Delhi District Court
Ld Defence Counsel Has Further Relied ... vs State on 20 October, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 67/1
Unique Identification No.02404R0027782008
and U.I. No. 02404R0027802008
State
Versus
Anil Bhardwaj
Son of Jai Narain Bhardwaj
R/o House No. 77, near Water Tank village
Alipur, Delhi
FIR No. 222/2000
PS - Alipur
U/s. 306,363, 366,376 of IPC
Date of institution of the case: 23/10/2000
And
FIR No: 221/2000
PS: Nabi Karim
U/s: 309/306 of IPC
Date of institution of the case: 04/06/2001
Arguments heard on: 08/10/2012
Date of reservation of order: 08/10/2012
Date of Decision: 20/10/2012
SC No. 67/1 1/30
JUDGMENT
Case FIR no. 221/2000 u/s 309 of IPC was registered at PS Nabi Karim on the statement of accused Anil Bhardwaj.
During investigation, rough site plan was prepared, copy of ledger register of hotel Lal Haveli was taken into possession. Specimen handwriting/ signatures of accused were taken into possession. Specimen signatures containing in registration/admission form and Library issue register of deceased prosecutrix were taken into possession. One note book was also taken into possession. Stomach wash of deceased prosecutrix was also taken into possession, one attachi and ladies purse was also seized in this case. Medico Legal Sheet of deceased prosecutrix and accused Anil of RML hospital were collected. Death summary was prepared.
Accused Anil Bhardwaj was arrested, in this case on 28/07/07. Personal search was taken. Death report of prosecutrix was prepared. Identification statement of Ashok Kumar and Ram Chander were recorded. After postmortem, dead body was handed over to father of the deceased by preparing memo.
Case property was sent to FSL and FSL report was collected. On completion of investigation, charge sheet was filed u/s 309/306 of IPC against accused Anil on 11/04/01. Case was committed to the Court of Sessions on 02/06/2001 and was received on 04/06/01. Later on, another case FIR no. 222/2000 u/s 376 of IPC at PS Alipur was registered and this case FIR was clubbed with the same.
One DD no. 28A dated 23/07/00 was registered at PS Alipur, SC No. 67/1 2/30 according to which one Anil and prosecutrix, who were got admitted in RML hospital from hotel Lal Haveli, Nabi Karim, after consuming some poisonous substance, through Manager Govind. Case FIR no. 222/00 at PS Alipur was registered on the statement of father of deceased prosecutrix, MLC of injured Anil Bhardwaj from Hindu Rao hospital was collected. Postmortem examination report of prosecutrix was collected. School leaving certificate of prosecutrix was collected. Register of hotel Lal Haveli was collected, copies of the seizure memo of case FIR no. 221/2000 of PS Nabi Karim, was also collected. Blood sample of accused Anil Bhardwaj was taken into possession. Vaginal swab of prosecutrix was collected from Mortuary of RML hospital. FSL report was also collected and school record of prosecutrix was also collected.
On completion of investigation, chargesheet was filed u/s 306/363/366/376 of IPC against accused Anil Bhardwaj, which was committed to the Court of Sessions on 09/11/2000 and was received on 15/11/2000. On 20/11/07, charge u/s 363/366/417/306 of IPC was framed against accused Anil Bhardwaj, to which he pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW36 in all and on completion of evidence of prosecution, statement of accused has been recorded.
I have heard Ld APP for State and Ld defence counsel Sh. S.C. Buttan for accused and have gone through the TCR and evidence adduced and material placed on record.
Findings qua offence u/s 363, 366 & 417 of IPC To prove these offences, prosecution has examined PW6 Krishan Parsad, PW9 Rajender Saini from Mann Public School regarding the age of SC No. 67/1 3/30 deceased prosecutrix, PW12 Ashok Kumar, father of deceased, PW13 Hukum Singh grandfather of deceased.
FIR no. 222/2000 of PS Alipur, was recorded on the statement of Ashok Kumar, father of deceased prosecutrix, who told to the police that on 10/06/2000, at about 9.00 am, his daughter prosecutrix aged 17½ years, height 5 '2', complexion wheatish, slim body, who was wearing cream colour printed suit salwar and also wearing the sandle alongwith his neighbour Anil son of Jain Singh i.e. accused had gone to Sachdeva Public School for rechecking class XII paper and has not come till this time. He went at his home but could not found his daughter and suspected that his daughter prosecutrix had been enticed by accused Anil Bhardwaj with intent to marry with him. Complainant Ashok Kumar requested for search of his daughter and also requested to take legal action against accused Anil.
