Delhi District Court
State vs . Satish Bhati on 23 July, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NW): ROHINI COURTS: DELHI
Session Case No. 1055/2009
Unique Case ID No. 02401R0187882005
State Vs. Satish Bhati
S/o Sh. Dheeraj Bhati
R/o C4/145, Keshav Puram,
Delhi
(Convicted)
FIR No.: 49/05
Police Station: Keshav Puram
Under Section: 376/506/420 IPC
Date of committal to Sessions Court: 4.6.2005
Date on which orders were reserved: 30.5.2011
Last date of filing written synopsis: 8.7.2011
Date of decision: 15.7.2011
JUDGMENT:
As per the allegations, in the year 1998 when the prosecutrix 'R' (name of the prosecutrix is withheld since this is a case under Section 376 Indian Penal Code) was around 13 years of age, the accused Satish Bhati induced her on the false pretext that he would marry her and also developed physical relations with her. It St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 1 is also alleged that on 29.1.2005 the accused Satish Bhati committed rape upon the prosecutrix 'R' and criminally intimidated the prosecutrix that in case if she discloses the fact of rape to anyone, her parents would be killed.
BRIEF FACTS/ CASE OF THE PROSECUTION:
The case of the prosecution is that on 29.1.2005 the prosecutrix 'R' came to Police Station Keshav Puram and gave a complaint against Satish Bhati of committing rape and cheating with her. In her complaint, the prosecutrix had stated that previously she was residing along with her parents at C7/142, Keshav Puram, Delhi where the accused Satish Bhati made friendly relations with her father and started visiting her house. According to her, in the year 1998 when she was 13 years of age, Satish Bhati developed intimacy with her and developed physical relations with her on the promise that he would marry her after she attains the age of 18 years. She also told the police that Satish Bhati also threatened to kill her parents due to which reason she remained silent and in the year 2001 she delivered a female child. The prosecutrix had also stated that on account of threats executed by Satish Bhati, her father expired after which Satish Bhati started beating her and her mother and in the year 2002 he sold their house bearing no. C7/142, Keshav Puram and shifted them to a house at VP21A, Pitam Pura St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 2 where he continued to made physical relations with her. According to her, prior to four to five months (from the date of the complaint) Satish Bhati took away the papers of the house and Rs.10,000/ from the said house. She had further stated in her complaint that Satish Bhati was s already married and his wife Usha Bhati had also connived with him and they both had cheated her.
On the basis of the complaint of the prosecutrix 'R', the present case was got registered and the accused Satish Bhati was arrested. After completion of investigations, the accused was charge sheeted for the offence under Section 376/506 Indian Penal Code. I may, however, add that his wife Usha Bhati has not been made an accused.
CHARGE:
The Ld. Predecessor of this court had settled the charges under Section 376 & 506 Indian Penal Code against the accused to which he pleaded not guilty and claimed trial. However, on an application filed by the Addl. Public Prosecutor, the additional/ alternative charge under Section 420 Indian Penal Code was settled against the accused to which he pleaded not guilty and claimed trial.
St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 3 EVIDENCE:
In order to prove its case the prosecution has examined as many as Twelve witnesses as under:
Prosecutrix/ public witnesses:
PW2 'R' is the prosecutrix who has deposed that earlier she was residing at C7/142 Kehav Puram, Delhi which house belong to her Nana and they were residing there. According to her, there were three shops in the said house which had been let out on rent and one Vikas was a tenant in one shop who used to deal in Masalas etc. in the name of "Bharat Masala Store" and the present accused Satish Bhati was a friend of Vikas and used to visit Vikas very frequently. She has deposed that the accused Satish Bhati wanted to lay his hand on her for which reason he developed friendship with her father and used to serve liquor to her father. The witness has further deposed that in due course of time the accused started taking liquor with her father in their house and started talking with her on the false pretext that he would marry her after completion of age of 18 years. She has also deposed that accused developed intimacy with her and in the year 1998 when she was around 13 years of age the accused also developed physical relation with her on this false pretext of marriage and intimated her that in case she shall disclose the factum of physical relation to her parents, St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 4 he would kill her. PW2 has further deposed that she kept silent for a considerable period but thereafter she disclose everything to her mother and her father also came to know about this fact after which her father stopped joining the company of the accused in which the accused had also beaten her father. She has testified that on account of terror being created by the accused upon her father, he shifted somewhere in Gurgaon and also stopped visiting their house for this reason and later on her father expired. PW2 has deposed that at that time the accused had been visiting their house and during the time her father remained at Gurgaon, the accused continued to have physical relations with her but she could not resist as the accused was hand in gloves with the police and also used to give physical beatings to her. She has further deposed that after about 23 months of the death of her father, the accused took her to his house where the wife of the accused along with children met her. The witness has testified that the wife of the accused also connived with the accused and therefore, the wife of accused asked him to take her somewhere, pursuant to which the accused took her to his native village near Noida. She has deposed that when she left for the native village of the accused, the wife of the accused Usha Bhati in association with her Jethani and other relative extending beatings to her mother and thrashed her mother out of her house and locked the St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 5 premises. According to the witness, they also extended threats to her grandmother who was residing in Pitam Pura and after she returned back from the native village of the accused after about 15 days and started living at the house at Keshav Puram with her mother she gave birth to a girl child. She has further testified that the wife of the accused along with other relatives again started beating her and extending threats to her. The witness has further deposed that the accused got their house sold to his own brother in law but he did not pay any sale proceeds to her and her family and had arranged the house at Pitam Pura for her on the false assurance that the said house stands in the name of her mother but it was not so which fact she came to know only after 23 months. She has further deposed that the accused assured her that the house stands in her mother's name and thereafter she lodged the complaint in the police which is Ex.PW2/A. The witness has specifically deposed that the accused committed sexual intercourse with her without her active consent.
In her crossexamination the witness has deposed that she is 7th pass and the accused is known to her since 1998. According to her, her date of birth is 27.11.1983 and she has MCD proof to show her date of birth. She has admitted that she gave birth to a female child namely Ritu from the accused and that in the MCD St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 6 record she had mentioned the name of father of the child as Satish Bhati. The witness has denied that she had filed a case under Section 125 Cr.P.C. against the accused but has admitted her signatures on Ex.PW2/DA. She has also denied that she appeared before Sh. Alok Aggarwal, the then Ld. MM on 22.10.2002, 6.3.2003 and 9.7.2003. The witness has admitted that she had filed a petition under Section 11 of Hindu Marriage Act on 29.3.2005 but according to the witness, her counsel has wrongly filed the same while the case was for nullity of marriage. She has deposed that she came to know that the case had been wrongly filed about 23 months back but she did not take any action against the advocate who had filed the petition. PW2 has admitted that the petition Ex.PW2/DB was filed by her for nullity of marriage and that she had filed Ex.PW2/DC along with her petition for nullity. The witness has also admitted that she had mentioned the name of her husband as Satish Bhati in Ex.PW2/DC and that the birth certificate of her daughter is Ex.PW2/DD wherein she had mentioned the name of her husband as Satish Bhati. She has further admitted that she had sold flat no. VP21A Pitam Pura to one Raj Kumar and in the sale documents of flat she had mentioned the name of her husband as Satish Bhati. According to her, she had not filed any written complaint prior to the registration of present FIR but she had visited St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 7 the police station many times but her complaint was not registered by them. She has deposed that she complained to her mother about the sexual intercourse committed by accused against her consent after about 23 months but her mother had not taken any action nor her father had taken any action against the accused. The witness has also testified that her father was alive in the year 1998 who also not taken any action against the accused. She has admitted that she did not state in her statement Ex.PW2/A that there were three shops in the said house which had been let out on rent, one Vikas was a tenant in one shop and he used to deal in masala etc., and that accused Satish was friend of Vikas and that the accused used to visit said Vikas very frequently and during his visit to Vikas, accused developed friendship with her father and as a matter of fact, the accused wanted to lay his hands on her, and that accused used to serve liquor to her father in due course of time and started taking liquor with her father in their house. She has also testified that she has not stated in her statement Ex.PW2/A that she had disclosed her father about her relations with the accused and that the accused used to give beatings to her father when he objected to her meeting with the accused. According to her, she had stated to the police in her statement Ex.PW2/A that on account of terror being created by accused on her father by her father had to shift somewhere in St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 8 Gurgaon and he also stopped visiting her house for that reason. The witness was confronted with her statement Ex.PW2/A where it is not so recorded and that her father had died in Keshav Puram and after his death the accused kept on visiting her house and also maintained physical relations with her. She does not remember if she had stated to the police that she could not resist as the accused was hand in glove with the police and also used to give physical beatings to her and that after about two to three months from the death of her father, the accused took her to his house where his wife and children met her and that since the wife of accused had also connived with the accused, she asked him to take her somewhere on which the accused took her to his native village near Noida and when she had left the native village of the accused, the wife of the accused in association with her jethani and other relatives extending beatings to her mother and thrashed her mother out of her house and that they also locked the premises where her mother was residing and also extended threats to her grandmother who was residing in Pitam Pura and that she came back from the native village of the accused after about 15 days and that the accused got opened the house of her mother and she started living at the house at Keshav Puram with her mother. She was confronted with her earlier statement where it is not so recorded. The prosecutrix has placed on St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 9 record her date of birth certificate which is Ex.PW2/B showing her date of birth as 27.11.83. She does not remember the date when her father shifted to Gurgaon but states that she was living with her mother in Keshav Puram and her father expired in the year 2000.
