Delhi District Court
State vs . 1. Premwati @ Prema on 20 March, 2012
1 FIR No. 66/01
PS Bawana
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
Sessions Case No. : 26/10
Unique ID No. : 02404R0138822010
State Vs. 1. Premwati @ Prema
W/o Sh. Sumai Lal
2. Sukai Lal @ Sukia
S/o Sh. Sumai Lal
R/o Village Judpur, P.S. Kudwar
Distt. Sultanpur (U.P).
FIR No. : 66/2001
Police Station : Bawana
Under Sections : U/S 376/366/363/34 IPC
Date of committal to session court : 29.05.2010
Date on which orders were reserved: 16.03.2012
Date of which judgment announced: 20.03.2012
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2 FIR No. 66/01
PS Bawana
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 01.05.2001 Mahinder lodged a complaint that he was labourer. His daughter (name withheld being a case under section 376 IPC), the prosecutrix aged about 12 years was missing since 28.2.2001, he expressed his suspicion that his neighbour Sukia alongwith his mother has enticed and kidnapped his daughter as she used to sit with them. On this statement formal FIR was recorded. On 2.7.2001 on the pointing out of secret informer prosecutrix was recovered from the custody of Shiv Shanker @ Shanker while they were standing at the bus stand Shahbad. Her statement was got recorded under section 164 Cr.P.C. Prosecutrix and Shiv Shanker @ Shanker were got medically examined. Bone age test of the prosecutrix was also got done. The exhibits were sent to FSL. Accused Premwati and Sukia could not be arrested and were declared proclaimed offender on 14.8.2001.
2 of 21 3 FIR No. 66/01 PS Bawana Upon completion of necessary further investigation challan was prepared for the offences u/s 363/366/376/34 IPC against accused Shiv Shanker Lal @ Shanker and was sent to the court for trial.
2. Since the offences u/s 366/376 IPC were 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 Sessions u/s 209 Cr.P.C.
3. Upon committal of the case to the Court of Session, after hearing of charge prima facie a case u/s 366/376IPC IPC was made out against accused Shiv Shanker @ Shanker. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
4. In support of its case prosecution had examined eight witnesses. PW1 Dr. S.A. Francis, PW2 Sh.M.S.Rohilla Advocate, Ex. Metropolitan Magistrate, PW3 Raj Kumari, PW4 Mahender, PW5 Ram Pyari, PW6 Khushboo, PW7 Joth Singh and PW8 SI Ramesh Singh.
3 of 21 4 FIR No. 66/01 PS Bawana
5. Statement of accused Shiv Shanker @ Shanker was recorded under section 313 Cr.P.C wherein he pleaded innocence and false implication in this case and opted not to lead any defence evidence.
6. After hearing Ld. Addl. PP for the state and Ld. Counsel for accused Shiv Shanker @ Shankar, the Ld. Predecessor Court vide judgment dated 16.12.2002 acquitted accused Shiv Shanker @ Shanker for the offences under section 363/366/376/34 IPC.
7. That on 15.3.2010 both accused Premwati @ Prema and Sukai Lal @ Sukia were arrested.
8. Upon completion of necessary investigation, supplementary charge sheet for the offences under sections 363/366/376/34 IPC against both the accused Sukai Lal @ Sukia and Premwati @ Prema was prepared and filed in the court .
9. Since the offences u/s 366/376 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 alongwith main 4 of 21 5 FIR No. 66/01 PS Bawana case file u/s 209 Cr.P.C.
10 Upon committal of the case to the Court of Sessions, after hearing of charge prima facie a case u/s 363/366/376/34 IPC r/w 109 IPC was made out against accused Premwati @ Prema and Sukai Lal @ Sukia. Charge was framed accordingly which was read over and explained to the accused to which they pleaded not guilty and claimed trial.
