Delhi District Court
Sc No. 81/14 : Fir No. 410/13 : Ps Begum Pur ... vs Dharmender Yadav on 2 August, 2016
SC No. 81/14 : FIR No. 410/13 : PS Begum Pur : State V/s Dharmender Yadav
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 81/14)
Unique Identification No.: 02404R0070812014
State V/s Dharmender Yadav
FIR No. : 410/13
U/s : 363/366A/342/376 IPC
& 6 of POCSO Act
P.S. : Begum Pur
State V/s Dharmender Yadav
S/o Sh. Kirpa Shankar Yadav
R/o K19, Prem NagarI,
Kirari, Delhi.
Date of institution of case : 29.03.2014
Date of arguments : 01.08.2016
Date of pronouncement of judgment : 02.08.2016
J U D G M E N T:
1. The facts of the case as borne out from the record are that on 15.11.2013 a
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missing persons report was lodged in P S Begum Pur by Sh. Ram Babu S/O Sh.
Ram Chander in respect of his daughter A, aged about 15 years (hereinafter
referred to as prosecutrix), who had been missing since about 10 p.m. on
14.11.2013. On the basis of aforesaid report case FIR in the matter was recorded
U/S 363 IPC. The efforts were made by the police to trace the prosecutrix but the
same could not materialized. On 14.12.2013 the prosecutrix herself came back
home. Her parents took her to PS from where she was taken to SGM Hospital for
her medical examination along with her parents. At the time of her medical
examination the parents of prosecutrix as well as prosecutrix did not permit her
internal gynecological examination to be conducted by the Doctor. Thereafter the
statement of prosecutrix U/S 164 CrPC was got recorded wherein she leveled
allegations of kidnapping, wrongful confinement and commission of repeated
penetrative sexual assault against the accused. The IO could not collect any
document with regard to the age of prosecutrix except for a copy of Aadhar card in
which her date of birth was found mentioned as 01.01.1998. The IO got the
ossification test with regard to the age of the prosecutrix conducted whereby as on
the date of her examination i.e. 04.04.2014 her age was estimated to be between 17
to 18 years. After conclusion of the investigation, the charge sheet was prepared
and filed in the court.
2. After supplying the copies of the charge sheet, arguments on the point of
charge were heard and on 09.05.2014, charges u/s 363/366/342 IPC and 5 (l) of
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Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as
the "Act"), punishable u/s 6 of Act, alternatively u/s 376 (2) (n) IPC were framed
against the accused, to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined as
many as 15 witnesses, whereafter the PE in the matter was closed and statement of
accused u/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent
and having been falsely implicated in the case by the prosecutrix at the instance of
her parents. He further stated that prosecutrix was having a love affair with him
and she had voluntarily accompanied him and lived with him as his wife and at
that time, prosecutrix told him that she was major. He further stated that during
prosecutrix's stay with him, he used to go out of Delhi due to her profession as
driver and at that time, the prosecutrix used to remain alone and she also used to
visit market etc., for purchasing household articles. He further stated that after one
month, when she went to meet her parents, her parents tutored her against him and
at the instance of her parents, she leveled false allegations against him. Accused
wished to lead evidence in his defence, but closed the same without examining any
defence witness.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State
and Sh. Sachin Sharma, ld Amicus Curie for the accused and perused the entire
material on record. Before adverting to the arguments advanced at bar, it would be
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appropriate to have a brief scrutiny of the evidence recorded in the matter, which
can be broadly classified into the following categories :
(a) Prosecutrix and her family members
(b) Public witnesses
(c) Medical Evidence
(d) Formal witnesses
(e) Evidence of police officials of investigation
(a) Prosecutrix and her family members
5. Prosecutrix in the present case was examined as PW8 and the relevant
portion of her testimony is as under :
"xxxxx
. Mere papa chai ki dukan chalate hai. Accused
Dharmender jo ki aaj court mein present hai mere papa
ki dukan par chai pene aata tha. Ek din hamare gali k
bahar shaadi ho rahi thi, isliye mein bahar park ki taraf
urine pass karne chali gayi thi. Accused Dharmender
pata nahi kaise park mein aa gaya. Usne piche se mere
muh bandh kar liya aur phir wo mujhe uthakar kar
thodi aage khadi gaadi mein daal diya. Gaadi me ek
driver tha. Wo mujhe uss car mein ek kamre par le
gaya aur mujhe dhamkaya ki kisi ko kuch nahi batana,
nahi to wo mujhe jaan se maar dega. Usne mujhe uss
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kamre mein ek mahine tak rakha. Wo roj mere saath
galat kaam karta tha aur subah mujhe bandh karke
chala jata tha.
Court Ouestion: Beta, galat kaam se aap kya samjhate
ho?
Ans. Galat kaam matlab jabardasti karna, bina marzi
ke mere saath usne shaadi wale sambandh banaye the.
Court Question: Beta shaadi wale sambadh se kya
matlab hai aapka?
Ans. Usne hamare saath balatkaar kiya tha.
(Witness very hesitatingly spoke the word
"Balatkaar").
Kabhi Kabhi khana wo Hotel se lata tha aur kabhi
kabhi mere se bhi banwata tha. Usne makaan maalik
ke samne mujhe apne patni bataya tha aur kamre
mein aakar mujhe dara diya tha ki mein bhi sab ke
samne aise hi batau. Ek din, mein bahut dukhi ho
gayi thi aur maine shor macha diya tha. Uske baad
makan maalik ko bula liya tha. Mujhe darwaza
kholkar makan maalik ne kamre se bahar nikala.
