Delhi District Court
State vs . Raju Dhar S/O Sunil, R/O H.No. 41, New ... on 8 July, 2010
1
IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGE
VII/NECUMADDITIONAL SESSIONS JUDGE :
KARKARDOOMA COURTS : DELHI :
S.C. NO. 133/09
Unique ID Number: 02402RO287472009
State Vs. Raju Dhar S/o Sunil, R/o H.No. 41, New Ramprasth
Vihar, Bheta Hazi Pur, Ghaziabad, U.P.
FIR No. 144/09
PS Harsh Vihar
U/s 363/366/376 IPC.
Date of Institution : 24.10.09
Date of reserving judgement : 01.06.2010
Date of pronouncement :
J U D G E M E N T :
1. Prosecution's case emanates from the fact that Priya (name changed) daughter of Rampal went missing on 16.07.09. She left for her school, but did not return back. He searched for Priya hither and thither. When he could not trace her, he lodged her missing report SC.No.133/09 Page 1 of 34 2 with police, wherein he raised suspicion on Raju Dhar, who was also missing from his house since that very day when his daughter went missing. On his report, investigation was taken up by ASI Jai Bhagwan. During the course of investigation, accused Rajudhar and prosecutrix Priya were arrested at Rudarpur, Uttaranchal. They were got medically examined. Statement of prosecutrix Priya was got recorded. Investigation culminated into a charge sheet against the accused.
2. Charge for offences punishable under sections 328, 363, 366 and 376 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Laxmi Diwedi (PW1), Sandeep Tyagi (PW2), Constable Sanyogita (PW3), Shri Ram Pal (PW4), Ms. Priya (PW5), Smt. Santosh (PW6), Bittoo Singh, Constable (PW7), Satender Kumar, Constable (PW8), Anju (PW9), Dr. Parmeshwar Ram (PW10), ASI Jai Bhagwan (PW11), Naresh Kumar, Sr. Scientific Assistant (PW12), Sanjay Khanagwal, ld. MM (PW13), ASI Sheela (PW14) and Dr. Shagun Sinha (PW15) in the case.
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4. Laxmi Diwedi (PW1) deposed that Priya was admitted in her school in 6th class on 13.04.07 vide admission serial No. 2437. As per record, date of birth of Priya is 01.04.93. She proved copy of relevant entry as Ex.PW1/A. She further deposed that in transfer certificate also, the date of birth of Priya was mentioned as 01.04.1993. She proved copy of admission form, transfer certificate and mark sheet collectively as Ex.PW1/B. HC Sandeep Tyagi (PW2) recorded FIR and proved copy of it as Ex.PW2/A. He further deposed that on 01.08.09 ASI Jai Bhagwan deposited five parcels, duly sealed, and two sample seals. He made an entry to this effect at serial No.362 in the store room register. He proved copy of the same as Ex.PW2/B. Constable Sanyogita (PW3) was handed over three sealed parcels by the doctor in hospital. She gave the same to IO, who took the same into possession vide memo Ex.PW3/A. Ram Pal (PW4), Priya (PW5) and Santosh (PW6) unfolded facts of the case. Their testimonies will be discussed in later part of the judgement.
SC.No.133/09 Page 3 of 34 4 Bittoo Singh, Constable (PW7) deposited case property of the case at FSL Rohini. He gave receipt of the same to MHC(M). Satender Kumar, Constable (PW8) unfolds that on 31.07.09, he was posted at PS Harsh Vihar. In the night, he along with ASI Jai Bhagwan, Rampal started from PS Harsh Vihar for going to Rudra Pur, in a private car. On 01.08.09, they reached at Rudarpur. Firstly, they went to local PS made their arrival there, searched for the girl and accused Raju Dhar. But they could not be traced. Thereafter, they searched at bus stand Rudarpur. One boy and a girl were going on the road and on seeing that girl, Rampal stated that she is his daughter and called that girl by her name, that is, Priya. On hearing that name that girl came to Ram Pal. That boy started running. He chased that person and overpowered him. On interrogation his name revealed as Raju Dhar. After apprehending the accused, they went to local PS, made their entury there and thereafter they all came back to Delhi. At about 9pm, he had taken accused Raju Dhar to GTB Hospital for his medical examination. Prosecutrix Priya was taken by a lady Constable to GTB Hospital. Doctor at the hospital medically examined accused Raju Dhar and SC.No.133/09 Page 4 of 34 5 gave him MLC, two sealed parcels and one sample seal of the hospital. He gave the same to IO vide memo Ex.PW8/A. Thereafter, accused was put behind the lock. On the next day, he was produced before the Court. He was formally arrested and personally searched.
