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[Cites 6, Cited by 0]

Delhi District Court

State vs . Subhash Kumar S/O Sh. Kamal Singh, R/O ... on 13 December, 2007

                                              ­1­

IN   THE   COURT   OF   DR.   R.K.   YADAV   :   ADDITIONAL   SESSIONS   JUDGE   :
                          KARKARDOOMA COURTS : DELHI :

Sessions Case No. 215/06
Date of Institution :­ 07.08.06
Date on which reserved for order :­ 10.12.07
Date of Delivery of Judgement :­ 11.12.07

State           Vs.   Subhash  Kumar  S/o Sh. Kamal Singh,  R/o E­13/B­49, CPJ  
                      Block, New Seelampur, Delhi.
         FIR No. 111/06
         PS Seelampur
         U/S 376/323 IPC.

J U D G E M E N T :

­ Sanjay deals in shoes. He resides at H.No. 1/1, J­Block, Seelampur, Delhi, along with his wife and children. He goes to Raghubir Nagar, Delhi, for purchase of shoes. On 20.02.06, he left for Raghubir Nagar, Delhi, around 3am, leaving his wife and children at home. Subhash Kumar is resident of H.No. E­13/B­49, CPJ Block, New Seelampur, Delhi, which house is in near vicinity of house of Sanjay. When Sanjay left for Raghubir Nagar, Delhi, Subhash Kumar reached his house and knocked the door. Kirpa Devi, wife of Sanjay, opened the door. Subhash Kumar assaulted her in her abdomen, gagged her mouth and bolted the door from inside. He raped Kirpa Devi. When he was leaving, Birju reached there. Birju tried to overpower him. He assaulted Briju, pushed him in the drain and ran away. Birju came out of drain. Sanjay returned home around 8.30am. Kirpa Devi narrated facts before her husband.

2. Sanjay accompanied Kirpa Devi to police station Seelampur. Kirpa Devi lodged her report, which became bedrock of the case. She was sent ­2­ to GTB Hospital for medical examination. Birju was also sent to hospital for medical examination. Accused was arrested on 21.02.06. He was also sent for his medical examination. Undergarments of Kirpa Devi and the accused were seized. It were sent to FSL for chemical analysis. Investigation culminated into a chargesheet against the accused.

3. Charge for offences punishable under sections 376 and 323 of the Penal Code was framed against accused by my ld. Predecessor, to which charge accused pleaded not guilty and claimed trial.

4. To substantiate the charges, prosecution has examined Kirpa Devi (PW1), Sanjay (PW2), Birju (PW3), Sanjeev Kumar, Constable (PW4), Ram Naresh, Constable (PW5), Usha SI (PW6), Arun Kumar, Constable (PW7), Dr. Lalita Prasad (PW8), Anuradha, Constable (PW9), Suresh Kumar ASI (PW10) and Dr. Ansul Grover (PW11) in the case.

5. Sanjeev Kumar, Constable, was sent to GTB Hospital along with Birju for his medical examination. He narrated facts before the Court in that regard. Arun Kumar, Constable, had taken exhibits to CFSL Kolkata on 21.03.06. He unfolds that parcels were deposited by him in CFSL office in intact condition on 22.03.06. Anurahda, Constable, was associated in investigation on 20.02.06. She took Kirpa Devi to GTB Hospital for her medical examination. She detailed those facts in her testimony. Suresh Kumar ASI was working as duty officer, who had recorded formal FIR. He proved carbon copy of FIR as Ex.PW1/A. Ram Naresh, Constable, ­3­ remained associated in investigation. He unfolds that accused Subhash Kumar was arrested on 21.02.06. He was taken to hospital for medical examination, where his underwear was seized. Usha SI conducted investigation of the case and detailed all investigative steps. She projects that Kirpa Devi was sent to hospital for medical examination on 20.02.06. Accused was arrested on 21.02.06 and was sent for medical examination. Undergarments of Kirpa Devi and accused were sent to CFSL for chemical analysis.

6. Dr. Lalita Prasad entered the witness box to prove MLC of Birju, prepared by Dr. Manoj. He had proved his MLC as Ex.PW8/A. Dr. Ansul Grover had entered the witness box to prove MLC of Kirpa Devi, prepared by Dr. Shalini Jain. She had proved MLC of Kirpa Devi as Ex.PW11/A. Sanjay projects that on 20.03.06, on his return from his job, his wife made a complaint about her sexual exploitation. She was taken to police station, where her report was lodged. Birju projects that on 20.02.06 at about 4am, he heard sound of whispering going on in the room of his brother Sanjay. When he reached near the room, he saw accused running from there. He chased the accused and overpowered him. Accused had bitten his finger, pushed him in the drain and ran away. Smt. Kirpa Devi is the star witness of the prosecution. She unfolds that on the date of incident, her husband had gone to Sabzi Mandi for his job. Accused knocked at her door and she opened it, presuming that her husband had returned. Accused gave a fist ­4­ blow in her abdomen and gagged her mouth. He raped her and ran away.

