Delhi District Court
State vs Vishnu Khandelwal on 15 March, 2011
IN THE COURT OF DR. SUDHIR KUMAR JAIN : ASJ-01 (OUTER),
ROHINI, DELHI.
Sessions Case No: 84/08
FIR no: 450/08
PS: Rohini
U/s: 328/376/506 IPC
State
Versus
Vishnu Khandelwal,
S/o Bhawan Dass,
R/o E-20/147, Sector-3,
Rohini, Delhi. ... Accused
Date of Institution : 4.10.2008
Date of Decision: 15.3.2011
JUDGMENT
Balbir Kaur got married with Harmeet Singh who expired about 11-12 years back. 'P', Manmeet Kaur and Raman were born out of the said wedlock. Balbir Kaur after the death of her husband Harmeet Singh and due to financial constraint started to work with Vishnu Khandelwal. Vishnu Khandelwal was also having matrimonial dispute with his wife who had already left his house. Balbir Kaur stated to be got married with the Vishnu Khandelwal and thereafter both of them along with their children started to reside at house no.E-20/147, Sector-3, State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 1 of 18 Rohini. Balbir Kaur expired on 30.5.2007. 'P' and her sister Manmeet Kaur after the death of their mother continued to reside in the house of Vishnu Khandelwal while their brother Raman Singh started to reside with his maternal uncle (mama) Ranjit Singh. Vishnu Khandelwal after the death of Balbir Singh intended to keep the 'P' as his wife and also wanted to establish sexual relation with the 'P'. 'P' was studying in 11th standard at that time and used to study till late night. 'P' refused to accede the desire of Vishnu Khandelwal. Vishnu Khandelwal gave sleeping pills to 'P' by mixing in her food and committed sexual intercourse with the 'P'. 'P' along with her sister Manjeet Kaur was thrown out by the Vishnu Khandelwal from his house in the month of February, 2008 and thereafter both of them started to reside with their maternal grand mother Swaran Kaur. 'P' was threatened by the Vishnu Khandelwal. 'P' got pregnant and delivered a pre-matured female child Devika in Vijay Nursing Home, Sector-5, Rohini on 20.7.2008 who expired on 23.7.2008.
2. 'P' made a complaint to the police on 24.7.2008 which was handed over to SI Subhash Meena for investigation. FIR no.450/08 was got registered. 'P' was referred for medical examination (herein after referred to as "the prosecutrix"). Vishnu Khandelwal (herein after referred to as "accused") was arrested. The investigation was completed. The accused after completion of investigation was charge sheeted for the offence State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 2 of 18 punishable u/s 328/376 IPC. The charge sheet was submitted to the court of concerned Metropolitan Magistrate. The accused was put to trial.
3. The copies of charge sheet along with annexed documents were supplied to the accused in compliance with Section 207 Cr.P.C. The case was committed to the Court of Sessions vide order dated 26.9.2008 and thereafter assigned to this court for trial in accordance with law.
4. The charge for the offences punishable u/s 328/376/506 IPC was framed against the accused to which the accused pleaded not guilty and claimed trial.
5. The prosecution examined Babita as PW-1; HC Umed Singh as PW-2; Swarn Kaur as PW-3; R.C. Yadav as PW-4; prosecutrix as PW-5; Om Parkash Arya as PW-6; Arun Kumar as PW-7; Pt. Shyam Goswami as PW-8; Dr. Vijay Kathuria as PW-9; Dr. Bhavana Jain as PW-10; Dr. Florence Almeida as PW-11; Dr. Aparna as PW-12; HC Jagdish as PW- 13; Inspector Subhash Meena as PW-14; A.K. Srivastava as PW-15; Ct. Satya Parkash as PW-16; and Ms. Rekha, ACJ cum ARC, Dwarka as PW17.
