Delhi District Court
State vs . Deepak S/O Ramesh, on 21 September, 2010
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE-V: ROHINI COURTS: DELHI
SC No. 147/08
ID No.02404R0657872007
FIR No.1469/07
PS Sultan Puri
U/s 376/506 IPC & 363/366A/34 IPC
State Vs. Deepak S/o Ramesh,
R/o D-I/51, Sultan Puri,
Delhi.
Smt. Anita W/o Man Singh,
R/o D-I/51, Sultan Puri,
Delhi.
Date of Institution in Sessions Court : 24.01.2008
Date of transfer to this Court: 08.12.2008
Date of Judgment : 16.09.2010
JUDGMENT
1. In brief, the prosecution story is that on 10.10.2007, one Sonia along with her daughter (B) (name of the prosecutrix, has been changed, as it is a case U/s 376 IPC) came to the PS and got recorded the following statement of the prosecutrix. State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 2 "That she was residing along with her mother at Sultan Puri and on 09.10.2007 at about 2:00 p.m, her mother had sent her to the market for bringing flowers, therefore, she went to P-2, Sultan Puri market for bringing flowers, in front of the market one Anita Aunti met her, whom she knew previously and who was residing in D-Block, Sultan Puri and she also used to visit their house. She told her that her mother had gone to her house and she was calling her there. Thereafter, she made her to sit on the cycle rickshaw. At that time, one other person was also sitting on the rickshaw, and she was made to sit in between them, and she had seen that person, who was the tenant of Anita, namely, Deepak.
Thereafter, said Anita took her to her house, State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 3 No. D-1/51, Sultan Puri, where she left her and Deepak in one room and she went upstairs, on the first floor. Thereafter, Deepak latched the said door and told her, and threatened her, if she raised any alarm, she would be killed. Thereafter, he removed her clothes and his clothes and raped her against her consent. After sometime, he went away and on getting an opportunity, she ran away from the said place, and on inquiries by her mother, she narrated the entire incident to her".
2. On the said statement, a rukka was written by SI Girish Chander, and an FIR U/s 376/363/506 IPC was registered at PS Sulatn Puri.
3. Further investigation(s) were taken up. The prosecutrix(B) was medically examined and after her medical examination, sealed pullandas were sealed from the doctors. The site plan of the place of occurrence was prepared at the instance of the complainant. State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 4
4. Both the accused persons were arrested at the instance of the complainant and her mother and their separate disclosure statement(s) were recorded. Accused Deepak was medically examined and relevant pullandas were sealed after medical examination. Section 366A IPC was added later on during the investigation(s).
5. Thereafter, the statement of the prosecutrix was got recorded U/s 164 Cr .PC by Ld. MM. The proof of date of birth of the prosecutrix was obtained, which was 01.04.1997. The relevant samples were sent to FSL for forensic evaluation.
6. After completion of investigation(s), a charge sheet U/s 363/366A/376/506 IPC was filed in the court.
7. Upon committal of the case to the court of sessions, a charge U/s 376/506, & 363/366A/34 IPC was framed against the accused Deepak, whereas a charge U/s 363/366A/34 IPC was framed against the accused Anita, to which both of them pleaded not guilty and claimed trial.
State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 5
8. Thereafter, the prosecution in support of its case has examined 10 witnesses.
PW1 is the prosecutrix (B), the complainant and the star witness of the prosecution.
PW2 is Smt. Sonia, the mother of the prosecutrix. PW3 is Dr. Phebe, from SGM Hospital, who had conducted the internal examination of the prosecutrix on 10.10.2007 and has proved the MLC Ex.PW3/A. PW4 is lady Constable Sandhya, who took the prosecutrix for her medical examination at SGM Hospital and who was also present at the time of arrest of the accused persons. PW5 is Dr. Sangeeta Kumari, who had conducted the medical examination of the accused Deepak on 10.10.2007, vide MLC Ex.PW5/A. PW6 is HC Mahavir Singh, the duty officer, who has proved the copy of the FIR as Ex.PW6/A. PW7 is Sh. Vijay Kumar Singh, teacher from MCD Primary State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 6 School, C-6, Sultan Puri, who has proved the school record of the prosecutrix, regarding her date of birth as 01.04.1997, Ex.PW7/A & Ex.PW7/B. PW8 is Constable Manoj Kumar, who was present at the time of arrest of both of the accused persons and who had taken both the accused persons to hospital for their medical examination, and who had taken the sealed pullandas from the doctors and handed over the same to the I.O, who had seized the same.
