Delhi District Court
State vs Accused on 9 May, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0017182012 SC NO.73/13 Date of Institution :28.01.2012 FIR No.375/11 Date of Argument :23.04.2013 PS Gokalpuri Date of Order :09.05.2013 U/S 363/366A/328/376 IPC State Versus Accused Sahil Abbas @ Amit S/o Sh. Aajeeb Hussain R/o Village Shakni PS Jahangirabad District Bullandshahar UP JUDGMENT
The facts in brief of the prosecution case are that on 19.10.2011 at about 6 p.m. Ms. __X__ aged about 15 years, here in after referred to as the prosecutrix, r/o ___________________Z___________________________, went to buy bread from a nearby hotel. As she did not return, her father Sh. ____X-1___ reported the matter to police. His statement at P.S. was recorded and on the basis of his statement FIR No.375/2011 at P.S. Gokal Puri u/s 363 IPC was registered. The prosecutrix could not be traced inspite SC No.73/13 State vs. Sahil Abbas @ Amit Page 1 of 35 of making efforts. However, in the same night father of the prosecutrix produced the prosecutrix at the P.S. and told that prosecutrix was abducted by a boy Amit @ Sahil Abbas, here in after referred to as the accused and he was bringing him and the prosecutrix to P.S. but he succeeded in escaping. The prosecutrix was taken to GTB Hospital where her medical examination was conducted on 20.10.2011. She was also produced before Ld. M.M. for recording her statement u/s 164 of the Code of Criminal Procedure, here in after referred to as the Code and her statement was recorded. On the pointing out of the complainant accused Sahil Abbas was arrested and his arrest memo and personal search memo were prepared. He was also sent to GTB Hospital for conducting his medical examination. Doctor opined that there was nothing to suggest that he was not capable of performing sexual intercourse. Doctor also obtained samples of accused and handed over to Ct. Shri Bhagwan who took him for medical examination. Accused pointed out the place of occurrence and pointing out memo was prepared. He was interrogated and he also made disclosure statement. IO recorded statements of witnesses and filed a charge sheet against the accused for his trial for the offences punishable u/s 363/366A/328/376 IPC.
SC No.73/13 State vs. Sahil Abbas @ Amit Page 2 of 352. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused committed this case to the court of sessions and it was assigned to Sh. Rakesh Kumar, Ld. Additional Sessions Judge, Delhi.
3. Vide order dated 17.02.2012 the court opined that there was prima facie sufficient material on record for framing of charge against the accused for the offences punishable u/s 366A/328/376 IPC. Therefore, charge against the accused for his trial for the said offences was framed and read over to him in vernacular language. He pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined HC Vijay Kumar as PW1; Lady Ct. Urmila as PW2; Prosecutrix __X__ as PW3; Smt. __Y__ as PW4; HC Surinder Singh as PW5; Dr. Nidhi Arora as PW6; Sh. __X-1__ as PW7; Sh. Rajbir Singh as PW8; and Dr. Bharat Sagar, CMO, GTB Hospital as PW9.
5. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
SC No.73/13 State vs. Sahil Abbas @ Amit Page 3 of 356. Prosecution further examined Ct. Shri Bhagwan as PW10; Ct. Rajender Prasad, as PW11; Ct. Krishan as PW12; Insp. Karan Singh Rana as PW13; Sh. Vivek Kumar Gulia, Ld. CCJ-cum-ARC-I as PW14; SI Rano Devi as PW15; SI Ishwari Prasad as PW16 and Dr. Gurpreet Kaur as PW17.
7. After closing of prosecution evidence statement of the accused u/s 313 of the Code was recorded. All the material and incriminating evidence was put to him. He pleaded that the prosecutrix and her family members are in distant relations. He used to advise them not to indulge in gambling activities at their house. Instead of following his good advice, they got him falsely implicated in the present case. He opted to lead evidence in his defence.
8. In support of his defence, accused examined his father Sh. Ajib Hussain as DW1.
9. I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for accused and perused file.
10. Let us examine the evidence of the parties to find out whether prosecution could prove its case against the accused beyond reasonable suspicion and shadow of SC No.73/13 State vs. Sahil Abbas @ Amit Page 4 of 35 doubt.
