Delhi District Court
State vs . Wasim on 22 February, 2013
State Vs. Wasim
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01(CENTRAL)
TIS HAZARI COURTS: DELHI
SC No. 47 of 2012
ID No: 02401R0390982012
FIR No. : 42/2012
PS. : Chandni Mahal
U/S : 363/376/506/201/195-A IPC
STATE
VERSUS
WASIM
S/o Azimuddin
R/o Block No. 27, Jhuggi No. 23,
Trilock Puri, Delhi
........Accused
Date of Institution : 21.08.2012
Date of Committal to Sessions Court : 01.09.2012
Date of judgment reserved on : 20.02.2013
Date of pronouncement of judgment : 21.02.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State
Sh. Lokesh Khanna, Advocate, counsel for accused
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State Vs. Wasim
J U D G M E N T:
1. Briefly stated facts of prosecution case are that on March 27, 2012, complainant (being the father of rape victim, his identity is concealed and hereinafter he is referred to as either complainant or Mr. X) came to police post Turkman Gate, Delhi and got lodged an FIR alleging that his daughter (since she is the victim of rape, her identity is concealed and hereinafter referred to as victim) aged about 14 years was missing from the house since 4 AM on March 27, 2012. Complainant raised suspicion over the accused Wasim and alleged that accused had kidnapped his daughter (victim). On the basis of his statement, an FIR (Ex.PW1/A) for the offence punishable under Section 363 IPC was got registered.
2. It was alleged that victim herself appeared in the police station Hauz Qazi on April 2, 2012 and got recorded her statement under Section 161 Cr.P.C in the presence of her parents stating that she had left from her house in the morning of Mach 27, 2012 and she called the accused Wasim at Turkman Gate. Accordingly, accused reached there in his car. Thereafter, she along with accused went to Kaliyar Sharif near Haridwar where they stayed in a guest house and they shared the bed in the night. She further disclosed that they left from Kaliyar Sharif on April 2, 2012 at about 11 AM and reached Kashmiri Gate bus stand at about 5 PM from where accused got hired one TSR to her and thereafter she reached the police station. On medical examination, her hymen was found torn. Her statement under Section 164 Cr.P.C was got recorded on April 10, 2012. It was alleged that accused Wasim had surrendered himself before the Court on May 25, 2012. Accordingly, accused was arrested and he was SC No. 47/12 Page no. 2 of 18 State Vs. Wasim interrogated. During interrogation, accused had pointed out the Guest house where he stayed with the victim. At the instance of the accused, clothes of victim were also recovered. It was alleged that the complainant had also moved an application before the Court of the learned Metropolitan Magistrate alleging that accused had threatened him to withdraw the complaint. Accordingly, accused was examined in the jail.
3. After completing investigation, challan was filed against the accused for the offence punishable under Section 363/376/506/201/195 A IPC.
4. After complying with the provisions of Section 207 Cr. P.C., case was committed to the Court of Sessions on August 23, 2012. Thereafter, case was assigned to this Court on September 1, 2012. Accordingly, case was registered as Sessions case No. 47/2012.
