Delhi District Court
State vs . 1. Dalip Kumar on 31 August, 2009
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE04 (NORTH) : DELHI
Case ID Number 0240IR0463382005
Session Case No. 36/08
Assigned to Sessions 14.09.2005
Arguments concluded on 28.08.2009
Date of Order 31.08.2009
FIR No. 48/05
Police Station Lahori Gate
Under Section U/s 363/376/34 IPC
In the matter of:
State Vs. 1. Dalip Kumar
S/o Laxmi Prashad,
R/o N39C262, Jhuggi Sarai Pipal Tharan,
Adarsh Nagar, Delhi.
2. Laxmi Prashad,
S/o Chaudhary Prashad,
R/o N39C262, Jhuggi Sarai Pipal Tharan,
Adarsh Nagar, Delhi.
(Accused No.2 declared PO vide order dated 07.09.2005)
J U D G M E N T
1. The above named accused persons were booked by SHO PS Lahori Gate U/s 363/376/34 IPC with the allegations that on 07.01.2005 at about 12.30 p.m. accused Dalip Kumar in furtherance of his common intention with his father Laxmi Prasad (P.O.) had kidnapped Kumari Kavita (the prosecutrix and a minor) State Vs. Dalip Kumar Page No. 1 of pages 48 from Farash Khana out of keeping of her lawful guardian without their consent. Further on 08.01.2005, accused Dalip had taken the prosecutrix to village Shadpur, District Begu Sarai (Bihar) and there he repeatedly committed rape on her.
2. FACTUAL MATRIX: It is the case of the prosecution that on 04.02.2005, the complainant namely Mohan Bhai came to PS Lahori Gate and got recorded his statement to the effect that her minor daughter aged 13½ years, who used to sell vegetables alongwith him and his other family members including his soninlaw, on 07.01.2005 at about 12.30 p.m. went out to supply the green chillies to a shop did not come back and he was having a suspicion on a boy called Dalip, who used to sell Tomatoes in a Rehdi near their shop in Naya Baans behind her missing. He specifically alleged that her daughter was taken away by the said boy Dalip by alluring her. He made efforts to search them at his own but remained unsuccessful and ultimately he came to lodge the report. On the basis of said State Vs. Dalip Kumar Page No. 2 of pages 48 statement initially the FIR was registered U/s 363 IPC and the investigation was initiated and during investigation on 10.02.2005, the prosecutrix was got recovered from Begu Sarai Railway Station (Platform no.1) Bihar. She was taken for medical examination before that from her possession clothes of Dalip and her own clothes were seized by the police. The medical examination of the prosecutrix was got conducted by way of constituting a medical Board at Sadar Hospital Begu Sarai and the said examination was conducted on 11.02.2005 and since from the medical examination it was revealed that there was an evidence of sexual intercourse with the prosecutrix, so Section 376 IPC was added in the case. The prosecutrix was brought to Delhi by way of obtaining her transit remand. Her statement U/s 161 Cr.P.C. was recorded, where she alleged that in her kidnapping by the accused Dalip, Sh. Laxmi Prasad coaccused and the father of Dalip had also lend support to him, hence Section 34 was also added in the case. On 14.02.2005, the statement of prosecutrix was recorded U/s 164 Cr.P.C. wherein State Vs. Dalip Kumar Page No. 3 of pages 48 she made the allegations that on 07.01.2005 at around 11.30 p.m. when she was going to a Shop in Farash Khana to deliver Mirchi, accused Dalip called her and offered her to eat Chole Bhature. The accused was known to her for the last 34 months. She agreed and after eating the said Chole Bhature, she got hypnotized and was taken by the accused and kept in a room at Faras Khahan during the whole night and on the next day, his father Laxmi Prasad (accused no.2) took her alongwith accused Dalip to Old Railway Station and boarded her alongwith accused Dalip in a train for Bihar. Thereafter, the accused Dalip took her to his bua's house in Bihar, where she was kept for around 2022 days and there the accused Dalip established physical relations with her forcibly without her consent by extending threats to kill her family members. On 10.02.2005, her father came to Begu Sarai alongwith the police and got her freed from the clutches of accused Dalip. Then the accused Dalip was got arrested on 28.03.2005 from Pul Mithai at the instance of the prosecutrix. His disclosure statement was State Vs. Dalip Kumar Page No. 4 of pages 48 recorded in which he conceded that his father Laxmi Prasad had also helped him in kidnapping the girl. The medical examination of the accused was got conducted and was produced before the court. Efforts were made to arrest coaccused but he could not be arrested and ultimately after completing the process u/s 82& 83 Cr.P.C. he was declared a Proclaimed Offender. Thereafter, the accused Dalip Kumar was produced before the court by way of filing charge sheet against him.
3. After completing the committal proceeding, the case was sent to the Sessions for trial as the offence alleged is exclusively triable by the court of sessions.
4. After hearing the rival submissions of counsels for the parties, a charge U/s 363/376/34 IPC was framed against the accused Dalip Kumar to which he pleaded "not guilty" and claimed trial.
5. In its support, the prosecution has examined as many as 19 witnesses, out of them PW1, PW2, PW8, PW9, PW10, PW11, State Vs. Dalip Kumar Page No. 5 of pages 48 PW16 & PW18 are the formal/official witnesses and PW5, PW7, PW14 & PW19 are the medical/expert witnesses, as such they do not require elaborate discussion. The rest of the witnesses, i.e. PW3, PW4, PW6, PW12, PW13, PW15 & PW17 are material witnesses.
