Delhi District Court
State vs . Manish on 9 September, 2011
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(NORTHWEST)04, ROHINI : DELHI
(Sessions Case No. 112/09)
Unique ID case No. 02404R0297382009
State Vs. Manish
FIR No. : 402/09
U/s : 363/366/376 IPC
P.S. : Jahangir Puri
State Vs. Manish
S/o Sh. Titu
R/o H1/479480, Jahangir Puri,
Delhi.
Date of institution of case25.09.2009
Date on which, judgment have been reserved27.08.2011
Date of pronouncement of judgment 08.09.2011
S.C No. 112/09 1/24
2
JUDGMENT :
In the present case on 25.7.2009, complainant Smt. Poonam came to the PS:Jahangir Puri and got recorded her statement vide DD No. 26A (Ex. PW9/B), wherein she stated that she was residing at the given address and her daughter i.e. prosecutrix aged about 16 years was missing since the night of 17.7.2009 and till then she has been tracing her daughter on her own but she could not be found and she further stated that her daughter i.e. prosecutrix had also taken away Rs.10,000/, two rings, chain and two pairs of clothes and she has suspicion that Manish, who was residing in their neighbourhood, had induced and taken away her daughter i.e. prosecutrix.
On the basis of the aforesaid DD No 26A, the present case was registered vide FIR No.402/09 at PS Jahangir Puri and the investigation of the case was assigned to ASI Ram Bhau.
During the course of investigation, IO got flashed WT messages and searched for the prosecutrix, but all in vain and thereafter on 01.8.2009, prosecutrix was produced before the police by her mother, who informed the IO that her daughter i.e. prosecutrix had herself come back to the house. Thereafter the prosecutrix was got medically examined at BJRM hospital and she was also produced before the court concerned and her statement u/s 164 Cr. PC was got recorded. Thereafter on 3.8.2009, S.C No. 112/09 2/24 3 accused Manish was arrested and he was also got medically examined at BJRM hospital. During the investigation, IO also recorded the statement of the witnesses, sent the exhibits to the FSL and after completion of the investigation, challan was prepared and filed before the court of concerned Ld. MM.
2. After committal, the arguments on the point of charge were heard and on the basis of the material on record, charge for committing the offences punishable u/s 363/366/376 IPC was framed against accused Manish, to which the said accused pleaded not guilty and claimed trial.
3. In support of its case, prosecution has examined fourteen witnesses i.e PW1 to PW14.
PW1 is the prosecutrix and prosecution is mainly relying upon her testimony to prove its case on record.
PW2 W/Ct. Anju deposed that on 1.8.2009, she joined the investigation in this case with ASI Ram Bhau when complainant Poonam produced the prosecutrix and recovery memo (Ex. PW1/A) qua her was prepared and thereafter she took the prosecutrix to BJRM hospital for medical examination, but she refused for the same S.C No. 112/09 3/24 4 and thereafter they came back to PS and later on prosecutrix was produced before the court for statement u/s 164 Cr. PC and thereafter she was sent to Nari Niketan. PW2 further deposed that she again joined the investigation in the present case on 12.8.2009, when prosecutrix was medically examined at BJRM hospital and after her medical examination, doctor handed over exhibits and sample seal which were seized by the IO vide memo Ex. PW2/A. PW3 Dr. Rajeev Kumar Singh has medically examined the prosecutrix on 12.8.2009 vide MLC Ex. PW1/D. PW4 Smt. Poonam is the mother of the prosecutrix and she deposed that on 17.7.2009 at about 9:00 PM when she was in the market her daughter i.e. prosecutrix left the house without any intimation and she inquired about her daughter from her relatives and neighbours but she could not found any clue of her. Thereafter, she went to PS Jahangir Puri and made complaint regarding missing of her daughter i.e. prosecutrix and on the basis of the same, the present case was registered. She further deposed that on 01.8.2009, her daughter came to her house and told that she had gone with Manish and thereafter she took her daughter to PS and handed over her to the police vide memo Ex. PW1/C and thereafter, accused was arrested vide memo Ex. PW4/A and his personal search was conducted vide memo Ex. PW4/B. PW4 also deposed that her daughter was taken to BJRM hospital where she refused for her S.C No. 112/09 4/24 5 internal examination, but later on she was medically examined.
