Delhi District Court
Highlighted In State Of Karnataka vs . Puttaraja, 2004 (1) Supreme Court ... on 10 May, 2011
IN THE COURT OF ADDITIONAL SESSIONS JUDGE:SE01
DESIGNATED JUDGE : TADA/POTA/MCOCA: SAKET COURTS NEW DELHI
PRESIDED BY : SMT. PINKI
IN THE MATTER OF
SESSION CASE NO.22/10
FIR NO.158/09
P.S. JAIT PUR
UNDER SECTION 363/376 IPC
STATE
VERSUS
MONU KUMAR,
S/O SH. BRIJESH KUMAR,
R/O VILLAGE HARCHANDPUR,
DISTRICT MAINPURI, P.O. NAGLA JILA, U.P.
DATE OF INSTITUTION: 02.03.2010
DATE OF RESERVING ORDER : 10.05.2011
DATE OF DECISION: 10.05.2011
J U D G E M E N T
1. The FIR No.158/09 dated 08.08.2009 Ex.PW8/A under section 363 IPC P.S. Jait Pur was registered on the basis of statement of PW4 Sh. Khushi Ram, father of victim Ms. X. As per the complaint PW4 Sh. Khushi Ram has stated that on 07.08.2009 at about 11:00 AM his daughter Ms. X left the house without telling anyone while heand his wife had gone for their work. When they came back, they saw their daughter Ms. X was not at home. Neighbours told that Ms. X left at about SESSION CASE NO.22/10 Page 1/7 11:00 AM in the morning and she did not return. PW4 Sh. Khushi Ram had also shown suspicion on accused Monu Kumar as since then their neighbour Monu Kumar was also missing from his house and his parents were keeping mum and did not say anything.
2. On 04.11.2009 Smt. Maya, mother of the victim Ms. X came to the police station and told that she had information that accused was in his village Harchandpur along with her daughter Ms. X. PW9 ASI Raj Pal Singh along with PW6 Smt. Maya and her brother and police staff went to village Harchandpur. At the house of the accused, PW6 Smt. Maya identified her daughter and accused. They were taken into the custody. On 05.11.2009 the victim as well as accused were medically examined vide MLC Ex.PW1/A and Ex.PW10/A respectively. Bone age X ray of Ms. X was also conducted and as per bone age Xray report Ex.PW5/A her age was 14.5 - 14.9 years. Statement of victim Ms. X under section 164 Cr.P.C. Ex.PW7/B was recorded on 06.11.2009. The accused was arrested vide arrest memo Ex.PW11/A.
3. Accused Monu Kumar is facing trial for the offence punishable under section 363/376 IPC. Charge was framed vide order dated 01.04.2010.
4. The name of victim/prosecutrix is not indicated in view of position highlighted in State of Karnataka Vs. Puttaraja, 2004 (1) Supreme Court Cases
475. SESSION CASE NO.22/10 Page 2/7
5. Prosecution in all examined twelve witnesses i.e. PW1 Dr. Praveen Kumar, who has proved the MLC of victim Ms. X as Ex.PW1/A; PW2 Ms. X, the victim; PW3 Lady Constable Sanjogita, who along with the IO took the victim Ms. X to AIIMS for her medical examination; PW4 Sh. Khushi Ram, the complainant/father of victim Ms. X; PW5 Dr. Ankur Gadodia, who has proved the bone age Xray report of victim Ms. X as Ex.PW5/A; PW6 Smt. Maya, the mother of victim Ms.X; PW7 Sh. Saurabh Kulshreshtha, who has proved the statement of Ms. X recorded under section 164 Cr.P.C as Ex.PW7/B; PW8 Sub Inspector Satbir Singh who has proved the FIR Ex. PW8/A; PW9 Sub Inspector Rajpal Singh the initial investigating officer of this case who has also visited village Harchanpur and got recovered victim Ms. X and accused; PW10 Dr. Hari Prasad who has proved the MLC of accused; PW11 Constable Subhash who was with the investigating officer and PW12 Woman Assistant Sub Inspector Manju the investigating officer of this case who has proved various documents prepared during the course of investigation.
6. Statement of accused has been recorded wherein he has denied the case of prosecution and stated that he has been falsely implicated in this case by the police by fabricating statements, manipulating and tampering with the exhibits and obtaining false and incorrect reports. He has not committed any offence. The prosecutrix has love affair with him and she left her house with her own free will and she also developed physical relations with her but her parents are against their love affair and she was more than eighteen years old at that time. SESSION CASE NO.22/10 Page 3/7
6. The arguments addressed by Sh. Irfan Ahmad, Learned Additional Public Prosecutor for State and Sh. S.K. Saxena, Advocate Learned Amicus Curiae for accused have been considered. Record perused.
