Delhi District Court
State vs . Sandeep @ Amit on 21 February, 2014
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 63/12)
Unique ID case No. 02404R0119022012
State Vs. Sandeep @ Amit
FIR No. : 77/2012
U/s : 323/365/376/506 IPC
P.S. : Sultanpuri
State Vs. Sandeep @ Amit
s/o Sh. Devtan Din
r/o C6/30, Sultanpuri
Delhi.
Date of institution of case 02.05.2012
Date on which, judgment has been reserved 17.02.2014
Date of pronouncement of judgment - 20.02.2014
JUDGMENT:
1 Briefly stated case of the prosecution is that on 20.02.2012 at about 7:30 PM, accused Sandeep @ Amit, who was friend of one of the brothers of the prosecutrix, kidnapped prosecutrix N, aged about 13 years, from her house bearing No. C4/8, LSC Market, Sultanpuri, Delhi, on pretext that Komal, friend of prosecutrix, was calling her and took her to a room at ground floor in a three storied building, situated behind the SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 1 of 26 2 Government School of C6 Block, Sultanpuri, Delhi, where he forcibly confined her and raped her against her wishes and consent. He further criminally intimidated her and threatened to kill her in case she raised alarm. As per the case of the prosecution, the victim alerted her brother Rajan, who was searching for her frantically by giving repeated calls on mobile phone of accused, from the mobile phone of accused himself. The brothers of prosecutrix reached the place, where accused had confined her, and rescued her from clutches of the accused. They also apprehended the accused at that place itself and called the police. The case was registered on complaint made by victim N. The accused was arrested by the police. During the course of investigation, accused as well as prosecutrix were got medically examined and samples collected from them, by respective doctors, were sent to FSL. After completing investigation charge sheet was prepared by the IO and filed in the Court through SHO concerned. 2 Upon committal of this case to the court of Sessions, charges for the offence under Sections 363/365/376/506 IPC was framed against the accused Sandeep @ Amit, however, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3 In order to prove its case, prosecution has examined 15 witnesses. Prosecutrix and other public witnesses 4 The PW6, Victim N, is the prosecutrix in the present case and she deposed that at the time of incident, she was studying in 7 th Class in Sarvodya Kanya Vidyalaya, SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 2 of 26 3 Sultan Puri while her elder brother Rajan was studying in 11th class and younger brother Ravi @ Abhishek was studying in 6th class and that accused was friend of her elder brother. The PW6 further deposed that on 20.02.2012 at about 7:30 PM, she was alone in her house with her younger brother and that her grandmother was in the upper part of the house and that on that day accused came to their house and asked her to accompany him to house of her friend Komal at P3 Sultan Puri, for which PW6 refused as she was studying. The PW6 then deposed that accused insisted that she (PW6) should go with him as her friend Komal was calling her and that she went with accused and that she did not tell her Dadi as she was in the upper part of the house and that they left their house on foot. The PW6 further deposed that accused did not take her to house of Komal but started following a different route and that she told accused that 'Komal ke ghar ka rasta idhar se nahi jata' to which accused told her 'abhi chalo aage se badal lenge' and that accused took her to a place in Sultan Puri, in a room behind a school, and that she did not know what place it was. The PW6 further deposed that the accused bolted the door from inside and that there was a sofa lying inside the room and that accused pushed her on the said sofa and told her that the room belonged to him and thereafter he removed clothes of PW6 and also removed his own clothes and did 'galatkam' with her. 5 Considering the tender age of witness, the witness was explained that if somebody slaped another person or told a lie that would also be a 'galatkam', and was then asked to explain what she means by 'galatkam'. The witness replied by stating that "usne pehle mujhe cheda chada. Maine jab roka toh usne mera SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 3 of 26 4 muh band kar diya. Usne apne kapde uttare aur mere kapade bhi uttar diye, aur apni peshab ki jagah meri pishabh ki jagah me dal di. Mujhe dard hua. Me shor nahi kar saki kyonki usne mera muh band kiya tha. Usne mujhe kuch na bolne ke liye kaha."
6 The PW6 further deposed that at that time her elder brother had given a call on the mobile phone of accused and that the accused attended the said call and told him that accused was in Mandi and that when her brother called again, accused told him that he was at house of Komal, friend of PW6, and that when her brother called for the third time, PW6 picked up the phone and told him that she was confined in a room behind the school and told him while crying to come and take her from there. The PW6 then deposed that her elder brother reached the said room and she pushed the accused, unbolted the door and came out and called out for her brothers from the Balcony and that she went home with her brothers. The PW6 further deposed that her brother gave a call at 100 number and Police came to their house and that she was taken for medical examination to SGM Hospital where she was medically examined and that PW6 told the doctor what had happened with her but she had not told the name of the person, who had committed wrong act with her as the doctor did not ask her his name. The witness identified her signatures on the statement Ex.PW6/A. The witness also identified her signatures on the photocopy of her statement u/s.164 CrPC i.e. Ex.PW6/B. The PW6 also proved the site plan of place of incident as Ex.PW6/C and stated that the same was prepared at her instance by the IO.
