Delhi District Court
State vs Shyam Sunder on 6 December, 2012
Sessions Case No. 237/1/10 FIR No. 33/10 State Vs Shyam Sunder Police Station Ranhola Under Section 363/ 328/ 376(G)/ 377/ 368/ 34 IPC Convicted u/s 363/ / 376 / 368 / 34 IPC 06.12.2012 Pre: Ld. APP for the state. Ld. counsel Sh. Amit Prashar for accused/ convict. Vide separate order placed along side in the file, convict Shyam Sunder is sentenced to undergo Rigorous Imprisonment for 7 years for the offences u/s 376 and 368 / 34 IPC collectively and to pay a fine of Rs.1000/ in default 5 months further R.I. ; and further, convict is sentenced to undergo Rigorous Imprisonment for 4 years for the offence u/s 363 / 34 IPC and to pay a fine of Rs.500/ in default 1 month further R.I. Benefit of section 428 Cr. PC be given. All sentences shall run concurrently. Copy of this order and judgment be given to the convict at free of cost forthwith. File be consigned to record room. (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 1 At this stage it appears that copy of the judgment is required to be sent to Delhi Legal Aid Service Authority, Delhi for consideration of compensation to be paid to the proscutrix. So the copy is being sent to the Legal Aid Service Authority for necessary action into the matter. (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 06.12.2012 2 IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. Sessions Case No. 237/1/10 FIR No. 33/10 State Vs Shyam Sunder Police Station Ranhola Under Section 363/ 328/ 376(G)/ 377/ 368/ 34 IPC Convicted u/s 363/ / 376 / 368 / 34 IPC ORDER ON THE POINT OF SENTENCE 06.12.2012 Pre: Ld. APP for the state. Ld. counsel Sh. Amit Prashar for accused/ convict. ld. APP submits that offence of such types are increasing day by day. He again argues and submits that accused has already been acquitted for the offence u/s 328 and 377 IPC by giving him benefit of doubt. ld. APP argued on sentence and submits that a severe punishment be awarded to the accused so that a strong message be given in the society that law is very strict to the rapists. He further submits that offence under section 376 IPC is punishable with not be less than seven years but which may be for life. He further submits that if lessor sentence is granted to the accused, the court is required to give special reasons. Ld. APP again submits the latest case law on the point of sentence is that court must avoid leniency. Ld. APP again submits that for the offence punishable u/s 368 IPC accused shall be punished in the same manner as if he had kidnapped or 3 abducted such person with the same intention or knowledge, or for the same purpose for which he conceals or detains such person in confinement. ld. APP further submits that punishment for the offence u/s 363 IPC may to 7 years and fine. On these grounds ld. APP submits that convict deserve maximum punishment. Contrary to it, ld. Counsel for convict submits that convict is aged about 21 years old and he is a very poor person. He has also old parents to look after. He is the only bread earner in his family. He further submits that convict had already remained in judicial custody for about 2 years and 8 months. Ld. counsel again submits that the convict is not a previous convict. On these grounds ld. counsel for convict prays for taking lenient view at the time of awarding the sentence. I have heard the submissions of ld. counsel for the convict and ld. APP as well. Keeping in view of the facts and circumstances of the case and that offences punishable u/s 376, 368, 363, 34 IPC are very serious which crack down the system of society. Therefore, to my view ends of justice will be met if convict is sentenced to undergo Rigorous Imprisonment for 7 years for the offence u/s 376 and 368 / 34 IPC collectively and to pay a fine of Rs.1000/ in default 5 months further R.I. Again ends of justice will be met if convict is sentenced to undergo Rigorous Imprisonment for 4 years for the 4 offence u/s 363 IPC and to pay a fine of Rs.500/ in default 1 month further R.I. Accordingly, convict Shyam Sunder is sentenced to undergo Rigorous Imprisonment for 7 years for the offences u/s 376 and 368 / 34 IPC collectively and to pay a fine of Rs.1000/ in default 5 months further R.I. ; and Further, convict is sentenced to undergo Rigorous Imprisonment for 4 years for the offence u/s 363 / 34 IPC and to pay a fine of Rs.500/ in default 1 month further R.I. Benefit of section 428 Cr. PC be given. All sentences shall run concurrently. Copy of this order and judgment be given to the convict at free of cost forthwith. Orders accordingly. ANNOUNCED IN THE OPEN COURT ON THIS 06.12.2012 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 5 IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. Sessions Case No. 237/1/10 Assigned to Sessions. 17.07.2010 Arguments heard on 22.11.2012 Date of order. 29.11.2012 FIR No. 33/10 State Vs Shyam Sunder s/o Jugresh r/o 140/2, Sanik Enclave, Mohan Garden, Uttam Nagar, Delhi. Accused Raju @ Santosh was declared as Juvenile vide order dated 04.09.2012 and he was sent to Observation Home. Police Station Ranhola Under Section 363/ 328/ 376(G)/ 377/ 368/ 34 IPC Convicted u/s 363/ / 376 / 368 / 34 IPC JUDGEMENT
This is a case where a 14 years old girl was raped by four persons after kidnapping her. Two accused persons namely Dalip and his maternal uncle could not be arrested while accused Raju @ Santosh was declared as Juvenile vide order dated 04.09.2012 and he was sent to Observation Home.
