Delhi District Court
State vs Manas on 27 January, 2014
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 52/13
Unique ID No. : 02401R0109762013
State versus Manas
S/o Sh. Ram Charitra
R/o D211, 2nd Floor,
Gandhi Vihar, Delhi
Permanent Address:
Vill. Badhaiya PS Badhaiya
Distt. Lakhi Sarai Bihar.
Case arising out of:
FIR No. : 292/12
Police Station : Timarpur
Under Section : 376/328 IPC
Judgment reserved on : 17.01.2014
Judgment pronounced on : 27.01.2014
JUDGMENT
Prosecution Case It is the case of the Prosecution that the Prosecutrix 'RK' (name withheld in order to protect her identity) on 31.12.2012 made a complaint of rape against the accused Manas. She stated that she is staying in a hostel at AIT School of Management and is pursuing PGDM from the said Institute. Her permanent address is Gandhi Nagar Mohalla, Purnia and at present her parents are residing at 6D/2, Laxmi Niwas, Shiv Bhawan Lane, Morabahi, Ranchi, Jharkhand. She got married to Sh.Anand Kumar S/o Sh.Anil Kumar Singh in January, 2011 and is living separately since June, 2011 from her husband. She further stated in her complaint that she used to talk to accused Manas on mobile phone, who was residing at D211, 2nd Floor, Gandhi Vihar, Delhi and also the friend of her husband. After separation from her husband, the Prosecutrix and accused started talking on phone more frequently and accused had called her to his flat to get the matter compromised with her husband. She further alleged that on 09.12.2012, accused Manas had called her to meet him at Kashmere Gate where she met him and there at about 3 PM. Upon his insistence, she accompanied him to his flat at D211, 2nd Floor and reached there at about 4 PM. She also alleged that first accused made her to eat food and then he offered her cold drink, after consuming the same, she became unconscious. She regained her consciousness at about 11 PM and she found that she was being raped by the accused in the state of unconsciousness. Upon her asking, accused started quarreling with her and by that time her condition got deteriorated.
Prosecutrix in her complaint further alleged that accused Manas had made false assurances of love and marriage with her and had told that if she disclose this to the police then it would harm her family reputation. Due to fear, she slept for whole of the night at the house of the accused and left for her hostel in the morning next day. She further alleged that thereafter accused started extending threats to her and also refused to marry her. She further alleged that the accused had done this with connivance of her husband during the period of her separation. She further stated in her complaint that the friends of her husband namely Raghvendra Kumar, Madhvendra Kumar and Abhay were also aware of this and that accused was also known to one Anupam, who was the friend of her husband and was also involved in this. She further alleged that he also started torturing her like her husband and had instigated her to commit suicide.
On the basis of her complaint the case was registered vide DD No.38A and a case under Section 376/328 IPC was registered against accused Manas. During the course of investigation Prosecutrix was got medically examined at Aruna Asaf Ali Hospital and accused was arrested at the instance of Prosecutrix. His medical examination was also got conducted at Aruna Asaf Ali Hospital vide MLC No.2864/12 dated 31.12.2012. The exhibits collected from the hospital were seized and deposited in the malkhana. Statement under Section 164 Cr.PC of the Prosecutrix was also got recorded before the ld. MM. During the course of further investigation, Prosecutrix produced the clothes which she was wearing on the date of the incident. The same were taken into police possession and were duly seized and deposited in the malkhana. Exhibits were sent to the FSL for analysis.
During the course of further investigation, Raghvendra, Madhvendra and Anand were also interrogated. However, finding no sufficient proof against them with regard to their involvement in the case in hand, they were released. Whereas, Anupam and Abhay were not traced despite best efforts by the police as the Prosecutrix had not disclosed their whereabouts except their names and there were no sufficient proof against them.
Further investigation was completed and charge sheet was filed before the court.
Charges :
Upon committal of the case, on the basis of material on record, accused Manas S/o Sh.Ram Charitra was charged for offence punishable under Section 328/376 IPC. Accused pleaded not guilty and claimed trial when charges were read over and explained to him.