Before the Court, PW12 Ashok Kumar has stated that on 09/06/2000, his daughter i.e. prosecturix was aged about 17½ years old, date of birth 15/12/82, went to Sachdeva School for rechecking of her examination of 12th class from Alipur at about 9.00 am. His daughter did not come back to the house till 2.00 pm. He searched her in neighbourhood and also searched with his relatives, but he did not find her out. PW12 has further deposed that he came to know that one Anil i.e. accused was also missing. He consulted with his father and they decided to lodge the report on the next day and till then tried to search his daughter. On the next day i.e. 10/06/2000, he came to know that accused Anil had abducted her daughter after giving her false promises of marriage. So, in the evening, he got registered a case against the accused vide Ex.PW1/A. SC No. 67/1 4/30 In this respect, PW6 Sh Krishna Parasad has stated that he was driver by profession. Presently he is driving a tempo Tata 407 and earlier he used to drive the TSR. He does not remember the date, month and year of the incident. One day one girl and a boy boarded his TSR from Alipur for going to bypass, G.T. Karnal Road, Delhi. He identified accused Anil Bhardwaj in the court as a same person, who boarded his TSR. PW6 has further deposed that he dropped them on the intersection of the bypass itself. He does not remember the number of the TSR, which was driven by him those days. It was hired TSR. Police never met him nor he gave his statement to the police. As this witness did not support the case of prosecution, so he was cross examined by Ld APP wherein he has admitted that in those days he used to drive TSR no. DLR1RD0666 but he has failed to recollect the date of incident, whether was dated 09/06/2000. PW6 has further admitted that he was called at the PS and also made inquiries from him. His statement was recorded but again he failed to recollect as to whether he told the name of the that girl as prosecutrix.
Ld defence counsel has contended that in the cross examination PW6 has stated that accused and girl had boarded his TCR and there is nothing to suggest that girl was taken forcibly by the accused.
To prove offence u/s 363 of IPC, prosecution needs to prove the following ingredient :
1) who ever takes or entices any minor under the age of 18 years, if female, out of keeping of lawful guardianship of such minor, without the consent of such guardian.
So in view of above, prosecution has first to prove that accused had SC No. 67/1 5/30 taken or enticed prosecutrix, secondly that she was under the age of 18 years and thirdly she was taken or enticed out of keeping of lawful guardianship of such minor and fourthly that such taking was without the consent of such guardian.
So let us see now whether prosecutrix was under the age of 18 years i.e. whether she was 17½ years of age as claimed by her father or was above that age, at the time of incident. According to PW12, date of birth of prosecutrix was 15/12/82 and according to PW9 Rajinder Saini, accountant of Mann Public School , Holambi Khurd, Delhi, date of birth as recorded in admission and withdrawal register was 15/12/82. He has also produced the photocopy of marksheet of class Xth of prosecutrix in this respect, wherein also date of birth of prosecutrix was recorded as 15/12/82. Copy of admission/withdrawal register is Ex.PW9/B and photocopy of marksheet is Ex.PW9/C. Ld defence counsel has contended that date of birth of prosecutrix i.e. 15/12/82 was recorded in school certificate and in withdrawal/admission register,which was produced by PW9, he has admitted in cross examination that birth certificate of deceased prosecutrix is not available in their record, which was issued by MCD and he has voluntarily stated that prosecutrix was admitted in the School in 11th class on the basis of the mark Sheet and certificate issued by CBSE.
Ld defence counsel has further contended that to prove date of birth of deceased prosecutrix as 15/12/82, MCD certificate could have been collected or atleast the primary school record could have been collected, where the above said date of birth must have been recorded on the basis of date of birth certificate issued by MCD and in absence of the same, date of birth recorded in the school SC No. 67/1 6/30 record on the basis of previous record of 11th class is of no consequence and the same does not prove the date of birth of prosecutrix as 15/12/82.
Ld defence counsel has further contended that in the cross examination, PW12 has stated that he does not remember whether he got issued date of birth of prosecutrix in MCD, but he had noted his date of birth in a diary. Ld defence counsel has further contended that even this diary was not produced by PW12 to the police at any time nor at any time, in this Court. Hence from the statement of PW12, Ashok Kumar, prosecution has not been able to prove the date of birth of prosecutrix as 15/12/82 in any manner.
PW13 Sh. Hukum Singh has deposed that on 09/06/2000, his granddaughter aged about 17½ years, date of birth 15/12/82, went to Sachdeva Public School for rechecking of her examination of 12th class from Alipur at about 9.00 am. His daughter did not come back to the house till 2.00 pm. His son Ashok searched in the neighbourhood and also searched with his relatives, but they did not find her. PW13 Sh. Hukum Singh has further deposed that on 10/06/2000, his son Ashok got lodged a report that on 09/06/2000, accused Anil Kumar son of Jai Narain, had abducted his daughter after giving her false promises of marriage.
In the cross examination, PW13 has stated that he does not remember when he had gone for the admission of his granddaughter prosecutrix in the Morning Star School, Alipur, but she was five years old, at that time. He has further deposed that he had gone for the admission of prosecutrix in Maan Public School. He does not remember what was the age of prosecutrix at that time and he cannot admit or deny whether prosecutrix was 12 or 13 years at that time. SC No. 67/1 7/30
Ld defence counsel has contended that this witness also cannot be relied upon as he had made improvements regarding the age and date of birth of deceased prosecutrix. Ld defence Counsel has further contended that PW13 has been confronted with the fact that prosecutrix was 17½ years of age, date of birth 15/12/82, went to Sachdeva Public School for rechecking of her examination paper of 12th class from Alipur at about 9.00 am, which is not appearing in his statement Ex.PW13/DA and Ex.PW13/DB.