Hostility and enmity
11. It has been argued on behalf of Ld. Defence Counsel that there was hostility and enmity between the parties. The accused was distantly related to the prosecutrix and her family members. Father of prosecutrix was indulging in gambling activities. The accused used to give advice to him to keep away from such activities. A day prior to the alleged incident, a raid was conducted by the police on the premises of the father of prosecutrix. The accused was got falsely implicated as father of the prosecutrix doubted that accused was behind the police raid.
12. On analyzing the evidence, I find that prosecutrix PW3 denied the suggestion that she was knowing the accused prior to the incident or that accused was distantly related to her or that accused was having visiting terms in her house or that accused had been advising her father to stop gambling in his house or that police conducted raid in her house on 18.10.2011 or that she made false allegation against the accused at the instigation of her father.
SC No.73/13 State vs. Sahil Abbas @ Amit Page 5 of 3513. PW4, mother of the prosecutrix, on this aspect denied the suggestion that accused was distantly related to her or that her husband was carrying gambling activities at his house or that he had been doing the illegal act since last 15 years or that he used to charge Rs.100/- per hour from the customers who used to come for gambling or that her house was raided by the police many times or that accused told her husband to stop the business of gambling or that police raided her house on 18.04.2011 or that husband was having suspicion on accused for that raid or that accused was got falsely implicated by making a false story.
14. PW7, father of the prosecutrix on this aspect deposed contrary to the statements of prosecutrix PW3 and PW4. He admitted that accused was known to him prior to the incident as he belonged to his native village. He also admitted that on 18.10.2011 police lifted 8-9 persons who were playing cards/rammi at his street. However, he denied the suggestion that he had been running a gambling racket in his house for the last fifteen years or that he used to collect Rs.100/- per person or that the accused advised him many times to close gambling racket or that he had suspicion upon the accused that he had informed the police on 18.10.2011 or that only to take SC No.73/13 State vs. Sahil Abbas @ Amit Page 6 of 35 revenge from the accused, he falsely concocted a story and got him falsely implicated in the present case.
15. PW16, IO on this aspect deposed that accused was previously known to the complainant as they were having distant relations between them. He expressed his ignorance if the house of ____X-1___ was raided on account of his involvement in the gambling or that police had lifted 8-9 persons from the house of ____X-1___, father of the prosecutrix or that people used to play gambling (satta) in his house.
16. DW1 on this aspect deposed that the accused Sahil was his son and complainant ____X-1___ was his relative as his wife namely __Y__ was his niece. Complainant had been running a gambling racket from his house. Accused used to advise him to close the gambling racket which was being run in his house. On 18.10.2011 police raided his house and lifted 8-9 persons who were playing gambling with them that time. Complainant ____X-1__ was also lifted by the police and he doubted that accused was responsible for the raid. To take revenge from the accused, complainant got a false case registered against him. Besides, family of the complainant are having criminal background as one of his son in law has been in SC No.73/13 State vs. Sahil Abbas @ Amit Page 7 of 35 jail for the last 13 years in a fake currency notes case and another son in law was arrested in a theft of Maruti car.
17. The evidence on record and particularly discussed here in above has established that there was distant relation between the complainant and the accused and the relations between the two were not cordial.
18. In this situation, this court is of the view that the testimony of the complainant, his wife and the prosecutrix are required to be analyzed with due care and caution.
19. My decision in this regard finds support by a case Ramchit Rajbhar v. The State of West Bengal, 1992 CRI.L.J. 372, wherein it was held by Kolkata High Court that where previous enmity is alleged, the Court has to scan evidence with great circumspection.
Contradictions
20. It has been argued on behalf of Ld. Defence Counsel that there are material contradictions in the testimonies of prosecution evidence and these have created reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case.
SC No.73/13 State vs. Sahil Abbas @ Amit Page 8 of 3521. On the other hand, Ld. Additional Public Prosecutor submitted that the minor contradictions are liable to be ignored. She relied on principles of law laid down by Delhi High Court in State v. Jai Hind, 2012 VI AD (Delhi) 170 wherein it was held that:
"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the SC No.73/13 State vs. Sahil Abbas @ Amit Page 9 of 35 trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
22. On analyzing the evidence on record, I find contradictions, as discussed above, on the points of relationship between the complainant and the accused and conducting of raid by the police in the street/house of the accused. I also find contradictions on the point of carrying of accused by police officials with the prosecutrix at the house of complainant. PW3, the prosecutrix and her mother PW4 did not state about bringing of the accused by the police officials whereas PW7 deposed that the police officials brought the prosecutrix and the accused. In statements of the prosecutrix PW3, her mother PW4 and complainant PW7, I do not find any other contradiction. In my view the above contradictions are not material and fatal to the prosecution case and liable to be ignored in view of principles of law laid down in case of in State v. Jai Hind, (supra).
