Delhi District Court
State vs Sunil @ Babbal on 17 September, 2009
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THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - V,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No. 10/2008.
FIR No. 266/2007.
PS Jahangir Puri.
U/s 376 (2F)/363/308/323 IPC.
State
Versus
Sunil @ Babbal
S/o. Banarsi
R/o. J-355, Jahangir Puri,
Delhi.
Date of Institution : 18.07.07
Date of receipt of case in this Court : 12.11.08
Arguments heard On : 11.09.09
Order Announced On : 15.09.09
Sh. Vipin Sanduja, ld. APP for State.
Sh. Deepak Sharma, counsel for accused
STATE VS SUNIL @ BABBAL
FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
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JUDGMENT
1. The name of the Prosecutrix/victim in this judgment is not mentioned as per decision of Hon'ble Supreme Court in the cases of State of Karnatka Versus Puttraja (2004 (1) SCC 475) and Om Prakash Versus State of Uttar Pradesh 2006 CLJ 2913.
2. The prosecution case as set out in the charge sheet is that complainant Ramesh Ram Arya lodged a complaint vide Ex.PW-8/1 with the police stating that he is living at J-821, Jahangir Puri, Delhi for the last 4 years with his family consisting of his wife Bhagwati, eldest daughter Hema, younger son Pankaj, who is deaf and dumb, another youngest daughter Pooja and youngest son Rahul. He has been doing the work at Dhabha situated at Mangal Bazar, Jahangir Puri. He stated that on 16.04.07 at 10.00 pm, he slept and at around 11.30 pm, his wife after awakening him told that daughter Pooja aged about 5 years and son Pankaj aged about 10 years went to see a Barat (Marriage procession) at Gali No.800 and has not returned back.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:3: Complainant Ramesh Ram Arya searched for her but could not trace out her. Thereafter on the next day morning at 6.00 am he went to police station. When he was going to police station and reached at SBI then one Sunny who is running tea stall at Mangal Bazar Road told him that one rickshaw puller had taken his child girl at B Block Primary School. Sunny further stated to him that he had seen that a child girl was sitting near the B Block Primary School Gate. On this information, complainant went to the MCD School gate where he found his younger daughter Pooja in injured condition. He had noticed injuries at the head and meanwhile other persons from the neighbourhood also gathered there and somebody informed the police and PCR vehicle came at the spot and his daughter was removed to BJRM Hospital. Complainant along with his wife then went to hospital. He expressed his suspicion of sexual assault on her daughter Pooja. Investigation Officer recorded the statement of complainant and prepared rukka Ex. PW-8/2 and sent it for registration of FIR under Section 363/308/323/376 (2f) IPC.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
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3. The MLC of the prosecutrix 'P' obtained by IO. The statement of other witnesses who joined the investigation recorded. The investigation officer also seized blood samples given at BJRM Hospital and sent them for forensic analysis. Accused Sunil @ Babbal was arrested on 22.04.07. His disclosure statement was recorded vide Ex.PW-8/10. He pointed out Bharat Ghar and MCD School. On his pointing out memos were prepared of both the places Ex.PW-8/12 and Ex.PW-8/13, respectively. The cycle rickshaw belonging to accused was seized vide memo Ex.PW-8/11. Arrest memo Ex.PW-8/8 and personal search memo Ex.PW-8/9 were also prepared. Investigation officer also called photographer for taking the photographs of the spot. Medical examination of accused was also got conducted vide MLC Ex.PW-2/A. Statement of prosecutrix under section 164 Cr.P.C. was recorded Ex.PW-25/A by learned M.M. Ossification test for age determination was also carried out. During trial FSL report was received vide Ex.PW-22/B. STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
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4. The investigation officer after recording of statement of the witnesses and collecting the documents and other evidence filed the charge sheet for offence under Section 376 (2f)/363/308/323 IPC.
5. Ld. M.M. after compliance under Section 207 Cr.P.C. committed the case to the court of sessions.
6. My learned predecessor prima-facie framed the charge for trial of offence under section 363/376(2f)/308 IPC. Accused pleaded not guilty and claimed trial.
7. I have heard Shri Vipin Sanduja learned APP for the State and Sh. Deepak Sharma, learned Amicus Curiae for accused and perused the record.
