Delhi District Court
This Judgment Shall Dispose Of The Case ... vs . on 17 July, 2009
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST-04), DELHI
SC NO. : 54/1/08
State
Versus
1. Darshan @ Bhole
S/o Late Sh. Brij Lal,
R/o J-30, Majnu Ka Tila,
Delhi.
2. Vinod Kumar @ Mental
S/o Late Sh. Brij Lal,
R/o I-25, Majnu Ka Tila,
Delhi.
3. Vijay Kumar
S/o Late Sh. Brij Lal,
R/o J-30, Majnu Ka Tila,
Delhi.
4. Laxmi
W/o Sh. Vijay Kumar,
R/o J-30, Majnu Ka Tila, Delhi.
5. Shyamo Devi
W/o Sh. Sohan Lal,
R/o I-46, Majnu Ka Tila,
Delhi.
6. Kamla Devi @ Kammo
W/o Late Sh. Brij Lal,
R/o I-25, Majnu Ka Tila,
Delhi.
Case arising out of
FIR No. : 107/08
U/s : 376 - II (G)/506/354/352/34 IPC
P.S : Civil Lines
Contd..........
/2/
Date of FIR : 26.04.2008
Date of Institution : 26.06.2008
Date of Final Arguments : 10.07.2009
Judgment reserved on : 14.7.2009
Date of Judgment : 16.7.2009
JUDGMENT
This judgment shall dispose of the case titled as State Vs. Darshan @ Bhole & Ors. for the offences punishable U/s 376 II G/506/354/352/34 IPC vide FIR No. 107/08, P.S Civil Lines.
The prosecution story as alleged is that on 24.04.08 at about 11 p.m while the prosecutrix Smt. Kiran was sleeping along with her two minor children at her house and her husband has gone to Chandigarh, accused Vinod and his brother Darshan @ Bhole and Vijay entered her room and thereafter at the instance of accused Vinod, accused Vijay and Darshan committed rape upon her one by one and thereafter all three brothers by extending threats to kill her in case of reporting of the incident by her to the police, the accused ran away. The complainant further added that after sometime accused Kamla Devi mother of Vinod, accused Laxmi who is wife Contd..........
/3/ of accused Vijay and accused Shyamo Devi who is sister of accused Vinod came inside her house and caught hold of her and accused Laxmi who was having a scissor cut her hair in order to teach lesson to her and thereafter they extended threat to kill her in case she lodged complaint against them to the police and ran away from the spot and next day morning the lady accused displayed her cutted hair publically to the member of society with the motive to defame her.
In the light of the said complaint, the rukka was prepared, the FIR was registered against the accused persons, the site plan was prepared, the blood sample of the prosecutrix Smt. Kiran was taken and the sealed sample was taken and the blood sample of the accused Vijay was also taken, and the wearing suit/salwar of the prosecutrix was also taken into possession while she was medically examined, same was sealed by the IO and seizure memo was prepared, and all these samples were send for chemical examination, during investigation to FSL. The accused persons were arrested and sent to the judicial custody. The statement of the prosecutrix U/s 164 Cr.P.C and the statement of the witnesses were also recorded, during the investigation. After completion of the investigation, the challan was sent to the court for final verdict.
Contd..........
/4/ Since the case was exclusively triable by the Court of Sessions, it was committed to the court of Sessions for trial.
From the perusal of the charge-sheet and statement U/s 161 Cr.P.C , 164 Cr.P.C and material placed on record, prima-facie case was made out against the accused namely Laxmi, Shyamo Devi and Kamla Devi for the offences punishable U/s 452/506/34 IPC and against the three accused persons namely Darshan @ Bhole, Vinod Kumar @ Mental and Vijay Kumar for the offences punishable U/s 376 (2) (G)/506/34 IPC. Accordingly charges were framed against them on 06.11.2008 to which the accused persons pleaded not guilty and claimed trial.
In order to substantiate the allegations against the accused persons, the prosecution examined 13 prosecution witnesses out of 15 witnesses as cited in the list of witnesses.
The prosecutrix Smt. Kiran was examined as PW-6 and during her examination, she has stated that on 24.04.08 at about 11.30 p.m while she was present at H.No. I-17, Majnu Ka Tila, the accused persons Vinod, Darshan and Vijay, who were her relatives and were residing in her neighbourhood, had a quarrel with the mother of accused persons namely Kamla Devi as she was previously in love with Vijay and had objected to her Contd..........
