Delhi District Court
State vs . Subhash on 9 November, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 68/2012
Unique Case ID No.: 02404R0208442012
State Vs. Subhash
S/o Sh. Daya Ram
R/o Jhuggi No. N22, B130,
Kaushal Puri, Azadpur,
Delhi
(Convicted)
FIR No.: 99/2012
Police Station: Adarsh Nagar
Under Section: 376 Indian Penal Code
Date of committal to Sessions Court: 18.8.2012
Date on which orders were reserved: 8.11.2012
Date on which judgment was announced: 8.11.2012
JUDGMENT:
(1) As per the allegations, in the month of February and March 2012 at N22, B94 Kaushal Puri, Railway Road, Azadpur, the accused Subhash committed rape upon the prosecutrix 'P' (name of the prosecutrix is withheld as this is a case under Section 376 IPC) D/o Ram Avtar, aged about 14 years. It has also been alleged that the accused Subhash fraudulently or dishonestly induced the prosecutrix 'P' for sexual St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 1 intercourse with him on the pretext and promise to marry her and thereby deceived the prosecutrix 'P'.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 26.4.2012 a complaint was received from the office of the Commissioner of Police, Delhi wherein one Ram Avtar made made allegations of rape on her daughter by one Subhash a resident of the same area on the promise of marriage. The said complaint was marked to SI Upkar Kaur pursuant to which she called the complainant Ram Avtar, his wife Sunita and the prosecutrix 'P;
at Police Station Adarsh Nagar and got the prosecutrix medically examined from BJRM Hospital. Thereafter SI Upkar Kaur got the present case registered after making her endorsement on the said complaint. On 28.4.2012 the statement of the prosecutrix 'P' was recorded by the Ld. MM wherein the prosecutrix 'P' had told the Ld. MM that she was in love with one Subhash who promised her to marry and on this ground he made physical relations with her but thereafter he backed out to his promise. On 9.5.2012 the accused Subhash was apprehended from Railway Road Azadpur and arrested in this case. After completion of investigations charge sheet was filed before the Court. CHARGE:
(3) Initially charge under Section 376 Indian Penal Code was settled against the accused Subhash to which he has pleaded not guilty and St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 2 claimed trial. However, on 8.11.2012 on the basis of the testimony of the prosecutrix 'P' an additional charge under Section 420 Indian Penal Code against the accused to which he also pleaded not guilty and claimed trial.
EVIDENCE:
(4) In order to prove its case the prosecution has examined as many as Thirteen Witnesses as under:
Complainant/ Prosecutrix/ Public witnesses:
(5) PW8 Ram Avtar Singh is the father of the prosecutrix who has deposed that he has been residing at N22/B94, Kaushal Puri, Railway Road, Azadpur, Delhi since the year 1984 with his family consisting of his wife Sunita Devi and two children namely 'P' aged about 18 years and son namely Satyam aged about 13 years. According to him, his daughter 'P' was studying in class 7th in the month of March 2012 when she told his wife and thereafter to him that she was in love with accused Subhash since many days and Subhash promised her to marry her and on that promise he had also physical relations with her. The witness has further deposed that thereafter he along with his wife and his daughter 'P' went to the house of accused Subhash and contacted father of accused Subhash but Subhash and his father refused for marriage. According to him, again after one week they went to the house of accused Subhash but his father did not agree for marriage.
St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 3 (6) A specific Court Question was put to the witness that when the father of the accused refused to marry his daughter, did the accused consent for marriage and what was his stand, to which the witness has explained that the accused only said he would marry but actually did not marry and thereafter ran away/ absconded from his house. (7) He has proved having five a written complaint to the police which is Ex.PW8/A (running into two pages). The witness has also deposed that the police took his daughter to the hospital and got her medical examination and thereafter she was taken to Rohini Court where her statement was got recorded through the Ld. MM. He has correctly identified the accused Subhash in the Court.