Sole testimony
23. It has also been argued on behalf of Ld. Defence Counsel that the place of alleged incident from where the prosecutrix was allegedly kidnapped was a busy place but the I.O. has failed to join any witness to prove alleged SC No.73/13 State vs. Sahil Abbas @ Amit Page 10 of 35 incident.
24. On perusal of file, I find that no another public person as a witness of the alleged occurrence is there in the present case. Thus, the prosecutrix is the sole witness in support of her case so far as actual incident is concerned. Reliance can be placed on her testimony provided her testimony is consistent, trustworthy and wholly reliable as held in case Ashok Narang v. State, 2012 II AD (Delhi) 481, wherein Delhi High Court has, inter alia, held that testimony of a single witness in a criminal trial is acceptable but the evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, and must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, the degree of proof had to be of a high standard and not a mere possibility of committing the said offence.
Commission of Rape
25. In order to prove its case against the accused for the offence of rape punishable u/s 376 IPC, the prosecution has to prove firstly, that sexual intercourse SC No.73/13 State vs. Sahil Abbas @ Amit Page 11 of 35 was committed with the prosecutrix; secondly, that sexual intercourse was committed with her forcibly against her will and without her consent.
Commission of sexual intercourse on the prosecutrix
26. The prosecutrix, PW3 on this aspect deposed that on 19.10.2011 at about 7 p.m., she had gone to bring bread (roti) from hotel situated at gali No.3, Bhagirathi Vihar, Delhi. While she was coming back, accused Sahil Abbas, present in the court, correctly identified by her stopped her and made her to smell something. Consequent of smelling the things put by the accused, she became unconscious. When she regained her consciousness, she found herself at unknown place and her salwar was found pull down up to her knee. She tried to raise alarm but accused again put something on her nose and she again became unconscious. Thereafter, accused had taken her to somewhere-else. Two police official met them on the way and asked the accused as to where he was taking her. She did not know as to what he replied. Thereafter, she was brought by police officials to her house and informed her parents about her. She was taken to the hospital for medical examination where she was medically examined. In cross examination, she denied the suggestion that she SC No.73/13 State vs. Sahil Abbas @ Amit Page 12 of 35 was not stopped on the way or she was not made to smell something or she did not become unconscious or she did not find herself at unknown place or she did not find her salwar pull down up to her knee.
27. PW4 on this aspect deposed that on 19.10.2011 at about 6 p.m. her daughter, the prosecutrix had gone to take bread from a hotel. Accused present in the court had taken her away after getting her intoxicated. They searched for their daughter but of no result. Thereafter, two police officials in the same night at about 12/12:30 p.m. (night), brought her daughter. Her daughter, the prosecutrix was perplexed and was frightened. When she inquired from her daughter, the prosecutrix, she told her that accused had taken her with him and she was intoxicated. When she regained her consciousness, she found her salwar down below knee. In cross examination she denied the suggestion that her daughter, the prosecutrix did not tell this facts to her.
28. PW7 deposed that on 19.10.2011 at about 6 p.m. her daughter prosecutrix aged about 13-14 years had gone to hotel situated at Bharirathi Vihar to take bread (roti) but she did not return. They made her search but they could not traced her and thereafter, he went to PS where his statement Ex.PW7/A was recorded and his SC No.73/13 State vs. Sahil Abbas @ Amit Page 13 of 35 thumb impression there on was taken. When he reached at her house at about 12:30 a.m. on 20.10.2011, two police officials brought her daughter and the accused present in the court. His daughter was weeping and she was perturbed. He and his wife and those police officials took her daughter and the accused to the PS Gokalpuri. From there his daughter was taken to GTB Hospital for her medical examination. His daughter disclosed that the accused committed galat kam with her. In cross examination he denied the suggestion that his daughter was neither kidnapped nor she disclosed anything to him.
