Delhi District Court
State vs Brijesh Kumar on 27 January, 2010
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IN THE COURT OF DR. SUDHIR KUMAR JAIN: ASJ-01 (OUTER), ROHINI : DELHI
FIR No: 1059/2006
PS: Nangloi
Under Section: 363/368/376/506IPC
Sessions Case No: 95/2009
Date of Institution: 22.2.2007
Date of Decision : 27.1.2010
State
Versus
1. Brijesh Kumar,
S/o Rajbir Singh,
R/o R-153, Rajdhani Park,
Nangloi, Delhi.
2. Sanjay,
S/o Nathu Ram,
R/o Vill. Larpur More Badli,
Distt.Jhajhar, Haryana.
3. Daulat Ram,
S/o Chunni Lal,
R/o R-153, Rajdhani Park,
Nangloi, Delhi.
4. Subhash,
S/o Daulat Ram,
R/o R-153, Rajdhani Park,
Nangloi, Delhi.
5. Anita,
W/o Gopal Chand,
R/o R-135, Rajdhani Park,
Nangloi, Delhi. ... Accused
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(Accused No.2 to 5 were discharged vide order dated 19.05.2007)
JUDGMENT
Meera Devi was got married to Ram Vilas and out of said wedlock three daughters including 'A' were born. Ram Vilas had expired. Meera Devi re-married with Jagdish. Meera Devi along with her family was residing at F-155, Rajdhani Park, Nangloi, Delhi. 'A' on 20.9.2006 had gone to the doctor to take medicine. 'A' at about 9/9.30 am reached near Lokesh Cinema where Brijesh was also present. Brijesh told 'A' that Daulat Ram, who was running a factory near the house of 'A', was calling her. Brijesh was also residing in the same locality where the 'A' was residing and was working in the factory of Daulat Ram. Brijesh had taken the 'A' at some distance ahead of Lokesh Cinema where Daulatram, Subhash s/o Daulatram and Anita relative of Daulatram met them. They have already hired a TSR. Brijesh asked the 'A' to sit in TSR and threatened her with dire consequences in case the 'A' refused to sit in TSR. Brijesh had taken the 'A' in the said TSR to New Delh Railway Station and from there the Brijesh had taken the 'A' to Aligarh. Brijesh took the 'A' in a forest and kept in a jhuggi 3 where he committed sexual intercourse with her. Brijesh took the 'A' to the house of his sister and Aunts (Bua and Mausi) and also committed sexual intercourse with 'A'.
2. Meera Devi on 20.9.2006 had searched for the prosecutrix 'A' but she could not be traced. Meera Devi went to the PS Nangloi on 22.2.2006 and lodged the missing report which was registered vide DD no.12A. DD no.12A was handed over to SI Raghubir Singh for investigation who flashed a message about the missing of 'A'. Meera Devi, on 6.10.06, went to Police Station and lodged a report against Brijesh. The FIR bearing no.1059/06 u/s 363 IPC was got registered. 'A' on 15.11.2006 was brought to the Police Station by Sanjay. The proceedings were handed over to ASI Darshana. ASI Darshana interrogated 'A' (hereinafter referred to as "Prosecutrix") and recorded statement u/s 161 Cr.P.C. The recovery memo was also prepared. Prosecutrix was sent to Sanjay Gandhi Memorial Hospital for medical examination. PW-11 W/SI Savita on 16.11.2006 was entrusted with the investigation of the case. The statement of prosecutrix was recorded u/s 164 Cr.P.C. Brijesh ( hereinafter referred to as "accused") was arrested at the instance of prosecutrix. W/SI Savita after completion of 4 investigation, filed the charge sheet u/s 363/368/376/506/34 IPC against the accused, Sanjay, Daulatram, Subhash and Anita in the court of concerned Metropolitan Magistrate.
3. All the named accused were supplied with the copies of charge sheet along with annexed documents in compliance with Section 207 Cr.P.C. The concerned Metropolitan Magistrate vide order dated 8.2.2007 committed the case to the court of Sessions and thereafter assigned to this court for trial in accordance with law.