PW5 HC Narender Kumar deposed that on 30.8.2009, he joined the investigation in this case with ASI Ram Bhau and on that day, on the pointing out of the complainant, accused Manish was arrested vide arrest memo Ex. PW4/A and his personal search was conducted vide memo Ex. PW4/B and thereafter he took the accused to BJRM hospital for medical examination and after his medical examination, doctor handed over the exhibits and sample seal which were taken into possession vide seizure memo Ex. PW5/A. PW6 Dr. Mamta SR (Gynae) examined the prosecutrix and she has proved her endorsement as Ex. PW6/A on the MLC Ex. PW1/D of the prosecutrix.
PW7 Dr. Raj Khanna has proved the endorsement, Ex. PW7/A made by Dr. Meenu on the MLC, Ex. PW1/A of the prosecutrix.
PW8 Sh. Neeraj Gaur, Ld. MM deposed that he was posted as MM at Rohini Courts on 1.8.2009 and on that day, he recorded the statement of prosecutrix u/s 164 Cr.PC and he has proved the said statement as Ex. PW1/A and his certificate regarding the correctness of statement as Ex. PW8/B. PW9 W/HC Kaushal has recorded the FIR No. 402/09 of this case and he has proved the computerized copy of the same as Ex. PW9/A. She has also proved the attested copy of the DD No. 26A as Ex. PW9/B. S.C No. 112/09 5/24 6 PW10 Dr. Sanjay Kumar has proved the MLC of accused Manish, prepared by Dr. Upinder as Ex. PW10/A. PW11 Sh. R.K. Gupta, SubRegistrar (Birth & Death) produced the record pertaining to the birth of prosecutrix and deposed that as per record, the date of birth of prosecutrix was 17.4.1994 and date of registration was 22.4.1994 and he has proved the relevant entry in Register of Birth in this regard as Ex. PW11/A. He has also deposed that the date of birth of prosecutrix was 17.4.1994 and same was correct as per their office record.
PW12 Ct. Samandar Singh took the exhibits of this case to FSL, Rohini on 7.9.2009 vide RC No. 184/21/09.
PW13 HC Rajesh was working as MHCM at P.S: Jahangir Puri when on 3.8.2009 and 12.8.2009, the exhibits of this case were deposited in the Malkhana by the IO and he made entries in this regard in register no. 19 and has proved the copies of the same as Ex. PW13/A and Ex. PW13/B. He further deposed that on 7.9.2009, exhibits of this case were sent to FSL, Rohini through Ct. Samandar Singh vide RC No. 184/21/09 (Ex. PW12/A) and acknowledgment (Ex. PW12/B) and entry in register No. 19 in this regard was Ex. PW13/C. PW14 ASI Ram Bhau is the IO of this case and he deposed that on 25.7.2009, DO handed over him DD No. 26A (Ex. PW9/B) and computerized copy S.C No. 112/09 6/24 7 of FIR (Ex. PW9/A) for investigation and after receiving the said documents, he got flashed WT message (Ex. PW14/A) regarding missing of the prosecutrix and searched for the girl, but all in vain. He further deposed that on 01.8.2009, he alongwith W/Ct. Anju went in search of the prosecutrix, when complainant Poonam met them and produced the prosecutrix and informed that she had come back herself to her house and thereafter the custody of the prosecutrix was taken vide memo Ex PW1/C and prosecutrix was sent to BJRM hospital alongwith her mother and W/Ct. Anju where her mother refused for the internal examination of the prosecutrix. PW14 deposed that thereafter, the statement of prosecutrix u/s 164 Cr. P.C was recorded and copy of the same was Ex. PW1/B. He also deposed that on 3.8.2009, at the instance of the complainant, accused Manish was arrested vide arrest memo Ex. PW4/A and his testimony regarding arrest of accused Manish and his medical examination is almost on the similar lines as that of PW5 HC Narender Kumar. In addition to that, PW14 deposed that on 12.8.2009, he moved an application (Ex. PW14/B) before the concerned Ld. MM for medical examination of the prosecutrix and the same was allowed and thereafter prosecutrix was got medically examined at BJRM hospital through W/Ct. Anju and after her medical examination, doctor handed over exhibits and sample seal which were seized vide memo Ex. PW2/A. He further deposed that on 07.09.2009, exhibits of this case were sent to FSL, Rohini through Ct. Samandar S.C No. 112/09 7/24 8 Singh. He has also proved the FSL reports as Ex. PW14/C and Ex. PW14/D and deposed that after completion of the investigation, challan was prepared and presented before court.
