Delhi District Court
State vs . Dayal Kishan S/O Amar Singh on 17 April, 2012
IN THE COURT OF SH. J. R. ARYAN, DISTRICT JUDGE-CUM-ADDL.
SESSIONS JUDGE, INCHARGE(NORTH EAST DISTT.),KARKARDOOMA
COURTS, DELHI
SC no.05/11
Unique ID no. of the case:-02402R0022562011
State Vs. Dayal Kishan s/o Amar Singh
r/o Village Fath Garhi, Tehsil Kher, Distt.
Aligarh, UP.
FIR No.338/10
PS: New Usmanpur
U/sec. 376/506 IPC
Date of institution of the case: 02.02.2011
Date of reserving the case for order: 11.04.2012
Date of passing of order: 17.04.2012
JUDGMENT
1. Charge of rape and criminal intimidation put on trial against accused is that somewhere between May, 2010 to mid of October, 2010 accused indulged in sexual intercourse with his step daughter Miss. P ( complete name of the prosecutrix withheld and henceforth she will be referred to as prosecutrix ) and act of accused amounted to offence of rape when prosecutrix was aged around 15 years. Accused criminally intimidated prosecutrix by giving a threat to kill her brother and sister if she dared to disclose the incident to anybody. During trial the following points emerged for decision.
(1) If sexual intercourse activity indulged by accused with the prosecutrix was with the consent of the prosecutrix.
(2) Whether prosecutrix was above and beyond the age of 16 years so as to SC no.05/11 Page 1/22 afford valid defence plea of consent to the accused.
Co-related question arises if prosecution proved that prosecutrix was minor when the incident of this case occurred.
2. Facts wherein this case came to be registered are that PW7 mother of the prosecutrix namely Shivani gave a call to police on 30.10.2010 which on being conveyed to Police Station New Usmanpur that DD 16A Ex. PW9/A was recorded. Information conveyed to police was that husband of the informant had been committing rape on the daughter of the informant since several months. SI Sunil Sharma PW9 reached house no. K-38, Gali no.1, Bhajanpura and SI recorded statement of the prosecutrix. According to prosecutrix she was residing on the given address K Block, Bhajanpura Road, Delhi, with her mother Shivani, brother Vinay and younger sister Asha and was 15 years of age. Her father Chander Bhan Singh had left them about 12 years ago and his whereabouts were not known. Her mother used to work in factories to bring up the kids.
3. Prosecutrix was five years of age when she had been sent to an orphanage "Arya Kanya Sadan", GK - Ist by her mother and there she studied up to 6th class. Somewhere in April, 2010 prosecutrix came to her mother's house V-144, Gali no.2, Jai Prakash Nagar, Delhi and started living there. Prosecutrix then came to know that her mother had contacted marriage with Dayal Kishan about eight years ago and Dayal Kishan was driver by profession. Prosecutrix started addressing Dayal Kishan as Papa but accused SC no.05/11 Page 2/22 Dayal Kishan objected to that and asked prosecutrix not to address him as Papa. Her mother got prosecutrix admitted in 7th class in Ghonda school.
4. On a day in the month of May when it was summer vacation break prosecutirx was alone in the house and accused Dayal Kishan gave some water drink ( sharbat ) to prosecutrix and after taking that drink she became unconscious. Accused taking advantage of that situation committed rape on her and being under the effect of that drink despite efforts she had not been able to prevent the accused. When prosecutrix became conscious accused gave a threat to her to not to disclose incident to anybody otherwise he would kill her brother and sister. Prosecutrix maintained silence on that incident and that encouraged accused and whenever accused found prosecutrix alone he started indulging in sexual activity by force with her and accused used to keep prosecutrix shut her mouth by threats.
5. Prosecutrix further reported that last illicit act committed by accused with her was 15 days ago and since prosecutrix missed her menstrual cycle she got disturbed and then she informed her mother and when her mother inquired from her the cause and the reason, she narrated this incident of accused indulging in illicit activities with her and mother gave a call to the police.
