State vs Kishan on 13 April, 2011

[Cites 16, Cited by 0]

Delhi District Court

State vs Kishan on 13 April, 2011

         IN THE COURT OF SH. VIRENDER KUMAR GOYAL
   ADDL SESSIONS JUDGE: FAST TRACK COURT
                     ROHINI:DELHI
SC No. 112/01
Unique Identification No.02404R1002142003
State
         Versus

1. Kishan
   S/o Chotte Lal
   R/o Baba Mandir Mohalla Chauavan,
   Thok District Hardoi
   UP.
2. Dinesh
   S/o Sadhu
   R/o Gram Sursa, District Hardoi,
   UP
3 Saraswati
   W/o Baleshwar
   R/o H. No.C-14, Gali no.6,
   Budh Vihar, Delhi
4. Kamla             (Since Proclaimed Offender)
  W/o Chotte Lal
  R/o Baba Mandir Mohalla, Chauavan,
   Thok District Hardoi
   UP.

          FIR No. 596/03
          PS - Sultan Puri
          U/s. 363/366/376 of IPC

          Date of institution of the case: 17/09/03
          Arguments heard on: 04/04/2011
          Date of reservation of order: 04/04/2011
          Date of Decision: 07/04/2011
          JUDGMENT

On 28/05/03, statement of one Kamla was recorded on which HC Rajkumar got recorded the case u/s 363 of IPC regarding missing of prosecutrix, SC No. 112/1 1/20 aged about 14 years.

During investigation, prosecutrix was recovered. She was medically examined. Her statement u/s 164 Cr.PC was recorded. Sealed pullandas, which were received from doctor, were taken into possession and were sent to FSL for examination. Accused Kishan was arrested. He was also got medically examined and sealed pullandas given by the doctor was seized in this case. Accused Saraswati and Dinesh were also formally arrested in this case. Accused Kamla was declared proclaimed offender.

On completion of investigation, chargesheet was filed u/s 363/366/376/506/34 of IPC. Case was committed to the Court of Sessions on 25/09/03 and was received on 30/09/03.

On 03/06/04, charge was framed against accused Kishan u/s 363/366 and 368/34 of IPC and also u/s 376/506 of IPC. Charges against accused Dinesh were also framed u/s 363/366/34 of IPC. Charge u/s 366/109 of IPC was framed against accused Saraswati. All the accused pleaded not guilty and claimed trial.

To prove its case prosecution has examined PW1 to PW17 in all. After completion of prosecution evidence, statement of accused was recorded. All the accused have denied the case of the prosecution. Accused Kishan has stated that he is innocent and has been falsely implicated in this case. Infact complainant had borrowed some money from him and when he demanded back his money, he has been falsely implicated in this case.

Accused Saraswati has stated that she is innocent and has been falsely implicated in this case. She is not connected with this case in any manner. However complainant had borrowed some money from accused Kishan and on demand, this false case has been registered as she was the witness to the same.

Accused Dinesh has stated that he is innocent and has been falsely implicated in this case, being relative of accused Kishan, who is his brother in law.

SC No. 112/1 2/20

I have heard Ld APP for the State and Sh. R. N. Singh counsel for the accused persons and have carefully gone through the evidence and material placed on record.

Findings qua Offfence u/s 363/34 of IPC against accused Kishan and Dinesh.

First of all we have to see as to what was the age of the prosecutrix at the time of the incident. Prosecutrix has been examined as PW1. She has nowhere stated that she was of 14 years at the time of incident nor she has deposed about her date of birth. In the cross examination, PW1 prosecutrix has stated that she was born in the village. She has not studied in any school. She cannot read or write and she can put thumb impression only. She has denied the suggestion that she was more than 18 years of age on the day of alleged incident. PW1 has further stated in the cross examination that she is not having any certificate of her age.

PW4 is Smt Kamla, mother of the prosecutrix. Even PW4 has not been able to depose about the age of the prosecutrix or her date of birth. PW4 has deposed that prosecutrix is her fifth issue, but she has failed to disclose the age of her other children, so age of prosecutrix cannot be calculated. She has denied the suggestion that her daughter prosecutrix is more than 20 years of age, but has admitted that her daughter is married now and also denied the suggestion that her daughter was not 14 years of age at the time of incident.

While deposing before the court as PW1, Prosecutrix told her age as 15 years. She was examined in the year 2005, whereas incident is of 2003, so if we assumed that at the time of incident, she was aged about 14 years then she must be of 16 years in the year 2005, so it is not confirmed whether prosecutrix was aged about 14 years of age at the time of incident. No date of birth certificate has been collected during the time of investigation by the Investigating Officer. So we have to rely upon the bone age X-ray report only. According to the PW16 SI Shugan Lal, Investigating Officer, he collected the bone age report from the concerned doctor regarding the age of the prosecutrix mark X. According to the SC No. 112/1 3/20 same prosecutrix was opined between the age of 14 to 16 years .