7. Ld. Additional Public Prosecutor for State has submitted that the prosecution has duly proved its case. On the other hand, Ld. Amicus Curiae for accused has submitted that accused as well as PW2 Ms. X were in love with each other. Parents of victim were against their love affair.
The perusal of record shows that PW1 Dr. Praveen Kumar, PW2 Ms. X, PW4 Sh. Khushi Ram, PW5 Dr. Ankur Gadodia, PW6 Smt. Maya, PW7 Sh. Saurabh Kulshrestha and PW10 Dr. Hari Prasad are the material witnesses in this case.
The perusal of record further shows that as regards the age of victim is concerned, she has not gone to school. There is no such birth certificate from the Municipal Corporation and government authority. As per MLC dated 05.11.2009 Ex.PW1/A her age has been written as fourteen years. In statement recorded under section 164 Cr.P.C. on 06.11.2009, the victim has stated her age as fourteen years. On 05.07.2010 when the testimony of victim was recorded before this court, she has stated her age as fifteen years. As per bone age Xray report Ex.PW5/A, the age of Ms. X has been shown as 14.514.9 years. Even PW5 Dr. Ankur Gadodia has deposed that there can be margin of 23 years on both sides despite the bone age X ray findings. Meaning thereby, if benefit of two years is given to the accused, the age SESSION CASE NO.22/10 Page 4/7 of victim Ms. X is 16.9 years. If we take upper limit and if the benefit of three years is given to the accused then the age of victim Ms. X is 17.9 years but in any case it is less than eighteen years and more than sixteen years.
8. The perusal of record further shows that PW2 Ms. X has deposed that on 07.08.2009 accused came to her room at about 11:00 AM and took her in a bus on the pretext of taking her to Noida for roaming. He made her to eat stuffing substance and after eating she became unconscious and accused took her to his native village in District Mainpuri where he kept her in his house in village. She has further deposed that accused committed rape upon her several times. She objected the accused not to commit rape upon her but he forcefully committed rape upon her. During the course of her crossexamination, she has admitted that she stayed with accused in Village Eta, Mainpuri for three months. She has further deposed that she did not raise alarm while accused was taking her to his native village. She has given explanation that she was not in senses. She has admitted that police officers had tutored her prior to recording of her statement under section 164 Cr.P.C. In this statement she has deposed that Monu had taken her on the pretext of roaming in the bus. She felt giddiness and she became unconscious. When she regained consciousness, she found Monu had brought her in Mainpuri. From his village, accused used to take her to different places but she did not know where he used to take her. She has asked Monu to arrange her conversation with her mother but he did not arrange. He did wrong act with her every time and used to threaten her. Due to his threats, she could not speak anything. After that he had brought her to his village where her mother came along with police and brought her back.
SESSION CASE NO.22/10 Page 5/7
9. PW2 Ms. X has admitted that she had friendship with the accused. She has deposed that on 07.08.2009 she along with accused left for Eta, Mainpuri at about 11:00 AM and reached there at about 04:00 AM, the next day. They went by bus. The bus was full of other passengers. She has further deposed that she used to wear clothes of daughterinlaw of aunt(chachi) of accused who was residing near the house of the accused. When her mother and police reached the house of the accused, where they were staying, she was sleeping. When she along with accused were about to reach Eta, Mainpuri, the aunt(bua) of accused met them in the way and she also accompanied them to the house of the accused. The aunt(bua) of accused was also residing near the house of the accused in Eta, Mainpuri in rickshaw. The distance between the bus stand, Eta, Mainpuri and the house of the accused is about fifteen minutes by rickshaw.
10. It is not clear why PW2 Ms. X has not raised alarm while travelling in the bus from Delhi to Eta, Mainpuri, when they reached after travelling pretty long time when they reached Eta, Mainpuri at 04:00 AM, the next day. Even on rickshaw she has travelled for fifteen minutes from Eta bus stand to house of the accused but she did not raise alarm. Her explanation that she was under threat is lame explanation. Keeping in view the fact that she herself has admitted that she had friendship with the accused, moreover, she remained in the company of the accused at his house in the village for three months. Three months' period is not a short duration when she could not get chance or an opportunity to come out of the clutches of the accused or to raise alarm or to tell/inform anyone including neigbhbours about SESSION CASE NO.22/10 Page 6/7 the fact that she was brought by the accused from Delhi against her wish or the fact that the accused had raped her several times. It is not possible for the accused to rape her several times without her consent and confine her in his house at village. No external injury mark has been found as per the MLC of victim Ex.PW1/A. It appears that it was the consent on the part of PW2 Ms. X as regards the allegations under section 376 IPC are concerned. As per bone age Xray report after giving benefit of two years her age is more than sixteen years, therefore, her testimony in respect of allegations of rape raises doubt in the story of prosecution.