Ld defence counsel has further contended that PW13 Sh Hukum Singh has been confronted with the fact that he had gone to his duty on 09/06/2000 and when he came back from his duty, his son had told him that his granddaughter had gone to Sachdeva Public School. He did not visit Sachdeva School after this information at that time. They had searched prosecutrix on 09/06/2000 in the neighbourhood and also made inquiries from relatives and all these facts are not appearing in his statement Ex.PW13/DA and Ex.PW13/DB.
Ld defence counsel in support of his contentions has relied upon W.P. (Crl.) No. 1071/2007, wherein it has been held that "where a girl leaves her parents home of her own without enticing and without an allurance by anyone, offence u/s 363 of IPC is not made out.
Ld defence counsel has further relied upon Kulwant Singh Vs State (Govt. of NCT of Delhi), Criminal Appeal no. 715/2008, wherein it has been held that " if arbitrary date of birth was given of prosecutrix, at the time of her admission in the school and her actual date of birth is not known then no conclusion can be drawn that prosecutrix was below 16 years of age and benefit of doubt should given to the accused".
SC No. 67/1 8/30
Ld defence counsel has further contended that no date of birth certificate of prosecutrix has been produced nor any document has been produced before Court and it is not known on which basis, date of birth 15/12/82 was recorded in the school record. Ld defence counsel has further contended that no authentic proof of date of birth has been given, hence it is not proved that age of prosecutrix was about 17½ on 09/06/2000 or her date of birth was 15/12/82, at the time of incident.
Ld defence counsel has further relied upon Nand Kishore Vs State of Rajasthan and has further contended that from the deposition of witnesses, it is clear that prosecutrix was a willing party to go with the accused of her own and there is no evidence that she was taken away or enticed in any manner by the accused. He has further relied upon Criminal Appeal no. 152/2010, Sonu Vs State (NCT) of Delhi, wherein again it has been held that " if prosecutrix has herself accompanied the accused then it cannot be said that accused has taken her away from the protection of her lawful guardian within the meaning of section 361 of IPC."
Ld defence counsel has further contended that prosecutrix visited various places with the accused and had stayed with him for some time, hence it cannot be said or held that she was taken away or was enticed by the accused, in any manner.
Ld defence counsel has further relied upon Cr. Appeal no. 111/04 titled as Rajesh @ Magan Vs State, wherein it has been held that " A perusal of section 363 IPC would show that an offence is made out under section 363 of IPC only if a girl below 18 years of age is enticed out of keeping of the lawful SC No. 67/1 9/30 guardian or parents. In the present case evidence shows that girl had left the house of her parent of her own. She was already in love with the boy. She had been exchanging love letters and thereafter on finding a chance she had accompanied the boy and went to Haridwar, Rishikesh and other places. However, it is also proved that boy did not misuse this opportunity and did not have sex with her and she came back after visiting these places."
From the deposition of this witness, prosecution has not been able to prove that prosecutrix was aged about 17½ years nor has been able to prove his date of birth as 15/12/82. Even the prosecution has not been able to prove that prosecutrix was taken or enticed away by accused Anil Bhardwaj without the consent of her father PW12 Ashok Kumar because when PW12 Ashok Kumar got registered the FIR, he himself told to the police that prosecutrix had gone to Sachdeva Public School for rechecking of her paper with accused Anil Bhardwaj.
In respect of offence u/s 366 and 417 of IPC, PW3 Govind Ram has not supported the case of prosecution and has denied during the cross examination conducted by Ld APP that the girl, who was staying in his hotel alongwith accused had disclosed her name as prosecutrix daughter of Ashok Kumar r/o village Alipur, Delhi. PW3 has also denied that prosecutrix had told him that accused kidnapped her on false promise of marriage with her. PW3 has further denied that on the basis of said false promise, which was given by accused Anil, he had committed sexual intercourse with her. Hence in such circumstances, PW3 is not helpful to the case of prosecution in respect to these offences.
PW12 Ashok Kumar, father of deceased prosecutrix has stated that SC No. 67/1 10/30 when he alongwith his father and uncle Ram Chander had reached RML hospital at about 12.15 am night, they found accused and his daughter admitted there. His daughter was conscious and she told him that she does not want to die and they should save her. She further told that she wanted to come back to home, but Anil restrained her and provoked her to commit suicide by consuming poison. She further told that Anil made false promises of marriage with her. She further told that poison was purchased by Anil from Gorakhpur, UP and she also told that Anil had committed rape upon her several times and she also said that she does not want to marry with Anil and wants to go home.
Ld defence counsel has further contended that this part of the deposition of PW12 Ashok Kumar cannot be relied upon as in the cross examination, PW12 has admitted that there was discussion in the neighbourhood that his daughter was kidnapped by accused Anil Bhardwaj , so he though that accused Anil Bhardwaj had kidnapped his daughter with the purpose to marry with her.
Ld defence counsel has further contended that PW12 Ashok Kumar has also been confronted with Ex.PW12/A, where it is not recorded that he came to know that accused Anil had abducted his daughter after giving her false promise of marriage.