PW-1 Babita is the friend of prosecutrix. PW-2 HC Umed Singh got registered the FIR on the basis of rukka produced by SI Subhash and State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 3 of 18 also made endorsement on rukka. PW-3 Swarn Kaur is the mother of prosecutrix. PW-4 R.C. Yadav, Principal, Sarvodaya Vidyalaya, Sector- 3, Rohini produced the school record pertaining to the prosecutrix. PW-5 is the prosecutrix. PW-6 Om Parkash Arya is the Vice President, Sewa Bharti Matra Chhaya on 20.7.2008 where the prosecutrix left her infant female child in cradle. PW-7 Arun Kumar is the LIC Agent who had give LIC Policies to Balbir Kaur and her children, the benefit of which obtained by the accused. PW-8 Pt. Shyam Goswami on 24.7.08 got cremated the infant child Devika and handed over the ashes and burnt bones pieces to the IO. PW-9 Dr. Vijay Kathuria medically examined the prosecutrix on 20.7.07 with active labour pain. PW-10 Dr. Bhavana Jain medically examined the accused on 24.7.08. PW-11 Dr. Florence Almeida on 24.7.08 medically examined the prosecutrix. PW-12 Dr. Aparna on 24.7.08 gynaecologically examined the prosecutrix. PW-13 HC Jagdish Singh being the MHC(M) entrusted the case property/exhibits collected during the investigation. PW-14 Inspector Subhash Meena is the Investigating Officer. PW-15 A.K. Srivastava, Assistant Director (Biology) examined the blood samples of the accused and prosecutrix with the infant child who conducted and performed the DNA profile. PW-16 Ct. Satya Parkash participated in the investigation at the time of arrest of accused. PW-17 Ms. Rekha, the Metropolitan Magistrate recorded the statement of the prosecutrix u/s 164 Cr.P.C. on 25.7.08.
State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 4 of 18
6. The prosecution proved the computerized copy of FIR as Ex. PW 2/A; endorsement made by PW-2 HC Umed Singh on rukka Ex. PW 2/A; school record pertaining to the prosecutrix as Ex. PW 4/A to Ex. PW 4/C; complaint made by prosecutrix as Ex. PW 5/A; statement u/s 164 Cr.P.C. of the prosecutrix as Ex. PW 5/B; arrest memo of accused as Ex. PW 5/C; seizure memos of documents handed over by PW-6 Om Parkash pertaining to the infant child Devika as Ex. PW 6/A, Ex. PW 6/A1 and Ex. PW 6/A2 to Ex. PW 6/A4; the treatment papers/admission record of the prosecutrix in Vijay Nursing Home prepared on 20.7.08 by PW-9 Dr. Vijay Kathuria as Ex. PW 9/A; MLC of accused prepared after arrest as Ex. PW 10/A; MLC of prosecutrix prepared on 24.7.08 by PW-11 Dr. Florence Almeida as Ex. PW 11/A; gynecological findings given by Dr. Aparna as Ex. PW 12/A; the relevant entries in Register no.19 and photocopies of RC as Ex. PW 13/A and Ex. PW 13/B; seizure memo of exhibits collected after the medical examination of prosecutrix as Ex. PW 14/A; personal search memo of accused as Ex. PW 14/B; seizure memo of the exhibits collected after the medical examination of accused as Ex. PW 14/C; seizure memo of blood sample of infant child Devika as Ex. PW 14/D; seizure memo of documents regarding the admission/treatment papers of infant child Devika collected from Balaji Action Medical Institute Action Medical Institute as Ex. PW 14/E; seizure memo of bones and ashes collected after the cremation of the infant child Devika as Ex.
State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 5 of 18 PW 14/F; seizure memo of documents pertaining to the delivery of child Devika as Ex. PW 14/G; FSL Report as Ex. PW 15/A. The prosecution evidence was closed vide order dated 23.2.2011.
7. The statement of accused was recorded u/s 313 Cr.P.C. wherein accused pleaded innocence and denied the incriminating evidence. The accused stated that he had sexual intercourse with the prosecutrix with her consent; he looked after Balbir Kaur, mother of the prosecutrix and her three children due to sympathy who started to live as a tenant; he had fell to the sexual advances made by the prosecutrix and had consented sex; and the prosecutrix also demanded share in his property and thereafter he was implicated in this case. The accused in defence evidence tendered Income Tax Returns for the year 2005-06 and 2006-07 as Ex. DX1, Ex. DX2 and the certified copies of the charge sheet u/s 173 Cr.P.C. vide FIR no.173/09 u/s 302 IPC as Ex. DX3.
