Delhi District Court
State vs Mr. Sewa Ram on 15 January, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 23 of 2013.
Unique Case ID Number : 02401R0162452011.
State versus Mr. Sewa Ram
Son of Mr. Babu Ram,
Resident of Village Thana, Tehsil Gunnaur, District
Badayun (U.P.)
FIR Number 622 of 2003.
Police Station Vikas Puri .
Under sections 366/376/34 of the Indian Penal Code.
Date of filing of the Supplementary challan before : 05.04.2011.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 18.05.2011.
Date of transfer of the file to this Court : 05.01.2013.
ASJ (SFTC)-01, West, THC, Delhi
Arguments concluded on : 15.01.2013.
Date of judgment : 15.01.2013.
Appearances: Mr. Anil Kumar, Additional Public Prosecutor for the
State.
Accused Mr. Sewa Ram on bail with counsel, Ms.Neelam
Singh.
Ms.Sadhna Singh, counsel for Delhi Commission for
Women.
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JUDGMENT
1.At the outset, it may be mentioned that this case was decided in ten days of its transfer to this Court i.e. on 05.01.2013 and the judgment has been Sessions Case Number :23 of 2013.
Unique Case ID Number : 02401R0162452011.
FIR Number 156 of 2010; Police Station Vikas Puri. Under sections 366/376/34 of the Indian Penal Code.
State versus Sewa Ram. -:: Page 1 of 12 ::-
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delivered on 15.01.2013.
2.Mr.Sewa Ram, the accused person, has been charge sheeted by Police Station Kirti Nagar for the offence under sections 363/366/376 of the Indian Penal Code (hereinafter referred to as the IPC) and section 174 A of the IPC on the allegations that on 29.12.2003 at about 6.00pm from jhuggi no. WZ-14, Sant Ravidas Camp, Vikaspuri, New Delhi within the jurisdiction of Police Station Vikaspuri, he in furtherance of common intention with co-accused kidnapped the prosecutrix (name withheld to protect her identity) minor girl, aged about 12 years from the lawful custody and guardianship of her parents and with the intention that she may be forced to compel marry any person against her own will and would be compelled for illicit intercourse and that the warrant were issued against him, which could not be executed as he either absconded or concealed himself and therefore a written proclamation was issued against him directing him to appear and because of his non compliance with the requirement of above proclamation, he has been declared as Proclaimed Offender under section 83 (4) Cr.P.C. on 04.10.2004 and he were arrested on 26.02.2011.
3.It is pertinent to mention here that this is a supplementary charge sheet against accused Mr.Sewa Ram and the main charge sheet had been filed against Accused Mr.Raj Kumar, Mr. Parmod Paswan, Mr. Chota and Ms. Sheela Devi. After trial in the main case , accused Mr.Raj Kumar was convicted for the offence under section 363/366/376 of the IPC and accused Mr. Chota, Mr. Parmod were acquitted of the offence under Sessions Case Number :23 of 2013.
Unique Case ID Number : 02401R0162452011.
FIR Number 156 of 2010; Police Station Vikas Puri. Under sections 366/376/34 of the Indian Penal Code.
State versus Sewa Ram. -:: Page 2 of 12 ::-
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section 363/366/34 IPC and accused Ms. Sheela was acquitted of the offence under section 109/366/376 of the IPC vide judgment dated 07.07.2010 of the Court of learned Predecessor. Accused Mr.Sewa Ram had been declared a Proclaimed Offender and had been subsequently arrested.
4.After completion of the investigation, the supplementary challan in respect of accused Mr.Sewa Ram was filed before the Court of the learned Metropolitan Magistrate on 05.04.2011 (the main challan is pending before the Hon'ble Delhi High Court) and after its committal, the case was assigned to Session Court vide order dated 18.05.2011 of the learned Sessions Judge, Delhi. Further, the case has been assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi on 05.01.2013 vide order no. 20/372-512/F.3.(4/ASJ/01/2013, dated-04.01.2013 of the learned District and Sessions Judge, Delhi.
5.Vide order dated 08.08.2011, charge for the offence under sections 363/366/34 and under section 174A of the IPC was framed against the accused Mr.Sewa Ram to which he pleaded not guilty and claimed trial.
