Delhi District Court
State vs . 1). Param Hans on 25 February, 2012
1 FIR No. 315/2009
PS Aman Vihar
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
Sessions Case No. : 1/10
Unique ID No. : 02404R0332642009
State Vs. 1). Param Hans
S/o Sh. Nagu Yadav
2). Smt. Anita
W/o Param Hans
Both R/o H.No. D205,
Gauri Shanker Enclave,
Prem Nagar, III, Delhi.
FIR No. : 315/2009
Police Station : Aman Vihar
Under Sections : U/S 363/376 (2) (f)/109 IPC
Date of committal to session Court: 23.12.2009
Date on which judgment reserved: 22.02.2012
Date of which judgment announced: 24.02.2012
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2 FIR No. 315/2009
PS Aman Vihar
JUDGMENT :
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: On 19.09.2009 Smt. Amal Devi lodged a complaint with the police of Police Post Prem Nagar, Police Station Aman Vihar accompanied by the prosecutrix (named withheld being a case u/s 376 IPC) that on 18.09.2009 at about 7.00 AM in the morning her daughter (prosecutrix) was going to school but after about 10 minutes her daughter returned to her house weeping. She asked her daughter as to what has happened, her daughter told her that Anita aunti had taken her to her (Anita) house where her (Anita) husband made her (prosecutrix) lie down on a cot and her (prosecutrix) underwear was removed and wrong deed (galat kam) was done on her (prosecutrix) and thereafter, he (husband of Anita) left her. It was further stated by complainant that then she went to their (Anita and her husband) house to inquire but there Anita started quarreling with her, then she (complainant) returned to her house. Then in the evening also she (complainant) went to their (Anita and her husband) house and inquired on which Param Hans said that he had been told by his wife (Anita) that 2 of 34 3 FIR No. 315/2009 PS Aman Vihar yesterday Umesh son of Amal Devi (complainant) had done wrong deed (galat kam) with their daughter Anjali so he (Param Hans) had taken revenge of that. On hearing this she (complainant) returned to her house but the people of gali/mohalla told her (complainant) to lodge a complaint with the police and on that day (18.09.2009), she (complainant) remained at her house but has come today to lodge the report.
Prosecutrix was medically examined at SGM Hospital, Mangoluri. Her MLC was obtained. Doctor's opinion and subsequent opinion were obtained on her MLC. Counselling of prosecutrix was also got done from Nazma Khatoon NGO of Nav Srishti. Rukka was prepared and a case was got lodged at Police Station Aman Vihar u/s 376/511 IPC. Thereafter, on the identification of the complainant accused Param Hans was arrested, who was interrogated, his disclosure statement was recorded and his medical examination was also got conducted. The sealed pullandas were deposited in the malkhana and were later on sent to the FSL for examination.
Upon completion of necessary further investigation challan was prepared for the offences u/s 363/376/109 IPC against accused Param Hans and was sent to the court for trial.
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2. Accused Anita who was initially absconding but later on surrendered in the Court and was arrested. After completion of the necessary investigation supplementary challan was prepared against her for the offences u/s 363/376/109 IPC and was sent to the Court for trial.
3. Since the offence u/s 376 IPC is exclusively triable by the Court of Sessions, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Sessions u/s 209 Cr.P.C.
4. Upon committal of the case to the Court of Session, after hearing of charge prima facie a case u/s 376 (2) (f) IPC against accused Param Hans, a case u/s 114 r/w Section 376 (2) (f) IPC against accused Smt. Anita and a case u/s 363/366/34 IPC against accused Param Hans and Smt. Anita was made out. Charges were framed accordingly which were read over and explained to accused to which they pleaded not guilty and claimed trial.
5. In support of its case prosecution has produced and examined 12 witnesses. PW1 The prosecutrix, PW2 Smt. Amal Devi, PW3 Dr. Surekha, PW4 Sh. Indresh Kumar Mishra, PW5 Dr. Mahipal Singh, PW6 Ct. Ajay Pal, PW7 Ms. Nazma Khan, PW8 Ms. Shunali Gupta, Ld. MM, PW9 HC 4 of 34 5 FIR No. 315/2009 PS Aman Vihar Joginder Singh, PW10 HC Surinder Pal, PW11 ASI Karan Singh and PW12 ASI Surender Singh.
