Delhi District Court
State vs . 1. Umesh @ Sahil @ Mota on 22 August, 2009
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE04 (NORTH) : DELHI
Case ID Number 0240IR1178972006
Session Case No. 23/08
Assigned to Sessions 31.05.2007
Arguments concluded on 19.08.2009
Date of Order 22.08.2009
FIR No. 460/06
Police Station Mukherjee Nagar
Under Section U/s 363/366/376/506/120B
IPC
In the matter of:
State Vs. 1. Umesh @ Sahil @ Mota
S/o Shankar Lal
R/o H. No.15/B19,
Indira Vikas Colony, Delhi
2. Shankar Lal S/o Punjab Rao
R/o H. No.15/B19,
Indira Vikas Colony, Delhi
3. Lakhan Singh S/o Todhi Singh
R/o Village Kuchi Gorriya,
PO Sees Ganj, Distt. Bareli, U.P.
Also at:
H. No.15/B19, Indira Vikas Colony, Delhi
J U D G M E N T
1. All the above named accused persons were booked by SHO PS Mukherjee Nagar U/s 363/366/376/506/120B IPC with the State Vs. Umesh etc. Page No. 1 of pages 52 allegations of having committed various offences like kidnapping, criminal intimidation and rape of a minor girl etc. Accused Umesh was charged with the offence U/s 363/506/376/120B IPC, whereas accused Lakhan and Shankar were charged with the offence U/s 363/506/366/120B IPC.
2. FACTUAL MATRIX: It is the case of the prosecution that on 12.10.2006 at about 2.00 PM at Indira Vikas Colony, Delhi, all the aforesaid accused persons in furtherance of the criminal conspiracy hatched by them, had kidnapped one minor girl, the prosecutrix aged 15 years, from the lawful guardianship of her parents and forcibly boarded her to a TSR and took her at one unknown place, where accused Shankar while showing her a gun threatened her to kill her and her family members and boarded her with the accused Umesh in a train in order to force or seduce her to illicit intercourse with the accused Umesh and she was taken to the village of accused Lakhan Singh, where in the night accused Umesh had committed the rape upon State Vs. Umesh etc. Page No. 2 of pages 52 her without her consent or free will.
3. On completion of investigation, charge sheet was filed before the concerned Ld. Metropolitan Magistrate, who after completing the committal proceedings, sent the case to the Sessions for trial as the offence alleged is exclusively triable by the court of sessions.
4. After hearing the rival submissions of counsels for the parties, a charge U/s 363/366/376/506/120B IPC was framed against the accused Umesh, whereas charge U/s 363/366/506/120B IPC was framed against the coaccused Shankar and Lakhan Singh separately and all of them have pleaded "not guilty" and claimed trial.
5. In its support, the prosecution has examined as many as 13 witnesses, out of them PW1, PW2, PW3, PW4, PW5, PW6, PW9 & PW13 are the formal/official/expert witnesses and they do not require elaborate discussion. The rest of the witnesses, i.e. PW7, PW8, PW10, PW11 & PW12 are material witnesses. State Vs. Umesh etc. Page No. 3 of pages 52
6. FORMAL WITNESSES: PW1 Dr. R.K. Anand, had medically examined the accused Umesh and prepared his MLC Ex.PW1/A. He claimed that he found no external injury on the body of patient.
PW2 HC Suresh Kumar, the Duty Officer, has proved the FIR No.460/06, copy of which is Ex.PW2/A. He also proved his endorsement on rukka which is Ex.PW2/B. PW3 Lady HC Raj Dulari testified that on 18.10.2006, she took the prosecutrix to HRH Hospital for her medical examination, where after examination, Doctor handed over some sealed parcels for onward handing over to IO, who seized them vide Seizure Memo Ex.PW3/A. PW4 Dr. Hari Gupta testified that on 18.10.2006 he medically examined the prosecutrix and on examination vitals of the patient was stable and on local examination an abrasion was found over neck on the right side of size of 1X4 CM and tenderness was also found on her abdomen. He has proved his report on MLC State Vs. Umesh etc. Page No. 4 of pages 52 Ex.PW4/A, which is in his handwriting. After his examination, patient was referred to EMO (G), EMO (S) and Radiologist for her age determination.
PW5 Mrs. Manju Gupta, the Vice Principal of Govt. Girls Middle School Kingsway Camp produced the admission and withdrawal register of school of the relevant period in which the particulars of prosecutrix were appearing at serial no.73, vide admission No.839, the same is Ex.PW5/A and as per said register the date of birth of prosecutrix is 21.05.1991. She also produced the SLC of previous school attended by prosecutrix, copy of which is Ex.PW5/B and also the form filled up by the parents at the time of admission in her school, which is Ex.PW5/C. She also proved the photocopy of SLC issued by her, which is Ex.PW5/D. During cross examination, she conceded that she has no personal knowledge about the case. She could not tell whether in the previous school, the prosecutrix/child was admitted on the basis of affidavit or MCD birth certificate. She confirmed that the State Vs. Umesh etc. Page No. 5 of pages 52 school people did not enquire about it from the father of prosecutrix.
PW6 Dr. M.K. Panigarhi, CMO Department of Forensic Medicine medically examined the accused Umesh and he proved his report Ex.PW6/A and as per his opinion there is nothing to suggest that he was not capable of performing sexual intercourse. PW9 Ct. Sandeep was working as DD writer on 14.10.2006 at PS Mukherjee Nagar, who confirmed that he recorded DD No.45B, copy of which is Ex.PW9/A regarding missing of the prosecutrix aged about 13 years lodged by her father.
