Delhi District Court
Relied Upon Suresh Balkrishna Nakhava vs . State Of Maharashtra 1998(5) on 31 October, 2011
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 149/1
Unique Identification No. 02404R5175022004
State
Versus
Anwar
S/o Isubuddin
R/o Village Asara, PS Ramala,
District Baghpat (UP)
FIR No. 107/03
PS - Narela
U/s. 363/366A/368/376/506 of IPC
Date of Decision: 21/10/2011
Date of order on Sentence: 31/10/2011
ORDER ON SENTENCE
31/10/2011
Present. Ld. Addl. PP for State.
Convict Anwar from JC with Amicus Curiae Ms. Sadhna Bhatia.
Heard on the point of sentence.
Learned Amicus Curiae has contended that convict Anwar remained
in custody since 09/10/2003. Learned Amcius curiae has further contended that
convict Anwar is aged about 68 years. He was working as agriculturist. His
wife Zubeda expired on 18/08/2006 in Meerut Medical College Hospital. He
SC No. 149/1 1
has four minor daughters and two sons, out of which, one son is blind. He is
not a previous convict nor habitual offender. Learned Amicus Curiae has
further contended that convict is suffering from backbone cancer and bone T.B.
and was admitted to interim bail and even at times, he was not produced before
the Court during the hearing of this case and was further exempted on medical
ground on various dates of hearings since 2008 and photographs were also
produced to show that convict was bed ridden and even was unable to do his
natural chores. Hence, a lenient view be taken.
On the other hand, learned APP for State has contended that convict
Anwar raped the minor prosecutrix for about five months. He is now appearing
from custody from Meerut Jail in a case U/s. 302/120B of IPC. Learned Addl.
PP has further contended that convict Anwar has been held guilty U/s.
363/366A/368/376/506 of IPC, which are punishable upto seven and ten years,
hence appropriate sentences be awarded.
Learned Amicus Curiae has contended that even convict is being
medically treated in Meerut Jail and has filed photocopies of his treatment slips.
Learned Amicus Curiae has further contended that his diseases are not curable
and considering the above facts and circumstances coupled with antecedents
and character of the convict, he be released on already undergone period.
I have considered the submissions of learned APP and learned
Amicus Curiae Ms. Sadhna Bhatia and have also considered the antecedents,
age, character and family circumstances of convict. Convict is the sole bread
earner of his family and as his wife has expired recently, so he has to look after
his six children, out of which, one is blind and he has also to look after his old
SC No. 149/1 2
aged mother, who is aged about 95 years.
Offence U/s. 363 IPC is punishable with imprisonment of either
description for a term which may extend to seven years and shall also be liable
to fine.
It is stated that convict remained in custody in this case for four
years, 10 months and 17 days and from 13/10/2011 till today. Accordingly,
sentence of five years S.I. is imposed with fine of Rs. 5000/ U/s 363 of IPC
upon convict Anwar. In default of payment of fine, he shall further undergo
simple imprisonment for a period of six months.
Offence U/s. 366A IPC is punishable with imprisonment for a term
which may extend to ten years and shall also be liable to fine.
It is stated that convict remained in custody in this case for four
years, 10 months and 17 days and from 13/10/2011 till today. Accordingly,
sentence of five years S.I. is imposed with fine of Rs. 5000/U/s 366A of IPC
upon convict Anwar.. In default of payment of fine, he shall further undergo
simple imprisonment for a period of six months.
Offence U/s. 368 IPC is punishable with imprisonment as of offence
U/s. 366A of IPC, which is punishable with imprisonment, which may extend
to ten years and shall also be liable to fine.
It is stated that convict remained in custody in this case for four
years, 10 months and 17 days and from 13/10/2011 till today. Accordingly,
sentence of five years S.I. is imposed with fine of Rs. 5000/ U/s 368 of IPC
upon convict Anwar.. In default of payment of fine, he shall further undergo
simple imprisonment for a period of six months.
SC No. 149/1 3
Offence U/s. 506 IPC is punishable with imprisonment for a term
which may extend to two years or with fine or with both.
It is stated that convict remained in custody in this case for four
years, 10 months and 17 days and from 13/10/2011 till today. Accordingly,
sentence of two years S.I. is imposed with fine of Rs. 5000/U/s 506 of IPC
upon convict Anwar.. In default of payment of fine, he shall further undergo
simple imprisonment for a period of six months.
Offence U/s. 376 of IPC is punishable with imprisonment of either
description which shall not be less than seven years, but which may be for life
or for a term which may extend to 10 years and shall also be liable to fine.
