Delhi District Court
State vs . Sanjay Shokeen & Ors. on 28 August, 2012
State Vs. Sanjay Shokeen & Ors.
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS JUDGE-04,
DWARKA COURTS, DELHI
SC No.:07/12
State Vs. Sanjay Shokeen & Ors.
Date of filing the application : 13.09.2011
Date on which order reserved : 25.08.2012
Date on which order pronounced : 28.08.2012
ORDER
1. Vide this order, I shall dispose of an application filed by accused Sonu Shokeen U/s 2K of Juvenile Justice (Care and Protection of Children) Act, 2000, whereby it is prayed that present case be referred to the Juvenile Justice Board for trial.
2. It is submitted in the application that on the date of alleged rape in March 2006 , accused Sonu was just 15 years of age and hence was Juvenile. It is further submitted in the application that as per documents filed on record by the prosecution itself, the date of birth of accused Sonu has been verified by the IO as 08.12.1990. Therefore, in view of the admitted case of the prosecution, accused Sonu was a Juvenile on the date of alleged offence of rape in March 2006. Accordingly, it was prayed that matter be referred to Juvenile Justice Board for trial according to the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000.
3. Notice of the application was issued to the Ld. APP for state and reply was received from the IO Inspector Suman in this regard. In the reply filed by the IO, it is submitted that alleged offence of rape committed by accused Sonu was a continuing offence from 2006 till March 2011 and this fact is corroborated by the note made by doctor in the MLC report of prosecutrix SC no. 07/12 1/10 State Vs. Sanjay Shokeen & Ors.
as well as in the supplementary statement of prosecutrix recorded U/s 161 Cr.P.C. Accordingly, it was submitted that accused was major when he committed rape upon the prosecutrix till March 2011. Accordingly prayer was made for dismissal of the application.
4. I have heard ld. APP for state and counsel for accused Sonu and carefully perused the chargesheet, supplementary chargesheet, documents filed alongwith it and the statement of prosecutrix recorded U/s 164 Cr.P.C as well as U/s 161 Cr.P.C.
5. For the purpose of deciding the juvenility or otherwise of accused Sonu,it has to be seen from the record as to whether Sonu had committed alleged act of rape only in 2006 or whether he had continued to commit the alleged offence of rape upon the prosecutrix between period from 2006 till 2011.
6. The first document which will decide the issue of juvenility is the complaint dated 30.05.2011 made by prosecutrix. In para-5 of the complaint, specific allegations have been made by the prosecutrix regarding the alleged rape committed by accused Sonu. Prosecutrix had given a specific time of March 2006, when accused Sonu had sexual intercourse with her. Further in para-5, prosecutrix has submitted that after March 2006 accused Sonu used to frequently have sexual intercourse with her but that time has not been specified. The entire complaint dated 30.05.2011 is silent regarding the period between which prosecutrix was subjected to sexual intercourse by accused Sonu. Only one specific time has been mentioned in the complaint and that is of March 2006. Therefore on the basis of complaint dated 30.05.2011, the alleged offence of rape had taken place in March 2006.
7. The second document which will aid in deciding the issue of juvenility is statement recorded of the prosecutrix U/s 164 Cr.P.C on 10.06.2011. The SC no. 07/12 2/10 State Vs. Sanjay Shokeen & Ors.
said statement has been recorded on oath and prosecutrix has only alleged her being raped by the accused Sonu on one particular day, the details of which have not been provided. There is no mention in the statement U/s 164 Cr.P.C that prosecutrix was subjected to sexual intercourse by accused Sonu between 2006 till 2011. The day referred to by the prosecutrix in her statement U/s 164 Cr.P.C, when the alleged rape was committed upon her, if read in conjunction with her complaint dated 30.05.2011 will lead to prima facie inference that she was deposing regarding the incident of March 2006.