8. The star witness of the prosecution is prosecutrix 'P'. Prosecution examined star witness PW-11 prosecutrix 'P' aged 5 years. Her statement was recorded without oath after satisfaction and inquiries were made by the court. She stated that about long time back, it was STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:6: night time and she had gone to see a barat near Barat Ghar where accused was present (correctly identified him). She stated that accused took her along with him on the pretext that he would provide an ice-cream and taken her to a school near Mangal Bazar chowk. Thereafter, accused took out her pajama and his pant and did wrong act with her on private parts (witness was observed by the court pointing out towards back and front private parts). She further states that accused put his private part in her private part. She further stated that she started crying because of heavy pain then accused put a dirty handkerchief in her mouth. Accused hit with a brick type stone on her head due to which blood starting coming out and he struck her head on the wall and also gave leg blows in her stomach. She also stated that accused hit blade on her back and dragged her by holding her both legs. Accused also threated to kill her if she tells this incident to her Papa. She finally stated that accused left the place and she came out. After sometime her mother came and took her.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
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9. In cross-examination she stated that she used to go to school and obeys her parents. She saw the accused for the first time at the time of seeing the barat. Second time, she saw the accused in the hospital. Accused never visited her house prior to the incident. Accused did not give her ice cream. Accused is the same person who took her in a rickshaw from Barat Ghar. Her father was sleeping when accused took her from Barat Ghar. She further denied the suggestion that accused falsely implicated in this case.
10. Prosecution further relied on PW-12 Ramesh Ram Arya, father of the prosecutrix 'P' who deposed and proved the complaint. He reiterated the incident that on 16.04.07 when his wife informed him that prosecutrix 'P' is missing at 11.30 p.m. and gone to see barat but not returned back. He further deposed that he searched for her but could not find her. He also visited the police station at 1.30 am. but all in vain. He further deposed that at about 6.00 am he was going to police station for lodging the STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:8: complaint then one person informed him that one girl is sitting at the gate of MCD school. He went there and found that her daughter sitting at the gate of the school. She was in a very bad shape as she had sustained injuries on her head and blood was oozing from her head. He saw her child prosecutrix 'P'. In the meanwhile, somebody informed the police and police came and removed her to BJRM Hospital. He stated the age of his daughter 5 years. One Lal Singh who is also residing in his gali had told him and his wife in the presence of police and public persons that accused Sunil @ Babbal has taken her daughter 'P' on 16.04.07.
11. In cross-examination he explained that he is residing in the area for the last about four years and but neither he nor his family had quarrel or enmity with anyone in the locality. He asked from his son Pankaj by giving indications about his daughter. He deposed that public persons gathered at the spot i.e. MCD school gate where his daughter was sitting inside the gate in injured STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:9: condition. The fact was told by Lal Singh in the hospital and his statement was not recorded in his presence. He denied all the suggestions put to him.
12. Prosecution further examined PW-13 Lal Singh who further corroborates prosecution story. He deposed that on 16.04.07 at about 11.00 p.m. he was coming back in his TSR and going towards his house and when reached at Mangal Bazar Chowk and saw accused in his rickshaw On the seat of rickshaw one minor girl age about 4-1/2 and 5 years old was standing while holding the seat. He further deposed that out of curiosity he tried to ask accused Babbal as to with whom he was going but by that time accused had crossed the road. On 17.04.07, in the early morning at about 5.00 or 5.30 am he took his TSR and went for his work. In the afternoon, he received information about incident and went to BJRM Hospital and identified the girl whom he had saw with the accused on the night of 16.04.07. He deposed that this fact was told by him to the mother and other relatives of the girl.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
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13. In cross-examination, PW-13 Lal Singh stated that no case is pending against him. He is a witness in a murder case of his son and knows complainant residing just opposite to his house. He further deposed that he knew accused for the last 5-6 years. There was no enmity or quarrel took place with the accused or his brothers who are residing in the same area.
14. PW-13 Lal Singh further states that girl was standing on the rickshaw while holding the seat of the puller of the rickshaw. He is not aware about the pending case against accused but accused is alcoholic person. PW- 13 further deposed that he was not aware that the daughter of the complainant was missing for whole night. He denied all the suggestions put to him.
15. Other witness PW-17 Vinod Kumar turned hostile but his testimony does not affect the prosecution case in any manner.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
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16. PW-6 ASI Satpal who joined the investigation on 17.04.07 proved the fact that he lifted blood sample, earth control, hair and stone which was produced by IO and thereafter sealed with the seal of RB. He proved the detailed report Ex.PW-6/1.
