Delhi District Court
State vs Vijay on 25 February, 2012
IN THE COURT OF SHRI SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGE, OUTER01, ROHINI, DELHI
Sessions Case No: 124/11
FIR No : 430/08
Police Station : Sultanpuri
U/s : 363/376 IPC
State
Versus
Vijay,
S/o Shri Ram Kumar Verma,
R/o E52, Krishan Kumar,
Delhi110086. ... Accused
Date of Institution : 20.2.2009
Date of Decision : 25.2.2012
JUDGMENT
1. Brief facts of the prosecution case is that on 23.6.08 at about 9.30 am Smt. Durga gave a complaint in PS Sultanpuri that her daughter i.e prosecutrix (hereinafter referred to as 'P') who was th studying in 10 Standard had gone to tuition on 23.6.08 at about 9.30 am but she had not returned back. She suspected that STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 1 of 22 accused Vijay had kidnapped her daughter 'P'. On the basis of said complaint aforesaid FIR was registered u/s 363 IPC in PS Sultanpuri. On 3.06.08 the 'P' was recovered, but she gave statement to the police that she has gone to Vaishno Devi on her own. Later on she was produced before the Ld. MM where she gave the same statement. But on 5.8.08 'P' filed a written complaint that she had earlier given statement before the police and Magistrate due to the inducement of the father and mother of accused Vijay who has promised to marry her with the accused. The 'P' further stated in the complaint that on 23.6.08 accused Vijay had induced her and took her to Haridwar and Vaishno Devi and the accused committed sexual intercourse with her by saying that he has accepted her as his wife.
2. The police filed the charge sheet u/s 363/376 IPC. After completion of proceedings u/s 207 Code of Criminal Procedure, 1973 (herein after called as Cr.P.C.), the Magistrate has committed the case to the Sessions and later on it was assigned to this court.
3. The charge u/s 363 and 376 IPC was framed by the Ld. Predecessor vide order dated 26.11.2009 to which the accused STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 2 of 22 pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined as many as 12 witnesses.
5. PW1 is the 'P' herself. PW1 in his examination in chief th deposed that she was studying in 10 standard in the year 2008 and her date of birth is 8.10.1992. She was residing with her parents at House no.C1/151, Krishan Vihar, Delhi. Since the year 2007 accused Vijay was known to her as the accused Vijay used to take tuition from Kamal Pandey where 'P' was also going to take tuition. One year prior to 23.6.2008 she was going to market. Accused met her and took her to his jewellery shop where he proposed her that she should marry him. She told this fact to her mother. On the same day, in the evening accused met her mother and again gave a proposal to marry with the 'P' but her mother refused. On 23.6.2008 accused met the 'P' at about 9.30 am outside the tuition center and asked the 'P' to accompany him to college for taking admission form. 'P' accompanied the accused and went to Daulat Ram College where accused collected admission form and when they were returning and were near the gate of the college accused received a phone call from his father and accused revealed that his STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 3 of 22 father was saying that if he returned to the house along with the 'P' then he would kill the accused and 'P'. Thereafter accused told her that he wanted to marry her and suggested her that she should accompany him for going somewhere else and on repeated requests she accompanied accused Vijay to Haridwar on his bike. Accused married with her in a temple at Haridwar and thereafter arranged a room in a dharamshala where they remained for two days and during this period accused committed sexual intercourse with her 45 times. Thereafter the accused took her to Vaishno Devi where he took a room in a Dharamshala for four days where also he committed sexual intercourse with her. On 29.6.08 accused brought her back to Delhi and kept her in a room of his uncle which is situated at Rampura, Rumalo Wali Gali. The accused committed sexual intercourse with her for two days and thereafter parents of accused came there and told that the mother of the 'P' has lodged a report against the accused and if the 'P' would give statement before the police against the accused then accused would go to the jail as she is minor. The parents of accused assured the 'P' that if she deposed in favour of the accused before the police they would marry her with the accused. The accused also assured the same. Hence STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 4 of 22 she give the statement to Ld. MM on 1.7.08 as directed by the parents of the accused and she came back to her house.