8. Shri R.A. Yadav, APP for the State and Shri Anil Soni, Advocate for the accused heard. Record perused.
9. Section 375 IPC provides that a man is said to commit rape who has sexual intercourse with a woman under circumstances as described in section itself. Section 375 IPC reads as under :--
375.Rape -A man is said to commit "rape" who, State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 6 of 18 except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :--
First -Against her will.
Secondly --Without her consent.
Thirdly -With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly -With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly -With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly -With or without her consent, when she is under sixteen years of age.
Explanation. --Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception -Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Section 376 IPC prescribed punishment for rape.
State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 7 of 18
10. The APP argued that from the quality and quantity of evidence led by the prosecution and particularly in view of the testimony of PW-5 prosecutrix it is proved that the accused has committed sexual intercourse with the prosecutrix without her consent after administering sleeping pills and also threatened her to kill in case the said act of the accused was disclosed to anyone by the prosecutrix. The defence counsel argued that although the accused had sexual intercourse with the prosecutrix but the said intercourse was done by the accused only with the consent of the prosecutrix; the prosecutrix herself is an accused in a case registered vide FIR no.173/09 at PS Rohini and as such, the testimony of prosecutrix cannot be relied upon; from the cross examination of prosecutrix it is established that she was a consenting party in sexual intercourse with the accused and despite having the ample opportunity, she never disclosed the alleged forceful sexual intercourse by the accused with her before February, 2009. The defence counsel argued the presumption u/s 114A, Evidence Act is extremely restricted in its applicability and evidence/deposition of the prosecutrix must be examined that of an injured witness and her statement cannot be taken as gospel truth. The defence counsel also relied upon Jagannivasan V State of Kerala, 1995 Legal Eagle 1568; Surinder Kumar V State, 1996 Legal Eagle 2788; Rajoo & Ors. V State of M.P., 2009 (3) SCC (Cri) 751, Dharam Raj V State (Delhi Administration), 1985 (28) DLT 341, Kuldeep K. Mahato V State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 8 of 18 State of Bihar, 1998 Leal Eagle 885, Mohar Singh @ Pappu V State, 2002 Legal Eagle 671, Vimal Suresh Kamble V Chaluverapinake Apal S.P., 2003 Legal Eagle 2201.
11. The prosecution in support of its case examined PW-5 prosecutrix who supported the case of the prosecution. PW-5 deposed that her mother Balbir Kaur got married with accused after the death of her father and started to reside at house bearing no. E-20/147, Sector-3, Rohini belonged to the accused; Balbir Kaur expired on 30.5.07 due to brain hemorrhage and thereafter PW-5 along with her sister Manmeet Kaur continued to reside in the house of the accused; accused wanted to kept her as his wife and wanted to maintain sexual relation with her but she refused the said desire of the accused. As per the testimony of PW-5 prosecutrix in the month of February, 2008 she noticed blood on her clothes and came to know about her pregnancy and thereafter prosecutrix along with her sister Manmeet Kaur were thrown out by the accused from his house. PW-5 prosecutrix further deposed that she delivered a pre- mature female child Devika on 20.7.08 at Vijay Nursing Home, Sector-3, Rohini who expired on 23.7.2008. Thereafter the prosecutrix made complaint Ex. PW 5/A to the police and during investigation her statement u/s 164 Cr.P.C. Ex. PW 5/B was also recorded. The date of birth of prosecutrix is 25.11.1990. The prosecution to support the testimony of State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 9 of 18 PW-5 prosecutrix also examined PW-1 Babita who is friend of PW-5 prosecutrix and PW-5 Swarn Kaur maternal grandmother of the prosecutrix.
12. It is reflected from the testimony of PW-14 SI Subhash Meena that the blood samples of the accused and the prosecutrix as well as of infant child were collected and as per the Report Ex. PW 15/A prepared by PW-15 A.K. Srivastava, Assistant Director, Biology, GNA Unit, FSL, the accused and prosecutrix are the biological father and mother of deceased female child Devika.