/5/ marriage with her son Vijay, due to which Kamla Devi got angry on account of her still being in talking terms with her son. At about 12 night, three lady accused persons Laxmi, Kamla and Shyamo entered in her house and forcibly caught her and cut her hair and she did not raise any hue and cry as she did not want any dispute and slept and in the morning, accused Kamla Devi was displaying her hair to members of community publically and even her husband and other family members were not present there. Then, on the night of 1/1.30 a.m, she lodged a complaint with police post Majnu Ka Tila, regarding cutting of her hair and quarrel. No other allegations were made against the male accused persons but was made against the ladies. Her statement was recorded by the police and the same was Ex.PW-5/A bearing her signature at pt. A. She has also been cross-examined by Ld. APP for the State as she was resiling from the allegations under charges levied in the rukka. In the cross examination by Ld. APP, she denied that, she told the police that the accused Vinod, Darshan and Vijay had entered in her house at about 11 p.m in the night after knocking at her door on 24.04.08 and thereafter, the accused Darshan caught hold her and accused Vijay forcibly raped her.
She further stated that she did not tell the police that when Darshan and Vijay were raping her then Vinod was putting hand on her body Contd..........
/6/ and on her breast with bad intentions. She also stated that she did not tell the police that Vijay, Darshan and Vinod had threatened her to kill in case she reported the matter to police.
It was denied that she has been won over by the accused persons and is deliberately deposing falsely, however, it is admitted that all the accused persons are her relatives from the side of her husband.
It was denied that she had told the police to take action against all the six accused persons and a case be registered against them. It was admitted that the accused persons were arrested and their personal search was conducted in her presence. It was denied that she deposed falsely in order to that she had had taken money from the accused persons to save them from the case.
It was admitted that she had given her statement before the Ld. M.M at the instance of the police. She also identified her clothes i.e suit/salwar in the court.
In the cross-examination of the Ld. Defence counsel, PW- Smt. Kiran stated that she did not know what is written in the document Ex.PW- 5/A and the other documents on which her signatures appear, as her signatures were taken on blank papers. She also admitted that she has several disputes with accused Kamla, Laxmi and Shyamo Devi. PW6 Smt. Kiran Contd..........
/7/ stated that she herself did not see that Kamla Devi was displaying her hairs before the community and at the time of her medical examination, she did not tell anything except regarding her hair cut, to the doctor. She admitted that Darshan, Vinod and Vijay are of her nephews and accused Laxmi is the wife of accused Vijay and she is her daughter in law in relation. She denied that there being an enmity between her and ladies accused persons, she has leveled false allegations against them. She has further denied the suggestions that no wrong act has been committed by the accused persons with her.
There was no other public witness cited or examined by the prosecution. Thus, remaining witnesses are the police officials and the doctors concerned who had joined the investigation for one or the other reason and had also examined the documents including MLCs and seizure memos etc. After closure of the prosecution evidence, the statements of all the accused persons are recorded U/s 313 Cr.P.C, wherein when all the incriminating evidence and documents were put to the accused persons one by one, they denied all of them as incorrect taking the plea that they are innocent and have been falsely implicated in this case by the complainant. In support of contention, the accused persons did not lead any defence evidence.
Contd..........
/8/ I have heard the submissions of Ld. APP for the State and Ld. Counsel for the accused persons and also carefully perused the material placed on record.
It is submitted by Ld. APP for the State that the complainant/prosecutrix has stated that "on 24.04.08 at about 11.30 p.m while she was present at H.No. I-17, Majnu Ka Tila, the accused persons Vinod, Darshan and Vijay, who were her relatives and were residing in her neighbourhood, had a quarrel with the mother of accused persons namely Kamla Devi as she was previously in love with Vijay and had objected to her marriage with her son Vijay, due to which Kamla Devi got angry on account of her still being in talking terms with her son. At about 12 night, three lady accused persons Laxmi, Kamla and Shyamo entered in her house and forcibly caught her and cut her hair and she did not raise any hue and cry as she did not want any dispute and slept and in the morning, accused Kamla Devi was displaying her hair to members of community publically and even her husband and other family members were not present there. Then, on the night of 1/1.30 a.m, she lodged a complaint with police post Majnu Ka Tila, regarding cutting of her hair and quarrel".
