Delhi District Court
St. vs . Deepak Singh on 4 October, 2008
-:1:-
S.C. NO. 38/07
St. Vs. Deepak Singh
IN THE COURT OF SHRI B. R. KEDIA ; A.S.J.
TIS HAZARI COURTS ; DELHI
S.C. NO. 38/07
FIR NO. 479/06
P.S. Subzi Mandi
U/Sec. 328/342/363/366/366-A/376/506/292A IPC
State Vs. Deepak Singh
S/O Ram Vinod Singh
R/O H. NO. 138,
Gali No.3, Mahveer
Park,
Bahadurgarh,
Haryana.
Date of institution 27.04.2007
Arguments heard on 26.09.2008
Judgment delivered on 03.10.2008.
J U D G M E N T :-
Single accused namely Deepak Singh S/o Ram Vinod Singh has been chargesheeted for facing trial in -:2:- S.C. NO. 38/07 St. Vs. Deepak Singh a case bearing FIR NO.479/06 for offence punishable U/S 328/342/363/366/366-A/376/506/292-A IPC, as registered at P.S. Subzi Mandi, Delhi, on the basic allegation of administering intoxicated tea upon the victim, a minor girl less than 17 years, (Who hereinafter to be referred as "prosecutrix"), on 14.09.2006 at her house and committing rape upon her and extending threat to her and further committing rape upon her for 2-3 times at her house and thereafter, on 02.12.2006 kidnapping her to Bahadurgarh (Haryana) with intent to compelled her to get marry with him and again administering intoxicated tea to the prosecutrix on 03.12.2006 in a Hotel at Bahadurgarh.
-:3:-S.C. NO. 38/07
St. Vs. Deepak Singh
2. The precise case of the prosecution as found reflected from the chargesheet is that on 03.12.2006 complainant Smt. Madhu, came to P.S. Subzi Mandi and got recorded the Missing Report concerning her daughter/prosecutrix, regarding her missing since 02.12.2007 vide DD No.11A, which is Ex.PW.11/A and same was entrusted to ASI Kartar Singh but prosecutrix could not traced out on that day. Thereafter on 04.12.2006, complainant Smt. Madhu again came to P.S. Subzi Mandi and got recorded her statement Ex.PW.11/B, wherein raising suspicion as against the accused Deepak Singh for kidnapping of her daughter. In pursuance of said statement of complainant Smt. Madhu, FIR bearing No.479/06 U/S 363 IPC, copy of which is Ex.PW.3/B was got -:4:- S.C. NO. 38/07 St. Vs. Deepak Singh registered at P.S. Subzi Mandi, Delhi on 04.12.2006. After registration of the case, further investigation was entrusted to ASI Kartar Singh. During the course of investigation, prosecutrix was got recovered from the company of the accused Deepak Singh at Bahadugarh and thereafter, she was brought to Delhi, the prosecutrix and the accused were medically examined, the accused was interrogated, arrested and his disclosure statement was recorded, police statement of prosecutrix as well as her statement U/S 164 Cr.P.C was recorded, relevant case properties were seized, statement of relevant witnesses were recorded and ultimately, after conclusion of the investigation charge sheet was filed against the accused in the court of concerned Ld. M.M., who after compliance of -:5:- S.C. NO. 38/07 St. Vs. Deepak Singh requirements U/S 207 Cr. P.C. was pleased to commit the case to the Court of Sessions. Thereafter, this matter was assigned to this court for trial.
3. On hearing both the sides on the point of charge vide order dt. 11.07.2007 charge for the offence punishable U/S328/366/366-A/342/376/506(I) IPC was framed against this accused to which accused pleaded not guilty and claimed for trial.