Prosecution Evidence :
Prosecution examined 06 witnesses to prove its case. For the sake of clarification, both Dr.Surendra Kumar as well as Prosecutrix were examined as PW1 inadvertently. In order to avoid confusion, both of them be read as PW1 in the following paragraphs of the judgment.
Prosecutrix 'RK' deposed that she got married to Anand Kumar on 14.01.2011 and was living separately from her husband since June, 2011. She correctly identified the accused in the court and deposed that he is the friend of her husband and was residing in DBlock, Gandhi Vihar, Delhi. She further deposed that in October, 2012, she filed a case under Section 498A/406 IPC at Vaishali, Bihar and accused Manas started making telephone calls to her and told her that he would get the matter compromised with her husband but she was not able to trust him as in earlier negotiations, all the mediators spoke on behalf of her husband only. She further deposed that her husband was not providing his present address to her and Accused Manas told her the then address of her husband. She went to that address and found her husband residing at that address in Wazirabad. So, she started trusting accused Manas. Accused Manas was acting as mediator between her and her husband and she started trusting accused Manas. It was decided that she, her husband and accused Manas would meet for compromise talks. She wanted to talk with Manas as she wanted to know about personal life of her husband.
PW1 Prosecutrix 'RK' further deposed that on 09.12.12, she had come to Nehru Vihar for some work as at that time she was living in the hostel at AIT School of Management, Greater Noida. She waited for accused Manas at ISBT. She was on contact on telephone with accused Manas and her husband and enquired from them as to where and when they would come. At about 3.30 PM, accused Manas came at ISBT. He was on motorcycle. Earlier, it was decided that Anand, her husband would come at park and meeting would be held there, but accused Manas told her that he had not taken lunch and his lunch is ready at his house. So, he took her to his house on motorcycle. On reaching at his house, she told him that she would wait downstairs and he could come after taking the lunch. But accused told her to come inside his house and wait there. Accused Manas also called his friend Pranav there and made her believe that he is a good person. They went in his house where they took meal in the house of accused Manas and accused Manas asked Pranav to bring cold drink. Pranav went and brought the cold drink. Accused Manas and Pranav came in the room with cold drink in glasses. Pranav consumed his cold drink and at that time, he received a telephone call and went away from the house of accused Manas. She further deposed that Accused Manas offered her cold drink and he himself also took cold drink. After consuming the cold drink, she started feeling sleepy. Accused Manas told her that she is taking lot of tension and for that reason, she started feeling sleepy and accused advise her to take rest. At about 1011 PM, she woke up and found herself and accused Manas under a quilt. She found herself naked. She felt that accused Manas had established physical relations with her taking advantage of her condition. She started quarreling with accused Manas as to why he did the same with her. Accused Manas told her that he loves her and if her matter with her husband is not compromised, he would marry her and he also told so to her in earlier talks. She told accused Manas that she would report the matter to the police. But he told her that she would gain nothing by filing the police complaint and that she would gain bad name and her husband would get privilege of the same. He told her that he would support her in her case against her husband. Her condition deteriorated after that and she vomited and was in fever. Accused told her that he would get her divorce at the earliest and would marry her after that.
She went to her hostel on the next day after picking her goods which were lying in the house of her friend. Thereafter, she was in touch on telephone with accused Manas and asked him about the divorce from her husband. But accused gave evasive replies and try to make her fool. After few days, accused told her that she can do whatever she want to do and he will not marry her as there will be no medical evidence against him. She tried her best to reconcile the matter but without any success on 31.12.12, she went to the PS Timarpur and made a complaint Ex. PW1/A. She further deposed that on 10/11.12.12, she had a talk with her husband on telephone and after the same, she felt that her husband and accused were in connivance. When she confronted accused with the same, he refused and told that her husband is trying to create a misunderstanding but later on accused told her that he and her husband were in connivance for the incident of 09.12.12. When she was talking to her husband on 10/11.12.12, she could hear the voices of his friends and they were levelling allegations on her character. So, she also mentioned their names in her complaint.
