Delhi District Court
State vs Mahesh on 17 September, 2008
1
IN THE COURT OF SH. SANJAY KUMAR AGGARWAL
ADDL. SESSIONS JUDGE:ROHINI:DELHI.
Sessions Case No. 710/06 FIR No. 239/06
PS Uttam Nagar
u/s 363/376 IPC
State
Vs
Mahesh, S/o Ramanand
R/o Village Damdama, PO & PS Vidyapati Nagar
District Samastipur, Bihar.
Date of Institution : 10.08.2006
Date on which
reserved for orders : 17.09.2008
Date on which
order announced : 17.09.2008
JUDGMENT
1. The case of the prosecution is that on 20.03.2006, the prosecutrix was kidnapped by the accused from her lawful guardianship without the consent of the guardians with intent that she may be compelled to marry the accused against her will or may be seduced to illicit intercourse and further committed rape upon the prosecutrix against her will and without her consent.
2. Prima facie, case u/s 363/366/376 IPC was made out against the accused. The accused did not plead guilty to the formal State Vs Mahesh 2 charge and claimed trial.
3. The story behind the prosecution case is that an FIR was got registered by the father namely Sudershan Yadav, of the prosecutrix stating therein that the prosecutrix was missing since 20.03.2006 at 3.00 PM and raised suspicion that accused Mahesh had enticed the prosecutrix away.
4. Finally, after investigation, the prosecution filed charge sheet U/s 363/376 IPC against the accused.
5. I have heard the Ld. Counsel for the accused and also Ld. CPP for the State. I have also perused the record.
6. In order to substantiate its claim, the prosecution produced the prosecutrix-PW1, her father, the complainant Sh. Sudershan PW2, mother of the prosecutrix PW5, besides other police officers and the PW11 who was Principal of school where the prosecutrix studied. The case was at the stage of defence evidence. During that stage, the accused requested for recording his statement State Vs Mahesh 3 u/s 313 Cr.PC as he wanted to admit his guilt for the offence u/s 363 IPC but not for 376/366 IPC. The statement of the accused u/s 313 Cr.PC was recorded as the same can be recorded at any stage as enshrined in Section 313 Cr.PC itself.
7. Before further discussing the remaining statements, this Court would like to scrutinize the statement of the prosecutrix and for scrutinizing the same, I am being guided by the judgment of Hon'ble High Court of Delhi in 1994 JCC 413 Mahavir Vs. State held that in such type of cases, statement of the prosecutrix holds the key. In that case, prosecutrix went to railway station, remained standing there alone while the accused had gone to purchase tickets, travelled with the accused for long hours in a compartment shared by other passengers, and then went on a tonga which too was shared by other passengers and yet she lodged no protest, raised no banner of revolt and made no attempt to flee and it was held that it was impossible to believe. The facts of the present case are almost similar to the facts of the cited judgment decided by Hon'ble High Court of Delhi. The PW1-prosecutrix while in the witness box on oath deposed before this Court that on 20.03.2006, she had gone to State Vs Mahesh 4 Pradhan Chowk to learn stitching as usual. She reached there at 3.00 p.m. The Silai Center was closed on that day. She started returning to her house. She further stated that when she had covered about half of the distance for her house, accused Mahesh met her on the way. The accused offered tea to the prosecutrix. She stated that after consuming tea, she started feeling giddiness and she became semi- unconscious. She was taken by the accused to some places and finally they reached at Siliguri. The prosecutrix stated that the accused kept her in Siliguri for about a month. During this period, he committed rape with the prosecutrix forcibly and without her consent. She further stated that when she got a chance, she telephonically informed her father on 17th April, 2006. The father of the prosecutrix rushed to Siliguri alongwith police on 28.04.2006. The accused was apprehended by the police and the prosecutrix was recovered. Both the prosecutrix and the accused were produced in Court at Siliguri and thereafter, they came to Delhi. The prosecutrix was medically examined at DDU hospital. She was also produced before the Court of Sh. Bhupesh Kumar, Ld. MM at Rohini and her statement was recorded by the Ld. MM. She further deposed that she had studied upto 6th standard as a student of Govt. Sarvodaya Vidalaya, Hastal State Vs Mahesh 5 Village.
