Delhi District Court
Directions Of Supreme Court In "State Of ... vs . Puttraj 2004 (1) on 10 October, 2017
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case No. 28058/2016
Assigned to Sessions. 12.01.2015
Arguments heard on 21.09.2017
Date of Judgment 10.10.2017
FIR No. 517/2014
State v. Satish Siti @ Siti S/o. Kasturi Lal,
R/o. C316, Ist floor, Chinot Basti,
Nabi Karim, Delhi.
Police Station Nabi Karim
Under Section 450/376/506(PartI) IPC
JUDGMENT
1. In the present case Station House Officer of Police Station Nabi Karim
had filed a challan vide FIR No.517/2014 dated 20.11.2014 u/s 376/506
IPC for the prosecution of accused Satish Siti @ Siti in the court of ld.
Metropolitan Magistrate. After compliance of the requirement of section
207 Cr. P.C. the case was sent to this court being the designated Special
Fast Track Court for trial of the offences of sexual assault against the
women through the Office of Ld. District & Sessions Judge (HQ), Tis
Hazari Courts, Delhi. Keeping in view of section 228 (A) IPC and
directions of Supreme court in "State of Karnataka Vs. Puttraj 2004 (1)
Case No.28058/2016
State V. Satish Siti @ Siti 1/26
SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the
name of prosecutrix is not being given in the judgment.
BRIEF FACTS OF THE CASE:
2. The criminal law was set into motion in the present case on the basis of statement of prosecutrix Ex.PW1/A wherein she stated that she is a housewife and her husband works in a Canteen at Connaught Place and that she is having two children, daughter aged about 5 ½ years and son aged about 3 ½ years.
3. It is further stated in the statement by prosecutrix that on 19.11.2014 at about 6:45 p.m., she was cooking meal in her room, her landlord/ accused Satish Siti @ Siti came inside her room, bolted the door of her room from inside, switched off the light of the room, accused had removed her clothes and also removed his clothes and forcibly lay down her on a Takhat (Hard Bed) and established physical relation with her by gagging her mouth with one hand. Accused also threatened the prosecutrix that he will kill her and her whole family. At that time the children of the prosecutrix were at home. Prosecurix further stated in her statement Ex. PW1/A that accused was having 'buri nazar' on her since earlier and that he used to ask her to establish physical relations with him by taking money and that she refused him for the same in strong words.
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4. It is further stated by the prosecutrix in hr said statement that at the day of incident i.e. 19.11.204 at about 8:00 p.m., her husband and her Muh Bola Bhai namely Murari also came to house and they asked her the reason why she was crying. prosecutrix narrated the entire incident to them. Thereafter, she along with her husband and Murari went to Police Station and told the police about the incident. It is further stated in the statement by the prosecutrix that accused had committed rape on her and threatened her. As such prosecutrix sought legal action against the accused.
5. On the basis of aforesaid statement Ex.PW1/A, FIR No.517/14 u/s 376/506 IPC was registered. During the course of investigation, accused was arrested and charge sheeted.
CHARGE:
6. On the basis of material available on record, this court vide order dated 12.01.2015 framed a charge against accused Satish Siti @ Siti for the offence punishable u/s 450/376/506 IPC to which he did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
7. In order to prove its case prosecution examined 15 witnesses namely PW1 Prosecutrix, PW2 Sh. Angad Sharma, PW3 Sh. Murari Rai, PW4 Case No.28058/2016 State V. Satish Siti @ Siti 3/26 Dr. Kavita, PW5 Baby Riya, PW6 HC Surinder Kumar, PW7 SI Randhir Singh, PW8 Ms. Riya Guha, Ld. MM, PW9 W/Ct. Hemlata, PW10 ASI Sushil Kumar, PW11 Dr. Nikunj Jain, PW12 HC Ashutosh Rai, PW13 Dr. Mahesh Chandra Tripathi, PW14 Ms. Mona Tardi Kerketta, Ld. MM and PW15 SI Suman.