Accused Dharmender wahan par thodi der mein aa
gaya, phir Makan Maalik ne hame wahan se nikal
diya. Uske baad Dharmender mujhe apne ek dost k
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ghar le gaya aur wahan par mujhe ek hafta rakha.
Dharmender wahan se achanak gayab ho gaya. Uske
dost ne mujhse pucha to maine usko sab baat bata di.
Tab uska dost mujhe sadak par ek petrol pump ke
samne chod kar chala gaya. Wahan se mere papa ki
chai ki dukan najdik padti thi, phir mein apne aap
papa ki chai ki dukan par chali gayi. Uske baad papa
mujhe PS lekar gaye. Police walo ne mere bayan
likhe, meri doctori jaanch karai. Wahan par meine
apni andoorni jaanch karane ke liye mana kar diya
kyunki mujhe police ne aisa bolne ke liye kaha tha.
xxx"
During crossexamination by learned Amicus Curie, she stated as
under :
"xxxx
Police ne mera bayan do baar likha tha.
Meine apne bayan mein police ko wo sab batein
poori tarah se bata di thi jo uss waqt mere saath hua
tha. Meine Judge Madam ko bhi saari batein bata di
thi. Mein accused dwara dhamka kar car mein
daalkar le jane ki baat police tatha judge madam,
dono ko batai thi.
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Meine police ko tatha judge madam ko
yeh baat bata di thi ki mulzim ne mujhe makan
maalik ke samne apni patni bataya tha tatha yehi baat
usne mujhe auro ko batane ke liye bola tha.
Meine police ko tatha judge madam ko
yeh baat bata di thi ki mulzim mujhe apne ek dost ke
ghar chodkar baag gaya tha tatha mere saath jo gathit
hua, wah meine uske dost ko bata diya tha jo mujhe
ek CNG station par chodkar chala gaya tha. (witness
was confronted with all the statements by the ld.
Amicus Curie, but fact about intimidation was not
found therein)
Mera janam Delhi ke bahar hua tha, par
mujhe wo jagah nahin maloom hai. Mera bada bhai
23 saal ka hai aur chote bhaiya 22 saal ka hai. Mere
mata pita ne mere janam ke baad koi janampatri nahi
banawai thi. Mujhe nahi pata ki mere mata pita ne
mere janam ka koi pramaan ya pradhan se likhi koi
chithi haasil ki thi ya nahi. Jab mera Aadhar Card
bana, tab maine janam ke parmaan ke liye koi kagaz
jama nahi karaya tha. Jo umar meine uss samay
batai thi, wo unhone mere Aadhar Card mein likh di
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thi. Ye kehna galat h ki mere umar ghatna ke din 18
saal se jyada thi. Ye kehna galat h ki police ko,
judge sahab ko aur kal court mein meine apni umar
IO madam ke kehne par 16 saal likhwai thi.
Ghatna se pehle meine accused
Dharmender ko apni pita ki chai ki dukaan par pehle
kabhi nahi dekha. Park mein uss samay koi nahi tha.
Meine shor nahi machaya, kyunki unhone mere muh
bandh kar diya tha aur meine hatha pai karne ki bhi
koshish ki thi. Mere wapis aane par meine apne pita
ya police ko driver ka hulia aur gaadi ka number nahi
bataya tha. Mujhe uss kamre mein pahunchne ka
time yaad nahi h, par hum bahut der bad pahunche
the. Shayad hame 34 hrs se jyada lag gaye honge.
Hame chowks par tatha red lights par police nahi
mili. Raat ko jab hum kamre par pahunce, to makan
maalik ne kamre ka darwaza khola tha. Ye kamra
doosri manzil par tha. Uss manzil par do aur kamre
the par wo khali the. Mujhe nahi pata ki wo makan
kitne gaz mein bana hua tha. Pehli manzil par ek hi
kamra bana hua tha. Upar teen kamro ke liye ek hi
common toilet tha. Jahan par mujhe rakha gaya tha,
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uss kamre ke aas paas aur bhi ghar the, aur wahan
par log rehte the. Accused mujhe hamesa darata
rehta tha ki kabhi kisi ko kuch mat bolna, nahi to wo
mere bhatije ko utha lega. Meine ye baat police ko
apne bayan mein nahi batai thi.
Mein ek din makan maalik ko ye baat
bata di thi ki accused mujhe jabaradasti utha kar laya
hai aur mere saath roj jabardasti galat kaam karta hai.
Mein police ko naa to uss kamre par jahan accused
ne mujhe ek mahine rakha tha aur naa hi accused ke
dost ke ghar par kabhi lekar gayi. Vol. Kyunki
mujhe wo jagah pata hi nahi hai.
Jis din mere bayan judge sahab ke
saame court mein hua tha, uss din mere saath meri
mummy aur police madam aayi thi. Police madam
ne mujhe judge sahab ke samne kya bolna aisa kuch
nahi bataya tha. Kal court mein mujhe subah police
wali madam mili thi. Ye baat thik h ki kal police
madam ne mujhe mere bayan padhkar sunaye the.
Mere milne ke baad, mein apne pitaji aur police ke
saath accused ko dundhene kabhi nahi gayi.
