Delhi District Court
State vs . Dildar on 19 May, 2014
State Vs. Dildar
IN THE COURT OF DR. PS MALIK,
ADDL. SESSIONS JUDGE, NORTH EAST, DELHI
Nature of the case Sessions Trial
SC No. 119/2012
FIR No. 303/2012
Computer ID of the case 02402R0033572012
Penal Sections invoked 376/457 IPC
Police Station Nand Nagari
Date of Committal 21.12.2012
Charge framed on 24.01.2013
Date of arguments 25.04.2014
Date of Orders 19.05.2014
Nature of Orders Conviction
State Vs. Dildar, S/o Sh. Bakar Ali,
R/o H.No. F1/105, Nand
Nagari, Delhi.
JUDGEMENT
1. As per prosecution on 02.09.2012, a minor girl (victim in this case), who was aged about 16 years and student of 11th standard informed the police of PS Nand Nagari that she had been in friendship for last three years with the accused Dildar and he made her promises of marriage. On this promise he established physical relations with her several times in three years of this friendship.
JUDGEMENT 1 | P a g e State Vs. Dildar
2. At the night of 02.09.2012, at about 01:30am accused Dildar came to victim's house and had sexual intercourse with her forcibly. After this when the victim gave him water from the fridge, her mother woke up and raised an alarm. Both the victim and the accused startled and flew away from the house. Police was informed. The victim was rescued and a case under Sections 376/452 IPC was registered by the police. After investigation the chargesheet under Section 376/452 IPC was filed before the Court.
3. Ld. Predecessor was pleased to frame a charge against the accused Dildar for offences punishable under Sections 376/457 IPC.
4. The prosecution examined 12 witnesses in favour of its case. PW1 was the mother of victim. PW2 was the victim herself. PW3 was HC Raj Kumar who took the Rukka and got the FIR registered. PW4 Smt. Geeta, Principal of a school was examined regarding the age of the victim. PW5 W Ct. Anupama was examined as she took the victim to hospital for her medical examination. PW6 was Ld. MM who recorded the statement of victim under Section 164 CrPC. PW7 was Dr. Meenakshi, casualty medical officer from GTB Hospital who had deposed for Dr. Amber Kumar and Dr. Gyan Prakash who had prepared the MLCs in this case. PW8 Ct. Kapil was examined on the point of taking samples obtained from the victim for forensic examination. PW 9 was Ct. Vinod Kumar who had accompanied the PW10 WSI Usha, the IO of this case. PW11 was ASI Sufal Ram who attended the initial call on 02.09.2012 and PW12 was HC Rajbir who was the MHC(M) of PS Nand Nagari.
5. In her examination PW1 Smt. Sandhya, the mother of the victim stated that on 12.08.2012 at about 02:00am she was sleepless as her son Neeraj was not well. At that time, the main gate of the house was closed. She saw the accused standing near main JUDGEMENT 2 | P a g e State Vs. Dildar entrance gate and asked him why he entered into her house. Accused did not reply and he and the victim ran outside the house. When this witness did not support the case of prosecution fully, Ld. Addl. PP cross examined this witness and got a few points verified. This witness was educated upto to 5th standard and the victim was a student of 11th standard, aged about 16 years at that time. It is very significant that this witness did neither admit nor deny that the incident had taken place on the night of 02.09.2012.
6. PW2 Victim in her examination had stated that on 02.09.2012 accused Dildar came to her house and prior to that he had already informed her about her arrival at night. She further stated that the accused had sexual intercourse (the victim had used word 'wrong act' i.e. rape) with her. Meanwhile, her mother woke up and the accused ran away. She also followed the accused being scared of her mother. The police was informed and the police came there. Then she was rescued. This witness was also crossexamined by Ld. Addl. PP. It came on record that she willingly exchanged her telephone number with that of the accused but it was in pursuance of a promise by the accused for marriage. The victim corroborated that the rape was committed at about 01:30am in the intervening night of 01.09.2012 and 02.09.2012. She further stated that accused had made physical relations with her two three times earlier also.
7. During the cross examination of the victim by the Ld. Defence Counsel, it was revealed that the accused used to blackmail her by threatening that if she did not meet, he would disclose the entire affair to her family members. She clearly denied the suggestion that the accused had not given her a promise of marriage.
