Delhi District Court
Irfan S/O Mohd. Khalil vs . on 23 July, 2011
1
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGECUM
ADDITIONAL SESSIONS JUDGE : INCHARGENE DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 03/10
Unique Case ID No. 02402R0315262009
State
Vs.
1. Irfan S/o Mohd. Khalil, R/o H.No. E126, Gali No.8, 3rd Pusta, Jagjeet
Nagar, New Usmanpur, Delhi.
2. Salim Khan @ Sallu S/o Mohd. Babu Khan, R/o H.No. E126, Gali No.8,
3rd Pusta, Jagjeet Nagar, New Usmanpur, Delhi.
3. Laiq Ahmed S/o Mohd. Rafiq, R/o H.No. E126, Gali No.8, 3rd Pusta,
Jagjeet Nagar, New Usmanpur, Delhi.
FIR No. 132/09
PS New Usmanpur
U/s 363/376(2)(g)/506 IPC.
Date of Institution : 19.01.2010
Date of Reserving the Judgement : 11.07.2011
Date of Pronouncement : 19.07.2011
J U D G E M E N T : Prosecution case emanates from the fact that on 14.04.09 at about 6am Safaya (name changed) went to fetch water from a hand pump situated outside her house. Irfan, who was residing on the ground floor of said house, gagged her mouth and took her inside the toilet. Salim @ Sallu was already S.C. No. 03/10 Page 1/44 2 present there. Both of them raped her one by one. They also threatened her to kill her parents, in case she would divulge this fact to anyone. On 16.04.09, again she went to fetch water from hand pump. This time also, both the accused persons raped her by dragging her inside the toilet room. When she took more than expected time, her mother also reached downstairs. When her mother called her, both accused persons managed good their escape. They left her while threatening of dire consequences. She narrated the entire incident to her mother. On 16.04.09, uncle of Salim reached at her house and threatened of dire consequences in case she would make any complaint to police. On 25.04.2009, she lodged her report with police. Her statement was recorded, which became bedrock of the case. Investigation was taken up. She was got medically examined. Her statement u/s 164 Cr.P.C was also got recorded. During the course of investigation, accused persons were arrested in the case. Investigation culminated into a charge sheet against accused Salim, Laiq and Irfan.
2. Charge for offences punishable under sections 363/506 read with section 34 IPC and 376(2)(g) IPC was framed against accused Irfan and Salim Khan. Besides a separate charge against accused Laiq Ahmed was framed for offence u/s 506 IPC, to which charges they pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined HC Jagbir Singh (PW1), Constable Puneet (PW2), HC Narayan Singh (PW3), HC S.C. No. 03/10 Page 2/44 3 Rajesh (PW4), HC Virender (PW5), Sh. Sanjay Khanagwal, ld. Metropolitan Magistrate (PW6), Dr. Monica (PW7), Dr. S. Kohli (PW8), Safaya (PW9), Shakila Khatun (PW10) and SI Ratnesh Kumar (PW11) in the case.
4. PW1 HC Jagbir Singh recorded FIR and proved photocopy of the same as Ex.PW1/A. PW2 Constable Puneet deposed that on 26.04.09 at about 3pm, he along with SI Ratnesh Kumar, IO and Constable Virender were present at 3rd Pusta, Jagjeet Nagar. Complainant Safaya and her mother Shakila Khatun met them there. Investigating officer prepared site plan of the place of occurrence, that is, at house of Anees Thelewala, situated at Gali No.8, Jagjeet Nagar, Delhi, at the pointing out of Safaya. Two persons came inside the house, whose names were revealed as Laiq Ahmed and Salim Khan. Safaya stated those persons to be the offenders, who committed rape upon her. He with the help of Constable Virender and investigating officer overpowered them. Investigating officer made inquiries from them vide memo Ex.PW2/A and Ex.PW2/B. Thereafter, both accused were taken to GTB Hospital for medical examination. Investigating officer had prepared arrest memo and personal search memo of both accused persons vide memo Ex.PW2/C to Ex.PW2/F. Later on accused Irfan was also arrested in this case. Investigating officer S.C. No. 03/10 Page 3/44 4 prepared his arrest and personal search memo Ex.PW2/H and Ex.PW2/I. Accused Irfan was also got medically examined. In the hospital, doctor gave sealed parcel, which were handed over to the investigating officer, who took the same into possession vide memo Ex.PW2/J. PW3 HC Narayan Singh was working as duty officer on 25.04.09 from 8am to 4pm. At about 3.05pm he recorded DD entry at serial No.9 to the effect that two boys namely Salim and Irfan had committed rape upon the person of Safaya, daughter of Abdul. He proved copy of said entry as Ex.PW3/A. PW4 HC Rajesh joined investigation of the case on 25.04.09. He along with the investigating officer, Safaya and her parents had gone to GTB Hospital for medical examination of Safaya, where she was medically examined. After her medical examination, she was given in the custody of her parents.
PW5 Head Constable Virender joined investigation of the case on 25.04.09. He took tehrir, recorded by the investigating officer, for getting the case registered. After getting the case registered, he gave copy of FIR and original tehrir to the investigating officer. On the following day at about 34pm, he along with Constable Puneet and investigating officer went at the place of occurrence, where Safaya and her mother met them. He detailed similar facts as unfolded by Constable Puneet (PW2). S.C. No. 03/10 Page 4/44
5 PW6 Sh. Sanjay Khanagwal recorded statement of prosecutrix Safaya u/s 164 Cr.P.C. He proved the same as Ex.PW6/A. He also proved the certificate issued by him beneath said statement at point C. He further proved the application to obtain copy of aforesaid statement as Ex.PW6/B, besides the application moved by investigating officer to record statement u/s 164 Cr.P.C as Ex.PW6/C. PW7 Dr. Monica, Sr. Resident, proved MLC of Safaya as Ex.PW7/A, which was prepared by Dr. Upasana.
