Delhi District Court
State vs Keshi Ram on 5 October, 2011
IN THE COURT OF SH. R. B SINGH [THE THEN ASJ03 (OUTER), ROHINI COURTS, DELHI] PRESENTLY ADJ01(WEST), TIS HAZARI COURTS, DELHI SC No. : 119/09 FIR No. : 379/08 PS : Nangloi U/S : 363/366/376 (2G)/372/34 IPC State V/s Keshi Ram S/o Sh. Chobh Singh R/o Village Woodpur, District Baghpat, UP 2. Dharambir S/o Sh. Mahender Singh R/o E2/154, Shiv Ram Park, Delhi. 3. Shakuntala W/o Dharambir R/o E2/154, Shiv Ram Park, Delhi. 4. Bobby S/o Mahender Singh R/o E2/154, Shiv Ram Park, Delhi. 5. Babita W/o Bobby R/o E2/154, Shiv Ram Park, Delhi. SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 1 of 29 6. Mamuni C/o Sh. Kailash R/o C40, Amar Colony, Kamaruddin Nagar, Delhi Present Add: Village Kachara Para, Kali Nagar Road, Gandhi More, P. S Bichpur, District24 Pargana, West Bengal Date of Institution : 09.09.2008 Date of decision : 05.10.2011 J U D G M E N T
Briefly stated, the prosecution case is that on 9.06.08 during night time at H. No. EII/154, Shiv Ram Park, Nangloi, Delhi, within the jurisdiction of PS Nangloi, accused Keshi Ram committed rape on Kumari Payal Dass aged 15 years and thereby committed an offence punishable U/S 376 IPC and within the cognizance of this court.
Further, at the above said date at 5.00 pm, from H. No. E11/154, Shiv Ram Park, Nangloi, Delhi, within the jurisdiction of PS Nangloi the accused persons, namely, Keshi Ram, Dharambir, Shakuntla, Bobby and Mamuni in furtherance of their common intention kidnapped Kumari Payal Dass, aged about 15 years with intent that she may be compelled to marry with Keshi Ram and may SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 2 of 29 be seduced for sexual intercourse with Keshi Ram against her will and thereby they committed an offence punishable U/S 366 IPC read with Section 34 IPC and within the cognizance of this court.
The accused Babita W/o Sh. Bobby was also charged vide separate order dated 20.05.2009 to the effect that on 09.06.2008 at about 5.00 pm, from H. No. E11/154, Shiv Ram Park, Nangloi, Delhi within the jurisdiction of PS Nangloi the accused Babita along with other coaccused persons (already charged vide dated 17.01.2009) in furtherance of their common intention kidnapped Kumari Payal Dass, aged about 15 years with intent that she may be compelled to marry with Keshi Ram and may be seduced for sexual intercourse with Keshi Ram against her will and thereby committed an offence punishable U/S 366 IPC read with Section 34 IPC and within the cognizance of this court.
2. After hearing arguments on charge from Ld. Counsel for all the accused persons and Ld. Addl. P. P. for the State, charges U/S 376 of IPC was framed against the accused Keshi Ram and charge U/s 366/34 IPC was framed against the accused persons namely Keshi Ram, Dharambir, Shakuntala, Bobby, Mamuni and Babita to which they all pleaded not guilty and claimed trial.
3. In support of the case, the prosecution has examined 22 SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 3 of 29 witnesses.
4. All the accused persons were examined U/S 313 Cr. P C and all the material evidence were put to them and they refuted all the allegations leveled against them and submitted that they are innocent persons, have been falsely implicated in this case by the police. However, all the accused persons except the accused Mamuni chooses not to lead evidence in their defence.
