Delhi District Court
Sc No. 89/09 State vs Nagender Kishore @ Munna Page No. 1 Of 15 on 8 March, 2013
IN THE COURT OF ADDITIONAL SESSION JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET COURTS:
NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02406R0070052011
SESSIONS CASE NO. 89/09
FIR NO. 216/10
POLICE STATION JAITPUR
UNDER SECTION : 363/376 IPC
STATE
VERSUS
1. NAGENDER KISHORE @ MUNNA
S/O SH. RAM KISHORE,
R/O A2/691, J. J. COLONY, MADANPUR KHADAR,
NEW DELHI.
DATE OF INSTITUTION : 24.02.2011
DATE OF RESERVING ORDER : 26.02.2013
DATE OF DECISION : 08.03.2013
J U D G M E N T
Case of Prosecution:
1. On 12.10.2010 complainant Sh. Vinod Kumar S/o Sh. Kunda Ram came to police station Jaitpur and lodged a missing report of her daughter namely 'X' (name withheld to keep her identity confidential) and made suspicion upon one person namely Monu. Statement of complainant recorded SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 1 of 15 at the police station and case was registered under Section 363 of IPC.
Wireless messages were flashed, NCRB and Missing Person Squad were informed and prosecutrix was searched. On 25.11.2010, prosecutrix 'X' herself came to the police station and made statement that accused Nagender Kishore @ Munna took her to Shirdi, Maharashtra and they both got married there. Brother of accused Naveen came their and told them that a case has been registered against the accused Nagender Kishore. Accused Nagender Kishore along with prosecutrix came back to Delhi. Medical examination of prosecutrix was conducted at AIIMS Hospital. Accused Nagender Kishore was arrested and his medical examination was conducted at AIIMS Hospital. Prosecutrix was produced before CWC, Nirmal Chaya and statement under Section 164 of Cr.P.C was recorded. Statement of witnesses were recorded by the Investigating officer and after completion of investigation, charge sheet under Section 376/363 of IPC was filed against the accused in the court.
2. Since the offence under Section 376/363 of IPC is exclusively triable by the court of sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of sessions. Charge against the accused:
3. Prima facie case under section 376(1)/363 of IPC was made out against accused Nagender Kishore. Charge under Section 376(1)/363 of IPC was framed upon the accused on 06.04.2011 against which accused pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined twelve (17) witnesses in all. The brief summary of the deposition of the prosecution SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 2 of 15 witnesses is as under: Material Witnesses:
5. PW1 is the prosecutrix herself who deposed before the court that she was residing with her family and left her studies. She used to remain at home and used to accompany her mother to her office i.e. Dr. Prabhakar Medical Center. Accused Nagender Kishore used to reside near her house. One day, she was coming from the office of her mother when accused met her and asked her to accompany him. At first instance, she refused but upon insisting by accused she accompanied him who took her to Maharashtra. Accused took a room on rent and they both stayed there as husband and wife where accused made physical relations against her wish. After about 1 ½ months the brother of the accused came and informed them that her parents have lodged a complaint to the police against the accused. Thereafter, accused brought her to Delhi and she was produced before the police at PS Jaitpur. Mother of accused also came there and abused her, her mother and father. Accused was arrested and she was sent to NGO 'Prayas'. Subsequently, she was released from Nirmal Chaya in the custody of her father.
6. PW2 is Sh. Vinod Kumar, complainant in the present case who deposed that he was working as sweeper. On 10.10.2010 his daughter/prosecutrix had gone Dr. Prabhakar Medical Center where his wife used to work. Her daughter did not return from the Medical center. He made search for his daughter but could not find her. He lodged a complaint before the police and made suspicion upon the accused present in the court. On 25.11.2010, he came to know about the recovery of his daughter. On 2728.11.2010 he got released his daughter from Nirmal Chaya, Tilak Nagar, SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 3 of 15 New Delhi. He further stated that his daughter had studied in a private school and her date of birth was given to the school by his wife namely Smt. Sundri.