PW17 Dr. Sunil Kakkar has deposed that on 25/06/03, he examined the X-ray plate of prosecutrix vide MLC no.1921 for bone age determination and opined that bone age of prosecutrix between 14-16 years . He has proved his report as Ex.PW17/A. So at the time of medical examination of prosecutrix, she was in between 14 to 16 years.

According to section 361 of IPC " Whoever takes or entices any minor under sixteen years of age if a mail, or under eighteen years of age if a female, out of the keeping of the lawful guardian of such minor, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."

While deposing as PW1, prosecutrix has stated that she and her mother Kamla were working in Rajma factory. Two months prior to 25/05/03, they had left the job since her brother was to get married. Accused Saraswati and her daughter also used to work in the same factory. Accused Kishan was also working in the same factory. On 25/05/03, accused Kishan came to her house and told her that her mother was calling her in another rajma factory. She believed him and accompanied him in a rickshaw. On the way, she met accused Saraswati and her daughter Mamta, who told to go and also told that they would be following them. Accused Kishan took her to Mangol Puri bus stand in rickshaw and there they met Jija of accused Kishan i.e. accused Dinesh.

Ld. Defence Counsel has contended that PW1 cannot be believed because she had gone with accused Dinesh at her own as in the cross examination, PW1 has stated that she did not raise any alarm, when accused Kishan took her, which shows PW1 prosecutrix was consented party of her taking away by accused Kishan.

On the other hand, Ld APP has contended that from the deposition, it is clear that accused Kishan took her on the false pretext that her mother was SC No. 112/1 4/20 calling in another Rajma factory. Prosecutrix believed him and accompanied him in a rickshaw. Accused Kishan took her to Mangol Puri, from where accused Dinesh took her to Hardoi, at the house of accused Kishan. So while prosecutrix was less then 18 years, she was enticed by the accused Kishan and was taken away to Hardoi through co-accused Dinesh. This is also corroborated with the fact that PW4 Kamla, mother of the prosecutrix had told to the police in her report Ex.PW4/DA, that when she came back to her house at about 4.00 pm. Her daughter prosecurix was not present in the house and she was told that prosecutrix has left the house at about 1.30 pm day, telling that she was going to godown, which corroborates that accused Kishan took her on false pretext that mother of prosecutrix was calling her at another Rajma factory. Even if we take the age of the prosecutrix as i.e. 16 years at the time of incident, even then she was less then 18 years.

PW4 has nowhere deposed that prosecutrix was taken by accused Kishan with her consent. Infact PW4 Kamla has not been cross examined on this aspect in any manner.

PW1 has stated in the cross examination that she was threatened by accused Kishan and he was also having a blade. PW1 has further explained that she did not tell these facts to Investigating Officer or Ld MM because she forgot the same. So in my view, sufficient explanation has been given for not raising any alram by PW1, while she was being taken away by accused Kishan on a false pretext.

So from the deposition of PW1 and PW4 Kamla, prosecution has been able to proved beyond reasonable doubt that accused Kishan enticed and took away prosecutrix from lawful guardianship of her mother, while she was less then 18 years of age in furtherance of their common intention through co-accused Dinesh. Accordingly both accused Kishan and Dinesh are held guilty and are convicted for offence u/s 363/34 of IPC, as the prosecution has been able to prove the same beyond reasonable doubts.

SC No. 112/1 5/20

Findings qua offence u/s 366/34 of IPC against accused Kishan, Dinesh and Saraswati.

Section 366 of IPC deals with kidnapping or abducting of any woman with intent that she may be compelled , or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse.

It is already discussed above that prosecution has been able to prove that prosecutrix was kidnapped by accused kishan and in furtherance of their common intention further taken away by accused Dinesh, who took PW1 at Hardoi at the house of Kishan. Now it has to be seen whether she was kidnapped or abducted with intention to marry or seduced for illicit intercourse by the accused persons.

PW1 has deposed that after about 7 days, accused Kishan also reached at Hardoi. She was kept at Hardoi for about one month. Accused Dinesh left Hardoi after accused Kishan reached there. PW1 has further stated that during her stay for about one month, accused Kishan committed raped upon her without her consent everyday. She has further stated that accused Kishan used to say her that he would marry her,but she refused to marry and used to tell accused Kishan to leave her at her parents house .

In the cross examination, PW1 has denied that she had written any letter to accused Kishan. She has also denied that mark DA i.e. greeting card was given by her to accused Kishan. PW1 has denied that mark DA was got written by Mamta for her. She has also denied that three days before the date of incident, she met to Kishan and told her that her father wanted to marry her somewhere else, but she wanted to marry with accused.