5. Vide order dated September 18, 2012, a charge for the offence punishable under Section 363/376/506 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
6. In order to bring home the guilt of accused, prosecution has examined as many as following 14 witnesses:-
PW1 HC Devender Kumar, duty officer, proved the FIR PW2 Mr. X, father of the victim PW3 Mrs. X (being the mother of victim, her identity is concealed) PW4 Lady const. Archna, formal witness PW5 Const. Sandeep, formal witness SC No. 47/12 Page no. 3 of 18 State Vs. Wasim PW6 Const. Krishan Kumar, formal witness PW7 Sh. Rajiv Ranjan, Nodal officer PW8 Const. Rajesh, member of investigating team PW9 victim PW10 Dr. Pranati, proved the MLC of victim PW11 SI Sangeeta, investigating officer PW12 Sh. R. K. Gupta, Sub-Registrar, proved the birth certificate of victim PW13 SI Yashpal, 1st investigating officer PW14 HC Kishan Chand, MHC(M)
7. After culmination of the prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he admitted that he knew the victim as she was in his relation and further admitted that victim had made a call to him and asked him to take her. He further admitted that on her persistent requests, he reached Turkman Gate on March 27, 2011 at about 5.15 AM. Accordingly, victim sat in his van and thereafter they went to Kaliyar Sharif and they stayed there at hotel Rahi Tourist Banglow till April 2, 2012 and he maintained physical relations with victim. However, he took the plea that he maintained physical relations with the consent of victim. He also admitted that he was medically examined and his blood sample was taken and he pointed the guest house to the police. He further submitted that when he refused to come at Turkman Gate, victim had given her kasams (swear) and insisted that if he had not accompanied her to Roorki, she would commit suicide. Accordingly, he went to Roorki along with victim. He further submitted that he had handed over the love letters written by the victim to the police, but police did not place the same on record. However, he preferred not to lead any evidence in his defence.
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State Vs. Wasim
8. Learned counsel appearing for the accused vigorously
contended that the prosecution has failed to bring home the guilt of accused as victim (PW9) in her deposition categorically deposed that she had compelled the accused to accompany her to Kaliyar- Sharif and when accused refused, she had insisted the accused persistently and also gave her kasams (swear), accordingly accused succumbed to her requests and accompanied her to Kaliyar Sharif. It was submitted that since victim had compelled the accused to accompany her and there is no evidence that accused had induced or enticed the victim in any manner, no case is made out against the accused for the offence punishable under Section 363 IPC.
9. Learned counsel further assailed the prosecution case by vehemently arguing that since the victim was above 16 years of age and she maintained physical relations with the accused of her own volition, thus no offence is made out against the accused for the offence punishable under Section 376 IPC, It was further urged that victim had not uttered even a single word about the threat. Even the complainant had also not alleged about the threat, thus no offence is made out against the accused for the offence punishable under Section 506 IPC.
10. Per contra learned Additional Public Prosecutor refuted the said contentions by arguing sagaciously that since victim was just 14 years and 4 months old at the time of incident, her consent is not relevant to constitute the offence of rape. It was submitted that since accused has admitted the physical relations with the victim, it is established that accused had committed rape upon the victim. It was further submitted that since the accused had induced the victim to go to Kaliyar Sharif, Roorki and on his inducement victim had left from her house, accused has also committed the offence punishable under Section 363 IPC. However, he candidly conceded SC No. 47/12 Page no. 5 of 18 State Vs. Wasim that there is no evidence for the offence punishable under Section 506 IPC.
11. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
12. From the submissions raised by counsel for both the parties, first crucial question comes forth for adjudication is what was the approximate age of the victim at the time of alleged incident?
13. In this regard, the testimony of PW2, PW3, PW9 and PW12 are relevant.
14. PW2 and PW3 are parents of the victim. PW2 deposed that victim was about 14 years old at the time of incident whereas PW3 deposed that victim was about 16 years old at the time of incident. But both the witnesses failed to depose the exact date of birth of the victim. It is pertinent to mention here that PW2 and PW3 are illiterate persons. Thus, they were unable to depose the actual date of birth of the victim. PW9 is the victim and deposed that she was about 17 years old at the time of incident. However, she also failed to disclose her date of birth. Thus, it becomes clear that victim as well as her parents failed to disclose the actual date of birth.
15. However, PW3 in her deposition deposed that after the birth of PW9, her birth was got registered after about eight days. In order to prove the exact age of victim, prosecution has also examined Sub-Registrar of Birth and Death as PW12 Mr. R. K. Gupta, who deposed that PW3 (mother of victim) had delivered a female child i.e. victim on November 15, 1997.