PW8 Dr. S. Kohli proved MLCs of accused Salim Khan and Irfan as Ex.PW8/A and Ex.PW8/B respectively, which were prepared by Dr. Sumit.
PW9 Safaya is the prosecutrix.
PW10 Sakila Khatun is the mother of prosecutrix.
PW11 SI Ratnesh Kumar conducted investigation of the case. He deposed that on 25.04.09, on receipt of DD No.9A Ex.PW3/A at 3.05pm, he along with Constable Virender and Woman HC Rajesh went to the spot, that is, house of Anees Tehlewala Gali No.8, Jagjeet Nagar, New Usmanpur. On reaching there, he came to know that complainant/victim had gone to PS Usmanpur with her mother. After that he along with other staff came to PS Usmanpur, where prosecutrix Safaya along with her mother met him. He recorded statement of Safaya Ex.PW9/A. He got her medically examined. He made endorsement Ex.PW11/A on statement of S.C. No. 03/10 Page 5/44 6 complainant and prepared rukka. He also got the case registered through Constable Virender. He searched for accused persons along with Cosntable Virender and Constable Puneet. On 26.11.09 he reached at house No. E126, Gali No.8, Jagjeet Nagar, 3 rd Pusta in search of accused persons, where Safaya met them. He prepared site plan Ex.PW11/B at her instance. He apprehended accused Salim and Laiq at the instance of prosecutrix, who were coming towards their house. He interrogated them, arrested them and prepared their personal search memos. He got both accused persons medically examined. Doctor handed over him two sealed pullanda sealed with seal of GTB Hospital, having blood sample, semen sample of accused Salim along with sample seal. He took the same into possession vide memo Ex.PW2/J. Thereafter, accused Irfan was also arrested in the case. He recorded his disclosure statement Ex.PW2/G, wherein he disclosed that he can get recovered the knife by which he threatened the complainant during the incident. Accused Irfan took out a knife from drawer of sewing machine, which was lying in his room situated at ground floor of the house situated at E126, Gali No.8, Jagjeet Nagar, New Usmanpur, Delhi. He prepared sketch of knife, which is Ex.PW5/B and it was taken into possession vide seizure memo Ex.PW5/C. He prepared site plan Ex.PW11/C of the place from where knife was recovered. He also got accused Irfan medically examined. On 27.04.09 all S.C. No. 03/10 Page 6/44 7 the accused persons were produced before the Court and were sent to JC. On 29.04.2007, he made application Ex.PW6/C for recording of statement of prosecutrix Safaya u/s 164 Cr.P.C. He also obtained copy of said statement vide application Ex.PW6/B. On 06.08.09, he got conducted bone xray of prosecutrix and collected report Ex.PW11/D and Ex.PW11/E.
5. In order to afford an opportunity to explain circumstances appearing in evidence against the accused persons, they were examined under section 313 Cr.P.C. They had admitted that PW9 Safina Khatun along with her mother PW10 Shakila Khatun were residing in Gali No.8, Usmanpur, on the first floor. They also admitted the fact that they used to work in the factory situated at the ground floor of aforesaid house, besides that they admitted the fact of installation of a hand pump on the ground floor near the latrine of aforesaid house. However, they had denied rest of the allegations levelled against them. They claimed themselves to be innocent. To defend themselves, they have examined Naresh Kumar Saini (DW1) and Mohd. Rashid (DW2) in their support.
6. I have heard Sh. Ravinder Khandelwal, ld. Public Prosecutor for the State and Sh. Mohd. Ikran, Advocate, for the accused persons and have perused the record.
7. It was submitted by ld. counsel for the accused that in the FIR S.C. No. 03/10 Page 7/44 8 Prosecutrix has given her age as 14 years, whereas as per ossification test, she was opined to be between 1718 years. In the complaint, two incidents dated 14.04.09 and 16.04.09 mentioned but FIR was lodged only on 25.04.09 as such there is delay in lodging the FIR. It was further submitted that latrine was so small and without any door, therefore the story set up by the prosecutrix regarding rape therein is improbable. Moreover, in her crossexamination, prosecutrix has deposed that no such incident took place. As such prosecution has failed to prove its case. Reliance was placed on Radhu vs. State of Madhya Pradesh, 2007 Cr.L.J. 4704; Avdesh vs. State of Haryana,2010 (4) RCR (Criminal) 154; and Sultan Singh @ Sultana vs. State of Haryana, 2010 (4) RCR 961 (Criminal).
8. Per contra, it was submitted by ld. Prosecutor that conviction can be based on the solitary testimony of prosecutrix and no corroboration is required. In the instant case, prosecutrix tried to resile from her earlier statement in the crossexamination. But the same was due to the fact that matter was compromised between the parties, and therefore there is no reason to disbelieve her testimony made in examinationinchief. Moreover, her testimony finds corroboration from her mother to whom she had informed about the incident and from the medical record. Even if there are some improvements in her testimony, but the same is of no S.C. No. 03/10 Page 8/44 9 consequence. As such it was submitted that accused persons are liable to be convicted for offence alleged against them.
9. I have given my considerable thoughts to respective submissions of the ld. counsels for the parties and have perused the record.
10. Testimonial potency of version of a victim of rape cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must be attached in evaluation of her evidence as in the case of an injured complainant or a witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act, which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for corroboration required in the case of an accomplice. The nature of evidence required in to lend assurance to the S.C. No. 03/10 Page 9/44 10 testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.
11. Hon'ble Apex Court in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain AIR 1990 SC 658 laid down that a woman, who is the 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. The court observed as under : "A prosecutrix of a sexoffence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must be attached in S.C. No. 03/10 Page 10/44 11 evaluation of her evidence as in the case of an injured complainant or a witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act, which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for corroboration required in the case of an accomplice. The nature of evidence required in to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence."
12. Similar view is taken in State of Punjab Vs. Gurmeet Singh 1996 (2) SCC 384 and Omprakash Vs. State of U.P. (2006) 9 SCC 787.
