Delhi District Court
State vs Vinod @ Kalu on 28 March, 2009
1
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE01SOUTH
PATIALA HOUSE COURTNEW DELHI
Sessions Case No : 105/08
State vs Vinod @ Kalu
S/o Veer Bahadur
R/o F1857, Netaji Nagar,
New Delhi.
FIR No. 135/07
PS : Sarojini Nagar
U/S 363/376/506 IPC
Date of Institution : 1/12/08
Date when arguments
were heard : 12/03/09
Date of judgment : 23/03/09
JUDGMENT
The SHO P.S. Sarojini Nagar has challaned the accused by alleging commission of offences under Sections 363/376/506 IPC. Keeping in view the provisions of section 228 (A) IPC and the dicta of the Hon'ble Supreme 2 Court in State of Karnataka Vs Puttraja (2004 (1) SCC 475) and Om Prakash Vs State of Uttar Pradesh 2006 Cri.L.J. 2913 the name of prosecutrix is being not given in the judgment. Ld. Metropolitan Magistrate after supplying of copies and documents to the accused and complying with the provisions of section 207 Cr.P.C has committed the case to the court of Sessions as provided in section 209 Cr.P.C. BRIEF FACTS:
The prosecution case, in brief ,is that on 15.3.07 HC Udai Ram received DD No. 54 A for inquiry and he along with Ct. Anil Kumar went to H. No. G 2285, Netaji Nagar, New Delhi where the complainant Smt. Sushila Minz made complaint against accused Vinod alleging in short the commission of rape by accused on her daughter Alka and that she made hue and cry and took her daughter in her possession from accused. The accused threatened that if he was caught by them he would kill them. The accused was over powered by Rakesh Nautiyal and other neighbours thereafter FIR was registered in this case on the statement of the 3 complainant, the mother of the prosecutrix. The investigation was conducted by Woman SubInspector Asha Sinha who prepared site plan, recorded statement of the witnesses, arrested the accused, took in possession the pant of the accused and undergarments of the prosecutrix Alka, got the accused medically examined and got the statement of prosecutrix recorded u/s 164 Cr.P.C by the Ld. Metropolitan Magistrate, sent the exhibits to the FSL for forensic report. After completion of the investigation, filed the challan through SHO/ACP concerned, as referred before.
CHARGES AND PLEA OF THE ACCUSED The prima facie case for the offences under Sections 363/376(f)/506 IPC was found made out against the accused so the charges were framed accordingly against him on 22.8.07 to which the accused pleaded not guilty and claimed trial.4
PROSECUTION EVIDENCE In support of its case, the prosecution has examined 15 witnesses in all. PW1 is Smt. Sushia Minz, the complainant who has stated, in brief, that on 15.3.07 at about 5.30 pm, she was present in her house. Her children Alka aged9 years and Puneet aged 15 years were playing in the ground in front of her house. At that time, she heard noise of Mrs. Leela Mehta who raised alarm "chorchor, pakdopakdo" and the accused pushed her daughter and wanted to run away from the spot. They again raised alarm and many persons including children as well as Mr. Rakesh one of their neighbour, came there and caught hold of the accused. At the time , the accused was being captured, he threatened them to kill and he stated that he had already suffered judicial custody for about 7 years and had come out 15 days ago. The witness proved her police report Ex. PW1/A and had stated that accused did not commit anything wrong with her daughter and stated accused wanted to commit rape on her daughter 5 and for the said purpose, he was removing clothes of her daughter. The witness also proved the arrest memo of accused Ex. PW1/B, the personal search of accused Ex. PW1/C. She stated that undergarments were seized vide memo Ex. PW1/D, the seizure memo of clothes of accused is proved as Ex. PW1/E. She also stated that her daughter was taken to hospital for medical examination and she also signed MLC of her daughter Ex. PW1/F. As the witness resiled partly from her previous statement, the Ld. Additional Public Prosecutor was allowed to cross examine her and in the cross examination on behalf of State, the witness denied that accused was raping her daughter.
PW 2 is Smt. Leela Mehta who stated that on 15.3.07 at 5.30 PM, she was preparing her evening meal and the children were playing in the ground outside her house and the accused also came and he lifted one girl aged about 9 years so she raised alarm "chorchor, pakdopakdo" . On her noise, mother of the said girl also came there. She alongwith mother of said girl reached behind the quarter where the accused was trying to 6 remove the clothes of the said girl. The name of said girl was known as Alka. On seeing them, accused got preplexed and he pushed Alka. Alka was then picked up by her mother. The accused tried to run away. They raised alarm and on hearing the same, other children also came there and accused was apprehended by Mr. Rakesh Nautiyal who had also come there. This witness was also cross examined by Ld. Additional Public prosecutor of the State as she was also resiling from part of her previous statement given to the police. In her cross examination, she denied that she stated to the police, when she and mother of Alka reached the spot, accused had laid Alka on ground and had also removed her clothes and his clothes and that accused was committing rape with Alka. She however, admitted that it was correct that Sh Rakesh one of the neighbours, with help of other person had apprehended the accused. At that time, accused threatened to kill them.
