Delhi District Court
State vs 1. Murari on 28 January, 2011
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Vs 1. Murari
S/o Sh Moti Lal
R/o 24/40, Nangla Van,
Pashchat Agra, UP.
2. Savitri Devi
W/o Kailash Sharma
R/o J/91/1, Prem Nagar,
Lal Kuan, New Delhi (PO)
SC No. : 64/08
FIR No. : 337/08
PS : Sangam Vihar
U/S : 363/366/376 IPC
Date of institution : 04.10.2008
Date on which order was reserved : 28.01.2011
Date of decision : 28.01.2011
J U D G M E N T
Both the above accused were sent to face trial for offences U/Ss 363/366/376 IPC by SHO PS Sangam Vihar on allegations that on 17.06.08 the prosecutrix-S (the name and other personal details of the prosecutrix are not being disclosed herein because of the nature of the case) had gone missing from her house at about 12 Noon and one DD No. 8 was lodged with the local police at about 11.30 AM on 19.06.08 by his father. The formal FIR of this case U/S 363 IPC was registered by the police on 23.06.08 only on the SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 2 basis of a statement made by the father of the prosecutrix in which, while referring to the above DD dated 19.06.08, he had suspected the role of the accused Savitri (since PO) in the disappearance of her daughter.
2. The above accused Savitri was arrested by the police in this case on 30.06.08 and on her pointing out the prosecutrix-S was recovered from the residential house of the accused Murari in Village Nangla Van Pashchat, Agra, UP, on 02.07.08 and the accused Murari was also arrested by the police in this case from the Badarpur border, New Delhi on the same day. During investigation it was allegedly revealed to the police that after her kidnapping from Delhi by the accused Savitri, the prosecutrix was sold by the accused Savitri to one Pujari namely Shyam Lal and he in turn had sold her to some other person in Agra, U.P. and had forced her to marry with the accused Murari in a Mandir in Agra and the accused Murari had kept and confined the prosecutrix in his residential house in the above village in Agra, UP and had continuously raped her till she was recovered by the police. Some photographs of the alleged marriage between the prosecutrix and the accused Murari were also recovered by the police during investigation and are a part of the record and Sections 366 and 376 IPC were also added subsequently. The accused as well as the prosecutrix were got medically examined from AIIMS Hospital and the statement U/S 164 Cr.P.C of the prosecutrix was also got recorded on 03.07.08. The above third accused SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 3 namely Shyam Lal Pujari was also searched by the police, but could not be arrested and was subsequently declared to be a Proclaimed Offender and a supplementary chargesheet against him was also filed and vide order dated 27.05.09 of this court the same was consolidated with the main case.
3. A chargesheet for the above offences was filed against the accused Savitri and Murari before the court of Ld MM concerned on 27.09.08 and cognizance thereof was taken. Since the above offences were required to be tried by a Court of Sessions, the matter was committed to the Sessions Court on 29.09.08.
4. A prima facie case for offences punishable U/S 363/366/376 IPC against the accused Savitri and also a prima facie case for offences punishable U/S 366/376 IPC against the accused Murari was found to be made out by the Ld Predecessor of this court vide order dated 06.12.08 and separate charges for the aforesaid offences were also framed against them on the abovesaid date.
5. However, it is necessary to mention here that during the trial of the case the accused Savitri had also absconded from the court proceedings and she was also declared ' P O ' in this case vide order dated 02.02.10.
6. The prosecution in support of its case has examined total 19 witnesses on record (it is found that the SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 4 witnesses are only 18 though numbered upto 19 as no witness is found to be examined at serial no. 9) and their names and the purpose of examination etc. is being stated herein below :-
7. PW-1 Sh Satish Kumar, Ld MM had recorded the statement U/S 164 Cr.P.C of the prosecutrix on 03.07.08 while being the Link MM to the court of the concerned Ld MM having jurisdiction over PS Sangam Vihar and has proved the above statement on record as Ex. PW1/2 and the application moved by the IO for recording the said statement as Ex. PW1/1.
