Delhi District Court
Bhagwan Singh And Ors vs State, Wherein It Has Been Held That ... on 25 March, 2011
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 45/1
Unique Identification No. 02404R0145352010
State
Versus
Deepak
S/o. Mohan Lal
R/o. H.No.38, Gali no.3,
Jeevan Park, Siraspur,
Badli, Delhi.
FIR No. 03/09
PS - Swaroop Ngar
U/s. 363/366/376 of IPC
Date of Decision: 23/03/11.
Date of Sentence: 25/03/11
ORDER ON SENTENCE.
25/03/11,
Present: Ld APP for State.
Accused in JC with Amicus curiae Ms. Sadhna Bhatia.
Learned Amicus curiae submits that convict Deepak is aged about 23
years. He is having two brothers and two sisters, who are residing separately. One
brother is unmarried and one unmarried sister is residing with him. Before this
case, he used to drive taxi in Calcutta and was residing there in a rented
accommodation. Ld Amicus curiae further contended that prosecutrix has admitted
that she had married with accused Voluntarily, but accused has been convicted
SC No.45/1 1/9
only because she was less then 16 years at that time. Ld Amicus curiae has further
contended marriage performed between prosecutrix and accused is a legal
marriage and in support of same, she has relied upon 2006(3) JCC, 2050 titled as
Bhagwan Singh and Ors Vs state, wherein it has been held that minority of
the spouse cannot be a ground to declare their marriage illegal. It is neither
void nor illegal on account of his or her being less then 18 years, but over 15
years of age. Ld Amicus curiae further contended that at that time prosecutrix
was 15 years and 2 months, hence according to section 376 of IPC accused raped
his own wife, who was not under 12 years of age, so he can be awarded
imprisonment for a term which may extend to two years or with fine or with both.
On the other hand, Ld APP, has contended that accused has already
been convicted 322/05 of PS Samaypur Badliu/380/411 and has been released on
already undergone imprisonment during trial.
Considering the above facts and circumstances, in my opinion the
previous conviction cannot be termed the accused as habitual offender. Accused is
in custody since 23/04/2010 till today. Ld Amicus curiae has further contended
that financial position of accused is very weak, hence he be released on already
undergone imprisonment during trial without imposing any fine.
In view of the same taking a lenient view, sentence of 11 months SI is
imposed. Benefit of section 428 Cr.PC be given to the convict.
Convict is remanded to serve the sentence.
Announced in the Open Court on .
Dated 25th of March, 2011 (Virender Kumar Goyal)
Additional Sessions Judge
Fast Track Court
Rohini : Delhi
SC No.45/1 2/9
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 45/1
Unique Identification No. 02404R0145352010
State
Versus
Deepak
S/o. Mohan Lal
R/o. H.No.38, Gali no.3,
Jeevan Park, Siraspur,
Badli, Delhi.
FIR No. 03/09
PS - Swaroop Ngar
U/s. 363/366/376 of IPC
Date of institution of the case: 04.06.10
Arguments heard on: 22/03/11
Date of Decision: 23/03/11.
JUDGMENT
This case was registered u/s. 363 IPC on the statement of Smt. Devki Sharma.
During investigation, message was sent regarding missing of prosecutrix. Date of birth certificate of the prosecutrix was also seized in this case.
Later on, prosecutrix was recovered on 19.04.10. Her date of birth certificate was also collected, she was sent for medical examination but she refused for her internal medical examination. During investigation, her statement SC No.45/1 3/9 was recorded u/s. 161 Cr.PC. Copy of the order of Child Welfare Committee was also collected after which she was handed over to her parents.
Accused was arrested in this case on 23.04.10 and after completion of investigation, charge sheet was filed for offence u/s 363/366/376 IPC.
Case was committed to the court of Sessions on 12.07.10, which was received on 26.07.10, charge u/s. 263/366/376 IPC was framed against the accused to which accused pleaded not guilty.
To prove its case, prosecution has examined PW1 to PW12 in all. Statement of accused was recorded in which, he has denied the case of the prosecution and has pleaded that he is innocent and has been falsely implicated in this case.