PW 3 Sh. Rakesh has stated that on 15309 at around 5.30 PM he heard the noise of 'Pakdo Pakdo' by some people. He came out of house 7 and saw some people running he also started also running and captured the accused with the help of other persons. Accused tried to run away but was not allowed to do so. Accused also extended threats that he had suffered seven years of jail and he would see them.
PW4 is prosecutrix herself whose preliminary examination was conducted and questions were put to her to ascertain that she was a competent witness. In her statement she stated that on 15309 at around 5.30 PM she along with her friends were playing in the ground in front of her house. Accused came to them and started roaming around her then he came at her back side and pressed her mouth and lifted her and took her to the staircase behind her house and removed her clothes and also started removing his clothes. At the same time her mother alongwith aunt namely Ms Leela Mehta came there and raised alarm and cried for help and accused on seeing her mother and aunt became perplexed and tried to run away. On hearing the cry of mother and aunt the crowd gathered and apprehended the accused. Thereafter she was taken to hospital by her 8 mother. She medically examined but later on her mother refused for further and extensive check up.
PW5 HC Uday Ram stated that after he was handed over DD No.34 through Ct Ran Tej he went to the spot. A large number of people were present there including the mother of prosecutrix namely Sushila Minj. She gave her statement to him which is exhibit at PW1/A. He made his endorsement which is exhibit at PW 5/A and got the FIR registered by sending rukka to the police station through Ct. Anil Kumar. After registration of the FIR further investigation of this case was handed over to SI Asha Sinha. She also reached the spot and then accused who was handed over to IO SI Asha Sinha. He also stated that clothes of the accused were seized in his presence vide seizure memo Ex. PW1/E. This witness identified one light blue colour pant as Ex. PW5/1 and also one kachhi (underwear of child) Ex. PW5/2.
PW6 HC Shiv Narayan stated that on 15309 he was working as Head Constable at PS Sarojini Nagar as Malkhana Mohurer. On that day 9 SI Asha Sinha deposited exhibits of this case in a sealed condition which is entered at Serl No.1233. On 28307 the exhibits were sent to FSL Rohini vide RC No. 132/21 through Ct. Ramesh and entry in this regard was made in malkhana register. On 151007 three sealed parcels were received in malkhana in intact condition. This witness proved the copy of register containing entry No. 1237 as Ex. PW 6/A and copy of original RC register containing RC no. 132/21 as Ex PW6/B. PW7 HC Vijay is Duty Officer and has proved the copy of FIR as Ex PW7/A. PW8 Constable Anil Kumar has stated, in brief, that on 15/3/07 he was on emergency duty from 8 am to 8 pm. At about 5.45 pm a call was received. He along with Head Constable Udai Ram went to the spot. He corroborated with the statement of PW5 HC Udai Ram with regard to visit at the spot and arrest of the accused and seizure of the pant of the accused and undergarments of the prosecutrix.
PW9 is Dr Savita and has stated that on examination of the prosecutrix on 15/3/07 she found two small transverse bruises about 2 cm 10 x 2 cm over her cheek and redness over the lower abdomen. She has also stated that mother of the prosecutrix has refused for local internal examination and has signed the MLC at point A. She proved the MLC Ex PW1/F. There is no PW10, examined by the prosecution.
PW 11 is Dr Yogesh Tyagi who conducted medical examination of the accused and has proved his report Ex PW11/A and has stated that there was nothing to suggest that accused was incapable of performing sexual intercourse.
PW12 is constable Kartar Singh and has stated, in brief, that he took the accused along with constable Hanuman to Safdarjung hospital in Forensic Department where the blood sample of the accused was taken and sealed with the seal of hospital and it was seized by investigating officer SI Asha Sinha vide memo Ex PW12/A. PW13 is woman SI Asha Sinha who has deposed about various steps taken by her during investigation of the case against accused. She has proved that she prepared site plan at the pointing of the prosecutrix 11 which is Ex PW13/A. She corroborated the statement of PW1 with regard to arrest of the accused and seizure of pant of the accused and undergarments of the prosecutrix. She proved the report of FSL ex PW13/B and Ex PW13/C and has stated that on completion of investigation she submitted the case file to SHO for filing challan.