On the other hand, Ld APP has contended that from the cross examination of PW12, it is clear that on receiving information, he left his house at 10.30 pm and reached at RML hospital at 12.15 am night and has further stated that he was not restrained from visiting his daughter in emergency ward. Doctor was also present there. He remained with his daughter in the emergency ward till SC No. 67/1 11/30 4.00 pm, when she died. Ld APP has further contended that PW12 has denied that his daughter was unconscious at that time, so the dying declaration made by deceased prosecutrix before his father PW12 Ashok Kumar, cannot be disbelieved.
Similarly, PW13 Sh. Hukum Singh has also stated that he reached with his son Ashok Kumar and brother Ram Chander reached at RML hospital at about 12.15 am night, where his granddaughter, who was conscious, told them that she does not want to die and they should save her. She further told that she was harassed by accused Anil Bhardwaj and was raped by him and he forced her to marry with him and cheated her and made false promises of marriage with her. She also told that she was restrained by accused to come back to her house.
In the cross examination, PW13 Sh. Hukum Singh has been confronted with the fact that prosecutrix was conscious and she told that she does not want to die and they should save her with the statement Ex.PW13/DA and Ex.PW13/DB, wherein this fact is not appearing. Similarly, PW13 has also also been confronted with the factum of rape and the fact that accused forced her to marry with him and made false promise of marriage, which is not appearing in statement of Ex.PW13/DA and Ex.PW13/DB.
If it was so, then the same could have been recorded by the doctor, although it was the case of poison and it was the duty of the doctor to record the same or to call the IO atleast to record the same. Ld defence counsel has further contended that in further cross examination, PW13 Sh. Hukum Singh has deposed that doctor was also present there, when these facts were told by prosecutrix but he did not ask the doctor to record the same because he was upset, which is a cover up to provide a base to their improvements. SC No. 67/1 12/30
According to PW15 Dr. Manish Kumar, he had examined prosecutrix at about 12.30 am night and at that time, she was in semiconscious state. The patient told him that she had taken one tablet of some poison followed by restlessness and nausia . He examined the patient and she expired at about 4.30 am on 23/07/2000. Ld defence counsel has further contended that from this statement of PW15 Dr. Manish Kumar, it is clear that prosecutrix was in semi conscious state and she had not said anything as deposed by PW12 Ashok Kumar and PW13 Sh. Hukum Singh and further she did not disclose any fact about her rape and the fact that accused wanted to marry with him and made false promises to marry her. Had it been so, then prosecutrix could have told these facts to doctor also, which shows that PW12 Ashok Kumar and PW13 Hukum Singh have made improvements, in this respect to made a false case against the accused.
PW19 Amit Wason has also not supported the case of the prosecution in this respect and has denied the suggestion that he had made inquiries from the girl in RML hospital, who was in semi conscious condition and told that she married against the wishes of her family in a temple after fleeing away from her house. PW19 has further denied that prosecutrix had further told him that due to fear and with intent to commit suicide, she and Anil had consumed two tablets each of sulfas.
In view of the said confrontation with his previous statement Ex.PW19/A, it is clear that she had not disclosed any facts to PW19 Amit Wason and if at all, these facts were disclosed to PW19 then the same are contradictory with the facts as deposed by PW12 and PW13 before the Court and it is highly unbelievable that she was fully conscious and disclosed different facts to SC No. 67/1 13/30 different persons about the incident.
According to PW26 SI Rajbir Singh on receipt of DD no.3A, while he was posted at PS Nabi Karim at about 12.30 am, he alongwith Ct Ramphal reached at RML hospital, where he obtained MLC of Anil Kumar and prosecutrix, who were found admitted there. According to the opinion of doctor, both were unfit for statement. Thereafter, they came back to PS Nabi Karim. Again he received DD no.5A at about 5.02 am in the morning and he alongwith Ct Ram Phal reached RML Hospital , where he came to know that prosecutrix had died.
In the cross examination, PW26 has stated that prosecutrix was unfit for statement, hence he did not record her statement during his stay i the hospital and even none of the family member of boy and girl came there. PW26 reached at the hospital at about 2.15 am night after recording the information to be given to PS Alipur at about 1.50 am night. At that time, after his reaching, father of girl prosecutrix and her grandfather reached there.
This fact is contradictory to the deposition of PW12 and PW13, who have deposed before the court that they reached at RML hospital, at about 12.30 am night. So, both PW12 and PW13 cannot be relied upon being interested witnesses, whereas PW26 SI Rajbir Singh is IO and is an independent witness. According to IO, he left the hospital at about 4.00 am. prosecutrix had not talked with any person till 4.00 am. She was unfit for statement till that time. Father and grand father of prosecutrix had not given any statement to him till 4.00 am, which shows that no such dying declaration was made by prosecutrix to PW12 and PW13 as deposed by them before the Court, hence they cannot be relied upon. Further PW12 and PW13 have not deposed, in any manner that SI SC No. 67/1 14/30 Rajbir Singh was also present there. So this also raised doubts in the testimony of PW12 and PW13, in this respect.