She further deposed that on 11.7.08 her mother went to the house of accused but they showed ignorance about her marriage with the accused. Hence she made a complaint ExPW1/A to the police on 5.8.08 and she was medically examined at SGM Hospital on 12.8.08 by the police. She also requested that earlier she was medically examined on 30.6.08 at SGM Hospital but on that day she refused for her medical examination as per the instructions of parents of the accused. She further deposed that she was taken before the Magistrate on 14.8.2008 where her statement ExPW1/B was recorded by the Magistrate. She also proved her statement recorded on 1.7.08 as ExPW1/B and on 14.8.08 as ExPW1/C. The 'P' was cross examined by Ld. Counsel for accused on 1.5.2010 in which she denied the suggestion that accused did not take tuition in tuition center Bhartiyam Institute situated at road between Budh Vihar and Pooth Kalan. She also deposed that she was knowing the accused one year prior to 23.4.08 and accused has taken her at his own shop and one month back from 23.6.08. She deposed that she went with the accused Vijay to STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 5 of 22 Daulat Ram College for taking the admission form for his friend. But she do not know that for which class or for which course the form was obtained by the accused. She stated that she do not know that Daulat Ram College is only for girls. She stated that she do not know at what time she left from Delhi and reached at Haridwar. She stated that she do not know the name of the dharamshala where they stayed in Hardiwar. She stated that name of that dharamshala starts with word Laxmi but later on word she do not know. She further stated that the marriage was performed in temple and accused put mangalsutra on her neck, put tika on her forehead and bangles on her wrists. She was feeling pain on her private parts after three nights intercourse. She further deposed that from Haridwar they went to Vaishno Devi by train. In her cross examination on 31.5.2010 she take completely Uturn. She admitted that document ExPW1/DA is written in her own hand writing. She also admitted that she gave statement ExPW1/DB to the IO voluntarily and admitted the contents of statement as correct. She also admitted that statement ExPW1/DC bearing her signature at point A and signature of her mother at point B. Same is in her own handwriting. She also admitted that her statement u/s 164 Cr.P.C. STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 6 of 22 recorded by Ld.M.M.given by her ExPW1/B. She further admitted that she gave statement ExPW1/A at the instance of one local leader. She admitted that she had she had gone to Vaishno Devi on her own and accused Vijay had not done any galatkaam/sexual intercourse with her. She further admitted that she gave her statement ExPW1/C before MM under pressure of one local leader. She also admitted that no threat has been given by the accused after registration of case. She was reexamined by Ld.APP for the State wherein she denied the suggestion that her statement ExPW1/DA or ExPW1/DB or ExPW1/B were given at the instance of accused Vijay or his father. She also denied the suggestion that she and her mother has compounded the offence or has been won over by the accused.
6. PW2 Smt. Dugra is the mother of the 'P'. PW2 Smt. Durga, mother of the 'P' deposed that on 23.6.08 her daughter had gone for tuition at about 9.30 am and did not return till evening. Since accused Vijay was not present in his house, therefore, she suspected that accused Vijay has taken her daughter as both are known to each other. She searched for her four 23 days and thereafter made a complaint to police ExPW2/A on the basis of STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 7 of 22 which FIR was registered. On 30.6.08 she was informed by the police that her daughter is at PS Sultanpuri. She further deposed that her daughter did not say anything in her presence in respect of her taking away. On 3.6.2008 her daughter was taken to SGM Hospital but she refused for her internal medical examination. On 1.7.2008 the statement of her daughter was recorded u/s 164 Cr.P.C. by the police. She further deposed that on 7.8.2008 PW2 gave her statement to the police against the accused at the instance of mohalla people that accused took away her daughter and committed rape upon her. She also deposed that she gave the copy of birth certificate of her daughter which is Mark XX and copy of admit card Mark Z in which her date of birth is mentioned as 8.10.1992.
She was declared hostile by Ld.APP and she was cross examined wherein she denied the suggestion that police recorded her statement on 28.6.2008, 30.6.2008 and 5.8.2008. She also denied the suggestion that on 30.6.2008 her daughter has told her that her daughter was kidnapped by accused Vijay or accused Vijay committed rape upon her and accused had taken her daughter to Vaishno Devi Mandir and kept in dharamshala and committed STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 8 of 22 rape. She also denied the suggestion that earlier her daughter was not willing to conduct the medical examination as parents of accused assured that her daughter would be married with the accused Vijay. She also denied the suggestion that she made complaint against the accused when parents of accused refused to marry the 'P'.