4. After recording of prosecution evidence, statement of accused u/s 313 Cr.P. C. was recorded, wherein all the incriminating evidence was put to the accused, which he denied as incorrect. Accused Manish claimed to be innocent and stated that he wanted to lead evidence in his defence.
In his DE, accused Manish has not led any evidence and on 2.6.2011, he made the statement that he does not want to lead any evidence in his defence and prayed that his DE may be closed and accordingly, DE on behalf of accused Manish was closed vide order dated 02.6.2001.
5. I have heard arguments put forward by Ld. Addl. PP for State and Ld. Defence Counsel for the accused and have carefully gone through the record of the case.
6. It has been submitted by Ld. Addl PP that in view of the evidence adduced on record, in particular the testimony of PW1 ( prosecutrix ), the prosecution S.C No. 112/09 8/24 9 has been successful in proving on record the guilt of the accused beyond the reasonable doubt. It is further submitted that prosecution has been successful in proving on record that on the day of the incident, accused kidnapped the prosecutrix, a minor aged about 15 ½ years from out of the keeping of her lawful guardian with intent to force or seduce her to marry him and during the period from 17.7.2009 till 01.8.2009, accusedManish had sexual intercourse with the prosecutrix against her wishes and without her consent. Ld. Addl. PP also submitted that in view of the evidence and material brought on record by the prosecution, the guilt of the accused have been proved beyond reasonable doubts and he prayed that accusedManish may be convicted of the charged offences.
On the other hand, it has been submitted by the Ld. defence counsel that the prosecution has miserably failed to prove the guilt of accusedManish beyond reasonable doubts. It is further submitted that from the material on record, no offences u/s363/366/376 IPC were made out against the accused Manish. It is also submitted that accused Manish have been falsely implicated in this case at the instance of family members of the prosecutrix, although he had nothing to do with the offences alleged in the present case. Ld. defence counsel submitted that prosecution was mainly relying upon the testimony of PW1, however her testimony lacks credibility as she resiled from her earlier statement and was cross examined by Ld. Addl. PP for state. It is further submitted that there were material contradictions / discrepancies and S.C No. 112/09 9/24 10 improvements in the testimony of PW1( prosecutrix) and other prosecution witnesses, which were fatal to the case of the prosecution. It is submitted that the evidence brought on record by the prosecution was self contradictory and there were various loopholes in the testimonies of various prosecution witnesses, which entitles the accused to the benefit of doubt. Ld. defence counsel further submitted that the prosecution has miserably failed to prove the guilt of the accused on record, beyond the reasonable doubts and he prayed that the accused Manish may be acquitted of the charged offences.
In support of his contentions, Ld. defence counsel has relied upon the case law i.e judgment dated 20.8.2010 passed by the Hon'ble High Court of Delhi in Crl.Appeal No. 958/2009.
7. I have carefully considered the submissions made by Ld. Addl. PP and Ld. defence counsel and have carefully gone through the record of the case. I have carefully considered the evidence adduced on behalf of the prosecution. I have also carefully perused the case law relied upon by the Ld. defence counsel.
