Delhi District Court
State vs 1. Gurpal Singh @ Vicky Son Of on 18 November, 2008
1
IN THE COURT OF SHRI NAROTTAM KAUSHAL: ADDITIONAL
SESSIONS JUDGE -II(NW): ROHINI COURTS: DELHI.
DATE OF INSTITUTION:-02.07.2005.
DATE ON WHICH RESERVED FOR JUDGMENT:-10.11.2008.
DATE OF JUDGMENT:-14.11.2008.
SESSIONS CASE NO.312/2006.
FIR NO.278/2005.
PS-PRASHANT VIHAR.
U/S. 363/376/120B/34 IPC.
STATE VS 1. GURPAL SINGH @ VICKY SON OF
SHRI DHYAN SINGH, R/O. J-501,
SARDAR COLONY, SECTOR-16,
ROHINI, DELHI-110085.
2. RAJENDER SINGH@ THOLU S/O.
SHRI GURBACHAN SINGH R/O. J-
445, SARDAR COLONY, SECTOR-16,
ROHINI, DELHI-110085.
3. BHUPENDER SINGH @ BINDER S/O.
SHRI AJIT SINGH, R/O. J-594,
SARDAR COLONY, SECTOR-16,
ROHINI, DELHI-110085.
JUDGMENT
1.1.Accused Gurpal @ Vicky, Rajender Singh @ Golu and Bhupender Singh have been chargesheeted by PS Prashant Vihar for the offences punishable under Sections 376/342/363/120-B read with 34 IPC. 2 2.1.As per the prosecution case, D.D. No.27 was received at the PS on 27.3.2005 at 8.40 pm about a quarrel. ASI Jai Bhagwan alongwith Ct. Brahm Prakash reached the spot i.e. Sardar Colony, where prosecutrix 'R' (real name concealed) and her mother Maya Kaur met him. On preliminary investigation, they revealed it to be a case of rape. ASI Jai Bhagwan on instructions from senior officers informed WSI Sudesh Dahiya to join investigation. SI Sudesh Dahiya reached at B.S.A. Hospital at 11 PM, where accused Gurpal @ Vicky, prosecutrix and her mother were produced before her. Accused, who had jumped from out of room on the arrival of mother of the prosecutrix had sustained injuries in his feet and other parts of the body. Accused as well as the prosecutrix were got medically examined.
2.2.Statement of prosecutrix was recorded. She stated that at about 7.30 pm she was in her room on the 3rd Floor of the building. She went down stairs to answer the call of nature, when three boys namely Gurpal @ Vicky, Tholu S/o. Gurbachan Singh and Binder came towards her. Vicky forcibly caught hold of her and shut her mouth with his hands and with 3 the help of Tholu and Binder, took her to the top floor room in the house Tholu. All the three bolted the room from inside. Tholu and Binder stood on one side of the room and Gurpal @ Vicky started misbehaving with her. In the process of saving herself, she hit the surface of a window and received injuries on her head. Gurpal Singh @ Vicky forcibly raped her. She raised alarm and on this her mother arrived and knocked at the door. Disturbed by the knock at the door, Gurpal @ Vicky jumped out from the other door in the room and she opened the bolt. Her mother took care of her. In the meantime Tholu and Binder also ran away from the spot.
2.3.On the statement abovesaid IO prepared a rukka and got the FIR registered. During investigation, exhibits were collected and subsequently sent to the FSL. Accused persons were arrested on the identification of the prosecutrix. All the accused persons were medico- legally examined. Date of birth record of the prosecutrix were collected. On the basis of investigation, challan for offence punishable under Sections 363/376/342/120-B read with 34 IPC was filed against accused 4 Gurpal@Vicky. The remaining two accused persons namely Rajinder @ Tholu and Bhupender @ Binder were chargesheeted for offences punishable under Section 363/342/120-B IPC.
3.1.After complying with the provision of Section 207 Cr.P.C. present case was committed to the court of Sessions, which in turn was assigned to the predecessor of this Court.