5. Ld. Counsels for all the accused persons have submitted that all the accused persons have been falsely implicated in this case. The Prosecutrix was a consenting party and had married with the accused Keshi Ram on her own will. There are material discrepancies and contradictions which are fatal to the Prosecution case which also create doubt in the Prosecution case and the benefit of doubt is always right of the accused persons. The Complainant in connivance with the police has falsely implicated all the accused persons in the present case. It is, therefore, prayed that since the prosecution could not establish its case against all the accused persons for the alleged offences beyond shadow of doubt, all the accused persons may be acquitted of the alleged offences by giving benefit of doubt, in the interest of justice, as the benefit of doubt is the right of the accused.
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6. On the contrary, Ld. Addl. P. P. for the State has submitted that the Prosecution has successfully established the case against all the accused persons, as all the witnesses have completely supported the Prosecution case. It is a well established principle of Law that the every discrepancy in the statements of the witnesses can not be treated as fatal to the Prosecution case. The discrepancies which does not effect the Prosecution case materially does not create infirmity and there is no material discrepancies/contradictions in the Prosecution case. The evidence, circumstances and the facts on record, cumulatively taken together leads to the only conclusion that the accused persons are the perpetrator of crime in this case. Since the prosecutrix was a minor, she cannot be a consenting party. Hence, it is prayed, that all the accused persons may be convicted for the alleged offences.
7. I have heard Ld. Counsel for all the accused persons and Ld. Addl. P. P. for the State and perused the material on record carefully.
8. On the careful scrutiny of the testimony of the witnesses reveals that PW1Ms. Payal has deposed that she was a resident of Calcutta. One female brought her to Delhi from Calcutta to the house of her daughter. That female brought her to Delhi on the SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 5 of 29 promise that she will provide good job to her and good facilities of living at Delhi. Her parents were not aware of the same. She came to Delhi with that female. She does not know the place where she brought her but she brought her to the place where her daughter resided. At about 8 days, three persons came to the house of that lady. Again said, two females were also with those three persons. The witness correctly identified one female who is wearing Saree today having a child in her lap, is the female at whose house she was brought from Kolkata and she resided there. She is the daughter of the lady, who brought her from Kolkata to Delhi. On asking of the Court, she disclosed her name as Mamuni. The witness also correctly identified the other accused persons (three males and two females), who are present in the Court today. They are the same persons, who came at the house of Mamuni. She was sent to some other room in the said house and that those females and those three persons were discussing with each other. On the ninth day, in the last year, she was taken to the house of the accused who is wearing yellow suit today, the witness pointed out towards the accused Shakuntala at whose house she was taken by filling her maang with red sindoor with all bridal make up. The witness pointed out towards the accused who is in JC namely Keshi Ram who committed SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 6 of 29 rape upon her. On the next day also, he again committed rape upon her. In the day time, he did not commit wrong act with her as she was weeping. On the 3rd day, i.e. 11th day of the month 2008, she ran away from the house of the accused Keshi Ram. She hide herself in a gali where she met a person to whom she told that she wanted to go to Kolkata and that person called the police. Police took her to the PS. She did not disclose these facts to the police officials but the same were disclosed by her to one lady police official. She was taken to Hospital, where she was medically examined. She put her thumb impression at point X on the MLC mark A. her statement was recorded by the police and is Ex. PW1/A which bears her signature at point A in English and Bengali. Thereafter, her statement was recorded in the Court where she was brought before one Judge Sahab, her statement before the Judge Sahab is Ex. PW1/B, running into four pages, signed by her at point A. The female who met her at Kolkata brought her to the house of her daughter Mamuni, where she stayed for eight days. Mamuni sent her to the house of the three males and two females forcibly against her will. She was told by Mamuni that they will provide her good food and job. Accused Shakuntala fill up her Maang with Sindoor and no marriage was performed with accused Kesho Ram. She had asked Mamuni to send SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 7 of 29 her back to her house but she was sent with accused persons. When she was weeping at the house of accused Kesho, two females brought her there, and told her that they have purchased her and paid Rs. 18,000/ to Mamuni and she was not given any amount. She was given bridal make up at the house of Mamuni, to which she refused but she was made to wear the bridal make up against her will.
