Delhi District Court
State vs . Sanjay & Ors. on 21 April, 2009
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(NORTH-WEST)-04, ROHINI: DELHI
(Sessions Case No. : 68/06 )
State Vs. Sanjay & Ors.
FIR No. : 259/04
U/s : 376/ 366A /328 /372 /373/ 323/
344 / 109 / 511 IPC & 23 of
Juvenile Justice Act.
P.S : Mangol Puri
State Vs. 1. Sanjay@ Rakesh @ Kale
S/o Sh. Bhure Lal
R/o B-87 Aman Vihar, Sultan Puri
Delhi
2. Laxmi Narain
S/o Sh. Ram Niwas
R/o N-918, Mangol Puri
Delhi
Also at
Village Rampur, P.S Laxman Pur,
Distt. Pratap Garh (UP).
3. Durga
W/o Sh. Gyan Chand
R/o N-918, Mangol Puri, Delhi
4. Geeta
W/o Sh. Rahul @ Rajender Singh
R/o 688, Pkt. GH-897, Paschim
Vihar, New Delhi
Date of institution of the case-01.07.2004
Date on which, judgment have been reserved-06.04.2009
Date of pronouncement of judgment-20.04.2009
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JUDGEMENT
The present case has been registered on the basis of the complaint (Ex. PW-1/A) of the prosecutrix, wherein it has been stated by the prosecutrix that she was living with her mother and used to do household chores and she used to visit her father on every Sunday and fare for the same was used to be paid by her sister Meena, who used to remain unwell and did not used to accompany her. She further stated that one Geeta was the friend of her mother and she used to call her 'Mausi'. She also stated that one night, her mother was going in a drunkard condition and was hit by a motorcycle and thereafter her mother did not used to accompany her. She further stated that as and when Meena did not accompany her mother and Mausi to work, she used to remain at home alongwith her and on such occasions, her step-father used to compel Meena to do Galat Kaam with him. In her complaint to the SHO, the prosecutrix further stated that on 2nd April, she was taken to Hyderabad by her mother, Mausi Geeta and Sanjay uncle on the pretext of outing. The said uncle Sanjay was the friend of her step-father Laxmi Narain. At Hyderabad, she was taken to the house of Madam Manisha, where her mother told her that she has taken Rs.20,000/- from Sanjay and she can come back to Delhi as and when the said amount is recovered by Sanjay. On hearing this, she tried to run 3 away but her mother warned her that in case she comes to Delhi, she will get the said amount recovered from her at Delhi. Thereafter, her mother and Mausi left her at Hyderabad. During the said period, she remained with Sanjay and Manisha, who used to compel her to do Galat Kaam with Sanjay and when she used to refuse, she was given beatings by Sanjay and Manisha. Prosecutrix further stated that after about one week, her 'Mausi' came back to Hyderabad. After the return of her Mausi, her hands and feet were tied with grill by her Mausi and she gave her some capsules as a result of which she became unconscious. Prior to this, her Mausi had compelled her to do Galat Kaam with Sanjay and when she refused, her Mausi removed her clothes forcibly and Sanjay started beating her with belt and during that period, Manisha remained standing there. Prosecutrix further deposed that after consuming the aforesaid capsules, she became unconscious and she regained her consciousness next day at about 12:00 Noon and felt pain in her waist and thighs. She asked her Mausi about the said pain and was told that Sanjay had done Galat Kaam with her. On hearing this, she started weeping and complained to her Mausi why she allowed Sanjay to do Galat Kaam with her to which her Mausi replied that she has been sent to Hyderabad by her mother only for this purpose. During night, her Mausi went to make a telephonic call to her mother at Delhi and Sanjay and 4 Manisha were present at the house at that time and Sanjay asked her Mausi to take her also and while Mausi was making call at STD booth, she managed to escape from there in an auto-rickshaw and she asked the auto-rickshaw driver to take her to railway station but he took her to the police station. In the police station, she was sent to a hostel and she remained in the said hostel for about one week from where one Didi Kavita and one spectacled uncle brought her to Delhi where she went to CWC office where her sister, Jija Tej Pal, Bua Sugna and her father Gian Chand were called and she narrated the entire facts to them.
On the basis of the aforesaid complaint of the prosecutrix, the present case bearing FIR No.259/2004 was registered at P.S Mangol Puri and the investigation was initially entrusted to IO-SI Mahesh Kumar Meena and lateron, the matter was investigated by SI Ram Singh Yadav.
2. On completion of the investigation, the charge sheet was filed. After committal, the arguments on the point of charge were heard and on the basis of the material on record, charges for committing the offences punishable u/s 366A/373/376/323/344 IPC were framed against the accused Sanjay, charges for committing the offences punishable u/s 376/511 IPC and 372 IPC were framed 5 against the accused Laxami Narain, charges for committing the offences punishable u/s 366A/372 IPC and u/s 23 of Juvenile Justice Act were framed against the accused Durga and charges for committing the offence punishable u/s 366A, u/s 109/376IPC , 328 IPC and 344 IPC were framed against the accused Geeta. All the aforesaid charges were framed against the accused persons by the Ld. Predecessor of this court, to which accused persons pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined 18 witnesses i.e. PW-1 to PW-18. After recording of the prosecution evidence, the statements of accused persons u/s 313 Cr. PC were recorded, wherein the accused persons denied all the incriminating evidence against them. Accused Laxmi Narain, Durga and Geeta stated that they do not want to lead evidence in their defence, however accused Sanjay stated that he want to lead evidence in his defence.
4. In his defence evidence, the accused Sanjay has examined DW-1 Sh. Arvind Kumar Sethi, Reservation Supervisor.
5. I have heard the arguments put forward by Ld. APP for the State and 6 Ld. defence counsels and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case and by the accused in his defence. I have also carefully perused the written arguments filed on behalf of the accused Sanjay.