(8) In his crossexamination the witness has deposed that he does not remember the exact date of birth of his daughter 'P' but states that she was born in the year 1994. He also does not recollect the date or year of his marriage. He has testified that his daughter 'P' is his elder daughter who was born after four years of his marriage. According to him, she was ten years old when she was brought from the village and got admitted in the school in class 5th and has voluntarily explained that there was a problem with the admission of his daughter and she was not being admitted in the school and it is for this reason on the asking of school authority he showed year of birth of his daughter as 1998. The witness has also deposed that there is no dispute between him and the family of accused with regard to the caste and has voluntarily explained that they St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 4 both belong to the same Harijan community. He is not aware why the father of the accused had refused for marriage of his daughter to the accused. He does not recollect the date when the father of accused refused for marriage of his son with his daughter. He is unable to tell after how many days the accused ran away/ absconded from his house and has voluntarily explained that he was made to run away from his house (Bhagaya gaya tha). According to the witness, he only knew that he had run away to his native village but he is unable to tell the details of the village and states that the village is somewhere in Distt. Jaunpur. He has testified that he had told the police that the accused had run away from his house. However, when confronted with his statement Ex.PW8/A the said fact was not found so recorded. He has denied the suggestion that the father of accused had never refused for marriage between the accused and his daughter but was only annoyed on his conduct and not willing to talk to him. The witness has denied the suggestion that he had filed this complaint only on account of misunderstanding between himself and the father of accused but has admitted that the elders of his family and community have now intervened and all the misunderstandings have been cleared and the family of the accused had consented to marriage and his daughter also wanted to marry the accused.
(9) PW9 Smt. Sunita Devi is the mother of the prosecutrix who has deposed that she is residing at B94, Kaushalpuri, Azadpur Railway St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 5 Station, Delhi along with her family comprising of her husband and two children i.e. one daughter 'P' aged about 1718 years and one son namely Satyam Kumar, aged around 1213 years. According to the witness, her daughter 'P' was studying in class VII but now she is not going to any school. She has deposed that three four months ago, her daughter 'P' told her that she was having a friendship with Subhash and was in love with him and also told her that accused Subhash promised her to marry and on the said promise he had a physical relationship with her. The witness has further deposed that she told these facts to her husband after which she along with her husband and the prosecutrix 'P' went to the house of accused Subhash where accused Subhash and his father met them. She has testified that they informed all the facts to father of accused Subhash and talked about the marriage of 'P' with accused Subhash but the accused Subhash and his father refused for the marriage.
According to her, they requested them for the marriage but they refused for the same and after fourfive days they again went to the house of accused and requested for the marriage but accused Subhash and his father again refused for the marriage. She has also deposed that thereafter they went to their native village in district Azamgarh, UP after which they made a complaint to the police and police took her daughter to the hospital for medical examination.
(10) In her crossexamination the witness is unable to tell the date or year of birth of her daughter 'P'. She does not recollect the date or St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 6 year of her marriage. She has deposed that she is totally illiterate and is unable to tell after how many year of her marriage, her daughter 'P' was born and has voluntarily deposed that in so far as she recollect she was born after threefour years of her marriage. The witness has testified that her daughter was born in her village and stayed there. According to her, the prosecutrix 'P' was 10 to 11 years old when she was brought from the village and states that she had already studied till class 5th in the village. She has further deposed that when she was brought to Delhi she was got admitted in the school in class 5th and had studied till class 7th in Delhi. She has also deposed that there is no dispute between her and the family of accused with regard to the caste and has voluntarily deposed that they both belong to the same Harijan community. She is not aware why the father of the accused had refused for marriage of her daughter to the accused and has voluntarily explained that he only said that he will get his son married in his native village to some girl there. (11) On a specific Court Question the witness has deposed that she is not aware if after Subhash had gone away to the native village at Azamgarh and whether he was got married there or not. She has denied the suggestion that the father of accused had never refused for marriage between the accused and her daughter but was only annoyed on the conduct of her husband and not willing to talk to them. The witness has denied the suggestion that her husband had filed this complaint only on account of misunderstanding between him and the father of accused but St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 7 has admitted that the elders of her family and community have now intervened and all the misunderstandings have been cleared and that the family of the accused has consented to marriage and her daughter also wanted to marry the accused.
