memo of accused as Ex. PW10/A and his personal search was conducted vide memo Ex. PW10/B. He also proved the disclosure statement made by the accused as Ex. PW10/C. He further deposed that the doctor handed over him four sealed pullanda with the seal of hospital stated to be containing the under garments, blood sample, semen sample and pubic hairs alongwith sample seal which were seized vide memo Ex. PW10/D. He further deposed that exhibits were deposited in Malkhana and accused was produced in the court and was sent to J/C and the exhibits of this case were sent to FSL and FSL result is Ex. PX and PY.
12. PW12 (8) Dr. Vinay Kumar Singh deposed that on 16.2.2008 at about 11.45am one Sukhbir was brought for sexual potency test. After his examination, he opined that there was nothing that was suggestive that accused was incapable of sexual intercourse or impotent. He proved his report in this regard on the reverse of MLC Ex. PW6/A is Ex.PW12/A which bears his signature at point A.
13. Accused has been examined u/s 313 CrPC. The entire incriminating evidence was put to the accused wherein he impleaded his false implication and innocence. He stated that it was prosecutrix who had taken him to the Katra where he had stayed with her up to 30.2.2008 because they loved each other but he denied that he had committed any rape upon her. However, he submitted that he did not want to lead any evidence in his 7 defence.
14. I have heard the arguments on behalf of State by Ld. Addl. PP Sh. A.K Mishra as well as Sh. G.M Faruqi, Ld. Counsel for the accused.
15. The case of prosecution is based upon the three sections of IPC i.e. u/s 363/366/376 IPC. For the offence of kidnapping to be proved u/s 363 IPC, the only condition is that a minor must be taken or enticed away out of lawful guardianship of such minor without the consent of such guardian. The minor as per section 361 IPC would be under 16 years of age if male and under 18 yrs of age if female whereas for the offence u/s 366 IPC, the kidnapping must be with intent to compel a woman or with knowledge that such woman shall be compelled to marry against her will or may be forced or seduced to illicit intercourse. For section 366 IPC, the word minor is not used and this is applicable for a woman of any age. Whereas for offence u/s 376 IPC rape is said to be committed, if the sexual intercourse is committed without the consent of a woman. However, if the woman is minor and below the age of 16 years then the sexual intercourse committed with or without her consent is also termed as rape and is punishable u/s 376 IPC.
16. In these circumstances, the points which arise for my consideration are (i) whether the prosecutrix herein was minor and was taken or enticed away out of her lawful guardianship. (ii) Whether it was to force her to marry or for sexual intercourse. (iii) Whether sexual intercourse was done with prosecutrix by accused.(iv) Whether it was with or without her consent. (v) Whether prosecutrix was less than 16 yrs. of age when even her consent for sexual intercourse becomes irrelevant. The same is dealt as follows: 8
17. PW1 has stated the date of birth of his daughter as 13 years as on the date of incident whereas the prosecutrix herself told her age to be 14 15 years. Both of them denied that she was more then 18 years of age at the time of incident. The School Leaving Certificate Ex. PW1/DB which has been placed on record to show the age of the prosecutrix reflects the date of birth as 3.7.1994. However, another certificate which was birth certificate of the prosecutrix issued by Guwahati Medical College, Assam Ex. PW1/DA reflects the date of birth of prosecutrix as 26.8.1992. No bony Xray was got conducted in this matter. Ld. Counsel for the defence argued that in case of doubt with respect to the age of the prosecutrix, in terms of the settled law, two years are always added in her age, however that is situation when there is no documentary evidence with respect to the age of prosecutrix on record and only bony Xray is conducted. Since that is not conclusive evidence of age of prosecutrix and there is always possibility of age being with margin of two years on the either side. However, in this case, bony age Xray was not got conducted. The transfer certificate issued by school showing the date of birth of prosecutrix as 3.7.1994 cannot be placed reliance upon, since, it is no where mentioned that the birth certificate of the prosecutrix was ever produced in the school and date of birth of prosecutrix in the school record was based on birth certificate of the prosecutrix. Even otherwise the birth certificate is considered primary evidence to prove the age of the prosecutrix which is on record and shows the date of birth of prosecutrix as 26.8.92. Besides the same being birth certificate, it is also the document which is more favorable to the case of the accused, since in the case of doubt the fact more favourable to the accused needs to be relied upon. I am in humble disagreement with the contention of Ld. Counsel for defence that because of 9 the many dates of birth of the prosecutrix coming on record, it must be concluded that she was more than 18 years age. As it is already observed that the birth certificate is the primary evidence of the age of any