Delhi District Court
State vs . 1). Smt. Darshna on 9 October, 2012
1 FIR No. 150/2009
PS Kanjhawala
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
SESSIONS CASE NO.: 36/2010
Unique ID No. : 02404R0181652010
STATE VS. 1). SMT. DARSHNA
W/O SH. DILBAG SINGH
R/O H.No. I27, MAHABIR VIHAR,
KANJHAWALA, DELHI.
2). WAZIR
S/O LATE SH. MANGE RAM
R/O VILLAGE LUHAR HERI,
PS BAHADURGARH
DISTRICT JHAJJAR, HARYANA.
FIR No. : 150/2009
Police Station : Kanjhawala
Under Sections : U/S 376/363/366/34 IPC
Date of committal to session court : 31.07.2010
Date on which orders were reserved: 22.09.2012
Date of which judgment announced: 06.10.2012
1 of 53
2 FIR No. 150/2009
PS Kanjhawala
JUDGMENT:
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: That on 20.08.2009 Kanchan (PW7) lodged a report at PS Kanjhawala to ASI Satbir Singh (PW11) that he resides at H.No. I28, Mahavir Vihar Colony, Kanjhawala, Delhi and does labour work. His daughter, the prosecutrix (named withheld being a case u/s 376 IPC), aged 12 years on 16.08.2009 at about 2.00 PM had gone some where from house without informing anyone, who was searched till this time but could not be traced. Her complexion is, aged 12 years, height about 4 feet, colour Gora, body thin, having a tattoo of 'Om' on her right hand, who is having no sleepers in her feet. He suspects that Dilbagh and his son Kuldeep has enticed away and concealed his daughter.
On this statement ASI Satyabir (PW11) prepared rukka and got the case registered u/s 363/34 IPC and got assigned the investigation to himself. During investigation, WT message also got flashed and search for the prosecutrix was made. During the course of interrogation, a secret information was received that the prosecutrix is present at Village Luhar Hedi, Bahadurgarh. On 23.09.2009 ASI Satyabir (PW11) alongwith Ct.
2 of 53 3 FIR No. 150/2009 PS Kanjhawala Ashwani Kumar (PW9), Lady Ct. Shakuntala, left for village Luhar Hedi, Bahadurgarh. There the prosecutrix was found sleeping with Wazir (accused) in a room. It was revealed that the prosecutrix had married with Wazir (accused) on 17.08.2009 in a Mandir and since then they are living as husband and wife.
The prosecutrix was recovered vide a recovery memo (Ext. PW4/A), Wazir was not arrested as he had suffered an accident on 17.09.2009 and was not in a position to move due to injuries suffered in the accident. The statement u/s 161 Cr.P.C of the prosecutrix was recorded in which she had stated that Darshana (accused) who lives in her neighbourhood on 16.08.2009 had made her (prosecutrix) sit in a bus for Bahadurgarh from the Kanjhawala Chowk.
On the basis of this statement accused Darshana was arrested. Medical examination of the prosecutrix was got conducted. After the medical examination Kanchan (PW7), father of the prosecutrix, sent the prosecutrix to the house of accused Wazir, who lives as husband and wife.
On 22.12.2009, Kanchan (PW7) filed a petition for the quashing of the FIR before the Hon'ble Delhi High Court; which was dismissed by the 3 of 53 4 FIR No. 150/2009 PS Kanjhawala Hon'ble Delhi High Court observing that, this is not a valid marriage.
The bone age test of the prosecutrix was also got conducted. On 13.04.2010 accused Wazir surrendered in the court.
Upon completion of the necessary further investigation challan was prepared for the offences u/s 363/366/376 (2) (f) IPC against accused Wazir and Darshana and was sent to the Court for trial.
2. Since the offences u/s 366/376 (2) (f) IPC are exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.
3. Upon committal of the case to the court of Session, after hearing on charge prima facie a case u/s 363/366/34 IPC against accused Wazir and Darshna and also a case u/s 376 (2) (f) IPC against accused Wazir was made out. Charges were framed accordingly which were read over and explained to the accused persons to which they pleaded not guilty and claimed trial.
4 of 53 5 FIR No. 150/2009 PS Kanjhawala
4. In support of its case prosecution has produced and examined ten witnesses. PW1 Dr. Richa Gupta, SR Obs and Gynae, SGM Hospital, PW2 HC Satish Kumar, PW3 HC Om Prakash, PW4 Prosecutrix, PW6 W/Ct. Mukesh, PW7 Kanchan, PW8 Ms. Jagwanti, Principal of MCD Girls School, Kanjhawala, Delhi, PW9 Ct. Ashwani Kumar, PW10 SI Puran Mal and PW11 ASI Satyavir Singh.
5. In brief the witnessography of the prosecution witnesses is as under: PW1 Dr. Richa Gupta, SR Obs and Gynae SGM Hospital, who gynaecologically examined PW4 prosecutrix and proved her examination Ext. PW1/A from point X to X. PW2 HC Satish Kumar, who deposed that on 20.08.2009 the concerned Duty Officer gave me two copies of FIR of present case alongwith original rukka between 8.309.00 PM. He reached at Mahavir Vihar at H.No. I28, Kanjhawala, Delhi and gave one copy of FIR to the complainant. He also met IO of the case there. Thereafter, he alongwith IO and the father of the prosecutrix searched for the accused at bus stand Kanjhawala and 5 of 53 6 FIR No. 150/2009 PS Kanjhawala Railway Station Gehwara and also went to Shardhanand Market, Kamla Market in search of the accused but the accused could not be located. Thereafter, they all returned back to the police station.
PW3 HC Om Prakash is the Duty Officer, who proved the copy of the FIR as Ext. PW3/A and his endorsement on the rukka Ext. PW3/B. PW4 the prosecutrix, who deposed regarding the incident and proved the recovery memo Ext. PW4/A, release memo Ext. PW4/B vide which she was released from Nari Niketan to her father and her statement u/s 164 Cr.P.C Ext. PW4/C signed by her at Points A, B, C and D. PW5 W/Ct. Mukesh who took the prosecutrix to SGM Hospital for medical examination and deposed that the concerned doctor gave her eight sealed pullandas and sample seal, sealed with the seal of SGM Govt. NCT Delhi after her medical examination which she handed over to the IO, which were taken into possession vide seizure memo Ex. PW6/A signed by her at Point A. 6 of 53 7 FIR No. 150/2009 PS Kanjhawala PW7 Kanchan is the father of the prosecutrix. He proved his complaint Ext. PW7/A made to the police and on the basis of which FIR was registered.