8. In the present case, accusedManish has been charged for committing the offences punishable u/s 363/376/366 IPC.
S.C No. 112/09 10/24 11
In brief, the case of the prosecution is that on 17.7.2009 at about 9:00 PM at G485, Jahangir Puri, Delhi within the jurisdiction of PS Jahangir Puri, accused Manish kidnapped the prosecutrix, a minor out of the keeping of her lawful guardian i.e. her mother without the consent of such guardian with intent to force or seduce her to marry him. It is also stated that from 17.7.2009 till 01.8.2009 while prosecutrix, a minor aged about 15 ½ years was in his custody, accused had sexual intercourse with the prosecutrix against her will and without her consent.
9. In order to prove its case on record, the prosecution is primarily relying upon the testimony of PW1 ( prosecutrix ).
In order to properly appreciate the testimony of PW1 (prosecutrix), it would be appropriate to reproduce the relevant portions of her testimony.
In her examination in chief, PW1 i.e. prosecutrix deposed that on 17.7.2009 at about 8:00 P.M., she was present in her house alone and no other family member was present at that time when she was called by accused Manish telephonically and accordingly she went to meet him at Adarsh Nagar. She further deposed that accused Manish asked her to accompany him and accordingly she accompanied him and thereafter, he asked her to fetch her clothes and accordingly she went back to her house and brought her clothes and Rs.4,000/and thereafter, she and S.C No. 112/09 11/24 12 accused Manish went to Ambala by bus route. PW1 deposed that her family came to know about their stay in Ambala and thereafter accused Manish and she went to Mumbai by train and stayed there for some days and thereafter they came back to Delhi and stayed at the house of Manish at Jahangir Puri for about two days. She further deposed that as the family members of Manish knew about the registration of the present case, they asked her to go back to her mother but she was afraid and she went to the house of her maternal uncle (Mamaji) at Mahendra Park, where her mother alongwith police came and she was taken to PS: Jahangir Puri where her statement was recorded by the police and thereafter, she was sent to BJRM hospital for medical examination, where she refused for her internal examination vide endorsement on the MLC Ex. PW1/A. PW1 ( prosecutrix) deposed that her statement u/s 164 Cr. PC was recorded by the Ld. MM and the same was Ex. PW1/B. She further deposed that after recording of her statement u/s 164 Cr. PC, her mother refused to take her custody and accordingly she was sent to Children Home and thereafter, her mother came to meet her at Children Home and she felt sorry to her and she agreed to take her back to the house. PW1 (prosecutrix) also stated that she made a false statement before the police and the Ld. MM as she was asked by the father of accused Manish to do so and he had also asked her to make false allegations against her mother.
S.C No. 112/09 12/24 13
Since this witness PW1 (prosecutrix) was resiling from her earlier statement, Ld. Addl. PP for state sought and was given permission to cross examine this witness.
In her cross examination by the Ld. Addl. PP, PW1 (prosecutrix) deposed that in her statement recorded u/s 164 Cr. PC (Ex. PW1/B) before the Ld. MM, she had stated that after reaching Mumbai, she and Manish got married in a Mandir and after marriage, they stayed in a rental accommodation as husband and wife and also had physical relationship with her consent. She further admitted that on 12.8.2009, she was again taken to BJRM hospital where she gave consent for her internal examination vide her endorsement encircled Red on the MLC, Ex. PW1/D. She also admitted that at the time of incident, her age might be 15 ½ years and accused Manish induced her and took her to Ambala and thereafter to Mumbai and after marrying her, he made physical relations with her against her wishes and without her consent. PW1 ( prosecutrix ) deposed that during her stay with accused from 17.7.2009 to 01.8.2009, accused Manish had made physical relation with her on three occasions with her consent.