(12) Prosecutrix 'P' has been examined as PW10 who has deposed that she is residing along with her family comprising of her parents and one brother namely Satyam aged about 1213 years. According to her, now she is not studying in any school but in the last academic session she was studying in class VII in Govt. girls Senior Secondary School, Azadpur, Delhi. She has testified that after March, 2012 she did not attend her classes of class VII and had just received her results. The prosecutrix 'P' has further deposed that she knew accused Subhash since she became aged about 15 years and was friendly rather in love with him. According to her, the accused promised her for marriage and on his promise he made physical relations with her on two occasions, but after making physical relations with her, he refused to marry her. She has testified that thereafter she told these facts to her parents and her family went to the house of the accused Subhash but parents of the accused Subhash refused for marriage. She has deposed that accused Subhash was also present there but he also did not marry her and his parents told them that godbharai rasam of the accused Subhash was already conducted and his marriage was already fixed with another girl. The witness has also deposed that they again tried to contact with accused St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 8 Subhash and his family members but they ran away to their native village in the district Azamgarh, UP. She has testified that her father made a complaint to the police pursuant to which police came to their house and she was taken to the hospital by the police for medical examination and her medical examination was conducted there. According to her, police also took her to Rohini courts before Ld. MM and her statement was recorded by the Ld. MM in the chamber which is Ex.PW10/A. She has specifically deposed that the accused Subhash cheated her on the promise of marriage and made physical relations with her on said promise.
(13) In her crossexamination by the Ld. Defence Counsel the witness has admitted that accused Subhash has not refused to marry her but it was only his father who was adamant not to get her married with the accused Subhash. She has also admitted that she is still willing to marry with accused Subhash and has voluntarily added that she had heard that he was engaged to some girl in the village and in case if he is not married, she still intend to marry him. The prosecutrix has further admitted that her family and also the family of the accused have now compromised all the disputes with the intervention of the elders of their family and the community and she does not wish to pursue the present litigation.
St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 9 Medical witnesses:
(14) PW7 Dr. Shipra Rampal has deposed that on 10.05.2012 she was working as Radiologist at BJRM hospital and on that day patient the prosecutrix 'P' was produced before medical board for her age estimation.
She has proved having examined her XRays and after examination by medical board, her estimated age was found to be between 1920 years. The witness has proved her detail report in this regard which is Ex.PW7/A bearing her signatures at point A, bearing the signatures of Dr. Javed Salam at point B and bearing the signatures of Dr. Abhilasha KK at point C which she identified having seen them while signing during course of her official duties. She has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard. (15) PW12 Dr. Mohit Tiwari has deposed that on 26.04.2012 the prosecutrix 'P' daughter of Ram Avtar, female 16 years was brought at the hospital by W/HC Prafulla for medical examination with alleged history of sexual assault. According to the witness, Dr. Shailendra Kumar JR, medically examined the said patient at the casualty under her supervision and no fresh external injury was seen at the time of medical examination and she was referred to Gynae department for further examination. He has proved that Dr. Shailendra prepared the MLC No. 40812 of the prosecutrix which is Ex.PW12/A and put his signatures at point A in his presence. This witness has also not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard. St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 10 (16) PW13 Dr. Seema has deposed in place of Dr. Meenu. According to the witness, on 26.04.2012 the patient 'P' daughter of Ram Avtar, female 16 years was brought to the hospital by W/HC Prafulla for medical examination with alleged history of sexual assault at the casualty and she was medically examined at the casualty by the doctors vide MLC Ex.PW12/A after which she was referred to the gynae department for further management. The witness has deposed that in the gynae department Dr. Meenu medically examined the said patient 'P' with alleged history of sexual assault on two occasions about one month back by a boy in the neighbourhood and the boy had given her some medicine after that. She has proved that after medical examination of the patient, Dr. Meenu gave her observations at encircled portion X to X1 bearing signatures of Dr. Meenu at point B on MLC Ex.PW12/A. According to her, on local examination no complaints of any injury to external genitalia and on per vaginal examination hymen was found torn. She has also deposed that samples were taken and handed over to the police in sealed condition with sample seal. She has also not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard. Police/ official witnesses:
(17) PW1 HC Rakesh is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 26.04.2012 a St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 11 pulanda sealed with the seal of MS. B.J.R.M.Hospital Jahangir Puri, Delhi containing Sexual assault Kit victim & Blood sample of accused which was deposited by W/SI Upkar Kaur in the Malkhana of Police Station Adarch Nagar on 26.04.2012 & 09.05.12 pursuant to which the entry was made in register No. 19 vide mud No. 3460 & 3525 dt.