PW30 SI Dayanand has deposed that on 23/07/2000, information was received at PS Alipur vide DD no.28A regarding admission of prosecutrix andAnil in RML hospital, after consuming poisonous substance and on receipt of same, he reached there. He came to know that prosecutrix and Anil were admitted from Hotel Savai Lal Haveli, Nabi Karim, Delhi after consuming the poison in the hotel. ASI Rajbir of PS Nabi Karim had already collected the MLC of prosecutrix and Anil, on which the doctor had opined both injured as unfit for statement.
The deposition of PW30 has corroborated with PW26 which shows that prosecutrix was unfit for statement, hence PW12 Ashok Kumar and PW13 Hukum Singh have made improvements intentionally, in this respect and deposed the same before the Court to implicate the accused.
According to MLC of deceased prosecutrix, she was unfit for statement on 1.30 am on 23/07/2000 and PW7 Sh Surender Singh, Medical Record Assistant from RML hospital had identified the writing and signatures of Dr. Punnet, which itself is contradictory with the deposition of PW12 Ashok Kumar and PW13 Sh. Hukum singh, who had deposed that they reached at RML hospital at about 12.15 or 12.30 am night and prosecturix told them certain facts because at 1.30 am night, she was unfit for statement and according to cross examination of PW26 SI Rajbir Singh till 4.00 am, she remained unfit for statement and this has also been corroborated by PW30 SI Dayanand, so the testimonies of PW12 and PW13 are not inspiring any confidence, in any manner.
SC No. 67/1 15/30
According to PW12 Ashok Kumar, he reached in RML hospital at about 12.15 am on receipt of a call on 22/07/2000 at about 10.15 pm from hotel Lal Haveli, Paharganj by Manager Govind, whereas PW3 Manager Govind has no where deposed that he had informed the father of prosecutrix, so it is not corroborating, in any manner that PW12 received an information about admission of prosecutrix in RML hospital from Manager Govind of Hotel Lal Haveli. Even PW12 Ashok Kumar has given the mobile phone number 9811134216 but it is not verified in any manner during investigation, as to whether this mobile phone was belonging to PW3 Govind Manager of hotel Lal Haveli.
According to the cross examination of PW26 SI Rajbir Singh, he on receipt of DD no.3A in PS Nabi Karim, he reached at RML hospital and found the prosecutrix admitted there, who was unfit for statement. During his stay in hospital, no one from the family of girl or boy had reached there . He reached again at the hospital at about 2/2.15 am night after recording the information to be given to PS Alipur at about 1.50 am night. At that time, after his reaching, father of prosecutrix and her grandfather reached there, which shows that PW12 Ashok Kumar and PW13 Hukum Singh reached at about 2.00 am night in the hospital and stayed there till 4.00 am. According to PW26 SI Rajbir Singh , prosecutrix had not talked with any person as she was unfit for statement and even PW12 and PW13 had not given any statement to him.
PW30 SI Dayanand, who reached there from PS Alipur has also stated that he also reached at RML hospital and came back to PS Alipur. In the PS, he came to know about the death of prosecutrix. So, to my mind, both PW12 and SC No. 67/1 16/30 PW13 have contradicted with PW26 SI Rajbir Singh regarding their reaching in RML hospital at about 12.30 am, whereas they had reached there at about 2.00 am night further the fact that prosecutrix had made any dying declaration to both of them and was conscious is not inspiring confidence as it is again contrary to the deposition of PW26, who have deposed that prosecutrix remained unfit for statement till her death.
According to MLC of prosecutrix, she was declared unfit for statement at about 1.30 am night and from the evidence brought on record, it is clear that PW12 Ashok Kumar and PW13 Hukum Singh reached there at about 2.00 am night. There is no opinion of any doctor that at about 2.00 am night or till the death of prosecutrix, she was fit for statement and was conscious. In such circumstances, prosecutrix could not have made any dying declaration being unfit for statement. Both PW12 Ashok Kumar and PW13 Hukum Singh have deposed about the same and it seems to be intentional improvement, which is rendering them unreliable about the facts as deposed by both of them as contents of dying declaration.
According to FIR Ex.PW1/A, which was recorded on the statement of PW12 Ashok Kumar it was within his knowledge that his daughter prosecutrix had gone to Sachdeva Public School for rechecking of his examination papers with accused Anil, so it cannot be said that accused Anil had enticed the prosecutrix or had taken her away out of lawful guardianship of PW12 Ashok Kumar.
The testimony of PW12 and PW13 are not inspiring any confidence regarding the date of birth of prosecutrix and that at the time of incident, she was SC No. 67/1 17/30 aged about 17½ years because the date of birth recorded in School is without any basis. Neither date of birth certificate has been produced before the court nor same could have been collected during investigation. Even it is not known on what basis at all, date of birth as deposed by the witnesses was recorded in the school record, so PW12 Ashok Kumar and PW13 Hukum Singh cannot be relied upon in this respect that at the time of incident, prosecutrix was aged about 17½ years and her date of birth was 15.12.82.
Nothing has been brought on record that accused had kidnapped or abducted or enticed the prosecutrix with intention to compel her to marry with him or that she may be forced or seduced for illicit intercourse. Although chargesheet was filed against accused u/s 376 of IPC but no charge was framed against him for offence u/s 376 of IPC.