13. The sexual intercourse between the accused and the prosecutrix is not disputed. The issue which needs consideration is that whether PW-5 prosecutrix established physical relation with the accused with her own consent or whether accused committed sexual interrogated with the prosecutrix after administering her sleeping pills and without her consent. The defence counsel to prove the element of consent on the part of PW-5 prosecutrix relied upon the cross examination of PW-5. PW-5 prosecutrix during the cross examination deposed that she had gone to the school up to February 2008 and in her class there were about 30 students; at that time her younger sister Manmeet Kaur were studying in Sarvodaya Vidyalaya, Sector-2, Rohini and her brother aged about 13-14 years was studying in Abhinav Public School at that time. As per the cross examination of PW-5 State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 10 of 18 prosecutrix, her menses were stopped then she told the said fact to accused in the month of February, 2008 and realized that she was pregnant. The defence counsel argued that despite the knowledge of her being pregnant, the prosecutrix did not disclose the said fact to any one including PW-3 Swaran Kaur till the delivery of child Devika. The defence counsel also argued that as per the cross examination of PW-5 prosecutrix the tuition fees and conveyance charges of the prosecutrix and her sister were paid by the accused till the time they remained in the house of accused and the prosecutrix used to serve food to the accused as and when the accused used to come late in the house. The defence counsel argued that if PW-5 prosecutrix was subjected to sexual intercourse without her consent or against her wishes by the accused in that eventuality the said fact would have been brought to the notice of other family members of the prosecutrix. The defence counsel has argued that the prosecutrix also involved in a murder case registered vide FIR no.173/09 at PS Rohini along with Amrik Singh; the testimony of PW-5 prosecutrix cannot be relied upon. The authorities cited by the defence counsel also perused. In Vimal Suresh (Supra) it was observed that the prosecutrix after the incident came back and went to sleep and also did not report the incident to her husband in the night; the prosecutrix in the night cooked food for family and went sleep and in the next morning she attended her work and in these circumstances the conduct of the prosecutrix was indicative of State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 11 of 18 consent. In case of Kuldeep K. Mahato (Supra) it was held that the prosecutrix despite having sufficient time and opportunity did not told the said fact to anybody which is indicative of consent. Similar observations were also given in other cases cited by the defence counsel.
14. The prosecution case is entirely resting upon the testimony of PW-5 prosecutrix once the sexual intercourse is admitted by the accused in his statement u/s 313 Cr.P.C. with the prosecutrix. As per the prosecution PW-5 was not a consenting party.
15. Consent is an act of reason and deliberation. A person who possesses and exercises sufficient mental capacity to make an intelligent decision demonstrates consent by performing an act recommended by another. Consent assumes a physical power to act and a reflective, determined, and unencumbered exertion of these powers. It is an act unaffected by Fraud, duress, or sometimes even mistake when these factors are not the reason for the consent. In the context of rape, submission due to apprehension or terror is not real consent. There must be a choice between resistance and acquiescence. If a woman resists to the point where additional resistance would be futile or until her resistance is forcibly overcome, submission thereafter is not consent.