7. In order to afford an opportunity to explain circumstances appearing in evidence against him, accused was examined under section 313 of the Code of Criminal Procedure, 1973 (in short the Code). He had denied that on 20.02.06, he committed criminal house trespass in the room of Sanjay. He further denied that he had assaulted Kirpa Devi, gagged her mouth and raped her. He denied that when he was running away, he was chased by Birju. He further denied that Birju had caught hold of him, who was pushed in the drain and then he ran away. He projects that Kirpa Devi was having affairs with him. She came to his house in wee hours of 20.02.06. She was seen by Birju, who reached there and quarrelled with Kirpa Devi. He was later on framed in the case. He has not adduced any evidence in his defence.

8. Arguments were heard at the bar. Sh. R.K. Pandey, ld. Prosecutor, had presented facts on behalf of the State. Sh. Malkhan Singh, Advocate, had advanced arguments on behalf of the defence. I have given my careful considerations to the arguments advanced at the bar and cautiously perused the record. My findings on the issues involved in the controversy are as follows :­

9. Kirpa Devi, star witness of the prosecution, projects that on 20th day of English calendar month, at about 10­11 months ago at about 4am, she was present in her house. Her husband had gone to Sabzi Mandi at 3am. Her ­5­ children, namely, Jitender, Dharmender and Kunal, who are aged about 6­ 7 years, five year and four year respectively, were present in the house. When her husband left for Sabzi Mandi, she bolted the door form inside. She resides at ground floor of the house, while her brothers­in­law (Jeth) reside on first floor and second floor of the house. After about half an hour someone knocked at the door. She thought that her husband had returned. She opened the door. As soon as she opened the door, accused gave fist blow in her abdomen and gagged her mouth. He raped her. When accused tried to run away, after satisfying his lust, she caught hold of his waist. She raised an alarm and her brother­in­law (Devar), namely, Birju reached there. Birju resides in adjoining room. Birju caught hold of accused. Accused had bitten finger of Briju, pushed him in the drain and ran away. One of the chappals of accused remained lying at the spot. At about 8.30am, her husband returned home and she narrated facts before him. She was taken to hospital, where her petticoat was taken into possession. She had identified her petticoat as Ex.P1 and underwear of accused Subhash Kumar as Ex.P2, which he was wearing at the time of incident.

10. When facts testified by Smt. Kirpa Devi were closely perused, it came to light that her testimony is not acceptable on its face value. She had provided embroidery to facts with a view to protect her honour. She projects that at about 3.30am, someone knocked at the door and she ­6­ opened it, believing that her husband had returned. According to her, accused was present at the door, who gave fist blow in her abdomen and gagged her mouth. It is not her case that at that time, she tried to resist and raise an alarm for help. She nowhere porjects as to who bolted door from inside. She admits that her three children were sleeping in the room, where she was sexually defiled by the accused. During the period, when her ordeal was going on, she had not tried to resist advances of the accused. She had not made efforts to make her children awake. She simply tells that when accused was running away, she caught hold of his waist and raised alarm for help. She identified underwear Ex.P2 as the same, which accused was wearing at the time of incident. Surprisingly, when she was being subjected to sexual assault, she could take note of underwear worn by the accused and as such she could identified it, during her testimony. She admits that accused remained in her room for about half an hour. She along with her children was sleeping on bedspread where she was raped. She tells that accused was wearing trouser and vest. He removed his trouser and thereafter removed his underwear also. These facts make it clear that Kirpa Devi could well observe the accused removing his clothes, when he overpowered and sexually exploited her. It emerges over the record that Kirpa Devi was not such helpless as testified by her. She was in her self possession and could observe clothes worn by the accused, notice him removing his clothes and could bear him in the ­7­ room for about half an hour, without raising any hue and cry. All these circumstances are indicative that facts were different than projected by the lady.