8. PW1 Prosecutrix is a material witness being victim. PW1 testified that till 19.11.2014, she along with her family was residing in the tenanted premises i.e. at Chinot Basti, Nabi Karim, Delhi i.e. in the house owned by accused Satish Siti @ Siti, present in the court today (Correctly identified). They were living in the said house since three months prior to 19.11.2014. PW1 further testified that in November, 2014 her husband used to work at Connaught Place. About 10 days prior to 19.11.2014, she had got her husband admitted in a Nasha Mukti Kendra at Ghaziabad as he used to consume excessive alcohol and beat her children.
9. PW1 further testified that on 19.11.2014 at about 6.45 pm, she was cooking food in her aforesaid rented house. Her children were also present in the house. Accused Satish Siti @ Siti came inside her house and bolted the door of her house from inside. PW1 further testified that he switched off the light and started misbehaving with her. Accused threatened her by showing a blade to kill her, her husband and her Case No.28058/2016 State V. Satish Siti @ Siti 4/26 children and removed her clothes forcibly. Thereafter, he also removed his clothes and forcibly established physical relation with her in front of her children. PW1 further testified that at that time, she was also having mensuration period despite which accused committed rape upon her.
She was shouting for help but nobody came to her rescue.
10. PW1 further testified that she informed the mother of accused about this incident but she did not believe her. In the meantime, her husband also returned from the Nasha Mukti Kendra. Her Muh Bola Bhai namely Murari also came to her house and they asked her the reason why she was crying. PW1 narrated the entire incident to them. Then, she along with her husband and Murari went to Police Station and told the police about the incident.
11. PW1 has proved her statement vide Ex. PW1/A. This witness has proved the site plan vide Ex. PW1/B. This witness has proved arrest memo of accused Satish Siti @ Siti vide Ex. PW1/C.
12. PW1 further deposed that prior to the incident of 19.11.2014, once accused touched her back and she rebuked him and he apologized for the same. This witness has proved her statement u/s 164 Cr.P.C. vide Ex.PW1/D. Case No.28058/2016 State V. Satish Siti @ Siti 5/26
13. PW1 testified that police also seized the bed sheet, which was lying on the 'Takhat' upon which the accused committed rape upon her, vide seizure memo Ex. PW1/E. This witness has correctly identified her underwear vide Ex. P1, lady shirt vide Ex. P2, lady salwar vide Ex. P 3, dupatta vide Ex. P4 , brassier vide Ex. P5 and bed sheet vide Ex.P
6.
14. This witness was cross examined by Learned Addl. PP as her statement is not in full consonance with her earlier statement.
15. In cross examination by Ld. Addl. PP for the State, this witness had denied to the suggestion that she stated to the police in her statement Ex. PW1/A that accused was having 'buri nazar' on her since earlier or that he used to ask her to establish physical relations with her by taking money or that she refused to him for the same in strong words. [Confronted with statement Ex. PW1/A from portion A to A where it is so recorded.]
16. On being cross examined by Sh. Sarvesh Kumar, ld. counsel for accused, this witness deposed that she know accused and his mother since they took the house of accused on rent. She does not know who had informed her husband that the house of accused was available for taking it on rent.
This witness admitted that accused and his brothers are not having
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State V. Satish Siti @ Siti 6/26
cordial relations.
17. This witness deposed that she had stated to the police that accused threatened her by showing a blade to kill her, her husband and her children. [Confronted with statement Ex. PW1/A where 'blade' is not mentioned.]
18. This witness deposed that after the accused fled away from her house, she went to the second floor and disclosed about the incident to daughter in law of brother of accused. She did not inform the wife of Bhola, who is her next door neighbour.
19. This witness deposed that she had stated to the police that at the time of the incident, she was shouting for help but nobody came to her rescue. [Confronted with statement Ex.PW1/A where it is not so recorded].