4. Vide order dated 19.5.2007, charge for the offence punishable u/s 363/366/376 IPC was framed against the accused to which he pleaded not guilty and claimed trial. The named co-accused Sanjay, Daulatram, Anita and Subhas were discharged for the offences u/s 363/368/376/506/34 IPC vide order dated 19.5.2007.
5. The prosecution examined prosecutrix as PW-1; Meera Devi as PW-2; SI Raghubir Singh as PW-3; Dr. Binay Kumar as PW-4; Dr. Garima Trivedi as PW-5; Dharamvir Singh as PW-6; ASI Rajbala as PW- 7; Shashi Bunkar, Principal, Govt. Girls Sr. Sec. School as PW-8; Ct. Shri Pal Singh as PW-9; HC Balwan Singh as PW-10; W SI Savita as PW-11; Shri Amit Bansal, then MM, Rohini as PW-12; Ct. Pradeep 5 Kumar as PW-13; Satish as PW-14; Jai Singh as PW-15; and ASI Darshana as PW-16.
PW-1 is the prosecutrix. PW-2 Meera Devi is the complainant and mother of prosecutrix. PW-3 SI Raghubir Singh handed over DD no.12A on 22.9.2006 for investigation. PW-4 Dr. Vinay Kumar medically examined the accused. PW-5 Dr. Garima Trivedi medically examined prosecutrix. PW-6 Dharamvir Singh had seen the accused Brijesh along with a girl in the house of Satish situated in District Aligarh. PW-7 ASI Rajbala being functioning as Duty Officer on 22.9.2006 recorded DD no.12A and also recorded FIR no.1059/06 u/s 363 IPC on the basis of information given by PW-2 Meera Devi. PW-8 Shashi Bunkar produced admission record pertaining to prosecutrix. PW-9 Ct. Shri Pal Singh deposited the sealed pulundas at CFSL, Kolkotta. PW-10 HC Balwan Singh being MHC(M) was entrusted with the case property. PW-11 WSI Savita was entrusted with the investigation on 16.11.2006 and arrested the accused, and got recorded statement of prosecutrix u/s 164 Cr.P.C. PW-12 Shri Amit Bansal, being the concerned Metropolitan Magistrate recorded the statement of prosecutrix u/s 164 Cr.P.C. PW-13 Ct. Pradeep Kumar participated in the investigation at the time of arrest of 6 accused. PW-14 Satish was a resident of Aligarh and in his house accused along with Sanjay and prosecutrix came 5-6 days prior to 19.10.2006. PW-15 Jai Singh brought Sanjay and prosecutrix to the PS Nangloi. PW16 ASI Darshana on 15.11.2006 conducted part investigation and arrested the Sanjay.
6. The prosecution proved the statement of prosecutrix u/s 164 Cr.P.C. as ExPW 1/A; recovery memo of prosecutrix as ExPW 2/A; copy of DD no.12A as ExPW 3/A; message flashed about the missing of prosecutrix as ExPW3/B; carbon copy of Missing Person Form as ExPW3/C; MLC of accused as ExPW4/A; MLC of prosecutrix as ExPW5/A; copy of FIR as ExPW7/A; school admission record of prosecutrix as ExPW 8/A to ExPW8/C; relevant entries made in Register no.19 by MHC(M) and Road Certificate as ExPW 10/A to ExPW10/C; application filed by the PW-11 W SI Savita for recording the statement of prosecutrix as ExPW11/A; application for supplying the copy of statement u/s 164 Cr.P.C. as ExPW11/B; arrest memo and personal search memo of accused as ExPW 11/C and ExPW11/D; disclosure statement as ExPW11/E; pointing out memo prepared at the instance of accused as ExPW11/F; seizure memo of exhibits of the 7 accused as ExPW11/G; CFSL report as ExPW11/H; endorsement on statement u/s 164 Cr.P.C. by PW-12 Shri Amit Bansal, then Metropolitan Magistrate as ExPW 12/A; seizure memo of exhibits of prosecutrix as ExPW 16/A. The prosecution evidence was closed vide order dated 18.9.2008.