7. PW 3 is Smt. Sundri, mother of the prosecutrix who also deposed on the lines of PW2.
8. PW15 is Inspector Surender Singh, initial Investigating officer of the case who deposed that he made efforts to locate the prosecutrix. He got flashed the WT message and also collected the date of birth record from the school of the prosecutrix. On 25.11.2010, prosecutrix herself came to the police station and he recorded the statement of her. Prosecutrix was medically examined, sent to Prayas 'NGO', got recorded the statement of prosecutrix under section 164 Cr.P.C, arrested the accused vide his personal search memos, arrest memos, got the accused medically examined and proved all the memos in this regard. He stated that further investigation of the case was handed over to SI Rajeev Ranjan.
9. PW16 is SI Rajiv Ranjan, Investigating officer of the case who was entrusted the investigation of the case. He got extended the judicial custody of the accused Nagender Kishore and filed the charge sheet in the court.
Formal Witnesses:
10. PW4 is HC Isha Khan , Duty officer who recorded the FIR Ex.PW4/A and made endorsement on rukka Ex.PW4/B and proved the same on record.
11. PW 5 is Sh. Ramesh Chand Diwedi, President of Shri Ram Shikha Peeth who brought on record original admission register and the application form of the prosecutrix. He has duly proved on record admission SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 4 of 15 register, application form, school leaving certificate and the certificate showing the date of birth of prosecutrix Ex.PW5/A to Ex.PW5/D respectively.
12. PW6 is Sh. Nipun Awasthi, Ld. Metropolitan Magistrate who recorded the statement of prosecutrix under Section 164 Cr.P.C and proved on record application Ex.PW6/A, statement under section 164 Cr.P.C of the prosecutrix Ex.PW6/B, certificate appended to the statement Ex.PW6/C and application of the IO Ex.PW6/D.
13. PW8 is W/Ct. Mithlesh who joined the investigation with the Investigating officer, accompanied the IO while taking prosecutrix for her medical examination, got the prosecutrix medically examined and gave statement which was recorded by the Investigating officer.
14. PW 9 is Ct. Rajesh Kumar who joined the investigation with the Investigating officer, arrested the accused Nagender Kishore, got conducted the medical examination of accused and proved all the memos in this regard.
15. PW 10 is W/Ct. Yogitra who joined the investigation with the Investigating officer, obtained the custody of prosecutrix from Prayas (NGO) and produced her before Child Welfare Committee, got her statement recorded and produced the prosecutrix before Saket Court where Statement under section 164 of Cr.P.C was recorded and was lodged in Nirmal Chaya, Tihar Jail.
16. PW11 is ASI Jitender Singh who also deposed on the lines of PW10.
17. PW12 is ASI Rajpal Singh who deposed that he recorded the statement of complainant regarding kidnapping of his daughter, prepared rukka got the case registered and proved all the memos in this regard. Investigation of the case was assigned to Inspector Surinder. IO got flashed the WT Messages SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 5 of 15 and also made efforts to trace the prosecutrix but she could not be found.
18. PW13 is Ms. Charu Makkar who deposed that on 26.11.2010, prosecutrix was produced and she stated that she had left home on 10.10.2010 with accused Nagender and they both went to Shirdi where the accused had sexual intercourse with her and they returned back to Delhi on 25.11.2010. The prosecutrix/child was produced before the CWC where she refused to accompany her parents. PW13 further stated that prosecutrix statement under section 164 Cr.P.C was recorded wherein she stated that she wanted to marry the accused but when prosecutrix was produced before them on 29.11.2010 she was reluctant to her marriage with accused and stated that she will take the decision upon attaining the majority and expressed her willingness to go with her parents. PW13 has duly proved all the memos in this regard on record. Medical witnesses:
19. PW7 is Dr. Asit Kumar Sikary who proved on record MLC of accused Nagender Kishore Ex.PW7/A and opined that there was nothing to suggest that the accused was unable to perform sexual intercourse under normal circumstances.
20. PW14 is Dr. Shruti who correctly identified the handwriting and signatures of Dr. Amol Lunkad and proved on record MLC Ex. PW14/A prepared by Dr. Amol Lunkad. He further stated that Dr. Amol Lunkad opined that hymen of the prosecutrix was not intact.