1. Briefly facts of the case are that on 05.02.2010 at 8 a.m. at Govt. Secondary School, Vikas Nagar, New Delhi both accused persons in furtherance of their common intention along with coaccused persons Dalip and his maternal uncle (not arrested ) kidnapped Ms. Neelam, aged about 14 years old (a minor girl) from the lawful guardianship of Mr. Ashok Kumar, father of prosecutrix without his 6 consent. Prosecutrix was smelt some stupefying thing resultantly she lost her consciousness. Both these accused persons along with other coaccused persons committed gang rape upon the minor girl / prosecutrix between the period from 05.02.2010 to 11.02.2010. They had also committed carnal intercourse with the prosecutrix which is against the order of nature. Both these accused persons along with coaccused persons (not arrested) wrongfully confined / concealed Kumari Neelam, aged about 14 years old at Jhuggi no.257, First floor, Jhuggi Basti, Shaheed Sukhdev Nagar, Wazirpur, Industrial Area, Delhi - 52 knowing that she had been kidnapped. Accordingly, both accused persons were arrested and booked in the present case and coaccused persons Dalip and his maternal uncle could not be arrested in this case.
2. This case was committed to the Court of Sessions on 17.07.2010 for trial as it pertains to the heinous crime committed under sections 363/ 328/ 376(G)/ 377/ 368/ 34 IPC and exclusively triable by court of Sessions. Ld. Trial Court framed the charges against the accused persons for the offences 363/ 328/ 376(G)/ 377/ 368/ 34 IPC to which they did not plead guilty and claimed trial. However, during the course of trial accused Raju @ Santosh was declared as Juvenile vide order dated 04.09.2012 and he was sent to Observation Home.
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3. To prove and substantiate its case the prosecution has examined PW1 Ashish Aggarwal, the then ld. MM, West Distt., Delhi, PW2 Dr. Mrgendra Das, CMO - he had examined accused Shyam Sunder vide MLC Ex.PW2/A, PW3 HC Pradeep Kumar - formal witness being duty officer, PW4 Ms. Neelam - prosecutrix, PW5 Dr. Binay Kumar, Medical officer - he referred the prosecutrix to gyane department vide MLC Ex.PW5/A after preparing the MLC, PW6 Dr. Punita Mahazan - she had medically examined the prosecutrix, PW7 Dr. Kartik Saxena - member of medical board constituted for examination of prosecutrix, PW8 Vandana mother of prosecutrix, PW9 Ct. Sultan Singh - he is the witness to the arrest of accused Shyam Sunder on 12.02.2010, PW10 SI Bhanu Partap - he accompanied WHC Shashi and prosecutrix to Sanjay Gandhi Hospital for medical check up of prosecutrix, PW11 ASI Ramesh Chand is the initial I.O. of the case, PW12 Ct. Bhim Singh - he is the witness to the fact that disclosure statement and pointing out of place of occurrence by accused on 22.2.2010 vide pointing out memo Ex.PW12/A and B respectively, PW13 Dr. Manoj Dhingra, medical officer - another member of medical board constituted for medical examination of prosecutrix, PW14 Dr. Rajesh, CMO - he medically examined accused Raju @ Santosh vide MLC 8 Ex.PW14/A, PW15 Ashok Kumar - father of prosecutrix, PW16 HC Inder Raj formal witness being MHCM - he testified about the depositing of case property in this regard he got exhibited the photocopies of entries as Ex.PW16/A to PW16/F, PW17 HC Gulab - he is the witness to the arrest of accused Raju on 01.05.2010, PW18 HC Shashi - formal witness, PW19 W/ ASI Sharmila I.O. of the case.