7. The statement of accused u/s 313 Cr.P.C. recorded wherein the accused pleaded innocence and denied the incriminating evidence. The accused stated that due to the enmity between his uncle Daulatram and complainant Meera Devi, he had been implicated in the case. The accused preferred to lead defence evidence. The counsel for the accused on 15.10.2008 stated that he does not want to lead defence evidence. The defence evidence was closed vide order dated 15.10.2008.
8. Shri Atul Kumar Gupta, CPP for the State and Shri T.S. Mohar, Advocate for accused heard. Record perused.
9. In the adversarial system, every person accused of an offence is always presumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt that all the ingredients of the offence with which the accused is charged are made out. The 8 accused enjoys the right to silence and cannot be compelled to reply. In a criminal trial the charge against the accused must be proved beyond all reasonable doubts and the requirement of proof does not lie in the realms of surmises and conjectures.
10. Section 361 IPC deals with keeping from lawful guardianship. It reads as under :
361. Kidnapping from lawful guardianship.
Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation --
Exception --
The gist of offence of kidnapping is taking or enticing away of a minor within the specified age limits or of a person of unsound mind out of the keeping of a lawful guardian. The essential ingredients of the offence under S.361 IPC are as follows :
i) The accused took or enticed away a minor or a person of unsound mind;
ii) Such minor, if male, must be under 16 years of age and, if female, under 18 years of age;9
iii)The act must be one of taking or enticing out of the keeping of the lawful guardian of such minor or person of unsound mind;
iv)The act of taking or enticing away must be done without consent of the lawful guardian.
11. Section 366 IPC deals with kidnapping, abducting or inducing woman to compel her marriage, etc. It reads as under :--
366. Kidnapping, abducting or inducing woman to compel her marriage etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely she will be compelled, to marry any person against her will, 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 shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine.
To bring home the guilt of the accused under S.366 IPC, it is necessary for the prosecution to prove that the accused induced the prosecutrix or compelled her by force to go from any place; that such inducement was by deceitful means; that such kidnapping or abduction took place with the intent that the prosecutrix may be seduced to illicit intercourse and/or that the accused knew it to be likely that the prosecutrix may be seduced to illicit intercourse as a result of her 10 abduction or kidnapping. The essential ingredients of the offence under S.366 IPC are as follows:
i) The accused kidnapped or abducted a woman;
ii) The accused intended or knew it likely that--
(a)the woman abducted or kidnapped would be compelled to marry any person against her own will, or
(b)she would be forced or seduced to illicit intercourse.
12. The offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for "Sexual offences", which encompass Sections 375, 376, 376-A, 376-B, 376-C and 376-D, IPC. "Rape" is defined in Section 375, IPC Section 375 and 376 IPC have been substantially changed by Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act, i.e 376A, 376-B, 376-C and 376-D. The fast sweeping changes introduced reflect the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is 'the ravishment of a women, without her consent, by force, fear and fraud', or as 'the carnal knowledge of a woman by force against her will'.
13. Section 375 IPC provides that a man is said to commit rape 11 who has sexual intercourse with a woman under circumstances as described in section itself. Section 375 IPC reads as under :--
375.Rape -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 :--
First -Against her will.
Secondly --Without her consent.
Thirdly -With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly -With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly -With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
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 12 own wife, the wife not being under fifteen years of age, is not rape.
Section 376 IPC prescribed punishment for rape.
14. The prosecution to prove its case examined prosecutrix as PW1. PW-1 supported the case of the prosecution. PW-1 deposed that on 22.9.2006, she had gone to the shop of doctor to purchase the medicines and at about 9.30 am, she reached near Lokesh Cinema where the accused met her and told her that Daulatram is calling her. Prosecutrix went along with accused to a place where Daulatram, Subhash s/o Daulatram and Anita a relative of Daulatram met her. The accused by force made the prosecutrix to sit in a TSR and thereafter taken her to the New Delhi Railway Station. PW-1 prosecutrix further deposed that from New Delhi Railway Station she was taken to Aligarh by the accused where she had been kept at various places. The prosecutrix deposed that the accused had committed sexual intercourse with her against her wishes and consent.