6. In the present case, it is the case of the prosecution that on 2.4.2004, accused Sanjay @ Rakesh @ Kale alongwith his other co-accused Geeta and Durga induced the prosecutrix, a minor to accompany him from her house at Delhi to Hyderabad with intent that she will be forced or seduced to have illicit intercourse with him. It is further stated that after taking the prosecutrix to Hyderabad, accused Sanjay bought her for Rs.20,000/- from her parents for unlawful or immoral purposes and thereafter he committed rape upon the prosecutrix with the help of co-accused Geeta, who abetted the commission of the said offence. It is further stated that before committing the rape upon the prosecutrix, accused Sanjay wrongfully confined the prosecutrix and also caused hurt to her.
It is stated that the accused Durga, mother of the prosecutrix, induced the prosecutrix to accompany her and accused Sanjay and Geeta to Hyderabad with intent that she will be forced or seduced to have illicit intercourse with accused 7 Sanjay and after taking the prosecutrix to Hyderabad, accused Durga sold her for Rs.20,000/- to accused Sanjay with intent that she will be used for the purposes of prostitution or illicit intercourse or for any other unlawful or immoral purpose and thus accused Durga, being the mother of the prosecutrix, took her to Hyderabad and abandoned her there willfully in a manner likely to cause mental or physical sufferings to the prosecutrix.
It is further stated that accused Geeta alongwith co-accused Sanjay and Geeta induced the prosecutrix, a minor to accompany them to Hyderabad with intent that she will be forced or seduced to have illicit intercourse with accused Sanjay and after taking the prosecutrix to Hyderabad, she abetted co-accused Sanjay to commit rape upon the prosecutrix and in consequence of the said abetment, rape was committed upon the prosecutrix by accused Sanjay. It is alleged that before committing of rape upon the prosecutrix by the accused Sanjay, accused Geeta administered some stupefying substance in capsule to the prosecutrix with intent to facilitate the commission of rape upon her.
It is also the case of the prosecution that the accused Laxmi Narain, step-father of the prosecutrix, attempted to commit rape upon the sister of prosecutrix against her will and without her consent. It is further stated that accused 8 Laxmi Narain being the step-father of the prosecutrix received and used a sum of Rs.20,000/- for which the prosecutrix was sold to accused Sanjay.
In order to prove its case on record, the prosecution has examined 18 witnesses i.e PW-1 to PW-18.
PW-1 is the prosecutrix and the prosecution is relying upon her testimony to prove its case on record.
PW-2 Sughna is the aunt (Bua) of the prosecutrix and she deposed that accused Durga was married to her brother Gian Chand and they have three daughters and one son. She further deposed that in June, 2004 the sister of the prosecutrix Pooja had come alongwith her husband and had told her that all the accused persons i.e Laxmi Narain, Sanjay, Durga and Geeta had taken the prosecutrix to Hyderabad. She also deposed that her Bhabhi Durga was not staying with her brother Gian Chand and was staying with accused Laxmi Narain for two and half years prior to the date of incident. PW-2 further deposed that on 2nd day, she came to know that the prosecutrix had been brought from Hyderabad by two policemen and lady police and the statement of prosecutrix was recorded in her 9 presence wherein she stated that all the four accused persons had forcibly taken her to Hyderabad, where after the return of her mother accused Sanjay and another girl of Hyderabad had tied her hands and feet and had made her drink liquor forcibly and thereafter, both the accused- Laxmi Narain and Sanjay had committed rape upon her and they had also called some other men and those men had also at the instance of accused persons had committed rape upon her. She told her that one day when Geeta was going to make a phone call to Durga, she on the pretext of urinating, ran away to railway station. Thereafter, one, scooterwala took her to police station and the Hyderabad police brought her to Delhi. PW-2 further deposed that she had herself seen the back of the prosecutrix and there were blue marks of being hit with belts and she had also noticed marks on her both wrists and feet which indicated that they had tied her also with some object.
PW-3 Gian Chand is the father of the prosecutrix and he deposed that he is the husband of accused Durga and he had four children from Durga, three daughters and one son and his wife Durga have been living separately from her after 18 years of his marriage i.e. 6-7 years prior to the incident. He further deposed 10 that she had started living with accused Laxmi Narain at Khyala and on 3-4.6.2004, she asked him as to whether the prosecutrix had come to him and also she informed him that the prosecutrix was missing. Thereafter, Pooja his elder daughter came to him after 4-5 days and he was told that the prosecutrix had been brought to Delhi from Hyderabad by the police. PW-3 deposed that he had gone to the house of Pooja where the prosecutrix had told that she had been taken to Hyderabad by all the four accused persons on the pretext of attending someone's birthday and there she was given some pills for intoxication and wrong act used to be committed upon her when she used to be unconscious. He further deposed that she told him that accused Sanjay had committed wrong act with her and that accused Sanjay had committed rape upon her. She also told him that she had told Geeta that she wanted to make a phone call to her mother Durga and escaped from there on that pretext. She had gone to make a phone call from Hyderabad and from there she had gone to police station Hyderabad. Thereafter, the prosecutrix was kept in a Nari Niketan at Hyderabad and later on, she was sent to Nari Niketan, Delhi. Thereafter, she had been brought to the house of Pooja where she had been called by Pooja. PW-3 deposed that the prosecutrix was his daughter and she was 14 years old at the time 11 of incident. He further deposed that his daughter was born at home in the year 1991, but he does not know her exact date of birth.
PW-4 Dr. Intezar Khan, Member of Child Welfare Committee, deposed that on 1.5.2004, the prosecutrix was produced before the Child Welfare Committee by an NGO Salam Balak Trust with the history of sexual abuse and she made her statement Ex. PW-1/A, which was recorded in his presence by Care Taker Sumitra.