Thereafter, this witness i.e. PW1 ( prosecutrix) was cross examined by Ld. defence counsel and in her said crossexamination, PW1 ( prosecutrix ) stated that she knew accused Manish for the last about one year as he used to reside S.C No. 112/09 13/24 14 in the vicinity of her house and her mother was not aware about meetings with the accused. She further admitted that in November, 2008, she had a quarrel with her mother and she left the house and went to the house of her Mama and informed about the fact of quarrel with her mother to her Mami and she made a telephonic call to accused Manish, who was at Dehradun at that time and her Mami did not ask accused Manish to marry her in her presence, however some talks about their marriage took place. PW1 (prosecutrix) admitted that at that time accused Manish asked for sometime so that he can stand on his own before he gets marriage. She further admitted that she wanted to marry with accused Manish, however she denied the suggestion that accused Manish asked her to complete her studies before they marry. In her cross examination by the Ld. Defence counsel, PW1 (prosecutrix) stated that after her leaving the house in the month of November, 2008, her mother became aware about her love affair with accused Manish. She admitted that her mother was agreeable to their marriage after the incident in the present case took place. She further stated that now she did not want to marry with accused Manish, however prior to the registration of the present case and for a few days thereafter, she was agreeable to marry with accused Manish. She admitted that after she came back from Nari Niketan, she changed her mind and decided not to marry with accused Manish. PW1 (prosecutrix) admitted that she came back on 1.8.2009 and her statement was recorded S.C No. 112/09 14/24 15 by ASI Ram Bhau and in the said statement she had not stated that on 17.7.2009 at about 8:00 P.M., she was present in her house alone and no other family member was present at that time and she was called by accused Manish telephonically and accordingly she went to meet him at Adarsh Nagar and he asked her to accompany him and accordingly she accompanied him or that thereafter, he asked her to fetch her clothes and accordingly she went back to her house and brought her clothes and Rs. 4,000/. In her crossexamination, PW1(prosecutrix) further deposed that she has not stated in her statement to the police that thereafter, she and accused Manish went to Ambala by bus route and her family came to know about their stay in Ambala and thereafter accused Manish and she went to Mumbai by train. She also deposed that she had not stated that after coming back to Delhi, accused Manish rang his father and his father came and asked them why they did so and thereafter, they stayed at the house of accused Manish at Jahangir Puri for about two days and as the family members of Manish knew about the registration of the present case, they asked her to go back to her mother but she was afraid and she went to the house of her maternal uncle (Mamaji) at Mahindra Park. PW1 (prosecutrix) deposed that she had stated in her statement to the Ld. MM that she had made a false statement before the police at the instance of father of accused and in this regard, she was confronted with her statement (Ex. PW1/B) u/s164 Cr. PC, where it was not so recorded. PW1 stated that her age in the MLCs Ex. PW1/A & Ex.PW1/D was mentioned to be 16 years S.C No. 112/09 15/24 16 and her age was 16 years at that time and she had not told false age to the doctor. She further admitted that after their return from Mumbai, she did not stay at the house of accused and she in fact stayed in the house of some relative of accused Manish and she further admitted that she visited her mother during those two days. She denied the suggestion that her mother wanted that she should get marry to Manish after their return from Mumbai and volunteered to state that she forced her mother to agree to the same. PW1 (prosecutrix) deposed that she has not stated in her statement to the police that accused Manish had physical relations with her and she further deposed that she had not stated to the IO that she was making the said statement before him at the instance of father of accused and she has also not stated to the Ld. M.M that she had made the statement before the police at the instance of father of accused. In her cross examination by the Ld. Defence counsel, PW1 (prosecutrix) denied the suggestion that accused Manish never had any physical relationship with her. She further deposed that she stayed at the house of friend of accused Manish at Mumbai and the said house was built up in the area of 25 sq. yds., and it consisted of one room and the said friend of the accused Manish also used to stay in the same room and some ladies and children were also residing with her, but she do not know whether they were the members of his family or not. She further stated that during their stay in the said room, she and Manish used to go out to visit various places and they used to visit those places by train , by bus and some time even on foot, S.C No. 112/09 16/24 17 but she was not able to recollect the name of the places where accused Manish used to take her in Mumbai. PW1 ( prosecutrix) stated that she did not inform the friend of accused Manish and other family members that she and Manish had ran away from their house. She denied the suggestion that Manish never had any physical relations with her in Mumbai. PW1 also denied the suggestion that her family members were wanting that her marriage should be solemnized with Manish but on refusal of Manish, she alongwith her family members implicated Manish in this case.
