Delhi District Court
State vs Accused on 14 December, 2011
IN THE COURT OF DR. T.R. NAVAL:ADDITIONAL
SESSIONS JUDGE-II:EAST DISTRICT:KARKARDOOMA
COURTS: DELHI
SC NO. 19/09 Date of Institution :29.01.2009
FIR No. 390/08 Date of Argument :14.12.2011
PS Krishna Nagar Date of Order :14.12.2011
U/S 363/366/506(II)/34 IPC
State Versus Accused
1 Suresh @ Sahil
S/o Sh. Khimman
R/o H.No.672, Jheel Khurenja,
Krishna Nagar, Delhi-51.
2 Resham Pal
S/o Sh. Gunni Singh
R/o H.No.52, Gali No.9,
Sabauli Village, Delhi.
JUDGMENT
The prosecution case in brief is that on 02.09.2008. Accused Suresh Kumar and accused Resham Pal in furtherance of their common intention kidnapped/abducted prosecutrix Sarita to compel her to marry with accused Suresh Pal and they further threatened her to kill her if she raises alarm. The prosecutrix Sarita filed her complaint dated 08.09.2008 before Additional Commissioner of Police, Geeta Colony, against Sh. Suresh SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 1 of 25 @ Sahil, Smt. Nanvai, Sh. Joginder, Sh. Yuvraj, Sh. Sunder, Sh. Resham Pal, Smt. Lali, Sh. Deepak, Smt. Laila Ravi, Sh. Vibhu, making allegations against them that she was daughter of Sh. Ved Prakash r/o H. No. 675, Gas Kataria Walia Gali, Jheel Khurenja, Delhi and she was a student of 9th class of Government School No.3, Gandhi Nagar, Delhi. On 02.09.2008, when she was going for her tuition, then at the street, the above named accused persons surrounded her and Sh. Khimman and his daughter Mrs. Lali and son in law Resham Pal caught hold of her and made her to sit in TSR and they also boarded TSR while catching hold of her. Sh. Resham Pal put a handkerchief on her mouth. She felt intoxicated. They took her to Arya Samaj Mandir, Yamuna Bazar where they made her to sign on some papers and all of them started completing Saptpadi (Saat Phere). When she regained a little bit consciousness, she told them that she will make noise if they would compel her to marry. Sh. Joginder, Sh. Yuvraj and Sh. Sunder took out knives and stood in her front and threatened her that in case she make objection they will kill her. They also directed to complete Saptpadi (Saat Phere). She started weeping. Sh. Deepak, Smt. Laila Ravi, Sh. Suresh @ Sahil, threatened her that in case she make a noise or she will not complete the Saptpadi (Saat Phere), then they will cut his brother, brother in law and father and throw them. She also SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 2 of 25 disclosed a telephone No.9210100875. She also alleged that she was still being threatened. She prayed for taking appropriate action against the accused persons. On the basis of that complaint, ACP ordered for registration of FIR and accordingly, FIR No.390 dated 09.09.2008 at PS Krishna Nagar under section 363/366/506(II)/34 IPC was recorded. IO got medical examination of prosecutrix Sarita conducted in SDN hospital. Prosecutrix did not consent for internal examination. It was observed by doctors in MLC that there was no complaint of any fresh external injuries on the body of prosecutrix Sarita. IO prepared site plan of the place of occurrence. Statement of prosecutrix u/s 161 Cr.P.C. was recorded by IO on 12.09.2010. On 12.09.2010, she was produced before Ld. M.M. for recording of her statement and statement of prosecutrix by Ld. M.M. was recorded on 14.09.2008. Accused Suresh @ Sahil was arrested. His arrest memo and personal search memo was prepared. He was also got medically examined in the SDN hospital. IO also obtained the date of birth certificate of prosecutrix from Swami Ganeshdatt S.D. Girls Middle School, Geeta Colony, showing her date of birth as 16.10.1989. After completion of investigation police filed charge sheet only against accused Suresh @ Sahil on 10.11.2008. Accused Resham Pal was shown in column No.2.
SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 3 of 252. After supplying of copies of charge sheet and documents to the accused Ld. M.M. committed this case to the courts of sessions and it was assigned to this court.
3. My Ld. Predecessor vide his order dated 13.03.2009 opined that a prima facie case u/s 366/506(II)/34 IPC was made out against accused Suresh. Accordingly, charge against accused Suresh @ Sahil for the said offences was framed and read over to him. He pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined Prosecutrix Sarita as PW1; ASI Rajpal as PW2; W/ASI Bindu as PW3; ASI Tejpal as PW4; Pandit Brij Kumar Pandey as PW5; Mrs. Veena Gauri as PW6; Smt. Kalawati as PW7; SI Rambresh Singh as PW8; Sh. Sanjiv Kumar Singh, Administrative Civil Judge as PW9; Dr. A.K. Kulshrestra as PW10.
5. After closing of prosecution witnesses statement of accused u/s 313 Cr.P.C. was recorded. Accused denied all the material evidence and pleaded that he was innocent.
6. At that stage, accused Resham Pal was arrested.
SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 4 of 25Police prepared supplementary challan. Supplementary challan on committal was also assigned to this court.
7. My Ld. Predecessor vide his order dated 01.06.2010 opined that a prima face case for framing of charge against both the accused u/s 366/506(II)/34 IPC was made out. Therefore, a common charge against both the accused was framed and read over to them. Both the accused pleaded not guilty and claimed trial.
8. After framing of common charge the above named ten prosecution witnesses were re-examined. After their examination, prosecution also examined HC Hari Kishan as PW11; HC Shripal Singh as PW12; ASI Yashpal Singh as PW13 and Sh. Rajeev Rana, SI as PW14.
9. After closing of prosecution evidence, statements of both the accused u/s 313 Cr.P.C. were recorded. Accused Suresh @ Sahil admitted that he went to Arya Samaj Mandir in a auto rikshaw with prosecutrix. He pleaded that she went to Arya Samaj Mandir of her free Will. Ms. Monika also accompanied them. He also admitted that at Arya Samaj Mandir, Yamuna Bazar, marriage was solemnized but he pleaded that marriage was solemnized with the consent of PW1 prosecutrix Sarita SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 5 of 25 and she also went to Tis Hazari Courts where she signed some documents of her own. He also admitted that after solemnization of marriage she was dropped at Tonga Stand Jhilmil. He denied the evidence regarding extending any threat to her. He also pleaded that present case was made out against him as he could not fulfill illegal demand of Rs. 1 lac of brother in law (jija) of prosecutrix and all PWs including prosecutrix deposed against him falsely under his pressure. He opted to lead defence evidence.
10. Accused Resham Pal denied all the material evidence and took a plea of alibi and specifically pleaded that he was in Rajasthan at the time of alleged occurrence.
11. In support of their defence accused persons examined Ms. Monica, a friend of prosecutrix as DW1; Sh. Vijay Kumar r/o Village Karkardooma as DW2. Sh. Suresh Kumar accused examined himself u/s 315 Cr.P.C. as a witness as DW3.
12. After closing of evidence of both the parties, I have heard arguments addressed by Ld. Additional Public Prosecutor for the State, counsel for the complainant and Ld. Defence Counsel for the accused persons.
SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 6 of 2513. It would be appropriate to reproduced provisions of Section 361, 362, 366 & 506 IPC:
"361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
362. Abduction.-Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid].
506. Punishment for criminal intimidation.- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.-and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 7 of 25 punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. "
14. In order to prove its case for the offence of kidnapping, abducting or inducing women to compel her marriage punishable u/s 366 IPC, the prosecution has to prove that either the prosecutrix Sarita was minor at the time of alleged offence, for the purpose of kidnapping as defined u/s 361 IPC or she was by force compelled or by any deceitful means induced to go to the Arya Samaj Mandir for the purpose of abduction as defined u/s 362 IPC and she was compelled to marry accused Suresh against her Will. Let us examine the prosecution and defence evidence on these aspects.
