Delhi District Court
State vs Micheal Joseph on 12 November, 2013
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 54/13
Unique ID No. : 02401R0140462013
State versus Micheal Joseph
S/o Sh.Jhimmi
R/o 96/2, Gali No.8,
Village Wazirabad,
Delhi.
Case arising out of:
FIR No. : 316/12
Police Station : Burari
Under Section : 376/328/506 IPC
Judgment reserved on : 30.09.13
Judgment pronounced on : 12.11.13
JUDGMENT
Prosecution Case The brief facts of the case as borne out from the charge sheet are that the Prosecutrix 'R' [name withheld to protect her identity] came to PS Timarpur on 27.11.2012 along with the accused. However, pursuant to an understanding between them, she left from there. It is undisputed that a compromise was arrived at between accused and the Prosecutrix on that day at the PS. Subsequently, on 17.12.2012, Proecutrix again came to the PS Timarpur and lodged a written complaint, wherein she alleged that she is a resident of B75, Delhi Admn. Station Flat Timarpur, Delhi and had studied up to 10th Class. About 9 years back she came into contact with accused Michael Joseph, who used to reside at 96/2, Gali No.8, Wazirabad, Delhi and had one accommodation at Burari, Kamalpur, Delhi also. She further stated in her complaint that earlier she used to reside at C34, Boulward Road, Delhi and accused Michael Joseph gave false promise of getting her job and on the pretext of getting a job, took her to a Park at CP, Delhi in the month of June, 2003 and from there he took her to his house at Kamalpur, Burari. She further alleged in her complaint that accused offered her Pepsi and after consuming the same she started feeling intoxicated. Thereafter, the accused established physical relations with her without her consent and despite her resistance. She also alleged that the accused also threatened to kill her if she disclose about the incident to any one. It was due to the fear of insult of herself and her family in the society, she had not disclosed the same to anyone. She also alleged that the accused Michael Joseph committed rape upon her at several places without her consent forcibly and upon her refusal he assured her to marry her. She further stated in her complaint that at several times she got pregnant however, accused Michael Joseph impressed upon her for abortion. Whenever complainant put pressure upon the accused for marriage, he used to postpone it on one pretext or the other.
She also alleged that in the Month of March, 2012 when she again got pregnant, she had asked the accused for marriage and it is only then the complainant came to know that the accused Michael Joseph was already married. She also stated that earlier she had lodged a complaint against the accused and had come to the PS in connection with the said complaint where accused was also present there and it was on his assurance she agreed for not taking any legal action against him at that point of time. However, now the accused is hiding from her and is threatening her and not marrying her.
On the basis of her complaint, a case under Section 376/328/506 IPC was registered, prosecutrix was got medically examined, statements of the witnesses were got recorded and site plan was also prepared. During the course of further investigation, accused Michael Joseph was arrested and his medical examination was also got conducted. On 23.12.2012, Prosecutrix gave birth to a baby girl, the papers pertaining to which were collected from the concerned Maternity Centre and after the completion of investigation, the charge sheet was filed in the court.
Charge On the basis of material of record, accused was charged for offence punishable under Section 376 IPC vide order dated 05.04.13. Subsequently, an additional charge for the offence under Sections 328/506 (PartII) IPC was also framed against the accused vide order dated 26.10.2013. Accused pleaded pleaded not guilty and claimed trial when the aforesaid charges were read over and explained to him. Prosecution Evidence The Prosecution examined 7 witnesses to prove the guilt of the accused.