Ye kehna galat h ki mein khud apni
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marzi se accused ke saath gayi thi tatha mere upar
koi dabao nahi tha. Ye kehna galat h ki mein
accused se pyaar karti thi aur hum pehle se sochi
samjhi saajis ke tahat accused ke saath gayi thi. Ye
kehna galat h ki accused ne mujhe bahut pyaar aur
dulaar ke saath rakha, isliye meine wahan par
neighbours aur makan maalik ko kisi kism ki koi
shikayat nahi ki. Ye kehna galat h ki jab ek mahine
baad mein apne parents se milne aayi to unhone
mujhe blackmail karke accused ke khilaaf joothi
complaint karne ko kaha. Ye kehna galat h ki meine
accused ke khilaaf complaint apne pitaji ke dabao
mein kari. Ye kehna galat h ki mere police ke samne
bayan, judge sahab ke samne bayan aur kal court
mein diye bayan, joothe aur mangandh hai aur pitaji
ke dabao mein diye gaye hai. Ye kehna galat h ki
mere saath accused ne koi sharirik jabardasti nahi ki
yaa koi chootte nahi pahuncahi, isliye meine apni
doctori jaanch ke liye mana kar diya tha. Ye kehna
galat h ki ye mere joothe bayan hai.
Court Question: Beta, aapko Nirmal Chaya mein
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kyu rakha hua jabki apke mata pita Delhi mein rehte
hai tatha aap kitne samay se Nirmal chaya mein
hai?
Ans. Mein karib ek mahine se Nirmal Chaya
mein reh rahi hu kyunki meri chachi ne mujhe ulta
sidha bol diya tha ki kuch kaam dhaam nahi karti,
jab bhi kaam par lagwate hai to wahan se bhaag
aati hai. Mein apni marzi se Nirmal Chaya mein reh
rahi hu.
xxx"
6. PW14 Sh. Ram Babu, father of the prosecutrix, deposed that probably on
15th day of November, 2012, at about 10: 00 p.m. prosecutrix, aged about 16 years,
had gone missing from his tea shop and after coming to know about this, he had
lodged her missing report Ex. PW1/A in the morning and a case was registered
in this regard by the police. He further deposed that on 15.12.2012, prosecutrix
came back home at about 4:00 a.m. and on inquiry, she disclosed that she had
been kidnapped by accused and after coming to know of this, he immediately
produced her before the police in the P.S. He further deposed that accused was a
bus conductor by profession and used to come to his tea shop for tea etc.
During crossexamination by learned Amicus Curie, the witness admitted
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that police had not recorded his statement in this matter. He volunteered to state
that at the time of recording of missing report, his statement was recorded. He
further stated that prosecutrix was born at his native village at District Aligarh,
U.P and he was not having any birth certificate/ document like Jamanpatri or
certificate of Village Pradhan in the name of prosecutrix. He admitted that in the
Aadhar card issued in the name of prosecutrix, her date of birth was got
recorded on the basis of estimation. He further that there was a age difference
of about 4 ½ years between prosecutrix and his elder son. The witness failed
to comment, whether prosecutrix was more than 18 years of age as on the
date of incident i.e. 14.11.2013. He denied that accused and prosecutrix used to
like and love each other and for that reasons prosecutrix had left his house with the
accused as per her own will or she returned on 15.12.2013 to meet him and his
family, however they did not allow her to return back and got accused falsely
implicated in the present case. He denied that accused had treated prosecutrix with
utmost love and care during the period she stayed with him.
7. PW15 Sh. Hori Lal, brother of PW14, deposed that in the month of
December, 2013 he had come from Kachh to Delhi in the winter vacations after
coming to know about the case of his niece. He further deposed that on
02.01.2014, at about 8.00 pm, he was present at the tea shop of his brother Ram
Babu, when accused came there in drunken condition and created nuisance by
saying " A.... Kahan hai A..... Khana hain" and on the pointing out of Ram
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Babu, he apprehended the accused with the help of other persons present there. He
further deposed that police was called and thereafter, the accused was taken to the
PS by the police officials.
(b) Public witnesses
8. PW3 Sh. Vinod Kumar, deposed that on one day during winter season of
this year at about 6:30 p.m, he had reached with his bus near CNG Pump probably
in Sector23, Rohini, as usual and at about 7:007:30 p.m, one old lady came to
him weeping and asked him to call the police and he accordingly, called the
police at 100 number by his phone No.9812959655. He further deposed that,
police officials made inquiries from him and he told them to contact the old lady
and her husband, who were sitting at the tea stall, from where he used to take tea
daily.
As he did not depose as per his statement recorded u/s 161 Cr.P.C, he was
crossexamined by ld. Addl. PP and during the said crossexamination, his
statement mark X recorded u/s 161 Cr.P.C was read over to him and he admitted
the same to be the correct statement, which was recorded by the police. He termed
it correct that due to lapse of time, he could not recollect the facts mentioned in
his statement.
During crossexamination by learned Amicus Curie, he admitted that he had
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seen his statement first time in the court and he was not aware about the contents
thereof. He termed it correct that he was not aware as to what had happened at the
said tea stall or why he was made a witness in this case.
9. PW4 Sh. Ashutosh Kumar Bajpai, one of the friends of the accused,
deposed that few days after Deepawali of year 2013, accused came to his house
and told him that he wanted to bring his wife from the Village and for that he
wanted a separate room and thereafter, he accompanied accused for arrangement
of a rented room in the area of Vijay Vihar, where a room was taken on rent @
Rs. 1,200/ per month from PW7 Sh. Shiv Bahadur. He further deposed that at
that time, accused was alone and nobody was accompanied him. He further
deposed that after some days, accused called him from his mobile phone and
asked him to reach near M2K and on reaching there, he found accused in the
custody of police and thereafter, police made inquiries from him.
