Delhi District Court
1 S/ vs Akshay on 17 November, 2008
1 S/vs Akshay
IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE01
SOUTH
SC No. 30/07
State Versus Akahsy
S/o Sh. Hari Chand
R/o H. No. 123, K2,
Sangam Vihar, New Delhi
FIR No. 867/2006
Police Station Sangam Vihar
Under Section 363/366/376 IPC
Date of institution : 05.03.07
Date when the arguments
were heard : 04.11.08
Date of judgment : 12.11.08
JUDGMENT
The SHO of Police Station Sangam Vihar has filed challan against the accused Akshay in the court of Metropolitan Magistrate, New Delhi for the trial of the accused for the offences under sections 363/366/376 IPC. Keeping in view the provisions of section 228 (A) IPC and the dicta of the Hon'ble Supreme Court in State of Karnataka Vs Puttraja (2004 (1) SCC 475) and Om Prakash Vs State of Uttar Pradesh 2006 Cri.L.J. 2913 the name of prosecutrix is being not given in the judgment. After supplying the copies to the accused and compliance of provisions of the section 207 Cr.P.C the learned Metropolitan 2 S/vs Akshay Magistrate committed the case to the court of Sessions under section 209 Cr.P.C for trial of the accused.
BRIEF FACTS OF THE CASE The case of the prosecution, in brief, is that on 26.8.06 on receipt of DD no. 15A Sub Inspector Harender Singh went to the place of incident at house no. KII/175, Harijan Basti Sangam Vihar and recorded the statement of Panna Lal son of Mohan Lal resident of KII/125, Gali no.4 , Harijan basti, the father of the prosecutrix Jyoti aged about 11 years. Father of the prosecutrix gave statement that the accused Akshay has taken away the prosecutrix with him, so the case under section 363 IPC was registered against the accused. After recording statement of the prosecutrix under section 161 Cr. P.C. and getting her medically examined and getting her statement recorded under section 164 Cr. P.C. by learned Metropolitan Magistrate and recording statement of the witnesses, the accused was challaned as referred above.
CHARGE AND PLEA OF ACCUSED Prima facie case for the offences punishable under sections 363/376 IPC was found to be made out against the accused so the charges under section 363 and 376 IPC were framed against the accused on 19.3.07 to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case the prosecution has examined twelve 3 S/vs Akshay witnesses in all. PW1 is constable Sh Nahar Singh who accompanied the investigating officer Sub Inspector Harinder Singh to the spot and he took the rukka to the Police Station and after registration of the FIR, returned to the spot and handed over copy of FIR and original rukka to investigating officer.
PW2 is the prosecutrix who has supported the prosecution case in examination in chief.PW3 Sh Panna Lal , father of the prosecutrix and has proved his statement Ex PW3/A. He also stated that he handed over photocopy of birth certificate of his daughter to investigating officer which investigating officer seized vide memo Ex PW3/B. He has also stated that photocopy of birth certificate in judicial file is Mark PA. He also stated that he took his daughter on superdari vide memo Ex PW3/C. PW4 is constable Ms Savitri who as per direction of the investigating officer took the prosecutrix to AIIMS for her medical examination and after medical examination of prosecutrix doctor handed over to her one sealed pulanda and one sample seal which she later on handed over to investigating officer who seized the same vide memo Ex PW4/A. PW5 is Smt Usha Devi, mother of the prosecutrix who has stated that her daughter aged about 14 years was missing. On 31.8.06 police informed that her daughter was found at Old Delhi Railway Station. On inquiry her daughter told that she was kidnapped and raped by accused Akshay during the last three days.
PW6 is Head constable Sh Sukh Lal who was posted as Duty Officer on 26.8.06 at police station Sangam Vihar and has proved the copy of FIR recorded 4 S/vs Akshay by him as Ex PW6/A. PW7 Head constable Sh. Om Prakash is Malkhana Mohrar and has stated that on 31.8.06 investigating officer has deposited four sealed parcels and two sample seals which he entered vide serial no. 3629 of register no. 19. On 17.1.07 as per direction of the investigating officer he handed over pulandas and sample vide RC no. 25/21 to him for depositing in FSL, Rohini. After depositing the same in FSL, Rohini receipt copy was handed over to him. During his possession the seals were intact and were not tampered with. He proved the copy of relevant Register No. 19 as Ex PW7/A. PW8 Ms. Geetanjali Goel recorded statement of the prosecutrix under section 164 Cr. P.C. Ex PW8/A and gave her certificate Ex PW8/B. Application for supply of proceedings moved by investigating officer was allowed by her and is Ex PW8/C. PW9 Sh Ram Swaroop was given up by the Prosecution. PW9A Sh Sunil is brother of the prosecutrix who has stated that accused Akshay took his sister on 26.8.06 when he was playing in the street. He stated that he made telephone call to his father that accused has taken his sister with him. Thereafter he went to see his sister at the house of accused Akshay and saw her in the house of accused.