The Prosecutrix identified her signatures on the arrest memo of the accused and proved the same as Ex. PW1/B as also identified her signatures on the site plan which was prepared her instance and proved the same as Ex. PW1/C. She further identified her signatures on her statement recorded under Section 164 Cr.PC and proved the same as Ex. PW1/D. She further deposed that she handed over her grey colour legging and brasier, which she was wearing at the time of the incident to the IO, which was seized vide seizure memo Ex. PW1/E. Prosecutrix further deposed that her husband told her on telephone after the incident that the entire incident of 09.12.12 was created by him in conspiracy with accused and he also wanted that she should have physical relations with his friends Madvender and Anupam. Madvender and Anupam had also proposed her after her marriage with her husband at the instance of her husband so that he could get a divorce with her. After filing of chargesheet, her husband also threatened her on telephone that he had video recording and photos of incident of 09.12.12. Prosecutrix also correctly identified her clothes i.e., frock, pyzami, brassier and pyzami when shown to her at the time of her deposition.
Dr.Surendra Kumar was also inadvertently examined as PW1. He deposed regarding medical examination conducted by him upon the Prosecutrix on 31.12.2012 and further referring her to SR (Obstt. & Gyne) for further examination. He also proved her MLC as Ex.PW1/A. PW5 is Sh.Pawan Singh, Nodal Officer from Idea Cellular Ltd., who brought the summoned record relating to mobile phone No. 9990879517 and 8506009332 for the period 01.12.2012 to 31.12.12 and Customer Application Form and Cell ID Chart and proved the same as Ex.PW5/A and Ex.PW5/B respectively. He further deposed that as per record, mobile phone No.9990879517 is registered in the name of Prosecutrix 'RK' whereas mobile No.8506009332 is registered in the name of Rohit Raj and proved the CAF with copy of their ID proof as Ex.PW5/C and Ex.PW5/D respectively. He also proved the Cell ID chart being brought by him as Ex.PW5/E and proved the certificate under Section 65B of the Evidence Act as Ex.PW5/F. Sh.Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services Limited was examined as PW6 who had brought the summoned record of mobile phone No.8860308563 for the period w.e.f. 01.12.2012 to 31.12.2012 with CAF and Cell ID Chart and proved the same as Ex.PW6/A. He further deposed that the said mobile phone is registered in the name of the Prosecutrix 'RK' and proved the copy of CAF as Ex.PW6/B. He also deposed that at present the said phone is registered in the name of one Sapna. He further proved the Cell ID chart as Ex.PW6/C and copy of the certificate under Section 65B of Evidence Act as Ex.PW6/D. Remaining witnesses pertain to the investigation which include Ct.Kuldeep who deposed regarding taking of nine exhibits in sealed condition along with two sample seals with FSL Form from malkhana on 07.01.2013 to FSL, Rohini and depositing the same vide RC No.4/21/13. He further deposed regarding handing over the copy of the receipt with the MHC(M).
Ct.Yogender was examined as PW3. He deposed that on 31.12.2012, he accompanied the IO and complainant to D211, Second Floor, Gandhi Vihar, Delhi and at the instance of the complainant, arrested accused Manas vide arrest memo Ex.PW1/B. He further deposed regarding conduct of personal search of accused vide memo Ex.PW3/A, taking of the accused to Aruna Asaf Ali hospital for his medical examination, seizure of the sealed exhibits received from the hospital vide seizure memo Ex.PW3/B and inspection of the spot by the IO at the instance of the complainant and preparation of the site plan.
