Delhi District Court
State vs Vinod Singh S/O Ramesh Singh, on 20 August, 2009
Page 1 S/V Vinod Singh
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE -VI
cum ADDL.SESSIONS JUDGE (EAST), KARKARDOOMA
COURTS, DELHI.
SC No.4/2007
FIR No.297/2006
Police Station New Ashok Nagar
Under Section 363/376 IPC
State Versus Vinod Singh S/o Ramesh Singh,
Resident of D143,
New Ashok Nagar, Delhi.
JUDGMENT
Accused Vinod Singh (in judicial custody) has been sent to stand trial by the police of PS New Ashok Nagar, for the offences punishable under Section 363 and 376 IPC. 2 Briefly stating, the facts of the prosecution case are that on 11.7.2006, Suresh Chand (PW2), (hereinafter shall be referred as complainant) came to the police station and told to the duty officer that he left his daughter, Aarti (prosecutrix) aged Page 2 S/V Vinod Singh about 15 years, student of Class X in Evergreen Public School, in her school at 7.45 AM on 8.7.2006. When he reached the school at about 12.30 PM to take her daughter back, but could not find her in the school. He lodged missing report of her daughter with ASI Hanif Khan (PW10) vide DD No.16A, Ex.PW2/A on 8.7.2006 and made efforts to search his daughter, but in vain. The complainant further stated that he had suspicion that his daughter had been induced and taken away by Vinod son of Ramesh Singh. On the complaint of the complainant, FIR, Ex.PW2/B under Section 363 IPC was registered in the police station by the duty officer, HC Munim Dutt (PW9).
3 The investigation was handed over to SI Rajesh Dangwal (PW14). The SI flashed WT message in all India. The SI also got issued the hue and cry notice and got the publicity done through CBI as well as publication in the newspaper. The SI took into possession the photocopy of the date of birth certificate, Page 3 S/V Vinod Singh Ex.PW14/A of the daughter of the complainant vide memo, Ex.PW2/C. Efforts were made to trace out the prosecutrix as well as the accused, but could not be found.
4 On 31.10.2006, the complainant came to the police station and informed to the duty officer, HC Satya Prakash (PW6) vide DD No.11A, Ex.PW2/D (also exhibited as Ex.PW6/A) that accused Vinod, who had taken away his daughter, had been apprehended and that both the prosecutrix and the accused were at his house. On this information, SI Rajesh Dangwal (PW14) reached the house of the complainant at E234, New Ashok Nagar, Delhi, where accused Vinod Singh and the prosecutrix were found present. The complainant identified his daughter Aarti before the SI, who was kidnapped by accused Vinod. The SI recovered the prosecutrix vide memo, Ex.PW2/E. The accused was interrogated in the presence of W/ASI Nageshwari (PW4) in which the accused admitted his guilt. The SI arrested the accused Page 4 S/V Vinod Singh vide memo, Ex.PW2/G and his personal search was conducted vide memo, Ex.PW2/H. The accused made disclosure statement, Ex.PW2/F. 5 Accused Vinod pointed out the place, i.e., Evergreen Public School, Vasundhara Enclave, Delhi vide pointing out memo, Ex.PW2/J and then, the SI inspected the spot.
6 Accused Vinod was medically examined by Dr.Rajni Lohia (PW5) in LBS hospital vide MLC, Ex.PW5/A. The prosecutrix was also sent to the hospital for her medical examination. She was medically examined by Dr.Renu Gupta vide MLC, Ex.PW3/A, and the said MLC was proved by Dr.Rakhi (PW3) as substitute doctor. After the medical examination, Dr.Renu Gupta handed over the vaginal smear, vaginal swab and pubic hair in sealed condition of the prosecutrix to W/ASI Nageshwari (PW4), who then handed over the same to SI Rajesh Page 5 S/V Vinod Singh Dangwal (PW14) and the same was seized by the SI vide memo, Ex.PW4/A. 7 The semen, pubic hair, blood and underwear, Ex.P1 of the accused in sealed condition were also handed over by Dr.Rajni Lohia (PW5) to Const.Pawan Kumar (PW7), who then handed over the same to SI Rajesh Dangwal (PW14) and the same was seized by the SI vide memo, Ex.PW7/A. 8 The accused was sent to J/C remand by the learned Metropolitan Magistrate. The SI moved application, Ex.PW14/C for recording the statement under Section 164 Cr.PC of the prosecutrix, which was subsequently assigned to Shri Sameer Bajpai, the then learned Metropolitan Magistrate (PW13) vide Ex.PW13/A. PW13 recorded the statement under Section 164 Cr.PC, Ex.PW1/A of the prosecutrix and gave certificate at points A to A on Ex.PW1/A regarding correctness and truthfulness of the statement.