PW8 Ms. Jagwanti, Principal of MCD Girls School, Kanjhawala, Delhi who deposed that she has brought the admission and withdrawal register of the school from 2002 to 2007 maintained by the school. As per the admission no. 3861 of dated 02.07.2004 one student namely Prosecutrix (name withheld) was admitted in their school in 1st class and her date of birth was mentioned as 16.01.1999. The copy of which is Ext. PW8/A. At the time of her admission, her father Sh. Kanchan Singh also given the affidavit showing the date of birth of her daughter as 16.01.1999. The copy of the same is Ext. PW8/B. Her father also filled the admission form having photograph of prosecutrix (name withheld). The admission form is Ext. PW8/C. PW9 Ct. Ashwani Kumar who joined the investigation of the case with IO PW11 ASI Satyavir Singh and deposed on the investigational aspects and proved the recovery memo of the prosecutrix Ext. PW4/A. 7 of 53 8 FIR No. 150/2009 PS Kanjhawala PW10 SI Puran Mal is the subsequent IO of the case, who deposed on the investigational aspects and proved the arrest memo of accused Darshana Ext. PW10/A, her personal search memo Ext. PW10/B, her disclosure statement Ext. PW10/C and proved arrest memo of accused Wazir Ext. PW10/C and his personal search memo Ext. PW10/D signed by him at Points 'A'.
PW11 ASI Satyavir Singh is the initial IO of the case, who deposed on the investigational aspects and proved the statement of Kanchan father of the prosecutrix Ext. PW7/A and his endorsement Ext. PW11/A on it. He deposed that on 23.09.2009 he recovered the prosecutrix from house of Wazir in Village Luhar Hedi and proved the recovery memo of prosecutrix Ext. PW4/A and proved the seizure memo Ext. PW6/A of sealed pullanda and sample seal which were given by the doctor of SGM hospital after the medical examination of the prosecutrix and deposed that further investigation was handed over to SI Puran Mal (PW10).
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of the evidence.
8 of 53 9 FIR No. 150/2009 PS Kanjhawala
6. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
7. Statements of accused Wazir and Darshana were recorded u/s 313 Cr.P.C wherein they pleaded innocence and false implication. They opted to lead defence evidence and examined two witnesses in their defence namely DW1 Raj Singh S/o Sh. Umrao Singh and DW2 Sh. Ranbir Singh, Sub Registrar, Birth and Death, Narela Zone, Delhi.
DW1 Raj Singh is the Sarpanch of village Luhar Hedi, District Jhajjar, Haryana, who deposed regarding the marriage of prosecutrix and accused Wazir.
DW2 Sh. Ranbir Singh, Sub Registrar, Birth and Death, Narela Zone, Delhi who deposed that he has brought the birth and death register of the year 1994. As per register entry at Sl. No. 367 of dated 28.12.1994, Angoori Devi has given birth to a girl child namely prosecutrix (name 9 of 53 10 FIR No. 150/2009 PS Kanjhawala withheld) on 16.05.1994 at R128, Mahavir Vihar, Kanjhawala and the name of her father is Kanchan Singh. The attested photocopy of the above entry is Ex. DW2/A and the certified copy issued by their office as per record is Ex. DW2/B.
8. Ld. Counsel for the accused submitted that prosecution has failed to prove its case beyond reasonable doubt and both the accused persons have been falsely implicated in this case because of enmity. Ld. counsel for accused Wazir submitted that there is delay of more than four days in lodging the FIR. On 20.8.2009 a missing report was lodged by PW7 Kanchan father of the prosecutrix that her daughter aged about 12 years was missing since 16.8.2009 at about 2.00 PM and he suspects on the son of Dilbagh. He further submitted that prosecution has failed to prove that the girl was below the age of 12 years. He further submitted that the present case does not attract the sections 363/366 IPC as the case is based on imaginary story. There was no incident of abduction. The girl herself left her house, she performed marriage with the consent of her father, there is no question of forced marriage between them. At the time of reaching matrimonial home many people and ladies were present and singing local songs in their presence there could be no forced marriage. He further 10 of 53 11 FIR No. 150/2009 PS Kanjhawala submitted that there is no evidence on record to prove that the victim was forcibly taken neither the owner nor the driver of the alleged car have been examined in the court. He further submitted that the entire story has been concocted subsequent to the time when the accused refused to give Rs. 1,00,000/ more to the father of the prosecutrix. He further submitted that the prosecution left her home in the presence of her father and other family members. He further submitted that the girl went alone to Bhadurgarh in a bus no force was used. He further submitted that there is no evidence to prove that the prosecutrix was taken in a car to village Luharheri. He further submitted that there is no evidence on record to prove that the prosecutrix was forcibly taken by the accused. Neither the owner nor the driver of the car or the person present in the temple or any person from village Luharhedi have been examined. He further submitted that the conduct of the prosecutrix and her father goes to establish that the prosecutrix is a consenting party in the entire episode. The prosecutrix was never induced nor was threatened to accompany the accused hence no case is made out. He further submitted that there are certain photographs in the case file but there is no explanation about the same as to who seized the photographs and from where. In these photographs she was standing happily with the accused. He further submitted that in the statement before Ld. MM she gave her voluntarily 11 of 53 12 FIR No. 150/2009 PS Kanjhawala statement that she had married with the accused. She does not want to take any action against her husband and his family members. She admitted her marriage by admitting the accused as her husband. She also stated that she lived with her mother in law which clearly established that she lived with accused as a husband and wife. He further submitted that during the recovery of the prosecutrix by IO from village Luharhedi, a recovery memo was prepared by IO(PW11) which clearly shows that prosecutrix had performed marriage with accused Wazir on 17.8.2009 in a temple. He further submitted that it is the duty of the prosecution to lead the best evidence in his possession which could throw light on the issue of controversy and in case such a material evidence is withheld, the court will draw adverse inference under section 114 illustration (g) of the Evidence Act. He further submitted that as per PW1 medical officer, she cannot surely comment whether or not any sexual act was done, there is no external or internal injuriesno mark of any violence on her person. He further submitted that PW4 prosecutrix nowhere stated about the date, month and year of the incident. He further submitted that PW4 prosecutrix has admitted in her cross examination that she and her father stayed 15 days in the house of the accused after the incident and when her father had left the house of the accused, she also accompanied him. He further submitted that PW7 12 of 53 13 FIR No. 150/2009 PS Kanjhawala (Kanchan) father of the prosecutrix submitted that he does not know the date , month and year of the incident. He further submitted that PW2 Satish has deposed that while searching prosecutrix and accused investigating officer (PW11) was with him on his scooter and father of the prosecutrix had his own vehicle, whereas, IO (PW11) has deposed that they all alongwith Kanchan had gone in a Pvt. Bus for search of the prosecutrix and the accused. He further submitted that the pullandas and sample seals were not sent for the chemical examination by the IO nor they gave any explanation about the same therefore the chain is incomplete in this respect. He further submitted that as per PW10 Puran Mal the medical examination of the accused was not got conducted by him because prosecutrix and Wazir are living as husband and wife. He further submitted that as per PW11 Satyavir Singh IO on 23.9.2009 on the basis of the secret information, they reached at village Loharheri, prosecutrix was identified by her father Kanchan but the signatures of Kanchan were not obtained on the recovery memo. No site plan of place of recovery or incident was prepared by the investigation officer and no explanation is given in this regard. He further submitted that the prosecutrix had many opportunities to complain or run away but she made no such efforts. She made no protest in the temple, bus stand in car or in village. The above behaviour would not be natural who had been compelled 13 of 53 14 FIR No. 150/2009 PS Kanjhawala to marry or subjected to sexual intercourse. He further submitted that the prosecution suffered from many contradictions and the whole incident seems to be highly improbable, the evidence is not trustworthy, there is no corroboration and the evidence is full of discrepancies. He further submitted that the IO did not seize any material object, like clothes, bloods sample etc. from the prosecutrix. Wearing clothes were not recovered by the IO, nor got conducted medical test of the accused to ascertain that he is capable of sexual intercourse or not as it was necessary to establish the accused guilty. He further submitted that no person from Luharhedi was examined and some persons should be examined to identify her as well as the accused.