She has testified that so far she remembers she had shifted to Pitam Pura in the year 2001/2002. She has admitted that in the ration card the name and address of Pitam Pura she has been mentioned as wife of accused but states that the ration card was got made by the accused. The witness has further deposed that the accused used to come and go at her house in Pitam Pura but has denied the suggestion that in the year 2004, accused had given the notice to vacate the house No. VP21A, Pitam Pura. PW2 has denied the suggestion that thereafter she filed this false complaint against the accused and states that accused had got prepared the papers of the house in the name of her mother on the same date. According to her, when they came to know about the fraud played by the accused, he executed a power of attorney in her name but she is not aware if the accused had cancelled the power of attorney on 11.10.04. She has further denied that accused had cancelled the power of attorney on 11.10.04 and has admitted that she had sold the above said house to one Raj Kumar on 10.11.06 and stated that Raj Kumar had to take money from the accused. She has further admitted that she had St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 10 stated herself to be wife of the accused in these documents and states that she knew Tajinder Singh who had committed suicide and in his suicide note Tajinder Singh had mentioned her name. She has denied the suggestion that she had illegal relations with Tajinder Singh so he committed suicide or that she had filed a false against the accused as he demanded his Pitam Pura house back from her.
The witness PW2 was recalled after framing of additional charge under Section 420 IPC and her additional testimony was recorded, wherein she has deposed that she was never married to the accused Satish and she was never residing with him. According to her, she was not aware of the marital status of the accused when he developed relations with her. She has deposed that the accused developed relations with her under threat and promised to marry her after she attained the age of 18 years without disclosing that he was married but she later on came to know from local inquiries at the place where the accused was staying that he was married. According to her the need to make inquiry arose since the accused was not marrying her and putting it off on one pretext or the other.
In her cross examination, PW2 has deposed that she had told the police while making her complaint Ex.PW2/A that at the time when the accused made relations with her, she did not know if St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 11 he was married or not. She was confronted with the complaint Ex.PW2/A where it is not specifically mentioned. She has also deposed that she does not think that she had told the police while making her complaint Ex.PW2/A that she had made local inquiries when the accused refused to marry her and thereafter she came to know that he was already married. According to her, the accused used to reside in a different block which must be around 100 meters from her house and she never visited the house of the accused Satish Bhati. The witness has denied the suggestion that she was already aware that accused Satish Bhatti was married and it was for this reason that she did not tell the police about the aforesaid. She has further denied the suggestion that she had told the police that Usha Bhati, wife of accused used to help/ instigate her to develop illicit relations. According to PW1, she had not told anything to the police about it but only stated later after the complaint when she came to know that the accused was married and that Usha Bhati was helping him "uska saath deti hai". She has further deposed that apart from this there was another criminal case regarding selling of their property which is under Section 420 IPC and as on date there is no other case apart from the above. She has also testified that she got married on 22.12.07 and presently she is residing at her matrimonial home along with her daughter. She has denied the suggestion that St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 12 she also used to visit the house of the accused or that she knew about the marital status of the accused as they lived in the neighbourhood. She has also denied the suggestion that she has falsely implicated the accused in the present case simply to extract money from him or that she got married with the accused in the year 2000 and that is why she had mentioned the name of the accused as father of her daughter everywhere.
PW3 Smt. Saroj is the mother of the prosecutrix who has deposed that she used to reside at house No. C7/142, Lawrence Road, Keshav Puram, Delhi with her family i.e. her husband and her daughter prosecutrix 'R'. She has testified that the accused Satish Bhati was also residing at Lawrence Road and was having intimacy with her tenants and thereafter her husband and accused came to close to each other with the intervention of tenants and her husband and accused developed visiting terms. She has further deposed that the accused got her husband indulged intoxication and had beaten her and her husband. According to the witness, the accused started having an evil eye upon her daughter prosecutrix 'R' and he also developed certain illicit relationship with her daughter. She has testified that the accused even threatened her daughter that in case she would disclose the same to anyone, he would kill the entire family of prosecutrix 'R'. PW3 has also deposed that the accused St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 13 had put a revolver upon her ear and had threatened her. According to PW3, her daughter was already threatened and the accused was threatening them. She has testified that in the year 2000, her husband expired and thereafter in the year 2001, the accused increased his illegal activities and started getting benefit of death of her husband and in the year 2001, she came to know that her daughter was pregnant. She has further testified that the accused made them to sell their house in the year 2001 and thereafter the accused got arranged a house for them at Pitam Pura and also defrauded them in the purchase of the said house at Pitam Pura and the accused also started living with them in the said house. According to her, the accused at their house for twothree months and later on she came to know that the documents of the purchase of the said house were forged and at that time, her daughter was 24 years old. She has alleged that the accused had an evil on her daughter when she was just 14 years old.
In her crossexamination PW3 Saroj has admitted that her daughter had filed a case for maintenance against the accused in the year 2002 but her daughter had not taken maintenance. She has also admitted that her daughter was blessed with a girl child in the year 2001 and that the name of the father of the girl child was reported by them as Satish Bhati. The witness has denied the St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 14 suggestion that prior to filing of the present complaint, she had not made any complaint to the police or that the house at Pitam Pura where they were residing initially was in the name of accused but states the accused had got prepared the documents by forgery in his name. PW3 has also admitted that in the year 2002, the accused had got prepared the documents by forgery in his name. She has deposed that in the year 2002, the accused had got prepared the power of attorney of the said house in the name of her daughter prosecutrix 'R' and has admitted that the said power of attorney was cancelled by the accused in the year 2004. PW3 has also admitted that the litigation between them and the accused started after the year 2004 and that the said house was sold to one Raj Kumar by her daughter in the year 2006. She has denied the suggestion that she started filing report before the police only after when after cancellation of power of attorney, when her daughter refused to vacate the premises. She is not aware whether her daughter had filed a petition for divorce at Tis Hazari Courts against the accused. According to PW3, her statement was recorded by police but she does not remember as to when. She has deposed that she had stated to the police that she had rented out certain shops at Lawrence road and the accused was having intimacy with their tenants but she did not remember as to when she had stated to the police that the St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 15 accused got her husband indulged into intoxication and had beaten her and her husband and that the accused had put the revolver upon her. The witness was confronted with statement mark A where this fact is not so recorded. She has further testified that the accused sold their house at Keshav Puram for which he retained the consideration of the said house and in return of the said consideration, he handed over the house of Pitam Pura to them with forged documents in the year 2001. She has denied the suggestion that they had not lodged any report before the police after 2001 till 2005 regarding this fact or that the accused did wrong act with her daughter with her daughter's consent or with her consent.
PW3 Smt. Saroj has also been crossexamined after framing of additional charge under Section 420 IPC, wherein she has deposed that she knew accused Satish Bhatti as he lived in the same vicinity and he used to reside at C4/145, Lawrence Road. She has further deposed that at that time she was residing at Sector 7, House No.235. According to PW3, her daughter prosecutrix 'R' never told her that she had been threatened by accused when she became pregnant in the year 2001 and the accused got married with prosecutrix 'R' in 2000 but she did not participate in the marriage and states that she was not aware of the same since the accused had married her daughter after issuing threats to her. She has denied the St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 16 suggestion that there were no threats issued to her daughter at any point of time and she was having a consensual relationship with the accused and she was aware of the same.
Medical Evidence:
PW6 Dr. Vimal Kaushal, CMO, BJRM Hospital has proved the MLC of prosecutrix 'R' aged 20 years female who was brought to the hospital on 29.01.05 at 8.40 p.m. and was examined by Dr. Mahesh, JR, which MLC is Ex.PW6/A. According to the witness, Dr. Mahesh referred the patient to SR Gynae examination vide his endorsement Ex.PW6/A where patient was examined by Dr. Shillpi Shrivastva in Gynae and The gynae notes prepared by Dr. Shipi Shrivastva are Ex.PW6/B. The witness has deposed that as per the Gynae notes, 20 years old unmarried patient having three years old living female child gave the history of sexual relationship with some boy Satish since seven years on pretext of marrying her but now the boy is refusing to marry her and according to patient, the boy has not trust her since four months. He has deposed that on examination, general conditions of the patient was fine, vaginal slides was prepared and undergarments were sealed and handed over to the police. The witness has also proved the MLC of accused Satish Bhatti S/o Dhiraj Bhatti, age 37 years male who examined in the hospital on 29.01.05 at about 8.50 p.m. who was brought for St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 17 medical examination with alleged history of sexual assault and was examined by Dr. Ashraf, JR Casualty, which MLC is Ex.PW6/C. According to him, as per the MLC the physical and local examination revealed no abnormality, testes well developed, sexual normal, pubic hair well developed, secondary sexual characters well developed, penis are normal, the above features are suggestive of that the patient is not incapable of performing sexual activity.