15. The CPP argued that the from the evidence led by the prosecution it is proved that on the date of incident, prosecutrix was less than 16 years of age and referred the testimony of PW-8 Ms. Shashi 13 Bunkar, Principal, Govt. Girls Sr. Sec. School, JJ Colony, Nangloi where the PW-1 prosecutrix had studied. The defence counsel argued that the prosecution, from the evidence led by it, had failed to prove that on the date of incident prosecutrix was minor in terms of Section 363 IPC and was less than 16 years in terms of Section 376 IPC.
16. The prosecution to prove that PW-1 prosecutrix was minor i.e below the age of 18 years for the purpose of Section 363 IPC relied on the testimony of prosecutrix. The prosecutrix deposed that she had studied up to Class-VI and her date of birth is 10.10.92. The prosecution to support the testimony of PW-1 also examined Ms. Shashi Bunkar, Principal, Govt. Girls Sr. Sec. School, JJ Colony Nangloi as PW-
8. PW-8 Shashi Bunkar deposed that she had been working in the said school since 2005 as Principal and also produced admission record in respect of prosecutrix. PW-8 Shashi Bunkar deposed that as per the Admission and Withdrawal register, PW-1 prosecutrix was admitted in the school on 8.4.2004 and her name appears at serial no.10142. PW- 8 Shashi Bunkar further deposed that the name of the prosecutrix was struck off on 30.10.2006 due to the non payment of fees without prior permission. PW-8 Shashi Bunkar has proved the entry bearing 14 no.10142 as ExPW8/A. PW-8 Shashi Bunkar further deposed that PW-1 prosecutrix was admitted in the school on the basis of School Leaving Certificate issued by the MCD Primary School, JJ Colony, Nangloi, E Block and as per said certificate, the date of birth of the PW-1 prosecutrix is 10.10.92. PW-8 Shashi Bunkar also produced the original Form ExPW8/C filled by the father of the prosecutrix at the time of admission in the school. The School Leaving Certificate ExPW8/B is perused. As per ExPW8/B, the date of birth of the PW-1 prosecutrix was 10.10.92. The perusal of ExPW8/C reflects that the father of prosecutrix also mentioned the date of birth of the PW-1 prosecutrix as 10.10.92. The document ExPW8/C was filled up by the father of PW-1 prosecutrix on 8.4.2004. As per the entry made in Admission and Withdrawal register of the school, ExPW8/A, the date of birth of PW-1 prosecutrix is 10.10.92. PW-1 prosecutrix was not cross examined by the accused about the correctness of the date of birth. PW-8 Shashi Bunkar was cross examined by the defence counsel but there is nothing in the cross examination of PW-8 which can falsify the testimony of PW-8. The relevant record proved by the prosecution establishes that the date of birth of PW-1 prosecutrix is 10.10.92.
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17. The defence counsel argued that the ossification/Bone X-Ray test of the PW-1 prosecutrix was not conducted and the School Leaving Certificate ExPW8/B is not a reliable document; there may be possibility that at the time of admission of PW1 prosecutrix, the date of birth of prosecutrix may be under mentioned. The defence counsel has referred Kale Singh V State of Punjab, 1996 (3) RCR 343 where it is held that entry in school record has very little evidentiary value as at the time of admission guardian understates the age of his ward either for purpose of admission or to take some advantage in public services. It was further held that it would be improper to base conclusion on the basis of entry in school register without any corroborative evidence.
