Delhi District Court
Manju. Ld. Defence Counsel Also Relied ... vs State Of on 30 July, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST04), DELHI
SC NO. : 166/1/09
State
Versus
1. Shyam Lal
S/o Chiranji Lal
R/o H. No. 1583, Kalyan Sagar
Distt. & P.S. Mahola, U.P.
2. Govind
S/o Shyam lal
R/o H. No. 1583, Kalyan Sagar
Distt. & P.S. Mahola, U.P.
3. Poonam
W/o Prakash
R/o H. No. 1583, Kalyan Sagar
Distt. & P.S. Mahola, U.P.
4. Prakash
S/o Shyam Lal
R/o H. No. 23, Kalyan Sagar
Distt. & P.S. Mahola, U.P.
5. Seema@ Siya
D/o Shyam Lal
R/o H. No. 1583, Kalyan Sagar
Distt. & P.S. Mahola, U.P.
6. Amit Kumar ........P.O. on dt. 25.09.2006
S/o Raja Ram
R/o H.No. 37J, IIIrd Floor
J.J. Colony, Wazir Pur, Delhi.
(Accused Govind from J/C, Amit Kuma is Proclaimed Offender and
other accused persons are on court bail)
SC No. 166/1/09 Page 1of 33
Case arising out of :
FIR No. : 492/05
U/s :328/363/366/368/376/506/34 IPC
P.S. : Ashok Vihar
Date of FIR : 29.07.2005
Date of Institution : 30.05.2006
Date of Final Arguments : 14.07.2010
Judgment reserved on : 14.07.2010
Date of judgment : 23.07.2010
JUDGMENT
1. This judgment shall dispose of the case titled as State Vs Shyam Lal & ors., vide FIR No.492/05, U/s 328/363/366/368/376/506/34 IPC, P.S. Ashok Vihar.
2. As per the case of the prosecution, the brief facts of the case are that the complainant Ram Azore made a complaint on dt. 28.07.2005 that his daughter 'M anju' who was studying in IXth Class in Govt. Sarvodya Kanya School, J.J. Colony has gone to school at 07:00 AM and she has not returned to her home. He even suspected that a boy namely Amit has taken her away. Later on she was recovered on 01.04.2006 from the accused persons' house at Mahoba, U.P. and the girl was produced before the Ld. M.M. and her statement under section 164 Cr.P.C. was recorded and the girl gave statement that she was kidnapped by some people when she was in front of school. Then they gave her a medicine after that she felt unconscious, SC No. 166/1/09 Page 2of 33 when she came in senses she saw six people around her. They forcibly marry her to the accused Govind and thereafter she was forcibly raped by accused Govind.
3. After completion of the investigation, the challan was filed and a prima facie charge under section 366/506/376 IPC was framed against the accused Govind S/o Shyam Lal and charge under section 366/34 IPC was framed against the accused Shyam Lal S/o Chiranji Lal, Seema @ Siya W/o Shyam Lal, Govind S/o Shyam Lal, Prakash S/o Shyam Lal and Poonam W/o Prakash with the allegations that on 28.07.2005 the above named accused persons alongwith accused Amit (P.O.) enticed the prosecutrix Manju D/o Ram Ajore, aged about 15 years with intent that she may be seduced to illicit intercourse/compelled to marry against her will, after kidnapping her from the way between the gali of her house i.e. J.J. Colony, Wazirpur, Delhi to Sarvodya Kanya Vidyalaya, J.J. Colony, Wazirpur, Delhi as such committed offence punishable under section 366/34 IPC.
The accused Govind facing the charge with the allegations that on 28.07.2005 at about 08:00 AM, he criminally intimidated the prosecutrix Manju D/o Ram Ajor to kill prosecutrix and her family in case she raised alarm, after kidnapping her from the way between the gali of the house i.e. J.J. Colony, Wazirpur, Delhi to Sarvodaya Kanya Vidyalaya, J.J. Colony, Wazirpur, Delhi and between the period 28.07.2005 to 01.04.2006 at H. No. 1583, Kalyan Sagar, Near Pahari Mandir, District Mohba, U.P., he repeatedly committed rape upon the prosecutirx Manju against her will and without her consent, after kidnapping her and thereby committed offence punishable under SC No. 166/1/09 Page 3of 33 section 506(II)/376 IPC. Upon the framing of the charges, the accused persons pleaded not guilty and claimed trial to the charge dt. 15.10.2007.
