Delhi District Court
State vs . Rajesh on 4 May, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE
(NW)-II: ROHINI COURTS: DELHI
Session Case No. 1060/09
Unique ID No.: 02404R0291772006
State Vs. Rajesh
S/o Kamlesh Sharma
R/o N-9A/458,
Lal Bagh, Azadpur,
Delhi
(Convicted)
FIR No. 284/06
PS Adarsh Nagar
Under Section 366/376/307 IPC
Date of allocation to Session Court: 14.3.2007
Arguments heard on: 15.3.2010
Date of Decision: 7.4.2010
JUDGMENT:
The accused Rajesh is alleged to have kidnapped the prosecutrix 'S' aged about 15 years (the name of the prosecutrix is changed as this is a case under Section 376 Indian Penal Code), on 16.5.2006 at 2:00 am in order to seduce her to illicit intercourse, seduced her and committed sexual intercourse upon her. As per the allegation the accused also pushed the prosecutrix 'S' from the roof of the dustbin adjoining to the house no. 9, A/G- 458, Lal Bagh, Azadpur, Delhi with such intention that the said act would cause death of the prosecutrix.
BRIEF FACTS:
Case of the prosecution:
The case of the prosecution is that on 16.5.2006 SI Shashi Lata was posted in Sub Division Model Town in Rape Cell when she received an information from PS Adarsh Nagar after which she alongwith L. Ct. Veena reached BJRM hospital where she met SI Heera Lal alongwith Ct. Rampal and also mer the prosecutrix. The prosecutrix made a statement to the investigating officer that on the intervening night of 15/16.5.2006 at about 2:00 State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 1 of 16 (night) her mother asked her to switch on the motor for fetching the water as the water supply used to come in night hours only. Therefore, she get down from the house to switch on the motor which is affixed in their shop at ground floor and when she reached near the shutter of their shop the accused Rajesh who is her neighbour caught hold her from back side. According to her, she was taken by the accused to his house and put hr inside the room and committed rape upon her without her consent after which the accused took her to the roof of Kuredan situated nearby his house and pushed her from the roof as a result of which she received injuries on her both arms and other parts of body.
On the basis of the statement of the prosecutrix, the present FIR was got registered and at the instance of the father of the prosecutrix the accused Rajesh was arrested and charge sheeted.
CHARGE:
After the case has been committed to the Session Court, the Ld. Predecessor of this court has framed a charge under Section 366/376 IPC and also under Section 307 IPC to which the accused has pleaded not guilty and has claimed trial.
EVIDENCE:
Public witnesses/ eye witnesses:
The prosecutrix 'S' has been examined as PW1 who has deposed that on the intervening night of 15/16.5.2006 at about 2:00 am (night) her mother asked her to switch on the motor for fetching the water as those days the supply of water used to come in the night only. According to her, she get down from the house to switch on the motor which is affixed in their shop at ground floor and when she reached near the shutter of their shop accused Rajesh who is her neighbour, caught hold her from back side and took her to his house and put her inside the room and committed rape upon me without her consent. The witness has further deposed that when they were inside the room of the accused, they heard the notice in the gali after which the accused took her to the roof of Kuredan and pushed her due to which reason she fell down on the ground and received injuries and become unconscious. She has State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 2 of 16 stated that when she regained consciousness she found herself in BJRM Hospital where she gave statement to the police which is Ex.PW1/A. According to PW1, she was medically examined at BJRM Hospital where her undergarments were sealed by the doctor and later on she pointed out the place of occurrence pursuant to which the IO prepared the site plan. The witness has correctly identified the case property i.e. the undergarment which is Ex.P-1 and the accused Rajesh as the person who has committed rape upon her and pushed her from the roof of Kuredan.