PW14 is Head Constable Ramesh Chand who has stated that on 28/3/07 he took the exhibits of this case vide road certificate from police station Sarojini Nagar and deposited them at the office of FSL Rohini, untampered.
PW15 is Head constable Hanuman who corroborated with the statement of PW12 with regard to medical examination of the accused. PLEA AND DEFENCE OF THE ACCUSED After the prosecution evidence was concluded, the statement of the accused with regard to incriminating evidence against him was recorded 12 under section 313 CrPC. Accused has either denied the incriminating evidence from the prosecution evidence put to him or has expressed his ignorance about the same. His defence is that he had gone to Sushila's house at G 2262 to get his money Rs 25000/ which was given by him to the brother Sunil of the Sushila in the year 2000 that is why he has been falsely implicated in this case by Smt Sushila Minj. When he reached her home he was beaten by Sushila, Rakesh Nautiyal, Sushil and thereafter he became unconscious. When he felt consciousness he reported the matter with the police station Sarojini Nagar but his complaint was not received by the police station Sarojini Nagar and thereafter he came back. He stated that the witnesses have deposed falsely against him because he has personal enmity with Sushila and her brother. He also stated that he has been falsely implicated in this case. Accused did not lead any defence evidence despite opportunity given to him.
Learned Additional Public Prosecutor has argued that public witnesses by corroborated evidence have supported the prosecution case 13 which is also corroborated by the official witnesses with regard to recovery of pant of accused and undergarments of the prosecutrix so the charges framed against accused are proved by the prosecution.
Arguments on behalf of the accused are that there is contradictions in the statement of public witnesses. It is argued that statement of PW3 is hearsay evidence and can not be relied upon. It is argued that as regard the apprehension of the accused, PW2 has stated in examination in chief that Rakesh caught hold of accused while PW3 has stated that crowd apprehended the accused. it is argued that PW8 constable Anil has stated in cross examination that he did not meet the investigating officer before 8.45 pm but IO has stated that she reached the spot at 6.15 pm. It is also argued that the mother of the prosecutrix did not permit the doctor for her internal examination so the offence of rape is not proved. It is further argued that prosecution case is doubtful so accused is entitled to be acquitted.
I have heard learned Additional Public Prosecutor for the state. 14 learned amicus curie Sh N.K. Srivastava, Advocate for the accused and have gone through the evidence adduced on record and relevant provisions of law, carefully.
As regards the charge of rape under section 363 IPC framed against accused the eye witness account of the public witnesses only shows that accused took prosecutrix who was playing outside her stair case behind her house. The facts and circumstances of the case do not warrant the inference that accused wanted to kidnap the prosecutrix out of her lawful guardianship. Therefore, the offence under section 363 IPC is not made out against the accused.
As regards offence under section 376(2)(f) IPC alleged against the accused, none of the prosecution witnesses has stated that the accused attempted sexual intercourse with the prosecutrix. The prosecutrix PW4 has only stated that accused laid her down on the stair case and removed her clothes and he also started removing his clothes, and at that time her mother and Aunt Leela Mehta came there. They raised alarm and accused 15 became perplexed and tried to run away. In the cross examination conducted on behalf of the State, the prosecutrix denied that accused removed his clothes and inserted his penis into the vagina and/or that she cried and on hearing her cry her mother and aunt came. She was confronted with the portion A to A of her statement Ex PW4/B recorded by the police. Therefore, the statement of the prosecutrix does not show the commission of sexual intercourse or rape by the accused.
The mother of the prosecutrix PW1 Smt Sushila Minj has also not stated in the examination in chief about commission of sexual intercourse by the accused with her daughter. She has specifically stated in examination in chief that accused did not commit anything wrong with her daughter. She stated that the accused wanted to commit rape with her daughter and for that purpose he was removing the clothes of her daughter. In the cross examination she denied the suggestion of learned Additional Public Prosecutor that she saw that accused was raping her daughter and she was confronted portion A to A of the complaint Ex 16 PW1/A where it was so recorded and this witness volunteered that accused wanted to commit rape with her daughter but they reached there before commission of rape.