Anju (PW9) unfolds that her sister Priya was studying in separate school, but she cannot tell in which class she was studying. She used to go to school along with her sister Priya. Her school used to come first and Priya used to drop her at her school. Thereafter, she used to go to her school. She cannot tell the date, month and the year. Her sister had dropped her at her school and she had gone to her school. She did not meet her at her house in the evening on that day.
Dr. Parmeshwar Ram (PW10) prepared MLC of accused as Ex.PW10/A and proved the same as Ex.PW10/A. ASI Jai Bhagwan (PW11) conducted investigation of the case. He detailed those investigative steps, which were taken by him during the course of investigation.
Naresh Kumar, Sr. Scientific Assistant (PW12) examined SC.No.133/09 Page 5 of 34 6 exhibits of the case and gave his report to this effect. He proved his report as Ex.PW12/A and Ex.PW12/B respectively. Shri Sanjay Khanagwal, Ld. Metropolitan Magistrate, (PW13) recorded statement of prosecutrix u/s 164 Cr.P.C, which is Ex.PW5/A. He appended certificate regarding correctness of the statement so recorded. He also gave copy of said statement to IO, on moving an application vide Ex.PW13/B. Sheela ASI (PW14) got the statement of prosecutrix recorded u/s 164 Cr.P.C. She also collected age proof of prosecutrix. Thereafter, she got sent exhibits of the case to FSL Rohini thorugh Constable Bittoo.
Dr. Shagun Sinha (PW15) proved MLC of prosecutrix Priya as Ex.PW15/A. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under section 313 Cr.P.C. He had denied all allegations levelled against him. His case has been of denial simplicitor. He claims himself to be innocent. He projects that he has been falsely implicated in the case. Priya and her family members were known to him and his SC.No.133/09 Page 6 of 34 7 family prior to the incident. Her family members used to take work of embroidery from him on labour basis. Father of Priya had taken a sum of Rs.25,000/ as loan which he was not paying and on demand, used to postpone the payment on one ground or the other. One or two days prior to the occurrence, Priya told him that her father wanted to marry her with an old person in the lust of money but she was not ready and willing to the said marriage and to oblige her father. Her family members threatened and gave beating to her but she did not agree to marry the old man. Priya told him that she was major and known her good and bad. She told him that in case he did not help her, she would commit suicide. He was scared therefore, as she asked him to accompany her on 16.07.09, she had called him to her residence. From her residence, he along with Priya went to Yamuna Bazar Delhi in a Mandir and Priya asked the priest to perform her marriage with him. The priest refused and started that she was not having any certificate of her age. Thereafter, Priya took him to her relative at Rudarpur. There, she explained the entire story to her relatives and they permitted them to live there. In the meantime, father of Priya came to know about SC.No.133/09 Page 7 of 34 8 it. Therefore, on 19.07.09 father of Priya along with two or three other persons came to Rudarpur. They tried to make Priya and him understand and requested to return home but Priya did not agree. Father of Priya along with those two or three persons gave beating to Priya with kicks, fists and blows and tried to bring them to Delhi but neighbours gathered there and they could not succeed. Priya was scared and hence he alongwith Priya went to local police for lodging the complaint but the complaint was not recorded. Therefore, on 24.07.09 in the morning, Priya filed a private complaint through advocate Sh. R.K. Saxena in the Court of ACJM, Rampur against her father and those two or three other persons. On the same day, that is, on 24.07.09 ld. ACJM Rampur, recorded her statement under section 200 Cr.P.C. In the complaint as well as in her statement before the Judge, she told her age to be 19 years. She had signed the complaint as well as her statement voluntarily and after understanding the contents thereof as correct. Father of Priya somehow came to know about the aforesaid fact. On 24.07.09 in the evening, father of Priya along with two or three police officials came to Rudarpur and forcibly put Priya and him in SC.No.133/09 Page 8 of 34 9 a vehicle and brought to Delhi. He was wrongfully confined in police post and Priya was allowed to go to her home where he was given beating and he was also tortured. Later on, he came to know that he has been implicated in this false case. Priya has made statement in the Court under the pressure and threat of her parents and local police. He has not enticed her or taken away Priya. It is, he who was compelled to accompany her.
