Delhi District Court
State vs . Satender Chauhan on 9 December, 2013
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 37/12)
Unique ID case No. 02404R0109302012
State Vs. Satender Chauhan
FIR No. : 259/2011
U/s : 363/366/376 IPC
P.S. : Mahendra Park
State Vs. Satender Chauhan
s/o Ram Ashish Chauhan
r/o Village Sariya, Post Jigar Sandi,
PS Jahana Ganj,
Distt. Azam Garh, UP
Date of institution of case 25.05.2012
Date on which, judgment has been reserved 06.12.2013
Date of pronouncement of judgment - 06.12.2013
JUDGMENT:
1. Case of the prosecution is that on 13.11.2011, Ram Kumar,father of the prosecutrix came to Police Station Mahendra Park and gave his statement to ASI Vir Pal Singh, wherein he stated that he along with his family members used to reside at A409, Jahangir Puri, Delhi and that on 10.11.2011, at about 11.00 am, his daughter i.e. prosecutrix P, aged about 13 years, went to a shop to bring some articles, but did not return and despite search by him, no clue was found about his daughter. He expressed SC No. 37/12 State Vs. Satender Chauhan Page Nos. 1 of 40 2 suspicion that some unknown person had taken his daughter after alluring her and prayed that his daughter be searched for and proper action be taken. On the basis of this complaint, case FIR No. 259/11 u/s. 363 IPC was registered at P.S. Mahendra Park and investigations of the present case was marked to PW9 ASI Veer Pal Singh.
2. During the course of investigations, prosecutrix, who herself came to her house, was produced by complainant before PW9 ASI Veer Pal Singh and she was got medically examined. The statement of prosecutrix was got recorded u/s.164 CrPC. Later on, the accused was also apprehended and arrested. The case property was sent to FSL. After completion of the investigation and recording of statement of witnesses, the charge sheet was prepared and filed in the court for trial.
3. Upon committal of this case to the court of Sessions, charges for the offence under Sections 363/365/366/376 IPC were framed against the accused Satender Chauhan, however, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
4. In order to prove its case, prosecution has examined 15 witnesses :
5. The PW2 is the prosecutrix in the present case. Her testimony shall be discussed at length in the following paragraphs of the judgment.
6. The PW5, Sh. Ram Kumar, is the father of the prosecutrix. He deposed that he, along with his wife and three children i.e. two daughters and one son, were residing SC No. 37/12 State Vs. Satender Chauhan Page Nos. 2 of 40 3 at A409, Jahangir Puri in the year 2011 and that the prosecutrix, whose date of birth is 18.10.1998, was his elder daughter. He further stated that on 10.11.2011, his daughter/prosecutrix, aged about 13 years, went to market to purchase the household articles, but did not return back to home. The PW5 made search of child P and despite searching for her at her friends' house, he could not trace her, he went to PS Mahendra Park on 13.11.2011 and got recorded his statement Ex. PW5/A. He further stated that after about seven days i.e. on 20.11.2011, his daughter/prosecutrix made a call on his mobile and that the said call was attended by his wife, who further handed over the said phone to her landlady, who told the prosecutrix that PW5 had suffered with heartattack and that on 21.11.2011, prosecutrix came to his house and thereafter prosecutrix was produced before the IO on 22.11.2011. He further stated that after recording of the statement of the prosecutrix by the IO, prosecutrix/his daughter was taken to Babu Jagjeevan Ram Hospital for her medical examination and after that, she was produced before Ld. M.M who sent her to Nirmal Chaya and that later on, his daughter was produced before ld. M.M for recording of her statement and thereafter custody of his daughter was handed over to him (PW5).
The PW5 further deposed that after about 1 or 11/2 months, when he was going to Metro Station Jahangir Puri, at about 12.00/12.30 noon, he noticed accused Satender standing at red light, near Metro Station, Jahangir Puri and that he overpowered the accused and took him to the PS Mahendra Park and produced him before the IO ASI Veerpal. He deposed that the accused was arrested vide arrest memo Ex. PW2/C and his personal search was taken vide memo Ex. PW2/D. He further stated that thereafter, he along with ASI Veerpal and accused went to the house of the accused at Sarai Peepal Thala i.e. house of Rajeev and from where, accused got SC No. 37/12 State Vs. Satender Chauhan Page Nos. 3 of 40 4 recovered clothes of daughter of PW5, which were worn by her at the time of going to the market, and that the said clothes were kept in a pullanda, which was sealed by the IO. He further stated that her daughter/prosecutrix P also came there with woman constable at the time of recovery of the said clothes. The witness duly identified clothes of P i.e. one lady's shirt with pink and white flower design, one salwar of the same material and design and one chunni of dark pink colour as Ex. P1 to P3 and stated that they were the same clothes, which were recovered by the police from the room of the accused.
During crossexamination, PW5 stated that his marriage had taken place in the year 1992, but he showed his lack of knowledge about his age at the time of his marriage and about the year, when his first child was born after marriage. However, the witness stated that the age difference between his children was 21/2 years and his youngest child was aged about six years. He further stated that he got admitted his daughter/prosecutrix in MCD School, when she was aged about 41/2 to 5 years, but he showed his lack of knowledge about the year of her admission. He further stated that he had not submitted any document regarding the age of his children at the time of their admission and had told the same orally only. He further stated that earlier, accused used to reside in the same rented accommodation, in which, he used to reside. The witness specifically denied that his daughter used to love the accused or that he tried to make her understand, but she did not agree, so he shifted his residence. He further stated that he was having one mobile and that no other person of his family was having a mobile. The witness further termed it correct that he had made prosecutrix understand not to talk with the accused as he was already married.
SC No. 37/12 State Vs. Satender Chauhan Page Nos. 4 of 40 5
7. The PW11 Smt. Sarita is the mother of the prosecutrix and she deposed that on 10.11.2011 at about 11:00 AM, her daughter/prosecutrix had gone to bring some household articles from a nearby market, but did not return home and when despite searches being made by them, she could not be traced, they all went to P.S. for lodging the report but the Police asked her (PW11) and her husband to first search for their daughter at their own level and then to file the complaint. She further stated that they kept on searching for their daughter till 13.11.2011, but when she could not be traced, they again went to the P.S. and got recorded their complaint with the Police against accused Satendra Chauhan.