PW2 Uma Shanker Gupta is the father of the prosecutrix who has deposed that on 16.5.2006 in the night his wife was not feeling well and he was sleeping on the roof of the second floor of his house. According to him, his wife asked the prosecutrix aged about 15 years to switch on the water motor to fetch water which motor is affixed at the shop situated at the ground floor. He has deposed that her daughter 'S' went at about 2:00 am but she did not turn up fact her wife informed him and thereafter he and his wife reached near the shutter of the shop and searched for his daughter. He has testified that in the meantime they heard cries of a girl and sound of thumping from the Kuredan side after which they immediately reached in the park near Kuredan and found their daughter lying in injured condition. He has further deposed that they immediately took her to BJRM Hospital where she was medically examined and the police reached in the hospital after which the police recorded the statement of his daughter. According to PW2, his daughter told him and his wife about the incident of rape and pushing by the accused Rajesh. The witness has proved that on 17.5.2006 the accused Rajesh was arrested by the police at his instance from Madhuban Chowk at about 5:00 pm vide arrest memo Ex.PW2/A and personal search of the accused was conducted vide memo Ex.PW2/B. Medical Witnesses:
PW5 Dr. Sanjay Kumar Casualty Medical officer has proved that on 16.5.2006 the prosecutrix 'S' aged about 15 years was brought to BJRM Hospital at about 3:50 am by her father with the alleged history of sexual assault and thrown from roof. He has proved that he examined her and found swelling and tenderness on her right arm and left forearm after which the State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 3 of 16 patient was referred to Sr. Gyne for further opinion and to Orthopedic Surgeon and also advised for X-ray for the injured parts and also for bone X-ray. The witness has proved the MLC prepared by him which is Ex.PW5/A. PW7 Dr. Shakuntala Rani SMO (Gyne. & Obs.) has proved that on 16.5.2006 the prosecutrix 'S' was referred to her by Dr. Sanjay Kumar for gynecological examination. She has deposed that the patient was having history of sexual assault around 2-3 am by her neighbour and thrown her from first floor with complaints of injury to both arms. She has further stated that on examination patient was conscious, well oriented to time, place and person and her LMP was one week back. According to PW7 on local examination both breast were well developed and no scratch marks were seen and her axillary hair was scanty, per abdomen-soft per-vagina on inspection, pubic hairs coarse and normal, Labia Majora and minora were well developed. The witness has also stated that no fresh external injury was seen and on digital examination introitus was admitting one finger, hymen was absent and no fresh bleeding was seen. PW7 has proved that pubic hari clippings and vaginal smear were taken separately and under garments blue in colour with yellow tinge also taken and sealed separately which were handed over to SI Hira Lal. She has proved her examination in this regard at point X on MLC already Ex.PW5A.
PW6 Dr. Neeraj Chaudhary CMO BJRM Hospital has deposed on behalf of Dr. Dhiraj. He has proved the MLC no. 23713 pertaining to the accused Rajesh which MLC is Ex.PW6/A. He has deposed that as per the MLC the accused Rajesh was examined by Dr. Dhiraj who opined that there was nothing to suggest that patient was unable to perform sexual intercourse. The witness has identified the handwriting and signatures of Dr. Dhiraj who according to him had left the services of the hospital. The said witness had also been examined as PW9 wherein he has again proved the MLC already Ex.PW6/A. Official witnesses/ Police Witnesses:
PW3 Ms. Poonam, TGT, SKV, Ashok Vihar, Phase-II, has produced the record pertaining to the date of birth of the prosecutrix 'S'. She has deposed that as per the record the prosecutrix was admitted in 6th class in State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 4 of 16 their school on 4.4.2001 vide admission no. 3257 and as per the admission register, school leaving certificate and application moved by the father of the prosecutrix, the date of birth of prosecutrix is mentioned as 15.2.1991. The photocopy of the said register is Ex.PW3/A, copy of the TC is Ex.PW3/B and copy of the application moved by Uma Shanker Gupta which is Ex.PW3/C. PW12 SI Shashi Lata has deposed that on 16.5.2006 when she was posted in Sub Division Model town in Rape Cell, after receiving the telephonic call from PS Adarash Nagar, she alongwith Lady Ct. Veena reached BJRM Hospital where she met SI Heera Lal alongwith Ct. Rampal. She has deposed that SI Hira Lal handed over to her the MLC of the prosecutrix 'S' and three exhibits sealed with the seal of MS BJRM alongwith the sample seal which she seized vide memo Ex.PW4/A. She has proved having recorded the statement of the prosecutrix which is Ex.PW1/A on which she prepared the rukka which is Ex.PW12/A and handed over the same to Ct. Rampal for getting the FIR registered. The witness has stated that she alongwith SI Heera Lal and Lady Ct. Veena reached at the spot where she met Uma Shanker the father of the prosecutrix and she prepared the site place at his instance which is Ex.PW12/B. The witness has further deposed that on 17.5.2006 she arrested the accused from Outer Ring Road, Pitampura at the instance of Uma Shanker vide memo Ex.PW2/A and his personal search was got conducted vide memo Ex.PW2/B after which the accused was taken to hospital for medical examination and she collected the MLC of the accused. According to PW12, Ct. Rampal handed over to her three pulandas sealed with the seal of MS BJRM which were containing underwear, pubic hair, blood sample and sample seal which she seized vide memo Ex.PW10A. The witness has further stated that on 11.6.2006 the exhibits of this case alongwith FSL form were sent to CFSL Kolkata through Ct. Rampal vide RC No. 78/21 and after depositing the same he ad deposited the receipt with MHC(M). She witness has also proved having recorded the statement of various witnesses.
