Delhi District Court
Sc No. 47/2011 State vs Raj Kumar @ Rana Page No. 1/10 on 28 May, 2012
IN THE COURT OF ADDITIONAL SESSION JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET COURTS:
NEW DELHI
PRESIDED BY : SMT. MADHU JAIN.
IN THE MATTER OF
Case ID No. 02406R0485982010
SESSION CASE NO. 47/2011
FIR No. 207/2010
PS : SANGAM VIHAR
UNDER SECTION : 363/366/376/506 IPC
STATE
VERSUS
1. RAJ KUMAR @ RANA
S/O RAJA RAM,
R/O B1120, SANGAM VIHAR,
NEW DELHI.
DATE OF INSTITUTION : 29.07.2010
DATE OF RESERVING ORDER : 23.05.2012
DATE OF DECISION : 28.05.2012
J U D G M E N T
Case of Prosecution:
1. On 21.06.2010 prosecutrix ( name withheld to keep her identity confidential ) along with her mother came to police station Sangam Vihar and SC No. 47/2011 State Vs Raj Kumar @ Rana Page No. 1/10 gave her statement regarding rape committed by the accused upon her. On her statement, a case under Section 376/506 IPC was registered against the accused.
After the registration of the case, on the pointing out of the prosecutrix the accused was arrested. Both the prosecutrix and accused were sent for their medical examination. Statement of prosecutrix under Section 164 Cr.P.C was got recorded by the Investigating Officer, Statement of witnesses were recorded and after completion of the investigation charge sheet under Section 376/506 IPC was filed against the accused in the court.
2. Since the offence under Section 376 IPC is exclusively triable by the Court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions. Charge against the accused:
3. Prima facie case under section 363/366/376/506 IPC was made out against the accused Raj Kumar @ Rana. Charges under Section 363/366/376/506 IPC were framed upon the accused by my Ld. Predecessor vide order dated 21.09.2010 against which accused pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 10 ( Ten ) witnesses.
5. The brief summary of deposition of the prosecution witnesses is as under: Material Witnesses:
6. PW7 is the prosecutrix herself. She has duly supported the case of SC No. 47/2011 State Vs Raj Kumar @ Rana Page No. 2/10 the prosecution and has proved her statement given to the Investigating officer Ex.PW7/A and also to the Ld. Metropolitan Magistrate Ex.PW7/D. She has further deposed that she was taken for her medical examination.
7. PW5 is Reena, mother of the prosecutrix who has stated that she works as maid in the houses in Sangam vihar and leave early in the morning at about 8 am. Her daughter used to remain in the house to look after her brother and sister. Accused Rajkumar @ Rana resides in the 3rd Gali from their Gali. On 21.06.2010, at about 3 pm when she was doing her maid work, her son came and told her that accused Rajkumar @ Rana had taken her daughter with him. She went to the house of accused who was not present there. Thereafter, she made a phone call to the accused and after some time accused Rajkumar @ Rana came to his house and she asked him about the whereabouts of her daughter. Accused told her that her daughter was not with him. She came back home and found her daughter present at home. When she enquired from her daughter(prosecutrix) she stated that accused Rajkumar @ Rana had forcefully committed rape with her.
8. Inadvertently, SI Satish Bhati, Investigation officer of the case has been examined again as PW7 who arrested the accused, got conducted the medical examination of accused and prosecutrix and after completion of investigation filed the charge sheet in the court. Formal Witnesses:
9. PW1 is ASI Krishan Kumar who registered the case FIR Ex.PW1/A.
10. PW3 is Constable Poonam who took the prosecutrix for her SC No. 47/2011 State Vs Raj Kumar @ Rana Page No. 3/10 medical examination, collected the MLC of the prosecutrix and sealed exhibits from the hospital and handed over the same to the Investigating officer.
11. PW4 is Constable Sandeep who was present with the Investigation officer during the investigation of the case. He has duly proved the arrest memo and took the accused for his medical examination.
12. PW8 is Ms. Garima V., Programme Coordinator in Priyatan (NGO). She made counseling to the victim and proved her report Ex.PW8/A.
13. PW10 is Saurabh Kulshreshtha, Ld. ARC cum Commercial Civil Judge who recorded the statement of prosecutrix under Section 164 Cr.P.C Ex.PW10/A. Medical Witnesses:
14. PW2 is Dr. Akhilesh who examined the accused vide MLC Ex.PW2/A.
15. PW6 is Dr. Gobinda Pramanick who deposed on behalf of Dr. Pradeep who conducted and prepared the bone age estimation report of the prosecutrix Ex. PW6/A.
16. PW9 is Dr. Momita who has examined the prosecutrix vide MLC Ex.PW7/C. Statement and Defence of accused:
17. Statement of accused under Section 313 Cr.P.C was recorded wherein the accused denied the case of the prosecution and stated that he is innocent. He further chose to lead evidence in his defence and examined one witness in his defence. .
SC No. 47/2011 State Vs Raj Kumar @ Rana Page No. 4/10
DW1 Sh. Raje Ram, father of accused deposed that on that day accused was working with him at his vegetable shop since morning till 1.30 pm and his son is doing private job at Okhla Mandi. He stated that his son has been falsely implicated in the present case due to enmity between his wife and the mother of the prosecutrix.
18. I have heard the Ld. Counsel for accused as well as Ld. APP for state and have carefully perused the record.
Arguments of Ld. Defence Counsel for state:
19. Ld. Defence Counsel for the accused argued that prosecutrix was more than 18 years of age at the time of offence and she was a consenting party to the whole incident. She herself went with the accused and accused did not commit any rape upon her. He further argued that area from where the prosecutrix was taken by the accused to the jungle is a thickly populated area but prosecutrix despite being major did not raise any noise or cried for help which shows that she was a consenting party to the whole incident and no case of kidnapping or elopment is made out against the accused. He further argued that accused was present at work place of his father and did not go with the accused.
Arguments of Ld. APP for State:
20. On the other hand Ld. APP for state argued that even as per the bone age estimation report the age of the prosecutrix was less than 18 years at the time of offence and she was a minor in terms of Section 363 as well as 366 of IPC. Consent of the minor is of no value and the sole testimony of the prosecutrix without it being corroborated by any other witness is sufficient to SC No. 47/2011 State Vs Raj Kumar @ Rana Page No. 5/10 convict the accused.
Conclusion: The two issues to be determined on the basis of evidence adduced are the age of the prosecutrix and whether she was consenting party.
21. Age of the prosecutrix: PW5 Reena is the mother of the prosecutrix. She has deposed that age of her daughter is around 15 years. She remains in her house to look after her brother and sister whereas PW5 works as maid in different houses at Sangam Vihar. PW5 has been examined in the year 2011 and the incident is stated to have taken place in the year 2010. According to the mother of the prosecutrix, prosecutrix was around 14 years of age at the time of incident.
22. PW2 is the prosecutrix herself. She has also stated that she was 14 years of age at the time of incident. During her examination in the court in the year 2012 this witness has stated her age as 16 years.
23. PW6 is Govinda Pramanick, Sr. Resident Department of Radiology, AIIMS Hospital, New Delhi. He identified the signatures and handwriting of Dr. Pradeep who conducted the bone age estimation of the prosecutrix. As per bone age estimation and Xray report, the age of the prosecutrix was determined between 15.8 to 16.4 years by Dr. Pradeep vide his report Ex.PW6/A. Testimony of PW6 has remained unchallenged and unrebutted. There is no reason to disbelieve the same. After giving margin of two years on both sides, the age of the prosecutrix does not come out to be more than 18 years at the time of commission of offence. By giving margin of 2 years though the age of the prosecutrix comes out to be more than 16 years but under SC No. 47/2011 State Vs Raj Kumar @ Rana Page No. 6/10 no circumstances it can be said to be more than 18 years. Even after giving the margin of 2 years though the age of the prosecutrix comes out to be above 16 years but certainly does not come out to be more than 18 years. There is no other proof regarding the age of the prosecutrix except her bone age estimation report Ex.PW6/A. Prosecutrix never studied in any school and her mother did not produce before Investigating officer, any school certificate of prosecutrix. In such circumstances, the court is required to rely on the bone age estimation report of prosecutrix. From Ex.PW6/A, it stands proved that the age of the prosecutrix was less than 18 years but more than 16 years at the time of commission of offence.