6. FORMAL WITNESSES: PW1 ASI Kishan Singh has deposed in his testimony that on 04.02.2005 at about 7.00 p.m. on the statement of one Mohan Bhai he registered FIR no.48/05, copy of the same is Ex.PW1/A. PW2 ASI Mithlesh Yadav confirmed that on 09.05.2005, she got the Judicial Custody remand of the accused Dalip Kumar extended by appearing before Ld. MM, Delhi.
PW8 HC Maha Singh confirmed that on 13.02.2005, he was MHC (M) at PS Lahore Gate where two cloth pullandas bearing seal of DS was deposited by Ct. Satender to which he deposited in the malkhana vide entry no. 2347, copy of the same is Ex.PW8/A. Further on 28.03.2005, SI Dinesh Kumar deposited State Vs. Dalip Kumar Page No. 6 of pages 48 personal search articles of accused Dalip Kumar. He also deposited blood sample along with sample seal and copy of seizure memo vide entry no. 2479 of Reg. no. 19, copy of the same is Ex.PW8/B. He further confirmed that on 24.05.2005 all the aforesaid articles deposited on 13.02.2005 and 28.03.2005 were sent to FSL, Rohini through Ct. Ram Kumar vide RC no. 09/21 (copy of entry in that regard is Ex.PW8/A1 & B1) and on 21.11.2005 two pullandas from FSL were deposited in the malkhana by Ct. Anoop Singh and the FSL result was handed over to IO, copy of entry in that regard is Ex.PW8/C. He also proved the Road Certificate 9/21 dated 24.05.2005 Ex. PW8/D. During cross examination he admitted that on 13.02.2005 signatures of SI Dinesh Kumar were not obtained in malkhana register. However he claimed that Ex.PW8/A & B were in his handwriting though he had not signed the said entries. He further conceded that the signatures of Ct. Ram Kumar and of Ct. Anup were not obtained in malkhana register on entry Ex.PW8/A1 & B1 State Vs. Dalip Kumar Page No. 7 of pages 48 and Ex.PW8/C respectively.
PW9 Brij SuKumar confirmed that on 28.03.2005, he was Duty Constable at Aruna Asaf Ali hospital, where Ct. Paras Nath brought the accused Dalip for medical examination. After medical examination the doctor concerned took the blood sample of the accused and sealed the same with the seal of CMO and the blood sample and sample seal were given to him to which he handed over to IO and the same were seized vide Seizure Memo Ex.PW9/A. During cross examination he admitted that he had not signed any document in token of having received the blood sample and sample seal. He also admitted that as per MLC mark P9A, the said articles were to be handed over to IO SI Dinesh Kumar and that there is no mention in it regarding the same having been handed over to him.
PW10 Lady Constable Mamta testified that on 10.02.2005, from the platform no.1A, Railway Station Beghu Sarai at the State Vs. Dalip Kumar Page No. 8 of pages 48 instance of secret informer the prosecutrix was recovered, who was sitting at the bench and she was identified by her father. She was wearing a suit salwar and her statement was recorded by SI Dinesh. She was carrying a polythene and a cloth bag containing clothes. She further confirmed that the polythene alongwith contents were converted into a cloth pullanda and was sealed with the seal of DS. Bag was also separately converted into a cloth pullanda and sealed with the seal of DS. The pullandas were seized vide seizure memo Ex.PW10/A. Thereafter, prosecutrix was got medically examined there and brought to Delhi on 13.02.2005. The witness could not identify the seized clothes.
During cross examination she stated that she was inquired by the IO on 09.02.2005 and her statement was recorded by him on 10.02.2005. She conceded that she had not mentioned in her statement about having left for Begu Sarai on 08.02.2005. She further stated that they had informed the local police in Begu Sarai on 09.02.2005 about their visit to that place. Perhaps it was PS State Vs. Dalip Kumar Page No. 9 of pages 48 Chandpur but she could not tell if Chandpur was in city Begu Sarai or outside. She admitted that there was no local police officer with them on 10.02.2005. She confirmed that prosecutrix was got medically examined at a Govt. Hospital on Sadar Road Begu Sarai but she did not mention the said fact in her statement to the IO.
PW11 Ct. Ram Kumar confirmed that on 24.05.2005, he received 3 pullandas from Malkhana of PS Lahore Gate and deposited them in FSL, Rohini vide RC no. 09/21.
PW16 Shri Vinod Yadav, Ld. MM confirmed that he recorded the statement of the prosecutrix Ex.PW4/A u/s 164 Cr.P.C upon moving of an application by IO Ex.PW16/A and he gave a certificate in respect of correctness of her statement from point B to B. He also proved the application for supply of copy of the statement to the IO Ex.PW16/B. PW18 Sub Registrar proved the birth certificate of the prosecutrix (copy of same is Ex.PW18/A) by producing the original register containing the birth record of female child namely Keser State Vs. Dalip Kumar Page No. 10 of pages 48 Ben Daughter of Mohan Bhai, Mother's name Smt. Bali Devi and as per record date of birth of child is 07.08.1991. Relevant entry in this regard is made at Sl No. 420 dated 07.08.1998 (copy of the same is Ex. PW18/A).
7. Medical/Expert witnesses: PW5 Dr. Gopal Mishra, a member of the Board constituted for medical examination of the prosecutrix, has testified that he prepared requisition slip for conducting the medical examination of prosecutrix Ex.PW5/A and got conducted her XRay for her age determination. His report in that regard is Ex.PW5/B and report of Medical Board is Ex.PW5/C. During cross examination he admitted that firstly prosecutrix was examined by Dr. Jyotshana, who advised the test for prosecutrix on the basis of which he prepared the requisition slip Ex.PW5/A. As per his opinion, the age of the prosecutrix was between 1517 years and as per the report Ex. PW5/C no force was used on the prosecutrix during course of sexual act and that State Vs. Dalip Kumar Page No. 11 of pages 48 she was used to sexual intercourse.
