Delhi District Court
State vs Accused on 10 July, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST
& SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI
Unique Case I.D. No.02402R0333972011
SC NO.160/13 Date of Institution :10.01.2012
FIR No.225/11 Date of Argument :07.06.2013 and
PS Khajuri Khas 01.07.2013
Date of Order :01.07.2013
U/S 366/368/328/376/34 IPC
State Versus Accused
Prashant
S/o Sh. Sri Kishan
R/o H.No. 593, Gali No.13,
Part III, Sonia Vihar,
Delhi.
JUDGMENT
The facts in brief of the prosecution case are that in the intervening night of 09/10.05.2011 at about 12
- 12:30 midnight, one Prashant, here in after referred to as the accused, kidnapped one ----X----, here in after referred to as the prosecutrix, out of her lawful guardianship from
-----------------------------------------X1-------------------------------------- by force and with intent to solemnize marriage with her. The accused made the prosecutrix to sit in a white colour vehicle. His brother Rajesh and sister in law SC No.160/13 State vs. Prashant Page 1 of 31 Veena were also present there. The accused made her to drink tea and after drinking the same, she felt intoxicated and when she regained her consciousness she found herself inside a room in a village. The accused used to beat her everyday and he used to misbehave and rape her and used to pressurize her for marriage. ----------Y--------------, father of the prosecutrix reported the matter to police but the prosecutrix could not be searched despite of efforts made by the police. After a week the accused dropped the prosecutrix at P.S. Father of the prosecutrix submitted a detailed complaint u/s 156 (3) of the Code of Criminal Procedure, here in after referred to as the Code on the basis of which FIR of present case No.225/11 at PS Khajuri Khas was recorded. Father of the prosecutrix was informed about reaching of the prosecutrix at the P.S. On the pointing out of the complainant, the accused and Rajesh were arrested and arrest memo Ex.PW4/A and Ex.PW4/C were prepared. Their personal search memo were conducted vide memo Ex.PW4/B and Ex.PW4/D and their disclosure statements Ex.PW4/D and Ex.PW4/E were recorded. Site plan Ex.PW5/A was prepared. Both the accused were sent to GTB Hospital where accused Prashant was medically examined. His samples were taken by the doctor and handed over to Ct. Jai Kishan who took SC No.160/13 State vs. Prashant Page 2 of 31 him to the hospital for medical examination. Samples were seized vide seizure memo Ex.PW8/A. The prosecutrix was also taken to GTB Hospital where she was medically examined. Doctor, who examined her, also took her samples. Doctor observed that her hymen was found torn. Samples were initially deposited in the police malkhana and subsequently, these were sent to FSL and later on, reports from FSL were obtained. The prosecutrix was also produced before Ld. M.M. and her statement u/s 164 of the Code was recorded on 30.09.2011. I.O. visited the place of occurrence and prepared site plan. I.O. also obtained date of birth record of the accused and the prosecutrix. After completion of investigation police filed a charge sheet against the accused for his trial for the offences punishable u/s 366/368/328/376/34 IPC. Names of the accused Rajesh and Veena both R/o H.No. A 593, Gali No.13, Part III, Sonia Vihar, Delhi were mentioned in column No.12 of the charge sheet.
2. Ld. M.M. took cognizance against the accused and not against Rajesh and Veena. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused committed this case to the court of sessions and the case was assigned to himself by SC No.160/13 State vs. Prashant Page 3 of 31 Ld. District Judge & Addl. Sessions Judge (I/C), North East District, Delhi.
3. The court vide order dated 10.01.2012 opined that prima facie case for framing of charge against the accused for the offences punishable u/s 366/328/376 IPC was made out. Therefore, charge against the accused for his trial for the said offences was framed and read over to him. The accused pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined the prosecutrix as PW1; ----------Y---------------, father of prosecutrix as PW2; ----------Z---------, mother of prosecutrix as PW3; Ct. Sumit as PW4; and ASI Gopal Dass as PW5.
5. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
6. The prosecution further examined W/Ct. Pinki as PW6; Dr. Ritu Khatuja, Senior Resident, GTB Hospital as PW7; ASI Santosh as PW8; Dr. Sangeeta, CMO, GTB SC No.160/13 State vs. Prashant Page 4 of 31 Hospital as PW9; ASI Tejwati as PW10; and Smt. Bimla Rani as PW11.