The Prosecutrix was examined as PW1. She deposed before the court that she knows the accused for the last 10 years. In the year 2003, she met him through her uncle, who had assured her that the accused would secure a job for her. In June, 2003, accused took her to his house at Burari and on the way he offered her 'Pepsi' and after consuming the same, she became unconscious and thereafter accused established physical relations with her and despite her resistance. At that time, the victim was not aware of the fact that accused is already married and having two children. She also deposed that she returned to her house, but she did not disclose about the incident to any one in her house due to fear as the accused had threatened to kill her in case if she disclose about the incident to any one. Moreover, her father was also cancer patient and she was worried about him and that is why she did not state this incident to him. The Prosecutrix PW1 further deposed that in the month of July, 2003 she was threatened by the accused that he would ruin her reputation and under this threat, she was taken by the accused to Surajkund, Faridabad, where she was raped by the accused. She also stated that whenever she used to refused the accused for establishing the sexual relations, he used to assure her that he will marry her. Due to the sexual relations with the accused, she became pregnant 34 times and the accused gave her some medicines which led to abortion. She also stated that in the month of March, 2012, she again conceived and requested accused to marry her, but the accused evaded the issue of marriage on one pretext or the other. Thereafter, she lodged a complaint at PS Timarpur on 15.10.2012 and she was called to the PS on 27.11.2012 and the matter was got compromised at the PS. However, on 17.12.2012 the Prosecutrix again lodged a complaint in the PS Timarpur. She proved her complaint dated 17.12.2012 as Ex.PW1/PX1 and the case was registered there upon. She was got medically examined at Aruna Asaf Ali Hospital, where she also told the alleged history to the examining doctor.
During the course of her deposition, the Prosecutrix stated that the accused had married to her on 04.03.2013 i.e. after the registration of the FIR and has also accepted her child and given his name to her and as such she do not want any action to be taken against the accused now.
The Prosecution further examined the mother of the Prosecutrix as PW4. PW2 is Sh.Kailash Kumar, who is the owner of flat No.C34, Boulward Road, Delhi, which has been let out to the family of the Prosecutrix 'RC'. PW3 is HC Narender Singh who deposed that while working as MHC(M) at PS Burari, he collected the sealed pulandas pertaining to this case on different dates and deposited the same in the malkhana. He also deposed regarding handing over of those sealed pulandas for onward submission to the FSL for opinion against their receipt. He also proved the relevant entries to this effect in his deposition.
PW5 is Ct.Ajay who deposed regarding handing over of the copy of FIR and original rukka to SI Veena Kumari for investigation on 17.12.2012.
Dr.Prashant Kumar was examined as PW6 who deposed regarding having conducted the medical examination of the Prosecutrix on 17.12.2012 and proved the same as Ex.PW6/A. PW7 is IO/SI Veena Kumari who conducted the investigation of the case. She deposed regarding the medical examination of the Prosecutrix, collection of her MLC thereof and other medical documents, arrest of accused on 19.12.2012 vide arrest memo Ex.PW7/C, conduct of personal search of the accused vide memo Ex.PW7/D, recording of his disclosure statement vide memo Ex.PW7/E, preparing of pointing of memo at the instance of accused vide memo Ex.PW7/F, medical examination of accused vide MLC Ex.PW7/G, conducting of his potency test vide Ex.PW7/H and collection of his blood sample vide seizure memo Ex.PW7/I. This witness further deposed that during the course of investigation, the complainant gave birth to a female child. She collected the exhibits of the blood sample of the complainant and her baby and seized them vide memo Ex.PW7/J and also collected the discharge slip of the complainant vide seizure memo Ex.PW7/K. This witness further deposed about the preparation of site plan vide Ex.PW7/M, sending of the exhibits to the FSL, recording of the statements of the witnesses and upon completion of the investigation filing of charge sheet in the court.
Plea of the Accused and Defence Evidence The incriminating evidence was put to the accused in his statement recorded under Section 313 CrPC. He pleaded innocence stating that he has been falsely implicated in this case. He stated that the Prosecutrix established physical relations with him with her consent. He admitted that a female child was born to her out of their relationship and she is his daughter. He never forced or threatened the Prosecutrix. He also stated that all family members of Prosecutrix were also aware of their relationship. Accused did not lead any evidence in his defence.