8. PW2 Sh Dashrath Sharma and PW3 Smt Meera Devi are the parents of the prosecutrix and they have deposed regarding the disappearance of their daughter/prosecutrix. PW2 has also proved on record his statement dated 23.06.08 made to the police, which is the basis of this FIR. The depositions made by these witnesses will be discussed and appreciated later on.
9. PW4 Dr Manish Goel had medically examined the accused Murari on 02.07.08 vide MLC Ex. PW4/A in AIIMS Hospital and had found him to be capable of performing sexual intercourse.
10. PW5 HC Dharamvir had recorded the above statement Ex. PW2/A of the complainant Sh Dashrath Sharma in PP Pul SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 5 Prahlad Pur, PS Sangam Vihar and had made endorsement Ex. PW5/A thereon and had got the case registered through Ct. Shiv Ram. He has stated that the investigation of the case was then transferred to ASI Satbir Singh and he had handed over the file to him. PW6 HC Jagan Nath was the MHC(M) of the PS at that time and with him the two pullandas and the sample seal of this case were deposited in the malkhana on 02.07.08 by ASI Satbir Singh vide entry at serial no. 3948. On 22.08.08 he had sent the same to FSL, Rohini vide RC No. 182/21/08 through Ct. Anil Kumar and on 04.12.08 he had received the same back with the report through Ct. Sampat. He has stated that so long as the exhibits remained with him, the same were not tampered with. PW7 Lady Ct. Asha is a witness of arrest of the accused Savitri on 30.06.08 from Prem Nagar, Lal Kuan, House NO. J-191 and has proved the arrest memo, personal search memo and the disclosure statement of the above accused as Ex. PW7/A, PW7/B and PW7/C respectively.
11. PW8 is the prosecutrix-S and she has deposed regarding the circumstances leading to her disappearance from her house in Delhi and her recovery from the house of the accused Murari in the above village in Agra, UP and her depositions will also be discussed and appreciated in the later part of this judgment.
12. PW10 Ct. Anil had taken the above exhibits of this case from the MHC(M) to FSL, Rohini on 22.08.08 on the SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 6 directions of the SHO and had handed over the receipt of deposit thereof to the MHC(M). He has also stated that the pullandas were not tampered with while the same were in his custody. PW11 Ct. Shiv Ram had merely taken the rukka of this case sent by HC Dharamvir/PW5 on 23.06.08 and got the case registered. PW12 HC Ved Prakash is the Duty Officer who had registered the FIR Ex. PW12/A of this case on the basis of the above rukka. PW13 Lady Ct. Poonam was called from the PS to PP Pul Prahlad Pur and had taken the prosecutrix to AIIMS Hospital on 02.07.08 for her medical examination. She was also handed over one sealed pullanda of blood in gauze and the sample seal by the doctor and she had handed over the same to the IO, who had also reached at the hospital, and she is a witness of the seizure memo Ex. PW13/A of the above pullanda by the IO. PW14 Ct. Ajit Singh was working as DD Writer in PP Pul Prahlad Pur on 19.06.08 when the complainant/PW2 Sh Dashrath Sharma had lodged the missing report of his daughter with him vide DD NO. 8 and he has proved on record a true copy of the above DD as Ex. PW14/A.
13. PW15 Ct. Sukhender Singh has stated that on 02.07.08 he had accompanied the ASI Satbir Singh, some public persons and one lady to Agra in search of the prosecutrix. He has also deposed regarding the recovery of the prosecutrix from the house of the accused Murari from the abovesaid village in Agra, UP and in the presence of the mother, brother and Bhabhi of the accused Murari and he SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 7 is also a witness of the recovery memo Ex. PW15/A of the prosecutrix. He has further stated that while returning back they had also arrested the accused Murari from Badarpur Border, New Delhi vide arrest memo Ex. PW15/B and had conducted his personal search vide memo Ex. PW15/C and the disclosure statement Ex. PW15/D of the accused Murari was also recorded and he is a witness to all the above documents. Then he had also accompanied the IO for the medical examination of the accused Murari and had also witnessed the seizure memo Ex. PW15/E of the pullanda, which was given to him by the doctor examining the accused Murari and which he had handed over to the IO.
