Delhi District Court
Observations Made By The Apex Court In ... vs . Ramdev on 1 December, 2007
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IN THE COURT OF SH DINESH KR. SHARMA, ASJ, DELHI.
SESSION CASE NO. 22/07
FIR NO. 384/04
POLICE STATION MUKHERJEE NAGAR.
UNDER SECTION 452/324/376/506 OF IPC.
DATE OF ALLOCATION OF THE
CASE TO THIS COURT:- 12.05.2007.
DATE ON WHICH THE JUDGMENT
HAS BEEN RESERVED:- 20.11.2007.
DATE ON WHICH THE JUDGMENT
HAS BEEN DELIVERED:-27.11.2007.
STATE
VS
SANTOSH @ GUNDA @ NEPALI,
S/O BHAGAT BHADUR,
R/O ANSH VERMA BASTI,
PO PUNARWAS TOWN,
BOARD NO.6, PLOT NO. 144,
DISTRICT KACHAL PUR, MAHAKALI ACHAL,
NEPAL.
ALSO AT:-
7/9, INDER VIKAS COLONY,
MUKHERJEE NAGAR,
DELHI.
JUDGMENT :
1. Plea of the defence is that the facts as alleged by the prosecution are so improbable that it can not be believed. It has been contended that it is impossible that a young girl of 14 years age has been p.t.o.............................2 :: 2 ::
raped in the presence of her mother, brothers and sisters. Alternatively, a plea was taken that in any case if it has happened so it has to be with the consent of the prosecutrix.
2. Sometimes an animal instinct of a human being leads him to do certain acts, which if narrated to any prudent man shall seem to be improbable. The question is that if animal instinct has over shadowed human instinct, can an incident be disbelieved outrightly on the ground that it is highly improbable. What we normally think is the outcome of thinking of an ordinary human being. But there can be circumstances where a human being behaves in a total ruthless manner. In such situation, however the court has to be at guard and should appreciate the evidence with care and caution.
3. The allegation are that on 24.9.2004 at around 4 a.m., while the prosecutrix was sleeping along with her mother, brothers and sisters on the floor of her jhuggi, the accused, who was known to the complainant party made a forcible entry in jhuggi, and asked the prosecutrix to remove her clothes at the knife point. The mother of the prosecutrix objected to it on which she was assaulted with the knife. The accused allegedly committed rape upon the prosecutrix and threatened her to be killed. Prosecutrix and her mother raised the voice only after accused left the spot. The accused fled away after threatening her that he would not spare her if the prosecutrix choses to take any action against him.
4. Prosecutrix lodged a complaint Ex. PW-1/A on which p.t.o.............................3 :: 3 ::
endorsement Ex. PW-12/K was made at around 5.50 a.m. FIR was lodged under section 452/323/376/506 IPC at Police Station Mukherjee Nagar. The prosecutrix and her mother Champa Devi were medically examined. The accused was also arrested on the same day. The ossification test of the prosecutrix was conducted in which her age was opined as 16 - 17 years. During investigation the salwar, undergarment of the prosecutrix and the shawl were seized. The blood samples of the accused was also taken. The seized articles and the blood samples were sent to the CFSL. After investigation the charge sheet u/s 452/323/376/506 IPC was filed in the court. Accused was summoned. Copies was supplied. After committal of the case being a prima facie case charge u/s 450/452/323/376/506 IPC was framed at which accused pleaded not guilty and claimed trial.
5. Prosecution examined in total 13 witnesses.
6. Prosecutrix examined as PW-1 stated her age to be 15 years.
She supported the case of the prosecution and specifically stated that the accused committed rape upon her. The prosecutrix also proved her statement u/s 164 Cr.P.C. recorded, during the course of investigation. Prosecution examined the mother of the prosecutrix as PW-2, who has also supported the case of the prosecution and specifically stated that the accused has committed rape upon her daughter in her presence.
7. Dr. P K Jain, PW-3 proved the ossification report of the p.t.o.............................4 :: 4 ::
prosecutrix as Ex. PW-3/A. He stated that on examination bony age of prosecutrix has been found in between 16 to 17 years. In cross examination it was admitted that there can be a variation of two years.