PW4 WCT Veena has proved having joined the investigations with IO WSI Shashi Lata on 16.5.2006 and when she reached BJRM Hospital SI Hira Lal met them who handed over three pullandas sealed with the seal of MS BJRM and one sample seal to the IO in her presence which were taken State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 5 of 16 into possession by the IO vide memo Ex.PW4/A. PW8 HC Shiv Dan Singh is the duty officer who has proved that on 16.5.2006 at about 8:30 am on receipt of rukka brought by Ct. Rampal and sent by SI Shashi Lata, he recorded the formal FIR no. 284/06 carbon copy of which is Ex.PW8/A. According to him, after registration of FIR he handed over the rukka and copy of FIR to Ct. Rampal who took the same to SI Shashi Lata. He has deposed that on the same day at about 5:00 am he also recorded the DD no. 38-A on the basis of the call received from PCR, the true copy of which DD is Ex.PW8/B. PW10 Ct. Ram Pal has deposed that on 16.5.2006 on receipt of DD no. 38A he alongwith SI Hira Lal reached BJRM Hospital where IO SI Shahi Lata was also present who recorded the statement of the prosecutrix and prepared a Rukka which she handed over to him for getting the FIR registered. According to him, he took the rukka to PS Adarsh nagar and got the FIR registered after which he came back at the spot alongwith the copy of FIR and original rukka which he handed over to the IO who recorded his statement under Section 161 Cr.P.C. The witness has further deposed that on 17.5.2006 he again joined the investigations with the IO alongwith Uma Shanker the father of the prosecutrix and on the pointing out of Uma Shanker the accused Rajesh was arrested from Madhuban Chowk vide memo Ex.PW2/A and his personal search was also got conducted vide memo Ex.PW2/B. He has deposed that thereafter the accused was taken to BJRM Hospital for his medical examination and after examination doctor handed over three sealed pullandas sealed with the seal of MS BJRM and one blood sample and one sample seal. He has testified that thereafter he brought the accused to Police Station and handed over the pullandas to the IO which were taken into possession vide memo Ex.PW10/A. PW11 HC Vijay Kumar is the MHCM who has proved that on 16.5.2006 SI Shashi Lata deposited three parcels sealed with the seal of MS BJRM hospital alongwith the sample seal, which were deposited vide entry Ex.PW11/A made in the register no. 19. He has also proved that on 17.5.2006 SI Shashi Lata deposited three parcels sealed with the seal of MS BJRM and one sample seal of MS BJRM, vide entry no. 3488 in register no.
19, copy of the relevant entry is Ex.PW11/B. The witness has further State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 6 of 16 deposed that on 11.6.2006 he sent all the 6 sealed parcels and two sample seals to CFSL Kolkata through Ct. Ram pal vide RC no. 78/21 who after depositing the case property handed over to him copy of the RC copy of which is Ex.PW11/C. PW11 has proved that so long as the case property remained under his supervision, its seals were intact.
Statement of the accused/ defence witnesses:
The statement of the accused has also been recorded under Section 313 Cr.P.C. where all incriminating evidence has been put to him which he has denied and stated that he is innocent and has been falsely implicated in the matter after a quarrel with the brother of the prosecutrix in which he was also given beating by them.