PW13 Ct. Vijay Kumar confirmed that he collected the exhibits of this case from MHC (M) on 13.01.2007 and got them deposited in CFSL Calcutta and obtained vide RC No.05/21. After coming back from Calcutta, he handed over RC No.05/21 to MHC (M) PS Mukherjee Nagar.
7. Material witnesses: PW7 (the prosecuterix and a minor) is the most important State Vs. Umesh etc. Page No. 6 of pages 52 witness of this case. She testified that on 12.10.2006 at about 2 pm, when she was going to the vegetable shop of her father opposite Dheerpur, all the three accused persons in the court (she correctly identified all of them) put cloth on her face and took her away in a TSR and then she was confined in a room at an unknown place for two days. During the period of said confinement, she used to beat by the accused Umesh. Thereafter, she was taken to a village at a gun point. There accused Umesh did Jabardasti and did Galat Kaam with her. She clarified that Galat Kaam means as the boy and a girl do and he did galat kaam for 23 days. Then, her father came to the village and took her to her home. Only accused Umesh was present at that time and Umesh was taken back to Delhi by the police. This witness also proved her statement recorded u/s 164 Cr.P.C. by identifying her signatures at point A1 to A4 on the said statement Ex. PW7/A. She also identified her underwear Ex. P1 which was seized by the doctor at the time of her medical examination. State Vs. Umesh etc. Page No. 7 of pages 52
During cross examination, she clarified that her statement was recorded by the police in the police station. She conceded that in her statement recorded before the police she had not stated that three persons put cloth on her face and took her in a TSR. However, she claimed that she had stated in the said statement that accused persons asked her to accompany them at gunpoint to her father's house but they took her to a village and here she confronted with the statement recorded Ex.PW7/DA. She claimed that she did not have friendly relationship with accused Umesh and no joint photographs of her and that of accused Umesh were taken at any point of time. She, however, conceded that in the photograph Ex.PW7/DB she is also appearing. Accused Umesh committed rape with her at the house of accused Lakhan first time. She stated that she had travelled first time with accused Umesh in train for around 23 hours but she did not notice the name of the railway station where they got down from the train. She conceded that public persons were travelling in train as well as they were State Vs. Umesh etc. Page No. 8 of pages 52 present at Railway station but she did not make any complaint to anybody as she was on gunpoint.
PW8 Ct. Mehndi Hassan is another important witness who testified that on 18.10.2006, he joined the investigationof this case alongwith ASI Azad Mohd. and Shri Kailash Chand, father of the prosecuterix and they went to Lajpat Nagar Sahibabad in search of prosecuterix. There the prosecuterix was recovered from the possession of accused Umesh and she was identified by her father. He proved the recovery memo of the girl Ex. PW8/A. He also proved the arrest and personal search memo of accused Umesh Ex. Pw8/B and Ex. Pw8/C. During cross examination, he could not tell the exact time of their reaching at Lajpat Nagar Sahibabad but he claimed that they started from the police station at 10 am on 18.10.2006. He also claimed that they remained there for about one hour. He could not tell the exact place from where the prosecuterix was recovered from Lajpat Nagar Sahibabad.
State Vs. Umesh etc. Page No. 9 of pages 52
PW10 Shri Devender Kumar, Ld. MM, Karkardooma Courts proved the statement of the prosecuterix Ex. PW7/A recorded by him u/s 164 Cr.P.C.. He also proved his certificate about the correctness of the statement Ex. Pw10/C and also the application of the IO for recording of the statement Ex. PW10/A. PW11 Kailash is the father of the prosecuterix who confirmed that on 14.10.2006 he lodged a DD entry Ex. PW9/A regarding the missing of his daughter and on 15.10.2006 he gave his statement to the police. The prosecutrix was missing since 13.10.2006 and he had suspicion on Umesh @ Sahil the accused present in the court as he was also missing since the said date. He also handed over the school record of her daughter in respect of her age. On 18.10.2006, he alongwith the IO and Ct. Mehndi Hasan went to Lajpat Nagar, Sahibabad (UP), from where his daughter Poonam was recovered. He admitted of having signed the document Ex.PW8/A. He could not identify the accused Umesh @ Sahil, who was present in the court.
State Vs. Umesh etc. Page No. 10 of pages 52
During cross examination, he denied the suggestion that in October, 2006, the age of his daughter Poonam was more than eighteen years. He conceded that at the time of admission of his daughter in school, neither he submitted any certificate issued from MCD nor any document of proof regarding her age. He showed his ignorance as to whether there was love relationship between his daughter and accused Umesh and they wanted to marry each other. He however admitted that at the time of taking of prosecutrix for recording of her statement U/s 164 Cr.P.C., he was accompanied with her and he was sitting out side the court at the time of recording of said statement. Prior to the incident, the accused was not known to him, though, it is correct that he also resides in Indira Vikas Colony, where he himself is residing. He is a vegetable seller. Prosecutrix had studied upto six class and she is her youngest child.