29. PW9 deposed that he had seen MLC Ex.PW9/A which was in the handwriting of Dr. Vikas and it was signed by him at point A. The MLC of __X__ d/o ____X-1___ aged 14 years was prepared on 20.10.2011 by Dr. Vikas, Jr. Resident who had left the services of the hospital and his whereabouts were not known. He identified his handwriting and signatures as he had worked under him and he had seen him writing and signing the document during usual course of his duties. On perusal of Ex.PW9/A, I find that patient was referred to gynecological examination.
30. PW16 on this aspect deposed that the prosecutrix was sent to GTB Hospital for her medical SC No.73/13 State vs. Sahil Abbas @ Amit Page 14 of 35 examination alongwith W/Ct. Anupama. After the medical examination MLC Ex.PW16/B was handed over to him by the Constable. The prosecutrix refused for her medical examination.
31. PW17 on this aspect deposed that she had seen MLC Ex.PW16/B dated 20.10.2011 of the prosecutrix who was examined by Dr. Geetika Goel who had left the services of the hospital and her present whereabouts were not known. As per MLC no history of sexual contact and no history of physical or sexual assault was given and no mark of injury was found. On local examination, the hymen was found intact.
32. PW6 on this aspect deposed that MLC Ex.PW6/A was prepared by Dr. Natasha who had left the services of the hospital and she was conversant with her handwriting and signatures being her colleague. On internal examination, it was found that her hymen was not intact.
33. It has been argued on behalf of Ld. Defence Counsel that MLC Ex.PW6/A may not be relied upon as this MLC was prepared after 4-5 days of the alleged incident. Soon after the alleged incident another MLC Ex.PW16/B was prepared and that may be relied upon.
SC No.73/13 State vs. Sahil Abbas @ Amit Page 15 of 3534. On analyzing the evidence, I am convinced with his arguments for the reasons firstly, that Ex.PW16/B was prepared soon after the alleged incident and Ex.PW6/A was prepared after 4-5 days from the alleged incident. Ex.PW16/A is prior in time and to be given preference.
35. Secondly, according to MLC Ex.PW16/B dated 20.10.2011, the doctor assessed the position of hymen and on local examination found the hymen intact. After 4-5 days the hymen was found torn. It is not the case of prosecution that after conducting of MLC Ex.PW16/B till preparation of next MLC Ex.PW6/A, the prosecutrix remained in contact with the accused. Thus, MLC Ex.PW16/B favours the accused. Therefore, two views are possible in this case one which give favour to the accused and another which is against him. The view which favours the accused has to be adopted.
36. This decision finds support by a case Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622. It was, inter alia, held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."SC No.73/13 State vs. Sahil Abbas @ Amit Page 16 of 35
37. It has been argued on behalf of Ld. Additional Public Prosecutor that prosecution has proved that the accused has committed sexual intercourse with the prosecutrix. She emphasized on the point that presence of accused on the place where the prosecutrix was found lying in a condition where her salwar was found pull down up to knee, itself has proved that sexual intercourse was committed with her by the accused. In support of her arguments, she relied on a case, Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560.
38. On complete perusal of ruling Tarkeshwar Sahu v. State of Bihar, (supra), I find that the principles of law laid down therein, instead of providing benefit to the prosecution, provides benefit to the accused. In that case the facts were that on 18.02.1998 at about 1:30 a.m., when the prosecutrix aged about 12 years, came out of her house to answer the call of nature, the accused forcibly took her to his gumti for committing illicit sexual intercourse with her. The prosecutrix raised an alarm and immediately thereafter, several persons including the father of the prosecutrix came from the adjoining houses and caught the accused before he could even make any attempt to ravish the prosecutrix. The trial court convicted the accused under section 376/511 IPC. The Apex Court SC No.73/13 State vs. Sahil Abbas @ Amit Page 17 of 35 observed that:
"10. ***The important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In the absence of penetration to any extent, it would not bring the offence of the appellant within the four corners of Section 375 of the Penal Code. Therefore, the basic ingredients for proving a charge of rape are the accomplishment of the act with force. The other important ingredient is penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would be enough for the purpose of Sections 375 and 376 IPC.***
21. In view of the catena of judgments of the Indian and English Courts, it is abundantly clear that slight degree of penetration of the penis in the vagina is sufficient to hold the accused guilty for the offence under Section 375 IPC punishable under Section 376 IPC.