Learned Amicus curiae has contended that considering the above
facts and circumstances, there are adequate and special reasons to impose a
sentence for a term less than seven years and in support of her contentions, has
relied upon Suresh Balkrishna Nakhava Vs. State of Maharashtra 1998(5)
Bom CR 494, 1998 CRI. L.J. 284 wherein it has been held:
" The case debated whether the sentence of seven years of rigorous
imprisonment and fine, was adequate in light of the extenuating circumstances
The accused, who was charged with the case of rape of minor, was convicted
and was awarded sentence of rigorous imprisonment for seven years and fine
The Court held that in view of the fact that the minor had attended puberty, the
child born of the offence had been given in adoption to a good family Further,
the accused, the only earning member of his family, had three minor children
and he agreed to deposit Rs. Four lakhs in the name of the prosecutrix
Therefore, on sentence for rape was to be reduced Subsequently, the Court
SC No. 149/1 4
reduced the sentence to rigorous imprisonment for six months, alongwith fine
However, the amount of compromise was to be deposited in bank so as to
secure maximum periodical returns."
Learned Amicus curiae has further relied upon Dhananjoy
Chaterjee Vs. State of West Bengal 1994(1) R.C.R. (Criminal) 429, in which
it has been held that :
" In recent years, the rising crime rate particularly violent crime
against women has made the criminal sentencing by the courts a subject of
concern. Today there are admitted disparities. Some criminals get very harsh
sentences while many receive grossly different sentence for an essentially
equivalent crime and a shockingly large number even go unpunished thereby
encouraging the criminal and in the ultimate making justice suffer by
weakening the system's credibility. Of course, it is not possible to lay down any
cut and dry formula relating to imposition of sentence but the object of
sentencing should be to see that the crime does not go unpunished and the
victim of crime as also the society has the satisfaction that justice has been
done to it. In imposing sentences in the absence of specific legislation, Judges
must consider variety of factors and after considering all those factors and
taking an overall view of the situation, impose sentence which they consider to
be an appropriate one. Aggravating factors cannot be ignored and similarly
mitigating circumstances have also to be taken into consideration."
After considering the above facts and circumstances and the fact
that convict Anwar remained in custody for the last about four years and 11
months and he is suffering from incurable diseases of backbone cancer and
SC No. 149/1 5
tuberculosis and also his age and family circumstances, I am of the opinion that
there are adequate and special reasons to impose sentence for a term less than
seven years, accordingly sentence of five years S.I. is imposed with fine of
Rs. 10,000/ upon convict Anwar U/s. 376 of IPC. In default of payment of
fine, he shall further undergo simple imprisonment for one year.
Convict Anwar remained in custody from 09/10/2003 to 01/06/2006
and from 15/06/06 to 09/09/2008 and from 13/10/2011 till today.
Benefit of Section 428 of Cr.PC be given.
All the substantive sentences of imprisonment shall run
concurrently.
Fine not deposited. If deposited, then out of fine, Rs. 25,000/ be
given as compensation to the prosecutrix after the expiry of period of appeal, if
no appeal is preferred.
Convict Anwar be remanded to serve the sentence.
Announced in Open Court on
dated 31st of October, 2011
(Virender Kumar Goyal)
Additional Sessions Judge
Fast Track Court
Rohini : Delhi
SC No. 149/1 6
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 149/1
Unique Identification No. 02404R5175022004
State
Versus
1. Anwar
S/o Isubuddin
R/o Village Asara, PS Ramala,
District Baghpat (UP)
2. Saleem
Son of Isubuddin
R/o village Asara,
PS Ramala,
District Bagpat (U.P.) (already convicted)
3. Zubeida
W/o Anwar
R/o Village Asara, PS Ramala,
District Baghpat (UP) ............. (since proclaimed offender)
4. Busra
D/o Anwar
R/o Village Asara, PS Ramala,
District Baghpat (UP) ............. (since proclaimed offender)
5. Gazala
D/o Anwar
R/o Village Asara, PS Ramala,
District Baghpat (UP) ............. (since proclaimed offender)
SC No. 149/1 7
FIR No. 107/03
PS - Narela
U/s. 363/366A/368/506/376/34 of IPC
Date of institution of the case: 06/01/2003
Arguments heard on: 18/10/2011
Date of reservation of order: 18/10/2011
Date of Decision: 21/10/2011
JUDGMENT
Earlier, the father of prosecutrix i.e. Kishan Kumar got recorded DD No. 12 A on 31/03/2003 regarding missing of his daughter, the prosecutrix. Later on, he suspected that his daughter, the prosecutrix was kidnapped by some unknown person. So, FIR was recorded on 04/04/2003 U/s. 363 of IPC. During investigation, efforts were made to recover the prosecutrix and publications in the newspapers were got done. Information was also circulated through Doordarshan.
Later on, the parents of the prosecutrix told to the police that prosecutrix had returned, but was under fear. So, they produced the prosecutrix before DIU, NorthWest and DD No. 10 of 09/01/2003 was recorded. Seizure memo regarding the recovery of prosecutrix was prepared.
Statement of prosecutrix was got recorded U/s. 164 of Cr.PC and she disclosed certain facts. Site plan of the place of house of Chairman Rajbala Chaudhary was prepared. Site plan of the house, where prosecutrix was kept by the accused persons, was also prepared. Prosecutrix was sent for her medical examination and certain articles sealed with the seal of "SD" were SC No. 149/1 8 taken into possession by the IO by preparing a memo. School leaving certificate of the prosecutrix regarding her age was also collected with other record. Bone age xray for determination of age of the prosecutrix was also got conducted.