6. On this report Ex. PW6/A recorded by SI Sunil Sharma and from this statement of the prosecutrix SI got the case registered under Section 376/506 IPC by issuing rukka Ex. PW9/B on the statement of the prosecutrix. FIR Ex. SC no.05/11 Page 3/22 PW1/A was registered on 30.10.2010 and further investigation was handed over to W-ASI Santosh. Prosecutrix was got medically examined at GTB hospital where MLC Ex. PW11/A was prepared. Exhibits seized during her medical examination were got analysed from FSL and FSL report Ex. PW12/A and further biological division report Ex. PW12/B was received. W- ASI got the prosecutrix further examined for assessment of her age by bony examination and age of the prosecutrix was opined somewhere between 16-18 years. Accused was charge sheeted.
7. On committal of the case trial commenced with the framing of charge for offences under Section 376/506 IPC. Accused claimed trial by pleading not guilty.
8. In all 14 prosecution witnesses have been examined and most material witness are the prosecutrix, who is PW6 and mother of the prosecutrix, who has appeared as PW7. Questions for determination as framed in the initial paragraph of the judgment were on the basis of a defence put to the prosecutrix and prosecutrix deposed as incorrect the suggestion that accused used to have sexual intercourse with her with her consent. She further answered suggestion as wrong and incorrect if while her mother and brother were not there in the house she herself used to give a call on the mobile phone of the accused. Finally in the concluding part of the cross-examination of the prosecutrix defence suggested and answered by her as wrong and incorrect was that accused used to have relation with her with her consent. A SC no.05/11 Page 4/22 suggestion has also been given to PW7 in her cross-examination and witness refuted that defence suggestion if in the absence of this witness her daughter i.e prosecutrix used to call on the mobile phone of the accused.
9. Supporting the prosecution charge prosecutrix deposed all the facts which she had narrated in her report lodged with the police and she proved her report. As regards the first incident which occurred somewhere in May, 2010 witness deposed that while she was alone in the house accused gave a glass of water drink ( sharbat ) to her and after taking that drink she became unconscious. As she gained consciousness she found her shirt torn and her underwear removed and since there was blood on her private part she guessed that rape was committed on her. Accused was present in the room and he gave a threat to her if she disclosed the incident to anybody. She further deposed that because of that threat she did not narrate the incident to anybody and thereafter whenever her mother used to go to work and her brother and sister used to go to school, finding alone accused used to commit rape upon her. He used to remove her underwear and pant and used to insert his male organ into her vagina and raped her. She further stated last act of rape committed by accused was 15 days prior to 30.10.2010 and as she missed her period she narrated everything to her mother. Her mother then informed the police and she gave her report to the police and she proved that report Ex. PW6/A. She further deposed that she was produced before Magistrate and she got her statement recorded before the Magistrate which she proved as Ex. SC no.05/11 Page 5/22 PW5/B. She also proved arrest of accused by the police.
10. As seen above defence put to prosecutrix in cross-examination is that accused had sexual intercourse with her by her consent. Same is defence put to PW7. Rest of the prosecution witnesses were of supporting nature like PW11 is the doctor from GTB hospital, who had examined the prosecutrix and prepared her MLC on 30.10.2011. Doctor deposed that on examination of the victim prosecutrix hymen was found torn but there were no external injuries. Samples were taken and prepared as sexual assault evidence kit and were handed over to the police after being put seals of GTB hospital. Doctor proved the MLC as Ex. PW11/A. Doctor admitted in cross-examination that no swelling on vulva labia majora, labia manora were noticed and hymen torn was an old incident and it was not possible in medical science to assess the period since when hymen described as "torn old" was. Doctor further admitted that though victim was found overdue in her menstrual cycle but UPT gave a negative for her pregnancy. Doctor did not notice any sign of abortion or miscarriage. PW12 is a witness from FSL and FSL report has been proved. PW13 had taken sample exhibits of this case to FSL and deposited there in intact condition. PW14 is police officials with whom exhibits of this case were deposited by the Investigating Officer.