PW1 has further stated that she did not go to any court, when she SC No. 112/1 6/20 remained at the house of accused Kishan. The photograph at point A is her photograph, but it is wrong that she got married with accused Kishan in court and certificate to this effect is mark DB. PW1 has also denied that she appeared before the officer concerned for registration of her marriage mark DB. According to the mark DB, accused Kishan and PW1 got registered their marriage , showing their age 24 years and 22 years from District marriage Office, Hardoi, on 09/06/03. According to PW1 prosecutrix, she was kidnapped by accused Kishan on 25/05/03 i.e. before 09/06/03, prosecutrix was in possession of accused Kishan and he used to say that he would marry the prosecutrix and during the stay of prosecutrix with accused Kishan, he committed rape upon her without her consent for about one month. From mark DB, it is also clear that PW1 was kidnapped by accused Kishan and further by accused Dinesh in furtherance of their common intention, with intent that she may be compelled to marry with accused Kishan against her own will and she will be forced to illicit intercourse. It is also corroborated from marriage registration certificate mark DB that accused Kishan after giving the false particulars in the same got registered the marriage without the consent of prosecutrix. PW1 has not been confronted with his thumb impression at mark DB.

According to MLC of prosecutrix PW10/A, she was medically examined on 24/06/03, her hymen was found torn, which also corroborates with the fact that she was raped by accused Kishan for about one month without her consent. Ld. Defence Counsel has contended that during the stay of prosecutrix , she did not raise any alarm or even she did not raise any alarm that accused Kishan was taking her away, which shows that she was the consented party to her taken away by accused Kishan.

The contention of Ld. Defence Counsel is not tenable in any manner as PW1 prosecutrix has specifically stated that she did not raise any alarm,when accused Kishan took her because he has threatened her. PW1 has further deposed SC No. 112/1 7/20 that in the bus many people were sitting, but she did not raise any alarm since accused Kishan was having a blade. PW1 has further explained that she did not tell about the blade to MM or police, since she forget to mention the same. Prosecutrix also denied the suggestion that accused Kishan has not threatened or that accused Kishan was not having any blade, so PW1 has been able to explain as to why she did not raise any alarm when accused Kishan took her because she was threatened by the accused and accused was also having blade, which certainly raised the fear in the mind of the prosecutrix. Deposition of PW1 inspires confidence and she is trustworthy. It is not suggested to PW1 that she has deposed falsely against the accused because complainant had borrowed some money from the accused and when accused demanded back the same, he has been falsely implicated in this case.

In view of the above discussion, prosecution has been able to prove offence u/s 366/34 of IPC against accused Kishan and accused Dinesh beyond reasonable doubts, for which they are held guilty and convicted for the same.

Accused Saraswati has been charged for offence u/s 366/109 of IPC that she alongwith accused Kamla (PO) in furtherance of their common intention instigated and abetted prosecutrix to run away and marry with accused Kishan against her will.

In this respect, PW1 prosecutrix is the only witness, who has deposed that accused Saraswati and her daughter Mamta also used to work in the same factory in which she and her mother were working. On 25/05/03, accused Kishan came to her house and told that her mother was calling in another Rajma factory. She believed accused Kishan and accompanied him in a rickshaw. On the way, she met with accused Saraswati and her daughter Mamta, both told her to go and also told her that they would be following her.

In my opinion, this deposition of PW1 prosecutrix against accused Saraswati is not sufficient to prove that accused Saraswati instigated and abated SC No. 112/1 8/20 PW1 to run away and marry with accused Kishan. Simply saying that prosecutrix should go and they would follow them, does not mean that accused Saraswati in any manner instigated or abated PW1 to run away or marry with accused Kishan.

From the testimonies of PW1 prosecutrix, it is also clear that, she was taken by accused Kishan on the pretext that PW1 was called by her mother in another rajma factory, so at that time prosecutrix was not under any impression that she was being kidnapped by accused Kishan or could be forced to marry with accused Kiahn. Even no such inference can be drawn from the deposition of PW1 prosecutrix that accused Saraswati instigated or abated her in any manner to go with accused Kishan.

In her statement, accused Saraswati has denied this part of the evidence and has explained that complainant had borrowed money from accused Kishan and on demand, this false case was got registered against her by the complainant as she was the witness to the same. This explanation given by accused Saraswati has not been suggested to PW1 in her cross examination in any manner. PW1 has denied the suggestion that due to enmity, she has named accused Saraswati also in this case but reason of enmity was not put to PW1, so the same is not helpful in any manner. PW1 has denied the suggestion that accused Saraswati did not meet her on the way alongwith her daughter Mamta or both of them did not tell her to go and they will follow them.

But even considering these facts, prosecution has not been able to prove offence u/s 366/109 of IPC against the accused Saraswati, that she instigated or abated PW1 to run away or marry with accused Kishan against her will, beyond reasonable doubts as testimony of PW1 to this extend is not sufficient to prove that accused Saraswati abetted the prosecutrix in any manner. Accordingly accused Saraswati is acquitted from the offence u/s 366/109 of IPC, as the prosecution has not been able to prove the same beyond SC No. 112/1 9/20 reasonable doubts Findings qua offence u/s 368/34 of IPC against accused Kishan.