She has also deposed in her cross examination on behalf of the accused persons that police had recorded her statement but she does not remember the date. Again said on 11th day of the month, her statement was recorded by the police in the PS. Her statement was also recorded in some other PS by some Savita Madam, She can not tell the date. But it was after her medical examination. It is wrong to suggest that she had not given the name of the Shakuntala and Mamuni in her second statement as no second statement was recorded by the police. It is correct that she had stated in her statement U/S 164 Cr. P C that the sister of the Keshi Ram had filled her maang. Shakuntala had told her that she is sister of Keshi Ram. She came with the accused persons from the house of the accused Mamuni to the house of accused Keshi Ram on foot. Due to fear she could not tell the neighbours of Keshi Ram that she SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 8 of 29 had been brought at his house as she was not allowed to speak to anybody. The accused Shakuntala & Dharambir were not arrested in her presence by the police. She is an illiterate. It is wrong to suggest that Shakuntala and Dharambir had not gone to the house of accused Mamuni. It is wrong to suggest that Shakuntala had not filled up her maang with sindoor. It is correct that accused Shakuntala and Dharambir had never threatened her. It is wrong to suggest that she is deposing at the instance of her counsel. Vol. she is stating the true facts as it happened with her. It is wrong to suggest that she has been asked by her Advocate to identify the accused Shakluntala and Dharambir. It is wrong to suggest that she had never gone to the house of these two accused persons. It is wrong to suggest that she is deposing falsely. The female, with whom she came from Kolkata is not her relative. It is correct that she had not taken any permission from her parents for coming to Delhi and she had come of her own. It is correct that she had not come with accused Mamuni from Kolkata. It is correct that there is a dense locality near the house of Mamuni. There is only one kitchen and one room in the house of Mamuni. It is correct that her maang was filled up at the house of Mamuni. It means that she got married. Vol. This marriage does not mean anything to her. At the time of filling up her maang, she SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 9 of 29 could not protest as she was not allowed to go outside. She did not raise alarm as she was told not to talk to any person. She was not told that she is getting married, before filling up of her maang. She had only come for a job to Delhi. It is wrong to suggest that she was already married. She do not know the name of the person, who called the PCR Van. She does not know if any statement of that person was recorded by the police or not. It is wrong to suggest that she was got married with her own consent and will. She was shown to Keshi Ram before her marriage but she refused to marry him as she had only come for doing job and not for marriage purposes. She was brought to Delhi by the mother of Mamuni, but she cannot tell her name. It is wrong to suggest that she used to get married with different persons and afterward she ran away and falsely implicate the persons. It is wrong to suggest that she is deposing falsely. They are seven brothers and sisters. Four brothers and one sister are elder to her. She has only one younger sister. She cannot tell the age difference between her and her eldest brother. Her eldest brother is a tailor. She had never been to any school for studies. Her younger sister is school going, but she cannot tell the name of her school. Her elder sister is studied upto II class and she was going to School No. V. There is a school, hospital and Railway station nearby her SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 10 of 29 house in Kolkata. She do not know if her name is written in Ration Card or not. She stated in her statement to the police that they are seven brothers and sisters. She had mentioned the age of her elder sister as 1819 years. Her elder sister had got married with Deepu. Her eldest brother is not living with them, however, her two elder brothers are married. Her eldest brother had gone to school for studies but she do not know the name of the school. In their customs, girls got married at the age of 18 years. Her elder sister got married in the year 2008. She received this information telephonically this year from her father when she was in Delhi. She had never telephoned to her family member as it was not possible for her. She gave her approximate age as 15 years to IOSavita. She cannot tell her actual age and the date of birth. She had told her age as 15 years to the doctor. She cannot tell the difference of age between her and her elder sister. She cannot tell the difference of age between her and her younger sister. It is wrong to suggest that she is 19 years old and knowingly not disclosing her actual age or date of birth. It is wrong to suggest that at the time of incident, she was more than 18 years of age and got married