11. At this stage it is worthwhile to mention that prosecution witnesses who were examined during the trial of Shiv Shanker @ Shanker are also the witnesses in the present trial against accused Premwati @ Prema and Sukai Lal @ Sukia therefore serial number of such witnesses shall be in bracket in order to avoid any confusion with the serial number of the witnesses examined in the present trial against accused Premwati @ Prema and Sukai Lal @ Sukia.
12. In support of its case prosecution has produced and examined eight witnesses. PW1 W/constable Manju. PW2 HC Sunita,PW3 ASI Jai Singh, PW4 SI Rajinder Singh, PW5 Constable Deepak, PW6 SI Laxmi Narain, PW7 SI Ramesh Singh, PW8 the prosecutrix.
5 of 21 6 FIR No. 66/01 PS Bawana PW1 Lady constable Manju, who joined investigation on 15.3.2010 with ASI Rajinder Singh and proved the arrest memo of accused Premwati @ Prema Ex.PW1/A. PW2 HC Sunita who also joined investigation of this case with ASI Jai Singh and HC Inder Singh and deposed that both the accused Premwati @ Prema and Sukai Lal were arrested from New Delhi Railway Station and proved kalendra under section 41.1 Cr.P.C Ex.PW3/A and DD No.34 B Ex.PW3/B and also deposed that he took the personal search of accused Premwati @ Prema.
PW3ASI Jai Singh who deposed that on 15.3.2010 on the basis of the secret information accused Premwati @ Prema and Sukai Lal were arrested from New Delhi Railway Station and proved kalendra under section 41.1(C) Cr.P.C Ex.PW3/A and DD No.34B Ex.PW3/B copy of DD No. 14A dated 15.3.2010 Ext. PW3/C vide which information was given to the police of police station Bawana of the arrest of the accused persons.
PW4SI Rajinder Singh, who deposed that on 15.3.2010 he was posted as ASI in Police Station Bawana and on the receipt of DD No. 14A 6 of 21 7 FIR No. 66/01 PS Bawana Ex.PW3/C with the permission of the court he interrogated both the accused Premwati @ Prema and Sukai Lal and proved the application in this regard Ex.PW4/A and proved the arrest memo of Sukai Lal Ex.PW4/B and that of accused Premwati @ Prema Ex.PW1/A and also proved the disclosure statement of both the accused Premwati @ Prema and Sukai Lal Ex.PW4/C and Ex.PW4/D respectively.
PW5Constable Deepak, who deposed that on 15.3.2010 he was posted at P.S Bawana and joined the investigation with PW4 SI Rajinder Singh and deposed on the investigational aspects and proved the arrest memo of both the accused persons Premwati @ Prema and Sukai Lal Ex.PW1/A and Ex.PW4/B respectively and their disclosure statements Ex.PW4/C and Ex.PW4/D signed by him at point B. PW6 SI Laxmi Narain, who deposed that on 26.3.2010 he was posted at P.S Bawana and moved an application Ex.PW6/A in the court for police custody of accused Sukai Lal and also recorded the supplementary disclosure statement of accused Sukai Lal Ex.PW6/B and deposed that after completion of the investigation, challan was filed in the court against both the accused Premwati @ Prema and Sukai Lal.
7 of 21 8 FIR No. 66/01 PS Bawana PW7 SI Ramesh Singh is the investigating officer of the case who deposed on the invesgational aspects besides proving other memos also proved his endorsement Ex.PW8/A. The disclosure statement of accused Shiv Shanker @ Shanker Ex.PW7/A (Kept in main file) and deposed that during the course of investigation, he got conducted the medical examination of accused Shiv Shanker @ Shanker (since acquitted) and also that of prosecutrix and also got recorded the statement of the prosecutrix under section 164 Cr.P.C and also got conducted her bone age test vide report Ex.PW8/DA.
PW8 Prosecutrix who deposed regarding the incident and proved her statement under section 164 Cr.P.C Ex.PW8/A (also marked asEx.PW2/B during the trial of accused Shiv Shanker @ Shanker (since acquitted).