Consent of the prosecutrix:
24. PW7 in the present case is the prosecutrix herself. She stated that she stays in her home to look after her brother and sister. She never went to any school. Her father works as baildar and her mother is maid servant and does the work of washing utencils in different houses. She knows the accused as he resides in their neighbourhood. It was a summer season and the date was 21. On that day she saw Sharbat was being distributed. On the pretext of getting Sharbat, accused asked her to accompany her. She accompanied him. He took her towards jungle where he committed rape upon her and also intimidated her by threatening to kill her and thereafter, left her near Tinu Public School. She narrated the entire incident to her mother. During her examination in court she stated her age as 16 years. Her cross examination in the court has been conducted in the year 2012 which means that at the time of offence in the year 2010 she was 14 years of age. To the doctors also where after the incident she SC No. 47/2011 State Vs Raj Kumar @ Rana Page No. 7/10 was taken for medical examination, she has given her age as 14 years. Prosecutrix is not a small child. It seems that when accused took her on the pretext of getting her sharbat to the jungle, she voluntarily accompanied him and did not raise any voice or cried for any help. In the jungle though it can be deserted place but it seems that while going to the jungle she did not raise any voice for help. She has admitted that there were other persons at the place where accused was distributing Sharbat. She further stated that accused took her to the jungle without her consent but it seems that she did not raise any alarm when accused was taking her away. She stated in her cross that she raised an alarm but none of the persons present there stopped her. It is highly unbelievable that a small girl cried for help when somebody was taking her forcibly but none from the public tried to stop the accused. She herself has stated that after committing rape upon her accused brought her from the jungle by catching her hand. It is not believable that a person who commits rape upon a girl will subsequently bring that girl to her house by catching her hand and the girl also will allow her to do the same and will not raise any noise. Prosecutrix further has stated that accused took her by scooter and returned by scooter. It is not possible that she was made to sit on the scooter by the accused on the pretext of getting sharbat and the prosecutrix accompanied the accused for taking the sharbat. From her conduct, it is clear that prosecutrix was a consenting party to the whole incident. So far as testimony of the mother of the prosecutrix is concerned she stated to the police whatever she had been told by her daughter.
25. PW9 is Dr. Momita who examined the prosecutrix vide MLC SC No. 47/2011 State Vs Raj Kumar @ Rana Page No. 8/10 EX.PW7/C and has opined that her hymen was torn. Ld. Counsel for the accused argued that the hymen can be torn without the sexual intercourse but in the present case no such observation has been given by the doctor that hymen was old torn.
Defence of accused:
26. Accused has taken the defence that he was not present at the spot and was present at his father's shop. He has examined his father Raje Ram as DW1 who stated that accused was present at his vegetable house since morning till 1.30 pm. In the present case, the incident took place at around 11.30 am. The arrest memo of the accused bears the signatures of his mother. DW1 has further admitted that his son was apprehended by the police on 21.06.2010 from his house at 12 noon. The admission of DW1 regarding the arrest of accused at 12 noon from his house contradicts the plea of DW1 itself that accused was present with him at his shop till 1.30 pm. Thus, the accused has failed to prove the plea of alibi taken by him.
27. As discussed above, age of the prosecutrix comes out to be more than 16 years and less than 18 years at the time of offence. For attracting provisions of 376 of IPC, the prosecutrix must be less than 16 years of age. But in the present case she was more than 16 years of age as discussed above and was a consenting party to the whole incident of rape and, therefore, provisions of Section 376 of IPC cannot be said to be proved against the accused. As far as provisions of Section 363/366 of IPC are concerned since the prosecutrix was a minor i.e. below 18 of years age at the time of commission of offence and consent of the minor is no consent in the eyes of law and it also stands proved on SC No. 47/2011 State Vs Raj Kumar @ Rana Page No. 9/10 record by the prosecution that accused took away the prosecutrix from the lawful guardianship of her parents nearby jungle and had sexual intercourse with her. Therefore, the offence of Section 363/366 of IPC stands proved against the accused beyond reasonable doubt.
28. In view of the above said discussions, prosecution has been fully able to prove its case under Section 363/366 of IPC against the accused beyond the shadow of doubt. Accused, is therefore, held guilty and convicted for the offence under section 363/366 of IPC. Accused is, however, acquitted of the offence under Section 376/506 of IPC.
ANNOUNCED IN THE OPEN COURT on 28.05.2012 ( MADHU JAIN ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/ SAKET COURTS/ NEW DELHI/28.05.2012 SC No. 47/2011 State Vs Raj Kumar @ Rana Page No. 10/10