4. Having gone through the testimonies of prosecution witnesses it has come on record that on 05.02.2010 PW11 ASI Ramesh Chand received DD no.20A regarding missing of Ms. Neelam. On 06.02.2010 PW11 ASI Ramesh Chand recorded statement of Ashok Kumar, father of Ms. Neelam vide Ex.PW11/A and endorsed the same vide Ex.PW11/B. He produced the same before PW3 HC Pardeep Kumar, who recorded FIR no.33/10 vide Ex.PW3/A. On 11.02.2010 Ashok and his wife produced Ms. Neelam at the PS and thereafter, Ms. Neelam was taken to Sanjay Gandhi Hospital Mangolpuri where she was medically examined by PW5 Dr. Binay Kumar vide MLC Ex.PW5/A. The concerned doctor gave sealed exhibits which were taken into possession through seizure memo vide Ex.PW11/C. PW16 HC Inder Raj made entry in the store room register regarding deposition of case property vide Ex.PW16/A, B, C and D. The case property was sent to FSL Rohini through RC 9 no.28/21/10 and 46/21/10 vide memo Ex.PW16/E and F. On 12.02.2010 the investigation was taken up by PW19 WASI Sharmila. Ms. Neelam pointed house no.140, Sainik Enclave, Vikas Nagar Ranhola, Delhi, from where accused Shyam Sunder was apprehended. He was interrogated vide disclosure statement Ex.PW9/B, personal search memo and arrest memo are Ex.PW9/A and PW9/B. On 12.02.2010 accused was medically examined by PW2 Dr. Mirgander Dass vide MLC Ex.PW2/A.
5. It has also come on record from the testimonies of prosecution witnesses that on 15.02.2010 PW1 Mr. Ashish Aggarwal, the ld MM recorded the statement of prosecutrix u/s 164 Cr. PC vide Ex.PW1/A. Application of the IO for recording statement u/s 164 Cr. PC and for receiving the copy of the statement u/s 164 Cr. PC are Ex.PW1/B and PW1/C. On 17.02.2010 a medical board consisting of PW6 Dr. Punia, PW7 Dr. Kartik, PW13 Dr. Manoj Dhingra for re examination of prosecutrix Neelam was organized. The detailed report is Ex.PW6/A. After the medical examination doctor gave sealed parcel and sample seal and IO has taken the same into his possession vide memo Ex.PW10/A. On 22.02.2010 accused Shyam Sunder was taken on two days police remand and he was interrogated in detailed vide disclosure statement Ex.PW12/A and during your police remand accused pointed the place of occurrence 10 vide memo Ex.PW12/B.
6. Most of the material witnesses have been crossexamined. I have gone through their crossexamination also carefully. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being. However, no material contradiction has come on record which may affect the case of the prosecution. On minor type of contradictions the Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case: "minor discrepancies in the evidence of the eyewitnesses are immaterial unless they demolished the basic case of the prosecution".
Observations made in the aforesaid case by the Hon'ble Supreme Court are exfacie indicative of the fact that when contradictions are minor the truthfulness of the witness cannot be discredited in all.
7. In this case the most material witness is PW4 Ms. Neelam being victim for the sake of brevity and convenience her statement is being reproduced verbatim which is as under: "About one year prior from the incident I had gone to attend Tilak Ceremony of my friend Devki where accused Shyam 11 met me there. Thereafter, I did not meet Shyam.
On 05.02.2010 I had gone to my school along with my mother. After dropping at the gate of school, my mother returned back. Thereafter, I entered in the school. I checked my bag and found that there was no pen in the bag.
Thereafter, I came out from the gate of school to purchase a pen from the nearby shop. But I could not purchase the pen because accused Shyam Sunder, Raju, Dalip Kumar and maternal uncle of Dalip were present there. All the four had reached near me and gheraved me. Shyam Sunder had smelt me a handkerchief after smelling the hankie I lost my consciousness.
