Delhi District Court
State vs . Sikander on 3 October, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 38/2012
Unique Case ID: 02404R0100752012
State Vs. Sikander
S/o Ranjit
R/o F6/388389,
Sultanpuri, Delhi.
FIR No. : 70/2012
Police Station : Sultan Puri
Under Section : 354/376 (2) (f)/511 IPC
Date of committal to Sessions Court : 08.05.2012
Date on which orders were reserved : 17.09.2012
Date on which judgment pronounced : 25.09.2012
JUDGMENT
Brief Facts:
(1) As per the allegations, on 14.2.2012 at about 7:30 PM at F6/388389, Sultan Puri, the accused Sikander attempted to commit rape upon the prosecutrix 'R' (name of the girl is withheld being the case under Section 376 (2) (f) IPC), a minor girl aged about 8 years.
Case of prosecution in brief:
(2) The case of the prosecution in brief is that on 14.2.2012 on receipt of DD No. 57A, SI Badami Lal reached House No. State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 1 F6/388389, Sultan Puri, Delhi, where he met Ram Kumari and her daughter 'R'. Ram Kumari informed SI Badami Lal that accused Sikander had attempted to commit rape upon her daughter 'R'.
Thereafter the prosecutrix 'R' was taken to SGM Hospital where her medical examination was got conducted but her mother Ram Kumari refused for internal examination of the prosecutrix. SI Badami Lal informed Nazma Khatoon of NGO and called her in the SGM hospital and in her presence, he recorded the statement of the complainant Ram Kumari.
(3) The complainant Ram Kumari informed the police that on 14.2.2012 at about 7:30 PM she along with her daughter 'R' (prosecutrix) aged 8 years, came Delhi from Sonipat Haryana to visit her daughter Rekha who under treatment and was residing on rent at F6/388389, First Floor, Sultan Puri. She further told the police that on that day at about 7:00 PM there was no electricity and during that period, Sikander, who was the son of the land lord, took her daughter 'R' in his room at ground floor. Complainant Ram Kumar further told the police that at about 7:30 PM, she heard the cries of her daughter 'R' on which she immediately rushed to the room of Sikander and saw that there was a candle light in the room and her daughter was lying on the floor and her panty (kachhi) had been removed and accused Sikander had also removed his own pant and was pressing her breast and mouth by his hands and was State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 2 attempting to commit rape upon her.
(4) On the basis of the statement of complainant Ram Kumari, present FIR was recorded and accused Sikander was arrested by the police. After completing the investigations, the charge sheet was filed in the court.
CHARGE:
(5) Charge under Section 376 (2) (f) read with Section 511 Indian Penal Code was settled against the accused Sikander who pleaded not guilty and claimed trial.
EVIDENCE:
(6) In order to discharge the onus upon it, the prosecution has examined as many as thirteen witnesses:
Public Witnesses:
(7) PW5 Nazma Khatoon has deposed that on 14.02.2012 she was working with NGO Nav Shristi and on that day at about 8 PM she received telephone call from SI Badami Lal who informed her that rape has been committed on a small girl at Sultanpuri and he called her at SGM hospital. According to the witness, she reached at SGM hospital and SI Badami Lal, prosecutrix 'R' aged about 8 years, her mother and a lady constable were present at the hospital. The witness has deposed that medical examination of prosecutrix was State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 3 conducted in the hospital after which SI Badami Lal examined the prosecutrix in the SGM hospital in the duty constable room in her presence and also examined her mother. The witness has deposed that SI Badami Lal also recorded statement of mother of the prosecutrix namely Meena Kumari and MLC of the prosecutrix was prepared and thereafter they went to the police station and FIR was registered there after which Sikander was taken into custody. (8) Ld. APP for the State with due permission of the court put leading questions to the witness wherein the witness has admitted that the police recorded her statement. The witness has further admitted that SI Badami Lal called her at F6/389, Sultanpuri first of all at the spot and when she reached at the hospital, medical examination of prosecutrix was already conducted. She has also admitted that she inquired about the facts from the prosecutrix and from her mother Ram Kumari about the incident and in her presence SI Badami Lal recorded statement of Ram Kumari. The witness has also admitted that name of the mother of prosecutrix 'R' is Ram Kumari but due to her mistake and due to confusion she wrongly stated as Meena Kumari in her examinationinchief. She has admitted that SI Badami Lal sent Ct. Avdesh to the police station at about 11:50 PM for registration of the FIR and that prosecutrix was aged about 8 years and she was unable to make her statement because she was disturbed. She has also admitted that SI Badami State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 4 Lal, prosecutrix, her mother Ram Kumari and L/Constable went to the spot and she went to the police station. The witness has also admitted that at about 12:15 AM complainant Ram Kumari, her daughter 'R' and L/constable with SI Badami Lal reached at the police station. She admits that at the police station she counselled the child prosecutrix and advised her not to be disturbed and after her counseling and with the counseling of her mother Investigating Officer recorded statement of prosecutrix 'R'. The witness has further admitted that SI Badami Lal recorded statement of Ram Kumari vide Ex.PW5/A and Ram Kumari put her thumb impressions at point A and thereafter she put her signatures at point B with stamp of her NGO Nav Shristi.