As he did not depose as per his statement recorded u/s 161 Cr.P.C, he was
crossexamined by ld. Addl. PP and during the said crossexamination, his
statement u/s 161 Cr. PC, Mark PW4/A was read over to him, but he denied some
portions of his said statement. He denied that accused had brought the prosecutrix
to his house or that they had stayed at his house for about one week or that
within the said period, prosecutrix had told him that accused had kidnapped her
from her parental home at Sector22, Rohini or that he had thereafter committed
repeated sexual assault upon her and gave her to beatings also. He further denied
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that after hearing these facts from the prosecutrix, he had asked accused to leave
his house and he had left the prosecutrix near her house.
10. PW7 Sh. Shiv Bahadur, owner of House no. G83, Vijay Vihar, PhaseI,
Delhi, deposed that on the guarantee of PW4, he had given one room on rent @
Rs. 1200/ per month to accused, who told him that he wanted to bring his wife
from village and , he was making prior arrangement for it. He further deposed that
accused and PW4 had agreed for the police verification of accused.
He further deposed that on 15.11.2013, accused had brought his wife from
village and he also brought luggage with him and on next day, accused went to
Punjab on a bus, on which, he was working as a driver, without giving the copy of
his voter Icard. He further deposed that he took phone number of the accused
from his wife and told him to come back and to give him the copy of his voter I
card or to vacate the room, on which accused promised to come on next day, but
when he came, he told him that his bus had met with an accident (khai me gir gai)
and that his documents had been lost. He further deposed that despite giving
extension of time, accused did not give the copy of his Voter Icard and kept on
evading the same, on one pretext or the other and finally, he told him that his
documents were lying deposited at Police Station and hearing this, he immediately
told the accused to vacate his room and thereafter, on 25.11.2013, he vacated his
room.
During crossexamination by learned Amicus Curie, he deposed that accused
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and the prosecutrix used to stay happily in the tenanted room and since
accused used to be away for work, prosecutrix used to bring vegetables,
ration etc. from the market. He further stated that there were two other girls
staying as tenant in another room and prosecutrix used to go to market with
them also to buy clothes etc. He further stated that accused and prosecutrix
never quarreled with each other and he had never seen prosecutrix crying.
He further deposed that accused and prosecutrix used to live like husband
and wife and prosecutrix used to put vermilion on her forehead.
(c) Medical evidence
11. PW5 Dr. Monika Chopra, SR Gynae, has proved the MLC of prosecutrix as
Ex. PW5/A by identifying the handwriting and signatures of Dr. Usha and
deposed that as per the MLC, mother of the prosecutrix had refused for
gynecological examination of prosecutrix.
12. PW6 Dr. Vijay Dhankar, HOD (Forensic Medicine) of Dr. B.S.A Hospital,
had examined the accused and given report Ex. PW6/A about his potency and he
deposed regarding the same.
13. PW9 Dr. Mahipal Singh, had examined the accused vide MLC Ex. PW9/A
and deposed that after examination, undergarments of the patient and blood sample
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were taken and handed over to the IO.
(d) Evidence of Formal witnesses
14. PW1 HC Munde Gyanoba was lying posted as Duty Officer in PS Begum
Pur at the relevant time and he proved the attested copy of DD no. 16A as Ex.
PW1/A and photocopy as Ex. PW1/B, recorded by him on receipt of
information about missing of the prosecutrix from her home, through her father.
He also proved the computerized copy of FIR as Ex. PW1/C and certificate u/s
65B of Evidence Act as Ex. PW1/D.
15. PW2, Ms. Shefali Barnala Tandon, ld. M.M, in her evidence has proved
statement of prosecutrix as Ex. PW2/B, recorded by her under Section 164 Cr.P.C
on 16.12.2013.
(e) Evidence of police officials of investigation
16. PW11 SI Sandeep Tushir, initial IO of the case, deposed that on
15.11.2013, after registration of the FIR, DD no. 16A was marked to him and he
along with complainant/PW14 Ram Babu went to the spot, i.e opposite CNG
Pump, sector21, Rohini and made efforts to trace the prosecutrix, but in vain and
thereafter, he conducted all the formalities regarding the missing of prosecutrix
such as sending WT message and sending publication in newspaper. He further
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deposed that on 14.12.2013, prosecutrix along with complainant came to PS and
W/SI Manju made inquiries from her.
He further deposed that on 03.01.2014, he had recorded accused's
disclosure statement Ex. PW11/A. He further deposed that on 04.01.2014,
accused led him and Ct.Sanjay to G83, Ghoda Mandir wali Gali, Vijay Vihar,
PhI and pointed out towards a rented room at first floor, where he had kept the
prosecutrix and he accordingly prepared pointing out memo Ex. PW11/B of said
room. He further deposed about preparation of the site plan Ex PW11/C, about
getting the accused medically examined at SGM Hospital vide MLC Ex. PW
11/D and about recording of statements of Shiv Bahadur, Ashutosh Vajpayee and
Ct.Sanjay. He further deposed that on 10.01.2014, the further investigation was
handed over to PW12 WSI Manju .
During crossexamination by learned defence counsel, he denied that he had
not conducted the fair investigation or that his investigation was biased against the
accused. He further denied that he did not record the statement of Ashutosh
Vajpayee and Shiv Bahadur or that same were manipulated by him as per his
convenience.