In reply to a specific court question, that "Why did you expressed your suspicion on accused", the witness replied that "I had suspicion on accused as earlier we were residing in the same building as tenants. Accused was residing on second floor and we were on the first floor of that building. Since I used to remain unwell, I used to send my daughter for bringing clothes etc. from the roof. When I observed accused talking to her, I shifted my residence."
In reply to further court questions, the witness stated that the incident had happened after about 45 months of their shifting residence and that during the said period of 4 - 5 months, she did not observe accused talking to her daughter personally or on phone etc. She further stated that she herself used to go to pick up and drop her daughter to school.
Further court question was asked from PW11 that "Since you had changed your residence about 4 - 5 months ago and had not observed accused interacting with your daughter, why did you express suspicion over the accused", the witness replied that her daughter had told her that accused used to go to her school sometimes.
SC No. 37/12 State Vs. Satender Chauhan Page Nos. 5 of 40 6 The PW11 further stated that her daughter was left at Metro Station Jahangir Puri by accused after about 12 days from the day, she went missing and they found her at the said Metro Station while searching for her. The witness further stated that her daughter/prosecutrix told her that accused had induced her on the pretext of going for some outing, to which she refused and that the accused forcibly abducted her to Sarai Peepalthala and thereafter, the accused forcibly put vermilion in her hair (Maang bhar di) and thereafter established physical relations with her. She further deposed about the medical examination of her daughter and about seizing of samples, taken from her daughter, vide Ex.PW11/A and about recording of statement of her daughter u/s 164 Cr.P.C. She further stated that at the time of incident, her daughter was aged about 13 years and that she had stated the age of her daughter as was mentioned by her husband at the time of her admission in the school and that her husband knew the correct age of her daughter. She further stated that her daughter was born in the village hospital, but she had not got her date of birth recorded with Panchayat, MCD, etc. She further stated that the police recovered red coloured suit of her daughter, which she was wearing on the day she had gone missing, from the house, where accused had kept her, after accused was arrested.
During crossexamination, PW11 stated that she did not remember the date of her marriage and that she had three children and that the prosecutrix was her eldest child and that she was born after about 4 5 years of her marriage. She further stated that after birth of prosecutrix, she had two abortions and then her son was born, who was aged about 10 years. The witness further stated that she could not tell how old she was at the time of her marriage, but she again stated that she was 13 - 14 years old. The PW11 denied that P was aged above 16 years, when she voluntarily SC No. 37/12 State Vs. Satender Chauhan Page Nos. 6 of 40 7 went with the accused and had sexual relations with him.
8. The PW3 Sh. Rajiv, who was owner of House no. 285A, Sarai Peepal Thala, Delhi, deposed that he had given the second floor of the said house to accused Satendra Chauhan on monthly rent of Rs. 1500/ w.e.f. 05.11.2011 and that the accused shifted to said house and stayed there for about 15/16 days, after which, he (accused) went away to an unknown place after locking the said house. He further stated that one lady had come to his shop and asked about the whereabouts of the accused and that he had assured the said lady that whenever the accused come, he would inform her and that after about one month, accused returned to the said house and on his (PW3) informing that lady about this fact, said lady came along with police officials to his house and accused was overpowered. He further stated that lock of the room was broken in the presence of the accused and that salwar of the prosecutrix, one jacket of red colour and one kurta were recovered from the said room and were put into pullanda and that pullanda was sealed and was taken into possession vide memo Ex. PW3/A. The said witness identified those clothes in the court as Ex. P1 to P3.
During crossexamination, the PW3 stated that when accused had taken the house on rent, he had told him that he would bring his family from his native village and that after two days, accused shifted to the rented accommodation along with prosecutrix and that both of them used to reside in rented accommodation happily. He further stated that he never heard any noise of quarrel between them and that accused used to go to his job in the morning time and used to return at about 7.00/8.00 pm.
9. The PW7, Ms. Vandana, learned MM, Rohini Courts, Delhi, had recorded SC No. 37/12 State Vs. Satender Chauhan Page Nos. 7 of 40 8 the statement of prosecutrix u/s.164 CrPC. She proved the said statement as Ex.PW7/B. The applications for recording of statement u/s.164 Cr.P.C and supply of copy of said statement, filed by IO, were proved as Ex. PW7/A and Ex.PW7/D respectively while the certificate given by PW7 was proved as Ex.PW7/C. The application, vide which the prosecutrix was sent to Children Home was proved as Ex. PW7/E.
10. The PW6, Dr. V.K. Jha was working as CMO on 22.11.2011 and he deposed that on that day, under his supervision, PW2/prosecutrix was examined by Dr. Pankaj and thereafter, she/PW2 was referred to S.R. Gynae, where Dr. Anshu Gupta. SR Gynae examined her gynecologically. He proved the MLC of the prosecutrix as Ex. PW6/A and also identified the handwriting and signatures of Dr. Pankaj and Dr. Anshu Gupta on the same. In reply to a specific court question, "Are there any findings qua sexual assault in the MLC of the prosecutrix, the witness replied in negative after going through the MLC Ex. PW6/A.
11. The PW10, Dr. Seema was CMO at BJRM Hospital and deposed that on 06.02.2012, under her supervision, Dr. Shyam Madeshya had medically examined the accused and thereafter, he was referred to S.R. (Surgery), where Dr. Nitin medically examined him and opined that "it cannot be said that patient is incapable of doing sexual intercourse" The PW10 proved the MLC of the accused as Ex. PW10/A and also identified the handwriting and signatures of Dr. Shyam Madeshya and Dr. Ninin on the same.
SC No. 37/12 State Vs. Satender Chauhan Page Nos. 8 of 40
9
12. The PW9, ASI Veer Pal Singh deposed that on 13.11.2011,
complainant/PW5 Ram Kumar came to PS Mahendra Park and that he (PW9)
recorded his statement Ex. PW5/A and that after making his endorsement Ex. PW9/A on it, he handed it over to PW12 HC Surender, Duty Officer for registration of the case and after registration of the case FIR, PW2 handed over original rukka and computerized copy of FIR to him and that he along with complainant went to area of P.S. Mahendra Park to trace the prosecutrix and accused, but they could not be traced. He further stated that on 22.11.2011, he went to Prathmik Ballika Adarsh Vidayalaya, A Block, Jahangir Puri, Delhi, and obtained certificate Ex. PW1/C regarding age of the prosecutrix from Principal. He further stated that at about 10:00 AM, parents of the prosecutrix produced the prosecutrix before him and he prepared recovery memo Ex. PW2/A of prosecutrix and thereafter, on the instructions of SHO, he handed over the case file to PW14 W/ASI Adesh Kumari for further investigations.