8. HC Narender Singh PW-4 proved FIR as Ex. PW-4/A. PW-4 stated that he received the rukka at about 5.15 a.m. Ex. PW-4/B from SI Mukesh Devi on which FIR was lodged. Dr. Pradeep Maheshwari, Sr. Resident Hindu Rao Hospital (PW-5), had examined Champa Devi (PW-
2) at about 5.45 p.m, and had found a lacerated wound present over right leg and incised wound approx. 1 inch present over the right thigh. The detailed report has been proved as Ex. PW-5/A.
9. PW-5 has further stated that the injuries suffered by PW-2 were by sharp object. Dr. Pradeep Maheshwari had also medically examined the prosecutrix. He stated that he also found an incised wound of approx. 1 inch present on her left palm having been caused by sharp weapon.
10. Dr. M K Panigrahi CMO Hindu Rao Hospital (PW-6) examined the accused. He opined that there was nothing to suggest that accused was incapable of performing sexual intercourse. The report has been proved as Ex. PW-6/A. Dr. Puneet Jain, Hindu Rao Hospital (PW-7) deposed regarding nature of injuries suffered by PW-2 Champa Devi, and proved his report as Ex. PW-7/A.
11. Dr. Om Prakash Prasad (PW-8) deposed regarding nature of injuries suffered by accused. PW-8 stated that at the time of examination, he did not find any fresh external injuries on the body of the p.t.o.............................5 :: 5 ::
accused. The MLC has been proved as Ex. PW-8/A.
12. HC Sukh Pal Singh (PW-9) MHC (M), has stated that on 24.9.2004 IO deposited five sealed pullandas in the malkhana. The original register No. 19 was produced and the photocopy of the relevant entries have been proved as Ex. PW-9/A. PW-9 deposed that the sealed pullandas were taken to FSL, Rohini on 19.11.2004 and CFSL report was received back along with the case property on 18.2.2005.
13. Ct. Jai Pal Singh, (PW-10) took the rukka and copy of FIR to the IO present in the hospital. PW-10 stated that after medical examination of prosecutrix he along with the IO went to the spot where site plan was prepared and thereafter he remained with the IO during the investigation.
14. Dr. Rajni Mittal, MO, (PW-11) deposed that as per the report of Dr. Pratibha Singh the vitals of the prosecutrix were normal. On local examination her hymen was fresh torn but no active bleeding was seen. In the cross examination PW-11 has admitted that as per MLC there was no "perineal injury".
15. SI Mukesh Devi, IO appeared as PW-12 and testified the investigation conducted by her. Ms. Shashi Bala, Sr. Scientific Assistant FSL (PW-13) proved her detailed report as Ex. PW-12/H. PW-13 stated that after carrying out analysis she found that blood was present on salwar, shawl and dark brown liquid. PW-13 further stated that grouping of blood samples contained in parcel No. 4 could not be done as sample was putrefied.
p.t.o.............................6 :: 6 ::
16. In his statement u/s 313 Cr.P.C the accused admitted to have known the prosecutrix. It was stated that they are distant relative. However, it was stated that the prosecutrix and his family were on inimical terms before this incident. The accused denied to have gone to the jhuggi of prosecutrix and committed rape upon her. He stated that he has been implicated falsely. The accused stated that the daughter of his maternal uncle was married in the family of the prosecutrix and since the marriage did not succeed, certain dispute arose between the parties. Accused further stated that he himself had intervened for reconciliation which was not liked by the prosecutrix and her family and therefore they implicated him falsely in the present case. Accused further stated that the prosecutrix and her parents had demanded a sum of Rs.40,000/- from him for making the statement in his favour which he refused and therefore, they deposed falsely against him. The accused did not lead any defence evidence.
17. Learned APP has submitted that the prosecutrix PW-1 and her mother PW-2 have made a consistent and corroborative statement on oath. Both have deposed that accused committed rape upon the prosecutrix. It has been argued that the prosecutrix was minor at the time of the commission of the offence. The State has argued that the medical evidence has also supported the version of the prosecutrix. It has further been submitted that the defence placed by the accused is totally absurd and in view of the cogent, reliable and trustworthy of the p.t.o.............................7 :: 7 ::
statement of the prosecution witnesses, accused is liable to be convicted.
