Delhi District Court
State vs Accused on 5 October, 2013
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI Unique Case I.D. No.02402R0155422010 SC NO.170/13 Date of Institution :02.08.2010 FIR No.78/10 Date of Argument :27.09.2013 PS Shahdara Date of Order :30.09.2013 U/S 363/366/376 IPC State Versus Accused Amit Bharti S/o Late Sh. Sangram Singh R/o H.No. 4650/B-63, Gali No. 10, Modern Shahdara, Delhi. JUDGMENT
The facts in brief of the prosecution case are that on 05.02.2010, -----X----- S/o Sh. ------X1------, R/o
-------------------------------------------X2-----------------------------------, herein after referred to as the complainant, lodged a report dated 04.02.2010 at P.S. Shahdara alleging that he had been residing at the above mentioned address for the last six months in the house of Late Sh. Sangram Singh. His daughter named -----------Y--------- aged 13 years, herein after referred to as the prosecutrix, born on 27.01.1996, went to a shop at about 1.30 p.m. to buy goods but she did SC No.170/13 State vs. Amit Bharti Page 1 of 34 not return to her house and she could not be traced despite efforts made by him. He doubted that Amit son of his landlord Late Sh. Sangram Singh, herein after referred to as the accused, his landlord might have kidnapped his daughter as he was also absent from his house since 01.02.2010. Mother of the accused assured him on 02.02.2010 that his daughter will come back very soon but she did not return. When the complainant asked mother of the accused for return of his daughter, she threatened to do whatever he wanted to do and she was not aware about whereabouts of his daughter. On the basis of complaint FIR No. 78/10 was recorded at P.S. Shahdara for the offence punishable u/s 363 IPC. The complainant also handed over certificate of date of birth to the IO mentioning date of birth of his daughter as 27.01.1996. IO filled in message form and flashed the message about her disappearance. On 28.4.2010 police received a secret information that the accused and the prosecutrix had returned to their houses. The prosecutrix was recovered from her house and she was sent to GTB Hospital for the purpose of her medical examination where she was medically examined vide MLC. She disclosed that she remained in sexual contact with the accused during that period. However, she did not consent for her internal medical examination. Accused was also apprehended and he was also taken to GTB Hospital on SC No.170/13 State vs. Amit Bharti Page 2 of 34 28.4.2010 where he was medically examined. Doctor opined that there was nothing to suggest that he was incapable of doing sexual intercourse. Doctor obtained samples of blood and semen of the accused and after sealing the same in sealed pulinda handed over to Ct. Gagan Giri who took him to the hospital. The prosecutrix was produced before Ld. M.M. on 29.4.2010 for recording of her statement u/s 164 of Code of Criminal Procedure, herein after referred to as the Code. The accused was arrested on 29.04.2010 and his arrest memo and personal search memo were prepared. After completion of investigation, IO filed a charge sheet against the accused for his trial for the offences punishable u/s 363/376 IPC.
2. Ld. Metropolitan Magistrate after supplying of copies of charge sheet and documents to the accused committed this case to the court of sessions and the case, vide her order dated 02.8.2010, was assigned to herself by Hon'ble Addl. Sessions Judge Incharge North East District, Karkardooma Courts, Delhi.
3. The court vide order dated 19.8.2010 opined that prima facie case for framing of charge for the offences punishable u/s 363/366/376 IPC was made out against the accused. Therefore, charge against the accused for his trial SC No.170/13 State vs. Amit Bharti Page 3 of 34 for the said offences was framed and read over to him. The accused pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case examined HC Vijay Kumar as PW1; lady Ct. Sudesh as PW2; Ct. Gagan Giri as PW3; Ms. Geeta Rani, Principal, M.C. Primary School, Ashok Nagar, Delhi as PW4; Dr. Geetika Goel, Senior Resident, GTB Hospital as PW5; Dr. Pankaj Tyagi, Junior Resident, GTB Hospital as PW6; Sh. Sanjay Khanagwal, Ld. M.M. as PW7; -----X-----, father of the prosecutrix as PW8 in part; and Ms. ------Y------, prosecutrix as PW9 in part.
5. Vide order No.20/372-512/F.3.(4)/ASJ/01/2013 dated 04.01.2013, on constitution of Special Fast Track Courts for trial of sexual offences, Hon'ble District & Sessions Judge, transferred this case to this court.