4. During the course of trial, prosecution in support of its case got examined 16 prosecution witnesses, namely, Dr. Om Prakash, who has medically examined the accused vide his report Ex.PW.1/A on the back of the MLC of the accused, a -:6:- S.C. NO. 38/07 St. Vs. Deepak Singh formal witness as PW-1, Dr. Roopali Gupta, who has medically examined the prosecutrix and proved her MLC as Ex.PW.2/A, a formal witness as PW-2, HC Vimla, Duty Officer, who has proved the copy of FIR Ex.PW.3/B and copy of DD No.11/A as Mark A, a formal witness as PW-3, Sh. Om Prakash, Dealing Clerk from the Office of Birth & Death Registrar, Nagar Parishad Bahadurgarh, Haryana, who has proved the birth certificate of the prosecutrix as PW.4/A showing her date of birth as 29.01.1990, a formal witness as PW-4, Lady Ct. Kiran, who has accompanied with the prosecutrix to the hospital for her medical examination on 04.12.2006, a formal witness as PW-5, Ct. Rajinder Singh, who has accompanied with the I.O and is a witness to the -:7:- S.C. NO. 38/07 St. Vs. Deepak Singh recovery of the prosecutrix and arrest of accused at Bahadurgarh, a formal witness as PW-6, Sh. Krishan Kumar, who deposed to have sold one Mobile Phone make NOKIA to the accused vide memo Ex.PW.7/A, a formal witness as PW-7, Ct. Tarkeshwar, who has deposited the case property at CFSL, Calcutta, a formal witness as PW-8, Ct. Naresh Singh, who is a witness to the disclosure statement of the accused, a formal witness as PW-9, the prosecutrix, who is the most material witness has been examined as PW-10, Complainant Smt. Madhu, who is the mother of the prosecutrix, also a material witness as PW-11, Sh. Anil Kumar Sisodia, the then Ld. M.M, who has proved the statement of the prosecutrix as recorded by him U/S 164 Cr.P.C, Ex.PW.10/A/ Ex.PW.12/B, a -:8:- S.C. NO. 38/07 St. Vs. Deepak Singh formal witness as PW-12, Sh. Bhram Prakash, the then Manager of Hotel "Thirty Miles Stone", Bahadurgarh, a formal witness as PW-13, ASI Kusum Lala, the last I.O as PW-14, ASI Kartar Singh, the first I.O, who has narrated the details regarding the investigation as carried out by him as PW.15, Dr. Ajay Kumar, who has proved the MLC of the accused as Ex.PW.16/A, a formal witness has been examined as PW-16.
5. After examination of aforesaid 16 prosecution witnesses, prosecution evidence was closed. Thereafter, statement of accused U/S 313 Cr. P.C. was recorded in which the accused denied the allegation of prosecution and claimed to be innocent -:9:- S.C. NO. 38/07 St. Vs. Deepak Singh and have been falsely implicated in this case. However, accused has not led any evidence in his defence.
6. I have heard Sh. Abhishek Saran, Advocate, Ld. Counsel for the accused, Ld. APP for the state and perused the relevant material as available on case record.
7. It is submitted by Ld. Counsel for the accused that this accused is innocent and has been falsely implicated in this case and hence deserves to be acquitted. It is also submitted by Ld. Counsel that this accused has been falsely implicated in this case as he had lodged a complaint against the prosecutrix and her mother for running a brothel in Bahadurgarh. -:10:- S.C. NO. 38/07
St. Vs. Deepak Singh It is also added by Ld. Counsel that MLC of the prosecutrix reflect no external injury on the body of the prosecutrix and same also falsify the allegation of rape upon the prosecutrix and hence accused deserves to be acquitted. It is further added by Ld. Counsel for the accused that the falsity of this case is found reflected from the fact that there are several discrepancies in the deposition of PW-11, who is the mother of the prosecutrix and PW-10, the prosecutrix herself and hence accused deserves to be acquitted. It is also added by Ld. Counsel that the prosecutrix was of more than 18 years and her Birth Certificate Ex.PW.4/A cannot be treated as reliable. It is also added by Ld. Counsel that the deposition of the prosecutrix cannot be treated as trustworthy and -:11:- S.C. NO. 38/07 St. Vs. Deepak Singh reliable being deposing falsely at the instance of her mother and hence, accused deserves to be acquitted. It is also added by ld. Counsel that even otherwise, there is no evidence in respect of any injury on the private part of the prosecutrix or feeding any intoxicated material upon the prosecutrix. Ld. Counsel also pointed out certain lapse on the part of I.O by not examining the car driver or not joining public witness in the recovery of prosecutrix from accused at Bahadurgarh, or not getting ossification test of prosecutrix. Thus, Ld. Counsel for the accused urged for acquittal of the accused.