Accused has examined DW 1 Shri R.K.Saxena, Advocate in support of his defence.
5. I have heard Sh. Subhash Chauhan, ld. Prosecutor for the State, Sh. Z.S. Lohat, Advocate for the accused and have perused the record.
6. It was submitted by ld. Counsel for the accused that the FIR was initially registered under section 363 IPC and only thereafter charge sheet was submitted under section 363/366/376 IPC whereas charges were framed under section 328/363/366/376 IPC. In the instant case, FIR has been lodged after more than 168 hours of the present occurrence which raised a reasonable doubt about the prosecution story. Further more, the investigating officer has SC.No.133/09 Page 9 of 34 10 deposed that father of the prosecutrix Ram Pal lodged a missing report vide DD No. 7A dated 18.7.09. However, this DD has neither been brought on record nor has been proved. Further more, FIR has been recorded not only with deliberation and consultation but also after the arrest of the accused in as much as date of arrest of accused has been changed from 24.7.09 to 01.8.09. The prosecution has produced admission form of school as primary evidence regarding age of the prosecutrix therefore, the prosecution has failed to prove the correct date of birth of prosecutrix. Relevance was placed on I (2010) CCR 23 (SC) and 2004 (I) JCC 110 (DHC). Parents of the prosecutrix are not able to give correct date of birth of the prosecutrix. It is a matter of common knowledge that at the time of admission in school, parents generally get the age of their wards recorded on lower side and moreover, the prosecutrix herself has given her age as 19 years to Shri R.K.Saxena, Advocate to whom she approached for filing criminal complaint against her father and 23 other persons. She also appeared before ld. CJM Ram Pur before whom also, she gave her age as 19 years. Prosecution claims case that prosecutrix was SC.No.133/09 Page 10 of 34 11 15 years of age however at no stage of investigation or proceedings, parents of prosecutrix claimed her custody nor she was sent to Nari Niketan which established that prosecutrix was considered as major by her parents as well as by the court. There was love affair between the accused and prosecutrix which is established from the fact that she has written three papers Ex.PW5/DA to PW5/DC. Although she deposed that these letters were written at the house of mausi of the accused and accused threatened her to write these letters but there is no whisper about these letters or threat in the statement of the prosecutrix recorded under section 164 or 161 Cr.P.C. or in her examination in chief. As such this plea is an afterthought and is an improvement and does not inspire confidence. Moreover, her statement suffers from number of infirmities and inconsistencies. Therefore, no reliance can be placed upon him. It was further submitted that even FSL report does not connect the accused with the commission of offence. No independent witness has been joined. Prosecutrix had left her house of her own because her father wanted to marry her with an old person and she herself pressurised the accused to SC.No.133/09 Page 11 of 34 12 accompany her failing which she will commit suicide. Father of the prosecutrix was aware of this fact. Therefore on 19.7.09 he alongwith two three persons went to Rudarpur and tried to persuade the prosecutrix but could not succeed. Thereafter they gave beating to her. Therefore prosecutrix lodged a complaint Ex.PW5/DX1 through Shri R.K.Saxena, Advocate. Under the circumstances, it was submitted that prosecution has failed to bring home guilt of the accused beyond shadow of doubt and as such accused is entitled to be acquitted.
7. Rebutting the contentions of ld. Counsel for accused, it was submitted by ld. Addl. PP for the State that testimony of prosecutrix herself is sufficient in a case of rape and the same does not require corroboration and in the instant case, prosecutrix has firmly deposed against the accused as such prosecution has been able to prove its case against the accused and he is liable to be convicted for the offence alleged against him.
8. I have given my considerable thought to the respective submissions made by ld. Counsel for the parties and have carefully gone through the record.