18. Per contra, Sh. Ajay Kumar Chadha, Amicus Curiae for the accused has argued that the story as placed by the prosecution is totally improbable and is liable to be rejected out rightly. Learned Amicus Curiae for the accused has pointed out that it is highly improbable that a rape is committed in the jhuggi in the presence of mother, brothers and sisters of the prosecutrix. Learned Amicus Curiae for the accused has pointed out the contradictions which have surfaced in the testimony of the prosecution witnesses. It has been submitted that if the version of the prosecutrix is taken into account, it is impossible that a rape can be committed in these circumstances. Learned Amicus Curiae for the accused took an alternative plea that at the worst the sexual intercourse in these circumstances can take place only with the consent of the girl. Learned Amicus Curiae for the accused has also pointed out that no injuries were found on the private parts of the prosecutrix. He has stated that accused has been falsely implicated and the prosecution story can not be believed being totally improbable.
19. Rape is a most heinous crime being committed upon a female. In my view, it is even more serious than the murder. The offence of rape is more serious even then offence of murder. In Murder, the offender destroys the physical frame of his victim, whereas rapist destroys and defiles the soul of a helpless female. The court cannot be a mute spectator in such cases and it has to understand that a rapist ravishes p.t.o.............................8 :: 8 ::
the victim beyond comprehension. Here I am tempted to reproduce the observations made by the Apex Court in State of Punjab Vs. Ramdev Singh , AIR 2004 Supreme Court, 1290 wherein it was interalia held as under :
"Rape is a crime against basic human rights, and is also violative of the victim most cherished of the Fundamental Rights, namely, the right to Life contained in Art.
21 of the Constitution of India.
The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized Judge is a better statutory armour in cases of crime against women then long clauses of penal provisions, containing complex exceptions and provisos".
20. The perusal of the above dicta makes it clear that the Apex Court expects the courts to be very sensitive while dealing with such cases. Thus, too technical approach in these case may not be desirable.
21. The rape is not only a dehumanising Act, it is an unlawful intrusion of the right of the privacy and sanctity of a female. Rape is a serious blow to the supreme honour of a female and offends her self esteem and dignity. The effect is multifarious, if the victim happens to be innocent or a minor child. An incident of rape indelibly leave a scar on the most cherished possession of a women i.e. her dignity, honour and p.t.o.............................9 :: 9 ::
reputation and not the least her chastity.
22. In Bodhisattwa Gautam Vs. Miss Subhra Charaborty, AIR 1996 Supreme Court , 922 the supreme Court observed that rape is not only a crime against the person of a women, it is a crime against the entire society.
23. It is a cardinal principle of criminal jurisprudence that prosecution is bound to prove its case against the accused beyond reasonable doubts. However, the theory of benefit of doubt cannot be unnecessarily stretched .
24. In State of Madhya Pradesh Vs. Dharkolel , AIR 2005 Supreme Court 44, The Apex court interalia held as under :
"A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Doubts would be called reasonable if they are free from a zest for abstract speculation, or free from an over emotional response.
Doubts must be actual and substantial doubts as to the guilt the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt' but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
25. An accused can be given benefit of doubt only if he has been p.t.o.............................10 :: 10 ::
able to raise an actual and substantial doubt in the story of the prosecution. Merely by denying the story of the prosecution, the accused cannot get the benefit of doubt. The doubt raised on irrelevant grounds should not deflect the court. The court cannot ignore the vital and crucial evidence in the name of the benefit of doubt.
26. As I have discussed above , every case has its own peculiar facts and the court has to keep in mind the alleged offence while appreciating the evidence on the record. There cannot be any fixed scientific formula for appreciation of the evidence or reaching to any conclusion. The degree of probability also differs from case to case.
27. In State of M.P. Vs. Dharkole (supra), it was interalia held as under :
"The concepts of probability, and the degrees of its, cannot obviously be expressed in terms of unit to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubts.
There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly p.t.o.............................11 :: 11 ::
stated by Venkatachaliah , J. (as his lordship then was) in State of U.P. Vs. Krishna Gopal and Anr. (AIR 1988 SC 2154)."
28. It has also been held in Visveswaran Vs State, AIR, 2003 Supreme court , 2471 that the court should have a different approach while appreciating the evidence in the rape case. In this case, it was interalia held as under :-
"The approach required to be adopted by Courts in rape cases has to be different. The cases are required to be dealt with utmost sensitivity , Courts not to get swayed by minor contradictions or discrepancies and defective investigation. The approach required to be adopted by Courts in rape cases has to be different. The responsibility is more when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the Courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only p.t.o.............................12 :: 12 ::
requirement is of extra caution by Court while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved."