Section 368 of IPC deals with wrongfully concealing and keeping in confinement, kidnapped or abducted persons.

In this respect, PW1 prosecutrix has deposed that accused Dinesh took her at the house of accused Kishan at Hardoi. After about 7 days, accused Kishan also reached there . She was kept at Hardoi for about one month. Dinesh left Hardoi after accused Kishan reached there. During her stay for about one month accused Kishan committed rape upon her without her consent everyday. Mother of accused Kishan left her at the house of Mausi of Kishan at Khattapur. Mausi of Kishan locked her there for about 6/7 days. Thereafter police reached there alongwith her parents and she was rescued from that house.

From this part of deposition of PW1, it seems that she was wrongfully concealed and confined by Mausi of accused Kishan at her house at Khattapur for about 6-7 days. PW1 prosecutrix has no where deposed that during her stay for about one month with accused Kishan, while she was raped by accused Kishan without her consent at Hardoi, she was wrongful concealed or was kept under confinement by accused Kishan in any manner. Even in further deposition, PW1 prosecutrix has stated that during her stay with accused Kishan at the various places, accused used to say that he would marry her, but she refused to marry him and used to say accused to leave her at her parents house. Mausi of accused Kishan is not an accused in this case. Mother of accused Kishan i.e. Kamla is proclaimed offender.

In the cross examination, PW1 has further deposed that she did not go to any court and she remained in the house of accused Kishan at Hardoi, which shows that she was not wrongful concealed or kept in confinement after kidnapping by accused Kishan. In the absence of any deposition by PW1 SC No. 112/1 10/20 prosecutrix that she was concealed or kept in confinement by accused Kishan at Hardoi, prosecution has not been able to prove offence u/s 368/34 of IPC against accused Kishan in any manner. Accordingly accused Kishan is acquitted for the offence punishable u/s 368/34 of IPC, as the prosecution has not been able to prove the same beyond reasonable doubts.

Findings qua offence u/s 376/506 of IPC against accused Kishan.

In this respect, PW1 prosecutrix has deposed that she was kept at Hardoi for about one month and during her stay, accused Kishan committed rape upon her without her consent every day. After her recovery, prosecutrix was got medically examined and her underwear was taken by the doctor. PW1 has identified her underwear as Ex.P1. PW1 has denied the suggestion that she went with accused Kishan at her own. She has also denied the suggestion that she is more than 18 years of age on the day of alleged incident. She has also denied that she got married with accused Kishan in the court as per certificate mark DB, but has admitted the photograph affixed on mark DB of her own.

PW1 has not been cross examined on behalf of accused Kishan that she was not raped by accused Kishan in any manner or that if there were any relations of sexual intercourse, then they arose being both married as per mark DB and both made sexual relationship with their consent with each other. So the testimony of PW1 that she was raped by accused Kishan for about one month during her stay at Hardoi without her consent everyday is unrebutted and unshaken. The age of the prosecutrix has been opined in between 14 to 16 years and according to section 375 of IPC consent of prosecutrix is immaterial if she is under 16 years of age. Even taking the age of prosecutrix as 16 years, even then she has not consented for sexual intercourse by the accused in any manner.

Missing report of PW1 was lodged by PW4 Smt Kamla, her mother SC No. 112/1 11/20 and she raised suspicion on accused Saraswati, Kishan and Rakesh and one Ramu. She has been cross examined by Ld APP, wherein she has stated that she wrongfully named Rakesh in complaint dated 28/05/03 and in fact accused Kishan took her daughter, In the cross examination, she has stated that her missing report is Ex.PW4/DA.

PW5 HC Rajkumar was posted at PS Sultan Puri and on 28/05/03, PW4 Smt Kamla reached in the PP. Her statement was recorded by PW5. He made his endorsement on the same. Statement of complainant PW4 Kamla is Ex.PW4/A and his endorsement is Ex.PW5./A. He handed over the rukka to HC Raj Pal for registration of FIR, who got registered the case and handed over the rukka and copy of FIR to him.

PW2 HC Dilbagh Singh has stated that on 28/05/03, while he was working as DO, he registered the FIR of this case on receipt of rukka from HC Raj Kumar. He has proved the copy of same as Ex.PW2/A. He also made his endorsement on rukka Ex.PW2/B. PW2 has not been cross examined by Ld. Defence Counsel in any manner. PW4 has also not been crossed examined about her missing report Ex.PW4/DA. PW4 has been cross examined regarding the age of prosecutrix only.

PW5 has further deposed that on receipt of rukka and copy of FIR, he started search for the prosecutrix and accused , but they could not be found. He also recorded statement of Constable Rajpal. On 23/06/03, he came to know that prosecutrix might be at Hardoi. He went to Hardoi alongwith parents of prosecutrix and one Constable Ram Dayal. They reached at the house of accused Kishan. On 24/06/03, mother of accused Kishan informed them that prosecutrix and his son had gone to Delhi. They came back to Delhi on 25/06/03, he allowed the parents to go to the home however, after sometime the parents of the prosecutrix came back and stated that their daughter had reached at home. He SC No. 112/1 12/20 informed the development of the case tot he SHO/IO. PP Incharge called him to call the prosecutrix and her parents at the chowki and further investigation of the case was handed over to PW16 ASI Shagun Lal.

