Delhi District Court
Fir No. 162/11; State vs . Sapna & Anr. Page 1 Of 16 on 14 January, 2013
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 94/11
FIR No. 162/11
P.S. Swaroop Nagar
U/S: 363/366/368/323/342/
34 IPC
STATE
Versus
(1) SAPNA
w/o Ravi
r/o Dayal Market wali gali,
Alipur, Delhi
(2) RAVI
s/o Jitender
near Allahabad Bank,
in front of Radha Krishna Mandir,
Alipur, Delhi
Date of Institution: 17122011
Date of arguments: 09012013
Date of judgement: 14012013
JUDGMENT
1. The case of the prosecution, in brief, is that complainant Rattan Singh came to PS and gave statement that he is mason by FIR No. 162/11; State Vs. Sapna & Anr. Page 1 of 16 profession and on 16102011 at about 5 pm her daughter Prosecutrix Pooja had gone to market to bring some goods but she did not return back. He tried to search his daughter but could not locate her and he raised suspicion that her daughter had been enticed away by someone and demanded for legal action against that person. On this complaint, FIR u/s 363 IPC was registered and investigation was entrusted to SI Virender Kumar. On 18102011, information was received from PS Burari that one girl named Pooja was there after a call of 100 number. Police along with mother of Prosecutrix reached PS Burari and after identification by the mother of Prosecutrix, she was brought to PS Swaroop Nagar. On 19102011, Prosecutrix Pooja was produced before Ld. MM and her statement u/s 164 Cr.P.C. was recorded. In her statement before the Ld. MM, Prosecutrix Pooja disclosed that on 16102011, she had gone with Karan on his bike to meet his brotherbhabhi at Mukhmelpur. Karan was doing cable TV work in the nearby area. When she was at the house of Karan's bhaibhabhi, they asked her to marry her with Karan and Karan was also willing the same. Pooja refused for the marriage and tried to contact at PS but bhaibhabhi of Karan snatched the mobile and took out its SIM card and threatened Pooja that they are criminals. Pooja slept in their house FIR No. 162/11; State Vs. Sapna & Anr. Page 2 of 16 in the night and remained there on 17102011 also. On the night of 17102011, Pooja was taken to the grandmother of Karan. Karan and his brother were on motorcycle and Prosecutrix Pooja and Karan's bhabhi were in auto and prosecutrix was told that she was being taken to her house. Somehow, Pooja took mobile phone from Karan's bhabhi and one phone call of Pooja's brother came on the mobile but Karan's bhabhi cut the call. On 18102011, Prosecutrix Pooja was taken towards Mukhmelpur on the pretext of leaving her at her own house and Karan's father was also with them. When they reached Mukarba Chowk, Prosecutrix Pooja called at 100 number from the phone of some auto driver. After some time, police reached there and took Prosecutrix and accused to PS Burari. Thereafter, Prosecutrix Pooja was sent to PS Swaroop Nagar. Prosecutrix also disclosed that Karan's brother also gave blade blow on her left hand. During interrogation, accused Sapna, Ravi and Karan were arrested. After completion of investigation, chargesheet u/s 363/366/368/342/323/34 IPC was filed against the accused persons. Accused Karan was juvenile and his challan was filed before JJ Board.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section FIR No. 162/11; State Vs. Sapna & Anr. Page 3 of 16 323/342/366/368/34 IPC was framed against accused Ravi and Sapna to which they pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution has examined 11 witnesses. Statements of accused were recorded u/s 313 Cr.P.C. therein they denied all the allegations made against them. Accused opted not to lead defence evidence.