PW-5 Dr. Bharti Sharma, Chairperson, Child Welfare Committee, deposed that on 1.5.2004, the victim/prosecutrix had been brought to Delhi by the Child Helpline Hyderabad through NGO Child Line Salam Balak Trust, Delhi and she interviewed the girl in the presence of Dr. Intezar Khan, Member of the above mentioned Committee and the statement ( Ex. PW-1/A) of the victim was written down by Care Taker Sumitra. PW-5 further deposed that she recommended for the registration of a criminal case on the basis of the statement Ex. PW-1/A and she has proved the said recommendation letter as Ex. PW-5/A. 12 PW-6 Sh. Ramesh Babu, Co-ordinator, Child Helpline, Hyderabad deposed that on 18.4.2004, prosecutrix was referred by the police of Nampale who found her at the railway station and on inquiry, he found that the girl was keen to go back to her house at Delhi and he kept her in Mahila Daksh Samiti, a short stay home for women in distress at Sikanderabad till 6.4.2004 and thereafter they contacted the Delhi Child Helpline and she alongwith two members of Child Helpline were sent to Salam Balak Trust, Delhi and the said Trust referred the girl to Child Welfare Committee. He has proved the letter issued by him to the Coordinator of Chile Helpline, Delhi as Ex. PW-6/A PW-7 Pooja is the sister of the prosecutrix and she deposed that her mother Durga Devi was living with accused Laxmi Narain and her younger sister i.e the prosecutrix who was living with accused Durga was missing from the house in the year 2004. On 3rd June, 2004, her sister i.e prosecutrix was brought by two persons and one lady and they disclosed that her sister i.e prosecutrix was traced from Hyderabad. On inquiries from the prosecutrix, she told her that she was taken by accused Sanjay, Laxmi Narain and Geeta to Hyderabad, where she was given 13 beatings by the accused persons for the last 15 days. She further told her that accused Sanjay had committed rape upon her and he also sent other persons to commit rape upon her. She also told her that accused Geeta also beat her. She had requested Geeta to rescue her, however Geeta used to tell that if the prosecutrix will not allow wrong acts to be committed upon her, her hands and legs would be tied. She had also shown to her and to one of her Bua the injury marks on her back, shoulder and mouth. PW-7 also deposed that her sister i.e the prosecutrix was got medically examined at Delhi.
PW-8 Dr. V.K. Soni, CMO, DDU hospital, Delhi has medically examined accused Sanjay on 2.6.2004 and opined that there was nothing to suggest that accused Sanjay was not able to perform sex act and he has proved the MLC in this regard as Ex. PW-8/A. PW-9 Ct. Rohtash and PW-10 W/HC Murti Devi have deposed that on 2.5.2004, they joined the investigation in this case with SI Mahesh Kumar Meena and went to M-block, Mangol Puri where accused Laxmi Narain, Geeta and Durga were arrested vide memo Ex. PW-9/A1 to Ex. PW-9/A3 and their personal search 14 were also conducted vide memo Ex. PW-9/B1 to Ex. PW-9/B3 and all the accused persons have also made their disclosure statements vide Ex. PW-9/C1 to Ex. PW-9/C3. Thereafter, the said accused persons were got medically examined at Sanjay Gandhi Memorial hospital and they correctly identified all the accused persons present in the Court.
PW-11 Ct. Baljeet Singh joined the investigation of this case on 17.4.2005 alongwith SI Ram Singh Yadav and on that day, accused Sanjay was produced before the Ld. M.M on production warrants and he was interrogated by the IO Ram Singh Yadav after obtaining permission from the Ld. MM and the said accused was arrested in this case and made disclosure statement Ex. PW-11/A. PW-12 Dr. Manoj Dhingra has proved the MLC bearing No. 51448 of the prosecutrix prepared by Dr. Sandhaya as Ex. PW-12/A. PW-13 Sh. Sanjay Kumar Tiwari deposed that in the year 2004, he was working as a Coordinator, Child Line Salam Balak Trust situated at Pahar Ganj 15 and they received a call from Child Line, Hyderabad for restoring of the prosecutrix, a minor girl aged about 14 years, who was handed over to them by two of their officials and he alongwith his team members took the prosecutrix to her family members. He further deposed that the prosecutrix told him that she was taken to Hyderabad by her mother, where she lived with a person namely accused Sanjay and she was also sexually abused by accused Sanjay. Upon this, they referred the prosecutrix to Child Welfare Committee, Nirmal Chhaya vide letter Ex. PW-13/A. PW-14 ASI Hari Singh deposed that he was posted as DO at PS Mangol Puri on 1.5.2004 and on that day on the basis of the complaint received at PS, he recorded the FIR of the present case and he has proved the carbon copy of the FIR as Ex. PW-14/A. PW-15 Insp. Mahesh Chand conducted the initial investigation after registration of the present case and on 3.5.2004, he alongwith W/Ct. Murti Devi and Ct. Rohtash went to M-block, Mangol Puri, where accused Laxmi Narain, Geeta and Durga were arrested vide memo Ex. PW-9/A1 to Ex. PW-9/A3 and their 16 personal search were conducted vide memo Ex. PW-9/B1 to Ex. PW-9/B3 and all the accused persons have also made their disclosure statements vide Ex. PW-9/C1 to Ex. PW-9/C3. He further deposed that all the three accused persons were taken to Sanjay Gandhi Memorial hospital for medical examination and after medical examination, he collected the MLCs of all the accused persons. He also recorded the statements of Ct. Rohtash and W/Ct. Murti Devi u/s 161 Cr. P.C and thereafter the investigation of this case was transferred to SI Ram Singh and he handed over the case file to MHC ( R ): PS- Mangol Puri.