In his crossexamination the witness PW6 has deposed that he joined the services of the said hospital in 1999 and since then, he is posted in the said hospital. He has admitted that the documents Ex.PW6/A, PW6/B and Ex.PW6/C were not prepared in his presence and that Dr. N. K. Singh whose name is mentioned in MLC Ex.PW6/A, B and C is presently available in hospital as CMO. He has denied the suggestion that Dr. Mahesh, Shilpi and Dr. Ashraf were never posted during his tenure in the hospital. Police/ official witnesses:
PW1 HC Naresh Pal Singh has deposed that on 29.01.05, he was posted in Police Station Keshav Puram and was working as a duty officer from 5 p.m. to 1:00 midnight. According to him at around 9.15 p.m., Inspector Meena Naidu handed over one rukka to him for registration of case and on the basis of said rukka St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 18 he registered FIR No. 49/05 which is in his handwriting. He has proved the carbon copy of the FIR which is Ex.PW1/A and his endorsement on the rukka which is Ex.PW1/B. He has deposed that he handed over the rukka and copy of the FIR to Inspector Meena Naidu. This witness has not been cross examined on behalf of the accused despite opportunity in this regard.
PW4 HC Tej Singh has deposed that on 30.01.05 he was posted at PS Keshav Puram and was working as MHC(M). On that day, Inspector Meena Naidu, Addl. SHO, PS Keshav Puram deposited four sealed parcels bearing seals of Medical Superintendent BJRM hospital along with two sample seals mentioned in the entry of deposit. According to him, he made the entry of the deposit of these articles in Register No.19 at Sr. No. 1755. The witness has also deposed that on 09.02.05, he sent four sealed parcels and two sample seals to FSL, Rohini through Ct. Ganga Ram no.839, NW vide RC no.13/21/05. He has placed on record the relevant entries which are Ex.PW4/A and Ex.PW4/B and has proved that so long as the case property remained in his custody, it was not tampered with. He has not been crossexamined by the Ld. Defence counsel and his evidence has gone unrebutted in this regard.
St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 19
PW5 WASI Chanchal has deposed that on 29.01.05, she was posted at Police Station Keshav Puram and on that day as directed by Addl. SHO Inspector Meena Naidu, she had taken prosecutrix 'R' ' to BJRM hospital for medical examination and after examination, she was handed over two sealed parcels containing vaginal swab and slide bearing seal of BJRM hospital along with sample seal which she handed over to the investigating officer which was taken into possession vide memo Ex.PW5/A. In her crossexamination by Ld. defence counsel this witness has deposed that it was late night when they returned to police station from hospital. According to her, the investigating officer had recorded her statement but she did not remember the date.
PW7 Ct. Ganga Ram has deposed that on 29.01.05, he was posted at Police Station Keshav Puram on that day, he was on duty as a rider of Addl. SHO Inspector Meena Naidu. He has testified that at about 7:00 p.m., complainant prosecutrix 'R' came to police station Keshav Puram and made a complaint to Inspector Meena Naidu against the accused Satish Bhatti. According to the witness, on the instructions of Inspector Meena Naidu, he went to B Block Keshav Puram for calling the accused and at about 8 p.m., he took the accused Satish Bhati to Police Station Keshav Puram and St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 20 was produced before Inspector Meena Naidu. The witness has further deposed that on 09.02.05, on the instructions of the SHO, the MHC (M) handed over to him four pullandas sealed with the seal of MS, BJRM hospital along with sample seal having same seal impression but he does not remember the RC number and same were deposited by him in FSL Rohini and after depositing he obtained the receipt on RC which was was handed over to MHC(M).
In his crossexamination PW7 has denied the suggestion that he had not gone to call the accused Satish Bhatti from B Block, Keshav Puram or that he had not got deposited the pullandas in FSL Rohini.
PW8 Inspector Meena Naidu is the investigating officer who has deposed that on 29.01.05, she was posted as Inspector/ Addl. SHO in Police Station Keshav Puram and on that day, complainant prosecutrix 'R' came to Police Station and gave a complaint against the accused Suresh Bhati for alleging rape and cheating with her which is Ex.PW2/A. The witness has further deposed that she made inquiry from the complainant after which the prosecutrix 'R' was sent for medical examination through HC Chanchal and after medical examination, HC Chanchal along with prosecutrix 'R' came back to the police station and handed over to her MLC and two pullandas sealed with the seal of BJRM hospital St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 21 which contains a slide and swabs, the same were seized vide memo Ex.PW5/A. According to the witness, she thereafter made the endorsement on the complaint which is Ex.PW8/A and handed over the rukka to Duty Officer for registration of FIR after which she received the copy of the FIR and original rukka. She has further deposed that the accused Satish Bhati was called to the police station through Ct. Ganga Ram and the accused was interrogated and thereafter she (witness) along with prosecutrix 'R' and accused Satish reached at the house of Satish Bhatti i.e. C4/145 where the accused Satish was arrested vide arrest memo Ex.PW8/C and his personal search was conducted vdie memo Ex.PW8/C. According to the witness, after the arrest of the accused, the accused was brought to the police station and he was sent to hospital through Ct. Rajender for his medical examination and after examination, he was brought back to the police station and Constable Rajender handed over to her the MLC and one pullanda sealed with the seal of BJRM hospital containing slide and swab along with sample seal and the same was seized vide memo Ex.PW8/E. The witness has further deposed that thereafter the case property was deposited in the malkhana and accused was sent to police lock up. She also recorded the statement of the witnesses. PW8 has also testified that on 09.02.05, the exhibits along with FSL form were sent to FSL Rohini St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 22 through Ct. Ganga Ram and thereafter, she deposited the receipt with MHC(M) and recorded his statement. She has proved having collected the photocopies of the papers of the property, which are collectively Mark A; the birth certificate of the daughter of prosecutrix 'R', which is Mark B and copy of petition under Section 125 Cr.P.C. against accused copy of which is collectively Mark C. She has also proved having recorded the statement of the witnesses and after completing the investigation, the challan was prepared and filed in the court and later on FSL was collected and filed in the court which is Ex.PX. According to PW8, she also interrogated Usha wife of the accused and kept her in Column No.2 of the charge sheet as no evidence was found against her.
In her crossexamination the witness has deposed that the prosecutrix 'R' alone visited to her for giving complaint and she is not aware whether prosecutrix 'R' had also made complaint against accused to DCP/ NW and DCP Vigilance nor is she aware whether any vigilance inquiry was held in this case prior to the registration of FIR. According to her, she had no knowledge whether the accused Satish Bhati and prosecutrix 'R' were living as husband and wife at VP 31, Pitam Pura, Delhi. She has deposed that she had not recorded statement of any neighbourer in that regard and has denied that accused and prosecutrix 'R' were living as husband and wife for St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 23 the last five years at VP 31, Pitampura, Delhi. She has admitted that the mother of the prosecutrix 'R' was also residing at VP 31, Pitampura, Delhi and that police station Keshav Puram was situated about half/ one kilometer from C7/142 Lawrence Road. The witness has also admitted that there was police picket opposite C7/142 and she has no knowledge whether prosecutrix 'R' had made any complaint against accused either in police station Keshav Puram or police station Shalimar Bagh prior to registration of present case. She had no knowledge whether prosecutrix 'R' had made any complaint against accused in police station that her husband had given beatings to her and in pursuant to that complaint accused was booked under Section 107/151 Cr.P.C. and prosecutrix 'R' herself stood surety for him in that case. According to the witness, she made inquiry from prosecutrix 'R' before registration of case however, she made no inquiry from any other person prior to registration of FIR. She has admitted that she had not made any inquiry from neighbourhood of C7/142, Keshavpuram and CV31/A, Pitampura and that she had called the accused Satish Bhati in police station on 29.01.2005 but she did not remember the time however, she had not arrested him at that time. The witness has also admitted that accused himself had accompanied them at C4/145 Keshav Puram but has denied that accused was arrested in the police station when he St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 24 came there after attending the vigilance inquiry. She does not remember who had handed over to her copy of petition under Section 125 Cr.P.C. She had no knowledge if prosecutrix 'R' had filed a divorce petition against the accused after registration of FIR. She has also denied that prosecutrix 'R' had filed a false complaint against the accused and that he had been falsely implicated in this case.
After framing of the additional charge against the accused under Section 420 IPC, the witness PW8 ACP Meena Naidu was recalled for examination wherein she has adopted her earlier examination in chief conducted on 04.08.2009. In her additional examination on additional charge U/s 420 IPC framed on 06.12.2010, the witness has deposed that the prosecutrix 'R' had given her a written complaint which is Ex.PW2/A in which she had given her age at the time of commission of the offence as 13 years. According to the witness, the prosecutrix in the above complaint had alleged that the accused had under threat made physical relations with her and also promised to marry her when she would attain the age of 18 years. She has deposed that the prosecutrix 'R' in the above complaint had also alleged that accused Satish Bhati was already married having a wife who was living namely Usha Bhati who was encouraging him in the aforesaid act and that the accused St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 25 Satish has made physical relations with her on the false promise of marriage and under threats despite being already married. The witness has further deposed that the prosecutrix had further alleged that accused Satish Bhati had sold her parental house and usurp/ misappropriated the sale proceeds of the same. According to the witness, during the investigations she came to know that the allegations made in the complaint were correct and the accused had a living wife namely Usha with children who were residing at C4/145, Keshav Puram, Delhi. She has testified that during the investigation the accused in his disclosure had admitted making relations with the prosecutrix 'R' when she was a minor under threat. The witness has deposed that she had also interrogated Usha Bhati, the wife of the accused Satish Bhati who disclosed during the investigations that initially she was not aware about the relationship between the prosecutrix 'R' and her husband but on one occasion she found some medical papers belonging to the prosecutrix 'R' in the pocket of the accused which revealed that the prosecutrix 'R' was pregnant when she confronted the accused with the same and also threatened him and the prosecutrix 'R' to desist from the relationship. According to her, she had mentioned these facts in the case diaries but did not find sufficient material against Usha Bhati in terms of the allegations regarding connivance between Usha Bhati St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 26 and the accused and therefore she filed charge sheet only against accused Satish Bhati. The witness has deposed that she had further investigated the aspect regarding misappropriation and came to know that after selling the parental property of the prosecutrix 'R' the accused had purchased another house in his name where he had kept prosecutrix 'R' and later he shifted out of that house and it was prosecutrix 'R' who stayed in the same. On being asked by the Court the witness has deposed that she did not conduct any investigation with regard to the sale amount or the amount for which the new property was purchased or if any amount had been misappropriated by the accused or not.