6. PW1 The prosecutrix, who is the victim girl herself who deposed regarding the incident and proved her statement made to the Ld. Metrpolitian Magistrate, u/s 164 Cr.P.C Ext. PW1/A (Her detailed testimony shall be discussed during the course of appreciation of evidence).
7. PW2 Smt. Amal Devi who is the mother of the prosecutrix and is the complainant. She proved her statement Ext. PW2/A on the basis of which FIR was registered. She also proved the arrest memo of accused Param Hans Ext. PW2/B (Her detailed testimony shall be discussed during the course of appreciation of evidence).
8. PW3 Dr. Surekha, Senior Gyane, SGM Hospital, Delhi. She proved the endorsement of Dr. Hemlata from PointX to X on Ext. PW3/A and the final opinion of Dr. Ashu Gupta Ext. PW3/B on the basis of examination made by Dr. Hemlata of the prosecutrix (Her detailed testimony shall be discussed during the course of appreciation of evidence).
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9. PW4 Sh. Indresh Kumar Mishra, Senior Scientific Officer (Biology), FSL, Rohini, Delhi, who deposed that he examined the exhibits and proved his detailed reports biologically and serologically Ext. PW4/A & Ext. PW4/B.
10. PW5 Dr. Mahipal Singh, CMO, SGM Hospital, Mangolpuri, who deposed that on 22.09.2009 at 10.05 PM he examined patient Param Hans, 34 years male and proved his MLC Ext. PW5/A.
11. PW6 Ct. Ajay Pal who deposed that on 27.10.2009 he took the exhibits from the MHC(M) and deposited the same with the FSL.
12. PW7 Ms. Nazma Khan who is the counseller, who counselled the prosecutrix and proved her statement made to the police Ext. PW7/A.
13. PW8 Ms. Shunali Gupta, Ld. MM, Rohini Courts, Delhi who recorded the statement of the prosecutrix u/s 164 Cr.P.C and proved the same Ext. PW1/A and the certificate appended to it Ext. PW8/A and also proved her endorsement Ext. PW8/B on the application of IO vide which copy of the statement u/s 164 Cr.P.C was given to the IO.
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14. PW9 HC Joginder Singh, who is the MHC(M) who deposed regarding the depositing of the samples with him in the malkhana and of sending the same to the FSL and proved the relevant entries of the Register No. 19 at Sl. No. 268/1, 268/2 and 272 collectively Ext. PW9/A. He also proved the endorsement of handing over of eight sealed parcels and two sample seals vide RC No. 119/21 vide Ext. PW9/B. He also proved the endorsement regarding the depositing of FSL result and remnant case property Ext. PW9/C and photocopy of the road certificate Ext. PW9/C.
15. PW10 HC Surinder Pal, who is the Duty Officer, who proved the copy of the FIR as Ext. PW10/A and his endorsement on the rukka at PointB.
16. PW11 ASI Karan Singh, who is the IO of the case, who deposed on the investigational aspects and besides proving the other memos also proved the personal search memo of accused Param Hans Ext. PW11/A, his disclosure statement Ext. PW11/B, seizure memo of two sealed parcels and sample seal given by the doctor of S.G.M Hospital Ext. PW11/C, arrest memo of accused Anita Ext. PW11/D, her personal search memo Ext. PW11/E and her disclosure statement Ext. PW11/F. 7 of 34 8 FIR No. 315/2009 PS Aman Vihar
17. PW12 ASI Surender Singh, who deposed that on 19.09.2009 he was posted at PP Prem Nagar, PS Aman Vihar and proved the statement of PW2 Smt. Amal Devi Ext. PW2/A and also deposed that after the medical examination of the prosecutrix at S.G.M. Hospital doctor had given six pullandas and a sample seal of SGMH Govt. of NCT of Delhi which were seized vide seizure memo Ext. PW12/A signed by him at PointA. He has further deposed that further investigation was handed over to SI Surya Prakash as he was to go for another assignment.
18. Statements of accused Param Hans and accused Anita were recorded u/s 313 Cr.P.C wherein they pleaded innocence and false implication. They did not opt to lead any defence evidence.