14. PW16 ASI Satbir Singh is the IO of this case and he was assigned the investigation of the case after the registration of the FIR. He had arrested the accused Savitri on 30.06.08 vide arrest memo Ex. PW7/A, conducted her personal search vide memo Ex. PW7/B and recorded her disclosure statement Ex. PW7/C after her interrogation. He has also broadly deposed likewise PW15 Ct. Sukhender Singh regarding their visit to Agra on 02.07.08, the recovery of the prosecutrix from the house of accused Murari in the above village vide memo Ex. PW15/A, the arrest of accused Murari vide arrest memo Ex. PW15/B, his personal search vide memo Ex. PW15/C, the recording of his disclosure statement Ex. PW15/D and the medical examination of the accused Murari and the seizure of the pullanda given by the doctor examining him vide memo Ex. PW15/E. He has also SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 8 stated that the prosecutrix at the time of her recovery had also produced four photographs of her marriage and the same are Mark P1 to P4. He has also deposed regarding seizure of the other pullanda pertaining to the prosecutrix, which was handed over to him by Lady Ct. Poonam/PW13, vide seizure memo Ex. PW13/A. He has further stated that besides the medical examination of the accused Murari vide MLC Ex. PW4/A and of the prosecutrix vide MLC Mark A, he had got conducted the bone age X-ray of the prosecutrix in which she was opined to be between 14.9 to 16.4 years vide report Ex. Mark B. He had then also got recorded the statement U/S 164 Cr.P.C of the prosecutrix Ex. PW8/A on 03.07.08, sent the exhibits to FSL on 22.08.08 and had recorded the statements of the witnesses and had prepared the chargesheet. He had also subsequently got the accused Shyam Lal Pujari declared ' P O ' from the court and had filed on record the FSL reports Ex. PW18/A and PW18/B of their examination vide his application Ex. PW16/A.
15. PW17 Dr Bharti Singhal had proved on record the bone age examination report of the prosecutrix as Ex. PW17/A as she was able to identify the handwriting and signatures of Dr Chitranjan, SR/Radiologist of AIIMS, who had prepared the same and had since left the hospital and his present whereabouts were not known, on the basis of the record. She has stated that as per the above report the prosecutrix was found to be aged between 14.9 to 16.4 years.
SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 9
16. PW18 Dr Rajinder Kumar of FSL, Rohini has proved on record his biological and serological reports regarding the above exhibits of this case as Ex. PW18/A and PW18/B.
17. PW19 Dr Prerna of AIIMS Hospital had examined the prosecutrix vide MLC Ex. PW19/A with history of being kidnapped 15 days back on some false pretext and of forcible marriage to some stranger in Agra.
18. All the incriminating evidence led by the prosecution on record was put to the accused in his statement U/S 313 Cr.P.C. and same was denied by him to be incorrect. Accused has stated that the co-accused Savitri was not even known to him prior to this case. However, he has admitted the recovery of prosecutrix from his house in the above village in Agra while stating that prosecutrix had married him with her own free will and consent and she was introduced to him by one old man appearing in the above photograph Mark P4. It was stated by him that the above old man had introduced the prosecutrix to him as his niece and the old man had come to their residence prior to their marriage and the prosecutrix was brought by him in a temple on the day of marriage. The accused had gone to the temple with his mother, brother and his wife and a niece and the marriage of the accused and the prosecutrix was solemnized in the temple in the presence of all the above and one other lady was also present with the above old man at the said time SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 10 of marriage and that lady is also appearing in the above photograph Ex. P4. He has also claimed that he had paid a sum of Rs 24,000/- to the above 'Baba'/old man as a condition for the solemnization of the marriage as the 'Baba' had stated that the same was required in connection with the marriage. It is also claimed by him that prosecutrix was aged about 18 years at that time and she had married with and had physical relations with him with her own free will and consent. It was further claimed by him that he had handed over all the 12 photographs of their marriage, including the photographs pertaining to the seven pheras (saptapadi) to the IO but the IO had intentionally not filed the same on record and had falsely implicated him in this case at the instance of the family members of the prosecutrix, who had also subsequently influenced the prosecutrix. However, no defence evidence was led by the accused despite the fact that he had chosen to lead the same at the time of recording of his above statement.