8. Although, in the MLC of prosecutrix there is a note given by the doctor that prosecutrix had informed that she had physical relations with accused Sonu in March 2011 but whether physical relations established between prosecutrix and accused Sonu were consensual or against her will has not been specified. From the note mentioned in the MLC by the doctor, it can no where be inferred that prosecutrix had informed the doctor regarding the commission of rape in March 2011 by accused Sonu. If the prosecutrix had informed about the alleged rape upon her by accused Sonu in March 2011 then said fact would have been corroborated by the prosecutrix in her statement U/s 164 Cr.P.C, which was recorded on oath and that too on 10.06.2011 that is after her examination by the doctor vide MLC on 08.06.2011. The very fact that statement U/s 164 Cr.P.C is silent with regard to any allegations of rape in March 2011 leads to prima facie inference that no such offence had taken place in March 2011.
9. Further in the supplementary statement U/s 161 Cr.P.C, the prosecutrix has submitted that accused Sonu had committed rape upon her from 2006 till 21.03.2011 on the pretext of marriage, but in the opinion of this court no importance can be given to the statement U/s 161 Cr.P.C. of prosecutrix, SC no. 07/12 3/10 State Vs. Sanjay Shokeen & Ors.
for the purpose of deciding juvenility, as firstly it has been recorded on 14.12.2011 that is after six months of recording of her statement U/s 164 Cr.P.C. Secondly, statement U/s 161 Cr.P.C is recorded by the police and is not required to be signed by prosecutrix. Therefore it is quite possible that in order to deny the benefit of Juvenile Justice Act, 2000 to the accused Sonu, the said statement was recorded by the IO. It is not prima facie believable that prosecutrix will provide a specific period to the Investigating Officer U/s 161 Cr.P.C and that too after six months of recording her statement U/s 164 Cr.P.C whereas in her statement U/s 164 Cr.P.C, recorded before the Ld. Magistrate she will not provide any specific period regarding the commission of alleged offence. Therefore in prima facie opinion of this court, statement U/s 161 Cr.P.C of prosecutrix has been recorded just to deny accused Sonu benefit of Juvenile Justice Act, 2000.
10. Therefore, from the documents filed in the chargesheet that is complaint dated 30.05.2011 and the statement of prosecutrix recorded U/s 164 Cr.P.C, the alleged offence of rape was committed by the accused Sonu in March 2006 and age of the accused with regard to offence of rape has to be reckoned on the said date for the purpose of deciding his juvenility.
11. Apart from the allegations of rape, prosecutrix has also alleged allegations of demand of dowry in para-9 of her complaint against accused Sonu, wherein she has submitted that on 07.12.2008 at her ring ceremony accused Sonu alongwith co-accused Sanjay Shokeen had demanded dowry of amount of Rs.10lacs. Although allegations of demand of dowry against accused Sonu are absent in statement U/s 164 Cr.P.C of prosecutrix but having regard to the allegations made in para-9 of her complaint, allegations of demand of dowry are established against Sonu. Therefore, issue of juvenility of the accused Sonu has to be decided on SC no. 07/12 4/10 State Vs. Sanjay Shokeen & Ors.
the basis of allegations of rape of March 2006 and allegations of demand of dowry made on 07.12.2008.
12. With regard to the age of accused, prosecution has itself filed on record date of birth documents of accused Sonu, which has been duly verified by the Investigating Officer from his school. As per same, date of birth of accused Sonu is 08.12.1990. Even in the reply by the IO, date of birth is not disputed to be 08.12.1990. Therefore, in the light of admitted fact of the prosecution regarding the date of birth of accused Sonu as 08.12.1990, accused Sonu was 15 years of age on the date of alleged rape in March 2006 and on the date of demand of dowry on 07.12.2008, he was also less then 18 years of age. Therefore, on the date of both alleged offences of rape and demand of dowry, accused Sonu was less then 18 years of age and hence accused Sonu is a Juvenile in conflict with law as per Section 2 (k) & (l) of Juvenile Justice (Care and Protection of Children) Act, 2000. Hence application filed by accused Sonu is allowed and as per Section 7 A(2) of Juvenile Justice (Care and Protection of Children) Act, 2000, accused is required to be tried by the Juvenile Justice Board. Directions be issued to Supdt. Tihar Jail to produce the Juvenile Sonu before the Juvenile Justice Board on or before 29.08.2012 at 2.00p.m. Further, IO is also directed to file separate chargesheet against accused Sonu before the Juvenile Justice Board and IO is further directed to appear before Juvenile Justice Board on or before 29.08.2012. Application is accordingly disposed of.