6.In order to prove its case, the prosecution had examined as many as five witnesses i.e. HC Surender Singh as PW1; HC Rampod Singh as PW2; HC Dharambir as PW3; Retd SI Narottam Singh as PW4 and the prosecutrix as PW5.
7.PW1 HC Surender Singh had apprehended the accused Mr.Sewa Ram Sessions Case Number :23 of 2013.
Unique Case ID Number : 02401R0162452011.
FIR Number 156 of 2010; Police Station Vikas Puri. Under sections 366/376/34 of the Indian Penal Code.
State versus Sewa Ram. -:: Page 3 of 12 ::-
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as he was proclaimed offender. He interrogated the accused and prepared arrest memo and personal search memo (Ex.PW1/A and Ex.PW1/B). He got the accused medically examined the accused at DDU Hospital. He made entry DD No.59B (Ex.PW1/C) regarding arrest of PO accused Sewa Ram and also prepared the Kalandra under section 41.1 (c) of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) (Ex.PW1/D). On the next date, he produced accused before the concerned court and he was remanded to judicial custody.
8.PW2, HC Ramod Singh is a witness of arrest of accused Sewa Ram after he had been declared a proclaimed offender. He has proved the arrest memo and the personal search memo as EX.PW1/A and Ex.PW1/B. He has also deposed that the IO made his arrival and information regarding arrest of proclaimed offender Mr. Sewa Ram vide DD NO.59B, which is Ex.PW1/C. IO also prepared the kalandra under section 41.1.(c) of Cr.P.C which is Ex.PW1/D.
9.PW3, HC Dharambir executed the process under section 82 Cr.P.C against accused Sewa Ram. His report is Ex.PWP1/A.
10.PW4, Retd, SI Narottam Singh had moved an application for obtaining NBW against accused Ms.Sheela Devi, Mr.Sewa Ram, Mr.Sunil and Mr.Chote (Ex.PW5/A) and thereafter accused Ms.Sheela Devi and Mr.Chote were arrested but accused Mr.Sewa Ram and Mr.Sunil could not be arrested. On 05.07.2004 he had moved an application to initiate proceedings against accused Mr.Sewa Ram and Mr.Sunil under section 82 Sessions Case Number :23 of 2013.
Unique Case ID Number : 02401R0162452011.
FIR Number 156 of 2010; Police Station Vikas Puri. Under sections 366/376/34 of the Indian Penal Code.
State versus Sewa Ram. -:: Page 4 of 12 ::-
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Cr.P.C. (Ex.PW5/B). The process under section 82 Cr.P.C. was got conducted through Ct. Dharambir and later on both Mr.Sewa Ram and Mr.Sunil were declared Proclaimed Offenders.
11.PW 5 (prosecutrix) is hostile and has resiled from her previous statements. She has not supported the prosecution story and has not deposed anything incriminating against the accused. She has deposed that accused Mr.Sewa Ram has no role in the kidnapping as well as her marriage with the co-accused Mr.Raj Kumar.
12.PW 5, prosecutrix, has not deposed an iota of evidence of her being raped at all. She has not even mentioned the word "rape" in her evidence nor has deposed anything incriminating against the accused Mr.Sewa Ram persons.
13.PW5 was declared hostile by the prosecution and cross examined at length but nothing material for the prosecution has come forth. She has denied that she is under pressure or has compromised with the accused or has been won over by him.
14.In the circumstances, as PW5, the prosecutrix who is the star witness has turned hostile and has not supported the prosecution and has not assigned any criminal role to the accused, the prosecution evidence is closed vide order dated 10.01.2013 as it shall be futile to record the testimonies of other witnesses, who are official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix herself has not supported the Sessions Case Number :23 of 2013.
Unique Case ID Number : 02401R0162452011.
FIR Number 156 of 2010; Police Station Vikas Puri. Under sections 366/376/34 of the Indian Penal Code.
State versus Sewa Ram. -:: Page 5 of 12 ::-
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prosecution case and is hostile.