8. PW12 is the Investigating Officer of the case, who confirmed that on 15.10.2006, the complainant came to the police station and State Vs. Umesh etc. Page No. 11 of pages 52 got recorded his statement Ex.PW11/A on which he made his endorsement Ex.PW12/A, upon which the FIR no.460/06 was registered at PS Mukherjee Nagar. He went further to testified that on 18.10.2006, he alongwith the complainant and Ct. Mehndi Hassan went to Lajpat Nagar, Sahibabad, where the accused was found present alongwith the prosecutrix and he was trying to go to railway station with the victim girl. He alongwith the prosecutrix was apprehended at the instance of complainant. He proved the recovery memo of prosecutrix Ex.PW8/A. He confirmed that the prosecutrix and victim were got examined vide MLCs Ex.PW1/A and Ex.PW4/A. Three parcels sealed with the seal of HRH containing under guarments of the prosecutrix, one slide and sample seal, were given to him to which he took into possession vide Ex.PW3/A. Blood sample of the accused (contained in a small bottle and sealed with the seal of HRH) was also taken in to possession vide memo Ex.PW12/B. He further confirmed that on 19.10.2006 the prosecutrix and accused were produced before the State Vs. Umesh etc. Page No. 12 of pages 52 court. From there the accused was sent to Judical Custody whereas the prosecutrix was handed over to her parents. Accused was arrested vide memo Ex.PW8/B and his personal search memo was conducted vide memo Ex.PW8/C. On 27.10.2006, he produced the prosecutrix for recording of her statement U/s 164 Cr.P.C. before the court vide application Ex.PW12/C. After recording of statement he obtained the copy upon moving of an application Ex.PW12/D. On 08.07.2007, the accused Lakhan and Shankar were arrested vide momes Ex.PW12/E & F respectively and their personal search was conducted vide memos Ex.PW12/G & H. On 13.01.2007, upon his direction Ct. Vijay Kumar deposited the exhibits of the case to FSL Calcutta, while taking the same from MHC (M) vide RC No.5/21. Later on he obtained the result and placed on record. He identified all the three accused persons.
During cross examination he confirmed that he recorded the statement of father of prosecutrix on 15.10.2006 at PS. The distance between the police station and the spot from where the State Vs. Umesh etc. Page No. 13 of pages 52 prosecutrix was recovered is around 25 KM. The prosecutrix was recovered on the road at Lajpat Nagar Sahibabad and at that time no signatures of public persons were obtained on the arrest memo of the accused. He admitted that the father of prosecutrix was present out side the court where the statement U/s 164 Cr.P.C. was being recorded by the Ld. MM. He also tendered the CFSL result received from FSL Calcutta, the same is Ex.PW12/A1.
9. After conclusion of prosecution evidence, all the accused persons were examined U/s 313 Cr.P.C. wherein they all forcefully denied the story of the prosecution while claiming innocence on the plea of false implication by the police at the instance of the father of prosecutrix.
The accused Umesh specifically claimed that he was in love with prosecutrix. She was also in love with him and they both wanted to marry each other but the parents of the prosecutrix were not agreed and as such they have got him falsely implicated in this case with the connivance of police. He was lifted by the police from State Vs. Umesh etc. Page No. 14 of pages 52 his house.
The accused Shankar Lal while claiming innocence took the stand that he was apprehended by the police on the same day when the girl and boy i.e. prosecutrix and accused Umesh ran away.
The accused Lakhan Singh claimed that he is a poor shoe maker and a resident of Bareli and has no link with the accused Umesh or his family.
None of the accused persons opted to lead any evidence in their defence.
10. I have heard the rival submissions made
11. The criminal conspiracy has been defined u/Sec. 120A of IPC (hereinafter shall be referred to as Code) and it is punishable u/Sec. 120B of Code.
Section 120A IPC reads as under: When two or more persons agrees to do, or cause to be done,-
(1).an illegal act, or State Vs. Umesh etc. Page No. 15 of pages 52 (2).an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. Offence of criminal conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable.
It was held in Hira Lal Hari Lal Bhagwati Vs. CBI 2003 SCC State Vs. Umesh etc. Page No. 16 of pages 52 (Cri) 1121 that, "To bring home the charge of conspiracy within the ambit of Section 120B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is difficult to establish conspiracy by direct evidence."
12. To constitute an offence u/s 363 IPC:
(i).The person kidnapped must be a minor or a person of unsound mind;
(ii).there must be taking or enticing of a minor or a person of unsound mind;
(iii).the taking or enticing must be from the keeping of a lawful guardians of a minor or person of unsound mind; and
(iv).the taking or enticing must be without the consent of such guardian.
The minor means under 16 years in the case of a male or under 18 years in the case of female. In the case of minor girls the section is attracted irrespective of the question whether she is married or unmarried. The offence of kidnapping consists solely of taking a minor from the keeping of her lawful guardian and no intention need be established.
State Vs. Umesh etc. Page No. 17 of pages 52
The word "take" means to cause to go, to escort, or to get into possession. The taking need not be by force, actual or constructive.
The expression "enticing" in the section, involves that while the person kidnapped might have left the keeping of the lawful guardian willingly still the state of mind that brought about the willingness must have been induced or brought about in some way by the accused. It involves an idea of inducement by exciting hope or desire in the other.
A minor is not competent to give her consent to her taking because it is the consent of the guardian which is material. However, a minor is certainly competent to leave the protection of her guardian of her own accord.
13. Section 366 IPC has two parts. The first part is attracts:
(a). Where A kidnaps or abducts any woman:
(i).with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her State Vs. Umesh etc. Page No. 18 of pages 52 will;
(ii).or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse.
The second part applies:
(1) Where A, by means of criminal intimidation as defined in the Penal Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place:
(a).with intent that she may be forced or seduced to illicit intercourse with another person.
(b).with the knowledge that it was likely that she would be forced or seduced to illicit intercourse with another person.