7 During her crossexamination by learned amicus curie, PW6 stated that she
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knew accused as he was friend of her brother and used to visit her house but she could not state since how many years he had been visiting their house. She further deposed that her mother was doing survey work for 'Polio Abhiyan' and that her father had an iron cutting machine installed in the upper portion of their house from where he was doing his work. The PW6 also deposed that accused was cousin brother of her friend Komal and that Komal used to visit her (victim N's) house. She further stated that there were three mobile connections in her family and that one mobile phone each remained with her mother, father and elder brother and that she did not have her own separate mobile phone. The PW6 also stated that their house was situated in a crowded locality. During her further crossexamination PW6 stated that when accused came to her house, she did not tell him that she would call up Komal and check from her if she had actually call PW6 or not. The PW6 clarified that Komal did not have a mobile phone. The PW6 further stated that she had not informed her younger brother Abhishek that she was going to house of Komal with accused and that she did not go to house of Komal very frequently and had never gone there, without telling her family members, on earlier occasion. The PW6 denied that whenever accused visited their house, she used to take 10 / 20 rupees from him for chocolate, etc. She also stated that she had sustained injury (khroach) on her left shoulder though her clothes were not damaged / torn in the incident. The PW6 further stated that when her brothers reached at the house of accused, she was wearing her kameej but she wore her paijami after they came and that accused was without any clothes at that time. The PW6 denied that on the day of incident, she had herself gone to the house of accused to take money from him or that accused was not in his senses on that day as it was Shivratri day and he had consumed Bhang. She also denied that she had taken away Rs.1500/ which accused got on that SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 5 of 26 6 day as his wages or that when her brothers saw her coming out of the house of accused she concocted this story against the accused.
8 The PW3, Smt. Lalmani Devi, is the grandmother of the victim N, and she has been put forth as a witness who had seen accused taking away victim N with him on pretext of going to house of Komal, friend of victim N. When the witness was being examined before the Court, it was observed that she was hard of hearing and was not capable of understanding normal Hindi language and that she was conversant with local dialect. This witness was thus examined with the help of Master Abhishek, 12 - 13 years old grandson of witness, who was present with her in the Court on that day and was even otherwise not a witness in the case. Learned Amicus Curie also had no objection to examination of the witness with the help of a support person. The support person namely Master Abhishek was asked some preliminary questions to ascertain his ability to understand the questions put by the Court and to translate them for PW3 and thereafter he was made to understand that he would be required to interpret the questions put by the Court to PW3 and further interpret the answers given by PW3 thereto, for the Court, without adding or improving upon the answers in any manner. Thereafter he was administered oath and statement of PW3 was recorded in question answer form.
During her said examination, the PW3 deposed as under : " Ques. When did the incident happen and how many days ago ?
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Ans. The incident happened last year on Shivratri.
Q. Where and what work accused Sandeep @ Amit is
doing?
Ans. I do not know.
Q. Do you know accused Sandeep ?
Ans. Yes. He used to visit our house.
Q. Is he present in the Court today?
Ans. Witness has pointed towards one person wearing
stripped white and blue shirt and in judicial custody standing on the backside of Court room and identified him stating that he is accused Sandeep.
Q. Do you know what work Sandeep was doing ?
Ans. He was working in Aanganwadi and used to distribute
food.
Q. Were you present at home when accused Sandeep
came at your house on the day of incident ?
Ans. I was present at home on first floor and was doing
household work like brooming the floor and filling the water from the booster pump.
Q. Whether prosecutrix (granddaughter) was also present at home at that time or not ?
Ans. Yes, she was present with her brothers namely Sonu
and Rajan and they all were studying.
Q. How did you come to know about the incident ?
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Ans. When I came downstairs and did not find prosecutrix
and on inquiry from my grandsons, I came to know that accused Sandeep came in the house and took prosecutrix stating that he had some urgent work with her.
Q. What happened thereafter ?
Ans. When prosecutrix did not return for about ½ hour - 1
hour, we started searching for her.
Q. Then what happened ?
Ans. The prosecutrix gave a call to my grandson Rajan and
told him that she was in a house near a Peepal Tree and asked us to come to fetch her.
Q. Then what happened ?
Ans. Rajan went to look for prosecutrix on his scooter but he
was not able to trace the house. He started blowing horn of his scooter, hearing which prosecutrix signaled to him from window of one of the houses.
Q. Do you know where the said house was ?
Ans. No.
Q. Do you know who was the owner of the house ?
Ans. No, but the house was in Sultan Puri.
Q. Did prosecutrix tell you anything when she came back ?
Ans. She did not tell me anything.
Q. Did she tell about what happened to her to anyone
else ?
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Ans. She told her brother Rajan about it.
Q. What else happened to your knowledge ?
Ans. Rajan informed the Police whatever was told to him by
the prosecutrix. The police took prosecutrix for her medical
examination to hospital. I and Rajan also went with her."
9 During her crossexamination, the PW3 deposed as under :
"Q. Did Police inquire about the incident from you ?
Ans. No. Vol. Police had met me at my house.
Q. Do you see accused Sandeep take prosecutrix with him
with your own eyes ?
Ans. No."
