Delhi District Court
State vs . Shakil @ Tikla on 29 October, 2009
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IN THE COURT OF SHR. S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE01/SOUTH
PATIALA HOUSE COURT
NEW DELHI
SESSIONS CASE NO. 129/08
State Vs. Shakil @ Tikla
S/o Shera
R/o D13/203, Chhattarpur
Dabri, New Delhi
FIR No. 124/05
Police Station Mehrauli
Under Section 363/376/506 IPC
Date of Institution 6/10/08
Date when arguments
here heard 15/10/09
Date of Order 23/10/09
JUDGMENT
The SHO of police station Mehrauli has challaned the accused Shakil @ Tikla to face trial for the offences under Sections 363/376/506 IPC. After supplying copies of documents and 2 compliance of provisions of under Section 207 Cr.PC case is committed by learned Metropolitan Magistrate to the Court of Sessions under Section 209 Cr.PC. 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 (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. BRIEF FACTS OF THE CASE The prosecution case, in brief, is that on 10.3.05 on receipt of DD No.7A, HC Madan Singh and Ct. Rajinder Singh went to the spot where Smt. Indra Kaur w/o Lt. Sh. Charan Singh gave statement alleging that on 6.3.05 her son Sohan Singh and her daughter prosecutrix had gone to Chhattarpur village to the house of wife of younger brother of her husband Asha. When her daughter prosecutrix and son Sohan were coming back at about 7 pm, the 3 accused Shakil @ Tikla who lives in the neighbouhood met them near Chhattarpur Pahari at sixty foota road and by inducement took her daughter on his motor cycle and this fact was intimated by her son to her. To avoid the bad name, she did not inform the police about this but since her daughter did not come after that she went to lodge the complaint. Thereafter, the case was initially registered under Section 363 IPC and investigation commenced which was assigned to SI Vikram Singh. On 12.3.05, the prosecutrix and accused Shakil @ Tikla were arrested from Jewar, Distt. Gautam Buddh Nagar at Bus Stop. The medical examination of accused and prosecutrix were got done. The bone age XRay of prosecutrix was also got done. The statement of prosecutrix under Section 164 Cr.PC was also got recorded. The bone age XRay of accused was also got done. The age of prosecutrix was found to be greater than 17 years and the age of accused was found to be greater than 20 4 years. Statements of witnesses were got recorded and on completion of investigation accused was challaned, as referred before.
CHARGE AND PLEA OF ACCUSED My learned predecessor found prima case for the offences punishable under Sections 363/376/506 IPC against the accused. Accordingly, charge was framed against the accused on 1.6.05 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case the prosecution has examined 14 witnesses in all.
PW1 is prosecutrix herself who has stated that on 6.3.05, she was coming from the house of her aunty (chachi) along with her younger brother Sohan Singh. At about 7.00 pm when they reached near MCD Park, Chhattarpur the accused stopped them. He was on 5 motor cycle and asked her to accompany with him and on her denial he started giving beatings to her younger brother Sohan Singh and threatened her to kill her younger brother Sohan Singh. Accused caught hold of the neck of her younger brother. Out of fear and because of threat to life of her brother she sat on the motor cycle of the accused and told her brother to leave the place and inform her mother about the fact that she had been taken away by the accused. When she was going along with the accused, his motor cycle stopped on the traffic light at Chirag Delhi and she alighted from the motor cycle and sat in a three wheeler scooter (TSR) which was present nearby. The accused abused the TSR driver and scared him away. He again forcibly made her sit on his motor cycle. He then took her to Faridabad at the house of one Tara who was the brother inlaw of his elder brother. She was kept in the house of said Tara in the night. During the night accused committed rape upon her against 6 her wishes. Next day the accused had an appearance in the Patiala House Courts for an offence for misbehaving with her by entering her house. He did not want to bring her but she forcibly came with him by bus and came to Delhi. He brought her to India gate where he gave her beatings in the lawn of India Gate and did not attend the court proceedings. They returned to Faridabad by TSR. The accused along with Tara took her to village Jewar in UP to the house of parents of Tara on the motor cycle. The accused along with Tara went his inlaws house in village Jewar. Then she asked to accused to leave her at her house, but accused gave beatings to her. In village Jewar in the night accused again committed rape upon her against her wishes. On the next day accused along with Tara again went to his inlaws house at village Paso. He returned the same day in the evening and asked to Tara for rented accommodation. One room was taken on rent in village Jewar. The accused took her to 7 the said room and kept her there. In the room accused committed rape upon her for two days against her wishes. Thereafter, the motherinlaw of accused had lodged a complaint against the accused in village Jewar regarding keeping her with the accused. On this accused remained absconding and hiding himself along with her in the fields at Jewar. Thereafter, in the morning at 5.30 am when they were present at the bus stand of Jewar, they both were apprehended by police of Jewar at the instance of motherinlaw of accused. In the police station Jewar wife of accused also gave beatings to her. In the Jewar police station phone number of her house was obtained by the police of Jewar and they informed her parents. Police from Delhi recorded her statement at Jewar. Thereafter, police brought her at Delhi on 12.03.05. On 13.3.05 she was produced before the learned Metropolitan Magistrate at Patiala House Courts. She was sent to Nari Niketan. Then she was again 8 produced in the Court. The statement under Section 164 Cr.PC Ex.PW1/A was got recorded. Thereafter, her medical examination was conducted in AIIMS hospital. After that she went to her house along with her mother. On 13.03.05 accused had also given the threat to kill her in the court.