I had gone to school at 7.30 a.m. I regained consciousness in a hut. I found myself nude and those four persons named stated above were present there. All the four had raped me when I was unconscious when I try to raise alarm, Shyam had pointed knife towards me and he told me that he will kill me in case I will raise alarm.
My statement was recorded by the ld. Magistrate, which is Ex.PW1/A, which bears my signature at point A and G. They had raped me. "Mere soosoo karne wali jagah par apna soosoo karne wala dall diya". I had pain when the accused persons committed the offence with me. I was retained in the said room by the persons named stated above upto 11.02.2010 and they had also raped me repeatedly during this period every day.
On 11.02.2010 father of Shyam had telephoned to Shyam. Thereafter, Shyam took me at his residence where police met me and took me to PS. Witness had identified accused Shyam Sunder and Raju correctly by their name and face. Thereafter, I was taken to the hospital where I was medically examined. My date of birth is 9th February 1996."
8. On careful perusal of the testimony of this witness i.e. PW4 Ms. Neelam, prosecutrix, it has come on record that this witness was examined by the court after identifying the magnitude of her understanding and perceptions regarding her adaptability to environment. In the examination in chief she has categorically 12 stated that her date of birth is 09.02.1996 She was studying in 9th class in Govt. CoEd. secondary school, Vikash Nagar, New Delhi. Prior to one year from 05.02.2010 Ms. Neelam went to attend Tilak ceremony of her friend Devaki, where accused Shyam Sunder met her. On 05.02.2010 PW8 Vandana dropped her daughter Ms. Neelam at the gate of the school at about 7.30 a.m. After entering inside the school, PW4 Ms. Neelam came to know that there was no pen in her bag and hence she came out from the school to purchase the pen from nearby shop and at that time accused Shyam Sunder along with Raju (juvenile), Dilip Kumar and maternal uncle (not arrested) gheraoed her. Accused Shyam Sunder made PW4 Ms. Neelam to smell one handkerchief and thereafter she became unconscious. When PW4 Ms. Neelam regained her consciousness she found herself in a hut in nude position and at that time accused Shyam Sunder along with coaccused persons were present there and then accused persons raped Ms. Neelam one by one. And when PW4 Ms. Neelam tried to raise alarm accused Shyam Sunder pointed one knife towards her and threatened her to kill if she happened to raise any alarm. PW4 Ms. Neelam was kept there till 11.02.2010 and she was subjected to be repeated raped. This witness has been crossexamined at length. In the cross examination it has come on record that None of the culprits left the room leaving her alone. The hut/ jhopdi where she was confined 13 was situated in a residential area. The marriage was in the room where she was confined and no priest had come there to perform the marriage. It has also come in his crossexamination that she told the doctor that she had been forced to marry with accused Shyam Sunder. Accused Shyam Sunder had put sindoor in the parting of her hair. She denied the suggestion that she had voluntarily and with free consent had gone with the accused persons and had physical relation with them.
9. Thereafter, statement of accused Shyam Sunder was recorded under section 313 Cr. PC in which the defence of the accused was of denial in simplicitor. He has denied all the allegations and submitted that he has been falsely implicated in this case.
10.Arguments of ld. Counsel for accused and ld. APP as well were heard at length. During the course of arguments ld. counsel for accused Shaym Sunder argued that accused is innocent and he has been falsely implicated in this case. She was in love with accused Shyam Sunder. He again stated that there are so many contradictions in the statement of witnesses. Ld. Counsel for accused again argued and submitted that except prosecutrix all witnesses are hearsay witnesses. He further argued that no rape has been committed by the accused upon the prosecutrix. 14
11.Contrary to it, ld. APP argued and submitted that there is sufficient evidence on record to hold the accused guilty for the alleged offences. He argued that a minor child aged about 14 years old never tell a lie. Ld. APP emphasized that prosecutrix has clearly stated in her testimony that accused Shyam Sunder and other co accused persons have committed repeated rape upon her confining her in a Jhuggi from 05.02.2010 to 11.02.2010. She has also correctly identified the accused. Ld. APP further argued that Hon'ble Supreme Court of India in various cases has held that alone evidence of prosecutrix is sufficient to hold the accused guilty of rape. In support of his contentions he has stated that it has been held on the point of sexual assault that:
"The testimony of victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict and accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape of sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence on an injured witness and to an 15 extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity I the shape of rule of law is introduced through a new form of testimonial tyranny making justice a causality. Courts cannot cling to a fossil formual and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
In another case of S. Ramakrishna Vs. The State 2008 (11) JT 635, the Apex Court while delivering this judgment also observed:
"10. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Indian Evidence Act, 1872 (In short "the Evidence Act") nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence "
1. Ld. APP again submitted that in case 'B.C. Deva Vs. State of 16 Karnataka 2007 VII AD (S.C.) 143= 2007 12 SCC 122, it has been held that merely because no injury was found on the private parts of the prosecutrix would not negate her testimony about the rape committed on her.
"18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."
2. Before reaching at any conclusion let the relevant sections be re produced verbatim which are as under: Section 361 IPC: "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."
Section 363 IPC: "Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
328. Causing hurt by means of poison, etc. with intent to commit an offence. 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 an offence or knowing it to be likely that he will thereby cause 17 hurl, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
[376. Punishment for rape.(1) Whoever, except in the cases provided for by subsection (1), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years, Explanation I.Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Explanation 2."Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children.
Explanation 3."Hospital" means the precincts of 18 the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]
368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person. Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as mat with or for which he conceals or detains such person in confinement.
377. Unnatural offences.Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 35 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."
3. So long as the offences u/s 377 IPC and 328 IPC are concerned, in the case in hand no witness from FSL has been examined to prove the stupefying substance, allegedly smelt by the victim. Therefore, it cannot be certainly said that what substance victim had smelt. The prosecutrix in her statement which was given before this court has also not stated regarding committal of unnatural sex with her by accused persons. The fact of unnatural sex has also not been corroborated by the testimony of doctors vide Medical Board Report Ex.PW6/A wherein it has been stated that no specific report can be given for unnatural sex. Moreover, vide letter dated 10.03.2010 19 Ex.PW19/B written by ASI Sharmila to CMO, Sanjay Gandhi Hospital to give specific report with regard to unnatural sex since, in the remedical check up of prosecutrix no specific opinion with regard to unnatural sex was given. All these facts and circumstances compels to think otherwise, whether unnatural sex was done or not with the prosecutrix. Hence, I absolve the accused for the offence u/s 328 IPC and 377 IPC.
4. In the case in hand it has categorically come on record that prosecutrix Ms. Neelam was kidnapped by the accused persons on on 05.02.2010 at about 8 a.m. from the nearby shop of Govt. Secondary School, Vikas Nagar, New Delhi after putting some handkerchief having some stupefying substance. A missing report was lodged with the police by the parents of prosecutrix vide depositions PW8 Vandana (mother of prosecutrix) and PW15 Ashok Kumar (father of prosecutrix). And from 05.02.2010 to 11.02.2010 she was repeatedly raped by accused Shyam Sunder and other persons vide deposition of PW4 Ms. Neelam vide her statement recorded u/s 164 Cr. PC. Her testimony has been corroborated by concerned doctor PW5 Binay and PW6 Dr. Punita Mahajan vide MLC Ex.PW5/A. The contentions as raised by ld. Counsel for the accused are not sustainable that accused has no concern with the victim.
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5. So long as the offence u/s 376 (g) IPC is concerned, in this regard the other accused persons have not been brought for trial before this court. So the conviction of accused u/s 376 (g) may result into miscarriage of justice at this stage. Therefore, to my view accused Shyam Sunder is liable to be convicted u/s 376 IPC.