6. The prosecution further examined -----X-----, father of the prosecutrix as PW8; Ms. ----Y---, prosecutrix as PW9 and examined ASI Hari Ram as PW10 and WSI Usha as PW11.
7. After closing of prosecution evidence statement of the accused u/s 313 of the Code was recorded. All the SC No.170/13 State vs. Amit Bharti Page 4 of 34 material and incriminating evidence was put to him. Accused admitted that the prosecutrix was daughter of PW8 ------X----- and they were residing in his house as tenant and that he was arrested on 29.4.2010 vide arrest memo EX.PW3/A and personal search memo EX.PW3/B and that on 28.4.2010 he was taken to GTB Hospital and he was medically examined by PW6 Dr. Pankaj Tyagi vide MLC EX.PW6/A and that samples of his blood and semen were taken and that doctor opined that there was nothing to suggest that he was not capable to do sexual intercourse and that prosecutrix and her father correctly identified him. He denied rest of the evidence and pleaded that he was innocent.
8. In support of his defence accused examined
-------------Y1---------, his mother as DW1.
9. After closing of evidence by both the parties, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel/Amicus Curiae for the accused and perused file.
10. In order to prove its case that accused committed an offence u/s Section 363 IPC, prosecution has to prove firstly, that accused took or enticed the SC No.170/13 State vs. Amit Bharti Page 5 of 34 prosecutrix out of keeping of her lawful guardian; secondly, that the prosecutrix was a minor that is under 18 years of age; and thirdly, that it was done by the accused without the consent of her guardian.
11. In order to prove its case that accused committed an offence of kidnapping, abducting or inducing women to compel marriage, etc. punishable u/s 366 IPC, prosecution has to prove firstly that the prosecutrix was either kidnapped or abducted by the accused and secondly, the prosecutrix was abducted and kidnapped with the intention that the prosecutrix may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced to do illicit intercourse.
12. In order to prove its case against the accused for the offence of rape punishable u/s 376 IPC, prosecution has to prove firstly, that sexual intercourse was committed with the prosecutrix; and secondly, that sexual intercourse was committed with her forcibly against her will and without her consent.
13. It has been argued on behalf of Ld. Additional Public Prosecutor that prosecution witnesses have proved SC No.170/13 State vs. Amit Bharti Page 6 of 34 all the offences against the accused beyond reasonable suspicion and shadow of doubt and the accused is liable to be held guilty and convicted for all the alleged offences.
14. It has been argued by Ld. defence Counsel that prosecution has failed to prove its case against the accused. There are various contradictions between the statement of the prosecutrix and her father which creates doubt about truthfulness of the prosecution case. There is inordinate delay in reporting the matter to the police. The prosecutrix was major at the time of alleged occurrence. Besides, she was consenting party and she eloped with the accused as she was in deep love with him and she made physical relations with the accused out of her free will. The alleged acts of the accused and the prosecutrix could not constitute any offence and consequently the prosecutrix has failed to prove any offence against the accused and the accused is entitled for acquittal for the alleged offence.
15. Ld. Additional Public Prosecutor for the State argued that testimony of the prosecutrix is reliable and trustworthy. She also argued that minor discrepancies and embellishments may be ignored in view of the principles of law laid down in case of State v. Jai Hind, 2012 VI AD (Delhi) 170 wherein it was held that:
SC No.170/13 State vs. Amit Bharti Page 7 of 34"32. ***In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 where the Court held:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."*** "38. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurances to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
16. Let us examine the prosecution evidence in detail to find out whether the arguments addressed by Ld. SC No.170/13 State vs. Amit Bharti Page 8 of 34 Defence Counsel are convincing?
Age of the prosecutrix
17. The prosecutrix PW9 on this aspect deposed that she did not remember as to what was her date of birth and in which year she was born. With the permission of the court Ld. Addl. Public Prosecutor put a leading question regarding age of the prosecutrix and in reply she admitted as correct that her date of birth was 22.01.1996. In cross examination she deposed that she had studied upto 5th class from Nagar Nigam Kanya Vidyalaya, Ashok Nagar. She had studied in the said school since 1st class. She did not remember her date of birth as her father never disclosed the same to her. She admitted as correct that when she had gone with the accused she was 17 years old.