11. PW10 is the Investigating Officer W-ASI Santosh. She claims to have prepared site plan Ex. PW10/A at the instance of prosecutrix, arrested accused on the identity of the prosecutrix, got him medically examined where SC no.05/11 Page 6/22 his MLC Ex. PW1/A was recorded. She further deposed that on 02.011.2010 she produced prosecutrix to get her statement recorded before the Magistrate in terms of Section 164 CrPC. On 03.11.2010 she got the prosecutrix examined for her bony age and then she obtained that report as Ex. PW9/B and finally she filed the charge sheet.
12. Other formal witnesses are PW1, who had examined the accused and prepared his MLC noting that nothing suggested if accused was incapable of performing sexual activity. PW2 had recorded FIR of this case and proved its copy. PW3 and PW4 are police officials, who had accompanied Investigating Officer and finally PW5 is the ld. Metropolitan Magistrate, who recorded statement of prosecutrix and proved it as Ex. PW5/A. Witness deposed that whatever prosecutrix stated before her, it was her voluntary statement about which she had satisfied herself by putting a few questions to the prosecutrix.
13. Defence counsel Sh. Arun Sheoran argued that where prosecutrix was above 16 years of age and thus major and circumstances suggested that she was consenting in the activity of sexual intercourse indulged by the accused with her then charge of rape could not be held to have been duly proved. Counsel relied upon Hon'ble Supreme Court judgment in a case Dilip and another vs. State of MP, 2001 CRI. L. J 4721 argued that if no injury had been noticed on the person of prosecutrix and where prosecutrix had not put any resistance and had not even raised any hue and cry then her conduct would provide a reasonable inference of her participation in the act with her SC no.05/11 Page 7/22 consent. Counsel referring to above Supreme Court judgment pointed out from the judgment where prosecutrix was around 16 years or may be a little more, she was not just a child, who would have surrendered to a forced sexual assault without offering any resistance. Without going into truthfulness of explanation offered by her that because of being overawed by two accused persons she was not able to resist, "probabilities factors"
operated against her. Gang rape as alleged was stated to have been committed in her house at 2 pm, house situated in populated village where people were moving around on account of Holy festival. Part of the story that prosecutrix sustained injuries and bleeded from her private parts was not corroborated by medical evidence. Court found it difficult to accept truthfulness of the version of the prosecutrix that sexual assault as alleged was committed on her.
14. Ld. counsel argued that in the present case if accused had continued to indulge in sexual activity with prosecutrix for such a long period of about six months and prosecutrix never put any resistance and her testimony was not corroborated by any other incriminating material like medical report then an inference of consent of the prosecutrix could reasonably be drawn. Ld. counsel read over the testimony of prosecutrix from her cross-examination where she deposed that she did not narrate the incident to her mother or to her brother and sister or even to the landlord or tenant or to anybody in the locality. She did not narrate incident to anybody for six months. As regards frequency of sexual activity indulged by accused with her she deposed that it SC no.05/11 Page 8/22 used to be 2-3 times a week. Within a span of six months those activities could be in 22 number she deposed in cross-examination. On the basis of this evidence of the prosecutrix ld. counsel argued that prosecutrix could reasonably be said to have participated in the alleged act of sexual intercourse by her consent. Counsel relied upon Bomabay High Court judgment reported as 2001 CRI. L. J 6648 wherein prosecutrix a maid servant as per her deposition had been subjected to sexual intercourse on a number of occasions and she disclosed the incident only when she became pregnant and there was no evidence of any injury on her private parts and she was shown to have never raised any hue and cry, she could be said to be a consenting party. Counsel also relied upon Kerala High Court judgment reported as 2003, CRI. L. J 2482 in that case prosecutrix was above 16 years of age and accused had sexual intercourse with her on three occasions. Prosecutrix did not divulge incident till she found herself pregnant. She had never offered any resistance and the place of incident was her own house. She never raised any alarm. Her conduct suggested that she was a consenting party. Finally ld. counsel relied upon a Delhi High Court judgment reported as 2003 CRI. L. J 242 in this case according to prosecution prosecutrix had been subjected to sexual intercourse a number of times by accused and prosecutrix complained to her mother a few day after accused had left. Her testimony that she was forcibly raped under a threat of putting her parents to death was not believable. Relying upon these judgments ld. counsel pointed the following SC no.05/11 Page 9/22 circumstances wherefrom the defence that prosecutrix was a consenting party was reasonably inferable.