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9. Prosecution machinery in the instant case was set in motion on the basis of complaint made by Shri Ram Pal on 24.7.2009 regarding missing of his daughter Priya aged about 15 years. He suspected Raju Dhar to be the person responsible for kidnapping of his daughter as he used to reside in his neighbourhood and was also missing from the house from the same day i.e.16.7.09 since when his daughter is missing. On the basis of this complaint a case under section 363 IPC was registered. During the course of investigation, prosecutrix was recovered from the custody of Raju Dhar as such section 376 IPC was added. After completion of investigation, charge sheet was submitted under section 363/366/376 IPC. However, in view of her statement recorded under sectrion 164 Cr.PC, charge was framed under section 328/363/366/376 IPC
10. First of all, I shall take up charge under section 363 IPC. In order to constitute this offence, it is incumbent upon the prosecution to establish the following ingredients. (1) The victim kidnapped was a minor being below 16, if male, or below 18, if female;
(2) The victim kidnapped was in the keeping of a lawful SC.No.133/09 Page 13 of 34 14 guardian;
(3) Accused took or enticed away the victim from such keeping of the lawful guardian;
(4) Accused did so without the consent of the lawful guardian.
11. Turning to the case in hand, the most material witness is the prosecutrix herself who has testified that on 16.7.09 at about 7.00 a.m. she alongwith her sister Anju started from her house for going to her school. She left Anju at her school and started walking towards her school which is at a distance of about 5 minutes walk. In the meanwhile, accused came from behind and put one handkerchief on her face due to which she became unconscious. When she regained her consciousness, she found herself in a room at Rudarpur. This house belonged to mausi of accused Raju Dhar. She enquired from the accused as to why he had brought her there then he gave her beating. She told him that she wanted to go to her parent house and wanted to talk to her parents but he declined her request. Accused asked her to talk to his parents first and only then he will allow her to talk to her parents. She started crying and then accused put one handkerchief on her mouth due to which she again SC.No.133/09 Page 14 of 34 15 became unconscious and accused committed rape upon her. Whenever she used to regain consciousness, due to wetting of her clothes, she came to know that accused had done wrong thing with her. Whenever she used to object regarding the same, accused was in the habit of putting handkerchief on her face and used to do wrong thing. No person was available in that house so she could not say anything to anyone but accused was having a mobile phone but he used to remove the battery of the same and never allowed her to make a call from his mobile. Children of Mausi/Mausa used to reside in that house. One day, children of Mausi kept their mobile phone in the room and she could not recollect the number of her parents as such she made a call to one of her relative Sonu, son of her maternal uncle and she asked Sonu to inform her parents to take her from there. Sonu enquired from her regarding the name of locality but she was not aware about the name of the locality and in the meanwhile, phone was disconnected. Sonu made a telephone call on that mobile and he had talks with children of the Mausi of accused and then children of the Mausi informed Sonu that name of the area is Rudarpur. Sonu again made telephone call and again SC.No.133/09 Page 15 of 34 16 confirmed regarding the exact location of Rudarpur and it was stated by the children of Mausi of accused that Rudarpur was in Uttranchal. Mausi of accused told him that many calls are being received at their mobile phone and therefore, he should take her from that house. On 01.8.09 accused was taking her somewhere from the house of his mausi when she heard noise of her father. She went to him and accused who had started running was over powered by the police officials. Thereafter they were brought back to Delhi where she was medically examined and her statement under section 164 Cr.PC Ex.PW5/A was recorded.
12. In cross examination, the witness was confronted with major portion of her testimony with that of her statement recorded under section 161 Cr.P.C. Ex.PW5/DX where major part of her testimony was not found mentioned. As such there was a material change and improvement made in the statement of the witness during the trial and what she stated before the police during investigation.
13. In Dhanna vs State of M.P. 1996 Cr.L.J. 3516 Hon'ble Supreme Court held that when a statement is made under section SC.No.133/09 Page 16 of 34 17 161 Cr.P.C. and which is improved upon at the time of trial, no conviction made out for the offence of murder. This authority was reiterated in 2007 (2) JCC 1189 Nand Lal vs. State and 2000 (1) RCR (Crl.) 299 (S.C.).