16. To ascertain the consent on the part of PW-5 prosecutrix in State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 12 of 18 establishing physical relation with the accused, the testimony of PW-5 prosecutrix is relevant. The perusal of the testimony of PW-5 prosecutrix particularly the cross examination does not reflect that the PW-5 prosecutrix was a consenting party with the accused in establishing the physical relation with him. What is reflecting from the testimony of PW- 5 prosecutrix and other witnesses examined by the prosecution that PW-5 prosecutrix after the death of her mother Balbir Kaur on 30.5.2007, alongwith her sister Manmeet Kaur continued to stay in the house of the accused. PW-5 prosecutrix remained in the custody of accused after the death of her mother. The accused was also paying the tuition fee and other charges of PW-5 prosecutrix and her sister Manmeet Kaur after the death of Balbir Kaur and the accused continued to pay charges up to February, 2008. PW-5 prosecutrix also lost his father. The accused took the advantage of the prevailing circumstances of PW5 prosecutrix and desired to keep PW-5 prosecutrix as his wife and also wanted to maintain sexual intercourse with her. PW-5 prosecutrix refused to accede the desire of the accused. When in the month of February, 2008 the prosecutrix came to know about her pregnancy then she was thrown out by the accused from his house along with her sister. If there was an element of consent on the part of prosecutrix then the accused would not have thrown out the PW-5 prosecutrix along with her sister Manmeet Kaur from his house. PW-5 prosecutrix was subjected to the sexual intercourse by the accused after administering sleeping pills mixing State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 13 of 18 in the meals. If the prosecutrix did not tell the factum of the sexual intercourse by the accused with her it was due to the prevailing circumstances of the PW-5 prosecutrix. The testimony of PW-5 prosecutrix particularly the cross examination did not reflect that the PW-5 prosecutrix has ever consented with sexual intercourse with the accused. The PW-5 prosecutrix due to the financial constraints had no option except to stay with the accused in his house along with her sister Manmeet Kaur. The grand mother of the PW-5 prosecutrix was also not a lady of means. If the PW-5 prosecutrix submitted herself to the accused it was due to the apprehension and the threats given by the accused to PW-5 prosecutrix. PW-5 prosecutrix was not having any choice between resistance and acquiescence. It is also important to mention that the wife of the accused had already left his home as such, there were suitable conditions for the accused to subject the PW-5 prosecutrix to sexual intercourse. There was no free, voluntary consent of PW-5 prosecutrix in establishing sexual relationship with the accused. The testimony of PW5 prosecutrix cannot be disbelieved merely on the ground that the PW-5 prosecutrix herself is an accused in a murder case registered vide FIR no.173/09 at PS Rohini. If the prosecutrix is an accused in a murder case, it does not mean that the PW-5 prosecutrix has consented to maintain physical re lation with the accused. The testimony of PW-5 prosecutrix is appeared to be truthful, credible and can be safely relied upon.
State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 14 of 18
17. It is well settled that in rape cases the conviction can be solely based on the evidence of the victim, provided such evidence inspires confidence in the mind of the Court. The victim is not treated as accomplice, but could only be characterised as injured witness. It is also reasonable to assume that no woman would falsely implicate a person in sexual offence as the honour and prestige of that woman also would be at stake. However, the evidence of the prosecution shall be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that evidence of the victim may be supported by such corroborative material.
18. It was held in the case Madho Ram and another V The State of U.P., AIR 1973 SC 469 as under :--
[T] the prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasised that Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand.
19. The Supreme Court in case State of Maharashtra V State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 15 of 18 Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 summarised the legal position in following words :--
"A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 16 of 18 totality of the circumstances appearing on the record of the false case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
20. This legal proposition was also reasserted in case Dinesh @ Buddha V State of Rajasthan, AIR 2006 SC 1267 (1).
21. The defence of the accused as taken in statement u/s 313 Cr.P.C. also perused. In statement u/s 313 Cr.P.C. the accused stated that after the death of her mother, prosecutrix started to come late at night in different cars and also used to spent lot of time with one Amrik Singh; he had scolded the prosecutrix as it had a bad impact on other children; the prosecutrix had started to make sexual advances towards him and he had fell to the temptations of sexual advances as the wife of the accused was away to her parental home at Agra; and the accused and prosecutrix has consented sex. The accused also stated that the prosecutrix had became pregnant and she refused to abort the child on his suggestion. The accused also stated that as and when the prosecutrix demanded money for her luxurious life style, the money was paid by him and prosecutrix has also started to demand share in his property. The accused also stated that due to these reasons, he had thrown out the prosecutrix out of his house. The said defence taken by the accused does not inspire any confidence as this State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 17 of 18 is in contradiction of the defense taken in the cross examination of PW-5 prosecutrix. PW-5 prosecutrix has not been cross examined on the aspect that she used to come late in the night in different cars and she herself made sexual advances towards the accused and the accused fell on her advances. PW-5 prosecutrix denied the suggestion that he had sexual intercourse with the accused with her own consent.