Age of the Prosecutrix
15. PW6 deposed that she had brought the record of admission and withdrawal register of her school in respect of Sarita daughter of Ved Prakash and as per school record date of birth of Kumari Sarita was 16.10.1989. Date of birth certificate was proved as Ex.PW6/A. PW1 told the date of incident as 02.09.2008. This date was also found mentioned in complaint Ex.PW1/B. On calculation, the age of prosecutrix Sarita on the date of incident i.e. on 02.09.2008 comes to 18 years 10 months and 16 days.
SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 8 of 25There is no dispute of parties on this age of the prosecutrix. As age of prosecutrix has been proved as above 18 years, therefore provisions of Section 361 IPC which defines kidnapping, are not attracted on the facts of present case.
Use of force for compelling prosecutrix or application of deceitful means for inducing prosecutrix to go to Arya Samaj Temple.
16. Ld. Additional Public Prosecutor contended that prosecutrix has supported the prosecution case not only with regard to abduction with the purpose of marriage but also corroborated the prosecution case that accused persons committed offence of intimidation.
17. Counsel for complainant argued that prosecutrix has fully supported her case. There is no material contradiction in the testimonies of prosecution witnesses. The defence witnesses are interested witnesses as they are related to each other. He submitted that case of the prosecution has been proved beyond reasonable doubt.
18. On scrutinizing the prosecution and defence evidence, I noticed contradictions on following points:
SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 9 of 25Number of Accused Persons
19. In the complaint Ex.PW1/B the prosecutrix made complaint not only against accused Suresh @ Sahil and Resham Pal but also against Smt. Nanvai, Sh. Joginder, Sh. Yuvraj, Sh. Sunder, Smt. Lali, Sh. Deepak, Smt. Laila Ravi, and Sh. Vibhu. She alleged that all the above named person came in the street on 02.09.2008 and surrounded her and made her to sit in the auto rikshaw. In her statement made in the court on 08.04.2009, she deposed that on 02.09.2008 at about 10 am when she was going for tution near Shiv Mandir behind her street, on the way Resham Pal & Suresh met her and they forcibly got her seated in the auto rikshaw. Thus there is material contradictions about the number of accused persons in the complaint Ex.PW1/A and statement made in the court.
Involvement of Sh. Khimman, Father of Accused Suresh @ Sahil
20. In the complaint Ex.PW1/A, prosecutrix alleged that all the accused persons named in the complaint surrounded her and Khimman and his daughter Lali & son in law Resham Pal caught hold of her and put her in the auto rikshaw by catching hold of her and then Resham Pal put a handkerchief on her mouth and she felt intoxicated. In the statement before the court she deposed that Sh.
SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 10 of 25Resham Pal and Suresh @ Sahil met her in the way and forcibly got her seated in the auto rikshaw. Resham Pal put handkerchief on her mouth and thereafter she became unconscious. Thus there is a contradiction on the point of role of Khimman in commission of crime.
Regaining of Consciousness
21. On the point of regaining consciousness, prosecutrix in her complaint Ex.PW1/A stated that Sh. Resham Pal put handkerchief on her face and she felt intoxicated. They took her to Arya Samaj Mandir, Yamuna Bazar where she found Suresh @ Sahil, his bhabhi Nirmala, Resham Pal and his sister Lali present in the temple where they obtained her signatures on some documents and started performing the Saptpadi then she regained some consciousness. In her statement before the court as PW1 she deposed that on putting the handkerchief by Resham Pal on her mouth she became unconscious and she regained her consciousness at Arya Samaj Mandir, Yamuna Vihar. Her statement is silent as to at what stage she regained consciousness. In cross examination she stated that she completed the Saptpadi in semi unconscious state. Thus her statement remained inconsistent on this aspect.
SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 11 of 25Signatures on documents
22. Prosecutrix in her complaint Ex.PW1/A stated that on putting handkerchief by Resham Pal, she felt intoxicated. They took her to Arya Samaj Mandir, Yamuna Bazar where they obtained her signatures on some papers. In the court she deposed that when she regained consciousness at Arya Samaj Mandir, Yamuna Bazar, she found accused Suresh @ Sahil, his bhabhi Nirmala, Resham Pal and his sister Lali present there. She also stated that, "Unhone Mere Saath Suresh Ke Saath Saat Phere Karwaye Zabardasti". Thereafter, they took her to Tis Hazari Court where they obtained her signatures on some blank papers. Thus in the complaint she stated that her signatures were obtained in Arya Samaj Mandir but in the court she stated that her signatures were obtained at Tis Hazari Courts.