This deposition of the prosecutrix is being corroborated with the rukka and the statement recorded U/s 164 Cr.P.C . PW-10 W/SI Abha also Contd..........
/9/ deposed that "she had correctly recorded the statements of the witnesses and whatever has been stated by her, she has recorded in verbatim."
In the depositions of PW-11 Dr. Samta Aggarwal, Sr. Resident from Dr. Ambedkar hospital, the MLC of the prosecutrix Kiran was exhibited as Ex.PW-11/A and as per MLC Ex.PW-11/A, she found the external injury on the upper side of chest, neck and right thigh and abrasion appear right index finger, and the patient had given the alleged history of rape by two men last night.
It was further submitted that the other witnesses like Dr. Sangeeta, Dr. S.Lal and the police officials have corroborated the allegations made by the prosecutrix against the accused persons, as per the charges framed against them. The presumption U/s 106 Indian Evidence Act, is also drawn against the accused persons.
It is further contended by Ld. APP that the prosecution has proved its case against the accused persons beyond reasonable doubt and the testimony of the prosecution witnesses is trustworthy, corroborative and believable and on the other hand, there is no piece of evidence to disbelieve the same, and therefore, the accused persons are liable to be convicted.
Ld. Defence counsel has submitted that the prosecution has miserable failed to prove its case against the accused persons as there is no Contd..........
/10/ evidence against any of the accused persons them and the prosecutrix had turned hostile, even being lengthy cross-examination by Ld. APP for the State and she was the only sole witness. Her statement is inconsistence as she took 'U' turn has stated different story despite confronted from her previous statement recorded during the investigation. Ld. Defence Counsel also submitted that she denied the allegation against the accused persons except cutting of hair . She did not alleged this fact even to the doctor. PW6 Kiran/prosecutrix/complainant also stated that the accused Darshan, Vinod and Vijay are her nephews and they had not done anything wrong with her.
It was further contended by Defence Counsel that there is nothing contrary in the MLC, to prove that the accused persons had committed any sexual assault against the prosecutrix and that the FSL report also does not support the case of the prosecution and therefore, the accused persons are liable to be acquitted.
In view of the submissions made by Ld. APP for the State and Ld. Defence counsel and material placed on record, it is observed that 'intention' is a matter of reference from the circumstances of the case and the subsequent conduct of the accused after the abduction had taken place. It is not possible for the prosecution to establish the 'intention' except by proving the conduct of the accused and human nature, being what it is, whenever Contd..........
/11/ finds a young man abducting a girl of marriageable age, the first and natural presumption must be that he had abducted her with the intentions of having sexual intercourse with her either forcibly or with her consent after seduction or after marrying her, with the intentions other than that which is suggested by natural circumstances of the case and the burden lies upon him U/s 105 of the Indian Evidence Act to prove that intentions.
In case of defective investigation, the court has to be circumspect in evaluating the evidence but it would not be correct to acquit the accused solely on account of defective investigation and doing so would tantamount to playing into the hands of the investigating officer even if the investigation is designedly defective. This view has been taken in State V/s Gurmit Singh AIR 1996 SC 1393.
In AIR 1995 SC 2472, it was observed that the rape was committed on a labourer by the accused by bodily lifting her inside the factory premises. She narrated the incident to two of her co-labourers. Neither the statements of two ladies were recorded nor they were examined by the prosecution. It was contended that non-examination of two co- labourers was fatal to the prosecution. The Supreme Court, however, negatived the contention. The court stated that "we must admit that the defective investigation gave us some anxious moments and we were at first Contd..........
/12/ blush inclined to think that the accused was prejudiced. But on close scrutiny we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer. To acquit solely on that ground would be adding insult to injured/prosecutrix and it has to be borne in mind that the approach required to be adopted by courts in such cases has to be different. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.
One of the arguments on behalf of the accused was that no injury was found on her person, if the accused committed rape many times, the injuries on the private parts are being natural one and if the prosecutrix had Contd..........
/13/ alleged her age 23 years and her margins admitting one finger, then the case of rape is not believable. In case titled State Vs. Suresh Nivrutti Bhusare 1997 Cr.L.J 2003 (Bom.), it was held that in absence of such injury, it cannot be concluded that the incident had not taken place or that the sexual intercourse was committed with the consent of the prosecutrix. It always depends upon the facts and circumstances of the case.