17. PW13 SI Virender, one of the I.Os, deposed that in the intervening night of
02/03.01.2014, at about 8.35 pm, after entrustment of DD no. 36A Ex. PW13/A
regarding apprehension of a thief near CNG pump, Sector22, Begum Pur, Delhi,
he along with Ct. Charan Singh went there and came to know that one boy i.e.
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accused, who had been beaten by the public persons, was removed to the police
station by the PCR van and thereafter, he returned to PS and made inquiries from
the accused. He further deposed that on inquiry, he came to know that accused
was wanted in FIR NO. 410/13 u/s 363/366/376 IPC and Section 6 of POCSO Act
of PS Begum Pur and thereafter, he got the accused medically examined from
SGM Hospital and narrated the entire facts to the SHO and DD No. 36 A was kept
in abeyance vide DD No. 59 B. He further deposed that on 03.01.2014 accused
was handed over to PW10 SI Pawan Kumar by the order of SHO vide DD No. 7
A.
18. PW10 SI Pawan Kumar, one of the IOs of the case, deposed that in the
intervening night of 2/3.01.2014, after handing over of the further investigation, SI
Virender had handed over accused to him and informed him that after receipt of a
call regarding the beating of a thief near CNG petrol pump, sector22, Rohini, he
had gone there and found accused and on inquiry, accused informed him that he
had again gone to the house of prosecutrix, where he was beaten by public. He
further deposed that he made inquiries from the accused and took him to the place
of incident, i.e near CNG Pump, Sector22, Rohini, where prosecutrix identified
him and he recorded the statement of prosecutrix U/s 161 Cr.P.C. in this regard.
He further deposed that on return to PS Begumpur, he formally arrested accused
vide arrest memo Ex. PW10/A and got him personally searched vide memo
Ex.PW10/B. He further deposed about medical examination of the accused vide
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MLC Ex. PW9/A, about seizure of the accused's exhibits vide memo Ex. PW
10/C, about recording of the statements of the witnesses.
During crossexamination by ld. Amicus Curie, he stated that when he
had reached at CNG Pump with accused, he had not met any public person. He
further stated that he had not recorded the statement of parents of prosecutrix.
19. PW12 W/SI Manju is also one of the I.Os of the present case and she
deposed that after handing over of further investigation in the matter, she recorded
the statement of prosecutrix and got her medically examined at SGM hospital vide
MLC Ex. PW5/A, but prosecutrix as well as her mother refused for the internal
gynecological examination of prosecutrix. She further deposed about getting the
statement of the prosecurix recorded u/s 164 Cr.P.C vide her application Ex. PW
2/A and about collecting copy thereof vide application Ex. PW2/D. She further
deposed that on 10.01.2014, after handing over further investigation of the present
case, she got the ossification test of prosecutrix conducted at SGM Hospital and
collected copy Ex PW12/B of Aadhar card of the prosecutrix and seized the same
vide memo Ex. PW12/A. She further deposed that she recorded the statement of
witnesses, prepared the chargesheet and filed the same in the court.
Arguments advanced at bar
20. The Ld Addl. P P for the State has very vehemently argued that as on the
date of incident the prosecutrix was a child within the meaning of Section 2 (d) of
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the Act. It is further argued that she has been consistent in her statement recorded
U/S 164 CrPC and her evidence recorded in the court with regard to her kidnapping
and commission of repeated penetrative sexual assault upon her by the accused and
as such the conviction of the accused in the matter for the charged offences has
been prayed for.
21. Per contra, Ld Amicus Curiae for the accused has argued as under:
a. that the prosecution has miserably failed in
proving the fact that the prosecutrix was a child within
the meaning of Section 2 (d) of the Act.
b. that the prosecutrix is not a trustworthy witness on
account of her conduct which she has exhibited in the
matter and as such no explicit reliance can be placed
upon her testimony and the same cannot be the sole basis
of the conviction of accused in the matter.
c. that the medical evidence does not support the
prosecution case.
22. My pleawise findings in the matter are as under:
Plea with regard to the age of the prosecutrix:
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23. In cases involving sexual assault, the age of the prosecutrix plays a vital
role, the question of consent will very much depend upon the age of the
prosecutrix. In the present case, to prove the age of prosecutrix the prosecution has
relied on both the Oral as well as Documentary evidence.
24. Oral Evidence adduced by the prosecution consists of the statement of
prosecutrix recorded under section 161 Cr.P.C., her statement recorded U/S 164
Cr.P.C. and her deposition of age before the doctors. In all the three statements,
prosecutrix stated her age as 15 years on the alleged date of the incident whereas
the Documentary evidence relied upon by the Prosecution consists of a copy of her
Aadhar Card Ex P.W. 12/B, wherein her date of birth is mentioned as 01.01.1998
which means at the time of alleged incident prosecutrix was 15 years and 10
months of age. It is pertinent to note that prosecutrix as well the prosecution out
rightly admit that prosecutrix never attended any school during her life time.
25. It is relevant to understand the authenticity of entry of date of birth made in
the copy of Aadhar card of the Prosecutrix. She categorically deposed in this
regard that while filing application for Aadhar card she did not provide any
document to substantiate her claim with respect to date of birth. She further stated
that whatever age she got mentioned in the application, the same was got recorded
therein without verification.