3.2.Vide order dated 26.07.2005 the predecessor of this Court framed charges against the accused persons for offence punishable under Section 366 read with 34 IPC and 376 (2) (g) IPC, to which accused persons pleaded not guilty and claimed trial.
4.1.Prosecution in support of its case examined 15 witnesses and PE was closed on the statement of learned APP for the State. Maya (PW1) is the mother of the prosecutrix, she has deposed that prosecutrix was 12/13 years of age at the time of incident. On the day of occurrence, she returned home at about 8.30 pm and heard screams of her daughter from 5 the 3rd Floor of the house of accused Rajender. She rushed to the said room and saw Rajender and Bhupender standing outside the room. On her arrival the two ran away and she summoned other persons and broke open the lock of the room. The room was opened from the inside by her daughter, who was not wearing any clothes. She was also bleeding from her head. She further deposed that accused Gurpal @ Vicky received injuries while jumping from the building after her arrival and was apprehended by the public.
4.2.Prosecutrix 'R' (PW2) has deposed that on 27.3.2005 at about 7 pm, the electricity failed and she went down stairs to look for a candle. Accused persons were present on the ground floor and they forcibly took her to the second floor of the adjoining house belonging to Tholu@ Rajender. From the Second Floor they took her to third floor on the knife point. Inside the room on 3rd floor, she was pushed around and she received injuries on her head. Accused persons bolted the room from inside and Gurpal @ Vicky raped her first of all. The other two also raped her subsequently. On her alarm, her mother arrived. Accused 6 Rajender @ Tholu and Bhupender @ Binder went out and locked the room from outside. Accused Gurpal @ Vicky remained inside and kept her mouth gagged. He jumped outside when the room was opened. She further deposed about the investigation aspect.
4.3.Vakil Singh (PW3) is the father of the prosecutrix, he corroborated the testimony of his wife and the daughter. Dr. Neelam Kumari (PW6) proved the MLC of the prosecutrix. As per the report, hymen was found ruptured, breast of the patient was not developed. There was clotted blood on the scalp. Patient was advised Bone age determination. Dr. Deepti Bhalla (PW8), Dr. Kuldeep Singh (PW9) and Dr. Vikas Kumar (PW12) proved MLC of Gurpal @ Vicky. His medical examination revealed fracture of heel bones of both feet and also some injuries in the spine. Dr. Rajesh (PW13) proved the opinion that accused Gurpal @ Vicky was fit to perform sexual intercourse. Remaining witnesses proved various stages of investigation.
5.1.Incriminating evidence was put to the accused persons. They all denied 7 the allegations of rape and abduction. It was stated that they have been falsely implicated. It was pleaded that complainant party had some dispute with accused Rajender @ Tholu and others being his friends were falsely implicated. Rape was of course, denied. It was denied that prosecutrix was born on 15.09.1994. Accused Gurpal @Vicky explained the injuries on his body to have been sustained, on account of beating by father and other relations of the prosecutrix. All the accused persons sought opportunity to lead defence evidence.