8. PW4, Smt. Geeta, the Principal of Nigam Pratibha Vidyalya, Nand Nagari, Delhi produced the attested photocopy of admission and withdrawal registered of this victim JUDGEMENT 3 | P a g e State Vs. Dildar as Ex.PW4/A and Ex.PW4/B respectively. She stated that the date of birth of the victim was recorded on the basis of a discharge card issued by SDH Hospital, Delhi at the time of birth of the victim. This date of birth was supported by an affidavit of the father of the victim at the time of her admission in the school. She has also identified a certificate regarding date of birth of the victim which she had issued earlier during the course of investigation and the same was Ex.PW4/C.
9. PW6, Ms. Susheel Bala Dagar, Ld. MM appeared and stated that a voluntary statement of the victim was recorded and that statement was exhibited as Ex.PW2/B.
10. PW7, Dr. Meenakshi had identified the signatures of Dr. Amber and Dr. Gyan Prakash on two MLCs, Ex.PW7/A and Ex.PW7/B respectively which were prepared after the medical examination of the accused and the victim respectively by these two doctors.
11. In his statement under Section 313 CrPC the circumstances regarding the rape committed by him upon the victim put to him. The accused had simply denied the same. He did not present any alternative scenario regarding the facts or the circumstance of the alleged act. The same was reaction when he was asked regarding his entry in the house of the victim on the aforesaid date and time.
12. Section 375 IPC as it stood on the point of commission of offence reads as follows:
"375, Rape. - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances failing under any of the six following descriptions: First Against her will.
Secondly Without her consent.
JUDGEMENT
4 | P a g e
State Vs. Dildar
Thirdly With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she given consent. Sixthly With or without her consent, when she is under sixteen years of age.
Explanation : Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception : Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape". Ld. Defence Counsel during his arguments put a simple defensive argument that as per evidence the victim girl was above the age of the 16 years on the alleged date and time and it has come on record from her statement that sexual intercourse between the accused and the victim was consensual.
13. Ld. Addl. PP has vehemently refuted this argument. He argued that the act on 02.09.2012 in itself was consensual but that consent was obtained by the accused in JUDGEMENT 5 | P a g e State Vs. Dildar pursuance of a false promise of marriage. The consent if any was vitiated by fraud and misrepresentation.
14. This Court has perused the law regarding consent on this point.
15. In Uday Vs State 2003 SC 1639, the Hon'ble Supreme Court proceeded on analyzing "consent" required under sections 375 and 90 IPC. It observed:
In Stroud's Judicial Dictionary (Fifth Edition) page 510 "consent" has been given the following meaning: "Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side."
It refers to the case of Holman vs. The Queen: [1970] W.A.R. 2 wherein it was held that "there does not necessarily have to be complete willingness to constitute consent. A woman's consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is consent' ". Similar was the observation in R. vs. Olugboja : [1981] 3 W.L.R. 585 wherein it was observed that "consent in rape covers states of mind ranging widely from actual desire to reluctant acquiescence, and the issue of consent should not be left to the jury without some further direction". Stephen, J. in Queen vs. Clarence: (1888) 22 QBD 23 observed "It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualification. It is too short to be true, as a mathematical formula is true." Wills, J. observed "the consent obtained by fraud is not consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent." Some of the decisions referred to in Words and Phrases Permanent Edition Volume 8A at page 205 have held "that adult female's understanding of nature and consequences of sexual act must be intelligent understanding to constitute JUDGEMENT 6 | P a g e State Vs. Dildar 'consent'. Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to understand and appreciate the nature of the act committed, its immoral character, and the probable or natural consequences which may attend it. (See: People vs. Perry, 26 Cal. App. 143).
The Courts in India have by and large adopted these tests to discover whether the consent was voluntary or whether it was vitiated so as not to be legal consent.
In Rao Harnarain Singh vs. State: AIR 1958 Punjab 123 it was observed: "A mere act of helpless resignation in the face of inevitable compulsion, acquiescence, non resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent' as understood in law. Consent, on the part of a woman as a defence to an allegation of a rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is not consent. There is a difference between consent and submission. Every consent involves a submission but the converse does now follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure."
The same view was expressed by the High Court of Kerala in Vijayan Pillai @ Babu vs. State of Kerala : 1989 (2) K.L.J.