In her crossexamination by Ld. defence counsel, the witness PW8 has deposed that the distance between the house of prosecutrix 'R' and Satish Bhati was approximately 100 yards and that the prosecutrix 'R' never went to the house of Satish Bhati but states that investigations revealed that accused Satish Bhati used to visit the house of prosecutrix 'R' as was mentioned in her complaint. She has denied that prosecutrix 'R' used to visit frequently to the house of accused Satish Bhati and she was deliberately concealing this fact on that day. According to her, she did not carry out any investigations qua the sale transaction of the parental house of prosecutrix 'R' and she is therefore unable to tell when the Keshav St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 27 Puram property was sold and when the new property was purchased and for what amount. She could not admit or deny if the new property/ house purchased in Pitam Pura in the name of accused was purchased before the sale of property of Keshav Puram and states that as per the allegations it was purchased after the sale of the Keshav Puram property. She has denied the suggestion that she had investigated in relations to the sale and purchase of the aforesaid properties but was deliberately hiding this fact as it did not support the prosecution case. She has denied that she had not carried out any independent investigations and have proceeded to file the charge sheet only on the written complaint/ allegations made by the prosecutrix 'R' without ascertaining the truth.
PW9 Ms. Shashi Bala, Senior Scientific Assistant, FSL, Rohini has deposed that on 09.02.2005 four sealed parcels were received in their office vide letter No. 244/SHO/Keshav Puram dated 09.02.05 in the present case and she had examined exhibits biologically and serologically and prepared her detailed report which runs into two pages which is collectively Ex.PX. Her testimony remained unrebutted as no crossexamination was done by counsel for the accused despite opportunity in this regard.
PW10 Sh. Surender Kumar, Sub Registrar (Birth and Death) has brought the record showing an entry regarding birth of a St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 28 female child D/o Vinod Kumar and mother's name Saroj. According to him, as per their record, the date of birth of child was 27.11.83 and entry in that regard was made at Sl. No. 1363 dt. 29.11.1983 and the copy of the birth register is Ex.PW10/A. He has testified that the information regarding birth was received from Northern Railway Central Hospital, New Delhi. He has also seen the photocopy of birth certificate which is Ex.PW2/B which was issued from their office bearing signatures of Dr. Vishwanath who according to the witness has retired from service and he identified his signatures at point A as she had seen him signing and writing during the course of his duties. This witness has also not been crossexamined by the Ld. Defence Counsel.
PW11 Raman Kumar, Sub Registrar (Birth & Death) has brought the record showing entry regarding birth of a female child at registration No. 8352 dated 17.09.01 where the father's name of the child is mentioned as Satish Bhati and mother's name is of prosecutrix 'R' Bhati. According to the witness, the entry was made on the basis of information received from Bhalla Clinic and Maternity Home QP 62, Mourya Enclave, Pitam Pura. The witness has brought the birth record register which was maintained in their office in the routine course of their duty and the relevant birth report form duly filled by the hospital carrying the signatures of the St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 29 concerned doctor was received in their office and the same was thereafter entered in their records by mentioning the registration number and date of registration thereunder. Photo copy of the relevant record is Ex.PW/11/A. The witness has also seen the photocopy of birth certificate Mark C which was issued by the then Sub Registrar Sh. Brahm Parkash who had since been transferred. The witness has deposed that he is acquainted with his handwriting and signatures having seen him doing so in the routine course of his duties and having also dealt with records prepared by him being his successor in office. The copy of the said birth certificate is Ex.PW11/B. In his crossexamination by Ld. defence counsel, the witness PW11 Raman Kumar has deposed that they received the information about the birth of the child from the concerned hospital where the child was born as the doctor concerned sent them a duly filled birth report in the prescribed proforma of Govt. NCT of Delhi. According to him, no other document was received except the said birth report in their office.
PW12 Ct. Rajender Singh has deposed that on 29.01.05 he was posted as Constable in police station Keshav Puram and on that day on the instructions of IO/ Inspector Meena Naidu, he took the accused Satish Bhatti present in the court for medical St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 30 examination in BJRM Hospital and after medical examination doctor handed over to him two pullandas containing blood sample and undergarments of accused, sealed with the seal of MS BJRM Hospital and sample seal. He has deposed that after coming back to police station he handed over the pullandas and MLC to the Investigating Officer who seized the same vide memo Ex.PW8/E. According to the witness, the accused was arrested vide memo Ex.PW8/C and his personal search was conducted vide memo Ex.PW8/D. In his crossexamination by Ld. defence counsel, the witness PW12 has admitted that accused Satish Bhati was arrested at his house, after medical examination. According to him, they came back from hospital at around 10 p.m. and at that time the complainant was also present in police station. He only know about his signatures on the personal search of accused and he did not know who else had signed the same.
Court Witness:
Vide order dated 18.3.2011 this court had directed the examination of Usha Bhati the wife of the accused as Court Witness whose evidence was essential for a just decision of the case. Pursuant to the said directions, Smt. Usha Bhati was examined as St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 31 CW1 who has deposed that she was residing at B4, Keshav Puram along with her husband and three children and prior to this they had been residing at C4/145, Keshav Puram, Delhi for about eight to nine years. She has also deposed that they have taken this premises bearing no. 4/145, Keshav Puram on rent in the year 1998 and they shifted from there only three years back and they shifted to B4, Keshav Puram about three years back where they were staying on rent. According to her, she has three sons, the eldest son being 20 years of age and youngest being 16 years of age. The witness has further deposed that she knew prosecutrix 'R' since the year 2000 whose father was a friend of her husband who used to sit in the shop of the building material with him. She is unable to tell since when he was sitting in the shop of her husband and she was not aware if he used to sit there in the capacity of a partner or there was any agreement between her husband and father of prosecutrix 'R'. She is also unable to tell the age of prosecutrix 'R' when she used to come to her house in the year 2000 and also whether prosecutrix 'R' was minor or not but according to the witness she prosecutrix 'R' used to play with her children and was almost of the same age group. According to the witness, she had found some documents in the pocket of her husband which were St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 32 regarding the medical of the prosecutrix 'R' on which she got suspicious and asked him on which he kept quite and did not tell her anything stating that whatever it was he wanted to end it there. She has testified that there was an argument on this issue between her and her husband and she also scolded her husband and thereafter the prosecutrix stopped coming to her house. The witness has further deposed that police had also come to her for inquiry after this case was registered and she told them about the position and her husband continued to live with her. According to CW1 she came to know about this relationship between prosecutrix 'R' and her husband towards the end of the year 2000 itself when she confronted her husband with it, there was a dispute. The witness has been shown the birth certificate of the child in which the name of the accused has been shown as father which certificate is Ex.PW11/A and she states that she had seen the document in the pocket of her husband when she confronted her husband with it. She has further deposed that since it was an old matter, this dispute was in the year 2001 and it was a few months prior to the incident and she had met prosecutrix 'R' who come to her house along with her father i.e. in the year 2001. She has not been crossexamined by the Ld. Defence counsel and therefore, her entire testimony has gone unrebutted and uncontroverted.
St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 33 Statement of accused/ defence evidence:
After completing the prosecution evidence, statement of accused Satish Bhati was recorded under Section 313 Cr.PC wherein the entire incriminating evidence was put to him which he denied and stated that he is innocent and has been falsely implicated in this case.
In his additional statement under Section 313 Cr.PC, the accused has deposed that he is innocent and has nothing to do with the offence alleged. He has stated that the daughter begotten by prosecutrix 'R' belonged to him which child is with her. He has further stated that prosecutrix 'R' had a consensual relationship with him and now she had falsely implicated him. The accused has examined five witnesses in his defence.
DW1 Shiv Dayal, LDC from Record Room, Tis Hazari Courts has deposed that the record of case under Section 125 Cr.PC filed by the prosecutrix 'R' against the accused Satish Bhati, had already been destroyed. He has placed on record the destroyed report of required file which is Ex.DW1/A. This witness has not been crossexamined by Ld. APP for the State.
