Delhi District Court
1 S/ vs . Lokesh Garg on 25 November, 2009
1 S/vs. Lokesh Garg
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE01SOUTH
PATIALA HOUSE COURTNEW DELHI
Sessions Case No : 338/09
State vs Lokesh Garg
S/o V. P. Garg
R/o 113, Satya Niketan,
New Delhi.
FIR No. 103/09
PS : Vasant Vihar
U/S 376/328 IPC
Date of Institution : 06/07/09
Date when arguments
were heard : 25/11/09
Date of judgment : 25/11/09
JUDGMENT
The SHO P.S. Vasant Vihar has challaned the accused by alleging commission of offences under Sections 376/328 IPC. Keeping in view the provisions of section 228 (A) IPC and the dicta of the Hon'ble Supreme Court in State of Karnataka Vs Puttraja (2004 2 S/vs. Lokesh Garg (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 15.3.09 at B34, Second Floor,D.D.A. Janta Flats, Vasant Enclave, New Delhi accused committed rape on the prosecutrix against her wishes and without her consent.
CHARGE AND PLEA OF THE ACCUSED The prima facie case for the offence under Section 376 IPC was found made out against the accused so the charge was framed accordingly against him on 03.08.09 to which the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case, the prosecution has examined PW1 Dr
3 S/vs. Lokesh Garg Poonam, PW2Dr Sumit Tellewar, PW3 Ms Neha Chaudhary, PW4 Head Constable Giri Raj, PW5 Constable Mahesh, PW6 W. Assistant Sub Inspector Sunita and PW7 Sub Inspector Niraj. 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 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. He has stated that he is innocent and has been falsely implicated in this case. ARGUMENTS AND FINDINGS Learned Additional Public Prosecutor has argued that PW 3 the prosecutrix has stated that on 15.3.2009 there was hot exchange of words between accused and her and they drank liquor and she became unconscious and when she woke in the morning she found herself in the bedroom along with the accused and both were 4 S/vs. Lokesh Garg completely nude. The accused told her that he had physical relationship with her. A quarrel took place with him and accused left the house, therefore, charge under Section 376 IPC is proved against the accused. It is argued that in case the said charge is not found proved the offence under Section 509 IPC is established against the accused beyond reasonable doubt as he was found nude along with prosecutrix against her wishes. Therefore, accused is liable to be convicted.
Ld counsel for the accused on the other hand, has argued that prosecutrix has, in the crossexamination conducted on behalf of accused, admitted that she frequently used to visit out of Delhi at many places and used to stay for many days in different hotels with the accused. She has also stated that no rape had been committed upon her by the accused and the case was registered at the instance of police and she has no grievance against the accused and she does not want any action against him. Therefore, neither the offence of rape under Section 376 IPC nor offence under Section 509 IPC is proved against the accused and accused is entitled to be acquitted.
5 S/vs. Lokesh Garg I have heard learned Additional Public Prosecutor for the state. learned counsel for the accused and have gone through the evidence adduced on record and relevant provisions of law, carefully.
The prosecutrix is star witness in this case and is the only witness of the incident and other witnesses are official witnesses. She does not specifically state in her statement anywhere that accused has committed rape on her although she has stated that became unconscious after drinking liquor with the accused and in the morning she and accused were found nude in the bed and accused informed her that he had physical relationship with her, but in further examination in chief, she stated that subsequently, accused told her that, fact of physical relationship was stated by him only to tease her, whereas, he also told that he had no physical relationship with her. Therefore, the allegation of rape made by her in examination in chief are based on accused telling her about the physical relationship and subsequently denying the same. Further in the cross examination conducted on behalf of accused, she admitted that no rape had been committed upon her by the accused. She is also hostile witness and resiled from some of her previous statements and had been 6 S/vs. Lokesh Garg confronted with her previous statement made to police in the cross examination conducted by Learned Additional Public Prosecutor. Therefore, in the given facts and circumstances of the case, the charge of commission of rape U/S 376 is not proved against the accused beyond reasonable doubt.
So far as, offence U/S 509 IPC is concerned, statement of prosecutrix that she fell unconscious after taking liquor with the accused and in the morning she and accused were found naked on the same bed clearly shows that accused intruded into privacy of the prosecutrix, a women, against her wishes. The statement of prosecutrix in this regard made in examination in chief is not challeged in the cross examination conducted on behalf of accused. Therefore, the offence U/S 509 IPC is proved against the accused beyond reasonable doubt. It is the settled legal position that accused charged of higher offence can be convicted for minor offence arising out of same facts.
RESULT OF THE CASE In view of the above discussion, I hold that prosecution has not 7 S/vs. Lokesh Garg been unable to prove its case against accused for the charge under Section 376 IPC however, it has been able to prove its case against the accused for the offence under Section 509 IPC. In view of the above, accused is acquitted of the charge framed under Section 376 IPC against him. The accused is convicted for the offences under Section 509 IPC. Let the accused be heard on the point of sentence.
Announced in the open
court on 25/11/09 ( S K Sarvaria )
Additional Sessions Judge01/South
Patiala House Court/New Delhi
8 S/vs. Lokesh Garg
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE01SOUTH
PATIALA HOUSE COURTNEW DELHI
Sessions Case No : 338/09
State vs Lokesh Garg
S/o V. P. Garg
R/o 113, Satya Niketan,
New Delhi.
FIR No. 103/09
PS : Vasant Vihar
U/S 376/328 IPC
Date of Institution : 06/07/09
Date when arguments
were heard : 25/11/09
Date of judgment : 25/11/09
ORDER ON SENTENCE
Vide judgment of even date, the accused is convicted for the charged offence under Section 509 IPC and is acquitted for the charged offence under Section 376 IPC.
9 S/vs. Lokesh Garg Ld. Addl PP has argued for deterrent punishment against accused, as accused has intruded into the privacy of the prosecutrix a women. Ld counsel Mr. R.K. Wadhwa on the other hand, has argued that accused is a first offender with clean antecedents, he remained in custody for about one and a half months and belongs to a good family, so the lenient view may be taken against him.
I have considered the above contentions of learned Additional Public Prosecutor and learned Counsel for the accused and have gone through the record of the case and the relevant provisions of law carefully.
In view of the submissions made by ld counsel for accused and the fact that the court record also shows that accused was arrested in this case on 11.4.2009 and his bail bond was accepted on 27.5.2009, so, he remained in custody for a bit more than one and a half months. Therefore, I sentence him to undergo the rigorous imprisonment for one and a half months. The period of detention already undergone by the convict/accused during the period of investigation and trial of this case shall be set off against the term of imprisonment imposed 10 S/vs. Lokesh Garg against the convict by this order, as provided under section 428 Cr.P. C. Judgment dated 25/11/2009 and this order on sentence be sent to server(www.delhidistrict courts. nic.in). Copy of judgment and order of sentence be supplied to convict/accused free of cost. As accused has already undergone the sentence imposed he be not sent to jail.
File be consigned to record room.
Announced in the open court on 25/11/09 ( S.K. SARVARIA ) Additional Sessions Judge01 South Patiala House Court/New Delhi