Similarly PW2 Smt Leela Mehta has also stated that she saw accused was trying to remove clothes of prosecutrix. On seeing them accused was perplexed and he pushed the prosecutrix. Prosecutrix was then picked up by her mother. This witness has also in the cross examination on behalf of the prosecution denied the suggestion that the accused had removed the clothes of the prosecutrix and his clothes and he was committing rape with prosecutrix. She was also confronted portion A to A of statement Ex PW2/A. Therefore, the public witnesses PW4 prosecutrix,PW1 Smt Sushila Minj her mother and PW2 Smt Leela Mehta neighbour who were produced by the prosecution for proving the rape by the accused on the prosecutrix have not supported the prosecution case on the charge of rape under section 376(2) (f) IPC. But the matter does not end here. The question still arises whether in the given facts and 17 circumstances of the case, accused who can not be convicted under section 376 (2)(f) IPC can be convicted for attempting to commit the said offence.
When the prosecution is not able to prove the commission of the offence under section 376 IPC by the accused but instead has been able to prove its attempt by the accused, the accused can be convicted under section 376/511 IPC instead of under section 376 IPC. ( See Sithu Vs State AIR 1976 Raj 149, 1967 CrLJ 920; Manik Debnath Vs State of Tripura 1999 CrLJ 607( Gau); S Krishna Vs State of Karnataka 1998 CrLJ 785( Kant) (DB). In another case when the evidence showed that even though the accused persons had forcibly taken the prosecutrix to a room and undressed her with a complete intention of committing sexual intercourse upon her, had ultimately only succeeded in making an attempt in furtherance of their heinous crime, and the medical testimony completely pointed to her completion of sexual act to establish the charge of rape against the accused, the conviction of the accused persons under section 18 376 was altered to one under section 376 read with section 511.( See Kuldeep Kumar alias Bittu and Anr V State of Punjab 2007 CrLJ 3338 (P&H).
In the present case, there is no evidence of penetration from the eye witness account or the medical evidence. The local internal examination of the prosecutrix was refused by her mother. But the MLC of the prosecutrix Ex PW1/F shows two small transverse bruises about 2 cm x 2 cm found over each cheek of the prosecutrix. 34 small black spot over lower abdomen and redness was also seen over lower abdomen of the prosecutrix. These injuries on the person of prosecutrix are depicted in the MLC Ex PW1/F and statement of Doctor Savita PW9 coupled with the statement of prosecutrix and her mother PW1 Smt Sushila Minj and PW2 Smt Leela Mehta, neighbor shows that accused had put off his clothes and that of the prosecutrix and attempted to commit rape when PW1 and PW2 reached there and made hue and cry so accused withdrew from committing sexual intercourse. These statements of PW1,PW2 and PW4 19 and the MLC of the prosecutrrix Ex PW1/F and also FSL report Ex PW13/B and Ex PW13/C which read together show the A group blood on the undergarments of the prosecutrix and AB group on the pant and clothes seized from the accused, certainly show that accused attempted to commit rape on the prosecutrix in this case. Therefore, the accused though charged for commission of rape under section 3769( 2) (f) IPC is liable to be convicted for attempt of said offence under section 376 (2)(f) IPC/511 IPC. As the prosecution has proved the offence of attempt to commit rape on the prosecutrix on the said date and place, the contradictions as pointed out by the amicus curie for the accused in his arguments and referred before are only minor in nature and natural on account of lapse of time between date and commission of the offence and the date of examination of the witnesses, therefore these contradictions are not sufficient to create dent in the prosecution case.
As regards section 506IPC, PW1 has stated when accused was being captured by the persons present he threated them to kill. PW2 Smt 20 Leela Mehra has also stated in the cross examination conducted on behalf of the State that Rakesh Nautiyal one of their neighbour with the help of other persons apprehended the accused and he threatened them to kill and she voluntarily said that the accused also exhorted that he had suffered jail for 7 years and if he will be apprehended/arrested then he would beat and kill them on his release. PW3 Rakesh Nautiyal though has stated that accused extended threat to them that he has suffered 7 years of jail and he would see them but he failed to state that accused threatened them to kill. But the statement of PW1 and PW2 looks to be reliable and corroborated to establish that threat to kill was extended by the accused at the time of his apprehension by the public persons. Therefore, prosecution has also proved the charge under section 506 IPC against the accused. RESULT OF THE CASE In view of the above, discussion I hold that prosecution has been 21 able to prove its case against accused for the offences punishable under sections 376 (2) (f)/511 IPC and under section 506 IPC, however, prosecution has failed to prove the charge under section 363 IPC and under section 376 (2) (f) IPC.
Accused is acquitted of the charge under section 363 IPC but convicted under sections 376 (2) (f)/511 IPC and also for the offence under section 506 IPC. Let accused be heard on the point of sentence.
