Delhi District Court
State vs Mr.Amit Kumar on 23 May, 2013
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE
(SPECIAL FAST TRACK COURT)-01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case Number : 30 of 2013.
Unique Case ID Number : 02401R0376522010.
State versus Mr.Amit Kumar
Son of Mr.Sant Kumar
Resident of Village Nizampur, Delhi.
First Information Report Number : 106/2010.
Police Station Nangloi
Under sections 363/366/376/506 of the Indian Penal Code.
Date of filing of the charge sheet before : 23.08.2010.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 23.9.2010.
In the Sessions Court
Date of transfer of the file to this Court : 08.01.2013.
ASJ (SFTC)-01, West, THC, Delhi.
Arguments concluded on : 23.05.2013.
Date of judgment : 23.05.2013.
Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
State.
Accused on bail with counsel, Mr. Sachidanand Chaturvedi.
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Sessions Case Number : 30 of 2013.
Unique Case ID Number : 02401R0376522010
FIR No. 106/2010, Police Station Nangloi
Under sections 363/366/376/506 of the Indian Penal Code.
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JUDGMENT
"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.
1. This case falls in the list of twenty oldest cases pending before this Court and a sincere endeavour has been made to dispose it expeditiously.
2. Kidnapping and rape are dark realities in Indian society like in any other nation. 53 per cent of our children are sexually abused, according to a statistic from a survey done by the Government of India. This abnormal conduct is rooted in physical force as well as familiar and other power which the abuser uses to pressure his victim. Nor is abuse by known and unknown persons confined to a single political ideology or to one economic system. It transcends barriers of age, class, language, caste, community, sex and even family. The only commonality is power which triggers and feeds rape. Disbelief, denial and cover-up to "preserve the family reputation" are often then placed above the interests of the victim and her abuse. (Reliance on the material on the internet). Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric Sessions Case Number : 30 of 2013.
Unique Case ID Number : 02401R0376522010 FIR No. 106/2010, Police Station Nangloi Under sections 363/366/376/506 of the Indian Penal Code.
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when the victim is a minor female child, as in the present case, who is allegedly subjected to unwanted physical contact by a perverted male adult.
3. "Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of lately crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasize that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in totality of the background of the entire case and not in isolation." The Supreme Court has made the above observations in the judgment reported as State of Andhra Pradesh v. Gangula Satya Murthy, JT 1996 (10) SC 550.
PROSECUTION CASE
4. Mr. Amit Kumar, the accused, has been charge sheeted by Police Station Nangloi, Delhi for the offence under sections 363/366/376/506 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 13.02.2009 at Tuition Centre, Jaat Chowk, Nangloi, Delhi within the jurisdiction of Police Station Nangloi, he kidnapped the prosecutrix (name withheld to protect her identity) who was Sessions Case Number : 30 of 2013.
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minor at that time from the lawful guardianship of her parents and further committed rape upon her at aforesaid place between 13.02.2009 to 07.12.2009.
CHARGE SHEET AND COMMITTAL
5. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 23.08.2010 and after its committal, the case was assigned to the Court of the learned predecessor vide order dated 23.9.2010 of the learned Sessions Judge, Delhi. Further, the case has been transferred and assigned to this Court i.e. Additional Sessions Judge (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi for 08.01.2013 vide order bearing number 20/372-512/F-3(4)/ASJ/01/2013, dated-04.01.2013 of the learned District and Sessions Judge, Delhi.
CHARGE
6. After hearing arguments, charge for offence under sections 363, 328, 366, 376 and 506 of the IPC was framed against the accused by the learned predecessor on 10.11.2010.
PROSECUTION EVIDENCE
7. In order to prove its case, the prosecution has examined as many as 21 witnesses. The prosecutrix has been examined as PW1; Mr.Mahinder Kumar, father of prosecutrix, is examined as PW2; Ms.Usha, mother of prosecutrix, is examined as PW3; HC Suresh Kumar, the duty officer, is Sessions Case Number : 30 of 2013.
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examined as PW4; Dr. Ajay Kumar, CMO Sanjay Gandhi Memorial Hospital who medically examined the prosecutorix, is examined as PW5; Lady Ct. Sunita, who took the prosecutrix to Sanjay Gandhi Memorial Hospital for her medical examination, is PW6; Ct. Devender, who had gone to the house of prosecutrix, is examined as PW7; Dr. Meenakshi, who had medically examined the prosecutrix, is PW8; Dr. Rajesh Dalal, CMO Sanjay Gandhi Memorial Hospital who had medically examined the accused, is PW9; Ct. Pradeep Kumar who has joined investigation in the present case is PW10; Mr.Vinod, maternal uncle of the prosecutrix, is examined as PW11; Ct. Bijender Singh is examined as PW12; Mr. Vinod Kumar, friend of the accused, is examined as PW13; HC Ravinder Kumar is examined as PW 14; Ms. Namita Yadav, cousin sister of prosecutrix, is examined as PW15; Dr. Rishi Pal Shastri, the priest in Arya Samaj Mandir, Nabi Kareem, who had performed marriage of the accused and the prosecutrix is examined as PW 16; W/SI Savita, the Investigation Officer, is examined as PW17; Mr. Sunil Kumar, Lab Assistant, Govt. Sarvodaya Kanya Vidyala, Nangloi, brought the admission record of the prosecutrix is PW 18; Ms. Rachna Tiwari Lakhanpal, the learned Metropolitan Magistrate who recorded the statement of the prosecutrix under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) is PW19; Mr. Naresh Kumar, Senior Scientific Assistant (Biology) proved the FSL report is PW20; and Dr. Lingaraj Sahoo, Senior Scientific Officer (Chem), FSL, Delhi is PW21.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE Sessions Case Number : 30 of 2013.
Unique Case ID Number : 02401R0376522010 FIR No. 106/2010, Police Station Nangloi Under sections 363/366/376/506 of the Indian Penal Code.
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CR.P.C.
8. In his statement under section 313 of the Cr.P.C., the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. He has not committed any offence. As a matter of fact, the prosecutrix came to be introduced with him in the month of July 2008 through a common friend Ms. Nisha and thereafter, prosecutrix became friend of one Ms. Kavita through her friend Ms. Nisha and started visiting the house of Ms. Kavita at Jaat Chowk, Nangloi, where he was staying on rent in a room for preparation of his competitive exams. During such visits of prosecutrix at the house of Ms. Kavita, they became more close and their friendship turned into a love affair and they had exchanged their telephone/mobile numbers and used to talk with each other. After falling in love with each other, they used to meet often and pass time together and roam to various places in Delhi. Thereafter, in June 2008, the prosecutrix had shown her willingness to marry with him and since he was also willing to marry with her, they both started to take advice for the marriage from known persons and they both were informed that they can get married in Arya Samaj Mandir and during this course they came across Arya Samaj Mandir, Nabi Karim to find the process of marriage and there they met the priest, who informed them that they both have to give affidavits of date of births and of being major, thereafter they had to filled up separate prescribed applications giving their respective details, on which date of marriage would be given, on which day marriage would be performed. After coming across the above process of marriage, he and the prosecutrix, got prepared their Sessions Case Number : 30 of 2013.
Unique Case ID Number : 02401R0376522010 FIR No. 106/2010, Police Station Nangloi Under sections 363/366/376/506 of the Indian Penal Code.
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respective affidavits in June, 2009 itself. It is only during the preparation of her affidavit by the prosecutrix, he came across her exact year of birth i.e. 1991. Thereafter, he had to appear in certain competitive exams in the month of July and mid of August, they could not manage to visit Arya Samaj Mandir during this period and could visit only on 23.08.2009. Thereafter, they visited to Arya Samaj Mandir, Nabi Karim on 23.09.2009 and they got married with each other, in the presence of three persons out of whom one Mr. Vinod was his friend and rest two were one Ms. Babita and Ms. Nisha, who were the friends of the prosecutrx. Thereafter, in November, 2009, the family of the prosecutrix came to know their marriage and they started pressurizing for hushing up of the marriage and even thereafter, some negotiations between his family and the family of prosecutrix had taken place, but due to his father being unable to fulfill their condition, the same failed and finally he had been falsely implicated in this case. Accused has preferred to lead evidence in his defence.
DEFENCE EVIDENCE
9. The accused has examined Mr. Anuj Bhatia, Nodal Officer, as DW1, who had proved customer application form along with proof of identity; Mr. Raman Kumar Sub Registrar Nazafgarh Zone as DW 2; and Mr. Ashish Shokeen, FSO Department of Food & Supply as DW 3.
ARGUMENTS
10. I have heard arguments at length on several dates. I have also given my conscious thought and prolonged consideration to the material on Sessions Case Number : 30 of 2013.
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record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments filed on behalf of the accused.
11. The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under sections 363, 328, 366, 376 and 506 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
12. The counsel for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. There are several discrepancies and contradictions in the evidence of the prosecutrix. There is unexplained delay in lodging of the FIR. The prosecutrix was a major and had married the accused with her free consent.
CASE OF THE PROSECUTION, ALLEGATIONS AND DOCUMENTS
13. As per the allegations of the prosecution, the accused has kidnapped the prosecutrix whose date of birth is 21.03.1993 on 13.02.2009 from Tuition Centre, Jaat Chowk, Nangloi, Delhi; administered some intoxicating substance to her with the intention to facilitate the commission of offence of rape; on 23.09.2009, he kidnapped the prosecutrix with the intent to compel her to marry him and to force her for illicit intercourse; on 13.02.2009, he kidnapped her and repeatedly committed raped her five Sessions Case Number : 30 of 2013.
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times between 13.02.2009 and 07.11.2009; and between 13.02.2009 and 07.11.2009, he threatened to kill her by showing pistol and threatened to defame her by showing obscene photographs in order to compel her to marry him and for raping her.
14. The prosecution story unfolds with the prosecutrix (PW1) coming with her father Mr.Mahender Singh (PW2) to the Police Station Nangloi on 30.03.2010 and making her statement (Ex.PW1/A) on which the endorsement (Ex.PW7/A) was made by IO SI Savita (PW17) and on the basis of the same, the FIR (Ex. PW4/A) was lodged. The prosecutrix was sent with W/Ct.Sunita (PW6) to the S.G.M.Hospital where she was medically examined by Dr.Ajay Kumar (PW5) and Dr.Meenakshi (PW8) vide MLC (Ex.PW5/A). Seventeen (17) parcels pertaining to the prosecutrix and one sample seal were seized vide seizure memo (Ex.PW6/A). The father of the prosecutrix handed over the CD (Ex.PX1/1), marriage certificate (Ex.PW16/A) and three marriage photographs of the prosecutrix (Ex.PW3/C collectively) which were seized in the presence of Ct.Devender (PW7) vide seizure memo (Ex.PW2/C). The statement of the prosecutrix under section 164 of the Cr.P.C (Ex.PW1/B) was got recorded from the learned Metropolitan Magistrate (PW19) vide the request of the IO (Ex.PW17/B) and copy of the statement was obtained by the IO on application (Ex.PW17/C). On the pointing out by the prosecutrix, the accused was arrested vide arrest memo (Ex.PW10/A) and his personal search was taken vide personal search memo (Ex.PW10/B) and he made his disclosure statement (Ex.PW10/C) Sessions Case Number : 30 of 2013.