DW2 Jugraj, UDC from Sub Registrar Office has placed on record the cancellation of General Power of Attorney and Will vide document No. 46793 in Additional Book No. IV, Volume St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 34 No. 6218 page 174 dated 11.10.04 and cancellation of Will registered No. 46566 in additional book No. III, volume No. 2579 at Page 78 on 11.10.04; photo copies of which are Ex.DW2/A and Ex.DW2/B. He had also placed on record the copy of sale agreement vide registration No. 1107 in additional book No. 1, volume No. 153 on Page 164168 dated 19.01.06 which is Ex.DW2/C. The witness has also placed on record the General Power of Attorney vide Registration No. 2827 in additional book No. IV, Volume No. 49 on Page 110111 dated 19.01.06 and the copy of the same is Ex.DW2/D. This witness was also not crossexamined by Ld. APP for the State DW3 Ct. Sandeep has placed on record the copy of Kalandra under Section 107/151 Cr.P.C/ vide Mark No.5PP dated 28.04.04 Police Station Shalimar Bagh pertaining to 'State Vs. Satish Bhatti' and the bail bond of accused Satish Bhatti vide DD No.5PP dated 28.04.04, certified copies of the same are Ex.DW3/A and Ex.DW3/B. He has also placed on record the record of Kalandra under Section 107/151 Cr.P.C. vide DD No.6 dated 17.05.03 of Police Station Shalimar Bagh, certified copy of which is Ex.DW3/C and the bail bond of Satish Bhatti in DD No.6 dated 17.05.03 under Section 107/151 Cr.P.C. copy of which is Ex.DW3/D. He was not crossexamined by the Ld. APP for the State. St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 35
DW4 Ajit Singh, LDC, Record Room, Tis Hazari Courts has placed before this court the record of case filed by the prosecutrix 'R' against the accused Satish Bhati under Section 11 of Hindu Marriage Act, petition for a decree of Nullity of Marriage in which signatures of prosecutrix 'R' Bhasin at point A and B and signatures of supported affidavit at point C and D and the certified copy of which is exhibited as PW2/DB. He was not crossexamined by Ld. APP for the State.
The accused Satish Bhati has examined himself as DW5 who has deposed that he knew complainant prosecutrix 'R' since the year 2000 as he was having visiting terms with her father who expired in the year 2000. He has deposed that even after that complainant and her mother used to visit him and during that period he had physical relations with the complainant with her consent and this fact was also within the knowledge of mother of complainant. According to him, after that the mother of the complainant had sold her house No. C7/142, Keshav Puram, Delhi. He has also deposed that he had not taken any money from complainant's mother or it was not in his knowledge to whom she sold her house. According to the witness thereafter he was living with complainant and her mother at Sector16 Rohini for about one year. He has also testified that he had purchase H. No.VP21 A, Pitam Pura, Delhi in his own St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 36 name in January 2002 and they shifted to there in January, 2002 along with complainant and her mother. The witness has further deposed that the name of complainant and her mother and the daughter of the complainant had already been mentioned in the ration card and also his name was mentioned in the ration card as husband of the complainant. He has also deposed that on 17.05.03 and 28.04.04 a case u/s 107/151 CrPC was registered against him in which he was bailed out and the surety bond was given by complainant and her mother, copy of which is Ex.DW3/A, Ex.DW3/B and Ex.DW3/D. According to the witness, in the year 2002 the Power of Attorney and Will were executed in the name of complainant of above said house by him and the same was cancelled on 11.10.04 by him which are Ex.DW2/A and Ex.DW2/B respectively. Thereafter, he requested her to vacate the above said house but she refused the same and had also given a notice through his lawyer to her for vacant the said house. He has further deposed that the complainant had filed a false case u/s 125 Cr.P.C. against him on 22.10.02 and thereafter, she had filed many case against him and present case was filed on 29.01.05. According to the witness, that after filing of this case complainant had also filed a case under Section 11 and 12 of Hindu Marriage Act against him copy of which is Ex.PW2/DB. According to DW5, after that complainant had sold St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 37 his above said house to one Raj Kumar after preparing of forged documents on 19.01.06 and the copy of which is Ex.DW2/C in which she had mentioned her name as W/o SATISH BHATI". He has deposed that the present case was falsely registered against him to grab his above said house. He had also filed a complaint case u/s 420/468/471/34 IPC against her and her mother and other persons which was pending before the Ld. Trial Court.
In his crossexamination by Ld. APP for the State, DW5 Satish Bhati has denied that he had developed physical relations with prosecutrix 'R' on the false pretext of marriage and has denied that he intimidated prosecutrix 'R' that in case she disclosed the factum of physical relations to her parents then he will kill her. He has also deposed that he was already married and was also having children but has denied that he along with his wife, bhabhi and other relatives extended beatings to mother of prosecutrix 'R'. According to DW5 no civil dispute was pending between him and prosecutrix 'R' and one criminal case was pending trial which was a case of cheating but no FIR had been got registered in this regard. The witness has denied that he was deposing falsely to save himself but has admitted that he was arrested in this case but according to him, he had not given any complaints to the higher police officers that he had been falsely implicated in this case nor he had filed any criminal case in St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 38 this regard.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written synopsis filed on behalf of the accused. My findings are as under:
Identity of the accused:
In so far as the identity of the accused Satish Bhati is concerned the same is not disputed. Both the prosecutrix 'R' and the accused are known to each other. Even otherwise the accused has been duly identified by the prosecutrix in the court. Age of the prosecutrix at the time of the incident:
As per the case of the prosecution, the accused Satish Bhati developed intimacy with the prosecutrix ever since she was 13 years of age. The prosecutrix 'R' has been examined in the court as PW2 who has placed on her date of birth certificate which is Ex.PW2/B (original of which was produced in the court and was returned to her after seeing the same) showing that her date of birth is 29.11.1983. This Date of Birth certificate has been duly proved by PW10 Surender Kumar, Sub Registrar (Birth & Death). It is further evident from the record and an admitted case of the St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 39 accused that the a child was born to the prosecutrix on 17.9.2011 whose date of birth has been duly proved by PW11 Raman Kumar from the office of Sub Registrar, Birth and Death. The wife of the accused namely Usha Bhati has been examined by this court as Court Witness (CW1) being a relevant witness. She in her testimony has deposed that she knew the prosecutrix 'R' since the year 2000 as her father was a friend of her husband who used to sit in the shop of her husband of building material but she is unable to tell since when the father of the prosecutrix used to sit with the accused. She is also unable to tell the age of prosecutrix 'R' when she used to come to their house and states that she was approximately of the same age as that of her children. According to CW1, her eldest son is now aged about 20 years and the youngest son is 16 years of age and it is evident that the prosecutrix must have been of the same age group at the relevant point of time. I may further observe that the father of the prosecutrix had expired in the year 2000 and therefore it is evident that the accused was known to the family of the prosecutrix even prior to the year 2000 and the statement of the prosecutrix 'R' (PW2) to the extent that the accused developed intimacy with her in the year 1998 on the pretext of marriage, which statement cannot be doubted. The recorded date of birth of the prosecutrix is 27.11.1983 which has gone unrebutted. St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 40 Therefore, in the year 1998 she was about 14 to 15 years of age and at the time of the death of her father in the year 2000 she was aged about 16 to 17 years and on the date of birth of her child on 17.9.2011 she was about 17 years, 9 months and 20 days old showing that at the time when she conceived from the accused she was hardly 17 years of age. I hereby hold that the prosecution has been able to establish that the prosecutrix was a minor at the time of the incident.
Relationship between the parties and allegations against the accused:
The prosecutrix has in her testimony deposed that the accused had developed physical relations with her when she was minor below the age of 13 years on the false pretext of marriage after she completes 18 years of age and developed intimacy with her. The case of the prosecutrix is that the accused was a friend of one Vikas who was the tenant in the shop of the father of the prosecutrix and used to visit Vikas frequently as a result of which he developed friendly relations with her father and used to come to their house. This aspect was not mentioned by the prosecutrix in her first statement to the Investigating Officer but being an explanation the same is liable to be read into evidence. She has deposed that in due course of time the accused started taking liquor with her father and St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 41 developed intimacy with her when she was 13 years of age and developed physical relation on the pretext that she would marry her after she completed 18 years. According to the prosecutrix, the accused also threatened her not to tell about her relationship to her parents due to which reason she kept quiet sometime but thereafter disclosed this fact to her mother on which her father stopped joining the company of the accused due to which her father was even beaten by the accused on one occasion and therefore, on account of the terror created by the accused, her father shifted somewhere in Gurgaon and stopped visiting their house but she along with her mother continued to stay in the house and the accused had continued to make physical relations with her. According to the prosecutrix, her father expired in the year 2000 and after about two to three months from the death of her father the accused took her to his house where she met the wife of the accused along with his children. Also as per the allegations, the wife of the accused had connived with the accused and asked him to take the prosecutrix to somewhere on which the accused took her to his native village at Noida and when she had left for the native village of the accused the wife of the accused in association with her Jethani and other relatives extending beatings to her mother and thrashed her mother out of the house and locked the premises. They also extended St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 42 threats to her mother grandmother who was residing in Pitam Pura and when she came back from the native village of the accused after about fifteen days, the accused got opened the house of her mother where she started residing along with her mother during which period she was pregnant and later gave birth to a female child. According to the prosecutrix, the accused thereafter sold their (her father's) house to his own brother in law but did not pay any sale proceeds to her and her family and arranged for a house at Pitam Pura for her on false assurance that the said house stood in the name of her mother which was not done on which she had to lodge a complaint with the police which is Ex.PW2/A. The testimony of the prosecutrix finds due corroboration on the material aspects from the testimony of her mother Smt. Saroj who has been examined as PW3 who has similarly deposed that when they were residing at Lawrence Road, Keshav Puram, where they had rented out certain shops where the accused was having intimacy with their tenants on account of which her husband the accused came close to each other through the tenants and the accused developed visiting terms with her husband and indulged him into alcoholism. She has also deposed that the accused had, on one occasion beaten her and her husband and was having evil eye on their daughter the prosecutrix 'R' who was hardly St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 43 14 years of age at that time and also developed illicit relations with her. She has stated that in the year 2000 her husband had expired and in the year 2001 the accused increased his illegal activities taking benefit of death of her husband. She has testified that it was in the year 2001 that she came to know that her daughter was pregnant and the accused sold her house and got arranged another house at Pitam Pura. According to Smt. Saroj, the accused had defrauded them in the purchase of said house at Pitam Pura and also started living with them and later they came to know that the documents of the purchase of the said house were forged.