In order to constitute an offence under this section, there must be kidnapping or abduction.
14. Thus in order to prove an offence U/s 366 IPC it is essential that State Vs. Umesh etc. Page No. 19 of pages 52
(a). a women was compelled by force or deceitful means to go from any place;
(b). she was so compelled or induced with intend that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced illicit intercourse. To convict a person under the later part of section 366, it is essential that he is found to have practiced some "criminal intimidation" or employed "any other method of compulsion".
15. In order to prove its case against the accused U/s 366 IPC and U/s 376 IPC, the prosecution was required to establish the following:
(i).that the prosecutrix was the minor at the time of alleged occurrence/incident,
(ii).the accused had kidnapped the prosecutrix with intend that she might by compel and knowing it to be likely that she would be compelled to marry him against her will,
(iii).the accused had sexual intercourse with the prosecutrix and the said act was done under circumstances falling under any of the six clauses mentioned in Section 375 State Vs. Umesh etc. Page No. 20 of pages 52 IPC, which are as under:
(a). against her will,
(b). without her consent,
(c). with her consent which has been obtained by putting her or any person in whom she is interested in fear of death or of hurt,
(d). with her consent when the accused knows that he is not her husband, and that her consent has been given because she believes that he is another man to whom she is or believes her to be lawfully married,
(e). with her consent when at the time of giving consent due to unsoundness of mind or intoxication etc. she was unable to understand the nature and consequences of that to which she gives consent,
(f). with or without her consent when she is below 16 years of age.
16. Section 375 defines the offence of rape. Section 376 prescribes the punishment for the said offence.
Section 375 requires two essentials:
(1).Sexual intercourse with a woman by a man State Vs. Umesh etc. Page No. 21 of pages 52 (2).Such sexual intercourse was under circumstances falling under any of the five clauses in the section.
The depth of penetration is immaterial as far as the offence under Sec. 376 is concerned.
Partial penetration of the penis within the labia majora of the vulva or pudendum with or without emission of semen or even an attempt at penetration is quite sufficient for the purposes of the law. Thus, to constitute the offence the evidence of the lady doctor that there was rupture of the hymen and that there was injury inside the vagina, is sufficient.
To have sexual intercourse with a woman against her will or without her consent is rape.
Sexual intercourse with a woman who is asleep would be against her will.
Under Sec.375, the law requires that the victim must be under 16 years of age or that sexual intercourse was made against her will and consent. Where the victim is below 16 years of age, the question of consent does not arise. Consent on the part of a State Vs. Umesh etc. Page No. 22 of pages 52 woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is no consent.
There is difference between submission and consent. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent.
A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law.
Consent should have been obtained before the act. That the victim consented after the act is no defence.
Sexual intercourse with a woman under the influence of drink cannot be said to be with consent.
State Vs. Umesh etc. Page No. 23 of pages 52
A consent obtained under fear of death or of hurt is no consent at all.
A consent obtained by fraud would be a consent under a misconception of fact and as such would not amount to 'consent'.
The consent must be free, real and previous. It must not be tainted with fear or fraud and must not have been obtained under fear of death or hurt. How is it to be proved?
In Sultan Vs. Emperor 1972 (Cri. LJ) 270:1971 All WR (HC) 565, it was observed:
"The fact that the girl was virgo intacta upto the date of occurrence is very strong proof to the contrary."
Consent, or the absence of it, can be presumed from the attendant circumstances of each case.
Mere presence of semen on the loin cloth of the victim cannot lead to the presumption of consent. Where a woman who has been kidnapped and raped had raised an alarm when she was being kidnapped and had raised an alarm again after she was dropped State Vs. Umesh etc. Page No. 24 of pages 52 back in her village after being raped and had told a story of rape to a witness immediately on her being released by the miscreants go to show that she could never have been a consenting party.
Sexual intercourse with a woman under the age of 16 years is rape and in such a case consent is immaterial and does not absolve the accused from his guilt.
In rape cases it is only when consent is the defence pleaded that the question would arise at to whether the girl was of an age to give consent in law. The question of the age of the prosecutrix should be examined more closely where the medical evidence shows that she was used to sexual intercourse and there was old rupture of the hymen.
The only conclusive piece of evidence of the girl's age may be the birth certificate.
It is true that a doctor is in a better position to for an opinion about the age of a person than a layman, but the statement of a doctor is no more than an opinion. When from his statement it State Vs. Umesh etc. Page No. 25 of pages 52 does not appear that he brought any scientific knowledge to bear upon his opinion, where the doctor has relied entirely on certain physical peculiarities, such as teeth, etc., his statement is not a legal proof but a mere opinion.
In books on Medical Jurisprudence a distinction has been made between vulval penetration and vaginal penetration and it is remarked that vulval penetration with or without violence is an much rape as vaginal penetration. It is not necessary that the hymen be ruptured in every case. "To constitute penetration it must be proved that some part of the virile member of the accused was withing the labia of the pudendum of the woman, no matter how little."
Emission of semen is not by itself a conclusive proof of penetration.
Evidence of non rupture of hymen is not conclusive of the fact that there was no sexual intercourse. The presence of spermatozoa indicating semen found in the woman's genitals or on State Vs. Umesh etc. Page No. 26 of pages 52 her clothes is by no means final in the case of a married woman. Similarly, semen stain on the langot of a young man can exist because of a variety of reasons and would not necessarily connect him with the offence of rape.