PW9 is Sh. Vijay Shankar, Ld. MM, who had recorded the statement of the prosecutrix U/s 164 Cr. PC, Ex.PW9/B. PW10 is SI Girish Chandra, the I.O of the case, who has deposed regarding the investigation(s), as were carried out by him, during the course of the present case.
9. Thereafter, separate statements of the accused persons were recorded U/s 313 Cr. PC, in which all the incriminating evidence, which had come on the record against the accused persons were put to them. Thereafter, supplementary statements of the accused State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 7 persons U/s 313 Cr .PC were also recorded, in which certain other incriminating evidence, which had inadvertently not put to them were put to the accused persons.
10. The defence of the accused Deepak was that he was innocent and was falsely implicated in this case and he had not committed any offence, as at the time of the offence he was on his job and when he returned he was called by the officials of PS Sultan Puri and was falsely implicated in this case. The defence of the accused Anita was that she had given money to PW2, as she was made fool by her by practicing tantrik activities and she stated that after pooja and sacrifices she would get huge amount of money and money will also be found lying beneath the earth of her house. When, she refused to pay further money, as demanded by PW2, she was falsely implicated in this case by using PW1.
Both the aforesaid accused persons examined one witness each in their defence. Accused Deepak examined DW1 Sonu Kumar in his defence, whereas accused Anita examined Mala Kaur as her State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 8 defence witness. Both the accused persons took the plea of alibi, that both of them were not present at the place, where the alleged incident took place.
11. I have heard the Ld. Defence counsel Sh. Harish Gupta and Ld. Addl. PP for the state Sh. G.S. Guraya and I have also perused the written submissions, filed on behalf of the accused Deepak. Ld. Counsel for the accused persons has also relied upon the following judgments.
1. AIR 1973 Supreme Court 343 Rahim Beg & Anr. Vs.The State of UP.
2. 1997(3) Crime 167(SC) Prahlad Singh Vs. State of Madhya Pradesh.
3. 1998(1) JCC(Delhi)217 Samey Singh Vs. State.
4. 2009(12) SCALE 303 Tameezuddin @ Tammu Vs. State of (NCT) of Delhi.
5. 2009 VAD(Cr.)(SC)10 Musauddin Ahmed Vs. The State of Assam.
6. 2008 VAD(Cr.)(DHC)333 Manish Vs. The State(NCT of Delhi).
12. Ld. Defence counsel has argued that as per the rukka, the age of the prosecutrix was mentioned as 13 years at the time of recording of her statement, whereas, in the school certificate State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 9 produced by the prosecutrix her age comes to 12 years and mother of the prosecutrix has stated that she had not submitted any affidavit at the time of admission of the prosecutrix in the school, therefore, he has argued that age of the prosecutrix itself is not clear, which could be more than 16 years in the present case.
13. He has further argued that identity of both the accused persons is in doubt, as the prosecutrix in her statement before the court has stated that she did not knew both the accused persons prior to the incident and none of the accused persons had been identified by the prosecutrix in the test identification parade(TIP) in the investigation(s). Therefore, the identification of the accused persons for first time in the court was worthless, as the identity of the accused persons, should have been clearly established by the prosecution before the trial.
14. He has also argued that there are number of material contradictions in the testimony of the prosecutrix as the prosecutrix in her initial statement made to the IO had stated that she had been State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 10 threatened by the accused Deepak at the time of commission of rape, whereas in her statement U/s 164 Cr.P.C, she stated that the accused Anita had shown her knife. Whereas, in her testimony in the court, she stated that the accused Deepak had shown her knife. Similarly, in her statement to the IO, she had stated that she had been raped by accused Deepak, whereas, in her statement recorded U/s 164 Cr.P.C, she has stated that she had been raped by the accused Deepak by putting a condom and which has also been stated by her in her examination in chief. He further argued that there are other contradictions in the prosecution story, which makes her testimony unreliable and not worthy of reliance. He has also argued that the medical evidence in the present case produced by the prosecution does not support the case of prosecution, as no injuries were found on the body of the prosecutrix or on her private parts, which also shows that the entire prosecution story including the statement of the prosecutrix was false and the said medical evidence would have been important corroborative piece of State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 11 evidence in this case, in the absence of the same, the testimony of the prosecutrix cannot be relied upon, as it is without any corroboration from any other quarter and therefore, he prays that the accused persons deserves to be acquitted.
15. On the other hand ld. Addl. PP for the State has argued that the age of the prosecutrix is not material in the present case, as it is not the case of the defence that the prosecutrix was a consenting party in the act of sexual intercourse. He has also argued that even if the age of the prosecutrix is held to be more than 16 years at the time of incident, even then it no where helps the case of the accused persons. He has further argued that the identity of the accused persons has been clearly established by the testimony of PW1, the prosecutrix(B), who in her statement in the court had stated that she knew the accused Anita as she used to visit their house . Regarding the other accused Deepak, he has argued that the TIP is only help to establish the identity of the accused persons and to strengthen the trustworthiness of the witness during the trial and the State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 12 said evidence was only corroborative piece of evidence to strengthen the testimony of the witness in the court and there is no obligation on the part of the prosecution or the investigating agency to hold a test identification parade in all the cases nor accused can claim such a right. Consequently, he has argued that non holding of TIP of both the accused persons, which in this case was not fatal to the case of the prosecution, therefore, the identity of the accused persons has been clearly established in this case.
16. Regarding the rape, Ld. Addl. PP for the State has argued that from the testimony of PW1 the prosecutrix, it is clearly established that the prosecutrix had been raped by the accused Deepak after she was enticed by the other accused Anita from the market place on a rickshaw, where the prosecutrix had gone to purchase flowers on the asking of her mother and there are minor contradictions in her testimony, which does not go to the root of the prosecution case and she has immediately narrated the incident to her mother. Though, the medical evidence does not support the prosecution State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 13 case, yet it is not necessary that in all the cases of rape there should be injury marks on the body of the prosecutrix.
17. He has argued that this aspect of medical evidence has to be considered in view of the circumstances that the prosecutrix was only a minor girl of 12 years of age at the time of incident and he had no chance to put resistance against the accused. He has further argued that in view of the presumption U/s 114(A) of the Indian Evidence Act, there is a presumption that there was absence of consent on behalf of the prosecutrix, once the prosecution has able to prove sexual intercourse by the accused Deepak. Consequently, he has argued that both the accused persons deserves to be convicted accordingly.
18. I have gone through the rival contentions.
19. Regarding the age of the prosecutrix, the prosecutrix in her initial statement to the police on the basis of which the present FIR was lodged had stated her age to be 13 years. The said statement is Ex.PW1/A. Similarly, at the time of her medical examination her State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 14 age was stated to be 13 years by her mother and at the time of her deposition in the court her age has been stated to be 12 years. Whereas, her age as per the school record, which has been proved by PW7 Vijay Kumar, Ex.PW7/A and Ex.PW7/B comes to 10 years at the time of incident, as the date of birth has been proved as 1.4.97 around 10 years. Though, the mother of the prosecutrix PW2 Smt. Sonia, in her cross-examination has admitted that she had not produced any birth certificate or any document relating to the birth of the prosecutrix at the time of admission to the school. However, the same in no where helps the case of the accused, as it is no where the case of the accused persons that prosecutrix was a consenting party, rather, the defence of the accused persons in the present case is that no such incident took place and they had been falsely implicated. Even if, the age of the prosecutrix is held to be more than 16 years, even then that would not make any difference to the case of the accused persons.
20. In any case, the mother of the prosecutrix could be said to be State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 15 the best person who could be acquainted with the age of the prosecutrix and no suggestion was put to her in her cross- examination that the age of the prosecutrix was more than 16 years, as the age of the prosecutrix can be said to be the fact which could have been best proved by the mother of the prosecutrix than any other witness. Consequently, the age of the prosecutrix in this case is proved as 13 years, n the basis of the statement initially made to the IO Ex.PW1/A and as per the MLC E.PW3/A.
21. Regarding the age of the accused persons PW1, the prosecutrix in her testimony, more specifically in her cross- examination has stated that she knew Aunty i.e. accused Anita, as she visited their house and regarding the accused Deepak, she stated that was correct that she had not seen the accused Deepak prior to the incident in her cross-examination. However, the same is not fatal to the case of the prosecution. Though, the mother of the prosecutrix, Sonia in her cross-examination has stated that she did not tell the name of the accused persons to the police, though the State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 16 IO was enqiring the name of the accused persons, who were present at the time of recording of her statement at the Police Station, and she had specifically told the IO that she does not know the name of the accused persons.