PW10 Sub Inspector Harender Singh, investigating officer of this case proved various steps taken by him during investigation. He proved the copy of DD No. 15A as Ex PW10/A. He made endorsement Ex PW10/B on the statement of father of the prosecutrix Ex PW3/A. He also stated that accused was arrested from Old Delhi Railway Station on 31.8.06 on the basis of secret 5 S/vs Akshay information. Mother of the prosecutrix was with them and she identified the prosecutrix. He also proved the personal search memo of accused Ex PW10/C and disclosure statement of the accused Ex PW10/D. He also stated that both ie accused and prosecutrix were taken to AIIMS for medical examination. He also stated that after medical examination of the accused, Constable Nahar Singh handed over to him three sealed parcels and one sample seal which he seized vide memo Ex PW10/E. He also corroborated with the statement of PW4 Constable Ms Savitri with regard to seizure of one sealed parcel and one sample which he seized vide memo Ex PW4/A. He further stated that accused Akshay took the police team to J2 Block, under construction house and told that he had confined the prosecutrix in that house. He proved the pointing out memo as Ex PW10/F. He also stated that he seized photocopy of birth certificate of prosecutrix which is mark PA and he recorded statement of witnesses. He further stated that he sent the case property to FSL but the FSL result has not been received. After completion of the investigation he prepared the challan.
PW 10 Dr Debashish Kundu stated that he examined the prosecutrix and gave his noting from portion A to A on the original casualty card Ex PW10/A. Thereafter she was referred to senior gynecologist for her medical examination.
PW11 Constable Sh Banwari Lal accompanied the investigating officer at the time of arrest of accused at Old Delhi Railway Station. He proved the arrest memo Ex PW11/A and corroborated the statement of investigating officer with regard to personal search of the accused vide memo Ex PW10/C and pointing out memo of place of incident Ex PW10/F. PW12 Sh Bhupender Kumar, Sub 6 S/vs Akshay Registrar Birth and Death had brought the birth register pertaining to register no. 77 dt 07.01.1992 regarding registration of birth of girl child. He proved the photocopy of register no. 77 dt 7.1.92 as Ex PW12/A. PLEA AND DEFENCE OF THE ACCUSED In his statement under section 313 Cr. P.C the accused has either denied the incriminating evidence put to him or has expressed his ignorance about the same. He has stated that it was a false case against him and the witnesses have deposed falsely to implicate him at the instance of father of the prosecutrix. He has stated that he was innocent and has been falsely implicated in this case.
In support of its case the accused has examined only one witness in all in his defence i.e. DW1 Ms Laxmi his sister who has stated that prosecutrix used to love with his brother and wanted to marry him. She used to visit their house frequently to meet accused Akshay and used to send letters to him and herself photographed with accused and used to tell her age above 18 years and thus wanted to marry with her brother. The father of the prosecutrix was against the marriage as they are from upper caste Khatik while the accused is from Jatav caste. Therefore, the accused was falsely implicated in this case. She denied the fact that accused has taken prosecutrix anywhere or he did commit any crime.
ARGUMENTS AND FINDINGS It is argued by the learned Additional Public Prosecutor that the 7 S/vs Akshay prosecutrix has supported the prosecution case and the statement of the prosecutrix alone is sufficient for conviction of the accused in rape cases. Prosecutrix has supported the prosecution case and has supported her statement. He has argued that age of the prosecutrix is 11 years and the consent for the offence alleged does not matter so prosecution has proved its case against the accused beyond reasonable doubt and accused is liable to be convicted under sections 363/376 IPC.
Argument of learned counsel for accused Sh Sameer Chandra, Advocate is that prosecutrix at the time of her medical examination has not stated about commission of rape before the doctor who recorded that there was no sexual assault or physical assault on the prosecutrix. She has not stated about any sexual assault by accused. So her statement before court should not be believed being contrary to statement given by her before doctor, in the light of section 155 (3) Indian Evidence Act. He has argued that there was no injuries on the private parts or otherwise on the body of the prosecutrix. The doctor has not given any opinion in the MLC Ex PY about commission of rape or any other injury. So, the offence of rape is not made out as the initial statement of prosecutrix before doctor can not be ignored.
As regards the age of the prosecutrix it is argued that prosecutrix in the MLC and in her statement given her age 11 years, the same age is given by her father PW3 Panna Lal. But the mother of the prosecutrix, PW5 Smt Usha Devi stated that her age was 14 years and the photocopy of the registration no. 77 dt 07.01.1992 Ex PW12/A also shows her age was more than 14 years, so 8 S/vs Akshay the prosecution has not been able to prove on record age of the prosecutrix. It is argued that since in the initial statement before the doctor he has not alleged any sexual intercourse or commission of rape by the accused, the subsequent statement made by her under section 164 Cr. P.C. or before the court as PW2 are false statement as regards commission of rape so the accused is entitled to be acquitted to the charges.
