Delhi District Court
State vs . Rakesh Kumar on 20 December, 2012
State Vs. Rakesh Kumar
SC No.20/11
FIR No.37/09
U/s 366/376 IPC
PS Dabri
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDITIONAL SESSIONS JUDGE : DWARKA COURTS:
NEW DELHI
In the matter of :
SC No. : 20/11
FIR No. : 37/09
Police Station : Dabri
Under Section : 366/376 IPC
Received on assignment : 04.04.2011
Reserved for orders on : 14.12.2012
Judgment announced on : 20.12.2012
State Vs. Rakesh Kumar
S/o Shri Kailash Prashad
Presently at: House No.RZ57A,
Krishna Enclave,
CRPF Camp, Jharoda,
PS Najafgarh, New Delhi.
Permanently at:
Village Sindhiya Khurd,
PO & PS District Samastipur,
Bihar.
J U D G E M E N T
1. Accused has been sent for trial for the offences under Section SC No.20/11 Page No. 1 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri 366/ 376 IPC.
2. The brief facts as per prosecution story, it is alleged that on 24.01.2009 Mrs. Meena Tiwari, w/o Late Sh. Rama Kant Tiwari got recorded her statement stating therein that she is residing at RZ59/234, Dayal Park, West Sagarpur, New Delhi alongwith her three children and brother Atul and on 17.01.2009 the prosecutrix (name withheld as per dicta of superior courts) aged about 15 years had gone to fetch milk at about 07:00 pm but she has not returned and her missing report was also lodged and she has further stated that now she has came to know that the accused Rakesh S/o Kailash Prasad has enticed away the prosecutrix, her daughter, on the basis of the statement of complainant, FIR under Section 363 IPC was lodged. Investigation was handed over to SI Narender Singh who tried to trace the prosecutrix but neither the accused Rakesh not prosecutrix could be traced. Thereafter, the investigation was handed over to SI Satdev Singh. During investigation IO on the basis of the call details of the mobile phone tried to trace the accused but neither the prosecutrix nor the accused Rajesh could be traced. Thereafter the investigation was handed over to ASI Kailash Chand Saha and the prosecutrix was got recovered from Sitapuri Bus Stand on 11.06.2009 and SC No.20/11 Page No. 2 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri the medical of the prosecutrix was conducted and she was found to have been assaulted sexually. After medical of the prosecutrix the seal parcels were got deposited with the MHC(M) and the prosecutrix was produced before the concerned court for getting her statement recorded under Section 164 Cr PC and the prosecutrix was found to be minor and the accused forced her to go into for illicit intercourse against her consent. Thereafter Section 376 was added. The accused was apprehended and arrested and the school certificate of the prosecutrix was taken as per which her date of birth is 10.12.1993 and she was found to be minor. During investigation statement of witnesses were recorded and the accused was charge sheeted under Section 373/376 IPC. Chargesheet was filed and thereafter FSL report was filed by way of supplementary chargesheet.
3. After complying the provisions regarding supplying of the copies of chargesheet, case was committed to the court of Sessions.
4. After framing of charge as per law accused person pleaded not guilty and claimed trial. The prosecution to prove its case has led evidence. 14 witnesses were examined by the prosecution. After closing of prosecution evidence, statement of accused was recorded under Section 313 Cr PC and SC No.20/11 Page No. 3 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri led evidence and DW 1 and DW 2 appeared as defence witness.
5. I have heard learned counsel for the State as well as defence counsel and with their assistance have gone through the record.
6. Ld. APP for the State has contended that the prosecution has proved that prosecutrix is minor and the accused has enticed her away and intentionally compelled the prosecutrix for illicit intercourse with him and in view of the unrebutted evidence led by the prosecution, the accused is to be convicted for the offence with which he has been charged.
7. On the other hand Ld. Defence counsel has contended that the prosecutrix is major as per DW and medical evidence in terms of Ossification Test, she is more than 18 years and less than 20 years, so the prosecutrix being major had herself accompanied the accused and got married with him and in the statement recorded under Section 164 Cr.P.C. she has not supported the case of prosecution. As such, the accused is liable to be acquitted.