19. Ld. Counsel for the accused submitted that prosecution has failed to prove its case beyond reasonable doubt and the accused persons have been falsely implicated in this case because of enmity.
20. While the Ld. Addl. PP for the state on the other hand submitted that prosecution has proved its case beyond reasonable doubt against both the accused persons.
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21. I have heard the Ld. Addl. PP for the state and the Ld. Counsel for the accused and have also carefully perused the entire record.
22. AGE OF THE PROSECUTRIX: PW1 prosecutrix in her testimony has deposed that she was the student of IInd Class and was going to be promoted to IIIrd Class.
PW2 Smt. Amal Devi, mother of the prosecutrix has deposed that on 18.09.2009 her daughter (prosecutrix) was studying in IInd Class. In her statement recorded on 23.09.2009, u/s 164 Cr.P.C Ext. PW1/A prosecutrix has disclosed her age as 8 years. In the MLC of the prosecutrix Ext. PW3/A her age has also been mentioned as 8 years. The perusal of MLC Ext. PW3/A interalia shows that prosecutrix has not attained monarche yet. Pubic hairs not present.
Except for the above, no other evidence with regard to the age of prosecutrix being 8 years has been produced on the record by the prosecution. Moreover, even the said evidence so produced on the record regarding the factum of the age of the prosecutrix being 8 years has not been 9 of 34 10 FIR No. 315/2009 PS Aman Vihar disputed or challenged by the defence.
In the circumstances, it stands established on the record that prosecutrix was of age of 8 years on the date of incident.
23. MEDICAL EVIDENCE: PW3 Dr. Surekha has deposed that on 19.09.2009 she was posted at S.G.M. Hospital. On that day prosecutrix was brought to the hospital by ASI Surender vide DD No. 19/A who was attended by CMO vide MLC No. 12757/09. After examining the prosecutrix, she was referred to gyane department where she was examined by Dr. Hemlata vide her endorsement from Point X to X on Ext. PW3/A bears her signatures at PointA. She has further deposed that she identifies the handwritting and signature of Dr. Hemlata as she had seen her on day today routine work. She has further deposed that Dr. Hemlata had left the hospital and her present whereabouts are not known. She has further deposed that after examination, Dr. Hemlata sealed vulval, vaginal swab, nail clippings, undergarments, vaginal smear and blood sample and handed over the same to the IO as per record. She has further deposed that thereafter, Dr. Ashu Gupta gave her 10 of 34 11 FIR No. 315/2009 PS Aman Vihar final opinion on the basis of the final examination made by Dr. Hemlata. Her endorsement is Ext. PW3/B bearing the signature of Dr. Ashu Gupta at PointC. The perusal of endorsement from Point X to X on Ext. PW3/A interalia shows that patient has not changed undergarments and had not taken bath. Pubic hair not present. No external injury present, Hymen torn, margin not reddened. No evidence of fresh bruise present. Admits one finger with difficulty.
The final opinion Ext. PW3/B of Dr. Ashu Gupta given on the basis of examination made by Dr. Hemlata (Point X to X on Ext. PW3/A) interalia reads as ...........(2) Yes, hymen can be torn without sexual assault, (3) hymen torn could be fresh, however, vaginal & vulval swab under examination could be confirmative, (4) rape committed or not can be confirmed with swabs and other reports.
PW5 Dr. Mahi Pal Singh, who conducted the examination of Param Hans and proved his MLC Ext. PW5/A. The MLC Ext. PW5/A of the Param Hans interalia mentions that, no fresh injury or bleeding seen 11 of 34 12 FIR No. 315/2009 PS Aman Vihar clinically at the time of examination. There is nothing to suggest at the time of examination that person cannot perform any sexual act.
24. SEROLOGICAL EVIDENCE: PW4 Sh. Indresh Kumar Mishra, Senior Scientific Officer (Biology), FSL, Rohini, Delhi, has deposed that on 27.08.2010, 8 sealed parcels were received in FSL Rohini and the same were marked to him for analysis. The seal on the parcels were intact, the parcel was unsealed for analysis and he examined the exhibits and submitted his detailed report biologically and serologically Ext. PW4/A and Ext. PW4/B bearing his signature at PointA. The result of analysis as per FSL report Ext. PW4/A is to the effect.