4. In order to prove its case, the prosecution examined as many as 20 witnesses which include PW2 Manju prosecutrix, PW3 Ram Ajor father of the prosecutrix and other official witnesses. PW2 Manju in her deposition stated that in the year 2005 she was residing with her parents at H.No. J40/41, J.J. Colony, Wazirpur, Delhi, her date of birth is 10.07.1990. On 28.07.2005, she was going to her school i.e. Sarvodya Kanya Vidyalaya. When she reached near the gate of the school accused Govind and Prakash met her there. Accused Govind tied the bandage on her eyes and gagged her mouth. She could not raise any alarm. She was got sit forcibly in a three wheeler scooter by them. Someone out of them administered one tablet on her mouth forcibly. After consuming the same, she became unconscious. At that time, she was student of 9th Class. When she regained her consciousness, she was in Mohoba i.e. native place of Govind and Prakash. At that time, six persons were present there namely Govind, Prakash, Shyam Lal, Siya, Poonam and Amit. All the accused persons were known to her earlier because they lived in same house in Delhi. She identified all the accused persons except accused Amit since he was proclaimed offender. She can also identify Amit if he be produced before her. She was confined by all aforesaid six persons in a house and she was not allowed to go outside the house by them. Accused Govind put off her clothes and he also put off his clothes and thereafter accused Govind committed rape upon her. She SC No. 166/1/09 Page 4of 33 was kept for about eight months at three places and he raped her three times against her wishes. Accused Shyam Lal and Prakash used to threat to kill her parents again and again. Accused Govind did not allow to call her parents on telephone. One day accused Govind left his phone in the room when he had gone to outside the house, she made call to her parents from that phone. After expiry of 24 days, her father, tauji alongwith police officials reached there and she was got recovered from the house of accused persons. From where, she was brought by the police to one police post at Delhi. Accused Shyam Lal, Siya and Poonam got her court marriage at house solemnized with accused Govind against her wishes. Her statement was recorded by the police in Delhi. She was medically examined by the doctor in the hospital. She cannot tell the name of that hospital. Her statement was recorded by Ld. MM on 05.04.2006 vide Ex.PW2/A. PW2 Manju was also cross examined by defence counsel, in the cross examination she stated that her statement was recorded by the investigating officer in this case only once i.e. on 05.04.2005 at police station Ashok Vihar. Except this statement investigating officer never inquired from her and never met her with regard to this case. She had stated before police in her statement that Govind and Prakash met her there and accused Govind tied the bandage on her eyes. She confronted with statement recorded by the police on 01.04.2006 Ex.PW2/DA where it is not so recorded. She had stated before the police in her statement that someone out of them administered one tablet on her mouth forcibly or that after consuming the same she became unconscious. Amit is known to her as being a neighbour. She SC No. 166/1/09 Page 5of 33 had made allegations against Amit with regard to her kidnapping and rape. House of the accused Govind is adjacent to her house. However, she did not know accused Govind prior to the incident. In those days, Amit was known to her. She and Govind used to meet on roof top prior to this case but this fact was not in the knowledge of her parents. However, parents of Govind were aware about the same. The parents of Govind never objected her meeting with Govind on the roof. She got married with Dharam Pal S/o Sh. Gaya Prasad Chauhan in the year 2002 but Gona ceremony could not be performed hence she never visited her inlaws' place and never met her husband. The aforesaid marriage was solemnized with her consent and her parents. The Gona ceremony took place on 16.04.2008. The said marriage was broken between her and Dharam Pal before Gona because the parents of Dharam Pal and Dharam Pal objected to her parents that Dharampal cannot get married with her because she eloped with Govind and the said issue was raised in a Panchayat comprising of both the parties. The said Panchayat was called by the parents of Dharampal when they came to know that she had got married with Dharam Pal after eloping with him and her father was also scolded by the Panchayat on this issue being careless towards her. In the year 2002, when she got married with Dharam Pal she was 15 years old. At the time of marriage with Dharam Pal, Manju as well as her parents disclosed her age 15 years to Dharampal and his family and his neighbourhood. After seeing the Vivaheet Ekrarnama Dt. 15.02.2006 attested by Notary D.HQ. Mohawa Ex.PW2/DB, she identified her signatures at point A and B. The aforesaid two signatures were made by her SC No. 166/1/09 Page 6of 33 voluntarily and Govind @ Aakash put his signatures on the same document before Notary official. During her stay for about 8 months with Govind @ Aakash she had written one letter to her parents in which she had not apologized for he conduct. Accused Siya and Shyam Lal who are the parents of Govind used to treat her like their daughterinlaw. During the aforesaid period of eight months, Govind maintained the relations as husband with her. The milkman used to supply the milk to them at Mohawa. The house in which she was residing with Govind was constructed only one room. Vegetable vendors used to come there in the gali to sell vegetables there. She used to got to make easy herself outside the house as there was no latrine/bathroom in the said house. She cannot tell the bus stand as that area was distanced about one hour walking from their house. Besides the house of Govind, the house of other persons including neighbours were also there and the same were occupied by residents. Govind was having a working mobile phone with him which he used to keep with him always. She had tried to call her parents with the phone of Govind on number of occasions but could not talk to her parents due to lack of network. However, she got the opportunity number of time to make the telephonic call from the phone of Govind in his absence to her parents. She was having the mobile of Govind in her absence whenever sometimes he used to go outside the house. She never told about her confinement in the said house by accused Govind to vegetable seller or milkman and another vendors at any point of time. She had told the aforesaid fact of her confinement by accused Govind at his house to the relatives of accused who were residing in SC No. 166/1/09 Page 7of 33 the same colony. She made no complaint against the accused Govind at the time of executing the document Ex.PW2/DB that he has been confined by accused Govind in his house forcibly or that accused used to do sexual intercourse with her against her wishes.
She further stated that about four days prior to reaching of police along with her Tau Setu Ram Chauhan at the house of accused in Mahoba, she had made a telephonic call from the mobile of Govind to her Tau. She cannot tell the mobile number of her Tau. One police official alongwith her Tau, father and uncle had reached in Mehoba. She cannot say whether that police official belongs to Mehoba police station or any other police station. The residents from neighbourhood had collected in the room when police and her family members reached there. Neighbours were not interrogated by the police at that time. In her presence no one was interrogated by the police. Police officials and her family members took back from the house of Govind without making any inquiry. She had been taken to BJRM Hospital for her medical examination. She had told to the doctor at the time of her medical examination that she had left with a boy on 28.07.2005 and resided with him as a husband and wife and had regularly sexual intercourse with him. She also told the doctor that the last intercourse took place three days back and the aforesaid intercourse takes place being husband and wife. When she came back her house, it came into her notice from her father that her husband Dharampal had broken the marriage with her as she was taken to Mehoba by accused Govind. Thereafter, she alongwith her father went to police station and got registered the present case against the accused Govind and his family SC No. 166/1/09 Page 8of 33 members. Dharampal told them, until they lodge report against Govind and his family members he will not accept her as a wife. It took about 12 hours to reach Mehoba, U.P. from Delhi but she cannot tell as to what means of transport they reached there. She also did not raise any objections during the journey to anyone with regard to her kidnapping and taking forcibly by Govind. It is denied that she was major on the day of disappearing from her house. It is also denied her father had managed the date of proof from school in order to falsely implicate the accused persons showing her as minor in the school record. It is also denied that she was never confined by Govind and his family member at Mehoba or that she got married with him voluntarily. It is also denied that accused never committed sexual intercourse without her consent. It is also denied that Govind maintained physical relations with her without her free will and consent. It is denied that she was residing with accused Govind happily. It is also denied that her parents forcibly took her back or that upon their instance, she lodged false case under their pressure.
PW3 Ram Ajor stated regarding missing of his daughter and made suspicions upon the accused persons his statement Ex.PW3/A was recorded by the police. Through conducting the raid of the accused persons and got got recovered his daughter and apprehension of the accused persons. In the cross examination it is admitted that he got registered the date of birth on the basis of idea. Before receiving the telephonic call of her daughter from Mehoba, he did not raise any suspect against the accused Govind. He was aware about the visiting terms and talks between her daughter and accused SC No. 166/1/09 Page 9of 33 Govind @ Aakash at the roof of his house. Before missing of her daughter, he was aware that her daughter and accused like to each other and have intimacy with each other. He had disclosed age of her daughter to the family members of Dharam Pal about 13 years. Dharampal had broken the marriage with her daughter after missing of her daughter. Now her daughter had been married with Rakesh @ Rajesh S/o Rajbir Singh R/o Village Raghunathpur, Bullandsahar. Police had recorded his statement 5/6 times. After recovery of her daughter, police recorded her statement on 04.05.2006. Rest of the suggestions were denied.
During the course of trial, the prosecution also examined PW7 Suman Gupta who brought the age proof record of the prosecutrix Manju from the school i.e. school leaving certificate Ex.PW7/B. The certificate Ex.PW7/A issued by the Vice Principal Ms. Sandhya Pawaha. The photocopy of admission and withdrawal register is Ex.PW7/C and the entry pertaining to Manju is mentioned at serial no. 2860 at point A. PW15 Dr. Shipra Rampal determined the bone age of the prosecutrix Manju vide his detailed opinion Ex.PW15/A. In his opinion, the estimated bone age of Manju was between 1718 years on 10.04.2006 on date XRay was taken.
PW19 Dr. Shakuntla Rani has been deputed in place of Dr. Prakash and Dr. Mamta Negi to prove the MLC of the prosecutrix Manju vide Ex.19/A. On local examination found hymen torn, margins well healed.
PW20 Dr. Dharmender Singh proved the MLC of the SC No. 166/1/09 Page 10of 33 accused Govind which was prepared by Dr. Ajay Kumar vide Ex.PW20/A. As per MLC, the blood sample was taken and handed over to duty constable by Dr. Ajay Kumar. Apart from these witnesses, the other witnesses are police officials who deposed in their statements regarding the investigation as carried out by the investigating officer as well as proved the documents prepared during the course of investigation.
5. After completion of the prosecution evidence, the statements of the accused persons under section 313 Cr.P.C. have been recorded in which all the incriminating evidence led by the prosecution put the accused persons which they denied as false and incorrect with the submission that they are innocent and they have been falsely implicated in the present case. The prosecutrix had herself told the accused her age more than 18 years and she was in love with the accused Govind and she herself has gone with the accused Govind and voluntarily performed marriage as her parents wanted to forcibly marry her to somebody else against her will. The prosecutrix was forced by her parents to give evidence to deposed against the accused persons. They do not want to lead any defence evidence.
6. Having heard the submissions of the Ld. APP for state and the Ld. defense counsel and carefully gone through the material placed on record.
Ld. APP for state submitted that the prosecution has proved its case against the accused beyond all reasonable doubts by examining all the material witnesses as cited in the list of witnesses.
SC No. 166/1/09 Page 11of 33 The testimony of the prosecutrix Manju and her father is consistent, trustworthy and believable. The prosecutrix Manju categorically deposed against the accused persons specifically against Govind who kidnapped and forcibly raped her several times. The allegations made have been supported by PW3 Ram Ajor as well as by medical expert and documentary evidence. It is also a matter of fact that the prosecutrix was recovered from the house of the accused persons. The accused persons have placed on record the marriage proof whereby both have been married and living as husband and wife and also maintained physical relationship. However, it is also a matter of fact that the age of the prosecutrix is determined to be 15 years as per the date birth certificate, which shows that the prosecutrix was minor at the time of occurrence and there is no scope for the accused persons to escape from conviction. The accused persons have not lead any defence evidence to disprove the charges leveled against him. Under these circumstances, all the accused persons are liable to be convicted as per the charged framed against them.
7. On the contrary, Ld. Defence counsel submitted that DD No. 19 dt. 28.07.2005 was recorded on the complaint of the complainant namely Ram Ajore whereby the complainant stated that his daughter Manju aged 1617 had gone to the MCD School, Wazirpur, J.J. Colony to study, who has not returned from school and suspected a boy namely Amit. Accused Shyam Lal and Siya used to keep her as their daughterinlaw. The father of the prosecutrix also filed an affidavit stating the date of the birth of the prosecutrix as 10.07.1990 except the present affidavit the complainant did not file any SC No. 166/1/09 Page 12of 33 documentary proof regarding the age of the prosecutrix. It is further contended by the counsel for the accused persons that the prosecutrix Manju remained with the accused persons for a considerable period of more than eight months and remained with the accused Govind as his legally wedded wife and had consensual marital relation with the accused Govind. The cross examination of the prosecutrix is full of confrontation, during the cross examination of the prosecutrix she admitted that she had affair with the accused namely Govind and her parents were against the same and wanted the prosecutrix to marry another boy namely Dharampal. She also admitted that she was married to Dharam Pal in the year 2002 but Gona was not performed, the said marriage was broken by Dharam Pal as the prosecutrix eloped with Govind and the said issue was raised in a Panchayat by the parents of Dharam Pal and the complainant PW3 Ram Ajor was scolded in the said Panchayat. She further stated in her cross examination that in the year 2002 when she was married to Dharam Pal she was 15 years old. The prosecutrix has also admitted her signatures on Vivaheet Ekrarnama dt. 15.02.2006 attested by notary D.HQ, Mohawa. She further admitted that at the house where she used to stay with the accused was surrounded with the neighbour and the vendors also used to visit there. Despite having number of opportunities she never raised any hue and cry or told anything to anybody. She further stated that at the time of her medical checkup on 01.04.2006 when she recovered from the house of the accused persons, she told the doctor concerned that she had left with a boy on 28.07.2005 and resided with him as husband and wife and had regular SC No. 166/1/09 Page 13of 33 intercourse with him.
It is further submitted by the defence counsel that had she had not lodged the present FIR against the accused persons, Dharam Pal would not have married her in order to continue her marriage with Dharam Pal she filed the present complaint. It is very much evidence from the cross of the prosecutrix that she herself went with accused Govind and without any force and coercion married him. She remained with him for more than eight months as wife and consensually maintained marital relation with him. She was major at the time when she eloped with the accused Govind and admittedly she did not make any hue and cry to the neighbour or other persons, having in her contact during the aforesaid period, which apparently make it clear that she got married with the accused Govind with her free will and consent having no pressure from any corner. The complainant PW3 Ram Ajore during the examination failed to produce any document which can clearly prove the age of his daughter at the time of the disappearance. During the cross examination also he was not able to tell the exact age of the prosecutrix. He got her date of birth registered on the basis of idea which falsify the case of the prosecution that the prosecutrix was minor.
It is further contended by the counsel for the accused persons that PW6 HC Chitrpal was also examined by the prosecution who has recovered the prosecutrix from Mahoba on 01.04.2006. During the cross examination, PW6 HC Chitrapal admitted that he prosecutrix did not make any complaint against any of the accused persons at Mahoba and during the journey from Mahoba to Delhi SC No. 166/1/09 Page 14of 33 which further strengthen the contention of the accused that she was happily living with the accused after her marriage with him, having no complaint but she falsely deposed against the accused on the instance of her parents.
Ld. Counsel for the accused persons further submitted that PW15 Dr. Shipra Rampal had examined the XRay plates of the prosecutrix and had given the detailed opinion Ex.PW15/A in which she opined the estimated age of the prosecutrix on 10.04.2006 was 17 18 years. The father of the prosecutrix also mentioned the age of the prosecutrix in DD No.19 dt. 28.07.2005 her age as 16/17 years at the time of alleged incident. In the marriage certificate also she mentioned her age as 20 years. During her deposition before the court also she mentioned her age as 20 years on 24.09.2008. She also deposed that she got married with Dharampal in 2002 when she was 15 years old. All these contentions make it clear that in all probability the prosecutrix was of the age of majority at the time of alleged incident. It is further submitted by the counsel for the accused persons that all the witness who had deposed before the hon' ble court were not able to prove the guilt of the accused persons, from the above all facts and circumstances and depositions, no malafide intentions of the accused persons were proved as per the statement of the prosecutrix Manju. Ld. Defence counsel also relied upon Ram Murti Vs State of Haryana, AIR 1970 S.C. 1020, Jaya Mala Vs Home Secy. Govt. of J&K, AIR 1982 S.C. 1297, Balasaheb Vs State of Maharashtra, 1994 Cri. L.J. 3044, Lal Singh @ Lali Vs State of Punjab (P&H), 2007 C.C. Cases (HC) 60, Diganta Mazumdar Vs State of Assam, SC No. 166/1/09 Page 15of 33 2008 Cri. L.J. 2856, Aba@ Dinakar Giridhar Koli Vs State of Maharashtra, 2008 Cri. L.J. 2516. It is also prayed that the accused persons may be acquitted as the prosecution has miserably failed to prove the case against the accused persons beyond reasonable doubts and no iota of evidence is on the record against the accused persons, which may connect the accused with the present case as no offence as alleged has been committed by them. The accused persons have been falsely implicated in the present case by the complainant under the pressure of her father. Therefore, all the accused persons are liable to be acquitted from the charges levelled against them.