Arguments, Analysis and Findings It is pertinent to mention at this juncture that it is matter of record and an admitted position that after the registration of FIR, the accused married the Prosecutrix at Arya Samaj Temple at Burari on 04.03.2013. It is also not in dispute that a child was born to the Prosecutrix. The accused in his statement recorded under Section 313 Cr.PC has accepted that he is the father of the child. He also claimed that the Prosecutrix established physical relations with her consent and all her family members were also aware of their relationship.
During the course of arguments, it was strongly argued by learned defence counsel that at the time of arguments on the bail application, a settlement was arrived between the accused and the Prosecutrix and in pursuance thereto, accused has transferred property bearing No.Gali No.4, Khasra No.5/5, Sangam Vihar,Wazirabad, Delhi110084 in the name of the Prosecutrix, besides depositing Rs.5 lacs in the name of the child by way of a FDR and is also paying the maintenance to the Prosecutrix @ Rs.15000/ per month.
It is further argued that the Prosecutrix was aware of the marital status of the accused from the very beginning, despite which she continued to establish sexual relations with the accused and hence the allegation that accused continued raped her after giving assurance of marriage is totally false and the accused is innocent. The case of the Prosecution is also opposed on the ground of delay in lodging the FIR.
On the other hand, ld. APP strongly argued that the Prosecutrix has stated in her crossexamination that she became aware of the marriage of the accused only in the year 2006. She has also clearly deposed that the physical relations between her and the accused were established without her consent on the first and second occasion. The consent of the Prosecutrix for continuing sexual relations with the accused subsequently also cannot be said to be the result of her free consent as she was given assurance for marriage by accused. Further, it is borne out from her testimony that she only wanted the accused to accept their child and give her his name and it is for this reason she deposed before the court that she does not want any action to be taken against the accused.
I have considered the submissions made before me in the light of evidence on record. The Prosecutrix PW1 is the most important witness of the Prosecution in this case. In her deposition, she claimed before the court that the accused established physical relations with her for the first time in the month of June, 2003 when he took her to his house at Burari and offered her a soft drink, after consuming which she became unconscious and the accused raped her. She further deposed that she did not disclose about this incident to any one due to fear as the accused had threatened to kill her. She also deposed that her father was a cancer patient and she was worried about him and that is why she did not state this incident to him. The accused again threatened her to ruin her reputation and raped her in the month of July, 2003. She further deposed that the accused met her again after 23 months and assured her that he will live with her and marry her and also expressed regret for his aforesaid. She also deposed that accused continued to establish sexual relations with her by giving assurance that he will marry her. It is also born out from her testimony that she became aware of the marital status of the accused in the year 2006.
Prosecutrix PW1 upon being crossexamined by learned defence counsel admitted that she would not have lodged her complaint Ex.PW1/PX1 if the accused had married her earlier. However, in the same breath, she also strongly denied the suggestion that "every time accused established physical relations with her, it was with her consent. Voluntarily, she deposed that on the first and second occasion, the physical relations were established between her and the accused without her consent." Prosecutrix PW1 also deposed before the court that she is a 'Hindu', whereas the accused is a 'Christan' by religion. The accused had not taken divorce from his first wife nor did he informed the priest of Arya Samaj Temple that he was already married. The Prosecutrix also deposed that "I know that I am not legally wedded wife of the accused. (Vol. I only wanted him to accept our child and give her his name who was born on 23.12.2012 and because of this reason, I am stating that I do not want any action against the accused.)"
It thus appears from her statement before the court that the Prosecutrix upon being raped by the accused initially succumbed to her fate that accused has already established sexual relations with her and she continue to believe his assurance of marriage. Upon coming to know about his first marriage in the year 2006, the Prosecutrix continued to be in relationship with the accused. However, prior to 2006, particularly on the first and the second occasion, when accused established physical relations with her, the Prosecutrix has deposed in categoric terms before the court that the said relations were not established with her consent. There is no reason to disbelieve this testimony of PW1, which remained unimpeached despite her crossexamination.
