Delhi District Court
State vs : Sonu, on 11 November, 2009
1
IN THE COURT OF SH. BHARAT PARASHAR, ASJ:NW-II:ROHINI:DELHI
SC No.: 740/07
FIR NO.: 968/06
PS : Uttam Nagar
U/S : 363/366/376 IPC.
ORDER ON SENTENCE
Vide my separate detailed judgment dated 11-11-09 accused
Sonu, S/o Shishupal has been convicted for the offence U/S 363/366/376
IPC .
I have heard ld. APP for the State and Sh. Aseem Bharadwaj,
ld. Amicus Curiae for convict Sonu on the point of sentence.
It has been submitted by learned defence counsel for convict
Sonu that he is aged about 25 years and has already faced the long
protracted criminal trial for the past about three years. It has further been
submitted that convict is gainfully engaged in the profession of white
washing and is the sole ray of hope of his large poor family comprising of
his old aged parents, his young wife and two minor children. It was further
submitted that convict has already remained in jail for a period of more
than 16 months during the course of present trial and his conduct has
completely remained aboveboard. It was also submitted that convict
has no previous criminal record of any nature whatsoever. A lenient view
was thus prayed for.
On the other hand, ld. APP strongly opposed the contention of
learned defence counsel stating that the victim was a minor girl and the
S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
2
act of convict has ravished the life of the girl. It was further stated that
convict has been unable to show any mitigating circumstance in his
favour which could call for a lenient view and maximum punishment was
thus prayed to be inflicted upon him.
I have carefully perused the record.
Even though the prosecutrix had gone along with the accused
voluntarily but, as discussed in my judgment her voluntariness or consent in
any of the act of the convict was immaterial on account of her young
age.
I thus keeping in view the overall facts & circumstances of the
present case, coupled with the submissions made sentence convict Sonu
to rigorous imprisonment for a period of three years and to pay a fine of
Rs.1,000/- for the offence U/S 363 IPC. In default of payment of fine
convict shall further undergo simple imprisonment for a period of fifteen
days.
As regards the offence U/S 366 IPC, I sentence convict Sonu
to rigorous imprisonment for a period of five years and to pay a fine of
Rs.2,000/- for the offence U/S 366 IPC. In default of payment of fine
convict shall further undergo simple imprisonment for a period of thirty
days.
As regards the offence U/S 376 IPC, I further sentence convict
Sonu to rigorous imprisonment for a period of seven years and to pay a
fine of Rs.2,000/- for the offence U/S 376 IPC. In default of payment of fine
convict shall further undergo simple imprisonment for a period of thirty
S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
3
days.
It is further directed that all the substantiative period of
sentences of imprisonment of convict Sonu shall run concurrently.
Benefit of Section 428 Cr.PC shall be given to the convict.
A copy of the judgment as well as that of Order on Sentence
be given free of cost to convict.
File be consigned to Record.
Announced in the open court on 18-11-09.
(BHARAT PARASHAR)
ADDITIONAL SESSIONS JUDGE
NW DISTT.: ROHINI COURTS:DELHI
*rk
S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
4
IN THE COURT OF SH. BHARAT PARASHAR,
ASJ:NW-II:ROHINI:DELHI
SC No.: 740/07
STATE VERSUS : SONU,
S/O SH. SHISHU PAL,
R/O G-66, NANDRAM PARK,
UTTAM NAGAR,
DELHI.
PERMANENT ADDRESS
VILLAGE KAKORA,
DISTT. MAINPURI, UP.
FIR NO.: 968/06
PS : Uttam Nagar
U/S : 363/366/376 IPC.
DATE OF INSTITUTION IN SESSIONS COURT:31-1-2007.
DATE ON WHICH JUDGMENT RESERVED : 23-10-2009.
DATE ON WHICH JUDGMENT PRONOUNCED : 11-11-2009.