7. After closing of prosecution evidence statement of the accused u/s 313 of the Code was recorded. All the material and incriminating evidence was put to him. The accused admitted that the prosecutrix knew him as he resided in her neighbourhood and that PW2, father of prosecutrix was running a grocery store at his house and that he was taken to GTB hospital where he was medically examined vide MLC Ex.PW9/A and that his samples were taken and those were sent to FSL and results Ex.PW10/C and Ex.PW10/D were obtained. He either denied rest of the evidence or expressed his ignorance about the same. The accused pleaded that he was falsely implicated in the present case as father of the prosecutrix, who was working as a property dealer, wanted to buy his house at a lower price and his father had refused to sale his house. He opted to lead evidence in his defence.
8. The accused, in his defence, examined Sh. Bunty s/o Sh. Ved Prakash as DW1 and Smt. Rajni w/o Late Sh. Pappu Saxena as DW2.
SC No.160/13 State vs. Prashant Page 5 of 319. After closing of evidence by both the parties, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for the accused and perused file including written arguments.
10. In order to prove its case that the accused committed an offence of kidnapping, abducting or inducing women to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly that the prosecutrix was either kidnapped or abducted by the accused and secondly, the prosecutrix was abducted and kidnapped with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse.
11. In order to prove its case that the accused committed an offence of causing hurt by means of poisons etc., punishable u/s 328 IPC, prosecution has to prove firstly, that the accused administered either poison or stupefying, intoxicating or unwholesome drug in the tea of the prosecutrix; and secondly, that tea was offered to the prosecutrix with the intention to commit or to facilitate the commission of an offence or knowingly it to be likely that SC No.160/13 State vs. Prashant Page 6 of 31 he will thereby cause hurt to the prosecutrix.
12. In order to prove its case against the accused for the offence of rape punishable u/s 376 IPC, prosecution has to prove firstly, that sexual intercourse was committed with the prosecutrix by the accused; and secondly, that sexual intercourse was committed with her forcibly against her will and without her consent.
Age of the Prosecutrix
13. PW1, the prosecutrix on this aspect deposed that at the time of incident she was studying in 9th class. She told her age as 16 years on the date of recording his statement, i.e. on 27.02.2012. She also stated that her date of birth was 01.04.1995. That was also recorded in her school where she was studying. When her statement u/s 161 of the Code was recorded on 13.09.2011 she also told her age as 16 years. The testimonies of parents of the prosecutrix i.e. PW2 and PW3 are silent about the date of birth of the prosecutrix. PW5 on this aspect deposed that on 12.05.2011 he was posted at PS Khajuri Khas as ASI. On that day duty officer entrusted him DD No.41 B regarding missing of girl -----X----- aged about 16 years. PW7 Dr. Ritu Khatuja on this aspect deposed that on 11.08.2011, she SC No.160/13 State vs. Prashant Page 7 of 31 examined a patient ------X------ d/o --------Y------ aged about 16 years. PW10 on this aspect deposed that the date of birth of the prosecutrix was certified from the school vide document Ex.PW10/E. On perusal of Ex.PW10/E, I find that this is the certificate dated 30.09.2011 issued by Head of School, GGSSS, Khajuri Khas, Delhi-94. It has been mentioned in the certificate that date of birth of ------X----- d/o -------Y------ was 01.04.1995 and according to school record she was admitted in the school in 6th class. The entry of admission and withdrawal register and application form of the prosecutrix have been proved as Ex.PW11/A and Ex.PW11/B. In this document the date of birth of the prosecutrix has been mentioned as 01.04.1995. There is no cross examination of this witness by Ld. Defence Counsel regarding the age or date of birth. The date of incident is 09.05.2011. On calculation, the age of the prosecutrix, on the date of incident, comes to 16 years 1 month and 8 days. Consequently, it is held that the prosecutrix was minor on the date of incident.
Kidnapping, abducting or inducing woman to compel her marriage, etc.