person which is already on record and it cannot be said that certificate is fabricated or is false evidence. Accordingly, considering the age of the prosecutrix as mentioned in Ex. PW1/DA i.e 26.8.92 ,she was minor and even less then 16 years of age as on the day of incident. In terms of statement of PW1 as well as PW 2 i.e Prosecutrix was taken by the accused to Vaishno Devi, J&K which fact is not denied by the accused though according to him, it was the prosecutrix who had told him to go to Vaishno Devi, J&K, they being in love. Yet, the prosecutrix who was minor was taken without the consent of her parents/ guardianship. Since she had been taken out of lawful guardianship of her parents by the accused, the question of her own wish or consent with respect to offence u/s 363 IPC would be irrelevant, as the question is not of her consent but of her guardian and accordingly, the mere factum of prosecutrix going away or being taken away by the accused out of the lawful guardianship of her parents would attract the offence u/ s 363 IPC for which the accused is held guilty.
18. The other allegations against the accused are for committing the offence u/s 366 IPC and section 376 IPC. The deposition of PW2 needs to be narrated here to arrive at the conclusion whether the kidnapping of the prosecutrix by the accused was with intention to compel her to marry with him or to force/ seduce her to illicit intercourse. According to PW2, she knew the accused and also used to talk to him. Accused used to come to her school daily and her friends also knew him and used to talk to the accused. On the relevant date i.e. 8.2.2008 at about 7.20am, she was dropped by her 10 father i.e. PW1 at the school gate. She went to her class but came back to buy a pen and there accused met her and according to her she was enticed by the accused to go along with him to Vaishno Devi, Temple and despite her refusal, she was again enticed to go to Vaishno Devi Temple at J&K and while she was sitting in the car along with accused Sukhbir, she was seen by her three friends. Many children were also standing there as well as the shops were opened but she did not raise any alarm though she states that accused had put his hands upon her mouth, but surprisingly nobody even noticed this act, except for her friends who had seen her while sitting in the car with the accused and they had also informed to PW1 that the prosecutrix had gone away with the accused and not that accused had taken the prosecutrix along with him forcefully. Thereafter, according to PW2 she was taken to Vaishno Devi Temple, J&K, though in her cross examination she improved upon by saying that before going to Vaishno Devi Temple, J& K, she was taken to friend's house of the accused at Indirapuram where other inhabitants were also present. She had made efforts to cry at Indira Puram house but accused had put his hands but she did not weep at the Indira Puram House. At ISBT bus stand, there were public persons present and police officials were also taking round yet she did not tell anybody there regarding accused taking her forcibly. In the same breath, she testified that accused had extended threats and she had tried to scream at ISBT bus stand but accused put his hands on her mouth. She also testified about the presence of other occupants in the bus by which they went to Vaishno Devi Temple, J&K, but she did not tell anyone regarding her plight for the same reason as the accused had threatened her and throughout her stay with the accused, she did not raise any alarm because of the threats given by the 11 accused nor she had made any complaint with any authorities of the guest house where she was kept by the accused since she was confined in the room by gagging her mouth. At the Vaishno Devi Temple, J&K, she did not come across any police officials but only the officials conducting the checking, there also she did not disclose them about her plight since accused had threatened her. Despite her admission that lady police had separately checked her at Vaishno Devi Temple, J&K, in the separate ladies cabin, still, the prosecutrix did not prefer to avail the opportunity to disclose about the accused to ladies police because of alleged threatening given by the accused. She was having the phone number of her mother and father since both of them have individual mobile phones, the accused was also carrying the mobile phone but she did not try to contact her parents while being with the accused since she was not allowed by the accused to make a call. She deposed about the non availability or occasion to write down the phone number of her parents and give it to anybody when being with the accused or otherwise at any place during her absence from home so as to tell the person giving the parchi to convey to her parents, despite the availability of the opportunities with respect to the presence of many persons including the bus passengers, police officials and also ladies police who had checked her separately in a cabin. The conduct of the prosecutrix throughout only goes to show her being the consenting party in failing to avail all the opportunities available to her to inform the public or the police or even to call her parents with respect to forcible taking by the accused, if that was so.