19. Arguments were heard on behalf of the State as advanced by Sh S.K.Raghuvanshi, Ld Additional PP for the State and also on behalf of the accused Murari as advanced by Sh S.K. Saxena, Ld Amicus Curiae. The evidence led by the prosecution on record has also been analysed.
20. As stated above, charge for the offence punishable U/S 363 IPC was not framed against the accused Murari and SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 11 charges against him were framed only for the offences punishable U/S 366/376 IPC. As far as the charge for the offence U/S 366 IPC framed against him is concerned, it is found that the same is not sustainable against the accused Murari. Section 366 IPC provides as under:
" Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid. "
21. A bare perusal of the provisions of the above section makes it clear that this section is only attracted when the offender is the person who had kidnapped or abducted any woman with the requisite intention, as prescribed thereunder, or if the offender by means of criminal intimidation or abuse of authority etc. induces any woman to go from any place with the requisite intent as stated therein. In the instance case the admitted case of the prosecution is that it is the accused Savitri (since PO) who was instrumental in the kidnapping of the prosecutrix and in taking her to Agra from Delhi and the accused Murari had no role to play in the kidnapping of the SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 12 prosecutrix as he had come into picture only in Agra when the prosecutrix was allegedly made to marry with him and was also kept confined and raped by him in his residential house in the above village at Agra, UP. Therefore, the charge for the offence U/S 366 IPC framed against the accused Murari is not sustainable.
22. Now coming to the charge for offence U/S 376 IPC framed against the above accused, it is observed that the first requirement before this court is the determination of the age of the prosecutrix because in terms of the provisions of Section 375 IPC, which defines the offence of rape, the consent of the prosecutrix is relevant in case she is found to be above 16 years of age. However, in case she falls below the age of 16 years then even her consent cannot make any difference and the act of having sexual intercourse with her will amount to rape, whether it is with or without her consent.
23. When the evidence led by the prosecution on record is appreciated on this aspect, it is found that in the DD No. 8 Ex. PW14/A the age of the prosecutrix has been recorded to be 13/14 years and in the statement Ex. PW2/A of his father/complainant Sh Dashrath Sharma, which is the basis of this FIR, her age has been stated to be 13 years only. During their depositions made in this court both the parents of the prosecutrix, i.e her father/complainant Sh Dashrath Sharma/PW2 and her mother Smt Meera Devi/PW3, are SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 13 silent with regard to the age of the prosecutrix and they both had even not made any depositions with regard to her qualification or schooling etc. The prosecutrix/PW8 had claimed herself to be aged about 17 years while recording her statement in this court on 03.09.09 and going by that her age comes to be just above 16 years as the incident of kidnapping in this case is dated 17.06.08 and the alleged offence of rape had taken place after about 2-3 days thereof and till the recovery of the prosecutrix on 02.07.08. During her cross examination she had also stated that she had attended the school only upto 1st or 2nd class. In her MLC dated 02.07.08 Ex. PW19/A her age has been recorded to be 16 years. Thus, it is clear from the above that on the basis of the above evidence brought on record by the prosecution it is very difficult to determine the exact age of the prosecutrix on the alleged day of commission of the offence and it is very hard to establish if she was below or above the age of 16 years on the day of the commission of the alleged offence of rape as admittedly there is no documentary evidence pertaining to her age in the form of any school leaving certificate or birth certificate etc.
24. During the investigation of this case the prosecutrix was also subjected to bone age X-ray examination for determining her age on the basis of the above examination and in the report of the radiologist Dr Chitranjan Ex. PW17/A, which stands duly proved on record SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 14 from the depositions made by PW17 Dr Bharti Singhal as she was able to identify the handwriting and signatures of the above Dr Chitranjan, her age has been opined to be between 14.9 to 16.4 years. Though it is well settled that the determination of age on the basis of bone age examination is never conclusive and such evidence is a very weak piece of evidence to be relied upon for determination of the age of a person, but in the absence of there being any other concrete evidence being on record regarding the age of the prosecutrix this court is bound to rely upon the above report in its attempt to determine the exact or approximate age of the prosecutrix and particularly to find out if she was below or above the age of 16 years on the day of commission of the alleged offence of rape.
25. It has also been held in a number of judicial pronouncements that there is always a margin of error in age ascertained by a radiological test and this margin can be upto 1½ or 2 years on either side. Reference in this regard can also be made to the case cited in 1982 SC 1297. However, in the rules framed for and applicable in Delhi under the Juvenile Justice Act, the margin of error in the report of the radiologist for determining the bone age of a juvenile has been prescribed to be one year on either side. Though the above rules have strictly got no applicability for determining the age of a prosecutrix in such like case, but on an analogy the above margin of error of one year on either side can be safely applied for determining the age SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 15 of the prosecutrix in a criminal case also and going by that analogy the bone age of the prosecutrix can be said to be between 13.9 to 17.4 years. It is found that even if the above margin of error of one year is ignored or not considered for a moment, then also on the basis of the above bone age report Ex. PW17/A, which opines her to be between 14.9 to 16.4 years, she can be safely said to be above 16 years of age because it is well settled that the above document is to be considered and interpreted in a manner which is favourable to the accused and going by that principle the age of the prosecutrix can be stated to be 16.4 years, i.e on the higher side of the above age prescribed in Ex. PW17/A. Therefore, in view of the above, it is held that in the absence of there being any documentary evidence on record regarding the age of the prosecutrix, she is held to be aged above 16 years on the day of commission of the alleged offences on the basis of the evidence produced by the prosecution on the record. Hence, the consent of the prosecutrix for the alleged acts of sexual intercourse between her and the accused Murari, if any, assumes significance and if it is found from the evidence led on record that she herself had willingly consented for such acts then the accused cannot be held guilty for the offence of rape. However, if it is found that the consent of the prosecutrix was vitiated or was not a free consent and was obtained under some threats, fraud or unsoundness of mind etc., as prescribed U/S 375 IPC, then the accused can still be held guilty for the abovesaid SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 16 offence.
26. When the evidence led by the prosecution on record is appreciated to find out if the prosecutrix had established the physical relations with the accused with her own free consent or if any such sexual relations with them were established or not, it is observed that the most material witness of the prosecution story in this regard is the prosecutrix herself and she in her statement has deposed about the circumstances in which she was taken outside her residence in Delhi to Agra and was made to put a mala around the neck of the accused under the name of marriage in a temple. She has stated that after the above ceremony she was taken by the accused Murari to his house at Agra itself and there she was raped by him against her wishes and she was kept in his house by the accused Murari for about 15 days against her wishes and was repeatedly raped. Her above depositions to the extent of establishment of sexual relations between her and the accused Murari are also corroborated by the contents of her MLC Ex. PW19/A wherein her hymen was found broken at the time of her medical examination on 02.07.08 and even the accused Murari during the course of his statement U/S 313 Cr.P.C has not denied the physical relations between him and the prosecutrix as his case is that he was duly married with her and the physical relations were established between them with the free consent of the prosecutrix. The answers given by the accused in his statement U/S 313 Cr.P.C can be SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 17 considered by this court as it is also now well settled that these answers have got a practical use for the criminal courts for properly appreciating the evidence led on record and in arriving at a correct conclusion. Therefore, the physical relations between the prosecutrix and the accused since after the disappearance of the prosecutrix from Delhi on 17.06.08 and her recovery from Agra on 02.07.08 have been duly proved on record. Now coming to the aspect if the same were established with the consent of the prosecutrix or not, it is observed that the depositions made by the prosecutrix as well as her father/PW2 and her mother/PW3 regarding the circumstances leading to her disappearance or alleged kidnapping by the accused Savitri (since PO) are not found to be convincing and trustworthy. The prosecutrix during her statement made in this court has stated that on the day of incident at around 12 noon she had gone to get water from a water tap near the road where the above accused Savitri was present and had given her a 'Samosa' to eat. She has also stated that after eating the above 'Samosa' she became unconscious and later on the accused Savitri had handed over her to an old 'Baba' just ahead of the Kaya Maya Mandir and that old 'Baba' had taken her to his house in Agra in an auto rickshaw and had handed over to one other 'Baba' who was present there. Even her father/PW2 and her mother/PW3 have both deposed regarding the disappearance of the prosecutrix on the date of incident when she had gone to fetch water and they both have also stated that the prosecutrix was SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 18 given a 'Samosa' to eat by the accused Savitri who was present there and then she was handed over by the accused Savitri to a 'Baba' who had further sold her at Agra for Rs 30,000/-. However, the prosecutrix was duly confronted by the Ld defence counsel during her cross examination with her previous statement U/S 164 Cr.P.C Ex. PW8/A recorded during the investigation wherein no such depositions regarding her going for fetching water, giving of 'Samosa' for eating by accused Savitri and taking her near the above Kaya Maya Mandir by the accused Savitri are found to be recorded. Even PW2 was also confronted in this regard with his previous statement Ex. PW2/A as no such depositions are also found to be made in his above statement, which is the basis of this FIR. PW3 has also duly admitted during her cross examination that no such depositions were made by her when she was earlier examined by the police in relation to this incident and she even went to deny the making of any statement to the police while stating that the police had got some papers thumb marked from her forcibly. The allegations of selling of their daughter for Rs 30,000/- by the accused Savitri at Agra were also found absent in the previous statement Ex. PW2/A of the complainant and were also not admittedly stated by PW3 to the IO and they were also duly confronted in this regard. In view of the above, the story being brought on record by the above three witnesses regarding the giving of a 'Samosa' by the accused Savitri (since PO) to the prosecutrix, which allegedly contained some sedative or intoxicating substance, can only SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 19 be stated to be an afterthought and the above depositions of these witnesses only amount to improvements and cannot be believed and are liable to be discarded.
27. Further though the accused Murari has nothing to do with the alleged offence of kidnapping of the prosecutrix because it is the accused Savitri (since PO) who was charged for the said offence, but the evidence led by the prosecution on record regarding the circumstances in which the prosecutrix was allegedly kidnapped by the accused Savitri has certainly to be considered for arriving at any logical conclusion regarding the trustworthiness of the prosecution story. The father of the prosecutrix/PW1 in his statement has nowhere stated as to how the above accused Savitri was known to them, but the depositions of the mother of the prosecutrix/PW3 clearly suggest that accused Savitri was previously well known to them and she had also stated that the above accused used to ask them to marry their daughter, i.e the prosecutrix, but they had refused to her proposals. She has also stated that the prosecutrix was taken forcibly by the accused Savitri when in their absence she had gone to fetch water. During her examination on record the above statement U/S 164 Cr.P.C of the prosecutrix has also been proved on the record by the prosecution itself wherein she claims that when she was fetching water at her house, the accused Savitri, who was their neighbour, had come to her and had asked her to go with her and on her refusal she had forcibly taken her to SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 20 Sangam Vihar, where the prosecutrix was allegedly handed over to some old ' B aba ' . The depositions made by PW3 about giving of some ' S amosa ' containing some sedative/ intoxicating substance by the accused Savitri to the prosecutrix and those about taking the prosecutrix forcibly with her are in itself contrary depositions and for the similar reasons the stand of the prosecutrix in her above two statements is also found to be self contradictory. Again in her cross examination the prosecutrix also states that some other persons including women and children were also having water from the tap at that time, i.e when she was allegedly given a ' S amosa ' by the accused Savitri to eat, but though the above persons were also from her neighbourhood but she had not been able to tell their names. It is just not believable that she can be administered some intoxicating substance in a ' S amosa ' or can be forcibly taken by the accused Savitri, as claimed above, in the presence of a number of persons there at the relevant time. Again, though she has also claimed that she was first handed over to one ' B aba ' at Delhi and then that ' Baba ' had taken her to Agra in an auto rickshaw. On being questioned by Ld defence counsel during her cross examination she has also stated that she was not conscious at the time when she was handed over by the accused Savitri to a ' Baba ' in Delhi and she was told by someone else that Savitri had first handed over her to a ' B aba ' near Kaya Maya Mandir. No source of her alleged knowledge of the above fact, which can be legally admissible in evidence and SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 21 can be acted upon, has been brought on record by the prosecution. Again it also just cannot be believed that alleged ' B aba ' will take her to Agra in an auto rickshaw and not in any bus or train etc. and that too when she was not fully conscious, because during her cross examination she claims to have regained her full consciousness only after reaching Agra.