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in the presence of Ct.Praddep (PW10). Accused was sent with Ct.Pradeep (PW10) to the SGM Hospital for his medical examination where he was medically examined by Dr.Rajesh Dalal (PW9) vide MLC (Ex.PW9/A). Three (03) parcels pertaining to the accused and one sample seal were seized vide seizure memo (Ex.PW10/D). The certificate of the date of birth of the prosecutrix (Ex.PW17/X) was collected by the IO. Mr.Sunil Kumar (PW18) produced the original documents, i.e. the certificate of the date of birth of the prosecutrix (Ex.PW18/A), ration card (Ex.PW18/C), the school leaving certificate of the prosecutrix (Ex.PW18/D) and the registration form (panjikaran form-Ex.PW18/DA1), copies of which were collected by the IO which show her date of birth as 21.03.1993. The affidavit of the accused affidavit (Ex.PW2/B2) and the affidavit of his father Mr. Sant Kumar (Ex.PW2/B1)were seized by the IO. The IO (PW
17) deposited sixteen sealed pullandas and one sample seal on 30.03.2010 in the malkhana with the Malkhana Moharar (PW14) vide entry number 5105 in register number 19 (EX.PW14/A). IO deposited three sealed pullandas and one sample seal on 01.04.2010 in the malkhana vide entry number 5112 in register number 19 (EX.PW14/B). On 12.05.2010, nineteen sealed pullandas along with two sample seals were sent to the FSL, Rohini through Ct.Bijender (PW12) vide RC No.43/21/10 of register number 21 (Ex.PW14/C). Dr.Rishi Pal Shastri (PW16) issued a marriage certificate regarding the marriage of the prosecutrix with the accused (Ex.PW16/A) after performing the marriage on moving of two applications (Ex.PW16/B and Ex.PW16/C) with the two affidavits (Ex.PW16/D and Ex.PW16/E); entry was made in the marriage register (Ex.PW16/F) and Sessions Case Number : 30 of 2013.
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counter foil of the same (Ex.PW16/G) was produced in the Court. The exhibits of this case were examined by the FSL experts Dr.Naresh Kumar and Dr.Lingaraj Sahoo (PWs 20 and 21 respectively) vide their detailed FSL reports (Ex.PW20/A, Ex.PW20/B and Ex.PW21/A).
TESTIMONIES OF THE PROSECUTION WITNESSES The Most Material Witness : Prosecutrix
15. PW1, the prosecutrix, has deposed on oath that on 13.02.2009, she had gone to the tuition centre for getting her project made. The accused, Mr.Amit Kumar, who was a teacher in the tuition centre met her there. On this day, when she went to the tuition centre, the accused gave her a cold drink. After she drank the cold drink, she became unconscious. She found her clothes were not in order. When she asked the accused what happened, he told her kuch nahi hua chakkar aa gaye thay tum gir gayi thi apne ghar ja. After 02-03 days, the accused again called her to the tuition centre to give her the project. When she went to the tuition centre to collect the project, he did not give it to her and told her that he had taken her photographs and video and that in case she did not obey him, he would show her photographs and video to others. He used to threaten her that he would get her brothers and sisters killed. He also threatened to throw acid on her. Due to the threat, whenever the accused called her, she used to go on his asking to meet him.
16. On 23.09.2009, he forcibly took her to Arya Samaj Mandir, Sessions Case Number : 30 of 2013.
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Nabi Karim, Delhi and got married to her. He gave her age wrongly as being 19 years and he took her signatures on some papers for the purpose of the marriage. He showed her some weapon which looked like a bandook and made her pose for photographs of both of them exchanging garlands. He threatened her that in case she disclosed anything about the marriage or about the photographs and video made by him, he would release her photographs and videos to the press and put them on the internet.
17. On 07.11.2009, she went to Deep Book Depot, near her house where the accused met her and told her to accompany him to his tuition centre which he had opened in Ashok Mohalla. He took her to his tuition centre and did not allow her to come back home. On the next day, her father, mama (maternal uncle) and brother went to the house of the accused and his father called him on his mobile on which the accused took her to Rohtak Road where her father, brother and mama were present. On the asking of her mama, the accused left her. She came back home with her brother, mama and father. After few days, the accused started sending the copies of the photographs of the marriage in an envelope to her neighbours. He sent a complaint on her behalf to the police which did not bear her signatures. He got copies of the complaint and photographs of the marriage circulated in her village and to the media. Her brother, mama and father went to the accused and got his signatures on an affidavit wherein he stated that the marriage between her and him was illegal.
18. She lodged her hand written complaint in the Police Station Sessions Case Number : 30 of 2013.
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(Ex.PW1/A). She was taken for her medical examination to Sanjay Gandhi Memorial Hospital where she was examined vide MLC. She had given her consent for the examination. Her clothes (Ex.P1 collectively) were seized. Her statement (Ex.PW1/B) was recorded by the Magistrate. She never went to get the accused arrested. Three photographs (Ex.P1/C) showing her photo with the accused.
19. On 13.02.2009, she had gone to the tuition centre of accused at Jaat Chowk at Nangloi. After giving cold drink to her, when she became unconscious, the accused raped her. After 2-3 days the accused again called her at his tuition centre to give the project and there he had shown her obscene photographs and video which he had taken on earlier occasion. During the period of 13.02.2009 to 07.11.2009, the accused had physical relations/raped her four- five times. At one time, the accused had shown her the pistol. On 23.09.2009, he forcibly got married with her and on that day her age was 16 years and 6 months. The complaint addressed to SHO PS Nangloi (Mark X) was filed her. She has identified the three photographs on the record (Ex. P1/C colly) showing her photo with the accused. She has identified one printed lady's shirt, one printed salwar, one brassier and one underwear all having cuts (Ex.P1 collectively). She has been cross examined at length on behalf of the accused.
Material Witnesses
20. PW2, Mr.Mahender Singh, father of the prosecutrix, has deposed that the prosecutrix who is his eldest child was born on Sessions Case Number : 30 of 2013.
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21.03.1993. On 07.11.2009, she had left the house without his permission. He searched for his daughter and called his relatives who went to the house of the accused where they met his father, Mr.Sant Ram. They told him that the accused had taken away his daughter on which Mr.Sant Ram apologized and called his son but he did not come. All of them went in search of the accused and saw him at Railway crossing/ phatak, Nijam Pur on a motorcycle. On their pressurizing, the accused made a call to his daughter and called her at Nangloi Market. On way, the accused remived his memory card from his mobile phone. His daughter was at Nangloi Market and they brought her home and Mr.Sant Ram took his son i.e. the accused. After 2-3 days, he along with his brother in law, Mr.Vinod Kumar, went to the house of the accused where Mr.Sant Ram gave his affidavit and an affidavit of his son apologizing for his son's mistake and requested them to forgive him. After 2-3 days he received a call from an unknown person that he had a laptop with obscene photographs of his daughter and threatened him to compromise with the accused and his father. Accused used to throw envelopes (Ex.PW2/A-2)letters (Mark P2) and photographs (Ex.PW2/A-1 collectively) in his house and of his neighbours and also used to post them. On 06.03.2010, he lodged a complaint with the Police Station Nangloi regarding the sending of letters and photographs. Before 07.11.2009, he did not lodge any complaint against the accused as a compromise was arrived between them and the accused and his father because of apprehension of defamation of his daughter. His daughter had given a complaint to the police (Mark X). On 30.03.2010, the statement of his daughter (Ex.PW1/A) was recorded and case was registered against the Sessions Case Number : 30 of 2013.
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accused. Three photographs (Ex.PW1/C collectively), 2 CDs (Ex.PX1/1- blank and PX1/2 and a marriage certificate (Ex.PX2) were handed by him to the police which were seized vide seizure memo (Ex.PW2/C). Photograph (EX.PW1/C) and CD (Ex.PX1) were distributed by the accused in his neighbourhood and the marriage certificate (Ex.PX2) was thrown by the father of the accused in his house. Accused distributed various letters purported to be written by his daughter in at least 33 Government departments thereby defaming his daughter. His daughter was medically examined. His daughter had told him the accused had threatened to kill her by showing a pistol. He has been cross examined at length.
21. PW3, Ms.Usha, is the mother of the prosecutrix. She has deposed that the prosecutrix was born on 21.03.1993. At the time of the incident i.e. on 13.02.2009, she was studying in Class XI and was taking tution from the accused who had a tution centre at Jaat Chaowk, Nangloi, Delhi. On 13.02.2009, her daughter had gone to the tution centre of the accused to prepare a project. He called her several times on the pretext of preparing the project. He kept calling her till 07.11.2009on the pretext of helping her. On 07.11.2009, her daughter went out of the house to buy a book from the bookshop but did not return. On 08.11.2009, somebody informed them that her daughter was confined by the accused in Ashok Mohalla. Her husband brought her daughter back. Her daughter told her that she was taken away by the accused forcibly on a motorcycle from the bookshop by threatening her that he would harm and kidnap her other children. Her daughter also told her that prior to 07.11.2009, the accused Sessions Case Number : 30 of 2013.
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had called her on the pretext of helping her do a school project and once he had given her something intoxicating in cold drink and taken her indecent photographs, shown them to her and threatened her that if she did not come to him as when when he called her, he would mail them on internet due to which her daughter continued to obey the commands of the accused and go to his tution centre till 07.11.2009. Her daughter also told her that the accused had raped her several times till 07.11.2009 without her consent. He had married her on 23.09.2009 in Arya Smaj Mandir, Nabi Karim, Delhi without her consent due to the threats given by the accused. When her daughter was brought back on 08.11.2009, she used to weep for the whole day and for this reason they did not lodge a complaint. Her daughter also requested them not to lodge the complaint against the accused as she wanted to appear in the examination of Class XII. After some days, they came to know that the accused had mailed the photographs of marriage on the internet, by post and had circulated them in the village and mohalla (photographs Ex.PW1/C) as told by the villagers. Accused used to tell her daughter to accompany him after leaving their house and that her father should adopt him. Her daughter had lodged the complaint with the police, was medically examined and made her statement before the Tis Hazari Court. She has been cross examined at length.
22. PW11, Mr.Vinod, is the maternal uncle (Mama) of the prosecutrix. He has deposed that on 07.11.2009, Mr.Mahender telephoned him and told him that the prosecutrix is missing and searched with him for her but she was not found. During the search, they came to know that the Sessions Case Number : 30 of 2013.
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prosecutrix is with one Amit Kumar who is running a tution centre at Nangloi. They reached there and found the prosecutrix with the accused and brough her back. Then they went to the house of the accused at NIzampur and tried to make the accused and his father understand that the accused had done wrong acts with the prosecutrix and they admitted their guilt and assured that the accused would not meet her further. Due to their assurance, they did no proceed durther and complain to the police. After few days, they came to know that the accused had not stopped meeting her and kept on teasing and troubling by sending false complaints on her behalf and photographs in the houses of the neighbours to defame her. He has been cross examined.