10. In view of the above, it is clear that PW1 (prosecutrix) has made inconsistent and contradictory statements and she has continuously changed her stand in her examinationinchief, crossexamination by Ld. Addl. PP for State and in her cross examination by the Ld. defence counsel. Even otherwise, the testimony of prosecutrix (PW1) is not of much use to the prosecution in the instant case as there is nothing on record to show that accused Manish had 'enticed' or 'taken away' the prosecutrix. In fact, from the material on record, it appears that the prosecutrix left her house on her own and went to Ambala and thereafter to Mumbai alongwith accusedManish with her own free will, because had that not been the case, the prosecutrix must have objected or resisted or raised alarm, while accompanying S.C No. 112/09 17/24 18 the accused. In fact, in her examinationinchief, PW1 ( prosecutrix) stated that she and accusedManish went to Ambala by bus and thereafter her family came to know about their stay in Ambala and she and accused Manish went to Mumbai by train. PW1 ( prosecutrix) further stated that during their stay in the said room at Mumbai, she and accused Manish used to go out to visit various places and they used to visit those places by train , by bus and some time even on foot. PW1 also stated that she did not inform the friend of accused Manish and other family members that she and Manish had ran away from their house. Apart from this, in her statement ( Ex. PW1/B) u/s 164 Cr. PC, prosecutrix ( PW1) has stated that accused Manish has never induced her to go with him and she went alongwith him on her own accord. In addition to this, from the material on record it appears that there was a love affair between the prosecutrix and accused Manish as was evident from her deposition in the court . In her testimony, the prosecutrix ( PW1) stated that she knew accused Manish for the last about the last about one year as he used to reside in the vicinity of her house and her mother was not aware about meetings with the accused. She further admitted that in November, 2008, she had a quarrel with her mother and she left the house and went to the house of her Mama and informed about the fact of quarrel with her mother to her Mami and she made a telephonic call to accused Manish, who was at Dehradun at that time and her Mami did not ask accused Manish to marry her in S.C No. 112/09 18/24 19 her presence, however some talks about their marriage took place. PW1 (prosecutrix) admitted that at that time accusedManish asked for sometime so that he can stand on his own before he gets marriage. She further admitted that she wanted to marry with accused Manish, however she denied the suggestion that accused Manish asked her to complete her studies before they marry. PW1 (prosecutrix) admitted that her mother was agreeable to their marriage after the incident in the present case took place and prior to the registration of the present case and for a few days thereafter, she was agreeable to marry with accused Manish. Further, in her statement ( Ex. PW1/B) u/s 164 Cr. PC, prosecutrix has also stated that Manish was living in her neighbourhood and they were having a loveaffair and on 17.7.2009, she decided to leave her house with Manish and accordingly, they left for Mumbai. In these circumstances, in view of the material on record, it is clear that there was no ' taking' or 'enticing ' of the prosecutrix as has been contemplated u/s 361 of the IPC and as is necessary for constituting of an offence punishable u/s363 or u/s 366 of the IPC.
In the case titled as " Shyam and another Vs. State of Maharashtra (reported as AIR 1995 SC 2169)", it has been laid down by the Hon'ble Supreme Court of India that : " It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump S.C No. 112/09 19/24 20 down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no taking out of the guardianship of her mother. The culpability of neither Shyam, A1 nor that of Suresh, A2 in these circumstances appears to us established. The charge against the appellant/accused under Section 366 IPC would thus fail. Accordingly, the appellants deserve acquittal ".
Further, in the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", while distinguishing between " taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that : " There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing , voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the S.C No. 112/09 20/24 21 accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian ".