Accused Anwar and Saleem were arrested in this case on 09/10/2003. Their medical examination was also got conducted and relevant documents were collected with exhibits from the doctor.
The exhibits were sent to FSL and report was obtained. On completion of investigation, chargesheet was filed U/s. 363/366A/368/506/376/34 of IPC against both the accused. Accused Zubeda, Busara and Gajala were declared proclaimed offenders.
Case was committed to the Court of Session and was received on 10/06/2004.
Charge U/s. 363/366A/368/34 of IPC, 376/34 of IPC and 386/34 of IPC was framed against accused Anwar on 16/07/2004 to which he pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW21 in all. On completion of evidence of the prosecution, statement of accused Anwar was recorded. He has denied the case of the prosecution and has further pleaded that he is innocent and has been falsely implicated in this case at the instance of one Smt. Rajbala.
I have heard learned Addl. PP for State, Ms. Sadhna Bhatia, Amicus Curiae for accused Anwar and have gone through the evidence brought on record with material placed.
SC No. 149/1 9 Finding qua age of the prosecutrix:
In this respect, PW1, the prosecutrix, has deposed that at the time of incident, she was student of 8th class and her date of birth is 06/10/87. PW1 has not been cross examined regarding the fact that she was not studying in 8th class at the time of incident or that her date of birth is not 06/10/87.
PW2 Kishan Kumar, father of the prosecutrix, has stated that prosecutrix was born on 06/10/87. He has further stated that he had also handed over the school leaving certificate to the police showing date of birth of his daughter Mark 2B.
PW2 has also not been cross examined regarding date of birth of prosecutrix in any manner. PW3 Kaushalya Devi, mother of the prosecutrix, has not stated anything about the date of birth or age of the prosecutrix. PW9 Ramesh Kumar has produced certain record pertaining to admission of the prosecutrix. As per record, she was admitted in 6th class on 16/04/99 and according to admission register, her date of birth is 06/10/87, photocopy of which is Ex. PW9/A and she left the school on 19/07/2003, when her name was struck off from the school. PW9 has also identified the signatures of Principal on school leaving certificate Ex. PW9/B. PW9 has also not been suggested that a false date of birth is given or date of birth, as recorded in the school record, was without any basis.
PW15 Dr. N.S. Khurana has proved the bone age report of the prosecutrix, which was opined by Dr. Anil Khari in between 14 to 17 years and has also proved his report Ex. PW15/C. This PW has also not been cross examined by learned defence counsel in any manner. PW21 Inspector Umesh SC No. 149/1 10 Kumar has also proved the school leaving certificate of the prosecutrix Ex. PW9/B and copy of admission register Ex. PW9/A. He also got conducted the bone age Xray vide his application Ex. PW21/C. In view of above, all the witnesses have corroborated each other. Their testimonies are unshaken and unrebutted. From the depositions of all these witnesses, prosecution has been able to prove beyond reasonable doubts that date of birth of prosecutrix is 06/10/1987. So, on the day of the incident, she was less than 16 years.
Findings qua offences u/s 363/34, U/s. 366A/34 of IPC and U/s. 368/34 of IPC:
In this respect, PW1, the prosecutrix, has stated that on 31/03/2003, she was present at her school in Narela. She was student of 8 th class at that time. Result of 8th class was declared on that day. She had compartment in Maths and Social Studies. After seeing the result, she started weeping and crying and came out of the scool. She sat on the wooden takhat of one barber shop and one student came to her and assured her that she could clear the exams, if she would study seriously. Thereafter, she left and started going towards her house. Accused Anwar met her at Narela Railway Station. At that time, she was weeping and on asking of the accused, she disclosed about her result. Accused told her that he will leave her at her house and served her water. After taking water, she became perplexed and felt giddiness. She was taken to bus adda of Narela Mandi and was forced to sit in a bus. She was taken to Barot. On reaching Barot, she was taken by accused to his brotherinlaw's house, whose name was Khalid, from where, accused Anwar had taken a bicycle and took her to Village Sara. Accused had given threats to her on the SC No. 149/1 11 way throughout. In his house, accused disclosed to his wife that she met him at Barot and she insisted him for going to his house, so, he had brought the prosecutrix to his house in the village.
PW1, the prosecutrix, has further deposed that she was forced to do all the household work by accused Anwar and his wife Zubeda. After 15 days, she was asked to sleep on the roof of the house, where accused Anwar came in the night and committed rape on her against her will and without her consent. She was also beaten by accused Anwar and his wife Zubeda and she was forced to pray Namaj and on her refusal, she was beaten by them and was asked to become Muslim.