I have heard Ld APP for State and Ld Amicus Curiae Ms. Sadhna Bhatia for accused and have gone through the evidence and material placed on record.
Findings qua age of the prosecutrix PW1 prosecutrix has deposed that her date of birth is 06.10.93. In cross-examination, she has stated that her date of birth is the same as deposed by her. Except this, PW 1 has not been cross-examined further in any manner regarding her date of birth. PW 3 Devki Sharma, mother of the prosecutrix has also stated that date of birth of prosecutrix is 06.10.93. She has further deposed that she handed over birth certificate of prosecutrix to the police, which was seized as Ex.PW3/A and has proved the same as Ex.P1. PW 3 Devki Sharma has not been cross-examined by the Ld. Defence Counsel on this aspect that date of birth of prosecutrix 06.10.93 is incorrect or that the date of birth certificate produced by her to the Investigating Officer is fabricated.
PW 6 Sh. Gulshan from Sub Registrar office has brought the record regarding date of birth of prosecutrix as 06.10.93. As per the record, date of birth of prosecutrix is 06.10.93 registered in the MCD register at Sl. no.1172 on SC No.45/1 4/9 30.10.93. He has also proved photocopy of the said entry as Ex.PW6/A. He has further deposed that date of birth certificate Ex.P1 is correct according to the record and same was issued by MCD.
PW 3 Devki Sharma and PW6 Gulshan have not been cross-examined by the Ld. Defence Counsel on this aspect. PW 3 Devki Sharma has proved date of birth certificate showing date of birth of prosecutrix as 06.10.93 in Ex.P1.
According to PW3 Devki Sharma, prosecutrix was missing on 29.12.08, so at that time, age of prosecutrix was about 15 years and two months.
Findings qua offence u/s 363 IPC PW 1 prosecutrix has deposed in this respect that accused Deepak started residing with them for some time as accused Deepak is brother of Harish. Accused Deepak stayed with them in their house at Swaroop Nagar for 20 days. She and accused Deepak became friend during these days. Harish came to know about their friendship and love, so accused Deepak was again sent back to Calcutta. Thereafter, they started talking with each other on phone for about two months and accused told her that he would took her with him to Calcutta. Under the influence of accused, she accompanied him and went to Calcutta on 29/12/08. PW 1 further deposed that in Calcutta they both married with each other in a mandir and started residing as husband and wife and PW 1 resided with accused Deepak for about one year and they also made physical relations.
PW 1 has further deposed in cross-examination that she had told to Ld. MM in her statement Ex.PW1/B that she had gone to Calcutta alone. Accused had picked her up from the railway station Hawra. She had gone to Calcutta without purchasing the ticket. She had boarded the train from old Delhi Railway station and changed the train from Kanpur and all this programme was fixed earlier with the accused on telephone.
From the cross-examination of PW1, it is clear that she had gone to Calcutta alone, it was earlier fixed and she was picked up from the Hawra station SC No.45/1 5/9 by accused Deepak.
According to section 359 IPC, kidnapping is of two kinds, one is from India and other from lawful guardianship. According to section 361, whoever takes or entices any minor under 16 years of age in case of male, under 18 years of age in case of female out of keeping of the lawful guardianship in such manner without the consent of such guardians is said to be kidnapping of such person from lawful guardianship.
In this case, prosecutrix was aged about 15 years two months but she went to Calcutta alone as deposed by the prosecutrix and was picked up from Hawra Station by the accused so it can not be said that accused had kidnapped the prosecutrix from her lawful guardianship as the accused had picked up her from Hawra Station and not from Delhi nor enticed her in any manner to reach Calcutta. From the cross-examination of prosecutrix PW 1, it is clear that it was fixed earlier. PW1 has not deposed as to in which manner, accused enticed her to reach at Calcutta. Simply saying that under the influence of accused, she had accompanied the accused to Calcutta is not sufficient in any manner to prove the offence u/s 363 IPC. Even if this deposition is false to the extent that she accompanied the accused in going to Calcutta on 29.12.08 as the prosecutrix in her cross-examination has admitted that the accused was not accompanying her and had picked up her from Hawra station. So prosecution has not been able to prove the offence u/s 363 IPC against the accused beyond reasonable doubt. Accordingly, accused is acquitted for offence u/s. 363 IPC.