4. I have heard Ld. Amicus Curiae and Ld. APP for State and have perused the entire records.
5. Ld. Amicus Curiae for accused argued that there is no MLC on record. Not only the internal but no external examination conducted which means there was no injury to the Prosecutrix. MLC placed in police file does not disclose any injury and due to that reason, the prosecution has not filed it on record of the case file and also did not rely upon it. The Ld. Amicus Curiae for the accused persons argued that there was a suggestion to PW1 that her daughter is more than 18 years of age. Even, neither document of birth of the Prosecutrix/ PW2 filed nor proved on record. In FIR, PW2 stated the name as Karan, Cable Operator but in her cross examination, she stated that she does not know the name of the Cable Operator. PW2 must have known the name of the shop since she used to go there for a long time but she did not tell the name of FIR No. 162/11; State Vs. Sapna & Anr. Page 4 of 16 the shop. Shopkeeper was neither made a witness nor he deposed in the court. PW2 stated in her statement u/s 164 Cr.P.C. that she was taken to Mukhmelpur but in her examination in chief, she deposed that she was taken to Alipur, near Hiranki village. The Ld. Amicus Curiae further argued that Mukhmelpur and Hiranki are two separate villages. Even her father reported at other PS and not PS Burari. No verification of mobile was made whether it belonged to the father of PW2. The mobile phone of auto driver was neither produced nor proved even no call details have been proved on record. Further, motorcycle neither produced nor proved. PW1, mother of the Prosecutrix, resiled from her previous statement. PW1 stated in her examination in chief that there are houses situated near the shop but no statement of any person was recorded by the police. The investigation conducted by the police is defective. The story of the case is altogether different that Karan and PW2 eloped but they never went to the place of accused persons. Had PW2 been to the place of accused persons, then the statements of neighbours should have been recorded which was not so done in this case. Therefore, all the story of the prosecution is false and fabricated except that the Prosecutrix had relations with Karan (since Juvenile) for which separate chargesheet was filed FIR No. 162/11; State Vs. Sapna & Anr. Page 5 of 16 against Karan (Juvenile) before JJ Board.
6. Ld. APP for State argued that there is no direct evidence of kidnapping but it can be inferred from the statements of PWs. The Ld. APP for State argued that there is no suggestion that Prosecutrix was more than 18 years. Intention of the accused persons was to get the prosecutrix married with Karan (since juvenile). PW2 was at her best to get out of the clutches of the accused persons and managed to call from Burari place. MLC of the prosecutrix was conducted which was not filed on record but the same is placed on police file which can be seen by this court since there is no bar to it. Further, particular number of witnesses are not required and only the sole witness is sufficient to prove the case against the accused persons.
7. In view of the above arguments of the Ld. Amicus Curiae and the Ld. APP for the State, let us examine the evidence led in this case as to whether the accused persons had committed the offence as charged u/s 323/342/366/368/34 IPC or whether they have been falsely implicated. PW1 Bimla, mother of the Prosecutrix stated in her examination in chief that PW2 was less than 16 years of age at the time of incident. During crossexamination, PW1 th deposed that date of birth of her daughter is 10 in the month of FIR No. 162/11; State Vs. Sapna & Anr. Page 6 of 16 Sawan (as per Hindi calender) but she did not know the year. PW2 in her statement u/s 164 Cr.P.C. recorded on 19102011 stated her age about 16½ years. The incident is during the period of 16102011 to 18102011. PW2/ Prosecutrix deposed in her th examination in chief that in the year 2011, she was studying in 9 class in Govt. School at Kadipur. In her crossexamination, she deposed that at present (at the time of recording of her statement), th she was studying in 10 class. PW3, father of the prosecutrix, deposed in his examination in chief that at the time of incident, PW2 was 16½ years old. Neither birth certificate of the prosecutrix filed nor proved on record. Even otherwise, no record of her studying in th 9 class in Govt. School, Kadipur brought on record to prove exact date of birth of the prosecutrix. It is reflected from the above discussed statements of PW1 to PW3 that the age of Prosecutrix at the time of incident was about 16½ years. In this context, I would place a reliance upon the judgement reported in the case of Sagar Kumar Vs. State of Haryana, 2011 (1) RCR Crl., it was held that as per radiological test, prosecutrix was around 15½ to 16 years. There was a variation of two years either side and age deserved to be counted towards higher side, therefore, the prosecutrix was held as major. In Mohd. Imran Khan & Etc. Vs. State, 2010 CRI.L.J. FIR No. 162/11; State Vs. Sapna & Anr. Page 7 of 16 1756, it was held by the Hon'ble High Court of Delhi that though prosecutrix was less than 16 years old, cannot be said that she was not capable of knowing what she was doing. Therefore, the offence of kidnapping was not made out.