PW-16 S. Anil Kumar, Circle Inspector Police, Central Crime Station, Hyderabad has deposed that on 18.4.2004, he was posted as Inspector of Police at PS Nampali, Hyderabad and on that day, one minor girl i.e the prosecutrix aged about 14 years was brought to PS by one Auto-rickshaw driver Mohd. Hameed in his Auto No. AP-12-U-2114 and he told him that he found the girl moving at Nampali Railway Station. He further stated that in view of the Elections, 2004, the entire police force was busy and was unable to look out for her parents and relatives, therefore, he sent a request to the Coordinator, Child Helpline, Basheerwad, PCR Hyderabad, an NGO for arrangement for the girl till the tracing 17 out of her parents. He has proved his request in this regard as Ex. PW-16/A. PW-17 Dr. Piyush Malhotra has proved the MLC No.1411 of the prosecutrix prepared by Dr. Shalu Gupta as Ex. PW-17/A. PW-18 SI Ram Singh is the main IO of this case, to whom the further investigation of this case was entrusted on 11.5.2004 and on the same day, he went to Nirmal Chhaya, Hari Nagar, Delhi where Ms. Bharti Sharma, Chairperson of Child Welfare Committee met him and he requested her to send the prosecutrix to Sanjay Gandhi Memorial Hospital from Nirmal Chhaya for her medical examination. After medical examination of the prosecutrix, he collected the MLC of the prosecutrix and she was sent back to Nirmal Chhaya. He also made inquiries from Ms. Bharti Sharma, Chairperson and one Meena, Sister of the prosecutrix and recorded her statement. PW-18 further deposed that on 12.5.2004, he alongwith his staff reached Tis Hazari courts and applied for the issuance of production warrant of the accused Sanjay in the court of ld. MM and on 17.5.2004, accused Sanjay was produced from JC before the ld. MM and after obtaining the permission from the Ld. MM, accused Sanjay was interrogated by him and was formally arrested 18 vide memo Ex. PW-18/A and the accused Sanjay made disclosure statement Ex. PW-11/A regarding his involvement in the present case. He further deposed that thereafter he alongwith staff went to the Hyderabad as per the facts disclosed by the accused and tried to search his co-accused Manisha, but she could not be traced. He also deposed that after obtaining the permission from the ld. MM, accused Sanjay was got medically examined at DDU hospital and after medical examination, he collected his MLC. PW-18 deposed that during the course of investigation, he recorded the statements of the witnesses u/s 161 Cr. PC . He further deposed that during the trial, process of witness Mohd. Hamid was given to him for execution but despite his best efforts, the said witness was not traceable as he was not residing at the given address and his present whereabouts were not known. He also deposed that after completion of the investigation, he prepared the chargesheet and filed the same in the court through SHO P.S Mangol Puri.
7. It has been submitted by the ld. APP that in view of the testimonies of various prosecution witnesses, in particular the testimony of PW-1 ( prosecutrix), the prosecution has been successful in proving on record the guilt of the accused persons, beyond the reasonable doubt. Whereas on the other hand, it has been 19 submitted by the ld. Defence counsel that the prosecution has failed to prove the guilt of the accused persons on record beyond the reasonable doubt.
8. In the present case, accused Sanjay, Durga and Geeta have been charged for committing the offence punishable u/s 366-A of the IPC.
Section- 366-A of the IPC deals with the procuration of minor girl and it provides that whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years and shall also be liable to pay fine.
In order to attract the applicability of section -366-A of the IPC, the following ingredients are required:
(i) The inducement of any minor girl under the age of 18 year to go from any place or to do any act,
(ii) Such inducement must be with intent that such girl may be, or likely to be forced or seduced to illicit intercourse with another person.20
Further, in the instant case the accused Sanjay has also been charged for committing the offence punishable u/s 373 of the IPC and the accused Laxmi Narain and Durga have been charged for committing the offence punishable u/s 372 of the IPC.
Section -372 of the IPC deals with the selling minor for the purpose of prostitution etc. and it provides that whoever sells, lets to hire, or otherwise disposes of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will be at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Further, section-373 of the IPC deals with buying minor for purposes of prostitution etc. and it provides that whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such 21 person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
9. In the instant case, it has been stated on behalf of the prosecution that the accused Sanjay alongwith his co-accused Geeta and Durga induced the prosecutrix, a minor girl under the 18 years of age, to go from her house at Delhi to Hyderabad with intent that she will be forced or seduced to have illicit intercourse with accused Sanjay.
Further, it has been stated on behalf of the prosecution that the accused Sanjay after taking the prosecutrix to Hyderabad bought her for Rs.20,000/- from her parents for unlawful or immoral purposes and thereafter he committed rape upon the prosecutrix. It is also stated that the accused Durga , mother of the prosecutrix and accused Laxmi Narain, father of the prosecutrix, sold the prosecutrix for Rs. 20,000/- to the accused Sanjay with intent that she will used 22 for the purpose of prostitution or illicit intercourse or for any other unlawful or immoral purposes.
10. In the present case, the prosecution is relying upon the testimony of PW-1 prosecutrix, to prove the guilt of the accused persons on record.
In her testimony, PW-1 (prosecutrix) deposed that accused Laxmi Narain is her step-father and accused Durga is her real mother and accused Sanjay used to visit their house when she was residing at Mangol Puri alongwith her mother Durga and her Mausi Geeta and he used to call her step-father as her Chacha and her step- father received Rs.20,000/- from accused Sanjay. PW-1 ( prosecutrix) deposed that she was taken to Hyderabad by accused Laxmi Narain and Sanjay where she stayed at the house of one Anisha for about 3-4 weeks. She further deposed that on asking of her step-Mausi Geeta, accused Sanjay had committed galat Kaam with her after removing her clothes. She also deposed that her hands were tied with the window by accused Geeta and she was given one tablet to inhale, due to which she became unconscious. Thereafter, she had started vomiting and her step-Mausi Geeta had gone to make telephone call and she found an opportunity to run away from that place and she reached at the railway station of Hyderabad. She was apprehended by 23 the police and taken to Telgu Girls hostel and thereafter she was brought to Delhi at Bhapa Nagar and she was kept in the house of one lady but she does not remember her name, from where, she was taken to Nirmal Chhaya by her father and Bua. PW-1 ( prosecutrix) deposed that when accused Sanjay committed Galat Kaam with her, she felt pain in both thighs.