26.04.12 & 09.05.12 which are Ex.PW1/A and Ex.PW1/B respectively. According to him, the case property has been deposited in FSL Rohini vide R/C No. 45/21/12 Dated 1/06/12 which is Ex.PW1/C by Ct. Puran vide receipt No. 1073 dated 1/06/12 which is Ex.PW1/D. This witness was not cross examined by Ld. Defence Counsel despite opportunity being given.
(18) PW2 Ct. Puran is also a formal witness who in his examination in chief by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 01.06.12 he received two sealed parcels from the MHC(M) Police Station Adarsh Nagar, Delhi vide R/C No. 45/21/12 and deposited in the FSL Rohini vide receipt No 1073 dated 01.06.12. He has proved that the seals of the parcels remained intact. This witness was not cross examined by the Ld. Defence Counsel despite opportunity being given.
(19) PW3 HC Balraj is a formal witness who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.). He has proved that on 09.05.2012 the accused Subhash was St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 12 arrested vide memo Ex.PW3/A and his personal search was conducted vide memo Ex.PW3/B. According to the witness, he got the accused medically examined vide MLC No. 5692/12 at Bhagwan Mahavir Hospital Pitam Pura Delhi and has proved the seizure memo of exhibits of accused Subhash which is Ex.PW3/C. This witness has not been cross examined by Ld. Defence Counsel despite opportunity being given. (20) PW4 W HC Praphula is a formal witness who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.). She has deposed that on 26.4.2012 she got medically examined the victim 'P' at BJRM Hospital and has proved the seizure memo of exhibits of the prosecutrix which is Ex.PW4/A. She has not been crossexamined by the Ld. Defence counsel despite opportunity in this regard.
(21) PW5 HC Banwari Lal is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 26.4.2012 at 1900 hours he made Kayami vide DD No. 23A after receiving rukka from WSI Upkar Kaur and registered the FIR No. 99/12 copy of which is Ex.PW5/A. He has proved his endorsement on rukka which is Ex.PW5/B. According to him, copy of FIR along with the original rukka was handed over to WSI Upkar Kaur. The said witness has also not been crossexamined by the Ld. Defence Counsel despite St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 13 opportunity in this regard.
(22) PW6 Sh. Ramesh Kumar, Laboratory Assistant, Government Girls Senior Secondary School, Azadpur has brought the summoned record pertaining to the child 'P' daughter of Ram Avtar, R/o AIN22, B194, Kaushalpuri, Azadpur. According to the witness, as per the record the girl 'P' was admitted in the school in class VI on the basis of SLC of Nigam Primary Vidyalya, Azadpur Village and her date of birth as per the school record is 22.12.1998. He has proved the copy of the admission register which is Ex.PW6/A bearing the relevant entry at point encircled X; the copy of the SLC issued by the previous school which is Ex.PW6/B; copy of the application for admission from the pasting file which is Ex.PW6/C. The witness has deposed that he had been duly authorized by the Vice Principal to depose on behalf of the school which authorization letter is Ex.PW6/D. (23) In his cross examination by the Ld. Defence Counsel the witness has admitted that the date of birth entered in the school record is on the basis of SLC issued by the Primary school. He has admitted that no date of birth certificate or official document regarding age has been placed on record by the parents of the prosecutrix at the time of her admission.