Modi states that "injuries to the genital parts may result from force exerted by the accused or from forces applied by the victim". In addition to scratched or lacerations on the penis caused by the finger nails of the victim during a struggle, an abrasion, or a laceration may be discovered o the prepuce or glans penis, but more often on the fraenum, due to the forcible introduction of the organ into the narrow vagina of a virgin, especially of a child, but, it is not necessary that there should always be marks of injuries on the penis in such cases.
The Supreme Court held that, corroboration of testimony of prosecutrix by medical evidence was not essential. The court held that where the prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement had remained unchallenged in the cross examination, the opinion of the doctor that no rape appeared to have been committed being based only on the absence of rupture of the hymen and Contd..........
/14/ injuries on the private parts of the prosecutrix, could not throw out an otherwise cogent and trustworthy evidence of the prosecutrix. The opinion of the doctor was held to be based on 'no reasons'.
Let we analyze the testimony of prosecutrix, who is the main and star witness and the case of the prosecution is around to the evidence of the prosecutrix. PW6 Smt. Kiran has turned hostile with respect to the charges levelled u/s 376/34 IPC against the accused Darshan, Vinod and Vijay. Whereas PW6 Smt. Kiran in her examination in chief stated that " the male accused persons did not do any wrong act with me but the ladies had threatened me to remain at a distance from accused Vijay". Further during her cross examination by the Ld. APP she stated that " It is wrong to suggest that I told police that accused Vinod, Darshan and Vijay had entered in my house at about 11:00 PM in the night after knocking at my door on 24.04.2008. Confronted with the statement Ex.PW5/A portion A to A where it is so recorded. I did not tell the police that Vinod bolted the door from inside and told Darshan and Vijay to catch me and to rape. Confronted with the statement Ex.PW5/A portion B to B where it is so recorded. I did not tell the police that Darshan caught me and Vijay tore the Nada of my salwar and removed my salwar then Vijay forcibly raped Contd..........
/15/ me and thereafter Vijay caught hold me and Darshan forcibly raped me. Confronted with the statement Ex.PW5/A portion C to C where it is so recorded. I did not tell the police that when Darshan and Vijay were raping me then Vinod was putting hand on my body and on my breast with the bad intention. Confronted with the statement Ex.PW5/A portion D to D where it is so recorded. I did not tell the police that Vijay, Darshan and Vinod had threatened me to kill in case if I would report the matter to police or any authority. Confronted with the statement Ex.PW5/A portion E to E where it is so recorded. It is wrong to suggest that I have been won over by the accused persons and deliberately deposing falsely........It is wrong to suggest that I had told police to take action against all the six accused persons present in court today for the registration of case in police. Vol. I raised the demand to lodge complaint against the three ladies accused persons. It is correct that accused persons Vijay and Vinod were arrested by the police.......... I have made the statement before the Ld. MM at the instance of police."
PW6 further in her cross examination by Ld. Defence Counsel has stated that " I do not know what is written in the document Ex.PW5/A Contd..........
/16/ and the other documents on which my signatures appear....... At the time of my medical examination I told to the doctor regarding my hair cut. Except the cutting the hair I did not tell anything to the doctor. It is correct that accused namely Darshan, Vinod and Vijay are my nephews and accused Laxmi is wife of accused Vijay and she is my daughter-in-law in relation. It is wrong to suggest that there being the enmity between me and ladies accused the allegations are falsely made by me against the ladies accused persons. It is wrong to suggest that I am deposing falsely against the three ladies accused. It is correct that I was being tutted by the police before being recorded my statement to the Ld. MM. It is correct that no wrong act has been committed by the accused with me."
As such the prosecutrix has denied that the male accused persons have done anything wrong with her. It is admitted as correct that male accused are of her nephew and Laxmi is her daughter in law. There is no other corroborative evidence. the sample of blood of prosecutrix and underwear of accused Vijay were also sent to FSL alongwith blood sample of prosecutrix and semen and blood sample of accused. With respect to the blood sample it is reported that " human blood and no reaction of the semen on the underwear ". As such the the serological report also not Contd..........
/17/ supported the case of the prosecution. PW 11 Dr. Samta and PW12 Dr. Sangeeta had examined and victim and assailants and with respect of the MLC of accused Vijay it is reported that " on examination no any injury is seen over the genital organ. NO any discharge and no any hair is seen over the genital region ". It is also opined that the patient is also capable to perform sexual intercourse.