11. Birju unfolds that on 20.02.06 at about 4am, he heard noise of whispering coming out of room of his brother Sanjay. His room adjoins the room of his brother. He came out of his room and saw accused Subhash Kumar running from there. During the course of his cross­examination, Birju projects that he heard whisper, "hoon haan hoon haan" coming out of room of his brother. From these facts, it is emerging over record that Birju heard sound of air being discharged out of nostrils and not cries of Kirpa Devi. A loud sound of discharge of air through nostrils was produced, when accused and Kirpa Devi were having coitus with each other. Such state of situation would make an ordinary prudent man to perceive that accused and Kirpa Devi were enjoying consortium of each other, when loud sound of discharge of air from nostrils was heard by Birju. He woke up. He went near the room of Sanjay and saw accused running away from there. He tells that when accused was running from there, he was wearing his clothes completely. That fact makes it clear that after having coitus with Kirpa Devi, accused worn his clothes and tried to slip away. At that juncture, he was noticed by Birju. By that time, Birju had not heard any cry being raised by Kirpa Devi. These circumstances are suggestive that when accused went inside the room of Kirpa Devi, his ­8­ overtures were not resisted. When he removed his clothes and had sex with Kirpa Devi, no resistance was offered by the lady nor she raised any hue and cry. When she was enjoying consortium of the accused, they both reached orgasm and in that process sounds of their nostrils made Birju awake. By that time, accused worn his clothes and tried to slip away. At that juncture, Birju appears on the scene and situation take a turn. Kirpa Devi now tells that accused committed criminal house trespass and raped her. These circumstances tell a different story. It emerged over record that Kirpa Devi was a consenting party to entire episode. She invited accused inside her room and had coitus with him. When Birju noticed accused running away, she took somersault and projected that she was sexually exploited by the accused against her will. Consequently, it is concluded that Kirpa Devi was a consenting party and her testimony is not acceptable on its face value.

12. Kirpa Devi is a lady, aged about 25 years. She is mother of three children. She was competent to consent for sex. In such a situation, act of coitus with her had not fallen within the mischief of definition of rape provided in section 375 of the Penal Code. When she invites accused in her room, in such a situation entry of the accused in her room would not fall within the ambit of criminal house trespass. Thus, it is evident that neither offence of criminal house trespass nor offence of rape was committed by the accused.

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13. Birju chased the accused, when he saw him coming out of room of his brother Sanjay. Birju caught hold of him. At that juncture, accused had bitten his finger, pushed him in the drain and ran away. Thus, it is evident that accused had voluntarily caused injuries to Birju. Facts projected by Birju get support from testimony of Kirpa Devi and circumstances unfolded by Dr. Lalita Prasad. Dr. Lalita Prasad had proved MLC Ex.PW8/A, prepared by Dr. Manoj. When MLC Ex.PW8/A was perused, it came to light that a laceration with dimension of 1cm X 0.5cm was there on right finger of Birju. Injury sustained by Birju was opined to be of simple in nature, caused by a blunt object. Birju was taken to hospital on 20.02.06. Therefore, medical evidence contained in MLC Ex.PW8/A supports facts testified by Birju.

14. Defence projects that Smt. Kirpa Devi reached room of Subhash Kumar, where she was followed by Birju. These facts are farther from truth. Story projected by Birju, coupled with medical evidence, makes it clear that accused had voluntarily caused simply injury to him with a blunt object. Accused could not shake credit of testimony of Birju. Consequently, it is concluded that prosecution has been able to establish that accused had voluntarily caused simple hurt to Birju with a blunt object.

15. In view of foregoing discussions, it is clear that prosecuton has not been to prove offences of criminal house trespass and rape on Kirpa Devi. Since she was a consenting party, no offence of criminal house trespass ­10­ and rape was committed. Accused Subhash Kumar is, accordingly, acquitted of the charge of rape. However, offence of voluntarily causing simple hurt to Birju has been established to hilt. Consequently, he is held guilty and convicted for offence punishable under section 323 of the Penal Code.

Announced in the Open Court (Dr. R.K. Yadav) On this 11th day of December, 2007. Additional Sessions Judge :

Karkardooma Courts, Delhi. ­11­ IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS JUDGE :
KARKARDOOMA COURTS : DELHI :
Sessions Case No. 215/06 State Vs. Subhash Kumar S/o Sh. Kamal Singh, R/o E­13/B­49, CPJ Block, New Seelampur, Delhi.
FIR No. 111/06
PS Seelampur U/S 323 IPC.
ORDER ON THE POINT OF SENTENCE :­ Sh. Malkhan Singh, Advocate, claims leniency on behalf of convict, pleading that he is a young man, aged about 21 years. He further asserts that convict was in JC for a period of one year. According to him, he was arrested on 21.02.06 and was released released on bail on 20.02.07. He claims that sentence undergone by the convict is sufficient to meet the ends of justice.
2. On 20.02.06, during wee hours convict was called by Kirpa Devi at her room in house No. E­1/1, J­Block, Seelampur, Delhi. Kirpa Devi had sex with convict with her sweet will. When convict was going away, he was overpowered by Birju, brother­in­law of Smt. Kirpa Devi. At that juncture, convict voluntarily assaulted Birju and cause simple injuries with a blunt object. Convict was arrested on 21.02.06 and was released on bail on 20.02.07. Considering all these facts, convict is sentenced to one year simple imprisonment, which has already been undergone by him. There is no necessity to send him to jail. He is, accordingly, released.
Announced in the Open Court (Dr. R.K. Yadav) On this 13th day of December, 2007. Additional Sessions Judge :
Karkardooma Courts, Delhi.