Delhi District Court
State vs 1. Narender Kaushik on 18 November, 2017
-: 1 :-
IN THE COURT OF SH BHUPESH KUMAR, ADDITIONAL
SESSIONS JUDGE (SPECIAL FAST TRACK COURT)01,
WEST, TIS HAZARI COURTS, DELHI
Sessions Case No. 45/14
State Versus 1. NARENDER KAUSHIK
S/o Sh. Yashwant Kaushik
R/o Gali no.3, Shiv Colony,
Kankar Wali Road, Rewari, Haryana.
2. Harish @ Hari
S/o Sant Lal Saini,
r/o H.No.1084A, New Mahabir Colony,
Hisar, Haryana.
3. Ashwani Kumar Verma
s/o Sh.Jagdish Kumar Verma
r/o H.no.589/1, Krishna Nagar,
Hissar, Haryana.
4. Boby @ Tuli @ Pinky Verma
w/o Vinod Kumar,
r/o WZ 222, Basai Darapur, Delhi.
5. Jyoti @ Bably @ Balli
w/o Naresh @ Sonu
r/o H. no. 1224, Housing Board,
Hisar, Haryana.
FIR No. : 142/14
U/s : 370/376D/363/365/34/506/342/323/109 IPC &
5A ITP Act.
Bhupesh Kumar
ASJ (SFTC)-01, West THC, Delhi/18.11.2017
-: 2 :-
Police Station : Ranhola
DATE OF RECEIPT OF FILE
AFTER COMMITTAL: 28.03.2014
DATE OF JUDGMENT: 18.11.2017
JUDGMENT
1.The brief facts of the case as emerged from the chargesheet are that on 11.02.2014 the prosecutrix made written complaint to the Police Commissioner of Delhi with copy to DCP Raouri Garden, SHO Moti Nagar, National Woman Commission etc. In the complaint, she has stated to the effect that she is resident of village Lookhi Doga, Dak Khana Bawaan Pur, Thana Murail, Zila Veerbhoom, Bengal. She is aged about 2627 years and is divorcee. Earlier she working at Asha Deep, Nurshing Home Jogipur, District Veer Bhoomi. While working in the said nursing home, she came into contact with accused Tuli @ Boby @ Pinky Verma who came there for the medical treatment of her mother. The accused Tuli @ Boby @ Pinky Verma asked the complainant that she can arrange good job for her with good salary at Delhi. On the pretext of arranging job for prosecutrix, accused Tuli @ Bobby brought prosecutrix Delhi at her house at WZ 222, Basai Darapur, Moti Nagar. There accused Narender, partner of Tuli @ Boby @ Pinky Verma met her. For some time, accused Tuli @ Boby @ Pinky Bhupesh Kumar ASJ (SFTC)-01, West THC, Delhi/18.11.2017 -: 3 :- Verma and Narender made the prosecutrix to do their household work. The prosecutrix handed over her cash and jewelery items to both these accused persons. After some time, prosecutrix came to know that both these accused persons have brought some other 'Besahara' girls and forced them into prostitution. When this fact came to the knowledge of prosecutrix, she made up her mind to return to her home and she demanded her cash and jewelery from both these accused persons. On this both these accused persons became furious and beaten the prosecutrix. The accused Narender raped prosecutrix number of time and under threat to kill forced for prostitution and to have sexual intercourse with number of unknown persons. After three months, accused Babli sister of Tuli @ Boby @ Pinky Verma came to her house and on looking at the condition of prosecutrix, consoled her and assured her that no such act shall be repeated in future. Thereafter, Babli took the prosecutrix alongwith her to Hisar. But when prosecutrix reached there, she came to know that Babli and her partners Nayan, Hari, Ashwani and Sonu had purchased her from accused Tuli @ Boby @ Pinky Verma and Narender for a sum of Rs.40,000/. When this fact was revealed to prosecutrix, she became mentally disturbed. At Hisar, the said accused persons repeatedly raped her and also made her obscene video and photographs. When she was pregnant, even then she was pushed into prostitution and was forced to have sex with number of unknown persons. This act continued for nine months. On 7.10.2012 she gave birth to a baby girl at Gulati Bhupesh Kumar ASJ (SFTC)-01, West THC, Delhi/18.11.2017 -: 4 :- Nursing Home, Hisar. However, only after 1015 days of her delivery, under the threat to kill her daughter, she was again forced for prostitution. Thereafter, the prosecutrix became sick as she got infection in her stomach and private parts. When the accused persons came to know that she is no more fit for prostitution, she was thrown out from their house but they kept her daughter with them. Thereafter, a Bengali lady met the prosecutrix who got her medically treated and got her married to one person known to her. The daughter of prosecutrix is still in the possession of accused persons. Inter alia, on the basis of this complaint, FIR no. 142 dt.19.02.2014 at PS Moti Nagar, u/section 370/376D/363/365 IPC was registered.