10 The PW9, Rajan, is brother of victim N, as well as cousin brother of PW10
Sonu. He deposed that he was a student of class 10th and was also looking after the work of his father, who had Kharad machine on the first floor of their house. He further deposed that on 20.02.2008, he and his cousin Sonu went to Subzi Mandi of P2 Block, Sultanpuri, at about 7:00 PM to purchase vegetables. After some time, they came back and at that time they did not find victim N at house and then PW9 asked his younger brother Ravi @ Abhishek, aged about 9 years, about victim N, aged about 13 years. The PW9 further deposed that he was told by his brother Abhishek that victim N had been forcibly taken away by accused Sandeep @ Amit and that on hearing this, PW9 gave a call on the mobile phone No.9999564372, belonging to accused SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 9 of 26 10 and that accused told PW9 that he was at Sabzi Mandi and was eating something and disconnected the phone. The PW9 again gave a call to the accused from his mobile phone and at that time accused told him that he was at the house of Komal, friend of victim N, and again disconnected the phone. The PW9 yet again called on the mobile phone of the accused and this time it was picked up by victim N, who told him hurriedly, while crying, that accused had taken her forcibly to a room near a Neem Tree opposite the school and had committed some wrong act with her and thereafter the phone was disconnected again. The PW9 stated that on hearing this, he, his brother Ravi and cousin Sonu went to said place on scooter of PW9 and on reaching there, at about 8:00 - 8:15 PM, PW9 blew horn of his scooter, hearing which victim N came to the door of the balcony and started crying loudly. The PW9 stated that said place was house of accused and its address was C6/30, Sultanpuri, Delhi and that accused Sandeep @ Amit also came out of the said room while wearing his clothes in a very hurried manner and that he was about to run away but PW9 obstructed him with his leg (adangi de di), due to which accused fell down. The public persons also gathered there on hearing noise and gave beatings to accused. The PW9 stated that he brought back his sister to their home and that he also gave a call to the police by dialing at number 100. The PW9 further deposed about the medical examination of victim N and other investigations carried out by the police wherein a site plan was prepared by the police at the instance of victim N. He also identified the accused in the court.
11 During his crossexamination, PW9 deposed that his cousin Sonu had been residing with them since about one year prior to the incident and that no other person SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 10 of 26 11 had been employed by their father in his factory. He also stated that at the time of incident his parents had gone to their native village. As regards the time when he went to subzi mandi, PW9 stated that they had left at about 7:00 PM and had returned back within half an hour and that when they left, victim N was at home and that since there was no landline phone in the house, his brother Ravi @ Abhishek could not inform him about taking away of victim N by the accused. He also stated that they had three mobile phone in their house out of which one each remained with his parents and him. During his further crossexamination, PW9 stated that he had never visited the house of accused prior to that day and that he was only aware that said house was somewhere near Anganwadi. He admitted that house of accused was surrounded by other houses. He further deposed that victim N was not wearing her lower clothes when they saw her and that about 20 public persons at the spot hearing the noise. The PW9 termed it correct that the incident had taken place on the day of Shivratri. He further deposed that accused was under some intoxication, however, he denied that accused was not in his proper senses. He volunteered to state that accused was in his proper senses and that is why he tried to run away from there on being him (PW9) and his brothers. The PW9 also denied that victim N used to take 10 - 15 rupees from accused for purchasing chocolates or icecream or that on the day of incident victim N had gone to the house of accused and taken away Rs.1500/ or that on seeing PW9 and her other brothers, she concocted a false story to implicate the accused. 12 The PW10, Sh. Sonu, is the cousin brother of the victim N and he too deposed on the lines of PW9. The PW10 also deposed about the manner in which PW9 gave three calls to the accused in response to which he first stated that he SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 11 of 26 12 was in subzi mandi eating something and then stated that he was at the house of Komal and that the last call was answered by victim N, who told her brother Rajan i.e. PW9 that she had been taken away forcibly by accused who had also committed wrong act with her. The PW10 also reiterated the version given by PW9 regarding the manner in which they went to the house of accused and recovered the victim N. 13 During his crossexamination, PW10 deposed that accused was not his friend and that he was a friend of Rajan i.e. PW9 due to which he used to visit their house. He further deposed that they had gone to Sabzi Mandi at about 7/ 8 PM and that at that time victim N was present at the home but when they returned back after about half an hour, she was not found present. He also deposed that at that time parents of victim N (chacha and chachi of PW10) had gone to their native village and that only their grandmother and four children i.e. PW10, victim N and her two brothers, were present there. During his further cross examination PW10 deposed that victim N came out of the room on hearing the horn of the scooter and that she was not wearing her lower clothes at that time. He also deposed that many public persons gathered there on hearing noise. The PW10 could not recollect if the incident had taken place on the day of Shivratri. He, however, termed it correct that accused had consumed Bhang on that day. He, however, denied that accused was not in his proper senses due to Bhang.
Witness qua the age of victim N
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14 The PW5, Sh. Satish Kumar, Assistant Teacher, produced original record
from Sarvodya Kanya Vidalaya, CBlock, Sultanpuri, Delhi, wherein victim child / prosecutrix N was admitted in first class and proved copy of admission form and affidavit of Sh. Ramayan Prasad, father of the prosecutrix, as Ex.PW5/A and Ex. PW5/B respectively ; photocopy of the relevant entry in the admission register as Ex.PW5/C and the original certificate of date of birth, issued by the School Principal as Ex.PW5/D. Doctor witnesses 15 The PW7, Dr. Supriya, SR Gyne, was deputed in place of Dr. Meenakshi Bansal, who had examined the victim child vide MLC Ex.PW7/A and found that there was one injury mark on upper back, small pin point abrasion just outside of hymen and the hymenal ring was intact. The PW7 identified handwriting and signatures of Dr. Meenakshi Bansal on MLC and proved the same as Ex.PW7/A. 16 The PW8, Dr. Brijesh Singh, was working as CMO on 22.02.2013 and he deposed that on that day, patient - accused Sandeep @ Amit was examined by him vide MLC Ex.PW8/A and he opined that "there was nothing to suggest that this person cannot perform the act of sexual intercourse".