According to her, the accused had an evil eye on her daughter when she was just 14 years old.
A suggestion has been made to both the witnesses i.e. the prosecutrix and her mother that the accused Satish Bhati has been falsely implicated and all the police complaints were made after cancellation of the Power of Attorney when the prosecutrix refused to vacate the premises. Smt. Saroj (PW3) in her cross examination has admitted that she did not participate in the marriage of the accused and the prosecutrix and states that he had married the prosecutrix in the year 2000.
It is an admitted case of the parties that the prosecutrix had filed a petition under Section 11 of the Hindu Marriage Act for St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 44 declaring her marriage with the accused as nullity and void since she came to know later that the accused was already married having three children. The certified copy of the order of the Ld. Addl. District Judge dated 2.6.2008 has been placed on record which has been duly admitted by the parties which shows that the accused had filed the written statement in the said petition wherein he was silent about the solemnization of marriage. In the said petition the accused before this court has also placed on record the ration card showing the name of the prosecutrix as his wife and the accused also admits the parentage of the child born on the said alliance. The factum of marriage has not been proved before this court but one aspect borne out from the record is that the accused by his behaviour, act and conduct had made relations with the prosecutrix under an assurance that it would be a matter of time before he officially made her his wife and it is for this reason he even resided with her and in the ration card the prosecutrix has been shown as his wife which aspect he has not denied. This lends support to the version of the prosecutrix that she was lured and induced into a physical relationship with the accused on the assurance of marriage which he did knowing that he was already married with three children and a second marriage with the prosecutrix was not possible without first getting a divorce from Usha Bhati which was St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 45 never his intent.
It is evident from the aforesaid Firstly that the accused Satish Bhati was already married to Usha Bhati (CW1) when he came into contact with the prosecutrix and had three children from the said wedlock which marriage is subsisting till date.
Secondly it is evident from the material on record that the accused Satish Bhati was known to the family of the prosecutrix since the year 1998 when he had shifted the area and had set his eyes on the prosecutrix and made physical relations with her after befriending her father. In fact CW1 Usha Bhati has proved that it was since 1998 that the father of the prosecutrix had started assisting the accused in the shop.
Thirdly it stands established from the testimony of Usha Bhati that they (i.e. family of the accused) had shifted to the area in House No. C4/145, Keshav Puram only in the year 1998. Therefore, under these circumstances it would not have been possible for the prosecutrix to be aware of the marital status of the accused.
Fourthly the wife of the accused namely Usha Bhati (CW1) has admitted that she had first met the prosecutrix which she come to their house in the year 2000 showing that at the time when the accused developed intimacy with the prosecutrix and made St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 46 physical relations with her prior to the year 2000, she was not aware of the living wife and children of the accused.
Fifthly it also stands established that after the death of the father of the prosecutrix when she became pregnant from the accused, he shifted the prosecutrix and her mother to a house at Pitam Pura and the parental house of the prosecutrix was sold. The prosecutrix has specifically deposed that he sold this house to his brother in law which statement has not been controverted.
Sixthly it also stands established from the testimony of Usha Bhati (CW1) the wife of the accused that for the first time she became aware of the extra marital affair of the accused with the prosecutrix was in the year 2001 when she saw the date of birth certificate of the child of 'R' in the pocket of her husband Satish Bhati but when she confronted the accused with the same he asked her to forget it since it was a past. This aspect also finds due corroboration from the testimony of the prosecutrix who has deposed that the wife of the accused namely Usha Bhati and her sister in law had come to threaten her and her mother after which the accused had shifted them to Pitam Pura. Smt. Saroj (PW3) the mother of the prosecutrix has deposed that the accused shifted them to a house at Pitam Pura after the prosecutrix had become pregnant which was in the year 2001. Therefore, it is natural that Usha Bhati St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 47 the wife of the accused having come to know of the affair of her husband with the prosecutrix and birth of a child would have got upset and threatened the prosecutrix and her mother.
Seventhly certain photographs have been put to the prosecutrix showing the prosecutrix along with the wife and family members of the accused which the prosecutrix has admitted. The witness Usha Bhati (CW1) is not consistent in her statement about the time when she first met the prosecutrix. At one place she states that it was in the year 2000 and at the other place she states that she first the prosecutrix a few months prior to the incident of the year 2001 when she discovered the date of birth certificate of the child of prosecutrix in the pocket of the shirt of her husband. According to her, she met the prosecutrix 'R' when she had come to her house along with her father which is not possible since the father of the prosecutrix had already expired in the year 2000. Even earlier to that the father of the prosecutrix had virtually deserted the prosecutrix and her mother and started residing separately. Therefore, to say that she met the prosecutrix with her father in the year 2000 cannot be believed. No doubt it could have been in the year 2001 a few months prior to the birth of the child but certainly she had not come with her father at that time since her father had already expired. Even otherwise, the dispute between her (Usha St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 48 Bhati) and her husband would have arisen only after she discovered the relationship between him and the prosecutrix which she did not suspect previously since the prosecutrix was of the same age group of her children and when she used to come her house in the year 2000 - 2001 according to Usha Bhati, the prosecutrix used to play with her children.
Eighthly the marriage between the accused and the prosecutrix has not been proved. No witness has been examined in this regard but the relationship between the accused and the prosecutrix stands established as the accused has admitted that he made physical relations with the prosecutrix and had fathered a female child from her on 17th September 2001. However, the aspect of marriage has not been proved and therefore, it is evident that the accused was in livingin relationship with the minor prosecutrix and the fact that the ration card shows the name of prosecutrix as his wife and the name of the accused as the father of the child on the date of birth certificate, proves and establishes the extent of allurement on the promise of marriage offered by the accused to the prosecutrix. It also stands established that though the accused had been promising the prosecutrix but had not actually married her and the physical relations made by him with the prosecutrix was under
the pretext of marriage.
St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 49
Lastly it is evident that after the sale of the parental house of the prosecutrix, the accused had promised the prosecutrix and her mother that he would purchase a house in the name of the mother of the prosecutrix but instead he purchased the house in his own name and in this regard a separate complaint is pending before the competent court.
It stands established from the above that the prosecutrix 'R' is an educated/ semi educated young girl who was enticed by a married man of about 33 to 35 years of age. It is the accused who made physical relations with the prosecutrix, took her away, physically impregnated her and then set her up in a house in Delhi at Pitam Pura. Taking advantage of the fact that the prosecutrix and her mother were alone, not having any physical, financial and emotional support of any male other male the accused Satish Bhati exploited the minor prosecutrix after her father deserted her. In the given Indian male dominated society, the prosecutrix was misled by the false assurances and mischievous acts of the accused. It was only when the prosecutrix delivered a child when she was still about 17 years of age and seeing that the assurances did not transform into reality, that she came to know about the reality of the situation having come to know that the accused has a wife and three children and she started legal proceedings against the accused. In an attempt St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 50 to secure right for herself and her child she filed a petition under Hindu Marriage Act where she could not attained any relief. The prosecutrix is a victim of physical, mental and psychological abuse in the hands of the accused who was twice her age at the relevant time and is thereafter fighting this battle against him single handedly along with her aged mother and the child begotten from the accused.
In such cases there is rarely any cogent or tangible proof to establish/ prove the existence of a criminal intention which has to be gathered, deciphered or inferred from circumstances.
The Hon'ble Mr. Justice Pradeep Nandrajog in the case of Ashok Rai @ Amit vs. State, Criminal Appeal No. 389/2008 decided on 9.2.2009, by placing his reliance on the judgments in the cases of Uday Vs. State of Karnataka reported in 2003 (4) SCC 46 and Jayanti Rani Panda Vs. State of West Bengal and Anr. reported in 1984 Crl. LJ 1535; has very succinctly culled out the law on the subject. It has been held that:
"........ While we reiterate that a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 51 accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to excuplate him from the ambit of Section 375 clause secondly......."
It is evident that there is no straitjacket formula which can be evolved for determining whether the consent was given under a misconception of fact or not and it has to be deciphered from the facts and circumstances of each case. Applying these settled principles of law to the facts of the present case, it is evident that the accused had developed relations with the prosecutrix since she was 14 to 15 years of age on the promise of marriage by suppressing the fact that he was already married and having three children. He St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 52 continued to promise marriage to the prosecutrix and maintained physical relations with her even after the death of her father and as a result of which the prosecutrix became pregnant and delivered a female child and he continued to reside with her at VP21A, Pitam Pura, Delhi has her husband which aspect is admitted by the accused. There is nothing on record to show that at the time when the accused first developed physical relations with the prosecutrix who at the relevant time was hardly 14 to 15 years of age or her family were aware of his first marriage.