2. The investigation of the case was marked to SI/IO Sushma. During investigation, prosecutrix was medically examined and her statement was recorded u/section 164 Cr. P.C. Accused 1) Narender Kaushik, 2) Harish @ Hari, (3) Ashwin Kumar Verma, (4) Boby @ Tuli @ Pinky Verma, and (5) Bably @ Jyoti @ Balli were arrested and their disclosure statement was recorded. The accused were medically examined. The daughter of prosecutrix was recovered and she was directed to keep in Paalna with directions of CWC.
After completing other formal investigation, charge sheet under Section 370/376D/363/365/34/406/405/506/342/323/109 of IPC and Section 5 of ITP Act was filed before concerned Ld. MM. After Bhupesh Kumar ASJ (SFTC)-01, West THC, Delhi/18.11.2017 -: 5 :- complying with provisions of Section 207 Cr.P.C., the case was committed to Ld. Sessions Court by the Ld. MM.
3. After hearing arguments, vide order dated 22.08.2014, charge for offence under section 376/323/506/406/370/34 of IPC and offence under Section 3,4,5 & 6 of Immoral Traffic (Prevention) Act was framed against the accused Narender Kaushik; charge for offence under section 370/376/506/363/365/34 of IPC and offence under Section 3,4,5 & 6 of Immoral Traffic (Prevention) Act was framed against the accused persons Harish @ Hari and Ashwani Kumar Verma; charge for offence under section 376/109/323/506/406/370/34 of IPC and offence under Section 3,4,5 & 6 of Immoral Traffic (Prevention) Act was framed against the accused Boby @ Tuli @ Pinky Verma; charge for offence under section 370/376/109/363/365/34 of IPC and offence under Section 3,4,5 & 6 of Immoral Traffic (Prevention) Act was framed against the accused Bably @ Jyoti @ Balli was framed. All accused persons pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution has examined nine witnesses.
5. PW1 is the prosecutrix. She has deposed to the effect that earlier she was married to Chhotu from whom she has obtained divorce and now married to Mr.Subroto Prabhat. In the year 2007, she was Bhupesh Kumar ASJ (SFTC)-01, West THC, Delhi/18.11.2017 -: 6 :- working at Asha Deep Nursing Home, Veer Bhoom. Accused Tuli came there for treatment of her mother. After treatment of her mother, accused Tuli enquired from her about her salary to which she told that she was getting Rs.9000/ per month. At this accused Tuli asked her that she is good worker and she can accompany her for better job in Delhi. She came to Delhi alongwith accused Tuli. At Delhi she worked as maid in the house of accused Tuli. When she asked about her salary, accused Tuli told her that salary would be paid by accused Narener Kaushil. She handed over her jewelery articles i.e. one gold chain, two gold ear rings, one pair of earn ring to accused Tuli @ Boby @ Pinky Verma. After three months accused Bably @ Jyoti @ Balli sister of accused Tuli @ Boby @ Pinky Verma came to her house. Accused Bably @ Jyoti @ Balli told her that she would pay whole amount of her salary and cash against her jewelery articles and also asked the prosecutrix to accompany her at Hisar. Prosecutrix accompanied accused Bably @ Jyoti @ Balli to her house at Hisar, where she worked as maid servant for 78 months. Thereafter, she gave birth to baby girl. For some time she worked at the house of accused Bably @ Jyoti @ Balli and when she fell ill she went to a lady in Hisar by leaving her daughter in the custody of accused Bably @ Jyoti @ Balli, at her own. Her daughter was two months old at that time. She lived with that lady for about one week, who also did not pay any money to her. After a week she came back to the house of accused Bably @ Jyoti @ Balli and demanded her daughter back but accused Bhupesh Kumar ASJ (SFTC)-01, West THC, Delhi/18.11.2017 -: 7 :- Bably @ Jyoti @ Balli refused to give her daughter. Thereafter prosecutrix came to bus stand at Hisar, where she met one lady to whom she told about her miseries and accused persons are not returning back money, jewelery and her daugher. That lady asked her to file case agains accused persons namely Bably @ Jyoti @ Balli, Boby @ Tuli @ Pinky Verma, Ashwani Kumar Verma, Harish @ Hari and Narender Kaushik. That lady made her to sign papers and took her to Tis Hazari Court. She went to police alongwith her husband Mr.Subrato Mouli whom she married in Hisar after the delivery of her daughter. The police took her once to the house of accused Boby @ Tuli @ Pinky Verma in Moti Nagar and police apprehended this accused in her presence. The police apprehended the accuses Narender Kaushik from bus stand. Police took her to the house of accused Bably @ Jyoti @ Balli at Hisar, where the accused had the premises. Thereafter all three accused namely Ashwani Kumar Verma, Harish @ Hari and Bably @ Jyoti @ Balli appeared before the police and apprehended by police. Her daughter was handed over to at Moti Nagar, police station. Accused Boby @ Tuli @ Pinky Verma, Bably @ Jyoti @ Balli, Narender Kaushik, Harish @ Hari, Ashwani Kumar were arrested vide memo Ex.PW1/A to Ex. PW1/E respectively. She was medically examined by police vide MLC Ex. PW1/F. She proved her complaint as Ex. PW1/G. The witness further submitted that her statement Ex.PW1/H, u/section 164 Cr.P.C. was recorded. The prosecutrix further submitted that she has told everything to the Ld. Bhupesh Kumar ASJ (SFTC)-01, West THC, Delhi/18.11.2017 -: 8 :- MM. She does not want any punishment for all accused persons. The witness was cross examined by Ld. APP for State on the ground that she was resiling from her earlier statement. During her crossexamination by Ld. APP for State, the prosecutrix has not supported the version of prosecution and her statement Ex. PW1/G was confronted from points X2X3, X4X5, X6X7, X8X9, X10 X11 and X12X13. It has been further submitted that whatever she stated before the Ld. MM, it was at her own and voluntarily with her free consent. She further submitted that she was told by that lady to depose the facts as stated by her before the Ld. MM to get her money, jewelery and daughter back. Further the prosecutrix has denied the suggestions put to her by Ld. APP for State on the important aspects.
