Delhi District Court
Sc No. 5/2008 1 State vs Amit Kumar on 19 January, 2010
SC No. 5/2008 1 State Vs Amit Kumar
FIR No. 488/2007
IN THE COURT OF SH. VINOD KUMAR
ADDITIONAL SESSIONS JUDGE, NORTH DISTRICT, DELHI
SC No. 5/2008
FIR No. 488/2007
PS Subzi Mandi
U/s 363/366/376 IPC
State Vs Amit Kumar
S/o Sh. Ramesh Kumar
R/o J10 Balmiki Colony, Aryapur,
Subzi Mandi, Delhi
Date of institution : 25.1.2008
Date of arguments : 19.1.2010
Date of judgement : 19.1.2010
JUDGEMENT
1. The prosecution case in brief is that the prosecutrix, who was born on 25.2.1992, was kidnapped by the accused on 20.11.2007 from the public toilet, Roshan Ara Bagh near the house of the prosecutrix forcibly and thereafter accused committed rape upon her. The police investigation started when the mother of the prosecutrix (PW7) reported the police about missing of the prosecutrix. On her statement Ex.PW7/A, the FIR was registered and SI Brij Mohan (PW10) made a search for the prosecutrix. He found the prosecutrix sitting on a bench in a park along with the SC No. 5/2008 2 State Vs Amit Kumar FIR No. 488/2007 accused. Accused was arrested and thereafter he took the prosecutrix as well as accused to Hindu Rao Hospital, where they were medically examined. Statement under Section 164 CrPC of the prosecutrix was got recorded. The school record regarding the date of birth was taken in possession. After investigation the charge sheet was filed.
2. On these accusations a charge under Section 363/366/376 IPC and under Section 506 IPC was framed against the accused to which accused pleaded not guilty.
3. In order to prove its case prosecution examined PW1 Dr. Shilpi Sachdeva who examined prosecutrix vide her report Ex.PW1/A. PW2 is the prosecutrix herself. PW3 Dr. Arun Aggarwal and PW4 Dr. Pramod Kumar examined the accused and found him capable of having sexual intercourse. PW5 Dr. Nasim Akhtar had also medically examined the prosecutrix. PW6 HC Yashbir Malik is Malkhana Mohrar. PW7 is the mother of the prosecutrix and testified that the date of birth of the prosecutrix is 25.2.1992 and that on 20.11.2007 the prosecutrix had gone to public toilet at about 8:00 am and thereafter she did not come back. Accordingly she lodged FIR.
4. PW8 Ct. Veerpal, PW9 Ct. Rajender Kumar, PW10 SI Braj Mohan, PW11 Lady Ct. Sapna, PW12 Ct. Kiran Pal Singh, PW13 ASI SC No. 5/2008 3 State Vs Amit Kumar FIR No. 488/2007 Kusum Lata had taken part in investigation. PW14 Ramkesh recorded the FIR. PW15 Inspector Veena Sharma is the Investigating Officer.
5. PW16 Sh. Ajay Pandey Ld. ACMM, Patiala House Courts had recorded the statement of prosecutrix Ex.PW2/A under Section 164 CrPC. PW17 Ms Madhu from Guru Nanak Girl's Senior Secondary School brought the admission record of the prosecutrix and testified that the prosecutrix had taken admission in 6th standard in the school on the basis of school leaving certificate issued by previous school. She testified that as per the record the date of birth of the prosecutrix was 25.2.1992.
6. In statement under Section 313 CrPC accused stated that the prosecutrix was in love with him and wanted to marry him and that she had told that she was above the age of 18 years. It is also stated that the school record does not show the correct date of birth of the prosecutrix. Accused did not lead evidence in defence.
7. Ld. Additional Public Prosecutor has read the testimony of the prosecutrix and submits that her testimony is reliable and is worthy of credence. Ld. Additional Public Prosecutor has drawn my attention to the testimony of PW7, the mother of the prosecutrix, wherein she testifies that the date of birth of the prosecutrix was 25.2.1992. Ld. Additional Public Prosecutor has drawn my SC No. 5/2008 4 State Vs Amit Kumar FIR No. 488/2007 attention to the testimony of PW17, who proved the school record, which also shows the date of birth to be 25.2.1992. Ld. Additional Public Prosecutor argues that on the date of offence i.e. 20.11.2007, the prosecutrix was aged 15 years 8 months and 25 days and that she had not attained the age of discretion. Ld. Additional Public Prosecutor argues that the medical and scientific evidence also supports the allegations of rape by the accused.
8. Sh. B. A. Faruki, adv. and Sh. Usman Chaudhary, advocates of the accused, on the other hand, have drawn my attention to the statement Ex.PW2/A of the prosecutrix, wherein she has testified that she was willing to marry the accused and that had consensual sexual intercourse. It is argued by Ld. Counsel that in view of such statement under Section 164 CrPC of the prosecutrix, the only question is as to whether the accused had attained the age of discretion. Ld. Defence Counsels have drawn my attention to the cross examination of the mother of the prosecutrix, wherein she testifies that the prosecutrix had completed 18 years on that very date i.e. 25.2.2009. It is argued that if this testimony is correct, it would mean that the prosecutrix was born on 25.2.1991, which could mean that on the date of her leaving the house, she was more than 16 years and 9 months of age.