Page 6 S/V Vinod Singh 9 The investigating officer of the case, SI Rajesh
Dangwal (PW14) moved application, Ex.PW14/D for obtaining the carbon copy of the statement of the prosecutrix which was allowed by Shri Sameer Bajpai (PW13) vide Ex.PW13/B. The prosecutrix was handed over to the complainant vide order, Ex.PW13/C of the learned Metropolitan Magistrate. On the statement under Section 164 Cr.PC of the prosecutrix, Section 376 IPC was added in the case against accused Vinod Singh. 10 The SI got deposited the exhibits of the case with HC Ranbir Singh (PW11) vide entries, Ex.PW11/A. Const. Narender (PW12) took the exhibits of the case from the MHC(M) on 13.12.2006 and deposited the same in FSL, Rohini vide RC No.249/21/06. The results from FSL, Rohini were obtained by the investigating officer and the same are Ex.PW14/D and Ex.PW14/E. Page 7 S/V Vinod Singh 11 The other accused, namely, Tara Devi and Raju Singh were searched, but no clue was received against them. 12 After completion of the investigation, the challan was put up in the court of the Metropolitan Magistrate, where the accused was supplied with the copies of the chargesheet and the documents of the prosecution and then, the case was committed to the Sessions Court for the trial of the accused. 13 The charges were framed against the accused on 26.3.2007. The accused was charged for the offences punishable under Section 363/366 and 376 IPC which reads as under :
"That on 08.07.06 at about 12.30 PM, from the gate of Ever Green Public School, Vasundhara Enclave, Delhi, within the jurisdiction of PS New Ashok Nagar, you along with Tara Devi and Raju Singh (since not arrested), in furtherance of your common intention, kidnapped/abducted Arti Rathore, a minor girl of 15 years from the lawful guardianship of her father, with intent that she may be compelled to marry Page 8 S/V Vinod Singh with you against her will or knowing it to be likely that she may be seduced to illicit intercourse with you and took her to Chandigarh and Pune and thereby you committed an offence punishable under sections 363/366 IPC and within my cognizance.
Secondly, at Kamini Hotel in Pune, and thereafter in a village, you had sexual intercourse with the abovesaid minor girl Arti Rathore against her will and without her consent up to 30.10.2006 and thereby committed an offence punishable under sections 376 IPC and within my cognizance."
14 The accused pleaded not guilty to the charges framed against him and claimed trial.
15 The prosecution has examined fourteen witnesses in support of its case. Out of those witnesses, PW1 Kumari Arti Rathore is the prosecutrix. PW2 Suresh Chand Rathore is the father of the prosecutrix. PW3 Dr. Rakhi proved the MLC of the prosecutrix which was prepared by Dr.Renu Gupta. PW5 Dr. Page 9 S/V Vinod Singh Rajni Lohia examined the accused. PW4 W/ASI Nageshwari, and PW7 Const.Pawan Kumar joined the investigation conducted by PW14 SI Rajesh Dangwal. PW6 HC Satya Prakash, PW9 HC Munim Dutt and PW10 ASI Hanif Khan were the duty officers in the police station at the relevant time. PW13 Shri Sameer Bajpai was the Ld. MM at the relevant time and recorded statement of the prosecutrix u/s 164 Cr.PC. PW11 HC Ranbir Singh was the MHC(M) in the police station. PW12 Const.Narender deposited the exhibits of the case in FSL, Rohini. PW8 Shri A.K. Bhaskar, ICC/Investigator cum Computer in Govt.District Hospital Campus, Noida produced the date of birth certificate of the prosecutrix. 16 The statement of the accused has been recorded under Section 313 Cr.PC. The accused has denied the entire case of the prosecution and has taken the defence that he is innocent. He has stated that he was tenant of the complainant The prosecutrix was in love with him due to which the Page 10 S/V Vinod Singh complainant was inimical with him and falsely implicated him in this case. He did not take the prosecutrix with him to any place. The complainant confined him in his factory at Noida from 16.10.2006 to 31.10.2006, gave him merciless beatings which resulted into injuries on his person. After his injuries healed, the complainant called the police and got him arrested. The accused has not examined any witness in support of his defence. 17 I have heard Shri Sanjay Kumar, learned APP for the State and Shri S.K. Jain, learned amicus curiae for the accused. I have carefully gone through their submissions and the record of the case.