Statement & Defence of accused:
21. Statement of accused under Section 313 Cr.P.C was recorded wherein he denied the case of prosecution and stated that he is innocent and has been falsely implicated in the present case. He stated that he had solemnized SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 6 of 15 marriage with prosecutrix with her consent in the Shirdi Temple, Sai Baba, Maharashtra. He further stated that documents produced from the school are false and fabricated. Accused further chose not to lead evidence in his defence.
22. I have heard Ld. Counsel for accused as well as Ld. APP for state and have carefully perused the record.
Arguments of Ld. APP for state:
23. It is argued by the Ld. Additional Public Prosecutor for the state that prosecutrix is minor and her consent is not material and from her deposition case under section 363/376 of IPC is made out against the accused. Arguments of Ld. Counsel for accused:
24. On the other hand, Ld. Defence counsel for accused argued that the prosecutrix has given the statement favouring the accused under section 164 Cr.P.C but in the court she resiled. It is stated that she has married the accused on her own. It is stated that there is no MCD certificate or previous school record nor any ossification test is done by the Investigating officer. Hence, the date of birth certificate has not been duly proved by the prosecution. He has cited the judgments of S.Varadarajan Vs State of Madras decided on 09.09.1964 , Lalta Prasad Vs State of M.P. decided on 11.01.1979 by the Hon'ble Apex Court, on record.
Conclusion:
25. Before appreciating the facts of this case,it is necessary to know the ingredients of the offence by resorting to the provisions of sec.375 read with sec.376 IPC. Section 375 Rape provides: " A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 7 of 15 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 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.
"Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from ten to eighteen years.
The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 8 of 15 knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
26. In MANU/SC/7825/2008 Moti Lal vs. State of M.P., the Apex Court had observed that : "a rapist not only violates the victim's privacy and personal integrity, but 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 court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. 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. "
SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 9 of 15
27. The two issues to be determined on the basis of evidence adduced by the prosecution are the age of the prosecutrix and whether she was a consenting party to the incident or not.
28. Age of the prosecutrix: The accused has been charged for committing rape upon the prosecutrix aged about 15 years. To prove the date of birth of the prosecutrix, the prosecution has examined PW5 Ramesh Chand Gupta who has produced the school record of the prosecutrix from Shree Ram Shikhsha Peeth, Madanpur Khadar, New Delhi. As per the school record, the date of birth of the prosecutrix is 23.04.1995. The parents of the prosecutrix as well as the prosecutrix were questioned with regard to the date of birth of the prosecutrix but had only given the relative age difference between the siblings of the prosecutrix. There is no bony age examination of the prosecutrix. However, the parents as well as the prosecutrix have denied the suggestion that the prosecutrix was major at the time of incident. The school certificate of the prosecutrix was based on the application form filed up by the parents of the prosecutrix. There is nothing on record to disbelieve the school record of the prosecutrix which was made way back in 2009 i.e. much prior to the date of incident. It cannot be comprehended that the same was falsely prepared by the parents of the prosecutrix in anticipation that the same may be required to prove the age of the prosecutrix in the present case.
In the case of Shah Nawaz Vs State of UP & Anothers (2011) 13 SCC 751, the apex court has held, though in the context of age determination of juvenile in conflict with law under J.J.Act but the principle holds good in case of age determination of prosecutrix, that entry of date of birth in school register or school leaving certificate or certificate of date of SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 10 of 15 birth from the school first attended or birth certificate of MCD are valid for determining the age. Similarly, in the case of Murugan @ Setu Vs State of Tamilnadu 2011 Crl. Law Journal 2948, the apex court has held that the documents made anti litem motam can be relied upon safely , when such documents are admissible under section 35 of Indian Evidence Act. In the said case of Murugan @ Setu ( Supra) , the apex court had quoted with approval the observations of Apex court in case of Madan Mohan Singh and others Vs Rajnikant and anothers , AIR 2010 SC 2933, wherein it was held that while considering such an issue and the documents admissible under section 35 of Indian Evidence Act, the court has a right to examine the probative value of the contents of the document. Authenticity of the entries may also depend upon whose information such entry stood recorded and what was his source of information, meaning thereby, that such documents may also require corroboration in some cases.