Victim/PW6 Kiran while examined by Doctor detected that "
Patient is not wearing any undergarments. Marks of external injuries on upper side of chest, neck and right thigh. P/A soft, P/S Bleeding. No tear . P/V not done as patient is menstruating". As such from the perusal of statement of PW6 Smt. Kiran, it reveals that she did not support the case of the prosecution for the charge levelled against the male accused persons namely Darshan @ Bhole, Vinod and Vijay.
In respect of the charge leveled against the female accused person u/s 452/506/34 IPC namely Laxmi, Shyamo Devi and Kamla Devi , the prosecutrix/PW6 has deposed in her examination that " On 24.04.2008 while I was present at my house at I-17, Majnoo Ka Tilla. Accused Vijay, Contd..........
/18/ Darshan and Vinod are my relatives who were residing in my neighbourhood. On that day, I had a quarrel with the mother of accused persons namely Kamla Devi as I was previously in love with Vijay and she had objected to my marriage with her son Vijay. Kamla Devi was being angry on account of my still being in talking terms with her son. First at about 12:00 night three lady accused present in court today namely Laxmi, Kamla and Shyamo had entered in my house and forcibly caught me and cut my head hair. I did not raise hue and cry as I did not want any dispute and I slept and in the morning accused Kamla Devi was displaying my hair to members of my community publicly with the allegations that she caught hold alongwith the accused Vijay in the night. My husband was not present and even other family members were not there. Then I went to police post Majnoo Ka Tilla at about 01:00 PM or 01:30 PM on next day. I lodged complaint with the police regarding cutting of my hair and quarrel." In cross examination by Ld. APP she further testified that" It is wrong to suggest that I have been won over by the accused persons and deliberately deposing falsely.
Contd..........
/19/ Further in cross examination by Ld. Defence Counsel the PW6/victim has deposed that " It is correct that I have several disputes with accused Kamla, Laxmi and Shyamo Devi. I myself did not see that Kamla Devi is displaying my hairs before the community. At the time of my medical examination I told to the doctor regarding my hair cut. Except the cutting of the hair I did not tell anything to the doctor. It is correct that accused namely Darshan, Vinod and Vijay are my nephews and accused Laxmi is wife of accused Vijay and she is my daughter-in-law in relation. It is wrong to suggest that there being the enmity between me and ladies accused the allegations are falsely made by me against the ladies accused persons. It is wrong to suggest that I am deposing falsely against the three ladies accused."
The statement of prosecutrix was corroborated by PW9 SI Satya Prakash, who recorded her statement and also stated that ladies accused has threatened PW6 Smt. Kiran and cut her hair when she was in her house. The MLC of the prosecutrix also proved the injuries marked on her chest neck and right thigh .
Contd..........
/20/ It is not necessary to prove that the intention of the accused was to commit a particular or specific offence. It is sufficient if it is clearly proved that the intention was to commit an offence. In 1999 WLC (Raj) (UC) 689 (691) it was observed that ' where the evidence of prosecution witnesses proved that the accused entered the house of complainant and tried to sexually assault his daughter, it could be said that the accused has entered the house of complainant in order to commit the offence punishable with imprisonment. Therefore, his conviction u/s 451, would be proper. The case of the prosecution is that the male accused persons entered into the house of the complainant and committed gang rape forcibly but thereafter 3 ladies accused persons entered in to the house forcibly with the intention to physical assault or for doing other thing being act of gang rape is not proved against the male accused persons. However, prosecutrix has stated that the ladies accused persons have forcibly entered into her house and cut her hair and shown the same publically on the next day. On the next day she had mentioned these facts to the doctor but the doctor has not recorded the same. The statement of the complainant was also corroborated with the MLC and from the deposition of IO who recorded her statement.
Contd..........
/21/ In a case (1992) 2 Crimes 115 (118) (DB) (Bom) it was observed that " where t he eye witnesses account that the accused after entering into the hut of the deceased picked up the deceased from his cot by the cuff of his collar and pulled him out into the common courtyard was found consistent, the accused would be liable for offence under S. 452 for his entry with criminal intimidation.."