29. PW-1 in her statement has specifically stated that she lives alongwith her parents and four elder sisters and one brother. On 24.09.2004, while all of them were sleeping on the floor of the house on a bed sheet on the floor, at about 4 AM, accused Santosh present in the court broke the door of her house and came inside the house. Accused asked her to remove the clothes on the knife point. PW-1 has further stated that when her mother objected to the same, the accused had stabbed her mother with a knife on her foot and thereafter he had committed rape upon her. After committing the rape, the accused left the spot threatening that he would not spare her. Perusal of the testimony of the prosecutrix indicates that she broke down twice, while she was making the statement in the court. It was also observed by my learned Predecessor that prosecutrix is totally illiterate. During the course of evidence, even once the accused had to be sent outside so as to remove the pressure from the mind of prosecutrix.
30. Prosecutrix has further stated that after the rape, her mother took her to the Police Station where her statement was recorded by the p.t.o.............................13 :: 13 ::
police and her thumb impression was obtained. Her statement is Ex. PW-1/A. The prosecutrix stated that she was taken to the hospital where she was medically examined and her salwar was seized by the doctor. The prosecutrix also pointed out the place of occurrence and her thumb impression was taken on some papers.
31. Prosecutrix proved her statement recorded under section 164 of Cr. P. C. as Ex. PW-1/4. She has identified her salwar as Ex. P-1 and the shawl as Ex. P-2 which was spread at the time of incident on the floor.
32. In the cross examination, prosecutrix admitted that she and her mother knew the accused as the accused had lived in the same gali. Prosecutrix also stated that accused had broken the door when he entered in her house and when the police reached at the spot, the door was lying in broken condition. She also stated the measurement of the jhuggi as 9 feet X 8 feet. The prosecutrix in her cross examination, has further stated that she knows the meaning of Balatkar. In the cross examination, prosuectrix has stated that bleeding had also taken place from her private parts profusely and semen had fallen down on salwar, herself and shawl.
33. She has further stated that her brothers and sisters had also tried to stop the accused but he had beaten them also. She has further stated that "Patak Patak Ke Maar Raha Tha". She has stated that all her brothers and sisters were crying when accused was committing rape p.t.o.............................14 :: 14 ::
upon her and therefore, accused gave them beating. It is worthwhile to note here that after saying this, the prosecutrix started crying and she was offered a glass of water and had to be calmed down.
34. Prosecutrix further stated that she had also shown to the doctor the bleeding which was taking place from her private parts and blood was oozing out even when doctor examined her. Her salwar had also blood stain and she had also shown the salwar to the doctor. The prosecutrix further stated that accused stabbed her mother with a knife at two places. Prosecutrix stated that no other person was slapped by the accused and he has left the spot after committing the rape upon her.
35. The prosecutrix admitted that she deposed in her statement under section 164 of Cr. P. C "WO MERE MUMMY KE SAATH GALAT KAM KE LIYE JABARDASTI KARNE LAGA. HUM SAB JAG GAYE. HUM SAB RONE LAGE. WO MERI MUMMY SE BOLA KI IN SAB KO CHUP KARVA, NAHI TO CHAKU MAROONGA". However, it is worthwhile to note here that any statement has to be read as a whole and not in piece meal. In her statement recorded under section 164 of Cr. P. C., the prosecutrix after making above said statement, specifically deposed that the accused committed rape upon her. The prosecutrix denied that no rape was committed on her person by the accused. She has further denied the suggestion that she has lodged the false report at the instance of her mother to save the sin of her mother. Prosecutrix has also denied the suggestion that her mother is a loose character lady and p.t.o.............................15 :: 15 ::
has illicit relations with the accused.