17 The PW11, Dr. Lakhwinder Kaur, was working as CMO on 20.02.2013 and she deposed that on that day, general examination of patient - prosecutrix N was conducted by her vide MLC Ex.PW7/A and thereafter the patient was referred to gynecology department for further opinion.
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18 The PW11 further deposed that on the same day, patient - accused
Sandeep was examined in Casualty by Dr. Nikhil Bhat under her Supervision. She
proved the MLC of accused as Ex.PW11/A. She further deposed that thereafter patient was referred to Surgery Department for further opinion. She also deposed that the patient was under the influence of alcohol at the time of medical examination.
In response to some Court questions regarding observation "alcohol positive in passive mode" on MLC Ex.PW11/A of accused, the witness replied by stating that sometimes the patient does not breathe forcefully in the instrument due to influence of alcohol or otherwise due to nervousness, so the reading does not come in the instrument, however, the instrument shows alcohol in passive mode. 19 The PW15, Ms. L.Babyto Devi, Senior Scientific Officer (Biology), FSL Rohini, had examined the exhibits of the present case and proved the report of examination of exhibits as Ex. PW15/A. Police witnesses 20 The PW12, Ct. Sri Bhagwan, was posted as DD writer at PS Sultan Puri at the relevant time. He deposed that on 20.02.2012 at about 10:25 PM, wireless operator informed him that he had received an information from Control Room that "rape had been committed upon the sister of informer at C4/LSC Market No.8, Sultanpuri, Near Barat Ghar" and that PW12 reduced the said information into writing vide DD No.54B.
SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 14 of 26 15 He produced the original DD register and proved the attested copy of DD No.54B as Ex.PW12/A. 21 The PW1, HC Raghu Nath, was posted as duty officer at PS Sultan Puri at the relevant time. He proved the computerized copy of FIR as Ex. PW1/A and endorsement by him on the rukka as Ex. PW1/B. 22 The PW14, ASI Manmohan Singh, is the investigating officer in the present case and he deposed regarding the investigations carried out by him and the documents prepared by him during the course of investigations. He proved the application moved by him for recording of the statement of prosecutrix u/s.164 CrPC, before learned MM, as Ex.PW14/A ; application for supply of copy of statement of the prosecutrix as Ex.PW14/B ; seizure memo of phone make MAXX recovered from the accused as Ex.PW14/C and the application moved by him for obtaining the birth certificate of the prosecutrix from the school as Ex.PW14/D. 23 During the crossexamination by learned amicus curie, the PW14 deposed that on 20022012 he reached the house of the prosecutrix within 10 minutes on his motor cycle and that lady constable had been dropped at the house of the prosecutrix by some constable and that they went to the hospital from the said place in a government vehicle and that PW14 sent rukka from the hospital at about 3 a.m. During his further crossexamination, the PW14 deposed that he had recorded the statement of grandmother and brother of the prosecutrix in hospital also and that brother of prosecutrix also reached at the spot after half an hour and that there were other houses SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 15 of 26 16 around the house where the incident took place. During his further crossexamination, the PW14 stated that the house of accused was not locked , however, it was completely closed and that the light was there in the said room.
24 The PW2, Ct. Pradeep Kumar, had joined the investigation of the case with IO PW14 ASI Manmohan Singh and had further got case FIR registered on his directions and deposed regarding the same.
25 The PW13, W/Ct. Kalawati, had joined the investigations of the present case with PW14 ASI Manmohan Singh on 20.02.2012, and had got the prosecutrix medically examined at SGM Hospital vide MLC Ex.PW13/A and deposed about the same.
26 The PW4, Ct. Brij Mohan, had joined the investigations of the present case with PW14 ASI Manmohan Singh on 22.02.2012, at the time of arrest of the accused Sandeep @ Amit. He proved the arrest memo and personal search memo of accused as Ex.PW4/A and Ex.PW4/B respectively. He also proved the disclosure statement of accused as Ex.PW4/C. The PW4 had further got the accused medically examined at SGM Hospital and proved the seizure memo, of the samples taken by the concerned doctor during medical examination of accused, as Ex.PW4/D and deposed about the same.
27 After closing of prosecution evidence, statement of accused Sandeep @ Amit was recorded u/s 313 Cr.P.C. Accused stated that he is innocent and had been SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 16 of 26 17 falsely implicated in the case. He further stated that whenever he used to visit the house of the prosecutrix, being a friend of her brother, prosecutrix used to take Rs.10 / 20 from him for bringing chocolates and he used to treat her as younger sister of his friend. He then stated that on the day of Shivratri, prosecutrix herself came to his house and at that time he was under the influence of Bhang and was not in his senses and that prosecutrix took away Rs.1500/, which he had got his wages, and that the brother of the prosecutrix also reached at that place while searching for her. He further stated that when brothers of prosecutrix saw her coming out of the room of accused, she concocted a false story and implicated him in the present case and that no such calls were made on his mobile phone at that time. The accused declined to lead evidence in his defence. 28 Arguments have been addressed by learned amicus curie for the accused as well as learned Additional PP for the State.