JUDGMENT
Briefly stated the case of the prosecution as unfolded by the report U/S 173 Cr.PC is as under:-
"On 8-10-2006 a complaint was lodged by one Shyam Sunder at PS Uttam Nagar regarding missing of his minor daughter "A" (name of the prosecutrix has been changed as it is a case u/S 376 IPC) since the evening of 7-10-2006. He also expressed suspicion upon one of his neighbourer, namely, Shishu Pal and his son Sonu in this regard stating that S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.5
they also were missing from their house since then. Accordingly, on the basis of the said statement, ASI Tej Singh prepared a rukka and got a case registered at PS Uttam Nagar for the offence U/S 363/34 IPC. He thereafter went to the house of Shishu Pal but, their room was found to be locked. Thereafter on 13-10-2006, ASI Tej Singh along with Ct. Satbir, Shyam Sunder and his wife went to village Lakora, District Mainpuri, UP in search of accused and the missing girl but, they were not found present there. They accordingly returned back to Delhi but, on that evening itself they again received information from PS Etah, UP that both Sonu and the missing girl have surrendered at PS Etah. Accordingly, on 14-10-2006 ASI Tej Singh again went to Etah, UP along with the complainant and his wife and where Sonu was identified by them. Accordingly, accused was arrested and his disclosure statement was recorded. The daughter of complainant was also brought to Delhi. Both of them were got medically examined at DDU Hospital. Statement of the daughter of complainant was got recorded u/S 164 Cr.PC and the various exhibits as were collected by the doctors, who medically examined accused as well as the prosecutrix were sent to FSL. The bone age x-ray examination of the prosecutrix was also got conducted. Accused Shishupal, the father of accused Sonu was also arrested in this case. Upon conclusion of necessary further investigation, challan was prepared and was filed against both the accused persons, namely, Shishu Pal and Sonu in the court for trial".
S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
6Thereafter, upon committal of the case to the Court of Sessions while accused Shishupal was discharged in the present case by the then learned Predecessor of this court but, as against accused Sonu a charge for the offence under Section 363/366/376 IPC was framed to which he pleaded not guilty and claimed trial.
Prosecution thereafter in order to prove it case examined 11 witnesses.
Accused was thereafter examined u/S 313 Cr.PC. He however did not lead any evidence in his defence.
PW1 "A" was the prosecutrix herself. In her deposition, she stated that a week prior to 7-10-2006 accused Sonu, who was residing in their neighbouring room had threatened her and asked her to accompany him to his native village. He had also allegedly shown her a mobile phone and some money. She further stated that accused thereafter took her to his native village and where they stayed for one day. She further stated that the mother of accused asked her to marry him and to which proposal she refused but, the mother of accused forcibly put vermilion on her hair parting and also gave her a 'sari'. Accused thereafter took her to the house of his relation where he committed rape upon her forcibly. She further stated that before she had left Delhi along with accused then at that time the father of accused had told him to take her away and to marry her and that he will take care of all other problems which will crop up. She further stated that thereafter accused was arrested from Etah by Delhi Police and she was also S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
7recovered from his custody.
PW2 Shyam Sunder also reiterated the prosecution story while proving his complaint Ex.2/A lodged with the police.
PW3 HC Ram Karan was the duty officer, PS Uttam Nagar, who had recorded the FIR Ex.PW3/A. PW6 Dr. Ishwar had medically examined accused vide MLC Ex.PW6/A. PW9 Dr. Pooja Bhasin had examined the bone age x-ray plates of the prosecutrix and opined her bone age to be between 12-14 years vide her report Ex.PW9/A. PW11 Dr. Nishu Dhawan proved the MLC of the prosecutrix as was in the hand of Dr. Aarti and Dr. S. Rao, who were no longer available.
PW7 ASI Satbir Singh was the MHC(M), PS Uttam Nagar with whom the various case property articles were deposited by the IO and later on he had sent them through Ct. Rajesh to FSL.
PW4 Ct. Satbir, PW5 Ct. Rekha and PW8 HC Ram Mehar Singh had accompanied IO/ASI Tej Singh in the investigation of the case and corroborated his testimony in material particulars.
PW10 ASI Tej Singh was the IO of the case. In his deposition, he reiterated the investigation so carried out by him besides proving the various documents/memos prepared by him during the course of his investigation.