8. In view of the aforesaid submissions made by the Ld. Counsel for the accused persons and Ld. APP for state and the material placed on record, the charge sheet alleging the age of the victim Manju D/o of Ram Ajor is 15 years. PW2 Manju in her statement deposed that her date of birth is 10.07.1990. She was a student of 9th Class at the time of occurrence. In the cross examination, she stated that in the year 2002 she got married with Dharam Pal at the age of 15 years and at the time of marriage with Dharam Pal, her parents has disclosed her age 15 years. Now she is 20 years old i.e. she was cross examined on 24.08.2008. The original Vivaheet Ikrarnama Ex.2/DB shows her age 20 years.
PW3 Ram Ajor father of the prosecutrix Manju stated that on the date of occurrence her age was 15 ½ years and she was a student of 9th Class. In the cross examination on behalf of the accused persons, PW3 Ram Ajor stated that he got registered the date of birth on the basis of idea. When her daughter got married with Dharam Pal, SC No. 166/1/09 Page 16of 33 she was 13 years old and he disclosed the date of birth of Manju to the family members of the Dharam Pal as 13 years.
PW7 Suman Gupta brought the original school certificate Ex.PW7/A issued by the Vice Principal of the school on the basis of record maintained in the school. As per the original record maintained in the school, the date of birth of Manju is 10.07.1990. Manju was admitted in the school on the basis of school leaving certificate Ex.PW7/B in 6th Class. The photocopy of admission and withdrawal register is Ex.PW7/C. PW9 HC Prafulla had taken the prosecutrix Manju to BJRM hospital for her medical examination and as per the MLC the date of birth mentioned is 15 years. PW15 Dr. Shipra Rampal also opined the estimated bone age of the prosecutrix between 1718 years on 10.04.2006 vide detailed report Ex.PW15/A. The prosecutrix Manju was also examined on oath under section 164 Cr.P.C. by the judicial officer and she told her age as 15 years on 05.04.2006.
9. Rape is defined under section 375 IPC, " Rape" is the act of physically forcing a woman to have sexual intercourse, an act of sexual intercourse that is forced upon a woman against her will.
" Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different states from ten to sixteen years.
the ravishment of a The offence of rape in its simplest term is ' woman, without her consent, by force, fear or fraud' the , or as ' carnal intecrone' of a woman by force against her will.
Rape is not a crime against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a SC No. 166/1/09 Page 17of 33 woman and pushes her into deep emotional crisis. It is only by her sheer willpower that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against the basic human rights and is also violative of the victim' s most cherished of the fundamental rights namely, the right to life enshrined in Article 21 of the Constitution. It is violation with violence of the private person of woman, an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order.
A minor girl allured and falsely assured by the accused for marriage was kept under psychological pressure exerted by the accused and under such allurement of marriage, out of passive submission, marriage pretended to have been performed before the portrait of Goddess Kali, subsequent conduct of the accused and his family members resiling from assurance of actual marriage real that the consent of the victim was obtained by deceitful manner tantamounting lack of her consent proving the guilt against the accused. In case titled as Queen Vs Clarence, (1888) 22 QBD 23, 43, 44, justice Stephen observed that "it seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word and without qualification. It is too short to be true, as a mathematical formula is true. If we apply itin that sense to the present case, it is difficult to say that the prisoner was not guilty of rape, for the definition of rape is having connection with a woman without her consent and if fraud vitiates consent, every case SC No. 166/1/09 Page 18of 33 in which a man infects a woman or commits bigamy, the second wife being ignorant of the first marriage, is also a case of rape. Many seductions would be rapes and so might acts of prostitution procured by fraud, as for instance by promises not intended to be fulfilled. The only sorts of fraud which so far destroy the effect of a woman' s consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself or as to identity of the person who does the act."
Victim Below Statutory Age :
The age limit has finally been raised to sixteen years and consent of prosecutrix is no defence if the victim has been proved to be under sixteen years of age. In case of determination of the date of birth of the child, the best evidence is of the parents. The ossification test for determination of age cannot form the basis on the face of witness of facts tendered by the parents of the prosecutrix, supported by unimpeachable documents. Normally, the age recorded in the school certificate is considered to be the correct determination of age, provided the parents furnish the correct age of the ward at the time of admission and it is authenticated. Where the date of birth recorded in the school certificate is belied by the unimpeachable evidence of the parents of the child and contemporaneous documents like date of birth register of the Municipal Corporation and register of the Nursing Home where the prosecutrix was born and proved by the doctor, the school certificate is not to be admitted for determination of the age of prosecutrix.
