Delhi District Court
(1) Mahabir vs State (1994 Jcc 413). on 20 November, 2010
1
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS (NORTH)
DELHI
SC NO.37/09
STATE
versus
HARPAL SINGH
S/O GULJARI LAL,
R/O VILLAGE SANKAT MOCHAN DHAAM,
SALAI, PS KASGANJ,
DISTRICT ETAH, UP.
FIR No. : 612/06
Offences Under Section : Ashok Vihar
Police Station : 365/366/376/506 IPC
DATE OF COMMITTAL: 22.11.06
JUDGMENT RESERVED ON: 09.11.10
DATE OF JUDGMENT: 20.11.10
JUDGMENT
1. The accused Harpal Singh has been chargesheeted and prosecuted for the offences punishable u/s 365/366/376/506 IPC on the basis of FIR No.612/06, PS Ashok Vihar.
2. It is the case of the prosecution that on 05.08.06 at about 04:00pm from park, Phase III, Ashok Vihar, accused Harpal Singh kidnapped Alka @ Alla minor daughter of Nand Ram, from the lawful guardianship of her SC No.37/09 Page 1 of 15 pages 2 parents with intention to secretly and wrongly confine her and further with intent to compel her to marry against her wishes and had taken the minor girl to village Salai, Etah, UP. It is further the case of the prosecution that after taking away prosecutrix Alka, accused committed rape upon her at his house situated in village Salai, Etah, UP and also threatened her to kill her and thereby committed offences punishable u/s 365/366/376/506 IPC.
3. The case was committed for trial to the court of Sessions by learned MM on 22.11.06.
4. Sh. VK Goel, the then ASJ charged the accused for the above mentioned offences on 18.01.2007 to which he pleaded not guilty and claimed trial.
5. Prosecution examined 17 witnesses in all to bring home the guilt of the accused.
6. PW1 Nand Ram, is the father of the prosecutrix. He has supported the case of the prosecutiion and narrated about the kidnapping of her daughter and also that her daughter was recovered from the house of the accused. He has also been cross examined.
7. PW2 Rakhi, is the complainant and sister of prosecutrix Alka and she has proved her statement Ex.PW1/E on the basis of which FIR was registered. She has not been cross examined on behalf of accused despite SC No.37/09 Page 2 of 15 pages 3 opportunity afforded.
8. PW3 is the prosecutrix Alka herself, she has also stated about the incident as to how she was taken away by accused and kept at his house and also proved her statement recorded u/s 164 CrPC vide Ex.PW3/A.
9. PW4 Ct. Sunil Kumar, got the case FIR registered on the basis of tehrir given by IO.
10. PW5 HC Abdul Barkat, joined the investigation of the present case on 21.08.06 alongwith SI Mohar Singh, Ct. Parveen and Nand Ram (father of the prosecutrix) and visited the house of the accused Harpal Singh at village Salai, Etah, UP. He proved recovery memo of the prosecutrix vide Ex.PW1/A and arrest memo of accused Ex.PW5/A and personal search memo of accused PW5/B.
11. PW6 Ct. Praveen Bhardwaj, has also joined the investigation of the present case alongwith PW5 HC Abdul Barkat.
12. PW7 lady Ct. Raj Rani, had taken the prosecutrix to hospital for medical examination on 22.08.06 and was handed over sealed pullanda by the doctor which was seized by the IO vide Ex.PW1/B.
13. PW8 Dr. Anjali Gupta, Senior Resident, Obs. and Gynae Department, BJRM Hospital, examined prosecutrix Alka on 22.08.06 and proved her report vide Ex.PW8/A.
14. PW9 Suman Sharma, Vice Principal, Govt. S.K. Vidhayalaya, SC No.37/09 Page 3 of 15 pages 4 Bharat Nagar, Delhi proved the school leaving certificate of prosecutrix vide Ex.PW1/D and also stated about the date of birth of the prosecutrix recorded as 17.03.1994.
15. PW10 ASI GT Bhagat, recorded the FIR of this case vide Ex.PW10/A being the duty officer, at PS Ashok Vihar.
16. PW11 Anita Chhari, Sr. Scientific Assistant, FSL, Rohini examined exhibits/sealed parcels and proved her report vide Ex.PW11/A.
17. PW12 Ct. Surender Singh, got the accused medically examined at BJRM Hospital and sealed pullandas given by the doctor were given to the IO by him.