234. Balakrishnan, J., as he then was, observed: JUDGEMENT 7 | P a g e State Vs. Dildar "10. The vital question to be decided is whether the above circumstances are sufficient to spell out consent on the part of PW.1. In order to prove that there was consent on the part of the prosecutrix it must be established that she freely submitted herself while in free and unconstrained position of her physical and mental power to act in a manner she wanted. Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, nonresistance and passive giving in cannot be deemed to be "consent". Consent means active will in the mind of a person to permit the doing of the act of and knowledge of what is to be done, or of the nature of the act that is being done is essential to a consent to an act. Consent supposes a physical power to act, a moral power of acting and a serious and determined and free use of these powers. Every consent to act involves submission, but is by no means follows that a mere submission involves consent. In Jowitt's Dictionary of English Law II Edn. Vol. 1 explains consent as follows:
'An act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil on either side.
Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent is obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind. "
16. Later in Deepak Gulati vs State Of Haryana CRIMINAL APPEAL NO. 2322 of 2010, decided on 20 May 2013, Hon'ble Supreme Court held:
16. This Court considered the issue involved herein at length in the case of Uday v. State of Karnataka, AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059, and came to the conclusion that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not JUDGEMENT 8 | P a g e State Vs. Dildar amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.
17. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
18. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if JUDGEMENT 9 | P a g e State Vs. Dildar the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
19. In Deelip Singh (supra), it has been observed as under: "The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology".
20. This Court, while deciding Pradeep Kumar Verma (Supra), placed reliance upon the judgment of the Madras High Court delivered in N. Jaladu, Re ILR (1913) 36 Mad 453, wherein it has been observed:
"We are of opinion that the expression 'under a misconception of fact' is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration (d) states that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married thus if the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person. Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the JUDGEMENT 10 | P a g e State Vs. Dildar effect of Section 90 IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence."
17. The Hon'ble Supreme Court has held specifically that there is a clear distinction between the rape and consensual sex and in a case like this the Court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception ... ..., that the intention of the accused was mala fide and that he had clandestine motives.
18. In the present case although the forensic evidence has not shown any basis of semen etc. on the private parts of the victim, yet the factum of sexual contact cannot be doubted for two reasons:
• For the offence of rape ejaculation is not legally required. A physical contact is sufficient to constitute the offence. The absence of male secretions from the private parts of the victim is suggestive only of the fact that an ejaculation was not there.
• Secondly, even during the cross examination or otherwise, including the statement under Section 313 CrPC accused has nowhere suggested or shown or proved that sexual intercourse was not there between him and the victim. At least a suggestion or denial from the mouth of the accused is required to show that the sexual intercourse was not committed between the parties. JUDGEMENT 11 | P a g e State Vs. Dildar
19. Therefore, this Court hereby observes that as per allegation and statement on oath by the victim a sexual intercourse was there between the victim and the accused on 02.09.2012 at about 01:30am. The act appears to be consensual because the victim had opened the door and she presented herself for the act. Her age was also more than 16 years, therefore the Ld. Counsel for defence advanced an argument for the escape of the accused from this offence constituted under Section 375 IPC. But the act of sexual intercourse which appears to be consensual was in fact not consensual as accused had made the victim believe that he would marry her and those sexual contacts were only between the two individuals going to marry soon in future. Hence, this Court is of the view of the factum of consent which appears to have been obtained by the accused during the act of sexual intercourse was not a free and voluntary consent. It was vitiated in the eyes of law and hence it amounted as if there was not consent. Therefore, this Court holds that the offence under Section 375 IPC is made out from the acts of the accused which he committed on the aforesaid date and time.
20. Section 441 IPC defines a criminal trespass. It reads as follows:
"Criminal Trespass. Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, Or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit any offence, is said to commit "criminal trespass".
JUDGEMENT 12 | P a g e State Vs. Dildar
21. The language of Section 442/443/444 IPC is also perused. It was an allegation against the accused that he on the aforesaid date and time committed a criminal trespass by entering into the house of the mother of the victim having taken precautions to conceal him from the mother of the victim and he did it after the sunset. Hence, by his act he committed an offence of lurking house trespass.
22. From the statement of PW1 and PW2 both it has come on record that the accused was present in the house of the mother of the victim in the night on 02.09.2012 at about 01:30am or so but it was before 02:00am when the mother of the victim saw him. He was frightened and started running away from the house. It shows that while being in the house of the victim, accused was concealing himself from the mother of the victim. Although, the victim had also accompanied the accused while running outside the house but no inculpability can be amounted on her part as she was a minor at that time and was not mentally developed fully to understand the nature of things.