18 The learned APP has submitted that from the statements of the prosecutrix as well as the complainant, the prosecution has established that the accused kidnapped a minor girl from the lawful custody of her parents and then, committed forcibly rape upon her.
Page 11 S/V Vinod Singh 19 On the other hand, the learned amicus curiae has
disputed the age of the prosecutrix and claimed that she was major at the time of the alleged incident. The prosecutrix was a consenting party to indulge in sexual intercourse with accused Manoj.
20 On the basis of submissions made by either side, following questions arises for consideration: (I) Whether the prosecutrix was major or minor at the time of alleged incident?
(II) Whether the accused kidnapped/abducted the prosecutrix from the lawful guardianship of her parents?
(III) Whether the rape as alleged was committed by the accused upon the prosecutrix?
(IV) Conclusion. Page 12 S/V Vinod Singh QUESTION (I) 21 The allegations against the accused can be judged
only after determination of the age of the prosecutrix. Her age is very material to find out the truth in the charges of kidnapping and indulging in sexual intercourse without her consent. It has been held by the Hon'ble Supreme Court in a case, titled as Rama Murti Versus State of Haryana (reported as AIR 1970 SC 1029), that in case under Section 363/376 IPC, the age of the prosecutrix is always of importance. If, it is found that the prosecutrix was above 18 years of age at the time of alleged kidnapping or was 16 years or above then her consent becomes material to determine as to whether the accused committed the offences punishable under Section 363/376 IPC respectively. The prosecution has tried to establish the age of the girl by oral and documentary evidence.
Page 13 S/V Vinod Singh 22 The prosecution has alleged that the prosecutrix
was a minor girl of 15 years of age at the time of alleged incident of kidnapping and rape. Whereas, it is claimed by the accused that the prosecutrix was major at the time of alleged incident. 23 The case of the prosecution is that the accused kidnapped the prosecutrix on 8.7.2006 and at that time she was minor girl of 15 years of age. The investigating officer SI Rajesh Dangwal (PW14) during his investigation, collected the copy of birth certificate of the prosecutrix Ex.PW14/A, issued by Health Department, UP Government, Noida in which the date of birth of the prosecutrix is shown as 15.4.1991. The prosecutrix was recovered on 31.10.2006 and on the same day she was medically examined by Dr. Rakhi (PW3) vide MLC Ex.PW3/A in which she disclosed her age as 15 years. Thereafter, she was produced before the Learned Metropolitan Magistrate Sh. Sameer Bajpai (PW13) for making her statement u/s 164 Cr.PC. Before the Page 14 S/V Vinod Singh Learned Metropolitan Magistrate, in her statement u/s 164 Cr.PC, the prosecutrix also disclosed her age as 15 years. The prosecutrix during her statement in the court, recorded after about one year of the incident, told her age as 16 years. It is pertinent to note that during crossexamination of the prosecutrix, she categorically stated that her date of birth as per school record is 14.4.1991. The prosecutrix denied the suggestion put by the defence counsel that her date of birth is 15.4.1989. 24 The complainant, i.e. father of the prosecutrix Suresh Chand Rathore (PW2) has also made statement while deposing in the court that her daughter was aged about 14/15 years at the time of incident. The fact regarding the age of the prosecutrix as 15.4.1991 has also been confirmed by Sh. K.K. Bhaskar (PW8) ICC/InvestigatorcumComputer of Govt. District Hospital Campus, Sector39, Noida who produced the date of birth certificate Ex.PW8/A. In that certificate, the date of birth of Page 15 S/V Vinod Singh the prosecutrix along with her parentage has been shown at serial no.1239.