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State Vs. Wasim
The relevant entry was made in the register at serial No. 137 on November 20, 1997. He further deposed that the information about the birth of victim was given by her grand-mother Amtulmubbin. Since the entry was made in the register on November 20, 1997, it means that the information must be given on November 20, 1997. Thus, PW12 corroborates the testimony of PW3 that the birth of victim was got registered after few days of her birth. In the absence of any contrary evidence, I do not find any reason to disbelieve the testimony of PW12. In my opinion, testimony of PW12 establishes that the victim was born on November 15, 1997. Since the alleged incident had taken place on March 26, 2012, thus victim was about 14 years 4 months and 11 days old at the time of incident.
16. Next question emerges for adjudication as to whether accused had committed the offence of rape or not? In this regard, the testimony of victim (PW9), PW10 and statement of accused recorded under Section 313 Cr.P.C are relevant.
17. Before analysing the testimony of above witnesses, I deem it appropriate to refer sixth clause to Section 375 IPC, which runs as under:
375. RAPE :- A man is said to commit "rape" who, except in the case hereinafter excercised, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
Sixthly- With or without her consent, when she is under sixteen years of age.
Exception:- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
(emphasis supplied)
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State Vs. Wasim
18. Thus, it is limpid that if sexual intercourse is performed with a girl below 16 years of age, her consent is not relevant. In other words, to constitute the offence of rape, consent of PW9 is not relevant. It means that to prove the culpability of the accused, prosecution has only to establish that accused had maintained physical relations with PW9 (victim).
19. PW9 in her testimony categorically deposed that they stayed at an hotel at Roorki where they (victim and accused) had physical relations twice. She further deposed that she became pregnant from the accused.
In her cross-examination, she deposed that she had maintained physical relations with the accused voluntarily and without any inducement or pressure. Accused also admitted this fact in his statement recorded under Section 313 Cr.P.C by stating that he had physical relations with the victim but took the plea that he maintained the same with the consent of victim. Since, victim was below 16 years of age at the time of incident, her consent is not relevant to constitute the offence. Further, the testimony of PW9 is also corroborated by the medical evidence as PW10 Dr. Pranati deposed that on examination she found that the hymen of victim was torn. Thus, it is proved beyond the shadow of all reasonable doubts that accused had maintained physical relations with the victim despite the fact that she was below 16 years of age at the time of incident, thus the act of accused amounts to 'rape' as defined under clause sixth to Section 375 IPC, hence accused is liable for the offence punishable under Section 376 IPC.
20. Next question arises for adjudication as to whether there are sufficient evidence to constitute the offence punishable under Section 363 IPC or not? In this regard, the testimony of PW9 is relevant.
21. Before analysing the testimony of victim (PW9), I deem it SC No. 47/12 Page no. 8 of 18 State Vs. Wasim appropriate to have a look over the relevant provisions of law and case law as well.
22. In order to prove the guilt of accused for the offence punishable under Section 363 IPC, prosecution is duty bound to fulfil the requirements of kidnapping as defined under section 361 IPC and same runs as under:-
"Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
(emphasis supplied) Taking or enticing away a minor out of keeping of lawful guardian is an essential ingredient of the offence of kidnapping.
23. In case S.Varadarajan v. State of Madras AIR 1965 SC 942, it was held:-
Para7 : ".....It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to "taking" out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning SC No. 47/12 Page no. 9 of 18 State Vs. Wasim of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompany him the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him."
Para-9: "It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from SC No. 47/12 Page no. 10 of 18 State Vs. Wasim the keeping her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian."
"It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".
(emphasis supplied)
24. In case Parkash v. State of Haryana, AIR 2004, SC 277, it was held:-
Para 6...."The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor . . . . . . . . . . . . . . . . . . . . . . . . out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of the word "Keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being SC No. 47/12 Page no. 11 of 18 State Vs. Wasim available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuation by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the Section .