PW1, the prosecutrix, has further deposed that on 14/15.08.2003, accused Anwar had committed rape on her against her will and without her consent. She was confined in a room, where fodder for cattle was kept. She was served Chapati with water. On 30/08/2003, accused Anwar was not present in the house, so, she was sent by Zubeda for bringing grass. She found an opportunity and ran away from the village of accused Anwar and Zubeda. In the way, one person met her and told way of Village Tikri, where one lady met her in a bullock cart, who took her to Village Tikri and left her in the house of Chairman. There she was served with food and was asked about her whereabouts, but due to fear, she disclosed her name as Nishat and after feeling some security, on the next day, she disclosed her correct particulars and the Chairman had further informed her parents, who came there and she was brought to Delhi. Her statement was recorded by the police. She was also taken to hospital and was produced before Court for recording her statement. SC No. 149/1 12
PW1, the prosecutrix, has also identified her statement Ex. PW1/A. Again on 09/10/2003, she had gone with the police to Village Sara and she pointed out the place, where she was confined and was raped. Both accused Anwar and Saleem were apprehended and were arrested in this case vide memos Ex. PW1/B and Ex. PW1/C. Search of the house was taken vide memo Ex. PW1/D. Personal search of both the accused were taken vide memos Ex. PW1/E and Ex. PW1/F. Learned Amicus Curiae has contended that from the deposition of PW1, the prosecutrix, and her cross examination, it is clear that neither she raised any noise, while she was being taken away by accused Anwar to Barot nor while being taken away to village Sara. Learned Amicus Curiae has further contended that according to the deposition of the prosecutrix, she was taken on 31/03/2003 and she ran away from Village Sara of accused Anwar on 30/08/2003, so, she remained in the house of accused Anwar for five months. Even during that period, she did not disclose about her kidnapping and rape by accused Anwar to any of the villager. Hence, PW1, the prosecutrix, cannot be relied upon in any manner.
Learned Amicus Curiae has further contended that PW1, the prosecutrix, has also contradicted as to whether she was taken by accused from railway station or from bus stand or at what time she was taken by accused Anwar. Learned amicus curiae has further contended that prosecutrix was taken by accused Anwar, as deposed by her, in a bus to Barot and certainly there were other passengers also, but she did not disclose to anyone that she was being taken by accused Anwar without her consent and was being SC No. 149/1 13 kidnapped, which shows that she cannot be relied upon.
I have gone through the cross examination of PW1, the prosecutrix. She has explained all such objections raised by learned amicus curiae. PW1, the prosecutrix, has stated that no one was present with her, when she was going back to her house on the day of the incident. At that time, she was alone. She has further stated that accused Anwar threatened her and took her to Barot and he took her to the house of one Khalid, from where, he had taken a bicycle and took her to his Village Sara. She has further stated that she was kept there for five months and she was used to be beaten by accused and was also made to work forcibly at his house. She was not given proper food and was given only Roti with water. Again, in the cross examination, PW1, the prosecutrix, has stated that she could not reach home after seeing the result as accused met her near railway station. He was alone at that time. Accused had offered her water. She was not in her senses after drinking water, though she could see everything. She was taken by accused to bus stand. She could not object the same as her mind was not working properly at that time. They reached at Barot in the evening. They had taken bus from Narela. Accused had kidnapped her as her mind was not in senses. PW1, the prosecutrix, has further stated in the cross examination that she was under some kind of intoxication. Accused Anwar had intimidated her on the way to the house of Khalid. So, the contentions of learned Amicus Curiae are not forceful in any manner, in view of explanation given by the prosecutrix.
Learned Amicus Curiae has further contended that PW1, the prosecutrix, was not confined or concealed in the house as she has stated in the SC No. 149/1 14 cross examination that she used to bring fodder from outside the house and she used to go in the afternoon for bringing the fodder alongwith daughters of accused Anwar namely Gajala and Bushra and she used to come back by 2.00 p.m. Learned Amicus Curiae has further contended that in such circumstances, PW1, the prosecutrix, was having ample opportunity to disclose about her kidnapping and rape to any of the villager, which she did not opt at any time.
In my view, prosecutrix has stated that she used to go outside the house with Gajala and Bushra. Both are accused in this case, which shows that she was never allowed to go outside alone and when she got an opportunity on 30/08/2003, she ran away from Village Sara to Village Tikri. PW1, the prosecutrix, has further explained that she was not in her senses as after taking water offered by accused Anwar, she started feeling giddiness and became perplexed. Not only this, PW1, the prosecutrix, has further stated that she was forced to pray Namaj and on refusal, she was beaten by the accused persons and was asked to become Muslim, which shows that PW1, the prosecutrix, stayed in the house of accused Anwar in a constant threat. Neither she was provided proper food nor she was allowed to go alone outside the house, but remained under the surveillance of other accused persons, who are proclaimed offenders and accused Anwar used to commit rape on her against her will and without her consent.