8. Before proceeding further I would like to appreciate the evidence led by prosecution.
9. PW 1 is Lady Const. Rakesh who has stated that on 11.06.2009 SC No.20/11 Page No. 4 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri she alongwith Const. Kamal went to Subzi Mandi, Dabri where complainant/ mother of prosecutrix met them and they went to Sitapuri Bus Stand where prosecutrix appeared and she was apprehended and brought to DDU Hospital for medical examination and after her medical examination, doctors handed over one sealed parcel alongwith sample seal which was handed over to IO, who seized the same vide seizure memo Ex PW 1/A.
10. PW 2 is ASI Saroj Yadav who got recorded the statement of prosecutrix under Section 164 in Dwarka Courts and she has also sent the exhibits to FSL Rohini through Const. Mahender.
11. PW 3 is HC Rakesh Kumar who stated that on 11.06.2009 IO/ ASI Kailash Chand deposited with him one sealed parcel alongwith sample seal which he deposited in Register no. 19 vide Ex PW 3/A. PW 3 has further deposed that on 13.06.2009 ASI Saroj Bala got deposited one sealed parcel alongwith sample seal which was received by PW 3 vide Entry no. 5445 in Register no. 19 which is proved as Ex PW 3/B. PW 3 has further deposed that on 26.08.2009 he had sent the sample to FSL Rohini on the directions of the IO through HC Mahender vide read certificate Ex PW 3/C and HC Mahender Singh after coming from FSL Rohini handed over him the SC No.20/11 Page No. 5 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri acknowledgement regarding deposit of said sample to FSL Rohini and proved the said exhibit Ex PW 3/D.
12. PW 4 is Dr. Rita Baruah, Medical Officer, DDU Hospital who had examined the prosecutrix on 11.06.2009 in terms of MLC Ex PW 4/A and the prosecutrix was referred to Gynae Department.
13. PW 3 is Smt. Meena Tiwari, mother of prosecutrix who has stated that on January 2009, her daughter/ prosecutrix went missing and after one week, she got recorded her statement regarding missing of her daughter and suspicion that her daughter had been enticed away by the accused and she proved her statement as Ex PW 5/A. She has further deposed that in June 2009, she was called in the police station where prosecutrix was present and police made the recovery memo of the prosecutrix vide Ex PW 5/B and after one week PW 5 again joined the investigation and accused was arrested vide arrest memo Ex PW 5/C and his personal search was conducted vide memo Ex PW 5/D
14. PW 6 is Dr. Anjali Sirohi, Gynaecologist, NRHM, Lal Bahadur Shastri Hospital, Khichripur, Delhi who has deposed that on 11.06.2009 she was working as Senior Resident, Gynae Department, DDU Hospital where SC No.20/11 Page No. 6 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri she examined the prosecutrix with alleged history of run away with the accused with her consent since 17.01.2009 and the prosecutrix was examined by PW 6 in terms of her report Ex PW 6/A.
15. PW 7 is Dr. Vineet, Casualty Medical Officer, DDU Hospital who has examined the accused on 13.06.2009 and accused was examined in terms of MLC Ex PW 7/A prepared by Dr.Harvinder Singh. He has identified the handwriting and signatures of Dr. Harvinder Singh who had examined the accused as he has seen him writing and signing during the course of official duties.
16. PW 8 is Sh. Sumedh Kumar Sethi, Ld. MM, Rohini Courts who had deposed that on 12.06.2009 IO/ ASI Kailash Chand has moved an application Ex PW 8/A for recording the statement of prosecutrix. The prosecutrix was identified by IO vide his statement Ex PW 8/B and the proceedings regarding recording of statement of prosecutrix under Section 164 Cr PC is Ex PW 8/C and the certificate issued by PW 8 regarding correctness of the proceedings is Ex PW 8/D and the statement of prosecutrix was supplied to the IO on his application Ex PW 8/E.
17. PW 9 is prosecutrix whose testimony will be discussed in the SC No.20/11 Page No. 7 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri later part of the judgment.