SI Veena Kumari stepped into the witness box as PW4, who deposed regarding receiving of DD No.27A (Ex.PW4/A) in the PS, recording of the statement of the Prosecutrix who was present in the PS, taking of the Prosecutrix to Aruna Asaf Ali hospital for her medical examination, seizure of the exhibits collected from the hospital vide memo Ex.PW4/C and depositing them in the malkhana, preparation of the rukka on the basis of statement of the prosecutrix (Ex.PW4/B) and getting registered the case FIR Ex.PW4/D) being registered by HC Ishwar Dayal, identification of the signatures of the HC Ishwar Dayal on the FIR vide Ex.PW4/D, arrest of the accused at the instance of the Prosecutrix vide arrest memo Ex.PW1/B, preparation of the site plan at the instance of the prosecutrix vide Ex.PW1/C, conduct of personal search memo of the accused vide memo Ex.PW3/A, medical examination of the accused at Aruna Asaf Ali hospital and collection of his MLC including his potency report vide Ex.PW4/E, further collection of the exhibits after the medical examination of the accused and seizing the same vide memo Ex.PW3/B and depositing them in the malkhana.
This witness further deposed regarding recording of statement of prosecutrix under Section 164 Cr.PC before the ld. MM (Ex.PW1/D), and seizure of the cloth pulanda containing clothes being worn by the prosecutrix at the time of incident which Prosecutrix herself handed over to the PW4 on 03.01.2012 in the PS and sending the exhibits to the FSL through Ct.Kuldeep on 07.01.2013 vide RC No.4/21/13 and proved the copy of the said RC as Ex.PW4/F and copy of the receipt as Ex.PW4/G. She further deposed regarding collection of the FSL result and proved the result regarding DNA examination as Ex.PW4/H, FSL report regarding the examination of other exhibits and its biological report as Ex.PW4/I. PW4 also collected the CDRs of the mobile phone numbers 8506009332 (belonging to accused Manas) 9911004574 (belonging to Ragvender), 9891374531 (belonging to Parnav), 8750594993 (belonging to Anand), 8860308563 and 9990879517 (both belonging to Prosecutrix), copy of the Customer Application Form and certificates under Section 65B of Evidence Act from the concerned Nodal Officer collectively as Ex.PW4/J. PW4 further deposed regarding recording of the statement of the witnesses and after completion of the investigation, preparation of the charge sheet and filing it in the court.
Plea of the Accused:
The incriminating evidence was put to the accused in his statement recorded under Section 313 Cr.PC. He pleaded innocence stating that he has been falsely implicated in this case. He stated that one of his friends namely Abhay introduced Prosecutrix to him on phone and thereafter he started talking to prosecutrix on phone casually. He further stated that Prosecutrix used to say that she loves him but he refused. Then on 22.12.12 at about 10 PM, she came to his house and threatened him as he was not taking her calls. He asked her to leave and told her that he will report the matter to the police as he was having her SMS, wherein she had proposed to him for marriage. He further stated that on 24.12.2012, Prosecutrix came to his house at about 7 AM and committed theft of his mobile phone and thereafter she falsely implicated him in this case and also demanded money from him. He reported the theft of his mobile phone at PS Timarpur on the same day.
In order to prove the theft of his mobile, accused examined HC Vishnu Dayal (DW1), who at the time of his deposition in the court, brought the relevant record i.e. Original Daily Diary and complaint dated 24.12.2012, but there was no such entry of mobile theft made by the accused Manas.
Arguments, Analysis and Findings I have given my thoughtful consideration to the arguments advanced by learned defence counsel and by learned APP and have also minutely gone through the evidence on record. I have also considered written submissions filed by learned defence counsel and the judgments relied upon during the course of arguments.
Learned defence counsel argued that the accused is innocent and has been falsely implicated by the Prosecutrix. At the outset, learned defence counsel sought to put forth an argument that the testimony of the Prosecutrix is not worthy of reliance inasmuch as it is full of improvements and embellishments. In his written submissions, learned defence counsel has also submitted as to how the prosecutrix sought to improve her earlier version.
I have gone through the said submissions. However, I find on going through the crossexamination of the Prosecutrix that she has not been confronted even once with any of her earlier statements in her entire crossexamination. In other words, the earlier version of the Prosecutrix was never put to her by learned defence counsel in her crossexamination. Even otherwise, the "so called" improvements in the deposition of the Prosecutrix are not so material so as to affect the case of the Prosecution fatally.