The Ld. counsel for accused Darshana submitted on the same lines as has been submitted by the Ld. counsel for accused Wazir. He further submitted that accused Darshana has been falsely implicated by the complainant and prosecutrix being the relative of coaccused Wazir. He further submitted that in the statement under section 164 Cr.P.C prosecutrix did not state that accused Darshana took her to Bahadurgarh and also joined the marriage of the prosecutrix with coaccused Wazir. He further submitted that the prosecutrix did not tell the number and colour of the bus. He further submitted that in the statement under section 161 Cr.P.C prosecutrix stated 14 of 53 15 FIR No. 150/2009 PS Kanjhawala that accused Darshana did not travel with her in the bus. She only lifted the prosecutrix in the bus which was destination of Bahadurgarh. He further submitted that in the temple or at any place prosecutrix did not raise any alarm for help which itself shows that the present case has been falsely registered against accused Darshana. He further submitted that PW7 Kanchan has stated that he remained stayed in the house of accused Wazir for 45 days which itself shows that accused Darshana has been falsely implicated by complainant as the prosecutrix being relative of accused Wazir. He further submitted that prosecution has failed to prove that accused Darshana forcibly kidnapped/abducted the prosecutrix and sent her to the house of accused Wazir.
Ld. counsel for accused Wazir also referred to the cases and are reported as Arshad Vs. State of Haryana 2011 (1) CCJ 164, Alamelu and another Vs. State Represented by Inspector of Police 2011(1) RCR, (criminal) 498, Jitender Kumar Sharma Vs. State 2010 (2) CCJ 354, State of Rajasthan Vs. Mohd. Sharif and others 2009 (3),CCJ 585.
Ld. counsel prayed for the acquittal of the accused persons.
15 of 53 16 FIR No. 150/2009 PS Kanjhawala
9. While the Ld. Addl. PP for the state on the other hand submitted that prosecution has proved its case beyond reasonable doubt against both the accused persons and the contradictions and discrepancies as are pointed out are minor and not the material one's and do not effect the credibility of the witnesses.
10. I have heard the Ld. Addl. PP for the state and the Ld. Counsel for the accused persons and have also carefully perused the entire record.
11. The charge for the offences u/s 363/366/34 IPC against the accused Wazir and Darshana is that on 16.08.2009 at about 2.00 PM, they both in furtherance of their common intention kidnapped a minor girl (prosecutrix D/o Sh. Kanchan) from in front of her house I28 Mahavir Vihar Colony, Kanjhawala with intent that she may be compelled for marriage or in order that she may be forced or seduced to illicit intercourse and after kidnapping the minor girl accused Wazir married her at a temple at Bahadurgarh and the additinal charge for the offence u/s 376 (2) (f) IPC against accused Wazir is that he committed sexual intercourse with her at his house at Village Luhar Hedi PS Bahadurgarh, District Jhajjar, Haryana and at that time the girl (prosecutrix) was below 12 years of age.
16 of 53 17 FIR No. 150/2009 PS Kanjhawala AGE OF PROSECUTRIX:
12. PW4 Prosecutrix in her examinationinchief has deposed that "I was studying in 4th Class at that time. At that time I was more than 11 years but less than 12 years of age. I do not know my date of birth."
During her crossexamination recorded on 12.05.2011 PW4 Prosecutrix has deposed that " I was residing in Delhi for the last many years. I was also born in Delhi. I have 3 brothers and 2 sisters. Only one sister was younger to me. All brothers and sister are elder to me. As on today one brother and one sister has been married. My mother had expired 3 years ago. All brother and my sister were going to the same school except my elder sister. I do not know the name of my school but it was situated at Ladpur. Previously I took admission in private school and studied there for 2 years but later on transferred to Govt. School and studied there for 2 years. I cannot remember the year when I reached 4th Class. I am not aware (of) the age of my eldest brother. I also do not know the age of my married Sister. My youngest sister was 2 years younger than me. My elder sister Rajni is 5 years older than me. I was about 2 years of age at the time of marriage of my elder sister. I do not know the year when she was married. My elder sister was having two issues of 3 years of age and another of 1 year of age. I left the school 4 years before after studying upto 4th class."
17 of 53 18 FIR No. 150/2009 PS Kanjhawala During her crossexamination recorded on 12.05.2011 (hand written) PW4 Prosecutrix has deposed that "I stated my age before the concerned doctor of 16 years because of presence of the accused persons".
PW7 Kanchan, father of the prosecutrix in his examinationin chief has deposed that "I do not remember her date of birth however, at the time of incident she was studying in a Govt. school situated (at) Kanjhawala in 4th class and we had mentioned her date of birth at the time of admission."
PW7 Kanchan in his crossexamination recorded on 19.10.2011 conducted on behalf of accused Wazir has deposed that "I had three sons and three daughters. My wife had expired about two years back however, I do not remember the date. My eldest son is aged about 3032 years. I do not remember his date of birth. It is correct that I do not remember the date of birth of any of my child. The eldest daughter is two year younger than my eldest son. All the children have two years age difference between them approximately. I do not know about the year of my marriage. I am illiterate person. My first child was born after about five 18 of 53 19 FIR No. 150/2009 PS Kanjhawala years of my marriage. Currently my age is about 62 years."