The absence of the smegma is not necessarily a conclusive proof of the fact of recent cohabitation or sexual intercourse, but it can also lead to inference that the parts had been washed and kept clean by the persons. So, the absence of smegma on the private parts of the accused is not sufficient to raise a inference of guilt.
In rape cases if the gland of the male organ is covered by uniform layer of smegma it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma round the corona gland is proof against penetration, since it is rubbed off during the act of sexual intercourse. The smegma accumulates if no bath is taken for twenty four hours. In rape cases, therefore, the prosecution must State Vs. Umesh etc. Page No. 27 of pages 52 get the male organ of the accused examined.
It is only when the glans penis is covered by a uniform layer of smegma that the possibility of recent complete penetration is negatived. The presence of a small quantity of smegma is not sufficient to negative such possibility since a negligible amount of smegma may be present even if a person has intercourse.
17. It is the case of the prosecution that
(a). All the three accused persons namely Umesh, Shankar and Lakhan Singh hatched a criminal conspiracy to kidnapped the victim girl.
(b). Then in pursuance to said conspiracy, they all had kidnapped the prosecutrix from the lawful guardianship of her parents and forcibly boarded her to a TSR and took her at one unknown place, where accused Shankar while showing her a gun, threatened her to kill her and her family members and boarded her with the accused Umesh in a train in order to force or seduce her to illicit intercourse with Umesh.
(c). The prosecutrix was taken by the accused Umesh to the village of accused Lakhan Singh, where in the State Vs. Umesh etc. Page No. 28 of pages 52 night accused Umesh had committed the rape upon her without her consent or free will.
On the contrary according to the defence version they all are innocent and they have been falsely implicated by the police at the instance of the father of the prosecutrix for the reasons that the accused Umesh and the prosecutrix were in love and they both wanted to marry but the parents of the prosecutrix were against them. As per accused Shankar, he was apprehended by the police on the same day when the girl and boy i.e. prosecutrix and accused Umesh ran away, whereas according to Lakhan Singh, he is a poor shoe maker and the resident of Barelley and has nothing to do with Umesh or his family.
As per submission of Ld. Addl. PP for the State the case of the prosecution is crystal clear. By way of clear and unembigous testimony of the prosecutrix coupled with the medical, scientific and other documentary evidence brought on record, it has been established that the prosecutrix was a minor, who was forcibly kidnapped by the accused persons from the lawful guardianship of State Vs. Umesh etc. Page No. 29 of pages 52 the parents of the prosecutrix and raped by the accused Umesh forcibly and without her consent. Thus, all the accused persons are liable to suffer the order of conviction against them.
On the other hand, according to Ld. Defence counsel the prosecutrix and the accused Umesh were previously knowing to each other and they were in love and were willing to marry each other and this fact is established by a joint photograph of the prosecutrix and the accused Umesh Ex.PW7/DB, however, the father of the prosecutrix was against their marriage and therefore, he got the accused persons implicated falsely in connivance with the police.
He further stressed that the prosecution has been failed to establish that the prosecutrix was a minor at the time of alleged occurrence of the offence. The documentary material in the form of School Leaving Certificates Ex.PW5/C & D and the Admission Withdrawal Register Ex.PW5/A are not sufficient to establish the claim of the prosecution as those documents can not be safely State Vs. Umesh etc. Page No. 30 of pages 52 relied upon in the absence of Date of Birth Certificate issued by Municipal Authorities or any affidavit or the birth record issued by the hospital etc. He further stressed that despite of the recommendation by the doctor (who had medically examined the girl), the prosecutrix was not produced by the police for the Bone Age test/ Ossification Test to determine her exact age and this creates a doubt in the mind about the claim of the prosecution that the victim was a minor at the time of the occurrence.
Sh. Abdul Aziz, Ld. Defence counsel further claimed that the testimony of the prosecutrix is so artificial and full of contradictions as same can not be the basis for the conviction of the accused persons. Firstly, in her statement recorded U/s 161 Cr.P.C. there is no mention about the accused Shanker and Lakhan and their involvement at the later stage shows that the same is after thought and this fact is also evident from the fact that they were arrested at the instance of the father of the prosecutrix. Moreover, at the time of the recovery of the prosecutrix from Sahibabad, only accused State Vs. Umesh etc. Page No. 31 of pages 52 Umesh was found with her and this fact further falsify the claim of the prosecution. Further more as per the story of the police, the prosecutrix and accused Umesh were apprehended from Sahibabad, whereas according to the version of prosecutrix, they had to travel in a train for 6/7 hours to reach at the place where from, the police had apprehended them. Certainly, the distance between Delhi and Sahibabad can not be so much that 6/7 hours train journey would be needed to cover the said distance. Further, non mentioning of the fact that the prosecutrix was removed at the gun point in her statement recorded U/s 161 Cr.P.C. and also the fact that she did not raise any hue and cry during a long train journey also creates doubt about the acceptability of the statement of the prosecutrix.
18. It is well settled proposition of law that in a case of rape the onus is always on prosecution to prove affirmatively each ingredients of the offence it seeks to establish and such onus never shifts. However, great the suspicion against the accused State Vs. Umesh etc. Page No. 32 of pages 52 and however strong the moral belief and conviction of the judge, unless the offence of accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he can not be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.
19. In the case in hand, all the accused persons have been charged U/s 120 B IPC for hatching a criminal conspiracy for doing an unlawful act of kidnapping and criminal intimidation. They are also charged U/s 363/366/506 IPC. Besides the above, the accused Umesh has also been charged U/s 376 IPC.
