Delhi District Court
State vs . Sanjay on 2 February, 2008
1
IN THE COURT OF SH. NAROTTAM KAUSHAL ADDITIONAL
SESSIONS JUDGE; ROHINI COURTS; DELHI.
Date of Institution: 09.03.2005
Date of Reserving the Judgment 17.01.2008
Date of JUDGMENT. 30.01.2008
State Vs. SANJAY
S/O. Sh. Jagdish Prasad
R/o. U-131, Gali No.6,
Near Nag Mandir,
Prem Nagar-II,
Delhi.
Sessions case No.462/06.
FIR No. 1178/04.
P.S. Sultanpuri.
U/S 363/376/511 IPC.
JUDGMENT
1. Accused Sanjay has been chargesheeted by PS-Sultanpuri to face trial for offences punishable under section 363/376/511 IPC. 1.1 On receipt of DD No.31 dated 26.9.2004, HC Dalbir Singh alongwith WSI Shashi Lata took prosecutrix 'P' (real name 2 concealed) to Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi for her medical examination. Statement of Nar Singh father of the prosecutrix was recorded, who stated that the previous night at about 10.50 pm his daughter 'P' aged about seven (7) years had gone out of the house to answer the call of nature. She did not return for quite some time and he went out in search of her. He saw that a neighbour namely Sanjay was carrying away his daughter in his lap, towards 40 feet wide road. Complainant raised alarm and another neighbour Sant Raj also came out and cgased Sanjay. On this Sanjay left the girl behind and ran away. Sanjay had thus kidnapped his daughter with ill-intentions.
2. On the complaint avobesaid FIR under section 363 IPC was registered. During investigation statements of witnesses were recorded by the IO and accused was arrested. Statement of prosecutrix was recorded under section 164 Cr.P.C., and offence punishable under section 376/511 IPC was added. Accused was already in custody in FIR No.1418/04 for offence punishable under section 363/376/302/201 IPC. Accused was formally 3 rearrested in the present case and was medico-legally examined at SGM Hospital. Samples were collected and sent to the FSL. Finding sufficient material against the accused challan for offence punishable under section 363/376/511 IPC filed against the accused.
2.1 After compliance of provision of Sec. 207 Cr.P.C. the case was committed to the court of Sessions, which in turn was assigned to the predecessor of this court. 2.2 Vide order dated 07.04.2005 charge for offence punishable under section 363/376/511 IPC was framed against the accused. Accused pleaded not guilty and claimed trial. 3.1 Prosecution in support of its case had examined 15 witnesses. Prosecution evidence was closed by the Statement of Learned APP for the State, recorded on 01.1.2007. 3.2 Incriminating evidence was put to the accused, he denied 4 the entire evidence to be correct. He stated that he had been falsely implicated, but did not seek opportunity to lead defence evidence.
4.1 Prosecutrix 'P' has been examined as PW1. She has supported the prosecution case and also proved her statement under section 164 Cr.P.C. Complainant Nar Singh (PW2) proved his complaint. He proved recovery of his daughter from the custody of the accused. Sant Raj (PW10) deposed that on hearing alarm he rushed out and saw that Nar Singh was chasing a person. Nar Singh told him that Sanjay was taking away his daughter. Sh. G.S. Saini, PO, M.A.C.T., (PW12) has proved the statement of prosecutrix recorded by him under section 164 Cr.P.C. Dr. Deepti (PW3) has proved the gynecological examination of the prosecutrix. Dr. Mahender (PW4) had also medico-legally examined the prosecutrix. Dr. Naresh (PW7) and Dr. Ashish Jain (PW8) had medico-legally examined the accused. Remaining witnesses are officials who have proved various stages of investigation.
55.1 Sh. Sanjay Soni, learned APP on behalf of the State argued that the prosecution case is established from the testimony of prosecutrix (PW1) and her father Nar Singh (PW2). PW1 has deposed that she was enticed away by the accused and he had removed the undergarments of both and had done wrong act with her. Nar Singh (PW2) has proved the recovery of the prosecutrix from the possession of the accused. He further argued that no dispute was raised as regards the age of the prosecutrix, therefore, it shall be deemed to have been proved that she was about seven (7) years of age.