18. PW8, father of the prosecutrix, on this aspect deposed that she was 14 years of age and she had studied in Primary School, Ashok Nagar, Delhi. In cross examination he stated that he could not say as to in which year he got admitted his daughter ----Y--- in Primary School. She studied only upto 1st class and she left her studies and never went to school again. She attended the school for 6 to 7 months. He denied the suggestion that he wrongly mentioned the age of her daughter in school record.
SC No.170/13 State vs. Amit Bharti Page 9 of 3419. PW4, Principal of the school, on this aspect deposed that she had brought the Admission and Withdrawal Register and pasting file in respect of Km. ------ Y------ D/o -----X-----. As per school record she took admission in class 1B and her date of birth was 27.01.1996. She studied in M.C. Primary School from 05.7.2002 to 04.02.2003. Due to her long absence her admission was cancelled. She issued a letter dated 04.02.2010 EX.PW4/A. She also proved entry regarding admission of the prosecutrix in school record as EX.PW4/B. The date of birth of ------Y------ was mentioned in the school record on the basis of affidavit of one Sh. Lal Mani and copy thereof was proved as EX.PW4/C.
20. It would be appropriate to reproduce relevant portions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, which run as under:
"12. Procedure to be followed in determination of the age.- ***(3) In every case concerning a child or juvenile in conflict with law, the age determination enquiry shall be conducted by the court or the board or, as the case may be, the committee by seeking evidence by obtaining-
(a) (i)The matriculation or equivalent certificate, if available; and in the absence thereof;
(ii) The date of birth certificate from the school (other than a play school) first attended and in the absence whereof;SC No.170/13 State vs. Amit Bharti Page 10 of 34
(iii) The birth certificate given by a Corporation of a Municipal Authority or a Panchayat;
(b) And in the absence of either (i), (ii) or (iii) of clause
(a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of juvenile or child. In case exact assessment of age cannot be done the court or the board or as the case may be, the committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year and while passing order in such case shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in absence thereof clause (b) shall be conclusive proof of the age as regard such child or the juvenile in conflict of law."
21. Turning to the case in hand and as discussed herein above the only documentary evidence regarding age of prosecutrix is EX.PW4/A. According to the certificate the date of birth of the prosecutrix is 27.01.1996. As per testimony of PW4 the prosecutrix studied in her school for the period from 05.7.2002 to 04.02.2003 in class I. The date of alleged offence is 05.02.2010. If age of the prosecutrix is calculated on the basis of birth certificate EX.PW4/A, it comes to 14 years and 8 days.
22. It has been argued on behalf of Ld. Defence Counsel that date of birth recorded in EX.PW4/A is not correct. He invited my attention to the cross examination SC No.170/13 State vs. Amit Bharti Page 11 of 34 of the prosecutrix PW9 wherein she stated that she did not remember the date, month or year when she joined her school or when she was born. She admitted the suggestion of Ld. Defence Counsel that she was 17 years old when she had gone with the accused. Ld. Defence Counsel also invited my attention to the cross examination of PW8 father of the prosecutrix wherein he stated that he was married in the year 1968. He has five children, out of them three are boys and two are girls. His eldest child is ------- Z------. He was born after 10 years of his marriage. He changed his statement and stated that his eldest child is his daughter -----Z1-----. She was born after 5-6 years of his marriage. -----Z2---- is his second son followed by -----Z3----.
------Z3----- is about 10 years younger to -------Z------. His daughter ------Y------ is 4 years younger to his youngest son
------Z3-----. Let us calculate the age of prosecutrix -----Y------ on the basis of above referred statement. According to this statement ------Z------ was born in the year 1974 or 1975.
-------Z--------- was born in the year 1978. -------Z3------ was born in the year 1988. The prosecutrix -----Y----- was born in the year 1992. If age of the prosecutrix is determined on the basis of above mentioned statement of PW8 then her age comes between 17 and 18 years. As mentioned above prosecutrix also mentioned in her statement that she was 17 years of age at the time when she had gone with the SC No.170/13 State vs. Amit Bharti Page 12 of 34 accused.
23. It has to be adjudicated upon if the age of the prosecutrix was 14 years as per calculation based on EX.PW4/A or she was 17 years of age as deposed by the prosecutrix and her father PW8?