18. In the instant case, the only evidence which has been produced by the prosecution to prove the date of birth of PW-1 prosecutrix as 10.10.92 is the school record produced by PW-8 besides the testimony of PW-1 prosecutrix. The ossification test/Bone X-Ray test of the PW-1 prosecutrix was not conducted. There is no medical evidence to prove the exact age of the prosecutrix. The issue needs consideration is that how much weightage can be given to School Leaving Certificate ExPW 8/B issued by the MCD Primary School, Nangloi wherein the date of birth 16 of PW-1 is mentioned as 10.10.92. It was observed by the Supreme Court of India in case Bhoop Ram V State of Uttar Pradesh, 1989 SCC (Cri) 486 that the school certificate cannot be rejected only on the surmises that it is not unusual for the parents to understate age of their children. It was further observed that rather medical certificate is based on estimate and slip of error in it cannot be ruled out. It was observed in case of Gurmit Singh V State, 2000 (3) CC Cases HC 36 that the date of birth given in the school leaving certificate be taken as authentic unless the evidence contrary is produced. It was observed in case of Manjeet V State, 2006 VII AD (Delhi) 224 by the High Court of Delhi that there is no reason why the school leaving certificate should not be given due weightage. It was further observed that entry on the birth and death register maintained by the Corporation or the Chowkidar of the village would have added to the authenticity of the school leaving certificate but in the absence of the same, school leaving certificate indicating the age of the accused ought not be discarded. It was held that there is a presumption that the age mentioned in the school record is correct unless shown to be otherwise. It was also held in case Ravi- Ul-Islam V State, 2006 (2) CC Cases (HC) 157 that in absence of any 17 proof to the contrary, the school leaving certificate must be given due weightage and ossification test is not a sound test and there is possibility of variation of 2 years on either side. It was observed in case of State of Maharashtra V Gajanan @ Hemant Janardhan Wankhede, 2008 (3) SCC Cri 418 that the school leaving certificate and school register revealed the age of prosecutrix must be relied upon. The similar observations were earlier also made in Shahzad V State, 2007 (1) CC Cases (SC) 186. In the instant case, the father of the prosecutrix has mentioned the date of birth of the prosecutrix as 10.10.92 in ExPW8/C. The FormExPW8/C was filled by the father of prosecutrix on 8.1.2004 i.e much prior to the date of incident and at that time, the father of the prosecutrix could not have imagined about the incident. There is no evidence on the contrary to disprove that the date of birth of the prosecutrix was not 10.10.92. After considering all facts, the prosecution is able to prove that the date of birth of prosecutrix is 10.10.92 and the prosecutrix was below the age of 14 years at the time of alleged incident.
19. The main component of offence u/s 363 IPC is taking or enticing away of minor out of the keeping of lawful guardianship. The essential ingredients of the Section 361 IPC is that the accused must have taken 18 or enticed away a girl under the 18 years of age and the act must be taking or enticing away a girl out of the lawful guardianship of the family and it should be taken without the consent of the lawful guardianship. The prosecution has proved that at the time of incident i.e on 22.9.2006 the prosecutrix was minor and below the age of 14 years. The prosecution to prove that the accused has taken away the PW-1 prosecutrix out of the lawful guardianship of PW-2 Meera Devi examined PW-2 Meera Devi. PW2 Meera Devi is the mother of PW-1 prosecutrix. PW-2 Meera Devi deposed that she got married with Ramvilas and out of said wedlock three daughters including PW-1 prosecutrix were born. PW-2 Meera Devi deposed that after the death of Ramvilas she got remarried with Jagdish. PW-2 deposed that on the date of incident, PW- 1 prosecutrix had left the house to take medicine from the doctor but she did not come back to home on that day. PW-2 searched for PW-1 prosecutrix in the locality and also made inquiries from the relatives. PW-2 went to Police Station on 22.9.2006 and lodged missing report which was registered vide DD no.12A ExPW3/A. PW-2 on 6.10.2006 lodged report against the accused and on the basis of it, FIR u/s 363 IPC was got registered. The prosecuting has also examined prosecutrix 19 as PW-1 who supported the case of the prosecution. PW1 prosecutrix deposed that on 20.9.2006 she had gone to the doctor to take medicine and at about 9/9.30 am she reached near Lokesh Cinema then accused met her and told that the Daulatram is calling her. PW-1 prosecutrix went along with the accused towards Lokesh Cinema where the Daulatram, Subhash s/o Daulatram and Anita relative of Daulatram met with her. The accused forced PW-1 prosecutrix to sit in a TSR and taken her to the New Delhi Railway Station. PW-1 prosecutrix was taken to Aligarh by the accused from New Delhi Railway Station in a Rail. The respective testimony of PW-1 prosecutrix and PW-2 Meera Devi proved the following facts :--
i. PW-2 Meera Devi got married with Ramvilas and out of said wedlock three daughters including PW-1 prosecutrix were born.