20. This witness deposed that she had stated to the police that after the incident she had washed her private parts. [Confronted with statement Ex.PW1/A where it is not so recorded]. She had washed her private parts before her husband reached there. This witness had denied to the suggestion that another tenant namely Gopal saw her and Murari in compromising condition on 16/11/2014 or that thereafter mother of accused had a quarrel with her and asked her to vacate the room. This Case No.28058/2016 State V. Satish Siti @ Siti 7/26 witness had denied to the suggestion that accused has been falsely implicated in this case only because mother of the accused was demanding remaining rent from me or that it is for this reason that they continued their possession on the said premises for so long even after the incident.
21. PW2 Sh.Angad Sharma is the husband of prosecutrix. This witness deposed that on 09.11.2014, he was admitted in 'Nasha Mukti Kendra' at Ghaziabad for about 10 days. When he returned to his house on 19.11.2014, at about 7:30 PM, prosecutrix was crying. PW2 further testified that his friend Murari was also with him. His wife told him that accused has raped her on the point of knife and after extending threats to kill her and her children. He told about the incident to the family members of the accused, but they started abusing them. He along with Murari took his wife to PS Nabi Karim and reported the matter to the police. Police made inquiries from his wife and took her to LHMC, where she was medically examined. Police registered the FIR on the complaint of his wife.
22. On being cross examined by Sh. Sarvesh Kumar, Ld. counsel for accused, this witness deposed that when he was coming back from Nasha Mukti Kendra, he met Murari at Paharganj and they came back to his house on 19.11.2014. This witness had denied to the suggestion that Case No.28058/2016 State V. Satish Siti @ Siti 8/26 he was not earning Rs.1516000/ per month. This witness admitted that he used to consume liquor earlier. This witness had denied to the suggestion that Murari was having illicit relations with his wife. This witness admitted that accused is having dispute with his elder brother who is also living in the same property on IInd floor. This witness had denied to the suggestion that no such incident had occurred or that accused has been falsely implicated in this case as they had unauthorizedly the house of accused without paying any rent for the last two months.
23. PW3 Sh. Murari Rai is the neighbour of prosecutrix. This witness deposed that on the day of incident, Angad Sharma alongwith his wife Kunti Sharma and two children was also residing in a room on rent in the house of accused. He used to treat prosecutrix as his sister.
24. PW3 further deposed that on 19.11.2014 he alongwith Angad Sharma reached his house at about 7.307.45 PM, where they saw prosecutrix was crying. On enquiry by Angad Sharma from prosecutrix, she told him that accused Satish has raped her after extending threats to kill her and her children. PW3 further deposed that he and Angad Sharma informed about the incident to the family members of the accused, but they also started abusing them. Thereafter, he and Angad Sharma took prosecutrix to PS Nabi Karim where police made enquiries from her and Case No.28058/2016 State V. Satish Siti @ Siti 9/26 got her medically examined and registered the case.
25. On being cross examined by Sh. Sarvesh Kumar, Ld. counsel for accused, this witness deposed that police recorded his statement in the PS after registration of the case, but he does not remember the exact time. This witness had denied to the suggestion that accused had come to Delhi on the day of incident. This witness had denied to the suggestion that on 17.11.2014 Bhola had seen him and prosecutrix in objectionable condition. This witness had denied to the suggestion that he has illicit relations with prosecutrix or that as he was not paying rent for last two months.
26. PW4 Dr. Kavita has proved MLC of prosecutrix vide Ex.PW4/A. This witness had collected some exhibits and sealed with the seal of hospital and handed over to the constable accompanying the patient.
27. On being cross examined by Sh. Sarvesh Kumar, learned counsel for accused, this deposed that she did not find any external injury. This witness admitted that there was also no injury on the private parts of the Prosecutrix. She did not find any external injury. This witness admitted that there was also no injury on the private parts of the Prosecutrix.