14. PW1, the prosecutrix on this aspect deposed SC No.160/13 State vs. Prashant Page 8 of 31 that she knew the accused Prashant present in the court as he used to reside in her street. She was studying in 9th class when the incident took place. In the intervening night of 9th & 10th May, 2011 at around 12/12:30 midnight she went to toilet of her house situated on the roof. Accused Prashant was there and he put a knife against her neck. He threatened her to accompany him downstairs failing which he would kill her and her family members. Accused brought her on the main road. Brother and sister in law of accused namely Rajesh and Veena were also present there. All of them put her inside that vehicle by force. Accused Rajesh and Veena then left that place. The accused sat on the rear seat with her and the driver drove the vehicle and at some distance the accused gave her tea in a cup which was with him in a flask. She took that tea and as soon as she finished the tea she became unconscious. When she regained consciousness, she found herself in a room. Accused used to beat her saying that he wanted to get marry with her but she used to refuse and turn down his proposal. Accused indulged in sexual intercourse with her on every night during that period. Finally the accused brought her to PS Khajuri Khas on 14.05.2011. She also made her statement before Magistrate and stated all facts on oath. She identified her signature on her statement SC No.160/13 State vs. Prashant Page 9 of 31 Ex.PW1/A. In cross examination she explained that toilet was situated on the top floor and that was the only toilet existing on the second floor. The accused when brought her downstairs he brought her from inside her house. At that point of time lights of her house were switched off and the main door on the ground floor was unbolted by the accused. Rest of family members in her house were sleeping.
15. PW2 on this aspect deposed that he was running a grocery store at ground floor of his house. He was having two sons and one daughter. Name of his daughter is ------X-----. At the time of incident she was studying in 9th Class. On the intervening night of 9th and 10th May, 2011 all the family members were sleeping. He awoke in the night and saw that main gate was opened and his daughter ------X----- was missing. He searched his daughter but she could not be traced. In the morning she went to PS Khajuri where SI Gopal Dass met him. He handed over complaint regarding missing of his daughter but ASI Gopal Dass did not hand over the receipt of his complaint to him and he assured him that he would be searching and trace out his daughter. He visited PS 3-4 days but police did not pay any attention on his complaint.
SC No.160/13 State vs. Prashant Page 10 of 31On 14.05.2011 ASI Gopal Dass called on mobile phone of his brother and asked him to reach at PS Khajuri Khas at the earliest. They arrived at PS Khajuri Khas and found that accused present in the court and his daughter were sitting near ASI Gopal Dass. His daughter told him that in the intervening night of 9th and 10th May, 2011 at about 12-12:30 a.m. she went for urination on the roof where the toilet was situated where Prashant met her and put knife on her neck and asked her to accompany him after opening the gate. Accused took her to 20 feet road which was situated at a distance of 50 feet from their house where one car was parked. Rajesh, elder brother of accused and his wife Veena were present there and all the three persons made her to sit inside the car. Accused pressurized his daughter to marry with him and on refusal accused gave beating to his daughter and also committed rape on her without her consent and against her wishes on each night.
16. PW3 on this aspect deposed that she was having two sons and one daughter namely -----X-------. On intervening night of 9th and 10th May, 2011, her daughter
-----X------- went missing from her house. On that night her husband woke up for urination and he did not find ---X---
SC No.160/13 State vs. Prashant Page 11 of 31in the room. They searched for their daughter in the neighbourhood and from their relatives and on the next morning her husband went to PS and lodged a missing report. On 14.05.2011 a telephone call was received at PS Khajuri Khas. She alongwith her husband and relatives went at PS where her daughter was found sitting with accused present in the court. On seeing them her daughter started weeping and when they returned back her daughter told her that accused Prashant had kidnapped her forcibly in a village after giving some intoxicant and committed rape upon her and pressurized her to get marry with him.
17. It has been argued by Ld. Defence Counsel that testimonies of prosecution witnesses are not reliable as they have deposed inconsistently and there are many contradictions in their statements.
18. Ld. Defence Counsel argued that in the complaint Ex.PW2/A, it has been mentioned that the prosecutrix was made to eat intoxicated material. In the statement given to Ld. M.M., it has been mentioned that she was given tea and after taking the tea she became unconscious. In the court the prosecutrix, as PW1 also SC No.160/13 State vs. Prashant Page 12 of 31 stated that she was made to drink tea. It has been further argued by Ld. Defence Counsel that in the statement in the court PW1, deposed that the accused Prashant put a knife against her neck and he threatened her to accompany him downstairs. In the statement Ex.PW2/A made to the Ld. M.M., she stated that she silently followed her. Besides, in the statement made to the police PW1 deposed that accused indulged in sexual intercourse with her every night during the period from the date of kidnapping, i.e. intervening night of 9th & 10th May to 14.05.2011 but in the statement made to Ld. M.M. Ex.PW2/A, she stated that accused committed rape on her thrice in five days.