17. PW-7 ASI Charan Singh deposed that on 17.04.07, he was on emergency duty at 6.40 am and duty officer recorded DD entry no. 6/A Ex.PW-7/1 and handed over the same to him. Then he along with constable Ravinder proceeded to the spot B Block, Jahangir Puri Delhi MCD Primary School. There he came to know that PCR CAT ambulance has taken the prosecutrix to BJRM Hospital. He went to the hospital and obtained opinion from the doctor. He informed the police station vide DD entry no. 7/A Ex.PW-7/2 to inform ASI Renu and also called a lady constable and lady constable Santosh reached at the hospital and he handed over the MLC of the prosecutrix to her and prosecutrix Pooja to ASI Renu Bala. Further proceedings were carried out by ASI Renu Bala.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
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18. PW-8 ASI Renu Bala deposed that on DD No.6/A, she was directed to reach at BJRM Hospital where ASI Charan Singh and constable Ravinder met her. ASI Charan Singh handed over her DD No.6A and 7A and made inquiries from them. She proved statement of Ramesh Ram Ex.PW8/1. She further deposed that MLC was taken Ex.PW4/1. She made endorsement Ex.PW8/2 for registration of FIR under section 363/308/323/376 IPC and sent the rukka through constable Ravinder. She further deposed that from hospital she proceeded to the spot to B Block, MCD Primary School, Jahangir Puri along with constable Ravinder and Ramesh Ram, complainant. She proved FIR Ex.PW8/3. She proved site plan Ex.PW8/4. She further deposed that crime team was also called at the spot who prepared report Ex.PW6/1. She took into possession the blood samples, clothes, stone, hair and sealed with the seal of RB vide memo Ex.PW8/5. The site plan and spot was inspected as per instructions of Ramesh Ram. Constable Ravinder was sent to hospital and he came with sealed exhibits given by the doctor which were taken into possession vide memo Ex.PW8/6.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
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19. PW-8 Renu Bala further deposed that on 18.04.07, prosecutrix was produced before BJRM Hospital and doctor obtained the slides, hair clipping and blood samples which were taken into possession vide memo Ex.PW-8/7. PW-8 also recorded statements of lady constable Santosh, constable Ravinder, ASI Satpal, supplementary statement of Ramesh Ram, statement of Lal Singh and Manoj Kumar.
20. PW-8 Renu Bala further deposed that Lal Singh and Vinod Kumar stated about involvement of accused Sunil @ Babbal. She searched for accused. On 22.04.07, accused was arrested from SBI, Mangal Bazar Road at the instance of Vinod Kumar vide memo Ex.PW-8/8 and personal search memo Ex.PW-8/9. She further deposed that she recorded disclosure statement Ex.PW-8/10 and got recovered rickshaw vide memo Ex.PW-8/11. Accused also pointed out place of lifting prosecutrix 'P' vide memo Ex.PW-8/12 and place of occurrence vide memo Ex.PW- 8/13. Medical examination of accused was conducted vide STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:14: MLC Ex.PW-2/A. She further deposed that constable Ravinder brought exhibits containing clothes of the accused and blood sample of the accused along with sample seal which were taken into possession vide memo Ex.PW-8/14 and same was deposited at Malkhana. She proved cycle rickshaw Ex.P-1, hair in plastic jar Ex.P-2, earth control Ex.P-6 and blood stains Ex.P-7.
21. In cross-examination PW8 ASI Ranu Bala Investigation Officer deposed that she recorded the statements of public witnesses Lal Singh at hospital. Thereafter on 17.4.2007 itself he met witness Vinod while searching the accused at J-Block, Jahangirpuri. Vinod's statement also recorded. She explained that no public witness joined the investigation. Public witness Vinod was also not made witness to the documents prepared regarding the arrest. No inquiry was recorded in respect of investigation carried out at school i.e. place of occurrence. She explained that the gate of this school is facing towards the Mangal Bazar Chowk. She deposed that prosecutrix at STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:15: hospital was in semi-conscious state and she received 20 stitches on her scalp. She denied all the suggestions that accused is falsely implicated in this case.
22. The analysis of testimony of the prosecutrix "P" (PW11), PW12 Ramesh Ram Arya. PW13 Lal Singh. On analysis established following circumstances:-
(i) The prosecutrix "P" is aged about five years and on the day of incident she went to see a Barat. There accused took her alongwith him on the pretext of providing her ice-cream.
(ii) The accused committed rape upon her.