Public Witnesses
23. PW-13, Mr. Vinod Kumar, has deposed that accused Mr.Amit is his friend since year 2007-2008. Mr.Amit had love affair with one girl, the prosecutrix. On 23.09.2009, his friend conveyed to him that he was going to marry the prosecutrix in Arya Smaj Mandir at Nabi Kareem, Delhi. He informed him to reach the temple. When he reached at the temple, accused Mr.Amit and the prosecutrix were already present there along with two girls but not known to him. The prosecutrix was happy in getting marriage with accused. The marriage of accused was performed with the prosecutrix by the Priest of the temple. The photographs were also clicked of their marriage. Small party was also organized in the temple. Thereafter, he came back to his house.
Sessions Case Number : 30 of 2013.
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24. PW15, Ms.Namita Yadav, has deposed that the prosecutrix is her cousin (daughter of paternal aunt-bhua ki beti). She had told her that accused Mr.Amit is her boy friend when she had come to attend her marriage on 23.04.2009 at Chandrawal. Accused Amit had also attended her marriage and the prosecutrix had shown her the accused when she had come on the dias to meet her. Later after her daughter was born on 25.04.2010, the IO of the case had come to her matrimonial home at Nangloi and recorded her statement and then she came to know that a case has been registered against accused.
25. As PW14 was not disclosing the complete facts regarding the present case, the Additional Public Prosecutor has cross examined her wherein she has deposed that after her marriage, she came to Nangloi at her in laws' house and her cousin sister, the prosecutrix, while going to her school passing from there and used to take away her mobile phone for talking with accused. She had stated to the police that the prosecutrix told her that she became conversant with the accused when she visited him for preparing her science project. The prosecutrix used to keep her mobile phone with her for one or two days. She did not recollect her mobile phone number.
26. In her cross examination on behalf of the accused, she has deposed that she had met him in her marriage when she was introduced by the prosecutrix. The prosecutrix never talked from her mobile phone with the accused in her presence. However she used to take away the mobile Sessions Case Number : 30 of 2013.
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phone to her home to talk with accused Mr.Amit. She has also spoken to the accused on her mobile phone in context of the prosecutrix. Her mobile number at that point of time was 9268947428 from which the prosecutrix used to talk to the accused. The younger brother and sister of the prosecutrix were not aware of the love affair between the prosecutrix and the accused. Since beginning, the prosecutrix was telling her that she would marry the accused. However, she did not know when they got married. The prosecutrix is much younger to her but she did not know her exact age.
27. PW16, Dr. Rishi Pal Shastri, has deposed that he is working as Priest in Arya Smaj Mandir, Nabi Kareem, Delhi. On 23.09.2009, he performed one marriage between the prosecutrix with Mr.Amit Kumar as per Hindu Customs. The marriage was performed with the consent of both the parties. He made enquiry from the girl before performing marriage and she was happy. He issued a marriage certificate of Mr.Amit Kumar (accused) with the prosecutrix. (Ex. PW16/A) He had brought the two applications on the prescribed proforma dated 23.08.2009 (Ex. PW16/B and C) moved by the prosecutrix and Mr.Amit Kumar and the affidavits of the prosecutrix and Mr.Amit Kumar (Ex. PW16/D and E) as well as the marriage register (Ex. PW16/F) and the portion from point A to A has been written by the prosecutrix in her hand writing and the counter foil of the marriage certificate to the Court (Ex. PW16/G) which is signed by the two witnesses as well as the accused and prosecutrix. The application forms are submitted by the parties who are to marry atleast one month prior to the marriage being performed and the tentative date of marriage is also Sessions Case Number : 30 of 2013.
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mentioned in the application forms. It is essential that the parties who are seeking to be married fill the forms personally. Even in the present matter, the application forms Ex. PW16/B and C have been filled by the accused and the prosecutrix.
28. In his cross examination, he has deposed that the age of accused as well as of the prosecutrix as mentioned in Ex. PW16/A is basis of the information furnished by them as well as their respective affidavits which they have filed in the temple.
Police Witnesses-Formal
29. PW4, HC Suresh Kumar, is the Duty Officer who had recorded the formal FIR of the case (Ex.PW4/B) and made the endorsement (Ex.PW4/B) on the rukka.
30. PW6, Lady Ct.Sunita, had taken the prosecutrix to the SGM Hospital for her medical examination and handed over the 16 esealed parcels pertaining to the prosecutrix and one sample seal which she handed over to the IO SI Savita who seized them vide seizure memo (Ex.PW6/A).
31. PW7, Ct.Devender, had gone to the house of Mr.Mahender Singh who handed over the marriage certificate (Ex.PX2) and photograph of marriage showing the prosecutrix and accused (Ex.PW1/C) which were seized vide seizure memo (Ex.PW2/C).
Sessions Case Number : 30 of 2013.
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32. PW12, Ct.Bijender Singh, had taken the 19 sealed parcels and two sample seals to the FSL.
33. PW14, HC Ravinder Kumar, MHC (M) in PS Nangloi had produced the original register numbers 19 and 21. On 30.03.2010, W/SI Savita had deposited sixteen sealed pullandas along with one sample seal of SGM hospital in the malkhana vide Sr. No. 5105 of register no. 19 (Ex. PW14/A). On 01.04.2010, three sealed pullandas and one sample seal of SGM hospital were again deposited by SI Savita vide Sr. No. 5112 of register no. 19 (Ex. PW14/B). On 12.05.2010, nineteen sealed pullanda along with two sample seals were sent to FSL, Rohini through Ct. Bijender vide RC No 43/21/10 of register no. 21. (Ex. PW14/C). Ct. Bijender, after depositing the sample, handed over the receipt to him. So long as sealed pullandas remained in his custody, no one has tampered the same.
Police Witnesses- Material/Investigation
34. PW10, Ct.Pradeep Kumar, is a witness of investigation. The accused has been arrested in his presence vide arrest memo (Ex.PW10/A) and his personal search was taken vide personal search memo (Ex.PW10/B). Accused made his disclosure statement (Ex.PW10/C) Accused was medically and three sealed parcels and sample seal were seized vide seizure memo (Ex.PW10/D).
35. PW17, W/SI Savita, Investigation Officer, has deposed that on 30.03.2010, the present case was registered on the statement of the Sessions Case Number : 30 of 2013.
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prosecutrix (Ex. PW1/A) when she along with her father came to the PS. On the basis of her statement, she made endorsement (Ex. PW17/A) for registration of FIR under sections 363/366/376/506 IPC. The FIR was got recorded through the Duty Officer. Thereafter, the prosecutrix was sent for medical examination to SGM hospital through W/Ct. Sunita and after medical examination, she was brought back to the PS. W/Ct. Sunita handed over seventeen parcels with the seal of hospital and one sample seal which she had seized vide seizure memo (Ex. PW6/A). The father of the prosecutrix handed over CD (Ex. PX1/1), marriage certificate (Ex. PW16/A) and marriage photographs of prosecutrix (Ex.PW3/C collectively) which she seized through seizure memo (Ex. PW2/C). She along with Ct. Devender and the prosecutrix along with her father searched for the accused but he could not be traced out. Thereafter, she recorded statements of parents of prosecutrix, W/Ct. Sunita. The exhibits were deposited in the malkhana. The prosecutrix was brought by her parents for recording statement under section 164 of the Cr.P.C. which was recorded on 31.03.2010 by the learned MM vide her request (Ex. PW17/B). She also obtained copy of the said statement vide my application (Ex. PW17/C). After recording statement she was allowed to go with her parents. On 01.04.2010, the prosecutrix was accompanied by her father in the PS and she informed her that the accused is sitting in the area of Ashok Mohalla, Nangloi. She along with Ct. Pradeep, the proscutrix and her father reached Ashok Mohalla, Nangloi and on the pointing out of prosecutrix, accused Mr.Amit was apprehended. After formal interrogation, he was arrested vide arrest memo (Ex. PW10/A) and his personal search was taken vide Sessions Case Number : 30 of 2013.
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personal search memo (Ex. PW10/B) and his disclosure statement (Ex. PW10/C) was recorded. Ct. Pradeep was deputed to SGM hospital for medical examination of accused Mr.Amit. After medical examination, Ct. Pradeep handed over three sealed pullandas and one sample seal of hospital to her which she seized vide seizure memo (Ex. PW10/D). Accused was produced in the court and sent to judicial custody. She recorded statements of the witnesses. Case property was deposited in the malkhana. On 12.05.2010, the exhibits were sent to FSL Rohini through Ct. Bijender. She recorded the statement of Ct. Bijender and MHC(M). The father of prosecutrix handed over photocopy of school certificate of the year 2008 (Mark PW17/X). As per the said certificate the date of birth of the prosecutrix was 21.03.1993. Thereafter, she reached GSKV School, Nangloi to verify the date of birth of prosecutrix and the Principal of the said school gave in writing that as per school record the prosecutrix's date of birth is 21.03.1993 and she has left the school after 10th standard in the year 2007-2008. She also recorded the statement of priest as well as witnesses who were present at the time of marriage. After completion of investigation, she prepared the challan and after completion of formalities the same was filed in the Court through ACP. During trial, she filed the FSL result in the Court. During investigation, she also seized one affidavit of accused Amit Kumar son of Mr. Sant Kumar (Ex. PW2/B2).
Formal/Official Witnesses
36. PW18, Mr. Sunil Kumar, Lab Assistant, GSKV Nangloi, Delhi produced theadmission record of Ms. Preeti Yadav daughter of Mr. Sessions Case Number : 30 of 2013.
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Mahender Kumar Yadav who was admitted in the school in the K. G. on 19.04.1997 of Govt. Sarvodya Kanya Vidyalya, Nangloi, Delhi. At the time of admission, the parents of prosecutrix had submitted the MCD record regarding her date of birth. As per the said record, her date of birth is 21.03.1993. He has proved the admission form (Ex.PW18/A), certificate of date of birth given by the prosecutrix (Ex. PW18/B), the photocopy of ration card (Ex. PW18/C) and the school leaving certificate (Ex. PW18/D). The prosecutrix left her studies after passing out 11th standard on 03.07.2008.
37. PW19, Ms. Rachna Tiwari Lakhanpal, MM, Mahila Court, Outer District, Rohini Court, Delhi had recorded the statement of the prosecutrix under section 164 of the Cr.P.C. (Ex.PW1/B) vide proceedings (Ex.PW19/A) on the application to the IO SI Savita (Ex.PW19/B) and copy was given to the IO on her application (Ex. PW19/C).