18. PW 10 is Santosh Gupta, Organizer, Maa Saraswati Balika Junior High School, Oraiya, UP who has deposed that prosecutrix was got admitted in Class 8th in her school vide admission No. 482 with effect from 01.07.2005 to 01.07.2008 and as per record, date of birth of prosecutrix is 10.12.1993 and the relevant entry in the school record is proved vide Ex PW 10/A. She has also proved the original application form for admission of the prosecutrix as Ex PW 10/B and the affidavit given by the aunt of prosecutrix is Ex PW 10/C and Mark Sheet proved as Ex 10/D and the certificate issued by Principal in respect of birth of certificate is Ex PW 10/E.
19. PW 11 is HC Mahender who was posted as HC in PS Palam deposed that on 26.08.2009 on the direction of IO he has taken two sealed parcel alongwith two sample seal to FSL Rohini and after getting the same deposited in FSL Rohini, he handed over the acknowledgement to the MHC(M) after returning from FSL Rohini.
20. PW 12 is HC Narsee Ram who has deposed that on 13.06.2009 he alongwith ASI Kailash Chand and WASI Saroj went to house no. RZ59/234 Dayal Park, West Sagarpur where accused was found present who SC No.20/11 Page No. 8 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri was shouting that "PRIYANKA NICHE AA, MEIN TUJSE PYAR KARTA HOON". In the meantime mother of the prosecutrix came there and accused was apprehended and arrested and personal search was conducted and thereafter with the directions of the IO, accused was taken to DDU Hospital for medical examination and after his medical examination, doctor handed one seal alongwith sample seal to PW 4 who in turn handed over the same to IO who seized the same vide Ex PW 12/A.
21. PW 13 is ASI Kailash Chand who stated that on 13.03.2009, the investigation of this case was handed over to him and during the course of investigation he tried to trace the prosecutrix and on 11.06.2009 mother of the prosecutrix also joined in the investigation and when they were waiting at bus stand, Sita Puri, prosecutrix was identified by her mother and she was apprehended and seizure memo in respect of prosecutrix was prepared. Thereafter prosecutrix was take to DDU Hospital where she was medically examined and doctor handed over two sealed parcel which was seized by PW 13 and PW 13 recorded the statement of witnesses and deposited the case property with MHC(M). Thereafter investigation of the case was assigned to W ASI Saroj. He has further deposed that on 13.06.2009 he was present SC No.20/11 Page No. 9 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri alongwith the police party and he has deposed on the line of PW 12 with regard to incident of 13.06.2009.
22. PW14 ASI Mohd. Tahir, was posted as ASI on 24.01.2009 and he registered FIR after getting the Rukka from SI Narender and exhibited the same as Ex PW 14/A and PW14 endorsed on rukka vide Ex PW 14/B.
23. Now, the question arises whether the prosecutrix was minor and she was seduced by accused Rakesh for the purpose of illicit intercourse and rape. As per the prosecution story, the prosecutrix was minor on the date of commission of the offence.
24. To prove the age of the prosecutrix, PW5 mother of the prosecutrix has testified that the date of birth of the prosecutrix is 10th December, 1993. In crossexamination, she admitted that the prosecutrix studied in a school in Oraiya where she was living with her mausi (Sister of PW5). She further admitted that the prosecutrix was admitted in the school at Oraiya by her sister in class VI. She clarified that the prosecutrix had also studied in a private school at Delhi till class V. PW5 further stated that she did not submit any date of birth certificate of the prosecutrix in the first school attended by the prosecutrix at the time of her admission. She did not SC No.20/11 Page No. 10 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri have any birth certificate except the school certificate issued from Oraiya. She further admitted that prosecutrix was born at her native village at Shriava and her birth was not registered anywhere. PW5 further admitted that she did not remember the year in which the prosecutrix was admitted in a private school in Delhi and in which year she completed her V class as no school leaving certificate was given by the school at Delhi. She further admitted that the prosecutrix had studied upto class 8th in Oraiya.