(iii) Accused hit her with a brick type stone due to which she received head injury.
Besides this injury accused also gave her leg blow on her stomach.
(iv) Accused hit with blade on her back and dragged by holding her both the legs. Accused also threatened her to kill. PW13 Lal Singh establishes that the on the day of incident i.e. 16.07.04 at about 11.00 pm he saw accused while driving the rickshaw with one minor girl.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
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23. Medical witnesses PW1 Dr. Shipra Rampal proved the age of the prosecutrix i.e. five years. PW2 Dr. Sardaman Singh proved the fact that accused Sunil on the day of incident was capable of performing sexual intercourse. Dr. Shalini, PW4, who examined the prosecutrix "P", proved the MLC vide Ex.PW4/1 that "genitalia hymen was found ruptured and the surrounding area was congested and soiled with dust mixed with some secretion around the labial area". Dr. Pooja (PW5) proved the fact that Investigation Officer seized clipping of scalp hair in the slide and blood sample of the prosecutrix vide memo Ex.PW4/1. The FSL report further corroborates that stone piece was having blood group B, hairs, pajama and kurta also having the same blood group.
24. Issue now requires for consideration is that whether facts established and proved by the prosecution sufficient to constitute factum of committal of rape by the accused with prosecutrix "P". In case Sudesh Jhaku Vs. K.C. J. & Others, 1998 Cri.L.J. 2428, Section 375 IPC was analyzed. It was observed as under :-
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC. :17: "The primary test remains to be the language employed in the Act. Section 375 of the Code uses words which intention of the legislature. As shown above, the definition of rape is based on the common law and in England, as well as, in India the words "sexual intercourse" and "penetration" have all along been taken to mean the act of inserting the penis into female organs of generation. It would not be permissible to strain the words and their well-understood and well- entrenched meaning so as to bring within their fold certain acts which do not come within the reasonable interpretation of the provision. It is not a case where the main object and intention of the provision is not clear. It is also not a case of absolute intractability of the language used. The language used also poses no difficulty in resolving the question before me or implementing the intention or spirit of the law. The duty to mould or creatively interpret the legislation does not thus arise."
25. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with the emission of semen and the rupture of hymen. Partial penetration of the penis within the labia STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:18: majora or the vulva or pudenda, with or without the emission of semen, or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. Modi in Medical Jurisprudence and Toxicology (21st Edn.) at page no.369 also observed that it is not necessary there should be complete penetration of penis with emission of semen and rupture of hymen to constitute the offence of rape. It is further observed that to satisfy the requirement of law defining the rape, the partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of or even an attempt at penetration is sufficient.
26. In India on may occasions the question what constitute Rape within definition of Section 375 IPC came for consideration before the Superior Courts. In case Rajendra Datta Zarekar Vs. State of Goa, (2009) 1 SCC (Crl) 892, the accused was acquitted for the offence STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:19: punishable under Section 376 (2) (f) IPC by the Court of Additional Sessions Judge, Panaji. It was observed that the hymen was intact and there were no fresh or old tear to hymen. The said decision was reversed by the Goa Bench of Bombay High Court in appeal filed by the State and the accused was sentenced to 10 years of rigorous imprisonment alongwith fine of Rs.10,000/- for offence under Section 376 (2) (f) IPC. The criminal appeal was preferred before the Supreme Court of India. The Supreme Court of India referred the Modi's "Medical Jurisprudence and Toxicology" and Parikh's "Medical Jurisprudence and Toxicology" and opined that to constitute the offence under Section 376 IPC, it is not necessary that the hymen should be rupture. It was observed that sexual intercourse means the slightest decree of penetration of the vulva by the penis with or without emission of semen. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
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27. It held in case Koppula Venkat Rao Vs State of A.P., AIR 2004 SC 1874 as under :-
The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of 'rape' as contained in Section 375 IPC refers to 'sexual intercourse' and the Explanation appended to the section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection.
28. It was held in case Aman Kumar & another Vs. State of Haryana, AIR 2004 SC 1497 as under :-
The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC. :21: To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendu with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC.
