State. vs Kulwant Singh on 22 July, 2008

[Cites 8, Cited by 0]

Delhi District Court

State. vs Kulwant Singh on 22 July, 2008

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IPC

State. Vs Kulwant Singh
s/o Guru Pal Singh
r/o H.No. F.3/231-232,Sultanpuri,
Delhi.

2W , 6 !X % $ *

1.1. Accused Kulwant Singh has been charge sheeted by

Police Station,Sultanpuri to face trial for offences punishable u/s

363/376 IPC.

1.2 On 21.12.2002, Smt. Nageena Begum appeared at the
2

Police Station and got recorded her statement to the effect that

she had one daughter & three sons. Her daughter "S" {real

name concealed} aged about 14 years had left the house on

18.12.2002 at about 1.00 P.M. She had not returned home. One

Kulwant Singh was a frequent visitor to their house. He had also

been missing since the same day. Complainant had searched

for her daughter "S" but in vain . She suspected that her

daughter had been enticed away by Kulwant Singh.

1.3 On the complaint above said s t u u/s 363 IPC was

registered. Wireless messages were sent all over India and

Delhi. Information was also sent to missing squad for search

"S" as well as Kulwant. During investigation school certificate

of "S" was collected to determine her age . On 5.2.03 at the

instance of complainant, "S" was recovered from the custody

of Kulwant. Accused Kulwant was arrested. Both "S" and

Kulwant were medico legally examined. Pulandas were

collected from the hospital. Statements of the witnesses were

recorded . Offence punishable u/s 376 IPC was added .
3

Statement of "S" u/s 164 Cr.P.C. was recorded on 21.2.03.

Pulandas were sent to F.S.L. Finding sufficient material

against the accused, challan was filed.

2.1 After complying with the provisions of Section 207

Cr.P.C., case was committed to the court of Sessions, which in turn

was assigned to predecessor of this court.

3.1 Predecessor of this court vide order dated 23.1.04

framed charges against the accused for the offences punishable

u/s 363/366/376 IPC , to which accused pleaded not guilty and

claimed trial.

4.1 Prosecution in support of its case has examined 16

witnesses.

4.2 Prosecutrix "S" (PW1) and Complainant Smt.

Nageena (PW3) proved the prosecution story, as regards taking

away of the prosecutrix "S" from the lawful guardianship of her

parents on 18.12.2002 and subjecting her to forcible sexual

intercourse till 4.2.03. Dr. Baljeet Singh (PW2) proved the

MLC of the prosecutrix on behalf of Dr. Monika . Dr. Naveen
4

Bhatt (PW6) and Dr.V.K. Jha (PW13) proved the MLC of

accused and his fitness to perform sexual intercourse. The

bone age of prosecutrix was also proved by Dr. Naveen Bhatt

(PW6), to be between 14 to 16 years . Sh.Dalbir Singh ,

Headmaster (PW8) proved the date of birth of prosecutrix, as per

school record as 2.7.88. Pardeep Kumar (PW14) proved the

FSL report of the pulandas sent for examination. Remaining

witnesses are police officials who proved various stages of

investigation.

5.1 Incriminating evidence appearing on record was put

to the accused . In his statement u/s 313 Cr.P.C. accused

denied having taken away the prosecutrix or having committed

sexual intercourse with her. He also denied that he had

administered any stupefying substance to her in a cup of tea. He

denied that prosecutrix was recovered from his custody. He

denied the school record of prosecutrix, as regards her date of

birth. He further stated that mother of prosecutrix was a

tenant in his house and she maintained illicit relation with
5

one Babloo @ Utpal Rai . Accused had forcibly evicted them

from the house and, therefore, he was falsely implicated in the

present case. Accused sought opportunity to lead defence

evidence but did not examine any defene witness. Defence

evidence was closed on the statement of counsel on 27.2.08, after he

filed an affidavit of the complainant dated 11.2.03 which was

marked as mark -X.

6.1 Shri Sanjay Soni, Ld.APP has argued that PW1 "S"

and PW3 Nageena have proved the prosecution case as regards

accused having taken away prosecutrix and subjecting her to

rape . The age of prosecutrix has been proved by these two

witnesses to be about 14 years at the time of incident . The age of

prosecutrix as proved by ossification test is consistent with the

age in school record . Shri Soni has also relied upon law laid

down in v%wyx x{zO|:} ~ y{ .[}#Xx 40& Hz x**X}- |N;

{z9*~ x - EE@ in support of his argument that school

record is more authentic to prove age and cannot be ignored.

It is further submitted that FSL report finds presence of
6

semen on the salwar of prosecutrix and also the vaginal swab. It

is also submitted that the police officials have proved various

stages of investigation and no irregularities have been pointed out

therein.