14. Further more, it is the case of the accused that prosecutrix was known to him from before and had been writing letters to him. Her father wanted to get her married with an old man therefore, she voluntarily on her own will went with accused Raju Dhar and thereafter lived with him happily. During her cross examination, although she denied these facts however, when she was confronted with letters Ex.PW5/DA to PW/5/DC , then she admitted that these papers are in her hand writing. However, she went on stating that these letters were written at the house of Mausi of accused and accused threatened her to write these letters otherwise she would face dire consequences with regard to her brother. However a perusal of these letters goes to show that same were written before alleged occurrence i.e. 16.7.09. There is no whisper by the prosecutrix about these letters or about the alleged threat given to her by the accused, in her statement recorded under section 161 SC.No.133/09 Page 17 of 34 18 Cr.P.C. recorded by the Investigating Officer of the case or under section 164 Cr.P.C. recorded by ld. M.M. or even in her examination in chief. Therefore, the plea that these letters were written by her under the threat of the accused is not only a material improvement but is an after thought.
15. AIR 1979 SC 1276 Lalita Parsad vs. State of M.P. was also a case where number of letters were written by the prosecutrix to the accused before the incident in question and she admitted those letters during the course of cross examination. After going through the letters, it was held by Hon'ble Supreme Court that the trend of these letters written at a point of time when there was no question of kidnapping, abduction or rape clearly show that the girl was immensely in love with the accused and it was difficult to believe that she was kidnapped or abducted under fear of causing hurt to her. In the instant case also it is the case of prosecution that prosecutrix had left for school alongwith her younger sister. After leaving her sister at her school, when prosecutrix reached her school, then she was taken away by the accused. The perusal of letter Ex.PW5/DC goes to show that it has been stated therein that SC.No.133/09 Page 18 of 34 19 prosecutrix was ready to go with the accused and she informed him that she will meet him on the way to her school and in fact she asked him not to go to the gate of the school but on the side of the school lest he may not be noticed by anybody. Remaining letters also goes to show that she expressed her willingness to marry the accused. That being so, her statement that she was forced to write these letters under the alleged threat does not inspire confidence and it is clear that she went with the accused of her own free will.
Similarly, the prosecutrix in her cross examination has denied having made any complaint against her father and three other persons before ld. CJM, Rampur on 24.7.09. When her attention was drawn towards the certified copy of the complaint under section 200 Cr.P.C. made before the ld. ACJM Rampur against her father and three other persons for offence under section 323, 504, 506 IPC PS Civil Line, Ram Pur, then she admitted that complaint bears her photograph affixed on the certified copy of complaint case at encircled A at Ex.PW5/DX1. She went on stating that accused had obtained her signatures on some papers after beating her. She denied having stated in her complaint SC.No.133/09 Page 19 of 34 20 Ex.PW5/DX1 that her father wanted to get her married with an old man against consideration. She told her father that she will not marry an old person and therefore, she had gone voluntarily of her own will with Raju Dhar son of Sunil and thereafter she was living voluntarily with him as husband and wife. She also denied having stated in the complaint Ex.PW5/DX1 that on 19.7.09 her father with three unknown persons entered her house, used filthy language and when she and her husband opposed them then her father and those unknown persons gave beating to her and her husband with kicks and fists and tried to take her forcibly or that on raising alarm few persons came there and rescued her or that these persons threatened to kill or that thereafter she alongwith her husband went to P.S. Civil Line, Ram Pur where report was not lodged and then on 20.7.09 a written application was given to Superintendent of PS Civil Line Ram Pur but no action was taken or that thereafter the complaint was made. She also denied having made her statement before the ld. ACJM on 24.7.09. However, she admitted that the statement bears her signature.
16. Accused has examined DW 1 Rajesh Kumar Saxena Advocate SC.No.133/09 Page 20 of 34 21 who has deposed that on 24.7.09 at about 10.30 a.m. One lady Smt. Priya wife of Raju Dhar came alongwith Raju Dhar and one more person and a lady and on the directions of Priya he drafted a complaint Ex.PW5/DX1. He also pasted passport size photo graph produced by Priya and attested the photograph. Thereafter the complaint was filed before ld. CJM. Priya appeared before ld. CJM and her statement Ex.PW5/DX 2 was recorded by ld. CJM. This witness was subjected to lengthy cross examination by ld. Addl. PP. However, nothing material could be elicited to discredit his testimony and there is no reason as to why this witness would depose against the prosecutrix or will favour the accused. Moreover, although the averments made in the application are denied by the prosecutrix but she has admitted her signature on the statement and also admitted her photographs on the complaint. Here again, it was neither in her statement under section 161 Cr.P.C. or 164 Cr.P.C. or in her examinationinchief that the prosecutrix ever disclosed before the court the reason which led her to file complaint or to paste her photograph on the complaint or to make a statement before the ld. CJM, Rampur. This also goes to SC.No.133/09 Page 21 of 34 22 show that prosecutrix is trying to suppress the real truth.