13. From the judicial decisions rendered by Hon'ble Apex Court the law S.C. No. 03/10 Page 11/44 12 as regards the credibility of the testimony of prosecutrix may be summarized thus:
(1) There is no rule of law that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix. But as a matter of prudence, the necessity of corroboration must be present to the mind of the Judge.
(2) There may be circumstances in a given case which might make it safe to dispense with such a corroboration.
(3) On the other hand, there may be factors in a case tending to show that the testimony of the prosecutrix suffers from infirmities in a manner so as to make it either unsafe or impossible to base a finding of guilt to the same. Some of the salient factors of this type may briefly be stated thus:
(a) circumstances showing on the part of prosecutrix an animus against the accused;
(b) where the question of want of consent is material, circumstances tending to show consent: e.g., absence of material showing an attempt at resistance; absence of any marks of struggle;
(c) attempt in improvement or exaggeration in the version as attempted by the prosecutrix;
(d) conduct on the part of the prosecutrix, inconsistency with the S.C. No. 03/10 Page 12/44 13 credibility of the version e.g., omission to make a disclosure at the earliest opportunity.
(e) element of artificiality or unnaturalness in the story as attempted by the prosecutrix, and
(f) absence of signs of rape in the findings of the medical examination or on chemical analysis.
14. Now turning to the case in hand, the most material witness is the prosecutrix PW9 herself. She has unfolded that in the year, 2009 she was residing in gali No.8, Usmanpur, Delhi. She could not give the date and month, but deposed that it was in the year, 2009 and the day was Wednesday. She had gone to fetch water from hand pump at about 6am. She used to reside on the first floor whereas hand pump was on the ground floor near the latrine of her house. Accused Irfan and Saleem dragged her and took her in the latrine. They removed her clothes and committed rape upon her. On the Jumme Raat, their uncle accused Laiq threatened her that in case she would disclose about the incident to anybody then he will kill her with knife. After about 10 days of the incident, she had gone to fetch water on the hand pump, where accused Saleem caught hold of her by his hand and dragged her. Her father called her, thereupon accused Saleem and Irfan, who were in the latrine escaped. That day no wrong act was committed upon her. Next day she went to S.C. No. 03/10 Page 13/44 14 police station with her parents and lodged her complaint Ex.PW9/A, which bears her thumb impression at point 'A'. She was taken to hospital for medical examination, where she was medically examined by the doctor. She had shown to the place of incident to police. She was also brought before the Court, where her statement was recorded by the Magistrate, which is Ex.PW6/A and bears her thumb impression at point 'B'. She narrated the entire incident to the Magistrate. Accused Saleem and Laiq were arrested in her presence, vide arrest memo Ex.PW2/D and Ex.PW2/C and their personal search was conducted vide memo Ex.PW2/E and Ex.PW2/F respectively. She did not inform the incident, which took place on Wednesday earlier to anybody as accused Saleem and Laiq had threatened her with dire consequences. She was also shown knife by accused Irfan. After second incident, she narrated the entire incident to her parents. After two days of the first incident, she was again raped by both accused persons, namely, Irfan and Saleem after taking her into latrine forcibly. She identified the knife Ex.P1 to be the same with which she was threatened by accused Irfan.
15. Perusal of record goes to show that this witness was examined on 15.11.2010. At that time none of the accused chose to crossexamine her. Thereafter, an application for recalling the witness for the purpose of crossexamination was moved. In the interest of justice application was S.C. No. 03/10 Page 14/44 15 allowed. Thereafter, when she appeared for crossexamination, at that time she stated that nobody shut her mouth nor took her inside the latrine and nobody committed rape upon her. Thereupon, she was cross examined by the ld. Prosecutor and in crossexamination she admitted that on 15.11.2010 she had appeared before the Court and had deposed on oath, but she tried to deny the contents of the statement dated 15.11.2010. Law regarding hostile witness is now well settled that evidence of a witness declared hostile is not wholly effaced from record and that part of evidence, which is otherwise acceptable can be acted upon. Reference may be made to well settled decisions of Hon'ble Supreme Court--Bhagwan Singh v. State of Haryana, (1976) 2 SCR 921 : Air 1976 SC 202; Rabinder Kumar Dey v. State of Orissa, (1976) 4 SCC 233: AIR 1977 SC 170 and Sayed Akbar v. State of Karnatka, (1980) 1 SCR 95 : AIR 1979 SC 1848 - where it was held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
16. 1991 Cr.L.J. 2653 (1), Khujji alias Surendra Tiwari V. State of S.C. No. 03/10 Page 15/44 16 M.P is a direct authority on the point in hand. In that case also, examinationinchief of the witness was recorded on 16.11.76, when he identified all the assailants by name. His crossexamination commenced on 15.12.76. In that crossexamination, he stated that since the accused had their backs towards him, therefore, he could not see their faces. On the basis of that statement, it was submitted that evidence regarding identity of the accused was rendered highly doubtful and it would be hazardous to convict the appellant solely on the basis of identification of such a wavering witness. Hon'ble High Court came to the conclusion, which was up held by Hon'ble Apex Court that during one month period that elapsed since the recording of his examinationinchief, something transpired which made him shift his evidence on the question of identity to help the appellant. His statement in crossexamination on the question of identification of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examinationinchief. As such, it was observed that there was no material contradiction to doubt his testimony.
17. Present case stand on a much better footing, inasmuch as, it is a matter of record that after the application under section 311 Cr.P.C moved by accused for recalling prosecutrix and her mother was allowed, on 04.03.11 both the witnesses appeared and it was stated that matter has S.C. No. 03/10 Page 16/44 17 been compromised and proceedings for quashing of FIR has been filed before Hon'ble High Court. On the subsequent date i.e. 08.04.2011 Court was informed that petition has been dismissed. Thereafter, on 05.05.2011 prosecutrix appeared for crossexamination and they deposed that nobody shut her mouth nor took her inside the latrine nor committed rape upon her. Then she was crossexamined by ld. Public Prosecutor and she admitted that matter has been compromised and therefore she is not deposing against the accused persons. As such explanation has come in the testimony of prosecutrix herself as to why later on she tried to resile from her earlier statement. But that is no reason to discredit her examinationinchief. At the most, it can be said that in view of the fact that she has tried to change the stand, her testimony may be scrutinized with care and requires corroboration.