24. After considering the rival contentions of Ld. Addl. Public Prosecutor of the state and Ld. Defence Counsel I come to the conclusion that it would be just, fair and appropriate if age of the prosecutrix is determined as 17 years. The reasons which support my decision are firstly that the parents are the best person to tell about the age of their children. In the present case father of the prosecutrix, indirectly told the age of the prosecutrix as 17 years. The second reason of my decision that the prosecutrix also admitted her age as 17 years. In her statement EX.PW7/B and EX.PW9/A she also told her age as 17 years when her statement was recorded by Ld. M.M. u/s 164 of the Code. The third reason is that PW4 Principal of the school proved affidavit EX.PW4/C on the basis of which date of birth of prosecutrix was recorded in school record. This affidavit was not signed by father or mother of the prosecutrix but it was signed by one Sh. Lal Mani. On what basis Sh. Lal Mani mentioned the age of the SC No.170/13 State vs. Amit Bharti Page 13 of 34 prosecutrix is also absent. However, it is clear that the affidavit was not prepared on the basis of certificate issued by Municipal Corporation or the Panchayat. The last reason of this decision is that as per the testimony of PW4, the prosecutrix attended school only for eight months in class I. She even did not complete one academic year. Father of the prosecutrix also confirmed that his daughter prosecutrix attended the school for 5-6 months. Thus, it would not be just, fair and proper to base the calculation on the basis of documents EX.PW4/C and EX.PW4/A. Consequent upon the above reasons and discussion and evidence on record and particularly discussed herein above it is held that prosecutrix was 17 years of age at the time of commission of offences.
Sexual intercourse with the prosecutrix by the accused.
25. The prosecutrix PW9 on this aspect deposed that in the year 2010 she was residing in Ram Nagar in the house of Sangram Singh. Accused present in the court is son of Sangram Singh and he was also resident of that very house with his family. As told by the accused to her, he was employed and working in a courier service. She did not have any kind of relation with him. On 01.4.2010, she and accused together left Ram Nagar and they reached at Uttam Nagar covering distance which was about 8 to 9 SC No.170/13 State vs. Amit Bharti Page 14 of 34 hours on walk. From Uttam Nagar they reached Vikas Puri by bus where someone related to the accused was residing with his family. They stayed in that house for about one week. Thereafter, she and the accused went to Gurgaon. In a house in Gurgaon again some relative of the accused were residng with their family and in that house they lived and resided for about 1-1/2 months. Thereafter, the accused brought her to Delhi and they reached at Ram Nagar and police then apprehended the accused somewhere in the month of April 2010. Accused had physical relations with her in Vikas Puri as well as in Gurgaon and he indulged in sexual intercourse with her. Police got her medically examined and she appeared before a Magistrate in Karkardooma Court who recorded her statement on oath. She identified her signature on statement EX.PW9/A.
26. PW5 on this aspect deposed that on 28.4.2010 she was working as Senior Resident in GTB Hospital. On that day one girl Km. ----Y--- was brought before her by lady Ct. Sudesh with alleged history of staying with Amit 19 years male since one year off and on. There was history of sexual contact with the accused and last contact was on previous night as per history disclosed by the prosecutrix. She medically examined Km. ----Y--- vide her MLC EX.PW5/A SC No.170/13 State vs. Amit Bharti Page 15 of 34 which was signed by her at points A and B. It has been observed in EX.PW5/A and continuation sheet that the prosecutrix did not consent for her internal medical examination.
27. PW6 on this aspect deposed that on 28.4.2010 he was working as Junior Resident in GTB Hospital. On that day one Amit Bharti was brought before him by Ct. Gagan Giri for his medical examination. The said Amit Bharti was medically examined by him vide MLC EX.PW6/A. On the basis of examination he opined that there was nothing to suggest that the accused Amit Bharti was not capable of doing sexual intercourse. There is no denial of committing sexual intercourse by the accused with the prosecutrix. On the basis of evidence on record and particularly discussed herein above it is held that the accused committed sexual intercourse with the prosecutrix.
Whether the sexual intercourse with the prosecutrix was committed against her will and without her consent by the accused
28. The prosecutrix PW9 in her cross examination admitted that they were in deep love with each other. She continued to admit that their friendship came to the notice of his family members and they used to quarrel with her SC No.170/13 State vs. Amit Bharti Page 16 of 34 and her father also asked her to break the friendship with the accused. She denied the suggestion that she resisted her father. She again admitted that due to that reason her father got the present case registered. She denied the suggestion that she never went with the accused at any place or the accused did not have physical relationship with her at any point of time.