8. To the contrary it is submitted by Ld. APP for the State that by examining 16 prosecution witness, -:12:- S.C. NO. 38/07 St. Vs. Deepak Singh prosecution have successfully established its case as against accused for the charged offence and therefore the accused deserves to be convicted accordingly. It is also submitted by Ld. APP that from the perusal of Birth Certificate of the prosecutrix, which is EX. PW- 4/A, it is clearly reflected that the date of birth of the prosecutrix is 29.01.1990 and thus during the period of kidnapping and rape, the prosecutrix was less than 17 years and as there are ample material evidence as brought on record by the prosecution to establish the fact that this accused has administered intoxicated tea to the prosecutrix and committed rape upon her and threatened her and have kidnapped her with intent to compelled her marriage with him, the accused deserves to be convicted for the charged -:13:- S.C. NO. 38/07 St. Vs. Deepak Singh offence.
9. The first question that arises having significant bearing on the fate of this case is, "What was the age of the prosecutrix during the period of incident i.e. 14.09.2006 to 03.12.2006 ?"
So far as this aspect is concerned, PW-11 Smt. Madhu, who is the complainant/ mother of the prosecutrix has deposed in the court in this respect that on the day of missing, her daughter was aged about 16 years. Further more, from the perusal of the Missing Report, which is Ex.PW.11/A, the age of the prosecutrix is found reflected as 16 years. Similarly, the prosecutrix who has been examined as PW-10, in -:14:- S.C. NO. 38/07 St. Vs. Deepak Singh her deposition in the court have deposed about her date of birth as 29.01.1990 and she has specifically denied the suggestion of Ld. defence counsel that at the time of missing she was more than 18 years. Further more, PW.4 Om Prakash, Dealing Clerk from the Office of Birth & Death Registrar, Nagar Parishad Bahadurgarh, Haryana, who has brought the summoned record pertaining to Birth Register of the prosecutrix as per entry No.129 dt : 05.02.1990 has proved the Birth Certificate of the prosecutrix as PW.4/A, as issued from their office and as per said Birth Certificate the date of birth of prosecutrix is 29.01.1990. Since the said Birth Certificate of prosecutrix, which is Ex.PW.4/A, is a public document and entry has been made on 05.02.1990 at -:15:- S.C. NO. 38/07 St. Vs. Deepak Singh serial no.129 in the concerned Register during performance of the public duty by the public servant, same is duly admissible in view of Sec. 35 of Indian Evidence Act and I do not find any force in the submission of Ld. Counsel for the accused that said document is not genuine and cannot be treated as reliable.
Further more, in the statement U/S 164 Cr.P.C of the prosecutrix, which is Ex.PW.10/A/ Ex.PW.12/B, the age of the prosecutrix is found mentioned as 16 years. Besides that in MLC of the prosecutrix, which is Ex.PW.2/A, the age of the prosecutrix is found mentioned as 16 years. Though, the accused has taken merely the bare stand that the -:16:- S.C. NO. 38/07 St. Vs. Deepak Singh prosecutrix was of more than 18 years, he has not adduced any evidence in this respect and the said suggestion of the accused was clearly denied by the prosecutrix in her cross examination.
In view of the aforesaid deposition of PW.10 prosecutrix, PW-11, mother of the prosecutrix coupled with the deposition of PW-4 and contents of Birth Certificate Ex.PW.4/A, I have no hesitation to safely conclude that the date of birth of the prosecutrix has been conclusively proved by the prosecution as 29.01.1990 and hence, the prosecutrix is found to be aged about less than 17 years during the period of incident i.e. 14.09.2006 to 03.12.2006.