PW-1 ( prosecutrix) further stated that before going to Hyderabad, she used to live in Delhi at Mangol Puri with her mother, brother Gulshan and her sister Meena and she used to visit her father at Nangloi every week with her brother Gulshan in an auto rickshaw and her father used to pay the fare of rickshaw. She further deposed that accused Geeta is a friend of her mother and one day, her mother met with an accident, while she was under the influence of liquor and thereafter she stopped going for the household work. PW-1 ( prosecutrix) further deposed that Geeta used to visit and instigate her to come alongwith her to go to the house of Sanjay at Sultan Puri and she used to refuse to accompany her. She further deposed that Sanjay was the friend of her step-father Laxmi Narain and he made her drink liquor at Hyderabad. She further deposed that she did not remember the date when she was taken to Hyderabad by the accused Sanjay, Geeta and her mother for getting a job. She also deposed that her mother returned home after 15 24 days of her stay at Hyderabad telling her that she should also return home after some days but she did not know why she did so. She had received injuries on her thighs and on her back when she was beaten up. She also deposed that her statement was recorded at CWC and the same is Ex. PW-1/A and she was taken to Sanjay Gandhi Memorial hospital for her medical examination.
11. In the instant case, accused Sanjay, Durga and Geeta have been charged for committing the offence punishable u/s 366A of the IPC and in view of the above testimony of PW-1 ( prosecutrix), the prosecution has been successful in proving on record the guilt of the accused persons for committing the offence u/s 366A of the IPC. In her testimony, PW-1 ( prosecutrix ) has specifically stated that she was taken to Hyderabad by accused Sanjay. She further deposed that she did not remember the date when she was taken to Hyderabad by the accused Sanjay, Geeta and her mother for getting a job. She also deposed that her mother returned home after 15 days of her stay at Hyderabad stating her that she should also return home after some days, but she did not know why she did so. In view of the above testimony of PW-1, it is clear that prosecutrix being a minor girl under 18 years of age was induced by the accused Sanjay, Geeta and Durga to accompany them from 25 her house to Hyderabad. It is also clear from the evidence of PW-1 ( prosecutrix ) that the such inducement was with intent that the prosecutrix will be or is likely to be forced or seduced to have illicit intercourse with accused Sanjay.
In the present case, in his defence, the accused- Sanjay has examined DW-1 Sh. Arvind Kumar Sethi,Reservation Supervisor, who proved the document i.e PNR Verification Record as Ex. DW-1/A however the testimony of DW-1 or the document Ex. DW-1/A are not of much use to the accused Sanjay as in her cross examination, the prosecutrix ( PW-1) has herself stated that they had gone to Hyderabad in Three Tier Sleepers and in the train they were all ladies, which implies that accused Sanjay might have traveled in other compartment as in her testimony PW-1 ( Prosecutrix ) has specifically stated that the accused Sanjay had accompanied her when they had gone to Hyderabad and she denied that accused Sanjay had not gone to Hyderabad. In these circumstances, in my considered opinion, the testimony of DW-1 is not of any help to the accused- Sanjay in the present case. In addition to this, no material fact in his defence have been stated by the accused Sanjay in his statement recorded u/s 313 Cr. P.C. It has been submitted by the ld. Defence counsel for the accused Sanjay that prosecution has not been able to prove on record that prosecutrix is a 26 minor and as such the provisions of Section -366-A of the IPC are not attracted in the present case, however the said submissions made on behalf of the accused Sanjay are devoid of any merits and are contrary to the record as from the perusal of the material on record, it is evident that the prosecution has been able to prove that the prosecutrix was a minor under the 18 years of age. The prosecutrix while she deposed in the court as PW-1 has herself stated her age to be 15 years. Further, PW-3 Gian Chand, the father of the prosecutrix, has also specifically stated in his testimony that the prosecutrix was 14 years old at the time of the incident and he also deposed that his daughter was born at home in the year 1991. The offences in the present case have been committed in the month of April 2004, which implies that the prosecutrix was a minor during the period of commission of offences in this case. The fact that the prosecutrix was a minor is also reflected from the testimony of PW-4 Dr. Intezar Khan, Member of Child Welfare Committee, PW-6 Ramesh Babu Coordinator Child Helpline, Hyderabad, PW-13 Sanjay Kumar Tiwari ,Coordinator Child Line Salam Balak Trust, PW-16 S. Anil Kumar, Circle Inspector Police, Central Crime Station, Hyderabad and PW-17 Dr. Piyush Malhotra. Further, in the MLC's (Ex. PW-12/A and Ex. PW-17/A), the age of the prosecutrix have also been stated as 14 years. In addition to this, no suggestion to 27 the effect that she is not a minor have been put to the prosecutrix in her cross examination on behalf of the accused persons. Apart from this, even in the document (Ex. DW-1/A) placed on record in the defence evidence of accused Sanjay, the age of the prosecutrix has been shown as 11 years. In these circumstances, in my considered opinion, it has been proved on record that accused Sanjay, Geeta and Durga induced the prosecutrix, a minor girl under the 18 years of age, to go from her house at Delhi to Hyderabad with intent that she will be forced or seduced to have illicit intercourse with accused Sanjay and accordingly the prosecution has been successful in proving the guilt of the accused Sanjay, Geeta and Durga for committing the offence punishable u/s 366-A of the IPC beyond the reasonable doubt.
12. In the present case, it has been stated on behalf of the prosecution that the accused Durga, the mother of the prosecutrix and accused Laxmi Narain, step father of the prosecutrix sold the prosecutrix for a sum of Rs. 20,000/- to accused Sanjay with intent that she will be used for the purpose of prostitution or illicit intercourse or for any other unlawful or immoral purpose. It is also stated that the accused Sanjay bought the prosecutrix for Rs. 20,000/- from her parents for 28 unlawful and immoral purpose and thereafter he committed rape upon the prosecutrix. In view of the above testimony of PW-1, ( prosecutrix ), it is clear that the prosecution has been successful in proving its case regarding the commission of offence u/s 373 of the IPC by the accused Sanjay and committing of offence u/s 372 of the IPC by the accused Laxmi Narain on record.