29 Learned Additional PP has contended that prosecutrix has fully supported the case of the prosecution and that prosecution has succeeded in proving its case against the accused beyond reasonable doubt by examining the material witnesses namely prosecutrix and her brothers. It is stated that in view of the testimony of the prosecutrix no other evidence is required and has accordingly prayed that accused Sandeep @ Amit be convicted u/s.363/365/376/506 IPC.
30 On the other hand, learned Amicus Curie for accused has contended that accused is innocent and has nothing to do with prosecutrix in the present case. It is stated that prosecutrix was major at the time of incident. It is also stated that the medical SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 17 of 26 18 evidence does not support findings of rape and this fact is also reflected from the fact that prosecutrix did not raise alarm while she was allegedly being kidnapped or confined or raped by the accused. It is reiterated that prosecutrix often used to take Rs. 10 / 20 from accused for chocolate, etc. whenever he visited her house and that on the day of the incident she herself went to the house of accused and took Rs.1500/, he had got on that day as wages, while accused was in an intoxicated condition and that since brother of prosecutrix reached there and saw her coming out of room of accused, she implicated accused in a false case. Thus accused is entitled to be acquitted of all charges in the present case and it is prayed accordingly.
31 I have heard the arguments put forward by ld. Addl. PP as well as learned Amicus Curie for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
32 In the present case accused Sandeep @ Amit, who was friend of Rajan, brother of prosecutrix N, aged about 13 years, is alleged to have kidnapped her, wrongfully confined her in his room and thereafter committed rape upon her against her consent and wishes. He is further alleged to have criminally intimidated her by threatening to kill her if she raised alarm.
33 In order to prove that victim child N was aged about 13 yeas, prosecution has examined Sh. Satish Kumar, Assistant Teacher, Sarvodya Kanya Vidalaya, CBlock, Sultanpuri, Delhi, as PW5. This witness produced record of class Ist wherein child N SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 18 of 26 19 was admitted on the basis of admission form Ex.PW5/A and affidavit Ex.PW5/B submitted by the father of the child N. The PW5 also produced the relevant entry and admission register pertaining to child N and proved the same as Ex.PW5/C. As per record produced by PW5, the date of birth of child N is 01.01.2000 and the certificate issued by the school in this regard has been proved as Ex.PW5/D. No manipulation, addition or alteration could be brought out in the record produced by PW5. The date of commission of offence in the present case is 20.02.2012. Thus computing the age of victim N, her age comes to be about 12 years and 19 days as on the date of commission of offence. The prosecution has thus succeeded in proving that victim child N was a minor, aged about 12 years and 19 days, at the time of commission of offence. 34 The next issue which arises for consideration is whether the accused had kidnapped the prosecutrix on 20.02.2012 at about 7:30 PM and wrongfully confined her in his room and thereafter committed rape upon her and further criminally intimidated her by threatening to kill her. In order to prove the allegations, the prosecution has examined the prosecutrix as PW6. The deposition of prosecutrix / victim child N has been reproduced at length in foregoing paragraphs. From the statement of PW6 it is clearly brought out that on the day of incident at about 7:30 PM, accused went to the house of prosecutrix, in absence of her parents, and told her to accompany him to house of Komal, friend of victim chid N, who was cousin of accused. However, instead of taking victim child N to the house of said Komal, accused took victim child N to his own house in a room at ground floor in a three storied building, situated behind the Government School of C6 Block, Sultanpuri, Delhi, where he forcibly committed rape upon her.
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35 The testimony of PW6 victim child N is duly corroborated by that of her
grandmother Lalmani Devi, who was examined as PW3. As already mentioned hereinabove the testimony of the PW3 was recorded with the help of support person i.e. her 12 year old grandson Master Abhishek since she was hard of hearing and was not capable of understanding normal spoken Hindi being conversant with local dialect of the area from which she hailed. The testimony of this witness was recorded in question answer form and has been reproduced at length in foregoing paragraphs. From the testimony of PW3 it is clearly brought out that the accused was a frequent visitor to the house of victim child N and that on the day of incident parents of victim child were away to their native village while PW3 herself was on the first floor of the house and was busy doing household work. It is also brought out from the testimony of PW3 that at that time accused Sandeep @ Amit visited their house and took away victim child N stating that he had some urgent work and that when victim child N did not return back to home for about 1 - 1 ½ hour thereafter they started searching for her. The PW3 also stated that the prosecutrix gave a call to her grandson Rajan (brother of the prosecutrix) and told him that she was at house near Peepal Tree and asked them to come to fetch her and that thereafter Rajan went looking for prosecutrix, on his scooter, but as he was unable to trace the house, he started blowing horn of the scooter, hearing which prosecutrix signaled to him and he could bring her back.