Statement of accused u/S 313 Cr.PC was recorded wherein he stated the case of the prosecution to be false and the prosecution S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
8witnesses to be deposing falsely. He further stated that prosecutrix was having a love affair with him and she wanted to marry him but, the father of prosecutrix did not approve of this relationship and thus in connivance with the police got him falsely implicated in this case.
I have heard ld. APP as well as ld. Amicus Curiae Sh. Aseem Bharadwaj for accused at length.
It was submitted by learned counsel for the accused that the prosecution has miserably failed to prove that any marriage ceremony took place between the accused and the prosecutrix. It was also stated that prosecutrix was not a reliable witness in as much as she had disowned her earlier statement made u/S 164 Cr.PC during the course of investigation and was now deposing under the pressure of her father. It was further stated that from the very conduct of the prosecutrix, it was clear that she had gone voluntarily with the accused and there was no element of inducement, enticement or threat on the part of accused in taking her away. It was further submitted that even if it is presumed that accused had married with the prosecutrix then also the present case fall under Exception II of Section 375 IPC in as much as sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape. It was further stated that the prosecution has miserably failed to prove the age of the prosecutrix. The bone age x-ray examination report was also stated to be not conclusive and it was further stated that a margin of plus minus years is to be given to any such report. The prosecution was thus stated to have miserably failed in proving its case S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
9against the accused. He was thus prayed to be acquitted.
On the other hand, ld. APP strongly opposed the contentions of learned defence counsel stating that the prosecution has categorically proved the age of the prosecutrix as being well below 15 years. It was thus stated that even if it is presumed that prosecutrix was a consenting party in going away with the accused or marrying him or having sexual relations with him then also her consent was immaterial as she was well below the age of 16 years. The prosecution was accordingly stated to have been successful in proving its case against the accused. He was thus prayed to be convicted.
I have carefully perused the record.
At the outset, I may state that the factum of prosecutrix having gone with the accused and thereafter marrying him stands well proved not only from the deposition of prosecutrix herself but, has also not been disputed by the accused. In her statement u/S 164 Cr.PC made during the course of investigation prosecutrix stated that after going to District Etah she had married accused Sonu without any threat or force. She further stated that thereafter they had started residing together as husband and wife in a rented room for about one month. Though, at the time of her deposition in the court she stated that her said statement u/S 164 Cr.PC was not correct but, it was specifically suggested to her by learned defence counsel in her cross-examination that her said statement u/S 164 Cr.PC was correct and voluntarily or that now she was making false allegations against the accused after having been pressurized by S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
10her parents. It was also suggested to her that she had eloped with the accused as she wanted to marry him or that there was no intercourse with him against her wishes. It was also suggested to her that she was residing with the accused as his wife with her own consent.
Even in the cross-examination of PW4 Ct. Satbir, who had accompanied ASI Tej Singh (PW10) to Etah from where accused and prosecutrix were recovered, it was suggested by learned defence counsel that both of them had voluntarily surrendered at PS Etah and that SO (City) Etah had told them that accused and prosecutrix had married voluntarily.
Thus, from the aforesaid facts & circumstances of the present case, it is clear that accused and prosecutrix were residing together as husband and wife. No-doubt, no formal proof of any such marriage has been placed on record but, one cannot be oblivious of the overall situation under which young boys and girls run away from their house and often get married at some distant far away place. Moreover, the taking place of all the formal rituals which may constitute a valid marriage need not to be looked into for the purposes of the present case, it is sufficient that both accused and the prosecutrix were residing together as husband and wife after performing certain rituals and thinking themselves to be married to each other.