Now, I would like to proceed to find out as to whether the accused Shankar Lal and Lakhan Singh had hatched the conspiracy with the accused Umesh for kidnapping the prosecutrix and criminally intimidating her. What was their roles? State Vs. Umesh etc. Page No. 33 of pages 52
The essence of criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. To bring home the charge of conspiracy within the ambit of Sec.120 B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. In the entire evidence brought on record by the prosecution there was no material to show that there was an agreement between the accused persons or there was the prior meeting of the minds of the accused persons for the act of kidnapping of the prosecutrix etc. From the perusal of the record, it is revealed that initially there was no allegation against the accused Shankar and Lakhan. In her statement recorded U/s 161 Cr.P.C. the prosecutrix had not even mentioned the names of the accused Shankar Lal and Lakhan Singh and there names were subsequently come into picture at the later stage i.e. recording of the statement of prosecutrix U/s 164 Cr.P.C. This shows that there was no agreement or meeting of minds amongst the accused persons, so no charge of conspiracy State Vs. Umesh etc. Page No. 34 of pages 52 is proved against any of the accused persons, so all the accused persons are entitled to be acquitted under Section 120 B IPC. Accordingly they are acquitted therein under.
Now, since the prior meeting of the minds of accused Shankar Lal & Lakhan Singh with the accused Umesh is not established and therefore, the charge of conspiracy has failed, so their presence at the spot at the time of alleged occurrence of kidnapping of the victim has itself become doubtful. Except, mentioning of their names by prosecutrix for the first time while recording her statement U/s 164 Cr.P.C., there was no whisper of their involvement in the incident and the investigation was only proceeding against accused Umesh. The bare reading of the testimony of PW11 Kailash (the father of prosecutrix) shows that when the prosecutrix was brought before the concerned Magistrate for recording of her statement U/s 164 Cr.P.C., he was accompanied with her. So in these circumstances, the statement of the prosecutrix so far as regarding the involvement of accused State Vs. Umesh etc. Page No. 35 of pages 52 Shankar and Lakhan is concerned can not be safely relied upon. Thus charges U/s 363/366 or even U/s 506 IPC against accused Shankar Lal and Lakhan Singh also do not survive. There is no corroborative evidence on record to suggest their presence with coaccused Umesh at the time of boarding of the prosecutrix in the three wheeler or in the train at the gun point. There is no recovery of the gun also and at the time of recovery of the prosecutrix only accused Umesh was found alongwith her. Thus charges U/s 363/366/506 IPC also fail against the accused Shankar Lal and Lakhan Singh. As such, here too both are entitled for an order of acquittal of order in their favour. Accordingly they both stand acquitted.
20. Now, let us see whether the case of the prosecution also fails against the accused Umesh, as claimed by Ld. Defence counsel?
It is urged by Sh. Aziz that the testimony of prosecutrix is so artificial that it can not become the basis for the conviction. Further the documentary materials Ex.PW5/A, B & C produced by the State Vs. Umesh etc. Page No. 36 of pages 52 prosecution to support the claim that the prosecutrix was a minor, are not sufficient to hold her the minor. In fact, the prosecutrix was a major and she being in love with accused was a willing and consented party and therefore, the question of giving threats also does not arise. In these circumstances, accused Umesh can not be held guilty in any manner.
Here, I am afraid that I am not in complete agreement with the claim of Ld. Defence counsel. Although, I find substance in his submission that the prosecution has been failed to bring home the guilty of accused Umesh U/s 506 IPC as in the entire evidence brought by prosecution, except the bald statement of the prosecutrix that she was beaten by the accused, there is nothing on record to suggest that the accused had criminally intimidated the victim, so he can not be held guilty U/s 506 IPC. However, it is not so in respect of Section 366 & Section 376 IPC as the prosecution has successfully achieved its mission in proving its case against the accused Umesh both under Section 366 & State Vs. Umesh etc. Page No. 37 of pages 52 Section 376 IPC.
21. It is true that the testimony of prosecutrix was not completely believable in respect of the accused Shankar Lal and Lakhan Singh but it is not so in respect of the accused Umesh as in her testimony recorded before the Court, she has fully corroborated with the story of prosecution against the accused Umesh in the trustworthy manner. She has mentioned the role of the accused Umesh specifically and in consistent manner.
To bring home the guilt of the accused Umesh under Section 366 & Section 376 IPC, the prosecution was required to prove the following:
(i).he had taken away the victim from the lawful guardianship of her parents;
(ii).the victim was the minor at the time of her taking away.
(iii).he had taken away her with intend to force or seduce her to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse.
(iv).he had committed rape upon the prosecution with or without her consent.
22. In order to prove that prosecutrix was a minor girl and she was State Vs. Umesh etc. Page No. 38 of pages 52 taken away by the accused from the lawful guardianship of her parents with the intend to force or seduce her to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, the prosecution has examined its star witnesses i.e. PW11 Kailash (the father of the prosecutrix), PW7 (the prosecutrix herself), PW9 Ct. Sandeep and PW5 Ms. Manju Gupta (Vice Principle, Govt. Girls Middle School, Kingsway Camp, Delhi).
PW11 Kailash (the father of the prosecutrix) has confirmed that on 14.10.2006, the DD entry Ex.PW9/A regarding missing of the prosecutrix was lodged at PS Mukherji Nagar. He also proved his statement dated 15.10.2006, wherein it was confirmed that the prosecutrix was missing since 13.10.2006 and he had suspicion on Umesh @ Sahil, the accused present in court, behind her missing as he was also missing since the same day.