On being cross examined by Ld. Counsel for the accused, the prosecutrix stated that she pursued Silai Center course for about four months prior to the incident. Sunday is a weekly off day in the said center. She termed it to be incorrect that the center remains closed on Tuesday because of weekly off. She stated that she knew the accused Mahesh for the last 2-3 years prior to the incident. The accused remained as a tenant in the house of the prosecutrix for a period of about 15 days. She termed it to be incorrect that the accused remained as a tenant in her house for two years. She also termed it to be incorrect that she was having love affair with the accused during the period he stayed as a tenant in her house. She also termed it to be incorrect that her love affair with the accused continued even after he vacated her house. She further termed it to be incorrect that her father was against her affair with the accused. She termed it to be incorrect that she had voluntarily accompanied the accused to solemnize marriage with him to escape the notice of her father or that she had voluntarily run away with the accused. It was termed to be incorrect that the prosecutrix had married the accused voluntarily at Patna. She further termed it to be incorrect that she had State Vs Mahesh 6 solemnized marriage with the accused in a temple at Patna out of her sweet will. She admitted that she had stated in her statement u/s 164 Cr.P.C. that at Patna accused Mahesh solemnized marriage with her disclosing her age to be 19 years. She voluntarily stated that she was threatened by the parents of the accused and for that reason she had given this version. She stated that one lady who is wife of Prabhu Dayal was with her when accused had offered tea to her. She regained consciousness in Karnal. She stated that she do not know what happened to the wife of Prabhu Dayal when she had become unconscious. That lady had not informed her parents about the incident. She termed it to be incorrect that she was not served with any intoxicating or stupefying substance in the tea. She stated that now she is married. She stated that she was born at Bihar at her native village. She stated that she was brought to Delhi by her parents when she was just six months old. She stated that the accused never allowed her to remain alone, so she could not make any complaint. She termed it to be incorrect that she had not made any complaint because she had accompanied the accused voluntarily. While from Karnal, she was taken to Bihar, only the accused accompanied her at that time. She stated that she cannot say whether they had travelled State Vs Mahesh 7 by train or otherwise. It took about 24-25 hours in reaching Samastipur from Karnal. She voluntarily stated that the accused used to administer some drugs and because of that she used to remain under its influence. She deposed that she had regained consciousness only after reaching the house of the accused at Samastipur. The accused used to administer the drug sometimes in water and sometimes in tea. Accused used to collect water from shop. She stated that her father had arrived with the police at Samastipur. However, she was conscious at that time and was taken to some other place by the parents of the accused. She had not made any complaint to any person at that time. She did not try to escape from the custody of the parents of the accused. She termed it to be incorrect that she is deposing falsely or that she went with the accused with her own sweet will.
8. The PW2 Sh. Sudershan was the father of the prosecutrix wherein he deposed before this Court that prosecutrix was his daughter wherein he proved the FIR as Ext.PW2/A.
9. The PW9 was the doctor who was deputed as a substitute State Vs Mahesh 8 doctor who examined the prosecutrix and she proved the MLC of prosecutrix as Ext.PW9/A. In the said MLC, it has been mentioned that there is no fresh external injury/bleed seen. Therefore, it is clear that the prosecutrix had not offered any resistance while being subjected to sexual intercourse by the accused. In the MLC of the accused proved by Dr. Ajay Sharma PW10 as Ext.PW10/B, it has been mentioned that there is nothing to suggest that the accused was incapable of performing sexual act.
10. The PW11 Dr. Balesh Vijayrun was the Principal of the school where the prosecutrix studied. She deposed the date of birth of the prosecutrix as 02.02.1990 as per the record of the school and proved the SLC as Ext.PW11/B, meaning thereby the prosecutrix was around 16 years of age as on the date of offence.
11. To the factum that the prosecutrix did not try to escape from the custody of the parents of the accused or that she had not made any complaint to any person, the explanation furnished by prosecutrix for not raising alarm to the effect that the accused used to administer some drug sometimes in water and sometimes in tea and State Vs Mahesh 9 hence was not able to raise alarm does not appear to be digestable enough. She also termed it to be incorrect that she was in love with the accused. No external injuries were found on the body of the prosecutrix, it is beyond comprehension that the prosecutrix shall not offer any resistance while being subjected to rape in such circumstances. As already said, the prosecutrix was around more than 16 years and under such age, the prosecutrix cannot be said to be completely ignorant of the repercussions of the surrendering of her body to satisfy the lust of the accused and that too upon on enticing. The prosecutrix had sufficient opportunity not only to run away from the place at Siliguri where she was allegedly kept in captivity but she could have also taken the help of co-passengers or the passers-bye while being she allegedly removed to the said house at Siliguri from Delhi. Her entire conduct clearly shows that she was a consenting party to the sexual intercourse. However, since the prosecutrix was around 16 years that too in a Metropolitan City like Delhi, the girls and the boys generally are found in such case overcome the emotions and passions and find themselves in situation and circumstances where they in weak moments succumb to temptations of having sexual intercourse and in that eventuality taking into account the overall State Vs Mahesh 10 circumstances, it cannot be said that the prosecutrix was subjected to rape by the accused or that she was taken by both accused for the purpose of having sexual intercourse or forcible marriage. The prosecutrix had already admitted that she and accused used to meet each other and were known to each other and were deeply in affairs with each other.