19. The prosecutrix denied about having any affair with the accused and declined of having written any letter or greetings to accused but before the court she was shown a letter and greeting card which she admitted to be 12 in her handwriting, though she tried to clarify that she had already written the letter at home and brought the same to school and her friends had mentioned the name of accused and of herself in the beginning and in end. But, the name of the accused is also found mentioned in the contents of the letter which was admitted by the prosecutrix to be in her own handwriting showing her love for the accused besides the fact that the letter as well as greeting written by prosecutrix were found in the possession of the accused who had no occasion to keep the possession of the letter and greeting card, had it not been meant for him and not being given to the accused by the prosecutrix. Similarly, the prosecutrix was also shown two photographs before the court and she admitted having been photographed with the accused. Though, the prosecutrix stated that the photographs were taken forcibly but the photographs Ex. PW2/DA1 and Ex. PW2/DA2 do not corroborate the deposition of prosecutrix about the photographs being taken forcibly. Further, despite the threats as allegedly given by the accused many times including " Ched Chad" almost every day by the accused with the prosecutrix, she never complained to her parents nor to her class teacher. According to her on her way to school, the accused always used to tease her. She used to go to her school on foot and her friend Priyanka also accompanied her to school which is contradictory to the statement of PW1 who had said that he used to drop his daughter to her school daily and in case of his non availability, her mother used to drop her at her school. Apparently, having noticed the conduct of the prosecutrix and her deposition, there cannot be any doubt that the prosecutrix was having affair with the accused and had eloped with him with her own will and wish. Not only this , the father of the prosecutrix had lodged the report at P.S with respect to his 13 daughter being missing on 8.2.2008 and despite his admission that he came to know of the factum of his daughter going along with the accused as was informed to him by the friends of the prosecutrix on the same day. Yet, for the first time, he mentioned the name of the accused in the statement given to the police on 12.2.2008. His daughter was recovered from the house of the sister of the accused on 14.2.2008 when a call was made by the prosecutrix herself to her father. However, as per version of prosecturix who initially corroborated the above deposition of PW1 but in her cross examination contradicted by stating that she had come back to Delhi on 13.2.2008 to her parental home and accused was not present at his home in the evening of 13.2.2008. Her statement was also recorded by the police on 13.2.2008 and on next day, she was taken to P.S by her father and further again said that she had come in the morning of 13.2.2008 to the sister's place of the accused and the sister of accused made a call to her father and she had also come to P.S but was sent back by the police.
20. The conclusion as can be drawn in these circumstances is the absence of force exercised by accused in taking away or of forceful stay/ confinement of prosecutrix with him. There are also no allegations that the accused had taken away the prosecutrix to compel her to marry with him or even of seducing her to have sexual intercourse with accused. Although the prosecutrix alleged that accused had committed rape upon her 23 times during their stay at Vaishno Devi, and it was argued by the Ld APP that even if the prosecutrix had gone with accused of her own will and wish, yet it cannot be said that she had also consented for the sexual intercourse. However, in the instant case, the question of her being the consenting party for sexual intercourse would be of no relevance as the same would also fall 14 within the definition of rape, the prosecutrix being less than 16 years of age. Now, it is to be seen whether prosecutrix was subjected to any such intercourse or rape.