7.1 Shri A.K.Sharma, ld defence counsel has filed written

arguments . Credibility of school leaving certificate to prove

date of birth of prosecutrix has been challenged . It is submitted

that Head Master/Record Clerk of MCD School has not been cited

or examined. Reference has been made to MLC Ex.PW2/A

where the age of prosecutrix has been mentioned as 17 years. It

is argued that the statement of prosecutrix u/s 164 Cr.P.C.

completely exonerates the accused. The later verison is tutored,

since she was in the custody of her mother at that time. It is also

pointed out that a lady's underwear has been identified by

prosecutrix , though it was never seized . The story of being

intoxicated is also challenged. She remained in the company

of accused for more then a month and did not raise an alarm or

try to run away.
7

8.1 I have heard learned counsels and perused the record.

9.1 The most important question in the present case is

regarding the age of prosecutrix. I shall first deal with this issue

and then dwell upon other aspects. Prosecutrix "S" (PW1) has

deposed that she was 14 years old at the time of incident. There is

absolutely no cross examination of this witness as regards of

her age . There is no even a suggestion made to her that she

was more then 16 years or 18 years of age. Complainant Nageena

(PW3) has also deposed that her daughter was 14 years of age

at the time of occurrence. In her cross examination dated

6.9.06 she has deposed that date of birth record of prosecutrix

has been proved by Sh.Dalbir Singh (PW8) Headmaster of the

school, where her daughter last studied. There is no

suggestion to this witness, as well, regarding the age of

prosecutrix.

9.2 Dr. Naveen Bhatt (PW6) has proved the MLC of

prosecutrix Ex. Pw2/A and also the opinion of radiologist

opining the bone age to be between 14 to 16 years. This
8

witness was not cross examined . Sh.Dalbir Singh, Headmaster,

Nigam School (PW8) has proved the certificate of age Ex.Pw

8/A . As per this certificate the date of birth of "S" was

2.7.88. During cross examination this witness was directed to

produce the school record. He produced the relevant record

Ex.PW8/DA to Ex.PW8/DC. Ex.Pw8/DA is school leaving

certificate and Ex.PW8/DC is extract from admission register.

Both the documents record date of birth of prosecutrix to be

2.7.88.

9.3 From the evidence as noticed above, it is apparent

that the school record of prosecutrix mentions her date of birth as

2.7.88. She had left the house of her parents 18.12.02 . She was

therefore 14 years & about 5 months old, as per the school

record. Medical opinion regarding her age indicates the age

to be between 14 to 16 years. Since the bone age opined by the

doctor gives a margin of two years, I am of the opinion that

allowing further margin of error would not be proper.

Moreover, the age as per the school record corroborates the
9

medical opinion . Of course, the age as determined by

ossification test is only an opinion. Since in the present case

the age opined and the age as per school record are

corroborative, I find no reason to disbelieve the school

record. Moreover, in a similar situation , the Hon'ble Supreme

Court in Bhoop Ram's case (Supra) had accepted the entry in

school certificate to be authentic proof of age. I, thus hold

that prosecutrix was fourteen and half years old at the time of

occurrence.

10.1 The other issues which require adjudication are:

i) Taking away of the prosecutrix

from the lawful guardianship of

her parents.

ii) Subjecting her to illicit intercourse.

10.2. Prosecutrix "S" (PW1) in her testimony has

deposed that accused administered stupefying substance to her
10

and took her to some place in Punjab. After about a month she

was brought back to Delhi by sister of the accused . During

cross examination she deposed that she was not allowed to leave

the room but she did not raise alarm as she was under threat .

Accused also used to lock the room when, ever he left the same.

Complainant Nageena (PW3) has deposed that on

4.2.03 she along with the police found prosecutrix near the house

of sister of accused . On her pointing out they were

apprehended . She proved the recovery memo of her daughter

Ex.Pw 2/B and arrest of memo of accused Ex.PW 2/C.

Lady const. Phoolwati (PW9) is also a witness of

recovery of prosecutrix and arrest of the accused. She has

deposed that complainant pointed out towards them and they

were apprehended. This witness was not cross examined despite

opportunity. Const. Raj Singh (PW10) was also a witness to

the recovery of prosecutrix and arrest of the accused. This

witness was cross examined but his testimony could not be

shaken.
11

10.3 From the evidence as noticed above, it is established

that prosecutrix was taken away by the accused from the lawful

guardianship of her parents and recovered about a month later on

4. 2 .03 from his company. The version of prosecutrix that she

was administered stupefying substance in a cup of tea is too

difficult to be accepted , yet the factum of taking away is

established.

10.4 As already held in paras 9.3 above the

prosecutrix was only fourteen and helf years of age at the time

of being taken away. The charge for offence punishable u/s

363 IPC is therefore, established. The element of consent, if

any, is immaterial .

10.5 Since, the prosecutrix was also subjected to

sexual intercourse during this period of one and half month when

she remained in the company of accused as held in succeeding

para 11.5 charge for offence punishable u/s 366 IPC is also

established.

11.1 As regards the offence of rape, prosecutrix is the
12

best witness . Her testimony needs no corroboration . The

court only has to assure itself from some attending

circumstances . Prosecutrix "S" (PW1) has deposed that she

was raped by accused daily during the period she remained in his

custody at Punjab. She identified her salwar and an underwear

which were taken out from pulanda which had been sent to CFSL

Kolkatta. There was no cross examination of this witness as

regards sexual intercourse . On being recalled for cross

examination, she was confronted with some of her photographs

with the accused. She admitted the photographs and stated that

the same were taken in the house of accused where they

resided as tenant.