6.1.Three witnesses were examined in defence. Paramjit Kaur (DW1) deposed that accused Rajender Singh @ Tholu is her neighbour for the last about 8-10 years. She deposed that Rajender @Tholu was not in town at the time of the occurrence. She saw Gurpal @ Vicky being beaten by Vakil Singh and complainant party. Balwant Kaur (DW2) deposed that accused Vicky was being beaten by Smt. Vidya, Sajan and their daughter on the day of occurrence at about 6.30pm. Harbans Kaur (DW3) had remained as tenant in the house of accused Rajender for about two years. Her other relations were also tenant in the same house. She 8 knew the complainant party, as well being neighbours. On the day of occurrence, she saw complainant beating Gurpal @Vicky. Accused Rajender Singh @ Tholu was not present at the spot. There had been an attempt for settlement between the parties. Accused had been falsely implicated. Defence Evidence was closed by the statement of Shri J.P. Singh , Advocate. He also tendered a Compromise Deed bearing the seal of President, Gurudwara Baba Makhan Shah Labana as mark DA. 7.1.Shri Sanjay Soni, APP for the State has argued that the testimony of the prosecutrix coupled with the medical evidence establishes the prosecution case. MLC of the prosecutrix Ex.PW6/A records injuries on her head and history of rape. Principal of Municipal School proved the date of birth of the prosecutrix as 15.09.1994. MLC of Gurpal @ Vicky Ex.PW2/A corroborates eyewitness account of accused jumping from height. He was also declared capable of performing sexual intercourse vide MLC Ex.PW9/A. It is further argued that role of accused Rajender Singh @ Tholu and Bhupender Singh @ Binder is also established from the testimony of prosecutrix (PW2) and her mother (PW1). Shri Sanjay Soni, 9 learned APP for the State has relied upon law laid down in State vs Gajanan @ Hemant Janardhan Wankhede in 2008 CRI.L.J. 3549 SC & Moti Lal VS State of M.P. 2008 CRI.L.J. 3543 SC.
8.1.Shri Aseem Bhardwaj, Learned Amicus Curiae appointed on behalf of the accused persons has strongly argued that the prosecution case is a bundle of lies. Prosecutrix (PW2) has improved upon her statement made to the police to such extent that the entire case becomes doubtful. In her initial statement to the police she has alleged rape only by Vicky whereas in the Court, she has deposed having been raped by all the three. Her reason of leaving of her room has been improved. Story of user of knife has been introduced for the first time during deposition in the court. It is argued that top floor on the house of accused Rajender, does not have a regular staircase. An iron ladder has been placed, which is open and visible to all general public. Dragging a girl on such a staircase is not possible. The lock on the top floor of the room, allegedly broken open by the mother of the prosecutrix, has not been produced in evidence. The FSL report or the MLC do not indicate any evidence of sexual 10 intercourse. The prosecutrix who has totally improved upon her statement made to the police is not worthy of credence. The IO did not get the statement of prosecutrix recorded under Section 164 Cr.P.C and also failed to get the Bone age determination despite such an advise by the doctor. Disclosure statement of accused is also not on record, though accused Vicky is alleged to have been interrogated. The story of jump from height is not established as the site plan does not indicate the spot from where the accused could have jumped. If he had jumped from 3rd Floor then the injuries do not so reflect. The window surface which allegedly caused injury on the scalp of the prosecutrix was not identified. Accused Rajender Singh @ Tholu and Bhupender @ Binder were not medico-legally examined to establish their capability to perform sexual intercourse. Accused Gurpal @Vicky was beaten by the complainant party, as deposed by defence witnesses because of some previous enmity between the parties. It is, therefore, argued that the prosecution case suffers from major contradictions, entitling the accused persons to benefit of doubt.
119.1.I have heard the learned counsels and with their assistance I have perused the evidence on record. For adjudication of the guilt of the accused persons, the following issues would requir consideration.
(I)Age of the prosecutrix.
(II)Whether the prosecutrix was subjected to forcible abduction and rape.
(III)Role of each accused.
10.1.As regards the first issue posed by this Court, prosecutrix (PW1) and her parents i.e. Maya(PW2) and Vakil Singh (PW3) have deposed that she was 12-13 years old at the time of occurrence. There is no cross examination or contrary suggestion to Maya (PW1) and Vakil Singh (PW3) as regards age of the prosecutrix. While cross-examining prosecutrix (PW2), she had answered that her younger sister was about 13 years old at the time of recording her deposition. Prosecutrix was also not further cross-examined as regards her age. Jai Bhagwan (PW10), Vice Principle of MCD Primary School has deposed on the basis of the school record that date of birth of prosecutrix was 15.09.1994. On being cross 12 examined, he deposed that no proof of age, except the affidavit of the father was furnished at the time of admission to school. 10.2.Another important piece of evidence which is relevant to this issue is the medico-legal examination of the prosecutrix. Her MLC Ex.PW6/A records as under :-
a) Breast not developed.
b) Axillary hair sparce.
c) Pubic hair sparce.