18. Ample corroboration is available on record, inasmuch as, record reveals that on 25.04.09 father of prosecutrix made a call to PCR regarding commission of rape upon her daughter by two boys, namely, Saleem and Irfan. On the basis of this information, DD No.9A Ex.PW3/A was recorded. On receipt on this DD, SI Ratnesh Kumar along with Constable Virender and HC Rajesh went to house of Anees Thelewala, Gali No.8, Jagjit Nagar, New Usmanpur, where he came to know that complainant/victim had gone to PS Usmanpur. Accordingly, he came back S.C. No. 03/10 Page 17/44 18 to police station. There prosecutrix Safaya met them and she made statement Ex.PW9/A inter alia to the effect that he along with her family members reside on the first floor of house belonging to Anees Thelewala, Gali No.8, Jagjit Nagar, Usmanpur, Third Pusta, Delhi. On 14.04.09, she had gone downstairs to fetch water from hand pump at about 6am. Irfan who reside on the ground floor shut her mouth and dragged her forcibly in the latrine where Saleem @ Sallu was also present. Both committed rape upon her turn by turn and threatened her in case she disclosed about the incident to anybody, then they will kill her parents. She became scared and did not disclose the incident to anybody. Again on 16.04.09, she went to hand pump to fetch water. Saleem shut her mouth and dragged her in the latrine. When she tried to raise alarm, Irfan showed her a knife and threatened her to kill, in case she raised alarm. Both forcibly took her to latrine and committed rape upon her. When her mother came in search of her and called her, then both accused escaped. While going, they threatened her to kill, in case she disclosed about the incident to anybody. Her mother took her to the room, then she narrated the incident to her mother. On the same day, Laiq, uncle of Saleem, came to her house and thereatened to kill all the famimly members in case any complaint is made in the police station. They became scared and did not disclose about the incident to anybody. However, she went to police station on 25.04.09 and S.C. No. 03/10 Page 18/44 19 then lodged the complaint. Under these circumstances, the initial statement of the prosecutrix which became bedrock for investigation of the case reveals that here also prosecutrix has given a clear and vivid version about the commission of rape upon her by accused Saleem and Irfan on 14.04.09, and thereafter on 16.04.09. She also stated about threats given by coaccused Laiq not to lodge report with police, otherwise her whole family will be eliminated.
19. Thereafter, prosecutrix was taken to GTB Hospital, where she was medically examined by Dr. Upasana, who prepared her MLC Ex.PW7/A. Since Dr. Upasana has left services of hospital, as such Dr. Monica appeared and deposed that as per MLC, Safaya aged about 14 years was brought before Dr. Upasana for medical examination. It was a case of sexual assault. The history given before the doctor was of sexual assault by two boys known to her twice, that is, around 14.04.09 and 15.04.09. On medical examination, hymen was found torn. As such this history given to the doctor is another corroborative piece of evidence to the statement of prosecutrix.
20. Not only that, an application for recording statement of prosecutrix under section 164 Cr.P.C was moved by SI Ratnesh before Ms. Shivali Sharma, Metropolitan Magistrate on 29.04.09. The application was assigned to PW6 Shri Sanjay Khanagwal, ld. Metropolitan Magistrate, who S.C. No. 03/10 Page 19/44 20 has deposed that prosecutrix was produced before him by SI Ratnesh Kumar and after ascertaining voluntary nature of prosecutrix, he recorded her statement Ex.PW6/A and gave his certificate regarding correctness of the proceedings. A perusal of this statement goes to show that prosecutrix stated before the ld. Metropolitan Magistrate that one day at about 6am, she went downstairs in order to fetch water, then Irfan and Saleem who used to reside in her neighbourhood forcibly shut her mouth and dragged her in the latrine, and bolted the door from inside. Irfan showed her a knife and threatened her to kill. Irfan shut her mouth and Saleem removed her clothes. Firstly Saleem committed rape upon her and thereafter Irfan also committed rape upon her. Her mother came in search of her and thereafter both boys escaped. Uncle of Saleem threatened to kill her father and asked her to take money and not to inform the police, failing which he will kill them. Under these circumstances, the statement made by the prosecutrix before ld. Metropolitan Magistrate is another corroborative piece of evidence.
21. Although a slight discrepancy has appeared, inasmuch as, in the initial statement prosecutrix has stated about commission of rape upon her twice, that is, on 14.04.09 and 16.04.09. However, before the doctor the date given by her was 14.04.09 and 15.04.09. Before ld. Metropolitan Magistrate, she has stated about commission of rape only once. At the S.C. No. 03/10 Page 20/44 21 best, it can be said that there is some discrepancy, but that ipso facto is not sufficient to caste doubt on the veracity of the statement of prosecutrix.
22. There are catena of decision to this effect. In Hari Om vs. State (NCT), MANU/DE/0102/2010, it was observed by Hon'ble High Court that minor contradiction on peripheral issues which do not constitute core of the matter, cannot be said to be material and not much importance can be attached to these minor discrepancies, which are otherwise bound to come in the case of truthful witnesses. Since everyone does not have equal power of observations, retention and reproduction, which varies from individual to individual, there is bound to be some difference while giving details unrelated to the main incident. The approach of the Court while evaluating the testimony of a witness should be to see whether his/her evidence, when examined as a whole, appears to be true, or not. If the impression formed by the Court is that the witness appears to be truthful and trustworthy, his/her evidence needs to be scrutinized taking into consideration the discrepancies and infirmities pointed out in his/her evidence and the Court should then evaluate the testimony of the witness, to decide whether the evidence given by him/his in the Court stands impeached or shaken, rendering him/her unworthy of reliance, in the light of the discrepancies or infirmities pointed out in his/her testimony. This is more so, when the witness comes from a lower strata of the society and, S.C. No. 03/10 Page 21/44 22 therefore, does not have the temperament or the capacity to match the skills and training of an experienced lawyer who crossexamined him/her in the court. Minor discrepancies in the testimony of such witness, which are not relaed to the core issue involved in the case, need not be given much importance and the testimony of such witnesses should not be discarded on account of such minor discrepancies or infirmities.