7. PW3 HC Balwan Singh, duty officer deposed that on 27.6.08 SI Ashok presented rukka ExPW3/A on the basis of which he got typed the FIR i.e 430/08. He was not cross examined.
8. PW4 Dr. Binay Kumar, Medical Officer deposed that he examined the 'P' and prepared MLC ExPW4/A. He also deposed that MLC ExPW4/B of 'P' was prepared by Dr. Thariq Bhatt. He was not cross examined.
9. PW5 ASI Raj Bala deposed that she accompanied the 'P' to SGM hospital for her medical examination and after medical examination doctor has handed over one pulunda sealed with the seal of SGMH which she handed over to IO and IO took into possession the same vide memo ExPW5/A. She was not cross examined.
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10. PW6 HC Govind Singh MHC(M) proved the entry of Register no.19 regarding the deposit of sealed pulunda in the malkhana as ExPW6/A. He was also not cross examined.
11. PW7 Shri Puran Chand, then MM recorded the statement of 'P' on 14.8.2008 and proved the same as ExPW7/B. He recorded the statement of 'P' as ExPW7/B. In cross examination he stated that due to inadvertence he did not mention the fact of certificate regarding correctness of statement in proceedings ExPW7/B.
12. PW8 HC Nar Singh deposed that duty officer has handed over him original rukka and copy of FIR to him on 27.6.08 to deliver the same to the IO SI Ashok at E52, Krishan Vihar, Sultanpuri. In cross examination he stated that he do not know about the ownership of house no.E52.
13. PW9 Ms.Smita Garg, Addl. Sr. Civil Judge, deposed that on 1.7.08 she was working as Link MM and recorded the statement of 'P' u/s 164 Cr.P.C. ExPW1/B. She was not cross examined.
14. PW10 SI Ashok Kumar/IO deposed that on 27.6.08 Smt.Durga reached at PS and told him about the kidnapping of her STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 10 of 22 daughter 'P'. He recorded her statement ExPW2/A. He prepared the rukka ExPW3/A on the basis of which FIR was registered, flashed messages on wireless to all PS in Delhi and NCR. On 30.6.08 he received secret information that 'P' can be available at Lawrence Road Metro Station. He went there and found one girl standing on the road under the metro station and at the pointing out of the informer he asked the girl who stated that she is 'P'. He recorded her statement u/s 161 Cr.P.C. in which she did not level any allegation against anyone. At PS complainant and 'P' talk with each other thereafter he recorded statement of complainant Smt.Durga u/s 161 Cr.P.C. He sent 'P' to SGM Hospital for medical examination but there she refused her internal examination. Thereafter he filed an application before Ld.MM for recording the statement of 'P' and Ld.MM Smita Garg recorded her statement . He obtained her statement and found that she did not level allegation against anyone. On the direction of Ld.MM, handed over P to her mother.
On 5.8.08 he filed a written complaint already ExPW1/A in which she made allegation of kidnapping and rape against accused Vijay. He recorded her statement u/s 161 Cr.P.C. STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 11 of 22 Thereafter he again sent 'P' to SGM Hospital for medical examination. Thereafter he added Section 376 IPC in this case. He again moved an application u /s 164 Cr.P.C. Her statement was recorded. He obtained the copy of same. He searched accused Vijay but he was not found. Thereafter he went on leave and handed over the case file to MHC(R). After returning from the leave, he prepared charge sheet and filed in the court.
In his cross examination he admitted that after recording statements of 'P' ExPW1/DB and her mother u/s 161 Cr.P.C , he prepared paper for cancellation of case but that record was not filed before Ld.MM. He admitted that he did not visited tuition center where accused and 'P' met first time. He did not investigate about the ownership of motorcycle on which 'P' was taken to Haridwar. He did not take 'P' to Haridwar to identify the room at Haridwar. He did not obtain the mobile phone of accused to ascertain where his father made a call to him. He did not take the accused to Rampura to verify the fact that he stayed there with 'P'.
15. PW11 SI Jaspal Singh deposed that on proceedings of leave by SI Ashok Kumar investigation was entrusted to him. He arrested the accused vide arrest memo ExPW11/A and took his STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 12 of 22 personal search vide ExPW11/B and released on bail as he was granted anticipatory bail. In cross examination he deposed that he did not record the statement of any person nor had gone to any place for investigation.