29. It has been argued on behalf of Ld. Defence Counsel that the prosecutrix was major at the time of alleged occurrence. She was consenting party and she had eloped with the accused as she was in deep love with him and she made physical relationship with the accused out of her free will. The alleged act of the accused and the prosecutrix did not constitute offence of rape.
30. It would be appropriate to reproduce relevant portions of Section 375 IPC, which run as under:
"375. Rape. - A man is said to commit "rape" who, except in the case herein after expected, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- *** Sixthly.-With or without her consent, when she is under sixteen years of age.
31. As decided herein above, the age of the prosecutrix on the date of commission of offence was 17 years. In her cross examination she stated that she was in SC No.170/13 State vs. Amit Bharti Page 17 of 34 deep love with the accused at the time when she had gone with the accused. In her examination in chief although she stated that accused had made physical relationship with her in Vikas Puri as well as in Gurgaon and he indulged in sexual relationship with her yet she did not state that the accused made physical relations with her either forcibly or against her will or without her consent. Conversally, she stated that she and the accused were in deep love with each other. In her statement EX.PW7/B and EX.PW9/A recorded by Ld. M.M., PW9 the prosecutrix stated that she was in deep love with the accused. One day, on finding opportunity they eloped and stayed at Vikas Nagar and Gurgaon. During this period they established physical relation. All the times physical relationship were maintained with her consent and the accused never committed physical relationship forcibly. She wanted to marry with the accused. Consequent upon the above reasons and discussion and the evidence on record and particularly discussed herein above, it is held that prosecution could not prove that committing of sexual intercourse with the prosecutrix by the accused amounted to commission of offence of rape.
32. My decision finds support by principles of law laid down in a case, Amarjeet v. State of Haryana, 2003(1) SC No.170/13 State vs. Amit Bharti Page 18 of 34 RCR (Criminal), 168, wherein the prosecutrix, aged between 16 and 18 years, remained in the company of accused for 17 days. No hue and cry was raised and no injury or sign of violence on her body was found. It was held that prosecutrix was a consenting party. Conviction u/s 376 (2) (g) was set aside and conviction u/s 366 IPC was upheld. My decision further finds support by a case Sonu v. State (NCT) of Delhi, 2010 [2] JCC 1337, wherein Delhi High Court observed that:
"11. Prosecutrix being more than 16 years of age and having accompanied the appellant of her own free will and accord; she being a consenting party, ingredients of the offence under Section 376 IPC are not attracted in this case. Accordingly, appellant is acquitted of the offence under Section 376 IPC."
Kidnapping, abducting or inducing prosecutrix to compel her marriage, etc.
33. It would be appropriate to reproduce relevant provisions of Section 361 & 366 IPC, which run as under:
"361. Kidnapping from lawful guardianship.-whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
"366. Kidnapping, abducting or inducing woman to compel her marriage, etc. - whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry SC No.170/13 State vs. Amit Bharti Page 19 of 34 any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.]
34. After considering the arguments of Ld. Addl. Public Prosecutor for the State and Ld. Defence Counsel and on analyzing the prosecution evidence on record, I come to the conclusion that prosecution has successfully proved its case against the accused Amit Bharti beyond any reasonable suspicion and shadow of doubt that he committed not only offence of kidnapping from lawful guardianship but also offence of kidnapping, abducting or inducing woman to compel marriage, etc. The reasons which support my conclusion are firstly that the prosecution evidence on record and particularly discussed herein above has proved all the ingredients which are necessary for proving the offences of kidnapping from lawful guardianship and kidnapping, abducting or inducing woman to compel marriage, etc. SC No.170/13 State vs. Amit Bharti Page 20 of 34
35. Secondly, the inconsistencies found in the testimony of the prosecutrix and her father are not material. Such inconsistencies are likely to happen in every case and are liable to be ignored in view of the principles of law laid down in case of State v. Jai Hind (supra).