During crossexamination, the witness stated that the parents of the prosecutrix remained with him in the PS for about one hour and that he did not obtain MCD birth certificate of the prosecutrix till the time investigations remained with him.
13. The PW14, W/ASI Aadesh Kumar is the investigating officer of the present case and she deposed that on 22112011, further investigation of the case was entrusted to her and that during the course of investigation, she got the prosecutrix medically examined from BJRM hospital vide MLC Ex. PW6/A and at that time, mother of the prosecutrix/PW11 also accompanied them. She further deposed that after medical examination of the prosecutrix, exhibits and sexual assault kit was given to her by the concerned doctor, which were seized by her vide seizure memo Ex. PW11/A and SC No. 37/12 State Vs. Satender Chauhan Page Nos. 9 of 40 10 that list of articles of the samples given by the doctor were also taken by her into possession vide memo Ex. PW14/A. She further stated that thereafter, she along with the prosecutrix and her parents went to the spot, where PW2/prosecutrix pointed the room of the house no. 285A, 3rd floor, Sarai Peepal Thala, where she had stayed with the accused as husband and wife, but the said room was found locked and that owner of the said house was not present there at that time and that thereafter, prosecutrix was sent to Nirmal Chaya, Children Home by the order of the court on her application Ex. PW14/B. The PW14 ASI Adesh Kumar further stated that on 23112011, the prosecutrix was counseled by the NGO and thereafter, her statement u/s 164 Cr.P.C was got recorded vide her application Ex. PW14/C and that she obtained the copy of the said statement by moving her application Ex. PW14/D and that thereafter, the prosecutrix was again sent to Nirmal Chaya vide application Ex. PW14/E. She further stated that on on 622012, PW5 Ram kumar , father of the prosecutrix produced the accused Satendra Chauhan and that at that time, the prosecutrix also accompanied them and after interrogation, she arrested the accused in the presence of PW4 Ct. Navrang Lal vide arrest memo Ex. PW2/C and his personal search was conducted vide personal search memo Ex. PW2/D, and that the accused also made his disclosure statement vide Ex. PW4/A. She further stated that thereafter, the accused was got medically examined at BJRM hospital vide MLC Ex. PW10/A and that she seized the exhibits and blood sample of the accused along with the sample seal of the hospital, vide seizure memo Ex. PW4/B. She further deposed that on 722012 the accused was taken out from the lock up by PW13 Ct. Pardeep Kumar and thereafter, they along with prosecutrix SC No. 37/12 State Vs. Satender Chauhan Page Nos. 10 of 40 11 reached at Sarai Peeple Thala, where accused pointed out a room of H. No. 285 A, Sarai Peeple Thala while telling that he had stayed there along with the prosecutrix as husband and wife and that at the same time, the owner of the house/PW3 Rajeev also came there and identified the accused and the prosecutrix as his tenant. She further deposed that after opening the room, the prosecutrix produced her clothes from a suitcase lying in an open almiraha and that the said clothes were sealed by her, in a cloth pullanda, with the seal of AK and was seized vide seizure memo Ex. PW3/A. She further deposed that during the course of investigation, she also collected the age proof Ex. PW1/A to C, of the prosecutrix, got sent the exhibits of the present case to FSL, Rohini through PW8 HC Mukesh. She further deposed that she also recorded the statement of father of the prosecutrix, wherein he stated that he had no other documentary proof of the age of the prosecutrix except the school record as he had not got her date of birth registered in the office of Registrar of Birth and Death. She further stated that she also collected the FSL result and placed the same on the judicial record vide application Ex. PW14/F. During crossexamination, PW14 stated that she had verified the date of birth of the prosecutrix, which was mentioned in the admission register and the pasting file of the school, during investigation and that she was told by the Admission Incharge that the parents of the children of jhuggi of JJ colonies never used to get the birth of their children registered with the office of Registrar of Birth and Death and that date of birth given by the parents in their affidavits was the only proof available in the school regarding the age of the child. She further stated that she did not get the bone age assessment test of the prosecutrix done.
SC No. 37/12 State Vs. Satender Chauhan Page Nos. 11 of 40 12
14. The PW4 Ct. Navrang had joined the investigations of the present case with PW14 W/ASI Adesh Kumar on 06.02.2012, at the time of arrest of the accused and had also got the accused medically examined at BJRM Hospital and deposed about the same.
15. The PW13 Ct. Pradeep had joined the investigations of the present case with PW14 W/ASI Adesh Kumar on 07.02.2012, when accused had pointed out the room, where he and prosecutrix resided on rent as husband and wife, and deposed about the seizure of the clothes of the prosecutrix from that room.
16. The PW8, HC Mukesh, had taken the exhibits of the case to FSL Rohini, on directions of IO and deposed regarding the same.
17. The PW15 HC Chander Bhan, was posted as MHCM at P.S. Mahendra Park at the relevant time. He produced Register No.19 and 21 and proved the relevant entries of deposit of samples and other articles at Malkhana and about sending them to FSL as Ex.PW15/A to Ex.PW15/E.
18. The PW1, Ms. Suman Bala, produced original record from MCD Primary School, A Block, Jahangir Puri, Delhi, wherein victim child was admitted in first class and proved copy of admission form and affidavit of Sh. Ram Kumar, father of the prosecutrix, as Ex.PW1/A and Ex. PW1/B respectively ; the original certificate of date of birth, issued by her as Ex.PW1/C and photocopy of the relevant entry in the admission register as Ex.PW1/D. SC No. 37/12 State Vs. Satender Chauhan Page Nos. 12 of 40 13
19. After closing of prosecution evidence, statement of accused Satender Chauhan was recorded u/s 313 Cr.P.C. Accused stated that he is innocent and had been falsely implicated in the case. He further stated that there was an enmity between him and the family of the prosecutrix over filling of the water and to level the score, parents of prosecutrix lodged a false complaint against him. He further stated that his signatures were obtained forcibly by the police on some blank papers and printed performs and later on, those papers were converted into various memos against him. The accused declined to lead evidence in his defence.
20. Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State.
21. Learned Additional PP has contended that prosecutrix has fully supported the case of the prosecution and that prosecution has succeeded in proving its case against the accused beyond reasonable doubt by examining the material witnesses namely prosecutrix and her parents. It is stated that in view of the testimony of the prosecutrix no other evidence is required and has accordingly prayed that accused Satender Kumar be convicted u/s.363/366/376 IPC.
22. On the other hand, learned Legal Aid Counsel for accused has contended that accused is innocent and has nothing to do with prosecutrix in the present case. It is stated that prosecutrix was major at the time of incident and had gone away with some other person and was recovered later on by her parents. It is also stated that the medical evidence does not support findings of rape and this fact is also reflected from SC No. 37/12 State Vs. Satender Chauhan Page Nos. 13 of 40 14 the fact that prosecutrix did not raise alarm while she was allegedly being taken away by the accused and thus accused is entitled to be acquitted of all charges in the present case and it is prayed accordingly.
23. I have heard the arguments put forward by ld. Addl. PP as well as learned Legal Aid counsel for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
24. In the present case prosecutrix is the only material witness put forth by the prosecution. The prosecutrix is alleged to have been taken away by accused on 10.11.2011 and was recovered on 21.11.2011, during which period, accused took her to a room, situated at Sarai Pipal Thala, Delhi and raped her against her wishes. It is also alleged that child victim P was a minor girl aged about 13 years at the time of incident and had been kidnapped by accused with intention to marry her and/or to force her to have illicit intercourse with him. The age of child P would have direct bearing on the case and it is necessary to examine this issue in the first instance. Age of the prosecutrix :
25. In the present case prosecutrix is stated to be aged about 13 years at the time of filing of the complaint. In order to prove the age of the prosecutrix, the prosecution has examined PW1 Ms. Suman Bala, who produced record of first attended school, wherein prosecutrix was admitted in 1st class on the basis of admission form Ex.PW1/A and affidavit of Sh. Ram Kumar Ex.PW1/B. In the said documents, the SC No. 37/12 State Vs. Satender Chauhan Page Nos. 14 of 40 15 date of birth of the prosecutrix has been mentioned as '18.10.1998' which was entered as such in the school record without any further verification.
26. Admittedly no birth certificate of the child i.e. the prosecutrix was submitted by her father at the time of her admission in the school. Learned legal aid counsel for accused has contended that since no basis has been shown for recording of date of birth of prosecutrix in the school record, the prosecution has failed to prove that the date of birth of prosecutrix is '18.10.1998' as mentioned in the record produced by PW1. It is also contended that since the prosecutrix was studying in 8th class at the time of incident, she would definitely be more than 16 years of age.
In this regard, in case of Jarnail Singh Vs. State of Haryana, Cri. Appeal No.1209 of 2010 decided on 01/07/2013, the Hon'ble Supreme Court held that Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 would be applicable while determining age even for child, who is victim of the crime.
27. Further, in case of Ashwani Kumar Saxena vs. State of M.P. (2012) 9 SCALE 90, it has been held that : "........ "Age determination inquiry" contemplated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates the court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate SC No. 37/12 State Vs. Satender Chauhan Page Nos. 15 of 40 16 or that date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reason to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year..."
28. Thus, interpreting the rule 12 (3) the Hon'ble Supreme Court held that : "We are of the view that admission register in the school in which the candidate first attended is a relevant piece of evidence of date of birth. The reasoning that the parents could have entered a wrong date of birth in the admission register hence not a correct date of birth is equal to thinking that parents would do so in anticipation that child would commit a crime in future and, in that situation, they could successfully raise a claim of juvenility."
29. Since in Delhi Juvenile Justice (Care and Protection of Children) Rules, have been enacted, which have come into force w.e.f. 24.09.2009 and the same would be applicable for determination of the age of the victim child. The said rule is as under :
12.Procedure to be followed in determination of Age.
SC No. 37/12 State Vs. Satender Chauhan Page Nos. 16 of 40
17
(1).....
(2).....
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
i. the date of birth certificate from the
school (other than a play school) first
attended; and in the absence whereof;
ii. the birth certificate given by a corporation
or a municipal authority or a panchayat;
iii. the matriculation or equivalent
certificates, if available;
30. In the present case also the prosecution has produced record of first class to prove that the date of birth of prosecutrix is '18.10.1998'. No manipulation, tampering, addition or alteration could be brought out in the said record from detailed cross examination of PW1. Admittedly, the record produced by PW1 was maintained in normal course of business of the school and is thus admissible u/s.32 of the Indian Evidence Act. Nothing has been brought on record to show that the school authorities were in any manner motivated to manipulate their record to favour the case of the prosecution. In view of the judgment of Hon'ble Supreme Court in case of Jarnail Singh (Supra) and Ashwani Kumar Saxena (Supra), I am of the opinion that prosecution has succeeded in proving that the date of birth of prosecutrix is '18.10.1998' and that she was aged about 13 years and 1 month at the time when first alleged incident of sexual assault, reported by her in her statement u/s 164 Cr.P.C Ex. PW7/B dated 23.11.2011, took place.
SC No. 37/12 State Vs. Satender Chauhan Page Nos. 17 of 40 18 Whether the accused had kidnapped the prosecutrix ?
31. The next issue which arises for consideration is whether, accused had kidnapped the prosecutrix out of the keeping of her lawful guardians/parents without their consent and had taken her to a house situated at Sarai Pipalthala and kept her there to force her or seduce her to have illicit intercourse with him and/or to marry him and committed rape upon her, without her consent and against her wishes.
32. In order to prove that prosecutrix was kidnapped by the accused, prosecution has examined Sh. Ram Kumar, father of the prosecutrix, as PW5. He has deposed that on 10.11.2011, the prosecutrix aged about 13 years, had gone to market and did not return back home and though, he tried to search for her, he could not trace her and thus, he filed complaint Ex. PW5/A. He has also deposed that on 20.11.2011, the prosecutrix gave a call, which was attended by his wife and that on 21.11.2011, prosecutrix returned home and was produced before IO, by them on 22.11.2011. He specifically denied during his crossexamination that prosecutrix used to love accused or that he had tried to make her understand, but when she did not agree, PW5 shifted his residence. He termed it correct that he made prosecutrix understand not to talk with accused as he was already married.