PW1, the prosecutrix has further deposed that she was also asked to bath buffaloes. Again in the cross examination, she has stated that accused Anwar never used to talk with her, but used to commit rape upon her by keeping his hand on her mouth. PW1, the prosecutrix, told to accused Anwar SC No. 149/1 15 that if he used to commit rape upon her, then she will complain to his wife, but she was beaten by accused and accused Anwar used to tie her mouth with a piece of cloth and also used to catch her hands so that she could not resist his movements. PW1, the prosecutrix, has further explained that she never had an opportunity to disclose the incident as accused Zubeda and Bushra, both proclaimed offenders, used to accompany her. She was also threatened that she will be killed, if she would disclose the incident of rape to anyone. She has further explained that when she ran away from Village Sara, on that day, accused Anwar had gone outside the house and prior to that, accused Anwar never left the house. So, from the cross examination of PW1, the prosecutrix, it is clear that she stayed in the house of accused Anwar for about five months with a limited freedom. Regarding her movement in the house or outside, she was always accompanied by other accused persons, who are proclaimed offenders, and she was never left alone and only once, when she got opportunity, she ran away from Village Sara. So, the contentions of learned amicus Curiae are not forceful in any manner. The testimony of PW1, the prosecutrix, inspire confidence and the same is unshaken. PW1 has been cross examined at length on each and every aspect and she has also disclosed about the atmosphere of the house of accused Anwar and in what manner, she was treated by accused and his family members.
PW1, the prosecutrix, has further been able to inspire confidence that she was kidnapped by accused Anwar, while she was less than 16 years at that time under some intoxication from her lawful guardianship. So, the prosecution has been able to prove beyond reasonable doubts that on SC No. 149/1 16 31/03/2003, accused Anwar kidnapped PW1, the prosecutrix, from her lawful guardianship and thereby accused Anwar is held guilty and convicted for offence U/s. 363 of IPC.
From the deposition of PW1, the prosecutirx, the prosecution has also been able to prove beyond reasonable doubts that accused Anwar kidnapped PW1, the prosecutrix, with intent that she may be forced or seduced to illicit intercourse and in fact, he committed sexual intercourse with her against her will and without her consent. Accordingly, offence U/s. 366A of IPC is also proved, for which, accused Anwar is held guilty and convicted for the same.
From the deposition of PW1, the prosecutrix, the prosecution has also been able to prove the fact that prosecutrixPW1 was kept in his house by accused Anwar for about five months, wherein she was not treated properly. She was beaten and was forced to do household work and was not given proper food and on 30/08/2003, when accused Anwar was not in his house, she was sent by accused Zubeda (PO) for collecting grass. She found an opportunity and ran away from the village of accused and reached at Village Tikri, from where, her parents were informed. Not only this, PW1, the prosecutrix, was forced to pray Namaj and on refusal, she was again beaten by the accused persons and was asked to become Muslim and they might have renamed the prosecutrix because when prosecutrix reached at the house of Chairman of Village tikri, she disclosed her name as Nishat out of fear, which was still capturing the mind of prosecutrix and it had happened so because accused told to the villagers name of the prosecutrix as Nishat and also disclosed that prosecutrix was sister SC No. 149/1 17 in law of his brother in law. So, the villagers were not having any reason to suspect that accused Anwar had kidnapped the prosecutrix. Prosecutrix was under so much threat that even she could not dare to disclose the true facts to the Chairman of Village Tikri and only on the next day, she disclosed the true facts to the Chairman of Village Tikri. Merely, she was having freedom for movement in the house and outside the house does not mean that prosecutrix was not wrongfully confined or concealed in Village Sara.
According to Section 340 of IPC, wrongful confinement means whosoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully confine" that person. From the deposition of PW1, the prosecutrix, it is clear that she remained under the surveillance of the accused persons in the house and whenever she was allowed to go outside the house to collect grass or fodder, she was always accompanied by two of the accused persons. So, in all, she was never allowed to go beyond certain limits and when she found an opportunity on 30/08/2003, she ran away from Village Sara of accused Anwar. If PW1, the prosecutrix, was residing peacefully with her consent and will in the house of accused Anwar, then there was no need for the prosecutrix to run away from the house of accused Anwar on 30/08/2003, when accused Anwar was not present in his house and she was sent to collect grass. It seems that she was sent alone so that she got an opportunity, which might have been given by accused persons as she was already there for about five months and the accused persons could have thought that now there was any point for prosecutrix to run away from their village. So, she ran away from Village Sara of accused Anwar. SC No. 149/1 18 Had prosecutrixPW1 been a willing party to the acts of accused Anwar regarding sexual intercourse and staying in his house, then there was no need for the prosecutrix to run away from the house of accused Anwar. So, the prosecution has been able to prove beyond reasonable doubts that accused Anwar after kidnapping the prosecutrix had also wrongfully confined her in his house, for which, he is held guilty and convicted for offence U/s. 368 of IPC.