36. In case of Appabhai and another v. State of Gujarat, AIR 1988 SC 696, the Apex Court in paragraph 13 observed:
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
37. My decision further finds support by a case Pardeep @ Sonu v. State, 2011 [2] JCC 1031, wherein the Delhi High Court observed that:
"28. This is no more res Integra that conviction for offence SC No.170/13 State vs. Amit Bharti Page 21 of 34 under Section 376 of IPC can be based on the sole testimony of a victim as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550. However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused." [Emphasis supplied]
38. Thirdly, the arguments of Ld. Defence Counsel that delay has not been explained is not convincing. PW8, inter alia, stated on this aspect that he used to go to P.S. everyday to get his daughter traced but the police recorded his report finally on 05.02.2010 on the complaint EX.PW8/A given by him on 04.02.2010. Although there is some delay in reporting the matter to police as the report was lodged on 05.02.2010 inspite of the fact that the prosecutrix was missing from her house since 01.02.2010 but this delay is liable to be ignored in view of principles of law laid down in case of State of Punjab v. Gurmit Singh And Others, 1996 SCC (Cri) 316 wherein Apex Court observed that:
"7. The trial court also disbelieved the version of the prosecutrix regarding rape. It found that the testimony of the prosecutrix did not inspire confidence for the reasons
(i) that there had been delay in lodging the FIR and as such the chances of false implication of the accused could not be ruled out.*** SC No.170/13 State vs. Amit Bharti Page 22 of 34
8.***The trial court fell in error for discrediting the testimony of the prosecutrix on that account. In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. The prosecution has explained that as soon as Trilok Singh PW6, father of the prosecutrix came to know from his wife, PW7 about the incident he went to the village Sarpanch and complained to him. The Sarpanch of the village also got in touch with the Sarpanch of Village Pakhowal, where in the tubewell kotha of Ranjit Singh rape was committed, and an effort was made by the panchayats of the two villages to sit together and settle the matter. It was only when the Panchayats failed to provide any relief or render any justice to the prosecutrix, that she and her family decided to report the matter to the police and before doing that naturally the father and mother of the prosecutrix discussed whether or not to lodge a report with the police in view of the repercussions it might have on the reputation and future prospects of the marriage, etc. of their daughter." [Emphasis supplied]
39. Fourthly, it was suggested to the prosecutrix that she was in deep love with the accused which she admitted. It was also suggested that her family members came to know about their friendship and they used to quarrel each other or that her father asked her to leave the friendship with the accused. She denied the suggestion SC No.170/13 State vs. Amit Bharti Page 23 of 34 that she never visited with the accused at any place nor accused had any physical relationship with her at any point of time. As narrated above, the prosecutrix, inter alia, stated that she and the accused left their house together. They lived out of their houses for about 1-1/2 months and during that period they stayed in the house of relative of the accused and they indulged in sexual intercourse. These suggestions and testimony of the prosecutrix have further supported the prosecution case that accused enticed the prosecutrix from her house.
40. Fifthly, the arguments of Ld. Defence Counsel that the prosecutrix left with the accused of her own as she was in deep love with him, will not provide any benefit to the accused because the prosecutrix was minor aged about 17 years at the time of the commission of offence. Therefore, her consent has no consequence in favour of the accused so far as commission of offences of kidnapping from lawful guardianship and kidnapping, abducting or inducing woman to compel marriage, etc. are concerned.
41. Sixthly, the testimony of defence witness DW1 will not provide any benefit to the accused. She is mother of the accused. She, inter alia, stated that -----X----- falsely SC No.170/13 State vs. Amit Bharti Page 24 of 34 implicated the accused or her son never went to any place with the prosecutrix, is not convincing as the prosecution evidence has proved on record that the accused as well as the prosecutrix were not there in their house during the period from 01.02.2010 to 28.4.2012.
42. Seventhly, the other prosecution witnesses also supported the testimony of the prosecutrix and further corroborated the prosecution case. For example, PW8, father of the prosecutrix deposed that ------Y------ is his daughter. In the year 2010 they used to reside as a tenant with family in New Modern Shahdara, Delhi and that property belonged to father of the accused. On 01.02.2010 while he was away to his work in Ghaziabad and when he returned to the home in the evening he found that his daughter ----Y---- was not present in the house and he came to know that she had left her house at about 1 O'clock. He used to go everyday to the P.S. to get his daughter traced but then finally police recorded her report on 05.02.2010. Since accused Amit was also missing from day one and he had not been traced, he suspected that accused Amit might have kidnapped his daughter. He proved his complaint EX.PW8/A and identified his signature at point A. He had given the report on 04.02.2010 and police registered FIR on 05.02.2010. His daughter ------Y------ came SC No.170/13 State vs. Amit Bharti Page 25 of 34 back after about 1-1/2 months. In fact, the son of his landlord had brought her back. Nothing came out in his cross examination which could provide any benefit to the accused. PW1 proved recording of FIR EX.PW1/A on the statement of PW8 -----X-----. PW2 established the fact that she had taken the prosecutrix to GTB Hospital for the purpose of medical examination. PW3 proved the fact that accused was taken to GTB Hospital for the purpose of his medical examination. He also proved the arrest memo as EX.PW3/A and personal search memo as EX.PW3/B. PW7 proved the statement of the prosecutrix recorded u/s 164 of the Code as EX.PW7/B in which she reiterated the allegations against the accused. PW10 is part IO who deposed in which manner he conducted the part investigation. He also proved the message which was flashed regarding missing of the prosecutrix as EX.PW10/A and the seizure memo as EX.PW3/C. PW11 also partly investigated the case. She also stated that she got the prosecutrix medically examined by lady Ct. Sudesh vide MLC EX.PW5/A and she got recorded the statement before the Ld. M.M. Thus, prosecution case has also been supported by the police and other witnesses.