For the purpose of attracting the provision of section 452 IPC, the prosecution has to prove that" whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person,l or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend description for a term which may extend to seven year, and shall also be liable to fine" In the present case the accused persons are being prosecuted on the allegation t hat they forming a group entered into the house of the complainant in the midnight forcibly caught her and cut her hair. The accused persons have put a defence that they are in close relations of the victim and they have right to enter in her house at any time Contd..........
/22/ but there was no ill will and neither cutted hair was being recovered nor the scissor. To refute this contention the statement of complainant itself has given strength that she made categorically allegation against the lady accused that they forcibly entered in the house and cutted her hair. The allegation against the accused persons leveled in the chargesheet has been denied. If nothing against the male accused she also stated the male accused are also in relation, why the victim have stated only against the female accused persons. Since the event has been taken place and the same has been narrated by her. There is no question of disputing the identification of the accused as accused persons have been pointed out by Pw6 Smt. Kiran/complainant in her ocular evidence and same has been corroborated by PW9/SI Satya Parkash.
In order to appreciate the evidence, the Court is required to bear in mind the set up environment in which the crime is committed. The level of understanding of the witnesses. The over jealousness of some of near relations to ensure that everyone even remotely connected with the crime be also convicted. Everyone's different way of narration of same facts. Evidence of eye witnesses including the injured witness cannot be discarded on the basis of vague evidence of other witness who was subsequently Contd..........
/23/ declared hostile as observed in case titled as "Ram Bhukan Vs. State" cited in AIR 1994 SC 561. Further in case titled as Vahula Bhushan V State AIR 1989 SC 236: 1989 Cr. LJ 799 it was observed that " The accused can be convicted on evidence of solitary eye witness corroborated by medical evidence". In her cross examination the PW6 denied the suggestion made by defence counsel and categorically repeated the allegation as made in examination in chief against all the three lady accused.
In view of the aforesaid discussion, facts and circumstances of the case and the evidence as adduced by prosecution, their testimonies are creditable , trustworthy, reliable and inspired confidence to bring home the guilt of the accused person. Therefore accused namely Laxmi W/o Vijay Kumar, Shyamo Devi W/o Sohan Lal and Kamla Devi W/o Late Sh. Brij Lal are hereby convicted for offence punishable u/s 452/34 IPC. However the prosecution failed to prove its case against remaining accused persons u/s 376/506/34 IPC.
ANNOUNCED IN THE OPEN COURT TODAY ON 16.7.2009 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI IN THE COURT OF SH. SATINDER KUMAR GAUTAM, ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. : 54/1/08 State Versus
1. Laxmi W/o Sh. Vijay Kumar, R/o J-30, Majnu Ka Tila, Delhi.
2. Shyamo Devi W/o Sh. Sohan Lal, R/o I-46, Majnu Ka Tila, Delhi.
3. Kamla Devi @ Kammo W/o Late Sh. Brij Lal, R/o I-25, Majnu Ka Tila, Delhi.
Case arising out of
FIR No. : 107/08
U/s : 376 - II (G)/506/354/352/34 IPC
P.S : Civil Lines
ORDER ON SENTENCE:
Present: Sh. Maqsood Ahmad, Substitute Additional Public Prosecutor
for State.
All the Accused/Convicted namely Laxmi Devi, Shyamo Devi and Kamla Devi are present with counsel Sh. S.P. Sharma, Advocate.
The above named accused/convicted have been convicted for offence punishable u/s 452/34 IPC vide separate detailed judgment dated 16.7.2009. .
Contd..........
/2/ I have heard submission of Ld. APP for State and counsel for accused on the point of sentence and carefully gone through the material on record.
Ld. APP for the State on the point of sentence submitted that the prosecution has proved its case against all the three above named convicted for the offence punishable u/s 452/34 IPC. As per the provision of section 452 the sentence is provided that convicted shall be punished with imprisonment either description which may extend to 7 years and also shall be liable for fine. In these circumstances where the accused persons have convicted for the said section sentence of imprisonment must be given and mere sentence of fine is not itself enough as per the provision. Ld. APP has also relied on (1980) 7 Cri LT 115 (P&H) wherein court has observed that " The incident for which the accused was convicted under section 452 arose out of a petty common occurrence in the rural areas with regard to trespass of cattle a lenient view regarding sentence was called for and the sentence awarded on him was reduced to that of already undergone". Present accused persons are made commission of offence by pre planned manner to enter into the house of the complainant in the midnight when she was alone alongwith her minor children, they have forcibly entered in the Contd..........