6.1 Sh. Dhirender Singh Learned Amicus Curiae on behalf of the accused, has argued that the prosecution has miserably failed to prove its case. It is pointed out that the occurrence is alleged to have taken place on 26.9.2004, whereas the statement of the prosecutrix was recorded by the Ld. MM on 08.12.2004. There was a delay of almost 2 ½ months which has not been explained at all. The evidence of Nar Singh (PW2) Sant Raj (PW10) do not corroborate each other. Mother of the prosecurtirx has been 6 withheld by the prosecution as a witness, though she was allegedly present at the time of her recovery. There is no age proof of the prosecutrix. The medical examination of the prosecutrix notices the hymen to be intact. There is no medical evidence of penetration.
7.1 I have heard Sh. Sanjay Soni, ld. APP for the State and Sh. Dhirender Singh ld. Amicus Curiae and with their assistance, I have perused the evidence on the record.
7.2 To establish the charge under section 363 IPC, prosecution has relied upon the testimony of Prosecutrix (PW1), Nar Singh (PW2) and Sant Raj (PW10). PW1 has deposed that she was had gone out of the house to answer the call of the nature, when the accused who was present outside offered her a toffy and then forcibly picked her up and ran away. She has further deposed that her mother and Sant Raj reached there, who rescued her from the custody of the accused. Nar Singh (PW2) has also deposed that his daughter had gone out of the house to answer the call of 7 the nature and when she did not return, he went out in search of her. When he came out of the house he saw the accused was running away with her daughter. He raised alarm and Sant Raj came out, they both chased the accused and he ran away leaving behind his daughter.
7.2 PW1 and PW2 have identified the accused Sanjay to be the person who had taken away the prosecutrix. Sant Raj (PW2) has only deposed that he rushed out on hearing the noise and saw that Nar Singh was chasing some person. He also chased the said person and found the prosecutrix who had been left behind by the said person. He was then told by Nar Singh that the said person was Sanjay.
7.3 On the basis of evidence as noticed above, it cannot be said that Sant Raj had seen the person who was taking away the prosecutrix. Prosecutrix and her father have of course, deposed that it was Sanjay who had taken her away. There is minor contradiction in their testimonies as regards the manner of 8 recovery. Prosecutrix (PW1) has deposed that her mother and Sant Raj had recovered her, whereas Sant Raj and Nar Singh have deposed that accused left her and ran away. In my opinion, this minor contradiction could have occurred because of the young age of the prosecutrix, who might have been under trauma. I, therefore, hold that accused Sanjay was attempting to take away the prosecutrix forcibly, and when he was chased by PW2 and PW10, he left behind the child and ran away. In my opinion, therefore, an offence for punishable under section 363 read with 511 IPC is established.
8.1 As regards the charge for offence punishable under section 376 read with 511 IPC, evidence of prosecutrix (PW1), Dr. Deepti (PW3) and Dr. Mahender (PW4) are the only relevant evidences. Prosecutrix (PW1) has deposed that accused removed his pant as well as hers, he then climbed over her, licked her face and did wrong act. This all was done by the accused when he was attempting to take her away. On being cross examined she has deposed that accused was 'doing bad thing' with her when her 9 father reached there. Dr. Deepti (PW3) had found hymen of the prosecutrix to be intact. Dr. Mahender (PW4) had not found any external injury on the prosecutrix. MLC Ex.PW3/A does not record any marks of external injury on local examination. FSL Report Ex.PW15/D does not detect presence of semen on the vaginal swab or undergarments of the prosecutrix. 8.2 On the basis of scientific evidence as noticed above it will be totally unsafe to hold that prosecutrix was subjected to sexual intercourse. Any penetration whatsoever in the case of seven (7) year old child, would have left telltail signs on medico-legal examination.
8.3 Though there is no documentary or medical evidence on record as regards the age of the prosecutrix, yet it can be safely held that she was about seven (7) years of age at the time of occurrence. Nar Singh (PW2) has deposed that she was born on 07.11.1997. There is no cross examination of this witness on this aspect. Not even a suggestion has been given as regards age. 10 Further my predecessor who examined the prosecutrix as PW1 has also given a certificate that the prosecutrix was of tender age and had dispensed with her examination on oath. Therefore, I am not of the opinion, that the prosecutrix was about seven (7) years of age at the time of occurrence which had taken place. 8.4 The oral testimony of the prosecutrix does not inspire confidence. Her first statement recorded by the Ld. MM is, of course, about 2 ½ months delayed, though, the FIR was lodged on the very next day. In the complaint made by the complainant Nar Singh, Ex.PW2/A on 27.9.2007 he had not indicated any sexual offence. Moreover, the version of the prosecutrix was that subjected to sexual offence even before having been taken away looks improbable. She has further deposed in her cross examination that her father had reached when the accused was "doing the bad thing". This is not as deposed by the fatehr Nar Singh (PW2). I am, therefore, of the opinion that the offence of rape or attempt to rape is not established beyond reasonable doubt. 11 9.1 Before parting with the judgment I must make a mention of the fact that the statement of the prosecutrix recorded under section 164 Cr.P.C. seems to have been tutored or influenced. The presence of complainant Nar Singh in the Chamber of the Ld. Magistrate at the time of recording of her statement was totally uncalled for and improper. It could be his presence which might have prompted the child to make a false statement. 9.2 No infirmity is pointed out in the investigation or the manner thereof. I shall, therefore, not discuss the evidence of official witnesses.