(24) PW11 WSI Upkar Kaur is the Investigating Officer of the present case who has deposed that on 26.04.2012 she was posted at Police Station Model Town and was also Incharge of rape crises cell of Sub St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 14 Division Model Town. According to her, on that day a complaint with allegation of rape was marked to her by the SHO Police Station Adarsh Nagar after which she perused the complaint which is Ex.PW8/A and called the complainant Ram Avar, his wife Sunita and prosecutrix 'P' at Police Station Adarsh Nagar and enquired about the facts and they corroborated the facts mentioned in the complaint. She has testified that thereafter she took the prosecutrix 'P' to BJRM Hospital along with WHC Praphulla where she was medically examined and after her medical examination she collected MLC and WHC Praphulla handed over sexual assault kit in sealed condition with the seal of Hospital alongwith sample seal to her which she seized vide seizure memo Ex.PW4/A. She has proved that thereafter she made endorsement vide Ex.PW11/A on the above said complaint Ex.PW8/A. According to the witness, she also found photocopy of report book of class 6th of the prosecutrix 'P' and her identity card of class 7th with the complaint which are Ex.PW11/B and Ex.PW11/C respectively. She has testified that thereafter she reached at Police Station Adarsh Nagar and handed over the rukka Ex.PW11/A and complaint Ex.PW8/A to the Duty Officer for registration of FIR and after registration of FIR she received the copy of FIR No. 99/12 and the original rukka for further investigation. She has proved having recorded the statement of the above said public persons and thereafter she reached at the place of incident i.e. house of the prosecutrix, with prosecutrix and St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 15 her parents where she prepared the site plan at the instance of the prosecutrix which site plan is Ex.PW11/D. The witness has testified that on 28.04.2012 she along with the prosecutrix 'P' and her parents reached Rohini Courts and on her application which is Ex.PX2, statement of the prosecutrix under Section 164 Cr.P.C. was recorded by the Ld. MM and she collected the copy of statement U/s 164 Cr. P. C. on her application which is Ex.PX4. She has further deposed that on 09.05.2012 she arrested the accused Subhash near railway road Azadpur vide Ex.PW3/A and his personal search was conducted vide Ex.PW3/B after which his disclosure statement was recorded vide Ex.PW11/E. The witness has also deposed that accused Subhash was taken to Bhagwan Mahavir Hospital, Pitampura for medical examination and after his medical examination she collected his MLC and seized the exhibits of the accused Subhash in sealed condition with sample seal vide seizure memo Ex.PW3/C. She has further deposed that the prosecutrix was also produced before the CWC, Sewa Kutir, Kingsway Camp and thereafter the prosecutrix was taken to BJRM Hospital for age determination test and she collected her age determination report Ex.PW7/A in which her estimated age was given as between 19 to 20 years. She has testified that during her investigations exhibits of this case were sent to FSL and after completion of investigation she prepared the charge sheet against accused Subhash and filed the same in the court. She has correctly identified the St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 16 accused Subhash in the Court.
(25) In her crossexamination the witness has deposed that she had asked for the date of birth certificate from the family of the prosecutrix but they did not give the same to her stating that she was born in the village and they were not having any certificate in this regard. According to her, she asked the family of the prosecutrix if there was an entry regarding her date of birth in the record of Panchayat of their village and has voluntarily deposed that they told her that she was born at home and there was no such entry. She has denied the suggestion that she did not deliberately collect the authentic record of date of birth of the prosecutrix only to show her as a minor in the present case or that when she interrogated the accused he told her in his disclosure that he was always ready and willing to marry the prosecutrix and has voluntarily explained that his parents have fixed his marriage in the village due to which reason they had refused to the alliance between himself and the prosecutrix. She has also denied the suggestion that she had recorded the disclosure on the asking of the parents of the prosecutrix. She has admitted that as per the ossification report the prosecutrix is a major more than 18 years of age and that by her physical appearance the prosecutrix appears to be more than 18 years of age and therefore it is for this reason she had got her ossification test conducted. The witness has further deposed that she is not aware of any talks of settlement between the family of the accused and of the prosecutrix and has voluntarily explained that she has only St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 17 heard about the same in the court. She has denied the suggestion that the present case has been falsely foisted upon the accused only under the pressure and at the instance of the parents of the prosecutrix. STATEMENT OF THE ACCUSED:
(26) After completion of prosecution evidence the statement of the accused was recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to him. The accused Subhash has admitted that having made physical relations with the prosecutrix but has denied that he refused to marry the prosecutrix at any point of time. He has stated that with the intervention of the eldest of their family and the community, his father and family had consented to his marriage with the prosecutrix. According to the accused he is still unmarried and wanted to marry the prosecutrix 'P'. He has admitted his guilt and has stated that he was ready and willing to marry the prosecutrix but came under the pressure of his family. He has placed on record the settlement deed which is Ex.PX1.