The accused has also examined four witnesses in his defence. DW1 Manu Prashad is the residents of the same area and has deposed that on 15/16.5.2006 at about 2:00 he was waiting for supply of water and he saw that the mother of prosecutrix also came down and by uplifting the shutter at ground floor started her motor and thereafter she returned back to the second floor. According to him, he alongwith many people were already gathered over there for fetching water. He has deposed that father of the prosecutrix has been running a committee of which he was also a member and there was enmity between the father of the prosecutrix and father of the accused since even on 14.1.2006 Uma Shanker father of the prosecutrix had beaten Rajesh and son of Uma Shanker had also caused cut injury upon the left cheek of Rajesh but due to the intervention of the neighbours and police officials the matter was settled. The witness has further deposed that in March 2006 Uma Shanker had also quarreled with the father of the accused Rajesh as he had taken Rs.50,000/- from the father of accused but Uma Shanker did not return the same. According to him, Uma Shanker had also not paid even a single penny to other members namely Sanjay, Vinod, Kamlesh (father of accused Rajesh) in respect of the committee and Uma Shanker used to threaten Kamlesh, Sanjay and Vinod of implication in false case. DW1 has also deposed that there is triple storied Jhuggi between Kuredan and the house of the accused Rajesh and therefore, one cannot go across the triple storied Jhuggi from the house of Rajesh to Kuredan. He has stated that accused State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 7 of 16 Rajesh has been falsely implicated due to enmity and on demand of the debt amount and also the amount of the committee and the prosecutrix 'S' is suffering from polio on both her arms for which she was under treatment.
DW2 Bakridi & DW3 Rameshwar are also the residents of the same area who have corroborated the testimony of DW1 in toto to the extent that there was enmity between father of the prosecutrix and the father of the accused for Rs.50,000/- which was to be paid by the father of the prosecutrix to the father of the accused and even in his presence on many occasions the quarrel had taken place between them.
DW4 Kamlesh is the father of the accused Rajesh who has deposed that on 10.2.2005 he had given Rs.50,000/- to the father of the prosecutrix regarding the purchase of a plot and on 14.1.206 when he demanded his money back, the father of the prosecutrix started quarreling. According to DW4, in the said quarrel the father of the prosecutrix and his son gave gave a sharp cut on left cheek of the accused Rajesh but due to intervention of the neighbourers and the local police the matter was settled and therefore, he did not make any specific complaint to the police against him. The witness has stated that at the time of settlement father of the prosecutrix assured him to return the said amount in the month of March but he did not return even a single penny nor has he returned the money of the committee. According to the witness, on the date of incident he was also waiting for fetching the water, when the mother of the prosecutrix came down and opened the shutter and started the motor and went back to the second floor. He has deposed that there is a triple storied Jhuggi between his house and Kuredan.
FINDINGS:
I have considered the evidence lead by the prosecution and the submissions made before me. Firstly in so far as the identity of the accused is concerned there is no dispute. He is the neighbour of the prosecutrix and is known to the family of the prosecutrix and has been specifically named in the FIR.
Secondly there is no loss of time in registration of the FIR which was immediately registered after the prosecutrix was taken for her medical State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 8 of 16 examination by her parents wherein the accused has been named alongwith his address.
Thirdly in so far as the age of the prosecutrix is concerned, on the date of incident she is stated to be 15 years of age. She has in her statement specifically stated that at the time of incident she was studying in class 10th and as the per the School Leaving Certificate duly proved by PW3 Ms. Poonam, TGT, SKV, Ashok Vihar, Phase - II, Delhi the date of birth of the prosecutrix is 15.2.1991 proving that on the date of incident i.e. 16.5.2006 she was 15 years 3 months old.