36 The facts narrated by PW6 victim child N and PW3 Smt. Lalmani Devi, grandmother of victim child N, are duly corroborated by the testimony of PW9 Sh. Rajan and PW10 Sh. Sonu, who are real and cousin brothers respectively, of victim child N. SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 20 of 26 21 Both these witnesses deposed that on the day of incident at about 7:00 PM, they had gone to Sabzi Mandi of P2 Block, Sultanpuri, to purchase vegetables and that when they returned back, they did not find victim child N at home and on query they were told by Ravi @ Abhishek, 9 years old, younger brother of victim child N, that victim child N had been taken away forcibly by accused Sandeep @ Amit.
37 The PW9 Sh. Rajan also deposed as to these calls given by him on the mobile phone No.9999564372 belonging to accused and the manner in which accused responded to his calls stating firstly that he was eating something in the Sabzi Mandi and then stated that he was at the house of Komal and how the last call made by him (PW9) was attended by victim child N, who told PW9 that accused had taken her forcibly to a room near Neem Tree, opposite to school, and had committed some wrong act with her. He further deposed how he i.e. PW9 went to that area, along with his cousin brother Sonu and younger brother Ravi, on his scooter and blew horn, hearing which victim child N came to the door of balcony and started crying loudly. From the testimony of PW9 it is also brought out that at that time victim child N was clad only with clothes on the upper part of her body and that she wore her clothes on lower part of her body after they had rescued her and that at that time accused also came out of the room wearing his clothes in a hurried manner and tried to escape but was obstructed by PW9 with his leg as a result of which accused fell down. The crossexamination of PW9 only clarifies the facts deposed by him in examination in chief further. The PW9 denied the suggestion that accused was not in his proper senses at that time, being under influence of liquor or Bhang, by stating that he (accused) was in his proper senses and that is why on seeing him (PW9) and his brothers, he tried to run away from the spot.
SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 21 of 26
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38 The testimony of PW9 Sh. Rajan is fully corroborated by that of his cousin
Sonu, who was examined as PW10. He too deposed about the three phone calls made by PW9 to the accused and the response given by accused to first two phone calls and about the manner in which the third phone call was attended to by victim child N, who informed PW9 and PW10 about the place where she had been forcibly confined and sexually abused by the accused. He also stated that when they reached that place PW9 started blowing horn of his scooter hearing which victim came to the door of the balcony and started crying loudly and that at that time she was wearing clothes only on the upper part of her body and that she wore clothes on the lower part of her body after being rescued by them.
39 Thus from the testimony of PW3 Smt. Lalmani Devi, PW6 victim child N, PW9 Sh. Rajan and PW10 Sh. Sonu, prosecution has succeeded in proving that accused had kidnapped the prosecutrix on the day of incident at about 7:00 7:30 PM and had taken her to his house i.e. the room at ground floor in a three storied building, situated behind the Government School of C6 Block, Sultanpuri, Delhi, and wrongfully confined her there. Further from testimony of PW9 it is also established that after wrongfully confining her at his house, accused had committed rape upon her. The testimony of PW6 child N in this regard is duly supported by the medical evidence on record i.e. the MLC of victim child N which was proved as Ex.PW7/A by Dr. Supriya, who identified handwriting and signatures of Dr. Meenakshi Bansal, who had examined the victim child N. The PW7 deposed that as per the observation made by Dr. Meenakshi Bansal, there was a small pin point abrasion found just outside the hymen of SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 22 of 26 23 the victim child. She also observed one injury mark on the upper back of the victim. It is noteworthy that victim child N has stated during her crossexamination that she had received injury (khroach) on her left shoulder in the incident even though her clothes were not torn. Thus from testimony of PW6 victim child N and PW7 Dr. Supriya, prosecution has succeeded in proving that accused had committed rape upon the prosecutrix on the date of the incident.
40 The accused has taken a defence that since he was friend of brother of victim child N, the victim child N often took 10 / 15 rupees for chocolate, etc. and that on the day of incident also victim child N herself went to the house of accused and took away Rs.1500/, which accused had received as wages on that day, while the accused was inebriated condition (having consumed Bhang) and that since the victim child N was seen coming out of the room of accused by her brothers on that day, she came up with concocted story thereby falsely implicating the accused. The defence taken by the accused does not inspire confidence since it is clearly brought out from the testimony of PW6 victim child N, PW9 Sh. Rajan and PW10 Sh. Sonu that none of them had visited the house of accused on prior occasion and they did not even know the exact location of his house. Secondly, even assuming that victim child N used to ask accused for 10 / 15 rupees, off and on, there is no explanation why she would steal substantial amount of Rs.1500/, from the house of accused when nothing has been brought on record to show that victim child N was otherwise in habit of stealing money and venturing out alone, at night, from her house without telling any of her family members. Coming to the contention that accused was under influence of Bhang, in this regard PW9 Rajan and PW10 Sonu have categorically denied that accused was under influence of Bhang when SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 23 of 26 24 they reached his house to rescue victim child N. Moreover no suggestion has been given to PW11 Dr. Lakhwinder Kaur, who proved the MLC of accused as Ex.PW11/A, that the level of intoxication of accused, on that day, was of such an extent that accused was unaware of the consequences of his act. It is noteworthy that though accused claims to be totally inebriated by alcohol / Bhnag, he had himself gone to the house of victim child N, asked victim child N to accompany him to house of his cousin sister Komal, who was friend of victim child N, and taken victim child N to his room, on foot, only to forcibly rape her. Thus it cannot be concluded that consumption of alcohol / Bhang had obliterated the senses of accused to such an extent that he was not aware of his surroundings or acts committed by him. Rather it appears that despite having consumed alcohol / Bhang, the accused was planning his acts and actions carefully and after due deliberation.