11.2 MLC of the prosecutrix Ex.PW2/B proved by Dr.

V.K.Jha as regards gynecological examination records ruptured

hymen, introitus admitting one finger easily . Vaginal smear and

salwar of prosecutrix were also seized, which were found to test

positive for presence of semen . In my opinion, the statement

of prosecutrix coupled with these attending circumstances
13

establish that she was subjected to sexual intercourse during

the period she remained in custody of accused. Her salwar and

vaginal smear had been taken shortly after her recovery from

the custody of the accused .

11.3 The arguments of Sh.Sharma that she has identified

her panty which was never seized at the time of her medical

examination, does raise some suspicion. But a deeper study

of her testimony reveals that she had deposed only about the

seizure of her salwar . It was only on opening of a parcel

received from FSL that she was shown a lady's underwear

which was exhibited as Ex.P1. She has not deposed,

anywhere that the underwear belonged to her.

A perusal of the FSL report reveals that it was

underwear of the accused which had been examined at the

FSL. MLC Ex.PW2/A of the prosecutrix specifically

records that salwar was being seized, as she was not wearing

any undergarment. Thus identification of underwear Ex.P1 by

prosecutrix cannot be said to be fatal to the prosecution as she
14

has not deposed that it was her underwear .

11.4 The fact that some photographs of the prosecutrix and

accused are on record does not in any manner indicate that

prosecutrix had consented to join the company of accused for

sexual adventure. She has explained in her testimony that

photographs were taken when the family of the prosecutrix

lived in the house of the accused as a tenant.

11.5 From the evidence as discussed above, it is patent

that the prosecutrix during her stay when the accused was

subjected to sexual intercourse. Even on the day when she was

recovered from the custody of the accused there was presence

of human supermatozia in her vagina and on her salwar. This

court in para 9.3 above has already held that prosecutrix was

fourteen and half years old at the time of occurrence. Any

sexual intercourse with a woman less then 16 years of age with

or without her consent is an offence punishable u/s 376 IPC .

The consent if any of the prosecutrix becomes immaterial in view

of the findings regarding her age. I, therefore, hold that the
15

accused also committed an offence punishable u/s 376 IPC.

12.1 Accused is accordingly convicted for the offences

punishable u/s 363/366/376 IPC. He be taken into custody.

(Narottam Kaushal )
Addl.Sessions Judge,Rohini Courts,
Delhi

Announced in open court
Dt. 18.7.08
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IPC

State. Vs Kulwant Singh
s/o Guru Pal Singh
r/o H.No. F.3/231-232,Sultanpuri,
Delhi.

1.1 Vide separate judgment dated 18.7.08, accused has

been convicted for the offence punishable u/s 363/366/376 IPC.

2.1 Sh.Sanjay Soni, Ld.APP on behalf of the state has
17

prayed for maximum sentence, as the victim was fourteen and

half years of age at the time of occurrence. It is further argued

that the accused forcibly detained prosecutrix in his custody for

a period of about one and half month.

3.1 Shri Dev Dutt Sharma ,Advocate on behalf of the

accused has argued that he is a married person having widowed

mother . His wife is due to deliver a baby in a period of about

three months. It is further argued that the applicant is not

previously involved in any other case.

4.1 I have heard Ld. counsels.

5.1 The fact that the accused was himself a young boy

and unmarried at the time of occurrence and is now a sole bread

winner for his widowed mother and expecting wife; is in my

opinion sufficiently mitigating circumstances to take a lenient

view. However, I find no circumstances to award a sentence less

than the minimum prescribed under the statute. I am, therefore, of

the opinion that ends of justice would be served if the accused

undergo Ð Ñ Ò:Ó1ÔÕÓÖ×*Ø5ÐÚÙWÛ;ØPÜ[× ÝÞ×-ÖßÑ;Û#à Û*áÞâUÛ;Ð Ø?Ñ Ö×*Ø ãÕä<Ûå× Ö8Ö1Û;á<æ+Û
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6.1. As regards the offence punishable u/s 366 IPC,
ùö ù ü :î çWñ Pê[ü Yü ê !
ñ EñEî Pë î é
accused shall undergo

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7.1. As regards the offence punishable
èqòpë ó#õ;ó ö8÷ ø *

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8.1. All the sentences shall run concurrently . Benefit of

provision of Sec. 428 Cr.P.C. shall also be available to the

accused.

Copy of judgment and order on sentence be given to the

accused free of costs.
19

File be consigned to the record room.

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All the sentences shall run concurrently . Benefit of provision of Sec. 428 Cr.P.C. shall also be available to the accused.

Copy of judgment and order on sentence be given to the accused free of costs.

File be consigned to the record room.

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Delhi District Court

State. vs Kulwant Singh on 22 July, 2008