29. It was held in case Mahesh Kumar & Another Vs. State of Rajasthan, 1998 Cri.L.J. 1597 as under :-
Learned Counsel for the appellants has drawn my attention of page 435 of the Book Glaister's Medical Jurisprudence and Toxicology Edited by the late Edgar Rentoul and Hamilton Smith (Thirteenth Edition). It has been observed that when there has been forcible attempted penetration or complete penetration, the rupture of the hymen will be present as a rule and it will be invariably accompanied by some degree of bleeding. In the case of infant or young child there may be a tear from the forchette posteriorly to the rectum if an attempt has been made at penetration. It has also been observed in this book that both the character and extent of injury will STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:22: depend upon the nature of the hymen, the extent of penetration and the amount of force used. The hymen remains unruptured in odd cases after coitus. Therefore, I am of the view that unruptured hymen do not always lead to the inference that forcible sexual intercourse was not committed with the prosecutrix. It shows that force was not used and it remained intact due to slight degree of penetration.
Even the slight degree of
penetration is sufficient to
constitute the offence punishable under Section 376 IPC.
30. The Supreme Court of India in case Madan Gopal Kakkad Vs Naval Dubey and Another., (1992) 3 SCC 204 observed that the slightest degree of penetration of the vulva by the penis with or without emission of semen is sufficient to constitute the rape. The Supreme Court referred various authorities on the subject. IN American Jurisprudence, it is stated that the slight penetration is sufficient to complete the crime of rape. The reference was made to Code 263 of Penal Code of California. In Halsbury's Statutes of England and STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:23: Wales (4th Edn.) Volume 12, it is stated that even a slightest degree of penetration is sufficient to prove intercourse within the meaning of Section 44 of the Sexual Offence Act, 1956.
31. The testimony of the prosecutrix PW11 further established that the accused in a most brutal manner caused the injuries on her head. He also used blood like object in a sinical manner and caused injuries on her back. She has specifically deposed that accused put a dirty handkerchief on her mouth when she tried to cry because of heavy pain. Accused with a brick type stone on her head due to which blood oozes out. Thereafter he struck her head on the wall and also gave leg blows on her stomach. She further deposed that accused hit with blade on her back and dragged while caught hold of her both legs.
The Investigation Officer PW8 ASI Renu Bala when appeared in the witness box, specifically deposed that prosecutrix received twenty stitches on her scalp but STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:24: due to Investigation Officer's slackness and unprofessional approach, neither final opinion obtained or proved about the injuries received by the prosecutrix. However, it does no affect the prosecution case in any manner.
32. The law is well settled that in order to fulfill the ingredients of Section 308 IPC, it is not the nature of injuries but the intention gathered from the circumstances or the knowledge of the circumstances are important. In the present case accused caused injuries as discussed herein above clearly established the intention and knowledge that the head injury is especially is capable of causing culpable homicide of the prosecutrix. Under ordinary circumstances as well if such a head injury is caused which resulted in blood loss to a great extent may be sufficient for causing culpable homicide. The knowledge and intention of the accused is established beyond reasonable doubts. Hence prosecution also established the charge for offence punishable under Section 308 IPC against the accused.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
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33. Now coming to the last aspect of the prosecution case in respect of the offence punishable under Section 363 IPC. It is established upon record beyond reasonable doubts that age of the prosecutrix is five years on the day of incident. The accused enticed away prosecutrix on the pretext of giving ice-cream and taken away her from the guardianship and custody of her parents. At no point of time any explanation provided by accused as to whether there was any consent of the guardians or not. The prosecutrix was recovered from the place of occurrence i.e. MCD School. This fact corroborates that accused has taken away the prosecutrix after allurement with the object of ravishing her. In the absence of consent of the guardian, prosecution successfully proved that accused committed offence punishable under Section 363 IPC.
34. On the basis of abovesaid observations and discussions, accused is convicted for the offence punishable under Sections 376(2)(f)/363/308 IPC.
(SANJAY KUMAR) Announced in the open court Additional Sessions Judge-05, today 15.09.2009. Rohini Courts, Delhi STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:26: THE COURT OF SHRI SANJAY KUMAR, ADDITIONAL SESSIONS JUDGE - V, DISTRICT NORTH WEST, ROOM NO. 308, ROHINI COURTS, DELHI SC No. 10/2008.
FIR No. 266/2007.
PS Jahangir Puri.
U/s 376 (2F)/363/308/323 IPC.
State Versus Sunil @ Babbal S/o. Banarsi R/o. J-355, Jahangir Puri, Delhi.
Date of Institution : 18.07.07 Date of receipt of case in this Court : 12.11.08 Arguments heard On : 11.09.09 Order Announced On : 15.09.09 Order on sentence : 17.09.09 Sh. Praveen Kumar Samadhiya, Substitute APP for the State.