From the observations of the doctor as noticed above, it can be gathered that the prosecutrix had not yet attained puberty or had shortly attained the same.
10.3.Though prosecutrix was not put to Ossification Test, despite an advise to this effect; yet evidence as noticed above indicates that age orally deposed by the witnesses was not far from correct. Moreover, no contrary suggestion regarding age having been given, during the testimonies of these witnesses, defence cannot raise such an argument now. I, therefore, hold that the prosecutrix was about 13 years of age at the time of occurrence.
1311.1.(II) Whether the prosecutrix was subjected to forcible abduction and rape:- The best witness in support of this allegation is of course, the prosecutrix herself. There, of course, is no eyewitness to the abduction and rape. Maya (PW1) is supposed to have reached the spot of occurrence, shortly thereafter and is only a witness to circumstance. 'R' (PW2) has deposed that she was forcibly dragged by the three accused persons from the ground floor to the second and thereafter taken to the top floor through the iron ladder at the point of knife. Her deposition in the court on this aspect is of course a slightly improved version vis-a-vis the statement made to the police. Her reason of reaching the ground from from her third floor room has been differently stated in the court, use of knife has been introduced only in the deposition in the court. However, forcible dragging and gagging by the three accused persons during first two flights of staircase is an unchanged version. However, an element of doubt is created. Yet the fact that she has sustained injuries on the scalp during the process of being taken to the top floor does indicate use of 14 force. Moreover, as held in para 10 above, the prosecutrix was about 13 years of age at the time of occurrence. The element of consent if any cannot be accepted. I, therefore, hold that prosecutrix was forcibly taken by the accused persons from the ground floor to the top floor room on the house of accused Rajender Singh @Tholu, with the intention to commit sexual intercourse. Thus the charge for offence punishable under Section 366 read with 34 IPC is established.
11.2.As regards the allegations of forcible sexual intercourse prosecutrix has again improved upon her statement made to police. In the court she deposed that all the three persons had raped her, whereas in her statement made to the police she had named only Gurpal @ Vicky to have raped her. Support can be taken from the history given by her at the time of her medical examination. MLC Ex.PW6/A records:-
"According to girl 'R' she was forcibly dragged by three males, Vicky, Tholu and Binder at about 8 pm yesterday i.e. 28.3.2005 and raped by Vicky".
MLC Ex.PW6/A also records hymen to be ruptured and secretions to be present. Though, the FSL report does not record presence of 15 semen, yet testimony of prosecutrix and the history given by her at the time of her medico-legal examination does indicate that she was subjected to forcible intercourse by accused Gurpal @ Vicky. Presence of semen in only a corroborative evidence, its absence would not disprove penetration. 11.3.The remaining two accused persons Rajender @ Tholu and Bhupender @ Binder were allegedly present in the same room when prosecutrix was raped by accused Gurpal @ Vicky. Maya (PW1) saw then both present outside the room, when she heard the screams of her daughter from inside the room. When Maya got the room opened, both of then ran away. Also as noticed above in para 11.1 above, both of them had actively participated in abduction of the prosecutrix from the ground floor to the top floor of the house where she was raped. It can thus be safely gathered that the without the assistance and help of the accused Bhupender and Rajender, the offence of rape committed by Gurpal @ Vicky could not have been possible. Though, the act of sexual intercourse by any one of two is not established, yet they are liable to be convicted for the offence punishable under Section 376 (2) (g) IPC, as they had facilitated the 16 commission of rape. I, therefore, hold all the three accused persons guilty for the offence punishable under section 376 (2) (g) IPC. 11.4.Another circumstance which supports the prosecution story of accused Gurpal @ Vicky having escaped from the third floor room is the nature of injuries received by Gurpal @ Vicky at the time of occurrence. Maya (PW1) and prosecutrix R(PW2) have both deposed that Gurpal @ Vicky jumped out of the window, when Maya reached the spot of occurrence and knocked at the door. His MLC Ex.PW2/A records history of fall from height (as told by the patient himself). His examination revealed swelling and tenderness on both the heels. There was also mild tenderness in the spine. Dr. Vikas Kumar Goel (PW12) has proved that Gurpal @ Vicky had fracture of heel bones on both feet, and also mild tenderness at DL(D-12, L-1 Junction) of spine. He also expressed his opinion that the injuries can be sustained by the patient while jumping from height.