(1) Place of incident is one room tenanted accommodation as has been admitted by PW7 in her cross-examination. The room is situated in property where landlord resided and one more tenant was also in occupation of a room and house is situated in a well habited locality. (2) Act of sexual intercourse attributed to accused had continued for six months and there had never been any resistance or even at any point of time prosecutrix had raised any hue and cry.
(3) Prosecutrix never informed her mother till she found her menstrual cycle missing.
(4) No injury of any kind was noticed on any part of body of the prosecutrix during her medical examination. (5) Inordinate delay in lodging FIR with police.
15. Ld. counsel submitted that conduct of prosecutrix and circumstances referred to above could reasonably suggest that prosecutrix participated in these activities.
16. On the point that prosecutrix was above 16 years of age ld. counsel submitted that though prosecutrix was studying in school but no effort has been made by the Investigating Officer to collect the date of birth of the prosecutrix from the school record. Ld. counsel pointed that bony age got assessed by the Investigating Officer opined age of the prosecutrix between SC no.05/11 Page 10/22 16 to 18 years and accused was entitled to benefit of margin of error upto two years on this assessment of age and thereby she could be said to be above 16 years of age. Ld. counsel argued for acquittal of accused of the charge.
17. Ld. Addl. PP argued that contradictory defence pleaded by accused should be taken into account. Whereas in the cross-examination of the prosecutrix defence suggested is the prosecutrix was consenting party but when accused examined to explain this incriminating evidence against him his defence is of total denial. It is further pointed by ld. Addl. PP that accused has not disputed or refuted the prosecution case that victim PW6 aged 15 years was residing with her mother Shivani in the house and i.e question no.1 in 313 CrPC examination of the accused and accused had admitted this fact as correct. It is submitted that relationship between prosecutrix and accused being of a step daughter and step father, mere submission by prosecutrix to the lust of the accused be not construed as consent of the prosecutrix. For illicit act of accused of indulging in sexual intercourse with her and rather act of the accused could be seen and construed as a passive submission of prosecutirx to the demand and command of accused. It is argued that testimony of the prosecutrix is truthful and creditworthy and suffers no infirmity of any kind and law is settle that sole testimony of the prosecutrix could be accepted to hold accused guilty of offence of rape. Reliance has been placed upon Supreme Court judgment reported as AIR 2006 SC 381. It has been held in this case that evidence of prosecutrix is more reliable than SC no.05/11 Page 11/22 that of an injured witness. Testimony of victim of sexual assault is vital unless there were compelling reasons which necessitated to look for corroboration. Court should not find it difficult in acting on testimony of victim of sexual assault where her testimony inspired confidence and was found reliable. Reliance has been placed by ld. Addl. PP on another Supreme Court judgment reported as Vishnu Vs. State of Maharasthra, AIR 2006, SC 508. This judgment deals with issue of determination of the age of the prosecutrix. It has been held that expert opinion on the basis of ossification test was only of an advisory character and not binding on witness of fact. In that case mother and father of the prosecutrix specifically deposed that prosecutrix as below 16 years of age that evidence was supported by birth register of Municipal Corporation as well register of the hospital where prosecutrix was born. That evidence when found pitted against so called expert opinion of the doctor regarding age of the prosecutrix based on the ossification test, former evidence was held to prevail over the expert opinion. It was held that ossification test could not form basis for determination of age of the prosecutrix on the face of witness of facts tendered by parents and supported by unimpeachable document. Finally ld. Addl. PP has relied upon Delhi High Court judgment Panna Lal vs. State, Criminal Appeal 57/97 decided on 04.05.1994 where it has been held that defence plea that prosecutrix was consenting party was of no avail when she was minor. I have given due consideration to both sides arguments and contentions. SC no.05/11 Page 12/22
18. First I take up point of age of the prosecutrix. According to prosecution case she was below 16 years of age and thus accused indulging in sexual relationship with her was guilty of rape in terms of clause 5thly of Section