8. PW1 in his examination in chief deposed that it was around 2 months ago, her daughter had gone to purchase a copy from the market but she did not turn to the house. PW2 in her examination in chief deposed that on 16102011 at about 5 pm, she was going to purchase rajma to the market. PW3 deposed in his examination in chief that on 16102011 at about 5 pm, the Proseuctrix had gone to a shop to purchase some household articles. Meaning thereby, there are contradictions in the statements of PW1 to PW3 regarding purchase of what item whether PW2 went to purchase copy, rajma or some household articles from the shop. PW2 in her examination in chief deposed that one Karan, Cable Operator installed a cable connection at their house and she used to call him Bhayya (brother) met her in the market and asked her that he will get her introduced with his bhabhi and informed her that his bhabhi is residing at Amrit Vihar, therefore, Karan took her on his motorcycle to Amrit Vihar to introduce her with his bhabhi and bhayya but he instead of taking her to Amrit Vihar, FIR No. 162/11; State Vs. Sapna & Anr. Page 8 of 16 took her to Alipur, near Hiranki village where his brother and bhabhi were present. Karan introduced her with his bhabhi. PW2 insisted that she should be taken back to her house but Karan did not drop her at her house and kept her there upto 6 pm. Thereafter, accused came there and Karan introduced the accused to her as his brother Ravi. PW2 in her examination in chief further stated that she tried to escape but accused Ravi and Sapna started beating her. Accused Sapna slapped her, Karan left from there after leaving her in the custody of both the accused. Both the accused started threatening / terrorising her. Accused Ravi took out a blade from his mouth and inflicted injuries on her left hand with the blade. PW2 was carrying her mobile phone with her at that time and when she tried to contact her family members, accused Ravi snatched mobile from her. PW2 further deposed in her examination in chief that both the accused put pressure on her to marry with Karan but she told that she was treating Karan as her brother. Accused Ravi started terrorising her with knife and told her that in case she did not obey them he will kill her. Accused Sapna and Karan took PW2 to Jharoda on motorcycle at the house of his grandmother. PW2 asked them to drop her to her house but they refused by saying that unless she gave her consent for marriage they will not drop her at her house. Accused FIR No. 162/11; State Vs. Sapna & Anr. Page 9 of 16 Ravi also reached there. Accused Ravi forced PW2 to consume liquor. They kept PW2 for whole day and night.
9. On 18/10/2011, they again brought PW2 to Alipur. PW2 also requested the grandmother of accused persons to tell them to drop her at her house. The grandmother of accused quarrelled with them and told them to drop PW2 at her house and forced them to leave the house. On the way to Alipur, accused persons started terrorising PW2 near nala that if she did not agree for marriage, they will kill her or throw her in nala. Thereafter, both the accused and Karan started quarrelling with each other at the nala. A TSR driver was standing nearby and PW2 asked him to get her call at number 100 from his mobile. He give her his mobile and PW2 rang at 100 number. When they came to know about the call, accused Ravi and Karan fled away and accused Sapna started beating PW2. After about 5 minutes, police gypsy came there and brought PW2 to PS. Her father had already lodged a report with the police at PS Burari. PW2 asked police officials to call her parents and they called them to PS. The parents of PW2 reached at PS and from there, she was brought to PS Swaroop Nagar. Police officials of PS Swaroop Nagar refused to get her medically examined told her to refuse for medical examination. PW2 again said that she was taken to hospital for FIR No. 162/11; State Vs. Sapna & Anr. Page 10 of 16 medical examination by the police officials. Thereafter, she was brought back to PS Swaroop Nagar. Next day, PW2 was produced in the Court and her statement was recorded before MM and PW2 gave her consent to go with her parents. PW2 identified her statement u/s. 164 Cr.PC as Ex.PW2/A.
10. During crossexamination, PW2 deposed that she had reached to the shop where she had gone to purchase Rajma. On the one hand, PW2 stated in her chief that on the way Karan met her in the market and took her on his motorcycle. On the other hand, PW2 stated that she had reached the shop. Meaning thereby, PW2 has contradicted her own statement in chief as well as crossexamination regarding going to the shop. Further, PW2 has categorically stated in her chief that Karan, Cable Operator met her in the market whereas, in her crossexamination, she stated that she does not know the name of the person who is running cable company and even PW2 neither known the names of the two persons from the cable operator office who used to visit their house to correct the cable fault nor known the name of the employee of the cable operator who had installed the cable connection at their house. PW2 further deposed in her crossexamination that her father used to go to make payments at the office of cable operator. FIR No. 162/11; State Vs. Sapna & Anr. Page 11 of 16 Whereas, PW3 father of the Prosecutrix deposed in his examination in chief that he was not having any suspicion on any person. Even otherwise, PW3 could not identify the accused persons present in the court as he had never seen them before and even he also did not know Karan. PW3 admitted in his crossexamination that Karan never visited his house. PW2 deposed in her examination in chief that at the time of incident i.e. 16102011, she was having mobile phone with her but did not remember the mobile number and the same was snatched from her by the accused Sapna and further she had narrated this fact to the police also. However, PW2 was confronted with her statement u/s 161 Cr.P.C. Ex. PW2/DA where it was not so recorded. Even PW2 was not having any mobile number at the time of police complaint. The said mobile phone belonged to her father. Neither the mobile number of the father of the prosecutrix nor call details have been filed or proved on record. Further, neither grandmother of the accused Ravi was made witness nor she was examined by the Prosecution. The call details of auto driver have also not been filed nor proved. The motorcycle has also not been produced and proved. The knife has neither been recovered nor proved. There is no investigation from the auto driver as well as grandmother of the accused Ravi. The MLC of the FIR No. 162/11; State Vs. Sapna & Anr. Page 12 of 16 Prosecutrix has neither been filed nor proved on record. Meaning thereby, the prosecution has failed to prove that the prosecutrix had suffered injuries on her person.