/3/ house and cut the hair of the complainant Smt. Kiran by escorting of two lady accused and the other lady Luxmi cut her hair. Said commission of the offence is also out raged the modesty of the woman and during the scuffle injuries were also being sustained injuries as shown in the MLC. Therefore the deterrent punishment may be awarded to the convicted persons as provided in the section 452/34 IPC.
Ld. Counsel for the accused/convicted while controverting the submission of Ld. APP submitted that the present accused persons are in near relation of the complainant, they have every right to access in the house of the complainant at any point of time. There was no malafide intention. The recovery of the scissor and the cutted hair was not being not recovered from the person of the accused. It is further alleged that the MLC also does not shows that the hair of victim was cutted and therefore this is mere allegation against the assailants. However , since the prosecution has established it case against all the three lady convicted beyond reasonable doubt they are being on the mercy of the court with folded hands. The convicted lady Kamla is old ailing lady, about more than 70 years of age and suffering from different ailment. The accused Luxmi so called daughter in law of the complainant and having family of minor kids and husband as well as old ailing in-laws, as living with her, if she will send behind the bar Contd..........
/4/ no purpose would be served except to punishment not only to herself but also to her family members and dependents. The convicted Shyamo Devi is aged about 50 years and a widow lady she is already being punished by the act of God as when the incident took place with her , her husband was died during the period of said incident as such she is already suffered a lot by her mental agony, socially and economically. Ld. Defence Counsel further submitted that if all the accused persons in such a circumstances sent behind the bar no purpose will be solved except it will defeat the ends of justice and rift will be created between the both families, as the complainant is neighbour of the accused person. The accused persons are also kith and kin of the victim. Allegedly the incident has been taken place under the heat and passion. Therefore prayed to take a lenient view by releasing them on probation or some minor fine.
Keeping in view all the facts and circumstances of the case as well as contention raised by Ld. APP for State and counsel for the accused and a case 1979 Bom Cr 105 (109), wherein it was observed that " House- trespass with object of giving a beating - High Court reduced sentence of imprisonment to term already served but retained the fine".
In another judgment titled as 1989 All Cri R 319 (320-321) where in it was held that " considering fact t hat parties were co owners of Contd..........
/5/ same house and residents of same village and that occurrence had taken place suddenly without any previous enmity, substantive sentence was reduced to period already undergone.
In another case (2000) 1 Raj Cri C 200 (202) it was held that "
when the accused had entered his father in laws house through the window to meet his estranged wife, his punishment u/s 452 could be reduced to the period already undergone by taking a lenient view".
In another case 1995 WLN (UC) 26 (27) (Raj.) It was observed that " where the matter was of a trivial nature and the accused were aged about 28-30 years and 9 years had lapsed after the incident the accused were released on probation of good conduct.
The deterrent theory is applied not merely to punish the offender, but to deter others similarly situated from committing the similar offences. In a case of previous quarrel between the son of complainant and the accused, on complainant lodging complaint with police, the accused entered the house of the complainant seeking explanation and during quarrel assaulted the complainant. On conviction under section 452 and 323 the accused were sentenced to rigorous imprisonment for one month and fine of Contd..........
/6/ Rs. 200/- as observed in a case titled as Rangnath Prataprao Jadhav 2006 Cri. L.J. 3438 (Bom.) In view of the aforesaid discussion and the contention raised by Ld. Counsel for all the three convicted who are ladies and belonging to the middle class family. The victim is also in their near relations. It is also matter of fact that scissor from which hair was cutted and cutted hair was not recovered either from the public place or at the instance of convicted. However, the ocular evidence of the complainant/victim is on record and MLC of the minor injuries sustained by victim is also matter of record. Therefore, considering all the facts and circumstances I sentence the convicted namely Laxmi W/o Sh. Vijay Kumar, Shyamo Devi W/o Sh. Sohan Lal and Kamla Devi @ Kammo W/o Late Sh. Brij Lal to the RI to detain till rising of the court and fine of Rs. 10000/- each, in default of payment of fine all the aforesaid accused persons will also undergo SI for 6 months for offence punishable u/s 452/34 IPC. I think the sentence awarded to the accused persons shall meet the end of justice.
A copy of this order as well as of judgment be given to each of accused free of cost.
ANNOUNCED IN THE OPEN COURT TODAY ON 17.7.2009 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI