Delhi District Court
State vs . Shanker Sahani on 21 January, 2008
1
IN THE COURT OF SH. NAROTTAM KAUSHAL
ADDL. SESSIONS JUDGE; ROHINI COURTS;
DELHI.
Date of Institution: 10.11.03
Date of Reserving the Judgment 09.1..08
Date of order 16.1. 08
State Vs. Shanker Sahani
s/o Shri krishan Sahni
r/o B 41,Gali No.4,
Gaurav Nagar II,
Prem Nagar III, Delhi.
Sessions case No.19/03
FIR No. 1047/0
P.S. Sultanpuri
u/s 354/376/506 IPC
JUDGMENT
1.1. Accused Shanker Sahani has been charge sheeted by Police Station Sultan Puri to face trial for offences punishable u/s 354/376/506 IPC.
1.2 Prosecutrix "L" real name concealed along with her 2 mother Shashi Devi and one Jallaluddin came to the Police Post Prem Nagar on 30.8.02 and got recorded her statement. It was stated that she lived in the house with her parents and was not studying any where. On 2.6.2002 at about 4.00 A.M. she went to nearby temple for cleaning the same . When she started to clean the Mandir neighbouring boy namely Shanker Sahani came and switched on the loud speaker of the Mandir at high volume . He came near the complainant and pulled her towards rear side of mandir and removed his underwear. He opened the string of her salwar and embraced her . He started kissing her . When she opposed the same, he gaged her and felled her on the ground . When she resisted and tried to run away, he slapped and raped her. She , thereafter lost consciousness . Her mother reached there and took her to the house. Her mother called accused Shanker Sahani and confronted him. He threatened to kill them. They did not lodge the report to the police . He kept on threatening them. Thereafter, her parents discussed the matter with one leader Jallaluddin, who brought them to the police station.
31.3 On the complaint above said, prosecutrix was sent for medical examination. FIR u/s 354/376 IPC was registered. Site plan was prepared. Statement of witnesses were recorded and accused was arrested. Medical examination of accused was got conducted. Finding sufficient material charge sheet was filed. 2.1 After compliance of provision of Sec. 207 Cr.P.C. the case was committed to the court of Sessions, which in turn was assigned to the predecessor of this court.
3.1 Vide order dt. 12.1.04, charge u/s 376/506 IPC was framed against the accused. Accused pleaded not guilty and claimed trial.
4.1 Prosecution in support of its case has examined 16 witnesses. Prosecutrix "L" (PW3) has proved the occurrence and her complaint. Her mother Shashi Devi (PW1) and father Lakshmeshwar Paswan (PW2) have corroborated her testimony. Jallaluddin (PW4) who was cited as a corroborative witness and was the local leader, who 4 had taken the family of prosecutrix to police station has not fully supported the prosecution case. Dr. Deepti Goel (PW7) and Dr.Ritu Chaudhary (PW5) have proved the medico legal examination of prosecutrix. Dr. V.K. Jha (PW11) has proved capability of accused to perform sexual intercourse.
4.2 Remaining witnesses are officials of police department who have proved various stages of investigation. R.P. Yadav (PW16) has proved the date of birth of prosecutrix as recorded at the time of admission to school.
4.3 Evidence that had come up against accused was put to him & he stated that same to be incorrect . He sought liberty to examine defence witnesses and examined three witnesses. Hari Om (DW1) & Hari (DW2) have both deposed that accused and the father of the prosecutrix had quarrelled with respect to water supply and accused had been threatened of implication in a false criminal case. Narinder Singh , Asstt. Teacher MCD School Vill. Nithari (DW3) has proved the date of birth of prosecutrix to be 22.3.1990. 5 5.1 Sh.Sanjay Soni, Ld.APP for state has submitted that prosecution case is established from the testimony of prosecutrix and her parents. They have all deposed that prosecutrix was found in unconscious condition behind the nearby temple, where she had gone to clean the temple. On regaining conscious, she narrated the incident to them. Accused threatened their family and, therefore, no complaint was made for quite some time. Eventually with the support of local leader Jallaluddin (PW4) report was lodged. 6.1 Shri Hari Shanker, Ld. Counsel for the accused has argued that the sole eye witness i.e. the victim has failed to establish that she had actually been raped. Medical evidence or the FSL report do not corroborate the factum of rape. The accused and father of the complainant had quarreled with each other regarding water supply. The said matter was settled with the intervention of respectables . Father of the prosecutrix who was not happy with the settlement, filed the present false complaint, which he subsequently withdrew vide mark A. . Reference has also been made to Ex.PW2/D1, 6 wherein the prosecutrix and her family had pardoned the accused. 7.1 I have heard Ld. Counsels and with their assistance perused the evidence on record relied upon by the parties. 7.2 The questions which arise for consideration in the present trial are:
i) Whether any occurrence took place involving the accused and the prosecutrix?