Findings qua offence u/s. 366 IPC.
PW 1 prosecutix has deposed that she went to Calcutta on 29/12/08 and she married with accused in a mandir and they started residing as husband and wife. She resided with accused Deepak for about one year and they also made physical relations.
In the cross-examination, PW 1 has admitted that she has not raised SC No.45/1 6/9 any noise in the way or disclosed to any passenger that she was being taken away by the accused against her will. She has also deposed that in Calcutta there were many houses, where she stayed with the accused and she did not raise any objection of her marriage with the accused and she did not tell to any neighbour that she was brought and enticed by the accused. She has further deposed that she stayed there as wife of the accused for about one year. She used to do household work and prepare food. Accused used to work as taxi driver and used to go to his work in the morning at about 8.00 am and used to return in the night at about 10.30 pm. During this period accused did not lock her under the keys and she was free to go anywhere. She used to visit the places with the accused during her stay and accused also maintained her in every respect as his wife.
Ld. Defence Counsel has contended that from this portion of the deposition of the prosecutrix, offence u/s. 366 IPC is not proved. Ld. Defence Counsel has also contended that prosecutrix was not locked under keys or was not compelled to marry with the accused. She was forced or seduced to illicit intercourse with the accused.
Ld. Defence Counsel has also contended that from this deposition of the PW1, it is clear that she married with the accused at her own will and made physical relations as husband and wife with her consent. She stayed there for one year and she was not kept under the locks and keys so it can not be said that prosecutrix has been compelled or forced or seduced in any manner to make sexual relations with the accused.
Ld. APP has contended that prosecutrix has stated in the cross- examination that she had not taken any divorce with the accused and has voluntarily stated that it was not a marriage at all so it can not be said that prosecutrix married with the accused. The contention of the Ld. APP is not forceful as even then PW 1 prosecutrix was residing with accused in live in relationship.
SC No.45/1 7/9Considering the cross-examination of the PW1 prosecutrix and contentions of Ld. Defence Counsel, I am of the opinion that PW1 prosecutrix resided with the accused Deepak at her own free will and remained with him as his wife and she was neither forced or seduced or compelled for committing intercourse with the accused. So prosecution has not been able to prove the offence u/s. 366 IPC against the accused for which accused is acquited u/s. 366 IPC.
Findings qua offence u/s 376 IPC As already discussed above, date of birth of prosecutrix is 06.10.93 and on 29.12.08, she was aged about 15 years and two months only. According to section 375, in case prosecutrix is under 16 years of age, then it is immaterial whether rape was committed with or without her consent. So consent of the prosecutrix is immaterial.
PW1 prosecutrix has deposed that she married with the accused in a temple and started residing as husband and wife for about one year and they also made physical relations.
Ld. Defence Counsel has contended that in cross-examination PW 1 has stated that she had gone to Calcutta alone, it was earlier fixed and she was picked up from the Hawra station by accused Deepak. Ld. Defence Counsel has further contended that PW 1 prosecutrix did not raise any objection of marriage with the accused and further stated that she stayed there as wife of the accused for about one year. She used to do household work and prepare food. Accused used to work as taxi driver and used to go to his work in the morning at about 8.00 am and used to return in the night at about 10.30 pm. Ld. Defence Counsel has further contended that PW1 prosecutrix has deposed in cross-examination that during this period, accused did not lock her under the keys and she was free to go anywhere. She used to visit the places with the accused during her stay and accused also maintained her in every respect as SC No.45/1 8/9 his wife.
On the other hand, Ld. APP has contended that in view of section 375 of IPC and age of the prosecutrix, which is less than 16 years, her consent is immaterial.
PW 1 prosecutrix has admitted that she made physical relations with the accused after her marriage with the accused and they resided as husband and wife for about one year so consent is immaterial in view of the age of the prosecutrix, which was less than 16 years at that time.