I am also in complete agreement with the contention of learned defence counsel that the conduct of the prosecutrix in so far as she stated that accused had threatened her and had shown her mobile S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
11phone and some money and had thereafter taken her to his native village on the asking of his father does not inspire confidence. It is highly improbable that accused managed to take away the prosecutrix by threatening her and inducing her merely by showing a mobile phone and some money and that too from such a thickly populated area as Nandram Park, Uttam Nagar is. It is also highly improbable that accused thereafter took her to District Etah, UP without attracting the attention of anyone from Uttam Nagar to ISBT Delhi and thereafter in the bus and again at bus stand Etah, UP. This conduct in itself reflects the willingness on the part of the prosecutrix in going along with the accused. Again, the statement of the prosecutrix that she stayed at the house of accused and even though she used to go to the fields to respond to the call of nature but, was unable to raise alarm as she was under threat does not inspire confidence. It cannot be believed that during all this period the plight of victim did not attract attention of anyone or that she did not get any chance to either raise alarm or to run away. Thus, the deposition of prosecutrix in this regard does not inspire confidence. In fact, her statement u/S 164 Cr.PC which was recorded soon after her recovery also supports such a conclusion as has been drawn herein above.
The bigger question however still remains to be answered is as to what was the age of the prosecutrix as on the date of incident and what are its consequences?
S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
12Admittedly, the birth of prosecutrix was not recorded in any hospital records or municipality records. The only evidence in this regard we have on record is that of bone age x-ray examination as carried out by PW9 Dr. Pooja Bhasin. She categorically stated the age of the prosecutrix to be between 12-14 years. Thus, the doctor has already given a margin of two years in her estimation of the bone age of the prosecutrix and there thus does not arises and need to give any further latitude of plus minus two years to the said estimation. In fact, PW2 Shyam Sunder, the father of prosecutrix categorically stated that prosecutrix was born after the death of Sh. Rajiv Gandhi, the late Prime Minister of India. It is often found that illiterate people belonging to poor strata of the society often link major events of their life with such other events of National or International importance. PW2 Shyam Sunder clearly stated that the birth of prosecutrix had taken place after the death of Sh. Rajiv Gandhi. He further stated that prosecutrix was born 3-4 years after his marriage which took place about 19-20 years ago. Thus, from all angles if his deposition is seen then, it is found that prosecutrix must have been born somewhere in the year 1990-1991 or so. These statements also supports the bone age estimation of the prosecutrix as stated to by PW9 Dr. Pooja Bhasin. Thus, by no stretch of imagination can the age of the prosecutrix be considered to be even 15 years much less to be more than 15 years.
Learned defence counsel placed reliance on a number of case law to support his arguments that the said bone age x-ray S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
13examination report cannot be given much credence and the benefit has to go to the accused.
1- RAM DEO CHAUHAN VS. STATE OF ASSAM
AIR 2001 SC 2231
2- JAYMALA VS. STATE OF J&K
AIR 1982 SC 1297
3- RAVI KUMAR VS. STATE
2005 (3) JCC 1752
4- VARADARAJAN VS STATE OF MADRAS
AIR 1965 SC 942
5- KULDEEP KUMAR MAHTO VS STATE OF BIHAR
AIR 1998 SC 2694
I may however state that the aforesaid case law are of no help to the accused in the facts & circumstances of the present case.
In the case Ram Deo Chauhan (Supra), it was merely observed by Hon'ble Supreme Court that an x-ray ossification test may provide a surer basis for determining the age of an individual then the opinion of a medical expert but, it can be by no means so infallible and accurate a test as to indicate the exact date of birth of the person concerned. It was observed that in this vast country with varied latitude heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform. Thus, the Hon'ble Supreme Court has not discorded away with the ossification test report but, has merely stated that it cannot be a conclusive proof in as much as to give opinion about the exact date of birth of the person concerned.
S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
14However, in the case in hand, PW9 Dr. Pooja Bhasin has already given a margin of plus minus two years in her bone age x-ray report and thus sufficient degree of flexibility in the opinion has been provided.
In the case Jaymala (Supra) also the Hon'ble Supreme Court had given a margin of error in age ascertained by Radiological examination by two years on either side.
In the case Ravi Kumar (Supra) the Hon'ble High Court had come to a conclusion that as the prosecutrix in the said case had crossed the age of 15 years but, had not yet attained the age of 18 years so, they found her to be one where she had reached the age of discretion but, had not yet attained the age of majority. However, in the present case the prosecutrix has not yet even attained the age of 15 years.
In the case Nardarajan (Supra) and Kuldeep Kumar Mahto (Supra) the girl was on the verge of attaining majority which again is not the case herein.