The prosecutrix 'R' being a semi education (uptill class Seventh) a young teenager of 14 to 15 years of immature understanding was not in a position to understand the acts of the accused was incapable of seeing through the games he was playing with her. The fact that the ration car showed the accused as the husband of the prosecution which is despite the fact that no marriage has ever taken place, conclusively establishes the allegations of the prosecutrix that throughout the accused had been assuring her and holding out promise of marriage when she would become 18 years of age, which turned out to be a mere hoax, the accused being already married to Usha Bhati with three children from the said marriage. The consent ostensibly given by the prosecutrix will be of no avail to the accused to exculpate from the ambit of Section 375 St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 53 [Ref.: Jayanti Rani Panda Vs. State of west Bengal and Anr (Supra)].
It is also evident from the record that the Ld. Addl. District Judge, Delhi while dismissing the application under Section 340 Code of Criminal Procedure in Misc. No. 03/07 had observed that:
".... Irony of the situation is that the hands of this Court are tied, that it cannot haul up the said applicant/ Satish Bhati for the number of moral crimes that he has committed against the non applicant/ Rekha and towards the society at large....."
I may, however, observe that this court is not as much helpless. For all the moral and statutory crimes whcih the accused has committed against the prosecutrix, there is no reason why he cannot be held liable for luring and inducing a young teenager into immoral relationship on the pretext and promise of marriage and thereafter impregnated her at the age of 17 years as a result of which she became a mother at the young age of 17 years 9 months. In order to continue his relations with the prosecutrix he did not stop St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 54 there. Knowing fully well that he would not be able to marry the prosecutrix without divorcing his wife, he continued to assure her of the marriage and for the said purpose, the prosecutrix was shown as his wife in the ration card. The fact that he stayed with her during this period also stands established from his own documents i.e. proceedings under Section 107/151 Code of Criminal Procedure Ex.DW3/A to Ex.DW3/D in which proceedings the prosecutrix has been shown as his wife and it is the mother of the prosecutrix who stood surety for him. How many people the accused has wronged. First his wife Usha Bhati, Second his three sons, Third the prosecutrix and Lastly the child he fathered from the prosecutrix. In this whole saga of lies, lust, treachery, tricks, sex and misappropriation can the accused be permitted to get away. The answer obviously is 'No'. He is certainly held guilty of raping a minor prosecutrix on the false pretext and promise of marriage and of impregnating her as a result of which a female child was born to her when she herself was hardly 17 ½ years of age.
The prosecutrix has also alleged that the accused had issued threats to kill her parents due to which reason she did not disclose the fact regarding accused making physical relations with her to anybody. The only evidence on record in this regard is oral i.e. the testimony of the prosecutrix herself but the same does not St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 55 find any corroboration from any other material. Further the allegations of threats are general and vague. No date and time or specific words of threats so issued to the prosecutrix have been specified by her. Therefore, under these circumstances, I hereby grant the benefit of doubt to the accused in so far as the allegations of threats are concerned.
Defence of the accused:
The only defence of the accused is that the entire relationship between him and the prosecutrix was consensual and that she was aware of his marital status. In this regard I may observe that at the time when the accused first developed physical relations with the prosecutrix, she was about 14 to 15 years of age which relations he continued even after the death of the father of the prosecutrix in the year 2000 when the prosecutrix conceived in January 2001 and gave birth to a female child in September 2001 when she was below the age of 18 years (17 years 9 months). What the accused has done is not only a moral wrong but against all existing legal norms and having developed relations with a minor less than half his age on the pretext of marriage as a result of which the minor gave birth to a child even before she attained the age of majority; now the accused cannot be allowed to take the defence of her consent. His act is unpardonable and any indulgence given to St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 56 him for the same would be against the existing national, public and legal policy requiring that the minors particularly the female child be protected. When the accused first made physical relations with the prosecutrix she was below 16 years of age and her consent if any was immaterial; later in the year 2000 she knew about the wife and children of the accused, it was too late in the day since she had already conceived in January 2001. It is evident that the consent of the prosecutrix was obtained by creating a plea that the accused was desirous of marrying her due to which reason he had even kept the prosecutrix and her mother at separate house at Pitam Pura. To say that the act of the prosecutrix is consensual on her part and not entice or misconception is factually incorrect and this court rejects such an argument. Rather, it is evident that the consent obtained from the prosecutrix was tainted and based upon deception and fraud and is no consent. Therefore, the act of the accused falls within the definition of rape under Section 376 Indian Penal Code (Ref.: Saleha Khatoon Vs. State of Bihar & Anr. reported in 1989 Crl.L.J. 202).
It is also argued by the Ld. Defence Counsel that the consent of the prosecutrix would be evident from the fact that the proceedings under section 107/151 Cr.P.C. was initiated against the accused in the year 2003 and it was the prosecutrix who stood surety St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 57 for him in the said case. In this regard I may observe that the evidence on record in the form of testimony of Usha Bhati who has been examined as Court witness reveals that according to her the accused Satish Bhati was residing regularly with her even after she discovered his affair with the prosecutrix since he had told that it was an old matter and now there is nothing between him and the prosecutrix. However, in his own statement in defence the accused has admitted that for one year he resided with the prosecutrix and during this period proceedings under Section 107/151 Cr.P.C. were also initiated against him. I have gone through the certified copies of the proceedings placed before me. It is evident that at the time of the above incident the accused was under the influence of liquor and was hurling abuses at the neighbours. It is evident from Ex.DW3/C that the information was given to his wife i.e. the prosecutrix 'R' who also told the police that the accused often used to abuse and beat her. This document which the accused has produced in his defence also establishes that the accused was residing in the area as the husband of prosecutrix. It is also evident that it was the mother of the prosecutrix namely Smt. Saroj (PW3) who stood surety for the accused before the SDM. This only goes to show the conduct of the accused who on the one hand was maintaining his wife and on the other hand was also having relations with the minor prosecutrix. He St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 58 was exploiting two women at the same time i.e. the prosecutrix and his wife Usha Bhati. Having made physical relations with the minor and begotten a child from her and having trashed her thereafter, what kind of indulgence does the accused now expects from this legal system. He cannot be permitted to defeat the ends of justice by playing up the technicalities of law. Justice has to be done since on the one hand he has spoiled the life of his wife Usha Bhati and his three children from her and also of the prosecutrix and the female child fathered by him from her.
Further, it is argued by the accused that the present case is an outcome of the differences which had occurred between him and the prosecutrix since he had cancelled the Will and General Power of Attorney in respect of the house purchased by him in favour of the prosecutrix and getting annoyed by the same, the prosecutrix took the extreme step of lodging the present FIR against him. I have considered the submissions made. No doubt the said Cancellation Deed is stated to have been executed in October 2004 but it is writ large that the registration of the same took place in the year 2006 and hence the possibility that it was actually executed in November 2006 after the accused came to know of the sale of property by the prosecutrix, cannot be ruled out. Even otherwise, in view of the fact that a separate criminal complaint is pending before St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 59 the competent court in respect of the same, this court is restraining itself from making any observations but the allegations made against the accused are relevant in so far as the facts of the present case are concerned.
FINAL FINDINGS:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 60
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the settled principles of law to the facts of the present case it is evident that the identity of the accused Satish Bhati stands established. The fact that the father of the prosecutrix was known to the prosecutrix since the year 1998 also stands established. It also stands established that the date of birth of the prosecutrix is 29.11.1983. It is further established that the accused made friendly relations with the father of the prosecutrix and had set eyes on the prosecutrix 'R' and developed physical intimacy with her while she was minor hardly aged 14 to 15 years. The prosecution has also proved that the father of the prosecutrix expired in the year 2000. The fact that the accused developed physical relations with the prosecutrix when she was between 14 to 15 years of age, stands established. It has been proved and established that for the first time the prosecutrix 'R' met the wife of the accused in the year 2000 and that in the year 2001 the prosecutrix delivered a female child out of St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 61 the physical alliance with the accused when she was hardly 17 ½ years of age and the accused admits having fathered the child. It also stands established that the consent of the prosecutrix was tainted and based upon deception and fraud on the pretext that he would be marrying her. The prosecution has also established that the accused had sold the house of the father of the prosecutrix and housed the prosecutrix and her mother at Pitam Pura and promised them to transfer the house in their name which he did not do. However, the prosecution has not been able to prove and establish the aspect of threats issued by the accused Satish Bhati to the prosecutrix.
The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 62 prosecution have been able to built up a continuous link.
In view of my aforesaid discussion, I hereby hold the accused Satish Bhati guilty of the offence under Section 376 and Section 420 Indian Penal Code for which he is accordingly convicted. He has, however, been acquitted of the charge under Section 506 Indian Penal code.
Case be listed for arguments on sentence on 22.7.2011.
Announced in the open court (Dr. KAMINI LAU) Dated: 15.7.2011 ASJII(NW)/ ROHINI St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 63 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NW): ROHINI COURTS: DELHI Session Case No. 1055/2009 Unique Case ID No. 02401R0187882005 State Vs. Satish Bhati S/o Sh. Dheeraj Bhati R/o C4/145, Keshav Puram, Delhi (Convicted) FIR No.: 49/05 Police Station: Keshav Puram Under Section: 376/506/420 IPC Date of Conviction: 15.7.2011 Arguments heard on: 22.7.2011 Date of Sentence: 23.7.2011 APPEARANCE: Present: Sh. R.A. Yadav, Addl. Public Prosecutor for the State.