In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. In view of the material on record, it appears that prosecutrix was willing and consenting party and it seems that everything has happened with her sweet will. In these circumstances, as far as factum of kidnapping of prosecutrix from her lawful guardianship by accused Manish is concerned, the prosecution has not been able to prove the same and as such accused Manish has become entitled to acquittal in respect of the offences punishable u/s 363 IPC & u/s 366 IPC. Accordingly, I acquit accusedManish of the offences punishable u/s 363 IPC & u/s366 IPC, giving him the benefit of doubt.
11. In the present case, the accusedManish has also been charged for committing the offence punishable u/s376 IPC.
In the instant case, from the above discussion, it is clear that the prosecutrix was a consenting party and everything happened with her as per her own sweet will. Now the question arises as to whether at the relevant time, the prosecutrix was below 16 years of age as in that event her consent would be S.C No. 112/09 21/24 22 immaterial and in such circumstances consensual sex by accused Manish with her would tentamount to 'rape' as was evident from the clause sixthly of section375 IPC, which provides that a man is said to 'commit rape' if he has sexual intercourse with a woman, with or without her consent, when she is under 16 years of age.
It has been argued on behalf of the prosecution that as prosecutrix was under 16 years of age at the time of incident, the offence of rape was made out against the accusedManish, whereas on the other hand it has been submitted on behalf of the accusedManish that prosecution has not been able to prove conclusively that prosecutrix was under 16 years of age at the time of incident and as such the benefit qua age should go in favour of the accused Manish.
In the present case, from the material on record, it is clear that there was sexual relationship between the prosecutrix and accusedManish . The factum of the sexual relationship was also evident from the MLC (Ex, PW1/D) of the prosecutrix, wherein it has been mentioned that her hymen was torn and easily admitting two fingers. Further, prosecution has also specifically stated in her testimony that after reaching Mumbai, she and Manish got married in a Mandir and after marriage, they stayed in a rental accommodation as husband and wife and also had physical relationship with her consent. PW1 ( prosecutrix) further deposed that during her stay with accused from 17.7.2009 to 01.8.2009, accused Manish had made physical relation with her on three occasions with her consent and all these facts clearly indicates the S.C No. 112/09 22/24 23 existence of the sexual relationship between the prosecutrix and the accusedManish. From the earlier discussion, it is also clear that there was consensual sex between the prosecutrix and accused. Now the only relevant fact that is required to be seen is as to whether the prosecution has been able to prove on record that the prosecutrix was under 16 years of age at the relevant time so as to constitute the aforesaid consensual sex between the accused and prosecutrix as 'rape' in terms of clause sixthly of section375 IPC. In this regard, the prosecution has examined PW11 Sh.R.K.Gupta SubRegistrar ( Birth & Death ), who deposed that as per record, the date of birth of prosecutrix was 17.4.1994 and date of registration was 22.4.1994 and he has proved the relevant entry in Register of Birth in this regard as Ex. PW11/A. He has also deposed that the date of birth of prosecutrix was 17.4.1994 and same was correct as per their office record. As per the deposition of PW11, it is evident that date of birth of prosecution was 17.4.1994, which implies that prosecutrix was under
16 years of age at the relevant time i.e during the period of her stay with accused Manish from 17.7.2009 till 01.8.2009. In these circumstances, it is clear that at the relevant time, the prosecutrix was below 16 years of age and as such, accused Manish has rendered himself liable for the offence punishable u/s 376 IPC.
Ld. defence counsel has relied upon the case law i.e Judgment dated 20.8.2010 passed by the Hon'ble High Court of Delhi in Crl. Appeal No. 958/2009, however the said case law was not applicable in the present case as the fact and S.C No. 112/09 23/24 24 circumstances of the present case were different from the fact and circumstances of the cases discussed in the said case law and in my considered opinion, the aforesaid case law was not of any help to the accused in the instant case.
12. Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has been successful in bringing home the guilt against the accused Manish for committing the offence punishable u/s376 IPC, beyond the reasonable doubts. Accordingly, I hold accusedManish guilty of the offence punishable u/s 376 IPC and convict him accordingly.