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28. PW5 Baby Riya. This witness has been examined by this court after ascertaining her knowledge and capacity of understanding by putting some questions and after getting reply on being satisfied that this child witness can understand questions and reply the same.
29. This witness deposed that she know Siti uncle present in the court (correctly identified). "Wo hamare neeche rehte they".
30. On question: Where do you live now? This witness replied that they live in another house now.
31. On question:Were you going to school, when Siti uncle used to live downstairs? This witness replied that yes. She used to go to school everyday.
32. On question: Can you tell if anything happened with your mother when you were living in the said house? This witness replied that her mother was cooking food. Siti uncle came to their house while drinking tea. He closed the door of their house and switched off the light. He removed his clothes and the clothes of her mother. He was also having knife in his hand. She and her brother were also present in the house at that time.
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33. On Question: What did he do? This witness replied that he was going to cut the throat of her mother. He left from her house after short while. After he left, she saw her mother bleeding.
34. On Question:From where she was bleeding? This witness replied that Jahan se galat kaam kiya wahan se.
35. This witness deposed that she had already narrated all these facts to another aunty when she came to the court earlier.
36. On being cross examined by Sh. Sarvesh Kumar, ld Counsel for accused, this witness deposed that she does not know any Murli uncle. This witness admitted that her father had told her what she has to speak. This witness deposed that her parents came with her to court earlier when her statement was recorded by another Judge (Ld.counsel is referring to the statement of witness recorded u/s.164 Cr.P.C.). They had told her to narrate what had happened.
37. This witness had denied to the suggestion that she is stating whatever was told by her parents to her or that she did not witness any such incident.
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38. PW6 HC Surinder Kumar had taken the exhibits on 15/12/2014 from the malkhana of the police station to FSL Rohini which he deposited there vide RC No.107/21/14 and the receipt regarding deposit was handed over by him to MHC(M).
39. PW7 SI Randhir Singh is a formal witness being Duty Officer. This witness has proved computerized copy of FIR vide Ex.PW7/A, endorsement vide Ex.PW7/B and certificate under Section 65B Evidence Act in this regard vide Ex. PW7/C.
40. PW8 Ms. Riya Guha, Ld. MM has proved statement of a girl Riya aged about 05 years vide Ex.PW8/B.
41. PW9 W/Ct. Hemlata had taken prosecutrix to Lady Harding Medical College & Hospital and got her medical examination conducted vide MLC Ex.PW4/A. This witness deposed that after medical examination, doctor who had conducted the medical examination of the prosecutrix had also handed over her the exhibits pertaining to her in sealed condition along with sample seal which she handed over to the I.O. who seized the same vide seizure memo Ex.PW9/A.
42. PW10 ASI Sushil Kumar has brought the summoned record qua the previous involvement of the accused Satish @ Siti. This witness has Case No.28058/2016 State V. Satish Siti @ Siti 13/26 proved NCRB record vide Ex.PW10/A showing the previous involvement of the accused.
43. This witness has also brought the particulars of the cases in which accused was involved as per the record of the police station Nabi Karim and tendered the same on judicial record vide Ex.PW10/B.
44. On being cross examined by Sh. Sarvesh Kumar, Ld. counsel for accused, this witness deposed that he has not brought th register containing the entries mentioned in Ex.PW10/B.
45. PW11 Dr. Nikunj Jain has proved MLC of accused vide Ex.PW11/A on behalf of Dr. Ankur. This witness deposed that as per MLC blood sample of the accused in gauge, pubic hair and his undergarments were also taken, preserved, sealed and handed over to the police.
46. PW12 HC Ashutosh Rai has brought the register No.19 and 21 containing relevant entries pertaining to the present case and proved the copy of the said entries vide Ex.PW12/A. This witness deposed that exhibits pertaining to the present case in sealed condition along with sample seals were handed over to HC Surender on 15.12.2014, he carried the same to the FSL Rohini vide road certificate vide Ex.PW12/B. This witness has proved photocopy of the Case No.28058/2016 State V. Satish Siti @ Siti 14/26 acknowledgement vide Ex.PW12/C.