Ld. Defence Counsel has contended that prosecutrix and other public witnesses cannot be believed as they have not corroborated each other regarding the fact that PW1 was produced by her parents in PP.

PW1 has stated that she was locked for about 6-7 days by Mausi of accused Kishan, where police reached and she was rescued from that house. Accused Kishan was also apprehended. They were brought to Delhi. PW1 prosecutrix has not been cross examined on this aspect that she was brought to Delhi by accused Kishan and she was not recovered from Hardoi. Rather in the cross examination, PW1 prosecutrix has stated that she did not State to the police that accused Kishan left her at her house or at Delhi and asked her to meet him at Braham Shakti hosp on 25/06/03. PW1 has further deposed that police has wrongly written so.

PW4 Smt Kamla mother of prosecutrix has stated that her daughter was recovered from accued Kishan after about one month. PW4 has further deposed that her daughter was recovered from the house of mausi of accused Kishan from Khattapur, District Hardoi and mother of accued Kishan accompanied them at that time. PW4 has not been cross examined on this aspect nor she was suggested that PW1 was not recovered from Khattapur District Hardoi and mother of accused Kishan did not also accompany them.

Even, it is was not suggested to PW5 HC Raj Kumar that prosecutrix was not produced by her parents at PP, but was recovered at Hardoi from the house of Mausi of accused Kishan, in the cross examination.

PW16 SI Shagun Lal has stated that on 24/06/2003, he was posted at PP Budh Vihar PS Sultanpuri. On that day, investigation of this case was handed over to him. Parents of prosecutrix produced the prosecutrix before him in the SC No. 112/1 13/20 night. He made inquiries from the prosecutrix and she was sent for her medical examination with a lady Constable in SGM hospital. So there are two versions regarding the recovery of prosecutrix. One is of PW1 that she was recovered from the house of Mausi of accused Kishan from Khattapur, where police reached alongwith her parents and she was rescued from house. Accused was also apprehended and they were brought to Delhi. PW4 Smt Kamla mother of prosecutrix, has also corroborated the same and has deposed that her daughter has deposed from the house at Khattapur and mother of accused Kishan also accompanied them at that time.

Second version is of PW5 HC Rajkumar, who has stated that he, on 23/06/2003, went to Hardooi alongwith PW4, father of prosecutrix . They reached there on 24/06/03. Mother of accused Kishan informed them that prosecutrix and her son had gone to Delhi, so they came back to Delhi on 25/06/03.

Neither PW1 nor PW4 has deposed as to when prosecutrix was recovered from the house of Mausi of accused Kishan from Khattapur. According to PW5 they came back to Delhi on 25/06/03 without recovering prosecutrix, as they were told that she had gone to Delhi with accused Kishan, whereas PW16 has stated that prosecutrix was produced before him by her parents on 24/06/03 in the night. So, according to PW5 HC Rajkumar on 24/06/03, parents of prosecutrix were with him at Hardoi and they came back to Delhi on 25/06/03, so it is doubtful whether prosecutrix was recovered from house of Mausi of accused Khattapur or she was produced by her parents in PP on 24/06/2003. PW16 SI Shagun Lal has also not been cross examined by Ld. Defence Counsel as to whether prosecutrix was produced by her parents before him or was recovered from the house of Mausi of accused Kishan from Khattapur District Hardoi, but as per MLC, on 25/06/03, itself prosecutrix was sent on medical examination by SGM and accused Kishan was also arrested on 25/06/03 from main road, near Braham Shakti hospital. After medical examination and bone age X-ray of PW1, SC No. 112/1 14/20 PW16 recorded statement of PW1 u/s 161 Cr.PC, wherein she had narrated all the facts as deposed by her before the Court as PW1. So it cannot be said that she has made any improvement in her statement or she was tutored by her parents to depute against the accused persons.

Even PW16 SI Shagun Lal has contradicted with PW1 and PW4 regarding the arrest of accused Kishan and has deposed that he alongwith prosecutrix, parents of prosecutrix and Constable reached at Braham Shakti hospital at about 10/10.30 am and accused Kishan was apprehended and interrogated. Accused Kishan was arrested and his personal search was conducted. Later on he was sent to hospital through Constable Raj Kumar.

So, whatsoever it may be, whether prosecutrix was recovered from the house of Mausi of accused Kishan or she was produced before the police by her parents. One fact is corroborated that she was medically examined on 24/06/03, and accused was arrested on 25/06/03. Merely place of recovery of prosecutrix and arrest of accused are seems to be doubtful due to contradictions does not falsify the testimonies of PW1 and other witnesses.