after discussions from her parents and it was an arranged marriage. It is wrong to suggest that since her elder sister was got married and thereafter her parents SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 11 of 29 decided to marry her. On the day of marriage Mehndi was not put on her hands. The mother of Mamuni and her mother used to talk with each. Vol. but no permission of her mother was taken for her marriage. She know Mamuni only when she was taken to her house. She cannot tell the date & month when she was brought to the house of Mamuni. The house of Mamuni is situated in thickly populated area. Vol. She does not know if any Bengali is living near her house or not. It is wrong to suggest that she was not tied up by Mamuni. Vol. but she was only told not to got outside so that no one can see her. There were another family living upstairs to the house of Mamuni, who used to come to her house. But she was never allowed to talk to them. Her mother's name is Reva. She had worked with her mother at Kolkata in a Cement Godown for about one year. She had never met the mother of Mamuni at Cement Godown. She does not know the husband of Mamuni. She does not know how many tenants were living at the first floor at the house of Mamuni. She cannot say if four families were living there as a tenant. She did not raise any objection when her marriage was fixed. Vol. she was not allowed to speak to anybody. She never went to market with Mamuni. She cannot tell the date when she was brought to Delhi. She left the house of Mamuni after eight days on her foot. She cannot tell the SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 12 of 29 distance and the time taken by her for reaching the another house of Mamuni. She did not raise any alarm in between this period regarding about her forcible marriage. It is wrong to suggest that since the marriage had taken place on her free will, hence, she did not raise any alarm. It is wrong to suggest that the present FIR was lodged by her as some demands were not fulfilled by her husband Keshi Ram as a result of which, they are falsely implicated in this case. It is incorrect that at the time of incident, she was of 19 years of age. Her father told her that as on date, her age is 1415 years. But she had mentioned her age as 15 years. She do not know what age of her was got written in the ration card by her father. She does not know where her brothers and sisters were born - in the hospital or in the house. It is wrong to suggest that she was born in a hospital and she is 19 years of age. It is wrong to suggest that she got married with accused Keshi Ram with her own free will. She came to know the name of accused Shakuntala as she was called by this name in the house, where she was kept. She was not told the name of other accused persons present in the court by the police official Savita. It is wrong to suggest that she was not working in a Cement Godown and at that time, she was 18 years of age so she got employment there alongwith her mother. It is wrong to suggest that SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 13 of 29 she got married after settlement with her parents. It is wrong to suggest that no sexual assault was done by accused Keshi Ram upon her without her will. It is wrong to suggest that accused Bobby and Babita alongwith Keshi Ram have been falsely implicated in this case as her illegal demand was not fulfilled. It is wrong to suggest that her age was mentioned in Cement Godown by her parents as 18 years. It is wrong to suggest that she was born in hospital and her father is hiding her actual date of birth. It is wrong to suggest that she is deposing falsely to implicate the accused persons in a false case. It is wrong to suggest that the version given in her chief examination is on the basis of tutored by the police officials.
9. PW15 Rameshwar @ Kanwar Lal resident of C23, Amar Colony, Nangloi, Delhi has deposed that he has been residing alongwith his family at aforesaid address since 2000. He is registered owner of one more house bearing number C - 40, Amar Colony, Nangloi, Delhi. He knew Smt. Mamuni (accused in this case) being a tenant as she remained tenant in his house for a period of about 13 14 years. In the month of May or June, 2008. he had gone to take rent from her. On that day he had seen one young girl in her room. It was told by Smt. Mamuni that she had brought that girl for domestic work from Bengal when he had asked about the girl SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 14 of 29 from her (Smt. Mamuni). He used to collect rent from tenant, Smt. Mamuni & other tenant who were residing in the house. Police verification of tenant, Mamuni could not be completed as she did not gave her photograph to him for this purpose, however, he had filed up tenant verification form but same could not be delivered to Police. He does not know the other facts of this case. He is not aware about the marriage of Bengali girl was solemnized by accused Mamuni with Keshi Ram (accused).
The witness was cross examined by Ld. Addl. P. P. for the State as he has not supported the Prosecution case.