33. The PW11 Smt. Sarita is the mother of the prosecutrix, who too deposed about the manner, in which, the prosecutrix went missing from her house on 10.11.2011. She also stated that they had suspicion against accused Satender Chauhan and had so, stated in their complaint made to the police. Certain court questions were put to the SC No. 37/12 State Vs. Satender Chauhan Page Nos. 18 of 40 19 witness to clarify the reason for suspecting the accused, whereupon, PW11 stated that earlier, accused was residing in the same building as tenant, where PW11 was residing with her family including the prosecutrix, and that PW11 used to remain unwell and thus, she sent prosecutrix to bring clothes etc., from the roof. When she observed accused talking to prosecutrix, she shifted her residence. Further court question was asked from the witness as to time gap between their shifting of residence and the incidents, to which, PW11 replied that there was a gap of 4 to 5 months. In response to further court question, PW11 stated that she used to go to pick up and drop her daughter to school, herself and that she was told by her daughter that accused used to go to her school sometimes.
During her further examination, PW11 also stated that on being traced out, the prosecutrix had told her that accused had induced her to go with him on pretext of going for some outing and when, she refused, he abducted her forcibly and took her to Sarai Peepalthala, where he forcibly put vermilion in her hair (maang bhar di) and established physical relations with her.
During her crossexamination, PW11 denied that the prosecutrix was above 16 years of age at the time of incident or that she had voluntarily gone with the accused and established sexual relations with him. She also denied that she was aware of the relationship between the prosecutrix and the accused.
34. The prosecutrix i.e. victim child P was examined as PW2. In the present case, the prosecutrix went missing from her house on 10.11.2011 and was produced before the IO by her parents on 22.11.2011, on which date, her statement u/s 161 Cr.P.C was recorded, wherein she deposed as under : SC No. 37/12 State Vs. Satender Chauhan Page Nos. 19 of 40 20 ".. Bayan kiya ke main uprokat pate par apne matapita va bhai behan ke saath rahti hai, aur kaksha 8 me Govt. School me padhati hoon. Pahle mere mata pita, H1 block, Jahangir Puri, me rahte the. Aur isi makan upar Satender naam ka lakda, jo Azamgarh jile ka rahne wala bhi kiraye par rahta tha. Jo mujse batchit kar leta tha aur Azadpur mandi me kaam karta tha. Isi dauran, meri usse dosti ho gai, aur hum dono ka payar ho gaya tha. Jo baad me, mere mata pita is makan ko chodkar A409, Jahangir Puri me kiraye par rahne lage. Main Satender se phone par S.T.D se batchit karti rahti thi. Dinak 10/11/11 ko samay karib 1011 baje din me bazar Jahangir Puri me saman lene ja rahi thi, ke Satender raste mi mila, jo mere se payar karta tha, jo mujhe shadi ka lalch dekar apne kamre par Sarai Pital Thala le gaya. Hum dono us kamre par rahe. Aur agle din, Satender mujhe lekar Kali Mandir A block, gaya, jahan par hum dono ne Kali Mata ki Murti ko sakshi maan kar man me vichar karke ek dusre se shadi ki kasme khai, us vakat Mandir me aur koi nahi tha. Baad me hum dono vapas Satender ke kamre par pahunch gaye. Jahan hum dono ne raat ko sharirik sambandh patipatni ke terah banaye. Jo Satender baad me, rojana ki terah Azadpur Mandi me kaam karne chala jata tha. Main kamre me akeli rah jaati thi. Jo mujhe baad me asspass ke logo se pata chala, ke Satender pahle se shadishuda hai. Jo maine Satender se is baat ka pata kiya, ke aap shadishuda ho, jo Satender ne mujhe batya, ke main Shadishuda hoon. Par SC No. 37/12 State Vs. Satender Chauhan Page Nos. 20 of 40 21 maine apni patni ko chhod rakha hai. Usse abhi koi talak na hone se main naraz ho gai. Magar, main samaj va matapita ke dar se Satender ke saath hi uske kamre par rahi. Main Satender ko apne gaon me le jane ko kaha, to mana kar diya, aur kaha, ki matapita jagra ho chuka hai, vahan nahi jayenge. Phir do din baad maine Satender ko apne matapita se milne ko kaha, to va mujhe, kal Dinak 211111 ko Jahangir Metro Station par chhod kar chala gaya. Main apne matapita ke paas chali gai ............"
35. The prosecutrix appeared before the court to depose and was examined as PW2, wherein, she deposed as under : "At present, I am residing at the above mentioned address. I was residing in HBlock, Jahangir Puri, with my parents till about 2 - 3 months prior to the incident. On 10.11.2011, I was going to market at about 10:00 / 11:00 AM. On that day, on my way to market I met accused Satendra Chauhan. He told me that wanted to marry me and so I went with him. I knew accused Satendra Chauhan since about one year prior to the incident as accused was staying in the same premises on the first floor in HBlock where I used to reside with my parents on the ground floor. Accused had then became my friend and I used to speak to him on phone. My father had seen accused with me and had warned him 2 / 3 times but accused did not pay heed. So my father changed the residence and we shifted to the present SC No. 37/12 State Vs. Satender Chauhan Page Nos. 21 of 40 22 address. I used to talk to accused on phone even after we had shifted to ABlock, Jahangirpuri. Accused knew my new address.