Finding qua offence U/s. 376 and 506/34 of IPC:
In this respect, PW1, the prosecutrix, has deposed that after about 15 days of keeping in his house by accused Anwar, she was asked to sleep on the roof of the house, where accused Anwar used to come in the night and used to commit rape upon her against her will and without her consent. On 14/15.08.03, accused Anwar committed rape upon her against her will and without her consent. She has further stated in the cross examination that accused Anwar used to commit rape upon her almost three times in a week. PW1, the prosecutrix, has further deposed in the cross examination that accused never used to talk with her, but used to commit rape upon her. One day, accused Anwar came at the roof and committed rape upon her. One or two times, she had also pushed accused Anwar, while he was committing rape upon her, but as soon as he used to come on the roof, he used to keep his hand on her mouth and used to commit rape upon her. She also told accused Anwar that if he used to commit rape upon her, then she will complain his wife, but she was beaten by accused. Accused Anwar used to tie her mouth with a piece of cloth and also used to catch her hands so that she could not resist. SC No. 149/1 19
In respect of offence U/s. 506 of IPC, PW1, the prosecutrix, has further stated that accused Anwar had taken bicycle from the house of Khalid and took her to Village Sara and accused had given threats to her on the way throughout. In the cross examination also, PW1 has stated that while accused was taking her to his house at Village Sara from the house of Khalid at Barot, accused kept on threatening her on the way.
Learned Amicus Curiae has contended that PW1 has admitted in the cross examination that she was neither threatened nor was forced to board bus from Narela, but to my mind, PW1, the prosecutrix, has nowhere stated that she was threatened in Delhi or while they were boarding the bus, but has stated that she was threatened by accused Anwar, while she was being taken by accused Anwar from the house of Khalid on bicycle to Village Sara. Even PW1, the prosecutrix, has stated that accused Anwar intimidated her on the way to the house of Khalid on the bicycle, while going to the house of accused Anwar in Village Sara. So, both the incidents are different. Hence, the contention of learned amicus Curiae is not forceful in any manner.
The testimony of PW1, the prosecutrix, inspire confidence, for which, she can be relied upon regarding the rape committed by accused Anwar on her without her consent and against her will and also that she was threatened, while she was being taken from the house of Khalid to his house Sara. In respect of the fact that she has not made any complaint to anyone, has been explained by PW1 that she was never left alone and she was introduced as relative by accused Anwar to the villagers and was kept under constant surveillance in the house of accused Anwar with his family members and when SC No. 149/1 20 she got an opportunity on 30/08/2003, she ran away from Village Sara.
The prosecutrix went missing on 31/03/2003 and report was lodged by PW2 Kishan Kumar on 04/04/2003. Later on, he received information that his daughter had reached in the house of Chairman at Tikri, District Baghpat, U.P. So, he alongwith his brother in law Sanjay and mother in law Angoori Devi reached there, where prosecutrix was found present. They brought the prosecutrix back to their house and provided her medical treatment. The prosecutrix was produced at PS, where her statement was recorded by the police. On 09/10/2003, SHO alongwith his team had reached at their house and they all had gone to Village Sara, District Baghpat, U.P., where prosecutrix pointed out the house of both the accused and both the accused were found sitting outside their house. They were arrested and their personal searches were conducted. Both accused were brought to Delhi and were produced before the Crime Branch. Statement of his daughter was recorded.
PW2 Kishan Kumar has further proved his report Ex. PW2/A and recovery memo of his daughter Ex. PW2/B. Nothing came out from the cross examination of PW1 and PW2. The only defence accused Anwar has raised is that he has been falsely implicated in this case at the instance of Rajbala. PW1, the prosecutrix, has denied the suggestion that her relatives were staying in Village Tikri and she used to go there prior to the incident and at the instance of Chairman Rajbala, accused persons were falsely implicated in this case as there was dispute between Rajbala and the accused persons. No defence witness has been examined in this respect nor any material evidence has been brought on record to prove the defence. The prosecutrix pointed out the house, SC No. 149/1 21 where she was taken by accused Anwar and both the accused were arrested on her pointing out. PW2 Kishan Kumar has corroborated these facts.
PW2 Kishan Kumar has also denied the suggestion that his daughter visited Tikri and other places prior to the incident as she was suffering from BhootPret.
PW3 Kaushalya, mother of the prosecutrix, has also deposed the same facts regarding the missing of prosecutrix and her recovery.
Smt. Rajbala has been examined as PW19. She has deposed that about seven years back, she was Chairman of town area of Village Tikri. In the evening time, a girl was brought at her house by some ladies, who had gone to the field to pick up the grass. The girl was perplexed and was not responding properly. She did not disclose her name and address to her at that time. She kept her in her house and provided food and shelter. On the next date, she made inquiries and came to know about her address and phone number. She informed at the house of prosecutrix and her family members came there i.e. her maternal uncle, her father and some other persons. She handed over the girl to them. In the presence of her family members, on inquiry, the prosecutrix told that she was kidnapped by one Anwar and his younger brother had committed rape with her and she was kept by them in Village Asara, District Baghpat, U.P. PW19 has further deposed that later on, police came to her village and she told the above facts to the police. Site plan of her house was prepared by the police Ex. PW19/A. PW19 has not made statement in consonance with her previous statement. So, she has been cross examined by learned Addl. PP, wherein she SC No. 149/1 22 has admitted the date as 30/08/2003 and has further admitted that prosecutrix told her that she was kidnapped by one Anwar from Narela, Delhi, on 31/03/2003 after administering her some intoxicants and Anwar took her to his village Asara and has further admitted that prosecutrix had told her that both the accused committed rape upon her and she was kept there forcefully. The prosecutrix has further told that Zubeda, Gajala and Bushra used to beat and torture her and they were having knowledge of rape committed with her by accused Anwar and Saleem. Nothing has been suggested to PW19 in the cross examination that at her instance, prosecutrix has deposed falsely as she wanted to implicate both the accused persons due to enmity. Rather suggestions given to this witness are that prosecutrix was not brought to her house; that she did not hand over the prosecutrix to her family members; that she has deposed falsely being Pradhan of the area at the instance of the IO and that prosecutrix has not told about the incident and involvement of both the accused to her in the presence of her family members. So, there is no consonance in the defence of the accused as suggested to the witnesses. Different suggestions have been given to the witness at different times. Nothing has been brought on record that PW19 was having any enmity with accused Saleem. PW19 has corroborated with PW2 Kishan Kumar and other witnesses that prosecutrix was brought to her house by some ladies and she informed the family members of the prosecutrix, who reached there and took the prosecutrix back to their house at Delhi.