1). Blood was detected on exhibits '4' and '8'.
2). Semen could not be detected on exhibits '1', '2a', '2b', '3a', '3b', '6' and '9'.
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3). Hair could not be detected on exhibits '1', '2a', '2b', '3a', '3b' and '6'.
4). Skin could not be detected on exhibit '5'.
The result of anaysis as per FSL report on Ext. PW4/B is to the effect; Exhibit '4' Blood sample and sample was putrefied hence no opinion. Exhibit '8' Blood stained gauze cloth piece No reaction.
On careful perusal and analysis of the medical and serological evidence on record, as discussed hereinabove it clearly indicates absence of semen on valval swab (Ext. '1'), vaginal swab (Ext. '2a', '2b'), vaginal smear (Ext. '3a', '3b'), one underwear (Ext.'6') and few strands of hair (Ext.'9'). Absence of hair on valval swab (Ext. '1'), vaginal swab (Ext. '2a', '2b'), vaginal smear ('3a', '3b') and one underwear (Ext. '6'). Absence of skin on few nail clipping (Ext.'5'), no reaction on blood sample (Ext. '4') and no reaction on blood gauze cloth piece (Ext.'8').
25. Reading the final opinion Ext. PW3/B of Dr. Ashu Gupta, on MLC of prosecutrix Ext. PW3/A together with MLC of Param Hans Ext. PW5/A in the light of medical and serological evidence detailed herein 13 of 34 14 FIR No. 315/2009 PS Aman Vihar above it clearly rules out any recent sexual activity. Accordingly, it stands establiehd on the record that no recent sexual activity has taken place in the instant case.
26. It is also to be noticed the opinion expressed by Modi in Medical jurisprudence and toxicology (Twenty First Edition) at Page 369 which inter alia reads as "Rape, is crime and not a medical condition. Rape is not a diagnosis to be made by the medical officer. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion and not a medical one".
27. Now let the testimonies of PW1 Prosecutrix and her mother PW2 Smt. Amal Devi be perused and analysed.
PW1 Prosecutrix in her testimony has deposed that when was was student of IInd Class and was going to be promoted to IIIrd Class , she was going to school at about 7.00 AM and when she had completed some distance from her house, on the way one aunti picked up her (prosecutrix) and took her (prosecutrix) to her (aunti) house. One uncle, who was present 14 of 34 15 FIR No. 315/2009 PS Aman Vihar in the above said house, the said aunti told to that uncle to put off her (prosecutrix) underwear. She (prosecutrix) was weeping at that time. That uncle put off her (prosecutrix) underwear and she (prosecutrix) lost conscious while weeping but still felt that something is being inserted in her vagina i.e the place of urination. She felt pain and got up and she (prosecutrix) saw that uncle was putting on his gamchha. She cannot precisely say at this stage, as to what was put "in her vagina". She has further deposed that she told all the facts to her mother and she had also made her statement before the Magistrate. She has identified both the accused persons and proved her statement made to the Ld. Magistrate Ext. PW1/A signed by her at PointA. In her statement u/s 164 Cr.P.C recorded on 23.09.2009 'On oath', before the Magistrate Ext. PW1/A, the prosecutrix (PW1) has deposed that, she on Friday morning was going to school then one aunti whose daughter's name is Anjali caught her and forcibly took to her (aunti) house, then her (aunti) husband took her (prosecutrix) in a room, where it was dark. Then aunti told her husband to remove her (prosecutrix) underwear then uncle removed her (prosecutrix) underwear. She (prosecutrix) started weeping and in the process of weeping she became 15 of 34 16 FIR No. 315/2009 PS Aman Vihar unconscious. When she (prosecutrix) regained her consciousness she (prosecutrix) felt pain in her part of urination and the uncle was wearing his underwear. She felt as if some thick wood like thing has been rotated in her place of urination.
During her crossexamination PW1 has deposed that she does not know whether any quarrel had taken place between her brother and daughter of accused Param Hans. She has further deposed that she does not know whether any FIR No. 314/2009 was registered or not. She has denied the suggestion that the accused persons have been falsely implicated at the instance of her parents to take revenge from the accused persons.