On 10.11.2011, I went with accused. He took me to a house in Sarai Peepalthala where we stayed over night. On the next day, I married accused in Kali Mandir, ABlock, Jahangir Puri. At that time, none else except me and accused were present in the Mandir. After getting married at Mandir, we returned back to the room in Sarai Peepalthala where we had physical relations like a man and wife. Accused used to go for work to Azadpur Mandir while I used to remain in the room itself. After about two days, I came to know from the neighbourers of the accused that he was already married. When accused returned back from work, I asked him if he was already married. Accused admitted that he was already married and that he had taken divorce from his first wife. I was afraid of returning back to the house of my parents as I feared that they would be defamed in the society so I asked accused to take me to house of his parents so that I could meet them. Accused stated that he had already quarreled with his parents and refused to take me to meet them. I then asked accused to take me back to my parents house. Accused did not say anything and on 21.11.2011, he left me at Jahangir Puri Metro Station from where I returned back to my parents house. I told everything to my parents and on 22.11.2011 my parents took me to PS. My statement was recorded and I was also taken for medical examination to BJRM Hospital. After my medical examination, SC No. 37/12 State Vs. Satender Chauhan Page Nos. 22 of 40 23 I and my mother returned back to PS. I took the Police officials to the room in Sarai Peepalthala where accused had taken me. The room was found locked and accused was not available there.
I was taken to the Court for my statement before a Magistrate but I do not remember the date. When I went for my statement before the learned Magistrate, I had met one lady from NGO, who told me to state before the Judge that four boys, whose name I did not know, had met me and had put something in a handkerchief after smelling which I lost my consciousness. I was sent to Nirmal Chhaya after my statement and had also appeared before CWC (Child Welfare Committee). I told before CWC that it was wrongly stated that I had met four boys or that I had become unconscious after inhailing from their handkerchief. I also told this to the Police and my statement in this regard was also recorded by the IO.
On 06.02.2012, accused Satendra Chauhan met my father at ISBT Bus Stand. My father brought accused to PS Adarsh Nagar. He also gave me a call and asked me to come to PS along with my mother. I reached PS and upon my identification, accused was arrested. I as well as accused were taken to the room at Sarai Peepalthala where accused had kept me. The room was bolted from outside but was not locked. We went inside the room. My white and pink coloured suit which I was wearing when I had left my house and gone with the accused was inside the said room. My clothes were SC No. 37/12 State Vs. Satender Chauhan Page Nos. 23 of 40 24 seized by the IO. It was also the suit which I was wearing when accused had established physical relations with me.
She identified her signatures on various documents and proved the recovery memo prepared by the IO when she was taken by her parents to the PS as Ex.PW2/A ; her statement u/s.164 Cr.P.C as Ex.PW2/B ; the arrest memo and personal search memo of accused as Ex.PW2/C and Ex.PW2/D, respectively.
The witness duly identified the accused. She also identified her clothes i.e. her shirt, salwar and chunni as Ex. P1 to P3 and stated that they were same clothes, which she was wearing when she went away with the accused and later on got recovered from the room of the accused.
36. During her crossexamination, PW2 stated that she and accused started talking to each other twothree months after they (PW2 and her family) shifted to room in Hblock, Jahangir Puri, where accused was already residing on first floor since 203 months prior to PW2 having shifted there, she also deposed that her father had seen her talking to the accused near the park itself and had made her understand not to talk to accused and also warned the accused to stay away from her. She also stated that thereafter, she stopped talking to accused for 12 weeks and thereafter again started calling him from STD Booth near her school and that at that time, she was studying in 7 th class. She further deposed that she had asked accused as to why he had not informed her about his marital status, but he did not say anything and that she told accused to take divorce from his wife and to marry her again after taking permission of his parents, but accused did not say anything. The PW2 categorically stated that accused had SC No. 37/12 State Vs. Satender Chauhan Page Nos. 24 of 40 25 never told her about his wife and that she had asked him about his family and at that time, she had also asked him about his wife and that at that time, accused told him that he was not married. She also stated that she did not think that it was important to meet family of the accused before she married him as accused had told her that as soon as they got married, he would take PW2 to meet his parents and that he had asked her twice earlier also to marry him, but she refused and told him that she was not of a marriageable age.
A specific court question was asked from PW2, whether she would establish relationship as husband and wife with the accused, had she know that he was already married, to which, PW2 responded in negative.
The PW2 denied that she was above 18 years of age at the time of incident or that she had voluntarily married accused knowing that he was already married and had a girl child.
37. From the statement of the prosecutrix u/s 161 Cr.P.C dated 22.11.2011, and her deposition before the court as PW2, recorded on 14.09.2012, it is seen that she has made specific allegations against the accused and elaborate upon the manner, in which he induced her to go with him and marry him by concealing the fact that he was already married. The prosecutrix has specifically stated in her statement recorded on 14.09.2012 that she came to know that accused was already married after two/three days of their marriage and that too, on being told by his neighbours. During her cross examination, the prosecutrix stated that she had asked accused as to why, he had not informed her about his marital status, but he did not say anything. She further told him to take divorce from his wife and to marry her (PW2) again after taking permission of SC No. 37/12 State Vs. Satender Chauhan Page Nos. 25 of 40 26 her parents, but accused did not say anything.
During her further crossexamination, the prosecutrix reiterated that the accused had told her that he was not married and he used to ask her to marry him, but she had refused and told him that she was not of marriageable age.
38. Learned legal aid counsel has contended that the fact that the prosecutrix herself used to call accused twice daily, as is brought out from her crossexamination, shows that whatever, has happened, was with her consent. She has also contended that correct facts have been stated by the prosecutrix in her statement u/s 164 Cr.P.C i.e. Ex. PW7/B and that even otherwise, considering the discrepancies in her statement u/s 164 Cr.P.C and her testimony as PW2 in the court, she is not a reliable witnessf and accused is entitled to be acquitted in the case.
39. The contention made by ld. Legal aid counsel cannot be sustained because prosecutrix has clarified in her statement as PW2 that when she went for her statement before ld. Magistrate, she had met one lady from NGO, who told her to state before the Judge that four boys, whose name, she did not know, had met her and put something in a handkerchief, after smelling which, she lost her consciousness and that thereafter she appeared before C.W.C (Child Welfare Committee) and told them that she had wrongly stated about having met with four boys and becoming unconscious after inhaling from their handkerchief. She also stated that she had told this fact to the IO, who had recorded her statement in this regard.