He has deposed in his cross examination by Ld. Addl. P. P. for the State that it is correct that he was interrogated by the Police in this case. It is incorrect to suggest that his statement was recorded by the Police on 27.07.2008. (Vol. He had been interrogated by the Police about the period of tenancy of accused, Smt. Mamuni at his house.) It is incorrect to suggest that it came to his notice on the day of his visit at the tenanted room of Smt. Mamuni in the month of June, 2008 that accused Smt. Mamuni had brought one girl namely, Payal Das aged about 15 years from the Bengal and then she was compelled by accused, Mamuni and others to marry with accused Keshi Ram and that accused Smt. Mamuni SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 15 of 29 forcibly got arranged the marriage of Kumari Payal with the help of other associates by accused Keshi Ram. Confronted portion A to A of statement Ex. PW15/A where it is so recorded. It is wrong to suggest that to that he is intentionally not supporting the prosecution case, in order to save his tenant, Smt. Mamuni. (Vol. At present Smt. Mamuni is not his tenant as she has vacated room in the year 2008) It is further wrong to suggest that he has been won over by accused Smt. Mamuni and deposing falsely as he has compounded the matter outside the Court.
10. PW17 Kesto Das has deposed that Payal Das is his daughter. Accused Mamuni present in the court (correctly identified by the witness) had brought her daughter Payal Das about two years back to provide Job to her at Delhi. Police official from PS Nangloi had come to his village mentioned above and told him that his daughter Payal Das is in Nari Niketan at Delhi. Thereafter, he came to Delhi and he had taken his daughter Payal Das on Custody.
He has also deposed in his cross examination that his eldest son is Tinku Das. He can not tell the date of birth of Tinku Das. He can not tell the date of birth of other three children. Tinku Das is in employment on daily wages basis. Payal Das is younger at no. 3 from Tinku Das. She might have younger than his eldest son SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 16 of 29 three years. His youngest daughter Babli is aged about eight years and she is studying in second standard. He got love marriage but he can not tell in which year. He do not remember whether he got married about 26 years back or not. He does not know the exact age of his eldest son Tinku. He does not remember whether Tinku is 22 years old. It is wrong to suggest that Payal Das was major at the time of incident when she left the house. It is wrong to suggest that she left the house with his permission or that she got married with out permission with Keshi Ram. It is wrong to suggest that he is deposing falsely.
11. PW8 Dr. Brijesh Singh has deposed that on 11.06.2008 at about 11.20 pm, victim Payal Dass D/O Kesto Daas, 15 years female brought by W/HC Sudesh with alleged history of sexual assault was medically examined by him. He recorded general condition of the victim and prepared MLC Ex. PW8/A which bears his signature at point A. He referred the patient to SR Gynae for further management.
On the same day, he also examined patient Keshi Ram S/O Choobh Singh, 28 years, Male brought by Ct. Shri Bhagwan. He recorded general condition of the patient and gave impression that there is nothing to suggest that the patient is not capable to perform SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 17 of 29 the act of sexual intercourse. MLC Of the accused is Ex. PW8/B which bears his signature at point A. Blood of patient as sample taken, sealed and handed over to the police along with sample seal. He had seen the MLC of Patient Smt. Shakuntala, Bobby and Dharamveer dated 11.06.2008 prepared by Kuwar Abhishek. He identify writing and signature of aforesaid doctor in official capacity as he had performed his duty under his supervision. MLC are Ex. PW6/C1, PW8/C2 and PW8/C3 respectively which bears the signature of Dr. Kuwar Abhishek at point A who has now left the services of the hospital and his whereabouts are not known at present. He has also seen MLC Of Baby Saloni D/O Bobby, 6 months female and MLC of Smt. Babita dated 20.04.2009 prepared by Dr. Krishan Gopal which bears his counter signature at point A. MLC are Ex. PW8/D1 &PW8/D2 respectively. Both bear signature of Dr. K. Gopal at point B. He identify writing and signature of aforesaid doctor in official capacity who has performed his duty under his supervision, who has now left the services of the hospital and his whereabouts are not known at present.