19. It has also been argued by Ld. Defence Counsel that prosecution has failed to examine a witness Ms. Shikha who allegedly produced the victim. On perusal of PW5, I find that victim Rajni was produced by Ms. Shikha. He also deposed that on that date a lady Ms. Shikha produced the victim before the duty officer and told the duty officer that victim was standing in front of her house situated in ----------------------------------X1----------------------------- and she was crying and Ms. Shikha further told him that when she asked the victim as to why she was crying the victim told her that she had left her house SC No.160/13 State vs. Prashant Page 13 of 31 without telling anyone and she was afraid that her parents would beat her due to that reason.
20. On the other hand, Ld. Additional Public Prosecutor submitted that the minor contradictions are liable to be ignored in view of the principles of law laid down by Delhi High Court in State v. Jai Hind, 2012 VI AD (Delhi) 170 wherein it was held that:
"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon SC No.160/13 State vs. Prashant Page 14 of 31 without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
21. On scrutinizing the testimonies of prosecution witnesses, I do not find any contradiction on material point and the minor contradictions as highlighted above are liable to be ignored in view of the principles of law laid down in State v. Jai Hind, (supra), relied on by Ld. Additional Public Prosecutor for the State.
22. It has also been argued by Ld. Defence Counsel that knife which was allegedly used by the accused has not been recovered and this may provide benefit to the accused.
23. On perusal of testimonies of PW1, I find that she deposed that the accused put a knife on her neck. In cross examination PW1 admitted that knife which was put by accused on her neck was not recovered from him in her presence.
SC No.160/13 State vs. Prashant Page 15 of 3124. The testimonies of other witnesses are silent about the recovery of knife. Although, it has been established on record that the alleged knife which was put on the neck of the prosecutrix could not be recovered by the police yet this would not provide any benefit to the accused as the testimony of prosecutrix on careful examination has been found reliable and trustworthy and same has been supported by other prosecution witnesses.
25. In view of the above reasons, discussion and evidence on record I come to the conclusion that the prosecution has successfully proved all the ingredients of offence of kidnapping, abducting or inducing woman to compel her marriage, etc. because evidence on record has established that accused kidnapped a minor girl, the prosecutrix, from the lawful guardianship of her parents with intent to compel her to marry with her and when she refused to marry with him, the accused repeatedly committed sexual intercourse with the prosecutrix against her will and without her consent.
Sexual intercourse was committed by the accused with the prosecutrix SC No.160/13 State vs. Prashant Page 16 of 31
26. PW1 on this aspect deposed that when she regained her consciousness she found herself in a room. Accused Prashant used to beat her and used to pressurize her to get marry with him and she used to refuse and turn down his proposal. Accused indulged in sexual intercourse with her on every night during that period. PW2 and PW3 on this aspect deposed that their daughter on return at their house told them that the accused used to pressurize her for marriage and he indulged in sexual intercourse with her against her will and without her consent.
27. PW7 proved MLC of prosecutrix as Ex.PW7/A and she also deposed that on examination hymen of the patient was found torn. In cross examination, it was put to the prosecutrix, PW1 that she herself went to the house of Prashant and that on her asking accused took her for roaming. She denied the suggestion that no physical relations were developed with the accused or that he never committed rape on her or that she made a concocted story in connivance with her father or that the accused was falsely implicated as father of the prosecutrix was annoyed with the accused due to their friendship. Thus, the suggestion put to the witnesses have indirectly proved that SC No.160/13 State vs. Prashant Page 17 of 31 the prosecutrix was taken by the accused and that the prosecutrix was having friendly terms with the accused. PW9 proved MLC of the accused as Ex.PW9/A wherein it has been mentioned that he was capable to perform sexual activity.
28. The testimonies of DW1 and DW2 are regarding the character of the accused. Their testimonies are silent about the present occurrence. The detailed testimony of the prosecution witnesses have already been reproduced here in above. The same are not being repeated for the sake of bravity. It would be suffice to mention here that PW1 on this aspect deposed that accused indulging with sexual intercourse with her on every night. She also told that during 10.05.2011 to 14.05.2011 the accused kept her under threat that if she would raise any hue and cry or make protest, he would kill her.