Fourthly the MLC of the prosecutrix has been duly proved by the prosecution witnesses from which it is evident that she was brought to Babu Jagjiwan Ram Memorial Hospital at about 3:50 pm on 16.5.2006 with an alleged history of sexual assault and thrown/ fall from the height (roof). PW5 Dr. Sanjay Kumar and PW7 Dr. Shakuntala Rani have proved the MLC of the prosecutrix which is Ex.PW5/A from which it is evident that the prosecutrix was found with swelling and tenderness on her right arm and left forearm after which she was referred to Orthopedic Surgeon and X-ray for injured parts and Sr. Gyne for further examination. Dr. Shakuntala Rani, SMO (Gyne & Obs.) has proved her gynecological examination from which it is evident that there were no fresh external injury and on digital examination - introitus was admitting one finger, hymen was absent and no fresh bleeding was seen. In fact Dr. Shakuntala Rani in her cross-examination has admitted that medical examination does not show any fresh sexual assault but there might have been the sexual assault in the past and she is unable to tell confirm whether the sexual assault was prior to 16.5.2006. She is unable to tell whether the medical history of the prosecutrix suggests the sexual assault or not. It is evident that there was no external injuries on the private parts of the prosecutrix but the hymen was found to be absent and the Senior Gynecologist who had examined the prosecutrix is unable to give a definite opinion with regard to the fact if the sexual assault was prior to the date of incident i.e. 16.5.2006.
Fifthly PW6 has proved the MLC of the accused and has proved that the accused had refused to given semen sample and there was nothing to suggest that the accused was unable to perform the sexual intercourse and State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 9 of 16 there were no fresh external injuries.
Sixthly the prosecutrix in her statement made to the police and also in her cross-examination before the court has identified the accused who was residing near her house as the person who had committed rape upon her on the date of the incident after catching hold of her from the ground floor of her house where she had gone to switch on the motor affixed there. She has further in his statement very consistently states that after having committed rape upon her the accused took her to the roof of Kuredan and pushed her from the roof due to which she received injuries on her body. The relevant portion of her statement is as under:
"........ On the night intervening 15/16.5.2006 at about 2:00 am (night) my mother asked me to switch on the motor for fetching the water as those days the supply of water use to come in the night only. Therefore, I get down from the house to switch on the month, which is affixed in out shop at ground floor and when I reached near the shutter of our shop, accused Rajesh, present in the court today (correctly identified), who is residing near out house, caught hold me from back side and I was taken by him to his house and he put me inside the room and he committed rape upon me (galat kam kiya) without my consent. When I was inside the room of the accused, we heard noise in the gali. Thereafter accused took me on the roof of Kuredan (dustbin) situated nearby his house and pushed me from the roof and I fell down on the ground. I received injuries on my both arms and other parts of body. After receiving injuries I become unconscious. When I regained consciousness I found myself in BJRM Hospital, Janagir Puri and I found myself present there. Police reached in the hospital and I gave my statement Ex.PW1/A which was signed by me at point A......"
Seventhly PW2 Uma Shanker Gupta father of the prosecutrix has similarly deposed that on 16.5.2006 his wife was not feeling well and he was sleeping on the second floor of his house and his wife asked the prosecutrix 'S' to switch on the motor to fetch the water which motor is fixed at the shop situated at the ground floor. According to him, the prosecutrix did not return for a long, his wife called her and they both reached near the shutter of the shop and searched for her daughter but they heard the cries from the side of State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 10 of 16 Kuredan and they immediately reached in the park near the Kuredan and found their daughter/ prosecutrix lying in injured condition and was unconscious after which they took her to BJRM Hospital where she was medically examined.
Lastly the FSL report does not show any positive results though the prosecutrix admits that the clothes/ undergarments she was wearing at the time, were the same which she handed over to the doctor at the time of her examination by the doctor at BJRM Hospital.
Before coming to appreciation of the evidence which has been brought on record by the prosecution and the defence, it is necessary to bring on record the fact that the investigations in the present case have been most shoddy. The site plan prepared by the investigating officer which is Ex.PW12/B shows Kuredan next to the house of the accused whereas the case of the accused is that there is a three storied Jhuggi between his house and the said Kuredan. When the investigating officer PW12 SI Shashi Lata was cross-examined on this aspect she simply stated that she does not remember if there is any intervening house and admits that she has not shown any intervening house in the site plan. DW2 Bakridi has appeared before this court and specifically deposed that his three-storied Jhuggi is existing between the Kuredan and the house of the accused. Further, it is evident from the record that the room in which the rape is alleged to have taken place/ spot of the crime has not been preserved. Rather, the investigating officer had visited the site after much delay. The statement of the prosecutrix under Section 164 Cr.P.C. has not been got recorded. It was necessary for the Investigating Officer to have got authentic version from the prosecutrix. Lastly the crime team was not called to the spot by the Investigating Officer nor the Investigating Officer herself took stock of the site by taking photographs or preserving the spot.