"My daughter only studied in the government school at Kanjhawala since beginning. I admitted my daughter in the beginning in first standard in the school. My two daughters only studied in Govt. school. My daughter i.e the prosecutrix left the school two years before from today."
PW7 Kanchan in his crossexamination recorded on 19.10.2011 on behalf of accused Darshana has deposed that "It is correct that the age of prosecutrix was less than 12 years."
"I cannot say if the date of birth of prosecutrix is 16.05.1994."
PW8 Ms. Jagwanti, Principal of MCD Girls School, Kanjhawala, Delhi in her examinationinchief has deposed that "I have brought the admission and withdrawal register of the school from 2002 to 2007 maintained by the school. As per the admission No. 3861 of dated 2.7.2004 one student namely prosecutrix (name withheld) was admitted in our school in 1st class and her date of birth was mentioned as 16.1.1999. The copy of which is Ext. PW8/A (OSR). At the time of her admission, her father Sh. Kanchan Singh also given the affidavit showing the date of birth of her daughter as 16.01.1999. The copy of the same is Ext.
19 of 53 20 FIR No. 150/2009 PS Kanjhawala PW8/B (OSR). Her father also filled the admission form having photograph of prosecutrix (name withheld). The admission form is Ext. PW8/C (OSR)."
During her crossexamination PW8 Jagwanti has interalia deposed that "........we do not emphasize on the production of date of birth document of the child. I cannot say whether the date of birth as mentioned on Ex.PW8/B is correct or not as I have no personal knowledge. It is correct that we mentioned the date of birth as told by the parents of the child in the absence of proof of birth record. We had asked from the parents of the prosecutrix regarding document of date of birth. The prosecutrix as per record had studied in our school up to 31.3.2008. It is correct that at point A on Ex.PW8/A there is cutting. It is also correct that there is no page number on the admission and withdrawal register. It is correct that name of the prosecutrix was deleted from the school record due to her long absence on 31.3.2008. In absence of proof of date of birth record, we mentioned the date of birth of child as told by their parents."
From the aforesaid narration of PW7 Kanchan, father of the prosecutrix, it is clearly indicated that he admitted his daughter/prosecutrix in the beginning in first standard in the school and his daughter/prosecutrix only studied in the Government school at Kanjhawala since beginning. His daughter/prosecutrix left the school two years before from today (note:
20 of 53 21 FIR No. 150/2009 PS Kanjhawala testimony of PW7 Kanchan was recorded in the court on 19.10.2011). He admitted it to be correct that the age of the prosecutrix was less than 12 years.
To the same effect has also been deposed by PW4 Prosecutrix as reproduced hereinabove. The testimony of PW7 Kanchan has been corroborated by PW8 Ms. Jagwanti as reproduced hereinabove, who has proved the date of birth of prosecutrix as 16.01.1999 vide Ext. PW8/A and also proved the affidavit given by Sh. Kanchan, father of the student/prosecutrix as Ext. PW8/B and has also proved the copy of admission form having photograph of prosecutrix as Ext. PW8/C. From the testimony of PW8 Jagwanti it is clearly indicated that prosecutrix was admitted in school vide admission no. 3861 on 02.07.2004 in Ist Class with date of birth mentioned as 16.01.1999 vide Ext. PW8/A and the prosecutrix had studied in the school upto 31.03.2008 when her name was deleted from the school record due to her long absence.
There is nothing in the crossexamination of PW8 Jagwanti so as to impeach her creditworthiness. Her testimony is clear, natural, cogent and 21 of 53 22 FIR No. 150/2009 PS Kanjhawala inspires confidence.
In the circumstances, it stands established on record that the date of birth of prosecutrix is 16.01.1999.
Since the date of alleged incident is 16.08.2009, on simple arithmetical calculation the age of prosecutrix comes to 10 years and 7 months as on the date of alleged incident.
It is also to be noticed that accused have examined DW2 Ranbir Singh in their defence on the aspect of age of the prosecutrix.
DW2 Sh. Ranbir Singh, Sub Registrar, Birth and Death, Narela Zone, Delhi in his examinationinchief has deposed that "I have brought the birth and death register of the year 1994. As per register entry at Sl. No. 367 of dated 28.12.1994, Angoori Devi has given birth to a girl child namely prosecutrix (name withheld) on 16.05.1994 at R128, Mahavir Vihar, Kanjhawla and the name of her father is Kanchan Singh. The attested photocopy of the above entry is Ex. DW2/A (OSR) and the certified copy issued by our office as per record is Ex. DW2/B."
22 of 53 23 FIR No. 150/2009 PS Kanjhawala During his crossexamination by Ld. APP for the state DW2 Sh. Ranbir Singh has deposed that "The register brought by me today was kept by year wise of all the birth and death in the village Kanjhawala. I have not mentioned the name of the girl child prosecutrix (name withheld) at the time of registration as I have joined the office in the year 2010. I am deposing about the name of the girl child as per record. Currently, parents have to inform about the birth of the child within 21 days and after that we are recording the date of birth of the child only after late fees. Previously there was no such limitation of tenure about informing the birth of a child. I have not brought the date of birth register of children of dated 1999 because the same was not directed to bring. In this case the information of the birth of the child was given by his father Kanchan Singh. I have not seen the register of the years after recording of this girl child in the year 1994 whether any girl child in the name of prosecutrix (name withheld) was born to Angoori Devi W/o Kanchan that too in the year 1999. I am not aware that the date of birth of a girl child namely prosecutrix (name withheld) was of 16.1.1999 as I have not seen the birth register of the year 1999."
From the aforesaid narration of DW2 Ranbir Singh it is indicated that he has proved the attested copy of entry at S.No. 367 dated 28.12.1994 of the birth and death register of the year 1994 Ext. DW2/A showing birth of a girl child/prosecutrix on 16.05.1994 and has also proved the certified 23 of 53 24 FIR No. 150/2009 PS Kanjhawala copy of birth certificate thereof Ext. DW2/B. I have very carefully gone through the testimony of DW2 Ranbir Singh as well as the documents Ext. DW2/A and Ext. DW2/B proved by him visavis the testimony of PW8 Ms. Jagwanti and the documents proved by her Ext. PW8/A, Ext. PW8/B and Ext. PW8/C. At the cost of repetition, during the entire incisive cross examination of PW8 Ms. Jagwanti the accused have nowhere disputed the fact that prosecutrix had not studied in the school, of which the documents Ext. PW8/A, Ext. PW8/B and Ext. PW8/c have been proved by PW8 Ms. Jagwanti. In the document Ext. DW2/A entry no. 367 column no. 9 pertains to education qualification and column no. 10 pertains to occupation of the father of child born. In column no. 9 which pertains to education qualification, it is shown as "10th" class. While in column no. 10 which pertains to occupation, it is shown as "business" of the father namely Kanchan Singh as per column no. 8 of the born child.