ii) If 'yes' what was nature of offence? iii) Whether conduct of accused had been forgiven?
I shall deal with these question one by one.
8.1 Prosecutix "L" (PW3) has deposed that on the date of occurrence, she had gone to the adjoining temple to clean the same at about 4.00 A.M. Accused reached there and switched on the loud speaker at full volume. He dragged her behind the temple , gaged her, opened the string of her salwar and removed his underwear. 7 He had embraced her & started kissing her. He lied upon her and tried to put his urinary organ in her vagina. She became unconscious. Her mother reached there and took her to the house. 8.2 Smt.Shashi Devi (PW1) and Lakshmeshwar Paswan (PW2) have both deposed that their daughter left the house on 2.6.02 at 4.00 A.M., to clean the temple . When she did not return for some time, the mother (PW1) went to the temple and found her lying unconscious and brought her to the house. 8.3 The testimony of all the three witnesses referred to above is corroborative & indicates that an occurrence did take place. 8.4 The factum of occurrence is further established on the basis of documents relied upon by the defence. Though, the document (mark A) was not proved as per the requirements of Indian Evidence Act, yet the same can be read against the accused who has relied upon the same. Perusal of 'mark A' reveals that complainant Lakshmeshwar Paswan had prayed to SHO, 8 Sultanpuri that he did not want to pursue the 'complaint against accused with respect to rape of his daughter'. Ex.PW2/D1 is a document wherein the accused admits having committed "wrong act" with the prosecutrix and had sought to be pardoned with a promise not to repeat.
I am, therefore, of the opinion that oral testimony of prosecutrix is corroborated by documentary evidence relied upon by the accused, wherein he admits having misbehaved with the prosecutrix.
9.1 As regards nature of offence, the most important witness is the prosecutrix herself . She has deposed that accused had removed her salwar, as well as, his underwear. He lied upon her and tried to insert his male organ in her vagina. When cross examined by learned APP, she admitted that in her complaint Ex.PW3/A, she had stated that she had been raped. 9 9.2 In my opinion, on the oral testmony of prosecutrix as noticed above, it cannot be held beyond reasonable doudbt that accused had penitrated the person of prosecutrix . The medical evidence in the shape of MLC of prosecutrix Ex.PW5/A is also inconclusive. It records "history of sexual assault". On local examination , the doctor found that little finger could easily be inserted in the vagina. FSL report though negative, is of no consequance as the sample was taken almost three months after the occurrence.
9.3 On the basis of oral as well as scientific evidence, notied above, I am of the opinion that the prosecution has failed to establish charge of rape. The act falls in the realm of attempt to commit rape. It cannot be said to be mere molestation, as the accused had removed his underwear, as well as, that of the prosecutrix and had tried to penitrate when she became unconscious. I, therefore, hold him guilty for the offences punishable u/s 376/511 IPC. 10 10.1 The third question raised by this court, as regards the withdrawal of complaint or compromise with the accused; I find is meritless. Compromise Ex.PW 2/D1 and request of withdrawal of the complaint Mark A, have both been disputed by the prosecutrix (PW3). Her father Lakshmeshwar Paswan (PW2) and her mother Shashi Devi (PW1) have deposed that their signatures were forcible and without their consent. The compromise, even if presumed to have been arrived at, with the intervention of neighbours, has no force of law . The offence is non-compoundable and could not have been compromised. The compromise deed if any, is illegal and not binding.