22. On the other hand, IO PW10, in his cross-examination has stated that the mother of the prosecutrix disclosed about the name of the accused persons to him. The testimony of mother of the prosecutrix to this extent that she had not disclosed the name of the accused persons to the IO in the initial statement Ex.PW1/A, on the basis of which the present FIR was registered, does not appear to be the correct and true version of PW2, as IO had no reason to record the name of the accused persons in the Tehrir Ex.PW1/A, and the same must have been disclosed by the prosecutrix or by her mother PW2 and the IO of its own had no business to record those names. However, the maxim of falsus in uno falsus in omnibus is not applicable to India, therefore, the testimony of the mother of the prosecutrix to that extent that she had disclosed the State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 17 name of the accused persons in the Tehrir is not trustworthy. However, on the whole her testimony appears to be trustworthy and consistent and there is no reason to discard the same. In any case, it has been held in judgment AIR 2003 SC 2669, that :
It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification of in court, which is not preceded by a test identification parade, is a matter for the courts of fat to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in court as she was found to be implicitly reliable. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 18 stage. The crime was perpetrated in broad daylinght. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other.
Before the rape was committed, she was threatened and intimated by the appellants. After the rape was committed, she was again threatened and intimated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their cases as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must be got imprinted in her memory, and there was no chance of her making a mistake about their identify. The occurrence took place on March 4, 1992 and she deposed in Court on August 217, 1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 19 no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances if the courts below have concurrently held that the identification of the appellants by the prosecutrix in court does not require further corroboration, we find no reason to interfere with the finding recorded by the courts below after an appreciation of the evidence on record."
In view of the aforesaid judgment, it is clear that TIP proceedings held before the trial during the investigation(s) are only for the purposes of corroboration to the evidence of the witness regarding the identification in the court and where the prosecutrix had sufficient opportunity to observe the features of the person who raped her. She had the reason to remember their identity and to notice their features and after going through such a traumatic experience, the faces of the accused persons must have been imprinted in her memory and there is no reason why she would State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 20 falsely identify the accused persons in the court.
The aforesaid judgment is squarely applicable to the facts and circumstances of the present case.
23. In the present case, the prosecutrix was young girl of 13 years of age and she had been made to go through a traumatic experience of rape and enticement by the accused persons. Consequently, she had no reason to forget their features and it is not the case of the defence that she had only a fleeting glimpses of the accused persons. Consequently, reliance can be placed on such a witness and there is no reason, why she would falsely depose in the court. Therefore, the non holding of test identification parade during the investigation(s) is not fatal to the case of the prosecution. Therefore, the identity of the accused persons Anita and Deepak has been clearly established by the prosecution.
24. Regarding the rape, the prosecutrix in her testimony while appearing as PW1 has stated that on 9.10.07 at about 2 p.m her mother sent her to Subzi Mandi to bring flowers for Puja. Sunita State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 21 Aunty(sic Anita) met her in the market and asked her to sit in rickshaw. She forcibly made her sit in the rickshaw and took her to her house. One uncle was present there and he showed her a knife and he put off her cloths and he did "Galat Kaam" with her. The prosecutrix pointed out towards the accused persons stating them to be the uncle and Aunty and she accordingly identified the accused persons in the court. She further stated that as the door was bolted, she on the pretext of urinating opened the bolt and ran away. Her mother was searching for her and she met her on the way and told her and they both went to the police station.
25. On asking a court question as to what do you mean by Galat Kaam, she answered that " the accused present in the court used Gubara on his panis. "Phir Who Mere Uper Let Gaya or Usne Apna Panis Mere Pishab Wali Jagah Per Daal Diya or Baad Me Usne Who Gubara Apne Ghar Ki Nali Me Dal Diya Tha or Usne Mere Muh Ke Upar Haath Rakh Diya Tha or Kaya Tha Shor Machaogi Toa Jaan Se Maar Dunga." . She further stated that her statement State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 22 was recorded by the police Ex.PW1/A and she was also taken for her medical examination to SGM Hospital and she also made her statement before the Ld. M.M. which is Ex.PW1/B.