25. To prove the documentary evidence with regard to the age of prosecutrix, the prosecution had lead evidence of PW10 Santosh Gupta, Organizer, Maa Saraswati Balika Junior High School, Oraiya, UP, who had brought the original admission register of the school for the period 01.07.2005 to 01.07.2008 and the entry no. 482 regarding the admission of prosecutrix was proved as Ex. PW 10/A. The date of birth of the prosecutrix in the said entry is 10.12.1993. To support the said entry regarding the date of birth of the prosecutrix, the application form for admission was proved as Ex. PW10/B in which the date of birth is mentioned as 10.12.1993 and the affidavit by mausi of the prosecutrix (sister of PW5) was proved as Ex. PW10/C in which also the date of birth is mentioned as 10.12.1993. SC No.20/11 Page No. 11 of 25
State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri PW10/D is the DMC of the prosecutrix wherein also the date of birth is mentioned as 10.12.1993 but the class for which this DMC pertains is not mentioned in this document. From the conjoint reading of the testimonies of PW5 and PW10, it is clear that PW5 had not got registered the birth of prosecutrix either with the Municipal authorities or any other competent authorities. PW5 has further testified that she had not given the date of birth in the school first attended by the prosecutrix. She further admitted that she had not received any school leaving certificate from the school at Delhi before the prosecutrix was admitted in the school at Oraiya. Therefore, there is no proof either oral or documentary on record regarding the date of birth of the prosecutrix either in the form of medical record or in the school first attended by the prosecutrix.
26. The testimony of PW5 is in contradiction to the documents placed on record because as per the testimony of PW5, prosecutrix was admitted in VI class at school in Oraiya and as per Ex. PW10/D, namely, the application for admission filed by the mausi of the prosecutrix, she has sought admission in class VIII, as per entry number 482. Similarly in the affidavit Ex. PW 10/C, Smt. Ranjana Shukla, mausi of prosecutrix, has SC No.20/11 Page No. 12 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri deposed that the prosecutrix has sought admission in class VIII. Another discrepancy in the Ex. PW 10/A is that for all the entries bearing number 464 to 482, it is reflected in each entry that from where the student had passed out the VII class, but so far as entry regarding the admission of prosecutrix is concerned i.e. entry no. 482, it is not mentioned from where she had passed out VII class and the said column is left blank. Furthermore, all the other entries in Ex. PW10/A are filled in the handwriting of the same person except that of the prosecutrix. Handwriting with which all the other entries in Ex. PW10/A are filled is uniform in nature so as to infer that the said entries have been filled by the same person but the entry against the name of prosecutrix is with different handwriting and not matching with the handwriting of the other entries which leads to be irresistible conclusion that the entry against the name of prosecutrix is filled in later on. Therefore, it can be safely held that the evidence of PW5 is in contradiction to the testimony of PW10 as well as the documents proved by PW10. PW5 stated that she passed out V class from Delhi and thereafter, she got admitted in 6th class in Oraiya but as per Ex. PW10/A, Ex. PW10/B, Ex. PW10/C and Ex. PW10/D, the prosecutrix got admitted in class VIII whereas as per SC No.20/11 Page No. 13 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri testimony of PW5, she should have got admitted in class VI at Oraiya. Otherwise also, in Ex. PW10/A, the entries pertaining to the prosecutrix appears to be inserted later on in order to create evidence regarding the age of the prosecutrix. This aspect of evidence can be looked from another angle as Ranjana, mausi of prosecutrix has mentioned in the affidavit, Ex. PW10/C, the date of birth of prosecutrix, but the source from where she had received the information regarding the date of birth of the prosecutrix is not coming forth as neither PW5 nor PW10 has disclosed the source from where the date of birth of the prosecutrix was entered in the school record.
27. In Ravinder Singh Gorkhi v. State of U. P.(2006) 5 SCC 584, it is observed:
''The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. Necessity of being represented in a court of law by a guardian or where as suit is filed on the ground that the plaintiff being a minor he was not appropriately represented SC No.20/11 Page No. 14 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted''.
28. Therefore, the age of the prosecutrix is to be proved just like any other evidence and the same standards of appreciation of evidence are to be applied as requied to prove any other facts. In the present case, the date of birth of prosecutrix has been supplied by her mausi Ranjana. Neither the parents nor any other person specifically having knowledge of the date of birth of the prosecutrix has been examined. So far as mausi of prosecutrix is concerned, she cannot be stated to have the exact idea of the date of birth of the prosecutrix as PW5 has stated that she herself does not know the date of SC No.20/11 Page No. 15 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri birth of the prosecutrix whereas DW1 Dr. B. L. Meena, Medical Jurist, Govt. General Hospital, Alwar, Rajasthan deposed that he had medically examined prosecutrix and as per his report Ex. DW1/A, the age of prosecutrix was about 1820 years and even if we had to consider the medical report, it is now well known that an error of two years in determining the age is possible.