25 It is the consistent stand taken by the prosecution that the age of the prosecutrix was 15 years at the time of alleged incident. The fact of age of the prosecutrix as 15 years, has not denied by the accused in his statement while answering the question No.1 of his statement, recorded under Section 313 Cr.PC. A specific question was put to the accused that the age of the prosecutrix was 1415 years as on 8.7.2006. The accused neither denied the age of the prosecutrix as 1415 years nor claimed that she was major at that time.
26 The prosecution has placed on the file, the record of the birth of the prosecutrix and according to it, her date of birth is 15.4.1991. The prosecutrix herself and her father have deposed about the date of birth of the prosecutrix. The Hon'ble Supreme Court has held in the case Vishnu Vs. State of Maharashtra, Page 16 S/V Vinod Singh that for determination of the age of prosecutrix, the statement of parents is very material. If, the statement is corroborated by unimpeachable document i.e., birth register of the MCD then, date of birth recorded in school certificate, showing prosecutrix above 16 years of age, is belied by evidence of parents and the said unimpeachable document. In that case, the age of the girl in the school record, was mentioned above 16 years whereas, the ocular statements of the parents and the MCD record showed that she was below 16 years of age. Similarly, in the case titled, State of Chhatisgarh Versus Lekh Ram (reported in AIR 2006 SC 1746), the school register was showing the age of the prosecutrix was below 16 years. The parents of the prosecutrix also made statement to confirm her age below 16 years. The Hon'ble Apex Court has held the entry in school register though, not conclusive, it has evidentiary value. The statement of the father of the prosecutrix was also relied upon. In Page 17 S/V Vinod Singh the present case, the oral statements of the prosecutrix and her father coupled with the record of the Govt. District Hospital have conclusively established that the date of birth of the prosecutrix is 15.4.1991.
27 The alleged incident of kidnapping is of 8.7.2006 and the date of birth of the prosecutrix has been proved to be 15.4.1991, from her consistent statement made before the Ld. Metropolitan Magistrate, before this court, as per MLC Ex.PW3/A, statement of his father (PW2), birth certificate Ex.PW8/A and Ex.PW14/A. Thus, the prosecutrix was aged about 15 years 3 months at the time of her alleged kidnapping by the accused. Consequently, I am of the opinion that the prosecutrix was a minor girl of less than 16 years at the time of alleged incident. QUESTION (II) 28 The accused has been charged for the offences, punishable under Section 363/366 IPC for kidnapping the Page 18 S/V Vinod Singh prosecutrix from the lawful guardianship and kidnapping/ abducting for inducing the prosecutrix to compel her for marriage. Section 363 IPC reads as under: "363. Punishment for kidnapping. Whoever kidnaps any person from (India) or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
29 The definition of Section 366 IPC is reproduced as under: "366. Kidnappinig, abducting or inducing woman to compel her marriage, etc.Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of Page 19 S/V Vinod Singh either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid]."
30 The most important ingredient of Sections 363 and 366 IPC is kidnapping of a minor from the lawful guardianship of parents and for inducing her to marry. In the present case, it has been alleged that the prosecutrix namely Arti Rathore was kidnapped from the lawful guardianship of her parents. The words "kidnapping from lawful guardianship" are defined in Section 361 IPC, which reads as under: "361.Kidnapping from lawful guardianship.Whoever takes or entices any minor under [sixteen] Page 20 S/V Vinod Singh years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
31 The perusal of Section 361 IPC itself shows that for the purpose of kidnapping a minor girl, she must be below the age of 18 years, which attract the charge under Section 363/366 IPC.
32 In the present case, the age of the prosecutrix has already been held to be below 16 years, while dealing question no.1 in the earlier part of the judgment.