SC No. 5/2008 5 State Vs Amit Kumar FIR No. 488/2007
9. I have considered the rival submissions. PW2, the prosecutrix in her examination in chief, has testified that she knew the accused prior to the incident and when in the morning she reached near the public toilet, accused put his hand on her mouth and took her to his house at Balmiki Basti and had committed rape upon her. She also testified that accused threatened her to keep quite otherwise he would kill her. This statement should be seen in view of her statement under Section 164 CrPC. In her statement, this witness has initially testified that accused had raped her but the prosecutrix appears to be apprehensive. Therefore Ld. Metropolitan Magistrate had assured her of protection if she tells the truth. On this assurance she stated to Ld. Metropolitan Magistrate that on 20.11.2007 at about 8:30 am accused Amit called her near public toilet and on his request she went to his house. He asked her as to whether she was willing to marry him. The prosecutrix further states in her statement under Section 164 CrPC that she consented to that and thereafter they both had consensual sexual intercourse. In view of this statement under Section 164 CrPC, the accusations of forcible intercourse without her consent and against her will becomes highly doubtful. Therefore I agree with Ld. Defence Counsel that the simple question before this court is to consider as to whether the prosecutrix had crossed the age of discretion, which SC No. 5/2008 6 State Vs Amit Kumar FIR No. 488/2007 is 16 years. Although PW17 has proved the school record which shows the age of the prosecutrix to be 25.2.1992, however she testified that she cannot tell the basis of date of birth on which the prosecutrix had taken the admission in previous school. Although PW7 has testified that her date of birth is 25.2.1992 but at the end of her cross examination she voluntarily testifies that the prosecutrix had completed 18 years on that very date of her testimony, which was recorded on 25.2.2009. This testimony creates a serious doubt in my mind about the exact date of birth of the prosecutrix. It is matter of common knowledge that getting one year less age in schools is not a uncommon phenomena in India. In these circumstances the prosecution case has become highly doubtful that on the date of offence the prosecutrix was less than the 16 years of age. Therefore prosecution case of the prosecutrix having been raped by the accused becomes highly doubtful. On account of the discussions stated above no case of abduction stands proved beyond reasonable doubt. Now this court is to see as to whether the prosecutrix was less than 18 years of age. Even as per the last lines of the cross examination of PW7, the prosecutrix had attained the age of majority i.e. 18 years on 25.2.2009. Therefore there is no doubt in my mind that on 20.11.2007, which is the date of offence, the prosecutrix was definitely less than 18 years of age.
SC No. 5/2008 7 State Vs Amit Kumar FIR No. 488/2007 As per the testimony of the prosecutrix, which is corroborated by her testimony under Section 164 CrPC, it was the accused himself, who had induced her to come out of the keeping of her parents. Therefore I am of the opinion that prosecution has been able to prove an offence under Section 363 IPC against the accused. Hence whereas I acquit the accused under Section 366/376 IPC, I convict him under Section 363 IPC.
Announced in the open court on 19.1.2010.
(VINOD KUMAR) Additional Sessions JudgeI North District, THC, Delhi SC No. 5/2008 8 State Vs Amit Kumar FIR No. 488/2007 IN THE COURT OF SH. VINOD KUMAR ADDITIONAL SESSIONS JUDGE, NORTH DISTRICT, DELHI SC No. 5/2008 FIR No. 488/2007 PS Subzi Mandi U/s 363 IPC State Vs Amit Kumar S/o Sh. Ramesh Kumar R/o J10 Balmiki Colony, Aryapur, Subzi Mandi, Delhi ORDER ON SENTENCE 20.1.2010 Present: Ld. Addl. P.P. for State.
Convicted from J.C. with counsel.
Arguments on sentence heard. Ld. Addl. Public Prosecutor argues that the convict has kidnapped the prosecutrix, who was of impressionable age and that in our orthodox society, such offences are not acceptable. Hence it is prayed that the convict may be awarded full doze of sentence.
On the other hand, Ld. Counsel for convict argues that convict himself was of 21 years of age and has a whole life before him. Since 21.11.2007, he is in judicial custody and it is prayed that a lenient view may be taken while sentencing him.
SC No. 5/2008 9 State Vs Amit Kumar FIR No. 488/2007 I have considered the facts and circumstances of the case and I sentence the convict to imprisonment for two years and a fine in the sum of Rs.3000/. In default of payment of fine the convict shall undergo simple imprisonment for three months. Benefit under Section 428 CrPC be also given to him. File be consigned to record room.
Announced in the open court on 20.1.2010.
(VINOD KUMAR) Additional Sessions JudgeI North District, THC, Delhi