10.1 For the reasons stated above, I am of the opinion, that prosecution has failed to establish the charge for offence punishable under section 376/511 IPC. Accused is accordingly acquitted of the said charge. He is, however, held guilty for offence punishable under section 363/511 IPC. Announced in the open Court (NAROTTAM KAUSHAL) today i.e. 30.01.2008 ADDL. SESSIONS JUDGE ROHINI COURTS:DELHI.
12IN THE COURT OF SH. NAROTTAM KAUSHAL ADDITIONAL SESSIONS JUDGE; ROHINI COURTS; DELHI.
Date of Institution: 09.03.2005
Date of Reserving the Judgment 17.01.2008
Date of JUDGMENT. 30.01.2008
Date of Order on Sentence 02.02.2008.
State Vs. SANJAY
S/O. Sh. Jagdish Prasad
R/o. U-131, Gali No.6,
Near Nag Mandir,
Prem Nagar-II,
Delhi.
Sessions case No.462/06.
FIR No. 1178/04.
P.S. Sultanpuri.
U/S 363 r/w Sec. 511 IPC.
ORDER ON SENTENCE.
1.1 Vide judgment dt. 30.1.2008, convict Sanjay stands
convicted for offence punishable u/s 363 /511 IPC. 2.1 Learned Addl.PP prays for highest sentence under the statute as the convict had attempted to kidnap a seven years old girl .
132.2. Sh. Dhirender Singh, learned Amicus curaie has prayed for lenient sesntence on the ground that convict is a married person having one minor daughter and is the sole bread earner. It is also submitted that convict is in J.C. since Dec. 2004 and has already undergone more than 3 years of imprisonment. 3.1 I have heard Ld.Addl.PP and the Ld.Amicus curaie.
4.1. Considering the fact that convict has a family to support & is sole bread earner, I am inclined to take lenient view. He is sentenced to undergo imprisonment for the period already undergone. However, he shall be liable to pay a fine of Rs. 5,000/- , in default of payment of fine, he shall undergo SI for 3 months Benefit of Sec. 428 Cr.P.C. shall be available to the convict. Copy of judgment & order on sentence be given to the convict free of costs.
File be consigned to record room.
(Narottam Kaushal) Addl.Sessions Judge, RohiniCourts, Delhi Announced in open court Dt. 2.2.2008 14 Sessions case No.462/06.
FIR No. 1178/04.
P.S. Sultanpuri.
U/S 363/ 511 IPC.
2.2.2008
Pr. Substitued APP for the State .
Accused Sanjay in JC with A.C.
Vide separate order on sentence announced today, convict Sanjay is sentenced to undergo imprisonment for the period already undergone. However, he shall be liable to pay a fine of Rs. 5,000/- , in default of payment of fine, he shall undergo SI for 3 months Benefit of Sec. 428 Cr.P.C. shall be available to the convict. Copy of judgment & order on sentence be given to the convict free of costs.
File be consigned to record room.
(Narottam Kaushal) Addl.Sessions Judge, RohiniCourts, Delhi Announced in open court Dt. 2.2.2008 15 FIR NO.1178/04 STATE VS SANJAY PS-SULTANPURI.
30.01.2008.
Present: Accused in JC.
Substitute PP for the State.
Vide a separate judgment, accused is convicted for the offence punishable under section 363 read with 511 IPC. He is, however, acquitted for the offenece punishable under section 376 read with 511 IPC.
Now to come up for arguments on the point of sentence on 31.01.2008.
(NAROTTAM KAUSHAL) ADDL. SESSIONS JUDGE ROHINI COURTS: DELHI.
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