PW7 Kanchan Singh, father of the prosecutrix in his cross examination as reproduced hereinabove has specifically deposed that he is 24 of 53 25 FIR No. 150/2009 PS Kanjhawala illiterate person. Moreover, in the admission form having the photograph of the prosecutrix Ext. PW8/C, filled by PW7 Kanchan Singh, father of prosecutrix, proved by PW8 Ms. Jagwanti in the column of occupation, it has been shown as labour (mazdoori) and in the column of monthly income of guardian/father it has been shown as Rs. 800/, of Sh. Kanchan Singh.
Now the question arises, who is this KANCHAN SINGH? Whose particulars are mentioned in Ext. DW2/A who is 10th class pass and is having the occupation as "Business". Is he the father of the prosecutrix herein?
Prosecution discharged its initial burden of proving through PW8 Ms. Jagwanti that prosecutrix having date of birth as 16.01.1999 was admitted in school on 02.07.2004 vide Ext. PW8/A and affidavit showing her date of birth as 16.01.1999 was given by her father Kanchan Singh Ext. PW8/B and her admission form showing her photograph was also filled by her father Kanchan Singh Ext. PW8/C. Accused were under an obligation to explain that Kanchan Singh and the child born vide Ext. DW2/A and birth certificate Ext. DW2/B were the same regarding which the documents Ext. PW8/A, Ext. PW8/B, Ext. PW8/C have been proved by PW8 Ms. 25 of 53 26 FIR No. 150/2009 PS Kanjhawala Jagwanti. The absence of such an explanation both in the Section 313 Cr.P.C statements by the accused and their omission to lead any evidence in this regard has an adverse inpact on their plea.
As discussed hereinabove as per PW7 Kanchan, father of the prosecutrix that he admitted her daughter in the first standard in Govt. school. For the sake of arguments, if it is taken that PW7 Kanchan got admitted her daughter in the school on 02.07.2004 (vide Ext. PW8/A) with a wrong date of birth as 16.01.1999 in place of actual date of birth as 16.05.1994 (vide Ext. DW1/A, Ext. DW1/B). Even otherwise, the theory of date of birth as 16.05.1994 propounded through DW2 Sh. Ranbir Singh does not hold water, as on 02.07.2004, the date of admission, in the Ist class, the girl will be of 10 years of age and it does not appeal to the reason that a girl of 10 years will be admitted in the Ist class.
Moreover, in view of the categorical testimony of PW8 Ms. Jagwanti coupled with as to what DW2 Sh. Ranbir Singh has deposed in his crossexamination that 26 of 53 27 FIR No. 150/2009 PS Kanjhawala "I have not seen the register of the years after recording of this girl child in the year 1994 whether any girl child in the name of prosecutrix (name withheld) was born to Angoori Devi W/o Kanchan that too in the year 1999. I am not aware that the date of birth of a girl child namely prosecutrix (name withheld) was of 16.1.1999 as I have not seen the birth register of the year 1999."
has knocked out the bottom of the theory of date of birth as 16.05.1994 propounded through DW2 Sh. Ranbir Singh.
In the circumstances, the testimony of DW2 Sh. Ranbir Singh does not inspire confidence and cannot be relied up.
Ld. Counsel for accused Wazir also referred to the cases and are reported as Arshad Vs. State of Haryana 2011 (1) CCJ 164, Alamelu and another Vs. State Represented by Inspector of Police 2011(1) RCR, (criminal) 498, Jitender Kumar Sharma Vs. State 2010 (2) CCJ 354, State of Rajasthan Vs. Mohd. Sharif and others 2009 (3),CCJ 585.
I have carefully gone through the same and are found to be on the aspect of age of prosecutrix, in relation to offences u/s 376/363/366/354 IPC 27 of 53 28 FIR No. 150/2009 PS Kanjhawala and Section 5 (iii), 11 and 18 of Hindu Marriage Act, 1955. With due respect, they are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case.
In a case titled Sunil Kumar Vs. State 181 (2011) DLT 528 (DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".
In view of above and in the circumstances, it stands established on record that the prosecutrix was aged 10 years and 7 months on the date of alleged incident on 16.08.2009 and was thus below 12 years of age and a minor.
MEDICAL EVIDENCE:
13. PW1 Dr. Richa Gupta, SR Obs & Gynae SGM Hospital in her examination in chief has deposed that 28 of 53 29 FIR No. 150/2009 PS Kanjhawala "On 23.09.2009 I was posted at SGM Hospital as SR Gynae. On that day patient prosecutrix (name withheld) was examined by CMO On duty vide MLC No55721 and thereafter referred for Gynae examination. Accordingly I examined prosecutrix (name withheld) during examination prosecutrix told me that (the) history of abduction and sexual assault one month back. My examination is EX PW1/A from pt X to X. During local examination I found genital area appears normal, no pubic hair, hymen not seen, Vagina appears normal. On gentle pervaginal examination os was small pointed, uterus antiverted small size, bilateral fornices free. UPT is negative. After examination Vaginal swab, two vulval swabs right and left vaginal wall swabs, anterior and posterior vaginal wall swabs and two blood samples were sealed and handed over to the IO. I also advised to IO original clothes as were worn by the prosecutrix at the time of assault to be procured and sealed and also advised Xray for Bone age and Forensic opinion for age assessment. Also to attend Gynae OPD for assessment of non attainment of Menarche. My examination of prosecutrix bears my signature at pt A on EX PW1/A".
During her cross examination on behalf of accused Wazir PW1 Dr. Richa Gupta has deposed that "Age of the prosecutrix in EX PW1/A was recorded in my presence. Which were already filled. I cannot tell the age of prosecutrix. It was the prosecutrix who had given the history of the case. She did not tell me the name of the rapist. We cannot surely comment whether or not the sexual intercourse/rape was done. My job was not to write the age of prosecutrix.
29 of 53 30 FIR No. 150/2009 PS Kanjhawala There were no external injury marks on the person of prosecutrix and there was no evidence of internal injury mark as well".
While PW1 Dr.Richa Gupta was not cross examined on behalf of accused Darshana despite grant of opportunity.
Inspite of incisive crossexamination nothing material has been brought out on the record as to discredit the testimony of PW1 Dr. Richa Gupta. She has candidly deposed all the facts during her crossexamination and has withstood the test of crossexamination. In the circumstances, it does not lie in the mouth of accused Wazir to say that PW1 cannot surely comment whether or not any sexual act was done.