It is well settled that where the girl leaves her father's protection knowing or having capacity to know, the full import of what she is doing, and voluntarily joins the accused person, the accused cannot be said to have taken away from the keeping of her lawful guardian. In this respect reference may be made to Vardharajan's Case AIR 1965 Supreme Court 942. It is well settled that a person is not bound to return girl to her father's custody when the girl, without any inducement on his part, left her home and came to him. It is to be shown that it was the accused who took some active steps by pursuation or otherwise to cause the girl to leave her home.
I further rely upon 2002 (2) Crimes 437 titled as Talla @ Cakkula Sampath Vs State of Andhra Pradesh, wherein it has been held that even if the prosecutrix is less then 18 years of age, her evidence suggested that she had SC No. 67/1 18/30 attained the age of discretion as on the date of offence and had left her parents house at her own accord and moved with accused at different places, then accused cannot be convicted u/s 363 of IPC. "
I further rely upon 1995 CRI. L.J. 3974 titled as Shyam and another Vs State of Maharashtra, wherein it is held that if prosecutrix had not put up any struggle or raising alaram while being taken away by accused and if prosecutrix is appearing to be willing party to go with accused by her own, then accused cannot be convicted for offence u/s 366 of IPC.
I also rely upon 1994 CRI. L.J. 2471 titled as Hira Lal Vs State of Haryana, wherein it has been held that if the prosecutrix moved with the accused for a fortnight without complaining to anyone that proves her to be consenting party, hence offence as alleged u/s 363 is not made out.
In view of the above discussion, prosecution has not been able to prove offence u/s 363/366/417 of IPC against accused, in any manner. Accordingly, accused is acquitted for the same.
Findings qua offence u/s 306 of IPC .
In this respect, PW3 Govind, Manager of hotel Lal Haveli has deposed that waiter Tulis Ram told that accused had told them that they had taken sulfas tablet. He immediately went in room, where accused alongwith girl was staying and he saw accused and girl were vomiting in the room, so they removed them to RML hospital in a maruti van. PW3 Govind has not supported the case of prosecution, so he has been cross examined by Ld APP. Even PW3 has not supported the fact that prosecutrix had told him that accused Anil had purchased SC No. 67/1 19/30 sulfas tablet from Gorakhpur and accused had pressurized her not to leave his company. PW3 has also denied the suggestion that prosecutrix had told her that accused Anil had compelled her again and again to consume sulfas tablets and on the compulsion of accused Anil, she had consumed two tablets of sulfas and Anil had taken only one tablet of sulfas.
PW3 has further denied that prosecutrix had told him that she wanted to live but due to compulsion of accused Anil, she had taken the sulfas tablet. PW3 has been confronted with the statement mark PW3/A, wherein all these facts have been recorded.
In such circumstances, PW3 is not helpful to prove offence u/s 306 of IPC, in any manner to the extent that accused Anil abetted prosecutrix to consume Sulfas tablet to commit suicide.
PW12 Ashok Kumar, father of prosecutrix has stated that on receipt of information on 22/07/12 at about 10.15 pm, they reached at hotel Lal Haveli, Paharganj and there Govind, Manager of the hotel told that accused Anil had given poison to his daughter , so he should reach at RML hospital.
PW2 has no where deposed before the Court that PW12 had come to him at any point of time and that he told to him that Anil had given poison to his daughter, so he should reach RML hospital immediately, so is an improvement made by PW12 to implicate the accused, hence he can not be relied upon.
PW12 Ashok Kumar has further deposed that they reached at RML hospital at about 12.15 am and found his daughter admitted there in conscious stage, who told her that she wanted to come back to house but Anil restrained her and provoked her to commit suicide by consuming poison and she further told SC No. 67/1 20/30 that Anil had made false promises of marriage with her. She further told that poison was purchased by Anil from Gorakhpur, UP.
This part of the statement of PW12 Ashok Kumar, father of deceased prosecutrix is in contradiction with the MLC of prosecutrix and also with the deposition of PW26 SI Rajbir Singh and PW30 SI Dayanand, who had deposed categorically before the Court that prosecutrix remained unfit for statement till her death, so her statement could not be recorded by PW26 from PS Nabi Karim.
PW12 Ashok Kumar has also been confronted with the fact that he received a call from hotel Lal Haveli. He reached there and there Manager Govind told him that accused Anil has given poison to her daughter, so he should reached RML, which is not appearing in his statement Ex.PW12/DA, Ex.PW12/DB, Ex.PW12/DC, so PW12 has made improvements intentionally against the accused, hence he cannot be relied upon.
PW13 Sh. Hukum Singh of deceased prosecutrix has also deposed the same facts as stated by PW12 Ashok Kumar but again he has been confronted with the statement Ex.PW13/DA, where these facts are not appearing. PW13 has also deposed that his granddaughter did not consume any poison but it was given by accused.