If once it was proved that the girl was below sixteen years of SC No. 166/1/09 Page 19of 33 age, the question of consent did not arise and the fact that no injury was detected on the private parts of the girl or that she was found to have been used to to sexual intercourse also become irrelevant. Even if the girl who is fourteen years of age, is not " modest" and is a willing party or even if she invited the accused to have sexual intercourse with her, the act would still be an offence under this section. Where the certificate of the radiologist, entry in the admission register of the school in which she was a student and a certified copy of the entry in the birth register showed that the prosecutrix was about fifteen years of age at the time of the occurrence of the case, the accused would squarely fall under clause fifthly of section 365 and he would be punishable for the rape irrespective of the consent of the girl. Where the evidence on record shows that the victim minor girl was taken away from the custody of her parents and subsequently subjected to sexual intercourse by accused, the accused will be punishable under section 376 irrespective of the question whether the victim was married to the accused or not and irrespective of the question of consent. The aforesaid facts give strength with the judgment titled as Vishnu (2006) 1 SCC 283: 2006 Cri LJ 303 (SC), Harpal Singh AIR 1981 SC 361: 1981 Cri LJ 1 (SC), Jitmohan Lohar 1997 Cri LJ 2842 (Ori).
10. In the present case, the victim Manju stated in her deposition that " when I reached near the gate of school accused Govind and Prakash met me there. Accused Govind tied the bandage on my eyes and gagged my mounth. I could not raise any alarm. I was SC No. 166/1/09 Page 20of 33 got sit forcibly in a three wheeler scooter by them. Someone out of them administered one tablet on my mouth forcibly. After consuming the same I became unconscious.... The accused Govind put off my clothes and he also put off his clothes and thereafter he raped me. I was kept for about eight months at three places and he raped me three times against my wishes." During the cross examination by defence counsel, PW2 Manju stated that during the eight months Govind maintained the relations as husband with her. She had tried to call her parents with the phone of Govind on a number of occasions but could not talk to her parents due to lack of network. It is denied in the cross examination that she is deposing falsely. It is further denied that she was major on the day of disappearance from her house. It is also denied that she was never confined by accused Govind and his family members at Mehoba or that she got married with him voluntarily. It is also denied that accused never committed sexual intercourse with her consent. It is further denied that accused Govind maintained physical relations with her without her free will and consent.
PW4 Devender Kumar Jangala, Ld. MM who recorded the statement of the prosecutrix Manju under section 164 Cr.P.C. and certified that the statement of the prosecutrix Manju Ex.PW4/A is recorded in a correct manner, the certificate to this effect is Ex.PW4/B. In statement under section 164 Cr.P.C. it was categorically stated by the prosecutrix that she has been forcibly married with the accused Govind and they also confined her in their house. Thereafter, despite her refusal, the accused Govind has committed sexual intercourse with SC No. 166/1/09 Page 21of 33 her forcibly.
The MLC of the prosecutrix Manju was proved by PW19 Dr. Shakuntala Rani which is Ex.PW19/A which has been prepared by Dr. Prakash and Dr. Mamta Negi and opined that on local examination found hymen torn, margins well healed. It is also a matter of record that the prosecutrix was married with Dharam Pal and later on she was separated in the year 2002 but her Gonna ceremony could not be performed. She never visited her inlaws nor met Dharam Pal. The said marriage was broken between the prosecutrix and Dharam Pal before Gona because the parents of Dharam Pal cannot get married with her because she eloped with Govind and the said issue was raised in a Panchayat comprising of both the parties. Therefore, since the prosecutrix was minor and already married with Dhraram Pal, therefore, Vivaheet Ikrarnama dt.25.02.2006, Ex.PW2/D has no value in the eyes of law and same is void ab intio. PW2 Manju categorically stated that she was married to accused Govind forcibly without her consent since she was already married with Dharam Pal. The prosecutrix Manju at the time of occurrence was 16 years old as per the date of proof given by PW7 Suman Gupta. Therefore, obtaining her signatures on the marriage documents and giving consent for the marriage has no value in the eyes of law. This fact has already been corroborated with the aforesaid judgments.
11. With respect to the offence under section 366 IPC, if the girl was eighteen or over, she could only be abducted and not kidnapped, but if she was under eighteen she could be kidnapped as well as abducted if the the taking was by force or the taking or enticing was SC No. 166/1/09 Page 22of 33 by deceitful means. In order to constitute offence of ' abduction' a person must be carried off illegally by force or deception, that is, 'to compel a person by force or deceitful means to induce to go from one place to another'. It is no necessary that accused should know definitely who the guardian of a minor girl is whom he finds wandering about and makes use for his own ends.
In case titled as Saheed Mian 2000 Cri LJ 1221 (Pat), it was observed that where there is no evidence showing that coaccused participated and supported the main accused in his nefarious design, in the absence of such intention or knowledge on the part of that person mere presence of the girl in the house of coaccused for two days is not sufficient to convict him for offence under section 366 IPC.