Announced in the open
court on 23/03/09 ( S K Sarvaria )
Additional Sessions Judge01/South
Patiala House Court
22
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE01SOUTH
PATIALA HOUSE COURTNEW DELHI
Sessions Case No : 105/08
State vs Vinod @ Kalu
S/o Veer Bahadur
R/o F1857, Netaji Nagar,
New Delhi.
FIR No. 135/07
PS : Sarojini Nagar
U/S 37692)(f)/511/506 IPC
ORDER ON SENTENCE
Vide my judgment dated 23/3/09 accused Vinod @ Kali has been convicted for the charges under sections 376(2)(f)/511/506 IPC.
Learned Additional Public Prosecutor has argued for deterrent punishment to the accused in view of the serious offences proved against 23 him. The ld Addl PP has also argued that the convict was earlier involved in eight other criminal cases including one case FIR 161/94 dt 12.3.94 under Section 363/376 of Police Station R.K. Puram and he is habitual offender as shown in list of Criminal Cases dated 03.04.07 filed, by MHCR Police Station Sarojini Nagar, which were registered against the convict in different police stations,so no leniency should be taken against convict.
On the other hand, Sh. N K Srivastava, learned amicus curie for the convict has argued that convict is in custody since about last two years so a lenient view may be taken against convict and at present no criminal case is pending against him so he deserves leniency and he should be sentenced to the period of custody already undergone by him.
I have heard learned Additional Public Prosecutor for the State and learned amicus curie for the convict and have gone through the relevant provisions of law.
The convict is found guilty of attempt to commit rape on a female 24 child aged about 09 years. The clause (f) of sub section (2) of section 376 IPC prescribes the sentence of Rigorous Imprisonment for a term which shall not be less then 10 years but which may extend for life. In addition sentence of fine is also prescribed. The proviso to sub section 2 of section 376 IPC, however, gives discretion to the Sessions Courts to award imprisonment for a term less than 10 years for adequate and special reasons to be recorded in the judgment. The above sentence is prescribed with regard to commission of offence of rape on a female child. There is no specific provision in the Indian Penal Code prescribing the sentence for the offence of attempt to commit such rape. The section 511 IPC prescribes the half of the imprisonment for attempt to commit offences in such cases or fine which is prescribed for completed offence including that of rape.
Attempt to commit rape is definitely a serious offence. It touches the dignity and honour of a woman( See Gannath Fena Vs State of Orissa 1996 Cri.L.J. 229 (Ori); Fagu Bhoi Vs State of Orissa (1992)1 Crimes 25 10 ( Cri). Where the evidence on record showed that the accused attempted to commit rape on a girl of tender age of 12 years and he himself had a daughter aged eight years at the time of commission of the offence, it was held that the sentence of five years Rigorous Imprisonment and fine of Rs 40,000/ would meet the ends of justice. ( See State of Maharashtra Vs. Rajendra Jawannal Gandhi 1997 Cri.L.J. 4657(SC). Where the conviction of the accused was altered from section 376 to sub section 376/511 IPC and the prosecutrix was 10 years old, the accused was sentenced to undergo Rigorous Imprisonment for five years and pay a fine of Rs 2000 and in default of which to undergo rigorous imprisonment for one month. ( See S Krishma Vs State of Karnataka 1998 Cri.L.J. 785 ( Kant) (DB); Public Prosecutor, High Court of Andhra Pradesh Vs Lingisetty Sreenu 1997 Cri.L.J. 4003 (AP).
In view of the above legal position with regard to seriousd offence of attempt to commit rape on a minor female child the minimum 26 imprisonment for five years, in my view together with nominal fine shall meet ends of justice in this case. Therefore, convict Vinod @ Kalu is sentenced to undergo Rigorous Imprisonment for five years and to pay a fine of Rs 500/ for the offences under Sections 376(2)(f)/511 IPC. In default of payment of fine convict shall undergo simple imprisonment for two months. I further sentence the convict to undergo Rigorous Imprisonment for one year for the offence punishable under Section 506 IPC and also to pay a fine of Rs 50/. In default of payment of fine convict shall undergo simple imprisonment for 15 days. The substantive sentences of imprisonment of convict shall run concurrently for both offences.
The period of detention already undergone by convict during the period of investigation and trial of this case shall be set off against the term of imprisonment imposed against the convict by this order, as provided under section 428 CrPC.
Judgment and order on sentence be sent to server 27 (www.delhidistrictcourts.nic.in). Copy of judgment and order on sentence be supplied to convict free of cost.
File be consigned to record room.
Announced in the open
court on 28.3.2009 ( S K Sarvaria )
Additional Sessions Judge01/South
Patiala House Court