PW1 (prosecutrix) in her examinationinchief has deposed that she deposed all the facts to her mother, (PW2 Smt. Amal Devi).
PW2 Smt. Amal Devi in her examinationinchief has deposed that on 18.09.2009 her daughter (prosecutrix) was studying in IInd Class and she had left the house for school at about 7.00 AM. After about 10 minutes she returned to house and told to her (PW2) that accused Anita picked up her (prosecutrix) and took her (prosecutrix) to her (Anita) house and told 16 of 34 17 FIR No. 315/2009 PS Aman Vihar other accused Param Hans to put off her (prosecutrix) undergarments and commit rape on her (prosecutrix). She has further deposed that when she (PW2) saw her daughter, she was crying and told her (PW2) she (prosecutrix) was having pain on her (prosecutrix) private part. She has further deposed that on this aspect she (PW2) went to the house of the accused persons and asked accused Anita, wife of the accused Param Hans as to why they did so with her (PW2) daughter. Accused Anita told her (PW2) that they (accused persons) took the revenge of some quarrel between the children of the locality. She has further deposed that thereafter, she (PW2) went to the Police Station on 19.09.2009 and made her statement Ext. PW2/A bearing her thumb impression at PointA. In her statement Ext. PW2/B made to the police by PW2 Smt. Amal Devi, on which the FIR was registered she has stated that she alongwith her family lives at the above given address for about 7 years and she remains at her home only. on 18.09.2009 at about 7.00 AM in the morning her daughter (prosecutrix) was going to school but after about 10 minutes her daughter returned to her house weeping. She asked her daughter as to what has happened, her daughter told her that Anita aunti had taken her to her (Anita) house where her (Anita) husband made her (prosecutrix) lie 17 of 34 18 FIR No. 315/2009 PS Aman Vihar down on a cot and her (prosecutrix) underwear was removed and wrong deed (galat kam) was done on her (prosecutrix) and thereafter, he (husband of Anita) left her. It was further stated by complainant that then she went to their (Anita and her husband) house to inquire but there Anita started quarreling with her, then she (complainant) returned to her house. Then in the evening also she (complainant) went to their (Anita and her husband) house and inquired on which Param Hans said that he had been told by his wife (Anita) that yesterday Umesh son of Amal Devi (complainant) had done wrong deed (galat kam) with their daughter Anjali so he (Param Hans) had taken revenge of that. On hearing this she (complainant) returned to her house but the people of gali/mohalla told her (complainant) to lodge a complaint with the police and on that day (18.09.2009), she (complainant) remained at her house but has come today to lodge the report.
During her crossexamination PW2 Smt. Amal Devi has denied the suggestions that there was a dispute teasing between the daughter of accused Param Hans and with her son or that a case was registered vide FIR No. 314/2009. She has deposed that her statement was recorded in Police Station Aman Vihar. She has deposed that she (PW2) had approached one organization to help in the case but she does not know its name nor knew if 18 of 34 19 FIR No. 315/2009 PS Aman Vihar they had made any efforts in this regard. She has denied the suggestion that the accused has been falsely implicated or that she was deposing falsely.
The careful perusal of the testimony of PW1 Prosecutrix clearly indicates that she was picked up by accused Smt. Anita when PW1 Prosecutrix was on her way to school and was taken to her (accused Smt. Anita) house and had told her husband (accused Param Hans) to put off her (prosecutrix) underwear which he did.
As far as this part of testimony of PW1 Prosecutrix is concerned inspires confidence and also gets corroborated from her statement u/s 164 Cr.P.C Ext. PW1/A as well as by the testimony of PW2 Smt. Amal Devi to whom PW1 Prosecutrix had disclosed the facts relating to the crime shortly after the incident, being relevant u/s 8 of Indian Evidence Act, 1872.
There is nothing in the crossexamination of PW1 Prosecutrix so as to impeach her creditworthiness. Her testimony is natural, inspires confidence and reliable.
19 of 34 20 FIR No. 315/2009 PS Aman Vihar Section 34 IPC provides for acts done by several persons in furtherance of common intention.
It reads as under.