26. In her cross-examination by ld Addl. PP, she stated that one Uncle was also sitting with the Aunti on that Rickshaw and that the name of the Aunti was Anita and the name of the uncle was Deepak. In her cross-examination, though, she had stated that she does not know the name of the Phoolwala shop and the IO in this case had not made the said flower shop owner as a witness, that is not fatal to the case of the prosecution, as it is settled law that the faulty investigation on the part of the IO cannot effect the case of the prosecution, if it is otherwise trust worthy and cogent. In her cross-examination she was confronted with her previous statement Ex.PW1/A, wherein, there was no mentioning about the showing of knife to her and regarding the putting of condom by the accused for doing the rape, which were the improvements made on the part of the prosecutrix. However, the said contradictions regarding the State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 23 showing of knife and putting of condom by the accused for doing the rape, cannot be said to be material contradictions, as the prosecutrix had withstood the cross-examination on the aspect that she had been raped by the accused Deepak, as nothing has come out in her cross-examination on this material aspect that accused Deepak had not raped her.
27. The aforesaid contradictions in her cross-examination are only minor in nature. She has also admitted that she was totally free from the clutches of the accused when he was putting of his clothes, but she did not try to open the door at that time. The state of mind of the prosecutrix at that scarry moment has to be taken into account considering her age which was only a tender age of 13 years and when confronted by fully grown up man, the prosecutrix could not be expected to react swiftly , so as to run away away from the clutches of the accused, who had cornered her. Therefore, merely because the prosecutrix did not try to run away in such a short span of time when the accused Deepak was putting off his State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 24 clothes, does not show that the prosecutrix was a consenting party or was giving untruthful version in the court.
28. Though, the prosecutrix in her testimony has stated that her mother met her near the bus stand route no. 908 and she told the entire incident to her mother in the police station, which is in variance with the testimony of her mother, who in her examination in chief has stated that prosecutrix met her behind Geeta School, Sultan Puri and she was running at that time and she took her directly to the police station and her daughter told her about the incident which happened with her in the P.S and she specifically denied the suggestion that her daughter had met her near the bus stand route no. 908 Sultan Puri and the mother of the prosecutrix also denied that she was accompanying the police officials to the house of the accused persons at the time of arrest, though she admitted her signatures on the arrest memos. However, that does not in any way makes the testimony of the prosecutrix or her mother unworthy of credence.
State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 25
29. The important fact which has to be considered is that immediately after the sexual assault, the prosecutrix who was a young girl of 13 years, narrated the entire incident to her mother, on the way where her mother met her and she narrated the incident of rape to her, is not relevant. What is relevant is that she narrated the entire incident of sexual assault to her mother and the same fact is relevant U/S 8 of the Indian Evidence Act to prove the conduct of the prosecutrix, that immediately after the incident of rape, when she had no chance of improving or concocting. She told the entire incident of rape to her mother. Consequently, the testimony of the prosecutrix from the aforesaid discussion taken as a whole appears to be trustworthy and there are only glitches here and there but the same does not impinge on the prosecution case, taken as a whole making the testimony of the prosecutrix unreliable.
30. Further, though the prosecutrix has admitted that her father was residing separately and she had lodged an FIR against her State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 26 father, which was also admitted by PW2 Smt. Sonia that FIR was registered by prosecutrix against her husband Madan Lal, merely lodging an FIR on previous occasion by the prosecutrix against her father who was not her real father, as she had been adopted by PW2 as per the statement of PW1, does not make her testimony unreliable as the previous conduct of the prosecutrix cannot be taken to appreciate the evidence in the present case, as the evidence in this case has to be appreciated from the examination in chief and the cross-examination of the witness in the present case.
31. Consequently, the version of the prosecutrix appears to be cogent and consistent, regarding the medical evidence. As per PW3 Dr. Phebe, as per MLC Ex.PW3/A, who had conducted the internal examination of the prosecutrix, she did not find any injury mark on her breast or abdomen or on her private parts and she also stated that in a case of forcible sexual assault, the injuries are common on the person of the victim. However, that does no make the prosecution story unreliable as the medical evidence like any State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 27 other such evidence is only corroborative in nature and it can only be used to corroborate the testimony of the prosecutrix, if it is found to be unreliable. The medical evidence is not a substantive piece of evidence and the substantive evidence is the testimony of the prosecutrix in the court, which is found to be reliable. Even otherwise, it is not necessary that in all the cases where the prosecutrix has been raped, that there should be injury marks on her body or private parts and in this case, the medical evidence has to be appreciated. In view of the fact that prosecutrix was only a young girl of 13 years of age, therefore she stood no chance of resisting the rape by the accused Deepak, when she was confronted by a fully grown up man who had cornered her in a room. Consequently, the absence of any injury marks in the MLC or in supportive corroborative evidence in the FSL report does not make the prosecution story doubtful. Consequently, the prosecution has been able to prove that the accused Deepak committed rape upon the prosecutrix without her consent.