Intimidation
23. On the point of intimidation prosecutrix in her complaint Ex.PW1/A stated that when she regained consciousness at the temple , she told them that she will make noise and asked them as to why they were compelling her. Then Joginder, Yuvraj and Sunder took out knives and stood in her front and stated that she did not scare in the presence of so many persons and asked her to complete the Saptpadi silently (Chupchap Phere Dalwa Lo) SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 12 of 25 least they will kill him. In the court she deposed that accused Resham Pal & Suresh also threatened her that if she would try to tell her parents about the incident they would kill her. Thus in the complaint, she stated that either complete the Saptpadi silently least they i.e. Jogender, Yuvraj and Sunder will kill her but in the court she deposed that accused Resham Pal and Suresh threatened her to kill her if she discloses the facts of marriage to her parents.
24. In the complaint Ex.PW1/A she also stated that she started weeping and protested by standing on a place, Sh. Deepak, Smt. Laila Bose, Sh. Suresh @ Sahil, Sh. Ravi, and Sh. Ribu stated that in case she will make noise, or will not complete the Saptpadi, then they will kill her brothers, father and brother in law (jija) by cutting their body into pieces. In the court she remained silent on this aspect. Before the Ld. M.M., she stated differently. She stated that when she was going for tuition at 02.09.2008, Suresh and his brother in law got her seated in auto rikshaw by force and kept a handkerchief and stated that if she will raises noise, they will kill her, her sister, brother in law and mother. Thus, she stated differently before the Ld. M.M. in her statement u/s 164 Cr.P.C.
SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 13 of 25Disclosing of Fact of Marriage and Intimidation
25. Prosecutrix in her cross examination stated that on the day of incident, she had gone for tuition at 10 am. She had to appear in exam on that date from 2 pm to 4 pm in the school. She appeared in her examination and after attending the school she went to her house and told her mother and father about the alleged marriage.
26. PW7, mother of the prosecutrix stated that FIR was got registered by them on the same day when incident was reported to them by her daughter. As mentioned above, FIR was registered on 09.09.2008. Thus prosecutrix deposed that she disclosed the incident on the same day but her mother told that she disclosed the incident on 09.09.2008.
Presence of Monica
27. Prosecutrix in her complaint Ex.PW1/A did not mention anything about presence of Ms. Monica at the time of her abduction or putting a handkerchief on her mouth or solemnization of marriage under influence of intoxication/drugs. As PW1, prosecutrix admitted in cross examination that Ms. Monica was also with her at the time when marriage had taken place. She also admitted that she returned to her house after said incident with Monica.
SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 14 of 25PW7 in her cross examination also admitted that her daughter disclosed that her friend Monica was also with her at the time of alleged incident.
Arguments of Defence Counsel
28. It has been argued on behalf of Ld. Defence Counsel that there are material contradictions on material points which has created doubt about the truthfulness of prosecution case.
29. The material contradiction noticed in the prosecution witnesses have been narrated here in above in brief.
30. My attention goes to a case reported as Ramesh v. State of Himachal Pradesh, (HP) 2004(4) Crimes 60, wherein the the HP High Court observed:
"15. There are minor contradictions in the statements of the prosecution witnesses but because of errors in individual perceptions and observations such contradictions are bound to occur. Secondly with the passage of time lapse of memory can also lead to minor contradictions and discrepancies in the statements of the witnesses. Human tendency to back up good cases by exaggerated version can be yet another reason for contradictions and discrepancies in the evidence of the witnesses. Therefore, while appreciating the evidence the Courts are not to attach undue importance to minor SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 15 of 25 contradictions and discrepancies in the version given by the witnesses and not to disbelieve such statements as a whole because of such minor discrepancies/contradictions unless they go to the root of the case. The Court may ignore exaggerated part of the testimony and may act upon the part which may be otherwise reliable and trustworthy."