PW2 is Mrs. Indra Kaur, mother of the prosecutrix. She has corroborated with the statement of PW1 prosecutrix regarding threat and kidnapping of her daughter prosecutrix and has proved her complaint Ex.PW2/A. She also stated that on 12.3.05 she received a telephone call from her daughter that accused had confined her at some village. She did not know the name of the village. Thereafter, she received a call from PS Jewar that her daughter was present at village Jewar. She informed the Delhi Police and left for Jewar along with her elder daughter, namely, Maya. The accused as well as her daughter was brought to police 9 station Mehrauli at Delhi. Her daughter was then taken to medical examination at AIIMS. Her MLC was conducted on her consent. Her bone age XRay was also done. Semen slide was also taken at the hospital.
PW3 is Master Sohan Singh, younger brother of the prosecutrix and corroborated with the statement of prosecutrix regarding kidnapping of the prosecutrix by accused. He has stated that accused placed a knife on his neck and threatened to kill him. He (accused) asked his sister to sit on his motor cycle otherwise he would kill him. Then his Sister sat on his motorcycle and they both went away. He went home and told his mother about the occurrence. His mother, himself and his brother looked for prosecutrix and the accused but could not find them and returned home.
PW4 is Ct. Pradeep. He has stated that on 12/03/05 he joined 10 the investigation of this case with SI Vikram, HC Mohinder and Ct. Rohtas. They went to a Town Jewar, District Bullandsher UP. Accused and prosecutrix were standing at the bus stand. Prosecutrix was recovered from his custody and memo Ex.PW4/A was prepared in this regard. The arrest memo of accused is Ex.PW4/B and the personal search memo was proved as Ex.PW4/C. On 13.03.05 accused was taken to AIIMS Hospital for his medical examination and after his medical examination doctor preserved the exhibits and the same was seized vide memo Ex.PW4/D. PW5 is Ct. Rajinder Singh who has stated that he alongwith HC Madan Singh received DD No. 7A. He alongwith HC Madan Singh reached H. No. 495, Gali No. 12, Chhattarpur Pahari, there Smt. Indira Kaur met them and gave her statement to HC Madan Singh as Ex. PW2/A. HC Madan Singh made his endorsement on the statement of Indira Kaur and prepared a rukka. He took the same to 11 PS for registration of FIR. He got the FIR registered and thereafter further investigation of the case was handed over to SI Vikram Singh. He alongwith Vikram Singh reached the spot where SI made inquiries from 12 persons and then came back to PS. PW6 is HC Parveen who has stated that on 10.03.05 he was posted as Duty Officer from 8 AM to 4 PM. On that day at around 11.20 AM he received a ruqqa from HC Madan Singh through Const. Rajinder Singh. He recorded FIR the carbon copy of which is Ex.PW6/A. PW7 is Dr. Swati who proved the MLC of prosecutrix as Ex.PW7/A and has stated that on examination of prosecutrix, she found a bruise on left knee. Her general condition was fair and there was no mark or injury on breast and external genetalia. On vaginal examination hymon was not intact.
PW8 is Shiva Persad, Junior Resident, Department of Forensic 12 Medicine and Toxicology, AIIMS Hospital who medically examined the accused and has proved the MLC of accused as Ex.PW8/A, he has stated that he was of the opinion that there was nothing found to suggest that accused was not capable of performing sexual intercourse under normal circumstances.
PW9 is Dr. Chandan, Rodiologist, AIIMS Hospital who proved bone age report of accused Ex.PW9/A and the XRay report of accused PW9/B. He has stated that as per Xray plates of accused his bone age was more than 20 years.