Medical And Forensic Evidence
38. PW5, Dr.Ajay Kumar, had medically examined the prosecutrix vide MLC (Ex.PW5/A).
39. PW8, Dr.Meenakshi, had medically examined the prosecutrix in the Gynecology Department vide MLC (Ex.PW5/A).
40. PW9, Dr.Rajesh Dalal, had medically examined the accused vide MLC (Ex.PW9/A).
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41. PW20, Mr.Naresh Kumar, Senior Scientific Assistant (Biology), FSL, Delhi had examined the exhibits of the case vide his report (Ex.PW20/A) and serological report (Ex.PW20/B).
42. PW21, Dr. Lingaraj Sahoo, Senior Scientific Officer (Chem), FSL, Delhi had examined the exhibits of this case vide his report (Ex.PW21/A).
TESTIMONIES OF THE DEFENCE WITNESSES
43. DW1, Mr.Anuj Bhatia, Nodal Officer, Vodafone Mobile Services Ltd, 345, Okhla Ph-II, New Delhi has produced the record available in the office pertaining to mobile phone no. 9711486028 and 9582129057. The aforesaid mobile connections were issued in the name of Mr. Amit Kumar son of Mr. Sant Kumar resident of 118, Vill & PO Nizam Pur, Delhi-81 and Ms. Pinky daughter of Mr. Mahavir Singh resident of 486, Gali Jaat Chowk, Village Nangloi, Delhi respectively. The CDR record of both the mobile phones for the period December 2009 to February 2010 is not available with the company as same has been destroyed as per the guidelines of the Department of Telecommunications. The photocopy of both the customer application form along with proof of identify are Ex.DW1/A and Ex.DW1/B, duly attested by me at point A. Photocopy of relevant clause of licence Agreement is Ex.DW1/C.
44. DW-2-Mr. Raman Kumar, Sub Registrar Nazafgarh Sessions Case Number : 30 of 2013.
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Zone, MCD Delhi has produced the birth register of Nazafgarh Zone year 1992. There is an entry bearing no. 829, bearing date 28.03.92, showing date of birth as 21.03.92, name of the child as Ms. Preeti Yadav daughter of Mr.Mahender Kumar Yadav and mother's name is Ms. Usha Yadav, place of birth as C -34, Vishal Colony, Nangloi, the informant's name is Mr. Mahender Kumar Yadav. (Ex.DW2/1). It also contains the signature of Mr. Mahender Kumar Yadav. The birth certificate is issued as per the available record i.e. the birth register.
45. In his cross examination by the Additional Public Prosecutor, he has deposed that he can say from his record that the date of birth of Ms. Preeti Yadav is 21.03.1992 and the date of 21.03.93 mentioned in Ex.PW18/B is wrong. He has admitted that there is no over writing in Ex.PW18/B in the date. The birth certificate is issued by the MCD.
46. DW-3-Mr. Ashish Shokeen, FSO, Department of Food & Supply, Mundka Circle 8, Delhi has produced the register for issuance of new card, food & supply office, Delhi Govt, Delhi and an application form (Ex.DW3/2) for the issuance of Ration card submitted by Mr. Dharampal Yadav son of Late Mr. Sarupan Yadav, R/o House No. 7, Shivam Medical Store, Nazafgarh Road, Nangloi, New Delhi containing the particulars of the family members, their respective year of birth, parentage/name of husband, relation with the applicant, an affidavit (Ex.DW3/3) submitted by the aforesaid applicant as regards the particulars given in his said application. The register (Ex.DW3/1) contains the entry no. 376 as regards Sessions Case Number : 30 of 2013.
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the aforesaid application submitted by the said applicant and the number issued by them as against the receipt of the same bearing number TR537734.
47. In his cross examination by the Additional Public Prosecutor, he has deposed that the relevant entry exhibited as EX.DW3/1 is not in his handwriting. He has admitted that he has not brought any print out any consumer card no. APL08421297. He has admitted that no ration is given to the family of ration card holder as the family is above poverty line.
DISCUSSION AND ANALYSIS
48. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see Sessions Case Number : 30 of 2013.
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no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
49. Under this sphere, I now proceed to test the submissions of both the sides IDENTITY OF THE ACCUSED
50. There is no dispute regarding the identity of the accused. It is also not in dispute that they were known to each other prior to the lodging of the FIR. He is also named in the FIR.
51. Therefore, the identity of the accused stands established. Sessions Case Number : 30 of 2013.
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VIRILITY OF THE ACCUSED
52. The accused has been medically examined by Dr.Rajesh Dalal (PW9) vide MLC (Ex.PW9/A) wherein it is opined that "it is nothing to suggest that individual is incapable of performing sexual intercourse)"
PW9 has not been cross examined by the accused nor the defence of the accused is that he is impotent.
53. This report indicates that the accused is virile and is capable of performing sexual act and is capable of committing the act of rape.
MLC OF THE PROSECUTRIX AND FSL REPORTS
54. The MLC of the prosecutrix (Ex.PW5/A) shows that she does not have any fresh external injury and the hymen is torn. There is no bleeding or injury or edema.
55. Also the FSL reports (Ex.PW20/A and Ex.PW20/B) show that semen could not be detected on the samples of the prosecutrix including the vulval swabs, vaginal smears, vaginal swabs, pubic hair, lower inner wear, etc. of the prosecutrix.
56. These facts indicate that her version regarding her being raped are false as had she been actually raped, she would have received some injuries, maybe minor and the FSL reports would have shown the presence of semen. When semen is not connecting the accused to the crime, there Sessions Case Number : 30 of 2013.
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cannot be any conviction. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
57. Therefore, it is clear that there is no medical nor forensic evidence against the accused to indicate that he has raped the prosecutrix.
DELAY IN FIR
58. The contention of the counsel for the accused that there was a delay in lodging of the FIR which is fatal to the case is tenable as the prosecutrix went missing on 07.11.20009 and the alleged first instance of rape was on 13.02.2009 while the FIR has been lodged on 30.03.2010 at 19:30 hours i.e. after a delay of about four months and twenty three days from 07.11.2009 and about one year and one and a half months from 13.02.2009. The delay in lodging of the FIR has been not explained by the prosecution.
59. The Additional Public Prosecutor, on the other hand, submitted that there is no delay in the lodging of the FIR as the criminal action was swung into motion as soon as possible since the parents of the prosecutrix was searching for her. After she was recovered a compromise was effected regarding which the accused and his father gave affidavits admitting that the marriage is not valid and it was only after the accused circulated the photographs and letters that the prosecutrix approached the police.
Sessions Case Number : 30 of 2013.
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60. The delay in lodging the report raises a considerable doubt regarding the veracity of the evidence of the prosecution and points towards the infirmity in the evidence and renders it unsafe to base any conviction. Delay in lodging of the FIR quite often results in embellishment which is a creature of after thought. It is therefore that the delay in lodging the FIR be satisfactorily explained. The purpose and object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well the names of eye witnesses present at the scene of occurrence.
61. I find on perusal of the record that indeed the criminal action was swung into motion after a delay of about four months and twenty three days from 07.11.2009 and about one year and one and a half months from 13.02.2009.
62. As regards the affidavit of the accused (Ex.PW2/B2) and the affidavit of his father (Ex.PW2/B1), it may be observed that the stamp papers were purchased on 16.11.2009, affidavits executed on 22.11.2009 and attested by the Notary Public on 06.03.2010.
63. It may be mentioned here that in the cross examination of PW2 a suggestion has been given to him that the affidavits have been fabricated by him to explain in the delay while in his statement under section 313 of the Cr.P.C. the stand of the accused is that he has admitted the signatures on his affidavit but has denied the contents thereby contradicting his own Sessions Case Number : 30 of 2013.
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suggestion to PW2. When he has signed on his affidavit then there is no question of the same being fabricated by PW2.
64. Further, the prosecution has not been able to give any justified reason for the stamp papers being purchased on 16.11.2009, affidavits being executed on 22.11.2009 and being attested by the Notary Public on 06.03.2010 i.e. a considerable gap between each event.
65. It is not that every delay in registration of the FIR would be fatal to the prosecution. Once the delay has been sufficiently explained, the prosecution case would not suffer. However, it is necessary for the Courts to exercise due caution particularly in the cases involving sexual offences because the only evidence in such cases is the version put forwarded by the prosecutrix.
66. The Hon'ble Apex Court in the judgment reported as State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy. Similar view was taken in Tulshidas Kanolkar v. The State of Goa, (2003) 8 SCC 590, wherein it was held by the Supreme Court as follows:
"The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance s for the accused when accusation of rape are involved. Delay in lodging first information report Sessions Case Number : 30 of 2013.
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cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there s possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle.
67. In the judgment reported as Devanand v. State (NCT of Delhi), 2003 Crl.L.J. 242, the Hon'ble High Court of Delhi has observed as follows:
"The above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 30-36 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year."
68. Further, the Hon'ble High Court of Rajasthan in the judgment reported as Babu Lal and Anr v. State of Rajasthan, Cri.L.J. 2282, has held as under:
"No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, Sessions Case Number : 30 of 2013.
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such type of delay would certainly be regarded as fatal to the prosecution case"
69. The Hon'ble High Court of Madhya Pradesh in the judgment reported as Banti alias Balvinder Singh v. State of Madya Pradesh, 1992 Cr.L.J. 715, has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances it must be held that the prosecutrix story was not satisfactorily established"
70. I find on perusal of the record that indeed the criminal action was swung into motion after about four months and twenty three days from 07.11.2009 when the prosecutrix went missing and about one year and one and a half months from 13.02.2009 i.e. the date of first incident of rape.
71. The prosecutrix has deposed in her evidence that out of fear of the accused, she did not report the matter earlier to anyone including her parents. However, it is also clear that after the alleged incident of 13.02.2009, she went to school, went to the market, visited her cousin, attended marriage, visited friends, etc. (as is borne out of the record). No explanation is coming forth from the prosecution as to why she did not tell her anyone about the rape and all the others with whom she may have come Sessions Case Number : 30 of 2013.
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in contact with between 13.02.2009 and 30.03.2010. She was not under the control of the accused and could have easily disclosed about the incident if she wanted to. She also did not tell immediately on being recovered. It also cannot be ignored that the prosecution has neither produced any obscene photographs or threatening letters nor examined any witness to substantiate the stand of the prosecutrix. The prosecution has also failed to recover any pistol, bandook or any other weapon from the accused with which he allegedly threatened the prosecutrix and therefore, even this stand of the prosecutrix that out of fear of the accused, she did not approach the police earlier is not tenable. Further, after she was recovered on 07.11.2009, neither the prosecutrix nor her parents approached the police. Also even after getting the affidavits attested by the Notary Public on 06.03.2010, they did not immediately approach the police. The obscene photographs of the prosecutrix have also not been recovered with which the prosecutrix was allegedly threatened. The photographs which are proved in evidence are neither obscene nor offensive. Even otherwise, there is nothing shown by the prosecution to connect the accused with any offensive or obscene circulated material. The prosecutrix, in her evidence has deposed that the accused had sent a complaint on her behalf to the police which did not bear her signatures and he had got copies of the complaint and photographs of the marriage circulated in her village and to the media. Her brother, mama and father went to the accused and got his signatures on an affidavit wherein he stated that the marriage between her and him was illegal. If this was so, then the affidavit was got signed on 22.11.2009 and the FIR was lodged on 30.03.2010. The duration of the waiting period between Sessions Case Number : 30 of 2013.