18. PW13 Dr. Sanjeev Kumar, Casuality Medical Officer, BJRM Hospital, has proved MLC Ex.PW8/A of prosecutrix Alka prepared on 22.08.06 by Dr. Harish Chandra, Jr. Resident and also proved the report of Dr. Sachin prepared with respect to medical examination of Harpal Singh vide Ex.PW13/A by identifying the signatures of both the doctors.
19. PW14 Ct. Sanjesh Kumar, posted at PS Kasganj, Distt. Etah, UP and joined the investigation of the present case and visited the house of the accused from where Alka was recovered vide Ex.PW1/A and accused was arrested vide memo Ex.PW5/A and personal search of accused was effected vide memo Ex.PW5/B. He has been cross examined.
20. PW15 Sh. Pratap S. Malik, Presiding Officer, Labour Court, SC No.37/09 Page 4 of 15 pages 5 recorded the statement of prosecutrix u/s 164 CrPC on 20.09.06 and proved the relevant proceedings Ex.PW3/A and Ex.PW15/A, Ex.PW15/B and Ex.PW15/C.
21. PW16 Ct. Shaban Miyan, was posted as constable at PS Kasganj, UP and joined the investigation of the present case alongwith IO. He has witnessed the recovery of the prosecutrix and arrest of the accused.
22. PW17 SI Mohar Singh, is the investigating officer and he has given all the details about the investigation conducted by him in this case. He has proved rukka Ex.PW17/A, seizure memo of sealed articles after medical examination of accused Ex.PW17/B and seizure memo of sealed articles after medical examination of prosecutrix Ex.PW14/C . He has also been cross examined at length.
23. Thereafter, prosecution evidence was closed.
24. Statement of accused Harpal Singh was recorded under Section 313 CrPC wherein all the incriminating evidence appearing on the record has been put and explained to the accused to which he pleaded innocence and stated that he has been falsely implicated. According to the accused, Alka was in love with him and was major in age and voluntarily got married to him. But due to caste conflict, he has been falsely implicated.
25. DW1 Sh. Chobh Singh, appeared in the defence of the accused. He SC No.37/09 Page 5 of 15 pages 6 stated that accused is his nephew and accused performed court marriage with prosecutrix Alka vide Ex.PW3/DA and at that time Alka was aged 23 years. He has also been cross examined on behalf of ld. APP.
26. Thereafter, defence evidence was closed on behalf of accused.
27. I have heard Sh. Ramesh Kumar, learned Additional Public Prosecutor for the State and Ms. Sadhna Bhatia, amicus curiae on behalf of accused and given due consideration to the facts and circumstances of the case, evidence, documents and the record.
28. It is argued by ld. APP that case of the prosecution stands proved beyond reasonable doubt by the testimony of prosecution witnesses and it is clearly established that prosecutrix Alka was kidnapped by the accused and was forced to marry the accused at Etah, UP and further she was raped by the accused. The investigation in this case has been done properly and stands established by the testimony of police officials and documentary evidence. The prosecutrix was recovered from the house of the accused after about 15 days of the incident and it is sufficiently proved by the prosecution. The conviction of the accused be recorded forthwith.
29. It is argued on behalf of ld. amicus curiae that accused has been falsely implicated in the present case. In fact, it is a case of run away marriage and prosecutrix with her full consent accompanied the accused SC No.37/09 Page 6 of 15 pages 7 to his native village where she consented to marry the accused. Ld. amicus curiae relied upon: (1) MAHABIR vs STATE (1994 JCC 413).
(2) KULDIP SINGH vs STATE (1994 JCC 414).
(3) MALKHAN SINGH AND OTHERS vs STATE OF U.P. (4) SATISH KUMAR vs STATE (1988 CRI. L. J. 565). (5) SUDHIR MANDAL vs STATE (1988 CRI. L. J. 569). (6) NARENDER SINGH vs STATE OF MADHYA PRADESH (1996 CRI. L. J.
198).
30. It is stressed on behalf of amicus curiae that case of the prosecution has not been proved and therefore accused be acquitted of all the charges.
31. On proper and careful examination of the prosecution case and the testimony of witnesses, I find that case of the prosecution stands established beyond reasonable doubt against the accused Harpal. The prosecution version is that on 05.08.06, prosecutrix Alka was sitting with her sister Rakhi in a park, Ashok Vihar, Delhi. Accused came there and gave Rs.10/ to Rakhi and asked her to purchase guavas. At this Rakhi left the place. Accused then asked Alka to accompany him for walk and thereafter forcibly took Alka in a vehicle/van to his village Salai, Etah. UP.