28. Again on further appreciation of the prosecution evidence it is also found that the story being put forward by the prosecution with regard to the alleged forcible marriage of the prosecutrix with the accused Murari and her rape is also not convincing. The prosecutrix is the sole witness to depose with regard to the above facts as no other witness of these facts has been produced by the prosecution on record. The prosecutrix claims in her statement made in the court that after being kept for one night at the house of another ' B aba ' at Agra, she was taken to a temple at Agra on next day and the accused Murari was asked to put a ' m ala ' around her neck in the name of marriage. She also states that thereafter she was taken by the accused Murari to his house in Agra itself and there she was raped against her wishes. She has further stated that she was kept by the accused Murari in her house for about 15 days against her wishes and was repeatedly raped there till she was recovered by the police. During her cross examination she further went on to state that when she had reached Agra it was around 10 PM and the house SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 22 of the above ' B aba ' was situated in a residential area and the shops were also open at that time and the people were passing by the road. However, she admits that she had not raised any hue and cry on reaching Agra as she states that she was threatened by the ' B aba ' to be killed in case she made any noise. She also admits that on the next day when she was taken to the temple it was around 11 AM and they had gone on foot and even at that time she did not meet any policemen or traffic warden on their way to the temple. She further states that she did not raise any hue and cry while on their way to the temple and she had sought to justify her above stand by volunteering that she could not gather the strength to raise hue and cry as she was threatened by the ' Baba ' . She further went on to admit during her cross examination that when the police had reached the house of accused Murari for her recovery, the family members of accused Murari were present in the house. Though there is no doubt with regard to the fact that the sole testimony of a prosecutrix can be made to be the basis of conviction of an accused and can be relied and acted upon without any corroboration, but is also well settled that such a testimony of the prosecutrix has to be a consistent statement and it should inspire confidence. When the testimony of the prosecutrix in this case is appreciated in entirety, as discussed herein above, it is observed that the same do not inspire any confidence and it will be very risky to believe and to act upon the same for convicting the accused Murari. She had spent about 15 days in the SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 23 house of the accused Murari after she was allegedly forced to marry the accused Murari by putting a garland around her neck and during this period she had also established physical relations with him. There is nothing to show on record that the establishment of the above physical relations with her and accused Murari was the result of any fraud or threats etc. because she no where states during her examination in this court that either the accused Murari or any other member of his family had ever extended any threats to her for putting a garland by the accused Murari in her neck or for having physical relations with her during her stay in their house or any fraud was practiced upon her. Even the alleged ' B aba ' who had extended such threats had not gone to reside with her in the house of accused Murari and he had nowhere been present with the prosecutrix after the alleged marriage in the above temple. The accused Murari was residing in his house with his all family members and they were also present when the Delhi Police had arrived at their house to recover the prosecutrix. Even the IO admits this fact during his cross examination when he admits that 2-3 ladies were also present in the above house at the time of recovery of the prosecutrix. The IO/PW16 ASI Satbir Singh has not recorded the statement of even any neighbour of the accused Murari with regard to the circumstances under which the prosecutrix was found residing in the house of accused Murari and in the absence thereof the mere bald depositions made by the prosecutrix during her cross examination that SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 24 she was not allowed to leave the house and had no access to the neighbours or a resident of the locality during her stay in the house of the accused Murari cannot be given much weight. Moreover, it is the admitted case of the prosecution that even the accused Murari was not present in his house when the prosecutrix was recovered from his house at Agra because according to the prosecution the accused Murari was arrested from Badarpur Border on the same day on which the prosecutrix was recovered from her house, i.e 02.07.08. Hence, the evidence and the circumstances brought on record negate any threats being administered or any force being applied upon the prosecutrix to seek her consent for the physical relations between her and the accused Murari.