It is also to be noticed the opinion expressed by Modi in Medical jurisprudence and toxicology (Twenty First Edition) at Page 369 which interalia reads as "Rape, is crime and not a medical condition. Rape is not a diagnosis to be made by the medical officer. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion and 30 of 53 31 FIR No. 150/2009 PS Kanjhawala not a medical one".
14. Now let the testimony of PW4 prosecutrix and her father PW7 Kanchan be perused and analysed.
PW4 Prosecutrix in her examination in chief has deposed which is reproduced and reads as under:
"At the time of the incident I was residing in our own house at Chikara Colony, Kanjhawala alongwith my father, brother and younger sister Yashoda. It was the incident before one year i.e, on 5th Month and year I do not remember but it was in the above house which we have left one year before. On the day of incident I was present alongwith my younger sister in the house. My father had gone to our native village and my brother was also gone outside who was plying vehicle. On the day of incident I was called by me neighborer Darshana on the pretext of accompanying her as she wanted to stitch her suits from a shop in the market. I alongwith her went to the shop where two boys againsaid one old man and old lady were found present at about 02:00 pm. The two persons present at the shop had not stated to me and I was allowed to go to my house and I returned to my house. After one day Darshana again met me as she has to go to dentist to get her tooth/jhaad removed. She requested me to accompany her. I therefore went alongwith Darshana to Bahardurgarh. At Bahadurgarh Darshana met with some family member and talking to him that they had reached Bahadurgarh. Darshana then taken me to the temple where the abovesaid two person one old man 31 of 53 32 FIR No. 150/2009 PS Kanjhawala and one old lady met us and they have also taken some snaps and they all taken me to their house in a village and I do not name of that village. My snaps was taken with the accused Wazir who is present in the court today (correctly identified). The snaps were similar to that of marriage and in the photographs garlands (jaimala) was also exchanged between me and accused Wazir. I do not know the name of the old man and the old lady but they are the parents of accused. From the very day the accused did galat kaam with me. Galat kam means sexual intercourse which usually husband and wife did. I keep on crying but the accused stated that he had given 30,000 rupees to Darshana and I have to lived (live) there. Next day, accused met with an accident I came to know when he returned to the house at evening. He has received injuries on his full body."
PW4 Prosecutrix in her examinationinchief further deposed that "After about one month later on, police arrived at the village of accused. We (They) were having my photographs and also having Transfer Certificate from my school i.e, Nagar Nigam Vidhyalaya Kanjhawala. I was studying in 4th Class at that time. At that time I was more than 11 years but less than 12 years of age. I do not know my date of birth. Police person has taken me and Darshana to PS Kanjhawala. On the way accused Darshana present in the court today (correctly identified) threatened me that in case I disclosed the above incident in favor of your parents then I will be behind the bars. I requested to police person to met me with my parents but they were not allowed to talk with my father neither I met with my father in the PS. Police got me medically examined and they had took my signature on some 32 of 53 33 FIR No. 150/2009 PS Kanjhawala papers".
She further deposed that her statement was also got recorded U/S 164 CrPC Ext. PW4/C signed by her at Points A, B, C and D by the concerned court. She signed the recovery memo EX PW4/A at point A. She was sent to Nari Niketan and she lived there for about 15 days and from there she was released to her father vide memo EX PW4/B signed by her at point A. The photographs mark A to mark D are the photocopy of the photographs which was taken by the family of the accused persons at the temple.
From the aforesaid narration of PW4 Prosecutrix it is clearly indicated that she was called by her neighbour Darshana and had requested to accompany her and thereafter she (prosecutrix) was taken to Bahadurgarh, Haryana. At Bahadurgarh Darshana met with some family member and talked to him that they had reached Bahadurgarh thereafter she (prosecutrix) was taken by Darshana to temple where two persons one old man and one old lady were found present, who were the parents of accused Wazir and snaps with accused Wazir were also taken. Snaps were similar to that of marriage and in the photographs garlands were also exchanged between her 33 of 53 34 FIR No. 150/2009 PS Kanjhawala and accused Wazir and she (prosecutrix) was taken to their house in a village. Since from first day accused Wazir did galat kaam with her. Galat Kam means sexual intercourse which usually husband and wife did and she kept crying but accused Wazir stated "that he had given Rs.30,000/ to Darshana and she (prosecutrix) has to live there". On the next day, accused Wazir met with an accident and received injuries on his full body. She deposed regarding the arrival of the police at the village of accused Wazir and recovery of her (prosecutrix) vide memo Ex.PW4/A and of taking her to the police station and of conducting of her medical examination and of the recording of her statement under section 164 Cr.P.C Ex.PW4/C and of her sending to Nari Niketan and of releasing of her after 15 days to her father Kanchan (PW7) vide memo Ex.PW4/B. During her cross examination PW4 prosecutrix negated the suggestions put on behalf of accused Wazir that her father has sent her again after medical examination to the house of accused Wazir or that marriage has taken place with her and her father's consent or that she lived with accused Wazir in his house with her free will or that her father demanded Rs. 1,00,000/ and by refusal of accused Wazir he was falsely implicated in this case or that she has not stated before the Magistrate about the threatening of 34 of 53 35 FIR No. 150/2009 PS Kanjhawala accused persons because no threatening was given to her by the accused persons.
During her cross examination PW4 (prosecutrix) also negated the suggestions put on behalf of accused Darshana that she is deposing at the instance of her father or that Darshana is not familiar to her or that she (Darshana) was (had) not taken her to Bahadurgarh, Haryana or that she was falsely implicated in this case at the instance of the police or that Darshana was not present in the temple where the garlands were exchanged or that accused Darshana was implicated in this case being the relative of accused Wazir.
Inspite of incisive cross examination of PW4 (prosecutrix) nothing material has been brought out in her cross examination so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout.
On careful perusal and analysis of the testimony of PW4 (prosecutrix), the same is found to be clear natural, cogent, convincing, trustworthy and inspires confidence. There is nothing in her statement to suggest that she had an animus against the accused to falsely implicate them 35 of 53 36 FIR No. 150/2009 PS Kanjhawala in this case.
The testimony of PW4 (prosecutrix) is also been corroborated by her father, PW7 Kanchan in material particulars. During his cross examination, PW7 Kanchan negated the suggestions that accused Wazir did not commit the alleged offences or that he has been falsely implicated in this case or that he (PW7) made a demand of Rs.1,00000/ from accused Wazir. There is nothing in the cross examination of PW7 (Kanchan) so as to impeach his creditworthiness and stood extensive crossexamination without being shaken.