Ld defence counsel has contended that infact both accused and deceased were in love and deceased prosecutrix accompanied accused at her own and stayed with him at various places. Ld defence counsel has further contended that love letters in between accused and deceased has been placed on record, which are fortifying the fact that they were in love with each other and if they were in love then it seems to be impossible that accused Anil Bhardwaj SC No. 67/1 21/30 had provoked deceased prosecutrix to commit suicide. Ld defence counsel has further contended that it is an admitted fact that accused Anil Bhardwaj had also consumed Sulfas tablet for which he has also been admitted in RML hospital, where he was saved, so it cannot be said that accused Anil had abetted or provoked prosecutrix in any manner to consume sulfas tablet to end her life.
According to PW15 Dr. Manish Kumar, he examined prosecutrix at about 12.30 am night on 23/07/2000 in RML hospital, she was in semi conscious stage and told that she has taken one tablet of some poison followed by restlessness and nausia (feeling of vomiting).
Had prosecutrix was provoked to commit suicide by taking sulfas table by accused Anil Bhardwaj, she could have certainly disclosed the doctor at that time that she had taken poison at the instance of accused Anil but she had disclosed only that she had taken one tablet of poison following by restlessness and vomiting , which shows that she had consumed poison voluntarily to end her life.
Accused has denied the case of prosecution and has stated that he is innocent and has been falsely implicated in this case. Prosecutrix used to love him and therefore she had been sending love letters to him. She phoned him on 09/06/2000 and wanted to meet outside at a place as she had informed that she wants to go out of her parental house with him. He told her to inform her parents, but she told that incase her parents come to know about this, they would kill her. Since she was in deep love with him, he took her to outside and remained with her. However, he never misused her nor committed any rape upon her. On 22/07/2000, when he and prosecutrix were present in a room in a hotel at SC No. 67/1 22/30 Paharganj, prosecutrix wanted to have the glass of juice for which she ordered for him and for herself. Thereafter, he had gone to toilet and when he came back he found two glasses of juice on the table, while one glass was being consumed by prosecutrix and when he reached back from the toilet, he also took the juice and immediately thereafter prosecutrix and he started vomiting and loose motions. Prosecutrix also felt giddiness and he also felt giddiness and felt that he was not feeling well therefore, he called for the Manager from the hotel, who came over there and took them in the van. At that time, when prosecutrix was being shifted she was unconscious and after being shifted in the van, he also became unconscious and thereafter got senses in the hospital. He does not know who had mixed what substance in the juice. He came to know that prosecutrix had died and later on, on the false report lodged by the father and grandfather of Prosecutrix, he was falsely implicated, in this case. He had never kidnapped prosecutrix rather she had asked him to accompany her of her own. Prosecutrix had left her parental house of her own and she told him that she was major, at the time when she left the house. There was no compulsion from his side nor he impressed upon her to marry him. He never caused any disreputation to her or made any misrepresentation nor made any fraud nor ever induced her. He never instigated her for committing suicide. On the other hand, she was scared of her parents and had many times told him that in case she is caught or goes back to her parents house, she will be killed, which she never wanted.
In support of his contentions, Ld defence counsel has relied upon 2202 CPI L.J. 3322 titled as Bura Manohar Vs The State of A.P, wherein it has been held that "the case of prosecution in this case is that due to the acts of the SC No. 67/1 23/30 petitioner, the deceased felt humiliated and committed suicide. Act causing humiliation may be the offence, but if there is no material on record to show that there was 'abetment' as defined in Section 107, IPC for the deceased committing suicide, a charge under section 306 of IPC cannot be framed against the accused. In this case since there is no material on record to show that the petitioner committed any act of abetment as defined in Section 307, IPC for, the deceased committed suicide. Petitioner cannot be charged for an offence under section 306, IPC. Since there is prima facie material for other offences alleged against the petitioner, the entire chargesheet cannot be quashed."
Ld defence counsel has further relied upon AIR 2010 Supreme Court 327 titled as Gangula Mohan Reddy V. State of Andhra Pradesh, wherein it is held that :
18. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day to day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.
19. This Court in Chitresh Kumar Chopra V. State (Govt fo NCT of Delhi) 2009 (11) Scale 24, had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word "instigation" and "goading". The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straight jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts SC No. 67/1 24/30 and circumstances.
20. Abetment involves a mental process of instigation a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
21. The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.
According to postmortem report Ex.PW4/A, the deceased was brought at RML hospital on 23/07/2000 with history of vomiting and pain and she expired on 23/07/2000 at about 4.30 am without giving any statement to the police.
This part itself shows that no such dying declaration was made by deceased prosecutrix to her father PW12 Ashok Kumar or her grandfather PW13 Sh. Hukum Singh. Had she been in a position to give a statement then the same could have been recorded by doctor or IO, who were there in the hospital, during that period.
It has been opined that no definite opinion regarding cause of death can be given at this stage as viscera has been preserved and sealed for chemical analysis to detect the presence of any common poison.
Time since death is given as 7.00 hours. Postmortem was conducted SC No. 67/1 25/30 on 23/07/2012 at about 11.30 am and prosecutrix had died at about 4.30 am, which corroborates with each other.