Learned defence counsel contended that the Prosecutrix PW1 did not mention in the FIR or in her statement recorded during the investigation that she had filed a case under Section 498A/406 IPC at Vaishali, Bihar. Similarly, she deposed before the court for the first time that it was decided that her husband Anand would come at park and meeting would be held there, but accused Manas told her that he had not taken lunch and his lunch is ready at his house. So, he took her to his house on motorcycle. Whereas, in her crossexamination, she deposed that from ISBT, she went to the house of the accused with him and they did not go anywhere else on the way.
To my mind, this slight variance in her testimony does not affect the merit of the case inasmuch, as the Prosecutrix consistently stated in her examinationinchief that she accompanied the accused from the ISBT to his house. Learned defence counsel also pointed out that the Prosecutrix did not mention the name of Pranav in her complaint or even in the FIR, but for the first time in her statement under Section 164 Cr.PC she stated that accused Manas asked Pranav to bring cold drink and Pranav brought the cold drink. It was contended that despite this, Pranav was neither made witness nor accused by the Investigation Agency.
I have considered the said submissions. However, it is not reflected in the entire record as to whether the Prosecutrix in fact alleged anything against Pranav except the fact that he brought the cold drink which was consumed by her on the day of the incident. I also find on going through her deposition before the court that after she realized that the accused Manas had established physical relations with her, taking advantage of her condition, she started quarelling with him as to why he did the same with her. This, to my mind, cannot be said to be contrary to her claim in the FIR that he started quarelling with her or her claim in her statement recorded under Section 164 Cr.PC that she started abusing Manas but Manas did not quarrel with her, so as to be fatal to the Prosecution case. Apparently, the factum of quarrel between the prosecutrix and the accused is clearly reflected from her testimony, FIR and statement under Section 164 Cr.PC. The slight variation as to who initiated the quarrel is wholly irrelevant in these circumstances. What is noteworthy is that after regaining consciousness and upon realizing that the accused had established physical relations with her taking advantage of her unconsciousness, the Prosecutrix questioned the accused about his said act and a quarrel ensued between them due to this reason. Pertinently, the defence did not put even a single suggestion to the Prosecutrix that no such quarrel took place between her and the accused after she realized that the accused committed the aforesaid act with her.
I also find no force in the submission of the learned defence counsel that there are material improvements in the testimony of the Prosecutrix. Rather, on going through the deposition of the Prosecutrix, I find that she has reiterated her earlier stand and has clearly deposed before the court that accused established physical relations with her while she was unconscious and upon regaining consciousness she questioned the accused as to why he had done the same with her. Even at the cost of repetition, I deem it necessary to reiterate that it is not the case of the accused that the Prosecutrix did not question him after she realized that he had established physical relations with her. Rather, the testimony of the Prosecutrix is to the effect that accused Manas told her that he loves her and if the matter with her husband is not compromised, he would marry her and this statement made by PW1 remained unrebutted.
The next contention of defence is that as per the Call Detail Record (CDR), the location of mobile number of the Prosecutrix bearing No.9990879517 was in the area of Nehru Vihar at 3 PM on 09.12.2012. Learned defence counsel submitted that the said Cell ID Ex.PW5/E clearly shows that the Prosecutrix was in the area at Gandhi Vihar at 5:37 on 09.12.2012. However, on going through the CDR of mobile No. 9990879517 Ex.PW5/A and cell ID Chart Ex.PW5/E, I find that this submission of learned defence counsel is totally contrary to the record. In fact, as per the said CDR, on 09.12.2012, there is only one entry with respect to the said mobile phone and i.e. at 15:08:29 and the location of the said mobile phone is at Nehru Vihar.