I have heard the learned Additional Public Prosecutor for the State, the learned counsel for the accused and have gone through the record of the case carefully.
In the MLC Ext PY, the doctor concerned has stated that " as told by Jyoti there was no history of sexual assault or physical assault". But the prosecutrix in her statement before the court as PW2 has stated that accused has committed rape on her person. Although in the cross examination she has stated that she has not told the doctor she had run with the accused of her own. But this statement of the prosecutrix is of now avail to the prosecution so far as charge of rape against the accused is concerned. Doctor who recorded MLC Ex PY is an independent witness so it cannot be expeced or presumed that he would recordl in the MLC that prosecutrix has told him that there was no history of sexual assault or physical assault unless these facts were narrated by the prosecutrix herself to the doctor concerned. There was also no fresh tear or bleeding though the hymen was torn/ found ruptured suggestive of penetration. There was no scratch mark along medical aspect of thigh. Therefore, the statement made by the prosecutrix before the doctor who recorded her MLC Ex 9 S/vs Akshay PY that there was no sexual assault or physical assault on her throws serious doubt in her statement made before the court as PW2 that accused has committed rape on her person. I am in agreement with the arguments of learned counsel for the accused that due to the contradictions in the statement given by her before the doctor as recorded in the MLC Ex PY with the statement in the examination in chief as PW2, her statement before the court is not credit worthy in the light of Section 155(3) of Indian Evidence Act and the benefit of doubt certainly arises to the accused so far as offence of commission of rape is concerned.
As regards the offence under section 363 IPC though the prosecution evidence throws two ages of the prosecutrix as prosecutrix PW2 and her father PW3 Panna Lal have given the age of the prosecutrix as 11 years but the mother of the prosecutrix PW5 Smt Usha Devi in her examination in chief as stated that her age about 14 years . The date of birth certificate of prosecutrix mark PA and the photocopy of birth register Ex PW12/A shows the date of birth as 03.01.92. Therefore, this authentic birth record shows date of birth of prosecutrix as on the day of commission of offence a little more than 141/2 years. Therefore, she was certainly a minor on the day of commission of offence. The evidence of PW2 prosecutrix corroborated by PW3 Panna Lal, the father of the prosecutrix, mother of the Smt Usha Devi, PW5 and PW9A Sunil, brother of the prosecutrix and the arrest of the prosecutrix and accused by the police from the Railway Station certainly proves that the prosecutrix was taken out of lawful guardianship by the accused. Therefore, the prosecution has been able to prove 10 S/vs Akshay its case against accused beyond reasonable doubt so far as offence under section 363 IPC is concerned.
RESULT OF THE CASE In view of the above discussion, accused is entitled to benefit of doubt so far as charge of rape under section 376 IPC is concerned and accused is acquitted of this charge. As regards charge of kidnapping the prosecutrix, a minor girl, prosecution has been able to prove its case against accused beyond reasonable doubt under section 363 IPC. Therefore the, accused is convicted under section 363 IPC. Let accused be heard on the point of sentence.
Announced in the
open court on 12.11.08 ( S.K. SARVARIA )
Additional Sessions Judge01
South
11 S/vs Akshay
IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE01
SOUTH
SC No. 30/07
State Versus Akahsy
S/o Sh. Hari Chand
R/o H. No. 123, K2,
Sangam Vihar, New Delhi
FIR No. 867/2006
Police Station Sangam Vihar
Under Section 363 IPC
ORDER ON SENTENCE
Vide my judgment dated 12.11.08 accused Akahsy was convicted under section 363 IPC.
It is argued by learned Addl. P.P for the State that the offence of kidnapping a minor from the custody of her guardian should be treated seriously, so deterrent punishment should be awarded to the accused/convict.
Learned defence counsel for the accused/convict, on the other hand, has argued that the accused/convict is in custody for two years and three months and belongs to a poor family. It is argued that his parents have disowned him and he was living with her sister who herself is a poor fellow and her husband has left her, so lenient view may be taken against the accused.
In view of the above submissions and keeping in view the overall facts 12 S/vs Akshay and circumstances of the case accused/convict Akahsy is sentenced under section 363 IPC to undergo Rigorous Imprisonment for Two Years and Three months. He is further sentenced to pay fine of Rs 500/, in default of payment of fine he shall undergo Simple Imprisonment for One month.
The period of detention already undergone by the convict/accused Akahsy during the period of investigation and trial of this case shall be set off against the term of imprisonment imposed against the convict by this order, as provided under section 428 Cr.P. C. Judgment and order on sentence be sent to server (www.delhidistrict courts. nic.in). Copy of order of sentence be supplied to convict/accused free of cost.
File be consigned to record room.
Announced in the
open court on 17.11.08 ( S.K. SARVARIA )
Additional Sessions Judge01
South