It has already been discussed that PW12 Ashok Kumar and PW13 Hukum Singh cannot be relied upon regarding the alleged dying declaration made by prosecutrix to them about the alleged facts of the incident. The plea of accused is that juice was asked in the hotel room by the prosecutrix. He had gone to toilet and when he came back, he found that the prosecutrix was drinking the juice. He also consumed the same and they both started vomiting. It is also on record that accused Anil Bhardwaj was also admitted in RML hospital with the prosecutrix as both were removed by Manager Govind of of hotel Lal Haveli.
There is no evidence brought on record to the extent that accused Anil abetted the prosecutrix to consume the poison except the alleged dying declaration made by prosecutrix to PW12 Ashok Kumar and PW13 Hukum Singh, which has been disbelieved by the Court, whereas PW15 Dr. Manish Kumar had examined the prosecutrix at about 12.30 am night in RML hospital and at that time, she was in semi conscious state and she told him that she had taken one tablet of some poison followed by restlessness and nausia (feeling of vomiting). Had there been any abetment on the part accused Anil Bhardwaj for consumption of poison by the prosecutrix, then certainly she would have disclosed the same to the doctor at that time. The deposition of PW15 Dr. Manish Kumar shows that prosecutrix had taken one tablet of some poison at her own, which is corroborated with other facts brought on record that they both were in love and wanted to end their lives together.
In support of above, I rely upon Sohan Raj Sharma Vs. State of SC No. 67/1 26/30 Haryana III(2008) DLT (CRL.) 394(SC) , wherein it has been held that "In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceasedwife with cruelty is not enough."
I further reply upon Laxmi and Another Vs. State 2000(53) DRJ, wherein it has been held that "Abetment involves active complicity on the part of the abettor at a point of time prior to the actual commission of the offence and it is of the essence of the crime of abetment that the abettor should substantially assist towards the commission of the offence. In other words, in order to convict a person of abetting the commission of a crime, it is necessary to connect him with those steps in the transaction which are criminal. It is not the case of the prosecution that when the deceased had committed suicide, the accused were present at the place of incident. There is no material, direct or indirect, to show that the accused had either instigated or conspired or aided the deceased in committing the suicide at that time. And it could not be said that the accused persons had abetted the suicide. On the material available no offence punishable under Section306/34 IPC is made out against either of the accused."
It has been held in AIR 2002 SC 1998 titled as Sanju Vs State that "even if we accept the prosecution story that the appellant did tell the deceased that 'to go and die' that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mensrea, therefore, is necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mensrea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25th July 1998 ensued by quarrel. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and therefore it cannot be said that the abusive language, which had been used by the appellant on 25 July 1998 derived the deceased to SC No. 67/1 27/30 commit suicide. Suicide by the deceased on 27th July 1998 is not a proximate to the abusive language uttered by the appellant on 25 July 1998. The fact that the deceased committed suicide on 27 July 1998 would itself clearly point out that it is not a direct result of the quarrel taken place on 25th July 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below."
It has been held in Criminal Appeal No. 626/2008 titled as Sandy @ Ved Prakash & ors Vs State of the Hon'ble High Court of Delhi, decided on 19/02/2010 that :
"The answer to the aforesaid question can be found in the following observations of Supreme Court in the decision reported as Chitresh Kumar Chopra V. State (2009) 11 SCALE 24:
"Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone into action: provoke to action or reaction" (See: Concise Oxford English Dictionary); " to keep irritating or annoying somebody until he reacts" (See: Oxford Advanced Learner's Dictionary 7th Edition). Similarly "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter. As observed in Ramesh Kumar's case (supra), where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that :SC No. 67/1 28/30
(i) the accused kept on irritating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or willful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.
In the background of this legal position, we may advert to the case at hand. The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of selfrespect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for selfprotection or an escapism from intolerable self. (Emphasis Supplied).
In the decision reported as Gangula Mohan Reddy V State of AP 2010 (1) SCALE 1, the Supreme Court observed as under:
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
The intention of the Legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into SC No. 67/1 29/30 such a position that he committed suicide." (Emphasis Supplied).
A similar view was taken by Supreme Court in the decision reported as Sanju @ Sanjay Singh Senger V State of MP (2002) 5 SCC 371 wherein it was observed as under:
"The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or to incite. Presence of mens rea, therefore, is the necessary concomitant of instigation." (Emphasis Supplied).
The ratio of the aforenoted decisions is that in order to convict an accused for an offence punishable under Section 306 IPC, in respect of the act of instigation, it has to be proved by the prosecution that the accused had the "intention" to instigate the deceased to commit suicide.
In the instant case, can it be said that the rapists had the "intention" to instigate the deceased to commit suicide?
The answer to the aforesaid question is an emphatic "no" for the reason there is no material on the record wherefrom it could be inferred that the rapists raped the deceased with an intention to instigate her to commit suicide. Thus, we hold that in the facts of the instant case, the rapists of the accused cannot be held liable for the offence of having abetted the suicide of the deceased."
In view of the above, prosecution has not been able to prove offence u/s 306 of IPC against the accused Anil Bhardwaj, in any manner. Accordingly he is acquitted for the same.
Announced in Open Court on
dated 20th of October, 2012 (Virender Kumar Goyal)
Additional Sessions Judge
Fast Track Court
Rohini : Delhi
SC No. 67/1 30/30
SC No. 67/1 31/30