375. Certainly onus is upon the prosecution to prove that prosecutrix was below 16 years of age. Prosecutrix when examined as PW6 deposed her age 15 years. Prosecutrix when taken for her medical examination she described her aged as 15 years as has been recorded in the MLC Ex. PW11/A. PW7 mother of the prosecutrix did not depose as to the age of the prosecutrix but then in her cross-examination the question has been put to the witness as to in which specific year her three children were born. It has not been disputed or in controversy that three children including the prosecutrix born to PW7 were born from her previous husband Chander Bhan Singh. In this cross examination PW7 categorically stated that her son was born to her in the year 1993, prosecutrix Miss P was born in the year 1995 and the youngest daughter was born to her in the year 1999. Cross-examination on the prosecutrix on the point of her age is and to quote that:
" I am not having any proof of date of birth, it may be available with my mother. My brother is now aged about 19 years. My younger sister is aged about 13 years. I am younger to my brother and elder to sister. It is incorrect to suggest that my age is 18 years. It is correct that I am not daughter of accused but I am daughter of Chander Bhan and it is correct SC no.05/11 Page 13/22 that I was born out of the wedlock of my mother and Chander Bhan."
19. This is the only material on record wherefrom this court has to decide on the point of the age of the prosecutrix. Defence counsel argued that prosecutrix had been got medically examined for assessment of her bony age and that certificate Ex. PW9/B opined her age 16-18 years. Counsel argued that prosecutrix had studied in school as has been deposed by her that she had been got admitted in a Govt. school for 7th class and date of birth of the prosecutrix recorded in school record could have been collected but it has been withheld. I have given my due consideration to these arguments. It is a matter of fact that Investigating Officer W-ASI Santosh did not care to collect the school admission record on the point of date of birth of the prosecutrix. Ld. Addl. PP further referred to site plan Ex. PW10/A prepared by this very Investigating Officer and submitted that casual manner in which Investigating Officer has conducted the case should not be given any undue benefit to accused when evidence of the prosecutrix and that of her mother was convincing and has remained unchallenged on this point of age of the prosecutrix. Ld. Addl. PP argued that prosecution cannot be condemned for the lapses on the part of the Investigating Officer.
20. To my considered view ld. Addl. PP rightly pressed the point that Investigating Officer was entirely very casual in investigation of this case. SC no.05/11 Page 14/22 For example site plan Ex. PW10/A prepared by ASI Santosh shows point A the place where incident occurred. Admittedly, place of incident was a room in residential house situated on the first floor whereas site plan nowhere depicts any clarity as to what Investigating Officer wanted to impress through this site plan by putting a small square shown as point A. I find impressed by arguments of ld. Addl. PP that where testimony of prosecutrix and that of her mother is convincing and acceptable on the point of age of prosecutrix then age as deposed by the prosecutrix can be accepted. As seen above only a suggestion has been put to prosecutrix in cross-examination that she was 18 years of age and she denied this suggestions. Mother of the prosecutrix in cross-examination is very categorical as to in which particular year her three children were born and there is no dispute or controversy by the defence on that statement. Question put to accused in his statement recorded u/Sec. 313 CrPC is very specific that prosecutrix aged 15 years was residing with her mother and other family members and accused had admitted the fact. Prosecution should not be condemned for a failure of the Investigating Officer in collecting date of birth of the prosecutrix from the school record. As regards age assessment by bony age of the prosecutrix it is a settled law that such an assessment is only an opinion on broad probabilities and it carries a margin of error. In a case AIR 2006 SC 508 the age of the prosecutrix stated by her parents but then corroborated by unimpeachable document like birth register of the Municipal Corporation was found SC no.05/11 Page 15/22 acceptable and it has been further held that expert opinion on the basis of ossification test was an evidence on advisory character and not binding on the witness of the fact. In the present case though Investigating Officer has not collected evidence of the date of birth of the prosecutrix recorded in the school admission register but then as seen above prosecutrix has specifically deposed that she was 15 years of age and her mother is very categorical that prosecutrix was born in the year 1995. The evidence can be accepted without giving any benefit of doubt by bony age examination of the prosecutrix to accused. When prosecutrix was below 16 years of age and thus minor the question of she being a consenting party in the activities of sexual intercourse committed by accused becomes irrelevant. But still if we can examine that point of prosecutrix being a consenting party and to my view accused again fails to draw any benefit in his favour.