Prosecutrix Alka was kept there for about 16 days and accused
SC No.37/09 Page 7 of 15 pages
8
committed rape on her during those days and threatened her to kill her parents if she raised alarm. The report to this effect was lodged on 05.08.06 and statement of Rakhi was recorded on the basis of which FIR was registered. Thereafter, the school leaving certificate of prosecutrix was obtained to ascertain her date of birth/age and thereafter on 21.08.06 prosecutrix Alka was recovered from the house of accused at village Salai, police station Kasganj, District Etah, UP, accused was also arrested. After this, the medical examination of accused as well as of the prosecutrix were got conducted. The prosecutrix was produced before ld. metropolitan magistrate for recording her statement u/s 164 CrPC.
32. All the above mentioned facts have been duly proved with the statements of complainant Rakhi (PW2), prosecutirx Alka (PW3) and father of the prosecutrix Nand Ram (PW1) . Statement recorded u/s 164 CrPC has been proved by the testimony of prosecutrix Alka and PW15 Sh. Pratap S. Malik wherein Alka had narrated about the incident to the magistrate. The prosecution witnesses have remained consistent on their version and they have intense, confirmed and corroborated the testimony of each other. The version put forth by above mentioned material prosecution witnesses inspire confidence and no inconsistencies or contradictions have emerged therefrom. On 21.08.06, SC No.37/09 Page 8 of 15 pages 9 prosecutrix Alka was recovered from the house of accused and police officials of PS Kasganj also joined during the same. It is proved with the testimony of PW14 Ct. Sanjesh Kumar and PW16 Ct. Shaban Miyan that recovery of prosecutrix was so effected from the jurisdiction of their police station and accused was arrested. Immediately, after the recovery, statement of prosecutrix was recorded u/s 161 CrPC by the investigating officer and also on 20.09.06 the statement u/s 164 CrPC Ex.PW3/A was recorded. Prosecutrix has categorically named the accused being responsible for taking her away without her consent, confining her at village Salai, Etah. UP in the house of accused and was forced to marry and was also raped. Prosecutrix while examining herself as PW3 has confidently stated these facts in her testimony and despite cross examination on behalf of accused she has remained categorical and concrete. Prosecutrix Alka was cross examined twice on behalf of accused on different occasions i.e. first on 23.05.07 and thereafter on 04.04.09 but prosecutrix has remained firm on her version that accused is responsible for kidnapping, threatening & raping her. It is also sufficiently proved with the testimony of PW2 Rakhi and PW1 Nand Ram that prosecutrix Alka was forcibly taken away by the accused on 05.08.06.
33. On the other hand, it has been pleaded by accused that Alka was in SC No.37/09 Page 9 of 15 pages 10 love with him and consented to marry her voluntarily and went away with him for this purpose. It has also been pleaded by accused that Alka was major at that time. During cross examination of PW1 Nand Ram and prosecutrix Alka, various questions were on this aspect but both these witnesses remained categorical about the age of the prosecutrix as well as in denying the suggestion that accused and prosecutrix were in love with each other. Interestingly, PW2 complainant Rakhi has not been cross examined on behalf of accused despite opportunity afforded.
34. The age of the prosecutrix is further proved by her school record duly proved with the testimony of PW9 Suman Sharma, Vice Principal, Govt. S.K. Vidhayalaya, Bharat Nagar, Delhi. It is clear from the statement of PW9, that prosecutrix was studying in school since 19.04.05 and her date of birth was recorded as 17.03.94. I find no ground to dispute the testimony of PW9 as well as documents produced by her. It is clearly established that Alka was between 12 to 13 years of age as on the date of incident. PW1 has also supported this fact and he being the father, is the most relevant witness to prove the age of the prosecutrix who is fifth child to him. The age of the prosecutrix so recorded in the school records existed much prior to the incident and there is no scope of alteration or manipulation of the same. In view of the age of the prosecutrix so established, it is clear that accused has committed the SC No.37/09 Page 10 of 15 pages 11 offence of kidnapping minor Alka from lawful guardianship of her parents. In such circumstances the consent of prosecutrix even if assumed to be true, does not constitute any good defence for the accused and would not absolve him from the consequences of committing the offence. The accused has also produced marriage deed Ex.PW3/DA to which prosecutrix has recorded her complete denial and stated that she was under threat to execute the marriage deed. She denied the suggestion that she consented for the same and that she was 23 years of age at that time. She has categorically stated that she was under threat and was forced to put her signatures on it. It is therefore clear that accused compelled the prosecutrix to marry him by threatening her and thereby committed offences punishable u/s 366/506 IPC.