He has also deposed in his cross examination on behalf of the accused persons that it is correct that no name was told by Payal Daas to him as to who committed sexual assault upon her at SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 18 of 29 the time of medical examination. It is also correct that no external injury was found on her person. After her medical examination she was referred by him to Gynae. It is correct that the age of the patient is not in his hand writing. It is also correct that he does not know by whom the age was written on the MLC Ex. PW8/A. It is wrong to suggest that the patient was more than 18 years of age.
12. PW13 Dr. V. K. Jha has deposed that on 25.07.2008 he was posted in SGM Hospital as a chairman, bone age estimation board. On that day, the patient Payal Daas D/O Kesto Daas was examined by him along with the board members namely Dr. Vipul MishraRadiologist, Dr. Divyapreet SahniDentist, Dr. Manoj DhingraForensic Expert. After examination they opined the age of the individual examined between 16 to 17 years. His detailed report is Ex.PW13/A bearing his signature at point A and B. He has seen the MLC of Gautam S/o Kailash, 3 months male child prepared by Dr. Maninder Singh, JR on 28.07.2008. MLC is Ex. PW13/B which bears signature of Dr. Maninder Singh at point A. He identify his writing and signature in official capacity. The said doctor has left the services of the hospital and now his whereabout are not known to them.
He has also deposed in his cross examination that it is SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 19 of 29 correct that margin of one year has been suggested by him. It is correct that the exact age can not be opined by bone age estimation examination. He can not say whether two years variation has been prescribed in the bone age estimation examination. He can not say if variation of two years applying in this case then Prosecutrix may be more than 18 years of age.
13. PW2 Ct. Ranbir Singh got the accused Dharambir medically examined in the SGM hospital. PW3W/Ct. Manju joined the investigation of the case at the time of arrest of the accused Mamuni vide Ex. PW3/B1 and personal search memo Ex. PW3/B2 and she made disclosure statement vide Ex. PW3/A. PW5HC Amba Dass is the DD writer who has recorded the DD no. 29 on 22.07.2008 on receiving information from wireless operator. The copy of the same is Ex. PW4/A. PW6HC Narender Kumar is the MHC(M). PW7ASI Nepal Singh was assigned the DD No. 10 for investigation and he had made investigation in this connection and on arrival of the ASI Mahender Singh, Ct. Suadan Singh has handed over the matter to them. PW10Ct. Bhupender has recorded the DD no. 10 on receiving the information from the wireless operator, the copy of the DD is Ex. PW7/A. PW11HC Jai Bhagwan is the duty officer who had recorded the FIR of the present case on the basis of SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 20 of 29 the rukka brought by Ct. Saudan Singh. PW14HC Mahavir Singh had received one notice for execution and thereafter, he went to the native village of the Prosecutrix Payal Dass and recorded the statement of her father U/S 161 Cr. PC. He also informed him that the prosecutrix is the victim of the present case and is in Nari Niketan. PW18ASI Mahender Singh Dahiya is the IO of the present case who has conducted the necessary investigation in this case. PW19Sh. Amit Bansal, Ld. MM has recorded the statement of the Prosecutrix U/S 164 Cr. PC which is Ex. PW19/A. PW20HC Nirmala recorded the DD no. 29A which is Ex. PW20/A which bears her signatures at point A. PW9W/HC Sudesh, PW12Ct. Shri Bhagwan and PW16Ct. Saudan Singh joined the investigation of the case with the IO and have deposed about the detailed investigation conducted by the IO.
DW1 Smt. Deepa has deposed that prosecutrix Payal Dass was known to her being the same community (Begalis). She was working as a maid servant at Nangloi. She along with her known person approached her for her marriage and the marriage was fixed with accused Keshi Ram. The marriage took place on 09.06.2008 according to Hindu Rites and Ceremony. Nothing was given or taken in the marriage.