36. PW-2 mother of the prosecutrix also made a consistent and corroborative statement on oath. On 24.09.2004, her husband had gone for his duty and she alongwith her children was sleeping on the floor by spreading a shawl inside her house. At about 4 am, accused Santosh present in the court, entered in her jhuggi by breaking the door of her jhuggi. He had shown a knife to her daughter and made her to remove all her clothes and when he was going to commit rape upon her, she had objected to the same, on which accused stabbed her with a knife on her feet and on her thigh. PW-2 further stated that thereafter accused committed rape upon her daughter in her presence. While leaving their house, accused had threatened all of them that if they raise alarm then he would kill them. He had also threatened that if they lodge a complaint with the police or any of the neighbourers, they will be killed. She has further stated that when the accused ran away from the spot, she raised alarm and took her daughter to the Police Station where her statement Ex. PW-1/A was recorded and from there her daughter was taken to HR hospital, for medical examination. PW-2 also identified the shawl as Ex. P-2 and salwar of her daughter as Ex. P-1 before the court.
37. In the cross examination, PW-2 has stated that her other four small children aged about 12 years, 10 years, 8 years and 6 years woke up after hearing the noise in the jhuggi. It was further stated by the PW-2 that no one had come from the neighbourhood to rescue them on raising p.t.o.............................16 :: 16 ::
the noise. She has denied the suggestion that no rape was committed on her daughter. She has also denied the suggestion that on the day of the alleged incident, her daughter was mensurated and the blood stains found on her salwar, shirt and her private parts were of mensurated period. She has also denied the suggestion that she has illicit relations with the accused and on the night of incident, when she was found in compromising stage with the accused, her daughter i.e. prosecutrix awoke and saw her in that stage. PW-2 denied the suggestion that she has implicated the accused falsely after taking her daughter in her confidence and lodged the false FIR to save her skin from the clutches of her husband.
38. If we peruse the testimony of PW-1 and 2. Undoubtedly, there are certain contradictions like PW-2 stated that entire clothes of the prosecutrix were removed whereas PW-1 prosecutrix has stated that her salwar was removed upto the knees. PW-2 also stated that the prosecutrix resisted the rape and also tried to give scratch marks to the accused by her nails whereas this fact was not told by PW-1. There are some other contradiction also. However, while appreciating the evidence of witnesses, the court must keep in mind that it is impossible to find out the testimony of two witnesses, which is free from any contradiction. Every individual has his own way of narrating the incident. To expect that two witnesses shall make parrot like statement is totally unrealistic approach. Some contradictions are bound to occur. The contradictions p.t.o.............................17 :: 17 ::
which does not go to the root of the case, can not be taken into account and should be discarded.
39. The discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence.
40. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. If the evidence of a witness read as a whole indicates tinge of falsehood, it is the duty of the Court to scrutinies the evidence cautiously keeping in view the deficiencies, drawbacks and infirmities. However, minor discrepancies on trivial matters not touching the core of the case should be discarded. Hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. In this regard, reference can be made to State of U. P. V M. K. Antony, AIR 1985 SC 48.
41. Further in State of U. P. Vs Shankar, AIR 1981 SC 897, the Apex Court interalia observed that in this country it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is the p.t.o.............................18 :: 18 ::
function of the Court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of a witness is tainted to the core, the falsehood and the truth being inextricably intertwined, that the Court should discard his evidence in toto.
42. It has also been repeatedly held by the Apex Court that maxim "falso inuno-falso omnibus" cannot be made applicable strictly. In State of Rajasthan Vs Kalki, AIR 1981 SC 1390, it was inter-alia held as under "This Maxim as it has been consistently held, does not apply in India particularly in criminal trials. It means that any witness may make a statement which may be incorrect to some extent but that does not inevitably follow that other portion of the statement which is correct has to be disbelieved. To put it differently, the statements of the witnesses may be tainted with false hood and very often there is fringe or embroidery to a story. The falsehood should be considered in weighing the evidence. But when there is reason to believe that the main part of deposition is true, the same should not be rejected simply because of want of veracity on some minor point."
43. It has also been held in the catena of judgments that where the witnesses are not interested and where there is no motive for false implication there must be strong grounds to disbelieve them. The evidence of all the witnesses and the circumstances of the case are to be considered in totality.
44. It has also be kept in mind that minor contradictions are bound p.t.o.............................19 :: 19 ::
to appear when ignorant and illiterate women are giving evidence. Even in cases of trained and educated persons memory some times palys false and this would be much more so in case of ignorant and rustic women.