I also find on going through the crossexamination of the Prosecutrix that on the day of the incident i.e. on 09.12.2012, she had left one of her mobile phone at Nehru Vihar and the other one was with her. Admittedly, the number of the other mobile phone belonging to the Prosecutrix is 8860308563. A perusal of the CDR of this mobile number Ex.PW6/A reflects that no phone calls were made/received from mobile No.8860308563 between 17:37:02 and 22:25:14 on 09.12.2012 (reference entry No.165 & 166). This, thus clearly corroborates the testimony of the Prosecutrix that she remained unconscious till about 10:30/11:00 PM and there were also no phone calls during this period. In other words, CDR Ex.PW6/A and Ex.PW5/A corroborates the deposition of the Prosecutrix that she had left one of her said mobile phones i.e. 9990879517 at Nehru Vihar and admittedly she was not carrying mobile No. 9990879517 at the time of the incident in question.
Thus, the testimony of the Prosecutrix that she was at the house of the accused on 09.12.2012 where she became unconscious upon consuming the cold drink served by the accused Manas and that he raped her taking advantage of her said condition, after which she woke up at about 10:00/11:00 PM, is duly corroborated from the CDR of her mobile Phone No. 8860308563 Ex.PW6/A. It is also pertinent to mention at this juncture that the Prosecutrix stated in her crossexamination that she stayed at the house of the accused till noon hours on the next day i.e. on 10.12.2012, thereby implying that the presence of the Prosecutrix in the house of the accused on 09.12.2012 is not disputed by the accused himself.
Learned defence counsel further argued that there is apparently a delay in lodging the FIR which remained unexplained on record. It was argued that either the Prosecutrix herself wanted to marry the accused or she wanted to extort money from him, which resulted in the said delay. I am, however, unable to subscribe to this argument of the learned defence counsel in view of the evidence of the Prosecutrix. In her testimony, she stated before the court that when she started quarelling with the accused as to why he had established physical relations with her, he told her that he loves her and would marry her if her matter with her husband is not compromised. She further deposed that she told accused Manas that she would report the matter to the police, but he told her that she would gain nothing by filing the police complaint and that she would gain bad name and her husband would get privilege of the same. He also told her that he would support her in her case against her husband. He further told her that he would get her divorced at the earliest and would marry her after that. Prosecutrix PW1 further deposed that thereafter she was in touch on telephone with accused Manas and asked him about the divorce from her husband. But accused gave evasive replies and try to make fool of her. She further deposed that after few days, accused told her that she can do whatever she want to do and he will not marry her as there will be no medical evidence against him. In the same breath, Prosecutrix PW1 deposed that "I tried my best to reconcile the matter but without any success on 31.12.2012, I went to the PS Timarpur and made a complaint which is Ex.PW1/A".
It is hence apparent that in her testimony, Prosecutrix 'RK' candidly admitted that she met accused Manas after the incident again, probably on 22.12.2012 or 23.12.2012 and that she had gone to his house to meet him. She however, denied that she committed theft of his mobile phone. The accused also was unable to produce any evidence with regard to any complaint made by him against the alleged theft of his mobile phone by the Prosecutrix. DW1 HC Vishnu Dayal of PS Timarpur has failed to produce any record with regard to any such complaint.
It is further noteworthy that in her crossexamination recorded on 26.11.2013, Prosecutrix admitted that it was agreed between her and the accused that the accused will marry her and when he refused to do so, she made a complaint to the police. She also deposed in her examinationin chief that the accused had helped her in ascertaining the location of her husband and she started trusting the accused. She also stated that after she realized that the accused had established physical relations taking advantage of her unconscious condition, she quarreled with him and the accused assured her that he would marry her. Her testimony to this effect that she continued questioning the accused regarding their said agreement of marriage and that the accused gave evasive replies and told her that she can do whatever she want to do, remained unrebutted despite her lengthy crossexamination.
In these circumstances, the delay in lodging the FIR thus stands clearly explained on record and no benefit can be given to the accused due to the fact that the FIR was lodged only on 31.12.2012.
The absence of injuries on the person of Prosecutrix as per her MLC also cannot be said to be of much significance in these circumstances. Noticeably, human semen was detected on Exhibit '4b', as per FSL report Ex.PW4/I. However, as the report of DNA Ex.PW4/H did not yield any result, the same cannot be given much weightage.