Coming now to the statement of the prosecutrix. Whatever she has deposed before this court does not find a due corroboration from the circumstantial evidence. The story put forward by her that the accused caught hold of her and took her to his house does not inspire confidence since the house of the accused and prosecutrix are situated opposite to each other with a Gali between them. Had that been the case she would have raised some State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 11 of 16 alarm or protest which would not only have attracted other persons in the neighbourhood or at least her mother who at that time was awake, which is not the case. Further, the FSL report does not support the prosecution case and the under garments which the prosecutrix handed over to the doctor in the hospital which according to her she was wearing at the time of incident, do not show any positive result and no serological examination has been got conducted as no semen stains were found. Further, the medical examination does not show any injuries either on the private parts of the prosecutrix or on the private parts of the accused. The hymen is shown to be absent and the doctor who had examined the prosecutrix, is unable to tell if there was a fresh sexual assault. Rather the entire medical report does not conclusively prove any fresh sexual assault. Other injuries have been received on various parts of the body of prosecutrix shows dislocation of elbow and fracture of left elbow and fracture of left radius bone and fracture of Humerus right arm. These injuries so received by the prosecutrix could only have been received in case if the prosecutrix had jumped from the first floor. Rather, if she had been pushed or thrown as alleged, she would have fallen either on her back or her face and received injuries there and not only on her elbow and hands which is not the case. The nature of injuries do not suggest that the prosecutrix was thrown rather it suggests a jump.
Further, the testimony of the prosecutrix that the accused had committed rape upon her without her consent forcibly also does not inspire confidence not only because of absence of any injuries on her private parts or in the absence of semen stains but also on account of the fact that at the time when the prosecutrix was taken to the hospital, she was wearing all her clothes including her undergarments which she admitted in her cross- examination. Had the sexual assault been forcible without her consent and the intention of the accused had been to kill the prosecutrix as he panicked on hearing some voice there would not have been any time for her to wear all her clothes and it is not the case of the prosecutrix that she was first made to put on her clothes. Also the FSL report does not give any positive report and there were no semen stains on her undergarments. Further, the prosecutrix states that there was a bed in the room of the accused where she was raped but the investigating officer in her testimony denies that there was any bed.
State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 12 of 16 It is one of the defence of the accused as evident from the cross- examination that the prosecutrix was in relationship with him and even on the date of incident she had come to him of her own and panicked when she heard noises and jumped from the roof of the Kuredan. The prosecutrix is a minor girl and the accused is also a young boy and the prosecutrix is alleged to be a friend of the sister of the accused who is studying in the same school. Being neighbours this possibility cannot be ruled out.
Further, the witness examined by the accused in his defence namely Bakridi has proved that he is having a triple storied Jhuggi between the house of the accused and Kuredan and no person can reach the Kuredan without first crossing his Jhuggi. This being so, the case has put forward by the prosecution that the accused Rajesh had committed rape upon the prosecutrix without her consent does not stand proved. It is also evident that the accused has put forward many defences including that of his false implication as the father of the prosecutrix owed some money to the father of the accused on which there was a quarrel on a previous date due to which he has been falsely implicated. He has also stated that the prosecutrix was suffering from polio and had in fact fallen from the stairs of the adjoining house. In fact at one point of time the accused also took a defence that the rape had been committed by Sanjay and Vinod who the father of the prosecutrix now wants to protect. No doubt the prosecutrix has in her additional examination named two other persons Sanjay and Vinod yet no explanation is forthcoming that if that be the case why their names were not mentioned either in the FIR or in her statement before the police or in her examination in chief. The other defences put forward by the accused also do not inspire confidence and appear to be after thought. It is settled law that the case of the prosecution is required to stand on his own legs and the court is not supposed to go by the weakness in the defence put forth by the accused.