PW7 Dr. N K Chaudhary, an another member of Medical Board deputed for conducting medical examination of the prosecutrix, has proved the medical report Ex.PW5/C by identifying his signatures at point Z. He also proved the slip Ex.PW7/A regarding advise of XRay.
During cross examination he confirmed that on receipt of Vaginal swab for pathological examination in this case, he had examined the same. He admitted that the slides prepared were received by him and the mark of identification of prosecutrix and particulars of the case were mentioned in it. He also stated that he had written his findings regarding examination of the same on the requisition slip itself and noting in that regard had also been made in a separate register maintained in this regard. Thereafter, final report of the Board was prepared. He claimed that the final report alongwith all the connected documents were handed over to the Delhi Police Officials, however, the requisite slip or finding of PW7 State Vs. Dalip Kumar Page No. 12 of pages 48 has not been found placed in the record. He also stated that a mention was made in the report regarding nature of tests conducted and the results. Only the finding was mentioned in the register and not the complete details. He conceded that neither the register nor its copy containing the findings was given by him to the Delhi Police Official. He claimed that it was never asked for.
PW14 Dr. Anubha, who prepared the MLC bearing no. 2406/05 of accused Dalip, has proved her report on the same Ex. PW14/A. As per her report, the patient was brought by the police with the alleged history of committing sexual offence, so, he was referred to forensic expert for examination and for expert opinion as to capability of sexual intercourse.
PW19 Dr. Jyotsana, the third member of the medical board constituted for medical examination of the prosecutrix, has also proved the report Ex. PW5/C by identifying her signature at point Y of portion A to A and B to B of the said report.
8. Material witnesses: State Vs. Dalip Kumar Page No. 13 of pages 48 PW3 Kishore (brother in law of the prosecutrix) stated that he being a vegetable vendor sell vegetables at Naya Bans and his "Saali" (the prosecutrix) used to go with him for the same. On 07.01.2006 at about 12.30 pm she was kidnapped. Her age was 13½ years. At the time of her missing, she went to sell Mirchi. When she did not turn up, he tried to search her but could not succeed and as such he came back home. His father in law stated that he would file a case in that regard but complainant was lodged in this regard on 04.02.2006.
Since the said witness was not supporting the prosecution, so he was cross examined by Ld. Addl. PP for the State after taking permission. During cross examination he confirmed that the complaint was lodged on 04.02.2006 and his statement was also recorded on the said date. The accused Dalip Kumar used to sell tomatoes near his Thela. The accused was also missing since the same time when the prosecutrix was missing and he told the police that he suspected Dalip having lured her away. He confirmed that State Vs. Dalip Kumar Page No. 14 of pages 48 on his pointing out, accused was arrested on 28.03.2005 from Lahore Gate Chowk vide arrest memo Ex.PW3/A and Personal Search Memo Ex.PW3/B bearing his signatures at point X. Then his statement was recorded by the IO.
During cross examination by Defence counsel he stated that he came to know about accused Dalip 1½ years back. He denied the suggestion that his mother in law had taken loan from accused on two occasions i.e. Rs.12,000/ and Rs.10,000/ or that when the accused had asked for return of his money, his mother in law told him that she would return his money and also marry Kavita with him. He also denied the suggestion that his father in law had also approached house of accused with rista of Kavita. He also stated that the age of the prosecutrix was 14½ years at the time of recording of his statement. He claimed that his father gives computer training to other but he had studies till class IV. He also stated that his father in law plies rehri in Ahmedabad during Diwali season. He conceded that he was not aware about the date of birth State Vs. Dalip Kumar Page No. 15 of pages 48 of the prosecutrix and he had stated that he had disclosed her age as had been disclosed to him by his father in law. He confirmed that he used to sell vegetables from 6.00 a.m. to 10.30 a.m. and on 07.01.2005 prosecutrix had gone to deliver Mirch to a shopkeeper at about 12 noon in Frash Khana. He stated that the mandi at Naya Bans lasts only till 10.30 a.m. and by that time the feriwala used to go back and thereafter the shopkeepers open their shops but he could not confirm whether or not Dalip had left the mandi at 10 a.m on 07.01.2005. He denied that prosecutrix and the accused used to roam about with consent of their parents or that family of the accused and his in laws were on visiting terms to each others house or that Kavita often used to visit house of the accused. He also stated that they had searched for the prosecutrix after her missing but could not find her. He denied the suggestion that the prosecutrix had married the accused with the consent of her mother and was living with him at his native place as his wife or that prosecutrix had telephonic talks with her parents in that regard. He State Vs. Dalip Kumar Page No. 16 of pages 48 also denied that a false complaint was lodged with the police after many days. He stated that there was only one police officer with him when the accused was arrested and public persons had not collected at the spot at that time.