Sh. Deepak Sharma, counsel for accused STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:27: ORDER ON SENTENCE Present : Sh. Praveen Kumar Samadhiya, APP for State deputed for today.
Sh. Deepak Sharma, Amicus Curiae for convict.
1. Learned Amicus Curiae submits that the convict is aged 30 years and unmarried. He submits that since arrest, he is in judicial custody. He further submits that convict has no previous record of involvement in any criminal case. He submits that convict belong to poor strata of society and he was doing the job of rickshaw puller. Finally submits that lenient view be taken.
2. On the other hand, Shri Praveen Kumar Samadhiya, learned Substitute APP for the State states that under the given facts and circumstances convict be awarded maximum punishment.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
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3. The sentencing policy and system as envisaged and adopt either corrective machinery or the deterrence depending upon the facts and circumstances of each case. The Court is to keep in mind while setting in motion the sentence, some essential ingredients. The ingredients are nature of crime, manner in which it was planned and committed, the motive for the commission of the crime, the conduct of the accused, the nature of weapon used and all other attending circumstances are relevant facts which would enter into arena of consideration. The award of inadequate sentence showing undue sympathy would do more harm to the criminal justice and also undermine the public confidence for the efficacy of law.
4. It is, therefore, the duty of the Court to award proper sentence having regard to the nature of the sentence and the manner in which it was committed. The Apex Court laid down principle of awarding the sentence. Let us perused the precedent of the Apex Court.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
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5. It was held in case Jashubha Bharatsing Gohil Vs. State of Gujrat, (1994) 4 SCC 353 that the protection of the society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence.
6. It was held in case Shivaji @ Dadya Shankar Alhat Vs. State of Maharashtra, 2008(4) RCR (Criminal) 202 as under :--
Proportions between crime and punishment is a goal respected in principles, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment disproportionate punishment has some very undesirable practical consequences.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:30:
7. In case State of Punjab Vs. Prem Sagar and Ors. (2008) 7 SCC 550 it was observed that whether the court while awarding sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality would depend upon the facts and circumstances of each case and while doing so nature of offence said to have been committed by the accused plays an important role. A wife discretion is conferred on the court but said discretion must exercise judicially while sentencing an accused. It would depend upon the circumstances in which the crime has been committed and the mental state and the age of the accused is also relevant.
8. In the present case, convict is a person who committed rape upon the prosecutrix aged about 5 years. Rape is not only a crime against the person (Victim) but this is a crime against entire society. It destroy the entire psychology of the victim and pushes her into a deep emotional crisis. It is only by her sheer will power that she STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:31: rehabilitates herself in the society which, on coming to know of the raps, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights to Life contained in Article 21.
9. In case State of Karnataka Vs. Raju, AIR 2007 SC 3225, the accused was convicted on the charge of rape of a girl who was 10 years old and was imposed seven years imprisonment by the Additional Sessions Judge. In appeal, the Karnataka High Court reduced the sentence to 3 ½ years on the grounds that accused was a young boy of 18 years and belonging to backward community and also an illiterate person. The decision was challenged before the Supreme Court by Criminal Appeal. It was observed that the social status of the accused is not relevant factor to measure punishment in case of rape. Crimes of violence upon the women needs to be severely dealt with. It was observed as under :--
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC. :32: The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence, Courts must her the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by Court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent.
In State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384, it was observed as under :--
10. STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:33: Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but also inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault-it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim; a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a greater responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.
11. Where a rape is committed on a child below twelve years of age, the normal sentence which can be awarded is not less than 10 years rigorous imprisonment. The court in exceptional circumstances considering the "special and adequate reasons" may sentenced the convict for a period less than 10 years rigorous imprisonment.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:34:
12. In the present case prosecutrix was aged about 5 years. She was helpless child. The victim shattered her dignity which she hails to bear throughout her life. The physical scar heal but the psychological and mental scar will always remain if child is ravished at the of four years. It inflicts not merely physical injury but the deep sense of some deathless shame. Child sexual abuse is serious and heinous offence against not only to a women or girl but against the humanity and society at large. In these circumstances, to show mercy in child sexual abuse cases would triversity of justice. The socio-economic status of the victim in the present facts and circumstances of the case is not a relevant consideration in awarding punishment. No special or adequate reasons or circumstances exist which may warrant the awarding of sentence less than 10 years of Rigorous Imprisonment to the convict.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:35:
13. On the basis of above observations and discussions and in totality of the facts and circumstances of the case, I award the sentence to convict for offence punishable under Section 376 (2) (f) IPC for 10 (Ten) Years Rigorous Imprisonment alongwith fine of Rs.10,000/-. In default of payment of fine Simple Imprisonment for 6(Six) months.