PW10 is HC Dharam Singh. He has stated that on 13.03.05 he was posted as HC at PS Mehrauli and was working as Malkhana Mohrar. On that day W/SI Narender Kaur deposited with him the case property of this case in Malkhana in intact condition. The same was entered in Malkhan Register vide entry serial No. 2188. On 14/07/05, he received back the exhibits with FSL Report from 13 FSL Rohini through Ct. Dharamender. FSL report was handed over to IO and the exhibits were deposited in Malkhana in intact condition. Entries in this regard were made in Malkhana Register. He had brought original Malkhana Register containing entry No. 2188. The photocopy of which is Ex.PW10/A. So long as the case property remained in his custody the same was not tampered with in any manner.
PW11 is HC Madan Singh who corroborated with the statement of PW2 Smt. Indra Kaur and has stated that he recorded her statement Ex.PW2/A. He also proved endorsement Ex.PW11/A made on her statement and has stated that he got the FIR registered while sending the rukka to PS through Ct. Rajinder Singh. After registration of FIR the investigation was handed over to SI Vikram Singh. Ct. Rajinder Singh reached back the spot with copy of FIR and rukka with SI Vikram Singh. He handed over the copy of DD No. 14 7A to SI Vikram Singh. The true copy of DD No. 7A is proved as Ex.PW6/B. PW12 is SI Vikram Singh, IO of the case. He has stated that various steps were taken and he corroborated with the statement of PW4 regarding arrest of accused and recovery of prosecutrix from him on 12.03.05 at Jewar Bus Stand and has stated that the prosecutrix was recovered from accused and she was taken into police custody vide memo Ex.PW4/A. Accused was interrogated and he was arrested vide arrest memo Ex.PW4/B and his personal search was conducted vide memo Ex.PW4/C. He has stated that on 13.03.05 the further investigation of this case was marked to W/SI Narender Kaur. He also identified the accused.
PW13 is Sh. Brijesh Garg the then Metropolitan Magistrate who recorded statement u/S 164 CrPC of the prosecutrix Ex.PW1/A. He proved the application of IO for recording statement of prosecutrix 15 u/S 164 Cr.P.C. as Ex.PW13/A. An application for supply of the copy of the statement was moved by the IO and the said application is proved by him as Ex.PW13/B. rd PW14 is SI Narender Kaur, 3 and the last IO of the case. She also proved steps taken by her during the investigation of the case. She has stated that she got accused and prosecutrix medically examined and their MLCs are Ex.PW7/A and Ex.PW8/A. She also has stated that doctor had preserved the exhibits and she sealed the same vide seizure memo Ex.PW14/A. The exhibits in respect of accused were also preserved by the doctor and the same were seized vide seizure memo Ex.PW14/B. He corroborated with the statement of PW9 regarding bone age of the prosecutrix and accused vide documents Ex.PW9/A and Ex.PW9/B and has stated that as per bone age certificate the age of prosecutrix was less than 17 years whereas the bone age of accused was less than 20 years. 16 He also corroborated with the statement of prosecutrix PW1 and of the Ld. MM PW 13 Sh. Brijesh Garg regarding statement of prosecutrix Ex.PW1/A and the application for recording her statement Ex.PW13/A. She also has stated that during investigation the exhibits were sent to FSL Rohini and its report Ex.PW14/B and Ex.PW14/C was obtained and submitted in the Court. She recorded the statement of the witnesses and on completion o the investigation challan was prepared and same was filed in the court. STATEMENT AND PLEA OF THE ACCUSED:
In the statement under Section 313 Cr.P.C., the accused, in response to the questions put to him with regard to the incriminating evidence emerging from prosecution case, has either denied these questions or have expressed his ignorance about the questions put to him. But he has admitted that he took prosecutrix to Faridabad at the house of one Tara who was brother in law of his elder brother, in 17 the night. He has also admitted that during night the committed rape upon the prosecutrix and on the next date they had an appearance in the Patiala House Court for an offence for misbehaving with prosecutrix by entering her house but also has stated that it was on the wishes of prosecutrix. He admitted he did not want to bring prosecutrix but the prosecutrix forcibly came with him by bus and came to Delhi. He has also admitted that his mother in law had lodged a complaint against him in village Jewar regarding keeping prosecutrix with him. He also admitted that in the morning at 5.30 AM when accused and prosecutrix were present at the bus stand of Jewar, they were apprehended by police of Jewar at the instance of mother of prosecutrix at Jewar. He has taken plea that it is a false case against him and the witnesses have deposed falsely against him being interested witnesses. The accused has stated that he is innocent. He has stated that he has been falsely implicated in this 18 case. He took defence that the prosecutrix wanted to marry him and she has prepared some documents affidavit and marriage agreement on 19.02.05. He also stated that prosecutrix alongwith him was residing at Jewar.