34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
It is well settled that an act of meeting of minds has to be inferred from the circumstances of the case. (Ref: Virender Singh Vs. State of Delhi 2011 I AD (Delhi) 242).
From the said testimony of PW1 Prosecutrix it stands established on the record that accused Anita in furtherance of common intention with coaccused Param Hans her husband (Param Hans) kidnapped the prosecutrix a minor girl, aged 8 years from her lawful guardianship without the consent of her guardian while she was going to the school knowing it be likely that she will be forced to illicit intercourse when took her (prosecutrix) to her (accused Anita) house and told her husband (accused Param Hans) to put off her (prosecutrix) underwear, which he did.
20 of 34 21 FIR No. 315/2009 PS Aman Vihar Had the accused persons were not acting in furtherance of their common intention; then when accused Anita took the prosecutrix to her (accused Anita) house and asked her husband, accused Param Hans to remove her (prosecutrix) underwear, then accused Param Hans must have questioned his wife Anita, as to why prosecutrix has been brought and why he to remove her (prosecutrix) underwear. But he (accused Param Hans) did not question her (accused Anita, his wife) but proceeded to remove the underwear of prosecutrix.
In the circumstances, I am of the considered opinion that prosecution has thus categorically proved beyond shadows of all reasonable doubt that prosecutrix (PW1), a minor girl of 8 years was kidnapped by accused Anita in furtherance of common intention with coaccused Param Hans from her lawful guardianship without consent of her guardian, knowing, that she will be forced to illicit intercourse by her husband accused Param Hans.
I, accordingly hold accused Anita and accused Param Hans guilty for the offences punishable u/s 363/366/34 IPC and convict them thereunder.
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28. As far as the remaining part of the testimony of PW1 (Prosecutrix) when uncle (accused Param Hans) put off her underwear she lost her conscious while weeping but still she felt that something is being inserted in her vagina i.e the place of urination she felt pain and got up and saw that uncle was putting on his gamchha. She cannot precisely say at this stage, as to what was put in her vagina is concerned inspire confidence and also gets corroborated from her statement u/s 164 Cr.P.C Ext. PW1/A as well as by the statement Ext. PW2/A and testimony of PW2 Smt. Amal Devi to whom PW1 Prosecutrix had disclosed the facts relating to the crime shortly after the incident, being relevant u/s 8 of Indian Evidence Act, 1872.
Analysising the said part of the testimony of PW1 Prosecutrix in the light of the medical and serological evidence as well as the MLC of the prosecutrix Ext. PW3/A and MLC of accused Param Hans Ext. PW5/A as discussed hereinabove any recent sexual activity either by way of complete penetration of penis or partial penetration within the labia majora or the vulva or pudenda is completely ruled out.
22 of 34 23 FIR No. 315/2009 PS Aman Vihar However, the act of accused Param Hans of putting off the underwear of PW1 (Prosecutrix) and of use of criminal force against her for inserting something in her vagina was committed with intent to outrage her modesty, therefore, is covered within the mischief of Section 354 IPC.
The provisions of Section 354 IPC makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are :
(a)That the assault must be on a woman.
(b)That the accused must have used criminal force on her.
(c)That the criminal force must have been used on the woman intending thereby to outrage her modesty.
What constitutes an outrage to female modesty is nowhere defined in IPC. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not alway decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage of the modesty of a woman; and knowledge, that 23 of 34 24 FIR No. 315/2009 PS Aman Vihar modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. (Ref: Ram Kirpal Vs. State of MP AIR 2007 SC (Supp) 49).
In state of Punjab Vs. Major Singh (AIR 1967 SC 63) a question arose whether a female child of seven and a half months could be said to be possessed of 'modesty' which could be outraged. In answering the above question the majority view of the Hon'ble Supreme Court was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC.
In view of above, I am of the considered opinion that prosecution has proved beyond reasonable doubt that accused Param Hans used criminal force upon the prosecutrix (PW1) a minor girl of 8 years by putting off her underwear and of inserting something in her vagina with intend to outrage her modesty. I accordingly, hold accused Param Hans guilty for the offence u/s 354 IPC and convict him thereunder.