23. A. Shankar vs. State of Karnatka, 2011 VII AD (SC) 37 it was held by Hon'ble Apex Court as under : "In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence S.C. No. 03/10 Page 22/44 23 brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
"Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police vs. Saravanan & Anr., AIR 2009 SC 152; Arumugam vs. State, AIR 2009 SC 331; Mahendera Pratap Singh vs. State of uttar Pradesh, (2009) 11 SCC 334 : Dr. Sunil Kumar Sambhudayal Gupta & Ors. vs. State of Maharasthra, JT 2010 (12) SC 287; Vijay @ Chinee vs. State of M.P., (2010) 8 SCC 191; State of U.P. vs. Naresh @ Ors., (2011) 4 SCC 324; and Brahm Swaroop & Anr. vs. State of U.P., AIR 2011 SC 280].
24. Dealing with the aspect of contradictions, inconsistencies and exaggeration or embellishments, Hon'ble Apex Court in Krishna Mochi vs. State of Bihar, (2002) 6 SCC 81, has observed as under : "If a whole body of the testimony is to be rejected because the S.C. No. 03/10 Page 23/44 24 witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stage. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that i must be disregarded in all respect as well. The evidence has to be satisfied with care. One hardly comes across a witness, whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery or embellishments. An attempt has to be made to separate the grain from the chaff."
25. In view of these authoritative pronouncements, the discrepancies, if any, are trivial in nature. In all the statements made at different stage of the proceedings, prosecutrix has succinctly described the role of each accused and there is no reason to disbelieve her testimony.
26. Besides the fact that testimony of prosecutrix finds corroboration from her earlier conduct, viz making statement before the doctor and before ld. Metropolitan Magistrate, her testimony also finds substantial corroboration from her mother PW10 Shakila Khatoon, who has deposed that in the year, 2009 she along with her family was residing at the house S.C. No. 03/10 Page 24/44 25 of Anees at Gali No.8, Usmanpur, Delhi. Her daughter went to fetch water from hand pump situated on the ground floor in front of the latrine. They were residing on the first floor of the house. When her daughter did not come, she became suspicious and went downstairs. She saw accused Saleem and Irfan running away after coming out of the latrine. She went to latrine and saw her daughter was not having pyjama and underwear. She took her daughter in her room and asked her on which she told her that two days prior to the incident accused Saleem and Irfan raped upon her and both threatened her to kill in case she would tell facts to anybody. She further informed that on the said date accused persons committed rape upon her after showing the knife and they forcibly took her daughter in latrine and raped her. Accused Laiq came to her house and threatened that he will kill her family, if they make any complaint against accused Saleem and Irfan. Due to fear they could not register the FIR. However, after two days, she along with her husband and daughter went to PS and the FIR was registered. Her daughter was taken to GTB Hospital for medical examination, where she was medically examined. This witness was subjected to lengthy crossexamination. It is pertinent to know that examinationinchief of this witness was also recorded on the same day, that is, on 15.11.2010 when her daughter was examined and even this witness was not crossexamined on that day. Subsequently, an application S.C. No. 03/10 Page 25/44 26 for recalling this witness for the purpose of crossexamination was moved and she appeared in the witness box on 05.05.2011. By that time parties had already settled their dispute and they had even gone to Hon'ble High Court for getting the FIR quashed. Due to that reason although her daughter tried to change her statement, but this witness stood the test of crossexamination and denied the suggestion that her daughter did not inform her anything or that no threat was given to her by accused Laiq or that no such incident had taken place with her daughter. Her testimony is worthy of credit and there is no reason to disbelieve the same. Although she is not an eyewitness to the entire incident, but she is witness to the surrounding circumstances, inasmuch as, when she went in search of her daughter she saw both accused running away from latrine and she went to latrine and found her daughter not wearing her undewear and pyjama. She brought her daughter to her house, where entire incident was narrated to her.
27. The information given by the prosecutrix to her mother is another corroborative piece of evidence as admissible in evidence under section 157 read with section 8 of the Evidence Act. The factum of making the complaint and the terms thereof become relevant as subsequent conduct. Such a conduct is relevant under section 157 read with section 8 of Indian Evidence Act. In Emperor Vs. Phagunia Bhuran AIR 1926 Pat. 58, it S.C. No. 03/10 Page 26/44 27 was observed as under : "If the girl went to her relatives straight after the occurrence and complained on her own initiative, there is no doubt that her conduct would have a direct bearing upon and connection with the occurrence itself, but if she only answered questions, her statements would be mere hearsay."
28. The previous statement of prosecutrix given to doctor and her parents are admissible in evidence u/s 157 of the Evidence Act and this proposition of law was recognized by Hon'ble Supreme Court in Madan Lal vs. State of J&K, 1988 SC 385, where the statement made by the prosecutrix to her mother soon after the incident was accepted as a corroboration of her testimony in the Court. This authority was also relied upon in Hari Om vs. State (NCT), 2010 III AD (Delhi) 504.
29. In Rameshwar Kalyan Singh Vs. State of Rajasthan (1952) 3 SCR 377 also, it was observed that when the raped girl instinctively ran home to her mother, but not finding her there, she went to sleep and when the mother returned four hours later, the girl told her what had happened, it was held that the statement made to the mother fell within the ambit of section 157 read with section 8 illustration (J) of the Evidence Act. In the instant case also prosecutrix immediately, after the incident, returned home and narrated the incident before her mother. As such making of this stage to the mother is relevant under section 157 read with section 8 S.C. No. 03/10 Page 27/44 28 Illustration (J) of the Evidence Act.