PW4, the prosecutrix and the most important witness has confirmed that on 07.01.2005 at about 12.30 pm, accused called her and took her to Lal Quila by luring her and made her eat Chole Bhature and thereafter she did not know what happened to her. On the next day, when she regained her consciousness, she found her at the Railway Station alongwith accused and his father and there she and accused were made to sit in a train. She further stated that thereafter accused threatened her and took her to the house of his Bua at Shahadpur, Bihar where he kept her under threats for 2022 days and forcibly made sexual relations with her. Accused used to threaten her and on 10.02.2005, he left her at Beghu Sarai Railway Station, where her father and police officials met her at about 11 a.m. From there she was taken to PS Begu Sarai and then after State Vs. Dalip Kumar Page No. 17 of pages 48 seeking permission, her father brought her to Delhi. She also stated that on 14.02.2005 her statement was recorded before a Magistrate. Witness correctly identified the thella and the clothes Ex.P1 & P2 respectively. She also identified two saries, one blouse and one peticot Ex.P3 (colly.) and stated that she was made to wear these clothes by the accused at Bihar. He further testified that accused had made "Sararik Galat Sambandh" with her. She also conceded that from Lal Quila, accused took her to his room in Faras Khana and kept her there for the night and in the next morning father of the accused took them to Railway Station. She also stated that she was got medically examined in Bihar. She confirmed that she was about 13½ years of age when accused took her.
During cross examination she stated that before coming to the court, his father, IO and his lawyer had told him what she had to say in the court. She confirmed that she had been selling vegetables with her mother ever since she was aged about 9 years State Vs. Dalip Kumar Page No. 18 of pages 48 and accused Dalip was running his thaiya at Naya Baans about 23 months prior to the date when he took her. She also confirmed that she had gone to the shop of one Farooq at Farash Khana for delivering Mirchi on the asking of his jija Kishore. She stated that police had recorded her statements twice or thrice but she could not tell if all his statements had been recorded in English or Hindi. She denied the claim that police had obtained her signatures on blank papers. She also stated that she had mentioned in her statement to the police that accused had made her to eat Chole Bhature and thereafter something happened to her and she did not know where he took her afterwards. In the statement mark P4B, this fact was not mentioned. She admitted that she had not mentioned in her statement to the police that accused used to threaten to kill her and her parents while they were in Bihar. However, she denied that she had married Dalip and was living with him as his wife at Bihar or that the accused had never threatened her. She also stated that she had mentioned in her statement to the police that on State Vs. Dalip Kumar Page No. 19 of pages 48 10.02.2005 accused had left her at Begu Sarai Railway Station but the said fact was not mentioned in the statement mark P4B. She claimed that she was taken to the hospital in Bihar only once i.e. on 11.02.2005 and they left Bihar for Delhi in the same evening. She conceded that during the course of her statement before the police and before Ld. Magistrate, she had not mentioned the name of the shopkeeper Farooq. She denied the claim of the accused that she was married to accused in a marriage ceremonies held in a temple in Begu Sarai on 16.01.2005 in the presence of family members of the accused. She also denied that she had sexual relations with accused Dalip before and after her marriage with him with her free consent. She denied the claim of the accused that on 19.01.2005, she alongwith Dalip had come to Delhi where Dalip had to appear before the court of Sh. Deepak Jagotra, Ld. ASJ or that they had stayed in Delhi till 22.01.2005, however, she conceded that accused had brought her to Delhi on 26.01.2005 but at that time she did not have any telephonic conversation with her father. She State Vs. Dalip Kumar Page No. 20 of pages 48 further conceded that they came to Delhi at about 8.00 a.m. and accused took her to Panipat at about 12.00 noon on the same day. She denied that she had been to Panipat alongwith the accused in October and November, 2004 or that this fact was in the knowledge of her father. She added that after staying overnight at Panipat, accused brought her to Delhi on the next day and they went back to Begu Sarai. She denied that she had accompanied the accused to Delhi and Panipat of her own free will or that she had visited Bakthiar Pur, near Patna and other nearby places with the accused being her wife.
PW6 Ct. Paras Nath confirmed that on 28.03.2005 at about 11.45 AM he was present at Lahori Gate Chowk alongwith SI Dinesh Sharma, Ct. Satinder, one Kishore and the informer. On the pointing out of the informer accused was arrested and his arrest memo Ex.PW3/A and personal search memo Ex.PW3/B were prepared. He further confirmed that accused was taken for medical examination at Aruna Asaf Ali hospital and his medical examination State Vs. Dalip Kumar Page No. 21 of pages 48 was got conducted there.
During cross examination, he claimed that he had mentioned in his statement to the IO that the accused had been pointed out by the informer but on confrontation with the statement Mark P6A, it was revealed that it was not so recorded there, rather, it is mentioned that accused was pointed out by Kishore. He conceded that the accused was apprehended between 11.45 a.m. and 12.00 noon and the Crowd had collected at the spot when accused was apprehended.
PW12 Ct. Satender also confirmed that the prosecutrix was recovered on 10.02.2005 from Platform no.1A, Railway Station Beghu Sarai while sitting on a bench. At that time SI Dinesh Sharma, Ct. Paras Nath and L/Ct. Mamta alongwith father of prosecutrix Mohan Bhai were accompanied with him. Thereafter, she was got medically examined. Then on 28.03.2005, accused was arrested from Pul Mithai at about 11.15 am vide arrest memo Ex.PW3/A and his personal search was conducted vide Ex.PW 3/B. State Vs. Dalip Kumar Page No. 22 of pages 48 Disclosure statement of accused Ex.PW12/A was also recorded. He also confirmed that at the time of recovery of prosecutrix at Begu Srai, she was having with her a white polythene and a clothe thella, which were seized alongwith the contents thereof vide seizure memo Ex.PW10/A. During cross examination he stated that the local police was informed regarding their purpose of visit to Begu Sarai, however, no local police officer was present with them, when they reached the Railway Station Begu Sarai, from where prosecutrix was recovered. PW12 could not tell whether or not he had mentioned in his statement to the IO that the girl was found sitting on bench at Platform no.1, Railway Station Begu Sarai or that if he had mentioned in his statement to the IO that the prosecutrix had informed them that accused Dalip had made her sit there or that he would be coming after some time. No information regarding the recovery of prosecutrix was given to the Station Master or RPF. He stated that father of the prosecutrix Mohan Bhai met them at about State Vs. Dalip Kumar Page No. 23 of pages 48 10 a.m. at Lahori Gate Chowk but he could not tell whether or not he had so stated in his statement to the IO. He conceded that the spot of apprehension of accused was a crowded place but despite request nobody joined the investigation.