Despite the aforesaid, in view of the deposition of the Prosecutrix, which remained unimpeached despite her crossexamination duly corroborated by CDRs, as discussed hereinabove, I am convinced that the prosecution has been able to establish its case beyond reasonable doubt. Accordingly, in the light of evidence on record, I find that the charges for the offence under Sections 376 & 328 IPC stand duly proved against accused Manas and he is accordingly convicted for the same.
Let him be heard on the point of sentence.
Announced in the Open Court on 27.01.14 (Kaveri Baweja)
Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.
In the Court of Ms. Kaveri Baweja Additional Sessions Judge Special FTC - 2 (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 52/13
Unique ID No. : 02401R0109762013
State versus Manas
S/o Sh. Ram Charitra
R/o D211, 2nd Floor,
Gandhi Vihar, Delhi
Permanent Address:
Vill. Badhaiya PS Badhaiya
Distt. Lakhi Sarai Bihar.
Case arising out of:
FIR No. : 292/12
Police Station : Timarpur
Under Section : 376/328 IPC
Judgment pronounced on : 27.01.2014
ORDER ON SENTENCE
Vide judgment dated 27.01.2014, Accused Manas S/o Sh.Ram Charitra has been convicted for the offence punishable under Sections 328 & 376 IPC.
Heard arguments on the point of sentence.
It is submitted by Ld. Counsel for the above named convict that keeping in view the facts and circumstances of the case, there are adequate reasons to award less than the minimum prescribed sentence to the convict. It is submitted that he is only son of his aged and ailing parents. Ld. Defence Counsel also states that convict is merely 31 years of age and his entire carrier would be at stake, in case lenient view is not taken in his favour.
It is pointed out that prosecutrix is complainant in another rape case bearing FIR No. 129/13 PS Timarpur. He has also come to know that she has lodged another FIR against one more person on the allegations of rape being case FIR No. 52/14 PS Vasant Vihar.
During the course of arguments, Ld. Defence Counsel also relied upon judgment titled as Ram Singh @ Karan and Ors. Vs State NCT of Delhi 2012 I AD (DELHI) 310 and submitted that the convict may be awarded sentence less than maximum prescribed period of 07 years.
On the other hand, Ld. APP pressed that convict be awarded maximum prescribed punishment. He argued that judgment relied upon by Ld. Defence Counsel has no application to the facts of the present case and there is no ground whatsoever to award any lenient punishment to the convict, as prayed.
I have considered the submissions made, the conviction of the convict has been based upon the evidence lead before this court on record. The pendency of another case on the basis of allegations made by the prosecutrix or lodging of FIR in another matter does not, per se imply, that the allegations against convict in the present case are false or that he should be entitled to lessor punishment due to this reason.
Further, I am in agreement with submissions of Ld. Public Prosecutor that judgment of Ram Singh @ Karan and Ors. Vs State NCT of Delhi [Supra] relied upon by Ld. Defence Counsel does not apply to facts and circumstances of case and is clearly distinguishable. Apparently, in the said case prosecutrix was below 16 years of age and was a consenting party. Her consent being immaterial on account of her age was the reason which was taken into consideration while awarding lessor punishment to appellant in that case. The facts of the present case are undoubtedly distinguishable from said case. To my mind, there is no ground whatsoever to take lenient view in favour of the convict, as prayed.
In the light of the above discussion and considering the facts and circumstances of the case, convict is sentenced as under:
i) For the offence punishable under Section 328 IPC, the above named convict is directed to undergo RI for a period of 07 years in addition to payment of fine of Rs.5000/. In default of payment of fine, he shall undergo SI for 02 years.
ii) For the offence punishable under Section 376 IPC, the above named convict is directed to undergo RI for a period of 07 years in addition to payment of fine of Rs. 7000/. In default of payment of fine, he shall undergo SI for 02 years.
Both the above sentences shall run concurrently. Needless to add that the convict shall be entitled to benefit of Section 428 CrPC, if any.
Copy of the judgment and order on sentence be given to the convict free of cost. File be consigned to Record Room. Announced in the Open Court on 31.01.14 (Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.