12. The intention and the conduct of the accused determine the offence, they can only bear upon the intent with which the accused kidnapped or abducted the woman and the intent of the accused is the vital question for determination in each case. The fundamental importance of the question of age of the girl concerned, it is the duty of the judge to obtain the evidence of the medical witness with the utmost precision and to have it brought out clearly whether the witness was prepared to stake his opinion that the girl could not be of eighteen or over. Where four 'thi rd molars' teeth have not so far erupted in case of kidnapped girl on the date of her examination and the fusion of the epiphysis of her iliac crest has not yet started, the age of kidnapped girl is under 18 years on the date of occurrence. Her removal on false pretext by the accused from lawful guardianship of the informant amounts to her kidnapping.
SC No. 166/1/09 Page 23of 33 So far as with regard to the offence under section 366 IPC, the PW Manju stated that someone administered her a tablet and after consuming that she became unconscious and regained consciousness in the village Mahoba where the other accused persons were present. The prosecutrix in her statement under section 161 Cr.P.C. and 164 Cr.P.C. has not alleged the name of the accused Prakash as he was with Govind at the time of her kidnapping. She also confronted from her previous statement under section 161 Cr.P.C. and 164 Cr.P.C. Therefore, no explanation received from the complainant or victim as to how name of Prakash came in picture later on which can be afterthought or tutored or motivated. There is no consistent and corroborative evidence brought on record against the accused persons to bring the offence under section 366 IPC.
13. In the aforesaid law and the authorities and the facts and the circumstances of the case as well as the deposition made by the prosecution witness, the age of the prosecutrix Manju supported with her school leaving certificate. The medical certificate depicted the age of the prosecutrix 1718 years. Therefore, we cannot rely upon the medical jurisprudence with respect to the age of the victim Manju. Since there was a school leaving certificate and the father of the prosecutrix has also stated that her age was 15 years at the time of occurrence.
The prosecutrix Manju through the investigation and during the trial has made allegations against the accused Govind and Prakash that they have forcibly abducted her by administering some tablets and the accused Govind had forcibly raped her several times after being SC No. 166/1/09 Page 24of 33 solemnized forcible marriage by executing Vivaheet Ikrarnama at the relevant time, the prosecutrix Manju was 15 years of age. As such execution of marriage certificate and consent of the prosecutrix are immaterial. The bone age conducted with the Xray plates of the prosecutrix Manju was estimated as 1718 years. There is no internal examination of the private parts of the prosecutrix determined the status of fusion if the epiphysis nor any dental report as regarding to the status of denture of victim Manju. Therefore, the medical report with respect to the age cannot be relied upon. The physical examination has not been conducted with respect to the age as per the medical jurisprudence, even though there is two years plus and minus in the age determination of the prosecutrix Manju.
14. Therefore, in view of the aforesaid discussion and the facts and circumstances of the case, I do not find any force in the contentions raised by the defence counsel as well as authorities as cited which are dissimilar with the facts and circumstances of the present case, as such same are not applicable. The prosecutrix Manju has categorically made allegations against the accused Govind which have been corroborated by the testimony of the other prosecution witnesses as well as medical and scientific evidence. Accordingly, the accused Govind is hereby convicted for the offence under section 376 IPC and no other charges proved against the accused Govind and other accused persons. Hence, the accused namely Shyam Lal S/o Chiranji Lal, Poonam W/o Prakash, Prakash S/o Shyam Lal and Seema@ Siya D/o Shyam Lal are acquitted from the charges leveled against them by SC No. 166/1/09 Page 25of 33 the prosecution.
Dictated & Announced (SATINDER KUMAR GAUTAM)
in the open court ADDITIONAL SESSIONS JUDGE
today i.e. on 23.07.2010 (WEST04):DELHI
SC No. 166/1/09 Page 26of 33
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST04), DELHI
SC NO. : 492/05
State
Versus
1. Govind
S/o Shyam lal
R/o H. No. 1583, Kalyan Sagar
Distt. & P.S. Mahola, U.P.
Case arising out of :
FIR No. : 492/05
U/s : 376 IPC
P.S. : Ashok Vihar
Order on Sentence
30.07.2010
Present: Sh. Mukul Kumar, Ld. APP for state.
Convicted Govind with counsel Sh. Pradeep Rana.
Having heard the submissions and gone through the material on record. The accused Govind is convicted for the offence under section 376 IPC, vide separate judgment dt. 23.07.2010.
Ld. APP for state argued that the prosecution proved its case against the accused Govind beyond all reasonable doubts. The testimony of prosecutrix, her father and other material witnesses are trustworthy, corroborated and believable. There is no rebuttal to the deposition of the prosecution witnesses. The prosecutrix Manju categorically deposed SC No. 166/1/09 Page 27of 33 against the accused Govind that he forcibly raped her several times and her deposition has been have been corroborated by PW3 Ram Ajor as well as by medical expert and other circumstantial evidence. The prosecutrix was recovered from the house of the accused persons. It is also a matter of fact that the age of the prosecutrix is determined to be 15 years as per School Leaving Certificate and deposition of her father and other circumstantial evidence, which shows that the prosecutrix was minor. Under these circumstances, the convicted may be awarded maximum sentence.