PW7 (the prosecutrix) has confirmed that she was taken away on 12.10.2006 at about 2.00 p.m. when she was going to the vegetable shop of her father opposite Dhirpur and she was taken away in a TSR and then she was confined in a room for two days. State Vs. Umesh etc. Page No. 39 of pages 52
PW9 Ct. Sandeep has proved DD No.45B Ex.PW9/A regarding the missing of the prosecutrix.
PW5 Ms. Manju Gupta, Vice Principle, Govt. Girls Middle School, Kingsway Camp, Delhi has produced the admission and withdrawal register Ex.PW5/A, wherein at serial no.73 the date of birth of prosecutrix is mentioned as 21.05.1991. She also produced and proved the School Leaving Certificates of previous school Ex.PW5/B & C attended by the prosecutrix. Whereas the accused has produced no material in contrary to the aforesaid documents to establish that the prosecutrix was not a minor at the time of occurrence. From the aforesaid documents, it is established that the prosecutrix was a minor girl of 13½ years of age and, therefore, was incapable of giving her consent.
In her statement PW7 (the prosecutrix) has corroborated with the story of prosecution that on 12.10.2006 at about 2 pm, when she was going to the vegetable shop of her father opposite Dheerpur, she was taken away in a TSR and then she was State Vs. Umesh etc. Page No. 40 of pages 52 confined in a room at an unknown place for two days. During the period of said confinement, she used to beat by the accused Umesh. Thereafter, she was taken to a village, where accused Umesh did Jabardasti and did Galat Kaam with her. This fact established that the accused had taken away the victim with intend to force or seduce her for illicit intercourse.
23. The factum of the recovery of the prosecutrix from the possession of the accused Umesh has also been established not only by PW11, the father of the prosecutrix, but also by PW8 Ct. Mehni Hassan and PW2 ASI Azad Mohd. PW11 Kailash has confirmed that her daughter was recovered from Lajpat Nagar, Sahibabad, U.P. and at that time the accused Umesh was also present with her. Thereafter, the girl and the boy were taken back to Delhi by the police. PW8 Ct. Mehndi Hassan, has also witnessed the factum of the recovery of the prosecutrix from the possession of the accused Umesh where she was identified by the complainant. He too has correctly identified by the accused, State Vs. Umesh etc. Page No. 41 of pages 52 present in court. He has proved the recovery memo of the prosecutrix Ex.PW8/A. PW12 ASI Azad Mohd. has also corroborated with the aforesaid testimonies and he too confirmed that on 18.10.2006 he alongwith complainant and Ct. Mehndi Hassan went to Lajpat Nagar, Sahibabad, U.P. where the accused alongwith the victim was seen while trying to go to railway station and at the instance of complainant Kailash the accused Umesh was apprehended alongwith the prosecutrix.
These witnesses were cross examined by Ld. counsel for accused but nothing material could be achieved to disbelieve them. As such, it is established that the prosecutrix was got recovered from the possession of the accused Umesh, who had kidnapped her from the lawful guardianship of her parents with an intent to seduce or force her for illicit intercourse. Thus the accused is liable to be held guilty U/s 366 IPC. Accordingly, he is held guilty therein under.
24. Now come to Section 376 IPC.
State Vs. Umesh etc. Page No. 42 of pages 52
25. It is the stand of Ld. Defence counsel that the prosecutrix was a willing and consenting party as the prosecutrix and the accused were previously knowing to each other, rather, they were in love with each other and the parents of the prosecutrix were against their relationship and as such she was a willing party to accompany with the accused and she made physical relations with the accused out of her own volition and free consent.
The above contention/stand of Ld. Defence counsel has become meaningless in the present set of circumstances where it has already been established that the prosecutrix was a minor at the time of occurrence and therefore, she was incapable of giving her consent or willingness. Thus it is immaterial that she was a consenting party or not. Once it is not disputed by the accused that sexual intercourse took place between the prosecutrix and the accused, then nothing more is required to be established by the prosecution, once it is established that the prosecutrix was a minor girl of 13½ years. However, in the instant case the perusal of the State Vs. Umesh etc. Page No. 43 of pages 52 statement of the prosecutrix shows that she was not a consenting party at all. She has categorically testified that she was confined in a room at an unknown place for two days. During the period of said confinement, she used to beat by the accused Umesh. Thereafter, she was taken to a village at a gun point. There accused Umesh did Jabardasti and did Galat Kaam with her. She even clarified that Galat Kaam means as the boy and a girl do and he did galat kaam for 23 days. The medical evidence brought on record by the prosecution also corroborate the stand of the prosecutrix that a rape has been committed upon her without her consent. The MLC of the prosecutrix Ex.PW4/A has been proved on record and as per the report of PW4 Dr. Hari Gupta, vital of the patient was stable and there was found an abrasion on the neck of the prosecutrix on the right side of the size of 1 x 4cm and also tenderness over abdomen. PW6 Dr. M.K. Panigrahi confirmed in his report Ex.PW6/A that there was no abnormality detected in the accused and in his opinion there was nothing to suggest that the accused was not capable of State Vs. Umesh etc. Page No. 44 of pages 52 performing sexual intercourse. In the report of Gynae Expert made on the MLC Ex.PW4/A, it has been clearly mentioned that slight bleeding per vaginum present. Hymen torn. Vagina admits two finger easily. Thus it is established beyond doubt that accused had committed rape upon the prosecutrix against her consent and therefore, the accused is liable to be held guilty U/s 376 IPC and accordingly, he is held guilty therein under.