13. During the recording of the evidence Ld. counsel for the accused submitted that vide judgment dated 16.12.2002 accused Shiv Shanker @ Shanker has since been acquitted in this case and during the trial of accused Shiv Shanker @ Shanker PW1 Dr. S.A. Francis on 9.8.2002, PW2 Sh. M.S. Rohilla on 23.10.2002, PW4 Mahender on 23.10.2002, PW5 Ram Pyari on 8 of 21 9 FIR No. 66/01 PS Bawana 23.10.2002, PW6 Khusboo on 23.10.2002, PW7 Constable Joth Singh on 9.12.2002 were also examined as prosecution witnesses and she does not insist for production and examination of said prosecution witnesses Accordingly, the testimony of said prosecution witnesses shall be read as such.
(PW1) Dr. S.A. Francis who proved the MLC of accused Shiv Shanker @ Shanker and of the prosecutrix Ex. PW1/A and Ex. PW1/B respectively.
(PW2) Sh. M.S. Rohilla who recorded the statement of the prosecutrix under section 164 Cr.P.C Ex.PW2/B (also exhibited Ex.PW8/A in the present trial).
(PW4) Mahender who was the father of the prosecutrix who proved the report lodged with the police Ex.PW4/A and the personal search memo of accused Shiv Shanker @ Shanker Ex.PW3/B. (PW5) Ram Pyari, who is the mother of the prosecutrix.
9 of 21 10 FIR No. 66/01 PS Bawana (PW6) Khushboo was the neighbour of the prosecutrix who stated that prosecutrix went to village of accused Shiv Shanker with his mother and brother of Shiv Shanker @ Shanker was also with her and at that time when she saw them (Shanker) was not with the prosescutrix.
(PW7) Constable Joth Singh who deposed that he joined the investigation on 2.7.2001 with SI Ramesh Singh and deposed on the invstigational aspects and also proved seizure memo of the exhibits given by doctor after medical examination of accused Shiv Shanker @ Shanker (Since acquitted) Ex.PW7/A. 14 Statement of accused Premwati @ Prema and Sukai Lal @ Sukia were recorded under section 313 Cr.P.C wherein they pleaded innocence and false implication and opted not to lead any defence evidence. 15 Ld. counsel for the accused submitted that accused Shiv Shanker @ Shanker has since been acquitted vide judgment dated 16.12.2022 and against present accused persons, prosecution has failed to prove its case beyond reasonable doubt. She further stated that PW8 (prosecutrix) has not stated anything incriminating against both the accused persons.
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16. Ld. APP on the other hand submitted that prosecution has proved its case beyond reasonable doubt against both the accused.
17. I have heard Ld. APP for the State and Ld. counsel for both the accused and have also carefully perused the entire record.
18. The charge against both the accused Premwati @ Prema and Sukai Lal @ Sukia is that on 28.2.2001 at about 12.00a.m Jhuggi Number 164 Shahabad Diary, Delhi both the accused in furtherance of their common intention kidnapped or abducted prosecutrix, a minor and abetted her with intention to compel her or seduced her to illicit intercourse and to marry with Shiv Shanker and thereafter coaccused Shiv Shanker committed rape upon her and they further wrongfully confined and concealed her knowing that she has been kidnapped or abducted.
19. Undisputably accused Shiv Shanker @ Shanker has since been acquitted for the offences under section 363/366/376/34 IPC vide judgment dated 16.12.2002 by the Ld. Predecessor Court.
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20. The testimony of (PW1) Dr. S.A Francis, (PW2) Sh.M.S. Rohilla the then Ld.MM, (PW4) Mahender, (PW5) Ram Pyari, (PW6) Khusboo and (PW7) Const. Joth Singh pertain to the case of accused Shiv Shanker @ Shanker who has since been acquitted vide judgment dated 16.12.2002 therefore are of no assistance in the present trial against accused Prem Wati @ Prema and Sukai Lal. PW8 (Prosecutrix) in her examination in chief has deposed that she was 14 years of age at the time of her taking to attend the marriage by accused Premwati @ Prema and Sukai Lal at their native place. She has specifically deposed that she does not remember her date of birth nor has brought any document in this regard.