13. Copy of order be sent to Supdt. Tihar jail immediately for compliance of order.
Announced in the open court (Vikas Dhull)
Dated: 28.08.2012 ASJ-04/Dwarka Courts
New Delhi
SC no. 07/12 5/10
State Vs. Sanjay Shokeen & Ors.
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS JUDGE-04, DWARKA COURTS, DELHI SC No.:07/12 State Vs. Sanjay Shokeen & Ors.
Date of filing the applications : 23.05.2012/26.05.2012
Date on which order reserved : 25.08.2012
Date on which order pronounced : 28.08.2012
BAIL ORDER
1. Vide this common order, I shall dispose of bail applications of accused Poonam and Smt. Chander Devi filed U/s 439 Cr.P.C.
2. The brief facts which are relevant for deciding the present application are that prosecutrix had made a complaint to the SHO P.S Chhawla on 30.05.2011 alleging therein commission of rape upon her by accused Sonu, which was facilitated by accused Chander Devi, Poonam & Sanjay by providing exclusive room to accused Sonu and prosecutrix.
3. It is also alleged that accused Sanjay, Chander Devi and Poonam had also encouraged accused Sonu to develop friendship with the prosecutrix by falsely promising to marry her. Other allegations made against Chander Devi and Poonam are with regard to demand of dowry of Rs.10lacs on 07.12.2008 at the celebration of ring ceremony of Sonu with prosecutrix . Further allegations of demand of dowry of Rs.20lacs has been made against accused Chander Devi and Poonam prior to the solemnization of marriage of prosecutrix with accused Sonu.
4. On the basis of complaint dated 30.05.2011, FIR 114 was registered at P.S Chhawla on 08.06.2011. During the course of investigation, statement of prosecutrix U/s 164 Cr.P.C was recorded wherein specific allegations SC no. 07/12 6/10 State Vs. Sanjay Shokeen & Ors.
have been made against accused Poonam of providing intoxicated milk to prosecutrix for the purpose of facilitation of rape. In her statement prosecutrix has further alleged that accused Poonam and Chander Devi alongwith accused Sanjay had encouraged accused Sonu to develop physical relations with her. The allegations with regard to demand of dowry by accused Chander Devi and Poonam have again been reiterated in the statement U/s 164 Cr.P.C. On the basis of investigation conducted by the police,chargesheet U/s376(2)g/420/ 384/328/506/509/109/120B/34 IPC was filed against the accused persons.
5. Accused Poonam and Chander Devi have sought bail firstly on the ground that they are in judicial custody since 17.03.2012 and there is no evidence with regard to offence U/s 376(2)g, U/s 384 U/s 420, U/s 506, U/s 509,U/s 109, U/s120B/34IPC against the accused persons. Secondly the bail has also been sought on the ground that investigation of this case has been completed and charge sheet has also been filed. Lastly the bail has been sought on the ground that there has been great delay in getting the present case registered and there is no medical examination of the complainant with regard to the alleged offence or with regard to the accused Poonam administering intoxicating milk to the prosecutrix. Accordingly prayer was made for grant of bail by the accused Chander Devi and Poonam.
6. Ld. APP has opposed the bail application of accused Poonam and Chander Devi and has sought dismissal of the application on the following grounds:-
(a) Firstly, that their bail applications were rejected earlier by the Hon'ble High Court of Delhi on 23.11.2011 and bail application of Poonam was also rejected by the court of Sh S.C Rajan, Ld. ASJ, Dwarka, New Delhi on 11.04.2012.SC no. 07/12 7/10
State Vs. Sanjay Shokeen & Ors.