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She has also deposed in her crossexamination that she came to know about the arrest of accused Mamuni in the present case after about 2 or 3 days of her arrest. She has not made any written or oral complaint or the senior officer of police or any other authority regarding the arrest of accused. It is wrong to suggest that she has not made any complaint in this regard because accused Mamuni in fact was involved in the sale for forcible marriage of Payal Dass which was brought by her from West Bengal.
DW2 Smt. Malti has deposed that prosecutrix Payal Dass was working with her as a maid servant at Nangloi in kothies. Payal Dass got married with accused Keshi Ram on 09.06.2008 according to Hindu Rites and Ceremony. Nothing was given or taken in this marriage except the clothes.
She has also deposed in the crossexamination that she came to know about the arrest of accused Mamuni in the present case on the same day of her arrest. She has not made any written or oral complaint to the senior officer of police or any other authority regarding the arrest of accused. It is wrong to suggest that she has not made any complaint in this regard because accused Mamuni in fact was involved in the sale for forcible marriage of Payal Dass. It is correct that she has come to court today to give evidence on the SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 22 of 29 request of Mamuni and she was not the summoned witness. It is correct that she was having family terms with accused Mamuni. It is wrong to suggest that on her request Payal Dass was kidnapped by accused Mamuni from West Bengal to provide her a maid free of any wages. it is wrong to suggest that accused Mamuni in connivance with her had forcibly married Payal Dass with accused Keshi Ram.
14. After hearing arguments, on the critical analysis of the testimony of the witnesses and on the perusal of the material on the record, I am of the considered opinion that the Prosecution has failed to establish a case against the accused Keshi Ram for the offence punishable U/S 376 IPC. On the other hand the offence punishable U/S 366/34 has been successfully proved against all the six accused persons. So far as the offence punishable under section 376 of the IPC is concerned with, the offence as alleged is not duly proved against the accused Keshi Ram, though, the Prosecutrix has levelled the allegation of rape against the accused Keshi Ram but her testimony is not trustworthy and do not inspire the confidence of the court regarding the allegation of rape. There is no birth certificate of the prosecutrix on the record to prove her age as 15 years. Even the father of the prosecutrix namely Kesto Das who has been examined SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 23 of 29 as PW17 has failed to depose about the date of birth of the prosecutrix as has categorically deposed in his cross examination that he does not know the exact date of his children including the prosecutrix. As per the bone age report the age of the prosecutrix has been opined as 1617 years which has been duly proved by Dr. V.K Jha in the Court. The only record pertaining the age of the prosecutrix is the bone age report which has to be considered for determining the age of the prosecutrix. As per the statement of the prosecutrix she has made allegations of rape against the accused but in her cross examination she had categorically admitted that she had not disclosed the fact of forcible marriage or rape when she went to the market to purchase bangles and there is no evidence on the record to prove that the prosecutrix has raised alarm at the time of alleged forcible marriage or at the time of her forcibly taken to the house of the accused Keshi Ram for marriage or even at the time of alleged offence of rape. It is also admitted by the prosecutrix in her cross examination that she had not obtained the permission from her parents while she accompanied accused Mamuni from Kolkata to Delhi, meaning thereby, she was having mature understanding and mature enough to understand about her well being. She has also admitted in her cross examination that she was brought to the house SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 24 of 29 of accused Keshi Ram on foot from the house of accused Mamuni. It is evident that she was having ample opportunities to raise alarm or to disclose the fact of her kidnapping and forcible marriage, but she did not do so. There is nothing on the record to suggest that the prosecutrix had even tried to raise any alarm on the way to the house of the accused Keshi Ram or in the market as deposed by her. It is highly improbable that the prosecutrix had received several opportunities to protest against the accused persons but she even did not tried to do so and she did not raise any alarm in the way while she was taken to various places by the accused persons as admitted by the prosecutrix and even the availability of public persons has also been admitted. Admittedly, the place of occurrence i.e. H. No. E11/154, Shiv Ram Park, Nangloi, Delhi is a residential and densely populated area. Such kind of behaviour of the prosecutrix is highly improbable and unnatural that she did not raise any hue and cry against the accused persons if she was forcibly taken by the accused persons. The case law on this aspect is also crystal clear as the Hon'ble Supreme Court of India in AIR 1995, Supreme Court 2169 has ruled that: "Prosecutrix not putting up struggle or raising alarm while being taken away by SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 25 of 29 the accused - Prosecutrix appearing to be willing party to go with the accused on her own - Culpability of accused not established - conviction set aside.