Prosecutrix has also candidly admitted in her testimony that the matter was compromised at the police station earlier and no action was taken by the police there till 17.12.2012. She also deposed that she did not request the police to register a case against the accused after the matter was compromised on 27.11.2012.
The aforesaid circumstances and the evidence on record thus clearly indicate that the accused, after sexually exploiting the Prosecutrix, continued to give her assurance that he will marry her. The Prosecutrix approached the police on 15.10.2012, but the matter was compromised. She finally give the complaint dated 17.12.2012 to the police when the case against the accused was registered.
It is also note worthy that the accused solemnized the 'socalled marriage' with the Prosecutrix only on 04.03.2013 i.e. after registration of present FIR and that too without giving divorce to his first wife and without following the procedure as per law despite he being Christan and the Proescutrix being a Hindu. It is also apparent that it is only during the course of arguments on the bail application that the accused offered to pay maintenance to the Prosecutrix and the child and to transfer the property in her name, obviously, only in order to save his skin.
Apparently, no effort either to marry the Prosecutrix or accept the child or to support her financially, was made by the accused prior to the registration of the FIR. Rather, the Prosecutrix in her testimony deposed that the accused established physical relations with her on first two occasions without her consent and thereafter upon giving her assurance of marriage. Hence, the aforesaid act of the accused till the year 2006 when the Prosecutrix came to know about his marital status, cannot be said to be absolved, merely because the accused subsequently entered into a settlement with the Prosecutrix or solemnized the marriage ceremony with her in March, 2013 at Arya Samaj Temple.
It is necessary to reiterate at this juncture, even at the cost of repetition, that the Prosecutrix apparently continued to resign to her fate on the said assurance and the delay, if any, in the registration of the FIR, in these circumstances, is properly explained.
It is also pertinent to mention that the mother of the Prosecutrix PW4 also voluntarily stated before the court that the accused used to request her daughter with folded hands outside the court to save him. She also stated that her daughter used to come to the court alone and she might have been talked into signing the agreement by the defence counsels at the time of consideration of the bail application. Hence, the possibility of coercing the prosecutrix to enter into agreement by the accused, when he found the sword hanging above his head, cannot be ruled out. Moreover, the Prosecutrix who was only interested in the well being of her child, probably agreed to such a settlement. However, no such settlement, in the facts of the present case, and the offence committed by accused, being noncompoundable, can be said to absolve the accused of the offence committed by him.
Reliance may be placed on the judgment titled as State of Punjab vs. Gurmit Singh & Ors., AIR 1996 SC 1393(1), wherein the Hon'ble Supreme Court while relying upon the effect of rape on victim and the duty of the court while appreciating the evidence has held as under:
"Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex of crimes. We must remember tht a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious physhological as well as physical harm in the process. Rape is not merely a physical assault, it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrade the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. ..................................................................................... .......... The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
Accordingly, in the light of the above discussion and the evidence on record, the Prosecution, in my view, has been able to prove the charges under Sections 376/328/506 (PartII) IPC against the accused. The accused Michael Joseph S/o Sh.Jhimmi is hereby convicted for the aforesaid offences. Let him be heard on the point of sentence.
Announced in the Open Court on 12.11.13 (Kaveri Baweja)
Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.
In the Court of Ms. Kaveri Baweja Additional Sessions Judge Special FTC - 2 (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 54/13
Unique ID No. : 02401R0140462013
State versus Micheal Joseph
S/o Sh.Jhimmi
R/o 96/2, Gali No.8,
Village Wazirabad,
Delhi.
Case arising out of:
FIR No. : 316/12
Police Station : Burari
Under Section : 376/328/506 IPC
Judgment pronounced on : 12.11.13
ORDER ON SENTENCE
Vide judgment dated 12.11.2013, Accused Michael Joseph S/o Sh.Jhimmi has been convicted for the offence punishable under Sections 376/328/506 (PartII) IPC.