12. Further, for appreciating the statement of the prosecutrix, I am being guided by the judgment of Hon'ble Supreme Court in AIR 1998 SC 2694 Kuldeep K. Mehto Vs. State of Bihar, wherein it was held that where the prosecutrix was less than 18 years of age and medical evidence showing no injuries on the person of the prosecutrix including her private parts, the prosecutrix was taken to a tempo on a particular place and the evidence of the prosecutrix not indicating that the accused had kidnapped the prosecutrix with intention to marry her against her will or that she may be forced to illicit intercourse, the allegations of rape or that of Section 366 were not made out and conviction of the accused was held to be improper." The facts of the present case also bear some sort of similarity with the facts as mentioned in the above noted judgments. State Vs Mahesh 11
13. Having gone through the entire statement of the prosecutrix as well as her statement u/s 164 Cr.P.C., it appears that version of the prosecutrix is not believable at all because of the fact that she had made deliberate improvements/contradictions in the statement made before the court and her statement u/s 164 Cr.P.C. Ext.PW1/A. The accused on 20.03.2006 enticed the prosecutrix and took her to Siliguri, meaning thereby the prosecutrix have entirely changed the version of prosecution. It appears from the bare testimony of the prosecutrix that the prosecutrix though initially in affairs with the accused have changed her stand for the influence best known to her. She remained for a considerable period at Siliguri but raised no banner of revolt during the said period.
14. In these circumstances, the prosecution has failed to prove the charges against the accused for the offence u/s 376 or u/s 366 IPC. With this background in picture, the accused is acquitted of the charges for the offence u/s 366/376 IPC.
15. The accused in his statement made u/s 313 Cr.P.C. voluntarily and categorically have admitted the guilt for the offence u/s 363 IPC and the same have also been duly proved by the State Vs Mahesh 12 prosecution because the accused had taken away the prosecutrix from her lawful guardianship without the consent of her guardian. The prosecutrix was less than 18 years of age and the accused had took her away without the consent of her guardian. Accordingly, he is convicted for the offence u/s 363 IPC. He shall be heard on the point of sentence today itself.
Announced in the Open Court on this the 17th day of September, 2008.
(SANJAY KUMAR AGGARWAL) ADDL. SESSIONS JUDGE ROHINI COURTS, DELHI State Vs Mahesh 13 IN THE COURT OF SH. SANJAY KUMAR AGGARWAL ADDL. SESSIONS JUDGE:ROHINI:DELHI.
Sessions Case No. 710/06 FIR No. 239/06
PS Uttam Nagar
u/s 363/376 IPC
State
Vs
Mahesh, S/o Ramanand
R/o Village Damdama, PO & PS Vidyapati Nagar
District Samastipur, Bihar.
Date of Institution : 10.08.2006
Date on which
reserved for orders : 17.09.2008
Date on which
order announced : 17.09.2008
ORDER ON SENTENCE
17.09.2008
Present: Ld. CPP for the State.
Convict on bail.
The convict was convicted by the Court for the offence u/s 363 IPC vide separate judgment of even date.
Arguments heard on the point of sentence. The convict submitted that he is a very poor person and is a young boy as well as he is the only bread earner of his family. The convict also prays that lenient view may be taken for him. He also prays that he may be State Vs Mahesh 14 released on already undergone period. Ld. CPP recommended maximum sentence.
Taking into account the submissions of the convict and Ld. CPP, the convict Mahesh is sentenced to undergo RI for six months and to pay fine of Rs.400/-, in default of payment of fine he shall further undergo SI for 15 days for the offence u/s 363 IPC. Benefit of Section 428 Cr.PC be also given to him.
Copy of judgment and Order on Sentence be given to the convict Mahesh free of cost. File be consigned to record room. Announced in the Open Court on this the 17th day of September, 2008 (SANJAY KUMAR AGGARWAL) ADDL. SESSIONS JUDGE ROHINI COURTS, DELHI State Vs Mahesh