29. The accused in his statement recorded u/s 313 of the Code has denied that he indulged in sexual activity with the prosecutrix. In cross examination PW2 denied the suggestion that in his presence his daughter prosecutrix told the police officials that she was in love with accused and she wanted to get marry with him. He also denied the SC No.160/13 State vs. Prashant Page 18 of 31 suggestion that his daughter had gone from the house with her own as a quarrel had taken place between him and his daughter or that accused was falsely implicated by him due to inimical relations. In her statement Ex.PW2/A, the prosecutrix stated that the accused committed rape with her thrice without her consent. There is no cross examination of the prosecutrix on the point of her consent. On the basis of the evidence on record and particularly discussed here in above it is held that the prosecution has established that the accused committed sexual intercourse with the prosecutrix repeatedly three times against her will and without her consent.
Causing hurt by means of poison, etc.,
30. The prosecutrix on this aspect deposed that she was made to sit in a white colour car which was standing on the road. Accused Prashant sat on the rear seat where she was made to sit. The vehicle was driven by the driver and at some distance accused Prashant gave tea in a cup which he was carrying in a flask. She took that tea and as soon as she finished the tea she became unconscious and when she regained her conscious she found herself in a room. In cross examination, she stated that during 4-5 days accused used to gave her something intoxicated or SC No.160/13 State vs. Prashant Page 19 of 31 drug whereby she used to get unconscious. There is not even suggestion to the witness that no such intoxicating or stupefying or unwholesome drug or substance was given to the prosecutrix. The testimony of the prosecutrix has established that she was administered something intoxicated many times, firstly, on the date when she was kidnapped and subsequently on the date when she was in confinement of the accused. The evidence has also established that the prosecutrix used to get unconscious whenever she used to drink tea or other food/drink and that intoxicating or unwholesome drug was administered to the prosecutrix as accused wanted to marry with the prosecutrix and when she refused to marry him he sexually assaulted her.
31. It has been argued on behalf of Ld. Defence Counsel that there is delay of about 2 ½ months in lodging the report and that delay is fatal to the prosecution case. On perusal of the testimony of prosecution witnesses, I find that PW1 on this aspect deposed that because of the fear she did not lodge any complaint with the police at PS Khajuri Khas on 14.05.2011. Her parents brought her to house and she narrated all the incidents to her parents. PW2 on this aspect deposed that he handed over the SC No.160/13 State vs. Prashant Page 20 of 31 complaint regarding missing of his daughter to ASI Gopal Dass but he did not hand over the receipt of the same. On 14.05.2011 when they were called at the P.S., ASI Gopal Dass told him that if he would initiate any proceeding, he would falsely implicate him. He asked ASI Gopal Dass to send her daughter for her medical examination but he refused to do so and after threatening him, his daughter was sent with him by ASI Gopal Dass. On 20.05.2011 he made a complaint to Commissioner of Police for initiating action against accused persons. He proved his report as Ex.PW2/A. He also stated that he made a complaint in the court of Ld. M.M. and Ld. M.M. ordered for registration of FIR and therefore, her daughter was taken to GTB Hospital for medical examination. In cross examination he denied the suggestion that prior to the date of incident he was having a quarrel and due to that accused was falsely implicated in this case.
32. On perusal of complaint Ex.PW2/A, I find that he has explained the reason of making complaint on 20.05.2011. I am satisfied with the explanation made in the complaint Ex.PW2/A and in statements of PW2 and PW1, the prosecutrix. As the explanation is satisfactory, I am of the view that delay in lodging the FIR is not fatal to SC No.160/13 State vs. Prashant Page 21 of 31 the prosecution case. Moreover, the delay as pleaded by Ld. Defence Counsel is not of 2 and 1/2 months but it is delay of only a week. Complaint is dated 20.05.2011. It was entered in the office of Dy. Commissioner on 23.05.2011 and in the office of Additional Commissioner of Police (Vigilance) on 25.05.2011.