24 of 34 25 FIR No. 315/2009 PS Aman Vihar However, prosecution has failed to prove its case for the offence u/s 376 (2) (f) IPC against accused Param Hans, therefore, accused Param Hans is acquitted for the offence u/s 376 (2) (f) IPC.
29. While analysing the testimonies of PW1 Prosecutrix and her mother PW2 Smt. Amal Devi, as discussed hereinabove inspite of incisive crossexamination nothing has come out in the statement of PW1 Prosecutrix and PW2 Smt. Amal Devi which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion put by the defence to PW1 Prosecutrix regarding the quarrel having taken place between the brother of the prosecutrix and daughter of accused Param Hans and the suggestion put to PW2 Smt. Amal Devi regarding there was a dispute teasing between the daughter of accused and her (PW2) son and the suggestions regarding FIR 314/2009 to PW1 Prosecutrix and PW2 Smt. Amal Devi, have been put which have been denied by PW1 Prosecutrix and PW2 Smt. Amal Devi, but the same have not at all being made probable much established by any evidence.
30. Accused Anita has also been charged for the offence u/s 114 IPC r/w Section 376 (2) (f) IPC to the effect that on 18.09.2009 at about 7.00 AM 25 of 34 26 FIR No. 315/2009 PS Aman Vihar she abetted accused Param Hans to commit rape with the prosecutrix and at that time she was also present there when the offence of rape was being committed in pursuance of her abetment.
Section 114 IPC provides for Abettor present when offence is committed.
It reads as under:
114. Abettor present when offence is committed. Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.
Section 116 IPC provides for abetment of offence punishable with imprisonment - if offence be not committed.
It reads as under:
116. Abetment of offence punishable with imprisonment - if offence be not committed. Whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of any description 26 of 34 27 FIR No. 315/2009 PS Aman Vihar provided for that offence for a term which may extend to onefourth part of the longest term provided for that offence; or with such fine as is provided for that offence, or with both;
If abettor or person abetted be a public servant whose duty it is to be prevent offence. and if the abettor or the person abetted is a public servant, whose duty it is to be prevent offence the commission of such offence, the abettor shall be punished with imprisonment of any description provided for that offence, for a term which may extend to onehalf of the longest term provided for that offence, or with such fine as is provided for the offence, or with both.
Reading of Section 114 IPC clearly indicates that when abettor is present, when offence in consequence of the abetment is committed he shall be deemed to have committed such offence. In the present case since the prosecution has failed to prove the offence u/s 376 (2) (f) IPC against accused Param Hans as discussed hereinabove and the offence u/s 376 (2) (f) IPC has not been committed as such accused Anita is not hold guilty for the offence u/s 114 r/w Section 376 (2) (f) IPC. Accordingly, accused Anita is acquitted for the offence u/s 114 r/w Section 376 (2) (f) IPC. However, since accused Anita had abetted accused Param Hans to commit the offence u/s 376 (2) (f) IPC upon the prosecutrix though it was not committed in consequence of the abetment, as discussed herein above, yet the act of accused Anita, as an abettor shall be covered within the mischief of Section 27 of 34 28 FIR No. 315/2009 PS Aman Vihar 116 r/w Section 376 (2) (f) IPC. Explanation 2 appended to Section 108 IPC provides, to constitute the offence of abetment, it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. I, therefore, hold accused Anita guilty for the offence u/s 116 r/w Section 376 (2) (f) IPC and convict her thereunder.
31. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Param Hans and Smt. Anita in the commission of the offences u/s 363/366/34 IPC and of accused Param Hans for the offence u/s 354 IPC and that of accused Smt. Anita for the offence u/s 116 r/w Section 376 (2) (f) IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Param Hans and Smt. Anita beyond reasonable doubt and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Param Hans and Smt. Anita guilty for the offences punishable u/s 363/366/34 IPC, accused Param Hans guilty for the offence u/s 354 IPC and accused Smt. Anita guilty for the offence punishable u/s 116 r/w Section 376 (2) (f) and convict them thereunder. However, accused Param Hans is 28 of 34 29 FIR No. 315/2009 PS Aman Vihar acquitted for the offence punishable u/s 376 (2) (f) IPC and accused Smt. Anita is acquitted for the offence punishable u/s 114 r/w Section 376 (2) (f) IPC.