Nothing has been brought on record that the family members of the prosecutrix were having any relative or known persons in Village Tikri. SC No. 149/1 23 Nothing has been brought on record that prosecutrix reached village Asara at her own. Nothing has been brought on record that prosecutrix or her family members were having any motive to falsely implicate accused Anwar in any manner.
PW8 retired SI Jagir Singh has deposed that on 04/04/2003, he was posted at PS Narela and was working as Duty Officer from 4.00 p.m. to 12 midnight and at about 8.00 p.m. complainant Kishan Kumar came to him and he lodged report, which was recorded by him Ex. PW2/A, on the basis of which, he registered FIR of this case. He further handover the copy of FIR to SI Panna Lal for further investigation. Nothing came out from his cross examination to disbelieve his testimony in any manner.
PW18 retired SI Panna Lal has stated that missing report vide DD No. 18A dated 31/03/2003 was lodged by Kishan Kumar. On 04/04/2003, Krishan Kumar, father of the prosecutrix again came at the PS and on his statement, FIR under Section 363 of IPC was registered. On 08/04/2003, Krishan Kumar produced the photograph of his daughter and it was sent to missing persons squad and Doordarshan. Photocopy was also sent to National Crime Report. He tried to search the accused and on 16/04/2003, case was transferred to ASI Ramesh Chand.
PW20 Inspector Umesh Kumar has stated that on 27/08/2003, he was posted at DIU, NorthWest District as SI. On that day, investigation of this case was handed over to him. On 01/09/2003, prosecutrix was produced in DIU, NorthWest by her parents. He recorded statement of prosecutrix and her parents. He prepared recovery memo Ex. PW2/B and sent the prosecutrix for SC No. 149/1 24 her medical examination at BSA hospital with lady Constable Geeta. After medical examination, doctor handed over one packet sealed with the seal of "SD" alongwith sample seal, which was seized vide memo Ex. PW13/A. Prosecutrix was discharged from the hospital on 03/09/2003 and was sent in the custody of her parents.
PW21 has further deposed that on 03/09/2003, he got recorded statement of prosecutrix U/s. 164 of Cr.PC vide application Ex. PW21/A, which was recorded on 06/09/2003 and he obtained the copy of the same vide application Ex. PW21/B. PW21 has further deposed that on 09/10/2003, he alongwith ASI Ved Prakash, Head Constable Sarv Daman and one Constable reached at the house of prosecutrix and took prosecutrix and her father and reached at Tikri Village, District Bagpat, U.P., where they met with Chairman of the Village Raj Bala and recorded her statement. He prepared rough site plan Ex. PW19/A. Thereafter, they reached at PP Asara, District Bagpat, U.P.. He made arrival entry in PP Asara and took two local Constables and reached at the house of the accused persons. There, on the pointing of prosecutrix, both the accused were arrested vide memo Ex. PW1/B and Ex. PW1/C. He also conducted personal searches of both the accused vide memo Ex. PW1/E and Ex. PW1/F. Thereafter, at the instance of the prosecutrix, he prepared site plan, where the prosecutrix was raped, vide Ex. PW12/A. Both the accused were brought to Delhi and were sent for their medical examination in BSA hospital. After their medical examination, both the accused were sent to J.C. PW21 has further deposed that on 20/10/2003, both the accused were called on production SC No. 149/1 25 warrants and their police remand for four hours was taken. Thereafter, both the accused were taken to Bara Hindu Rao hospital for their medical examination and he collected MLC of both the accused Ex. PW6/A and Ex. PW6/B. He also seized blood sample of both the accused vide memo Ex. PW17/A and deposited the case property in the malkhana. During the course of investigation, he got sent the case property to FSL and report is Ex. PW21/D. Learned Amicus Curiae has contended that pointing out of house of the accused persons and their arrest is doubtful as PW2 Kishan Kumar has stated that his daughter accompanied the police persons, who were 34 in number and went to Bagpat. He also went with them in his separate car. They left for Bagpat in the evening at about 9.00 p.m and he was accompanied by his brother in law in the car and they reached there within 23 hours, whereas PW12 HC Sarv Daman Singh has stated that on 09/10/2003, they started from the PS at about 4.00 a.m. They had gone in a private TATA sumo. He was in uniform and some of the police officials were in civil dress. They reached at Village Asara at about 5.30/6.00 a.m. He does not know, who was driving the TATA Sumo. All the writing work was carried out, while sitting in the courtyard of the house of accused persons. They left the village at around 7.00 a.m. for Delhi and whereas PW21 Inspector Umesh Kumar has stated that they had hired a TATA Sumo from Village narela to go to Village Tikri. He drove the Tata Sumo. They reached there at about 6.30 or 7.00 a.m. and reached at PP Asara within five minutes and after completing the proceedings, they left the house of accused persons at about 11.30 a.m. he had prepared all the memos in his own handwriting.