Accused did not lead any defence evidence. But an application for recalling of prosecutrix for further cross examination was made on behalf of the accused. It was allowed and the prosecutrix was further cross examined on behalf of the accused in which she has admitted that she was examined before the court on 04/08/05 and lateron out of on her own will she got married accused. She proved her affidavits Ex.P1/DA and has stated that she does not any action against the accused. Due to this wedlock one child was born but unfortunately the child expired.
ARGUMENTS AND FINDINGS:
Learned Addl. Public Prosecutor has argued that prosecutrix 19 has supported the prosecution case, so also her mother PW2 and brother PW3 respectively. The other witnesses have also supported the prosecution case, so accused is liable to be convicted for the charges framed against him.
Learned Counsel for the accused has argued that although the prosecutrix has supported the prosecution case in her statement but later on she has filed a joint application for compromise which was dismissed by this court. Subsequent to this application prosecutrix was recalled and further cross examined on 15.10.09 in which she has admitted that by her own will she got married with the accused and she does not want any case against him. Thus, accused is entitled to be acquitted.
I have heard learned Addl. Public Prosecutor for the State and Counsel for the accused and have gone through the record of the case, and relevant provisions of law carefully.20
PW1 Prosecutrix, in her examinationinchief has stated that she was coming from the house of her auntie(chachi) alongwith her younger brother Sohan Singh. When they reached near MCD Park, Chhattarpur the accused stopped them and asked prosecutrix to accompany him and on her denial he started beating her younger brother Sohan Singh. Then again told her to accompany with him and threatened her to kill her younger brother Sohan Singh. Accused caught hold of the neck of her younger brother. Out of fear and because of threat to life of her brother she sat on the motor cycle of the accused and she had been taken away by the accused. Accused then took her to Faridabad at the house of one Tara who was the brotherinlaw of his elder brother. Thereby he took her to village Jewar in Bulandshehar, U.P. forcibly. The PW2 mother of the prosecutrix and PW3 younger brother of the prosecutrix have corroborated with the statement of PW1 the prosecutrix in this 21 regard. PW3, younger brother of the prosecutrix, has stated that the accused had placed a knife on his neck and threatened to kill him. He asked his sister to sit on his motorcycle otherwise he would kill him. Therefore, the statement of PW1, PW2 and PW3 are corroborated, so far as the offences u/s 506/363 IPC are concerned, the charges against accused for the offences u/s 363/506 IPC stood proved by prosecution beyond reasonable doubt.
As regards the charge u/s 376 IPC, the accused in the statement u/s 313 CrPC has admitted that he committed rape on the prosecutrix but also took the plea that it was with the consent of the prosecutrix, He also admitted that he took the prosecutrix to Faridabad to the house of one Tara and then from Faridabad to Village Jewar in the Bulandshehar, U.P. It is also proved by the prosecution evidence as well as admission of accused in statement u/s 313 CrPC that police arrested the accused and took possession 22 of the prosecutrix at the bus stand in Village Jewar in U.P. The prosecutrix has specifically stated in her statement that accused committed rape on her in the house of Tara at Faridabad and also in village of Jewar in U.P. The statement of prosecutrix in itself is sufficient to prove the charge of rape against the accused without any corroboration.
The contention of learned Counsel for the accused is that the prosecutrix in the further cross examination on 15/10/09 has proved affidavit Ex. P1/DA and has stated that out of her own will she got married with the accused and due to their wedlock one child was born but expired and also the prosecutrix and accused moved an application for compounding the offences which was dismissed by this court, so the accused is entitled to be acquitted. The arguments are not on sound footing as per the prevalent legal position. It is true prosecutrix in the further cross examination on 15/10/09 has proved 23 affidavit Ex. P1/DA and has supported the accused by stating that she was unmarried and intended to marry accused. But an another affidavit which was placed on record her date of birth was given as 15/02/85. These documents executed voluntarily would certainly have exonerated the accused of the charge of rape and other charges in the normal circumstances but since in the cross examination PW1 the prosecutrix has specifically stated that Ex.P1/DC and P1/DA and PW1/DB were executed which are in her hand and she has specifically said that these documents were forcibly got executed by the accused. She has also identified her photograph Ex.PW1/DD with the accused but volunteered this was also got forcibly clicked. It is also pertinent to know that in her statement u/S 164 CrPC before Ld. Metropolitan Magistrate, which is Ex.PW1/A, she has stated that accused has obtained forcibly her signatures on the documents. Therefore, I am unable to rely upon 24 affidavit Ex.P1/DA, though she voluntarily in the further cross examination on 15/10/09 has relied on the affidavit Ex.P1/DA to support the accused. Although, it cannot be denied that the subsequent statement of prosecutrix made on 15/10/09 in the further cross examination tends to exonerates the accused as she has that she out of her own will had got married with the accused. After giving her statement as PW1 before the court the prosecutrix and accused moved a joint application for compounding the offence which is present on the record of the case which was dismissed by this court on 3.12.08 are strongly mitigating factors in favour of the accused, so far as the question of sentence is concerned. But these facts do not wipe out the charges framed against the accused including the charge of rape, as the offences were committed by the accused on 06/03/2005 and the prosecutrix PW1 has got him married after giving her statement before the court on 04/08/05, in 25 favour of the prosecution and against the accused. The statement of the accused u/S 313, referred before also in chief supports the prosecution case substantially.