21. Let us see what is the evidence in this respect. MLC of prosecutrix is on record which was prepared on 14.2.2008 and as per MLC, no injury was found on the private parts of the prosecutrix. Her hymen was found not intact which could admit one finger easily. There was no injury mark on genitalia. Her under garments were also sealed separately which were also not having any marks/semen stains etc to suggest the commission of rape/intercourse. The prosecutrix informed about injury on her wrist of her right hand and stated that she sustained that injury while protesting the rape committed by the accused. There is no other injury on her person due to the resistance. as deposed the injury on her right hand was given by the nails of hands of the accused. There were also no injury marks on the person of accused. In the normal course had there been any resistance from the side of the prosecutrix, the injuries on her body would have been many more than only a small bruise on her wrist or at least some injuries also on the body of accused. Though, the suggestion as given on behalf of defence was also in contradiction to the plea of the accused that he had not committed any sexual intercourse with the prosecutrix whereas the suggestion was that the sexual intercourse was done by the accused with her own volition and if the defence admits that the act of the sexual intercourse was there, then it would definitely amount to rape even with the consent of the prosecutrix. Be that as it may, in terms of categorical denial of the accused with respect to any sexual intercourse with prosecutrix in his statement recorded u/s 313 CrPC, the prosecution needs to stand on its own 15 legs. It is also correct that even if no injuries are found on the private parts or on the person of prosecutrix and even if the MLC does not suggest the commission of the rape, the sole testimony of prosecutrix can be relied upon as is held by the higher Courts in Catena of judgments but the question is, whether it is a case where the sole testimony of prosecutrix with respect to commission of offence of rape should be relied upon. The answer to this question is a definite "no," considering the deposition of the prosecutrix which is not worth of any credence and it would not be safe to rely upon the sole testimony of such person whose testimony otherwise neither inspires confidence nor is worthy of any credit and accordingly, in the absence of any corroboration to the such charge of commission of rape or sexual intercourse or even of seducing/forcing her for any sexual intercourse, the accused deserves the benefit of doubt. Accordingly, is held guilty and convicted for the offence u/s 363 IPC and is acquitted for the offence u/s 366/376 IPC. Let he heard on the point of quantum of sentence.
Announced in the open court On this day of 29.1.2011 ( SAVITA RAO) Additional Sessions Judge, KarkardoomaCourts, Delhi.
` ` 16 IN THE COURT OF MS SAVITA RAO, ADDL.SESSION JUDGE, KARKARDOOMA COURTS, DELHI State Vs SukhbIr s/o Ganpat r/o A4/30 New Kondli Delhi & Jahan Pur, PS. Khurja, District, Bulandseher UP.
FIR No. 53/08
P.S. New Ashok Nagar U/s 376/363/506 IPC ORDER ON SENTENCE Present: Sh. AK Mishra, Ld. Addl. PP for the State.
Convict is present on bail with counsel Mohd.
Faruqi, Arguments addressed on quantum of sentence.
The convict is stated to be aged about 24 years and he remained in J/C for about one year and half month approximately and as stated has aged parents of 65 years and 60 years respectively. He is unmarried and is only the person to look after his parents and since the other son as stated is residing separately from the parents. The convict is working as driver and he is required to earn and to look after his family. It is prayed that lenient view be taken in these circumstances and he be released for the period which he has already undergone.
On the other hand, Ld. APP submits that as the 17 prosecution has been able to prove its case u/s 363 IPC against the accused as he kidnapped a minor girl out of her lawful guardianship and in these circumstances maximum punishment is prayed.
Considering the above said, in my considered opinion, it would be appropriate if the convict is sentenced to under go RI for the period of 13 months and fine of Rs. 10,000/ In default of payment fine, he shall under go SI for the period of six months. Benefit of section 428 CrPC is given to the convict. A copy of the judgment and order on sentence be supplied to the convict free of cost. File be consigned to record room. Announced in open court.
Dated 31.01.2011 (SAVITA RAO)
Addl. Sessions Judge,
KKD Courts, Delhi.