35. So far as the offence of rape punishable u/s 376 IPC is concerned, the prosecutrix has clearly stated in her testimony and also in her statement recorded u/s 164 CrPC that accused had raped her at his house. On the other hand, accused by giving suggestion to the prosecutrix that she consented for the physical relations admitted that there was sexual intercourse between the accused and the prosecutrix. It is maintained and clearly testified by prosecutrix that she did not consent for the sexual relations and categorically stated that she was raped by the accused against her consent. Otherwise also, accused SC No.37/09 Page 11 of 15 pages 12 cannot have any such defence in law. According to the definition of rape as given u/s 375 IPC, the consent of a woman under 16 years of age is not material.
Section 375 IPC "A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: ......Sixthly: "With or without her consent, when she is under sixteen years of age".
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
36. In the present case, the prosecutrix Alka was 12 years of age and therefore her consent is immaterial so far as the offence of rape is concerned.
37. The case has also been properly investigated and documentary evidence prepared during the same has also been proved on record. I find no ground on the part of the police officers to falsely implicate the accused. So far as evidence of defence witnesses DW1 is concerned, it cannot absolve the accused from the consequences of commission of offences. DW1 has stated that court marriage was performed with the voluntary consent of prosecutrix and she was about 23 years of age at SC No.37/09 Page 12 of 15 pages 13 that time. DW1 has no basis to depose that the age of the prosecutrix as 23 years. The testimony of DW1 cannot help the accused in any manner what so ever.
38. In the present case, the age of the prosecutrix is material to ascertain the guilt of the accused and since it has been sufficiently established that prosecutrix was 12 years of age at the time of incident, the case against the accused is proved for the offences punishable u/s 365/366/376/506 IPC.
39. In view of above observations, I hold that prosecution has proved the guilt of the accused beyond reasonable doubt. I therefore, convict accused Harpal Singh for the offences punishable u/s 365/366/376/506 IPC.
ANNOUNCED IN THE OPEN COURT ON 20th NOVEMBER 2010 (ANJU BAJAJ CHANDNA) ADDL. SESSIONS JUDGE DELHI SC No.37/09 Page 13 of 15 pages 14 IN THE COURT OF MS. ANJU BAJAJ CHANDNA ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS (NORTH) DELHI SC NO.37/09 STATE versus HARPAL SINGH S/O GULJARI LAL, R/O VILLAGE SANKAT MOCHAN DHAAM, SALAI, PS KASGANJ, DISTRICT ETAH, UP FIR No. : 612/06 Offences Under Section : Ashok Vihar Police Station : 365/366/376/506 IPC ORDER ON THE POINT OF SENTENCE 29.11.10 Present: Sh. Ramesh Kumar, learned Addl. PP for State.
Convict produced from JC with amicus curiae Ms. Sadhna Bhatia.
Arguments heard on the point of sentence and perused the file. It is submitted that convict is not a previous convict and has no previous involvement; he is the first offender; he is of young age as stated to be of 28 years; he is having aged parents and younger brother and sisters to look after. It is prayed that lenient view may be taken.
On the other hand, learned Addl. Public Prosecutor has submitted that accused has intentionally committed the offences and ruined the life of the victim and he deserves no leniency.
SC No.37/09 Page 14 of 15 pages 15 On consideration of facts and circumstances of the case, the antecedents and other circumstances of the convict, I sentence him to rigorous imprisonment for three years and fine of Rs.2,000/ for the offence punishable u/s 365 IPC and in default of payment of fine to undergo SI for one month.
Convict is further sentenced to rigorous imprisonment for five years and fine of Rs.4,000/ for the offence punishable u/s 366 IPC and in default of payment of fine to undergo SI for three months.
For the offence u/s 376 IPC, I sentence convict Harpal to rigorous imprisonment for a term of seven years and fine of Rs.7,000/ and in default of payment of fine to undergo SI for four months.
Convict Harpal is further sentenced to rigorous imprisonment for one year and fine of Rs.2,000/ for the offence punishable u/s 506 IPC and in default of payment of fine to undergo SI for two months.
All the sentences to run concurrently and benefit of Section 428 CrPC be given to the convict.
Copy of judgment and copy of order on the point of sentence be given to the convict, free of cost.
File be consigned to record room.
ANNOUNCED IN THE OPEN COURT
ON 29th NOVEMBER 2010 (ANJU BAJAJ CHANDNA)
ADDL. SESSIONS JUDGE/
SPECIAL JUDGE NDPS (N),DELHI
SC No.37/09 Page 15 of 15 pages