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22.11.2009 and 30.03.2010 has not been explained. No justified reason is shown as to why they waited till 30.03.2010 to make the complaint.
72. Therefore, it can be said that the FIR was lodged after a delay of about four months and twenty three days from 07.11.2009 when the prosecutrix went missing and about one year and one and a half months from 13.02.2009 i.e. the date of first incident of rape which is fatal to the prosecution story. The delay has not been satisfactorily explained due to which a fatal blow is struck to the prosecution version.
MATERIAL WITNESSES NOT EXAMINED
73. The prosecution has failed to produce and examine some material witnesses whose evidence could have been very relevant in the present case.
74. Ms.Kavita, friend of the prosecutrix, in whose house the accused allegedly was a tenant and through whom the prosecutrix had met the accused has not been examined.
75. Ms.Babita Rohila, witness of the marriage of the prosecutrix with the accused, (as mentioned in the marriage certificate Ex.PW16/A, has also not been examined.
76. They have neither been cited as witnesses in the list of witnesses of the prosecution nor produced nor examined nor any explanation is coming forth from the prosecution regarding the lapse. By Sessions Case Number : 30 of 2013.
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not examining these relevant witnesses, the prosecution has denied the opportunity to the accused to make an attempt to elicit the truth in their cross examination.
AGE OF THE PROSECUTRIX
77. An important issue in dispute is the age of the prosecutrix. The prosecution has claimed her date of birth to be 21.03.1993 (as per the evidence of PW2 and PW3). PW18 had produced the school record of the prosecutrix to show that her date of birth is 21.03.2013 (admission form- Ex.PW18/A, MCD date of birth certificate-Ex.PW18/B, ration card- Ex.PW18/C and school leaving certificate-Ex.PW18/D).
78. The accused has claimed that she was above 18 years and was a major on the date of the alleged offence and they were together with the free consent of the prosecutrix and they had also got married voluntarily.
79. Here it would be relevant to consider the evidence of DW2 who has produced the birth register of Nazafgarh Zone year 1992. There is an entry bearing no. 829, bearing date 28.03.92, showing date of birth as 21.03.92, name of the child as Ms. Preeti Yadav daughter of Mr.Mahender Kumar Yadav and mother's name is Ms. Usha Yadav, place of birth as C
-34, Vishal Colony, Nangloi, the informant's name is Mr. Mahender Kumar Yadav. (Ex.DW2/1). It also contains the signature of Mr. Mahender Kumar Yadav. The birth certificate is issued as per the available record i.e. the birth register.
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80. In his cross examination by the Additional Public Prosecutor, he has deposed that he can say from his record that the date of birth of Ms. Preeti Yadav is 21.03.1992 and the date of 21.03.93 mentioned in Ex.PW18/B is wrong. He has admitted that there is no over writing in Ex.PW18/B in the date. The birth certificate is issued by the MCD.
81. Since the original record of the MCD has been produced, it would be appropriate that the same is taken into consideration and all the other records and the evidence are ignored. The information regarding the birth of the prosecutrix has been to the MCD by her father on 28.03.1992 immediately after her birth on 21.03.1992. There are some other entries of 28.03.1992 which indicate that there is no possibility of the record being tampered. Even otherwise, when this record was prepared as way back as on 28.03.1992, there is no question of the birth of the prosecutrix being on 21.03.1993 since it was after one year.
82. There is no reason shown why the parents of the prosecutrix, at the time of her birth, would furnish a wrong date of birth to the MCD for registration of her birth as it cannot be presumed that the parents could foresee that after many years their daughter would be a victim in a rape case in which her date of birth would be required.
83. Although the Additional Public Prosecutor has relied on the judgment reported as Aakash Juvenile through his father Malkhan Singh v. NCT of Delhi, 2013 (1) LRC 109 (Del) and has submitted that the school record should be given preference, but I am of the considered Sessions Case Number : 30 of 2013.
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opinion that when the MCD record is available there is no requirement of considering the school record which is on the basis of the information given by the parents.
84. The counsel for the accused has submitted that neither the school record nor the MCD record produced by DW2 should be considered as the date of birth of the prosecutrix is 1990 as mentioned in Ex.DW3/2 and Ex.DW3/3 by Mr.Dharampal father in law of the prosecutrix. However, this contention is not tenable as neither Mr.Dharampal has been examined by the accused nor any proof is shown that the prosecutrix was born in the year 1990.
85. Therefore, in view of the foregoing reasons, it is clear that the date of birth of the prosecutrix is 21.03.1992. The same would indicate that on 13.02.2009 (the date of first incident of rape), the prosecutrix was aged 17 years, one month and seven days. It also indicates that on 23.09.2009 (the date of marriage of the prosecutrix with the accused) the prosecutrix was aged 17 years, six months and two days. It also indicates that on 07.11.2009 (the date when the prosecutrix went missing) the prosecutrix was aged 17 years, eight months and fourteen days.
DEFENCE OF THE ACCUSED
86. The accused has claimed in his defence that he has been falsely implicated in this case. In his statement under section 313 of the Cr.P.C., recorded on 03.01.2013, the accused has claimed that the prosecutrix came Sessions Case Number : 30 of 2013.
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to be introduced with him in the month of July 2008 through a common friend Ms. Nisha and thereafter, prosecutrix became friend of one Ms. Kavita through her friend Ms. Nisha and started visiting the house of Ms. Kavita at Jaat Chowk, Nangloi, where he was staying on rent in a room for preparation of his competitive exams. During such visits of prosecutrix at the house of Ms. Kavita, they became more close and their friendship turned into a love affair and they had exchanged their telephone/mobile numbers and used to talk with each other. After falling in love with each other, they used to meet often and pass time together and roam to various places in Delhi. Thereafter, in June 2008, the prosecutrix had shown her willingness to marry with him and since he was also willing to marry with her, they both started to take advice for the marriage from known persons and they both were informed that they can get married in Arya Samaj Mandir and during this course they came across Arya Samaj Mandir, Nabi Karim to find the process of marriage and there they met the priest, who informed them that they both have to give affidavits of date of births and of being major, thereafter they had to filled up separate prescribed applications giving their respective details, on which date of marriage would be given, on which day marriage would be performed. After coming across the above process of marriage, he and the prosecutrix, got prepared their respective affidavits in June, 2009 itself. It is only during the preparation of her affidavit by the prosecutrix, he came across her exact year of birth i.e. 1991. Thereafter, he had to appear in certain competitive exams in the month of July and mid of August, they could not manage to visit Arya Samaj Mandir during this period and could visit only on 23.08.2009. Sessions Case Number : 30 of 2013.
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Thereafter, they visited to Arya Samaj Mandir, Nabi Karim on 23.09.2009 and they got married with each other, in the presence of three persons out of whom one Mr. Vinod was his friend and rest two were one Ms. Babita and Ms. Nisha, who were the friends of the prosecutrx. Thereafter, in November, 2009, the family of the prosecutrix came to know their marriage and they started pressurizing for hushing up of the marriage and even thereafter, some negotiations between his family and the family of prosecutrix had taken place, but due to his father being unable to fulfill their condition, the same failed and finally he had been falsely implicated in this case.
87. However, the accused has neither led any evidence in his defence to substantiate his claim nor even put any such suggestions to the prosecutrix and her parents to prove his defence and these facts indicate that he is putting up a false defence. The accused has only attempted unsuccessfully to mislead the Court.
88. The accused has also failed to show any motive or malafide intention on the part of the prosecutrix and her parents for implicating him in a false case. The accused failed to assign any malafide motive to PW4 that she would get him falsely implicated in a rape case. The defence of the accused does not appear to be probable.
MENS REA / MOTIVE
89. Regarding the motive of crime, it may be observed that in a Sessions Case Number : 30 of 2013.
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case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
90. The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unnameable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
91. In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate Sessions Case Number : 30 of 2013.
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him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
92. In the present case, a story has been projected that the accused has kidnapped and raped the prosecutrix and this version appears to be untrue as there is no reason why he would do so. There does not appear to be any criminal intention and mens rea on the part of the accused.
OFFENCE OF INTOXICATION, RAPE, KIDNAPPING AND THREAT
93. It is necessary to understand the relevant sections before considering whether or not the offence is proved to have been committed by the accused.
94. Section 375 of the IPC enumerates six circumstances wherein the sexual intercourse committed amounts to rape which read as under:
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First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of 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 whom 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 or 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.
95. Section 328 of the IPC is elaborated herein under as follows:
Causing hurt by means of poison, etc., with intent to commit an offence.-whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
96. Section 506 of the IPC is elaborated herein under as follows:
Punishment for criminal intimidation.-Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with both;
If threat be to cause death or grievous hurt, etc. - And ift he threat be to cause death or grievous hurt, or to cause the destruction of Sessions Case Number : 30 of 2013.
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any property by fire, or to cause an offence punishable with death or {imprisonment for life}, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
97. It is a case of heinous crime of rape, which caries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that the of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused and not merely dwell upon the shortcoming of defence.
98. If one integral part of the story put forth by witness was not believable, then the entire case fails. It is settled law that where witness makes two inconsistencies statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstance; no conviction can be based on the evidence of said witness. For these reasons, therefore, when learned Trial Judge disbelieved the evidence of prosecutrix and her father in regard to her father, it was not open to him to have convicted the appellant on the same evidence with respect to which suffered from some infirmity for which the said evidence was disbelieved.
99. As has been held by Apex Court in a catena of judgments that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the court must be Sessions Case Number : 30 of 2013.
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satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must be free of any blemish or suspicion, must impress the court as wholly truthful, and must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
STATEMENT AND EVIDENCE OF THE PROSECUTRIX
100. It is necessary to discuss and analyse the testimony of the most material witness i.e. PW1, the prosecutrix, as she has taken different stands in her statements.
101. In her evidence before the Court, the prosecutrix has deposed that that on 13.02.2009, she had gone to the tuition centre for getting her project made. The accused, Mr.Amit Kumar, who was a teacher in the tuition centre met her there. On this day, when she went to the tuition centre, the accused gave her a cold drink. After she drank the cold drink, she became unconscious. She found her clothes were not in order. When she asked the accused what happened, he told her kuch nahi hua chakkar aa gaye thay tum gir gayi thi apne ghar ja. After 02-03 days, the accused again called her to the tuition centre to give her the project. When she went Sessions Case Number : 30 of 2013.
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to the tuition centre to collect the project, he did not give it to her and told her that he had taken her photographs and video and that in case she did not obey him, he would show her photographs and video to others. He used to threaten her that he would get her brothers and sisters killed. He also threatened to throw acid on her. Due to the threat, whenever the accused called her, she used to go on his asking to meet him.