RESULT OF THE CASE:
In view of the above, prosecution has been able to prove the charges under Sections 363/376/506 IPC against the accused beyond reasonable doubt. The accused is accordingly convicted under Sections 363/376/506 IPC. Let he be heard separately on the point of sentence.
Announced in the open
court on 23/10/09 (S.K. Sarvaria)
Add. Sessions judge/01/South
Patiala House Court
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IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE01/SOUTH
PATIALA HOUSE COURT
Sessions Case No. 129/08
State Vs Shakil @ Tikla
s/o Shera
R/o D13/203, Chattarpur
Dabri, New Delhi
FIR No. 124/05
Police Station Mehrauli
Under Section 363/376/506 IPC
ORDER ON SENTENCE
Vide my judgment dated 23/10/09 convict/accused Shakil @ Tikla has been convicted for the charges under Sections 363/376/506 IPC.
Learned Additional Public Prosecutor has argued for deterrent punishment to the convict/ accused as convict/accused has committed heinous crime of kidnapping and rape of the victim by threatening to kill her brother.
Learned counsel for convict/accused, on the other hand, has 27 argued that leniency may be taken against convict/accused as prosecutrix //2// has given the statement in the court that she and convict/accused got married and are residing together since long, peacefully. It is also argued that prosecutrix was called subsequently and was further cross examined on 15/10/09 she has testified that she has got married with the accused and does not want any action against convict/accused. It is also argued that an application was filed by the prosecutrix also on 1/12/08 for compromising the offence with the accused which was dismissed by this court vide order dated 3/12/08 so a lenient view may be taken against convict/accused.
In this case during investigation and trial of this case, the convict/accused was remained in custody for a period of ten months and one day as per nominal roll of the convict/accused called from Superintendent Jail and Deputy Superintendent Jail vide letter dated 28 11/10/09 has sent the nominal roll showing that convict/accused undertrial period of convict is ten months and one day. But as per court record //3// convict/accused was arrested on 10/3/05 and he appeared in the court on bail for the first time on 21/4/06. Therefore, he remained in custody for more than a year during investigation and trial of this case. The offence under Section 376(1) IPC for which the convict/accused was convicted is punishable with minimum imprisonment of seven years which is extendable to life imprisonment. Keeping in view the fact that woman raped by the convict/accused has since married him and they are living peacefully the case falls within the provisio of Sub Section 2 of Section 376 and the fact that prosecutrix had got married and she and convict/accused are living peaceful, married life for more than a year, in my view is both adequate and special reason to award him lessor imprisonment than prescribed minimum punishment of seven years. 29
Therefore, I sentence the convict/accused to undergo Rigorous Imprisonment for one year and to pay fine of Rs 1000/ under Section 376 (1) IPC. In default of payment of fine he shall undergo Simple //4// Imprisonment for two months. For the same mitigating factors, I sentence the convict/accused Six months Rigorous Imprisonment for the offence under Section 363 IPC. In addition he shall also pay fine of Rs 500/. In default of payment of fine convict/accused shall undergo Simple Imprisonment for one month. I further sentence the convict/accused under Section 506 IPC to undergo Rigorous Imprisonment for six months. In addition convict/accused is directed to pay fine of Rs.300/. In default of payment of fine convict/accused shall undergo Simple Imprisonment for twenty days. The substantive sentences of imprisonment awarded to convict/accused shall run concurrently.
The period of detention already undergone by convict/accused 30 during the period of investigation and trial of this case shall be set off against the term of imprisonment imposed against the convict/accused by this order, as provided under section 428 CrPC. Therefore, convict/accused be no need to sent judicial custody as already undergone //5// the imprisonment awarded to him.
Judgment and order on sentence be sent to server (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 29.10.2009 ( S K Sarvaria )
Additional Sessions Judge01/South
Patiala House Court
31