10. Now the next question that arises having -:17:- S.C. NO. 38/07 St. Vs. Deepak Singh significant bearing on the fate of this case is, "Whether this accused Deepak Singh can be held liable for kidnapping the prosecutrix with intent to compel her to marry against her will or to seduce her to illicit intercourse and liable for offence punishable U/S 366 IPC?"
So far as this aspect is concerned, from the aforesaid discussion at Para (9) it has already been concluded that the prosecutrix was aged about less than 17 years during the period of incident 14.09.2006 to 03.12.2006 and her date of birth is found to be 29.01.1990. Further more, from the deposition of prosecutrix, who has been examined as PW-10, it is reflected that in the year 2006, they were -:18:- S.C. NO. 38/07 St. Vs. Deepak Singh residing at H. No.2166, Shora Kothi, Subzi Mandi, Ghanta Ghar, Delhi and accused Deepak Singh is her maternal uncle in relation and used to visit their said house. She has also deposed that on 02.12.2006 at about 6 : 00 P.M accused Deepak Singh called her out from the factory, where she had been working and induced her to accompany him to return her nude negatives and her photographs as taken by him on his mobile phone having camera at their house on 14.09.2006 and said negatives were lying with his friend at Bahadurgarh, Haryana. On said inducement by the accused, the prosecutrix accompanied with the accused Deepak Singh to Bahadurgarh and accused Deepak Singh also intimated her that he had already informed about the same to her mother. The -:19:- S.C. NO. 38/07 St. Vs. Deepak Singh prosecutrix further deposed that accused took her to a factory, where his friend used to work and on reaching there, informed her that his friend who was having the negatives and her nude photos will come in the morning and on the night they stayed there. Prosecutrix further deposed that thereafter, in the morning of 03.12.2006 accused took her to a Hotel "Thirty Miles Stone" at Bahadurgarh on the plea that his said friend will meet them there. She also deposed that accused ultimately by confining her on the said Hotel took her on 04.12.2006 to the court at Bahadurgarh and compelled her to marry with him in a chamber at Court Complex Bahadurgarh and on her asking, the accused that he has already married, he stated her that he would give divorce to his wife and -:20:- S.C. NO. 38/07 St. Vs. Deepak Singh thereafter on 04.12.2006 at about 2 : 00 P.M. her mother alongwith Delhi Police officials apprehended them and brought her and accused Deepak Singh to P.S. Subzi Mandi, Delhi and conducted further proceedings. The material part of the said deposition of PW.10 prosecutrix is also found corroborated from the statement of the prosecutrix as recorded U/S 164 Cr.P.C, which is Ex.PW.10/A / Ex.PW.12/B. The part of the aforesaid deposition of prosecutrix is also found corroborated from the deposition of PW.11 Smt. Madhu, who is mother of the prosecutrix. As said PW.11 deposed in the court that on 02.12.2006 her daughter did not return from the place of her job till 7 : 30 P.M and she searched for -:21:- S.C. NO. 38/07 St. Vs. Deepak Singh her daughter but as she could not be traced out, on the next day, she went to P.S. Subzi Mandi and lodged Missing Report of her daughter, which is Ex.PW.11/A. She further deposed that during the course of search of her daughter, she was informed by Smt. Kiran that she had seen accused Deepak Singh talking with her daughter at about 5 : 00 P.M. on 02.12.2006 at the corner of their gali and on suspecting that the accused Deepak Singh might have taken her daughter, she went to P.S. Subzi Mandi and got recorded her statement Ex.PW.11/B. She further deposed that on 04.12.2006 she alongwith police official Kartar Singh reached Bahadurgarh in search of her daughter and from the court complex Bahadurgarh, her daughter was recovered in the company of the accused Deepak -:22:- S.C. NO. 38/07 St. Vs. Deepak Singh Singh and they were brought to Delhi. The material part of the deposition of PW.10 prosecutrix and PW.11 Smt. Madhu, who is complainant and mother of the prosecutrix could not be demolished in their cross examination.