47. PW13 Dr. Mahesh Chandra Tripathi has proved potency test of accused vide Ex.PW13/A on behalf of Dr. Raman Tanwar.
48. PW14 Ms. Mona Tardi Kerketta, Civil Judge05 has proved statement of prosecutrix u/s 164 Cr.P.C. vide Ex.PW1/D.
49. PW15 SI Suman is the IO of the case and she has proved investigations of the case as conducted by her.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
50. After the prosecution evidence, statement of the accused u/s 313 Cr.P.C. were recorded. Accused claimed that on 10.11.2014 he had asked the prosecutrix and her husband to vacate his house. On 18.11.2014 prosecutrix demanded Rs.2 lacs to vacate his house. On 19.11.2014 prosecutrix lodged the present complaint against him. As accused has not claimed for defence evidence, accordingly, D.E. was closed. Thereafter, case was fixed for arguments.
ARGUMENTS;
51. Ld. counsel for accused argued and submitted that present FIR has been registered on the statement of prosecutrix wherein she stated that the Case No.28058/2016 State V. Satish Siti @ Siti 15/26 accused closed her mouth with one hand and made a physical relation with her.
52. Ld. counsel for accused further submitted that in her statement u/s 164 Cr.P.C. she improve her statement particularly she stated that on 19.11.2014 at about 6:45 p.m. door of her room was opened and her both the children were playing. It is pertinent to mention here that this version is not mentioned in the statement Ex.PW1/A. It is pertinent to mention here that in her statement u/s 164 Cr.P.C. she also stated that light of kitchen was on and the accused switched off the light of the room while holding her neck and she also stated he removed her half dress. It is pertinent to mention here that this version is not mentioned in the statement Ex.PW1/A.
53. Ld. counsel for accused further submitted that it is pertinent to mention here that in statement u/s 164 Cr.P.C. she stated that accused threatening her by showing knife and blade it is very important, this fact is not mentioned in her statement Ex.PW1/A.
54. Ld. counsel for accused further submitted that she also deposed that she was shouted in for her help but nobody came to her rescue. Her children were also crying and she informed the mother of the accused about the incident. It is pertinent to mention here that this version is not Case No.28058/2016 State V. Satish Siti @ Siti 16/26 mentioned in statement Ex.PW1/A and Ex.PW1/D.
55. Ld. counsel for accused further submitted that during the cross examination she admitted that tenant Bhola Ram were also living with her first floor but she did not inform him regarding the incident nor I.O. made the witness Bhola Ram and Pan Wala. It is pertinent to mention here that there is no injury to the prosecutrix. It is pertinent to mention her that no neighbours made as witness by the I.O.
56. Ld. counsel for accused further submitted that it is pertinent to mention here that as per the result of FSL Ex.PW15/A, semen could not be detected on Ex.A1 to Ex.A17 or nor DNA analysis could not be performed on exhibits.
57. Ld. Counsel for accused further submitted that there are big improvement and contradictions in statement of prosecution witnesses and FSL report not support the prosecution case and there was no incriminating evidence against the accused. Ld. counsel for accused has relied upon the following judgments of Hon'ble Delhi High Court :
i. Raj Kumar Vs State 1997 (2) CC Cases 291;
ii. Dr. Jhammanl Lal Vs. State of Delhi Administration 2011 (4) JCC 2931;
iii. Aslam @ Akram Vs. The State (NCT) of Delhi;Case No.28058/2016
State V. Satish Siti @ Siti 17/26
iv. Raju Vs. State.
On these grounds, Ld. counsel for accused prayed for acquittal of accused from the charges.
58. On the other hand, Ld. Addl. PP for the State argued that testimony of prosecutrix is of sterling quality and being consistent and coherent on all material aspects of the case and did not suffer from any contradictions or improvements.