29. It is further observed that during the prosecution evidence four photographs of the alleged marriage by putting of garlands between the prosecutrix and the accused Murari have also been brought on record during the statement of IO/PW16 as P1 to P4 and these are the photographs of exchange of garlands between the prosecutrix and the accused Murari. It is not the case of the prosecution that the girl appearing in the above photographs is not the prosecutrix and a bare perusal of the above photographs is sufficient to show that the prosecutrix was happy at the time of solemnization of above garland ceremony. During the course of recording of the statement of the accused Murari U/S 313 Cr.P.C he has SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 25 stated that the prosecutrix was not even known to him prior to the above ceremony of the marriage and she was introduced to him as his niece by one ' B aba/old man' appearing at point A in the above photograph Ex. P4. He has also stated that even his mother, his brother, his brother' s wife and his niece were present at the time of solemnization of the above ceremony and brother' s wife (Bhabhi) and his niece are even present in the above photograph Ex. P4 along with one other lady who had come with the above ' B aba ' . He has also claimed that a complete marriage was solemnized between them, which included the ' saptapadi ' (seven pheras) also, and total 12 photographs of their marriage were taken, including the photographs of the ceremony of the ' s aptapadi ' and all these photographs were handed over to the IO but the IO had not intentionally filed the remaining photographs on the record. He has further claimed that the prosecutrix had married with him and also had physical relations with him with her free will and consent. Though in the absence of there being any proof of the performance of the ceremony of the ' saptapadi ' between the prosecutrix and the accused Murari, their alleged marriage cannot be said to be a valid and legal marriage, but the above photographs Ex. P1 to P4 negate the exercise of any apparent pressure or threats etc. on the prosecutrix to undergo the above ceremony and the only inference that can be drawn from the above photographs and the other evidence led by the prosecution on record is that the prosecutrix had undergone the above SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 26 ceremony of exchange of garlands with the accused Murari with her own will and consent and the sexual relations between her and the accused Murari were also established with her free consent.
30. Though during the course of her statement U/S 313 Cr.P.C. the accused Murari has also stated that he had paid an amount of Rs. 24,000/- to the above ' B aba ' as a condition for the solemnization of his marriage with the prosecutrix and on the basis of the same it is being argued by Ld. APP for the State that its substantiates the claim made by PW2 & PW3 that the prosecutrix was sold for consideration, but the above submissions of the accused Murari cannot be made to be the basis of his conviction for the offence of rape punishable U/S 376 IPC and moreover the accused has also clarified that the above amount was paid as a condition for the marriage as it was required in connection with the marriage.
31. Therefore, in view of the above discussion, I am of the considered opinion that the prosecution has failed to establish its charge for the offence punishable U/S 376 IPC as framed against the accused Murari as the evidence led by the prosecution on record is not sufficient to hold the accused guilty and to entail his conviction for the said offence. The accused Murari is, therefore, acquitted of the charges U/S 366/376 IPC framed against him. Let he be released from custody if not wanted to be detained in SC No. 64/08 State Vs Murari FIR NO. 337/08 PS: Sangam Vihar 27 any other case.
32. It is found that the bond U/S 437A Cr.P.C is yet to be furnished. Hence, the file be consigned to record room only after furnishing of the above bond by the accused.
Announced in the open
court on 28.01.2011 (M.K.NAGPAL)
ASJ/Spl. Judge NDPS
South & South East District
Saket Courts Complex
New Delhi
SC No. 64/08 State Vs Murari
FIR NO. 337/08
PS: Sangam Vihar