15. The Hon'ble Supreme Court of India in (2011)2 Supreme Court cases 385, Crl. Appeal No. 1053 of 2009 has also held that: 1"Penal Code, 1860Ss. 376 & 375 and 366rapeConviction on sole testimony of Prosecutrix - sustainability - even though Prosecutrix had several opportunities to protest and raise an alarm, she did not do soConviction on sole testimony of the Prosecutrix, on fact, held, is not sustainable - Her behaviour of not complaining to anybody at any of the stages after being allegedly abducted is wholly unnatural - Therefore, the High Court recording conviction on basis of her sole testimony set aside."
16. The Hon'ble Himachal Pradesh High Court in 2010 SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 26 of 29 CRI.L.J. 3545 in State of HP V/s Narender Kumar @ Hira & Ors. has also held that:
"Prosecutrix having passed through various crowded and public places during day time can not be said to have forcibly kidnapped or subjected to rape - sole testimony of the Prosecutrix not reliableacquittal of the accused persons is proper."
17. Even the Hon'ble Supreme Court of India in 2010 CRL.L.J 2060 (supreme Court) in Abbas Ahmed Choudhary V/s State of Assam has also held that: "testimony of the Prosecutrixthough entitled to primary consideration -
Principle that prosecution has to prove its case beyond reasonable doubt applies There can be no presumption that a Prosecutrix would always tell entire story truthfully."
18. Applying the aforesaid case law in the given facts and circumstances of the present case, it is evident and crystal clear that SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 27 of 29 the Prosecutrix had gone with the accused on her own free and sweet will and she is a consenting party. From the deposition of the prosecutrix, it is crystal clear that she had got more than enough opportunities to protest or to raise alarm against the accused persons but she did not do so. In the light of the facts and circumstances, it can safely be concluded that she was a consenting party. She was also around 17 years of age at the time of alleged incident.
19. Under the aforesaid discussion, I have no hesitation to conclude that the Prosecutrix, who was approximately 1617 years of age as per the bone age report available on the record, and she was a consenting party, the accused Keshi Ram can not be hold guilty for the offence punishable U/S 376 of the IPC. But, at the same time the prosecution has successfully established its case against all the accused persons for the offence punishable under section 366/34 of IPC to the effect that all the six accused persons, namely, Keshi Ram, Dharambir, Shakuntla, Bobby, Mamuni and Babita in furtherance of their common intention kidnapped Kumari Payal Dass, a minor girl with intention that she may be compelled to marry with the accused Keshi Ram. Hence, the evidence on record are sufficient enough to convict all the six accused persons for the offence punishable U/s 366/34 IPC. Since, the Prosecution has SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 28 of 29 failed to establish a case U/S 376 of the IPC against the accused Keshi Ram, the accused Keshi Ram is acquitted for the offence U/s 376 IPC. On the other hand, the Prosecution has successfully established a case against all the six accused persons namely Keshi Ram, Dharambir, Shakuntala, Bobby, Babita and Mamuni for the offence U/s 366/34 IPC and consequently all the six accused persons named above are convicted for the offence U/s 366/34 IPC.
20. Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal / Revision, if none is preferred or subject to decision thereof.
Announced & dictated in the open court on 5th October, 2011 ( R.B. SINGH ) The then ASJ, 03 (Outer) (Presently ADJ01(West), Rohini Courts) Tis Hazari Courts, Delhi SC No. 119/09, FIR No. 379/08, State V/s Keshi Ram & Others Page 29 of 29