State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 28
32. Regarding the offence U/s 506 IPC, the prosecutrix in her initial statement Ex.PW1/A had stated that she had been frightened by the accused Deepak, as he stated that if she raised an alarm she would be killed. Though, she made improve in her statement U/s 164 Cr.P.C and in her deposition in the court wherein she stated that the knife was shown to her by the accused Anita and Deepak respectively. However, there is no reason to doubt the said testimony of the prosecutrix that she had been criminally intimidated by the accused Deepak before forcing her to sexual assault by him. Her testimony is consistent in initial statement Ex.PW1/A and in the court that she had been threatened by accused Deepak, who forced her to sexual intercourse. Consequently, the prosecution has been able to prove that the accused Deepak criminally intimidated the prosecutrix, so as to cause alarm in the mind of the prosecutrix that if she resisted the sexual intercourse she would be harmed or would receive injuries on her person. Consequently, the prosecution has been able to State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 29 make out a case U/s 506 IPC as well.
33. Regarding the offence(s) U/s 363/366A IPC, the prosecutrix PW1 in her deposition has stated that on 9.10.07 at about 2 p.m her mother sent her to Subzi Mandi to bring flowers for Puja. Sunita Aunty(Sic Anita) met her in the market and asked her to sit in the rickshaw. She forcibly made her to sit in the rickshaw and took her to her house and there one uncle was present, who showed her knife and did Galat Kaam with her. In her cross-examination by the Ld. Addl. PP she stated that one uncle was also sitting with the Sunita Aunty in the rickshaw and the name of said uncle was Deepak and she also clarified the name of the Aunty was Anita and she submitted in her cross-examination by the ld. Addl. PP that it was correct that she had stated to the police in her statement that accused Anita went away after leaving her and accused Deepak in a room. In her cross-examination, she clarified that the Anita Aunty made her to sit on her laps and she enquired about her mother to which she had stated that they had falsely told her about her State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 30 mother.
34. From the aforesaid deposition of PW1, it is clear that accused Anita induced the prosecutrix, when she had gone to fetch flowers on the instructions of her mother from market place and the offence U/s 363 IPC is made out once there is an inducement or taking away by the accused of a minor, from the lawful custody of his/her guardian. In the present case, admittedly, as per the testimony of PW2 Sonia, no consent was given by her to the prosecutrix, her minor daughter to accompany the accused Anita. Therefore, the enticement or taking away of the minor prosecutrix by the accused Anita would come under the mischief of Section 363 IPC, which act had been done without the consent of her mother.
35. Regarding the offence U/s 366 IPC the prosecution has to prove the following ingredients:
1. The accused induced a minor girl below the age of 18 years:
2. She was induced to go from any place or to do any act;
3. She was induced with the intent that she might be or knowing it to be likely that she would be forced or seduced to State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 31 illicit intercourse with another person.
For proving the said ingredients, the intention of the accused is most relevant and once the necessary intention of the accused is established, the offence is complete. In the present case from the testimony of the prosecutrix, it is clear that the accused Anita induced her to go with her on a cycle rickshaw, on which accused Anita was riding and after taking the prosecutrix in a rickshaw to her house she left her in the company of the accused Deepak in a room, where the said accused forcibly committed rape upon her. Therefore, the intention of the accused Anita was apparent from the very fact that she induced the prosecutrix to accompany her on a rickshaw and thereafter took her to her house, where she left her in the company of the accused Deepak, who committed rape upon her that she was having an intention or was knowing that by doing such an act of inducing the said prosecutrix she would be forced or seduced to illicit intercourse with another person i.e. the accused Deepak in this case and the age of the prosecutrix in this case has State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 32 been held to be 13 years in the preceeding Paras and the inducement on the part of Anita was also clear, as on the asking of the prosecutrix, she told the prosecutrix that they had already told her mother, which was false statement. Therefore, the offence U/s 366A IPC is also made out against the accused Anita.