30. Similar view was taken by Hon'ble High Court in 2010 II AD (Delhi) 117, Nannu Gupta @ Babu vs. State and in 2010 Cr.L.J. 1281 Hari Om vs. State. It was held that previous statement of prosecutrix are admissible in evidence under section 157 of the Evidence Act and this proposition of law was recognized by Hon'ble Apex Court in Madan Lal vs. State of J&K, 1988 SC 386, where statement made by the prosecutrix to her mother soon after the incident was accepted to be corroborative piece of evidence. In view of these authoritative pronouncements, information of the incident given by prosecutrix to her mother after the incident, thereafter to the doctor and then to ld. MM are corroborative piece of evidence against the accused.
31. Much emphasis has been laid by the ld. counsel for the accused by submitting that place of incident is a latrine, which is measuring 2 X 6 feet. He had submitted the site plan Ex.PW11/D1 correctness of which was admitted by the investigating officer of the case and therefore it is submitted that in such a small latrine, the act of rape could not have been committed. No such presumption can be drawn. Moreover, the best person to give explanation in this regard was either the prosecutrix or her mother. Record reveals that prosecutrix Safaya was not crossexamined at all by the accused, whereas no such suggestion was given to mother of S.C. No. 03/10 Page 28/44 29 prosecutrix. Although in her statement under section 164 Cr.P.C, prosecutrix had stated that accused closed the door of latrine and her mother admitted in crossexamine that there was no door in the latrine on the ground floor, but that again does not give rise to any presumption that latrine which was covered by curtain as reflected in the site plan and the photograph, the act of rape could not have been committed.
32. Moreover, occular testimony of prosecutrix also finds corroboration from medical evidence, inasmuch as, her hymen was found to be torn. The factum that hymen was found torn is suggestive of the fact that rape was committed upon prosecutrix. For holding this fact, I am fortified with Hariom vs. State 2010 Cr.L.J. 281, wherein Hon'ble High Court observed that absence of hymen draws expression of the fact that she had been subjected to rape.
33. Further more, both the accused were medically examined and the doctors have opined that there was nothing to suggest that they were incapble of committing sexual intercourse.
34. The result of the aforesaid discussion is that occular testimony of prosecutrix finds substantial corroboration from her initial statement Ex.PW9/A, on which police machinery was set in motion, coupled with history given before the doctor and the statement made before the ld. Metropolitan Magistrate and medical evidence. The same finds also S.C. No. 03/10 Page 29/44 30 corroboration from testimony of her mother to whom entire incident was narrated by the prosecutrix and who to some extent is also an eyewitness to the surrounding circumstances.
35. I have gone through authorities relied upon by the ld. counsel for the accused persons. With due respect, none of the authorities helped him in any manner, inasmuch as, ration decidendi of Radhu (supra) rather supports submission of the ld. Prosecutor that a finding of guilt in a rape case can be based on the uncorroborated evidence of the prosecutrix. The Hon'ble Apex Court further observed that absence of injury on the private part of the victim would not falsify the case of rape nor constitute as offence of consent. ld. counsel for the accused has basically relied upon this authority, inasmuch as, while observing that finding of a guilt can be based on uncorroborated evidence of prosecutrix, it was also observed that Court should bear in mind that false charges of rape are not uncommon either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case. In the instant case, no enmity, ill will or grudge and spite has been alleged by any of the accused either against the prosecutrix or any of her family members for which reason they will falsely implicate the accused persons. Rather at the cost of repetition, it may be mentioned that there is substantial corroboration to S.C. No. 03/10 Page 30/44 31 the testimony of prosecutrix from other mateial available on record.
36. Reliance was also placed by the ld. counsel for accused on Avdesh (supra). That was a case where there were variation in age of prosecutrix and therefore it was observed that age favourable to the accused is required to be taken and therefore prosecutrix was about 18 and ½ years and she was a consenting party. Therefore, the accused was held not to be guilty of rape. With due respect this authority as well as Sultan Singh (supra) does not help the accused, inasmuch as, in her initial statement made before the police, she had given her age as 14 years. Similar age was given by her before the doctor as well as before ld. Metropolitan Magistrate. Even when she appeared in the witness box, at that time also the incident had taken place in the year, 2009 and she had come to deposed before the Court on 15.11.2010. At that time she gave her age as 16 years. Meaning thereby at the time of commission of offence, she was 14 years of age. However, as per ossification test, her age has been opined to be between 16 to 18 years. Even if it is taken that since two views are forth coming regarding age of the prosecutrix and therefore the view favourable to accused has to be taken, even then accused does not get any benefit because in a case of rape u/s 114A of Evidence Act, there is a presumption regarding absence of consent.
37. Section 114A of Evidence Act reads as under : S.C. No. 03/10 Page 31/44 32 "114A. Presumption as to absence of consent in certain prosecutions for rape.--In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent."
38. Under these circumstances, it was for the accused to allege and then to prove the circumstances from which it could be inferred that prosecutrix was a consenting party to the at act of sexual intercourse. It is not the defence of any of the accused that commission of sexual intercourse was with the consent of prosecutrix. Moreover, by no stretch of imagination, it can be presumed that the prosecutrix would have consented for sexual intercourse by two persons at one time. Under these circumstances, both these authorities do not help the accused.
39. Coming to the stand of the accused, perusal of statement recorded under section 313 Cr.P.C goes to show that same is one of denial. According to accused Laiq, four or five months ago some altercation took place between family members of prosecutrix and his employees and he was falsely implicated in this case. Accused Saleem took plea that mother S.C. No. 03/10 Page 32/44 33 of prosecutrix wanted to marry her daughter with him, which was refused by him. Thereupon, at the instance of her mother, prosecutrix has lodged a false complaint against him. Accused Irfan has taken the plea that he is friend of Saleem. Mother of prosecutrix wanted to get prosecutrix married with Saleem, who was not agreeable for the marriage. She had also talked to him about this proposal, and he told her that Saleem is not interested in marrying prosecutrix and she should not pressurize him. Thereupon, she also falsely implicated him in this case.