During her cross examination she has deposed that "It is incorrect to suggest that her age was 17 years in the year 2001 and for this reason she had not told her said age to the police as well as in the court at the time of recording her statement under section 164 Cr.P.C."
There is nothing in her cross examination so as to impeach her creditworthiness.
12 of 21 13 FIR No. 66/01 PS Bawana In the circumstances, it stands established on the record that prosecutrix was 14 years of age on the date of incident and was thus a minor on the date of incident.
21. PW8 (Prosecutrix) in her examination in chief has deposed that in the year 2001 she was working in the factory of his father and at that time both accused Premwati @ Prema and Sukia were also working in the same factory. One person Shanker Lal was also working in the same factory in the year 2001. Jhuggi of the accused persons was situated near to her jhuggi at Shahabad Dairy and she had visited terms in the jhuggi of accused persons. She was kept in the village by accused persons for about four months. She correctly identified both the accused Premwati @ Prema and Sukia present in the court. She has further deposed that both the accused persons at the time of taking her to attend the marriage at her native village had assured her that they will bring back her within 15 days to her house.
During her cross examination, she has deposed that she did not tell her parents at the time she was taken by accused Premwati @ Prema and Sukia. She also did not refuse to accompany them.
13 of 21 14 FIR No. 66/01 PS Bawana Inspite of incisive cross examination nothing material has been brought out on the record so as to impeach her creditworthiness. Her testimony is clear, cogent, convincing and trustworthy. There is nothing in her statement to suggest that she has any animus against accused persons to falsely implicate them in the case.
It is well settled that an act of meeting of minds has to be inferred from the circumstances of the case. (Ref. Virender Singh Vs. 2011 (1) AD Delhi 242).
From the testimony of PW8 (prosecutrix) who was minor aged about 14 years at the time of incident, it stands clearly established on record that she was taken by both the accused persons Premwati @ Prema and Sukia in furtherance of their common intention to their native village out of the keeping of her lawful guardianship and without the consent of her guardian though PW (prosecutrix) has deposed in her cross examination that she did not refuse to accompany them but she being minor below 18 years her consent is of no consequence.
14 of 21 15 FIR No. 66/01 PS Bawana PW8 (prosecutrix) in her examination in chief has deposed that thereafter, they (accused Premwati @ Prema and Sukia) forced her to get marry with Sukia but she refused to marry with him. Her this part of testimony does not find corroboration from her statement recorded under section 164 Cr.P.C Ex.PW8/A wherein she has stated that she was forced to marry with Shiv Shanker (since acquitted) nor there is a signal word in her entire testimony that both the accused Premwati @ Prema and Sukia abetted for committal of rape upon her by accused Shiv Shanker (since acquitted).
PW8 (prosecutrix) in her examination in chief has specifically deposed that nothing had happened with her in the house of accused persons . Shanker brother of Sukia also visited to his house at Sultanpur later on but he has also not did any wrong act with her.
In view of above, I am of the considered opinion that prosecution has proved beyond shadows of all reasonable doubt that prosecutrixt (PW8), a minor girl aged about 14 years was kidnapped by accused Premwati @ Prema and accused Sukai Lal @ Sukia in furtherance of their common intention from her lawful guardianship 15 of 21 16 FIR No. 66/01 PS Bawana without consent of her guardian. I accordingly, hold accused Premwati @ Prema and accused Sukai Lal @ Sukia guilty for the offence punishable u/s 363/34 IPC and convict them thereunder. However, prosecution has failed to prove its case for the offences u/s 366/376/34 IPC r/w Section 109 IPC against accused Premwati @ Prema and Sukai Lal @ Sukia, therefore, accused Premwati @ Prema and Sukai Lal @ Sukia are acquitted for the offences punishable u/s 366/376/34 IPC r/w Section 109 IPC.