36. However, the said offence(s) U/s 363/366 IPC are not made out against the accused Deepak, as prosecutrix has not attributed any overt act on the part of the accused Deepak that he had also induced the prosecutrix or helped the accused Anita in doing so, nor the prosecution has been able to prove that there was any premeditated plan or prior meeting of minds of both the accused Deepak and Anita of kidnapping and inducing the prosecutrix for illicit intercourse, as the prosecutrix had met them suddenly on the way in a market place, where she had gone to fetch flowers on the instructions of her mother. Consequently, there cannot be any inducement or overt act on the part of other accused Deepak nor it can be said that yet he was sharing common intention with the State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 33 accused Anita in order to entice the prosecutrix. Even otherwise, as per the language of Section 366A IPC, the inducement of the minor girl must be with the intention that such girl may be or was likely to be forced or seduced to illicit intercourse with another person. Therefore, the offence U/s 366A IPC is even otherwise not made out against the accused Deepak, as has been held in judgment AIR 1933 Cal 362, wherein it has been held that "A person who induces such a girl without force or fraud to go from any place with the intention that she will have illicit intercourse with himself does not commit any offence under this section or any other section."
37. The net result of the aforesaid discussion is that prosecution has been able to make out a case U/s 363/366A IPC against the accused Anita. The prosecution has also been able to make out a case U/s 376/506 IPC against the accused Deepak. beyond any shadow of doubt. Accordingly, the accused Anita stands convicted U/s 363/366A IPC IPC and accused Deepak stands State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 34 convicted U/s 376/506 IPC. Now, to come up for hearing on the point of sentence on 21.9.10.
Announced in the open court (Sanjeev Aggarwal) On 16.9.2010. Addl. Sessions Judge Rohini Courts: Delhi.
State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 35 IN THE COURT OF SH. SANJEEV AGGARWAL ADDL. SESSIONS JUDGE-V: ROHINI COURTS: DELHI SC No. 147/08 ID No.02404R0657872007 FIR No.1469/07 PS Sultan Puri U/s 363/366A IPC State Vs. Smt. Anita W/o Man Singh, R/o D-I/51, Sultan Puri, Delhi.
Order on the point of sentence:
21.9.10.
Present: Sh. G.S. Guraya, Ld. Addl. PP for the State.
Convict is present from J.C with Ld. Counsel Sh. Harish Gupta.
It is submitted by Ld. Defence Counsel for the convict, that the convict is having clean antecedents and she is not involved in any previous case and she is around 35 years of age and she has three minor children to look after and if she is sent to J.C, then her children become destitute, as there will be no one to look after her children. State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 36 Therefore, lenient view may be taken against her.
The Ld. Defence counsel has also moved an application for releasing the above convict on probation U/s 360 Cr. PC.
On the other hand Sh. G.S. Guraya, Ld. Addl. PP for the state submits that strict punishment should be awarded to this convict, as she was instrumental in ravishing a minor girl, after enticing her from the lawful custody of her parents. He states that if such kind of crimes are lightly punished, it will give a wrong message to the society at large and that these type of crimes should not be allowed to go unpunished in a light way and therefore he prays strict punishment should be awarded to her.
I have gone through the rival contentions. In the present case, the convict had enticed one minor girl from the lawful custody of her parents and after taking her away, she forced her to illicit intercourse with her co-accused Deepak, with a minor girl of 13 years of age. If, these kinds of crimes are allowed to go unpunished then it would lead to social unrest. Consequently, the interest of justice demands strict State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri 37 punishment should be awarded to the convict. No ground for leniency is made out. Further no ground for releasing the convict on probation is made out in these circumstances. Consequently, I sentence the convict Anita for rigorous imprisonment for five years U/s 366A IPC and she is further sentenced to pay a fine of Rs. 5,000/-, U/s 366A IPC, in default of payment of fine, the convict shall further undergo SI for 5 months. No separate sentence is being awarded U/s 363 IPC, as the same is already covered by the graver section U/s 366A IPC.
The convict be also given benefit of the period, already undergone by her during the trial U/s 428 Cr. PC. Convict Anita stands convicted accordingly. Copy of the judgment and order on the point of sentence be provided to the convict free of cost.
Announced in the open court (Sanjeev Aggarwal)
on dt. 21.9.2010 Addl. Sessions Judge:
Rohini Courts: Delhi
State Vs. Deepak etc. FIR No.1469/07 PS Sultan Puri