31. In case of Leela Ram (Dead) through Duli Chand v. State of Haryana, (SC) 1999(4) R.C.R. (Criminal) 588 the Apex Court Observed:
9. Be it noted that the High Court is within its jurisdiction being the first appellate court to re-appraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety.
Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in the State of U.P. v. M.K. Anthony, 1985(1) RCR(Crl.) 88 :
AIR 1985 SC 48. In paragraph 10 of the report, its Court observed :
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 16 of 25 in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trival details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
32. In case of Appabhai and another v. State of Gujarat, AIR 1988 SC 696, the Apex Court observed:
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 17 of 25 to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
33. My attention also goes to a case Babu Lal and Others v. State, 1994 JCC 111 wherein, the Delhi High Court observed that:
"10. As far as these appellants, namely Babu Lal, Arjun Das and Leela Ram are concerned, there are material contradictions in the statements of the two injured, Om Parkash and Bhagwan Das who are the real brothers. The other alleged eye witnesses have also contradicted themselves on the most material points and the contradictions cannot be said to be minor and have occurred on account of passage of time. Moti Lal, PW13 on whose statement the case was registered has also not supported the case of prosecution in as much as he has denied that he has seen the incident or he saw these appellants giving injuries to the injured.*** There are serious lapses in the prosecution story in connecting these appellants with the offence. The story put up by the prosecution as far as these appellants are concerned, is unbelievable and doubtful. The weapon of offence, Rampi, was not sent to the doctor for examination, as such the doctor has not stated that these injuries could have been caused by the Rampi."
34. Now, it has to be seen whether the above narrated contradictions comes in the category of minor contradictions or these comes in the category of minor contradictions. After carefully considering these SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 18 of 25 contradictions, I come to the conclusion that these contradictions cannot be termed as minor contradictions either occurred due to lapse of time or otherwise but these are the material contradictions which converts the testimony of prosecutrix unreliable and doubtful. Thus the principles laid down in Babu Lal and Others v. State, (supra), are applicable on the present case. I am convinced with the arguments of Ld. Defence Counsel that there are material contradictions in the prosecution evidence.
35. It has also been argued on behalf of Ld. Defence Counsel that testimony of prosecutrix has not been corroborated by any independent witness rather her testimony has been contracted by her own friend Ms. Monica.
36. My attention also goes to a case Pardeep @ Sonu v. State, 2011 [2] JCC 1031. The Delhi High Court observed that:
"28. This is no more res Integra that conviction for offence under Section 376 of IPC can be based on the sole testimony of a victim as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550. However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 19 of 25 unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused." [Emphasis supplied]
37. On applying the principles, laid down in case Pardeep @ Sonu v. State, (supra), and considering the material contradictions in the statement of prosecutrix and in his complaint Ex.PW1/A, I am of the view that it would not be safe to rely on the uncorroborated testimony of the prosecutrix particularly when her testimony has been found inconsistent through out and there are contradictions on many points and further that her own friend Monika who examined herself as DW1 deposed in contradiction to the testimony of prosecutrix. She inter alia stated as DW1 that on 02.09.2008 at about 9:50 pm, prosecutrix came to her house and asked her to accompany her for going to Chandni Chowk for purchase of a pair of sandle. Thereafter, they hired an auto rikshaw for going to Arya Samaj Mandir, Yamuna Bazar and she disclosed to her that she wanted to marry Suresh. On reaching the temple she found Suresh, Deepak and other persons there and thereafter, saptpadi steps were taken in between Sarita prosecutrix and Suresh and thereafter, they went to Tis Hazari where Sarita and Suresh put their SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 20 of 25 signatures on some papers and thereafter, Suresh dropped the prosecutrix and her at tonga stand, Jhilmil. Mother of prosecutrix who examined herself as PW7 admittedly did not see the occurrence and she deposed on the basis whatever was told to her by prosecutrix. Thus argument of Ld. Defence Counsel is convincing on this aspect that testimony of prosecutrix has not been corroborated by any independent witness.