6. Though, the report of Medical Board vide Ex.PW6/A in respect of prosecutrix reveals that no exact opinion can be given whether sex and unnatural sex had taken place with her. Therefore, the matter was advised to be sent to FSL.. FSL report was received in the court. Perusal of the same reveals that it shows the result inconclusive on material aspects like underwear and gauze cloth piece of accused. In light of these facts and circumstances of the case the question arises that whether accused can be convicted for the offence of rape in absence of corroboration of other particulars. However, in the catena of judgments delivered by the Apex Court it has been number of times reiterated that conviction can be safely awarded to the accused on the sole testimony of the prosecutrix but the rule of prudence required that the testimony of prosecutrix is to be examined/ scanned with great caution and circumspection. It was so held in 'S. Ramakrishna Vs. The State 2008 (11) JT 635, the Apex Court' and 'B.C. Deva Vs. State of Karnataka 2007 VII AD 21 (S.C.) 143= 2007 12 SCC 122 discussed (supra). Therefore, as a matter of caution to my view in the present state of affairs as reported by the father of the prosecutrix and in light of the deposition of PW4 Ms. Neelam it reveals that in all probabilities incident of rape had taken place from 05.02.2012 to 11.02.2010 after concealing the prosecutrix in a Jhuggi by the accused Shyam Sunder. This sequence of events can be ascertained that in the Indian cultural ethos and pathos of the habitants, neither a girl nor a father, nor a mother can tell a lie regarding false allegations of rape. Relying upon the arguments of the ld. APP and the citations made by him I am of the affirm view that in all probabilities the offence of rape is proved beyond reasonable doubt committed by the accused Shyam Sunder and other persons The contentions of ld. Counsel for the accused that it attracts the features of consent, also does not come to the rescue of the accused precisely for the reasons that the age of prosecutrix as per the record is 15 16 years at the time of incident vide medical board report dated 16.03.2010 signed by Dr. Manoj, Chairman, Medical Board vide deposition of PW13 Dr. Manoj indicating that no substantial attribute of consent has come on record as it is also testified by the prosecutrix herself that she was raped by accused Shyam Sunder and she was minor at the time of incident so consent is not material in this case. Besides, nothing has borne out on record that prosecutrix had sexual intercourse with accused with 22 her free will as neither preceding nor subsequent series of acts suggest the conclusion that prosecutrix intended to have sex with accused. This is evident from her statements recorded in the court as well as before ld. MM u/s 164 Cr. PC vide Ex.PW1/A. Again nothing has borne out on record essentially that the prosecutrix has any enmity or motive qua the accused.
7. So long as the aspect of age of prosecutrix is concerned, in this case the age of the prosecutrix as revealed is 14 years old in the deposition of PW8 (mother of prosecutrix) and contrary to it as per report of medical board vide Ex.PW19/C the bone age of prosecutrix is more than 15 years old and less than 16 years old. So, the consent of prosecutrix is immaterial as supported by judgment 'Bishnu Dayal V. State of Bihar AIR 1981 SC 39: 1980 Cr. LJ 1297'' wherein it has been observed that "when girl is below sixteen years her consent is immaterial'
8. In light of my observations made above in the preceding paras of this judgment I hold accused Shyam Sunder guilty for the offence punishable under section 363 / 34 for kidnapping the prosecutrix aged about 15 - 16 years, from the lawful guardianship on 05.02.2010 with the assistance of other persons; for the offence u/s 23 376 / 34 for committing rape upon her along with other persons from the period 05.02.2010 to 11.02.2010; and for the offence u/s 368/ 34 IPC for wrongfully confinement of prosecutrix from 05.02.2010 to 11.02.2010 after kidnapping her precisely for the reasons that in the statement of the prosecutrix it has come on record that gang rape was committed with her as in the crossexamination nothing appeared which should result in disbelieving her deposition. It is well settled proposition of law that the believable and truthful testimony of the prosecutrix is alone sufficient to prove that the offence of rape has been committed by the accused Shyam Sunder. However, other accused Raju @ Santosh was declared as Juvenile vide order dated 04.09.2012 and he was sent to Observation Home.
Accordingly, accused Shyam Sunder
is convicted for the offences
punishable u/s 363/ 376 / 368/ 34
IPC ; and
I absolve accused Shyam Sunder for
the offences punishable u/s 328 IPC
and 377 IPC.
ANNOUNCED IN THE OPEN COURT
ON THIS 29.11.2012
(RAJ KAPOOR)
ASJ02/West Distt.
THC : Delhi
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25
33/10
Ranhola
29.11.2012
Pre: Ld. APP for the state.
Accused Shyam Sunder in JC.
Vide separate judgment placed along side in the file, accuased Shyam Sunder is convicted for the offences punishable u/s 363/ 376 / 368/ 34 IPC and I absolve accused Shyam Sunder for the offences punishable u/s 328 IPC and 377 IPC.
Now, case be fixed for order on sentence for 06.12.2012.
(RAJ KAPOOR) ASJ02/West Distt.
THC : Delhi 26