11.5.The argument of Shri Bhardwaj that the version of jumping from the height is improbable, as there was no place where the accused could have 17 jumped a single storey. The window on the room open in the gali and no- one could have jumped from third floor and survived. The arguments looks meritorious, but it only exposes poor quality of investigation. Failure of IO to prepare a proper site plan after inspection of the spot is patent. But such a lapse in investigation cannot be escape route for the accused persons. Similarly, failure to seize the broken lock also indicates poor investigation. Non-availability of the disclosure statement of the accused on record is also not fatal to the prosecution case, as there were no recoveries effected in terms of his statement. The evidence of official witnesses does not cause any doubt on the prosecution version. There are no major lapses in the investigation pointed out.
11.6.The defence witnesses have deposed that accused Rajender @ Tholu was not present at the spot on the day of occurrence. There, of course, is no documentary evidence to prove the absence of accused Rajender @ Tholu. In fact in his statement under Section 313 Cr.P.C. , accused Rajender has not pleaded that he was out of station or was not present at the spot. His plea of alibi sought to be proved in defence evidence is, therefore, unsubstantiated. The explanation of the injuries on the person 18 of Gurpal @ Vicky tendered by the defence witnesses is contrary to the medical evidence. All the defence witnesses have deposed that Gurpal @ Vicky beaten by the complainant party. Medical evidence as discussed in para no. 11.4 above records injuries on the heels of the accused Gurpal @ Vicky. There is no way that a person can receive injuries on the heel unless he is lying prostrate and is hit only on the heels. Injuries are only consistent with jump from a height. Simultaneous injuries on both the heels and the jerk on the spine can be explained only in case of a jump or fall from a height. The defence version is, therefore, not worthy of credence. All the three witnesses have also deposed that they have remained as tenants in the house of Rajender @ Tholu. I, therefore, disbelieve the defence witnesses.
12.1.For the reasons stated above, I am of the opinion, prosecution has proved its case. All the three accused persons are held guilty for the offence punishable under Section 366 read with 34 IPC and 376 (2) (g) IPC. Ordered accordingly.
Announced in the open Court (NAROTTAM KAUSHAL) today i.e. 14.11.2008. ASJ-II(NW):ROHINI:DELHI. 19 IN THE COURT OF SHRI NAROTTAM KAUSHAL: ADDITIONAL SESSIONS JUDGE -II(NW): ROHINI COURTS: DELHI.
DATE OF INSTITUTION:-02.07.2005.
DATE ON WHICH RESERVED FOR JUDGMENT:-10.11.2008.
DATE OF JUDGMENT:-14.11.2008.
DATE OF ORDER ON SENTENCE:-18.11.2008 SESSIONS CASE NO.312/2006.
FIR NO.278/2005.
PS-PRASHANT VIHAR.
U/S. 366 R/W 34 IPC & 376 (2) (g) IPC.
STATE VS 1. GURPAL SINGH @ VICKY SON OF
SHRI DHYAN SINGH, R/O. J-501,
SARDAR COLONY, SECTOR-16,
ROHINI, DELHI-110085.
2. RAJENDER SINGH@ THOLU S/O.
SHRI GURBACHAN SINGH R/O. J-
445, SARDAR COLONY, SECTOR-16,
ROHINI, DELHI-110085.
3. BHUPENDER SINGH @ BINDER S/O.
SHRI AJIT SINGH, R/O. J-594,
SARDAR COLONY, SECTOR-16,
ROHINI, DELHI-110085.
20
ORDER ON SENTENCE
1.1.Vide judgment dated 14.11.2008, accused persons have been held guilty for the offence punishable under sections 366 read with 34 IPC and 376 (2) (g) IPC.