15.At this stage, the accused had expressed his desire to plead guilty to the offence under section 174 A of the IPC. He has been told about the consequences but he has persisted in his plea of guilt. His statement to the same effect has been recorded. He has admitted that he was wanted in the present case but he had absconded and was making not himself available to the police for the purpose of investigation and his trial. He has admitted that he was declared a proclaimed offender in the present case and even after that he did not make himself available to the police nor surrender before the Court. He pleads guilty to the offence under section 174 A IPC . He prays that a lenient view may be taken against him as he is aged about 52 years. Earlier he used to work as labourer but now due to his failing health, he is unable to work. He is a first offender and have never been involved in any other criminal case. He has also remained in custody w.e.f 26.02.2011 when he was arrested in the Kalandra Under section 41(1) C of Cr.P.C after being declared P.O and on 11.03.2011 in the present matter and remained in custody up to 13.04.2011. He has assured the Court that he shall not commit any offence in future and shall be a good citizen.
16.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
17.In the light of the aforesaid nature of deposition of the prosecutrix, Sessions Case Number :23 of 2013.
Unique Case ID Number : 02401R0162452011.
FIR Number 156 of 2010; Police Station Vikas Puri. Under sections 366/376/34 of the Indian Penal Code.
State versus Sewa Ram. -:: Page 6 of 12 ::-
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PW5, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
18.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
19.Consequently, no inference can be drawn that the accused is guilty of the charged offences under sections 363 and 366/34 of the IPC. There is no material on record to show that the accused on 29.12.2003 at about 6.00pm from Jhuggi No.WZ-14, Sant Ravidas Camp, Vikaspuri, New Delhi within the jurisdiction of Police Station Vikaspuri, he in furtherance of common intention got kidnapped prosecutrix, a minor girl, aged about 12 years from the lawful guardianship of her parents and with intention that she may be forced to compel to marry any person against her own 'will' and wold be compelled for illicit intercourse.
20.From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish kidnapping or enticing for illicit intercourse or rape. The gaps in the prosecution evidence, the several Sessions Case Number :23 of 2013.
Unique Case ID Number : 02401R0162452011.
FIR Number 156 of 2010; Police Station Vikas Puri. Under sections 366/376/34 of the Indian Penal Code.
State versus Sewa Ram. -:: Page 7 of 12 ::-
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discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
21.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Sewa Ram for the offence under sections 363 and 366/34 of the IPC.
22.Consequently, accused Mr.Sewa Ram is hereby acquitted of the charge for the offence under sections 363 and 366/34 of the IPC.
23.As accused Mr.Sewa Ram has pleaded guilty to the offence under section 174 A of the IPC and his plea of guilt appears to have been made voluntarily and without any threat, pressure, influence or coercion, the same is hereby accepted and, he is hereby convicted of the offence under section 174 A of the IPC.
24.Let him be heard on the quantum of sentence.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 15th day of January, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
*********************************************************** Sessions Case Number :23 of 2013.
Unique Case ID Number : 02401R0162452011.
FIR Number 156 of 2010; Police Station Vikas Puri. Under sections 366/376/34 of the Indian Penal Code.
State versus Sewa Ram. -:: Page 8 of 12 ::- -:: 9 ::- IN THE COURT OF MS. NIVEDITA ANIL SHARMA, ADDITIONAL SESSIONS JUDGE (SPECIAL FAST TRACK COURT)-01, WEST, TIS HAZARI COURTS, DELHI Sessions Case Number : 23 of 2013. Unique Case ID Number : 02401R0162452011. State versus Mr. Sewa Ram Son of Mr. Babu Ram, Resident of Village Thana, Tehsil Gunnaur, District Badayun (U.P.) FIR Number 622 of 2003. Police Station Vikas Puri .
Under sections 366/376/34 of the Indian Penal Code.
Date of filing of the Supplementary challan before : 05.04.2011. the Court of the Metropolitan Magistrate Date of receipt of file after committal : 18.05.2011. Date of transfer of the file to this Court : 05.01.2013.
ASJ (SFTC)-01, West, THC, Delhi Arguments concluded on : 15.01.2013. Date of judgment : 15.01.2013. Date of order on sentence : 15.01.2013.
Appearances: Mr. Anil Kumar, Additional Public Prosecutor for the State.
Convict Mr. Sewa Ram on bail with counsel, Ms.Neelam Singh.
Ms.Sadhna Singh, counsel for Delhi Commission for Women.