The sealed pullandas received by PW6 Lady Constable Anita, during examination of prosecutrix were seized by the Investigating Officer PW16 SI Shagun Lal vide memo Ex.PW6/A. These were deposited with PW3 HC Yashbir Singh, who proved the entries made by him at serial no.7370, copy of which is Ex.PW3/A. PW3 has further deposed that on 28/08/03, he sent all the parcels to CFSL, Calcutta through Constable Khilari Ram vide RC no.348/21/03 and he made entry at Point A in register no.19 in Ex.PW3/B. PW9 Constable Khiladi Ram has corroborated these facts and has deposed that he collected the sealed pullandas on 28/08/03 vide RC no. 348 of 21 and deposited the same at CFSL Kolkatta and after that, he handed over to the receipt to MHC(M). According to report, CFSL Kolkatta, Ex.1 vaginal swab and Ex.2 panty were examined and they were found negative for semen test. PW1 SC No. 112/1 15/20 Prosecutrix has stated that she was only having clothes which she was wearing at the time when she was taken by accused Kishan and Dinesh and they did not buy any clothes for her in the way, does not inspire any confidence because neither she has been cross examined at length that she was wore the same clothes for whole of month till her recovery and it is also not known when she was produced before the doctor for her medical examination, she was wearing same clothes or not. So there could be any possibility of semen on her panty or could be found on vaginal swab as taken by the doctor but all these facts do not falsify the deposition of PW1 that she was raped by accused Kishan for one month in the house of accused Kishan at Hardoi without her consent. Even assuming that prosecutrix was aged about 16 years after taking two years margin on higher side, even then it cannot be said that she had committed sexual intercourse with accused Kishan with her consent because PW1 has specifically stated that during her stay for about one month, accused Kishan Committed rape upon her without her consent and she has not been cross examined on this aspect in any manner.

Even accused Kishan has not been able to prove the fact that prosecutrix married at her own on 09/06/2003 as per marriage certificate mark DB because prosecutrix has admitted only her photograph affixed on the same and she has not been confronted by Ld. Defence Counsel about her thumb impression on the same. Marriage certificate was issued on 09/06/03 and according to marriage registration certificate, both Kishan and prosecutrix have shown as previously married and residing at Hardoi for the last about six months, which itself perse false because prosecutrix was with accused since 25/05/03. Prosecutrix has categorically stated that she was kidnapped on the false pretext by accused Kishan further by accused Dinesh on 25/05/03 and there is no evidence on record either of PW1 prosecutrix or of any other witness that prior to 25/05/03, PW1 was at Hardoi. Accordingly testimony of PW1 that she was residing in Delhi and was kidnapped on 25/05/03 by accused Kishan and further by accused SC No. 112/1 16/20 Dinesh on false pretext, inspires confidence and from her deposition, prosecution has been able to prove beyond reasonable doubts that prosecutrix was raped without her consent everyday for about one month by accused Kishan during her stay at Hardoi and she was not married with accused Kishan in any manner.

It has been held in 2008 CRI.L.J.1099 titled as Bipul Mehta and etc. v. State of Assam that "if prosecutrix in her evidence stating that she had not consented to sexual act then there is presumption under S.114-A of Evidence Act that she had not consented to sexual act and the same can be drawn. Burden shift to accused to prove that his sexual act with prosecutrix was with her consent."

MLC of PW1 has been proved by PW10 Dr. Manoj, who has deposed that on 24/06/2003, prosecutrix was medically examined by him at about 11.20 pm with the alleged history of forced intercourse by a male worker of a factory as told by the patient and Dr. Sehgal prepared the MLC Ex.PW10/A. PW10 has identified the signatures and handwriting of Dr. Sehgal as he was his colleague. Accordingly PW1 was referred to Gyanae and forensic opinion and X-ray for age determination. Vaginal swab has been taken and handed over to the Investigating Officer. PW10 has not been cross examined by Ld. Defence Counsel in any manner. So his testimony remained unshaken.

From the MLC of PW1, it is clear that on 24/06/2003, she was medically examined at 11.20 pm. Accused Kishan was arrested vide memo Ex. PW5/C, on 25/06/03 at about 10/10.30 am. It seems that PW5 HC Raj Kumar has inadvertently deposed the dates, regarding coming back to Delhi on 25/06/03 and regarding arrest of accused on 26/06/03. Infact from the deposition of this witness, it appears that HC Rajkumar came back to Delhi on 24/06/03 with the parents of prosecutrix on the information that accused and PW1 prosecutrix had gone back to Delhi and on 24/06/03 , itself prosecutrix was produced in the PP by her parents where she had sent for medical examination at about 11.20 pm at SGM hospital. It is also corroborate that on the next day i.e. on 25/06/03 accused Kishan was arrested on the pointing of prosecutrix near Braham Shakti hospital at about SC No. 112/1 17/20 10/10.30 am. So the contradiction as appeared in the deposition of PW5 is not effecting the case of the prosecution as all other witnesses regarding arrest of accused near Braham Shakti hospital on 25/06/03, have corroborated each other. Even PW1 has stated that she was medically examined and her underwear was taken by the doctor. Even the arrest memos of accused Ex.PW5/C is bearing the signatures of PW1, which is of date 25/06/03, so in all prosecution has been able to prove beyond reasonable doubts that prosecutrix was produced before police by her parents on 24/06/03 in PP, where she was sent for her medical examination at about 11.20 pm to SGM hospital and thereafter on next day, on her pointing, accused Kishan was arrested from near Braham Shakti hospital on 26/06/03 at about 10/10.30 am.