ii. PW-1 prosecutrix and PW-2 Meera Devi were residing at F-155, Rajdhani Park, Nangloi, Delhi.
iii. PW-1 prosecutrix on 20.92006 had gone to the shop of a doctor to purchase medicines and at about 9/9.30 am she reached near Lokesh Cinema then accused met her iv.Accused told PW-1 prosecutrix that Daulatram, who was running a factory in the locality where the PW-1 prosecutrix was residing, is calling her and thereafter PW-1 prosecutrix had gone towards Lokesh Cinema along with the accused.20
v. Daulatram, Subhash s/o Daulatram and Anita relative of Daulatram met with PW-1 prosecutrix as they were already standing there and thereafter the accused forced the PW-1 prosecutrix to sit in a TSR.
vi.Accused has taken the PW-1 prosecutrix in the said TSR to New Delhi Railway Station and from where PW-1 prosecutrix was taken to Aligarh.
20. The respective testimonies of PW-1 prosecutrix and PW-2 Meera Devi proved that PW-1 prosecutrix was taken away by the accused out of the lawful guardianship of PW-2 Meera Devi. The accused had taken PW-1 prosecutrix without the consent of PW-2 Meera Devi. PW-1 prosecutrix and PW-2 Meera Devi were also cross examined at length by the defence counsel but there is nothing in their respective cross examination which can falsify their respective testimonies. The respective testimonies of PW-1 prosecutrix and PW-2 Meera Devi inspires confidence and appears to be natural, cogent, consistent. There is no reason to disbelieve the testimony of PW-1 prosecutrix and PW-2 Meera Devi.
21. To constitute offence u/s 366 IPC, the prosecution has to prove that the accused kidnap any woman or compelled her by force to go from any place. A woman should be kidnapped or abducted with the 21 intention that the woman may be seduced to illicit intercourse or that the accused knew it to be likely that the woman may be seduced to illicit intercourse or that woman would be compelled to marry any person against her own will. The defence counsel has argued that the prosecution has failed to prove the offence u /s 366 IPC as there is nothing in the testimony of PW-1 prosecutrix that she was kidnapped by the accused with a view to marry her. The defence counsel relied upon Kuldeep K. Mahato V State of Bihar, 1998 (5) SC 395. In the said case it was observed that there was no indication in statement of prosecutrix that she was kidnapped with intention to marry against her will or in order that she may be forced to illicit intercourse, as such, ingredients of Section 366 are not proved. Conviction u/s 366 IPC was set aside. The CPP argued that as per the testimony of PW-1 prosecutrix it is reflected that she was taken away by the accused out of the lawful guardianship of PW-2 Meera Devi to Aligarh where he had committed sexual intercourse with her without consent and wishes.
22. The testimony of PW-1 prosecutrix reflects that accused had taken her from New Delhi Railway Station to Aligarh. Initially at Aligarh, she was kept in a mud house in a jungle where the accused had 22 committed sexual intercourse with her against wishes and consent. PW1 prosecutrix was taken by the accused to the house of his Aunt (Bua) where the accused has not committed sexual intercourse with the PW-1 prosecutrix. PW-1 prosecutrix deposed that at that house she informed the Aunt (Bua) of the accused that the accused has brought her against her wishes. PW-1 prosecutrix was again taken to the house of sister of accused at Aligarh itself where accused again committed sexual intercourse with PW-1 prosecutrix against her wishes and consent. It is reflected from the testimony of PW-1 prosecutrix that the accused had committed sexual intercourse with her in the forest, at the house of his sister and thereafter at the house his Aunt (Mausi). Although PW-1 prosecutrix has not deposed that she had been kidnapped by the accused for the purpose of marriage but it is proved from the testimony of PW-1 prosecutrix that she was taken away by the accused to commit sexual intercourse.