21. A distinction is to be considered and taken into account between a consent and submission. Though defence counsel relied upon certain prominent factors as referred to in earlier part of the judgment like sexual activities between prosecutrix and accused continuing from May, 2010 till mid of October, 2010 and its frequency as stated by the prosecutrix in cross examination was 2-3 times in a week and the fact that prosecutrix remained silent during this entire period even without mentioning it to her mother and the place of incident was a residential house where prosecutrix was residing with her mother and brother and sister, when examined all these aspects in SC no.05/11 Page 16/22 the background of fact situation that prosecutrix had remained in an orphanage since her age of 5 years and had returned home only in the month of April, 2010 then the psychology of the prosecutrix is to be taken into consideration while interpreting her conduct. It is not in controversy that prosecutrix had come back home from orphanage in April, 2010 and rather this suggestion is given in her cross-examination though she denied it that she had been expelled from orphanage because of her objectionable behaviour. A young girl if having stayed for 10 years in an orphanage comes back her home and if she had been expelled from orphanage which prosecutrix admitted but on the reasoning that she was not good at studies and not because of any objectionable activity of the prosecutrix, she must be in tremendous pressure and accused herein was none else but her dad whom she had tried to impress as her father by calling him Papa but that was found objectionable by the accused. Prosecutrix had already lost her biological father, who was stated to have left the kids and mother somewhere around 12-15 years ago. Though prosecutrix has not so specifically deposed all these facts, which might have weighed with her, wherein accused kept on maintaining physical relation with her, she simply deposed that accused used to rape her whenever he found an opportunity i.e whenever she was alone in the house.
22. Consent on the part of a women, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence SC no.05/11 Page 17/22 based on the knowledge of the significance and moral quality of the act, but after having fully exercised the choice between the resistance and assent ( 2000) 7 SCC 224. There is subtle difference between consent and submission. Consent of the girl in order to relieve an act of criminal character like rape must be an act of reason, accompanied with deliberation, after the mind had weighed as in a balance between the good and evil. It is always a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former AIR 1992 SC 1275.
23. Consent or compulsions is to be judged on a careful consideration and scrutiny of the evidence of the victim and from other corroborative evidence if available and the attendant circumstances preceding or accompanying or following the act of sexual intercourse ( 1982 CRI. L. J 2162). It is held that though it is not easy to find a dividing line between submission and consent yet the evidence has to be carefully scanned (2004) 4 Crimes 371 ( SC).