Convict in judicial custody with Sh. Mohan Sharma Advocate.
St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 64 ORDER ON SENTENCE:
The case before this court depicts a saga of lies, lust, treachery, tricks, sex and cheating. The accused before this court namely Satish Bhati a father of three, by suppressing the fact of his earlier marriage emotionally, psychologically, financially and physically exploited a young teenager since the age of 14 to 15 years and fathered her child when she was hardly 17 ½ years of age. This he did by taking the advantage of vulnerable tender age of the prosecutrix and lack of social support there being no male member of the family after the death of her father whom the convict had befriended during his life time. Ever since he set his eyes on the young prosecutrix, life drastically changed for this teenager. The ploy was very simple. Initially he lured and emotionally trapped the prosecutrix 'R' a young girl of immature understanding hardly 14 to 15 years of age and later when she was completely entangled with him, it was then that he disclosed the fact of his earlier marriage and children to her and convinced to make physical relation with her on allurement and promise to marriage and even fathered her child when the prosecutrix herself was hardly 17 years of age. The plea taken by the accused who admits this relationship and also of having fathered her child, is that the relationship between him and the prosecutrix was consensual.
St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 65
Wanting to have the best of both worlds, the accused before this court is now in a hot soup, a situation which he did not contemplate. On the one hand he cheated upon his wife of many years whereas on the other hand he physically, financially and emotionally exploited the teenaged prosecutrix to his benefit. He has admitted the subsistence marriage with Usha Bhati but not with the prosecutrix, Naturally, because if he does so his wife Usha Bhati may sue him for Bigamy which situation he wanted to avoid. But having exploited a minor on pretext of marriage and having fathered her child he is as much cornered. The allurement, inducement and the promise held out by him to the prosecutrix being writ large or else there was no reason for the prosecutrix to have lived with him showing herself as his wife.
No doubt, consenting adults have an absolute right to make a choice of the way they want to live their lives but the same proposition does not apply in case of minors, for Legal System in India designed to protect women and children particularly minors from all kinds of exploitation which includes sexual exploitation. Representation made by a person to elicit the assent of the victim without having any intention of inclination to marry her would vitiate the consent. Certain sanctity is attached to a serious relationship like marriage. Just as it is the responsibility of a woman St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 66 to maintain her purity, chastity and dignity, it is equally important for a man to maintain his sincerity in a relationship and maintain the same values as is expected of a woman in our society. Treachery has no place in our social and legal set up.
The accused was charged of the offence under Sections 376, 420 & 506 Indian Penal Code. This court while acquitting the accused for the charge under Section 506 Indian Penal Code and holding him guilty of the offence under Section 376 and 420 Indian Penal Code, observed that the prosecutrix 'R' is an educated/ semi educated young girl who was enticed by a married man of about 33 to 35 years of age. It was he who made physical relations with the prosecutrix, took her away, physically impregnated her and then set her up in a house in Delhi at Pitam Pura. Taking advantage of the fact that the prosecutrix and her mother were alone, not having any physical, financial and emotional support of any male other male the accused Satish Bhati exploited the minor prosecutrix after her father deserted her. In the given Indian male dominated society, the prosecutrix was misled by the false assurances and mischievous acts of the accused. It was only when the prosecutrix delivered a child when she was still about 17 years of age and seeing that the assurances did not transform into reality, that she came to know about the reality of the situation having come to know that the St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 67 accused has a wife and three children and she started legal proceedings against the accused. In an attempt to secure right for herself and her child she filed a petition under Hindu Marriage Act where she could not obtained any relief. The prosecutrix is a victim of physical, mental and psychological abuse in the hands of the accused who was twice her age at the relevant time and is fighting this battle against him single handedly along with her aged mother and the child fathered by the accused.
This court had further observed that what the accused has done is not only a moral wrong but against all existing legal norms and having developed relations with a minor less than half his age on the pretext of marriage as a result of which the minor gave birth to a child even before she attained the age of majority; now the accused cannot be permitted to take the defence of her consent. His act is unpardonable and any indulgence given to him for the same would be against the existing national, public and legal policy requiring that the minors particularly the female child be protected. When the accused first made physical relations with the prosecutrix she was below 16 years of age and her consent if any was immaterial; later in the year 2000 she knew about the wife and children of the accused, it was too late in the day since she had already conceived in January 2001. It is evident that the consent of St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 68 the prosecutrix was obtained by creating a plea that the accused was desirous of marrying her due to which reason he had even kept the prosecutrix and her mother at separate house at Pitam Pura. To say that the act of the prosecutrix is consensual on her part and not enticement or misconception is factually incorrect and this court rejects such an argument. Rather, it is evident that the consent obtained from the prosecutrix was tainted and based upon deception and fraud and is no consent. I may add that promise to marry and its breach is an actionable wrong in Torts in many developed countries. However, in our Legal System the act of the accused falls within the definition of rape under Section 376 Indian Penal Code (Ref.:
Saleha Khatoon Vs. State of Bihar & Anr. reported in 1989 Crl.L.J. 202).
It has also been observed by this court that the conduct of the accused shows that on the one hand he was maintaining his wife and on the other hand was also having relations with the minor prosecutrix. The accused was exploiting two women at the same time i.e. the prosecutrix and his wife Usha Bhati. Having made physical relations with a minor and begotten a child from her and having trashed her thereafter, what kind of indulgence does the accused now expects from this legal system. He cannot be permitted to defeat the ends of justice by playing up the technicalities of law. St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 69 Justice has to be done since on the one hand he has spoiled the life of his wife Usha Bhati and his three children from her and on the other hand of the prosecutrix and the female child fathered by him from her. The accused Satish Bhati has therefore been held guilty of the offence under Section 376 read with 420 Indian Penal Code and accordingly convicted. He has however been acquitted of the charge under Section 506 Indian Penal Code.
I have heard arguments on the point of sentence. The convict Satish Bhati is aged about 46 years of age having a family comprising of an aged father, mother, wife and three sons who all are studying. He is a Matriculate and is a property dealer by profession. He is also involved in another case under Section 506 Indian Penal Code of Police Station Shalimar Bagh which is still pending. He has already remained in judicial custody for about one month and ten days. Ld. Counsel appearing on behalf of the convict has vehemently argued that the convict is the sole bread earner of his family. He submits that though the convict is involved in another case though he has not been convicted in any other case. He has pointed out that the convict has already remained in custody for a considerable period of time and any harsh view against the convict would be prejudicial to his family comprising of aged parents, wife and three sons who are all dependent upon him. He St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 70 has also pointed out that the prosecutrix has now married in the year 2006 and requests that a lenient view be taken against the convict.
On the other hand the Ld. Addl. PP for the State requests that a strict punishment be given to the convict keeping in view the moral and statutory wrong he had committed against a minor.
The Hon'ble Supreme Court has in the judgment of State of Andhra Pradesh Vs. Gangula Satya Murthy reported in JT 1996 (10) SC 550, observed as under:
"Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.."
In the case of Shri Bodhisattwa Gautm Vs. Miss Subhra Chakraborty reported in AIR 1996 SC 922, the Hon'ble Apex Court observed that: "The entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 71 short the 'Constitution'). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions." It is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. (Ref: Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78).
Of late physical/ sexual exploitation of woman particularly minors is on the increase where women are treated as commodity showing little or no concern for her honour and dignity. It is in this background that this court is required to treat the issue with more sensitivity. The object of sentence is not only required to St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 72 be reformative but it should also be punitive, preventive and deterrent. In the present case, the convict Satish Bhati had made physical relations with the prosecutrix 'R' when she was hardly 14 to 15 years of age and less than half his age on the pretext of marriage despite the fact that he was already married to Usha Bhati having three sons. He continued to make physical relations with the prosecutrix under this false assurance of marriage and fathered her child in September 2001 while she herself was a minor. The minimum punishment prescribed for the offence under Section 376 Clause (1) Indian Penal Code is imprisonment for either description which shall not be less than Seven years but which may be extend to Life or for a term which may extent to ten years and shall also be liable to fine. After drawing a balance sheet of the various aggravating and mitigating factors as listed before me, I hereby award the following sentences to the convict Satish Bhati:
1. The convict is sentenced to Rigorous Imprisonment for a period of Seven Years and fine to the tune of Rs.50,000/ for the offence under Section 376 Indian Penal Code. The total fine amount of Rs.50,000/ (Rs. Fifty Thousand), if recovered, shall be paid to the prosecutrix 'R' under Section 357 Cr.P.C.
as compensation. In default of the payment of fine the convict St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 73 shall undergo Simple Imprisonment for a period of Three Months.
2. Further, he is sentenced to Rigorous Imprisonment for a period of Five Years and fine to the tune of Rs.50,000/ for the offence under Section 420 Indian Penal Code. The total fine amount of Rs.50,000/ (Rs. Fifty Thousand), if recovered, shall be paid to the prosecutrix 'R' under Section 357 Cr.P.C. as compensation. In default of the payment of fine the convict shall undergo Simple Imprisonment for a period of Three Months.
Both the sentences shall run concurrently. Benefit of Section 428 Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules. The convict is in judicial custody. He is sent to judicial custody for serving the remaining sentence.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 74
Copy of the judgment and order on sentence be given to the convict free of cost and another be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 23.7.2011 ASJII(NW)/ ROHINI
St. Vs. Satish Bhati, FIR No. 49/05, PS Keshav Puram Page No. 75