59. Ld. Addl. PP for the State further submitted that the testimony of prosecutrix is in full consonance of her statement forming basis of present FIR, her statement recorded u/s 164 Cr.P.C. as well as the alleged history given by her to the doctor who had conducted her medical examination and mentioning the same in her MLC.
60. Ld. Addl. PP for the State further submitted that the salient feature of the case is that sequence of events of this case has happened in quick succession that too with promptness which lend more assurance to the version put forth by the prosecutrix.
61. Ld. Addl. PP for the State further submitted that contradictions and improvement, if any, have not to be measured on mathematical scale, rather, it should be considered keeping in view the other material Case No.28058/2016 State V. Satish Siti @ Siti 18/26 aspects of the case.
62. Ld. Addl. PP for the State further submitted that negative DNA report does not exonerate accused and if it does not yield any result, it does not effect the case of prosecution. Ld. Addl. PP for the State has relied upon the judgment of Hon'ble High Court in case of "Pramod Kumar Vs. The State (Govt. Of NCT of Delhi), Criminal Appeal No.90/2014 decided on 17.05.2016 wherein it has been held that :
"the argument that since DNA report exonerate the appellant, he is entitled to be acquitted is noted and rejected because the DNA report does not exonerate the appellant. It has yielded no evidence and therefore is not incriminating evidence against the appellant, but that does not mean that it exonerates the appellant."
PERUSAL OF RECORD:
63. Record perused. On perusal of record, it is revealed that on the statement of prosecutrix Ex.PW1/A, the present FIR Ex.PW7/A was registered.
64. It is further revealed that PW9 W/Ct. Hemlata got the medical examination of prosecutrix PW1 conducted vide MLC Ex.PW4/A. The medical examination of prosecutrix PW1 was conducted by PW4 Dr. Kavita; PW4 Dr. Kavita had also handed over the exhibits pertaining to the prosecutrix PW1 alongwith sample seal to PW15 W/SI Suman who Case No.28058/2016 State V. Satish Siti @ Siti 19/26 seized the same vide seizure memo Ex.PW9/A.
65. It is further revealed that FIR was recorded by PW7 SI Randhir Singh;
PW7 SI Randhir Singh also made endorsement Ex.PW7/B in this regard on the original rukka; PW7 SI Randhir Singh also gave certificate, Ex.PW7/C under section 65 B of the Evidence Act qua the said FIR.
66. It is further revealed that I.O. has prepared site plan vide Ex.PW1/B at the instance of prosecutrix. I.O. has also seized the bed sheet, Ex.P6 spread on the hard bed/takhat vide seizure memo Ex.PW1/E in the presence of prosecutrix PW1.
67. It is further revealed that I.O. had arrested accused from his house at the instance of prosecutrix vide arrest memo Ex.PW1/C, conducted his personal search vide personal search memo Ex.PW15/A and also recorded his disclosure statement vide Ex.PW15/B. Medical examination of accused was conducted vide MLC Ex.PW11/A by Dr. Ankur and his potency test was conducted by Dr. Mahesh Chandra Tripathi vide MLC Ex.PW13/A.
68. It is further revealed that Dr. Nikunj Jain has proved the handwriting and signature of Dr. Ankur on the MLC Ex.PW11/A. Case No.28058/2016 State V. Satish Siti @ Siti 20/26
69. It is further revealed that pursuant to disclosure statement Ex.PW15/B, accused pointed out the place of incident vide pointing out memo Ex.PW15/C1.
70. It is further revealed that I.O. has got the statement of prosecutrix under section 164 Cr.P.C. vide Ex.PW1/D from Ms. Mona Tardi Kerketta, Ld. M.M., Tis Hazari Courts, Delhi.
71. It is further revealed that I.O. has got recorded the statement of the daughter 'R', aged about 5 years of the prosecutrix under section 164 Cr.P.C. vide Ex.PW8/B.