41 The learned Amicus Curie for accused has contended that the testimony of victim child N cannot be relied upon as she being a child had concocted a story to conceal her act of stealing and that the entire incident is result of imagination of the victim child N. It is true that the statement of the child witness is to be scrutinized with great care and caution, yet the testimony of victim child cannot be disbelieved merely on the ground of tender age and possibility of child making up a story, specially when the same is supported by the other material placed on record by the prosecution. In this regard it has been held by Hon'ble Supreme Court in case titled as State of UP Vs. Krishan Master, AIR 2010 SC 3071, that : SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 24 of 26 25 "There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A Child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellish ments, and the same inspire confidence of the Court, his de position does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to impli cate the accused falsely in a case of a serious nature."
42 In the present case nothing could be brought on record by the accused in his defence, which would make the Court disbelieve the cogent and reliable testimony of PW6 i.e. victim child N, which is even otherwise supported by testimony of PW3 Smt. Lalmani Devi, PW9 Sh. Rajan and PW10 Sh. Sonu and the other medical evidence on record.
SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 25 of 26
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43 In the Nutshell of the foregoing discussion, the prosecution has succeeded in
proving that accused Sandeep @ Amit kidnapped victim child N, aged about 13 years, from the lawful custody of her guardian without their consent. The prosecution has also succeeded in proving that accused abducted the victim child N with intent to cause her to be secretly and wrongfully confined and thereafter wrongfully confined her at a room at ground floor in a three storied building, situated behind the Government School of C6 Block, Sultanpuri. The prosecution has further succeeded in proving that thereafter ac cused committed rape upon victim child N against her wishes and without her consent. The prosecution has further succeeded that during the commission of rape, accused also criminally intimidated victim child N by threatening to kill her, if she raised alarm. Accordingly I convict accused Sandeep @ Amit for the offences u/s 363/365/376/506 of IPC and he is convicted accordingly.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 20.02.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 26 of 26
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FIR No. 77/12
P.S. Sultanpuri
State Vs. Sandeep @ Amit
17.02.2014
Present : Ld. Additional PP for the State.
Accused produced from JC with counsel Ms. Sadhna Bhatia, learned Amicus Curie.
Arguments heard.
Be listed for remaining arguments, if any, otherwise for judgment on 20.02.2014.
ASJ/NW01
Rohini/Delhi
17.02.2014
20.02.2014
Present: Ld. Additional PP for the State.
Accused produced from JC with Amicus Curie.
Remaining arguments heard.
Vide separate judgment announced today in the open Court, accused Sandeep @ Amit has been convicted u/s. 363/365/376/506 IPC.
Arguments on the point of sentence heard.
Be listed for orders on the point of sentence on 21.02.2014.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 20.02.2014 SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 27 of 26 28 IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 63/12) Unique ID case No. 02404R0119022012 State Vs. Sandeep @ Amit FIR No. : 77/2012 U/s : 323/365/376/506 IPC P.S. : Sultan Puri State Vs. Sandeep @ Amit S/o Sh. Devtan Din R/o C6/30, Sultan Puri, Delhi.
21.02.2014
Present : Ld. Addl. PP for the State.
Convict produced from J.C., with ld. Amicus Curie
ORDER ON THE POINT OF SENTENCE
In the present case, the convict - Sandeep @ Amit has been convicted u/s 363/365/376/506 IPC.
I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. Amicus Curie for the convict.
2. It has been submitted by the Ld. Addl. PP that in view of serious nature of offence committed by the convict, he convict does not deserve any leniency and she SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 28 of 26 29 prays that maximum sentence prescribed by the law may be imposed upon the convict.
3. On the other hand, it has been submitted by the learned Amicus Curie for the convict submits that the convict Sandeep @ Amit is aged about 22/23 years and is unmarried, having no previous criminal record. She further submitted that convict is having two younger sisters aged about 12/13 years and 14/15 years and one younger brother aged about 10/11 years and that his mother has already expired and his father is handicapped and as such, convict is having the responsibility of his minor/younger sisters and brother as there is no one to look after them. It is further submitted that convict belongs to a low strata of society and has been in custody for the last about two years. It is further submitted that convict was working in an Anganwari as a "Cook" and is not a previous convict and is not involved in any other case and she prays that a lenient view may be taken in this case and sentence for the period already undergone by him may be awarded and he be given a chance of rehabilitation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. Amicus Curie and have carefully gone through the record of the case.