Para 7: "In State of Haryana v. Raja Ram (1973 (1) SCC 544) English decisions were noticed by this Court for the purpose of illustrating the scope of the protection of minor children and of the sacred right of their parents and guardians to the possession of minor children under the English Law. The decisions noticed were Reg v. Job Timmins (169 English Reports 1260); Reg v. Handley and another, (175 English Reports 890) and Reg v. Robb (176 English Reports 466). In the first case Job Timmins was convicted of an indictment framed upon 9 Geo. IV, Clause 31, Section 20 for taking an unmarried girl under sixteen out of the possession of her father, and against his will. It was observed by Erle, C. J. that the statute was passed for the protection of parents and for preventing unmarried girls from being taken out of possession of their parents against their will. Limiting the judgment to the facts of that case it was said that no deception or forwardness on the part of the girl in such cases could prevent the person taking her away from being guilty of the offence in question. The second decision is authority for the view that in order to constitute an offence under 9 Geo. IV, Clause 31, Section 20 it is sufficient if by moral force a willingness on the part of the girl to go away with the prisoner is created; but if her going away with the prisoner is entirely voluntary, no offence is committed. The last case was of a conviction under the Statute (24 and 25 Vict. Clause 100, Section 55). There inducement by previous promise or persuasion was held sufficient to bring the case within the mischief of the State. In the English Statutes the expression used was "take out of the possession" and not "out of the keeping" as used in Section 361, I. P. C. But that expression was construed in the English decisions not to require actual manual possession. It was enough if at the time of the taking the girl continued under the care, charge and control of SC No. 47/12 Page no. 12 of 18 State Vs. Wasim the parent : See Reg v. Manketelow (6 Cox Criminal Cases 143). These decisions were held to confirm the view that Section 361 is designed also to protect the sacred right of the guardians with respect to their minor wards.
Para8: "The position was again reiterated in Thakorlal D. Vadgama v. The State of Gujarat (AIR 1973 SC 2313) wherein it was, inter alia, observed as follows :
"The expression used in Section 361, I.P.C. is "whoever takes or entices any minor". The word "takes" does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, "to cause to go," "to escort" or "to get into possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices", as used in Section 361, I. P. C. are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361, I. P. C."
(emphasis supplied)
25. In the light of above settled proposition of law, the deposition of PW9 will be analyzed to ascertain as to whether accused had committed the offence of kidnapping or not?
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26. Now, I proceed to examine the testimony of PW9 (victim) to ascertain as to whether there was any inducement or enticement on the part of accused or not? PW9 in her examination-in-chief categorically deposed that on March 26, 2012, her father scolded her on the point of watching T.V. Accordingly, she made a call to accused Wasim and asked him to take her away from there. She further deposed that accused Wasim refused to accept her request and asked her not to leave the house. She further deposed that she requested the accused persistently and also gave her kasam (swear) to him. Upon this, accused agreed to come and accordingly accused reached Turkman gate on March 27, 2012 at about 5.15 AM. She further deposed that accused reached there at her repeated requests and further deposed that accused reached there in a maruti van and accordingly, she sat therein of her own and at that time, accused again asked her to think over but she insisted to take her away from there. She further deposed that she asked the accused to go to Kaliyar Sharif, Roorki. Accordingly, they went there and stayed at an hotel in Roorki till April 2, 2012, thereafter they returned to Delhi on April 2, 2012. She further deposed that she stayed there of her own free will and accused was not responsible in any manner. Though PW9 was cross-examined by learned Additional Public Prosecutor but even no suggestion was put to her that accused had induced or enticed her in any manner. Thus, from her deposition, it becomes crystal clear that accused did not induce the victim in any manner. On the converse, it was the victim, who made repeated requests to the accused to reach Turkman Gate on March 27, 2012 and even at that time also he asked the victim to ponder over her decision but she persistently requested the accused to take her away from there, accordingly accused and victim left for Kaliyar Sharif, Roorki. Thus, there is no iota of evidence to show that accused had induced or enticed the victim in any manner. Thus, in the light of the above settled proposition of law, I SC No. 47/12 Page no. 14 of 18 State Vs. Wasim am of the opinion that prosecution has miserably failed to bring home the guilt of accused for the offence punishable under Section 363 IPC.