43. Eighthly, the prosecution evidence has achieved the standard of proof of proving its case against the SC No.170/13 State vs. Amit Bharti Page 26 of 34 accused Amit Bharti, as held in a case Ashok Narang v. State, 2012 II AD (Delhi) 481, wherein Delhi High Court has, inter alia, held that testimony of a single witness in a criminal trial is acceptable but the evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, and must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness. The offence of rape is a heinous one which carries grave implications for the accused if convicted. Therefore, the degree of proof had to be of a high standard and not a mere possibility of committing the said offence.
44. Ninthly, there is no evidence on record showing any motive or reason for the prosecutrix to depose against the accused particularly when the accused Amit Bharti was known to her and she was in deep love with the accused unless he committed the offences. My view finds support by a case Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (SC), 1983 A.I.R. (S.C.) 753, wherein the Apex Court observed:
"***Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the SC No.170/13 State vs. Amit Bharti Page 27 of 34 context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites."
[Emphasis supplied]
45. Lastly, it is not only the duty of the judge to see that one innocent person should not be punished even if hundred offenders are allowed to go scot-free but also he has to see that the accused who has committed the crime must not go unpunished. It is also duty of the court to separate the grain from the chaff as held in case of Bhagwan Dass vs. State (NCT of Delhi), (2011) 6 SCC 396. Therefore, It is bounden duty of this court to hold accused Amit Bharti guilty and convict him.
CONCLUSION
46. Consequent upon above reasons, discussion and evidence on record and particularly discussed here in above, it is held that the prosecution has failed to prove its case against the accused so far as commission of offence of rape is concerned. Accordingly, he is acquitted for the offence of rape punishable u/s 376 IPC.
47. It is further held that prosecution has successfully proved its case against the accused Amit SC No.170/13 State vs. Amit Bharti Page 28 of 34 Bharti beyond any reasonable suspicion or shadow of doubt that he kidnapped the prosecutrix from her lawful guardianship and took away the prosecutrix who was a minor girl, less than 18 years of age on the date of incident out of keeping of her lawful guardianship without the consent of her guardian/complainant and he kidnapped her to seduce her to illicit intercourse and committed sexual intercourse with her. Resultantly, accused Amit Bharti is held guilty and convicted for offence of kidnapping from lawful guardianship and offence of kidnapping, abducting or inducing woman to compel marriage, etc. punishable u/s 363/366 IPC. He is on bail. He is taken in Judicial Custody.
Announced in the Open Court Dated: 30.09.2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No.170/13 State vs. Amit Bharti Page 29 of 34 IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI SC NO. 170/13 FIR No. 78/10 PS Shahdara U/S 363/366 IPC State Versus Amit Bharti ORDER ON SENTENCE 05.10.2013 Present: Ms. Madhu Arora Addl. P.P. for the State.
Convict/accused Amit Bharti in J.C. Sh. Gaurav Vashisht, Advocate/Amicus Curiae for the convict/accused.
I have heard arguments on the quantum of sentence and perused file.
2. It has been argued on behalf of Ld. Defence Counsel that accused/convict is a first offender; he is young boy aged about 22 years; he had already spent 11 months in jail; he had been on bail during the trial and he never misused the liberty of bail. It has been prayed that lenient view in sentence may be taken and the accused/convict may be either released on probation of good conduct as provided u/s 360 of the Code of Criminal Procedure, herein after referred to as the Code, or he should he sentenced to undergo imprisonment he had already undergone.