24. In the present case accused seeks to rely upon factors like silence on the part of the prosecutrix despite opportunity to protest and resistance and despite an opportunity to bring it to the notice and knowledge of her mother and absence of any injury on her person and silence continued for over a period of six months. If we examine all these factors in the background of prosecutrix being in an orphanage for such a long period and having comeback to home only a few days before the process started, somewhere a compulsion on the part of the prosecutrix which translated into a submission SC no.05/11 Page 18/22 to the acts of the accused can also reasonably be inferred. It is nowhere case of accused that prosecutrix participated in these activities of accused by any positive act. A suggestions was given to the prosecutrix that she used to give call to accused whenever she was alone in the house and prosecutrix strongly refuted this suggestion. No such point was ever got elaborated or substantiated as to what was the mobile phone number of the accused or by what mobile phone or otherwise prosecutrix used to call the accused. There is no other act on the part of the prosecutrix which suggested that she voluntary participated in the acts committed by the accused with her whereby she could be said and considered to be a consenting party. Judgments referred to by defence counsel are distinguishable on this reasoning. Here is a case where preosecutrix appears to be below 16 years of age and accused is none else but the step father of the prosecutrix.
25. Accused had examined a few defence witnesses and had put a defence in the cross-examination of PW7 also that PW7 wanted accused to get a piece of land 100 sq. yards in her name and on that score accused has been got falsely implicated. Defence counsel had also argued that inordinate delay in lodging FIR also seriously diluted veracity of the prosecution case. All these contentions when examined in backdrop of the case that where defence prosecuted to the fact that prosecutrix was a consenting party has been found unacceptable then these contentions are of little relevance. Delay in lodging FIR is found well met with the reasoning as recorded in preceding paragraph SC no.05/11 Page 19/22 of this judgment that participation by prosecutrix in the activities of accused was not to be considered and described as consent but a submission.
26. Prosecution to my considered view succeeds in proving its charge of rape and accused is liable to be convicted under Section 376 IPC. There is no evidence to sustain the charge of criminal intimidation and accused is acquitted of that charge.
Announced in the open Court on (J. R. Aryan)
17.04.2012 District Judge & Addl. Sessions Judge,
I/C(NE Distt.), Karkardooma Courts,Delhi
SC no.05/11 Page 20/22
IN THE COURT OF SH. J. R. ARYAN, DISTRICT JUDGE-CUM-ADDL. SESSIONS JUDGE, INCHARGE(NORTH EAST DISTT.),KARKARDOOMA COURTS, DELHI SC no.05/11 Unique ID no. of the case:-02402R0022562011 State Vs. Dayal Kishan s/o Amar Singh r/o Village Fath Garhi, Tehsil Kher, Distt.
Aligarh, UP.
FIR No.338/10 PS: New Usmanpur U/sec. 376/506 IPC Date of institution of the case: 02.02.2011 Date of reserving the case for order: 17.04.2012 Date of passing of order: 19.04.2012 ORDER ON SENTENCE
1. Accused has been held guilty for offence punishable under Section 376 IPC. Both sides have been heard on the point of sentence. Ld. defence counsel submitted that accused had an old mother to support and look after and court could also consider to impose a sufficient fine amount so as to get the victim prosecutrix compensated and by showing some leniency a sentence for period already under gone by accused could be awarded and accordingly ld. counsel prayed for. Ld. Addl. PP on the other hand argued that a minimum sentence is prescribed and submission made by ld. defence counsel did not fall in the category of adequate and special reasons so as to warrant sentence less than the minimum prescribed. I have appreciated these arguments.
2. Undoubtedly a minimum sentence of seven years imprisonment has SC no.05/11 Page 21/22 been prescribed for offence of rape but then court has been given a discretion to award sentence less than the minimum prescribed if there were adequate and special reasons. In the present case I could not find submissions made by ld. defence counsel provided special and adequate reasons for considering sentence less then minimum prescribed. Prosecutrix is the step daughter of accused. In the given facts and circumstances, I award a sentence of seven years rigorous imprisonment with fine of Rs.1,000/- upon accused in this conviction. In default of payment of fine accused shall further under go six months rigorous imprisonment.
Announced in the open Court on (J. R. Aryan)
19.04.2012 District Judge & Addl. Sessions Judge,
I/C(NE Distt.), Karkardooma Courts,Delhi
SC no.05/11 Page 22/22