22. In the backdrop of settled legal position, when we examine the instant case, the conclusion becomes irresistible that the conviction of the appellant under Sections 376/511 IPC is wholly unsustainable. What to talk about the penetration, there has not been any attempt of penetration to the slightest degree. The appellant had neither undressed himself nor even asked the prosecutrix to undress so there was no question of penetration. In the absence of any attempt to penetrate, the conviction under Sections 376/511 IPC is wholly illegal and unsustainable."
39. On analyzing the evidence on record particularly discussed here in above and considering the arguments in the light of principles of law laid down in Tarkeshwar Sahu v. State of Bihar, (supra), I come to the conclusion that prosecution could not prove its case against the accused SC No.73/13 State vs. Sahil Abbas @ Amit Page 18 of 35 beyond any reasonable suspicion and shadow of doubt that the accused committed sexual intercourse with the prosecutrix. The reasons which support my conclusion are firstly, that the prosecutrix herself failed to depose that the accused committed sexual intercourse with her or the accused attempted penetration into her private part completely, partially or slightly.
40. Secondly, the medical evidence and particularly MLC Ex.PW16/B and all other evidence on record has also failed to support the prosecution case regarding commission of sexual intercourse on the prosecutrix. Conversely, document Ex.PW16/B has established that there was no sexual assault on the prosecutrix as her hymen was found intact and no injuries on her person was found.
41. Lastly, there is no evidence on record either to establish that accused undressed himself or attempted to make physical relationship with the prosecutrix. Therefore, even it could not be established that the accused attempted to rape the prosecutrix.
Outraging the modesty of the prosecutrix
42. The prosecutrix, as discussed in detail here in above, inter alia, deposed that she was stopped by the SC No.73/13 State vs. Sahil Abbas @ Amit Page 19 of 35 accused and she was made to smell something. When she regained consciousness, she found herself at unknown place and her salwar was found down up to her knee. When she tried to raise alarm the accused, again put something on her nose and she again became unconscious. This testimony of the prosecutrix which has been found reliable and trustworthy has proved that accused committed offence of assault or criminal force to women with intent to outrage her modesty.
43. My decision in this regard finds support from the principles of law laid down in case Jai Chand v. State, 1996 CRI. L.J. 2039 (Delhi) wherein the Delhi High Court observed as under:
"The accused in another case had forcibly laid the prosecutrix on the bed and broken her pyjama's string but made no attempt to undress himself and when the prosecutrix pushed him away, he did not make efforts to grab her again. It was held that it was not an attempt to rape but only outraging of the modesty of a woman and conviction under Section 354 was proper.
50. In Raja v. State of Rajasthan it was stated as under:
"The accused took the minor to a solitary place but could not commit rape. The conviction of the accused was altered from Sections 376/511 to one under Section 354."
44. Now, it has to be seen whether the accused may be held guilty and convicted for the offence of outraging of modesty of the prosecutrix without framing a formal SC No.73/13 State vs. Sahil Abbas @ Amit Page 20 of 35 charge against the accused. In this regard it would be appropriate to refer provisions of Section 222 of the Code which run as under:
"222.When offence proved included in offence charged.--(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence, and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not yet been satisfied."
45. My attention also goes to a case Shamnsaheb M. Multtani v. State of Karnataka, 2001 SCC CRI 358 wherein the Apex Court had an occasion to deal with Section 222 of the Code. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available.
46. In view of the provisions of Section 222 of the SC No.73/13 State vs. Sahil Abbas @ Amit Page 21 of 35 Code and the principles of law laid down in case Tarkeshwar Sahu v. State of Bihar, (supra), it is held that accused can be held guilty and convicted for the lighter offences if the charge has been framed for grave offence.
Procuration of the prosecutrix
47. In order to prove its case for the offence of procurement of minor girl punishable u/s 366A, the prosecution has to prove firstly, that the accused induced any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person.
Age of the Prosecutrix
48. The prosecutrix, PW3 on this aspect deposed that she brought her original birth record issued by Sub Registrar. Copy of certificate was proved as Ex.PW3/B. On perusal of this document, I find that it is a certificate of birth issued by Sub Registrar, Birth & Death that a female baby was born on 02.04.1997. Name of mother has been mentioned as Nano and father as ____X-1___.
49. PW6 Dr. Nidhi Arora proved MLC of prosecutrix as Ex.PW6/A in which age of the prosecutrix has been mentioned as 14 years.