40. Even otherwise, the fact that the prosecutrix had gone with the accused and SC No. 37/12 State Vs. Satender Chauhan Page Nos. 26 of 40 27 that they had solemnized some marriage ceremony after which, they started living as husband and wife, is the defence which accused had initially taken and put to material witnesses i.e. PW2 prosecutrix/child P, PW5 Ram Kumarfather of the prosecutrix and PW11 Sarita, mother of the prosecutrix. The PW3, Rajeev, landlord of the premises, where accused had kept the prosecutrix, was also put questions in his cross examination, in response to which, the witness stated that accused had shifted to the rented accommodation with the prosecutrix after two days of his taking the same on rent and that accused and the prosecutrix used to reside in the said rented accommodation happily and he never heard them quarreling. It is also noteworthy that the clothes of the prosecutrix i.e. her salwar, jacket of red colour and kurta were seized from the rented room, which PW3 had rented out to the accused, and PW3 duly identified the said clothes in the court as Ex. P1 to P3 and stated that they had been seized by the IO in his presence, from the rented accommodation of the accused, vide seizure memo Ex. PW3/A.
41. In contradiction, in his statement u/s 313 Cr.P.C, the accused took a contrary defence stating that he had been falsely implicated in the case as there was enmity between him and the family of the prosecutrix over filling of the water and to level the score, parents of the prosecutrix lodged a false complaint against him. This belated defence taken by the accused is totally falsified by the findings on the MLC of the prosecutrix i.e. Ex. PW6/A, wherein the hymen was found torn and the FSL result Ex. PX, which showed positive findings for presence of human semen on Ex. 1h1 - Cotton wool swab on a stick described as 'vaginal secretion', 1h2 microslides having faint smear kept in a plastic case and 3aone lady's shirt.
SC No. 37/12 State Vs. Satender Chauhan Page Nos. 27 of 40 28
42. The only defence, which, accused could have claimed was that prosecutrix went with him voluntarily, without any inducement, force or pressure and later married him and established sexual relations with him, of her own free will, but as already observed hereinabove, the prosecutrix was aged about 13 years and one month at the time of incident and thus, defence of consent is not availble to the accused in the present case. Even otherwise, it is brought out from the record, specially the testimony of victim child P that accused concealed the fact that he was already married from her and thus, the consent of the prosecutrix cannot be said to be free from consideration.
43. In the case of Pradeep Kumar Verma vs. State of Bihar and Anr. AIR 2007 SC 3059, Hon'ble Apex Court has held that : "9. The crucial expression in Section 375 which defines rape as against her will. It seems to connote that the offending act was despite resistance and oppositions of the woman. IPC does not define consent in positive terms. But what cannot be regarded as consent is explained by Section 90 which reads as follows : "consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all".
44. The observation made by the Hon'ble Apxe Court in the case of Pradeep Kumar verma (supra), were discussed by Hon'ble Supreme Court in case of Dilip Vs. State of Madhya Pradesh, decided on 16.04.2013 and while discussing these observations, it was held that : SC No. 37/12 State Vs. Satender Chauhan Page Nos. 28 of 40 29 "That is what is explained in first para of Section 90. There are two grounds specified in Section 90 which are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. The factors set out in first part of Section 90 are from the point of view of the victim and second part of Section 90 enacts the corresponding provisions from the point of view of the accused. It envisages that the accused has knowledge or has reason to believe that the consent was given by the victim in consequences of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent has given it under fear or misconception of fact and the court should also be satisfied that the person doing the act i.e the alleged offender is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is conched in negative terminology. As observed by this Court in Deelip Singh @ Dilip Kumar vs. State of Bihar (2005 (1) SCC 88). Section 90 cannot be considered as an exhaustive definition of consent for the purpose of IPC. The normal connotation and concept of consent is not intended to be excluded."
SC No. 37/12 State Vs. Satender Chauhan Page Nos. 29 of 40 30
45. Further, in case of Uday vs. State of Karnataka, AIR 2003 SC 1639, the Hon'ble Apex Court observed that : "We are inclined to agree with this view that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary ; or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts, which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence, keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.."
46. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration of the same is required unless there are compelling reasons which necessitate the Court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix SC No. 37/12 State Vs. Satender Chauhan Page Nos. 30 of 40 31 complaining of having been a victim of the offence of rape is not an accomplice after the crime and her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the Court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. I am supported in my view by judgment in case titled as Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. & Anr., AIR 2003 SC 818 and Vishnu Vs. State of Maharashtra, AIR 2006 SC 508.
47. It has also been held in the case of Tameezuddin @ Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566, this Court held has under : "It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."
48. It has been further held in the case of Jai Krishna Mandal & Anr. Vs. State of Jharkhand, (2010) 14 SCC 534, as under : "The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."
SC No. 37/12 State Vs. Satender Chauhan Page Nos. 31 of 40 32
49. In case of State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"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 prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence. It must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may took for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
50. The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has successfully proved that accused induced prosecutrix P, a minor girl aged about 13 years, and obtained her consent by concealing the fact that he was already married and was having a girl child from the said wedlock. The prosecution SC No. 37/12 State Vs. Satender Chauhan Page Nos. 32 of 40 33 has further proved that the accused induced the prosecutrix P and obtained her said consent with intention to have illicit relations with him and to compel her to marry him and under the said inducement, he took the prosecutrix P to a house situated at Sarai Pipal Thala and committed rape upon her from 10.11.2011 to 21.11.2011 and as such the prosecution has succeeded in proving the guilt of the accused Satender on the face of record, beyond the reasonable doubts. Accordingly, I hold guilty accused Satender for the offences u/s. 363/366/376 IPC and he is convicted accordingly.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 06.12.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
SC No. 37/12 State Vs. Satender Chauhan Page Nos. 33 of 40
34
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 37/12)
Unique ID case No. 02404R0109302012
State Vs. Satender Chauhan
FIR No. : 259/2011
U/s : 363/366/376 IPC
P.S. : Mahendra Park
State Vs. Satender Chauhan
s/o Ram Ashish Chauhan
09.12.2013
Present : Ld. Addl. PP for the State.
Convict produced from J.C.
Legal Aid Counsel Ms. Urmila Yadav for the convict.
ORDER ON THE POINT OF SENTENCE
In the present case, the convict - Satender Chauhan has been convicted u/s 363/366/376 IPC.
I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. LAC for for the convict.
2. It has been submitted by the Ld. Addl. PP that in view of serious nature of SC No. 37/12 State Vs. Satender Chauhan Page Nos. 34 of 40 35 offence committed by the convict, he convict does not deserve any leniency and she prays that maximum sentence prescribed by the law may be imposed upon the convict.