45. Prosecutrix in her testimony has made a consistent and corroborative statement on oath that accused forcibly entered into her house and committed rape upon her. The accused committed house trace pass with an intention to commit the offence at around 4 AM in the morning. The mother of the prosecutrix has also made the consistent and corroborative statement on oath. If we peruse the testimony of PW-1 and 2, the following undisputed conclusion follows:-
1. Accused made entry into the house of the prosecutrix in the night hours;
2. Prosecutrix was present in her house at that time; and
3. Immediately after the incident, the prosecutrix and her mother went to the Police Station where a complaint of rape, house tress pass, threatening and causing injury was lodged;
4. Prosecutrix was medical examined and she was opined to have been assaulted sexually. The mother of the prosecutrix also found to have suffered injuries with a sharp weapon on her foot.
46. As per record, the blood stained salwar and shawl, were seized which was having blood stains of the group of the prosecutrix. Besides this, if we take the defence placed by the accused, it is not the case of p.t.o.............................20 :: 20 ::
the acused that he did not enter in the house of the prosecutrix at all. The plea of the accused is that infact he was found with the mother of the prosecutrix in compromising position and therefore the mother of the prosecutrix in order to conceal her sin implicated the accused falsely. This plea of the accused seems to be totally unreliable, untrustworthy and absurd. It does not appeal to the reason that the mother will put the chastity of her daughter on stake in order to implicate the accused.
47. The fact that FIR was lodged without any lapse of time also indicates that there was no time for afterthought or embroidery. The fact that mother of the prosecutrix was found to have suffered injuries with a sharp weapon on her leg, in the medical examination conducted immediately after the incident also corroborates the version of the prosecutrix There was no other occasion for the mother of the prosecutrix to have suffered such injuries. This fact also belies the plea of the accused that infact he was found in a compromising position with the mother of the prosecutrix. If the accused was in compromising position with the mother of the prosecutrix, there was no reason for the mother of the prosecutrix to have suffered such injuries.
48. As I have discussed above, the contradictions which have surfaced in the testimony of the prosecution witnesses are minor and do not go into the root of the case.
49. Human nature is very complex. One never knows to which extent an individual may go when the animal instinct is prevailing.
p.t.o.............................21 :: 21 ::
50. The prosecutrix has stated her age to be 15 years in her deposition. In the cross examination, there is not even a single question regarding age of the prosecutrix. In absence of cross examination, there is no reason to disbelieve the case of the prosecution that the prosecutrix was below 16 years of age at the time of incident. The statement of PW-3 is only an expert opinion. The prosecutrix and her mother have also made consistent and corroborative statement that they were threatened by the accused. However, I consider that there is nothing on record on which could fulfill the ingredients of section 506 (2) of IPC.
51. Prosecution witnesses have made consistent and corroborative statements on oath. The statement made by the prosecution witnesses are cogent and trustworthy. The defence taken by the accused is totally contradictory. The plea taken by the accused in his statement recorded under section 313 of Cr. P. C. was never put to the witness during the cross examination. The defence taken by the accused is contradictory and totally unreliable.
52. In view of the above discussions, I consider that the prosecution has successfully proved its case against the accused beyond reasonable doubts. Hence, accused is convicted for the offences punishable under section 323/376/450/506(1) of IPC.
ANNOUNCED IN THE OPEN COURT ON 27.11.2007.
(DINESH KR. SHARMA) ADDL. SESSION JUDGE, DELHI.
p.t.o.............................22 :: 22 ::
27.11.2007.
Present :- None for the State.
Counsel for the accused.
Vide my judgment announced of even date on separate sheets, prosecution has successfully proved its case against the accused beyond reasonable doubts. Hence, accused is convicted for the offences punishable under section 323/376/450/506(1) of IPC.
Now to come up for order on sentence on 30.11.2007.
(DINESH KR. SHARMA) ADDL. SESSION JUDGE, DELHI.
p.t.o.............................23 :: 23 ::
IN THE COURT OF SH DINESH KR. SHARMA, ASJ, DELHI. SESSION CASE NO. 22/07 FIR NO. 384/04
POLICE STATION MUKHERJEE NAGAR.
UNDER SECTION 452/324/376/506 OF IPC. DATE OF ALLOCATION OF THE CASE TO THIS COURT:- 12.05.2007.
DATE ON WHICH THE JUDGMENT HAS BEEN RESERVED:- 20.11.2007.