33 The prosecutrix while deposing in the court on oath as PW1 has stated that on 8.7.2006 she was studying in 10th standard in Evergreen Public School, Vasundhara Enclave. She stated that her father used to take and drop her daily from the Page 21 S/V Vinod Singh school. On the day of incident, her school finished at about 12.15 PM and then she was waiting for her father, near the gate of the school. At about 12.30 PM, one Maruti Van of white colour stopped near her and Tara Devi got down from the said Van. Tara Devi came to the prosecutrix and told her that her father had met with an accident and was admitted in Kailash Hospital. Tara Devi also told her that entire family members of the prosecutrix were in Kailash Hospital. The prosecutrix believed Tara Devi as she was quite nervous at that time. The prosecutrix sat in the Maruti Van in which accused Vinod and one Raju Singh were also sitting. The prosecutrix started crying in the Van, on which Tara Devi wiped her tears with her handkerchief, due to which the prosecutrix became unconscious.
34 The prosecutrix further stated that she regained consciousness at Chandigarh. Thereafter, the prosecutrix was taken to Pune and from there she was taken to a village, where a Page 22 S/V Vinod Singh room was taken on rent. Tara Devi told the prosecutrix that she will have to marry the accused Vinod. The prosecutrix requested Tara Devi that she was not of marriageable age, but in vain. Tara Devi caught hold the hand of the prosecutrix and then accused Vinod put Sindoor in the parting hairs of the prosecutrix. Tara Devi then told the prosecutrix that now she and accused Vinod became husband and wife and that accused Vinod can do anything with the prosecutrix.
35 The prosecutrix made the similar statements before the investigating officer in her statement u/s 161 Cr.PC and in her statement u/s 164 Cr.PC before the Learned Metropolitan Magistrate. The prosecutrix was crossexamined at length, but no dent has been put by the defence on her testimony to the effect that she was not kidnapped by the accused and she accompanied the accused voluntarily.
Page 23 S/V Vinod Singh 36 The complainant Suresh Chand Rathore (PW2)
has stated that he used to drop and pick his daughter i.e. the prosecutrix to her school. He stated that on 8.7.2006, when he had gone to take his daughter after closing of school, but he did not find the prosecutrix in the school. He came back to his house and found that the prosecutrix had not come back. He made search of the prosecutrix and then lodged the missing report Ex.PW2/A. The fact of lodging the missing report by the complainant has been confirmed by ASI Hanif Khan (PW10) who stated that on 8.7.2006 at about 5.30 PM, the complainant came to the police station and lodged DD No.16 A, Ex.PW2/A regarding missing of his daughter i.e. prosecutrix. 37 The accused has taken the defence in his statement u/s 313 Cr.PC that he had not kidnapped the prosecutrix, rather the complainant confined the accused in his factory at Noida from 16.10.2006 to 31.10.2006 and gave him Page 24 S/V Vinod Singh merciless beatings which resulted injuries on his person. When the injuries on the person of accused got healed, then the complainant called the police and got him arrested in the present case.
38 I do not find any merit in the defence taken by the accused. The prosecutrix has specifically stated in her examination in chief that when she was brought by accused Vinod and Tara Devi at ISBT, Anand Vihar on 31.10.2006, then she saw her father along with her uncle, standing at ISBT Anand Vihar. She gave signal to them, on which Tara Devi disappeared and accused Vinod was caught hold by the complainant. 39 The complainant (PW2) has also stated that on 31.10.2006 at about 5 AM, he along with his brother was standing at ISBT Anand Vihar and at about 7.30/8.00 AM, he saw the prosecutrix along with the accused Vinod and Tara Devi. The prosecutrix called him and he immediately reached to her.