The net result of the aforesaid discussion is that I have no hesitation to safely conclude that this accused is found guilty for kidnapping the prosecutrix on 02.12.2006 at about 6 : 00 P.M from Delhi with intent to compel her to marry him and to have illicit intercourse and took her to Bahadurgarh, Haryana, from where the prosecutrix was recovered in the company of the accused on 04.12.2006 by the police at the instance of the mother of the prosecutrix and -:23:- S.C. NO. 38/07 St. Vs. Deepak Singh hence, this accused is found guilty for offence punishable U/S 366 IPC accordingly. Since, this accused has been found guilty for offence punishable US 366 IPC, he cannot be held liable further for offence punishable U/S 366-A IPC and my said view is found nourished from the following judgments : -
1)2001 Crl. L. J. 1916 "Moti Chand Vs. State of Rajasthan"
2)AIR (32) 1945 Calcutta 432 " Manik Molla and Anr Vs. Emperor".
11. Now the next question that arises having significant bearing on the fate of this case is, "Whether this accused Deepak Singh can be held liable for offence punishable U/S 328/376/506 (I) IPC " ? -:24:- S.C. NO. 38/07
St. Vs. Deepak Singh So far as this aspect is concerned, PW.10, the prosecutrix deposed in the court that on 24.09.2008 (later on corrected as 14.09.2006) accused Deepak Singh came to their house at 2166, Shora Kothi, Subzi Mandi, Ghanta Ghar, Delhi, while she was alone and requested her to prepare tea on which she prepared 2 cups of tea and placed the same on the table and thereafter, accused Deepak Singh asked her to bring one glass of water and she went to bring the same and after coming back, she found accused Deepak Singh taking tea and she also started taking tea there. After sometime, she felt giddiness and became unconscious and regained consciousness after about 3 - 4 hours and found her body full of weight and she was was in -:25:- S.C. NO. 38/07 St. Vs. Deepak Singh naked condition and felt that she had been sexually assaulted by accused Deepak Singh. She further deposed that thereafter, she started weeping on seeing her condition and accused Deepak Singh slapped her when she told him that she would disclose about this incident to her mother. Accused Deepak Singh also threatened him not to disclose anything about the incident to anyone. Prosecutrix further deposed that accused Deepak Singh was having a mobile phone with camera and threatened her not to disclose anything about the incident to anyone as he had prepared her nude video film in his mobile phone and threatened her in case she disclosed about the said incident to anyone then he would publish her nude photograph in newspaper and show her nude -:26:- S.C. NO. 38/07 St. Vs. Deepak Singh photo/film to her family members and others. The prosecutrix further added that thereafter, accused Deepak Singh left their house and afterwards her mother came but she did not disclose anything to her about the said incident due to fear and threat as given by the accused Deepak Singh to her. Prosecutrix further deposed that after about 1 or 2 weeks from this incident, accused Deepak Singh used to come to their house alongwith her mobile phone and started blackmailing her by saying that he would show her nude film/video to her family members and others and committed sexual intercourse 2 - 3 times upon her on different occasions by blackmailing her at her house. 