As per the statement of PW5, the date of birth was entered in school records on the information given by parents of prosecutrix. As the entry with regard to date of birth in the school record was made much prior to the date of incident, there is nothing to doubt the authenticity of this document. Accordingly, I hold on the basis of school record that the prosecutrix was minor on the date of offence.
29. Consent of the prosecutrix and other ingredients of the offence: The entire foundation to bring home the charge of rape rests on the statement of the prosecutrix who is minor. It needs no elaboration that a conviction can be based on the uncorroborated evidence of the prosecutrix if the same inspires confidence. It will be useful to refer to the observations of SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 11 of 15 Apex Court in the case titled as Radhu Vs State of Madhya Pradesh 2007, Crl. Law Journal 4704 wherein Hon'ble Supreme court has held that: " It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."
30. In the present case, in her deposition before the court the prosecutrix has specifically stated that the incident was of 2010 during the summer season when she was coming back from Dr. Prabhakar Medical SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 12 of 15 Center. The accused met him on the way and asked her to accompany him. Earlier she refused but he insisted and took her along with him and thereafter, they went to Maharashtra where they took a room on rent and remained there as husband and wife. It is stated by the prosecutrix in her deposition before the court that she had physical relations with the accused against her wish and after about 1 ½ months brother of the accused came and informed that her parents had lodged a complaint with the police upon which they returned to Delhi and he was produced in PS Jaitpur.
The above statement made by the prosecutrix in her deposition before the court is not in conformity with her statement recorded under section 164 of Cr.P.C since in her statement under section 164 Cr.P.C she has mentioned before the magistrate that on 10.10.2010 she went with the accused to Maharashtra on her own volition to visit Sai Baba Temple at Shirdi, where they married each other and thereafter stayed at Shirdi and on 23.11.2010 brother of accused came and told that her parents have implicated the accused in various police cases and that they should come to Delhi where he will arrange for their court marriage. She has deposed in the statement under section 164 of Cr.P.C that she wants to get married to the accused. Even in her cross examination in the court she has again stated that she can live with the accused as his wife if his parents agree to this proposal. These statements of the prosecutrix can lead to an inference that her testimony in the court that accused had taken her to Maharashtra and had intercourse with her against her wish is false. From these statements of the prosecutrix it is proved that she still wants to live with the accused as his wife and leads to unrebuttable conclusion that she had gone with the accused with her own willingness and had sexual SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 13 of 15 relations with him with her consent. But since the prosecutrix is minor, even if it is presumed that she had voluntarily gone with the accused or had relations with him, her consent is not material. The testimony of the prosecutrix on the material points that she was taken by the accused or that the physical relations were made with her by the accused are consistent and supported by the medical evidence. Even in defence the accused has not refuted these allegations. Accordingly, from the testimony of the prosecutrix it is proved that the accused had taken her away out of the lawful guardianship of her parents, without their consent and he had sexual intercourse with her.
31. Defence of the accused : The accused had stated in his statement under section 313 Cr.P.C that he has solemnized marriage with the prosecutrix with her consent at Shirdi Temple, Sai Baba and that the prosecutrix had gone along with him with her own consent. He has also stated that since the parents of the prosecutrix were not willing for this alliance that is why they lodged a false report with regard to the missing of their daughter/prosecutrix. Hence, it is clear from this defence of the accused that the accused had admitted that the prosecutrix had accompanied him to Maharashtra where they performed marriage without the consent of the parents of the prosecutrix.
Conclusion :
32. In view of the statement of the prosecutrix coupled with the medical evidence, statement of her parents, her production by the accused in the police station, coupled with the admission of the accused that the prosecutrix had gone with him and the fact that the prosecutrix is minor goes to prove that the prosecutrix was taken away by the accused out of the keeping of SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 14 of 15 the lawful guardianship of her parents without their consent and that the accused had committed rape upon the prosecutrix who is under 16 years of age by having sexual intercourse with her.
33. In view of the above said discussion, prosecution has been fully able to prove its case against the accused beyond the shadow of doubt. Accused is therefore, held guilty and convicted for the offence under section 363/376 (1) of IPC.
ANNOUNCED IN THE OPEN COURT ON 08.03.2013. ( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE 01/NEW DELHI 08.03.2013 SC No. 89/09 State Vs Nagender Kishore @ Munna Page No. 15 of 15