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26. As per P.W.12 W/SI Manju, she had got the Ossification Test of Prosecutrix
conducted at SGM Hospital and had obtained the report in respect thereof, however
the said report has not been proved in accordance with law. Even if the said report
is treated as correct the age estimation of the prosecutrix which has been mentioned
in the said report is between 1718 years as on 04.04.2014. The incident in the
matter had taken place on 15.11.2013. It is settled law that if two views about the
interpretation of a document are possible then the one which favours the accused
has to be preferred. Therefore, the age of the prosecutrix in terms of this document
was more than 18 years as on the date of incident. I am fortified in my aforesaid
opinion by law laid down in judgment titled as State of Himachal Pradesh vs.
Krishan Kumar, 2010 (1) Crimes 312 (H.P.), wherein in paragraph 5, it was held
that :
"xxxx
5. .......... This type of evidence is only by estimation and the
learned trial court, after referring to the evidence, had
concluded that this evidence cannot be relied upon to
determine the age of the prosecutrix. In case, the parents of
the prosecutrix themselves are not aware of the dates of birth
of their children, how the age given by them by approximation
of different children can be looked into to fix the date of birth
of the prosecutrix. The learned trial court had also referred to
the evidence of radiologist, PW3 Dr. J.R. Azad, who, after
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conducting epiphysis test of the prosecutrix, had given her age
as more than 141/2 years but below 161/2 years. According
to law, there can be variation of two years on either side in
such reports and accordingly, the age of the prosecutrix
can be said to be more than 18 years. The prosecutrix
herself, who appeared in the witness box as PW4, has not
been able to state her age and prove any entry in regard to her
age.
xxxx"
27. Thus, in the present case the Aadhar Card Ex P.W. 12/B cannot be said to be
authentic and casts a doubt on the version of the prosecution with respect to her .
Therefore, there is no birth entry on the basis of which it could be proved that date
of birth of the prosecutrix is same as reflected in Aadhar Card or stated by her by
way of Oral evidence.
A combined reading of testimonies of Prosecutrix P.W. 8, father of the
prosecutrix P.W. 14 and the I.O. P.W. 12 are relevant to understand whether there
was a deliberate attempt to shield the correct age of the prosecutrix. Prosecutrix
P.W. 8 in her cross examination at Page 2, Line No.4 from Top stated that
"Mera Janam Delhi ke bahar hua tha, par mujhe wo
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jagah nahi maloom hai. Mera bada bhai 23 saal ka hai
hai aur chote bhaiya 22 saal ka hai. Mere Mata Pita ne
mere janam ke baad koi Janampatri Nahi Banawai thi.
Mujhe nahi pata ki mere mata pita ne mere janam ka koi
pramaan ya pradhan se likhi koi chithi haasil kit hi ya
nahi".
28. This version makes it ample clear that whatever and wherever the
prosecutrix had narrated her age the same was solely on the basis of estimation or
on the basis of tutoring given by the I.O/Police officials.
29. That the father of prosecutrix in his cross examination (Post Lunch session)
at page 1 stated that :
"xxx
I do not have any birth certificate/document like
janampatri or certification of village pradhan in the name
of prosecutrix. It is correct that in Aadhar Card iisued in
the name of prosecutrix her date of brith was got
recorded on the basis of estimation".
He further deposed
"My elder son is presently aged about 26 years. There is
a age difference of about 4 and half years between
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prosecutrix and my elder son. I cannot admit or deny
that as on date of incident i.e. 14.11.2013 prosecutrix
was more than 18 years of age
xxx".
30. The above deposition of father of prosecutrix makes it amply clear
that she was more than 18 years of age on the alleged date of incident. The
calculation makes it clear that while the elder son of PW14 is 26 years on the date
of deposition i.e on 09.12.2015 he was 24 years on the date of incident and
according to P.W.14 there is age difference of 4 and half year between prosecutrix
and her elder brother which makes prosecutrix 19 and half years on date on
incident. This narration by the father of the prosecutrix clears all doubts regarding
the age of the prosecutrix and according to his deposition prosecutrix was more
than 19 years of age on the alleged date of incident.
31. Combined reading of the testimonies of these three witnesses suggests that
there was deliberate attempt to shield the correct age of the prosecutrix by way of
Aadhar Card and the age got recorded by prosecutrix cannot be believed to be 15
years.
Plea with regard to the conduct of the prosecutrix.
32. The Ld. Amicus Curie has argued that no explicit reliance can be placed
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SC No. 81/14 : FIR No. 410/13 : PS Begum Pur : State V/s Dharmender Yadav
upon the testimony of prosecutrix as she has been projected as a sterling witness in
the matter and if the conviction in the matter is to be based solely upon her
evidence then its quality has to be of the standard laid down by the Hon'ble
Supreme Court of India in "Rai Sandeep @ Deepu v. State of Delhi, cited as
(2012), 8 Supreme Court Cases 21, as under :
"xxx
A "sterling witness" should be of a very high quality and calibre
whose version should, therefore, be unassailable. The court
considering the versions of such witness should be in a position
to accept it for its face value without any hesitation. To test the
quality of such a witness, the status of the witness would be
immaterial and what would be relevant is the truthfulness of the
statement made by such a witness. What would be more
relevant would be the consistency of the statement right from
the starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately before the
court. It should be natural and consistent with the case of the
prosecution qua the accused. There should not be any
prevarication in the version of such a witness. The witness
should not be any prevarication in the version of such a witness.