Page 25 S/V Vinod Singh Meantime, Tara Devi ran away from there, but accused Vinod was apprehended by the complainant and his brother. Then the complainant informed the police vide DD No.11A, Ex.PW2/D. 40 HC Satya Prakash (PW6) has confirmed the statement of the complainant by stating that at about 9 AM of 31.10.2006, the complainant came to him in the police station and gave the information regarding recovery of his daughter and apprehension of accused Vinod. The duty officer reduced the information into writing vide DD No.11A and then investigating officer of the case SI Rajesh Dangwal (PW14) along with other police officials reached at the house of the complainant and arrested the accused and recorded his disclosure statement. 41 The fact of causing injuries on the person of accused by the complainant has also been falsified by the MLC Ex.PW5/A. The perusal of MLC of the accused Ex.PW5/A shows that there was no fresh external injury over the body of the Page 26 S/V Vinod Singh accused. The defence taken by the accused that he was confined by the complainant for about 15 days in his factory and given beatings to him which resulted into injuries on his person, is vague, as no fresh injury could be healed within the short period of 15 days which could not be detected by a doctor while examining the patient.
42 I have already found that accused kidnapped a minor girl and committed sexual intercourse with her. She was less than 16 years of age at the time of the commission of the offence. The circumstances have confirmed that the accused had kidnapped the girl with the intention or that she would be compelled for illicit physical relations. 43 From the statement made by the prosecutrix (PW1), the complainant (PW2) and the investigating officer of the case, I am of the considered opinion that the accused Vinod along with his accomplice kidnapped the prosecutrix from the Page 27 S/V Vinod Singh lawful guardianship of her parents with an intent to compel her to marry the accused Vinod.
44 Consequently, the accused Vinod is liable to be convicted for the offences punishable under Section 363/366 IPC. QUESTION (III) 45 In the case of the offences under Section 376 IPC, the statement of the girl is the most important evidence Her statement alone is sufficient for the prosecution to establish its case. It has been held by the Hon'ble Supreme Court in case of State of Punjab Vs. Gurmit Singh (Reported in AIR 1996 SC 1393) that the testimony of a victim of sexual assault needs no corroboration and conviction can be founded on her testimony alone unless there are compelling reasons. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent, is even more reliable. The evidence of a victim of sexual offence is entitled to great weight, Page 28 S/V Vinod Singh absence of corroboration notwithstanding. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime, but is a victim of another person's lust. Similar views were expressed by the Hon'ble Supreme Court in case titled, State of H. P. Versus Asha Ram (Reported in AIR 2006 SC 381). In another case, titled Aman Kumar and another Versus State of Haryana, (AIR 2004 SC 1497 ), it has been held that it is well settled that a prosecutix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestrian then injured witness. In nut shell, it can be said that now, it is settled law that the statement of the prosecutrix is the key to the success to the case of the prosecution. If, her statement is reliable then, accused can be Page 29 S/V Vinod Singh convicted even without corroboration. The Court may look into other evidence examine the credibility of her testimony. 46 It is correct that a person can be convicted for sexual assault only on the basis of ocular statement of the prosecutrix. However, that statement shall be broadly believable to find out the case of the prosecution that the prosecutrix happen to be minor and she was subjected to forcible sexual assault and was kept by the accused in his custody against her wishes. 47 To prove the incident of rape committed by the accused Vinod upon the prosecutrix, the prosecution has examined the prosecutrix Aarti Rathore (PW1). The prosecutrix has stated that after her kidnapping by the accused Vinod and his accomplice, she was taken to Chandigarh and then in a village at Pune. She further stated that she was kept in a room for about 2½ months and at the instance of Tara Devi, accused Vinod slept with the prosecutrix. Tara Devi put handkerchief on the face of Page 30 S/V Vinod Singh the prosecutrix on which she became unconscious. She regained consciousness in the morning and found that there were no clothes on her body. Prosecutrix has further stated that accused Vinod had committed rape 910 times upon her against her will and without her consent.
48 The fact of committing rape upon the prosecutrix has been confirmed from the MLC Ex.PW3/A. The prosecutrix was examined in LBS Hospital on 31.10.2006 by Dr. Renu Gupta. The girl told the history that she was abducted by the accused and had committed rape upon her. The last intercourse was on around 15 days back. On examination, the doctor found that her hymen was torn and vagina accommodated two fingers. It suggested intercourse. No external injury was seen on genital area. The report of the doctor is Ex. PW3/A. 49 The accused was also medically examined by Dr.Rajni Lohia (PW5) and the doctor found that there was Page 31 S/V Vinod Singh nothing to suggest that the patient could not perform in sexual intercourse.