In her testimony, PW-1 ( prosecutrix ) has specifically stated that her step father i.e accused Laxmi Narain received Rs. 20,000/- from the accused Sanjay. After the said payment, the prosecutrix was taken to the Hyderabad by the accused persons , where the rape upon her was allegedly committed by the accused Sanjay. In her cross examination by the ld. Defence counsel, PW-1 ( prosecutrix ) have also stated that Rs. 20,000/- was received in her presence and she had seen the notes of Rs. 20,000/- and they were currency notes of Rs. 100/- and were taken by counting and were not in bundles. In her cross examination, PW-1 ( prosecutrix ) also stated that the accused Laxmi Narain had taken Rs. 20,000/- from the accused Sanjay in Delhi .
In view of the above and having regard to the fact and circumstances of the present case, I am of the considered opinion that it has been proved on record that the accused Sanjay bought the prosecutrix for a sum of Rs.20,000/- from her 29 step father i.e accused Laxmi Narain for unlawful or immoral purposes and accused Laxmi Narain,step father of the prosecutrix, sold the prosecutrix for Rs. 20,000/- to the accused Sanjay with intent that she will used for the purpose of prostitution or illicit intercourse or for any other unlawful or immoral purposes and accordingly, the prosecution has been successful in bringing home the guilt of the accused Sanjay, for committing the offence punishable u/s 373 of the IPC and of the accused Laxmi Narain for committing the offence punishable u/s 372 of the IPC beyond the reasonable doubt.
As far as the accused Durga is concerned, in view of the material on record, in my considered opinion, the prosecution has not been able to prove the guilt of the said accused for committing the offence punishable u/s- 372 IPC beyond the reasonable doubt as no specific allegation regarding selling or the receipt of aforesaid amount of Rs. 20,000/- or any part thereof have been made against the accused Durga by the PW-1 ( prosecutrix ).
Accordingly, I acquit the accused Durga of the offence punishable u/s 372 IPC, giving her the benefit of doubt.
13. In the instant case, the accused Sanjay has been charged for committing 30 the offence punishable u/s 376 IPC and the accused Geeta have been charged for committing the offence punishable u/s 109 r/w section 376 IPC. Accused Geeta has also been charged for committing the offence punishable u/s 328 IPC.
It is the case of the prosecution that at Hyderabad accused Sanjay committed rape upon the prosecutrix with the help of co-accused Geeta, who abeted the commission of the said offence. It is stated that the accused Geeta also administered some stupefying substance in capsule to the prosecutrix with intent to facilitate the commission of rape upon her, however the perusal of the record reveals that the prosecution has failed to prove the commission of said offences on record beyond the reasonable doubt as in her testimony, PW-1 ( prosecutrix) has not made any specific allegation of rape against the accused Sanjay. She has only stated that accused committed Galat Kaam with her but she has not explained anywhere in her testimony as to what she means by Galat Kaam. At one place in her testimony, the prosecutrix stated that she felt pain in her thighs after Galat Kaam, whereas later on in her examination in chief, the prosecutrix stated that she received injuries on her thighs and on her back when she was beaten up.
Section -375 of the IPC defines 'rape' and the Explanation to the said section provides that penetration is sufficient to constitute the sexual 31 intercourse necessary to the offence of rape. In the instant case, the perusal of the MLC's ( Ex. PW-12/A & Ex. PW-17/A) shows that the prosecutrix has refused for her internal medical examination and as such the factum of penetration have not been brought on record. PW-12 Dr. Manoj Dhingra have deposed that as per the MLC record, patient refused for examination before Dr. Sanya, the then Sr. Gynae. Similarly, PW-17 Dr. Piyush Malhotra has deposed that as per the MLC Ex. PW-17/A, patient refused for her internal medical examination. Further, the case of the prosecution regarding commission of offences u/s 109 r/w section 376 IPC and 328 IPC by accused Geeta is also demolished from the cross examination of the prosecutrix. In her cross examination by the ld. Defence counsel, PW-1 (Prosecutrix) denied that accused Sanjay committed Galat Kaam with her on the instigation of accused Geeta. She further denied that her hands were tied with the window by the accused Geeta before committing Galat Kaam by the accused Sanjay. She also denied that accused Geeta had given one tablet to inhale. In these circumstances, in view of the testimony of PW-1 and in view of the material on record, I am of the considered opinion that the prosecution has not been able to prove the guilt of the accused Sanjay for committing the offence punishable u/s 376 IPC beyond the reasonable doubt. Further, in view of the evidence on record, the 32 prosecution has also failed to prove the guilt of the accused Geeta for committing the offence punishable u/s 109 r/w section 376 IPC and u/s 328 IPC, beyond the reasonable doubt.
Accordingly, I acquit the accused Sanjay of the offence punishable u/s 376 IPC, giving him the benefit of doubt. I also acquit the accused Geeta of the offences punishable u/s 109 r/w section 376 IPC and u/s 328 IPC, giving her the benefit of doubt.
14. In the present case, the accused Laxmi Narain has also been charged for committing the offence punishable u/s 376 r/w section 511 IPC. It is the case of the prosecution that accused Laxmi Narain, step father of the prosecutrix, attempted to commit rape upon the sister of the prosecutrix against her will and without her consent. In the instant case, the perusal of the record reveals that the said sister of the prosecutrix have neither been cited nor examined as a witness in the present case. The perusal of the record further reveals that no evidence whatsoever has been brought on record by the prosecution to prove that the accused Laxmi Narain attempted to commit rape upon the sister of the prosecutrix. In fact in her cross examination, the prosecutrix ( PW-1) denied that accused Laxmi Narain tried to 33 commit Galat Kaam with her sister. In these circumstances, in my considered opinion, the prosecution has failed to prove the guilt of the accused Laxmi Narain for committing the offence punishable u/s 376 r/w section 511 IPC on record.
