Delhi District Court
State vs Mahesh Kumar on 10 September, 2007
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IN THE COURT OF SH. NAROTTAM KAUSHAL
ADDL. SESSIONS JUDGE; ROHINI COURTS;
DELHI.
Date of Institution: 15.9.03
Date of Reservation of Judgment 24.8.07
Date of order 5.9.07
State Vs Mahesh Kumar
S/o Sh. Misri Lal
R/o Kachhi Colony,Shiv Vihar,
Uttam Nagar,
Delhi.
.
S.C.No. 376/06 FIR No. 383/03 P.S. Uttam Nagar Under Sec. 376/511 IPC JUDGMENT.
1. Accused Mahesh Kumar has been chargesheeted by PS-Uttam Nagar to face trial for offence punishable under section 376 read with 511 IPC.
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2. Criminal law was set into motion on a complaint by Smt. Begum made at PS-Uttam Nagar on 25.5.2003. As per the complaint lodged by Smt. Begum, she had gone to the market at about 6 pm and her husband had gone for plying a rickshaw. She returned home at about 8 pm and her youngest son told her that neighbour Mahesh had come to their house and had molested her daughter 'A' (real name concealed). He had removed her panty and had laid upon her and attempted to commit rape. 'A' raised an alarm and he had then run away. 'A' had also then told the complainant that Mahesh had attempted to commit rape and on alarm being raised he had run away.
On the complaint abovesaid FIR under section 376/51 IPC was registered. Accused Mahesh Kumar was arrested. Statement of prosecutrix was recorded under section 164 Cr.P.C. Accused as well as the prosecutrix were medico-legally examined and challan was filed.
3. After complying with the provisions of section 207 Cr.P.C. case was committed to the court of Sessions, which in turned was 3 assigned to the predecessor of this court.
4. Vide order dated 3.1.2003 charge was framed under section 376 read with 511 IPC. Accused pleaded not guilty and claimed trial.
5. Prosecution in support of its case examined 14 witnesses and prosecution evidence was closed on the statement of Learned APP for the State on 09.05.2007. Complainant Smt. Begum (PW3) proved the complaint. Prosecutrix 'A' ( real name concealed) was examined as PW6, she proved prosecution story that accused removed her clothes and laid upon her. She raised an alarm and her brother Abdul reached the spot. Accused push him and ran away. Md. Abdul (PW5) did not support the prosecution case, as regards having seen the accused attempting to rape his sister. He has, however, proved that accused was present inside the room and when he got the same opened accused was inside the room. Sh. Parveen Kumar (PW11) learned Additional Sessions Judge proved the statement of prosecutrix recorded under section 164 Cr.P.C. Dr. Poonam Laul (PW14) and Dr. Aruna Singh (PW13) have 4 proved the MLC of the prosecutrix. Dr. Nishu Dhawan (PW4) has proved the MLC of the accused.
ASI Ramesh Chander (PW2) has proved the recording of FIR. WASI Sunita Dutt (PW7) had taken the prosecutrix for medical examination and also for recording her statement under section 164 Cr.P.C. by the Magistrate. Ct. Ramesh (PW8) is a witness to the arrest of the accused. Ct. Laxmi Chand (PW9) had carried the pullandas to the FSL. Ct. Jaginder (PW10) had brought the undergarments of the prosecutrix from the hospital and handed over the same to the IO.
IO, ASI Kailash Chand (PW-12) has proved various stages of the investigation.
6. I have heard learned APP for the State and Sh. Kashmir Singh, Advocate on behalf of the accused and with the assistance of learned Counsels, I have perused the evidence on record and the documents relied upon by the prosecution.
The ball was set rolling on a statement by complainant Smt. Begum, as initially told to her by her son Abdul. She of course, is 5 not an eyewitness to the occurrence. While being cross examined in the court as PW3 she has deposed that her daughter 'A'was seven years of age at the time of the occurrence. She went to the market at about 5.30 pm, leaving behind her son Abdul and the daughter A at home. She has proved her complaint Ex.PW3/A and identified accused Mahesh. Rest of her statement is as told to her by her son Abdul and being hearsay is inadmissible. During cross examination she clarified that her younger son Tasleem was also at home, and the prosecutrix and Tasleem were sleeping. When she returned from the market many persons of the colony had gathered in front of their house and she had called up the police at about 8 pm.
7. Md. Abdul (PW5), the son of the complainant who as per the complainant, had informed her of the occurrence has not fully supported the prosecution case. Though he has deposed that on the day of occurrence prosecutrix was at home and his parents have gone to market and he also briefly left for the market. When he returned, the door was closed from inside. He knocked at the door 6 his sister opened the door and accused was inside the house.
8. Prosecutrix 'A' when examined in the court as (PW6) was not administered oath but predecessor of this court has recorded his satisfaction that the witness understood the queries put to her and gave rational answers. She has deposed that on the day of occurrence accused came to her house. She and her brother were sleeping and the parents were away to the market. Accused took off her clothes and laid upon her. She raised alarm and her brother Abdul came to the house. Accused pushed Abdul and ran away. The witness was cross examined but her testimony could not be shaken.
9. On the basis of evidence as discussed above it can be safely concluded that prosecutrix was alone with her younger brother at home. They were both sleeping and other members of the family were away. On these aspects, all the three witnesses have supported and corroborated each other.