Announced in the open Court today on 24th Day of February, 2012 (MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
29 of 34 30 FIR No. 315/2009 PS Aman Vihar IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI Sessions Case No. : 1/10 Unique ID No. : 02404R0332642009 State Vs. 1). Param Hans S/o Sh. Nagu Yadav
2). Smt. Anita W/o Param Hans Both R/o H.No. D205, Gauri Shanker Enclave, Prem Nagar, III, Delhi.
FIR No. : 315/2009 Police Station : Aman Vihar Under Sections : U/S 363/376 (2) (f)/109 IPC ORDER ON SENTENCE :
Vide my separate detailed judgment dated 24.02.2012 accused Param Hans and accused Smt. Anita have been convicted for the offences punishable u/s 363/366/34 IPC, accused Param Hans has further been
30 of 34 31 FIR No. 315/2009 PS Aman Vihar convicted for the offence punishable u/s 354 IPC and accused Smt. Anita has further been convicted for the offence punishable u/s 116 r/w Section 376 (2)
(f) IPC.
Sh. Deepak Sharma, Ld. Amicus Curie for convict Param Hans and convict Smt. Anita submitted that both the convicts are husband and wife. Convict Param Hans is aged about 38 years and was doing the carpentry job and was the only bread earner in the family and is not the previous convict and is running in JC since 23.09.2009. He further submitted that convict Smt. Anita is aged about 32 years and is running in JC since 15.07.2010 and is illiterate and is a household lady and is not a previous convict. He further submitted that they are having clean antecedents. They are having three children age 5 years, 8 years and 10 years who are also in jail with the convict persons as there is none to lookafter them, the whole family has been shattered, the future of their children has been darkened and prayed for leniency.
On the other hand, Ld. Addl. PP for state submitted that convicts be dealt with strictly and severest punishment be given to deter them from committing the same offence in future and no leniency be shown to them.
31 of 34 32 FIR No. 315/2009 PS Aman Vihar He further submitted that they have committed very serious and grave offence of kidnapping of a minor girl aged about 8 years and of outraging her modesty.
I have heard the Ld. APP for the state and the Ld. Counsel for the convicts Param Hans and Smt. Anita at length on the quantum of sentence. The prosecutrix a minor girl of 8 years was kidnapped by convict Smt. Anita in furtherance of their common intention with coconvict Param Hans her husband, while she was going to school; knowing that she will be forced to illicit intercourse by her husband and convict Param Hans used criminal force against her by putting off her underwear and inserting something in her vagina with intent to outrage her modesty, Having regard to all the facts and circumstances of the case and all the facts and circumstances of the convicts' family and also that all the family members of the convicts including their three children are in jail with them and that they are not the previous convicts and have clean antecedents, I am of the considered opinion that the ends of justice can be met by sentencing convicts Param Hans and Smt. Anita to undergo Rigorous Imprisonment for a period of one and a half years each and to pay a fine of 32 of 34 33 FIR No. 315/2009 PS Aman Vihar Rs. 500/ each in default thereof to further undergo Rigorous Imprisonment for a period of one month each u/s 363/34 IPC. Convicts Param Hans and Smt. Anita are further sentenced to undergo Rigorous Imprisonment for a period of one and a half years each and to pay a fine of Rs. 500/ each in default thereof to further undergo Rigorous Imprisonment for a period of one month each u/s 366/34 IPC. Convict Param Hans is further sentenced to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs. 500/ in default thereof to further undergo Rigorous Imprisonment for a period of one month u/s 354 IPC. Convict Smt. Anita is further sentenced to undergo Rigorous Imprisonment for a period of one and a half years and to pay a fine of Rs. 500/ in default thereof to further undergo Rigorous Imprisonment for a period of one month u/s 116 r/w Section 376 (2) (f) IPC. All the substantive sentences shall run concurrently. The period already undergone by both the convicts during the inquiry/investigation/trial of this case shall be set off under section 428 Cr.P.C.
A copy of judgment as well as that of order on sentence be given to both the convicts free of costs.
Announced in the open Court today on 25th of February, 2012 33 of 34 34 FIR No. 315/2009 PS Aman Vihar (MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
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