*********************************************************** ORDER ON SENTENCE
25.In pursuance of judgment dated 15.01.2013 as passed by this Court convicting the accused namely Mr.Sewa Ram for offence under section 174 A of the Indian Penal Code (hereinafter referred to as the IPC) as Sessions Case Number :23 of 2013.
Unique Case ID Number : 02401R0162452011.
FIR Number 156 of 2010; Police Station Vikas Puri. Under sections 366/376/34 of the Indian Penal Code.
State versus Sewa Ram. -:: Page 9 of 12 ::-
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warrants were issued against him, which could not be executed as he either absconded or concealed himself and therefore a written proclamation was issued against him directing him to appear and because of his non compliance with the requirement of above proclamation, he has been declared as Proclaimed Offender under section 83 (4) of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) on 04.10.2004, he were arrested on 26.02.2011, I have heard the Additional Public Prosecutor for the State and the counsel for the convict as well as the convict on the point of quantum of sentence to be awarded to the convict and also perused the case record.
26.The Additional Public Prosecutor for the State has requested for the maximum sentence to be imposed upon the convict submitting that he does not deserve any leniency keeping in view the offence committed by him.
27. The convict and his counsel, on the other hand, have requested for a lenient view to be taken against him and for his release on probation as the convict hails from poor family. He has remained in judicial custody w.e.f . 26.02.2011 when he was arrested in the Kalandra under section 41 (1) (c) of Cr.P.C after being declared a Proclaimed Offender; on 11.03.2011 in the present matter and remained in custody up to 13.04.2011. He is aged about 52 years and is unable to work as he is suffering from several medical problems. He was working as a labourer prior to his arrest. He is a first offender and has never committed any offence earlier. He has also assured that he shall not commit any offence Sessions Case Number :23 of 2013.
Unique Case ID Number : 02401R0162452011.
FIR Number 156 of 2010; Police Station Vikas Puri. Under sections 366/376/34 of the Indian Penal Code.
State versus Sewa Ram. -:: Page 10 of 12 ::-
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in future and shall be a good citizen.
28.I am of the considered opinion that despite the nature of offence being very grave and that there are no mitigating factors except for the family circumstances of the convict, as such but still maximum sentence should not be awarded to the convict as an opportunity should be given to the convict to reform and repent for the offence he has committed.
29.Considering the aforesaid submissions from both the sides, the circumstances of the convict Mr.Sewa Ram, the fact that he has been acquitted of the offence under sections 363 and 366/34 of the IPC, he has voluntarily pleaded guilty to the offence under section 174 A of the IPC and perusing the case record, I am inclined to take a lenient view against the convict.
30.Therefore, I hereby sentence Mr.Sewa Ram, the convict to undergo simple imprisonment for a period already under gone by him in custody in the present matter w.e.f . 26.02.2011 when he was arrested in the Kalandra under section 41 (1) (c) of Cr.P.C. after being declared a Proclaimed Offender; on 11.03.2011 in the present matter and remained in custody up to 13.04.2011 and fine of Rs.5,000/- in default of payment of which, he shall undergo simple imprisonment for a period of three months. Fine paid today vide receipt number 000991401. The period of custody already under gone by him be set off against the sentence awarded to the convict, granting him the benefit of Section 428 of the Cr.P.C.
Sessions Case Number :23 of 2013.
Unique Case ID Number : 02401R0162452011.
FIR Number 156 of 2010; Police Station Vikas Puri. Under sections 366/376/34 of the Indian Penal Code.
State versus Sewa Ram. -:: Page 11 of 12 ::-
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31.The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
32.A copy of the judgment dated 15.01.2013 and a copy of the order dated 15.01.2013 on sentence, duly attested, besides the complete set of copy of the relevant case record, in compliance of the directions of the High Court, be given to the convict, namely, Mr.Sewa Ram, free of cost immediately.
33.Copies of the judgment dated 15.01.2013 and the order dated 15.01.2013 on sentence, also be given to Additional Public Prosecutor, as requested.
34. After completion of the formalities, the ahlmad is directed to consign the file to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 15th day of January, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
*********************************************************** Sessions Case Number :23 of 2013.
Unique Case ID Number : 02401R0162452011.
FIR Number 156 of 2010; Police Station Vikas Puri. Under sections 366/376/34 of the Indian Penal Code.
State versus Sewa Ram. -:: Page 12 of 12 ::-