40. DW1 Naresh Kumar Saini, Architect, prepared the site plan Ex.PW11/D1.
DW2 Mohd. Rashid has simply deposed that all accused bears good character and there are no complaints against them.
41. As regards plea taken by accused Laiq that three or four months prior to the lodging of FIR, a dispute had taken place between family members of prosecutrix and his employees, firstly, it may be mentioned that this fact has not been proved. Moreover, this plea taken by accused Laiq has seen light of the day for the first time in his statement recorded u/s 313 Cr.P.C. Even no suggestion was given either to the prosecutrix or to her mother that there was any altercation between them and his employees or due to that reason accused has been falsely implicated. As such this plea does not inspire any confidence. As regards plea taken by S.C. No. 03/10 Page 33/44 34 accused Saleem and Irfan, suggestion was given to Shakila Khatoon, mother of prosecutrix that her daughter wanted to marry Saleem, to which he was not agreeable, and as such she falsely implicated the accused in this case. This suggestion was denied by the witness rather she went on stating that after the incident father of Saleem wanted to get Saleem married with her daughter but her daughter was not agreeable and they declined the proposal. Even if for the sake of arguments, it is presumed that there was some proposal of marriage of prosecutrix with accused Saleem which could not taken place, that cannot be a ground for false implication in such a serious case which involves chastity, honour and prestige of the prosecutrix herself. In Kukan vs. State of Haryana, 2005 (2) RCR (Crl.) 194 also a plea was taken that accused was falsely implicated because he had declined her marriage proposal a year back. Repelling the contention, it was observed by Hon'ble Supreme Court that people do not become inimical merely because matrimonial proposals are declined. If accused was to be implicated for his refusal, he could have been involved in some other case. These observations aptly applied to the case in hand because if at all Saleem had declined marriage proposal, why for that reason, Irfan and Liaq would have been implicated. Under these circumstances, this plea taken by the accused persons is not proved.
42. Moreover, in a tradition bound Indian Society, no person would S.C. No. 03/10 Page 34/44 35 lodge false complaint by putting the honour and dignity of minor daughter by levelling such false allegations. Hon'ble Supreme Court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat 1983 (2) Recent Criminal Report 192 had noticed peculiar conditions and circumstances in which a girl or woman, who happens to be victim of rape, in Indian conditions would find herself and so will be reluctant to disclose such incident to anyone and it is observed as under : "Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or woman in India make false allegations of sexual assault... 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 possible from amongst the urban elites. Because : (1) A girl or a woman in the tradition bound nonpermissible Society in India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down upon by the society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near S.C. No. 03/10 Page 35/44 36 relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame and account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not want to avoid publicity on account of fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the crossexamination by counsel for the culprit, and the risk of being disbelieved, act as deterrent."
43. In the face of these factors, if allegations are made, they have ring of truth.
S.C. No. 03/10 Page 36/44
37
44. Lastly, it was submitted that there is delay in lodging the FIR, inasmuch as, the incident is alleged to be dated 14.04.09 and 16.04.09, whereas the FIR was lodged only on 26.04.09. It has come in the testimony of prosecutrix as well as her mother that prosecutrix was threatened initially by accused Saleem and Irfan not to report matter to anybody, failing which she will have to face dire consequences. With this result, initially when incident of rape took place on 14.04.09, she even did not disclose to her mother. It was only on 16.04.09 that she disclosed facts to her mother. Even then immediately the report was not lodged because accused Laiq had threatened them of dire consequences, if any report is lodged. It was only thereafter that they lodged the complaint with police.
45. The delay in registration of FIR in such like cases has been the subject matte for consideration before Hon'ble Sureme Court as well as Hon'ble High Court in number of cases. In 2011 (1) C.C.Cases (SC) 322 State of U.P. vs. Chhoteylal, there was belated FIR wherein it was observed by Hon'ble Supreme Court that sufficient explanation was given that report was not lodged immediately keeping in view the honour of the family and therefore, delay was not considered to be fatal. Similarly in 2006 (4) RCR(Crl.) 192, Dildar Singh vs. State of Punjab (SC), there was rape on a girl student below 16 years by her teacher. She disclosed S.C. No. 03/10 Page 37/44 38 when she became pregnant and FIR was lodged. Similarly plea was taken that there was considerable delay in lodging the FIR and delay in lodging the FIR was fatal to the case of prosecution. Hon'ble Supreme Court observed that court cannot overlook the fact that in sexual offences delay in lodging 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. A girl in a tradition bound non permissive society would be extremely reluctant even to admit that any incident, which is likely to reflect upon her chastity, had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing anyone about the incident in the circumstances cannot detract from her reliability. In normal course of human conduct an unmarried girl would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate such incident. overpowered, as she may be, by a feeling of shame her natural inclination would be to avoid talking to anyone, lest the family name and honour brought into controversy. Thus, the delay in lodging the first information report can not be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first S.C. No. 03/10 Page 38/44 39 information report. Substantially, similar view was taken in 2005 (2) RCR (Crl.) 194 Kukan Vs. State of Haryana;. 2005 (2) RCR (Crl.) 210 Farukh vs. State of Haryana; 2002 (2) Crl. Court Cases 64 (P & H) Akhtar vs. State of Haryana; AIR 2009 Supreme Court 2190 Satyapal Vs. State of Haryana and 2006 (4) RCR 192 Dildar Singh Vs. State of Punjab.
46. Result of the aforesaid discussion is that there is ample material on record to connect accused persons with the crime, viz;
i) In the shape of oral testimony of prosecutrix.
ii) History given by prosecutrix to her mother and the doctor.
iii) Statement u/S 164 CrPC made by prosecutrix before Metropolitan
Magistrate.
iv) Medical evidence.