12 During the course of her deposition said -:27:- S.C. NO. 38/07 St. Vs. Deepak Singh PW.10 prosecutrix also added that on 03.12.2006 accused Deepak Singh took her to the Hotel "Thirty Miles Stone" on the plea to get return her nude photos and negatives and accused Deepak Singh took her in a room of said hotel and after sometime brought 2 cups of tea in the room and offered one cup of tea to her. After taking said cup of tea, she felt giddiness and became unconscious as happened with her earlier on 14.09.2006 and regained consciousness after 3 - 4 hours. She categorically deposed that she found herself in the same situation as earlier incident on 14.09.2006. She further deposed that on that night accused kept her in the said Hotel and ultimately on the next day i.e 04.12.2006 took her to a chamber of Advocate at court complex, Bahadurgarh, where -:28:- S.C. NO. 38/07 St. Vs. Deepak Singh accused compelled her to get marry with him and stated her that he would give divorce to his wife and ultimately at about 2 : 00 P.M her mother alongwith Delhi police officials apprehended them at the court complex, Bahadurgarh and brought them to Delhi. The prosecutrix also deposed that on being brought to Delhi by the police she was got medically examined. She also added that her statement was also got recored before Ld. M.M, which is Ex.PW.10/A. The material part of the aforesaid deposition of PW.10 prosecutrix is also found corroborated from her earlier statement U/S 164 Cr.P.C as recorded by PW.12, who has proved her statement as Ex.PW.10/A / Ex.PW.12/B. Further more, from the deposition of PW.2 Dr. Rupali Gupta, who has medically examined -:29:- S.C. NO. 38/07 St. Vs. Deepak Singh the prosecutrix and proved her MLC as Ex.PW.2/A, it is reflected that hymen of the prosecutrix was found torn. Further more, from the perusal of the medical report of the accused Deepak Singh, which is mark Z, regarding potentency of the accused, it is found mentioned as under : -
" There is nothing to suggest that the person examined is not capable for performing sexual intercourse".
13. The substantive part of the deposition of the PW-10, the prosecutrix and PW-11 Smt. Madhu, the mother of the prosecutrix could not be demolished in their cross-examination. No doubt some sort of discrepancies have been brought on record in the -:30:- S.C. NO. 38/07 St. Vs. Deepak Singh cross-examination of PWs but I am of the considered view that the said discrepancies are bound to occur in the deposition of various witnesses being usual and natural and even otherwise as they are found to be formal in nature without striking at the root of the matter and the same cannot be treated as fatal for the prosecution. In the case reported as, "JT 1999 (9) SC 43 State of H.P. Vs. Lekhraj and another", it was observed by Hon'ble Supreme Court of India as under
:-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors -:31:- S.C. NO. 38/07 St. Vs. Deepak Singh of memory due to laps of time, due to mental disposition such as shock and horror at the time of occurrence, and the like."
It was further observed in the said judgment as under :-
"The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
In recent case reported as, "JT 2006 (1) SC 645 "Surender Singh Vs. State of Haryana", it was observed by Hon'ble Supreme Court of India as under
:-
-:32:- S.C. NO. 38/07 St. Vs. Deepak Singh "It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The
discrepancy, which does not affect the prosecution case materially, does not create infirmity."
14. I also do not find any force in the submission of Ld. Defence Counsel that no external injury was found on the private part of the prosecutrix and same negate the allegation of the commission of rape as against the prosecutrix. As I am of the considered view that mere absence of external injury on person of prosecutrix cannot be treated as conclusive ground to -:33:- S.C. NO. 38/07 St. Vs. Deepak Singh falsify the stand of commission of rape as against prosecutrix. I do not find any reason to disbelieve the deposition of the prosecutrix about the commission of rape upon her by this accused. My view in this regard is also found supported from the judgment as rendered by Hon'ble Supreme Court of India in the case reported as 1998 (8) SCC 635, "Ranjit Hajarika Vs. State of Assam." Similar view was also held by Hon'ble Supreme Court of India in the case reported as 2006 VI AD (SC) 115, "State Tamil Nadu Vs. Ravi @ Nehru."