27. Next question arises as to whether there is any evidence to prove the guilt of accused for the offence punishable under Section 506 IPC.
28. In this regard, the testimony of PW2, PW3 and PW9 are relevant. Perusal of their testimony reveals that they have not uttered even a single word about any threat or criminal intimidation. Thus, there is no infinitesimal evidence on record to bring home the guilt of accused for the offence punishable under Section 506 IPC.
Conclusion:
29. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to bring home the guilt of accused for the offence punishable under Section 376 IPC beyond the shadow of all reasonable doubts. Thus, I hereby hold the accused Wasim guilty thereunder. However, prosecution has miserably failed to bring home the guilt of accused for the offence punishable under Section 363/506 IPC, thus, I hereby acquit the accused thereunder.
Announced in the open Court On this 21st day of February 2013 (Pawan Kumar Jain) Additional Sessions Judge-01, Central, THC/Delhi SC No. 47/12 Page no. 15 of 18 State Vs. Wasim IN THE COURT OF SH. PAWAN KUMAR JAIN, ADDITIONAL SESSIONS JUDGE-01(CENTRAL) TIS HAZARI COURTS: DELHI SC No. 47 of 2012 ID No: 02401R0390982012 FIR No. : 42/2012 PS : Chandni Mahal U/S : 363/376/506/201/195-A IPC STATE VERSUS WASIM S/o Azimuddin R/o Block No. 27, Jhuggi No. 23, Trilok Puri, Delhi ........Convict Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State Sh. Lokesh Khanna, Advocate, counsel for the convict ORDER ON THE POINT OF SENTENCE:
1. Vide separate judgment dated February 21, 2013, accused Wasim has been held guilty for the offence punishable under Section 376 IPC.
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State Vs. Wasim
2. Learned counsel appearing for the convict requests for a lenient view on the ground that convict is a young boy of 26 years old and he is the sole bread earner of his family.
3. On the converse, Additional Public Prosecutor for the State requests for maximum sentence on the ground that convict had committed rape upon the minor girl aged about 14 years 4 months old.
4. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughful consideration to their contentions.
5. Rape is the only crime where victim becomes the accused as the rape victim especially, if victim is child, has to face short-term and long-
tern harm, including psychopathology in later life, psychological, emotional, physical, and social effects include depression post traumatic stress disorder, anxiety, eating disorders, poor self-esteem, dissociative and anxiety disorders; general psychological distress and disorders such as somatization, neurosis, chronic pain, sexualized behaviour, school/learning problems; and behaviour problems including substance abuse, destructive behaviour, criminality in adulthood and suicide.
6. Considering the ill effects of the rape and the fact that in the instant case also victim became pregnant and learned Additional Public Prosecutor pointed out that she has delivered a female child recently, I do not find any reason to take a lenient view as requested by learned defence counsel. Moreover, the minimum sentence has been provided under the IPC and no special reason has been pointed out to impose lesser SC No. 47/12 Page no. 17 of 18 State Vs. Wasim sentence.
7. In the light of above discussion, I hereby sentence the convict Wasim rigorous imprisonment for seven years and a fine of ` 10,000/- in default he shall further undergo simple imprisonment for a period of six months for the offence punishable under Section 376 IPC. Benefit of Section 428 of the Code of Criminal Procedure be given to convict.
8 Fine amount is not paid.
9. Copy of judgment along with order on the point of sentence be given to the convict/his counsel free of cost.
10. File be consigned to record room.
Announced in the open Court On this 22th day of February 2013 [PAWAN KUMAR JAIN] ASJ-01/CENTRAL/DELHI 22.02.2013 SC No. 47/12 Page no. 18 of 18