Accordingly I acquit the accused Laxmi Narain of the offence punishable u/s 376 r/w section 511 IPC, giving him the benefit of doubt.
15. In the present case, the accused Sanjay has also been charged for committing the offence punishable u/s -323 IPC and u/s -344 IPC . Accused- Geeta has also been charged for committing the offence punishable u/s-344 IPC.
Section -323 of the IPC deals with punishment for voluntarily causing hurt and it provides that whoever, except in the cases provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section -344 of the IPC deals with the wrongful confinement for 10 or more days and it provides that whoever wrongfully confines any person for ten 34 days , or more, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
In her testimony the prosecutrix has specifically stated that she was wrongfully confined at Hyderabad by the accused Sanjay and one Manisha and when she tried to run away, she was giving beatings by them. PW-1 ( Prosecutrix) further stated that she stayed for 3-4 weeks in Hyderabad at the house of Manisha . PW-1 ( Prosecutrix) also stated that she received injuries on her thighs and on her back when she was beaten up. In these circumstances, in view of the testimony of PW-1 and having regard to the fact and circumstances of the present case, I am of the considered opinion that it has been proved on record that the prosecutrix has been wrongfully confined at the house of Manisha at Hyderabad by accused Sanjay for more than 10 days and the accused Sanjay also caused hurt to the prosecutrix during her confinement at Hyderabad and accordingly, the prosecution has been successful in bringing home the guilt of the accused Sanjay for committing the offence punishable u/s -323 of the IPC and u/s- 344 of the IPC beyond the reasonable doubt.
As far as accused Geeta is concerned, in view of the evidence on record, in my considered opinion, the prosecution has failed to prove the guilt of the 35 accused-Geeta for committing the offence punishable u/s-344 IPC beyond the reasonable doubt. The perusal of testimony of prosecutrix (PW-1) shows that she has not stated that accused- Geeta also wrongfully confined her at Hyderabad for 10 days or more and she has only deposed about her wrongful confinement at Hyderabad by the accused Sanjay.
Accordingly, I acquit the accused-Geeta of the offence punishable u/s- 344 IPC, giving her the benefit of doubt.
16. In the instant case, the accused Durga have been charged for committing the offence punishable u/s 23 of Juvenile Justice ( Care and Protection of Children) Act ( hereinafter referred to as 'Juvenile Justice Act' ).
Section -23 of Juvenile Justice Act deals with punishment for cruelty to juvenile or child and it provides that whoever, having the actual charge of, or control over, a juvenile or the child, assaults, abandons, exposes or willfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both.
36
In the present case, in view of the evidence on record, it is clear that the accused Durga, being the mother of the prosecutrix, took the prosecutrix to Hyderabad, where she willfully abandoned her, as a result of which physical and mental sufferings were caused to the prosecutrix. In her testimony PW-1 (prosecutrix) has stated that she was taken to Hyderabad by accused Sanjay, Geeta and her mother for getting a job and her mother returned home after 15 days of her stay at Hyderabad telling her that she should also return home after some days but she did not know why she did so. In these circumstances, in view of the material on record, it has been proved on record that accused Durga, being the mother of the prosecutrix, abandoned her willfully at Hyderabad, which resulted in mental and physical sufferings to the prosecutrix and accordingly, the prosecution has been successful in proving on record the guilt of the accused Durga for committing the offence punishable u/s - 23 of Juvenile Justice Act, beyond the reasonable doubt.
17. Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I hold the accused- Sanjay guilty of the offences punishable u/s- 366-A IPC, 373 IPC, 323 IPC and 344 IPC 37 and convict him accordingly.
Accused Laxmi Narain is held guilty and convicted of the offence punishable u/s 372 of the IPC.
I further hold the accused-Durga guilty of the offences punishable u/s- 366-A of the IPC and u/s-23 of the Juvenile Justice Act.
Accused- Geeta is also held guilty and convicted of the offence punishable u/s - 366-A of the IPC.
Now to come up for arguments on the point of sentence on 21.04.2009.
(Announced in the open ) (Paramjit Singh)
(court on 20.04.2009) Addl. Sessions Judge
(North-West)-04
Rohini/Delhi
20.04.2009
38
FIR No.-259/04
P.S.-Mangol Puri
20.04.09
Present: Sh. V.K. Negi, APP for the State.
Accused Sanjay in JC woth counsel Sh. Y.S.Choudhary.
Remaining three accused are also present in JC.
Vide separate judgment, announced in the open court, accused Sanjay has been convicted u/s- 366-A IPC, 373 IPC, 323 IPC and 344 IPC .
Accused Laxmi Narain has been convicted u/s 372 IPC.
Accused-Durga has been convicted u/s- 366-A IPC and u/s-23 of the Juvenile Justice Act.
Accused- Geeta has been convicted u/s - 366-A IPC.
In view of the above, put up for arguments on the point of sentence on 21.04.2009, as requested.
(Announced in the open ) (Paramjit Singh)
(court on 20.04.2009) Addl. Sessions Judge
(North-West)-04
Rohini/Delhi
20.4.2009
39
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE (NORTH-WEST)-04, ROHINI: DELHI (Sessions Case No. : 68/06 ) State Vs. Sanjay & Ors.
FIR No. : 259/04
U/s : 366A /372 /373/ 323/ 344 IPC & 23 of Juvenile Justice Act. P.S : Mangol Puri ORDER ON THE POINT OF SENTENCE
I have heard the arguments on the point of sentence put forward by ld. APP and ld. Defence counsels for all the convicts.
2. It has been submitted by the ld. APP that in view of the serious nature of offences, the convicts do not deserve any leniency and he prays that maximum sentence prescribed by the law may be imposed upon the convicts.