It has been held in 2008 CRI.L.J.3787 titled as Vikki alias Vijaykumar v. State of Harihar Town that "minor infirmities and discrepancies can be disregarded when they do not affect the core of testimony of prosecutrix."

In view of the same, if there are discrepancies regarding the place of recovery of prosecutrix and regarding the place of arrest of accused Kishan, then on this ground alone, prosecutrix cannot be disbelieve in any manner.

Merely PW1 and PW4 have made the improvement regarding apprehension of accused Kishan from village Khattapur, District Hardoi, did not render them unbelievable in any manner, because simultaneously, prosecutrix has also admitted that she was medically examined, which corroborates with her MLC Ex.PW10/A. PW1 has also deposed that her underwear was taken by doctor, which was also taken on 24/06/03. PW1 has identified her underwear as Ex.P1.

Accused Kishan was also sent for his medical examination on 25/06/03 and PW7 Dr. V.K. Jha examined him vide MLC Ex.PW7/A. According to the opinion of PW7, there was nothing to suggest that accused Kishan was incapable of performing sexual act. PW7 has also not been cross examined by Ld. Defence SC No. 112/1 18/20 Counsel in any manner.

According to PW16 SI Shagun Lal, PW5 HC Rajkumar handed over to him two sealed pullandas relating to accused Kishan with the seal of SGM hospital, which he seized vide memo Ex.PW5/B. These parcels were also sent for examination at CFSL Kolkatta. These were containing underwear of accused and blood sample. Underwear was found negative of semen test and sample was found positive with blood test. Accused Kishan was arrested on 25/06/03 at about 10/10.30 am and prosecutrix appeared before police on 24/06/03. So there was no possibility of semen in the underwear of accused Kishan because it is not the case of prosecution that before the apprehension of accused, he committed rape upon the prosecutrix. According to PW1, she was raped by accused Kishan for about one month in Hardoi by accused without her consent everyday and PW1 has not given any date when lastly accused had committed sexual intercourse with her, so it cannot be said as to when lastly accused Kishan had committed sexual intercourse with prosecutrix without her consent or lastly on 24/06/03, when she was produced before the police, or prior to that.

It has been held in 2008 CRI.L.J.710 titled as Rajendra Dutta Zarekar v. State of Goa that "false implication of accused is normally improbable. Rape leaves a permanent scar and has a serious psychological impact on victim and also her family members. No one would normally concoct a story of rape just to falsely implicate a person."

It has been further held in 2008 CRI.L.J. 3543 titled as Moti Lal v. State of M.P that "rape is not merely physical injury but deep sense of some deathless shame. Accused cannot insist on corroborative evidence, even if case spoken by victim was probable."

In view of the above discussion although prosecution has not been able to connect the exhibits with the rape of the prosecutrix, but according to MLC Ex.PW10/A, her hymen was found torn and PW1 has categorically stated that she was raped by accused Kishan during her stay in the house of accused Kishan without her consent at Hardoi. Deposition of PW1 inspires confidence and SC No. 112/1 19/20 nothing have been brought on record to disbelieve her testimony. During his medical examination, accused Kishan was also found capable of performing sexual intercourse. So even if considering the age of prosecutrix at higher side i.e. 16 years, prosecution has been able to prove offence u/s 376 of IPC beyond reasonable doubts against accused Kishan for which he is held guilty and convicted for the same.

In respect of offence u/s 506 of IPC, PW1 has deposed that accused Kishan also used to beat her and used to tell her not to tell anything to her parents and used to tell her that she should tell her parents that she had gone with accused of her own, otherwise police would arrest him. In the cross examination, PW1 has stated that she did not raise any alarm, when accused took her because he had threatened her. PW1 has further deposed in the cross examination that in the bus many people were sitting, but she did not raise any alarm because accused Kishan was having blade. The evidence of PW1 prosecutrix in this respect is unrebutted and unshaken.PW1 has explained that she did not tell about the blade to Ld MM or to police since she forget to mention the same, so the contention of Ld. Defence Counsel that PW1 has made improvement regarding threating and regarding the fact that accused Kishan was having blade is not tenable as sufficient explanation has been given by PW1. Accordingly, as accused Kishan has threatened PW1 and he was also having blade, which caused alarm to the prosecutrix and in such way, accused Kishan criminally intimidated the prosecutrix. So, prosecution has been able to prove the offence u/s 506 of IPC against accused Kishan beyond reasonable doubts for which he is held guilty and convicted for the same. Announced in Open Court on dated 7th of April, 2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No. 112/1 20/20 IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI:DELHI SC No. 112/01 Unique Identification No.02404R1002142003 State Versus Kishan S/o Chotte Lal R/o Baba Mandir Mohalla Chauavan, Thok District Hardoi UP.