11. Another question which requires consideration , is regarding the age of prosecutrix. This issue has been established beyond reasonable doubt with the aid of documentary evidence . R.P. Yadav (PW16) has proved the admission record of prosecutrix of Govt.Co-Ed. Middle ,Govt. School, Union Territory of Delhi and Narinder Singh (DW3) has proved admission record of prosecutrix at MCD School, Nithari, Delhi. As per record of both these schools, 11 date of birth of prosecutrix was 22.3.90 . The offence having taken place on 2.6.02. Prosecutrix was tweleve and half years of age at the time of occurrence.
12.1 As regards the delay in lodging the FIR; it is settled preposition of law that delay in cases of rape cannot be fatal . Moreover, in the present case, it has been explained that delay was because of threats by the accused. The alleged compromise deed relied upon by the accused also explains the delay. 12.2. The prosecutrix PW3 , her mother PW1 and father PW2 haave all deposed that accused had been threatening them not to make a report to the police. The fact that accused tried to patch up the matter and got executed documents Ex.PW2/D1 and mark A, reflects that the accused had threatened the prosecutrix and her parents. Therefore, the charge for offence punishable u/s 506 IPC is also established.
The official witnesses have proved various stages of investigation. There is no infirmity in the same. 13.1 For the reasons stated above, I am of the opinion that prosecution has fully proved its case for offence punishable u/s 376 r/w 12 Sec. 511, 506 IPC Accused , Shanker Sahani is accordingly convicted for having committed offence punishable u/s 376/511,506 IPC.
(Narottam Kaushal) Addl.Sessions Judge, Rohini Courts,Delhi. Announced in open court.
Dated: 16.1.2008 13 IN THE COURT OF SH. NAROTTAM KAUSHAL ADDL. SESSIONS JUDGE; ROHINI COURTS;
DELHI.
State Vs. Shanker Sahani
s/o Shri krishan Sahni
r/o B 41,Gali No.4,
Gaurav Nagar II,
Prem Nagar III, Delhi.
Sessions case No.19/03
FIR No. 1047/02
P.S. Sultanpuri
u/s 376/511 /506 IPC.
21 .1.08
ORDER ON SENTENCE.
Vide separate judgment announced on 16.1.2008, convict Shanker Sahani has been convicted for the offence punishable u/s 376/511/506 IPC.
Sh.Sanjay Soni, Ld.APP for the state has submitted that the convicted attempted to commit rape upon a girl who was merely 14 twelve and half years of age and had also threatened her family not to lodge the report . He therefore, prays for the highest sentence provided under the statute.
Sh. Hari Shanker , learned counsel for the convict submits that the convict is a married person having a minor son . He is the sole bread earner of the family and is in government service. Lenient approach is prayed for .
I have heard the learned counsels.
Considering the fact that the prosecutrix was young girl, though not under twelve years of age ; the provision of Sec. 376 (2)(f) are not attracted. In the facts & circumstances, I am of the opinion that R.I. for a period of four years for the offene punishable u/s 376/511 IPC shall serve the purpose. Convict shall also be liable to pay a fine of Rs. 5,000/- and in default to undergo S.I. for a period of six months.
As regards the offence punishable u/s 506 IPC, convict shall undergo R.I. for a period of one year .
Both the sentences shall run concurrently. Convict shall 15 also be entitle benefit of Sec. 428 Cr.P.C.
Copy of judgment & order on sentence be given to the convict, free of costs.
File be consigned to record room.
(Narottam Kaushal) Addl.Sessions Judge, Rohini Courts,Delhi. Announced in open court.
Dated: 21.1.2008 16 Sessions case No.19/03 FIR No. 1047/02 P.S. Sultanpuri u/s 376/511 /506 IPC.
21.1.08
Pr. APP for the State .
Convict in JC
with Sh. Hari Shanker,Adv.
Vide separate order on sentence announced today, convict Shankar Sahani is sentenced R.I. for a period of four years for the offene punishable u/s 376/511 IPC shall serve the purpose. Convict shall also be liable to pay a fine of Rs. 5,000/- and in default to undergo S.I. for a period of six months.
As regards the offence punishable u/s 506 IPC, convict shall undergo R.I. for a period of one year .
Both the sentences shall run concurrently. Convict shall also be entitle benefit of Sec. 428 Cr.P.C.
Copy of judgment & order on sentence be given to the convict, free of costs.
File be consigned to record room.
(Narottam Kaushal) Addl.Sessions Judge, Rohini Courts,Delhi. Announced in open court.
Dated: 21.1.2008