22. After considering and examining the totality of evidence led by the prosecution there is no merit in the arguments advanced by the defence counsel that the accused and prosecutrix had consented sex with each other. The prosecution form the quality and quantity of the evidence proved that the accused had committed sexual intercourse with the prosecutrix against her wishes after administering sleeping pills and also threatened the PW-5 prosecutrix to kill in case the said fact was disclosed to anybody. Accordingly, the accused is convicted for the offence u/s 328/376/506 IPC.
Announced in open court (Dr.Sudhir Kumar Jain) on 15.3.2011 ASJ-01 (Outer) Rohini, Delhi. State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 18 of 18
IN THE COURT OF DR. SUDHIR KUMAR JAIN : ASJ-01 (OUTER), ROHINI, DELHI.
Sessions Case No: 84/08 FIR no: 450/08 PS: Rohini U/s: 328/376/506 IPC State Versus Vishnu Khandelwal, S/o Bhawan Dass, R/o E-20/147, Sector-3, Rohini, Delhi. ... Convict ORDER ON SENTENCE Shri R.A. Yadav, APP for the State and convict in person heard on quantam of sentence.
2. The convict stated that he is aged about 52 years; and is having one daughter aged about 12 years and one son aged about 15 years; his antecedents are clear and he is not a previous convict. The convict prayed for a lenient view. The APP stated that the convict has committed the rape with his step daughter which is a heinous offence; and the convict is not State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 19 of 18 entitled for any leniency from the court.
3. It was held in case Shivaji @ Dadya Shankar Alhat V State of Maharashtra, 2008 (4) RCR (Criminal) 202 as under :--
Proportions between crime and punishment is a goal respected in principles, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But infact, quite apart from those considerations that make punishment disproportionate punishment has some very undesirable practical consequences.
4. A woman, in our country, is in a disadvantageous position on account of several social barriers and impediments. Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by Nature so that the society may flourish State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 20 of 18 as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world. Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. Rape is the most hated crime. It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights to Life contained in Article 21.
5. In State of Punjab V Gurmit Singh, (1996) 2 SCC 384 it was observed as under :--
Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honor. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but also inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault-it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim; a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a greater responsibility while trying an accused State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 21 of 18 on charges of rape. They must deal with such cases with utmost sensitivity.
6. Balbir Kaur, mother of the prosecutrix after the death of her husband started to work and stay with the convict. The prosecutrix along with her sister Manmeet Kaur and brother Raman Singh also started to reside at the house of convict. Balbir Kaur, mother of the prosecutrix died on 30.5.2007 and thereafter the prosecutrix and her sister Manmeet Kaur continued to stay in the house of convict. The prosecutrix remained in the custody of the convict after the death of her mother till February, 2008. the convict committed sexual intercourse with the prosecutrix after administering sleeping pills in her meal. The convict take the undue advantage of the prevailing circumstances of the prosecutrix. The convict has committed rape with the prosecutrix despite being the fact that the prosecutrix was under his custody and care. The act of the convict is not only a crime but it is a sin towards the society as a whole.
7. The convict has committed such an offence which cannot be expected from a person in our society. The act of the convict shattered the dignity of the prosecutrix and violate her human and basic rights to lead the life coupled with dignity and honour. The convict does not deserve any leniency from this court, considering the manner in which the offence is committed.
State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 22 of 18
8. After considering the totality of circumstances, the convict is sentenced to RI for a period of two years along with fine of Rs.3000/- in default two months SI for offence u/s 328 IPC; RI for seven years along with fine of Rs.5000/- in default three months SI for the offence u/s 376 IPC and RI for a period of one years along with fine of Rs. 1000/- in default SI for one month for the offence u/s 506 IPC. All the sentences shall run concurrently. The benefit of Section 428 IPC be given to the convict. Case property, if any, confiscated to the State. A copy of this judgment be supplied to the convict free of costs. Committal warrants be issued. File be consigned to the record room.
Announced in open court (Dr.Sudhir Kumar Jain) on 15.3.2011 ASJ-01 (Outer) Rohini, Delhi. State V Vishnu Khandelwal FIR no. 450/08 PS Rohini Page No. 23 of 18