102. On 23.09.2009, he forcibly took her to Arya Samaj Mandir, Nabi Karim, Delhi and got married to her. He gave her age wrongly as being 19 years and he took her signatures on some papers for the purpose of the marriage. He showed her some weapon which looked like a bandook and made her pose for photographs of both of them exchanging garlands. He threatened her that in case she disclosed anything about the marriage or about the photographs and video made by him, he would release her photographs and videos to the press and put them on the internet.
103. On 07.11.2009, she went to Deep Book Depot, near her house where the accused met her and told her to accompany him to his tuition centre which he had opened in Ashok Mohalla. He took her to his tuition centre and did not allow her to come back home. On the next day, her father, mama (maternal uncle) and brother went to the house of the accused and his father called him on his mobile on which the accused took her to Rohtak Road where her father, brother and mama were present. On the asking of her mama, the accused left her. She came back home with her brother, mama and father. After few days, the accused started sending the Sessions Case Number : 30 of 2013.
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copies of the photographs of the marriage in an envelope to her neighbours. He sent a complaint on her behalf to the police which did not bear her signatures. He got copies of the complaint and photographs of the marriage circulated in her village and to the media. Her brother, mama and father went to the accused and got his signatures on an affidavit wherein he stated that the marriage between her and him was illegal.
104. She lodged her hand written complaint in the Police Station (Ex.PW1/A). She was taken for her medical examination to Sanjay Gandhi Memorial Hospital where she was examined vide MLC. She had given her consent for the examination. Her clothes (Ex.P1 collectively) were seized. Her statement (Ex.PW1/B) was recorded by the Magistrate. She never went to get the accused arrested. Three photographs (Ex.P1/C) showing her photo with the accused.
105. On 13.02.2009, she had gone to the tuition centre of accused at Jaat Chowk at Nangloi. After giving cold drink to her, when she became unconscious, the accused raped her. After 2-3 days the accused again called her at his tuition centre to give the project and there he had shown her obscene photographs and video which he had taken on earlier occasion. During the period of 13.02.2009 to 07.11.2009, the accused had physical relations/raped her four- five times. At one time, the accused had shown her the pistol. On 23.09.2009, he forcibly got married with her and on that day her age was 16 years and 6 months. The complaint addressed to SHO PS Nangloi (Mark X) was filed her. She has identified the three Sessions Case Number : 30 of 2013.
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photographs on the record (Ex. P1/C colly) showing her photo with the accused. She has identified one printed lady's shirt, one printed salwar, one brassier and one underwear all having cuts (Ex.P1 collectively). She has been cross examined at length on behalf of the accused.
106. In her complaint, Ex.PW1/A, the prosecutrix has stated that when on 13.02.2009, she had gone to the Tution Centre of the accused, he had given her a laced cold drink and after consuming the same, she lost consciousness. When she regained consciousness, she found that her clothes were not in order and she came to know had been raped by the accused. He told her that she had fallen down and she should go home. She did not tell anyone out of fear. When she went to the tuition centre to collect the project, he did not give it to her and told her that he had taken her objectionable photographs and that in case she did not obey him, he would show her photographs and video to others and put them on internet. He forcibly established physical relations with her and to avoid being defamed, she obeyed him. One day he showed her a small mouser saying that anyone can die from its bullet. On 23.09.2009, he forcibly took her to Arya Samaj Mandir, Nabi Karim, Delhi and told her date of birth as 21.08.1991 when she was aged 16 years and six months. He got married to her and a certificate of their marriage was issued by the Pandit. One boy and one girl, whom she did not know, were also there. On 07.11.2009, she went to Deep Book Depot to buy a book and the accused forcibly brought her on his motorcycle to the Tution Centre. He told her that now they are married and they will go far away and not return. On the next day, her father and mama Sessions Case Number : 30 of 2013.
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(maternal uncle) caught the accused and brought her back. Her family went to the house of the accused where he apologized for marrying a minor girl and that the marriage was not valid and that he will not trouble them in future. He is still following her and has thrown the certificate and photographs in her house. When she phoned him and confronted him, he threatened to kill her.
107. In her statement under section 164 of the Cr.P.C., Ex.PW1/B, she has deposed that the accused was tenant in the house of her friend and running a Tution Centre. On 12.02.2009, she had gone to the Tuition Centre of the accused for getting a project made. He had called her on the next day. On the next day, he had given her a laced cold drink and after consuming the same, she lost consciousness. When she regained consciousness, she found that her clothes were not in order and she felt that she had been raped by the accused. He told her to go home and collect the project later. When she went to collect the project, he told her that he had taken her objectionable recording and photographs with the phone which he showed her and threatened her that in case she did not have physical relations with him, he would circulate them. Out of fear, she obeyed him. He also showed her a pistol and threatened her to marry him. On 23.09.2009, at Arya Samaj Mandir, Nabi Karim, Delhi, he got a marriage certificate prepared telling her wrong age. On 07.11.2009, she went to Deep Book Depot to buy a book and the accused forcibly brought her on his motorcycle to the Tution Centre under threat and did not let her go home. On the next day, her father and other relatives caught the accused and Sessions Case Number : 30 of 2013.
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brought her back. He is still threatening her on phone and has circulated copies of marriage certificate and photographs of marriage at several places. Her age at the time of marriage was 16 years and six months.
108. The version regarding the accused giving a stupefied cold drink to the prosecutrix and her loosing consciousness does not appear probable and plausible as neither any intoxicant has been recovered from the accused nor there is any medical or corroborative evidence.
109. It may be mentioned here that the hon'ble Delhi High Court in the case reported as Santosh Kumar v. State, 2008 (4) JCC 2919 has observed that no conviction can simply be on the basis of the statement of the witness that he became unconscious because of eating the biscuit or drinking tea offered to him by the accused as there had to be medical evidence to the effect that the victim had become unconscious because of consuming any drug or intoxicative substance etc. mixed with tea or biscuit. No such substance had been recovered from the accused.
110. It is apparently clear from the different statements of the prosecutrix that she is giving different versions of the incident. Some of the major contradictions and discrepancies are being tabulated below.
Complaint- Statement under Evidence before the
Ex.PW1/A section 164 of the Court
Cr.P.C.-Ex.PW1/B
No such deposition. On 12.02.2009, she No such deposition.
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had gone to the Tution
Centre of the accused
for getting a project
made and he had
called her on the next
day.
On 13.02.2009, she On 13.02.2009, he had On 13.02.2009, she
had gone to the given her a laced cold had gone to the tuition
Tution Centre of the drink and after centre for getting her
accused, he had given consuming the same, project made. The
her a laced cold drink she lost consciousness. accused, Mr.Amit
and after consuming When she regained Kumar, who was a
the same, she lost consciousness, she teacher in the tuition
consciousness. When found that her clothes centre met her there.
she regained were not in order and On this day, when she
consciousness, she she felt that she had went to the tuition
found that her clothes been raped by the centre, the accused
were not in order and accused. He told her gave her a cold drink.
she came to know had to go home and collect After she drank the
been raped by the the project later. cold drink, she became
accused. He told her unconscious. She
that she had fallen found her clothes were
down and she should not in order. When
go home. She did not she asked the accused
tell anyone out of what happened, he
fear. told her kuch nahi hua
chakkar aa gaye thay
tum gir gayi thi apne
ghar ja. After 02-03
days, the accused
again called her to the
tuition centre to give
her the project.
When she went to the When she went to After 02-03 days, the
tuition centre to collect the project, he accused again called
collect the project, he told her that he had her to the tuition
did not give it to her taken her objectionable centre to give her the
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and told her that he recording and project. When she
had taken her photographs with the went to the tuition
objectionable phone which he centre to collect the
photographs and that showed her and project, he did not
in case she did not threatened her that in give it to her and told
obey him, he would case she did not have her that he had taken
show her photographs physical relations with her photographs and
and video to others him, he would circulate video and that in case
and put them on them. Out of fear, she she did not obey him,
internet. He forcibly obeyed him. he would show her
established physical photographs and video
relations with her and to others. He used to
to avoid being threaten her that he
defamed, she obeyed would get her brothers
him. One day he and sisters killed. He
showed her a small also threatened to
mouser saying that throw acid on her.
anyone can die from Due to the threat,
its bullet. whenever the accused
called her, she used to
go on his asking to
meet him.
On 23.09.2009, he On 23.09.2009, at Arya On 23.09.2009, he
forcibly took her to Samaj Mandir, Nabi forcibly took her to
Arya Samaj Mandir, Karim, Delhi, he got a Arya Samaj Mandir,
Nabi Karim, Delhi marriage certificate Nabi Karim, Delhi
and told her date of prepared telling her and got married to
birth as 21.08.1991 wrong age. her. He gave her age
when she was aged 16 wrongly as being 19
years and six months. years and he took her
He got married to her signatures on some
and a certificate of papers for the purpose
their marriage was of the marriage. He
issued by the Pandit. showed her some
One boy and one girl, weapon which looked
whom she did not like a bandook and
know, were also made her pose for
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there. photographs of both of
them exchanging
garlands. He
threatened her that in
case she disclosed
anything about the
marriage or about the
photographs and video
made by him, he
would release her
photographs and
videos to the press and
put them on the
internet.
On 07.11.2009, she On 07.11.2009, she On 07.11.2009, she
went to Deep Book went to Deep Book went to Deep Book
Depot to buy a book Depot to buy a book Depot, near her house
and the accused and the accused where the accused met
forcibly brought her forcibly brought her on her and told her to
on his motorcycle to his motorcycle to the accompany him to his
the Tution Centre. He Tution Centre under tuition centre which he
told her that now they threat and did not let had opened in Ashok
are married and they her go home. Mohalla. He took her
will go far away and to his tuition centre
not return. and did not allow her
to come back home.
On the next day, her On the next day, her On the next day, her
father and mama father and other father, mama
(maternal uncle) relatives caught the (maternal uncle) and
caught the accused accused and brought brother went to the
and brought her back. her back. house of the accused
and his father called
him on his mobile on
which the accused
took her to Rohtak
Road where her
father, brother and
Sessions Case Number : 30 of 2013.
Unique Case ID Number : 02401R0376522010
FIR No. 106/2010, Police Station Nangloi
Under sections 363/366/376/506 of the Indian Penal Code.
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mama were present.
On the asking of her
mama, the accused left
her. She came back
home with her brother,
mama and father.
He is still threatening He is still following her After few days, the
her on phone and has and has thrown the accused started
circulated copies of certificate and sending the copies of
marriage certificate photographs in her the photographs of the
and photographs of house. When she marriage in an
marriage at several phoned him and envelope to her
places. confronted him, he neighbours. He sent a
threatened to kill her. complaint on her
behalf to the police
which did not bear her
signatures. He got
copies of the
complaint and
photographs of the
marriage circulated in
her village and to the
media.
No such deposition. No such deposition Her brother, mama
and father went to the
accused and got his
signatures on an
affidavit wherein he
stated that the
marriage between her
and him was illegal.
111. As regards the incident of 13.02.2009, the prosecutrix has narrated it differently in her three statements. In fact, in her statement under section 164 of the Cr.P.C., she has introduced a new date of 12.02.2009. It Sessions Case Number : 30 of 2013.