23. Section 457 IPC as it stood on the point of commission of offence reads as follows:
"Lurking housetrespass or housebreaking by night in order to commit the offence punishable with imprisonment. Whoever commits lurking housetrespass by high, or housebreaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years".
24. In the present case the accused trespassed the house of victim at about 01:30am. As per police FIR Ex.PW3/A the time of occurrence was 01:45 hours on 02.09.2012 which is a JUDGEMENT 13 | P a g e State Vs. Dildar night time. PW1 in her statement has also stated that it was about 02:00am in that night when she noticed accused standing near main entrance gate. PW2 Victim had confirmed this time in her statement that it was about 01:30am in the intervening night of 01.02.2012 and 02.09.2012. All these statements, that the accused had trespassed the house of the victim between 01:30am and 02:00am i.e. the night time. It has been held preciously that the accused had entered the house of the victim with a view to have sexual intercourse with the victim, a girl of more than 16 years of age and who had given her consent pursuant to a false promise of marriage. Hence, this lurking house trespass was with an intention to commit an offence of rape.
25. Ld. Defence Counsel has raised several points during the course of arguments. His first point was that no offence of rape was committed as the victim herself had called the accused inside her house and she was a consenting party in the act of sexual intercourse. This point has already been dealt with by this Court in the previous part of this judgment. It has been found that the consent of the victim was obtained by way of misrepresentation of fact and fraud. Hence, that consent if any, if it was there, was vitiated. The main objective of the accused was to gratify his lust and not to fulfil any matrimonial promises. Hence, this argument by the defence is not a tenable argument.
26. Ld. Defence Counsel has raised second point regarding the mother's incapability of stating correct date and time of the incident. During the course of her statement she virtually fumbled in recollecting the date and time of the incident. She stated that it was the night of 12.08.2012 at about 02:00am. Here the date as stated by the police is the intervening night of 01.02.2012 and 02.09.2012.
JUDGEMENT 14 | P a g e State Vs. Dildar
27. During the Course of cross examination by the Ld. Addl. PP it came on record that this was a witness almost illiterate. She had studied only upto to 5th standard. From her statement it appears that she has been a member of lowest socioeconomic rung of the society, where, the question of survival is important. Its categorisation into date and time is not so important for the person at that level. Nothing has come on record to show that she was habitual in appearing in the Court or the other public offices. Therefore this Court is of the opinion when a person of common understanding appears for the first time in a Court environment, his/her senses are perplexed to a great extent. This is particularly so in case of a person belonging to an elementary educational background. This Court environment mars the cognitive faculties of the witness. Therefore, fumbling can be understood. On the contrary, this adds to the credibility of the witness that she appeared before the Court without any tutoring. Whatever, was stated it was what she had seen and observed. This Court finds her testimony quite reliable. For the same set of logic, the victim is also equally reliable.
28. An another point raised by the Ld. Defence Counsel on this account is that the accused had not entered into the house of the victim. The mother had seen him near the main entry gate.
29. Ld. Addl. PP had argued that from the statement of the PW2, the victim, it is quite clear that the accused had come into the victim house. He persuaded the victim to believe that he would marry her. He had sexual intercourse with the victim; and after completion of this act when the victim was giving him water to drink; her mother woke up. As per Ld. Addl. PP only by this statement the entire series of the evidence against the accused has been proved.
JUDGEMENT 15 | P a g e State Vs. Dildar
30. This Court is also of the view that the submissions of the Ld. Addl. PP are logical. The accused had entered the house of the victim; he persuaded the victim by his promise of marriage; had sexual intercourse with her; and was seen by the mother of the victim. When this accused found himself within the gaze of mother's sight, he started running from the house. The Victim being frightened in the circumstances also accompanied him. The mother had already stated that she was restless at that time owing to the sickness of victim's brother. This is quite sufficient to show and prove that the accused had entered the house of the victim and committed the offences as charged against him.