3. On the other hand, it has been submitted by the learned LAC for the convict submits that the convict Satender Chauhan is aged about 25 years and is married and is having wife and a minor girl. It is also submitted that convict is also having one married sister, two younger brothers and old aged parents, who are living in village Saraiya, Post Jigar Sandi, PS Jahana Ganj, Distt. Azam Garh, UP. It is further submitted that convict belongs to a low strata of society and has been in custody for the last about 21 months. It is further submitted that convict is the sole bread earner of his family and is not a previous convict and is not involved in any other case and she prays that a lenient view may be taken in this case and sentence for the period already undergone by him may be awarded and he be given a chance of rehabilitation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. LAC and have carefully gone through the record of the case.
5. In the present case, the convict Satender Chauhan has been convicted for committing the offence punishable u/s- 363/366/376. It is relevant to mention that convict in the first instance won over the confidence of the prosecutrix P, a minor girl aged about 13 years, by telling her that he would marry her and thereafter, kidnapped her and took her to a house at Sarai Pipal Thala. He also underwent a sham marriage ceremony with her at temple and put vermilion on her forehead and created an illusion in the mind of victim child that he had married her and under the garb of consensual SC No. 37/12 State Vs. Satender Chauhan Page Nos. 35 of 40 36 sexual intercourse, he in fact raped her continuously from 10.11.2011 to 21.11.2011. The fact that convict was married came to knowledge of the victim child 2/3 days after her so called marriage with the convict and when confronted by her, convict failed to give any reply to her queries. Due to the acts of the convict, the victim child was faced with such a precarious situation that she could neither return back to her parents, nor could she leave the accused. In this manner, the convict continued to rape her till 21.11.2011. The convict not only cheated upon his own wife, but also spoiled the life of the a minor innocent girl aged about 13 years to satisfy his lust. Since, the convict did not have any regard for his wife and child, when he was pursuing and inducing a minor girl child P to marry him, he is not entitled to a lenient view by taking plea that he being the sole earning member, is required to discharge his responsibility towards his wife, minor child and other family members. In my opinion, convict is not entitled to any leniency. I hereby award sentence the convict Satender Chauhan as under
(i) For the offence u/s 363 IPC, the convict Satender Chauhan is sentenced to Rigorous Imprisonment for a period of three years along with a fine of Rs. 2,000/(Rs. Two thousand only), in default of payment of fine, to undergo S.I for three months.
(ii) For the offence u/s 366 IPC, the convict Satender Chauhan is sentenced to Rigorous Imprisonment for a period of five years along with a fine of Rs. 2,000/(Rs. Two thousand only), in default of payment of fine, to undergo S.I for three months.
(iii) For the offence u/s 376 IPC, the convict Satender Chauhan is sentenced to Rigorous Imprisonment for a period of seven years along with a fine of Rs. 5,000/(Rs. Five thousand only), in default of payment of fine, SC No. 37/12 State Vs. Satender Chauhan Page Nos. 36 of 40 37 to undergo S.I for six months.
All the sentences shall run concurrently.
6. The convict has been in custody since 06.02.2012 continuously. Benefit u/s 428 Cr.PC be also given to the convict for the period already undergone by him during trial, as per rule.
7. Coming now to the aspect of compensation to the victim, who is a minor girl, the Hon'ble Apex Court has time and again observed that that subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. In a case titled as Bodhisattwa Gautam vs. Subhra Chakraborty, AIR 1996 SC 922, it has been held by Hon'ble Supreme Court that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape, which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
8. Even otherwise, the concept of welfare and well being of children is basic for any civilized society and this has a direct bearing on the state of health and well being of the entire community, its growth and development. It has been time and again emphasized in various legislations, international declarations as well as the judicial pronouncements that the Children are a "supremely important national asset" and the future well being of the nation depends on how its children grow and develop. In this regard reference is made to the following observations of Hon'ble Supreme Court in SC No. 37/12 State Vs. Satender Chauhan Page Nos. 37 of 40 38 case of Laxmi Kant Pandey Vs. Union of India (1984) 2 SCC, 244, that :
"The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fullness of physical and vital energy and the utmost breath, depth and height of its emotional intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. Now obviously children need special protection because of their tender age and physique, mental immaturity and incapacity to look after themselves. That is why there is a growing realization in every part of the globe that children must be brought up in an atmosphere of love and affection and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire selfconfidence and selfrespect and a balance view of life with full appreciation and realization of the role which they have to play in the nation building process without which the nation cannot develop and attain real prosperity because a large segment of the society would then be left out of the developmental process. In India this consciousness is reflected in the provisions enacted in the Constitution. Clause (3) of Article 15 enables the State to make special provisions inter alia for children and Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Clauses (e) and (f) of Article 39 provide that the State shall direct its policy towards SC No. 37/12 State Vs. Satender Chauhan Page Nos. 38 of 40 39 securing inter alia that the tender age of children is not abused, that citizens are not forced by economic necessity to enter avocations unsuited to their age and strength and that children are given facility to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. These constitutional provisions reflect the great anxiety of the constitution makers to protect and safeguard the interest and welfare of children in the country. The Government of India has also in pursuance of these constitutional provisions evolved a National Policy for the Welfare of Children. This Policy starts with a goaloriented perambulatory introduction."
9. Therefore, in order to provide Restorative and Compensatory Justice to the victim i.e prosecutrix, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant compensation to the tune of Rs. 1,00,000/ (Rs. One lac only) to the prosecutrix. The said amount shall be used for her welfare and rehabilitation, under the supervision of Welfare Officer, so nominated by the Government of NCT of Delhi.
10. A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi, Chief Secretary, GNCT of Delhi, Principal Secretary (Social Welfare), GNCT of Delhi and Director, Department of Social Welfare (Women and Child Development), GNCT of Delhi, for information and necessary action under intimation to this Court.
SC No. 37/12 State Vs. Satender Chauhan Page Nos. 39 of 40 40
11. The convict is informed that he has a right to prefer an appeal against this judgment.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Illa Rawat)
(Court on 09.12.2013) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
SC No. 37/12 State Vs. Satender Chauhan Page Nos. 40 of 40