SC No. 149/1 26
I have considered the submissions of learned Amicus Curiae. Except the time, there is no contradiction in the depositions of the witnesses. PW2 Kishan Kumar left for Bagpat in a separate car, whereas police party went in a TATA Sumo, which has been corroborated by the witnesses with each other. PW1, the prosecutrix, has also deposed that on 09/10/2003, she alongwith police had gone to Village Asara at the house of the accused persons and had pointed out the place, where she was confined and raped. Both the accused were present there. Thereafter, they came back to Delhi. She does not know the date, when she had gone. She does not remember when she reached at Village Asara and when she came back. PW1 has denied the suggestion that she did not go to Village Asara alongwith the police after her coming back to Delhi. PW1 has not been cross examined at length about the pointing of house of accused and their arrest, but in the cross examination, PW1 has testified that she visited the house of accused persons with the police and pointed out the same and accused persons were arrested from there. So, the contradictions pointed out by learned Amicus Curiae are not tenable in any manner.
PW5 lady Constable Geeta took PW1, the prosecutrix, to BSA hospital for her medical examination and after her medical examination, she was taken to Tis Hazari Courts , from where, she was sent to Nari Niketan.
PW4 Dr. Renu Rathi has proved the MLC of prosecutrix by identifying the writing and signatures of Dr. Anupama Gupta on MLC Ex. PW4/A. Hymen was found torn, which corroborated with the deposition of PW1, the prosecutrix that she was raped by accused Anwar.
PW6 Dr. Deepak Kumar Das has proved the MLC of accused SC No. 149/1 27 Saleem. He was examined on 20/10/2003 as was brought by PW21 SI Umesh kumar. Accused Anwar was examined by Dr. Manoj Mangla. PW6 has identified his writing and signing on MLC Ex. PW6/A. According to MLC, there was nothing to suggest that accused Saleem was incapable of performing the sexual intercourse.
The exhibits, which were collected in this case, were taken to CFSL by PW14 HC Jaswant on 18/11/2003. He deposited the same in CFSL, Kolkatta on 20/11/2003 and on return, handed over the copy of the receipt to IO.
PW16 HC Vijender Singh was working as MHC(M) at that time and has deposed that on 01/09/2003, PW21 SI Umesh Kumar deposited with him one packet sealed with the seal of "SD" alongwith sample seal. He made entry at serial No. 1151 in register No. 19. On 20/10/2003, blood sample of accused Anwar alongwith sample seal was deposited by PW21 SI Umesh Kumar, in respect of which, he made entry at serial No. 1226 in register No. 19. The copies of the entries are collectively Ex. PW16/a.
On 11/11/2003, the exhibits were sent to CFSL Kolkatta through PW14 HC Jawant Singh vide RC No. 121/21/03, who on return, handed over the receipt to him. Copy of RC is Ex. PW16/B. So, both PW14 and PW16 have corroborated each other in this respect and have been able to prove beyond reasonable doubts that exhibits were collected by PW21 SI Umesh Kumar, who further deposited the same with PW16 i.e. MHC(M), which were sent to CFSL Kolkatta through PW14.
PW17 HC Vinod Kumar has also proved the fact that he handed SC No. 149/1 28 over the blood sample of accused Anwar, which was handed over to him by the doctor, to PW21 SI Umesh Kumar, who seized the same vide memo Ex. PW17/A. In view of above discussion, the testimony of PW1, the prosecutrix, is unrebutted and unshaken. She inspires confidence and is trustworthy. She has deposed before the court that she was raped by accused Anwar in his house against her will and consent, forcibly, which is also corroborated with her medical examination report, wherein her hymen was found torn. Her testimony remained unshaken and unrebutted during her cross examination. She was aged less than 16 years at the time of incident. Accordingly, prosecution has been able to prove offence U/s. 376 of IPC against accused Anwar beyond reasonable doubts, for which, he is held guilty and convicted for the same.
The prosecution has also been able to prove offence U/s. 506 of IPC against accused Anwar beyond reasonable doubts, for which, he is held guilty and convicted for the same.
Announced in Open Court on dated 21st of October 2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No. 149/1 29 SC No. 149/1 30