31. Ld. Defence Counsel raised one more point that that the statement of the mother of the victim and victim are not identical and these statements are diverging. Ld. Defence Counsel argued that these statements cannot be hold true if taken and seen together. Ld. Defence counsel points out to the specific circumstances e.g. the mother said that she was not sleeping but was restless at that time while the victim stated that her mother was sleeping and woke up by the noise of the refrigerator. Ld. Addl. PP argued that an event is always viewed by the observers subjectively. When two different observers observe an incident, they observe their different details. Ld. Addl. PP further argues that the details can be wholly identical only if these are subsequently manipulated. Variation in details as observed and stated by these witnesses is indicative that both the witnesses have deposed in the Court truthfully and their version was not tainted by any subsequent tutoring.
32. The submissions of Ld. Addl. PP appear to be quite reasoned and logical. Both the witnesses are found truthful and reliable. There is no ground to disbelieve their statements/testimonies. On the basis of their statement the accused is hereby held guilty for the offences punishable under Section 376 and 457 IPC. JUDGEMENT 16 | P a g e State Vs. Dildar Pronounced in the open court on 19.05.2014.
Dr. PS MALIK Addl. Sessions Judge N/E Karkardooma Courts, Delhi JUDGEMENT 17 | P a g e State Vs. Dildar IN THE COURT OF DR. PS MALIK, ADDL. SESSIONS JUDGE, NORTH EAST, DELHI Nature of the case Sessions Trial SC No. 119/2012 FIR No. 303/2012 Computer ID of the case 02402R0033572012 Penal Sections invoked 376/457 IPC Police Station Nand Nagari Date of Committal 21.12.2012 Charge framed on 24.01.2013 Date of Conviction 19.05.2014 Date of arguments on sentence 23.05.2014 Date of Orders on Sentence 23.05.2014 State Vs. Dildar, S/o Sh. Bakar Ali, R/o H.No. F1/105, Nand Nagari, Delhi.
Order on Sentence
33. The convict Dildar was held guilty and convicted for offence punishable under Section 376 and 457 IPC vide order dated 19.05.2014.
34. Ld. Counsel for convict argued on the point of sentence on 22.05.2014 and Ld. Substitute Addl. PP has argued today i.e. on 23.05.2014. JUDGEMENT 18 | P a g e State Vs. Dildar
35. Ld. Defence Counsel has argued that the convict was in friendly relations to the victim and she was a consenting party at the time of the alleged offence. He stated that convict has to bear responsibilities of sustaining his old and ailing parents and one unmarried sister. Ld. Defence Counsel further argued that this is a right case for having a lenient view on sentence.
36. On the other hand, Ld. Substitute Addl. PP for the State has argued that in this case not only a legal wrong was committed but a moral wrong was also committed by the convict. He not only had sexual intercourse with a girl under 18 years of age but also he had done it after a false promise of marriage. It was this promise of marriage which induced the victim to open the door of her house on the date and time of the incident. Ld. Substitute Addl. PP further argued that his presence in the house was just to cause annoyance in the mind of the victim and the conduct of the accused right after the commission of offence is quite significant to show his incorrigible attitude. He did never come forward and accept his wrong; rather he tried to conceal himself in the nearby bushes. Ld. Substitute Addl. PP also submitted that convict does not deserve any leniency and the strict punishment should be given to him.
37. This Court has heard the arguments.
38. The language of Section 376 IPC as it stood in 02.09.2011 reads as follows:
"376. Punishment for rape.(1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years ...."
39. The minimum sentence prescribed here is for 7 year. JUDGEMENT 19 | P a g e State Vs. Dildar
40. After considering the age of the convict and the friendly relationship which he had to the victim, this Court is of the view to award the punishment of simple imprisonment for 7 years for the offence punishable under Section 376 IPC.
41. The language of Section 457 IPC reads as follows:
"Lurking housetrespass or housebreaking by night in order to commit the offence punishable with imprisonment. Whoever commits lurking housetrespass by high, or housebreaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years".
42. In the present facts and circumstances a punishment of simple imprisonment of 4 years is given to the convict Dildar for the offence punishable under Section 457 IPC.
43. Both these punishments shall run concurrently and will be subject to remissions as per general or particular rules legislated by the appropriate governments.
44. The convict will be entitled to the benefits under Section 428 CrPC for the term of detention which he has already undergone in relation to this case. A copy of the judgment and the order on sentence be given free of cost to convict and the prosecution.
Pronounced in the open court on 23.05.2014.
JUDGEMENT 20 | P a g e State Vs. Dildar Dr. PS MALIK Addl. Sessions Judge N/E Karkardooma Courts, Delhi JUDGEMENT 21 | P a g e