PW13/WASI Dorothia confirmed that she sent the pullandas to FSL for examination and made efforts to arrest co accused Laxmi Prasad but he was untraceable and accordingly she got him declared PO from the court. Then she prepared the challan and filed it in the court.
PW15 Mohan Bhai (the complainant) confirmed that on 07.01.2005 her daughter was kidnapped at about 12 noon. He raised suspicion upon the accused as he also used to sell tomatoes on Rehri besides the thela of brother in law of the prosecutrix and accused was also missing from the same time from which the prosecuterix was missing. He tried to search for the prosecutrix and Dilip but to no avail and because of fear of defamation, he kept mum and did not make complaint to the police. Then on State Vs. Dalip Kumar Page No. 24 of pages 48 04.02.2005, he lodged the complaint at PS which was culminated into the FIR against the accused. On 05.02.2005, he handed over the copy of date of birth certificate of the prosecutrix and according to which her date of birth is 07.08.1991. Same was seized by the police vide Seizure Memo Ex.PW14/A. He also confirmed that on 08.02.2005, he alongwith the IO went to Bihar in search of her daughter and her daughter was recovered on 10.02.2005 from the Railway Station Beghu Sarai, Bihar on receipt of a secret information. Seizure memo in this regard is Ex.PW10/B. On 14.02.2005, she was brought back to Delhi and her statement u/s 164 Cr.P.C. was got recorded. He confirmed that his daughter was handed over to him vide memo Ex.PW14/B. During cross examination he denied that on 07.01.2005 he was in Delhi. He came to know about the missing of his daughter in the evening when his daughter did not return home. He denied that even prior to 07.01.2005 in November/December, 2004 his daughter had gone to village Begu Sarai with the accused with the State Vs. Dalip Kumar Page No. 25 of pages 48 consent of his family. He could not tell as to at whose shop his daughter had gone to deliver chillies 'Mirchi'. He admitted that on the birth certificate, the name of the child is mentioned as Keshar Ben and the name of the mother is Balvi ben and date of registration is 07.08.1991. However, he denied that this certificate is not pertaining to the prosecutrix and it has been forged by him to show his daughter as minor. He also denied that his daughter was major when she left home to marry with the accused or that he initially he did not lodge the FIR as he found the accused to be the appropriate man but subsequently he became greedy and that is why he lodged the FIR on 04.02.2005.
PW17 Insp. Dinesh Sharma confirmed that on 04.02.2005 copy of FIR no.48/05 was handed over to him by the Duty Officer and he initiated the investigation and accordingly he alongwith Ct. Satender and complainant went to the spot i.e. Naya Baans, Delhi, where he recorded the statements of witnesses. On 05.02.2005, complainant Mohan Bhai gave him the birth certificate (mark X) of State Vs. Dalip Kumar Page No. 26 of pages 48 the prosecutrix to which he seized vide memo Ex. PW14/A. On 08.02.2005, he alongwith Ct. Satender, Ct. Paras Nath, Lady Ct. Mamta and complainant went to Beghu Sarai and reached there on 09.02.2005. On 10.02.2005, on receipt of a secret information, prosecutrix was recovered from platform no.1, Beghu Sarai Railway Station, who was identified by the informer and the complainant. He proved the Recovery memo Ex.PW10/B, which bears his signature at point B. He confirmed that she was having one polythene and one cloth bag containing clothes belonging to her and the accused Dalip. They were seized vide memo Ex. PW10/A. Then he alongwith the complainant took the prosecutrix to Sadar Hospital, Begu Sarai for medical examination and she was got medically examined and he obtained her medical examination report Ex.PW 5/C. Then prosecutrix was produced before the Court of CJM, Begu Sarai and obtained the transit remand and prosecutrix was brought to Delhi. On 14.02.2005, the prosecutrix was produced for recording of her statement u/s 164 Cr.P.C. and upon moving of his State Vs. Dalip Kumar Page No. 27 of pages 48 application Ex.PW16/A her statement Ex. PW4/A was recorded. He collected the copy of statement of prosecutrix Ex.PW4/A upon moving of an application Ex.PW17/B. On 28.03.2005, when he alongwith Ct. Satender and Ct. Paras Nath was present at Lahori Gate in connection with investigation of this case, Kishore (son in law of the complainant) met them and in the meantime he received secret information that accused was available at Mithai Pul, where accused was apprehended on the pointing out of informer and Kishore. He correctly identified accused as the person apprehended by him on the pointing out of informer and Shri Kishore. He also confirmed that arrest memo Ex.PW3/A and personal search memo Ex.PW3/B of the accused were prepared. Disclosure statement Ex. PW12/A was also recorded. Accused was got medically examined vide MLC Ex. PW13/A at Aruna Asaf Ali Hospital. He seized the blood sample and sample seal vide memo Ex.PW9/A. He also recorded the statement of Duty Ct. Brij Sukumar and also recorded the statement of witness who joined State Vs. Dalip Kumar Page No. 28 of pages 48 the investigation with him. Then accused Dalip was produced before the court, who was sent to J/C. On 27.04.2005, the investigation was transferred to CAW Cell, North.