2.1.Shri Sanjay Soni, APP on behalf of the State has argued that the accused persons are liable to be sentenced with the maximum punishment provided under the statute. They subjected a young girl of 12/13 years's age, to their lust.
3.1.Shri Aseem Bhardwaj, Amicus Curiae for the accused persons has prayed for a lenient sentence. It is submitted that accused Gurpal @ Vicky is a married person and having three minor children with no previous criminal record. Accused Rajender is submitted to be an unmarried person with three sisters and an unemployed brother dependent upon him. Accused Bhupender @ Binder is also unmarried with widowed mother and a bed ridden brother dependent upon him. A lenient sentence is, therefore, prayed for.
214.1.I have heard the learned counsels. Accused persons abducted a young girl who was their neighbour and then subjected her to gang-rape. The mitigating circumstances regarding the families of the convicts, submitted by Shri Bhardwaj are of course unsubstantiated. However, even if accepted to be correct, I find no reasons to award sentence less than the minimum provided under the Statute. Accordingly all the three accused persons are held liable to undergo RI for a period of 10 years each for the offence punishable Section 376 (2) (g) IPC. Accused Gurpal @ Vicky who is a married person and the person who had raped the girl, shall be liable to pay a fine of Rs.25,000/-. In default of payment of fine he shall undergo SI for a period of one year. Co-accused Rajender @ Tholu and Bhupender @ Binder who are both unmarried, shall be liable to pay a fine of Rs.5,000/- each. In default of payment of fine, they shall both undergo SI for a period of three months.
5.1.For the offence punishable under Section 366 read with 34 IPC all the accused persons shall undergo RI for a period of 4 years each and shall also be liable to pay a fine of Rs.5,000/- each. In default of payment of 22 fine each one of them to undergo SI for a period of three months. Out of the recovered fine, amount of Rs.25,000/- shall be payable to prosecutrix as compensation.
6.1.Both the sentences shall run concurrently. Accused persons shall also be entitled to benefit of provisions of Section 428 Cr.P.C. Copy of Judgment and Order on Sentence be provided to the accused persons free of cost today itself. Sessions file be consigned to record room.
Announced in the open Court (NAROTTAM KAUSHAL) today i.e. 18.11.2008. ASJ-II(NW):ROHINI:DELHI. 23 STATE VS GURPAL SINGH @ VICKY & ORS.
S.C. NO.312/06.
FIR NO.278/2005.
PS-PRASHANT VIHAR.
U/S. 366 R/W 34 IPC & 376 (2) (g) IPC.
18.11.2008.
Present: APP for the State.
All Convicts in JC with Shri Aseem Bhardwaj, Amicus Curiae.
Vide a separate order on quantum of sentence, All Convicts are held liable to undergo RI for a period of 10 years each for the offence punishable Section 376 (2) (g) IPC. Accused Gurpal @ Vicky who is a married person and the person who had raped the girl, shall be liable to pay a fine of Rs.25,000/-. In default of payment of fine he shall undergo SI for a period of one year. Co-accused Rajender @ Tholu and Bhupender @ Binder who are both unmarried, shall be liable to pay a fine of Rs.5,000/- each. In default of payment of fine, they shall both undergo SI for a period of three months.
For the offence punishable under Section 366 read with 34 IPC all the accused persons shall undergo RI for a period of 4 years each and shall also be liable to pay a fine of Rs.5,000/- each. In default of payment of fine each one of them to undergo SI for a period of three months. Out of the recovered fine, amount of Rs.25,000/- shall be payable to prosecutrix as compensation.
Both the sentences shall run concurrently. Accused persons shall also be entitled to benefit of provisions of Section 428 Cr.P.C. Copy of Judgment and Order on Sentence be provided to the accused persons free of cost today itself. Sessions file be consigned to record room.
(NAROTTAM KAUSHAL) ASJ-II(NW):ROHINI:DELHI.
18.11.2008