Now to come up for arguments on the point of sentence on 09.09.2011.
(Announced in the open ) (Paramjit Singh)
(court on 08.9.2011) Addl. Sessions Judge
(NorthWest)04
Rohini/Delhi
S.C No. 112/09 24/24
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IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(NORTHWEST)04, ROHINI : DELHI
(Sessions Case No. 112/09)
Unique ID case No. 02404R0297382009
State Vs. Manish
FIR No. : 402/09
U/s : 376 IPC
P.S. : Jahangir Puri
ORDER ON THE POINT OF SENTENCE
In the present case, the convict Manish have been convicted u/s 376 IPC .
I have heard the arguments on the point of sentence put forward by Ld.Addl. PP for the state and Ld. Defence counsel for the convict.
2. It has been submitted by the Ld. Addl.PP that in view of the nature of S.C No. 112/09 25/24 26 offence, the convict do not deserve any leniency and he prays that maximum sentence prescribed by the law may be imposed upon the convict.
3. On the other hand, it has been submitted by the Ld. defence counsel that convictManish is not a previous convict and is having clean antecedents. He further submitted that convict belong to a respectable family and has to lookafter his father, who is suffering from various medical ailments. Ld. defence counsel submitted that prosecutrix was having love affair with the convict and everything happened with the consent and will of the prosecutrix. Ld. defence counsel also submitted that the convict has already remained in custody for about nine months and he prayed that in view of the extra ordinary circumstances of the present case, a lenient view may be taken in this case.
In support of his contentions, Ld. defence counsel has relied upon the case law i.e judgment dated 16.3.2011 passed by the Hon'ble High Court of Delhi in Crl.Appeal No. 846/2009.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. defence counsel and have carefully gone through the record of the case. I have also carefully perused the case law relied upon by the Ld. defence counsel.
5. In the present case, the convict have been convicted for committing the S.C No. 112/09 26/24 27 offence punishable u/s 376 IPC .
Proviso to u/s 376 IPC provides that court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less then seven years.
In the instant case, it is stated that convict is not a previous convict and is having clean antecedents. Further, from the material on record, it is clear that there was a love affair between the convict and the prosecutrix. In these circumstances, it appears that prosecutrix was willing and consenting party and it seems that everything has happened with her sweet will and consent. In the case titled as "State of Chhatisgarh Vs. Lekh Ram (reported as 2006 Crl.L.J 2139 (SC)", it has been observed that consent of minor in such sexual assault cases is a mitigating factor while deciding sentence.
In addition to the above, the convict was only about 19 years of the age at the time of the incident. It is also stated that convict does not have any previous criminal antecedents. Apart from this, Loveaffair was also there between the convict and the prosecutrix. In these circumstances, in view of the peculiar circumstances of the present case, I find it to be a fit case where there exists special and genuine reasons to award lesser sentence .
Hence, in view of the above, I hereby sentence the convictManish to S.C No. 112/09 27/24 28 undergo imprisonment for the period, he has already remained in custody during the investigation and trial of this case and to pay a fine of Rs. 25,000/ in default SI for six months u/s 376 IPC, which sentence shall meet the ends of justice in this case. Fine paid.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 09.09.2011) Addl. Session Judge
(NorthWest)04
Rohini/Delhi
S.C No. 112/09 28/24
29
FIR No.402/09
P.S. Jahangir Puri
09.9.2011
Present: Sh. P.K.Verma, Substitute Addl.PP for the State.
ConvictManish on bail with counsel Sh. Yogesh Verma .
Arguments on the point of sentence heard.
Vide separate order on the point of sentence, announced in the open court, convictManish have been sentenced to undergo imprisonment for the period, he has already remained in custody during the investigation and trial of this case and to pay a fine of Rs. 25,000/ in default SI for six months u/s 376 IPC, which sentence shall meet the ends of justice in this case. Fine paid.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 09.09.2011) Addl. Session Judge
(NorthWest)04
Rohini/Delhi
S.C No. 112/09 29/24