33. My decision finds support by the principles of law laid down in case, State of Punjab v. Gurmit Singh And Others, 1996 SCC (Cri) 316 wherein Apex Court observed that:
"7.The trial court also disbelieved the version of the prosecutrix regarding rape. It found that the testimony of the prosecutrix did not inspire confidence for the reasons
(i) that there had been delay in lodging the FIR and as such the chances of false implication of the accused could not be ruled out.***
8.***The trial court fell in error for discrediting the testimony of the prosecutrix on that account. In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged." [Emphasis supplied] SC No.160/13 State vs. Prashant Page 22 of 31
34. On considering the rival contention of Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel and on analyzing the prosecution evidence on record, I come to the conclusion that prosecution has proved its case against the accused beyond any reasonable suspicion and shadow of doubt that the accused Prashant committed offence of causing hurt by means of poison, etc., punishable u/s 328 IPC; offence of Kidnapping, abducting or inducing woman to compel her marriage, etc. punishable u/s 366 IPC; and offence of rape punishable u/s 376 IPC. The reasons which support my conclusion are firstly, that the testimony of prosecutrix, as discussed in detail here in above, on analyzing has been found consistent, reliable and trustworthy and it is safe to act upon on her testimony.
35. My decision finds support by a case Pardeep @ Sonu v. State, 2011 [2] JCC 1031. The Delhi High Court observed that:
"28. This is no more res Integra that conviction for offence under Section 376 of IPC can be based on the sole testimony of a victim as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550. However, the testimony of the victim in such cases is very vital and should be without inconsistencies SC No.160/13 State vs. Prashant Page 23 of 31 and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused." [Emphasis supplied]
36. Secondly, the prosecution evidence has achieved the standard of proof of proving a case as held in a case Ashok Narang v. State, 2012 II AD (Delhi) 481, wherein Delhi High Court has, inter alia, held that testimony of a single witness in a criminal trial is acceptable but the evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, and must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, the degree of proof had to be of a high standard and not a mere possibility of committing the said offence.
37. Thirdly, Ld. Defence Counsel or the accused has failed to create any reasonable suspicion or shadow of doubt in the testimonies of the prosecution witnesses during the cross examination or by adducing two defence witnesses.
SC No.160/13 State vs. Prashant Page 24 of 3138. Fourthly, the Ld. Defence Counsel by putting suggestions to the prosecutrix and her father has indirectly admitted that the accused took the prosecutrix with him for the purpose of roaming and that there was friendship between the accused and the prosecutrix and that the prosecutrix told the accused in the presence of her father that she was in love with the accused. These suggestions, to some extent, have further supported the prosecution case.
39. Fifthly, the accused has failed to prove that he was falsely implicated by the prosecutrix or her father due to enmity on account of quarrel which had taken place prior to the occurrence. Conversely, there is no evidence on record showing any motive or reason for the prosecutrix or her parents to depose against the accused particularly when the accused was their neighbour.
40. My view finds supports by a case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 1983 A.I.R. (S.C.) 753, wherein the Apex Court observed:
"***Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted.SC No.160/13 State vs. Prashant Page 25 of 31
The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites."
[Emphasis supplied]
41. Sixthly, the arguments oral or written of Ld. Defence Counsel were found not convincing on every aspect. This is also not believable that the father of the prosecutrix influenced the prosecutrix in incriminating the accused as he wanted to buy house of the father of the accused on minimum price. Not only the defence which have been taken during the trial have been found unconvincing but also it has been found on record that Ld. Defence Counsel has shifted his defence very frequently. Once it was pleaded that prosecutrix was in love with the accused. Subsequently, it was pleaded that a quarrel had taken place prior to the incident and due to that reason there was enmity between the parties and consequently the prosecutrix and her father falsely implicated the accused and lastly it was pleaded that father of the prosecutrix was a property dealer and he wanted to buy a house of father of the accused on minimum price and as father of the accused refused to sell his house so the father of the prosecutrix falsely implicated the accused in the SC No.160/13 State vs. Prashant Page 26 of 31 present case.
42. Seventhly, the testimony of prosecutrix has been supported by other witnesses. For example, PW4 proved arrest memo of accused as Ex.PW4/A, his personal search memo as Ex.PW4/B. PW5 proved the fact of recording of DD Entry No.41B. PW6 proved the fact of taking the samples of prosecutrix and handing over the same to IO and seizing of the same vide memo Ex.PW6/A which has also been supported by other witnesses.