It is submitted by learned counsel for the above named convict that initially the incident of rape is of the year 2003 and thereafter admittedly accused accepted the Prosecutrix as his wife and even the child born out from their relationship. He submits that it is a matter of record that he has made arrangements for their financial security by way of of FDR in the name of the child, payment of monthly maintenance and also by transferring immovable property in the name of the Prosecutrix. It is further submitted that the convict has a family comprising of wife and two grown up children and has to shoulder their responsibility also.
Learned counsel for the convict further submits that maximum leniency be shown towards the above named convict in view of the fact that the convict has taken all steps to take care of the Prosecutrix and the child born out from their relationship, who has already been accepted by him as his daughter.
On the other hand, learned APP submitted that the socalled concern towards Prosecutrix by the convict apparently surfaced only after registration of the FIR and not prior thereto. In fact, the Prosecutrix was being continuously exploited both sexually and mentally by the convict since the year 2003 and she continued to bear the same despite knowing about his first marriage, only for the sake of her reputation and later for the sake of acceptance of her child by the convict. It is submitted that in these circumstances there is no ground whatsoever for reducing the sentence or for showing any leniency towards the convict.
I have heard the rival submissions made before me in the light of the facts and circumstances of the case. Though, it is a matter of record that the convict deposited the FDR in the name of the child, paid monthly maintenance and also transferred immovable property in the name of the Prosecutrix, but at the same time, it is crystal clear that these steps were taken by the convict only during pendency of his bail application. Moreover, he entered into a marriage alliance with the Prosecutrix on 04.03.2013 i.e., after the registration of the FIR. The said marriage also is not apparently not recognized in the eyes of law. Further, the Prosecutrix brought on record an application during the course of trial dated 13.09.2013 alleging that she has been receiving threats from the convict. She also stated in the said complaint that she is not interested in any financial benefits which have been extended to her by the convict and she only wants justice for herself.
It is further laid down by the Hon'ble Supreme Court in its recent judgment titled as Shimbhu & Anr. vs. State of Haryana, 2013 IV AD (Crl.) (SC) 279 that "Rape is a non compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. In the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) of IPC."
In view of the aforesaid, I find that there is no ground to exercise any discretion in favour of the convict as per provisions of Section 376(2) IPC, keeping in view the totality of the facts and circumstances of the case. Accordingly, the above named convict is sentenced as under:
i) For the offence punishable under Section 376 IPC, the above named convict is directed to undergo RI for a period of 07 years in addition to payment of fine of Rs.10,000/. In default of payment of fine, he shall undergo SI for 02 years.
ii) For the offence punishable under Section 328 IPC, the above named convict is directed to undergo RI for a period of 05 years in addition to payment of fine of Rs.2500/. In default of payment of fine, he shall undergo SI for 01 year.
iii) For the offence punishable under Section 506 (PartII) IPC, the above named convict is directed to undergo RI for a period of 05 years in addition to payment of fine of Rs.2500/. In default of payment of fine, he shall undergo SI for 01 year.
All the above sentences shall run concurrently. Needless to add that the convict shall be entitled to benefit of Section 428 CrPC, if any.
The aforesaid amount directed to be deposited by way of fine is directed to be paid to the victim by way of compensation. In addition thereto, it is recommended that under the provisions of Section 357A Cr.PC, the victim be awarded adequate compensation and the matter may be referred to the Secretary, Delhi Legal Services Authority (Central District) to decide the quantum of compensation in terms of Section 357A Cr.PC. A copy of the judgment and order on sentence be sent to the Secretary, DLSA (Central District) for compliance.
Copy of the judgment and order on sentence be given to the convict free of cost. File be consigned to Record Room.
Announced in the Open Court on 19.11.13 (Kaveri Baweja)
Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.