The evidence as regards presence of accused Mahesh inside the house with the prosecutrix is also established from the testimony 7 of the prosecutrix (PW6) and Md. Abdul (PW5).
10.As regards the actual act committed by the accused the only evidence is that of prosecutrix (PW6). The prosecution has not led any evidence as regards her age at the time of occurrence. But Smt. Begum (PW3) has deposed that she was seven years of age. There is no cross examination of this witness as regards the age of the prosecutrix 'A' (PW6) was examined by the predecessor of this court without oath, indicating that she was less than 12 years of age. The Oaths Act forbids administering oath to a person less than 12 years of age. Thus on the basis of testimony of PW3, I hold that the prosecutrix was about seven years of age at the time of the occurrence.
The deposition of prosecutrix (PW6) inspires confidence. There is assurance to her testimony, in as much as Md. Abdul (PW5) has deposed that accused was present inside the house and the door was locked from inside. Prosecutrix has deposed that accused had removed her clothes and laid upon her. He ran away when she raised alarm. I, find no reasons to disbelieve her statement. 8
11.Dr. Nishu Dhawan (PW4) has proved MLC of the accused and her opinion that accused is capable of performing sexual intercourse, MLC is Ex.PW4/A. Dr. Aruna Singh (PW-13) had examined the prosecutrix medico-legally. She has proved the history of sexual assault as told to her by the patient. She has proved the MLC as Ex.PW13/A. Dr. Preeti Aggarwal who had examined the prosecutrix gyanecologically had opined that, 'possibility of rape could not be ruled out.
The medical evidence as noticed above further supports the prosecution case.
12.The official witnesses have proved various stages of investigation and no fault in the investigation could be pointed out by the learned defence counsel. The evidence as regards collection of pullandas and sending the same to the FSL is of no importance as the FSL report did not detect the presence of semen or blood, on the undergarments of the prosecutrix or in the slides. This does not even cause any dent to the prosecution case as it is not the case of the prosecution that the prosecutrix was actually raped. 9
13.For the reasons in para 9 to 11 I am of the opinion that, prosecution case as regards an attempt to commit rape by the accused on the prosecutrix is established beyond reasonable doubt. The learned defence counsel has failed to point out any descripency in investigation or contradictions in the testimony of the prosecutrix. I thus hold that the charge framed against the accused is established. He is accordingly convicted for the offence punishable under section 376 read with 511 IPC. Announced in the open Court (NAROTTAM KAUSHAL) today i.e. 05.09.2007. ADDL. SESSIONS JUDGE ROHINI COURTS:DELHI.
10IN THE COURT OF SH. NAROTTAM KAUSHAL ADDL. SESSIONS JUDGE; ROHINI COURTS;
DELHI.
State Vs Mahesh Kumar
S/o Sh. Misri Lal
R/o Kachhi Colony,Shiv Vihar,
Uttam Nagar,
Delhi.
.
S.C.No. 376/06
FIR No. 383/03
P.S. Uttam Nagar
Under Sec. 376/511 IPC
10.9.07
ORDER ON SENTENCE.
Vide separate judgment announced on 5.9.2007,
convict has been held guilty for the offences u/s 376/511 IPC. 2 Ld.APP on behalf of the state has prayed for highest sentence under the statute, as the convict had attempted to rape a seven years old girl.
113 Sh. Kashmir Singh, learned counsel for the convict has prayed for lenient approach on the ground that he is a first offender, and a , a young man of 22 years of age . His old parents are dependent upon him and he has already spent one and half year in custody.
4 I have heard the learned counsels.
5 The convict have been held guilty for having a ttempted to rape a seven years old girl. Sec. 376 (2)(f) provides that a sentence not less than 10 years shall be passed for committing a rape on a women who is under 12 years of age. Sec.511 IPC envisages sentence which can extend upto half of the highest sentence provided for the main offence .
6. Considering the age of the convict, as well as, age of the victim, I am of the opinion that sentence for five years shall serve the ends of justice. Convict shall, therefore, undergo R.I. for a period of five years and shall be liable to pay a fine of Rs. 5,000/- . In default of payment of fine, convict shall further undergo S.I. for six months;for the offence punishable u/s 376 r/w 511 IPC. 12
Benefit of Sec. 428 Cr.P.C. shall be available to the convict.
Copy of judgment and Order on sentence be given to the convict, free of costs.
File be consigned to record room.
Announced in the open Court (NAROTTAM KAUSHAL) today i.e. 10.09.2007. ADDL. SESSIONS JUDGE ROHINI COURTS:DELHI.
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State Vs Mahesh Kumar
S/o Sh. Misri Lal
R/o Kachhi Colony,Shiv Vihar,
Uttam Nagar,
Delhi.
.
S.C.No. 376/06
FIR No. 383/03
P.S. Uttam Nagar
Under Sec. 376/511 IPC
10.9.07
Pr APP for the State .
Accused Mahesh Kumar in JC.
Vide separate order on sentence, Convict Mahesh Kumar is sentenced undergo R.I. for a period of five years and shall be liable to pay a fine of Rs. 5,000/- . In default of payment of fine, convict shall further undergo S.I. for six months.
Benefit of Sec. 428 Cr.P.C. shall be available to the convict.
Copy of judgment and Order on sentence be given to the convict, free of costs.
File be consigned to record room.
Announced in the open Court (NAROTTAM KAUSHAL) today i.e. 10.09.2007. ADDL. SESSIONS JUDGE ROHINI COURTS:DELHI.
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