The witness was cross examined by ld. Counsel for accused persons. During her crossexamination, she deposed to the effect that she herself has given her daughter to accused Bably @ Jyoti @ Balli as she was unwell and could not look after her daughter. She left the house of accused Bably @ Jyoti @ Balli at her own. Accused Ashwin Kumar and Narender Kaushik are innocent, they have not committed any offence. Accused Harish @ Hari has not thrown out from his house or has not taken her child. She never lived with accused Harish @ Hari.
6. PW2 is Ms. Suman. She is the witness who met prosecutrix at Hisar. She has also not supported the version of prosecution. The witness was cross examined by Ld. APP for State but even then the Bhupesh Kumar ASJ (SFTC)-01, West THC, Delhi/18.11.2017 -: 9 :- witness did not depose any against accused person.
7. PW3 is Ct. Hansraj who has taken the accused to DDU hospital for medical examination and has proved the exhibits handed over to him by the doctor as Ex. PW3/A.
8. PW4 is Ct. Ajita. She has deposed to the effect that she joined the investigation alongwith IO and has arrested the accused persons vide arrest memo Ex. PW1/A to Ex. PW1E. She further deposed that accused Tuli @ Bably @ Jyoti was carrying one girl child in her arm. The prosecutrix submitted that this girl child is her daughter. The girl Kanika was taken into custody vide Ex. PW4/A.
9. PW5 is Ct.Uma. She made similar deposition to that of Ct. Ajita and further submitted that all five accused persons made disclosure statement as Ex. PW5/C to Ex PW5/G. This witness further proved all documents prepared in her presence viz. Arrest memo and personal search memo etc.
10. PW6 is ASI Hari Om. This witness has made similar deposition to that of PW5 Ct. Uma. He further submitted that accused Bably @ Jyoti @ Balli and Boby @ Tuli @ Pinky Verma were medically examined through lady constable at DDU Hospital. He further submitted that he brought the birth certificate of minor girl issued by doctor at Gulati Nursing Home and the name of mother in the Bhupesh Kumar ASJ (SFTC)-01, West THC, Delhi/18.11.2017 -: 10 :- register was mentioned as Ms.Jyoti w/o Mr.Sonu. The said document was brought on record as Ex. PW6/C and birth certificate as Ex. P11.
11. PW7 SI Sushma has conducted part investigation. She has deposed about the investigation carried out by her and identified all the documents prepared by her. She further submitted that after the sample was sent to FSL and minor child was sent to Paalna at Madipur/Mianwali Nagar, she relieved from the investigation and further investigation was marked to Insp. Kamlesh.
12. PW8 is Inspector Kamlesh. She has also carried out the investigation of the case. She has deposed qua investigation carried out by her and the document prepared by her. She further submitted that statement of witnesses was recorded and chargsheet was filed in the court. She further deposed that supplementary chargsheet was also prepared and filed against accused Naresh @ Sonu.
13. PW9 is Ct.Rajbir, who also joined the investigation at the time of arrest of accused persons and arrest memo of all accused persons bears his signature at point F. PE was closed.
14. Statement of accused persons was recorded under Section 313 Cr.P.C. wherein they have denied all the incriminating evidence came on record against them and further submitted that they have Bhupesh Kumar ASJ (SFTC)-01, West THC, Delhi/18.11.2017 -: 11 :- been falsely implicated in this case. All the accused persons except accused Bably @ Jyoti @ Balli have not examined any witness in his defence.