The witness should be in a position to withstand the cross
examination of any length and howsoever strenuous it may be
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and under no circumstance should give room for any doubt as to
the factum of the occurrence, the persons involved, as well as
the sequence of it. Such a version should have corelation with
each and every one of other supporting material such as the
recoveries make, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion . The
said version should consistently match with the version of every
other witness. It can even be stated that it should be akin to the
test applied in the case of circumferential evidence where there
should not be any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged against him. Only
if the version of such a witness qualifies the above test as well
as all other such similar tests to be applied, can it be hold that
such a witness can be called as a "sterling witness" whose
version can be accepted by the court without any corroboration
and based on which the guilt can be punished. To be more
precise, the version of the said witness on the core spectrum of
the crime should remain intact while all other attendant
materials, namely, oral, documentary and material objects
should match the said version in the material particulars in order
to enable the court trying the offence to rely on the core version
to sieve the other supporting materials for holding the offender
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SC No. 81/14 : FIR No. 410/13 : PS Begum Pur : State V/s Dharmender Yadav
guilty of the charge alleged.
Xxx"
33. Let us analyze the conduct of the prosecutrix to know as to whether her
evidence can be categorized to be of that of a sterling witness as expounded by the
Hon'ble Supreme Court of India in the above referred judgment.
34. In her statement recorded U/S 164 CrPC i.e. Ex. PW 2/B, the prosecutrix
had stated that on the date of incident at about 10 p.m. when she had gone to a
park nearby the shop of her father, to ease herself, the accused had kidnapped her
by gaging her mouth and putting her inside a car . He had thereafter taken her to a
room where he kept her confined for about one month and he used to commit
forcible penetrative sexual assault upon her . She further stated that when one day
on her raising alarm, the landlord having come to know about her illegal
confinement he got the tenanted room vacated from the accused. Thereafter the
accused took her to the house of one of his friends where he kept her for a period of
one week and subsequently left her at her house. In her evidence recorded in court
also she almost stuck to her aforesaid stand.
35. If the evidence of prosecutrix is seen in the light of the evidence of PW7 i.e.
the landlord of the house where the prosecutrix had stayed with the accused and
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PW4, the friend of the accused who had arranged the said tenanted
accommodation for her then it would be clearly evident that the prosecutrix had
gone along with the accused of her own sweet Will, stayed with him till the time
she liked it and thereafter herself abandoned the accused and came back to the
house of his father. It is also evident on record that even after coming back to the
house of her father the prosecutrix had a quarrel with her aunt and she again left
her home and presently she has been lodged in Nari Niketan .
36. Relevant extract of the deposition of PW7 is as under:
"xxx
On 15.11.2013, the accused brought his wife from village.
He also brought Luggage with him. Accused did not give
me his voterID and on next date, he went to Punjab on a
bus, on which, he was working as a driver. I took phone
number of the accused from his wife A ( name withheld)
xxx"
.
In cross examination he voluntarily stated that both prosecutrix and accused Dharmender used to reside with Prosecutrix as Husband and wife. He further deposed in his cross examination that "xxx Page 30 of 39 SC No. 81/14 : FIR No. 410/13 : PS Begum Pur : State V/s Dharmender Yadav Accused and the girl A (name withheld) used to stay in the tenanted room. Since, accused used to be away for work, Anita used to bring vegetables, ration etc. from the market. There were two other girls stayed as tenants in another room and A used to go market with them also to buy clothes etc. Accused and A never quarrelled with each other and i had never seen A Crying. Accused and A used to live like Husband and wife and in their normal interaction also, they appeared so. A used to put vermilion on her forehead xxx".
37. His narration clearly demonstrates that prosecutrix did not make any attempt to inform anyone that she had been kidnapped by the accused to compel her for marriage and further witness has not stated that prosecutrix made any hue and cry or even attempted to ran away from the clutches of the accused or even attempted to inform that she was not the legally wedded wife of the accused especially when the house of P.W.7 where prosecutrix was allegedly kept was located in thickly populated areas of Delhi. This witness clearly stated that there were other tenants also on the same floor and that the prosecutrix along with her neighbours used to go out to buy vegetables, clothes etc which clearly suggest that she was happily residing with the accused and that she was not residing under any undue pressure or force or coercion.
Page 31 of 39SC No. 81/14 : FIR No. 410/13 : PS Begum Pur : State V/s Dharmender Yadav
38. The conduct of prosecutrix thus, appears to be suspicious and it appears that she herself was willing to accompany the accused. The prosecutrix as held above, was a fully grown up girl and she was in the age of discretion, sensible and aware of the intentions of the accused that he was taking away for a purpose and it was expected of her to put up struggle and in any case raise an alarm to protect herself. From the evidence on record, it appears that no such steps were taken by her, In fact, she was willing and happily residing at the house of P.W.7 by freely moving, enjoying the company of neighbour and put vermilion on her forehead portraying herself as legally wedded wife of accused Dharmender.
WAS THE PROSECUTRIX A CONSENTING PARTY?
39. In cases of sexual assault, evidence with respect to consent cannot be obtained by direct evidence but same can be inferred from the surrounding circumstances enveloping the occurrence. The conduct of prosecutrix from the time of alleged kidnapping till the time of her alleged recovery belies her version. Even if the prosecution version is accepted in its totality, it would be established that the accused brought the prosecutrix to the house of P.W.7 Shiv Bahadur out of her own free will and consent.
The conduct of prosecutrix suffers from grave suspicion. Her testimony is crucial to clear the picture to a greater degree.