Thus, in the present case prosecutrix was found to be of age between 12-14 years and it is thus clear that by all stretch of reasoning she was well below the age of 16 years and in fact she was even below the age of 15 years and thus the present matter cannot be even remotely touch the periphery of Exception II to Section 375 IPC.
In fact in a recent judgment delivered by Hon'ble J. Sh. V.K. Jain in Criminal Appeal No.941 of 2006 decided on 30-10-2009 in a similar S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
15circumstance, it was held that even though prosecutrix might have voluntarily gone with the accused of her own volition and there was her express consent in the act of sexual intercourse she had with accused but, as the age of the prosecutrix was less than 16 years so, her consent renders the accused liable to punishment u/S 376 IPC.
Learned defence counsel also pointed out that in her statement u/S 164 Cr.PC prosecutrix herself stated her age to be 15 years. However, the said contention is also of no help to the accused as has to be seen in the light of the nature of her statement made by her wherein she stated that she had married the accused and had sexual intercourse with him with her consent. As already discussed the prosecutrix in her statement u/S 164 Cr.PC stated the facts with a view to apparently save the accused from the rigors of law and thus stating her age as 15 years was also an attempt in this direction. Moreover, in her deposition in the court as PW1 "A" she stated her age to be 12 years. Thus, as I have already disbelieved the deposition of the prosecutrix as regards the fact that accused had taken her forcibly under threat so, this statement by her as regards her age cannot be given any credence. In fact, the conclusion drawn as regards her age to be less than 15 years is on the basis of scientific evidence and the same cannot be brushed aside merely on account of such different claims made by the prosecutrix as regards her age.
In view of my aforesaid discussion, I am thus of the considered opinion that as accused Sonu took away the prosecutrix from out of the S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
16lawful guardianship of her parents with an intention and knowledge to marry her and that she will be subjected to sexual intercourse and also thereafter married her and had sexual intercourse clearly makes out a case for the offence U/S 363/366/376 IPC against him.
The prosecution has thus been successful in proving its case against accused Sonu for the offence U/S 363/366/376 IPC.
I accordingly hereby hold accused Sonu guilty of the offence U/S 363/366/376 IPC and convict him thereunder. ANNOUNCED IN THE OPEN COURT ON 11-11-2009.
(BHARATPARASHAR) ADDITIONAL SESSIONS JUDGE NW DISTT.: ROHINI COURTS:DELHI *rk S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
17 FIR NO.: 968/06 PS : Uttam Nagar U/S : 363/366/376 IPC. 11-11-09 Pr. Addl. PP for the State. Accused is present on bail.
Vide my separate detailed judgment dated 11-11-09 accused Sonu has been convicted of the offence U/S 363/366/376 IPC.
He be taken in custody and remanded to JC.
Case is now adjourned for arguments on sentence to 17-11-09 at 2pm.
(BHARAT PARASHAR) ADDITIONAL SESSIONS JUDGE NW DISTT.: ROHINI COURTS:DELHI *rk S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
18 FIR NO.: 968/06 PS : Uttam Nagar U/S : 363/366/376 IPC. 17-11-09 Pr. Addl. PP for the State.
Convict is present in JC along with A/Curiae Sh. Aseem Bharadwaj. Arguments heard on point of sentence.
Case is now adjourned for order on sentence to 18-11-09 at 2pm.
(BHARAT PARASHAR) ADDITIONAL SESSIONS JUDGE NW DISTT.: ROHINI COURTS:DELHI *rk 18-11-09 Pr. Addl. PP for the State.
Convict is present in JC along with A/Curiae Sh. Aseem Bharadwaj. Arguments have already been heard.
Vide my separate detailed order dated 18-11-09 "Order on Sentence" has been announced.
File be consigned to record room.
Announced in the open court on 18-11-2009.
(BHARAT PARASHAR) ADDITIONAL SESSIONS JUDGE NW DISTT.: ROHINI COURTS:DELHI *rk S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.
19S/V SONU, FIR NO.968/06, PS UTTAM NAGAR.