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is not a case of lapse of time or confusion as she states that she had gone again on the next day. This fact itself throws a doubt on the version of the prosecution.
112. Then the narration regarding her loosing consciousness after consuming the laced cold drink and after regarding consciousness is also differently put. In Ex.PW1/A, she states that she found that her clothes were not in order and she came to know had been raped by the accused. In Ex.PW1/B, she states that she found that her clothes were not in order and she felt that she had been raped by the accused. In her evidence, she does not say anything about the rape. This is a material contradiction which strikes at the root of the prosecution case and is a blemish to fatal to be ignored.
113. The prosecutrix has claimed that the accused had threatened and established physical relations with her. Had there been any threat, it would have been only for a particular time and not for an indefinite period. She was living in a residential area with her family, going to school, going to the market, visiting her relatives, attending marriage of her cousin (as born out of her evidence) and could have taken there help if there was any threat or she needed help.
114. However, the effect of the alleged threat, has not been disclosed anywhere. Neither the words used nor the impact of the threat have been furnished by the prosecution. Merely making a bald allegation that she was Sessions Case Number : 30 of 2013.
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threatened does not suffice for convicting the accused as she remained in his association for a very long time w.e.f. 13.02.2009 to 07.11.2009 and there was no reason why she could not have disclosed about the alleged threat to the family, police, friends, teachers, relatives others with whom she had come in contact with. The fact that she chose to remain silent, only shows that there was no danger nor any threat. There should be some positive corroborating evidence. Her conduct, on the other hand, shows that she herself was in the company of the accused with her consent.
115. Also, when it has been observed that neither any intoxicating substance was administered to her nor she was raped, the question of her being threatened also does not arise.
116. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances Sessions Case Number : 30 of 2013.
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along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
117. If one integral part of the story put forth by a witness- prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
118. It is clear that the prosecutrix had willfully remained with the accused and had physical relationship with him being a consenting party.
119. Consequently, no inference can be drawn that the accused is guilty of the charged offence under sections 328, 376 and 506 of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence. There is no material on record that the prosecutrix was forced by the accused.
120. In another case reported as Kali Ram Vs. State of Himachal Sessions Case Number : 30 of 2013.
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Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
121. This brings me to the final question as to whether it was she was intoxicated, raped and threatened by the accused. In this regard it is no doubt true that in her statement before this Court she has stated that she had been taken away by the accused after he administered some intoxicating substance in cold drink to her but there are several contradictions in her different statements which remain unexplained and indicate that she was with the accused voluntarily and without any threat, pressure, influence or coercion and had physical relations with him.
122. It may be observed here that consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind of a person to permit the doing of an act complained off. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after having freely exercised a choice between resistance and assent.
123. In the judgment reported as Namdeo Daulata Dhayagude and Sessions Case Number : 30 of 2013.
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others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
124. In the judgment reported as Suraj Mal v. The State (Delhi Administration) AIR 1979, SC 1408, it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
125. In the judgment reported as Devu Samal v. The State, 2012 (2) JCC 1039, it was held that the contradictory testimony of the prosecutrix not supported by the FSL report makes it a fit case of grant of benefit of doubt to the petitioner.
126. Regarding the marriage of the prosecutrix with the accused, it may be mentioned here that PW 16 Dr.Rishi Pal Shastri who has performed the marriage has categorically deposed that the marriage was performed with the consent of both the parties. He made enquiry from the girl before performing marriage and she was happy. He issued a marriage certificate of Sessions Case Number : 30 of 2013.
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Mr.Amit Kumar (accused) with the prosecutrix. (Ex. PW16/A) He had brought the two applications on the prescribed proforma dated 23.08.2009 (Ex. PW16/B and C) moved by the prosecutrix and Mr.Amit Kumar and the affidavits of the prosecutrix and Mr.Amit Kumar (Ex. PW16/D and E) as well as the marriage register (Ex. PW16/F) and the portion from point A to A has been written by the prosecutrix in her hand writing and the counter foil of the marriage certificate to the Court (Ex. PW16/G) which is signed by the two witnesses as well as the accused and prosecutrix. The application forms are submitted by the parties who are to marry atleast one month prior to the marriage being performed and the tentative date of marriage is also mentioned in the application forms. It is essential that the parties who are seeking to be married fill the forms personally. Even in the present matter, the application forms Ex. PW16/B and C have been filled by the accused and the prosecutrix. These facts shows that the prosecutrix had actively participated in giving effect to the marriage.
127. Further PW13 Mr.Vinod Kumar, a witness to the marriage has deposed that accused had love affair with one girl, the prosecutrix. The prosecutrix was happy in getting marriage with accused. The marriage of accused was performed with the prosecutrix by the Priest of the temple. The photographs were also clicked of their marriage. Small party was also organized in the temple. He was not cross examined by the prosecution on his deposition that the prosecutrix was happy in getting married to the accused.
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128. PW15, Ms.Namita Yadav, cousin of the prosecutrix, has deposed that the prosecutrix had told her that accused Mr.Amit is her boy friend when she had come to attend her marriage. Accused Amit had also attended her marriage and the prosecutrix had shown her the accused when she had come on the dias to meet her. In her cross examination by the Additional Public Prosecutor, she has deposed that the prosecutrix, while going to her school passing from there and used to take away her mobile phone for talking with accused. In her cross examination on behalf of the accused, she has deposed that since beginning, the prosecutrix was telling her that she would marry the accused. However, she did not know when they got married.
129. It is clear from the evidence of PWs 16, 13 and 15 that the prosecutrix is not telling the truth about her marriage. It appears that she willingly accompanied the accused and got married to him. She was neither threatened nor forced nor enticed into marriage with the accused.
130. In the light of the aforesaid nature of deposition of the prosecutrix, PW5, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and reliable. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence Sessions Case Number : 30 of 2013.
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and in the absence of special circumstances no conviction can be based on the evidence of such witness."
131. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases
487.
132. Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material points with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
133. If one integral part of the story put forth by a witness- Sessions Case Number : 30 of 2013.
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prosecutrix was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
134. It is cleat that the prosecutrix had willfully accompanied the accused and was a consenting party. Consequently, no inference can be drawn that the accused is guilty of the charged offence under section 328, 366, 376 and 506 of the IPC as the prosecutrix has made inconsistent statements due to which her testimony becomes unreliable and unworthy of credence.
135. There is no explanation coming from the prosecution in respect of the contradictions, as tabulated above. They are too major to be ignored and strike at the very root of the case making it doubtful as these blemishes are fatal. The possibility of the false implication of the accused cannot be ruled out due to the prosecutrix giving different versions of the alleged incident and the contradictions in the evidence of the prosecutrix and her parents.
136. Although the prosecutrix as PW1 has deposed that she was raped by the accused several times, but her evidence appears to be Sessions Case Number : 30 of 2013.
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unreliable, as already discussed above. Also there are overwhelming contradictions in her different statements, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused person. The prosecution story does not inspire confidence and is not worthy of credence.
137. All the above facts and the ration of the above referred judgments indicate that there is no veracity in the prosecution case in respect of the offences of intoxication, rape and threat and the accused merits to be acquitted for the offence under sections 328, 366, 376 and 506 of the IPC.
PUBLIC WITNESSES HOSTILE, DROPPED NOT CITED
138. The public witness, PWs 16, 13 and 11, who although are the witnesses of the prosecution but they have not supported the case of the prosecution, as elaborated above. Their evidence gives a fatal blow to the prosecution case.
SECTION 363 OF THE IPC
139. In the present case, the charge was framed under sections 363, 328, 366, 376 and 506 of the IPC. As mentioned above, the accused merits to be acquitted for the offence under sections 328, 366, 376 and 506 of the IPC.
140. For proving the offence under section 363 IPC, the first and Sessions Case Number : 30 of 2013.
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foremost requirement of the prosecution is to prove that the prosecutrix was a minor on the date of the commission of the offence.
141. Therefore, as discussed above, it can be said that the age of the prosecutrix was below 18 years which makes her a minor.
142. The hon'ble Delhi High Court in Vivek Kumar @ Sanju and another v. The State and another Crl. M.C. No. 3073-74/2006 decided on 23.2.2007 took similar view. Following observations in that judgment are of some interest:
"There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with some body is an offence under IPR or any other penal law. Desiring to marry her love is also not an offence. A young girl who is in love has two courses available to her one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade them or to wait for attaining the age of majority and then exercise her right as a major to marry the person of her own choice. However, this is possible only when the house of her parents where she is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. This might have been the reason in the mind of petitioner No.2 when she told her father that she was in love and wanted to marry Sanju, but the response of father when daughter confided in him, created the fear in the mind of petitioner no.2 Her father slapped her and told that her action would malign the religion and bring danger to the religion. He, even threatened to kill her and marry her off to some rich person. When once such a threat is given to a girl around 17 years of age, who is in love, under such circumstances she has a right to protect her person and feelings against such onslaught of her relatives even if the onslaught is from her own parents. Right to Sessions Case Number : 30 of 2013.
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life and liberty as guaranteed by the Constitution is equally available to minors. A father has no right to forcibly marry off his daughter, who is below 18 years against her wishes. Neither he has right to kill her, because she intends to marry out of her religion. If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence either on the part of the girl or on the part of boy with whom she ran away and married.."
143. Similarly in Bhagwan Singh Ors. v. State & Anr. 2006 (3) JCC 2050, the High Court of Delhi had quashed the proceedings. In this case, the following portion from the judgment of S. Vardarajan v. State of Madras, 1965 SCR (1) 243 was quoted. I am privileged to quote the same as below:-
"But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have 'taken' her out of the keeping of her lawful guardianship, that is, the father. The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She Sessions Case Number : 30 of 2013.
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has willingly accompanies him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him.."
144. In the present case also, there is little material on record that the prosecutrix was taken or enticed or allured or forced by the accused. There is also little material on record to show that accused deceitfully took away the prosecutrix. However, it is also clear that the prosecutrix, a minor, was with the accused and was recovered at his instance.
145. Proof of such intention is vital for the purposes of sections 363 and 376 IPC as pointed out by the Supreme Court in Faiyaz Ahmad v. State of Bihar, 1990 Cr.L.J. 2241 (SC). If a girl leaves the house of her parents of her own and is an adult, and accompanies a person to various places, no offence is committed under this section or any other section. Reliance can be placed upon the judgment reported as Om Parkash v. State of Haryana, 1988 Cr.L.J. 1606 (P&H).
146. In another case reported as Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, in para 25 it was observed by Hon'ble Supreme Court of India as under:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted......"
147. In her examination in chief the prosecutrix has deposed that the Sessions Case Number : 30 of 2013.
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father, maternal uncle and brother went to the house of accused, where the father of accused Amit called him on his mobile and accused Amit took her to Rohtalk Road, where he left her at the instance of her maternal uncle and she returned home with them.