22 In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Premwati @ Prema and accused Sukai Lal @ Sukia in the commission of the offence u/s 363/34 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 Premwati @ Prema and accused Sukai Lal @ Sukia beyond shadows of all reasonable doubt and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Premwati @ Prema and accused Sukai Lal @ Sukia guilty for the offence punishable u/s 363/34 IPC and convict them thereunder. However, 16 of 21 17 FIR No. 66/01 PS Bawana accused Premwati @ Prema and accused Sukai Lal @ Sukia are acquitted for the offences punishable u/s 366/376/34 r/w Section 109 IPC. Announced in the Open Court on 20th Day of March, 2012.
(MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer District Rohini/Delhi.
17 of 21 18 FIR No. 66/01 PS Bawana IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI Sessions Case No. : 26/10 Unique ID No. : 02404R0138822010 State Vs. 1. Premwati @ Prema W/o Sh. Sumai Lal
2. Sukai Lal @ Sukia S/o Sh. Sumai Lal R/o Village Judpur, P.S. Kudwar Distt. Sultanpur (U.P).
FIR No. : 66/2001 Police Station : Bawana Under Sections : U/S 376/366/363/34 IPC ORDER ON SENTENCE :
Vide my separate detailed judgment dated 20.03.2012 accused Premwati @ Prema and Sukai Lal @ Sukia have been convicted for
18 of 21 19 FIR No. 66/01 PS Bawana the offence punishable u/s 363/34 IPC.
Ms. Bindia Malhotra, Ld. Amicus Curiae for convicts Premwati @ Prema and Sukai Lal @ Sukia submitted that both the convicts are the mother and the son. Convict Sukai Lal @ Sukia is 22 years of age and is a poor person and is having three children and is the sole bread earner in the family and is not a previous convict and is running in JC since 15.03.2010. She further submitted that convict Smt. Premwati @ Prema is an old lady of 65 years of age and is suffering from various ailments and is running in JC since 15.03.2010 and is not a previous convict and is totally dependent upon his son/convict Sukai Lal @ Sukia. She further submitted that they are having clean antecedents and they are the victims of the circumstances and prayed for leniency.
On the other hand, Ld. Addl. PP for state submitted that convicts be dealt with strictly and severest punishment be given to deter them from committing the same offence in future and no leniency be shown to them. He further submitted that they have committed very serious and grave offence of kidnapping of a minor girl aged about 14 years.
19 of 21 20 FIR No. 66/01 PS Bawana I have heard the Ld. APP for the state and the Ld. Counsel for the convicts Smt. Premwati @ Prema and Sukai Lal @ Sukia at length on the quantum of sentence. The prosecutrix a minor girl of age about 14 years was kidnapped by convicts Smt. Premwati @ Prema and Sukai Lal @ Sukia on the pretext of attending marriage at their native place out of her lawful guardianship and without the consent of her guardian.
Having regard to all the facts and circumstances of the case and all the facts and circumstances of the convicts' family and also that they are not the previous convicts and have clean antecedents, I am of the considered opinion that the ends of justice can be met by sentencing convicts Premwati @ Prema and Sukai Lal @ Sukia to undergo Rigorous Imprisonment for a period of two years each and to pay a fine of Rs. 500/ each in default thereof to further undergo Rigorous Imprisonment for a period of one month each u/s 363/34 IPC. The period already undergone by both the convicts during the inquiry/investigation/trial of this case shall be set off under section 428 Cr.P.C.
20 of 21 21 FIR No. 66/01 PS Bawana A copy of judgment as well as that of order on sentence be given to both the convicts free of costs. Announced in the open Court today on 20th Day of March, 2012 (MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
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