16. PW12 Dr. Manoj Dhingra deposed that he has come to depose in place of Dr.Upma who has left the hospital. He deposed that the portion X to X of MLC ExPW4/A is in the handwriting of Dr.Upma. In his cross examination he stated that he does not have any personal knowledge about the case and the MLC was not prepared in his presence.
17. The statement of accused was recorded u/s 313 Cr.P.C. wherein accused denied the allegations and incriminating evidence against him. The accused preferred to lead defence evidence.
18. DW1 Arun Kumar, Assistant Ahlmad deposed that he has brought the judicial file No.179/11 titled as Ram Kumar V Durga Devi and Mahipal and proved the certified copies of the Judgment and decree passed by Shri Ajay Pandey, Civil Judge as ExDW1/A and DW1/B. The copy of plaint along with application u/s 39 Rule 1 and 2 CPC as ExDW1/C. Complaint made by Ram Kumar STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 13 of 22 to Commissioner of Police as ExDW1/D. The order dated 19.8.2008 passed by Smt. Jyoti Kler then Civil Judge as ExDW1/E.
19. DW2 Ram Kumar Verma deposed that he is father of the accused Vijay. He has filed a civil suit for permanent injunction restraining the defendant from forcing him to marry the 'P' with the accused i.e his son. He proved the restrained order passed by the Civil Judge dated 19.8.2008 as ExDW1/E.
20. Arguments heard from both, Shri O.P. Sharma, Ld.counsel for accused and Shri Sukhbeer Singh, Ld.APP for the State.
21. Ld. Counsel for the accused has argued that from the testimony of PW1 'P' and PW2 Smt. Durga it is evident clear that neither the accused has kidnapped the 'P' nor he has committed rape upon her. He further argued that the testimony of the 'P' cannot be relied upon at all as she changed her version in each of her statement recorded either by police or by Ld. Magistrate. Hence she is not a reliable witness. Ld. Counsel for the accused further argued that from the testimony of DW1 it is proved that Civil Suit for permanent injunction was filed by the DW2 against the parents of 'P' STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 14 of 22 for restraining them to visit to the house/shop of the accused. The counsel for accused relied upon the copy of plaint ExDW1/C and copy of order ExDW1/A dated 5.1.2012 passed by the Shri Ajay Pandey, Civil Judge, Delhi whereby the parents of the 'P' were restrained from creating any nuisance in the enjoyment of father of accused house/shop.
22. On the other hand, Ld. APP for State argued that it is not disputed that date of birth of the 'P' is 8.10.1992. Thus it is proved that she is less than 16 years on the day when she was kidnapped and sexual intercourse was done with her. Therefore even if the 'P' had consented to go away with the accused and also consented to sexual intercourse, evidence of kidnapping and rape is made out as 'P' is minor, therefore, her consent is immaterial. The APP further argued that the complainant has fully explained in her complaint ExPW2/A why she has absolved the accused in her statement recorded u/s 164 Cr.P.C. dated 1.7.2008 that she has alone gone to Vaishno Devi Temple, hence her statement ExPW1/B should be ignored and court should rely upon the testimony recorded in the court on 27.3.2010 and on 1.5.2010. Ld.APP further argued that on 1.5.2010 since PW1 won over by the accused on 31.5.2010 STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 15 of 22 therefore her further cross examination should be ignored rather she has absolved the accused from the commission of offence.
23. I have heard the submissions as stated above. On perusal of her testimony it is evident that the 'P' has changed her version every time whenever gave statement. In her statement ExPW1/DB given to police on 30.6.08 and in her statement ExPW1/B dated 1.7.2008 u/s 164 Cr.P.C. recorded by PW9 Ms. Smita Garg, she has completely absolved the accused by deposing that she had gone to Vaishno Devi Temple of her own on 23.6.2008 as her parents have refused to accompany her. Thereafter on 5.8.2008 i.e after about one month she filed a complaint ExPW1/A in which she has alleged that she has given the statement ExPW1/B under the pressure of father of accused as she has promised that he would marry with her but he refused later on. In the said complaint ExPW1/A the 'P' deposed that accused has taken her to Haridwar on 23.6.2008 where they lived as husband and wife and from there the accused took her to Vaishno Devi Temple where also accused committed sexual intercourse/galat kaam with her and from there the accused took her to the house of his uncle (chacha) at Rampura, Rumalon wali gali where also accused did sexual intercourse/galat STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 16 of 22 kaam with her. She repeated the same facts in her statement ExPW7/B recorded by PW7 Shri Puran Chand, Ld.MM and in her examination in chief recorded on 27.3.2010 but she took complete Uturn in her cross examination dt. 31.5.2010. She stated that she had gone to Vaishno Devi on her own and accused Vijay do not accompany her. She also admitted that accused Vijay had not committed any wrong act/sexual intercourse with her or accused also did not compel her to marry. She was also cross examined by the Ld.APP for the State wherein she stated that her statement dated 27.3.2010 was tutored statement.