15. That, I am of the considered view that in criminal trial, the finding of conviction can be based -:34:- S.C. NO. 38/07 St. Vs. Deepak Singh even on the strength of deposition of single PW, in case it is found trust worthy and reliable as it is quality and not quantity of the evidence that count and my said view is found supported from the judgment as rendered by Hon'ble Supreme Court of India, In the case reported as JT 1999 (8) S.C. 537, "Sheelam Ramesh and another Vs. state of A.P." it was observed by Hon'ble Supreme Court of India as under :-
"Courts are concerned with the quality and not quantity of evidence and in a criminal trial, conviction can be based on a sole evidence of a witness, if it inspire confidence."-:35:-
S.C. NO. 38/07
St. Vs. Deepak Singh
16. Besides that, in the case reported as, 2006 II AD (S.C.) 607, "Dinesh @ Buddha Vs. State of Rajasthan" in para-11, it was observed by Hon'ble Supreme Court of India as under :-
"In the Indian Setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non-
permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of -:36:- S.C. NO. 38/07 St. Vs. Deepak Singh these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-
inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case."
17. I also do not find any force in the submission of Ld. Defence Counsel, who has pointed out certain -:37:- S.C. NO. 38/07 St. Vs. Deepak Singh lapse on the part of the I.O. by not examining the driver of the car in which the accused and the prosecutrix were brought from Bahadurgarh to Delhi or any other independent witness at the time of recovery of the prosecutrix from the company of the accused at the court complex, Bahadurgarh or not getting done ossification test of the prosecutrix. I am of the considered view that mere lapse on the part of the I.O. cannot be treated as fatal for the case of the prosecution specifically when the deposition of other prosecution witnesses are found trustworthy and reliable. In the case reported as "State of U.P. Vs. Hari Mohan and Anr." 2000 (VIII) AD (SC) 389, it was observed by Hon'ble Supreme Court to the effect that, "failure of the I.O. cannot be allowed to -:38:- S.C. NO. 38/07 St. Vs. Deepak Singh become escape route for release of the accused." To the similar effect there is another decision of Hon'ble Supreme Court of India in case reported as "Ambika Prasad Vs. State." 1997 (V) AD (SC) 467. In another case reported as "Manoj @ Mannu Vs. State of Delhi" 2000 (I) AD (DELHI) 67, it was observed by our Hon'ble High Court as under:-
"That the criminal justice
should not be made a casualty for
wrong committed by the I.O. and
therefore the prosecution case cannot be thrown out on account of lapse committed by the I.O."
In another case as rendered by Hon'ble Supreme Court of India in a case reported as (2003) 1 -:39:- S.C. NO. 38/07 St. Vs. Deepak Singh SCC 534, it was observed by Hon'ble Supreme Court of India as under :-
"Mere faulty investigation cannot be a ground for acquittal of the accused. For the fault of the prosecution, the perpetrators of a ghastly crime cannot be allowed to go scotfree."
In the present case the I.O might not have examined the driver of the car as might not have considered his deposition as so relevant. Further more, regarding non joining of any public witness at the time of recovery of the prosecutrix, PW.15 ASI -:40:- S.C. NO. 38/07 St. Vs. Deepak Singh Kartar Singh/ I.O have clearly deposed that none became ready to join the investigation at the time of recovery of the prosecutrix and arrest of the accused Deepak Singh at Bahadurgarh. Further more, not getting the Ossification test of the prosecutrix by the I.O cannot be treated as fatal in view of the fact that the Birth Certificate of the prosecutrix was found available with the I.O and that is why he might not have think it proper for getting conduct the ossification test and same cannot be treated as fatal for the case of the prosecution.
18. I also do not find any force in the submission of Ld. Counsel for the accused that the accused has -:41:- S.C. NO. 38/07 St. Vs. Deepak Singh been falsely implicated in this case by the prosecutrix at the instance of her mother as both of them were running brothel at their house and accused has lodged complaint against them. I do not see as to why a minor girl of less than 17 years or her mother could go to the said extent and lodge such complaint of serious nature as as against the accused. I am of the considered view that a girl in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than -:42:- S.C. NO. 38/07 St. Vs. Deepak Singh fabricated. Further more, the accused have failed to adduce any such evidence in respect of his aforesaid defence stand for his false implication by the prosecutrix at the instance of her mother in the present case and therefore, said plea of the accused appear to be baseless.