23. The prosecution to prove the offence u/s 376 IPC, relied upon the testimony of PW-1 prosecutrix. The CPP argued that it is ample clear from the testimony of PW-1 prosecutrix that the accused had committed sexual intercourse within the definition of Section 375 IPC 23 against the wishes and consent of the prosecutrix. The defence counsel argued that the prosecutrix had run away with one Sanjay; if it is presumed that the accused had committed sexual intercourse with the prosecutrix but the prosecutrix was a consenting party. The defence counsel relied upon the cross examination of PW-1 prosecutrix.
24. PW-1 prosecutrix deposed that the accused had committed sexual intercourse against her wishes and consent at Aligarh when she was kept in jungle and thereafter in the house of his sister and Aunt (Mausi) which are also situated at Aligarh. The PW-1 prosecutrix was first taken from Lokesh Cinema to New Delhi Railway Station by the accused in a TSR. Thereafter the PW-1 prosecutrix was taken to Aligarh in a Rail by the accused. The PW-1 prosecutrix was taken away on 20.9.2006 and she was brought to the Police Station by the Sanjay on 15.11.2006. The PW-1 prosecutrix remained with accused for about two months. The PW-1 prosecutrix was taken to various places by the accused but, cross examination of PW-1 prosecutrix reflects that she did not raise any alarm or tried to narrate all these facts to any other person.
25. It is well settled that in rape cases the conviction can be solely based on the evidence of the victim, provided such evidence inspires 24 confidence in the mind of the Court. The victim is not treated as accomplice, but could only be characterised as injured witness. It is also reasonable to assume that no woman would falsely implicate a person in sexual offence as the honour and prestige of that woman also would be at stake. However, the evidence of the prosecution shall be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that evidence of the victim may be supported by such corroborative material.
26. It was held in the case Madho Ram and another V The State of U.P., AIR 1973 SC 469 as under :--
[T] the prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasised that Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand.25
27. It was held in case Karnel Singh V State of M.P., (1995) 5 SCC 518 as under :--
A woman who is a victim of sexual assault is not an accomplice to the crime but is a victim of another person's lust and therefore her evidence need not be tested with the same amount of suspicion as that of an accomplice. She is not in the category of a child witness or an accomplice and therefore the rule of prudence that her evidence must be corroborated in material particulars has no application; at the most the court may look for some evidence which lends assurance.
28. This legal proposition was also reasserted in case Dinesh @ Buddha V State of Rajasthan, AIR 2006 SC 1267 (1).
29. The defence counsel argued that the PW-1 prosecutrix was a consenting party as reflected from the cross examination of PW-1 prosecutrix. the defence counsel has also pointed out regarding the discrepancies in the deposition of PW-1 prosecutrix and the statement u/s 164 Cr.P.C. ExPW1/A. There may be some discrepancies in the deposition of PW-1 prosecutrix and the statement u/s 164 Cr.P.C. ExPW1/A but said discrepancies do not go to the root of the case and are not fatal to the case of the prosecution. Even it is presumed that the PW-1 prosecutrix may be a consenting party in establishing physical 26 relation with the accused. As per Section 375 IPC if a sexual intercourse is committed with a woman/female with or without her consent, when she is under sixteen years of age does amount to rape. It is proved that on the date of incident, PW-1 prosecutrix was under the age of 14 years as such the element of consent is immaterial. If the PW-1 prosecutrix is a consenting party even then it does not reduced the culpability of the accused as the PW-1 prosecutrix was under the age of 14 years.