3. It has been submitted by the ld. Defence counsel for the convict Sanjay that he is not a previous convict and is having clean antecedents. He further submits that the convict- Sanjay belongs to a poor family and is the sole bread earner of his family, consisting of his wife and two minor children. Ld. defence counsel also submits that convict- Sanjay has remained in custody for the last 40 about 5 years during the investigation and trial of this case and he prays that a lenient view may be taken in this case and he may be sentenced to undergo the imprisonment already undergone by him in this case.
4. Ld. Defence counsel for the convict - Laxmi Narian also submits that the convict is not a previous convict and is having clean antecedents. He further submits that the convict- Laxmi Narain is the sole bread earner of his family, consisting of his widow mother and two brothers and there is none else to look after his family. Ld. defence counsel also submits that the convict- Laxmi Narain has remained in custody for the last about 5 years during the investigation and trial of this case and he prays that a lenient view may be taken in this case.
5. Ld. Defence counsel for the convict- Durga submits that convict is a lady, aged about 45 years and is having four children. She further submits that the said convict is not a previous convict and is having clean antecedents. Ld. Defence counsel further submits that convict Durga has remained in custody for the last about 5 years during the investigation and trial of this case and she prays that a lenient view may be taken in this case.
41
6. Ld. Defence counsel for the convict- Geeta submits that convict is a lady, aged about 36 years and is having two minor children. She further submits that the said convict is not a previous convict and is having clean antecedents. Ld. Defence counsel also submits that convict Geeta has already remained in custody for the last about 5 years during the investigation and trial of this case and she prays that a lenient view may be taken in this case and the convict may be sentenced to undergo the imprisonment already undergone by her in this case .
7. I have carefully considered the submissions made by ld. APP and ld. Defence counsels and have carefully gone through the record of the case.
8. In the present case, the Convict Sanjay have been convicted for committing the offences punishable u/s -366-A IPC, 373 IPC, 323 IPC and 344 IPC. Convict - Laxmi Narain have been convicted- u/s 372 of the IPC. Convict Geeta have been convicted- u/s-366-A of the IPC and Convict -Durga have been convicted for committing the offences punishable u/s - 366-A of the IPC and u/s-23 42 of the Juvenile Justice Act .
Keeping in view the fact and circumstances of the present case and having regard to the nature and gravity of offence, I am of the considered opinion that the convicts do not deserve to any leniency. Accordingly, I hereby sentence the convict -Sanjay to undergo RI for 6 years and to pay a fine of Rs. 5000/- in default SI for 3 months u/s - 366-A IPC. He is further sentenced to undergo RI for 7 years and to pay a fine of Rs. 10,000/- in default SI for 5 months u/s 373 IPC. He is also sentenced to undergo RI for 6 months u/s - 323 IPC. Convict Sanjay is further sentenced to undergo RI for 2 years and to pay a fine of Rs. 2000/- in default SI for one month u/s - 344 IPC. All the sentences shall run concurrently. Benefit u/s - 428 Cr.PC be also given to the convict Sanjay.
Convict Laxmi Narain is sentenced to undergo RI for 7 years and to pay a fine of Rs. 10,000/- in default SI for- 5 months u/s 372 IPC. Benefit u/s - 428 Cr.PC be also given to the convict Laxmi Narain.
Convict Durga is sentenced to undergo RI for 6 years and to pay a fine of Rs. 5000/- in default SI for 3 months u/s - 366-A IPC. She is further sentenced to undergo RI for 3 months u/s 23 of the Juvenile Justice Act . Both the sentences shall run concurrently. Benefit u/s - 428 Cr.PC be also given to the 43 convict Durga.
Convict Geeta is sentenced to undergo RI for 6 years and to pay a fine of Rs. 5000/- in default SI for 3 months u/s - 366-A IPC. Benefit u/s - 428 Cr.PC be also given to the convict Geeta .
Conviction warrants be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to the convicts, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 21.04.2009) Addl. Session Judge
(North-West)-04
Rohini/Delhi
21.04.2009
44
45
FIR No.-259/04
P.S.- Mangol P uri
21.04.2009
Present: Sh. V.K. Negi, APP for the State.
Convict Sanjay in JC with counsel Sh. Y.S.Choudhary.
Convict Laxmi Narain in JC with counsel Sh. R.K.Burman
Convict Durga in JC with counsel Ms. Sadhna Bhatia ( Amicus
Curie)
Convict Geeta in JC with counsel Ms. Anu Narula.
Arguments on the point of sentence heard.
Vide separate order on the point of sentence, announced in the open court, convict -Sanjay has been sentenced to undergo RI for 6 years and to pay a fine of Rs. 5000/- in default SI for 3 months u/s - 366-A IPC. He has been further sentenced to undergo RI for 7 years and to pay a fine of Rs. 10,000/- in default SI for 5 months u/s 373 IPC. He has also been sentenced to undergo RI for 6 months u/s - 323 IPC. Convict Sanjay has been further sentenced to undergo RI for 2 years and to pay a fine of Rs. 2000/- in default SI for one month u/s 344 IPC. All the sentences shall run concurrently. Benefit u/s - 428 Cr.PC be also given to the convict Sanjay.
Convict Laxmi Narain has been sentenced to undergo RI for 7 years and to pay a fine of Rs. 10,000/- in default SI for- 5 months u/s 372 IPC. Benefit u/s - 428 Cr.PC has also been given to the convict 46 Laxmi Narain.
-2-Convict Durga has been sentenced to undergo RI for 6 years and to pay a fine of Rs. 5000/- in default SI for 3 months u/s - 366-A IPC. She has been further sentenced to undergo RI for 3 months u/s 23 of the Juvenile Justice Act. Both the sentences shall run concurrently. Benefit u/s - 428 Cr.P.C be also given to the convict Durga.
Convict Geeta has been sentenced to undergo RI for 6 years and to pay a fine of Rs. 5000/- in default SI for 3 months u/s - 366-A IPC. Benefit u/s - 428 Cr.P.C has also been given to the convict Geeta.
Conviction warrants be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to the convicts, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 21.04.2009) Addl. Session Judge
(North-West)-04
Rohini/Delhi
21.04.2009