148. PW2 has deposed that he along with his relative and father of the accused went in search of accused and they saw him in a motorcycle at Railway crossing/Phatak, Nizam Pur and on their pressurizing made a call to his daughter and called her at Nangloi Market. When they reach Nangloi Market his daughter was found present and he along with his relative brought his daughter to the house. Although there is a contradiction whether or not the accused brought the prosecutrix to Rohtak Road from where she was left with her relatives by the accused and whether on the telephone by the accused the prosecutrix had reached the Nangloi Market, but the fact which emerges is that she indeed was with him and under his control and away from custody of her parents. Contradictions regarding manner in which the prosecutrix was recovered is too minor and can be ignored as it is the factum of the recovery of the prosecutrix from the custody of accused, which is more relevant and important.
149. This brings me to the final question as to whether it was she who had gone of her own or had been enticed away by the accused. In this regard it is no doubt true that it emerges from the record that the prosecutrix had been taken away by the accused and was kidnapped by him. She was below 18 years of age at that time. (Her date of birth has been held above to Sessions Case Number : 30 of 2013.
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be 21.03.1992. The same would indicate that on 13.02.2009 (the date of first incident of rape), the prosecutrix was aged 17 years, one month and seven days. It also indicates that on 23.09.2009 (the date of marriage of the prosecutrix with the accused) the prosecutrix was aged 17 years, six months and two days. It also indicates that on 07.11.2009 (the date when the prosecutrix went missing) the prosecutrix was aged 17 years, eight months and fourteen days)
150. Here, I would like to incorporate the observations made by the Hon'ble Supreme Court in S.Vedarajan v. State of Madras AIR 1965 SC
942. In para 9 of the judgment it was observed as under:-
"It must, however, be borne in mind that there is a distinction between taking and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S.361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused persons. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.."
151. It can be assessed from the evidence of the prosecutrix, a minor, that she had gone with her free will and consent with the accused as she did Sessions Case Number : 30 of 2013.
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not raise any alarm anywhere nor asked for help nor told anyone at any point of time that she had been kidnapped or raped. As the prosecutrix was a minor at the time of the alleged offence under section 363 of the IPC, her going herself with the accused becomes immaterial.
152. Accordingly, the accused is liable to be convicted for having committed offence under section 363 of the IPC.
CONCLUSION
153. Since the prosecutrix as PW1 have not deposed anything incriminating against the accused in respect of the offence under sections 328, 366, 376 and 506 of the IPC as there are overwhelming contradictions and serious unexplained inconsistencies in her different statements, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused under sections 328, 366, 376 and 506 of the IPC and the prosecution story in this regard does not inspire confidence and is not worthy of credence.
154. Where the prosecutrix had sufficient opportunity not only to run away from the accused but she could have taken the help of the her family, teachers, friends, relatives and others with whom she was in touch and medical evidence also indicated that there were no injuries on the person of the prosecutrix and there is no corroborative forensic evidence, it can be said that the offence under sections 328, 366, 376 and 506 of the IPC were not committed.
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155. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy regarding the veracity of the prosecution case and the prosecution has failed to establish administration of intoxicant, rape, enticing for marriage or threat by the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place.
156. However, the charge for the offence under section 363 of the IPC has been successfully proved by the prosecution against the accused that he had kidnapped the minor prosecutrix.
157. In the case of Sharad Birdhichand Sarda v. 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 onlywith 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;
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 Sessions Case Number : 30 of 2013.
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of the accused and must show that in all human probability the act must have been done by the accused.
158. Applying the above principles of law to the facts of present case, it is evident that the identity of the accused Mr.Amit Kumar stands established. He was known to the prosecutrix even prior to the incident. It also stands established that the prosecutrix was a minor at the time of the alleged incident. It also stands established that the accused had not raped her as there is no incriminating evidence against the accused. It also stands proved that the minor prosecutrix was taken out of the custody of her parents by the accused and she was recovered from his custody.
159. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish rape. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident of rape ever took place. Therefore, there is no force is the contention of the Additional Public Prosecutor that the prosecutrix was intoxicated, raped, enticed for marriage or threatened.
160. Also, from the foregoing discussion, it is clear that as the prosecutrix was a minor at the time of the alleged offence under section 363 of the IPC, her going herself with the accused becomes immaterial and the accused is liable to be convicted for having committed offence under Sessions Case Number : 30 of 2013.
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section 363 of the IPC.
161. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused for the offence under sections 328, 366, 376 and 506 of the IPC and the prosecution has successfully brought home the charge against the accused for the offence under section 363 of the IPC.
162. Accordingly, Mr.Amit Kumar, the accused, is hereby acquitted of the charge under sections 328, 366, 376 and 506 of the IPC and convicted for the offence under section 363 of the IPC.
163. It would not be out of place to mention here that today there is so much public outrage and a hue and cry being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is unreliable and untrustworthy, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
164. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
Sessions Case Number : 30 of 2013.
Unique Case ID Number : 02401R0376522010 FIR No. 106/2010, Police Station Nangloi Under sections 363/366/376/506 of the Indian Penal Code.
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165. Let the accused now convicted for having committed offence under section 363 of the IPC be heard on the quantum of sentence to be awarded to him.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 23rd day of May, 2013. Additional Sessions Judge, (Special Fast Track Court) -01, West, Tis Hazari Courts, Delhi.
******************************************************************** Sessions Case Number : 30 of 2013.
Unique Case ID Number : 02401R0376522010 FIR No. 106/2010, Police Station Nangloi Under sections 363/366/376/506 of the Indian Penal Code.
State versus Amit Kumar. -:: Page 75 of 81 ::- -:: 76 ::- IN THE COURT OF MS. NIVEDITA ANIL SHARMA, ADDITIONAL SESSIONS JUDGE (SPECIAL FAST TRACK COURT)-01, WEST, TIS HAZARI COURTS, DELHI Sessions Case Number : 30 of 2013. Unique Case ID Number : 02401R0376522010. State versus Mr.Amit Kumar Son of Mr.Sant Kumar Resident of Village Nizampur, Delhi.
First Information Report Number : 106/2010.
Police Station Nangloi Under sections 363/366/376/506 of the Indian Penal Code.
Date of filing of the charge sheet before : 23.08.2010. the Court of the Metropolitan Magistrate Date of receipt of file after committal : 23.9.2010. in the Sessions Court Date of transfer of the file to this Court : 08.01.2013. ASJ (SFTC)-01, West, THC, Delhi.
Date of judgment : 23.05.2013. Arguments on sentence concluded on : 23.05.2013. Date of order on sentence : 23.05.2013
Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the State.
Convict in judicial custody.
Mr. Sachidanand Chaturvedi, counsel for the convict. ************************************************************ Sessions Case Number : 30 of 2013.
Unique Case ID Number : 02401R0376522010 FIR No. 106/2010, Police Station Nangloi Under sections 363/366/376/506 of the Indian Penal Code.
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ORDER ON SENTENCE
1. In pursuance of judgment dated 23.05.2013 as passed by this Court convicting the accused namely Mr.Amit Kumar for offence punishable under section 363 of the Indian Penal Code (hereinafter referred to as the IPC), I have heard the Additional Public Prosecutor for the State as well as the convict and the counsel for the convict on the point of quantum of sentence to be awarded to the convict and also perused the case record.
2. The Additional Public Prosecutor for the State has requested for the maximum sentence to be imposed upon the convict submitting that he does not deserve any leniency keeping in view the offence committed by him.
3. The convict and his counsel, on the other hand, have requested for a lenient view to be taken against him and for his release on probation as the convict hails from a modest family. He is an unmarried young man, aged about 31 years. He was not working and appearing in competitive examinations. His family comprises of his parents, brother and sister. He was in custody w.e.f. 01.04.2010 to 12.05.2010. He is a first offender and has never committed any offence earlier. It is also assured that he shall not commit any offence in future.
4. Considering the aforesaid submissions from both the sides, the family circumstances of the convict and perusing the case record, I consider Sessions Case Number : 30 of 2013.
Unique Case ID Number : 02401R0376522010 FIR No. 106/2010, Police Station Nangloi Under sections 363/366/376/506 of the Indian Penal Code.
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it proper to award a substantive sentence upon the convict. The
prosecutrix, a minor, has been taken away from the custody of her parents by the convict.
5. Keeping in view the offence committed by the convict, I am not inclined to take a lenient view against him and release him on probation. He has kidnapped a minor girl who was vulnerable and an easy prey. I am of the considered opinion that the convict should be awarded a substantive, stern and firm sentence because he has kidnapped the prosecutrix.
6. The object of sentence should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The welfare and interest of other women in the society also needs to be protected for the reason that if the convict is released, they may be subjected by him in a similar offence with them.
7. In AIR 2000, Supreme Court, 1470, the Supreme Court held has under:
Socio-economic, status, religion, race caste or creed o the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object Sessions Case Number : 30 of 2013.
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of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.
8. In the present case, the convict has kidnapped a minor girl taking advantage of a helpless and defenceless vulnerable prey.
9. Recently, crime against women generally and rape in particular is on the increase and the society also appears to be concerned for the honour of women. In this backdrop, this Court is required to treat the issue with more sensitivity. The object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent. The offences against women are on a rise and there is an urgent need to curb this tendency by awarding deterrent punishment to perpetrators of this grave offence.
10. Therefore, considering these aggravating facts, I hereby sentence Mr.Amit Kumar, the convict for offence under section 363 of the IPC to simple imprisonment for the period already undergone by him in custody during the investigation and trial w.e.f 01.04.2010 to 12.05.2010 and a fine in the sum of Rs.5,000/- in default of payment of which, he shall undergo simple imprisonment for a period of one year.
11. The fine has been deposited by the convict vide receipt number 000991405 dated 23.05.2013 today in the Court. The entire amount of fine Sessions Case Number : 30 of 2013.
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is awarded to the prosecutrix as compensation for the benefit of the prosecutrix. A separate file be prepared regarding issuing notice to the prosecutrix for 06.06.2013 by ordinary process and through the IO to appear to collect the fine amount as compensation.
12. Benefit of section 428 of the Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules.
13. The convict is 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, he 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.
14. A copy of the judgment dated 23.05.2013 and a copy of the or- der on sentence dated 23.05.2013, duly attested, besides the complete set of copy of the entire relevant case record on CD, in compliance of directions of the High Court, be given to the convict, namely, Mr.Amit Kumar, free of cost immediately.
Sessions Case Number : 30 of 2013.
Unique Case ID Number : 02401R0376522010 FIR No. 106/2010, Police Station Nangloi Under sections 363/366/376/506 of the Indian Penal Code.
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15. A copy of the judgment dated 23.05.2013 and a copy of the or- der on sentence dated 23.05.2013 also be given to the Additional Public Prosecutor, as requested.
16. After completion of the formalities and expiry of the period of limitation, the ahlmad is directed to consign the file to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 23rd day of May, 2013. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.
************************************************************ Sessions Case Number : 30 of 2013.
Unique Case ID Number : 02401R0376522010 FIR No. 106/2010, Police Station Nangloi Under sections 363/366/376/506 of the Indian Penal Code.
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