The testimony of the prosecutrix, that she had been forcibly raped by the accused against her will and thereafter thrown from the roof of Kuredan does not inspire confidence of the court for the reasons discusses above. Had the accused intended to kill the prosecutrix, then under the given circumstances, it is not possible that he would have thrown her from first floor of Kuredan. Even otherwise as already observed the nature of injuries as State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 13 of 16 appearing on the body of the prosecutrix suggests that they have been received on account of jump and not on being thrown. The possibility of the prosecutrix being in relationship with the accused and having gone with him and having jumped from the first floor of the Kuredan for fear of being caught on which she sustained injuries cannot be ruled. The statement of the prosecutrix to the extent that it is the accused who had raped her is consistent. She does not name any other person. Therefore, there is no reason to disbelieve the prosecutrix to the extent of identity of the accused but in so far as the aspect of having raped her without her consent is concerned, her statement to that extent does not find due corroboration from the surrounding circumstances and the relationship appears to be consensual. The record, however, reveals that the age of the prosecutrix at the time of the incident was 15 years 3 months and she was below the age of consent. Therefore, under these circumstances, the accused is only held guilty of the offence under Section 376 Indian Penal Code and convicted accordingly. In so far as the provisions of Section 366 and 307 Indian Penal Code are concerned, benefit of doubt is given to the accused for which he is acquitted.
Case be listed for arguments on sentence on 15.4.2010.
Announced in the open court (Dr. KAMINI LAU)
Dated: 7.4.2010 ASJ(NW)-II: ROHINI
State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 14 of 16
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE
(NW)-II: ROHINI COURTS: DELHI
Session Case No. 1060/09
Unique ID No.: 02404R0291772006
State Vs.
Rajesh
S/o Kamlesh Sharma
R/o N-9A/458,
Lal Bagh, Azadpur,
Delhi.
FIR No. 284/06
PS Adarsh Nagar
Under Section 366/376/307 IPC
Date of Conviction: 7.4.2010
Arguments heard on: 27.4.2010
Date of Sentence: 4.5.2010
Appearance: Sh. Tofiq Ahmed, Addl. PP for the State.
Convict in judicial custody with Sh. V.K.
Jha Advocate.
ORDER ON SENTENCE:
Vide my detailed judgment dated 7.4.2010 the
accused Rajesh has been held guilty of the offence under Section 376 Indian Penal Code and has been acquitted for the charges under Section 366 and 307 Indian Penal Code.
Heard arguments on the point of sentence.
As per the allegations, on 16.5.2006 at about 2:00 am the convict Rajesh haD kidnapped the prosecutrix 'S' and committed rape upon her without her consent and also thrown her from the roof of the Kuredan. However, this court has already given the benefit of doubt to the convict for the charges under Section 366 and 307 Indian Penal Code and State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 15 of 16 convicted him only for the offence under Section 376 Indian Penal Code in view of the fact that at the time of incident, the prosecutrix 'S' was aged about 15 years and 3 months and was technically below the age of consent.
The convict Rajesh is stated to be a young boy of 21 years of age and was working in a private factory at the time of incident. He has a family comprising of father, mother, three young sisters and one elder brother. He is in judicial custody since 18.5.2006. He is also involved in another cases bearing FIR no. 383/04, under Section 354/323 IPC PS Adarsh Nagar but it is argued by the Ld. Counsel appearing on behalf of the convict that the said case is a counter blast of the complaint case filed by the mother of the accused against the mother of the complainant.
I have considered the submissions made before me.
Keeping in view the age of the convict and the fact that the convict is not a hardened criminal and also keeping in view the circumstance of the family of the convict, I, in the interest of justice sentenced the convict Rajesh to Rigorous Imprisonment for a period of 4 years and fine to the tune of Rs.3,000/- for the offence under Section 376 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 3 weeks.
The convict is already in judicial custody. He is sent to custody for serving the sentence. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34- 37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to the convict free of costs and another be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 4.5.2010 ASJ (NW)-II: Rohini State Vs. Rajesh, FIR No. 284/06, PS Rajesh Page No. 16 of 16