Case was got registered by mother of the prosecutrix Devki Sharma vide Ex.PW2/A, which was recorded by SI Dharmabir, who has proved the copy of the same. According to deposition of PW 3 Devki Sharma, Nand Kishore, brother of accused Deepak informed that accused Deepak was in Delhi, so police searched for him and prosecutrix was recovered vide memo Ex.PW1/A. PW 4 W Constable Sonu also joined the investigation of this case and in her presence, prosecutrix was recovered after identifying by PW 3 Devki Sharma and she signed the recovery memo of the prosecutrix Ex.PW1/A. According to deposition of PW9 ASI Gabruddin, on 19.04.10, he had received the secret information regarding the presence of prosecutrix and after recovery vide memo Ex.PW1/A, he got recorded her statement u/s 164 Cr.P.C. vide application Ex.PW9/B and obtained copy of the same vide application Ex.PW9/B and on 20.04.10, he got medically examined prosecutrix from BJRM hospital, Jahangir Puri.
According to deposition of PW9 Gabruddin on 22.04.10, he came to know that accused Deepak was in Rohini Jail in case FIR no.322/05 u/s. 380/411/34 IPC of PS Badli and on 23.04.10, he appeared on P/W in court of Ld. MM from where, he was formally arrested by him in this case vide arrest memo Ex.PW7/A. Copy of his application for issuance of P/W is Ex.PW9/C formal arrest is Ex.PW9/D. SC No.45/1 9/9 PW 11 Neeraj Gaur, Ld. MM has proved the statement of prosecutrix as Ex.PW1/B. PW 5 W Constable Saroj removed the prosecutrix to BJRM hospital for her medical examination on 20.04.10 but prosecutrix refused to carry out her internal examination. Thereafter, prosecutrix was taken for her statement u/s. 164 Cr.P.C. before Ld. MM and then she was sent to Nirmal Chaya.
PW 10 Dr. Meenakshi has proved the MLC of PW 1 prosecutrix according to which firstly, she was examined by doctor Mahendra in casualty, who referred her to Gyanee SR, where she was examined by Dr. Preeti. According to the noting on the MLC, mother of PW 1 prosecutrix refused for per abdomen and pelvic examination. PW 10 has proved the MLC as Ex. PW10/A. PW 12 Dr. Neeraj Choudhary, has also deposed about the MLC of the prosecutrix who was examiend by Dr. Mahender. PW 12 has identified the noting given by Dr. Mahendra on MLC Ex.PW10/A. As prosecutrix refused for her internal examination, so there is no observation in MLC Ex.PW10/A that hymen was torn and she was habitual to sexual intercourse.
Ld. Defence Counsel has contended that medical of accused Deepak was not got done by the Investigating Officer to the extent that he was capable of performing sexual intercourse.
On the other hand, Ld. APP has contended that nothing has been suggested to PW 1prosecutrix that accused did not perform any sexual relations with her after marriage, while they lived as husband and wife. He has also contended that it is also not suggested to the PW 1 prosecutrix that accused Deepak was not capable to perform sexual intercourse, hence, it can not be said that he had not made physical relations with prosecutrix and resided as husband and wife.
The testimony of PW1 prosecutrix is clear and umabiguous that she SC No.45/1 10/9 resided with the accused Deepak for one year and that they made physical relations after marriage and lived together for about one year as husband and wife. In the alleged history on MLC Ex.PW10/A, it has been mentioned that prosecutrix ran away from her parents's house with the accused Deepak to Calcutta, she lived with her husband for one year and came back to her parents's house and wanted to go back to her husband to Calcutta.
From this alleged history which was given by the prosecutrix to the doctor, it is clear that she had lived with accused Deepak and resided with him for about one year as his wife and due to these reasons, she refused for her internal examination.
Accordingly, prosecution has been able to prove beyond reasonable doubt that accused Deepak made physical relations after marriage with the prosecutrix with her consent but as the consent of the prosecutrix is not material in view of section 375 IPC as she was less than of 16 years and was aged about 15 years and 2 months on 29.12.08 so accused is held guilty of the offence u/s 376 IPC and is convicted for the same.
Announced in Open Court on dated 23rd March, 2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No.45/1 11/9