11. As regards the offence under section 363 IPC is concerned, admittedly the accused and PW2 Ms. X were recovered from the house of the accused in village Eta, Mainpuri and as per testimony of PW2 Ms. X, PW4 Sh. Khushi Ram, PW5 Dr. Ankur Gadodia ad PW6 Smt. Maya, she is less than eighteen years of age. Ms. X was taken from the lawful guardianship of her father PW4 Sh. Khushi Ram
12. Accordingly, accused Monu Kumar is acquitted for the offence punishable under section 376 IPC but he is convicted for the offence punishable under section 363 IPC.
Put up for arguments on quantum of sentence today.
ANNOUNCED IN THE OPEN COURT
ON : 10th May, 2011 (PINKI)
DESIGNATED JUDGE
TADA/POTA/MCOCA
ASJ SE01/NEW DELHI
SESSION CASE NO.22/10 Page 7/7
IN THE COURT OF ADDITIONAL SESSIONS JUDGE:SE01
DESIGNATED JUDGE : TADA/POTA/MCOCA: SAKET COURTS NEW DELHI PRESIDED BY : SMT. PINKI IN THE MATTER OF SESSION CASE NO.22/10 FIR NO.158/09 P.S. JAIT PUR UNDER SECTION 363/376 IPC STATE VERSUS MONU KUMAR, S/O SH. BRIJESH KUMAR, R/O VILLAGE HARCHANDPUR, DISTRICT MAINPURI, P.O. NAGLA JILA, U.P. ORDER ON SENTENCE
1. Vide separate judgement announced today accused Monu Kumar is convicted for the offence punishable under section 363 IPC in this case FIR No. 158/09 P.S. Jait Pur.
2. I have heard Sh. Irfan Ahmad, Learned Additional Public Prosecutor for State and Sh. S.K. Saxena, Advocate Learned Amicus Curiae for the convict on the point of sentence.
SESSION CASE NO.22/10 Page 1/2
3. Learned Additional Public Prosecutor for State has prayed for deterrent punishment, however, Ld. Amicus Curiae for convict has prayed for lenient view. He has submitted that convict Monu Kumar is twenty one years old. He has studied upto VIII class. He used to do private job as waiter. He is in judicial custody since 05.11.2009. He is having old parents, one unmarried elder brother of twenty three years, three sisters of fifteen, thirteen and eleven years of age. He is not a previous convict.
4. Keeping in view the facts and circumstances of this case and young age of convict, I take lenient view. I order the convict to undergo the sentence of rigorous imprisonment of period of one year, six months and fifteen days and I also impose fine in sum of Rs.1,000/ and in default of payment of fine he shall undergo rigorous imprisonment for fifteen days for the offence punishable under section 363 IPC. Fine paid by the convict. The benefit of section 428 Cr.P.C. is also given.
Copy of judgement/order be supplied to the convict free of cost. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
ON 10th May, 2011 (PINKI)
ADDITIONAL SESSIONS JUDGE
SE01/SAKET COURTS/NEW DELHI
SESSION CASE NO.22/10 Page 2/2
FIR NO.158/09
P.S. Jait Pur
u/s 363/376 IPC
State V/s Monu Kumar
10.05.2011
Present : Sh. Irfan Ahmad, Ld. Addl. Public Prosecutor for State.
Accused in J/C.
Sh. S.K. Saxena, Advocate Ld. Amicus Curiae for accused. PW12 W/ASI Manju recorded. Her testimony has been concluded. No other PW is present or left. PE closed. Statement of accused recorded. Accused preferred not to lead evidence in his defence.
Final arguments heard.
Put up for orders today.
ASJ/ 10.05.2011
Present : As before.
Vide separate judgment announced today, accused Monu Kumar is convicted under section 363 IPC. Arguments on the point of quantum of sentence heard.
Put up for order on sentence today.
ASJ/ 10.05.2011 Contd............
2
Present : As before.
Vide separate order on sentence, convict is sentenced to undergo rigorous imprisonment for the period of one year, six months and fifteen days and I also impose fine in sum of Rs.1,000/ and in default of payment of fine he shall undergo rigorous imprisonment for fifteen days for the offence punishable under section 363 IPC. Fine paid by the convict. The benefit of section 428 Cr.P.C. is also given.
Copy of judgement/order be supplied to the convict free of cost. File be consigned to Record Room.
(PINKI) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI/10.05.2011