29. Therefore, considering this aspect of the matter on the basis of several factors including the fact that the school admission register produced by the prosecution does not prove to the hilt that the date of birth recorded in the said document is on the basis of some reliable source. In the medical report Ex. DW 1/A, the doctor has opined the age of prosecutrix between 1820 years. Therefore, the prosecutrix was definitely above 18 years of age. Therefore, the prosecutrix cannot be held to be a minor.
30. Now coming to the question whether accused had committed rape on the prosecutrix or not.
31. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and SC No.20/11 Page No. 16 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. In this regard, I found support from Vimal Suresh Kamble v. Chaluverapinake Apal S.P.& Anr. , AIR 2003 SC 818, Vishnu v. State of Maharashtra, AIR 2006 SC 508.
32. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix SC No.20/11 Page No. 17 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. In this regard, I found support from Suresh Bhusare & others v. State of Maharashtra AIR 1998 SC 3131.
33. In Rajoo & Ors. v. State of Madhya Pradesh, AIR 2009 SC 858, the Hon'ble Supreme Court held that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, moreso as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. The court however, further observed:
"......... It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication...... there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
34. In Tameezuddin @ Tammu v. State (NCT of Delhi) (2009) SC No.20/11 Page No. 18 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri 15 SCC 566, the Hon'ble Supreme Court held has under:
"It is true that in a case of rape the evidence of the prosecutrix must be given pre dominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. "
35. Now, the question arises whether the prosecutrix had accompanied the accused out of her own free will or she was enticed and abducted by the accused and then raped. PW9 prosecutrix herself has made three statements at three stages. Prosecutrix was allegedly abducted on 17th January, 2009 and she was recovered by the police on 11th June, 2010. Her first statement was recorded by the police on 11.6.2010 U/s 161 Cr. P. C. wherein she alleged that she was ensnared by the accused and enticed her away on 17th January, 2009 and took prosecutrix to Nangloi and various places in Haryana and Rajasthan including Jaipur and committed rape with SC No.20/11 Page No. 19 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri her against her will.
36. Whereas she was examined U/s 164 Cr. P. C. on 12.6.2010 where she stated that the accused was known to her for last 1½ years and he was her neighbour and she used to love him being her boyfriend and parents of the prosecutrix were against her marriage with the accused. She has further stated in her statement u/s 164 Cr.P.C. that on 17.1.2009, accused asked her to come for watching a movie and at about 6.00 pm, in the evening, after returning from the movie, her family members had seen the prosecutrix in the company of the accused and she was scolded by her parents, as a result she left her house at about 7.30 pm, and called accused at a shop and she met him there and told him as to what had happened at her house and at that time, both of them agreed to marry. From there, both of them went to Jaipur and stayed there in a hotel. Later on, the prosecutrix along with the accused went to Karnal and then came to Delhi where she stayed at Nangloi. She further stated that she was residing at Gurgaon near Kapashera border at a rented accommodation and accused Rakesh used to bear all the expenses. She further stated that she got married with the accused at an Arya Samaj Mandir, thereafter accused and the prosecutrix decided to come back and SC No.20/11 Page No. 20 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri them came back to Delhi on 11.6.2010. At the fag end of her statement she admitted that she had gone with the accused on her own and accused should not be punished for this.