(9) In her cross examination by Ld. Defence Counsel, the witness has deposed that she is working with the NGO Nav Shristi since 1999 and usually go to the police stations of the outer district and all the police stations has her telephone number. According to her on that day she was present at her house when she first received the call from SI Badami Lal. She has deposed that she left her house at about 8:40 PM and went to the Police Station Sultanpuri by auto and has voluntarily explained that as she had no knowledge about the spot and therefore she told SI Badami Lal to meet her at police station. She has deposed that she had received the second call at about 9:30 PM when she was at Peeragarhi and reached SGM State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 5 hospital at about 10:40 PM and remained there for about 45 minutes and also met the prosecutrix and her mother in the hospital. The witness has deposed that she along with the prosecutrix and one police official returned to the police station from the hospital and reached the police station at about 1111:30 PM and left the police station at about 1:00 AM (mid night). The witness has admitted that she never visited the spot. She has denied the suggestion that she is stock witness of the police or that she has not joined the investigations of the present case or that the statement of the mother of the prosecutrix was not recorded in her presence or that no inquiry from the prosecutrix or her mother was made in her presence or that she put her signatures and seal on the statement of the prosecutrix at the instance of the investigating officer.
(10) PW6 Lagan Devi has deposed that she knew Mukesh, S/o Ram Nandan Shah as he was working in the shop of her devar and Mukesh took a house in her neighbourhood on rent basis and she helped him, more than one year from today. According to the witness, the prosecutrix 'R' is the sister in law (sali) of Mukesh and the son of the land lord of Mukesh had committed rape with 'R' and after that incident, they vacated the house. (11) Ld. APP for the State with due permission of the court put leading questions of the witness wherein the witness has admitted that her residence house Number is F6/459, Sultanpuri and the name State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 6 of the land lord of Mukesh is Ranjeet Singh. According to the witness, she cannot say whether she had stated to the police that house No. F6/388389, Sultanpuri was given on rent to Mukesh in September, 2010. The witness has admitted that she had stated to the police that the rent was Rs.1200/ per month but is unable to say whether she had stated to the police that Mukesh had vacated the house on 20.02.2012 after the incident of rape on 14.02.2012. She has deposed that she does not know name of the son of Ranjeet Singh.
(12) In her cross examination by Ld. Defence Counsel, the witness has deposed that she does not know if there was a quarrel took place between land lord Ranjeet Singh and his tenant Mukesh. (13) PW7 Ram Kumari is the complainant. She has deposed that she was residing at the given address for the last two years with her family comprising of her husband and four children i.e. three daughters and one son. According to the witness, Rekha is her eldest daughter who is married and at the time of marriage she was residing at Sultan Puri. The witness has deposed that Rekha was under medical treatment for lumps in the chest and had been operated.
According to the witness, she came from Sonepat along with her second daughter 'R' aged about 8 years to meet Rekha at Sultan Puri. The witness has deposed that on 14.02.2012 at about 730 p.m. there was no electricity in the house and her daughter 'R' was playing on State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 7 the ground floor and the accused Sikandar who is the son of the landlord was also playing with her daughter on the ground floor and the accused took her daughter inside the room. The witness has deposed that she was on the first floor when she heard the shouts of her daughter (Ladki Chillaya) on which she immediately rushed to the ground floor and saw that there was a candle light in his room and her daughter was shouting Chor De Chor De. According to the witness, her daughter 'R' was lying on the floor and the accused had removed her underwear (Kachi) and also removed his pant and had pressed the mouth of her daughter with his hand. The witness has deposed that the accused was lying on top of her daughter (Betti Ke Uppar Leta Hua Tha aur jabardasti rape Karne Ki kaushish Kar Raha Tha) and she got her daughter freed on which her daughter rushed to the first floor. According to the witness she also came to the first floor and immediately gave a telephone call to her son in law Mukesh who came back home and made a call of PCR at 100 number and police came to the spot and recorded her statement on the ground floor of the same house which statement is Ex.PW5/A. The witness has deposed that thereafter the accused was taken to the police station they also went there and her daughter was taken to hospital where her medical examination was conducted. The witness has deposed that they again came back to the spot and had shown the house of the accused and the room where the accused had taken her daughter State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 8 where some documents were prepared. She has identified her thumb impression at point A on the site plan which is Ex.PW7/A. According to the witness, the police also asked for the birth certificate of her daughter but she did not have any document and she told them that she had no janampatri or age proof document and the Investigating Officer prepared the memo regarding the same which is Ex.PW7/B. According to the witness later she had come to the court along with her daughter where her statement was recorded by the court but the date she does not recollect.