During cross examination he denied that accused was not arrested from Mithai Pul at the instance of Kishore.
9. It is also to be added that on 22.09.2008, FSL report Ex. PX and Ex. PY were tendered in the court by Ld. Addl. PP for the State.
10. After conclusion of prosecution evidence, the accused was examined U/s 313 Cr.P.C. wherein he forcefully denied the story of the prosecution while claiming innocence on the plea of false implication by the police. He specifically claimed that the he was lifted from outside the court when he was coming to surrender before the court. he had not allured or taken away the prosecutrix, rather she herself came to his rented accommodation and insisted for marriage. Despite of his best efforts to send her back, she did not agree, rather, she threatened him that she would commit State Vs. Dalip Kumar Page No. 29 of pages 48 suicide in case he would not accompany her.
11. I have heard the rival submissions made before me.
12. To constitute an offence u/s 363 IPC:
(i).The person kidnapped must be a minor or a person of unsound mind;
(ii).there must be taking or enticing of a minor or a person of unsound mind;
(iii).the taking or enticing must be from the keeping of a lawful guardians of a minor or person of unsound mind; and
(iv).the taking or enticing must be without the consent of such guardian.
The minor means under 16 years in the case of a male or under 18 years in the case of female. In the case of minor girls the section is attracted irrespective of the question whether she is married or unmarried. The offence of kidnapping consists solely of taking a minor from the keeping of her lawful guardian and no intention need be established.
The word "take" means to cause to go, to escort, or to get State Vs. Dalip Kumar Page No. 30 of pages 48 into possession. The taking need not be by force, actual or constructive.
The expression "enticing" in the section, involves that while the person kidnapped might have left the keeping of the lawful guardian willingly still the state of mind that brought about the willingness must have been induced or brought about in some way by the accused. It involves an idea of inducement by exciting hope or desire in the other.
A minor is not competent to give her consent to her taking because it is the consent of the guardian which is material. However, a minor is certainly competent to leave the protection of her guardian of her own accord.
13. Section 375 defines the offence of rape. Section 376 prescribes the punishment for the said offence.
Section 375 requires two essentials:
(1).Sexual intercourse with a woman by a man (2).Such sexual intercourse was under circumstances falling under any of the five clauses in the section. State Vs. Dalip Kumar Page No. 31 of pages 48
The depth of penetration is immaterial as far as the offence under Sec. 376 is concerned.
Partial penetration of the penis within the labia majora of the vulva or pudendum with or without emission of semen or even an attempt at penetration is quite sufficient for the purposes of the law. Thus, to constitute the offence the evidence of the lady doctor that there was rupture of the hymen and that there was injury inside the vagina, is sufficient.
To have sexual intercourse with a woman against her will or without her consent is rape.
Sexual intercourse with a woman who is asleep would be against her will.
Under Sec.375, the law requires that the victim must be under 16 years of age or that sexual intercourse was made against her will and consent. Where the victim is below 16 years of age, the question of consent does not arise. Consent on the part of a woman as a defence to an allegation of rape, requires voluntary State Vs. Dalip Kumar Page No. 32 of pages 48 participation, not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is no consent.
There is difference between submission and consent. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent.
A mere act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law.
Consent should have been obtained before the act. That the victim consented after the act is no defence.
Sexual intercourse with a woman under the influence of drink cannot be said to be with consent.
A consent obtained under fear of death or of hurt is no State Vs. Dalip Kumar Page No. 33 of pages 48 consent at all.
A consent obtained by fraud would be a consent under a misconception of fact and as such would not amount to 'consent'.
The consent must be free, real and previous. It must not be tainted with fear or fraud and must not have been obtained under fear of death or hurt. How is it to be proved?
In Sultan Vs. Emperor 1972 (Cri. LJ) 270:1971 All WR (HC) 565, it was observed:
"The fact that the girl was virgo intacta upto the date of occurrence is very strong proof to the contrary."
Consent, or the absence of it, can be presumed from the attendant circumstances of each case.
Mere presence of semen on the loin cloth of the victim cannot lead to the presumption of consent. Where a woman who has been kidnapped and raped had raised an alarm when she was being kidnapped and had raised an alarm again after she was dropped back in her village after being raped and had told a story of State Vs. Dalip Kumar Page No. 34 of pages 48 rape to a witness immediately on her being released by the miscreants go to show that she could never have been a consenting party.
Sexual intercourse with a woman under the age of 16 years is rape and in such a case consent is immaterial and does not absolve the accused from his guilt.
In rape cases it is only when consent is the defence pleaded that the question would arise at to whether the girl was of an age to give consent in law. The question of the age of the prosecutrix should be examined more closely where the medical evidence shows that she was used to sexual intercourse and there was old rupture of the hymen.
The only conclusive piece of evidence of the girl's age may be the birth certificate.
It is true that a doctor is in a better position for an opinion about the age of a person than a layman, but the statement of a doctor is no more than an opinion. When from his statement it does State Vs. Dalip Kumar Page No. 35 of pages 48 not appear that he brought any scientific knowledge to bear upon his opinion, where the doctor has relied entirely on certain physical peculiarities, such as teeth, etc., his statement is not a legal proof but a mere opinion.
In books on Medical Jurisprudence a distinction has been made between vulval penetration and vaginal penetration and it is remarked that vulval penetration with or without violence is an much rape as vaginal penetration. It is not necessary that the hymen be ruptured in every case. "To constitute penetration it must be proved that some part of the virile member of the accused was withing the labia of the pudendum of the woman, no matter how little."
Emission of semen is not by itself a conclusive proof of penetration.