50 On the basis of the statement of the doctor, it can be said that the prosecutrix had sexual intercourse. The version of the prosecutrix in her statement under Section 164 Cr. PC and in examinationinchief has confirmed that accused had indulged in sexual intercourse with her against her will and without her consent. She has not stated that accused did not commit sexual act upon her.
51 During crossexamination of the prosecutrix, the learned defence counsel has tried to establish that she was the consenting party with the accused in committing sexual intercourse with her. The prosecutrix was allegedly taken to various places by the accused, but at none of these places, she raised any voice or objected to the act of the accused, though the Page 32 S/V Vinod Singh prosecutrix had ample opportunity with her to raise the voice against the bad acts of the accused.
52 The consent of the prosecutrix for such sexual act, is meaningless in this case. It is simply because, she was less than 16 years of age at the relevant time. It has been held by the Hon'ble Supreme Court in the case, titled Vishnu @ Undrya Versus State of Maharashtra (AIR 2005 IV AD (Cr.) SC
401), that if the prosecutrix is below 16 years of age and there is evidence of sexual intercourse then, her consent is immaterial. According to the law of the land, the consent for sexual act becomes important only when the girl is above 16 years of age. In the present case, it has been established that the accused committed rape upon the prosecutrix, who was a minor girl, of the age less than 16 years. Therefore, her consent has become meaningless in the eyes of law as she was below 16 years of age.
Page 33 S/V Vinod Singh 53 The accused has taken the defence that he has
been falsely implicated by the complainant in the case of kidnapping and committing rape upon the prosecutrix, as he was the tenant of the complainant the prosecutrix was in love with him. 54 I am not agreeable to the defence taken by the accused. In the present case also, the prosecutrix and her father, the complainant have stated that the accused was a tenant in their house and was living in a room on the first floor. The accused left the tenanted room about seven months prior to the date of incident in the present case. They have not uttered a single word about any dispute or grudge against the accused. The prosecutrix and the complainant have categorically denied the suggestion put by the learned defence counsel that the prosecutrix was in love with the accused.
55 The rape is a heinous crime. It does not appeal to mind that a respectable person of the society with a view to Page 34 S/V Vinod Singh settle his petty dispute of tenancy, will involve and ruin the life of his own daughter in a case of rape. No person put at stake the life and character of his own daughter by levelling the false allegations of rape upon her. In this regard, the learned Addl. PP has relied upon the judgment in case of Rajendra Datta Zarekar Vs. State of Goa (Reported in 2008 Cri. L.J. 710) in which it was held that rape leaves a permanent scar and has a serious psychological impact on the victim and also her family members and that no one would normally concoct a story of rape just to falsely implicate a person.
56 The accused cannot take benefit of the age of the prosecutrix as near about 16 years, but still indulged in such activities with a girl against her will and without her consent, who was known to him. The prosecution has been able to make out case against the accused even for the offence punishable under section 376 IPC.
Page 35 S/V Vinod Singh CONCLUSION 57 In view of the aforesaid discussion in detail, I
hold that the prosecution has been able to establish the charges against the accused. The accused Vinod Singh is convicted for the offences punishable U/s 363/366/376 IPC.
Announced in the open Court ( P.S. TEJI )
Dated: 17.8.2009 District JudgeVI (East)
cum Addl. Sessions Judge
Karkardooma Courts : Delhi
Page 36 S/V Vinod Singh
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE -VI cum ADDL.SESSIONS JUDGE (EAST), KARKARDOOMA COURTS, DELHI.
SC No.4/2007 FIR No.297/2006 Police Station New Ashok Nagar Under Section 363/376 IPC State Versus Vinod Singh S/o Ramesh Singh, Resident of D143, New Ashok Nagar, Delhi.