47. Under these circumstances, I hold that prosecution has been able to establish beyond reasonable doubt that on 14.04.09 at about 6am and also on 16.04.09, accused Irfan and Salim Khan committed gang rape on Safaya on 14.04.09 and 16.04.09 and also criminally intimated her by threatening that if she happened to disclose the facts of having committing rape upon her to anyone, she will face dire consequences. It has also been proved by the prosecution that accused Laiq Ahmed also committed criminal intimidation by threatening prosecutrix Safaya to her and her S.C. No. 03/10 Page 39/44 40 family members, if she happened to disclose facts of having committed rape upon her by accused persons, namely, Irfan and Saleem, to anyone. Accordingly, accused Irfan and Saleem Khan are held guilty and convicted for offences punishable under sections 506/34 IPC and 376 (2)(g) IPC. However, accused Liaq is held guilty and convicted for offence punishable under section 506 IPC.
Announced in the Open Court (Sunita Gupta) On this 19th day of July, 2011. District JudgecumASJ, I/CNE, Karkardooma Courts, Delhi.
S.C. No. 03/10 Page 40/44 41 IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGE-CUM- ADDITIONAL SESSIONS JUDGE : INCHARGE-NE DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 03/10
Unique Case ID No. 02402R0315262009 State Vs.
1. Irfan S/o Mohd. Khalil, R/o H.No. E-126, Gali No.8, 3rd Pusta, Jagjeet Nagar, New Usmanpur, Delhi.
2. Salim Khan @ Sallu S/o Mohd. Babu Khan, R/o H.No. E-126, Gali No.8, 3rd Pusta, Jagjeet Nagar, New Usmanpur, Delhi.
3. Laiq Ahmed S/o Mohd. Rafiq, R/o H.No. E-126, Gali No.8, 3rd Pusta, Jagjeet Nagar, New Usmanpur, Delhi.FIR No. 132/09
PS New Usmanpur U/s 363/376(2)(g)/506 IPC.
Date of Institution :- 19.01.2010 Date of Reserving the Judgement :- 19.07.2011 Date of Pronouncement :- 23.07.2011 ORDER ON SENTENCE
1. Vide separate order dated 19.07.2011 accused Saleem and Irfan were convicted for offence u/sec. 376 ( 2) (g) IPC and Section 506 IPC while accused Laeek was convicted for offence u/sec. 506 IPC.
2. Today I have heard ld. Addl. PP for the State and ld. Counsel for the convicts on the point of sentence.
3. ld. Counsel for convicts prayed for lenient view on the ground that antecedents of all the accused are clean. They are victims of circumstances. As such, a liberal view be taken. On the contrary, ld. Addl. PP for the state submits that there is no ground for taking any lenient view keeping in view the seriousness of the offence. S.C. No. 03/10 Page 41/44
42
4. Needless to say, the offences committed by the accused persons are very serious and grave in nature. Both the accused Saleem and Irfan have been convicted for committing gangrape upon the prosecutrix and thereafter they also threatened her not to report the matter to anybody failing which she will face dire consequences. Thereafter, accused Laeek also threaten to eliminate prosecutrix and her family members in case she report the matter to the Police. With the result although the incident took place on 14.04.2009 and 16.04.2009, but the report could not be lodged immediately and after mustering courage the report was lodged on 25.04.2009. Hon'ble Supreme Court in Madan Gopal Kakkar vs. Naval Dubey and anrs. 1992 (2) Crimes 169 pointed out with deep concern that though all sexual assault on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offence committed on children. This due to the reason that children are ignorant of the act of rape and are not offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young ones. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms.
Keeping all this in mind, the legislature in its wisdom provided the punishment for gangrape as under.
Section 376(2) whoever ...................
...................
...................
...................
...................
...................
(g) commits gangrape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may be for life and shall also be liable to fine:
provided that Code may, for adequate and special reason to be mentioned in the judgement, impose a sentence of imprisonment of either description for a term of less ten years.
S.C. No. 03/10 Page 42/44
43 Offence committed by accused persons-
Section 506 IPC reads as under:
Punishment for criminal intimidation- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc. - And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years or to impute, unchastity to a women, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
5. It was submitted by counsel for the accused that para 1 of Section is not attracted inasmuch as during the pendency of the trial there is no allegation of threat to the prosecutrix or to her family members. This submission is devoid of merit inasmuch as the punishment has to be awarded on the basis of allegations made in the complaint. There are clear allegations made by the prosecutrix that threat was administered to eliminate her and her family members. Under these circumstances para II of this Section is attracted in the instant case.
6. Considering the facts and circumstances detailed above coupled with the fact that a gruesome act was committed by the convict by which they had not only defiled the body of the prosecutrix but also put an indelble mark on her person which shall haunt throughout her life that is she is a rape victim, the accused does not deserve any leniency in punishment. However, keeping in view the mitigating circumstances that they are not previous convicts, they are sentenced as under.
Accused Saleem and Irfan For offence u/sec. 376(2)(g) IPC, they are sentenced to undergo rigorous imprisonment for a period of ten years and they are also directed to pay fine in the sum of Rs.5000/- each. In default of payment of fine, they are sentenced to undergo SI for a period of one year.
For offence u/sec. 506 IPC, they are sentenced to undergo RI for a S.C. No. 03/10 Page 43/44 44 period of two years and are also directed to pay fine of Rs.3000/- each in default of payment of fine they are to under SI for a period six months.
Both the substantive sentences are to run concurrently. Accused Laeek He is sentenced to undergo RI for a period of two years and is also directed to pay fine of Rs.3000/- each in default of payment of fine they are to under SI for a period six months.
7. Accused will get benefit of Section 428 CrPC during which period they remained in custody either during investigation or trial.
8. Copy of the order be supplied to all the accused free of cost.
Announced in the Open Court (Sunita Gupta) On this 23rd day of July, 2011. District Judge-cum-ASJ, I/C-NE, Karkardooma Courts, Delhi.
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