72. It is further revealed that I.O. has filed FSL report with a forwarding letter Ex.PW15/E colly. in the court vide her application Ex.PW15/D1.
73. It is further revealed that HC Ashutosh Rai, MHC(M), PS Nabi Karim has also proved the relevant entries of register nos. 19 and 21 pertaining to this case, Ex.PW12/A and Ex.PW12/B; he has also proved the acknowledgement Ex.PW12/C vide which the said exhibits were got received at FSL Rohini.
74. It is further revealed that PW10 ASI Sushil Kumar, MHC(R), PS Nabi Karim has produced the NCRB record, Ex.PW10/A showing your Case No.28058/2016 State V. Satish Siti @ Siti 21/26 previous involvement in different cases; PW10 ASI Sushil Kumar also produced the record Ex.PW10/B showing your previous involvement pertaining to the cases of PS Nabi Karim.
75. Before reaching at any conclusion, let the relevant section i.e. 450/376/506 IPC be reproduced, which is as under: Section 450 IPC:
Housetrespass in order to commit offence punishable with imprisonment for life.Whoever commits housetrespass in order to the committing of any offence punishable with (Imprisonment for life), shall be punished with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine.
Section 376 IPC:
Punishment for rape - (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. Whoever,
(a) being a police officer commits rape within the limits of the police station to which he is appointed; or in the premises of any station house whether or not situated in the police station to which he is appointed; or on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant Case No.28058/2016 State V. Satish Siti @ Siti 22/26 subordinate to him; or being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution' or being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) Commits rape on a woman when she is under twelve years of age; or
(g) Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection. Explanation 2 "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for a reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a Case No.28058/2016 State V. Satish Siti @ Siti 23/26 term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
FINDINGS:
76. Arguments heard. Record perused. On perusal of record, it is revealed that the statement of prosecutrix Ex.PW1/A forming basis of present case and her testimony before the court is contradictory.
77. Daughter of prosecutrix who has been examined as PW5. As per her testimony is concerned, being child, she could not be aware that bleeding may caused due to mensuration period or by rape. She did not depose if accused had committed rape upon the prosecutrix despite being present at the time of offence. PW1 prosecutrix in her testimony before the court admitted that during the time of incident, she was having mensuration period.
78. PW Sh. Angad Sharma who is the husband of prosecutrix has been examined as PW2 who was not present at the time of incident, had seen crying the prosecutrix when he had reached at house. MLC of prosecutrix also does not suggest any external injury. Moreover, she was referred for psychiatric consultation. Further, PW15 W/SI Suman who is the I.O. of the case in her cross examination by Ld. counsel for accused admitted that prosecutrix had not stated to her anything of knife Case No.28058/2016 State V. Satish Siti @ Siti 24/26 and blade.
79. Since prosecutrix had been tenant in the house of accused, hence, undue advantage of non vacating of accused's house in the present case cannot be ruled out. Further more at the time of alleged incident, prosecutrix admittedly was having mensuration period. Further on charge under section 450 IPC, since accused is owner of the property an he has right to inspect the property at any point of time. Therefore, offence of committing tress pass cannot be said to be proved.
80. Considering the fact and circumstances of the case, it is proved that prosecution has been failed to prove its case beyond reasonable doubt against accused u/s 450/376/506 IPC. Accordingly, accused is acquitted from the charges u/s 450/376/506 IPC by giving him benefit of doubt.
81. Since interim compensation is granted to the prosecutrix/complainant.
Final compensation be awarded to the prosecutrix. Copy of the judgment be sent to DLSA to consider the case and decide the suitable compensation to the victim who may be compensated as per the provisions of section 357A (2) of Cr.P.C.
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82. In terms of section 437 A Cr. P.C. accused is directed to execute bail bond in sum of Rs.25,000/ with one surety in the like amount.
83. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 10.10.2017.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
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