(b) Secondly on the ground that offence of gang rape is a grave and serious offence.
7. I have heard Ld. APP for state and Sh Vikas Padora, counsel for accused Chander Devi and Poonam and have carefully perused the material on record.
8. The first ground on which Ld. APP has sought dismissal of the bail application is not acceptable as Hon'ble High Court of Delhi had dismissed the anticipatory bail application of accused Chander Devi and Poonam on 23.11.2011 that is during the course of investigation. Thereafter both the accused persons have joined the investigation and there are no allegations against them that during the course of investigation they had threatened any witness or had tempered with the evidence. Further after dismissal of the anticipatory bail application by the Hon'ble High Court of Delhi there has been change in circumstances as accused have remained in custody for 5 1/2 months and chargesheet also stands filed against them. Similarly dismissal of the bail application of accused Poonam on 11.04.2012 by the court of Sh S.C Rajan Ld. ASJ, Dwarka, New Delhi is not going to effect the maintainability of the bail application as the said bail application was dismissed during the course of investigation and only after dismissal of the bail application, chargesheet has been filed against both the accused on 07.05.2012. Filing of chargesheet after dismissal of bail application amounts to change in circumstances and bail application filed by the accused persons can not be rejected on this ground.
9. The second ground raised by the ld. APP for state for dismissal of the application of accused Poonam and Chander Devi is with regard to the allegations of offence of gang rape against both the accused persons which are very serious in nature. With regard to allegations of gang rape SC no. 07/12 8/10 State Vs. Sanjay Shokeen & Ors.
made by the prosecutrix against both the accused persons, I would like to observe that Hon'ble Supreme Court of India in the matter of Priya Patel Vs. State of M.P. 2006 Cr.L.J 3627 has held that offence of gang rape can not be made out against the woman. It was further held by the Hon'ble Supreme Court of India that even with the help of Section 34of IPC, a woman can not be accused of gang rape.
10. The only allegation against accused Chander Devi and Poonam are that of facilitation of commission of rape by the accused Sonu, which have been leveled after around five years of the date of alleged offence, and that of demand of dowry. Both accused persons are ladies. They are in Judicial custody since 17.03.2012. Investigation of this case is complete and chargesheet already stands filed in this case. Nothing has been brought on record showing their previous involvement in similar offences or any other grave offences. There is also nothing on record to show that they have tried to inference any witness or they are likely to free from justice in case, they are release from custody.
11. Trial of this case is going to take considerable time as prosecution has cited 40 witnesses. The Hon'ble Supreme Court of India in the matter Sanjay Chandra Vs. CBI, Crl appeal 2178 of 2011 has held in para-26 that where trial is going to take considerable time and if there are no serious allegations against accused that he would interfere with the trial or temper with evidence and if the chargesheet has been filed, then there is no reasons for keeping the accused persons in custody.
12. In the light of above discussion and having regard to the fact and circumstances of this case and the allegations made against both the accused persons and having regard to the fact that both the accused persons are ladies and are in custody for the past 5 1/2 months, application filed by both the accused persons is hereby allowed and both SC no. 07/12 9/10 State Vs. Sanjay Shokeen & Ors.
the accused Chander Devi and Poonam are granted bail subject to the accused persons furnishing personal bond in the sum of Rs.25,000/- with one surety each in the like amount with the condition that they will not temper with the evidence or threaten prosecutrix during the course of trial. Accordingly the bail applications stand disposed of. However, it is made clear that nothing expressed herein shall tantamount to expression of opinion on the merits of the case.
Copy of order be sent to Supdt. Tihar Jail for information.
Announced in the open court (Vikas Dhull)
Dated: 28.08.2012 ASJ-04/Dwarka Courts
New Delhi
SC no. 07/12 10/10