24. I am agree with the contention of Ld.APP for the State that the testimony of a hostile witness cannot be altogether ignored and has to be relied upon to the extent witness supported the prosecution case. But at the same time, whenever the witness give contradictory statements then it is also the duty of the court to examine the same with great scrutiny as held in Mrinal Das & Ors. V State of Tripura, AIR 2011 SC 3753 it is held in para 42 as under : It is settled law that corroborated part of evidence of hostile witness regarding commission of STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 17 of 22 offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to crossexamine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the Court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The Court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.
25. Further in Devender Singh & Ors. V State of H.P. AIR 2003 SC 3365, it was held by the Hon'ble Supreme Court that STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 18 of 22
1. the law is well settled that prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. V Gian Chand, (2001) SCC 71, on a review of decisions of this Court, it was held that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on. This court further held : "If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive or its responsibility and be sensitive while dealing with cases involving sexual molestations........"
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26. As stated above PW2 her mother has also turned hostile and did not support the prosecution case. In the cross examination conducted by Ld.APP for State she deposed that she lodged no complaint ExPW2/A on the suspicion that accused had taken her minor daughter as he was not found at home. She has also denied the suggestion that her daughter 'P' had told her that accused had taken her to Vaishno Devi Mandir or had kidnapped her or committed rape on her. Hence from her testimony nothing is proved against the accused.
27. There is no other witness to corroborate the part testimony of PW1 that she had been enticed or taken away to Haridwar and Vaishno Devi by the accused or sexual intercourse has been done with her by the accused. No investigation has been done by the IO/PW10 to prove that in which dharamshala accused and 'P' had stayed during their stay at Haridwar and Vaishno Devi. Even in fact PW1 IO SI Ashok Kumar admitted that he has not taken the 'P' to Haridwar to identify the room or hotel or dharamshala where they had stayed. It was the duty of the IO to verify the statement of the complainant. But it appears that he has failed to STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 20 of 22 perform his duty completely and acted as puppet in the hands of the 'P' or her mother when the 'P' absolved the accused and he went to the extent of filing closure report, when 'P' gave the complaint ExPW1/A, he filed the charge sheet without verifying the facts mentioned in the complaint ExPW1/A. He did not go to Vaishno Devi to verify whether the accused and 'P' had gone there. It is known fact that in Vaishno Devi temple cameras have been installed in the entire route as well as Vaishno Devi Temple. If accused along with the 'P' had gone there and offered prayer then from the said close circuit camera certainly came to know whether accused and 'P' had went there or not. Hence it appears that PW10 IO SI Ashok Kumar lack the investigation skill.
28. It is not a dispute that 'P' was less than sixteen years of age when complaint was lodged. Further MLC ExPW4/A proved that 'P' was having sexual intercourse as MLC shows that hymen ruptured and admitted two fingers. But it does not prove that the sexual intercourse was done with the 'P' by the accused. It is very strange that the accused had not been medically examined by the IO to verify whether he is competent to do sexual intercourse.
29. In such circumstances, I found that there is no STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 21 of 22 corroboration in support of testimony of PW1, therefore it will not be safe to rely upon her testimony. Hence I held that prosecution has failed to prove that the accused has committed sexual intercourse with the 'P' or has enticed or taken her away from the lawful guardianship of PW2. Hence prosecution has failed to prove the charges u/s 363/376 IPC against the accused. Therefore accused is acquitted. The bail bond of accused is cancelled. Surety discharged. The original documents, if any, be returned back after cancellation of endorsement. Case property, if any, is confiscated to the State. File be consigned to the record room.
Announced in open court (Sanjeev Kumar) on 25.2.2012. ASJ01 (Outer) Rohini, Delhi. STATE V VIJAY FIR no. 430/08 PS SULTANPURI Page No. 22 of 22