38. Ld. Defence Counsel further argued that marriage between Suresh & Prosecutrix had taken place with her free Will.
39. PW5 Pandit Brij Kumar Pandey on this aspect deposed that accused present in the court came to him at Arya Samaj Mandir, Yamuna Bazar, Delhi and solemnized the marriage with Sarita d/o Sh. Ved Prakash on 02.09.2008. He issued marriage certificate, copy of which was proved as Ex.PW5/A duly signed by him at point A. He further deposed that marriage was solemnized by him and Ravi & Harish were the witnesses of said marriage. In cross examination, he explained that he used to ask the boy as well as the girl whether there was any pressure in any manner and on satisfying himself in that regard he used to solemnize the marriage. The girl Sarita had SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 21 of 25 produced her I-Card before him. He denied he suggestion that her marriage with Suresh was solemnized under pressure. Accused Suresh examined himself as DW3 who inter alia stated that his marriage with prosecutrix was solemnized with her free Will and videography of that marriage was got prepared. He proved the CD. The CD was played in the court with the help of DVD Player. He denied the suggestion that marriage was solemnized with Sarita against her Will. Thus the evidence on record could not established beyond any reasonable doubt that marriage of prosecutrix with accused Suresh was solemnized against her Will.
40. It has been further argued that there is delay of 8 days in reporting the matter to the police and this has created doubt about the genuineness of the prosecution case.
41. Admittedly, the incident took place on 02.09.2008 and the complaint is dated 08.09.2008 and the FIR was registered on 09.09.2008. Thus there is delay of about six (6) days in reporting the matter.
42. In case of Athimula Gounder & Anr. v. State of Tamil Nadu, 2007 CRI.L.J.271, the offence of atrocity was SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 22 of 25 allegedly committed on 9.3.1998 at 9 A.M. The matter was reported to the police on 10.3.1998 at 11.30 A.M. The Madras High Court set-aside the conviction and sentence awarded by Special Court under section 3(1) (x) of the Act, inter alia, on the ground that complainant did not come forward with reasonable explanation for the inordinate delay in giving report.
43. In case of Chikkappa & Ors. v. State of Karnataka, 2002 CRI.L.J.518, the alleged offence of insult under section 3 (1) (x) of the Act had taken place on 7.9.2001. The complaint was filed after 11 days of the incident. The Karnataka High Court observed that there was inordinate delay in filing the complaint.
44. Turning to the case in hand, I find that neither prosecutrix nor her mother PW7 explained the reason as to how and under what circumstances, delay has taken place. The unexplained delay has further created suspicion in the truthfulness of the prosecution case.
45. Ld. Defence Counsel further argued that accused Resham Pal was not present at the place of incident as he had gone to Rajasthan.
SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 23 of 2546. DW2 Sh. Vijay Kumar was examined on this aspect. He inter alia stated that he and accused Resham Pal had gone to Rajasthan on 28.08.2008 and they returned on 04.09.2008. This testimony has further supported the defence of the accused persons.
47. In a case, Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
48. In view of the above reasons and discussion and evidence on record particularly discussed here in above, it is held that prosecution has failed to prove beyond reasonable suspicion and shadow of doubt that accused persons either kidnapped or abducted prosecutrix or compelled her to marry against Suresh @ Sahil. The prosecution has further failed to prove that accused persons intimidated prosecutrix or both or either of them by means of criminal intimidation compelled or induced prosecutrix to perform the marriage. Resultantly, both the accused persons are entitled to get benefit of doubt. Accordingly, by giving benefit of doubt, both the accused SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 24 of 25 persons are acquitted for the offences punishable u/s 366/506(II)/34 IPC.
49. However, accused persons are directed to furnish their personal bond for a sum of Rs.10,000/- with one surety of like amount as per provisions of Section 437A Cr.P.C. for a period of six months.
50. After furnishing of surety bonds, file be consigned to Record Room.
Announced in the open court on 14.12.2011 (DR. T.R. NAVAL) Addl. Sessions Judge-02 East District:KKD Courts:Delhi SC No. 19/09 State Vs. Suresh @ Sahil etc. Page 25 of 25