In her Examination in chief, Page 2 Line No.4, she deposed that Page 32 of 39 SC No. 81/14 : FIR No. 410/13 : PS Begum Pur : State V/s Dharmender Yadav "Accused Dharmender jo ki aaj court main present hai mere papa ki dukaan par chai pene aata tha".
While in her cross examination she narrated an entirely different version. She deposed at page 2 cross examination 3rd para first line "Ghatna se pehle main accused dharmender ko aapni pita ki chai ki dukan par pehle kabhi nahi dekha".
40. The Prosecutrix is guilty of twisting and deposing facts as per her convenience and has deliberately made false statement. The place where her father P.W.14 runs a tea stall is a busy place and remains active for people's movement throughout the day. The accused met the prosecutrix at the tea stall of her father and it was in pursuance of their preplanned arrangement that she had accompanied with the accused to Vijay Vihar. On the night of reaching at the house at Vijay Vihar she deposed in her examination in chief that they reached the house at Vijay Vihar after about 34 Hours and they found red lights without police officials and importantly the gates of the house at Vijay Vihar was opened by the landlord (as deposed by Prosecutrix). During the entire duration she neither cried nor raised alarm, she also did not disclose anything to anyone including landlord.
41. Testimony of prosecutrix does not inspire confidence nor it stands corroborated by any evidence whatsoever, it becomes extremely difficult to accept Page 33 of 39 SC No. 81/14 : FIR No. 410/13 : PS Begum Pur : State V/s Dharmender Yadav her version especially when she was not threatened by the accused at any point in time.
42. The version of the landlord that accused went to Punjab on bus where he was working clearly suggests that she had ample opportunities to escape from the clutches of the accused or to even make a complaint against him. The version of the prosecutrix casts a serious doubt upon the authenticity of her version. She stayed at house at Vijay Vihar for 12 days and then at the house of friend of accused for one week and during her stay at both the places she neither informed anyone about her relation with the accused nor she made any hue and cry on the day accused committed forcibly sexual intercourse against her wishes and without her consent nor she made any complaint to anyone including neighbours or tried to run away from the house of accused .
Even the alleged recovery of the prosecutrix was well within the clouds of doubts. She herself reached the house of her parents after about 4 weeks. No attempts for her recovery were either made by the police officials or by her parents during the entire period of one month. In this context the statement of accused gains viable importance. In his statement he states that prosecutrix went to meet her parents and under pressure from her parents she did not return back with the accused and when accused reached to the house of parents of prosecutrix they called the police and got him falsely implicated in the present case
43. It has been held in a case tiled as Nand Kishore Vs State of Rajasthan, Page 34 of 39 SC No. 81/14 : FIR No. 410/13 : PS Begum Pur : State V/s Dharmender Yadav reported 2002 Cr. L. J. 4157 that : "xxx It is most respectfully submitted that the above conduct/ behaviour would not be natural for a girl who had been compelled to marry and subjected to illicit sexual intercourse.
It is a settled legal proposition that once the statement of prosecutrix inspires confidence, it is to be accepted by the court as such and conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court to seek 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 Page 35 of 39 SC No. 81/14 : FIR No. 410/13 : PS Begum Pur : State V/s Dharmender Yadav 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.
xxx"
44. It has also been held in the case of Tameezuddin @ Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566, : "xxx It is true that in a case of rape the 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 appreciation of evidence in a criminal matter.
xxx"
45. Similarly, it has been further held in the case of Jai Krishna Mandal & Anr.
Page 36 of 39SC No. 81/14 : FIR No. 410/13 : PS Begum Pur : State V/s Dharmender Yadav Vs. State of Jharkhand, (2010) 14 SCC 534, as under : "xxx The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed.
xxx"
46. See the matter from any angle the consent of proseuctrix in the matter is writ large.
47. Suspicion, however grave it may be cannot take the place of proof, and there is a large difference between something that "may be" proved and "will be proved". In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for reason that mental distance between "maybe" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, court has duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be"
true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied, in such Page 37 of 39 SC No. 81/14 : FIR No. 410/13 : PS Begum Pur : State V/s Dharmender Yadav cases, while keeping in mind the distance between "may be" true and "must be"
true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touch stone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well the quality and credibility of evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of the case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt but a fair doubt that is based upon reason and common sense.
Plea with regard to the medical evidence not supporting the case of prosecution.
48. A perusal of Ex. PW 5/A i.e. the MLC of prosecutrix reveals that at the time of her medical examination she had not levelled any allegation against the accused either of kidnapping or committing sexual assault upon her. On the contrary she categorically stated that she had herself gone along with the accused. She had even refused for her internal gynecological examination. Therefore, the medical evidence does not support the allegations of the prosecutrix.
49. In view of the aforesaid discussion it is clearly evident that the prosecution has miserably failed in proving the charged offences against the accused. The accused accordingly stands acquitted of the charged offences. He has been in Jail throughout the trial. He shall be set free forthwith, if not required to be detained in Page 38 of 39 SC No. 81/14 : FIR No. 410/13 : PS Begum Pur : State V/s Dharmender Yadav some other case.
50. Before parting this court would like to place on record appreciation of the learned Amicus Curie Sh. Sachin Kumar Sharma, advocate for his valuable assistance rendered to this court.
51. File be consigned to Record Room after compliance of Section 437A Cr.P.C.
Announced in the open Court (Vinod Yadav)
on 02.08.2016 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
Page 39 of 39