FIR No. 596/03

PS - Sultan Puri U/s. 363/34 of IPC, 366/34 of IPC, 376 of IPC and u/s 506 of IPC Date of Decision: 07/04/2011 Date of Order on Sentence: 13/04/2011 ORDER ON SENTENCE 13/04/2011 Present. Ld. APP for State.

Learned defence counsel Sh. R.N. Singh for convict Kishan. Heard.

Learned defence counsel submits that convict Kishan is aged about 38 years. He is not a previous convict. Even he has not been booked in any other case. He is not a habitual offender. He is unmarried and is living with his widow mother. He is working as Beldar. His brothers are residing separately and he is the only support of his widow mother, who is aged about 80 years. Learned defence counsel has further contended that considering the age, antecedents and above facts and circumstances, a lenient view be taken.

SC No. 112/1 21/20

On the other hand, Ld. APP has contended that accused Kishan has been convicted for offences U/s. 363/34, 366/34, 376 and 506 of IPC, which are heinous and he be dealt with accordingly and appropriate sentence be awarded.

Offence U/s. 363 of IPC is punishable with imprisonment for a term which may extend to seven years and also with fine.

Considering the above facts and circumstances, sentence of three years S.I. is imposed with fine of Rs. 1000/- for the offence punishable U/s. 363/34 of IPC. In default of payment of fine, the convict shall undergo simple imprisonment of nine months.

Offence U/s. 366 of IPC is punishable with imprisonment for a term which may extend to ten years and also with fine.

Considering the above facts and circumstances, sentence of seven years S.I. is imposed with fine of Rs. 1000/- for the offence punishable U/s. 366/34 of IPC. In default of payment of fine, the convict shall undergo simple imprisonment of one year and six months.

Offence U/s. 376 of IPC is punishable with imprisonment which shall not be less than seven years but which may be for life or for a term which may extend to ten years and is also liable for fine.

Considering the above facts and circumstances, sentence of seven years S.I. is imposed with fine of Rs. 1000/- for the offence punishable U/s. 376 of IPC. In default of payment of fine, the convict shall undergo simple imprisonment of one year and six months.

Offence U/s. 506 of IPC is punishable with imprisonment which may extend to two years or with fine or with both.

Considering the above facts and circumstances, sentence of two years S.I. is imposed for the offence punishable U/s. 506 of IPC.

Convict Kishan remained in custody from 25/06/2003 to 25/05/2006 and from 07/04/2011 till today.

SC No. 112/1 22/20

All the substantive sentences of imprisonment shall run concurrently. Benefit of Section 428 Cr.PC be given to the convict.

Fine not deposited.

Convict be remanded to serve the sentence.

Announced in Open Court on dated 13th of April, 2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No. 112/1 23/20 IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI:DELHI SC No. 112/01 Unique Identification No.02404R1002142003 State Versus Dinesh S/o Sadhu R/o Gram Sursa, District Hardoi, UP FIR No. 596/03 PS - Sultan Puri U/s. 363/34 & 366/34 Of IPC Date of Decision: 07/04/2011 Date of Order on Sentence: 13/04/2011 ORDER ON SENTENCE 13/04/2011 Present. Ld. APP for State.

Learned defence counsel Sh. R.N. Singh for convict Dinesh. Heard.

Learned defence counsel submits that convict Dinesh is aged about 30 years. He is not a previous convict. Even he has not been booked in any other case. He is not a habitual offender. He is married and is having one child aged about one year and living with his widow mother. He is working as Beldar. His brothers are residing separately and he is the only support of his widow mother, who is aged about 65 years. Learned defence counsel has further contended that considering the age, antecedents and above facts and circumstances, a lenient view be taken.

SC No. 112/1 24/20

On the other hand, Ld. APP has contended that accused Dinesh has been convicted for offences U/s. 363/34 and 366/34 of IPC, which are heinous and he be dealt with accordingly and appropriate sentence be awarded.

Offence U/s. 363 of IPC is punishable with imprisonment for a term which may extend to seven years and also with fine.

Offence U/s. 366 of IPC is punishable with imprisonment for a term which may extend to ten years and also with fine.

Convict Dinesh remained in custody from 18/12/2003 to 17/11/2005 and from 07/04/2011 till today.

Both the substantive sentences of imprisonment shall run concurrently. Benefit of Section 428 Cr.PC be given to the convict.

Fine not deposited.

Convict be remanded to serve the sentence.

Announced in Open Court on dated 13th of April, 2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No. 112/1 25/20

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Delhi District Court

State vs Kishan on 13 April, 2011