17. Moreover, although in a case pertaining to sexual offence, law is well settled that the testimony of prosecutrix herself is sufficient and it does not require any corroboration but as held by Hon'ble Apex Court in 2010 II AD (S.C.) 62, Tameezuddin @ Tammu vs. Sate of (NCT) of Delhi that it is true that in a case of rape evidence of the prosecutrix must be given predominant 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 evidence in a criminal matter. Analyzing the present case, the testimony of prosecutrix goes to show that the same suffers from self contradictions and inconsistencies.
18. She has deposed that she tried to make a call to her parents but could not remember the number of her parents therefore, she made a call to one of her relative named, Sonu, son of her material uncle however, in her statement under section 164 Cr.PC she has deposed that she got hold of house owner's mobile and made a call to her home. PW4 Shri Ram pal, her father contradicted her and deposed SC.No.133/09 Page 22 of 34 23 that his relative namely Adesh, who reside in Village Chamrawal near Palana Bhatta, U.P. received telephonic call from Priya however neither Sonu nor Adesh have been examined by the investigating officer of the case nor their call details have been obtained.
19. Further more, according to PW3 Constable Sanyogita, on 1.08.09 she was directed by the duty officer of PS Harsh Vihar to reach GTB Hospital as medical examination of a girl was to be conducted where ASI Jai Bhagwan and Priya met her. Bua of Priya namely Omwati was also present there. Neither the investigating officer joined Bua of Priya nor explained as to why and on whose information Omwati reached the hospital as she was not member of the team which went to Rudarpur on 31.7.09 or her arrival in the hospital on 01.8.09. Moreover, at one place in cross examination, Priya deposed that she never used to meet Raju Dhar and she had seen him for the first time in Rudarpur. However, subsequently, it has come in her cross examination that she used to visit the house of Raju Dhar for the purpose of bringing sitara work.
20. Further more, when Priya appeared before the doctor for the SC.No.133/09 Page 23 of 34 24 purpose of her medical examination at that time, history given by her before the doctor ws allegedly kidnapped by Raju Dhar and three others on 16.7.09 however, there is no mention of "3 other persons" either in her statement under section 161 Cr.P.C. or 164 Cr.P.C. or in her deposition before the court.
21. Further more, she testified that when accused took her to the house of her Mausi, none was available in that house and therefore, she could not say anything to anyone. However, at other place, it has come in her testimony that family of mausi comprising of her husband and children used to reside in that house. She stayed in that house from 16.7.09 till 1.8.09. There is nothing to show that during this period, she made any complaint to them against the accused or made any effort to run away from there. There is also nothing to show that she made any complaint to any neighbour regarding her wrongful confinement or sexual assault. 1992 JCC 5 Mohd. Salim vs. State was a case where the prosecutrix gave self contradictory statement, lived with the accused for six days but did not complain anyone in neighbourhood of being raped. It was held by Hon'ble High Court that she cannot be relied upon. 2004 (1) SC.No.133/09 Page 24 of 34 25 JCC 110 Rakesh Kumar Vs. State was again a case where prosecutrix did not raise alarm while being taken to temple and she in fact did not even lodge FIR, it was held that she was a consenting party and no case was made out.
22. As regards her plea that when she was going to her school accused came from behind and put one handkerchief on her face due to which she became unconscious and thereafter she found herself in a room at Rudarpur, it may be mentioned that this plea was taken by her only in her statement recorded under section 164 Cr.P.C. and no such plea was taken when her statement under section 161 Cr.P.C. was recorded. In Shanti Vs. State 1991 JCC 398 also the prosecutrix improved her case by saying that accused gave her something in banana and took her away giving threats while in her statement under section 161 Cr.P.C. no such things were mentioned, her statement was held to be not trustworthy by Hon'ble High Court. In the instant case also, nothing has been found on the record that the prosecutrix was ever kept under intoxication as alleged by her. Moreover, no such statement was made by her before the investigating officer of the case or in her SC.No.133/09 Page 25 of 34 26 statement recorded under section 164 Cr.P.C. That being so, it is a material improvement which does not inspire confidence. The result of the aforesaid discussion is that in view of the material contradictions and improvements appearing in the testimony of prosecutrix, testimony of prosecutrix is not trustworthy and reliable. That being so, prosecution has failed to prove that she was taken or enticed by the accused from the lawful guardianship of her parents.
23. Coming to the age of the prosecutrix, Shri Ram Pal (PW4) father of the prosecutrix has deposed that date of birth of the prosecutrix is 1.4.1993. She was a student of 8th class at Siboli School when the incident in question had taken place. Prosecutrix also has given her date of birth as 1.4.1993. PW1 Lakshmi Diwedi was summoned to prove the date of birth of the prosecutrix when she was got admitted in Govt. Girls Sr. Sec. School Siboli, Delhi. She has deposed that as per admission and withdrawal register, Priya was admitted in the school in 6th class on 13.4.07 vide admission at serial number 2437. As per record date of birth of Priya is 1.4.1993. She was admitted in the school on the basis of SC.No.133/09 Page 26 of 34 27 application and transfer certificate issued by Principal DMC Primary School, Mandoli Extension, Delhi93. However, the oral testimony of the parents of the prosecutrix has been challenged by ld. Defence counsel on the ground that no date of birth certificate of the prosecutrix has been placed on record. As regards the school record is concerned, even the admission form of school as primary evidence regarding age of the prosecutrix has not been produced. The transfer certificate was procured after 39 days of the incident and 31 days after arrest of the accused which makes the story of prosecution doubtful. Reliance was placed on 1 (2010) CCR 23 (SC), 2004 (1) JCC 110. Moreover, when the prosecutrix approached Shri R.K.Saxena, Advocate to file a criminal complaint against her father and 23 other persons, she gave her age as 19 years and therefore it was submitted that the prosecution has failed to prove that prosecutrix was minor on the date of incident. The submission of ld. counsel for the accused has force in as much as Ram Pal father of the prosecutrix in his cross examination could not tell the year in which he got married. According to him, his first child namely Aarti was born after about two years of his SC.No.133/09 Page 27 of 34 28 marriage. There may be variation of six months to one year. He could not tell the age gap between his children. He did not produce date of birth certificate of the prosecurix. He went on stating that he is a labour by profession and is somehow meeting his both ends meet and is least concerned with the exact date of birth of his children. That being so, no authenticity can be attached to the date of birth of Priya as given in the school record. Similarly, mother of the prosecutrix Smt. Santosh has deposed that she got married about 2021 years back. She could not tell the date of birth of any of her children and also did not get prepared their horoscope. That being so, it seems that date of birth mentioned in the school record is by way of approximation only and there is no cogent and authentic proof regarding date of birth of the prosecutrix. Laxmi Diwedi (PW1) admitted that the date of the birth of the student was made on the basis of transfer certificate. 1 (2010) CCR 23, Sunil Vs. State of Haryana was also a case where date of birth was tried to be ascertained from the school leaving certificate produced by the prosecution. It was held by Hon'ble Supreme Court that the prosecution failed to produce any admission form of the school SC.No.133/09 Page 28 of 34 29 which would have been primary evidence regarding age of the prosecutrix and in view of attending circumstances appearing in the case, no reliance was placed on school leaving certificate on the basis of which date of birth of the prosecutrix was tried to be proved. Rakesh Kumar Vs. State (Supra) was also a case where age was tried to be proved on the basis of transfer certificate wherein date of birth of the prosecutrix was mentioned. It was held by Hon'ble High Court that the certificate does not indicate who got the prosecutrix admitted and on what basis date of birth was recorded therein, no birth certificate has been produced on record. In the absence of birth certificate and other document regarding date of birth, it cannot be said with certainly that date of birth of the prosecutrix as given in the school certificate is her correct date of birth. It was further observed that it is a matter of common knowledge that at the time of admission in the school, parents generally get the age of their ward recorded on the lower side so that they do not become over age while searching the job and they remain in service for longer period. In the instant case also, prosecution is trying to prove the age of the prosecutrix from the SC.No.133/09 Page 29 of 34 30 date of birth recorded in her school and as per the record brought by the witness, date of birth was recorded on the basis of transfer certificate issued by the earlier school. There is nothing to show as to on what basis entry regarding date of birth of prosecutrix was made in the earlier school. As regards the parents of the prosecutrix, they are unable to give exact date of birth and are giving the age by approximation only. That being so, there is not an authentic proof available on record regarding age of the prosecutrix.