15. DW1 is HC Mohit Kumar who has proved the DD no. 2 dt. 21.2.2014 and DD no. 21 as Ex. DW1/A and Ex. DW1/B. During his cross examination by Ld. APP for State, the witness submitted that entries are not in his hand writing and he is not aware about said entries.
16. I have heard the arguments of Sh. Subhash Chauhan, Ld. Addl. PP for State as well as Sh. N.L.Sahai, ld. Counsel for accused Narender Kaushik and Ashwini Verma, Mr.Pradeep Sharma, ld. counsel for accused Bobby @ Tuli @ Pinky Verma and Jyoti @ Bably and Mr.Prasan Aggarwal, ld. Counsel for accused Harish @ Hari.
17. Ld. Addl. PP for State submitted that even though the prosecutrix has not supported the case of prosecution on certain points, but from the evidence of PW1, the prosecution has succeeded to prove accused Bobby @ Tuli @ Pinky Verma and coaccused Narender Kaushik have misappropriated the cash and jewelery items of prosecutrix which were handed over by prosecutrix to them. The prosecution has also proved that accused Jyoti @ Bably has refused Bhupesh Kumar ASJ (SFTC)-01, West THC, Delhi/18.11.2017 -: 12 :- to return the daughter of prosecutrix to her.
18. On the other hand, ld. Counsel for accused persons have submitted that PW1/prosecutrix has not supported the case of prosecution at all. In rebuttal to the contentions of ld. APP for State in respect to child of prosecutrix, it is submitted that the prosecutrix during her crossexamination has submitted that she herself had given her daughter to accused Jyoti @ Babli as she remained unwell. It has been further submitted that proseuction has failed to prove his case beyond reasonable doubt.
In respect to misappropriation of jewelery and cash amount, it is submitted that prosecutrix has denied to have made any such statement to police during her examinationinchief. On the basis of these submissions prayer has been made to acquit the accused persons by giving benefit of doubt.
19. Heard. Material perused.
20. The testimony of prosecutrix/PW1 has been scrutinized carefully. It is found that she has not supported the case of prosecution on material points viz. her allegation of rape, forcing her for prostitution, selling her etc. The witness was cross examined by Ld. APP for State with permission of the court. Even during cross examination of this witness/ prosecutrix by Ld. APP for State, she has not supported the version of prosecution on all important aspects. Ld. APP for State has confronted with her earlier statement Bhupesh Kumar ASJ (SFTC)-01, West THC, Delhi/18.11.2017 -: 13 :- Ex. PW1/G but despite this fact, the witness has not supported the version of prosecution.
21. In respect to the allegations of misappropriation of jewelery items of prosecutrix by accused persons Narender Kaushik and Boby @ Tuli @ Pinky Verma in her complaint, it is found that prosecutrix has denied to have made such statement to police.
22. In respect to allegation that accused Harish @ Hari, Ashwin Kumar Verma and Jyoti @ Bably @ Balli have taken away 1 ½ years old baby Kanika, daughter of prosecutrix from lawful guardianship of prosecutrix and confined her secretly at Hisar, it is found that prosecutrix during her crossexamination has submitted to the effect that since she was unwell and was not able to look after her daughter, she herself has given her daughter baby Kanika to accused Jyoti @ Bably. Further she has nowhere deposed that the accused persons have refused to hand over the daughter on her demand.
23. In the light of above discussion it is found that the prosecution has failed to bring on record clear, cogent and consistent evidence against the accused persons and it would not be safe to rely upon the evidence of prosecutrix. Hence, by giving benefit of doubt accused Narender Kaushik is acquitted for offence under section 376/323/506/406/370/34 of IPC and offence under Section 3,4,5 & Bhupesh Kumar ASJ (SFTC)-01, West THC, Delhi/18.11.2017 -: 14 :- 6 of Immoral Traffic (Prevention) Act; accused Harish @ Hari and Ashwani Kumar Verma are acquitted for offence under section 370/376/506/363/365/34 of IPC and offence under Section 3,4,5 & 6 of Immoral Traffic (Prevention) Act; accused Boby @ Tuli @ Pinky Verma acquitted for offence under section 376/109/323/506/406/370/34 of IPC and offence under Section 3,4,5 & 6 of Immoral Traffic (Prevention) Act; and accused Bably @ Jyoti @ Balli acquitted for offence under section 370/376/109/363/365/34 of IPC and offence under Section 3,4,5 & 6 of Immoral Traffic (Prevention) Act. As per provisions of 437A Cr.P.C., bail bonds of accused persons are extended for further six months on the same terms and conditions.
24. File be consigned to record room.
Announced in the open Court on (BHUPESH KUMAR) this 18th November, 2017. Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi Bhupesh Kumar ASJ (SFTC)-01, West THC, Delhi/18.11.2017