SC No.73/13 State vs. Sahil Abbas @ Amit Page 22 of 3550. PW4, mother of the prosecutrix on this aspect deposed that her daughter, the prosecutrix was born on 02.04.1997 at AIIMS Hospital. She also proved the birth certificate as Ex.PW3/B. In cross examination she clarified that she was having five daughters and the prosecutrix was the youngest. She denied the suggestion that age of the prosecutrix was 18 years on the date of recording of her statement. She also denied the suggestion that the date of birth of her daughter, the prosecutrix was not 02.04.1997.
51. PW7, father of the prosecutrix on this aspect deposed that the prosecutrix was her 8th child out of his eight children. He also stated that the prosecutrix was his youngest child.
52. PW8 on this aspect deposed that he had brought a summoned record, i.e. birth register w.e.f. 01.01.1997 to 30.06.1997. As per record one lady namely Nano w/o ____X-1___ r/o 1466, Gali No.48, Jafrabad, Delhi gave a birth to a female child on 02.04.1997 and an entry was made to this effect in the register at serial No.389. Copy of entry has been proved as Ex.PW8/A. As per record a provisional certificate bearing No.24191 was issued by SC No.73/13 State vs. Sahil Abbas @ Amit Page 23 of 35 AIIMS Hospital on 30.06.1999.
53. PW9 Dr. Bharat sagar deposed that MLC Ex.PW9/A was prepared by Dr. Vikas on 20.10.2011 in respect of __X__ d/o ____X-1___ aged about 14 years.
54. It has been argued on behalf of Ld. Defence Counsel that on the basis of Ex.PW3/B, it cannot be held that it was in fact the date of birth certificate of the prosecutrix as the parents of the prosecutrix were having many children and in that certificate name of the prosecutrix has not been written. This argument of Ld. Defence Counsel is not convincing for the reasons that both the parents deposed consistently that the prosecutrix was his youngest daughter. In this situation, filing of birth certificate of other daughter would not provide any benefit to the prosecutrix or her parents in proving the age of the prosecutrix incorrectly. The date of occurrence is 19th of October, 2011. On calculation the age of the prosecutrix comes to 14 years 6 months and 17 days. Thus, the prosecutrix was minor on the date of alleged occurrence.
Procuration
55. The prosecutrix PW3, on this aspect deposed that when she was returning after purchasing bread the SC No.73/13 State vs. Sahil Abbas @ Amit Page 24 of 35 accused stopped her and made her to smell something and she became unconscious and thereafter, she was taken to unknown place. When she regained consciousness and she tried to raise alarm, the accused again put something on her nose and she again became unconscious and when the accused was taking her to somewhere else, two police officials met them and asked the accused as to where he was taking her and thereafter, those police officials brought her to her home and informed their parents.
56. On analyzing evidence on record, I find that the evidence of prosecution is abundantly clear on the point that accused took the prosecutrix at unknown address by smelling something to her and when she regained her consciousness, she found her salwar up to her knee. When she raised alarm he again made to smell her something and she again became unconscious. These acts have clearly established that intention of the accused was to seduce her to illicit intercourse. Thus, it has been established beyond reasonable suspicion and shadow of doubt that the accused committed offence of procuration of prosecutrix punishable u/s 366A IPC.
57. My decision in this regard finds support by principles of law laid down in case of Tarkeshwar Sahu v.
SC No.73/13 State vs. Sahil Abbas @ Amit Page 25 of 35State of Bihar, (supra), wherein it was held by the Apex Court that:
"30. The essential ingredient of the offence punishable under Section 366 IPC is that when a person has forcibly taken a minor girl with the intention as specified in that section, then the offence is clearly made out. In the instant case, the appellant at about 1.30 a.m. has forcibly taken the prosecutrix/victim to his gumti with the intention of committing illicit intercourse then the offence committed by the appellant would fall within the four forecorners of Section 366 IPC. In our considered view, the essential ingredients of the offence punishable under Section 366 IPC are clearly present in this case. We deem it appropriate to briefly reproduce the ratio of some decided cases.***
33. The High Court of Delhi in Niranjan Singh v. State, indicated that in what circumstances an offence under Section 366 IPC is made out. In this case, the Court, while dealing with a case under Section 366 IPC, observed as under: 9Crimes p. 336, para 5) Where from the statement of prosecutrix, a girl of six years age it was evident that the accused took her on the pretext of getting her some biscuits to public toilets took off her salwar and also his own pant made her to lie on the floor and bent down on her when he was caught hold by a watchman in the locality, the accused would not be guilty of an attempt to rape however, he would be guilty of an offence under Section 366 IPC."