Evidence of non rupture of hymen is not conclusive of the fact that there was no sexual intercourse. The presence of spermatozoa indicating semen found in the woman's genitals or on her clothes is by no means final in the case of a married woman. State Vs. Dalip Kumar Page No. 36 of pages 48 Similarly, semen stain on the langot of a young man can exist because of a variety of reasons and would not necessarily connect him with the offence of rape.
The absence of the smegma is not necessarily a conclusive proof of the fact of recent cohabitation or sexual intercourse, but it can also lead to inference that the parts had been washed and kept clean by the persons. So, the absence of smegma on the private parts of the accused is not sufficient to raise a inference of guilt.
In rape cases if the gland of the male organ is covered by uniform layer of smegma it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma round the corona gland is proof against penetration, since it is rubbed off during the act of sexual intercourse. The smegma accumulates if no bath is taken for twenty four hours. In rape cases, therefore, the prosecution must get the male organ of the accused examined.
It is only when the glans penis is covered by a uniform layer State Vs. Dalip Kumar Page No. 37 of pages 48 of smegma that the possibility of recent complete penetration is negatived. The presence of a small quantity of smegma is not sufficient to negative such possibility since a negligible amount of smegma may be present even if a person has intercourse.
14. It is the case of the prosecution that:
(a). The accused Dalip Kumar had kidnapped the victim girl from the lawful guardianship of her parents by alluring her with an offer to fed her with Chole Bhature.
(b). She was taken in a room at Farash Khana, where she was kept for over night and then in the next morning she was forcibly made to board a train alongwith accused no.1 by accused persons.
(c). The accused Dalip took her to a village Shadpur, District Begu Sarai (Bihar), where she was raped by the accused accused Dalip Kumar without her consent or free will.
(d). The prosecutrix was recovered from the Railway Station at Begu Sarai at the instance of a secret informer in the presence of complainant and police party, which went from Delhi.
On the contrary, according to the defence version accused State Vs. Dalip Kumar Page No. 38 of pages 48 is innocent. He was falsely implicated by the police by lifting him from outside the court. He had not allured or taken away the prosecutrix, rather, she herself came at his rented accommodation and insisted for marriage. Despite of his best efforts to send her back, she did not agree, rather, she threatened him that she would commit suicide in case he would not accompany with her.
As per submission of Ld. Addl. PP for the State the case of the prosecution is crystal clear. By way of clear and unambiguous testimony of the prosecutrix and also of the other witnesses coupled with the medical, scientific and other documentary evidence in the form of date of birth certificate Ex.PW18/A brought on record, it has been established that the prosecutrix was a minor, who was forcibly kidnapped by the accused from the lawful guardianship of the parents of the prosecutrix and raped by the accused Dalip Kumar forcibly and without her consent. Thus, the accused is liable to suffer the order of conviction against him.
On the other hand, according to Ld. Defence counsel the State Vs. Dalip Kumar Page No. 39 of pages 48 prosecutrix and the accused Dalip Kumar were previously knowing to each other. In fact, the mother of the prosecutrix had taken loan from the accused on two occasions for the sum of Rs.10,000/ and Rs.12,000/ and when accused asked to return the said money, she told him that she would return his money and also marry prosecutrix with him. Later on, father of the prosecutrix got the accused persons implicated falsely in connivance with the police.
He further stressed that the prosecution has been failed to establish that the prosecutrix was a minor at the time of alleged occurrence of the offence. The documentary material in the form of Date of Birth Certificate Ex.PW18/A is neither genuine nor it pertain to the prosecutrix as particulars mentioned in the certificate are not matching with the particulars of the prosecutrix. In the said certificate the name of the child has been mentioned as Kesar Ben D/o Mohan Bhai and Smt. Bali Devi. Thus it is not established that the prosecutrix was a minor girl at the time of occurrence. Moreover, from the medical evidence brought on record in the form State Vs. Dalip Kumar Page No. 40 of pages 48 of opinion given by PW5 Dr. Gopal Mishra on X Ray (done for determination of age of prosecution) that the prosecutrix was aged between 1517 years at the relevant time and by giving margin of two years on higher side, age of prosecutrix can be above 18 years and benefit of doubts in such situation accrues to the accused. Further from the statement of the prosecutrix, it does not establish that she was raped forcibly and against her wishes and she was not a consenting party. It can not be ignored that she remained with the accused for several days and during that period they both had traveled from Begu Sarai to Panipat and from Panipat to Delhi and then from Delhi to Begu Sarai back and at no point of time she ever thought to resist or raise alarm or even to contact her parents. Though, she was very well having ample opportunities to do so but she did not prefer and this fact suggests that she was a consenting party. Thus the prosecution has also failed U/s 376 IPC. Further, there are material contradictions/short comings in the case of the prosecution which go very root of it. There was an inordinate delay State Vs. Dalip Kumar Page No. 41 of pages 48 in lodging of FIR and no plausible explanation has been given in this regard.
15. It is well settled proposition of law that in a case of rape the onus is always on prosecution to prove affirmatively each ingredients of the offence it seeks to establish and such onus never shifts. However, great the suspicion against the accused and however strong the moral belief and conviction of the judge, unless the offence of accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he can not be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.
16. After giving due thoughts to the rival submissions of both the sides, I have come to the considered opinion that the prosecution has been failed in its mission of proving its case State Vs. Dalip Kumar Page No. 42 of pages 48 against the accused beyond the shadow of reasonable doubts and as such the accused is entitled for giving benefit of doubt.