26. In the light of aforesaid,
(a). Accused Lakhan and Shankar are acquitted of the charges framed against them.
(b). Accused Umesh is also acquitted U/s 506 IPC and Section 120 B IPC, however, he is held guilty U/s 366 & 376 IPC and accordingly he is convicted therein under.
27. Now accused Umesh be heard on the point of sentence of 26.08.2009.
(Announced in the open (RAKESH KUMAR) court today on 22.08.2009) ASJ04 (NORTH)/DELHI State Vs. Umesh etc. Page No. 45 of pages 52 IN THE COURT OF SH. RAKESH KUMAR ADDL. SESSIONS JUDGE04 (NORTH) : DELHI SC No. 23/08 FIR No.460/06 PS : Mukherji Nagar U/s 363/366/376/506/120B IPC In the matter of: State Vs. Umesh @ Sahil @ Mota S/o Shankar Lal
R/o H. No.15/B19, Indira Vikas Colony, Delhi ORDER OF SENTENCE 31.08.2009
1. I have given my thoughtful consideration to the rival submissions of Sh. Abdul Aziz, Ld. Counsel for the convict as well as of Ld. Addl. PP for the State on the point of quantum of sentence to be awarded to the convict.
2. It is submitted on behalf of the convict that he is the first offender and has no criminal antecedent. It is also stated that he belongs to the poor strata of the society. He is a young man and has a long life before him. He is student also. He has already remained under custody for a considerable long period and has learnt sufficient lesson while staying behind the bar. It is claimed that now the convict wants that he should be given an opportunity to come back in the main stream of the society State Vs. Umesh etc. Page No. 46 of pages 52 by improving himself. His conduct and behaviour during the period of trial has also remained unblemished. As such he may be dealt with leniency.
3. On the other hand according to Ld. Addl. PP for the State, the convict has committed serious offence which is against the society at large and he deserves the stern punishment. Punishment should not be a nail bitting one. She also submitted that crime against women particularly sexual violence is a serious blow to her supreme honour and offenced her self esteem and dignity. The social impact of the crime e.g. where it relates to offences against women, can not be lost site of and per se required exemplary treatment. The liberal attitude by imposing megare sentences may be result wise counter productive in the long run and against social interest which needs to be cared for and strengthened by the required string of deterrence inbuilt in the sentencing system. She further submitted that the offences committed by the convict are serious offences which give rise to a great deal of misery. In the case in hand, the circumstances demand that the convict should be given severe punishment to have a deterrent effect on the society.
4. Sentencing is a very difficult process. At one end there is a question State Vs. Umesh etc. Page No. 47 of pages 52 of personal liberty and at the same time on the other hand the question of larger interest of society is involved.
It has been very aptly indicated in Dennis Councle MCGDautha Vs. State of Callifornia (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 State Vs. Umesh etc. Page No. 48 of pages 52 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 basis of relevant circumstances in a dispassionate manner."
In Sevaka Perumal etc Vs. State of Tamil Nadu (1991 (3) SCC 471) it was held that, "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.
5. 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, "State 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 State Vs. Umesh etc. Page No. 49 of pages 52 machinery or the deterrence based on factual matrix.
6. Crime against women particularly sexual violence is a serious blow to her supreme honour and offenced her self esteem and dignity. The Courts are, therefore, expected to deal with the cases of sexual crime against women with utmost sensitivity. 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, can not be lost site of and per se required exemplary treatment.
The socioeconomic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in the sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing of an appropriate sentence. The loud cry for justice by the society in cases of heinous crimes like rape or kidnapping etc. must be heard.
It has been held in the case reported as AIR 1997 SC 3986 titled as State Vs. Rajender J. Gandhi that, "A socially sensitized Judge is a statutory armour in cases of crime against women then long clauses of penal provisions containing complex exceptions and provisos." State Vs. Umesh etc. Page No. 50 of pages 52
7. I have given my thoughtful consideration to the aforesaid submission. Although, it is true that the offence committed by the convict is of very serious nature and he should be awarded stern punishment to have a deterrent effect in the society. It is also true that the crime against woman particularly sexual violence is a serious blow to her supreme honour and offenced her self esteem and dignity. However, in the facts and circumstances of the present case, where the accused is a young man and has a long carrier before him. It is his first offence and his conduct and behaviour throughout the trial has remained unblemished and he deserves a chance to improve himself and to come back in the main stream of the society. As such, in my considered opinion, the interest of justice shall be fully met in awarding the following sentence to the convict:
(i).The convict Umesh @ Sahil @ Mota S/o Shankar Lal is awarded sentence U/Sec.366 IPC to undergo rigorous imprisonment for the period of three years and he is also directed to pay the fine of Rs.2,500/, in default, to undergo simple imprisonment for the period of two months.
(ii).He is also awarded sentence U/Sec.376 IPC to undergo rigorous imprisonment for the period of three years and also to pay the fine of Rs.2,500/, in default, simple imprisonment State Vs. Umesh etc. Page No. 51 of pages 52 for the period of two months.
(iii).Both the sentences shall run concurrently. Benefit of section 428 Cr.P.C. be also given to the convict.
8. Order on sentence announced accordingly. Copy of the judgment and order be given to the convict free of cost. Bail Bond, if any, stands discharged.
9. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 31.08.2009) ASJ04 (NORTH)/DELHI
State Vs. Umesh etc. Page No. 52 of pages 52