Ld. counsel for accused submitted that accused/convicted Govind is innocent and falsely implicated in this case and he has done nothing wrong as the prosecutrix went alongwith him for her own sweet will and choice and solemnized marriage and remained for eight months as husband and wife. The prosecutrix was married to one Dharampal prior to she eloped with the accused and remained at the resident of the accused as his wife with his family members. Family members of the accused also treated the prosecutrix Manju as their daughter in law and also given her gifts on the festivals and other occasions. The convicted Govind has already suffered in J/C for about four years. The convicted is a young boy and having clean antecedents. If he remained in J/C, it will ruin his career and would not be able to enjoy the fruit of their young age. It is further contended that they are having old ailing parents. He is also one of the bread earning members of his family and has suffered mentally and physically. Ld. Counsel for the convicted also referred to case titled as 2000(3) C.C. Cases (SC) 4, State of Himachal Pradesh Vs Mango Ram, where it is held that reducing sentence to period SC No. 166/1/09 Page 28of 33 already undergone, prosecutrix and accused related. They were teenagers with an age difference of about 23 years. Both were immature and young. Incident happened 7 years back. Acquitted by trial court. Further order of custodial sentence at this distance may cause rapture in social harmony. Sentence already undergone sufficient to meet ends of justice. Therefore, they may be released on undergone imprisonment.
In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentence are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, cannot be lost sight of and perse require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking SC No. 166/1/09 Page 29of 33 too sympathetic view merely on account of lapse of time in respect of such offence will be resultwise counter productive in the long run and against social interest which needs to be cared for an strengthened by string of deterrence inbuilt in the sentencing system.
In view of the aforesaid submission of Ld. APP for state and Ld. defence counsel, I am of the view that it has been very aptly indicated in Dennis Councle MCG Dautha Vs State of California (402 US 183: 28 L.D. 2d 711) that no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs State of Madhya Pradesh, it has been held that, "in operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence. Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. .......... In each case, there should be proper balancing of aggravating and mitigating circumstances on the SC No. 166/1/09 Page 30of 33 basis of relevant circumstances in a dispassionate manner.
The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of " order" should meet the challenges confronting the society. Friedman in his " Law in Changing Society" stated that, "St ate of criminal law continues to be as it should be decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
In Sevaka Perumal etc. Vs State of Tamil Nadu (1991 (3) SCC 471 " It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. 2008 X AD SC 648, in this case, the accused' s lustful acts have indelible scar not only physically but also emotionally on the victim. No sympathy or leniency is called for.
Therefore, such sentence should be passed in case as proved by the prosecution, which serve the purpose of law and also to the victim. In case titled as AIR 2006 Supreme Court 1746, State of Chhattishgarh Vs Lekhram, where it is held that no evidence showing that she was enticed away from custody of her guardian by respondent accused on a false plea that he would marry her. Prosecutrix proved to be below 16 years on date of occurrence. Conviction of accused proper. However, on facts and circumstances of the case and having regard to fact that she lived for some time with respondent in rented house and was SC No. 166/1/09 Page 31of 33 consenting party. Respondent accused who remained in custody for about one and a half year sentenced to period already undergone. It is further observed that he is said to have remained in custody for about one and a half year. In the peculiar facts and circumstances of this case and having regard to the fact that both the courts have arrived at the conclusion that she was a consenting party, in our opinion, it may not be proper to send the appellant back to prison.
For the aforementioned reasons, while setting aside the judgment of the High Court and affirming that of the Trial Court, we are of the opinion that the interest of justice would be met if the respondent is directed to be sentenced to the period already undergone. This appeal is allowed with the aforementioned directions.
Therefore, in view of the facts and circumstances of the present case, it is also matter of fact that the victim and the accused Govind remained for a period of eight months as husband and wife despite the fact that she was already married to Dharampal and she was well aware of the facts but she did not make any hue and cry nor made any complaints to the neighbours, public persons, vendors or any other authority. It shows that she was one of the consenting party. The age of the prosecutirx as per the School Leaving Certificate was 15 years and as per the bone age she was determined to be 1718 years old and her body organs were well developed and she understands the pros and cons of the consequences which have been taken place between the accused Govind and prosecutrix Manju.
The facts of the case AIR 2006 SC 1746, State of Chhattishgarh Vs Lekhram, are similar to the present case. In that SC No. 166/1/09 Page 32of 33 case, the accused remained in J/C for one and a half year and was sentenced to already undergone. To consider the similar facts and circumstances the convicted Govind has already remained in J/C for about four years. Hence, the convicted Govind S/o Shyam Lal is sentenced to already undergone imprisonment and fine of Rs.10,000/ in default of six months simple imprisonment for the offence punishable under section 376 IPC.
I think the sentence awarded will meet the end of justice and also have a deterrent as well as reformatory way in the mind of the convicted too.
Copy of this order and judgment be given to the convicted free of cost forthwith.
Dictated & Announced (SATINDER KUMAR GAUTAM) in the open court today ADDITIONAL SESSIONS JUDGE i.e. on 30.07.2010 (WEST04):DELHI SC No. 166/1/09 Page 33of 33