In the circumstances, in view of the categorical testimonies of PW4 Prosecutrix and her father PW7 Kanchan, there is no substance in the pleas raised by the Ld. Counsel for the accused that there was no incident of abduction and the girl herself left her house and performed marriage with the consent of her father, there is no question of forced marriage between them or that the entire story has been concocted subsequent to the time, when the accused refused to give Rs. 1,00,000/ more to the father of the prosecutrix or that accused Darshana has been falsely implicated.
36 of 53 37 FIR No. 150/2009 PS Kanjhawala
15. It is to be noticed that the accused have not disputed the factum of marriage between accused Wazir and the prosecutrix and to this effect they have also examined DW1 Raj Singh.
DW1 Raj Singh in his examination in chief has deposed that "He has seen the photographs Mark A to D and in the said photographs the male person is Wazir S/o Mangey Ram and the female is prosecutrix (name withheld) d/o Sh.Kanchan. The marriage between Wazir and the prosecutrix was solemnized in a temple at Bahadurgarh, Haryana. As Sarpanch, he used to visit the house of Mangey Ram. The relatives of both the sides attended this marriage and all the requisite ceremonies were performed. The said marriage was performed between Wazir and the prosecutrix by the consent of the families of both the sides. He further deposed that Kanchan (PW7) father of the prosecutrix used to come to the said village and used to stay and used to meet him and known to him personally. Prosecutrix was kept well by the family of Wazir."
During his cross examination, DW1 Raj Singh has deposed which is reproduced and reads as under:
"I did not talk to Kanchan when the marriage had taken place between Wazir and the prosecutrix. Wazir was more than 17 to 18 years of age. It is wrong to suggest that the Wazir was of the age of 17 to 18 years. I 37 of 53 38 FIR No. 150/2009 PS Kanjhawala am not aware whether Wazir has suffered any accident. It is wrong to suggest that I do not know anything about Wazir as I was not visiting them. I do not know Darshana. I do not know as to whether Darshana was present in the said alleged marriage between Wazir and prosecutrix. It is wrong to suggest that the marriage was performed against the wishes of prosecutrix or that she was forced to marry with accused Wazir. I do not know that Wazir used to say to the prosecutrix that she has been bought by her for an amount of Rs.30,000/. I do not know that Wazir had suffered an accident on the next day of the alleged marriage. I was called by brother of Wazir to depose in the court. It is wrong to suggest that as I was called by brother of accused Wazir to depose in the court for this reason I am deposing in favour of accused Wazir. It is wrong to suggest that I have good relations with the father of accused Wazir, therefore, I am deposing in favour of his son Wazir in order to save him from the clutches of law".
From the aforesaid narration of DW1 Raj Singh, it is clearly indicated that he is a procured witness. Had he been on visiting terms to the house of Mangey Ram father of accused Wazir as Sarpanch why he had shown his ignorance during his cross examination that he is not aware whether Wazir has suffered any accident. During his cross examination he has admitted that he was called by brother of accused Wazir to depose in the court. He negated the suggestions that as he was called by brother of accused Wazir for this reason he is deposing in favour of accused Wazir or that he has good relations with the father of the accused Wazir and therefore, 38 of 53 39 FIR No. 150/2009 PS Kanjhawala he is deposing in favour of his son Wazir in order to save him from the clutches of the law.
16. While analyzing the testimonies of PW4 (prosecutrix) and her father PW7 Kanchan discussed hereinabove inspite of incisive cross examination nothing material has been brought out in the statements of PW4 Prosecutrix and PW7 Kanchan which may throw the slightest doubt on the prosecution version of the incident. Though, suggestions by defence to PW4 prosecutrix regarding that her marriage has taken place with her and her father's consent or that she lived with accused Wazir in his house with her free will or that her father demanded Rs.1,00000/ and by refusal of accused Wazir he has been falsely implicated in this case or that she is deposing at the instance of her father or that Darshana is not familiar to her or that she was (had) not taken her to Bahadurgarh or was falsely implicated in this case at the instance of the police or that Darshana was not present in the temple where the garlands were exchanged or that Darshana was implicated in this case being the relative of accused Wazir and the suggestions to PW7 Kanchan that he made a demand of Rs.1,00000/ from accused Wazir and on his refusal he (PW7 Kanchan) got him implicated in the present case or that he is deposing falsely have been put which have been denied by the said 39 of 53 40 FIR No. 150/2009 PS Kanjhawala PWs but the same have not at all being made probable much established by any evidence.
17. Ld. Counsel for the accused submitted that the prosecutrix in her statement before the Magistrate has stated that she had married with the accused, and she does not want to take any action against her husband and family members.
I have carefully perused and analysed the evidence on record. At the cost of repetition, PW4 Prosecutrix in her examinationin chief has deposed that "..........I had mentioned in my statement Ext. PW4/C (u/s 164 Cr.P.C) that I do not want any action against either of the accused persons. Vol. I was under influence of threatening of accused Darshana to make said statement Ex. PW4/C. I had not told to Ld. MM that Darshana had forced me to make the said statement in said manner. Vol. I made statement under threatening of accused Darshana."
From above, it is clearly indicated that PW4 Prosecutrix has 40 of 53 41 FIR No. 150/2009 PS Kanjhawala candidly deposed all the facts truthfully and has also explained the reasons under what circumstance she made the statement Ext. PW4/C before the Magistrate. Her testimony is clear, natural, cogent and convincing. In the circumstance, the plea so raised does not appear to have any substance, moreso, when the witness withstood rigors of incisive crossexamination without being shaken.
18. Ld. Counsel for the accused submitted that prosecution has failed to prove its case beyond reasonable doubt and both the accused persons have been falsely implicated in this case because of enmity. Ld. counsel for accused Wazir submitted that there is delay of more than four days in lodging the FIR. On 20.8.2009 a missing report was lodged by PW7 Kanchan father of the prosecutrix that her daughter aged about 12 years was missing since 16.8.2009 at about 2.00 PM.
I have carefully perused and analysed the entire evidence on record.
In the lengthy crossexaminations either of PW4 Prosecutrix or her father PW7 Kanchan not a single suggestion has been put to them that 41 of 53 42 FIR No. 150/2009 PS Kanjhawala accused have been falsely implicated in the case because of enmity. Nor the said 'theory of false implication because of enmity' so propounded has at all being made probable much established by any evidence.
In the circumstance, the plea regarding the 'theory of false implication because of enmity' appears to have been raised by the accused in order to save their skin from clutches of law.
As regards the alleged delay the same has been properly explained by PW7 Kanchan who in his examinationinchief has categorically deposed that "We searched for her for two three days in the nearby areas and thereafter I made missing report to the police at police station Kanjhawala. My report is Ex. PW7/A which bears my thumb mark at point A."