Causing hurt by means of poison etc.
58. In order to prove its case that the accused committed an offence of causing hurt by means of poisons etc., punishable u/s 328 IPC, prosecution has to prove firstly that the accused administered either poison or stupefying, intoxicating or unwholesome drug to the prosecutrix; and secondly, that act was committed on the SC No.73/13 State vs. Sahil Abbas @ Amit Page 26 of 35 prosecutrix with the intention to commit or to facilitate the commission of an offence or knowingly it to be likely that he will thereby cause hurt to the prosecutrix.
59. PW3 on this aspect deposed, inter alia, that when she was returning back after purchasing of bread from a hotel situated at street No.3, Bhagirathi Vihar Delhi on 19.10.2011 at 6 p.m., accused stopped her and made her to smell something. Consequent to smelling the things put by the accused, she became unconscious. When she regained her consciousness, she found herself at unknown place and her salwar was found pull down up to her knee. She tried to raise alarm. Accused again put something on her nose and she again became unconscious. In the cross examination, she denied the suggestion that she was not made to smell something or she did not regain her consciousness or she did not raise alarm and the accused did not again put something on her nose or she again did not became unconscious. The testimonies of her mother PW4 and PW7 father are relevant as they are relevant witnesses as per principle of res gestate as provided under section 9 of the Indian Evidence Act. They supported the testimonies of the prosecutrix in that regard. There is no reason to disbelieve the testimony of the prosecutrix and her parents particularly when her testimony has been SC No.73/13 State vs. Sahil Abbas @ Amit Page 27 of 35 found as consistent, wholly reliable and trustworthy Therefore, it stands proved on record beyond reasonable suspicion and shadow of doubt that accused committed the offence of causing hurt by poisonous means.
Summary of findings
60. In view of the above reasons, discussion and evidence on record and particularly discussed here in above, it is held that prosecution has proved beyond reasonable suspicion and shadow of doubt that accused committed offence of causing hurt by poisonous substance punishable u/s 328 IPC; offence of procuration of minor girl punishable u/s 366A IPC; offence of outraging the modesty of the prosecutrix punishable u/s 354 IPC. As per the reasons and discussion mentioned here in above, it is also held that prosecution could not prove its case against the accused beyond reasonable suspicion and shadow of doubt that he committed offence of rape punishable u/s 376 IPC. Besides above reasons, the other reasons which support this decision are firstly, that the arguments of Ld. Defence Counsel is not convincing that accused has been falsely implicated by the father of the prosecutrix due enmity or in order to take revenge from him.
61. Secondly, the arguments of Ld. Defence Counsel SC No.73/13 State vs. Sahil Abbas @ Amit Page 28 of 35 that it was not probable for the accused to commit offence as alleged against him as the place was public place and public persons were also available is not convincing as offence can be committed at any place. There is no material on record to show that it was highly improbable for the accused to commit the offences alleged and proved against him.
62. Thirdly, the testimony of defence witness has failed to create any reasonable suspicion and shadow of doubt in the truthfulness of the prosecution case or to prove the defence of the accused that he was falsely implicated by the complainant in connivance of her daughter.
63. Fourthly, there is no evidence on record showing any motive or reason for the prosecutrix to depose falsely against the accused particularly when he was her relative unless he had committed the alleged crimes on her. The accused has failed to prove his defence that he was falsely implicated by the prosecutrix. My view finds support by a case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 1983 A.I.R. (S.C.) 753, wherein the Apex Court observed:
"***Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or SC No.73/13 State vs. Sahil Abbas @ Amit Page 29 of 35 a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites."
[Emphasis supplied]
64. Lastly, it is not only the duty of the judge to see that one innocent person should not be punished even if hundred offenders are allowed to go scot-free but also he has to see that the accused who has committed the crime must not go unpunished. It is also duty of the court to separate the grain from the chaff as held in case of Bhagwan Dass vs. State (NCT of Delhi), (2011) 6 SCC 396.