19. In the light of the aforesaid material as found available on the case record and keeping in mind that deposition of the prosecutrix PW-10 and mother of the prosecutrix PW-11 and other connecting evidence, I have no hesitation to safely conclude that this accused can be held liable for offence punishable U/S 328/376/506(I) IPC.
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St. Vs. Deepak Singh
20. The net result of the aforesaid discussion is that this accused Deepak Singh is found guilty for offence punishable U/S 328/366/376/506 (I) IPC and is convicted accordingly. Let, this convict be heard separately on the point of sentence. ANNOUNCED IN THE OPEN COURT (B.R. KEDIA) On 3rd October, 2008 Addl. Sessions Judge Tis Hazari Courts Delhi.
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St. Vs. Deepak Singh IN THE COURT OF SHRI B. R. KEDIA ; A.S.J. TIS HAZARI COURTS ; DELHI S.C. NO. 38/07 FIR NO. 479/06 P.S. Subzi Mandi U/Sec.328/366/376/506 (I) IPC (Convicted) State Vs. Deepak Singh S/O Ram Vinod Singh R/O H. NO. 138, Gali No.3, Mahveer Park, Bahadurgarh, Haryana.
ORDER ON SENTENCE :-
In pursuance of judgment dt. 03.10.2008 as passed by this court whereby convicting the accused Deepak Singh for offence punishable U/S -:45:- S.C. NO. 38/07 St. Vs. Deepak Singh 328/366/376/506 (I) IPC, I have heard Sh. Abhishek Saran, Adv. Ld. Counsel for the convict, Sh. Zenul Abedeen, Ld. APP for the State and perused the case record for passing this order on sentence.
2. It is submitted by Ld. Counsel for the convict that this convict is a young married man, having his wife, his widow mother and one year aged baby. It is also added that this convict is the first offender and hails from a poor family It is further added that this convict has already remained in custody for more than
21 months and thus, urged for taking lenient consideration.
3. To the contrary, it is submitted by the Ld. APP -:46:- S.C. NO. 38/07 St. Vs. Deepak Singh for the State that since this convict is found to have committed rape several times upon a minor girl, who was of less than 17 years by blackmailing her and have kidnapped her in order to compel her to get marry with him and hence, this convict does not deserve any leniency and adequate sentence be awarded upon him.
4. Considering the aforesaid submissions from both the sides and perusing the case record, I consider it appropriate to impose sentence upon the convict as under: -
a) For Offence punishable U/S 328 IPC -
R.I. for 4 years and fine of Rs.1000/- and in default of payment of fine, additional R.I. for 1 -:47:- S.C. NO. 38/07 St. Vs. Deepak Singh month.
b) For Offence punishable U/S 366 IPC - R.I. for 4 years and fine of Rs.1000/- and in default of payment of fine, additional R.I. for 1 month.
c) For Offence punishable U/S 376 IPC - R.I. for 7 years and fine of Rs.2000/- and in default of payment of fine, additional R.I. for 2 months.
d) For Offence punishable U/S 506 (I) IPC - R.I. for 1 year and fine of Rs. 1000/- and in default of payment of fine, additional R.I. for 1 month.
-:48:-S.C. NO. 38/07
St. Vs. Deepak Singh However, it is made clear that all the sentences of R.I. shall run concurrently and the convict will be entitled for the benefit U/S 428 Cr. P.C. and the period of his detention which is reflected from the case record and as verified by the Court Reader (From 04.12.2006 till date, except the Interim bail period from 10.04.2008 to 20.05.2008) shall be set off against the aforesaid substantive sentence period. Concerned Jail Superintendent, Central Jail, Tihar be intimated accordingly.
5. Let, a copy of the judgment dt. 03.10.2008 and copy of this order on sentence be given free of -:49:- S.C. NO. 38/07 St. Vs. Deepak Singh cost to the convict Deepak Singh immediately. ANNOUNCED IN THE OPEN COURT (B.R. KEDIA) On 4th October, 2008 Addl. Sessions Judge Tis Hazari Courts Delhi.