(14) Ld. APP for the State has requested for permission to put leading question to the witness wherein the witness has admitted that in her statement to the police, she had told them whatever she had seen. She has further admitted that she had told the police that the accused was pressing the breast of her daughter with one hand (Jabardasti Chhati Daba Raha Tha dusre hath se us ka mooh daba raha tha) and with another hand pressed on her mouth. (15) In her cross examination by Ld. Defence Counsel, the witness has deposed that he does not remember the date, month and year of marriage between her daughter Rekha aged 21 years and Mukesh and states that their marriage had taken place three years back. According to the witness after her marriage, Rekha was residing at Sultanpuri with her husband. She does not remember the date on which she came at Sultanpuri from Sonipat. The witness has State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 9 deposed that she came to the spot about 10 days prior to the incident. She has deposed that the ground floor is occupied by the landlord whose family consists of three sons and one daughter in law, landlord and his wife. According to the witness the electricity has gone at 7:30 PM on that day and her daughter 'R' went to play in the gali at about 7 PM. The witness has deposed that nobody was there in the house of landlord at that time, all the four room were locked. She has deposed that at about 8 PM all the family members of the accused Sikander came in the house and the electricity came back at about 9 PM. She admits that her daughter 'R' was playing with 34 other girls of nearby houses and it was after some time that the electricity had gone. The witness has deposed that after some time at about 7:30 PM, she heard crises of her daughter 'R' and electricity light was not available at that time. She has deposed that there is another tenant on their floor. She has also stated that her daughter Rekha did not come on the ground floor after hearing the shouting of 'R' whereas three rooms were found locked at that time and one room was opened in which she found accused Sikander and her daughter 'R' and doors were found by her in open condition. According to the witness, she took her daughter 'R' immediately and proceeded towards the room of her daughter Rekha. According to the witness, she is not aware about the phone number of her son in law Mukesh and she called him through Rekha who was having a mobile phone at State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 10 that time. The witness has deposed that she put the clothes of her daughter 'R' upon her body on the ground floor where she found her and thereafter she took her to the first floor. She has deposed that she, Mukesh and accused Sikander went to the police station from the spot and stayed in the police station till about 1111:30 PM and came back at about 2 AM (midnight). She has denied the suggestion she has deposed falsely at the instance of her son in law Mukesh. (16) PW8 Mukesh has deposed that Rekha is his wife, Ram Kumari is his mother in law and the prosecutrix 'R' who is aged about 8 years is his sister in law. According to him, on 14.02.2012 he was residing in the house of father of accused Sikander at the house No. F6/388389, Sultanpuri on rent basis of Rs. 1200/ per month and Smt. Lagan Devi helped him while he took the above said house on rent. The witness has deposed that his wife was sick and she was operated so she called his mother in law Ram Kumari from Sonipat to take care of his wife Rekha and so Ram Kumari came at his house along with his sister in law 'R'. According to him, on 14.02.2012 at about 7:357:40 PM, he was present at the Mangal Bazar, Sultanpuri, he received a telephone call from his wife Rekha who told him that Sikander had taken away 'R' and kept her in a room where he was committing rape with her. On this he immediately reached at his house and asked 'R' about the incident and she told all the facts to him and she alleged that Sikander had committed rape with her after State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 11 removing her clothes. The witness has deposed hat his mother in law Ram Kumari saved 'R' from the accused Sikander and closed the doors from both sides where Sikander was present. Thereafter he immediately call at 100 number and police reached at the spot and police inquired about the facts from the and also from 'R' after which police took 'R', her mother Ram Kumari and the accused Sikander with them. He has identified the accused Sikander in the court. (17) Ld. APP for the State with due permission of the court put leading questions to the witness, wherein the witness has admitted that prosecutrix 'R' told him that the son of the land lord had taken her in his room for watching a television and thereafter removed her clothes and also removed his clothes and was trying to commit rape with her. The witness has further admitted that Sikander was confined in his room at the ground floor from the outside and police took 'R' and and Ram Kumari to SGM hospital. The witness further admits that Sikander was alone in his house and his family members were not present at that time. He also admits that at about 12:30 AM police came at the spot and arrested the accused Sikander and took him away from there with prosecutrix 'R', his mother in law Ram Kumari and lady constable. The witness has further admitted that he took the above said house of Ranjeet Singh on rent on 27.09.2010 and vacated the house on 20.02.2012 after the above said incident.
State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 12 (18) In his cross examination by Ld. Defence Counsel, the witness has deposed that he has been working in the sweet shop at Mangal bazar, Sultanpuri and his working hours are 6 AM to 10 PM. He has deposed that on the day of incident he was also at his working place and he received the phone call of his wife, Rekha at his working place about the incident and within five minutes he reached at his house. According to the witness, his mother in law Ram Kumari and the prosecutrix 'R' came to his house on 09.02.2012 and the said house of the land lord was two storied and he was residing at the first floor, land lord was residing on the ground floor. He has admitted that the accused Sikander has quarrel with them three times prior to the incident and has voluntarily added that but they did not make any complaint. He has denied the suggestion that they have falsely implicated the accused Sikander in the present case. (19) PW9 is the child prosecutrix 'R' who has been examined in the Chamber in Camera Proceeding in a question / answer form. Her testimony has been recorded in vernacular. She has deposed that she is student of Class III and her family comprises of her mother, father, three sisters and one brother and eldest one is her sister Rekha who is also residing in Delhi. According to the witness, many days back, she had come to Delhi along with her mother to visit her sister Rekha who was in the hospital under treatment. She has deposed that at about 7:00 PM there was no State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 13 electricity and she was playing along with a small girl namely Seema. According to the child, the accused Sikandar (correctly identified by the child witness) called her and took her inside the room at ground floor where there was candle light. The child has further deposed that in the room the accused Sikander removed her undergarments and also removed his own underwear and thereafter he pressed her mouth and breast on which she raised an alarm saying 'Mummy Mummy', "Chor Do Chor Do" but he lay over her and also slapped her. The child has deposed that when she raised alarm, her mother came down and rescued her and took her to the first floor and thereafter her mother made a call at 100 number and police came and she narrated the entire incident to the police. The child witness has further deposed that she was also taken to the hospital where her medical examination and conducted and thereafter on next day she was produced in the court where her statement was recorded by the Ld. MM. She has identified her thumb impression on the statement under Section 164 Cr.PC which is Ex. PW9/A at point A. (20) In her cross examination by Ld. Defence Counsel, the witness has deposed that she was told by her mother and jija to come to the court for depositions and also told her what to depose in the court. She has deposed that whatever she has stated, was told by her mother and jija. On a Court question the child witness has responded that whatever she has stated in the court in her examinationinchief State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 14 are the correct facts of the incident which had happened with her. The witness has further deposed that her mother and jija had told her to state everything whatever had happened on the date of incident. According to the witness she had come to Delhi along with her mother and was staying here for 15 days. She has deposed that when she went to play, there were many persons present and thereafter there was a power cut. According to the witness she was playing in the gali along with children and initially there were about ten girls but when there was a power cut, then only three girls were there and thereafter they all went home. The witness has deposed that when the electricity had come, she was along with her mother and has voluntarily explained that when there was no electricity when the accused Sikander took her and states that when the electricity had come, then her mother took her when she was playing on ground floor. According to the witness, when the accused took her on the ground floor, nobody was there, accused was alone and his mother and father had gone for work and the other tenants were also not there. She has deposed that when the accused was doing the wrong act upon her, there was no electricity at that time and when her mother and jija came, they gave beatings to the accused and people had gathered at the spot. According to the witness, when the accused took her to the room, he did not put the kundi from inside and the door was lightly open. The child witness has denied the suggestion State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 15 that she has deposed falsely at the instance of her mother and jija. Medical Evidence:
(21) PW11 Dr. P.C. Prabhakar has deposed that on 14.02.2012 he was posted at the above said hospital as casualty medical officer and on that day day Ram Kumari Devi and W/Ct.
Kiran brought the prosecutrix 'R', female 8 years old, for medical examination with alleged history of sexual assault. According to the witness he medically examined the above said 'R' at about 9:20 PM and prepared the MLC No. 2551 vide Ex.PW11/A and in the local examination he found a small abrasion present over right side back after which he referred the patient 'R' to Gynecologist for further examination and opinion.
(22) The witness has further deposed that on 15.02.2012 he was also on duty as a casualty medical officer in the above said hospital and on that day at about 12:44 AM Ct. Avdesh Kumar brought one Sikander with alleged history of sexual assault and after his medical examination he prepared the MLC No. 2552 which is Ex.PX 5 and there was nothing to suggest that the Sikander was not capable of performing sexual intercourse. According to the witness, the undergarments and blood sample of Sikander were taken and handed over to the police in sealed condition along with sample seal. This witness has not been cross examined on behalf of the accused State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 16 and the entire testimony has gone uncontroverted. (23) PW12 Dr. Parvinder Saxena has deposed on behalf of Dr. Alka who has examined the prosecutrix 'R' vide MLC Ex.PW11/A for gynecological examination. The witness has deposed that as per observations made on the MLC, the mother of 'R' refused for internal examination of the child. The witness has identified the signatures of Dr. Alka at point B having seen her writing and signing during the course of her official duties and the refusal of the mother is recorded at point encircled C bearing the thumb impression of mother Ram Kumar. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
Police Witnesses:
(24) PW1 HC Prem Singh has been examined by way of affidavit which is Ex.PW1/1. He has proved the registration of the FIR copy of which is Ex.PW1/A and the endorsement made by him on he rukka which is Ex.PW1/B. In his cross examination by Ld. Defence Counsel, the witness has deposed that at about 12:45 AM, he handed over the copy of FIR and original rukka to Ct. Avdesh. He has denied the suggestion that FIR is anti dated and anti timed.
(25) PW2 L/Ct. Kiran has deposed way of affidavit which is Ex.PW2/1. According to the witness she had accompanied the State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 17 Investigating Officer to the spot. In her cross examination she has deposed that they reached at the spot at about 8:30 PM where the prosecutrix and her mother were found present.
(26) PW3 HC Govind has been examined by way of affidavit which is Ex.PW3/1. According to him he was working as MHC (M) and has proved the entry in register no. 19 vide No. 11450 dated 15.02.12, copy of which is Ex.PW3/A. He has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.
(27) PW4 SI Beer Singh has deposed by way of affidavit which is Ex.PW4/1. He has proved the recording of DD No. 57A copy of which is Ex. PW 4/A. He has not been cross examined on behalf of the accused and his testimony has gone uncontroverted. (28) PW10 SI Badami Lal has deposed that on 14.02.12 he was posted at police station Sultanpuri and he was on emergency duty from 8 PM to 8 AM and at about 8:16 PM duty officer handed over DD No. 57 A which is Ex.PW4/A. According to the witness, he along with Ct. Avdesh and L/Ct. Kiran reached at F6/388389, Sultanpuri and the prosecutrix 'R' and her mother Ram Kumari met him at the spot. The witness has deposed that he inquired about the facts from them and they alleged that Sikander, son of Landlord attempted to commit rape with 'R'. According to the witness, he State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 18 thereafter took 'R' and Ram Kumari to SGM hospital and in meanwhile he also informed NGO Nazma Khatoon about the incident and called her and she reached at SGM hospital. The witness has deposed that the prosecutrix 'R' was medically examined at the hospital and she was referred to Gyane department but her mother did not allow her internal examination. He thereafter collected MLC of 'R' and since 'R' was disturbed and she was unable to tell about the facts therefore he recorded the statement of her mother Ram Kumari vide Ex.PW5/A in the presence of Nazma Khatoon of NGO. Thereafter, he prepared the rukka Ex.PW10/A and handed over the same to Ct. Avdesh for registration of the FIR. According to the witness, meanwhile he along with L/Ct. Kiran, 'R' and Ram Kumari reached at the spot and at the instance of Ram Kumari and 'R' prepared the site plan Ex.PW7/A. The witness has deposed that the accused Sikander was found at the ground floor of his house, meanwhile Ct. Avdesh reached at the spot and handed over copy of FIR and original rukka to him for further investigations. Thereafter he arrested accused Sikander vide arrest memo Ex.PX6 and took his personal search vide Ex.PX 7 and his medical examination was got conducted through Ct. Avdesh at SGM hospital. Thereafter he reached at police station and Ct. Avdesh handed over accused Sikander to him and also handed over exhibits of accused Sikander to him in sealed condition with the seal of SGMH State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 19 Mangolpuri, Delhi with sample seal and he seized the same vide seizure memo Ex.PW10/B. The witness has deposed that on 15.02.2012 victim 'R' was produced before the Ld. MM for recording statement U/s 164 Cr. P.C. and her statement U/s 164 Cr. P. C. was recorded and he obtained the copy of the same.
(29) In his cross examination by Ld. Defence Counsel, the witness has deposed that he received the information from duty officer about the DD No. 57A when he was present in front of police station on which he received the said DD and thereafter left for the spot at about 8:20 PM and within 15 minutes reached at the spot where many persons were gathered including Ram Kumari, 'R' and Mukesh who told him about the facts. According to the witness, after about 10 minutes they left the spot for SGM hospital and he prepared the rukka at about 11:50 PM at SGM hospital and Ct. Avdesh went to police station with rukka at about 11:50 PM. The witness has deposed that thereafter he again reached at the spot at about 12:20 AM along with the prosecutrix 'R', her mother and lady constable and the accused was arrested after 12:20 AM (midnight). The witness has admitted that when he reached at the spot for the first time, accused Sikander was present at the ground floor and one constable was kept there with accused Sikander but he was not taken into custody as at that time they had not recorded the statements of prosecutrix and complainant and no medical examination was State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 20 conducted at that time. He has denied the suggestion that he has not conducted investigations fairly or that he has been falsely implicated in this case.
(30) PW13 Ct. Avdhesh has been examined by way of affidavit being formal in nature which affidavit is Ex.PW13/1. He has proved the arrest and personal search of the accused Sikander vide memos Ex.PW13/A and Ex.PW13/B. He has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.
STATEMENT OF ACCUSED &DEFENCE EVIDENCE:
(31) After completing the prosecution evidence, statement of accused was recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence / material was put to him which he denied. He has stated that he is innocent and has been falsely implicated by the mother of the prosecutrix due to previous disputes with regard to the tenancy.
FINDINGS:
(32) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and Ld. Amicus Curiae. I have also considered the testimonies of various witnesses and the written memorandum of arguments filed on behalf of the accused.
State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 21 Identity of the accused:
(33) In so far as the identity of the accused is concerned, he was previously known to the prosecutrix and her family and has been specifically named in the FIR. Even otherwise he has been correctly identified in the court by the complainant Ram Kumari, Mukesh and the prosecutrix. I hold that the identity of the accused stands proved and established.
Age of the prosecutrix:
(34) The case of the prosecution is that at the time of the incident the child prosecutrix 8 years of age. In this regard, the testimony of the mother of the prosecutrix namely Ram Kumari (PW7) is relevant who has given the age of the prosecutrix as 8 years which age has also been reflected in the MLC of the prosecutrix. The accused has not disputed nor controverted the same.
Medical Evidence:
(35) The MLC of the prosecutrix which is Ex.PW11/A has been duly proved by Dr. P. C. Prabhakar (PW11) and Dr. Parvinder Saxena (PW12) which does not show any injury on the body of the prosecutrix, hymen was found intact except small abrasion over right side back. The medical evidence shows that there was no abrasion on the outer genitalia and the patient has not give history State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 22 any sexual intercourse and only physical assault has been done as told by her. Therefore under these circumstances the medical evidence does not help the prosecution in any manner and does not support the allegations of attempt of rape upon the prosecutrix.
Allegations against the accused:
(36) The case of the prosecution is that on 14.2.2012 at about 7:30 PM when the child prosecutrix 'R' had gone to the house of her sister Rekha along with her mother Ram Kumari and was playing with her friends while there was no electricity, the accused Sikander took her inside the room on ground floor and thereafter attempted to commit rape upon her on which the child raised an alarm and on hearing her caries, her mother and also the other persons immediately rushed and saved the child and immediately police was called and the accused was apprehended at the spot itself. The relevant portion of the testimony of the prosecutrix is reproduced as under:
"..... Bahoot Din Ho Gaye. Main Apni Mummy Ke Saath Didi Ke Pass Aai Thi. Meri Didi hospital Main Thi. Shyam Ko Saat Baje light chali gayee thi. Main Aur Ek Ladki Seema Jo Dusri Jagah rehti hai , hum log upar niche khel rahe thei. Woh Ladka Sikandar Jo court Main Betha Hai (correctly identified the accused) Woh Mujhe first floor to niche lekar chala gaya. Woh Mujhe kamare Main Le gaya jahan mombatti jal rahi thi. Phir Usne Meri Kachi aur Baniyan Utar Di. Phir State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 23 Usne Apni Pant aur Kacha Bhi Utar Diya. Usne Mera Mooh Daba Diya aur Meri Chati Ko Dabane Laga. Main Badi Jor Se Chillai Mummy Mummy, Maine use Bola Chor Do Chord Do.
Woh mere upar let gaya tha. Woh mujhe thappar maar raha tha. Jab Main Chilla Rahi Thi tab Mummy Niche Aayee aur mujhe upar le gai.
Phir mummu ne 100 number par phone kiya.
Police Aayee aur maine uncle ko saari baat batai. ...."
(37) The child prosecutrix has been cross examined at length on behalf of the accused wherein she has confirmed that the incident had taken place and whatever incident had taken place with her, she had narrated everything to the court. I may note that the testimony of the child before the court is corroborative to her earlier statement under Section 164 Cr.PC recorded by the Ld. MM.
(38) Ld Defence Counsel has vehemently argued that the testimony of the child prosecutrix is not reliable and the possibility of the child having named the accused purposely at the instance of her family members, cannot be ruled out keeping in view the background that it is admitted by PW8 Mukesh that even previously there was quarrel between him and the accused on two to three occasions. It is also argued by Ld. Defence Counsel that the allegations of the accused having call the prosecutrix to watch television is on the face of it false since admittedly according to the prosecutrix at the time of the incident, there was no electricity. It is further pointed out that as State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 24 per the testimony of the mother of the prosecutrix, when she reached the room of the accused, she saw that accused had pressed the mouth of the prosecutrix. If that be so, then it cannot be possible that the child could have raised an alarm or screamed, as alleged by her. Ld. Defence Counsel has further argued that it is also the case of the prosecution that even after the incident when the mother of the prosecutrix had come into the room of accused and was putting on the cloths of the child, the accused was still present in the court. (39) Additional Public Prosecutor has vehemently argued that there is no reason to doubt the version given by the child prosecutrix. He has submitted that no person worth name would risk the like and reputation of his minor daughter / child only to seek revenge or for personal gains. He has pointed out that the testimony of the child prosecutrix 'R' is very consistent and finds due corroboration from the testimony of her mother Ram Kumari who on hearing of cries of child rushed to the room of accused and found the child lying on the floor with the accused lying on top of her.
(40) I have given my careful thought to the rival contentions and I do not tend to agree with the submissions made by Ld. Defence Counsel, for the reason that in a conservative Indian family no parent would use their minor daughter as an instrument to settle their personal scores or to expose her to such a risk and danger only to seek revenge from the accused. No parent would depose falsely State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 25 implicating another of ravishing their child's chastity by sacrificing and jeopardizing her future prospects of having a family life and invite wrath of being ostracized and out caste from the society to which they belong and from their family circle. Once the child victim has herself appeared in the Court and testified against the accused Sikander, there is no reason to disbelieve her testimony. Minor contradictions and discrepancies cannot be a ground to throw out her testimony. [Ref.: Vishnu Vs. State of Maharastra reported in 2006 AIR (SC) 508; State of Himachal Pradesh Vs. Asha Ram reported in AIR 2006 SC 381].
(41) Applying the above settled position of law to the facts of present case, I may note that the prosecutrix has been duly examined before the court and she has supported her earlier version given to the Ld. MM in her statement under Section 164 Cr.PC and also to the Investigating Officer. Her testimony also finds due corroboration from the testimony of her mother Ram Kumari (PW7) relevant portion of which is reproduced as under.
"...... On 14.02.2012 at about 730 p.m. there was no electricity in the house. My daughter 'R' was playing on the ground floor. The accused Sikandar who is the son of the landlord present in the court (correctly identified). Accused was also playing with my daughter on the ground floor. He took my daughter inside the room . I was on the first State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 26 floor when I heard the shouts of my daughter. (Ladki Chillaya). I immediately rushed to the ground floor and saw that there was a candle light in his room and my daughter was shouting Chor De Chor De. She was lying on the floor and he had removed her underwear (Kachi) and also removed his pant and had pressed the mouth of my daughter with his hand. He was lying on top of my daughter (Betti Ke Uppar Leta Hua Tha aur jabardasti rape Karne Ki kaushish Kar Raha Tha). I got my daughter freed on my daughter rushed to the first floor. I also came to the first floor and immediately gave a telephone call to my son in law. After my son in law Mukesh came back home on receipt of a call we made a call of PCR at 100 number. After the police came to the spot they recorded my statement on the ground floor of the same house which statement is Ex.PW5/A bearing my thumb impressions at point A. Thereafter, the accused was taken to the police station we also went there. At the police station, I was further interrogated. Thereafter, my daughter was taken to hospital where her medical examination was conducted. We again came back to the spot and had shown the house of the accused and the room where the accused had taken my daughter where some documents were prepared. I identify my thumb impression at point A on the site plan which is Ex.PW7/A. The police also asked for the birth certificate of my daughter but I did not have State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 27 any document and I told them that I have no janampatri or age proof document."
(42) I may further observe that both the child prosecutrix 'R' (PW9) and her mother Ram Kumari (PW7) had gone to the house Rekha (daughter of Ram Kumari and sister of the child prosecutrix), who had been hospitalized and was undergoing treatment. Mukesh (PW8) the husband of Rekha, has also independently confirmed the incident. He has stated that on the date of incident he was present at Mangal Bazar Sultanpuri when he received a telephone call from his wife Rekha who told him that Sikander had taken away 'R' and kept her in a room and committed rape with her, on which he immediately reached to his house and made a call at 100 number after which police came to the spot and took the child and the accused Sikander with them. He has confirmed that the accused was confined in his room at the ground floor which room was locked from outside in order to confine him and it was then that he was handed over to the police. No doubt there is a history of tenancy dispute between Mukesh and the landlord, there is no reason to doubt his version. Mukesh is not an eye witness and came to the spot only on receiving a call from his wife informing of the incident.
(43) In view of the above, at the very Outset, I may observe that the victim is hardly aged about 8 years. Secondly, she has in her testimony before the court very categorically identified the accused State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 28 Sikander as the person who had called her in his room when she had gone to the house of her sister Rekha and was playing outside as there was no electricity in the area. Thirdly, she has identified the room on the first floor where the accused had called her as the place where the incident had taken place. Fourthly, she has only made allegations against the accused regarding attempt to rape her and not the actual offence. Had it been so that there was any intension on the part of the prosecutrix and her family to falsely implicate the accused, the allegations could have been much graver which is not the case. Fifthly the child prosecutrix has explained that the accused after removing her undergarments and also of his own underwear lay on her and also gave beatings to her as a result of which she screamed and told him to leave her. This confirms that the accused had made preparation to commit rape upon her but before he could actually attempt it, the child screamed which alerted her mother who saved her. Lastly the medical evidence brought on record by the provisions confirms that no rape had been committed upon the prosecutrix.
(35) Charge under Section 376 (2) (f) Indian Penal Code has been framed against the accused Sikander. In this regard, I may observe that the provisions of Section 375 Indian Penal Code provides the Definition of Rape as under:
State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 29 "375 Rape: A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
First: Against her will.
Secondly: Without her consent.
Thirdly: With her consent, when her consent has been obtained by putting her or any person whom she is interested in fear of death or hurt.
Fourthly: With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to who she is or believes herself to be lawfully married.
Fifthly: With her consent, when, at the time of giving such consent, by reason of unsoundness of mind of intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly: With or without her consent, when she is under sixteen years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 30 (36) It has been held by the Hon'ble Supreme Court in the case of State of U.P. Vs. Babulnath reported in (1194) 6 SCC 29 that:
"..... Rape to complete penetration of the penis into the private parts of the victim/ prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration with the male organ with the emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ in the labia majora or the vulva or pudenda with or without emission of semen and even an attempt of penetration into the private parts of the victim would be quite enough for the purpose of sections 375 and 376 Indian Penal Code. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains....."
(37) The Hon'ble Supreme Court in the case of Tarkeshwar Sahu Vs. State of Bihar (now Jharkhand) reported in JT 2006 (12) SC 559 has observed that:
".......The important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In absence of penetration to any extent would not bring the offence of the appellant within the four corners of Section 375 of the Indian Penal Code. Therefore, the basic State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 31 ingredients for proving a charge of rape are the accomplishment of the act with force. The other important ingredient is penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would be enough for the purpose of Sections 375 and 376 IPC.....
......From the Explanation, it is distinctly clear that ingredients which are essential for proving a charge of rape are the accomplishment of the act with force and resistance. To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of IPC.......
......The ingredients of the offence have also been examined by the Kerala High Court in the case of State of Kerala v. Kundumkara Govindam wherein it was observed:
State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 32 "The crux of the offence u/s 376 IPC is rape and it postulates a sexual intercourse. The word "intercourse" means sexual connection. It may be defined as mutual frequent action by members of independent organization. By a metaphor the word "intercourse" like the word "commerce" is applied to the relation of sexes. In intercourse there is temporary visitation of one organization by a member of the other organization for certain clearly defined and limited objects. The primary object of the visiting organization is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. There is no intercourse unless the visiting member is enveloped at least partially by the visited organization, for intercourse connotes reciprocity. In intercourse between thighs the visiting male organ is enveloped at least partially by the organism visited, the thighs; the thighs are kept together and tight."
The word "penetrate", according to Concise Oxford Dictionary means "find access into or through, pass through". In order to constitute rape, what section 375 IPC requires is medical evidence of penetration, and this may occur and the hymen remain intact. In view of the explanation to section 375, mere penetration of penis in vagina is an offence of rape. Slightest penetration is sufficient for conviction under Section 376 IPC. Position of law in England is the same. To constitute the offence of rape, there must be a penetration . Even the slightest, penetration will be sufficient. Where a penetration was State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 33 proved, but not of such a depth as to injure the hymen, still it was held to be sufficient to constitute the crime of rape...."
(44) It is a settled law that in a case where the accused forcibly took the prosecutrix for committing illicit intercourse but before he could ravished her, she raised an alarm and the accused was apprehended, therefore no offence under Section 376/511 Indian Penal Code is made out. Reference in this regard may be made to the case of Tarkeshwar Sahu Vs. State of Bihar (now Jharkhand) reported in JT 2006 (12) SC 559. In the said case the hon'ble Supreme Court had carefully analyzed the scope and ambit of Section 375 and 376/511 Indian Penal Code and also Section 354 Indian Penal Code. It has been held that the crime by the accused was at the initial stage of preparation and hence does not come within the purview of punishment of Section 376/511 Indian Penal Code but squarely covered within the provisions of Section 354 Indian Penal Code.
(45) In the present case the act completed by the accused was that he had removed his own pants and also the undergarments/ panties of the child while he himself lay on the child and was pressing her mouth with one hand and her chest with another. Even before there was a penetration to some extent or the act could have State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 34 been attempted the child started screaming when the accused immediately pressed her mouth and the mother of the child came and saved her. Hence, the act was only at the stage of preparation and has not reached the stage of attempt, the prosecution having failed to prove the said attempt and the medical evidence not satisfying the basic ingredients of Section 375 Indian Penal Code or even attempt thereof. Therefore, applying the test laid down by the Hon'ble Supreme Court in the case of Tarkeshwar Sahu Vs. State of Bihar (Supra) I hold the accused Sikander guilty of the offence under Section 354 Indian Penal Code (not under Section 376 (2) (f) read with Section 511 Indian Penal Code).
FINAL CONCLUSION:
(46) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 35
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(47) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. The identity of the accused Sikander has been established. It stands established that the mother of the prosecutrix namely Ram Kumari came from Sonepat along with her daughter 'R' aged about 8 years to meet Rekha (sister of Ram Kumari) at Sultan Puri. It also stands established that on 14.02.2012 at about 730 p.m. there was no electricity in the house and the prosecutrix 'R' was playing on the ground floor and the accused Sikandar who is the son of the landlord was also playing with the child prosecutrix on the ground floor after which the accused took the prosecutrix 'R' inside the room. It further stands established that the accused removed his own pants and also the undergarments/ panties of the child while he himself lay on the State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 36 child and was pressing her mouth with one hand and her chest with another. It also stands established that the child started screaming and on hearing the screams of the child the mother of the prosecutrix rushed to the ground floor and saw that there was a candle light in his room and the prosecutrix was shouting Chor De Chor De. It further stands established that Ram Kumari got her daughter freed and took her to the first floor after which a telephone call was made to Mukesh (the brother in law of Ram Kumari) who came back home and made a call of PCR at 100 number. It has also been established that on the basis of the statement of Ram Kumari the present case was got recorded and the accused was thereafter arrested. (48) The medical evidence on record is corroborative of the oral testimony of the prosecutrix with regard to the act of the accused (i.e. molestation). In so far as the allegations of rape are concerned, the medical evidence on record does not support this aspect. Further, it does not stands established that the accused has used any force or pressure upon the prosecutrix or has committed any sexual assault upon her a the medical evidence does not establish any sexual assault upon the prosecutrix.
(49) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 37 which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(50) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(51) In the present case the act completed by the accused was that he had removed his own pants and also the undergarments/ panties of the child while he himself laid on the child and was pressing her mouth with one hand and her chest with another. Even before there was a penetration to some extent or the act could have been attempted the child started screaming when the accused immediately pressed her mouth and the mother of the child came and State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 38 saved her. Hence, the act was only at the stage of preparation and has not reached the stage of attempt, the prosecution having failed to prove the said attempt and the medical evidence not satisfying the basic ingredients of Section 375 Indian Penal Code or even attempt thereof. Therefore, applying the test laid down by the Hon'ble Supreme Court in the case of Tarkeshwar Sahu Vs. State of Bihar (Supra) I hold the accused Sikander guilty of the offence under Section 354 Indian Penal Code [not under Section 376 (2) (f) read with Section 511 Indian Penal Code].
(52) Be listed for arguments on sentence on 28.9.2012.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 25.09.2012 ASJ (NW)II: ROHINI
State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 39
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 38/2012 Unique Case ID: 02404R0100752012 State Vs. Sikander S/o Ranjit R/o F6/388389, Sultanpuri, Delhi.
(Convicted)
FIR No. : 70/2012
Police Station : Sultan Puri
Under Section : 354/376 (2) (f)/511 IPC
Date of conviction : 25.09.2012
Arguments heard on : 28.09.2012
Date of Sentence : 03.10.2012
APPEARANCE:
Present: Sh. Sukhbir Singh, Addl. Public Prosecutor for the State.
Convict Sikander in Judicial Custody with Ms. Sindhu Sakarwal, Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
Vide my detailed judgment dated 25.09.2012 the accused Sikander has been held guilty for the offence under Section 354 Indian Penal Code [not under Section 376 (2) (g) read with Section State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 40 511 Indian Penal Code] for which he has been accordingly convicted.
As per allegations, on 14.2.2012 at about 7:30 PM at F6/388389, Sultan Puri, the accused Sikander attempted to commit rape upon the prosecutrix 'R', a minor girl aged about 8 years. The child prosecutrix 'R' has duly appeared in the Court and made specific allegations against the accused Sikander. On the basis of the testimonies of the various prosecution witnesses particularly the prosecutrix 'R', her mother Ram Kumari and other medical and circumstantial evidence on record, this Court has held that the identity of the accused Sikander was established. It stands established that the mother of the prosecutrix namely Ram Kumari came from Sonepat along with her daughter 'R' aged about 8 years to meet Rekha (sister of Ram Kumari) at Sultan Puri. It also stands established that on 14.02.2012 at about 730 PM there was no electricity in the house and the prosecutrix 'R' was playing on the ground floor and the accused Sikandar who is the son of the landlord was also playing with the child prosecutrix on the ground floor after which the accused took the prosecutrix 'R' inside the room. It further stands established that the accused removed his own pants and also the undergarments/ panties of the child while he himself lay on the child and was pressing her mouth with one hand and her chest with another. It also stands established that the child started screaming and on hearing the screams of the child the mother of the prosecutrix State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 41 rushed to the ground floor and saw that there was a candle light in his room and the prosecutrix was shouting Chor De Chor De. It further stands established that Ram Kumari got her daughter freed and took her to the first floor after which a telephone call was made to Mukesh (the brother in law of Ram Kumari) who came back home and made a call of PCR at 100 number. It has also been established that on the basis of the statement of Ram Kumari the present case was got recorded and the accused was thereafter arrested.
This Court has further observed that in the present case the act completed by the accused was that he had removed his own pants and also the undergarments/ panties of the child while he himself lay on the child and was pressing her mouth with one hand and her chest with another. Even before there was a penetration to some extent or the act could have been attempted the child started screaming when the accused immediately pressed her mouth and the mother of the child came and saved her. Hence, the act was only at the stage of preparation and has not reached the stage of attempt, the prosecution having failed to prove the said attempt and the medical evidence not satisfying the basic ingredients of Section 375 Indian Penal Code or even attempt thereof. Therefore, the accused Sikander has been guilty of the offence under Section 354 Indian Penal Code (not under Section 376 (2) (f) read with Section 511 Indian Penal Code) for which he has been accordingly convicted. State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 42 Heard arguments on the point of sentence. The convict th Sikander a young boy of 19 years, is 8 class pass and at the time of his arrest was working as Sweeper in a Call Center. He has a family comprising of parents and two elder brothers. Ld. Amicus Curiae has vehemently argued that the convict is a young boy and a first time offender and has no previous criminal record. It is argued that the convict has already remained in judicial custody for about seven months and thirteen days. She has further argued that the convict is the helping hand of his family and any harsh view would be detrimental not only to the young convict but also the family of the convict. She requests that a lenient view be taken against the convict.
On the other hand the Ld. Addl. PP for the State has prayed for a strict punishment to the convict keeping in view the allegations involved.
I have considered the rival contentions. Though the convict Sikander is a first time offender and is not involved in any other case, yet it is writ large that the intention of the convict on his part was to commit rape upon the child prosecutrix but it was by sheer providence and luck that the mother of the child heard the screams of the child prosecutrix and saved her while he was still at the stage of preparation. This being so, I hold that the convict is not entitled to any leniency. The convict Sikander is sentenced to State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 43 Rigorous Imprisonment for a period of Two (2) Years and fine to the tune of Rs.20,000/ for the offence under Section 354 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month. The entire fine amount of Rs.20,000/, if recovered, shall be given to the family of the child prosecutrix 'R' as compensation under Section 357 Code of Criminal Procedure.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules.
The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.
File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU) Dated: 03.10.2012 ASJ (NW)II: ROHINI State Vs. Sikander, FIR No. 70/2012, PS Sultan Puri Page 44