FINDINGS:
(27) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the testimonies of the various prosecution witnesses and the other material placed on record.
St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 18 (28) Firstly in so far as the identity of the accused Subhash is concerned, the same is not disputed. He is a resident of the same area and was previously known to the prosecutrix 'P' and her family members even prior to the alleged incident.
(29) Secondly as per the case of the prosecution the prosecutrix 'P' was a minor aged about 14 years and her date of birth as mentioned in the school record is 22.12.1998. However, it is evident from the record that there is no date of birth certificate of the prosecutrix on record nor any official documents has been placed on record to show her authentic date of her birth. Since there was no documentary proof of the date of birth of the prosecutrix 'P', therefore, her ossification test/ age determination test was got conducted on 8.5.2012 and her estimated age was found between 1920 years. Further, when the prosecutrix 'P' appeared before this Court to depose she gave her age as 18 years and this Court has also specifically observed that from her physical appearance she seems to be a major.
(30) Thirdly the prosecutrix 'P' has made specific allegations against the accused Subhash of having made physical relations with her on the promise of marriage.
(31) Fourthly after the evidence of the prosecution was closed, an application under Section 320 Cr.P.C. for compounding the offence with permission of the Court has been filed. This Court not being satisfied with the bonafide's of the accused and considering the peculiar condition St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 19 and also keeping in view the welfare and future of the prosecutrix, did not permit the compounding.
(32) Lastly in his statement under Section 313 Cr.P.C. the accused Subhash admitted the allegations involved and pleaded guilty for the same. According to the accused, he was ready and willing to marry the prosecutrix but it was under the pressure of his family members that he refused to marry her.
(33) This being the background and considering that the prosecutrix 'P' herself had admitted that she was a major (as per the ossification test report her estimated age being between 1920 years) and also conceded to make physical relations with the accused with her consent which consent according to her was given on account of the assurance/ promise made by the accused for marriage. Technically and legally the provisions of Section 376 Indian Penal Code are not made out against the accused Subhash who is acquitted of the same. (34) However, on the basis of the admission of guilt made by the accused Subhash in the presence of his counsel without any inducement, fear, force, coercion and pressure of any kind to the allegations that he had given an assurance/ promise to marry the prosecutrix 'P' which he did not honour being already engaged to some other girl in the village, I hereby hold that the consent by the prosecutrix was obtained by the accused by virtue of deception played by him upon the prosecutrix 'P' for which I hold the accused Subhash guilty of the offence under Section St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 20 420 Indian Penal Code and convict him accordingly.
(35) Be listed for arguments on sentence on 9.11.2012. Meanwhile, the report of the Probation Officer be called.
Announced in the open Court (Dr. KAMINI LAU) Dated: 8.11.2012 ASJII(NW)/ ROHINI St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 21 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 68/2012 Unique Case ID No. 02404R0208442012 State Vs. Subhash S/o Daya Ram R/o Jhuggi No. N22, B130, Kaushal Puri, Azadpur, Delhi (Convicted) FIR No.: 99/2012 Police Station: Adarsh Nagar Under Sections: 376 Indian Penal Code Date of conviction: 8.11.2012 Arguments heard on: 9.11.2012 Date of sentence: 9.11.2012 APPEARANCE: Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Convict Subhash in judicial custody with Sh. S.S. Bagga Advocate.
ORDER ON SENTENCE:
Vide a detailed judgment dated 8.11.2012 the accused Subhash has been held guilty of the offence under Section 420 Indian St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 22 Penal Code but acquitted of the charge under Section 376 Indian Penal Code.
The case of the prosecution is that in the month of February and March 2012 at N22, B94, Kaushal Puri, Railway Road, Azadpur, Delhi the accused Subhash made physical relations with the prosecutrix 'P'. It has also been alleged that the accused fraudulently and dishonestly induced the prosecutrix 'P' for sexual intercourse on the pretext and promise to marry her but thereafter refused to marry her on the ground that he was already engaged to some other girl in the native village and his father was not agreeable to their alliance.