Firstly, the claim of the prosecution based on the testimonies of PW3, PW4, PW15 & PW18, coupled with the document Ex.PW18/A i.e. the date of birth certificate of prosecutrix, that the prosecutrix was a minor girl below the age of 15 years is not established beyond doubt for the reasons that the particulars mentioned in the certificate i.e. names of the baby and her mother are not matching with the particulars of prosecutrix and her mother. In the certificate the name of the child has been mentioned as Kesar Ben whereas the name of the prosecutrix is actually Kavita and also as per certificate the name of her mother is Smt. Bali Devi, whereas as per the case of the prosecution, the name of the mother of prosecutrix is Babita. Moreover, in the light of the scientific evidence brought on record in the form of report Ex.PW 5/B given by Dr. Gopal Mishra, in which as per his opinion the age of prosecutrix was between 1517 years at the time of alleged State Vs. Dalip Kumar Page No. 43 of pages 48 occurrence and by giving margin of two years on higher side, age of prosecutrix can be above 18 years and in this situation benefit of doubt does to accused. On this point, it was held in Mohar Singh @ Pappu Vs. State 103 (2003) DLT 421 that if margin of two years given on higher side, age of prosecutrix can be above 18 years and benefit of doubt in such situation goes to accused.
Further, I find myself in agreement with the claim of Ld. Defence Counsel that it is an admitted fact that PW4 prosecutrix never chose to raise any hue, cry and alarm against the accused from the date of alleged kidnapping i.e. 07.01.2005 to 10.02.2005, rather, she had accompanied the accused on various places like Panipat, Begu Sarai and even Delhi but she did not opt to protest or to make contact with her parents. In her own testimony she had conceded that "they came to Delhi at about 8.00 a.m. and accused took her to Panipat at about 12.00 noon on the same day. She further stated that after staying overnight at Panipat, accused brought her to Delhi on the next day and they went back to Begu Sarai". It clearly shows that she had gone with the accused with her State Vs. Dalip Kumar Page No. 44 of pages 48 own free will and she was a consenting party, who joined the accused and established physical relationship with him without any force, pressure and undue influence. Further, at the time of her recovery, the prosecutrix was found sitting alone that too having the clothes of herself as well as also of the accused, which further suggests that she was a consenting party. The claim of the accused that the prosecutrix was a consenting party is further strengthen by the medical evidence in the form of report of Medical Expert Ex.PW5/C according to which no force was used on the prosecutrix during course of sexual act and that she was used to sexual intercourse. The deposition of PW7 Dr. N.K. Chaudhary, PW5 Dr. Gopal Mishra and PW19 Dr. Jyotsana also giving strength to the defence raised by the accused. Here I am fortified by the judgment titled as Devanand Vs. State, 2002 (3) JCC 1663 and AIR 1995 SC 2169.
In AIR 1995 SC 2169 it was held as under: "Prosecutrix not putting up struggle or raising alarm while being taken away by accused Prosecution appearing to be willing party to go with accused on her State Vs. Dalip Kumar Page No. 45 of pages 48 own - Culpability of accused not established - Conviction set aside."
In AIR 1998 SC 2694 it has been held as under: "S. 375 - Rape - Proof - Accused alleged to have kidnapped prosecutrix and committed rape on her - Concurrent finding that prosecutrix was below 18 years of age -
Medical evidence showing no injuries on person of prosecutrix including her private part - Conduct of prosecutrix showing that she was a consenting party to sexual intercourse -
Not a case of prosecutrix that she was put in physical restraint - Conviction of accused for offence of rape, not proper."
Further there are several short comings in the case of the prosecution which have proved fatal for it. Firstly, there is an inordinate delay in lodging the FIR/complaint by the complainant and there is no plausible explanation as to why the complaint was not lodged earlier despite of the fact that there was a suspicion over the accused right from the day of missing of the girl. Further, the factum of the recovery of the prosecutrix from the railway platform Begu Sarai is not established beyond doubt as there is no explanation as to why no local police official was joined in the raiding party at the time of the recovery of the girl? Even it is not State Vs. Dalip Kumar Page No. 46 of pages 48 explained as to why the information was not given to the concerned Station master or even to the RPF? Further admittedly, it was a crowded place where number of peoples were available but no public person was joined in the investigation. Why? All these create a shadow of doubt upon the case of the prosecution. Further it is also not clear as to why no efforts were made by the IO to apprehend the accused in Begu Sarai itself when it was told to him by the prosecutrix that she was made to sit by the accused by saying that he is just coming. Further, the factum of arrest of accused from Lahori Gate Chowk is also not free from doubt as at that time also no public witness was joined in the investigation. Further, as per the testimony of PW7, he had written his findings regarding examination of the prosecutrix on the requisition slip itself and noting in that regard had also been made in a separate register maintained in this respect and thereafter, final report of the Board was prepared and then the final report alongwith all the connected documents had been handed over to the Delhi Police Officials. State Vs. Dalip Kumar Page No. 47 of pages 48 However, no such documents like requisition slip etc. were produced before the court during the trial. Further more, it was conceded by the prosecutrix in her testimony that before coming to the court, his father, IO and his lawyer had told him what she had to say in the court. This fact, fortifies the claim of Ld. Defence counsel that the prosecutrix was tutored and she was under the influence of her father and therefore, the exact picture has not been presented before the court.
17. In the light of above, I have come to the conclusion that prosecution has been failed in its mission of proving its case against the accused beyond the shadow of reasonable doubts and as such accused is entitled for the benefit of doubt. Accordingly, he is acquitted of the charges framed against him. His Bail Bond stands discharged.
18. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 31.08.2009) ASJ04 (NORTH)/DELHI
State Vs. Dalip Kumar Page No. 48 of pages 48