DATE ON WHICH THE JUDGMENT HAS BEEN DELIVERED:-27.11.2007.
STATE VS SANTOSH @ GUNDA @ NEPALI, S/O BHAGAT BHADUR, R/O ANSH VERMA BASTI, PO PUNARWAS TOWN, BOARD NO.6, PLOT NO. 144, DISTRICT KACHAL PUR, MAHAKALI ACHAL, NEPAL.
ALSO AT:-
7/9, INDER VIKAS COLONY, MUKHERJEE NAGAR, DELHI.
30.11.2007.
ORDER ON SENTENCE:-
Present : Ms Alka Goel, APP for the state.
Accused produced from custody.
Accused has been convicted for the offence under section p.t.o.............................24 :: 24 ::
323/376/450/506(1) of IPC. Accused has prayed for a lenient view. He states that he is only 24-25 years of age. It has been submitted that he is sole bread earner of his family. He has two younger brothers and sisters and there is nobody else to look after his family. He has prayed for a lenient view on the ground that he is not a previous convict and he may be given an opportunity to reform himself.
On the other hand, Ms Alka Goel, learned APP for the state has submitted that since rape has been committed in the presence of mother, younger brothers and sisters and maximum punishment will be awarded to the accused. Learned APP has advocated that it is most heinous offence and therefore no leniency may be shown against the accused.
I have considered the submissions. Accused is a young boy and he is in custody since beginning. There is no record of previous conviction. However, the offence proved against the accused is very grave. The accused committed rape upon a minor girl in presence of her mother and young brothers and sisters. When the younger brothers and sisters as well as mother of the prosecutrix tried to prevent, the accused stabbed the mother with a knife.
Sexual offence is altogether a different kind of crime which normally is a result of a perverse mind. A rapist degrades and defiles the soul of a helpless female and the impact is much more when such an offence is committed in the presence of mother and other members of her family. The courts have been bestowed a duty to implement the application of law and the object of framing of law is to protect the society and deter the criminal. The courts can achieve this object only by awarding the appropriate sentence.
I consider that at the time of awarding the sentence, all the relevant facts and circumstances are required to be taken into consideration. The court also must keep its ear open to hear the loud p.t.o.............................25 :: 25 ::
cry for justice by the society. In case an undue leniency shows to the offender of heinous crime like rape, the society starts losing confidence in the system itself. If an offender is not properly punished, the society feels ignored.
Particularly, in the case of sexual assault, the courts are required to pass a severe sentence. The Superior courts have laid down time and again that leniency in matter involving sexual offence is undesirable. It is a matter of great concern, that incident of sexual offences are increasing in the society day by day and therefore in my view, the offender in such cases should be dealt with strictly.
I consider that the commission of rape in presence of family members is much more serious offence than simply committed rape. The fact of such an offence may be hundred times more upon the victim. The young age of the accused and his first offence, to my mind shall not outweigh the offence committed by him. The accused also committed house tress pass and committed the offence during the night hours.
I consider that taking into account, the offence committed by the accused, the age of the prosecutrix and the other certain circumstances, RI for 10 years for the offence under section 376 of IPC with a fine of Rs. 5,000/-. In case of default of deposit of fine, accused shall further undergo SI for one year shall meet the ends of justice.
The accused has also been convicted for the offence under section 323/450/506(1) of IPC. I consider that SI for 9 months for the offence under section 323 of IPC shall meet the ends of justice.
I consider, RI for 5 years for the offence under section 450 of IPC with a fine of Rs. 5,000/-. In case of default of deposit of fine, accused shall further undergo SI for one year shall meet the ends of justice.
I also consider, RI for 1 year for the offence under section p.t.o.............................26 :: 26 ::
506 (1) of IPC shall meet the ends of justice. All the sentences shall run concurrently. Benefit under section 428 of Cr.P.C. be given to the accused. Copy of the judgment and order on sentence be given to the accused.
It has been submitted by the accused that he was operated and an iron rod was implanted in his left leg and he has prayed that the some light work may be assigned to him during the imprisonment.
In view of the submissions made by the accused, Superintendent Jail is directed to assign the work as per rules. ANNOUNCED IN THE OPEN COURT ON 30.11.2007.
(DINESH KR. SHARMA) ADDL. SESSION JUDGE, DELHI.
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