24. On the other hand, when the prosecutrix approached Shri R.K.Saxena, Advocate, for the purpose of filing complaint against her father and three other unknown persons and complaint Ex.PW5/DX1 was made, at that time, she gave her age as 19 years. Similarly, when her statement Ex.PW5/DX2 was recorded by ld. CJM, Rampur, she gave her age as 19 years. In Harender Narain Vs. State of Bihar, AIR 1991 SC 1842 their Lordship of Hon"ble Supreme Court had reiterated the well known principle of the cardinal jurisprudence : "The basic rule of criminal jurisprudence is that if two SC.No.133/09 Page 30 of 34 31 views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and other to his innocence, the court should adopt the latter view favouring the accused.'
25. In view of this legal proposition, since as per the prosecution itself, two versions regarding the age of prosecutrix are forthcoming, therefore, the one favouring the accused has to be taken. That being so, prosecution has failed to prove that prosecutrix was minor on the date of incident.
26. The result of the abovesaid discussion is that prosecution has failed to establish that prosecutrix was taken or enticed by the accused out of lawful keeping of her guardianship or that she was minor on the date of incident. That being so, prosecution has failed to bring home the guilt of the accused under section 363 IPC.
27. As regards section 376 IPC is concerned, prosecutrix has alleged that she was subjected to rape by accused several times during the period 15.7.09 to 1.8.09 when she was recovered. The discussion made above clearly goes to show that prosecutrix has not been proved to be minor rather her consent was writ large. SC.No.133/09 Page 31 of 34 32 Moreover, when the prosecutrix was taken for her medical examination, two vaginal smears, pubic hair clipping and her underwear were taken by the doctor and were handed over to the investigating officer after sealing the same. Similarly, when accused was produced for his medical examination, the samples weer taken and were given to the investigating officer. During the course of investigation, the sealed parcels were sent to FSL Rohini and same were examined by PW12 Naresh Kumar Sr. Scientific Officer, who gave his biological report as PW12/A and serological report as PW12/C. A perusal of report Ex.PW12/A shows that although human semen was detected on underwear of the prosecutrix but it was not detected on the micro slides having whitish smear and hair clipping. The biological report gave no reaction regarding the semen on the under wear of the prosecutrix and the semen sample of the accused was putrefied and as such no opinion could be given. Therefore, this result does not prove case of prosecution. Tameezuddin (Supra) relied upon by ld. Counsel for the accused was a case where semen stains were found on the salwar of the prosecutrix but the blood sample of the accused was SC.No.133/09 Page 32 of 34 33 not taken, it was held by Hon'ble Supreme Court that the semen stains would at best be evidence of commission of sexual intercourse but not of rape. In the instant case also, in view of expert report, prosecution has failed to prove that prosecutrix was subjected to rape by the accused. As such offence under section 376 IPC is not proved.
28. It is also not proved that the prosecutrix was kidnapped by accused with intent that she would be compelled to illicit intercourse as such offence u/S 366 IPC is not proved.
As regards section 328 IPC is concerned, the allegations are made for the first time in the statement recorded under section 164 Cr.P.C. that accused put handkerchief on her face having some intoxication with the result she became unconscious. However, this was a material improvement in as much as no such allegation was made in her statement under section 161 Cr.P.C. Moreover medical evidence also does not substantiate this plea as such offence under section 328 IPC is not proved.
29. In view of the foregoing discussion, I hold that the prosecution has failed to bring home the guilt of accused beyond shadow of SC.No.133/09 Page 33 of 34 34 doubt. That being so, accused is entitled to benefit of same. He is accordingly acquitted while granting him benefit of doubt. He is in Judicial Custody. He be set at liberty if not wanted in any other case. File be consigned to record room.
Announced in the open Court (Sunita Gupta)
th
on this 8 day of July, 2010. District JudgeVII/NE/ASJ, Karkardooma Courts, Delhi.
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