30. There is no reason to disbelieve the testimony of PW-1 prosecutrix which appears to be cogent, consistent, clear and narrative of all facts. PW-1 prosecutrix deposed that accused had committed sexual intercourse with her at Aligarh without her consent and wishes. The statement of PW-1 prosecutrix u/s 164 Cr.P.C. ExPW1/A is also perused wherein the PW-1 prosecutrix deposed that the accused had committed sexual intercourse without her consent in the house of his Aunt (Mausi). The testimony of PW-1 prosecutrix also finds support from medical evidence. PW-5 Dr. Garima Trivedi who medically examined the prosecutrix found her hymen torn and tear was old. The prosecutrix remained with accused for about two months. The accused was also found capable of performing sex. The prosecution proved that the 27 accused had committed sexual intercourse with the PW1 prosecutrix without her consent. The authorities cited by the defence counsel is also perused, but they do not provide any help to the defence of accused.
31. In view of my above discussion, the accused is convicted for offences u/s 363/366/376 IPC.
Announced in open court (Dr.Sudhir Kumar Jain)
on 27.1.2010 ASJ-01 (Outer) Rohini, Delhi
28
IN THE COURT OF DR. SUDHIR KUMAR JAIN: ASJ-01 (OUTER), ROHINI : DELHI FIR No: 1059/2006 PS: Nangloi Under Section: 363/368/376/506IPC Sessions Case No: 95/2009 Date of Institution: 22.2.2007 Date of Decision : 27.1.2010 Date of Order on Sentence : 04.02.2010 State Versus Brijesh Kumar, S/o Rajbir Singh, R/o R-153, Rajdhani Park, Nangloi, Delhi.
... Convict ORDER ON SENTENCE Shri Atul Kumar Gupta, CPP for the State and Shri T.S. Mohar, Advocate for convict heard on sentence.
2. Shri Mohar, Advocate for the convict stated that the convict is aged about 23 years and is married having one daughter; the convict 29 has to look after his entire family comprising old aged parents, two brothers and two sisters; the convict is stated to be employed in a factory; no any other criminal case is pending against him and antecedents of the convict are clear. The CPP stated that considering the facts and circumstances of the case, the convict be awarded maximum punishment.
3. It was held in case Jashubha Bharatsing Gohil V State of Gujarat, (1994) 4 SCC 353 that the protection of the society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence.
4. In case State of Punjab V Prem Sagar and Ors. (2008) 7 SCC 550 it was observed that whether the court while awarding sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality would depend upon the facts and circumstances of each case and while doing so nature of offence said to have been committed by the accused plays an important role. A wide discretion is conferred on the court but said discretion must exercise judicially while sentencing an accused. It would depend upon the circumstances in which the crime has been committed and the mental 30 state and the age of the accused is also relevant.
5. In State of Punjab V Gurmit Singh, (1996) 2 SCC 384 it was observed as under :--
Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honor. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but also inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault-it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim; a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a greater responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.
6. The prosecutrix at the time of commission of offence was minor and has been taken away out of the lawful guardianship of her mother by the convict. The prosecutrix was taken to Aligarh where the convict has committed rape. The convict is having root in the society and has to look after his family comprising of wife, one daughter, old aged parent, two 31 brothers and two sisters. The convicts belongs to the lower strata of the society. The convict remained in JC for about 11 months. The antecedents of the convict are clear.
7. After considering, particularly the facts pertaining to the socio-
economic condition of the convict, the convict is sentenced to RI of two years along with fine of Rs.2000/- in default one month SI for offence u/s 363 IPC; and RI for a period of 3 years along with fine of Rs.3000/- in default 2 months SI for the offence punishable u/s 366 IPC; and RI for 3 years along with fine of Rs.3000/- in default 2 months SI for offence punishable u/s 376 IPC. All the sentences shall run concurrently. The benefit of Section 428 Cr.P.C. be given to the convict. Case property is confiscated to the State. The Committal warrant be issued against the convict. A copy of the judgment along with order on sentence be supplied to the convict free of cost. File be consigned to the record room.
Announced in open court (Dr.Sudhir Kumar Jain) on 4.2.2010 ASJ-01 (Outer) Rohini, Delhi.