On 8.11.2012 when the prosecutrix 'P' appeared before this Court, she made specific allegations against the accused Subhash of having made physical relations with her on the promise of marriage. After the evidence of the prosecution was closed, an application under Section 320 Cr.P.C. was also filed for compounding the offence with permission of the Court. This Court not being satisfied with the bonafide's of the accused and considering the precarious condition of the prosecutrix, did not permit the compounding. However, the accused Subhash informed the Court that he wanted to plead guilty for the allegations involved, his statement under Section 313 Cr.P.C. was recorded wherein the accused Subhash admitted the various allegations against him and pleaded guilty for the same.
St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 23
According to the accused, he was ready and willing to marry the prosecutrix but it was under the pressure of his family members that he refused to marry her. On the basis of the admission of guilt made by the accused Subhash in the presence of his counsel without any inducement, fear, force, coercion and pressure of any kind, this court has held the accused guilty of the offence under Section 420 Indian Penal Code. He has however been but acquitted of the charge under Section 376 Indian Penal Code since the prosecutrix 'P' was a major (as per the ossification test report her estimated age being between 1920 years and also admitted by her) and she conceded to making physical relations with the accused with her consent which was on account of the assurance for marriage given by the accused.
I have heard arguments on the point of sentence. The convict Subhash a young boy of 21 years, is 12th class pass and prior to his arrest was working as Customer Care Personnel in Reliance Retail. He has a family comprising of his father, mother, one elder brother and two sisters. Ld. counsel for the convict has prayed for a lenient view against the convict keeping in view his young age and also keeping in view the fact that the parents of both the prosecutrix and the accused have mutually settled the disputes and have agreed to the marriage between the convict and the prosecutrix 'P' which shall take place within a week of the convict being released from jail. The Ld. Addl. PP has no objection to a lenient view but submits that this Court may while passing the order take St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 24 care of the interest of the prosecutrix 'P'.
I have considered the rival contentions. Keeping in view the fact that the convict is a first time offender, the report of the Probation Officer was called. Today the report of the Probation Officer was received according to which the convicts has realized his mistake and it has been recommended that the chances of his reformation are bright. The convict Subhash has no history of any previous involvement and is a first time offender.
This case pertains to a young girl who being aggrieved by the fact that the accused had made sexual relations her on the promise of marriage and thereafter refused to marry her claiming that his family was not agreeable as he was already engaged to some other girl in the village. Now the matter has been settled and the fathers of both the prosecutrix and convict have agreed to the marriage of the prosecutrix with the convict Subhash which marriage as per the Compromise Deed Ex.DX1 shall be solemnized within a week from the release of the convict. I have made queries from the prosecutrix 'P' in the Court and find that she is adamant and getting married to the convict, who also wanted to marry her.
Under the given circumstances, this Court cannot come in the way of the marriage of the convict and the prosecutrix 'P'. The convict having realized his mistake, any harsh view taken by this court at this stage will ruin the future of the young prosecutrix and the convict. I St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 25 hold that the interest of justice require that the convict Subhash should be given an opportunity to reform himself. I accordingly direct that the convict Subhash be released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958 for a period of two years with supervision, on his furnishing a personal bond in the sum of Rs.20,000/ with one local surety of the like amount and to appear and receive sentence when called upon during such period and in the meantime to keep the peace and be of good behaviour. Further, as per the Compromise Deed Ex.DX1 both the fathers of the prosecutrix and the convict have agreed that the prosecutrix and the convict would be married within 7 days of the release of the accused from Judicial Custody. It is clarified that the benefit of Section 4 of the Probation of the Offenders Act, 1958 is given subject to the fulfillment of the aforesaid condition and further on the condition that the convict shall not leave Delhi without prior intimation to the Probation Officer. In case of any default or non compliance of the conditions of settlement deed, the same shall be construed as breach of condition of Probation which shall be intimated to the Court forthwith and for such default the convict would liable to undergo Simple Imprisonment for a period of two years.
The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 26 Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 09.11.2012 ASJ (NW)II: ROHINI
St. Vs. Subhash, FIR No. 99/12, PS Adarsh Nagar Page No. 27