For offence punishable under Section 363 IPC, I award the sentence to convict for Rigorous Imprisonment for three (3) years and fine of Rs.3000/-. In default of payment of fine Simple Imprisonment for six(6) months.
For offence punishable under Section 308 IPC, I award the sentence to convict for Rigorous Imprisonment for three (3) years and fine of Rs.3000/-. In default of payment of fine Simple Imprisonment for six(6) months.
All the sentences shall run concurrently.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:36:
14. The benefit of Section 428 Cr.P.C. be given to the convict. The case property be confiscated to the State. A warrant of committal be issued against the convict. A copy of Judgment and Order on Sentence be supplied to the Convict free of cost today itself forthwith. Sessions file be consigned to record room.
(SANJAY KUMAR) Announced in the open court Additional Sessions Judge-05, today 17.09.2009. Rohini Courts, Delhi STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:37: STATE VS SUNIL @ BABBAL.
FIR NO.266/07.
PS-JAHANGIRPURI.
U/S. 376(2)(f)/363/308/323 IPC. 07.09.2009.
Present:- Shri Vipin Sanduja, APP for the State.
Accused in JC with Shri Deepak Sharma, Amicus Curiae.
Part final arguments heard.
Put up the case for further final arguments on 11.09.2009.
(SANJAY KUMAR) ASJ-01(NW):ROHINI:DELHI.
07.09.2009.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:38: STATE VS SUNIL @ BABBAL.
FIR NO.266/07.
PS-JAHANGIRPURI.
U/S. 376(2)(f)/363/308/323 IPC. 11.09.2009.
Present:- Shri Vipin Sanduja, APP for the State.
Accused in JC with Shri Deepak Sharma, Amicus Curiae.
Further final arguments heard.
Put up the case for Orders on 15.09.2009.
(SANJAY KUMAR) ASJ-01(NW):ROHINI:DELHI.
11.09.2009.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:39: STATE VS SUNIL @ BABBAL.
FIR NO.266/07.
PS-JAHANGIRPURI.
U/S. 376(2)(f)/363/308/323 IPC. 15.09.2009.
Present:- Shri Vipin Sanduja, APP for the State.
Accused in JC with Shri Deepak Sharma, Amicus Curiae.
Vide separate judgment, accused is convicted for the offence punishable u/section 376(2)(f)/363/308 IPC.
Put up the case for order on sentence on 17.09.2009.
(SANJAY KUMAR) ASJ-01(NW):ROHINI:DELHI.
15.09.2009.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:40: STATE VS SUNIL @ BABBAL.
FIR NO.266/07.
PS-JAHANGIRPURI.
U/S. 376(2)(f)/363/308/323 IPC. 17.09.2009.
Present:- Shri Praveen Kumar Samadhiya, Substitute APP for the State.
Convict in JC with Shri Deepak Sharma, Amicus Curiae.
Vide separate order on sentence the convict is directed to undergo sentence to convict for offence punishable under Section 376 (2) (f) IPC for 10 (Ten) Years Rigorous Imprisonment alongwith fine of Rs.10,000/-. In default of payment of fine Simple Imprisonment for 6(Six) months.
For offence punishable under Section 363 IPC, I award the sentence to convict for Rigorous Imprisonment for three (3) years and fine of Rs.3000/-. In default of payment of fine Simple Imprisonment for six(6) months.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.
:41: For offence punishable under Section 308 IPC, I award the sentence to convict for Rigorous Imprisonment for three (3) years and fine of Rs.3000/-. In default of payment of fine Simple Imprisonment for six(6) months. All the sentences shall run concurrently.
The benefit of Section 428 Cr.P.C. be given to the convict. The case property be confiscated to the State. A warrant of committal be issued against the convict. A copy of Judgment and Order on Sentence be supplied to the Convict free of cost today itself forthwith. Sessions file be consigned to record room.
(SANJAY KUMAR) ASJ-01(NW):ROHINI:DELHI.
17.09.2009.
STATE VS SUNIL @ BABBAL FIR NO.266/07.
U/S. 376(2F)/363/308/323 IPC.