CONCLUSION
65. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that prosecution has proved beyond reasonable suspicion and shadow of doubt that the accused committed offence of causing hurt by poisonous substance etc., punishable u/s 328 IPC; offence of procuration of minor girl punishable u/s 366A IPC; and offence of outraging the modesty of the prosecutrix punishable u/s 354 IPC. It is further held that prosecution SC No.73/13 State vs. Sahil Abbas @ Amit Page 30 of 35 has failed to prove its case against the accused beyond reasonable suspicion and shadow of doubt that he committed offence of rape punishable u/s 376 IPC.
66. Accordingly, the accused is acquitted for the offence of rape punishable u/s 376 IPC and convicted for the offence of causing hurt by poisonous substance punishable u/s 328 IPC, offence of procuration of minor girl punishable u/s 366A IPC, and offence of outraging the modesty of the prosecutrix punishable u/s 354 IPC.
Announced in the Open Court Dated: 09.05.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.73/13 State vs. Sahil Abbas @ Amit Page 31 of 35 IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI SC No.73/13 State vs. Sahil Abbas @ Amit FIR No.375/11 PS Gokal Puri State Versus Sahil Abbas @ Amit ORDER ON SENTENCE 15.05.2013 Present: Ms. Madhu Arora Addl. P.P. for the State.
Convict/accused in J.C. Sh. Gaurav Vashishtha Advocate/amicus curiae for the convict/accused.
I have heard arguments on the quantum of sentence.
2. It has been argued on behalf of Ld. Defence Counsel that accused/convict is a young boy of 32 years of age; he belongs to a poor family; he has aged parents to maintain; he has no other family member to look after his family; he is the only bread earner in the family as he has only two younger brothers and two younger sisters; he has no previous criminal record; he has already been in jail for about 19 months; and if he is again sent to jail his life may SC No.73/13 State vs. Sahil Abbas @ Amit Page 32 of 35 be ruined. It has been prayed that lenient view in sentence may be taken and accused may be released on the sentence which he has already undergone.
3. In support of his arguments, he relied on a case, Raju v. State, NCT of Delhi 2004 (109) DLT 953 wherein the accused was ordered for release on the sentence that is one year and six months, which he has already undergone.
4. On the other hand, it has been argued on behalf of Ld. Additional Public Prosecutor that deterrent punishment may be awarded to the accused as the lenient view is undesirable and it goes against the society.
5. On perusal of the ruling, Raju v. State, (supra), I find that facts of that case and present case are different therefore, that would not provide any benefit to the accused in the present case.
6. Keeping in view the submissions and all relevant factors and circumstances in which the accused committed crime, it would be just and appropriate if moderate view in sentence is taken. Accordingly, convict/accused Sahil Abbas @ Amit is sentenced to undergo rigorous imprisonment for 5 years and he is further sentenced to SC No.73/13 State vs. Sahil Abbas @ Amit Page 33 of 35 pay a fine of Rs.6,000/- in default simple imprisonment for one year for the offence punishable under section 328 IPC.
7. Convict/accused Sahil Abbas @ Amit is further sentenced to undergo rigorous imprisonment for 5 years and he is further sentenced to pay a fine of Rs.6,000/- in default simple imprisonment for one year for the offence punishable under section 366A IPC.
8. Convict/accused Sahil Abbas @ Amit is further sentenced to undergo rigorous imprisonment for 1 year and 6 months and he is further sentenced to pay a fine of Rs.3,000/- in default simple imprisonment for four months for the offence punishable under section 354 IPC.
9. All these sentences will run concurrently.
10. It is further ordered that if convict/accused Sahil Abbas @ Amit has undergone any period in judicial custody, that period will be set off against the sentence as provided U/s 428 Cr. P.C.
11. Out of the fine amount, and after expiration of the period of appeal, a sum of Rs.10,000/- be paid to the SC No.73/13 State vs. Sahil Abbas @ Amit Page 34 of 35 prosecutrix as compensation. Besides this compensation, she will also be entitled to get other compensation, if available to her under other laws.
12. The convict/accused Sahil Abbas @ Amit be sent to imprisonment to serve the sentence.
13. A copy each of judgment and order on sentence is supplied to convict/accused Sahil Abbas @ Amit free of cost.
File be consigned to Record Room.
Announced in the Open Court Dated:15.05.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.73/13 State vs. Sahil Abbas @ Amit Page 35 of 35