37. While deposing in the court, prosecutrix has testified that the accused was her neighbour and he used to follow and stare her and she never had any liking for the accused and accused always requested for being friendly with him. She further deposed that on 17.1.2009, she had gone to the market to fetch milk and accused Rakesh met her at an STD shop and took her to an unknown place and accused kept her in one house for one day and thereafter they had gone to Jaipur where they got married and when prosecutrix objected, he threatened to kill her mother and brother and committed rape with her against her consent. She admitted that she made statement U/s 161 Cr. P. C., (Ex. PW 8/C). Thereafter, the prosecutrix was declared hostile. In the crossexamination conducted by Ld. Addl. PP for the State she admitted that the accused used to talk to her to marry him and on 17.1.2013, he enticed her away and took her to Nangloi and thereafter to Haryana and Jaipur. She further admitted that accused had left her near Sita Puri bus stand. In crossexamination, she stated in her statement Ex. PW8/C, SC No.20/11 Page No. 21 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri she has stated that she knew accused for last ½ years and accused was her boyfriend and she was in love with him. She further admitted that in Ex. PW8/C, she had stated that on 19.1.2009 she had gone with the accused to watch movie. She further admitted that she did not complain to police or to the neighbours or to the general public on the way against the accused by raising alarm that he was taking her forcibly or he was detaining her against her will. She further admitted that when the accused had taken her from Nangloi to Jaipur and there were large number of public persons in the bus but she did not tell anybody that the accused was taking her forcibly. She further admitted that she remained in different hotels but she did not complaint against accused to anybody in the hotel as the accused had threatened to kill her brother and she got threatened.
38. She further admitted that in Jaipur, she had gone to the hospital for her bone age test where various tests for her age determination were done. She further admitted that she did not complaint to any doctor or staff against accused that accused had forcibly brought her to Jaipur. She further admitted that she got married with the accused at Arya Samaj Mandir at Vidya Nagar and there also she did not complaint to anyone that the accused SC No.20/11 Page No. 22 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri had scolded her or threatened her. She further admitted that she did not tell anybody in the temple that the accused was getting married to her against her wishes. She further admitted that she did not complain to anyone in village Sarol, Haryana where she resided with the accused in a rented accommodation. She stated that she studied in Delhi in Vanasthali public school. She further admitted that in her statement U/s 164 Cr. P. C. she had deposed that she had gone with the accused out of her own free will and he should not be punished for this. The prosecutrix has made three statements at three stages and she has contradicted her testimony with her statement Ex. PW 8/C recorded U/s 164 Cr. P. C. wherein she stated that she has accompanied the accused for watching a movie on 17.1.2009 and after return at home she was seen in the company of the accused and she was scolded by her parents and she called the accused to come near the shop and she agreed to go with the accused and marry him and they went to Jaipur. But in her statement before the court, she deposed that she was enticed and forcibly taken by the accused at different places to Delhi, Haryana and Rajasthan and she admitted that there were so many persons in the bus and other public transport with she was taken by the accused but she did not complain to SC No.20/11 Page No. 23 of 25 State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri anybody nor she raised alarm. She further stated that she gone for ossification test at Jaipur as deposed by DW1. In crossexamination, she further admitted that she had gone to the temple for marriage but she did not complaint to anybody including the priest who performed the marriage that she had been forced by the accused to marry him. From the testimony of the prosecutrix it appears that she had accompanied the accused on her own free will and she was roaming with him voluntarily. Otherwise, natural conduct of the prosecutrix should have been that as and when she got opportunity to raise alarm at any public place, she would have raised alarm. From the above findings, it is clear that the prosecutrix had accompanied the accused on her own free will.
39. On consideration of the totality of the facts and circumstances of this case, it would be unsafe to convict the accused when there are so many infirmities, holes and lacunae in the prosecution evidence.
40. I am of the opinion that the prosecution has failed to prove that prosecutrix was minor and she has been enticed away. So benefit of doubt is to be given to the accused. Therefore, accused is acquitted of the charges under section 363 and 366 IPC.
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State Vs. Rakesh Kumar SC No.20/11 FIR No.37/09 U/s 366/376 IPC PS Dabri
41. Accused Rakesh Kumar is however, directed to furnish fresh bail bond in sum of Rs. 20,000/ with one surety in the like amount each in terms of Section 437A Cr.P.C undertaking to appear if called, before Appellate Court as mandated therein. Personal bond and surety bond are to be filed and be accepted for a period of six months as provided under Section 437A Cr.P.C.
42. File be consigned to Record Room.
Announced in the open court (Vijay Kumar Dahiya)
on the 20th December, 2012 ASJ/ Dwarka Courts
New Delhi/20.12.2012
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