ORDER ON SENTENCE I have heard the convict, Vinod as well as his amicus curiae on the point of sentence. The Ld. APP, Shri Sanjay Kumar has also advanced arguments. 2 The learned amicus curiae has submitted that the convict is a young boy and has been recently married about three months back. Convict has old ailing parents. The convict was driving the autorickshaw and the only bread earning Page 37 S/V Vinod Singh member of the family. The convict remained in custody for about one year.
3 Ld. Amicus curiae has referred to the case titled Krishan Pal & Anr. Vs. State (Reported in 2003 (2) JCC 984). In that case the occurrence was of 1994. The imprisonment was reduced to the period already undergone as the Hon'ble Court was of the view that the accused suffered the ordeal of trial for nearly eight years. Another case referred is titled State of Chhattisgarh Vs. Lekhram (Reported in 2006 (2) Crimes 91 SC) in which the sentence of 3 years imprisonment was reduced to period undergone as the prosecution could not prove that the prosecutrix was enticed away. Next judgment referred is in case of Raju Vs. State/NCT of Delhi (Reported in 2004 (3) C.C. Cases (HC) 63) in which the prosecutrix was aged about 1415 years of age. Considering the totality of the circumstances, the Hon'ble High Court awarded sentence of imprisonment of Page 38 S/V Vinod Singh undergone. The appellant remained in custody for about one year and six months only. It has also been urged that in the case in hand, the girl was a consenting party.
4 On the other hand, the learned Prosecutor has vehemently urged that convict may not be left with light sentence. The consent of the girl below the age of 16 years has no consequence and which may not be taken into consideration in determining the sentence to be awarded to the convict. 5 In case titled, State of Madhya Pradesh V. Munna Choubey & Anr. (Reported in 2005(1) JCC 351), the Hon'ble Supreme Court has laid down the principles of awarding sentence to the convict. It has been held that in the case of rape, minimum sentence has been provided in the law. The court has the discretion to impose the sentence of imprisonment less than the prescribed minimum but for the adequate and special reasons. Those reasons are required to be expressed in the Page 39 S/V Vinod Singh order. The Hon'ble Apex court has held that those adequate and special reasons would depend upon the several factors and no straightjacket formula can be indicated. However, while imposing the sentence, the effect of the offence on the social order should also be taken into consideration. The social impact of the crime, i.e. where it relates to the offences against women, dacoity, kidnapping, misappropriation of public money, teason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
Page 40 S/V Vinod Singh 6 Considering the law of land as has been held by
the Hon'ble Apex Court in the case of Madhya Pradesh Vs. Munna Choubey and Anr. (supra), the convict can be awarded sentence of lesser imprisonment than prescribed in the law only if there are adequate and special reasons. Those reasons are to be considered by keeping in mind that the offences for which the present accused has been convicted have social impact. Therefore, the judgments referred by the ld. Amicus curiae in case of Krishan Pal & Anr. Vs. State (supra), State of Chhattisgarh Vs. Lekhram (supra) and Raju Vs. State/NCT of Delhi (supra) are distinguishable from the facts and circumstances of the present case.
7 The facts of the old age of the parents of the convict are not sufficient, adequate and special grounds to award him lesser punishment.
Page 41 S/V Vinod Singh 8 Considering the overall circumstances, I award
the sentence of three years RI and a fine of Rs.10,000/ for the offence punishable u/s 363 IPC. In default of payment of fine, the convict shall undergo RI for three months. 9 Convict Vinod is also awarded sentence of imprisonment of five years with a fine of Rs.10,000/ for the offence punishable u/s 366 IPC. In default of payment of fine the convict shall undergo RI for three months. 10 The convict is also awarded sentence of RI for seven years and fine of Rs.10,000/ for the offence punishable u/s 376 IPC. In default of payment of fine, the convict shall undergo RI for three months.
11 All the sentences of imprisonments for different offences shall run concurrently. The convict shall also be entitled for the benefit as provided u/s 428 Cr. P.C. Page 42 S/V Vinod Singh 12 The Jail Authorities be informed accordingly. 13 Copies of the orders of conviction and sentence be given free of cost to the convict.
14 File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 20.8.2009 District JudgeVI (East)
cum Addl. Sessions Judge
Karkardooma Courts
Delhi