11. PW2 admitted in her crossexamination that though both the accused persons were arrested in her presence but she had not signed the arrest memos of accused persons. On the one hand, PW2 in her crossexamination stated that there was no family member of the accused persons present when the accused persons were arrested. On the other hand, during crossexamination PW2 was confronted with the arrest memos Ex. PW2/DB and Ex. PW2/DC wherein it is mentioned that Smt. Jyoti, mother in law of the accused Sapna and mother of accused Ravi were present. PW2 also admitted in her crossexamination that it was a residential area from where Karan took her on his motorcycle and people were passing from the gali but nobody was sitting outside their house. It seems that Prosecutrix is the consenting party to go with Karan on the motorcycle of Karan and she did not resist or raised any alarm at that time. In her statement u/s 164 Cr. P. C., the Prosecutrix stated that on the night of 17102011, she was taken to Karan's grandmother and Karan and his brother were on motorcycle while Prosecutrix Pooja and Karan's bhabhi were in auto. Whereas, PW2 FIR No. 162/11; State Vs. Sapna & Anr. Page 13 of 16 in her examination in chief deposed that accused Sapna and Karan took her to Jharoda on motorcycle at the house of his grandmother. PW5 Lady Ct. Babita stated in her crossexamination that accused Sapna was taken out from the lock up in the morning but she did not remember the exact time. PW5 further stated that departure entry from PS Swaroop Nagar was made by IO but she did not make the departure entry. PW6 Lady Ct. Nandu stated in her cross examination that they reached Alipur in Govt. Gypsy but she did not remember the exact number of police officials who accompanied with them and even she could not tell the rank of the said police officials. Even PW6 did not remember which document was prepared by the IO firstly. PW8 SI Virender Kumar stated in his chief that prosecutrix was got medically examined by SI Jagdeep but she had refused to get her internal private part examined. Even mother of PW2 also refused to give her consent for internal examination of her daughter. Neither MLC filed nor proved. Even no doctor was examined by the prosecution in this regard. PW1 during her crossexamination by Ld. APP for State admitted that police did not make inquiry from her nor recorded her statement.
12. The Ld. Amicus Curiae for the accused argued that there is no DD entry on record. During crossexamination, PW8 SI FIR No. 162/11; State Vs. Sapna & Anr. Page 14 of 16 Virender Kumar deposed that DD entry regarding finding of prosecutrix at PS Burari is not placed on the file. PW10 SI Jagdeep also admitted in his crossexamination that DD entry is not placed on the judicial file.
13. The Ld. Amicus Curiae argued that the police took time to register the FIR to falsely involve the accused persons in this case. There was a preplan, therefore, the parents of the Prosecutrix took 2½ days to prepare the false story. The incident is dated 16102011 and the FIR is dated 17102011. So far as the aspect of delay in lodging the FIR is concerned, in this regard, I would rely upon the judgement reported in the case of Ranjan Dwivedi Vs. CBI through Director General, 2012 CRI.L.J. 4206 it was held that criminal offence is considered as a wrong against the State and the society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay.
14. In the present case, there is no public or independent witness except parents of the prosecutrix and police officials. The police officials are only interested in the success of their story and therefore the testimonies of police officials cannot be believed FIR No. 162/11; State Vs. Sapna & Anr. Page 15 of 16 without corroboration. In Vikramjit Singh @ Vicky Vs. State of Punjab, 2007 (1) CC Cases (SC) 35, it was held by the Hon'ble Supreme Court that where two views of a story appeared to be probable, the one that was contended by the accused should be accepted. In Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court held that in a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks 'credibility', benefits of doubt necessarily has to go to accused.
15. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has failed to prove its case against accused Sapna and Ravi beyond reasonable doubt, the benefit of which goes to the accused. Accordingly, both accused are acquitted. They be released forthwith if not wanted in any other criminal case. File be consigned to Record Room.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 14012013 FIR No. 162/11; State Vs. Sapna & Anr. Page 16 of 16