5. In the present case, the convict Sandeep @ Amit has been convicted for committing the offence punishable u/s- 363/365/376/506. It is relevant to mention that convict was a friend of the elder brother of the prosecutrix and was on regular visiting terms to her house. In the process, he won over the confidence of the prosecutrix N, a minor girl aged about 12 years and 19 days and thereafter, kidnapped her on the pretext of taking her to the house of her friend, who also happened to be the cousin SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 29 of 26 30 sister of the convict. The convict planned his visit to house of N carefully, at a time, when her parents were away to their native village and her elder brother and cousin brother had gone to market to purchase vegetables and victim N was alone in the house with her aged, hard of hearing paternal grandmother (dadi) and younger brother aged about 9 years. The convict took victim N with him and thereafter, wrongfully confined her in his room on the ground floor of a three storied building, situated behind the Govt. School of C6 Block, Sultan Puri, Delhi and thereafter raped her and further threatened her to kill her, if she raised alarm. The proximity, which convict was enjoying with the family of victim N, not only gave him a free access to her house, but also kept him well informed about movement/presence of her other family members, thus making child N, a vulnerable victim. Keeping in view the serious allegations against the accused, he is not entitled to a lenient view by taking plea that he being the sole earning member, is required to discharge his responsibility towards his younger sisters, brother and other family members. In my opinion, convict is not entitled to any leniency. I hereby award sentence the convict Sandeep @ Amit as under
(i) For the offence u/s 363 IPC, the convict Sandeep @ Amit is sentenced to Rigorous Imprisonment for a period of three years along with a fine of Rs. 2,000/(Rs. Two thousand only), in default of payment of fine, to undergo S.I for three months.
(ii) For the offence u/s 365 IPC, the convict Sandeep @ Amit is sentenced to Rigorous Imprisonment for a period of five years along with a fine of Rs. 2,000/(Rs. Two thousand only), in default of payment of fine, to undergo S.I for three months.
(iii) For the offence u/s 376 IPC, the convict Sandeep @ Amit is
SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 30 of 26
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sentenced to Rigorous Imprisonment for a period of ten years along with a fine of Rs. 5,000/(Rs. Five thousand only), in default of payment of fine, to undergo S.I for six months.
(iv) For the offence u/s 506 IPC, the convict Sandeep @ Amit is sentenced to Rigorous Imprisonment for a period of two years along with a fine of Rs. 2,000/(Rs. Five thousand only), in default of payment of fine, to undergo S.I for three months.
All the sentences shall run concurrently.
6. The convict has been in custody since 22.02.2012 continuously. Benefit u/s 428 Cr.PC be also given to the convict for the period already undergone by him during trial, as per rule.
7. Coming now to the aspect of compensation to the victim, who is a minor girl, the Hon'ble Apex Court has time and again observed that that subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. In a case titled as Bodhisattwa Gautam vs. Subhra Chakraborty, AIR 1996 SC 922, it has been held by Hon'ble Supreme Court that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape, which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
8. Even otherwise, the concept of welfare and well being of children is basic for SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 31 of 26 32 any civilized society and this has a direct bearing on the state of health and well being of the entire community, its growth and development. It has been time and again emphasized in various legislations, international declarations as well as the judicial pronouncements that the Children are a "supremely important national asset" and the future well being of the nation depends on how its children grow and develop. In this regard reference is made to the following observations of Hon'ble Supreme Court in case of Laxmi Kant Pandey Vs. Union of India (1984) 2 SCC, 244, that :
"The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fullness of physical and vital energy and the utmost breath, depth and height of its emotional intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. Now obviously children need special protection because of their tender age and physique, mental immaturity and incapacity to look after themselves. That is why there is a growing realization in every part of the globe that children must be brought up in an atmosphere of love and affection and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire selfconfidence and selfrespect and a balance view of life with full appreciation and realization of the role which they have to play in the nation building process without which the nation cannot develop and attain real prosperity because a large segment of the society would then be left out of the developmental process. In India this consciousness SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 32 of 26 33 is reflected in the provisions enacted in the Constitution. Clause (3) of Article 15 enables the State to make special provisions inter alia for children and Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Clauses (e) and (f) of Article 39 provide that the State shall direct its policy towards securing inter alia that the tender age of children is not abused, that citizens are not forced by economic necessity to enter avocations unsuited to their age and strength and that children are given facility to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. These constitutional provisions reflect the great anxiety of the constitution makers to protect and safeguard the interest and welfare of children in the country. The Government of India has also in pursuance of these constitutional provisions evolved a National Policy for the Welfare of Children. This Policy starts with a goaloriented perambulatory introduction."
9. Therefore, in order to provide Restorative and Compensatory Justice to the victim i.e prosecutrix, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant compensation to the tune of Rs. 2,00,000/ (Rs. Two lac only) to the prosecutrix. The said amount shall be used for her welfare and rehabilitation, under the supervision of Welfare Officer, so nominated by the Government of NCT of Delhi. It is SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 33 of 26 34 further directed that compensation amount, which is kept in secured form of FDR, shall not be released to any one, until the child attains the age of majority. In the event, the money is required for welfare of the child prior to child attaining the age of majority, the parents and/or guardian of the child may approach the court for released of the amount by moving appropriate application, in this regard. Consequently, the concerned bank, which issues the FDR, in the name of the child, shall not release the FDR amount to any one, till the child attains the age of majority, except by the order of this court.
10. A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi, Chief Secretary, GNCT of Delhi, Principal Secretary (Social Welfare), GNCT of Delhi and Director, Department of Social Welfare (Women and Child Development), GNCT of Delhi, for information and necessary action under intimation to this Court.
11. The convict is informed that he has a right to prefer an appeal against this judgment.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Illa Rawat)
(Court on 21.02.2014) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
SC No. 63/12 State Vs. Sandeep @ Amit Page Nos. 34 of 26