43. Lastly, it is not only the duty of the judge to see that one innocent person should not be punished even if hundred offenders are allowed to go scot-free but also he has to see that the accused who has committed the crime must not go unpunished. It is also duty of the court to separate the grain from the chaff as held in case of Bhagwan Dass vs. State (NCT of Delhi), (2011) 6 SCC 396. While considering and analyzing entire prosecution evidence this court has come to the conclusion that all the oral, circumstantial and scientific evidence has proved that the accused Prashant Kumar committed offence of administering poison or stupefying, intoxicating or unwholesome drug to the prosecutrix and committed SC No.160/13 State vs. Prashant Page 27 of 31 sexual intercourse repeatedly with the prosecutrix forcibly against her will after giving threat to the prosecutrix. Therefore, it is bounden duty of this court to hold the accused guilty and convict him.
CONCLUSIONS
44. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has successfully proved its case against accused Prashant beyond reasonable suspicion and shadow of doubt that he committed offence of causing hurt to the prosecutrix by means of poison, etc., punishable u/s 328 IPC; offence of Kidnapping, abducting or inducing the prosecutrix to compel her marriage, etc. punishable u/s 366 IPC; and offence of rape on the prosecutrix punishable u/s 376 IPC. Accordingly, accused is held guilty and convicted for the offences punishable u/s 328/366/376 IPC. Announced in the Open Court Dated:01.07.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.160/13 State vs. Prashant Page 28 of 31 IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI SC No.160/13 State vs. Prashant FIR No.225/11 PS Khajuri Khas State Versus Prashant ORDER ON SENTENCE 10.07.2013 Present: Ms. Madhu Arora Addl. P.P. for the State.
Convict/accused in J.C. Sh. Navneet Singh and Sh. K.S. Chauhan, Advocates for the convict/accused.
I have heard arguments on the quantum of sentence.
2. It has been argued on behalf of Ld. Defence Counsels that accused/convict is a young boy of 20 years of age; he was doing private service; he had been in jail for about 9 months; he is very poor; and he has no previous criminal record. It has been prayed that lenient view in sentence may be taken and accused may be released on the sentence which he has already undergone as his life may be ruined if he is sent to jail.
3. On the other hand, it has been argued on behalf of Ld. Additional Public Prosecutor that deterrent SC No.160/13 State vs. Prashant Page 29 of 31 punishment may be awarded to the accused as case against the accused has been established by the prosecution.
4. Keeping in view the submissions and all relevant factors and circumstances in which the accused committed crime, it would be just and appropriate if moderate view in sentence is taken. Accordingly, convict/accused Prashant is sentenced to undergo rigorous imprisonment for 5 years and he is further sentenced to pay a fine of Rs.5,000/- in default simple imprisonment for one year for the offence punishable under section 328 IPC.
5. Convict/accused Prahsant is further sentenced to undergo rigorous imprisonment for 5 years and he is further sentenced to pay a fine of Rs.5,000/- in default simple imprisonment for one year for the offence punishable under section 366 IPC.
6. Convict/accused Prahsant is further sentenced to undergo rigorous imprisonment for 7 years and he is further sentenced to pay a fine of Rs.10,000/- in default simple imprisonment for one year and six months for the offence punishable under section 376 IPC.
7. All the sentences will run concurrently.
8. It is further ordered that if convict/accused Prashant has undergone any period in judicial custody, SC No.160/13 State vs. Prashant Page 30 of 31 that period will be set off against the sentence as provided U/s 428 Cr. P.C. As per judicial record accused has been in J.C. since 31.7.2011 to 08.5.2012 and 01.7.2013 to 10.7.2013.
9. Out of the fine amount, and after expiration of the period of appeal, a sum of Rs.10,000/- will be payable to the prosecutrix as compensation. Besides this compensation, she will also be entitled to get other compensation, if available to her under other laws.
10. The convict/accused Prashant be sent to imprisonment to serve the sentence.
11. A copy each of judgment and order on sentence is supplied to convict/accused Prashant free of cost.
File be consigned to Record Room.
Announced in the Open Court
Dated:10.07.2013 (DR. T.R. NAVAL)
Additional Sessions Judge, (SFTC)
Karkardooma Courts, Delhi
SC No.160/13 State vs. Prashant Page 31 of 31