SC No.170/13 State vs. Amit Bharti Page 30 of 343. In support of his arguments, he relied on a case Slok Kumar vs. State, 2009 (1) JCC 27, wherein Delhi High Court observed that:
"5. In case of Ved Prakash Vs. State of Haryana AIR 1981 SC 643, a fireaim was used by the accused and he was released on probation under Section 4(1) of the Probation of Offenders Act, 1958, by observing as under:
"Sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial Court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if S. 360, Cr.P.Code is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant. The restless and the report indicates that he is an agriculturist, pursuing a peaceful vocation. His parents are alive and he has a wife and children to maintain. These are stabilising factors in life. A long period of litigation and the little period of imprisonment suffered, will surely serve as a deterrent."
4. Ld. Defence Counsel further relied on Brij Lal Sood vs. State of Punjab, (1970)3 SCC 808; Madho Singh and Another vs. State of Rajasthan, 1997 Cr.L.J. 2691; and Sultan Khan Mangal Khan vs. Gullu and Another, 1959 Cr.L.J. 327, wherin Apex Court, Rajasthan High Court and Madhya Pradesh High Court, respectively released the accused on sentence already undergone and released the accused on probation of good conduct.
SC No.170/13 State vs. Amit Bharti Page 31 of 345. On the other hand, it has been argued on behalf of Ld. Additional Public Prosecutor that offences punishable u/s 363 & 366 IPC are of heinous nature and accused should not be granted probation and deterrent punishment may be awarded to the accused as the prosecutrix was 17 years old at the time of incident. She further argued that facts and circumstances of present case and those cases are different and the above mentioned findings laid down in said case Law are not applicable in the present case.
6. My attention goes to a case State of M.P. vs. Anil Kumar Khemaliya, 1997 (1) MPJR 16/MANU/MP/0932/1996, wherein it was observed by M.P. High Court that:
"Once the accused is found guilty u/s 363 IPC that too relating to a minor, the Court should not adopt a lenient view, for giving the benefit of section 4 of the Probation of Offenders Act. The court has to bear in mind different factors. In Indian society the kidnapping of a girl adversely effects her future life and brings disrepute to the kidnapee and her family both."
7. Keeping in view the submissions and all relevant factors and circumstances and further that crime against woman are increasing in the society and Parliament had to pass the Criminal Law (Amendment) Act, 2013 which came into effect since 03.02.2013 to combat the sexual assault on a woman, therefore, it would not be just, fair and appropriate to release the accused on probation of good conduct. Besides, the facts of the cases relied on by Ld. SC No.170/13 State vs. Amit Bharti Page 32 of 34 Defence Counsel were different from the present case.
8. Accordingly, it would be just, fair and appropriate if moderate view in sentence is taken. Accordingly, convict/accused Amit Bharti is sentenced to undergo rigorous imprisonment for 3 years and he is further sentenced to pay a fine of Rs.10,000/- in default simple imprisonment for 9 months for the offence punishable under section 363 IPC.
9. Convict/accused Amit Bharti is further sentenced to undergo rigorous imprisonment for 4 years and he is further sentenced to pay a fine of Rs.15,000/- in default simple imprisonment for one year for the offence punishable under section 366 IPC.
10. Both the sentences will run concurrently.
11. It is further ordered that if convict/accused Amit Bharti has undergone any period in judicial custody, that period will be set off against the sentence as provided U/s 428 Cr. P.C. As per judicial record, the accused had been in JC since 29.4.2010 to 01.02.2011, 15.8.2013 to 16.8.2013, 30.9.2013 till date.
12. Out of the fine amount, and after expiration of the period of appeal, a sum of Rs.15,000/- will be payable to the prosecutrix as compensation. Besides this compensation, she will also be entitled to get other compensation, if available to her under other laws.
SC No.170/13 State vs. Amit Bharti Page 33 of 3413. The convict/accused Amit Bharti be sent to imprisonment to serve the sentence.
14. A copy each of judgment and order on sentence is supplied to convict/accused Amit Bharti free of cost.
File be consigned to Record Room.
Announced in the Open Court
Dated:05.10.2013 (DR. T.R. NAVAL)
Additional Sessions Judge, (SFTC)
Karkardooma Courts, Delhi
SC No.170/13 State vs. Amit Bharti Page 34 of 34