Delay in lodging of FIR is a normal phenomenon especially in cases like rape or outraging the modesty of a women, the aggrieved or the injured person or her relations will naturally think twice before giving a complaint to the police (Ref. Mohd. Habib Vs. State (Delhi 42 of 53 43 FIR No. 150/2009 PS Kanjhawala Administration) 1989 CRLJ 137 (Delhi).
The delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. (Ref. State of Himachal Pradesh V. Prem Singh AIR 2009 SC 1010).
The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P (1995) 5 SCC 518, has held "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."
43 of 53 44 FIR No. 150/2009 PS Kanjhawala The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."
The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of 44 of 53 45 FIR No. 150/2009 PS Kanjhawala rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"
The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."
In the circumstances, it does not lie in the mouth of accused to say that there was delay in reporting the matter to the police.
19. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 16.08.2009 at about 2.00 PM accused Wazir and Darshana in furtherance of their common intention kidnapped the prosecutrix aged 45 of 53 46 FIR No. 150/2009 PS Kanjhawala 10 years and 7 months with intent that she will be compelled for marriage and after kidnapping the prosecutrix, accused Wazir married her at a temple in Bahadurgarh and committed sexual intercourse with her at his house at village Luhar Hedi, PS Bahadurgarh, Distt. Jhajjar, Haryana and the prosecutrix kept on crying.
I accordingly hold accused Wazir and Darshana guilty for the offences punishable u/s 363/366/34 IPC and accused Wazir is also hold guilty for the offence punishable U/s 376 (2) (f) IPC and convict them thereunder.
20. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Wazir and Darshana in the commission of the offences u/s 363/366/34 IPC and also that of accused Wazir in the commission of offence u/s 376 (2)(f) IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Wazir and Darshana beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of 46 of 53 47 FIR No. 150/2009 PS Kanjhawala accused. I, therefore, hold accused Wazir and Darshana guilty for the offences punishable u/s 363/366/34 IPC, and accused Wazir is also hold guilty for the offence punishable u/s 376(2)(f) IPC and convict them thereunder.
Announced in the open Court today on 6th Day of month of October, 2012 (MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
47 of 53 48 FIR No. 150/2009 PS Kanjhawala IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI SESSIONS CASE NO.: 36/2010 Unique ID No. : 02404R0181652010 STATE VS. 1). SMT. DARSHNA W/O SH. DILBAG SINGH R/O I.27, MAHABIR VIHAR, KANJHAWALA, DELHI.
2). WAZIR S/O LATE SH. MANGE RAM R/O VILLAGE LUHAR HERI, PS BAHADURGARH DISTRICT JHAJJAR, HARYANA.
FIR No. : 150/2009 Police Station : Kanjhawala Under Sections : U/S 376/363/366/34 IPC 48 of 53 49 FIR No. 150/2009 PS Kanjhawala ORDER ON SENTENCE : 1. Vide my separate detailed judgment dated 06.10.2012
accused Wazir and Smt. Darshana have been convicted for the offences punishable u/s 363/366/34 IPC and accused Wazir has also been convicted for the offence punishable u/s 376(2)(f) IPC.
2. Sh. Gajraj Singh, Ld. Counsel for convict Smt. Darshana submitted that she is 45 years of age and is a poor person and her husband is crippled of his legs and remains bed ridden. She is having two children and is maintaining the family. He further submitted that she has not been involved in any other case and is the victim of circumstances and is not a previous convict and has remained in judicial custody for about 15 days and is having clean antecedents and her conduct during the course of the trial was very cooperative and prayed for leniency.
3. Sh. Ashok Ahalawat, Ld. Counsel for convict Wazir submitted that he is aged about 21 years and is a poor person and is having the old age mother and his father has expired and is a handicapped person. He further submitted that he is running in JC since 13.04.2010 and has not been 49 of 53 50 FIR No. 150/2009 PS Kanjhawala involved in any other case and is not a previous convict and is the victim of circumstances and is having clean antecedents and his conduct during the course of trial was very cooperative and prayed for leniency.
4. Ld. Addl. PP for state, on the other hand submitted that convicts be dealt with strictly and severest punishment be given to deter them from committing the same offence in future and the offences had been committed by the convicts against a minor girl and no leniency be shown to them.
5. I have heard the Ld. Addl. PP for the state and the Ld. Counsel for the convicts Smt. Darshana and Wazir at length on the quantum of sentence. Prosecutrix a minor girl aged about 10 years and 7 months was kidnapped by convicts in furtherance of their common intention with intent that she will be compelled for marriage and after kidnapping the prosecutrix convict Wazir married her at a temple in Ballabhgarh and committed sexual intercourse at his village Luhar Hedi, PS Ballabhgarh, Distt. Jhajjar, Haryana and the prosecutrix kept on crying.
6. It has been held by the Hon'ble Apex Court in Sahdev Vs. 50 of 53 51 FIR No. 150/2009 PS Kanjhawala Jaibar @ Jai Dev & Ors. 2009 V AD (S.C.) 515 that: "After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task".
7. It has been held in State of Karnataka Vs. Murlidhar 2009 IV AD (S.C.) 1 that: "The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
51 of 53 52 FIR No. 150/2009 PS Kanjhawala
8. In Mulla and another Vs. State of Uttar Pradesh (2010) 3 SCC 508, after considering various earlier decision, the Hon'ble Supreme Court held as under: "It is settled legal position that the punishment must fit the crime. It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime".
9. Having regard to all the facts and circumstances of the case coupled with the submissions made on behalf of the convicts, I am of the considered opinion that the ends of justice can be met by sentencing convicts Smt. Darshana and Wazir to undergo Rigorous Imprisonment for a period of seven years each and to pay a fine of Rs. 2,000/ each in default thereof to further undergo Rigorous Imprisonment for a period of one year each u/s 363/34 IPC. They (Convicts Smt. Darshana and Wazir) are further sentenced to undergo Rigorous Imprisonment for a period of seven years each and to pay a fine of Rs. 2,000/ each in default thereof to further undergo Rigorous Imprisonment for a period of one year each u/s 366/34 IPC. Convict Wazir is further sentenced to undergo Rigorous 52 of 53 53 FIR No. 150/2009 PS Kanjhawala Imprisonment for a period of ten years and to pay a fine of Rs. 6,000/ in default thereof to further undergo Rigorous Imprisonment for a period of two years u/s 376 (2)(f) IPC. All the substantive sentences shall run concurrently. The period already undergone by the convicts Smt. Darshana and Wazir during the inquiry/investigation/trial of this case shall be set off under section 428 Cr.P.C.
A copy of judgment as well as that of order on sentence be given to the convicts free of costs.
Announced in the open Court today on 9th Day of month of October, 2012.
(MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
53 of 53